Watch that Charter
8 November 2013
AB, R (on the application of) v Secretary of State for the Home Department  EWHC 3453 (Admin) – read judgment
Here unfolds a story of sophisticated abuse of the asylum system in this country by an individual skilfully shamming persecution. Nor did the security agents who escorted the claimant on his departure come up smelling of roses: it emerged during the course of these proceedings that they had falsified a room clearance certificate to boost the defence case.
The judgment also points up the potentially far-reaching effect of the Charter of Fundamental Rights of the European Union and how this might render all the handwringing about the European Convention on Human Rights irrelevant, and a home grown Bill of Rights otiose.
The claimant, whom Mostyn J describes as “a highly intelligent, manipulative, unscrupulous and deceitful person”, arrived in this country in 2005, was refused asylum and was deported in 2010. He sought judicial review of the Home Secretary’s decision to refuse his claim and return him to his state of embarkation, “Country A” (so designated because there was a reporting restriction order made in the original proceedings anonymising both the claimant, his country of origin, and the political organisation of which he claimed to be a member. Mostyn J “reluctantly” went along with that order in this proceedings, since neither of the parties applied to have it reviewed.)
AB alleged that the Secretary of State by her servants or agents caused confidential documents to be placed in his baggage prior to his removal. These confidential documents he said related to his failed asylum claim and to his participation in the activities of “Organisation 1” and came to the attention of government agents of Country A on his arrival at the airport. He was apparently detained, taken to a distant place, and brutally tortured. The following day, by virtue of a bribe paid by his aunt to a colonel in the army, he was released, since when he has been in hiding in Country A (although, remarked the judge drily, “he has not been forced so deep underground that he has not been able to arrange through the British Embassy attendance at the United Nations building in order to participate in these proceedings by video link”).
The claimant complained that the Secretary of State had
- acted in breach of her public law duty not to place him at real risk of being tortured;
- acted in breach of article 3 of the European Convention On Human Rights by placing him at real risk of being tortured;
- acted in breach of her duty of confidentiality to the claimant by causing or permitting the disclosure of confidential information to the authorities in Country A;
- unlawfully interfered with the his rights under article 8 of the European Convention On Human Rights and article 7 of the Charter of Fundamental Rights of the European Union by causing private information to be disclosed to the authorities in Country A; and
- failed to protect the his personal data in breach of article 8 of the Charter of Fundamental Rights of the European Union.
All claims were dismissed.
Reasoning behind the judgment
Mostyn J observed that the fact that the claimant could procure the manufacture of such plausible fake documents as those purportedly emanating from the Ministry of Interior and the National Police in Country A spoke “volumes” about his “deceitful skills”. The documents emanating from the organisation of which the claimant purported to be a member were also fake.
The judge concluded that
i) There was no dangerous or compromising material emanating from or referring to the organisation placed in the claimant’s luggage; and
ii) The claimant did not once ask the escort team to remove such material from his luggage.
AB had therefore not discharged the burden of proof in respect of anything that he said happened to him after his arrival. He failed to satisfy the court that he had been detained or tortured. He had not been exposed to any risk, let alone a real risk, of torture or inhuman or degrading treatment in the circumstances in which he was returned with his personal possessions. In such circumstances, continued Mostyn J, it was “hardly necessary” for him to go further and to express his opinion on the claim to a violation of the right of privacy, or the right to protection of personal data under the European Charter.
But express it he did. He was particularly “surprised” in relation to complaint no.5 in the claimant’s skeleton argument, since he was sure that the British government (along with the Polish government) had secured at the negotiations of the Lisbon Treaty an opt-out protocol from the incorporation of the Charter into EU law and thereby via operation of the European Communities Act 1972 directly into our domestic law. Here are the protocol provisions in full:
1. The Charter does not extend the ability of the Court of Justice of the European Union, or any court or tribunal of Poland or of the United Kingdom, to find that the laws, regulations or administrative provisions, practices or action of Poland or of the United Kingdom are inconsistent with the fundamental rights, freedoms and principles that it reaffirms.
2. In particular, and for the avoidance of doubt, nothing 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.
To the extent that a provision of the Charter refers to national laws and practices, it shall only apply to Poland or the United Kingdom to the extent that the rights or principles that it contains are recognised in the law or practices of Poland or of the United Kingdom. (see my post on the Protocol).
In the judge’s words
it is absolutely clear that the contracting parties agreed that the Charter did not create one single further justiciable right in our domestic courts. [my italics] The assertion in the sixth recital of the protocol that no new rights are created seems to me to be a misleading product of political compromise because on any view the Charter enunciates a host of new rights which are not expressly found in the European Convention on Human Rights signed in Rome in 1950. (para 12)
Needless to say, not everyone agrees with Mostyn J that the effect of the seventh protocol is to prevent any new justiciable rights from being created, least of all the Court of Justice of the European Union in Luxembourg. In NS v SSHD  EUECJ C-411 the CJEU declared that:
Article 1(1) of [the seventh] protocol explains article 51 of the Charter with regard to the scope thereof and does not intend to exempt the Republic of Poland or the United Kingdom from the obligations to comply with the provisions of the Charter or to prevent a court of one of those member states from ensuring compliance with those provisions. (para 120 – see my post on this case)
Make of this what you will, but if the Protocol is of no effect, that means that the Charter introduces into domestic law all those parts of the ECHR that were deliberately missed out by Parliament when passing the Human Rights Act 1988, plus “a great deal more”, consisting mainly of social and economic rights with unpredictable budgetary consequences and problems in enforceability. As the judge says,
The constitutional significance of this decision [in NS ] can hardly be overstated. …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. Moreover, that much wider Charter of Rights would remain part of our domestic law even if the Human Rights Act were repealed.
Quod erat demonstrandum, by the claim in this very case. The claimant asserted, not only that he had been denied respect for his right to privacy under article 8 of the ECHR, but that his right to privacy under article 7 of the Charter of Fundamental Rights of the European Union had been violated. This provides that “everyone has the right to respect for his or her private and family life, home and communications”. As Mostyn J observes, apart from expanding the concept of correspondence into communications it can be seen that this is exactly the same.
So it can be seen that even if the Human Rights Act were to be repealed, with the result that article 8 of the European Convention on Human Rights was no longer directly incorporated into domestic law, an identical right would continue to exist under the Charter of Fundamental Rights of the European Union, and this right is, according to the Court in Luxembourg, enforceable domestically.
Stop and think about this for a minute. If Mostyn J is correct – and there is no reason to believe that he isn’t – all talk of revoking the ECHR and producing a domestic bill of rights is rendered nugatory. The Convention will continue to rule from the grave, via the Charter and Section 72 of the European Communities Act. And that is the least of it – because – and this case demonstrates the potency of the Charter, albeit with unmeritorious facts – the Charter contains so much more by way of governmental obligations than the ECHR. In additional to the normal privacy rights under Art 8 of the Convention and Art 7 of the Charter, the claimant also ran an argument under Article 8 of the Charter, which entitles everyone to the right to the protection of personal data pertaining to them. Perhaps there were good reasons that this right was never formulated in the ECHR, and therefore has not been incorporated into our domestic law by the Human Rights Act. Nevertheless, by virtue of the decision in ME, and notwithstanding the terms of the opt-out, the claimant was entitled, “surprising though it may seem”, to assert a violation of it in these domestic proceedings.
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In support of the weakness in applicability of the Charter as an instrument in UK law even through its use in ECJ deliberation, I’d add none of the articles have specified weight for balancing exercises; and indeed their purported ECHR comparability in Art 52(3) Charter is misleading because they’re balanced against economic treaty rights and purposes which the Convention ordinarily isn’t; and that indeed a great margin of discretion is implied both where the Charter refers to respect for the constitutional cultures of nations, and teleologically due to the historical objectives of the Charter.
Tobias I think your paragraphs one and two are spot on but would with regard to three, would not that justiciability of the Charter qua legal instrument, in the UK, be precisely that which is proscribed by the Protocol?
I would say that the legal effect of which you speak is indeed absolutely correct, but it is arrived at through a different mechanism, i.e. through the rights jurisprudence you initially refer to early in your third paragraph, rather than through the applicability of the Charter in these jurisdictions as such.
The ‘guarantee of rights’, rather being substantive, is in the main a follow-up to inter alia the problem never fully resolved following the Dehousse report in which the absence of any clear legal basis in the treaties, for respect for national constitutional norms and fundamental rights protections was rightly thought to be a lacuna undermining the acceptability of the treaties within member states. As such I would venture (and would invite anyone to contradict) it is intended in large part precisely to restrict perceived unwelcome intrusiveness of ECJ jurisprudence upon nations, rather than produce new grounds for it.
An interesting piece, but it seems the Judge misses the point somewhat. After all, the Charter rights are only applicable in the UK courts, where the MS implement EU law (Article 51 (1) CFR). This is where the focus of the discussion over the next while will lie. To that effect it is instructive to have a look at the Akerberg Fransson judgment (C-617/10) where the Court deemed the Charter applicable in a much less clear-cut situation than the one here (criminal proceedings concerning tax evasion). Interestingly, the Judge doesn’t mention Article 51 (1) at all in his decision.
As regards the alleged opt-out: it has always been quite clear to EU lawyers that Article 1 (1) of the Protocol didn’t contain such a thing. After all, the provision merely refers to “fundamental rights, freedoms and principles that it reaffirms”. These are the fundamental rights recognised as general principles of EU law since the 1970s.
I would suggest that, as far as the UK is concerned, the true power of the Charter lies not so much in the many rights, which it guarantees, but in the fact that the Charter, by virtue of being EU law, has primacy over conflicting national law. Hence, where the Charter is applicable and a provision contained in an Act of Parliament is incompatible with it, any judge (from magistrate upwards) has the power to disapply the Act of Parliament. This is a lot more than a declaration of incompatibility under the HRA.
Really interesting piece.
While I haven’t read the cases – isn’t the scope of the Charter rights merely such that EU fundamental rights provisions/juris could be invoked in this instance – and indeed only ever, when they relate to a pre-existing area of ECJ competence (per Art 51(1) Charter “…addressed…to the Member States only when they are implementing Union law…”), in this case relating to (potential or actual) movement in and out of Europe?
On that basis, wouldn’t the effect of NS be relatively uncontroversial?
The sixth recital seems if I may respectfully say so, more rhetorical than substantive, surely just referring to preexisting ECJ declared jurisprudence which the Charter codifies, and does not of itself stop the Court from discovering any new specific or “general principles of law” as they did in e.g. Stauder and much subsequently, or?
As for Art 1(1) of the Protocol, surely it itself is, with respect, a weak statement in that it merely affirms that the instrument of the Charter itself doesn’t extend the ability of any court to find the UK or Poland to have transgressed in these areas, but in no way prevents the ECJ from fulfilling that role, given the Charter didn’t of itself (and here I generalise) create new substantive rights so much as codify and gather preexisting provisions and jurisprudence in the fields concerned?
If I’ve only embarassed myself by being wrong about half of the above (and its ranty overlength) I’ll be pleased!
Many thanks for pointing that up. Mostyn J was not having a good day!
What Mostyn J said about the expert & experts in general (who risk being seen as ‘mercenaries on behalf of their clients’) is also v. important.
– Dr Andrew Mason “a specialist in accident and emergency medicine. … for some years now he has not practised clinically but has devoted himself to medico-legal work writing reports often in asylum cases for claimants.” (para 52)
– “I have not been assisted by the expert medical evidence adduced on behalf of the claimant which I find to be both parti pris and sloppy,” (para 67)
– “Experts should be very careful not to go beyond the remit of their expertise. If they do it is inevitable that they are regarded as little better than mercenaries on behalf of their clients” (para 67)
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