The self-contradictory Miranda appeal ruling

by Carl Gardner on January 19, 2016

I’ve been following for some time David Miranda’s challenge to the lawfulness of his questioning at Heathrow airport in 2013. I wrote shortly after his detention; I covered his application for an injunction; I published his grounds for judicial review; I live-tweeted the judicial review hearing and analysed Lord Justice Laws’s judgment against Miranda; and last year, I published his grounds of appeal.

Having sat through some (not all) of the appeal hearing, I’m not surprised David Miranda has again seen his questioning ruled lawful, and compliant with his human rights. But I am very surprised by the Court of Appeal’s judgment today, in which it also declares incompatible with free expression the legislative power to stop and question Miranda, in Schedule 7 para. 2 of the Terrorism Act 2000. These two rulings, in the same judgment, seem to me mutually contradictory.

The surprise “incompatibility” ruling begins at paragraph 94, at the end of the judgment, and the Master of the Rolls Lord Dyson gets to the meat of his reasoning from paragraph 108 on. He says (para. 113)—

I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection … An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making … the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

And goes on at paras. 114 and 5 to conclude that—

prior judicial or other independent and impartial oversight (or immediate post factum oversight in urgent cases) is the natural and obvious adequate safeguard against the unlawful exercise of the Schedule 7 powers in cases involving journalistic freedom. For the reasons that I have given, the other safeguards relied on by Laws LJ provide inadequate protection.

[The Terrorism Act 2000], therefore, contains no adequate legal safeguards relating to journalistic material …

Lord Dyson’s ruling on this is perhaps a bit surprising given what he says earlier in his judgment about the realities of judicial scrutiny of police and security agency decisions in a case like this. At paragraph 79 he says

When determining the proportionality of a decision taken by the police in the interests of national security, the court should accord a substantial degree of deference to their expertise in assessing the risk to national security and in weighing it against countervailing interests. This is because the police have both the institutional competence and the constitutional responsibility to make such assessments and decisions.

He goes on a para. 82 to say

There is no reason to disagree with their assessment of the risk. Indeed, the court is ill equipped to do so. The police and the Security Service have the expertise and access to secret intelligence material which rightly make it very difficult to challenge such an assessment in a court of law.

If this is right, one wonders how much protection prior judicial authorisation would really offer a journalist. But there are bigger problems with the judgment than this, as we’ll see.

Lord Dyson’s reasoning is based on the requirement that any inference with free expression must be “prescribed by law”: in other words (to paraphrase the way Lord Hughes put it in the Supreme Court last year in Beghal, at para. 29 and 30) 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.

If there are not sufficient safeguards, then the power in question will breach freedom of expression even if it is used for a legitimate purpose and even if its use could be proportionate to that purpose. Again, as Lord Hughes put it in Beghal (para. 33) calling the requirement “legality”—

legality is a prior test which is designed to ensure that interference with Convention rights can be proportionate.

Legality is a logically prior requirement: only if a power is “prescribed by law” can its use be proportionate and so rights-compliant.

So far, so legally coherent. The problem is that, earlier on in his judgment, Lord Dyson held that stopping and questioning David Miranda was proportionate and rights-compliant, and for that reason lawful. At paragraph 84, agreeing with Laws LJ’s original judgment, he said—

the Schedule 7 stop was an interference with press freedom. But 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.

So that there’s no mistake about his conclusion, Lord Dyson says at para. 118—

For the reasons that I have given, I would hold that the exercise of the Schedule 7 stop power in relation to Mr Miranda on 18 August 2013 was lawful … I would, therefore, dismiss the appeal in so far as it relates to the exercise of the stop power in this case.

Lord Dyson has of course made this ruling in the Court of Appeal, in judicial review proceedings brought by David Miranda after he was stopped. But, remember, as part of his reasoning on the “incompatibility” issue Lord Dyson also ruled (para. 113) that—

the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard.

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.

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. As Lady Hale put it in a very different context in 2005 in MH v. Health Secretary (para. 32)

the means exist of operating [the legislation] in a way which is compatible with the patient’s rights. It follows that the section itself cannot be incompatible, although the action or inaction of the authorities under it may be so.

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.

Lord Dyson might have ruled that Miranda’s questioning was lawful because the legislation is incompatible: an idea that seems counterintuitive but which follows necessarily from section 3(2)(b) and section 4(6) of the Human Rights Act. This (at first blush odd) rule is what preserves Parliament’s ability to make laws regardless of human rights. Had he done that, today’s appeal judgment would have made sense.

But that was not Lord Dyson’s approach. He held Miranda’s questioning lawful because proportionate and compatible with free expression. It’s a conclusion that’s unfortunately contradicted by the declaration of incompatibility in respect of the Terrorism Act itself.

How can this have been got so wrong? It’s worth noting that there’s little mention in the judgment of the Human Rights Act. I suspect the Court of Appeal has lost sight of the framework it lays down and has not gone through the necessary steps, before moving to a declaration, of considering whether it must strain the interpretation of Schedule 7 so as to render it rights-compatible. It may also be that focusing narowly on the grounds of appeal (the grounds relating to the detention emphasised proportionality while the ground relating to the legislation emphasised “legality”) has produced a “trees not wood” effect, the court failing to consider the legality (in the human rights “prescribed by law” sense) of the questioning in spite of its importance as regards the legislation.

However it’s happened, in my view this is a legally unsustainable ruling: it must surely be addressed and corrected by the Supreme Court. If David Miranda’s questioning complied with human rights, then so does the legislation it was done under; if on the other hand that legislation is incompatible with his rights, then so was his questioning.

{ 16 comments… read them below or add one }

1 Rhiannon January 19, 2016 at 20:04

“Lord Dyson might have ruled that Miranda’s questioning was lawful because the legislation is incompatible.”

Without having read the whole judgment, I assumed that this had been precisely his approach. I’m now intrigued to read it through.

If Miranda’s detention and questioning was lawful because the legislation violated his article 10 rights, would Miranda be entitled to damages?

2 Tim January 19, 2016 at 20:04

Yes, I think you have a point.

My theory is this. I think one of the principal purposes of the Court of Appeal is to pretend that the legal system in this country is not run by a bunch of Tories who all went to the same posh schools and universities.

So from time to time they will hand down a ruling like this to lend credibility to that false impression. I am sure it will either be left in place to maintain the pretence or will be put “right” by the Supreme Court.

3 Carl Gardner January 19, 2016 at 22:26

Rhiannon,

If Miranda’s detention and questioning was lawful because the legislation violated his article 10 rights, would Miranda be entitled to damages?

No. The practical outcome for David Miranda would be the same: his questioning would have been lawful, and he’d have no remedy. So no compensation. He would though at least have had the satisfaction of being able to say the conduct of the police and security service had breached his human rights, rather than simply having an abstract sort of victory as regards the legislation.

4 Owen January 19, 2016 at 23:12

[blockquote]If David Miranda’s questioning complied with human rights, then so does the legislation it was done under; if on the other hand that legislation is incompatible with his rights, then so was his questioning.[/blockquote]

I don’t understand why there are only two choices: both unlawful and incompatible, or both lawful and compatible. May an action not be both 1) lawful (as in within authority prescribed by statute) and 2) incompatible with the ECHR (as in the authority prescribed is incompatible)? If the compatibility of the action with the ECHR necessarily dictates its lawfulness, it seems redundant to ask both questions.

5 J. R. Tomlin January 20, 2016 at 01:09

Not being a lawyer or even anything close, certainly not a British one, I have no clue the validity of your comments except for one. This: Mr. Miranda was did not “challenge to the lawfulness of his questioning” because it was not merely “questioning” but detention, without let me remind you, benefit of any legal representation or recourse. Trying to minimize the seriousness or degree of reprehensibility of this will not wash.

6 BlackBess January 20, 2016 at 03:16

Lets be clear here, this is the state protecting itself from itself.

There is this vision of far off distant persons in situations of some protection (absurdly in Russia) telling us things the state is doing to us that should be criminalised if theyre not already, and that having access to or reporting on this is somehow a crime.

I blink and ask myself, is this film noir?

7 Carl Gardner January 20, 2016 at 10:54

J.R. Tomlin,

I’m not minimising anything, and am surprised you think I am. He does have some legal recourse, in the form of these judicial proceedings themselves.

8 Carl Gardner January 20, 2016 at 11:18

Owen,

Perhaps for the benefit of a blogpost I’ve simplified things slightly; but I think it is right to say that in the circumstances the court faced the binary choice I’ve described. Let me try explaining another way.

If the court had thought there was no human rights problem at all in this case (which is what the original court said) then it would have said (a) the legislation was rights-compatible and (b) the stop itself was rights-compatible and so lawful. That’s “another option”. But the Court of Appeal does think there’s a human rights problem. And once you think that, you do have a binary choice, because you must identify whether the breach arises from (a) the legislation itself or (b) the stop.

If the legislation is in principle incompatible, then everything done under it breaches rights (or at least, everything done under it that’s like the thing that you have in mind when ruling it incompatible) but is lawful: see section 6(2)(b) of the Human Rights Act.

If the legislation is in principle compatible, then (since we’ve already said there’s a human rights problem) it must be that the stop itself was a breach for some reason — for instance by being carried out for an illegitimate purpose, or by being disproprtionate. That would mean the stop was unlawful (see section 6(1) of the HRA).

It’s quite true that the CA has ruled the legislation incompatible, and the stop lawful. If you go no further than that, the ruling seems to make sense. What doesn’t make sense is the reasoning that makes the court say the stop was lawful. If it’s right to call the legislation itself incompatible, then the question whether the stop breached rights and is lawful is very easy: it must have breached rights since it was the product of incompatible legislation, and had to be lawful, under section 6(2)(b). There’d be absolutely no need to consider whether it was proportionate, and its proportionality or otherwise could make no difference to its lawfulness.

Yet the court did consider the proportionality of the stop, and ruled it lawful because proportionate — not because of section 6(2)(b). That doesn’t make sense in terms of the Human Rights Act. The necessary implication of this is that the stop was “prescribed by law” (which it has to be, in order to comply with rights) even though the legislation under which it was prescribed does not, Lord Dyson ruled, meet the necessary conditions to “prescribe stops by law”.

Is that contradiction clear? Either the “prescribed by law” standard is met, or it’s not. You can’t at one and the same time say “This TACT legislation isn’t clear enough to prescribe stops by law” and say “This stop’s clearly prescribed by law under TACT”. Yet that is what the court must have ruled.

9 Matt Flaherty January 20, 2016 at 16:51

J. R. Tomlin,

There is nothing in English law that guarantees a right to legal counsel in all situations where questioned or detained by authorities. The circumstances of Mr Miranda’s questioning were not related to any criminal proceedings. It was (according to the Home Office and affirmed by two courts) authorised questioning, and detention was necessary in order to conduct the questioning. He could not have been questioned if he were free to go. The limits on the detention are set out in the legislation. He could be stopped for no more than 9 hours. As it turns out, he did have the right to a lawyer under this statute and he requested his own lawyer, who happens to reside in Brazil. The legislation provides that questioning can continue if awaiting the arrival of legal counsel would introduce unnecessary delay (particularly important given the deadline). He was able to speak on the phone, unless I am very much mistaken.

The real problem with this legislation is that even with a lawyer present, there is no right to silence. That is too heavy handed when the person being questioned was known to the authorities beforehand. Think of all the time they had to come up with the questions they would ask! Anyone travelling to or through a port can be questioned about anything at all and they must answer truthfully and hand over whatever they have in their possession if asked?! The legislation was designed for random travellers, like security checks at an airport, not known targets for stop and search, but the case law has developed to allow this.

10 Matt Flaherty January 21, 2016 at 11:49

Carl,

As you know, we’ve been arguing over this yesterday. I am now of the opinion that proportionality does not go away when there is a legal incompatibility. Such an interpretation would have the effect that once a legal incompatibility is found, all previously unlawful (by ECHR) interferences would have been lawful if decided fresh, and all future cases on similar facts would also have to be decided differently. This is not rational. Your interpretation of HRA s6(2)(b) is too broad. As Graeme Cowie says in his piece, a public authority acting disproportionately would not be giving effect to or enforcing the law; therefore, s6(2)(b) cannot apply. The Master of the Rolls seems to agree.

Your reliance on the words of Lord Hughes in Beghal is also flawed. That full paragraph reads: “In both kinds of case, the issue of legality is thus, whilst distinct from proportionality, closely linked to it. In both kinds of case, legality is a prior test which is designed to ensure that interference with Convention rights can be proportionate. It does not, however, subsume the issue of proportionality, whether the issue is the proportionality of the measure as a whole or the proportionality of its application in a particular case.”

Legality is a prior test. It does not, however, subsume the issue of proportionality.

I would have thought that was clear.

11 Carl Gardner January 21, 2016 at 18:11

Matt,

I agree, it is clear. And I think it supports my view, not yours. We’ve been having quite an involved debate around the points I made in my post and those made by Graeme Cowie in a response on his blog.

He, and I think you, argue that there’s no contradiction in Lord Dyson’s judgment since, while Schedule 7 is incompatible with free expression, section 6(2)(b) of the Human Rights Act does not shield it from challenge under section 6(1), at least not in this case. While you agree that giving effect to a statute that cannot be read compatibly with the Convention rights is necessarily lawful, your argument is that, because it’s only a lack of “prescription by law” that causes this incompatibility, it is only this “non-prescription-by-law incompatibility” that falls within section 6(2)(b). If the police stop someone under Schedule 7 but act disproportionately in doing so, then they are not “giving effect” to Schedule 7 at all. The stop is not protected by section 6(2)(b), therefore section 6(1) still applies, and the stop is both a breach of rights and unlawful. I think both you and Graeme argue that this was Lord Dyson’s chain of reasoning—it’s just that his conclusion in this case was that the stop was proportionate, therefore there was no breach of rights and unlawfulness.

By all means let me know if you think I’ve misunderstood the argument.

There are several difficulties that this approach faces, it seems to me. The first one is the plain wording of section 6(2)(b), which says section 6(1) does not apply if

in the case of 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 authority was acting so as to give effect to or enforce those provisions.

Nothing in this suggests that “give effect” has the special limited meaning you contend for. Any stop under Schedule 7 gives effect to Schedule 7, in the ordinary meaning of those words, and that’s what section 6(2)(b) is on about.

The second difficulty is that you have to imply all of this into Lord Dyson’s judgment. Nowhere does he suggest he’s even considering section 6(2)(b), or its width, or whether a disproportionate stop “gives effect” to Schedule 7 or else applies it in some “non-effect-giving” way. This is all your rationalisation of his approach, with no support at all from his own words.

Third, and most importantly, you have to contend with the basic principle underlying the Human Rights Act, which is that it’s meant to “preserve Parliamentary sovereignty”. I think it’s a mistake to think of this as really about Parliamentary sovereignty, but that’s a separate point, irrelevant to our debate. The idea behind the HRA is that Parliament should remain able to legislate contrary to human rights. I think if your and Graeme’s argument were right, then the HRA would have failed to achieve that goal.

What do we mean when say that Parliament should be able to legislate contrary to human rights? Surely by this we mean that Parliament should be able to lay down a legal rule, and have that rule applied and enforced by courts, regardless of human rights. Surely we mean that, if someone tries to use human rights arguments in court to complain about the application of the rule to them, that the courts should send them away, saying

Sorry: Parliament can legislate contrary to human rights, and has done here, so there’s nothing we can do for you human-rights-wise to help you evade Parliament’s will.

Isn’t this what we mean?

By the way, how do the courts spot when Parliament has done this? They do it by working out whether the legislation can be read and given effect compatibly with rights, under section 3. If it can, then Parliament means it to be rights-compliant, and any rights-breaching application of it is unlawful. It the legislation cannot be read or given effect in a way which is compatible with the Convention rights, then Parliament must have intended it to be so, since Parliament’s intention in respect of legislation is the same thing as its legal meaning. The statute is incompatible with the Convention rights. It must be an exercise of Parliament’s ability to legislate in breach of those rights.

Take prisoners’ votes as an example. You simply cannot read UK legislation as permitting any serving convicted prisoner to vote. Parliament has legislated contrary to their rights. The situation we have is an example of Parliament exercising its ability to do so.

That means no prisoner can successfully go to court and obtain an order giving them a vote. If they could do so, Parliament’s legislative wish, that prisoners should not vote, would have been frustrated by human rights. Which is exactly what the HRA is supposed not to do.

Yet your and Graeme’s argument would allow them to do just that. Yes, you say, the legislation is incompatible with rights; but if a prisoner goes to court using another human rights argument, separate from the one which made the legislation incompatible, then they can indeed get an order giving them a vote. They could argue that, in their individual case, denial of the vote did not pursue a legitimate aim. They could argue it was not prescribed by law.

Indeed, they could argue that it was disproportionate in a different way from the type of disproportion that led courts to read the legislation as rights-incompatible. Why not? Is there some magic about proportionality, on your and Grame’s analysis, that means section 6(2)(b) bars any proportionality argument at all once a statute has been found “disproportionate-incompatible”, even if a new proportionality argument can be raised that is not the same as the one that led to the incompatibility?

And so, in spite of the basic idea underlying the HRA, you envisage Parliament’s clear intent to legislate contrary to rights nonetheless resulting in a series of human rights challenges, potentially leading to orders giving prisoners the vote. All prisoners have to do is raise human rights arguments that did not succeed in the famous Hirst case.

Is your reply to this that there’s something special about “disproportionality-incompatibility” that prevents this, but does not apply to the Schedule 7 “prescibed-by-law-incompatibility” found in the Miranda case? Do you have to fall back on seeing a radically difference between two types of incompatibility? That would have no basis in the wording of the Human Rights Act.

Now, let’s consider how Parliament would go about deliberately ensuring a power exactly like Schedule 7 remained in law, knowing that it breached human rights and wanting to breach human rights. How could it go about that? Well, the text of Schedule 7 would do, surely: Lord Dyson hasn’t been able to read or give effect to it in a way which is compatible with the Convention rights. Yet you, on your approach, would have to tell MPs that they may still not get their way, since it’d be possible for travellers to get injunctions preventing them being stopped at airports. All they’d have to do would be to go to court before flying, and come up with a better argument on proportionality than David Miranda.

Although maybe the good news (if you’ve decided you have to distinguish between two different types of incompatibility) is that if they can rewrite Schedule 7 in a “disproportionate-incompatible” way rather than a “prescribed-by-law-incompatible” way, stops can be shielded from human rights challenges after all. Though how MPs could predict what sort of incompatibility Lord Dyson would find, we can’t say.

Is anything actually left of Parliament’s ability to legislate contrary to human rights, on your and Graeme’s approach? Hardly anything. All that’s left is the idea that it can legislate contrary to human rights, but must still face human rights challenges frustrating the policy behind the legislation using any human rights argument that can be advanced, save only any particular argument that leads courts to rightly find that it intended to legislate contrary to human rights.

I’d summarise what I think is your and Grame’s error in this way. You are trying to insist that legislation can be applied in a way which either is, or else is not, compatible with Convention rights (depending on whether the “application” is proportionate, say) even though, to quote section 6(2)(b), that very legislation—

cannot be … given effect in a way which is compatible with the Convention rights

Funnily enough, your argument must be that a statute that cannot be given effect in a way which is compatible with the Convention rights can, nonetheless, be applied by a public authority in a way which is. Isn’t that correct?

Or do you now have to fall back on saying Lord Dyson’s discussion of ground 3 in this appeal assumed from the beginning that the stop was lawful and merely decided in which way—whether by operation of section 6(2)(b), or because it was proportionate? That would again be without any basis in his judgment, and would mean that part of his judgment was of purely academic interest, without legal consequences either way.

12 Graeme Cowie January 21, 2016 at 18:36

Nothing in this suggests that “give effect” has the special limited meaning you contend for. Any stop under Schedule 7 gives effect to Schedule 7, in the ordinary meaning of those words, and that’s what section 6(2)(b) is on about.

I don’t think you need a “special limited meaning”. I think on a plain reading of the words “acting so as to give effect to or enforce” someone who acts disproportionately in relation to a proportionate statutory provision is not so acting. This is obviously different from prisoner voting (an example you’ve tried to use to rebut this interpretation) because the statutory provision in that case was disproportionate and not, as Lord Dyson found of Schedule 7 in this case by necessary inference in relation to the third ground of appeal, proportionate.

The second difficulty is that you have to imply all of this into Lord Dyson’s judgment. Nowhere does he suggest he’s even considering section 6(2)(b), or its width, or whether a disproportionate stop “gives effect” to Schedule 7 or else applies in in some “non-effect-giving” way. This is all your rationalisation of his approach, with no support at all from his own words.

Would it have been helpful if he had worked through this in his judgment? Maybe. But it wasn’t necessary for him to do so given the framing of the submissions before him. Again, ask yourself why ground of appeal 3 was only interested in whether Miranda’s detention was disproportionate, rather than Schedule 7 generally. I would go as far as to say that the framing of the appeal suggests it is actually common ground among the parties and a necessary inference of para 33 of Lord Hughes in Beghal, that s6(2)(b) can only protect a public authority to the extent that a power is incompatible by reason of a statute, and to no greater an extent than that.

Third, and most importantly, you have to contend with the basic principle underlying the Human Rights Act, which is that it’s meant to “preserve Parliamentary sovereignty”. I think it’s a mistake to think of this as really about Parliamentary sovereignty, but that’s a separate point, irrelevant to our debate. The idea behind the HRA is that Parliament should remain able to legislate contrary to human rights. I think if your and Graeme’s argument were right, then the HRA would have failed to achieve that goal.

Not at all. Under my reading it is still completely open for Parliament to use clear and unambiguous words to convey its intention deliberately to legislate incompatibly with the Convention and to any extent that it pleases. A Human Rights Act-specific ouster clause in any Bill would do the trick really easily here. It’s just that s6(2)(b) isn’t as broad as that to be relied on as a general ouster.

I think it bizarre that you think Parliament could have intended to create a situation whereby a technical but general incompatibility with a Convention right should provide blanket immunity to a public authority that then, unnecessarily and supplementarily, introduces other respects in which the exercise of a power would be incompatible. And, as you yourself have pointed out, this new incompatibility might be in respect of the same Convention right, but in a different way, but equally it might be in respect of a *different* Convention right completely! This isn’t giving effect to the will of Parliament; it’s giving public authorities a free pass to frustrate the ends of the Human Rights Act by, paradoxically, arguing that the legislation is in and of itself incompatible!

What do we mean when say that Parliament should be able to legislate contrary to human rights? Surely by this we mean that Parliament should be able to lay down a legal rule, and have that rule applied and enforced by courts, regardless of human rights. Surely we mean that, if someone tries to use human rights arguments in court to complain about the application of the rule to them, that the courts should send them away, saying “Sorry: Parliament can legislate contrary to human rights, and has done here, so there’s nothing we can do for you human-rights-wise to help you evade Parliament’s will. Isn’t this what we mean?

Yes, this is what we mean, but you have a different conception of what it means for Parliament to legislate contrary to human rights.

By the way, how do the courts spot when Parliament has done this? They do it by working out whether the legislation can be read and given effect compatibly with rights, under section 3. If it can, then Parliament means it to be rights-compliant, and any rights-breaching application of it is unlawful. It the legislation cannot be read or given effect in a way which is compatible with the Convention rights, then Parliament must have intended it to be so, since Parliament’s intention in respect of legislation is the same thing as its legal meaning. The statute is incompatible with the Convention rights. It must be an exercise of Parliament’s ability to legislate in breach of those rights.

Just because Parliament has intended to legislate incompatibly in one respect with respect to human rights, does not mean that they have meant to legislate incompatibly in any other respect, unless it is a necessary corollary in the context. So, as I point out in my original reply to you, aspects of being prescribed by law may be inherent in parts 3 and 4 of Lord Reed’s Bank Mellat proportionality test. You might be able to show that some legislation was intended by Parliament to be non-rights compliant both with respect to prescription by law and proportionality, rather than just one of them.

Take prisoners’ votes as an example. You simply cannot read UK legislation as permitting any serving convicted prisoner to vote. Parliament has legislated contrary to their rights. The situation we have is an example of Parliament exercising its ability to do so.

That means no prisoner can successfully go to court and obtain an order giving them a vote. If they could do so, Parliament’s legislative wish, that prisoners should not vote, would have been frustrated by human rights. Which is exactly what the HRA is supposed not to do.

Yet your and Graeme’s argument would allow them to do just that. Yes, you say, the legislation is incompatible with rights; but if a prisoner goes to court using another human rights argument, separate from the one which made the legislation incompatible, then they can indeed get an order giving them a vote. They could argue that, in their individual case, denial of the vote did not pursue a legitimate aim. They could argue it was not prescribed by law.

Indeed, they could argue that it was disproportionate in a different way from the type of disproportion that led courts to read the legislation as rights-incompatible. Why not?

My position is that in theory they could do this but that they would struggle to prove on the facts that it was neither prescribed by law nor in pursuit of a legitimate aim. They would also probably struggle, on the facts, to show an independent cause of disproportionality being introduced in the application of the general rule to their specific case.

And so, in spite of the basic idea underlying the HRA, you envisage Parliament’s clear intent to legislate contrary to rights nonetheless resulting in a series of human rights challenges, potentially leading to orders giving prisoners the vote. All prisoners have to do is raise human rights arguments that did not succeed in the famous Hirst case.

But they also have to show that those human rights arguments result from the improper application of the legislation to their individual case, and not as a result of the legislation in and of itself. This is the key difference.

Now, let’s consider how Parliament would go about deliberately ensuring a power exactly like Schedule 7 remained in law, knowing that it breached human rights and wanting to breach human rights. How could it go about that? Well, the text of Schedule 7 would do, surely: Lord Dyson hasn’t been able to read or give effect to it in a way which is compatible with the Convention rights. Yet you, or your approach, would have to tell MPs that they may still not get their way, since it’d be possible for travellers to get injunctions preventing them being stopped at airports. All they’d have to do would be to go to court before flying, and come up with a better argument on proportionality than David Miranda.

No, it’s easy. You insert a provision into Schedule 7 or the Terrorism Act saying “section 6(1) of the Human Rights Act does not apply to the exercise of the powers contained in Schedule 7 of the Act”

13 Matt Flaherty January 21, 2016 at 18:43

Just because Parliament has intended to legislate incompatibly in one respect with respect to human rights, does not mean that they have meant to legislate incompatibly in any other respect, unless it is a necessary corollary in the context. So, as I point out in my original reply to you, aspects of being prescribed by law may be inherent in parts 3 and 4 of Lord Reed’s Bank Mellat proportionality test. You might be able to show that some legislation was intended by Parliament to be non-rights compliant both with respect to prescription by law and proportionality, rather than just one of them.

I’m not convinced that Parliament ever intended this law to be incompatible. The case law that has grown up around it has rendered it such. I don’t think Parliament ever intended that the law should be used in situations when the identity of the traveller is known beforehand. Lord Falconer, one of the bill’s sponsors, was astonished by this. Incompatibilities may arise for one reason or another, not least of which is the changing Strasbourg jurisprudence. You cannot conclude that given an incompatibility it was the will of Parliament to thrown ECHR out the window completely.

14 Graeme Cowie January 21, 2016 at 18:59

I think it’s also worth pointing out that any exclusion of the right to vote for a prisoner almost certainly leads a public authority enforcing that to rely on s6(2)(a) of the Human Rights Act, rather than s6(2)(b), because their actions are non-discretionary. s6(2)(b) relates to the exercise of discretionary powers, not the discharge of mandatory duties. If you can rely on s6(2)(a) then to doesn’t matter that you’ve introduced additional sources of incompatibility, indeed the very concept that you could do so is absurd, because you have literally just “followed orders”.

15 Carl Gardner January 22, 2016 at 12:32

Matt,

You can’t separate out, in the way you’re attempting to, an “accidental incompatibility” and an “intentional incompatibility”, with the implication that they should be protected in different ways under the Human Rights Act. Once again, that’s a distinction you’re making that has no basis in the wording of the Act.

The intention of Parliament is a legal concept: it’s ascertained by interpreting Parliament’s words in a particular Act. Judges may look at Hansard, but aside from where Pepper v Hart comes into play (and that’s pretty rare) you can’t determine Parliament’s intention that way. When we’re trying to work out what a statute means, we’re seeking Parliament’s intention; and Parliament’s intention is what the statute legally means.

If hundreds of MPs “intended” (in the second sense you’re relying on) a statute to breach rights, but judges concluded it didn’t—that, as it happened, they could read and give effect to it in a way that’s compatible with rights—then it would be compatible. This “deliberateness” test you’re bringing in is irrelevant.

If on the other hand judges cannot read an Act compatibly with Convention rights, then it’s incompatible. Its legal meaning cannot be reconciled with the Convention rights, and legally speaking that’s the same as saying Parliament’s intention in the Act is contrary to Convention rights. Parliament may or may not “have intended to breach Convention rights”: it doesn’t matter either way. But Parliament has certainly intended its legislation to have a meaning that is contrary to Convention rights. That has to apply to all incompatible legislation.

I can imagine you objectiong that “It was you, Carl, who mentioned MPs deliberately trying to breach rights!”. Yes, fair enough. But what I didn’t do was suggest that the result of their doing so should be treated differently from any other incompatible legislation.

16 Matt Flaherty January 22, 2016 at 12:34

Adam Wagner, a barrister of 1 Crown Office Row who runs the UK Human Rights Blog, agrees with Carl. An interference not prescribed by law can never be applied proportionately. In consequence, Lord Dyson must have been wrong. Also, public authorities are now apparently free to disregard all aspects of ECHR when enforcing schedule 7. I can’t help thinking this is not really what we want.

https://twitter.com/AdamWagner1/status/690496542701142016

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