Does the state owe a duty to inform the wronged? And Ullah revisited

10 February 2013 by David Hart KC

The Children’s Rights Alliance for England (CRAE) v Secretary of State for Justice, G4S and Serco plc, 6 February 2013 – read judgment 

The Court of Appeal dismissed this claim by a children’s NGO for an order that the Secretary of State provide information to certain children to the effect that the SoS and his contractors had unlawfully used bodily restraint upon them whilst they were “trainees” in Secure Training Centres. The facts and Foskett J’s judgment under appeal was fully analysed by Rosalind English in her post, so I shall concentrate on the two points of wider interest: 

1. is there a duty on the state to tell someone of their legal rights against the state?

2.  should domestic human rights case law ever go wider than its Strasbourg equivalent?

The context was that physical restraint (e.g. the Figure of Four Armlock) or “distraction techniques” (e.g. inducing a burst of pain in nose, thumb or rib) were regularly used on children in custody, when they were guilty of “unacceptable behaviour”. As emerged from inquests and cases concerning two deaths in custody, these methods were and are unlawful.

The common law claim

The claimant NGO first argued that the SoS perpetrated an impediment to the children’s right of access to justice, in that the SoS was “responsible for their ignorance” about any potential claim. Laws LJ for the Court of Appeal dismantled this argument. Yes, the SoS was “responsible” but only in the sense that he was a cause of the unlawful restraint – not because he knowingly willed it to happen or took active steps to prevent any concerns about these methods emerging.

So the NGO had to advance on a wider front. There is a cluster of rights; the right of access to the courts, the right of access to legal advice, and the right of confidential communication with your lawyer. The NGO sought to integrate these rights with the right to have notice of an executive decision before it can have legal effect – and thereby edge incrementally towards the right sought in this case – the right to inform those potentially affected by the unlawful use of force that they may have been so affected.

But this was no incremental step. Laws LJ started from the position as between private citizens. It was “repugnant” to the common law’s sense of adversarial justice to expect one party to tell another than the latter might have a claim against the former:

and if it were expressed as a duty owed in private law, it would be alien to every other such duty: not vouched by agreement, nor by the neighbour principle, nor the avoidance of harm to person, property or reputation. It would be like a colour not known on the spectrum. [32]

So the right, if right it be, had to emerge solely as a duty owed by the state. There were plenty of cases where there was a duty on the state not to impede access to justice, whether by interfering with a prisoner’s right to sue for libel (Raymond v. Honey) or censoring a prisoner’s correspondence with his solicitor (ex p.Leech). 

Then to Laws LJ’s emphatic rejection of the argument:

The learning, in various formulations, tends to speak of the constitutional right of access to the courts. But I think it will make for clarity if we articulate it rather as a constitutional duty owed by the State; and then ask how far the duty extends. As I have made clear, the authorities suggest that it is a duty not to impede access to justice. That the duty is so limited is no coincidence, but a matter of principle. If there were a positive duty upon the State to provide a potential claimant with the legal elements of his case, that would be as discordant with the common law’s adversarial system of justice as if it were suggested that a non-State party might owe such a duty. More: unless this positive duty were owed universally, it would be to provide selected beneficiaries with a distinct advantage over other potential litigants who may one way or another lack the information required to mount a claim, but to whom, nevertheless, the duty was not owed. Such a state of affairs would be inimical to a signal feature of access to justice: that it should be even-handed. But plainly the duty could not be owed universally – to every potential litigant ignorant of his rights. That would not merely be to strike a discord with the common law’s adversarial system of justice. It would be to abolish it. Equally, the duty could not in reason be owed in this single case only; if by judicial diktat we held that it was, that would simply be eccentric. And there is no principled basis upon which to identify a class of beneficiaries beyond these trainees but short of all potential litigants, so that the duty’s reach is neither unique nor universal but somewhere in between. For these reasons the case for such a positive duty is in the end arbitrary. [37]

A pithy description of the judicial dilemma. There may or may not be potent reasons for recognising a new duty in any given case, but what about the rest of the cases which follow? He was plainly right that to find a duty on these facts would read over into many other factual circumstances; it would indeed be “eccentric” or “arbitrary” to conclude otherwise.

The first two sentences should also be noted. Laws LJ is wary of what he regards as loose rights-speak – better to articulate it as a constitutional duty. An extra-judicial lecture by him on the subject was analysed in a recent post by Rosalind English – as she put it, his position amounts to saying: Don’t kick rights out, just give them their proper place as duties of government.

Once this argument fell, so did related arguments on the duty of fair dealing ([40] and irrationality ([42]) – the latter as he put it in [47], is

an appeal to a form of judicial supervision which is necessarily more remote and less robust than that what is given by the access to justice principle.

Laws LJ also floated the question of whether a case in legitimate expectation might theoretically run as founding the sought-after duty to disclose – see [46]-[47].

The human rights claim

Claims under Article 3, Article 6 and Article 8 of the ECHR had been run in front of the judge but had been dismissed not only on the merits but also on the ground that the NGO had no standing as a victim under s. 7 of the Human Rights Act. This issue did not arise before the Court of Appeal, because the Equality and Human Rights Commission intervened there, and they have in effect statutory standing under s.30(3)(a) of the Equality Act 2006.

But the argument fared no better on the merits, and was dealt with briskly in [48]ff. There was no Strasbourg case law which identified the kind of positive obligation said to arise in this case, namely the duty to contact potential victims. Unsurprisingly the Article 6 duty went no further than the common law right of access to the courts. And Laws LJ was unimpressed by the attempt to draw out of certain cases about risks to health (e.g. toxic emissions in Guerra and health risks in the Porton Down case of Roche) a more general duty. These cases were about the duty to provide factual information in order to secure Convention rights, and nothing to do with the supposed duty to inform victims of their potential legal entitlements.

The Ullah principle

The claim was also dismissed by reference to the principle in R (Ullah) v Special Adjudicator – the duty of national courts to keep pace with Strasbourg “no more, but certainly not less”, and in  R (Al-Skeini and others) v Secretary of State for Defence  (see Lord Brown at [106]).

the expression “bringing rights home” simply means that Convention rights should be enforced in the domestic courts rather than having to go to Strasbourg to enforce them: see R(SB) v Denbigh High School Governors [2007] 1 AC 1000 at paragraph 29, where Lord Bingham of Cornhill said “the purpose of the Human Rights Act 1998 was not to enlarge the rights or remedies of those in the United Kingdom whose Convention rights have been violated but to enable those rights and remedies to be asserted and enforced by the domestic courts of this country and not only by recourse to Strasbourg.” The expression does not support the enlargement of Convention rights in a way not previously recognised in Strasbourg jurisprudence.

Or in the judge’s words, endorsed by the Court of Appeal at [49]

The Ullah principle prevents this court from declaring that the kind of relief sought in this case is validly claimed on the basis of Convention rights.

So far, so conventional. But then Laws LJ added a tantalising morsel as to what he might do if not bound by this principle.

 But perhaps I may be forgiven for stating, with great deference to the House of Lords and the Supreme Court, that I hope the Ullah principle may be revisited. There is a great deal to be gained from the development of a municipal jurisprudence of the Convention rights, which the Strasbourg court should respect out of its own doctrine of the margin of appreciation, and which would be perfectly consistent with our duty to take account of (not to follow) the Strasbourg cases. It is a high priority that the law of human rights should be, and be seen to be, as sure a part of our domestic law as the law of negligence. If the road to such a goal is clear, so much the better.

A lot has been written on Ullah, and a lot is presaged in these few sentences urging a re-evaluation. We hope to post a more detailed analysis of this shortly, but a few initial thoughts. One can quite understand why the House of Lords was very wary about getting out of step with the Strasbourg court in the early days of their symbiosis, and there is benefit in an international convention being interpreted in a harmonious way by all its signatories. But has not the time come to revisit this? Our courts have started robustly to criticise and depart from Strasbourg case law when it feels it is right to so. Why should the departures be only one way traffic – less protection rather than more? As Laws LJ hints, our courts may be able to analyse cases in a more principled way than Strasbourg, and may thus “seed” Strasbourg with UK-developed human rights principles when the issue arises there in later years. In some cases (rarely, no doubt), the ruling of the domestic courts may involve a modest expansion of rights protection beyond that recognised in the Strasbourg cases, simply on its own merits or to align Strasbourg principles better with existing common law principles.

It may be no coincidence that this passage at [64] closely followed one (at [60]) in which Laws LJ noted the “disparate circumstances” in which Strasbourg case law had recognised a responsibility to take positive action, and Strasbourg’s statement that “the Court does not have to develop a general theory of the positive obligations which may flow from the Convention.”  A hint that we can do better than this back home?

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