ALBA Summer Conference 2018: A Review (Part 2)

18 September 2018 by Conor Monighan

Conor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

‘The relevance of unincorporated international law’. Speakers: John Larkin QC (Attorney General for Northern Ireland) and Caoilfhionn Gallagher QC

The relevance of unincorporated international law (John Larkin QC):

Mr Larkin suggested that the courts’ approach towards international law may be split into three parts:

1. International law is determinative if it is incorporated.
2. It ‘may have a bearing’ on the common law.
3. It may be relevant to the application of Human Rights, via the Human Rights Act 1998.

The HRA 1998:

The orthodox view of unincorporated treaties is that they have no substantive effect. This approach was supported in SG & Ors [2015] UKSC 16, albeit by the ‘narrowest majority’. Lord Reed’s lead judgement held that courts ought to respect the considered opinion of democratically elected institutions, who are best placed to make judgements about proportionality. Miller [2017] UKSC 5 gave further weight to the traditional view that unincorporated human rights treaties have no effect.

However the matter is not entirely clear cut, especially where the HRA 1998 is concerned. In SG & Ors Lord Hughes suggested such treaties may be relevant in a number of situations, including those in which the court applies the ECHR (via the HRA 1998). Support for this view has also been given by Lady Hale and Lord Kerr in the Northern Ireland Human Rights Commission [2018] UKSC 27 case [328]. The Vienna Convention states at Article 31(3)(c) that account should be taken of “any relevant rules of international law applicable in relations between the parties”. It is clear, then, that even unincorporated international law still has relevance for human rights.

The relevance of unincorporated international law (Caoilfhionn Gallagher QC):

According to Ms. Gallagher, statements such as ‘the UK is a dualist state so unincorporated treaties don’t matter’ are “simplistic and unhelpful”.

In fact, there are three main ways that unincorporated international law is relevant:

1. For the interpretation of ECHR rights.
2. As an aid to statutory interpretation, in accordance with a longstanding presumption: cf Lord Dyson in Assange v Swedish Prosecution Authority [2012] UKSC 22 [122].
3. To the development of the common law.

Ms. Gallagher also disagreed with the AG for N. Ireland’s view of A and B [2017] UKSC 41. He had previously argued that Lord Wilson’s comments in A and B at [35] minimised the relevance of such international materials. There Lord Wilson described “the conventions and the covenant to which the United Kingdom is party” as adding merely “background colour” to the claimant’s submissions, which his Lordship said needed “material of a far more vivid hue” to succeed. By contrast, Ms. Gallagher argued forcefully that Lord Wilson’s comments ought to be read in context and that they did not, in fact, limit the role of unincorporated international law at all.

International law case studies – Chair: Mrs Justice Laing; Speakers: Shu Shin Luh (on human trafficking and modern slavery) and Zoe Leventhal (on the UN Convention on the Rights of the Child)

Case Study: human trafficking and modern slavery (Shu Shin Luh)

Ms. Luh argued that domestic case law in this area represents ‘two steps forwards, two steps back’. The basic requirements which states must meet are set out by Article 4 ECHR, which provides ‘no one shall be held in slavery or servitude’. According to the cases of Rantsev v Cyprus and Russia (2010) 51 EHRR 1 and Chowdury v Greece (21884/15) [2017] ECR 300, this obligation imposes a range of associated duties (such as victim protection).

However, domestic law has not always been forthcoming. In particular, the legal protection offered to victims of trafficking is much more limited in scope than one might imagine. In R and B [2018] EWCA Civ 1534 the court stated (obiter) that the duties arising from Article 4 ECHR must not be allowed to increase inexorably [66]. It also rejected the argument that ‘access’ to a victim compensation scheme under Article 17 of the Directive required victims to be given ‘sufficient access’. The effectiveness of the protection offered by EU law has thus been eroded.

Case Study: the UN Convention on the Rights of the Child (Zoe Leventhal)

Ms. Leventhal focused on international law in benefits cases. She argued that such cases (i) illustrate the importance of Article 14 ECHR (the anti-discrimination provision) and (ii) that they highlight the inadequacy of the justification test found in Article 14 case law.

The orthodox view of Article 14 is encapsulated by Lord Neuberger in RJM v SSWP [2009] AC 311 at [57], and by Lord Toulson in MA [2016] 1 WLR 4550 at [32]. According to this approach, there will be instances where a policy justification for discrimination is so weak that it cannot possibly be upheld by the courts. The test applied is whether the justification is ‘manifestly without reasonable foundation’.

However, Ms. Leventhal argued that the ‘manifestly without reasonable foundation’ test is a blunt tool. Courts are, therefore, increasingly relying on international conventions to help them ‘interpret’ Article 14. Burnip [2013] PTSR 117 provides a good example of this. There Maurice Kay LJ applied Demir (2009) 48 EHRR 54, holding that

“when considering the definition and scope of discrimination against women […] the court has to have regard to the provisions of more specialised legal instruments and the decisions of international legal bodies” [19-22].

Maurice Kay LJ further held that if the meaning of Article 14 discrimination had been unclear he would have resorted to the UN Convention on the Rights of Persons with Disabilities [22].

Even greater emphasis was placed on international conventions in SG. There a large portion of time was spent on UN Convention on the Rights of the Child, rather than narrowly focusing on Article 14 ECHR. The court agreed that international law rights are relevant to Article 14 cases [142-4; 113-9; 211-218; 258-62]. Importantly, however, there must be a sufficient link between the case before the Court and the provision of international law in question.

Matters have been complicated by the case of Mathieson [2015] 1 WLr 3250. There Lord Wilson found a breach of Article 3 UNCRC because no evaluation of the child’s best interests was undertaken. However, the court merely suggested that a conclusion that the Secretary of State had discriminated against Mathieson ‘would harmonise’ with the breach of the UNCRC [44]. Ms. Leventhal suggested this was not quite what SG had envisaged.

The forthcoming case of DS & DA may shed some light on the issue. Though the Court of Appeal found a breach of Article 3 UNCRC, it also held that there was an insufficient connection to the discrimination alleged. Accordingly, Article 3 UNCRC was not relevant to the allegation of discrimination. The approach taken by the Supreme Court in this area remains to be seen. It may even be possible that the blunt ‘manifestly without reasonable foundation’ test will no longer be applied.

My post on Part 3 of the ALBA Summer Conference Review will be released in the coming days. A number of papers from the conference are available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.