Human Rights in the Supreme Court in 2020 – Lewis Graham

12 February 2020 by Guest Contributor

It is undeniable that the Human Rights Act has had a significant impact on the work of the Supreme Court. Just under a quarter (14 of 61) of cases decided during the Court’s 2018-19 term featured a determination on at least one issue relating to the Act or the European Convention on Human Rights. The UK Supreme Court is soon to begin Hilary Term 2020, and whilst the docket of cases it is set to hear this term seems to largely steer clear of controversial human rights issues we can nonetheless be confident that 2020 will feature its usual share of big human rights cases. What follows is a short preview of some of the more interesting and controversial of those cases, all of which the Court is due to hand down at some point this year. 

1. Article 3 and deportation

In the case of AM (Zimbabwe) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will have an opportunity to re-assess its approach to how Article 3 should apply in deportation cases.

It is well established that, under Article 3 ECHR, the United Kingdom cannot deport an individual to a country where, there is a “real risk” of them being subjected to torture, inhuman or degrading treatment. This has been extended to include situations where the deportee would be placed in circumstances which might occasion a significant deterioration of health, including where they lack access to life-saving treatment. 

The question in this case is whether Article 3 prohibits deportation in AM’s situation. He is an HIV-positive individual, whose condition for many years was being managed by anti-retroviral drugs in the UK. If deported to Zimbabwe, he would be very unlikely to have access to the same treatment. Although some medical options would be available to him, they would likely be significantly less effective for the management of his condition. 

Previous authorities had restricted the application of Article 3 to ‘deathbed’ cases only, where the deportee would likely die quickly following their removal from the country.

More recently, in Paposhvili v Belgium the Grand Chamber of the European Court of Human Rights clarified the proper approach to Article 3 in this context. AM contested that this case extended the law beyond ‘deathbed’ cases, and to include situations like his where deportation would effectively result in a significant deterioration of health.

The Court of Appeal, following previous domestic case law, adopted a restrictive approach, declined to intervene in the deportation. The Court accepted that Paposhvili had relaxed the test to be applied, but only to a “modest extent”, and that AM’s situation was not caught. The Supreme Court – which has recently shown something of a reluctance to depart from domestic precedent in light of European authorities, now has the opportunity to rule on the the correct domestic test to be applied, and how far, if at all, the recent European jurisprudence modifies the narrow domestic position.  

• Article 4 and asylum

In the case of MS (Pakistan) v Secretary of State for the Home Department (on appeal from the Court of Appeal) the Court will rule on the interaction between Article 4 and domestic provisions relating to trafficking and forced labour, and the proper jurisdiction of courts to determine these issues.

In this case, the Secretary of State sought to remove MS, a Pakistani national, from the UK. MS claimed asylum, claiming to be a victim of trafficking. He argued that he was tricked into entering the country following the promise of an education, and was forced to work gruelling, unpaid hours in a restaurant. Under UK law, his claim was referred to by a Competent Authority, which rejected his claim. Upon appeal, the Upper Tribunal disagreed, and determined that MS was, in fact, a victim of trafficking, that the Authority’s determination to the contrary constituted a breach of Article 4, and that he should not be removed from the country.

The main issue for the Court of Appeal concerned the proper place of judicial authorities in this matrix, and, in particular, whether in the course of statutory appeals, a Tribunal has the jurisdiction to determine whether an individual is in fact a victim of trafficking, and whether their expulsion would amount to a breach of Article 4 ECHR. The Court of Appeal, relying on earlier authorities, took a narrow approach to this issue, finding that courts, under such circumstances, are not permitted to remake decisions properly reserved for the Competent Authority. In other words, trafficking appeals and asylum appeals are separate processes.

The Court of Appeal also confirmed, echoing previous case law, that an incorrect determination as to whether an individual should be treated as the victim of trafficking will not automatically breach Article 4 ECHR, and that requiring that individual to leave the country will, similarly, not result in any automatic breach. 

The Supreme Court has the opportunity to clarify the law in relation to both the courts’ effective jurisdiction in statutory appeals in this area, as well as the proper relationship between the State’s failure to properly apply anti-trafficking protections and the substance of Article 4 ECHR. Ultimately, of course, it will rule on the position of MS and whether the rejection of his asylum claim was lawful on the facts. 

• Article 5 and false imprisonment

The cases of (DN) v Secretary of State for the Home Department (on appeal from the Court of Appeal) and R (Jalloh) v Secretary of State for the Home Department (on appeal from the Court of Appeal) both involve questions of when the tort of false imprisonment has been committed by a public authority.

The applicant in the DN case brought a claim for false imprisonment; he had been detained for some months pending detention under the authority of an Order which was later found by the Court of Appeal to be ultra vires. The question of whether detention under such circumstances gives rise to tortious liability is a complex one, especially since the most authoritative Supreme Court authority has determined that detention resulting from a breach of public law may sometimes, but will not always, constitute the common law tort of false imprisonment. 

In the almost identical case of Draga decided some years earlier, the Court of Appeal had ruled that detention under the Order in the present case did not give rise to tortious liability. In the present case, the Court of Appeal dismissed DN’s challenge on technical grounds, refusing to declare that case per incuriam. Permission was granted to the Supreme Court to determine whether the approach in Draga was correct.

The case of Jalloh, handed down on 12 February, also involved the imposition of a restriction of liberty under mistaken authority; in this case, the Secretary of State had imposed a curfew under a statutory provision which did not grant the power to do so. The pertinent question for the courts was whether a curfew, lasting for eight hours overnight, amounted to ‘imprisonment’ for the purposes of the tort. The Supreme Court, agreeing with both the High Court and Court of Appeal, thought that it did. Lady Hale (at [35]) described as “unreal” the suggestion that the curfew in this case did not interfere with Jalloh’s personal freedom. 

In the Court of Appeal, neither cases involved developed arguments based on Article 5. Indeed, it is suggested in both cases that owing to the existence of binding judicial authorities in each instance, it would not be appropriate to employ Article 5 arguments before a Court lower than the Supreme Court. But the Article 5 issue did arise for serious consideration in Jalloh’s case – more specifically, it was argued that the domestic law on false imprisonment with the European law on deprivations of liberty under Article 5. Despite the obvious relationship between the two, this was rejected. Regardless, this shows that Article 5 may yet play a role in the DN appeal, despite its focus on the common law of tort in that case. 

• Article 8 and children’s rights

In the case of ABC v Principal Reporter (on appeal from the Inner House, Court of Session) the Court will determine whether the Children’s Hearings (Scotland) Act 2011 is compatible with the ECHR.

ABC is the older sibling of an individual made subject to a Compulsory Supervision Order. The terms of that order, including how far, if at all, the two siblings would be able to stay in contact with each other, were determined in a hearing, in a procedure guided by the 2011 Act. However, under the terms of that Act, ABC was not invited to participate in the proceedings. ABC claimed that this breached his right to a family life under Article 8.

The Supreme Court will be asked, firstly, whether the provisions of the Act constitute a disproportionate breach of ABC’s rights. Lower courts disagreed as to whether the application of the relevant statutory provisions would lead to a breach of the Convention. ABC is asking the Court to rule that they cannot operate compatibly. A second question, arising only if the legislation is found to be incompatible, concerns whether the legislation can be “read down” so as to accommodate siblings such as ABC in hearings. 

The HRA allows the Court to read and give effect to legislative provisions in a Convention-compatible manner, so long as this does not go “against the grain” of the legislation. Alternatively, a declaration of incompatibility can be issued, which does not affect the validity of legislation. ABC is arguing here for the Court to use its powers under s3. Alternatively, it may be open to the Supreme Court to simply use ‘ordinary’ powers of statutory interpretation; as the Principal Reporter argues here, it might be possible to read the provisions of the Act in a flexible and purposive manner in order to avoid a potential breach of Article 8, without having to rely on any of the specific provisions in the Human Rights Act. After something of a lull, the Court has recently been content to rely on s3 HRA in order to read down provisions in human rights cases; this case offers it an opportunity to further elaborate its contours. 

• Article 14 and working tax credits

In the case of SC and CB v Secretary of State for Work and Pensions (on appeal from the Court of Appeal) the Court will address a challenge to the Welfare Reform and Work Act 2016.

The relevant provisions of that Act set out what is essentially a two-child limit on working tax credits: any families with more children than this can only claim for their first two children. The claimants in this case represent the children of families affected by this policy. The Court of Appeal held, In line with earlier authorities, domestic and European, that neither article 8 nor article 12 could be relied upon, on their own, to claim that such policy interfered with their rights. There was neither a negative interference with their private lives, nor a positive obligation upon the state to provide further support.

On the Article 14 matter, the Court accepted that the policy fell within the general ambit of Article 8 for the requirements for engaging Article 14 were met – namely that there was a difference in treatment between two parties of an analogous status. However, it found that the difference of treatment pursued a legitimate aim, and that, ultimately, despite its effect on women and children of larger families, the policy was not a disproportionate means of pursuing that aim. 

A number of issues are likely to arise for determination at the Supreme Court. The Court may focus on a number of aspects of the Article 14 question, including the issue of whether there was a relevant difference in treatment in practice, whether the situations of the applicants can be said to be analogous to those of smaller families, whether the government policy was backed up by a legitimate aim and, perhaps most importantly, whether the policy had a disproportionate impact, either upon women or certain families. In previous cases, the Court has seen divisions amongst its roster with regards to the level of deference to be afforded to policy-makers, which test to apply in determining whether the state has acted properly in the field of political, social and economic policy, and how to treat decisions of the ECHR in this area. If Lord Kerr is on the case – and he is likely to be – there may also be a consideration of the UN Convention on the Rights of the Child and how it affects the area. The Supreme Court has ruled on Article 14 numerous times in recent years, often delivering lengthy non-unanimous judgments (e.g. Mathieson, SG, Carmichael, A and B, Stott, Steinfeld and DA and DS) this case is likely to be no different. 

Lewis Graham is a doctoral student at the University of Cambridge. His main focus point is on the intersection of judges, courts and politics. His PhD thesis focuses on the judges sitting on the UK Supreme Court and their individual styles of judging.