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In Ibrahim, Mr Justice Soole upheld a Judge’s decision that the Defendant Trust had breached the Claimant’s rights under Article 14 of the European Convention of Human Rights (‘ECHR’) when it failed to adopt an alternative procedure for dispensing Codeine outside of daylight hours during Ramadan in 2019. In reality, the Trust’s arguments were completely undermined by the fact that no one had actually thought about the issue at the time.
Background
The Claimant was a Muslim prisoner. The Trust was responsible for providing primary healthcare at the prison. The Claimant was prescribed Codeine. This was provided each day under supervision at a medicine hatch. The hatch operated during fixed hours each morning and afternoon. Generally, there was no system for providing medication under supervision outside those hours. There were, however, separate arrangements in certain other circumstances, such as prisoners arriving at the prison late in the evening.
Unless exempt, Muslims are required to fast during daylight hours throughout the month of Ramadan. This includes not consuming oral medication. In 2019, the hatch opening times were during daylight hours. The arrangements ultimately put in place by the Trust were that the Claimant was temporarily prescribed alternative painkillers during Ramadan which he was permitted to take in his cell, rather than under supervision at the hatch. The Judge found as fact that the temporary use of these alternative painkillers had no adverse impact on the Claimant.
The claims were for an unlawful interference with the right to respect for private life under Article 8 ECHR; an unlawful interference with the right to manifest religious beliefs under Article 9 ECHR; and unlawful discrimination on the grounds of religion in violation of Article 14 ECHR, when read with Articles 8 and 9 ECHR. It is unclear why no discrimination claim was brought under the Equality Act 2010.
Judgment below
His Honour Judge Najib held that Articles 8 and 9 ECHR were engaged but not violated. The Claimant was able to and in fact did fast throughout Ramadan. He was provided with alternative medication which, ultimately, had no adverse effect. There was no challenge to these findings on appeal.
does the treatment complained of fall within the ambit of one of the Convention rights;
is that treatment on the ground of some “status”;
is the situation of the claimant analogous to that of some other person who has been treated differently; and
is the difference justified, in the sense that it is a proportionate means of achieving a legitimate aim?
Question two was not disputed: the ground was religion. On the other issues, the Judge held that: i) the treatment complained of fell within the ambit of Articles 8 and 9 ECHR – there was a “more than merely tenuous connection” [39]; ii) the Claimant’s situation was analogous to other prisoners who had been prescribed medication which could only be taken under supervision [51]; and iii) the failure to put in place alternative arrangements was not in pursuit of the legitimate aim of ensuring security and preventing the proliferation of opiate based and other controlled substances [68], but was instead due to an ‘apparent’ lack of resources and/or a need to prioritise limited resources [69] which was not made out on the facts [76]. As such, the Article 14 ECHR claim succeeded.
Appeal
The Trust’s appeal challenged the Judge’s conclusions on ‘ambit’ and ‘objective justification’ – i.e., the first and fourth of the Stott questions.
As to the ambit issue, the challenge “centred on the Judge’s finding of fact that Mr Ibrahim had not suffered withdrawal or any other adverse symptoms in consequence of not taking Codeine” [80]. Soole J rejected this argument for the following three reasons: firstly, ‘ambit’ and ‘interference’ are separate concepts – treatment can come within the ambit of an ECHR right even if that right is not violated [89]; secondly, the appropriate test is “whether the criticised measure or treatment has a more than merely tenuous connection to the core value(s) of a substantive Article” (emphasis added) [90]; and, thirdly, it is not necessary, for ‘ambit’ purposes, to establish that the relevant treatment had an adverse effect and the Judge was right to focus on the connection between the treatment complained of and the substantive ECHR rights [91]-[92].
The more substantial challenge was to the conclusion on objective justification. The Trust’s arguments all centred on the allocation of resources – that the Judge “failed to identify the allocation of scarce resources as a legitimate aim; and thus failed to take resources into account when considering proportionality” [105]. Moreover, to the extent that the Judge did consider the allocation of resources, he wrongly held that the Trust’s evidence that alternative procedures would have been impractical amounted to no more than a ‘bare assertion’ [97].
In rejecting these arguments, Soole J first sounded a warning against “the dangers of undue textual criticism” in the context of a necessarily lengthy judgment [106]. Giving a fair reading to the judgment as a whole, Soole J held that the Judge had indeed considered the allocation of resources. His rejection of this issue was based not on principle, but on the facts.
The reality was that no one had in fact turned their mind to the possibility of providing the Claimant with his medication by some alternative procedure. The evidence of Trust witnesses on resources and practicality “did not reflect the actual reasoning of anyone at the time”, but simply their beliefs that it would have been difficult if anyone had thought about it. This belief was itself “undermined” by the fact that alternative arrangements were made in other situations, e.g., for prisoners arriving at the prison late. In such circumstances, the Judge was entitled to conclude that the Trust’s evidence amounted to a ‘bare assertion’ and, in fact, it was “difficult to see how the Judge could have reached any other conclusion” [114].
It followed from this central finding that the resources had not formed any part of the Trust’s aim in not making alternative arrangements for the Claimant. As such, it was not necessary to consider proportionality but, had it been, the same finding of fact “would or should equally have compelled the conclusion that the test of proportionality was not met” [125].
Comment
There are some useful illustrations of principle in Soole J’s judgment, particularly on the ‘ambit’ issue. Firstly, that the appropriate test is whether the criticised measure or treatment has a “more than merely tenuous connection” to the core value(s) of a substantive ECHR Article. Secondly, that it is not necessary to establish that the relevant treatment had any adverse effect.
However, this was a case where “the very particular facts and circumstances” [126] carried the day. In some ways, this counted against the Claimant. The Article 8 and 9 ECHR claims were dismissed on the basis that the Claimant had been able to fast and did not experience any real issues as a result of temporarily not taking Codeine or having to take an alternative painkiller. The position would inevitably be very different if a Muslim prisoner was receiving some other medication such that this would have been a problem – i.e., so that they would effectively need to choose between their religion and their health.
The central finding of fact though was the “overall failure by anyone to apply their mind to [the issue]” [118]. The practical lesson for institutions is that it will be very difficult to justify discriminatory treatment as a proportionate means of achieving a legitimate aim, if the legitimate aim has been retrospectively manufactured. Before the question of whether issues of practicality and resources might amount to a legitimate aim in principle, there is the preliminary question of whether such issues were in fact the reason for the discriminatory treatment. If, in reality, the reason was simply that no one thought about it, then evidence of hypothetical impracticality or resource constraints is unlikely to carry much weight. Had the Trust taken even some perfunctory steps to investigate whether alternative arrangements would have been feasible, it seems likely that it would have been given a reasonably wide margin of appreciation. However, having taken none, it was “in an inherently weak position on its margin of appreciation” [121]. A further practical point is that, where a claim relates to a failure to make an exception, then other exceptions – such as for late-arriving prisoners in this case – are likely to carry significant weight and will need to be carefully explained.
The UK Human Rights Blog is grateful to Dr Lewis Graham, the author, and to the Administrative Court Blog (where this post first appeared) for permission to reproduce the below.
The Supreme Court has, once again, rejected a challenge to the compatibility of primary legislation with the ECHR. It has ruled that section 128(1) of the Police, Crime, Courts and Sentencing Act 2022 (amending the Crime (Sentences) Act 1997) is compatible with Articles 5, 7 and 14 of the Convention. The case is R (Quaye) v Secretary of State for Justice[2026] UKSC 34.
The legislation under challenge
Children who commit murder are not given the same life sentences as adults. Instead, they are sentenced to detention at His Majesty’s pleasure (DHMP). As part of the sentencing procedure, the trial judge sets a minimum term which must be served before the offender can apply to the Parole Board for release. Prior to changes made in 2021, the Secretary of State operated a policy whereby at a certain point (halfway through the minimum term) the offender could apply to them for a review of that term, with the possibility of achieving early release. This policy was amended in 2021, and was put on a statutory footing in 2022, via the Police, Crime, Courts and Sentencing Act 2022, section 128(1). The effect of this provision was to remove any opportunity for child offenders sentenced to DHMP to seek a review of the minimum term if the offender was sentenced after they became an adult (i.e. after their 18th birthday).
The result of the legislation, therefore, was to separate child offenders into two categories: firstly, those who committed a crime as a child (under the age of 18), and who were sentenced as a child; secondly, those who committed a crime as a child (under the age of 18) but who were sentenced after their 18th birthday. The former category remain entitled to seek review of the minimum term by the Secretary of State; the latter category, thanks to section 128(1), do not.
The claimant in this case fell into the latter category. He committed murder before his 18th birthday, but was sentenced after he turned 18; section 128(1) therefore applied, and he was not entitled to have his sentence reviewed. He sought to challenge the legislation via judicial review, arguing that section 128(1) breached his rights under Articles 5, 7 and 14 of the ECHR.
The courts below
The High Court (William Davis LJ and May LJ) upheld, in part, the claimant’s challenge: see [2024] EWHC 211 (Admin). It ruled that depriving child offenders of the opportunity to have their sentences reviewed by the Secretary of State gave rise to the possibility of arbitrary detention, contrary to Article 5 of the Convention. The Court noted, in this respect, that prior to the legislative change, some child offenders successfully convinced the Secretary of State to reduce their minimum term. To deny them the opportunity to show that their rehabilitation was complete, and that the sentence is no longer necessary, was to breach their Article 5 rights: see [59] of that case. The High Court also upheld the challenge based on Article 14 of the Convention. It found that the provisions treated two groups differently based on their age, and that the justifications put forward by the defendant – the protection of those under 18 at the time of sentence and the need to promote the interests of victim families – did not justify the arbitrary differentiation between those who were 18 at the time of sentencing and those who were not: see [46]-[58] of the High Court’s judgment. The High Court did not consider it necessary to rule on the legislation’s compatibility with Article 7: see [62] of its judgment.
The Court of Appeal (Sharp P, Lewis LJ and Cobb J) overturned the High Court’s judgment: see [2025] EWCA Civ 226. It found that section 128(1) of the 2022 Act did not breach Articles 5, 7 or Article 14 of the Convention. The claimant’s lack of opportunities for review of his sentence did not render the sentence arbitrary for the purposes of Article 5: see [87] of that judgment. The changes made by the 2022 Act were “concerned with the manner of execution or enforcement of the sentence” rather than changing the sentence itself, so Article 7 was not violated: see [102] of that judgment. Finally, emphasising the significant margin of appreciation applicable in this context, the Court concluded that the decision to treat offenders differently depending on their age at the time of sentence was not disproportionate, and that a fair balance had been struck between the rights of the offender and the interests of the victims’ families: see [118]-[143], and especially [142]-[143], of that judgment.
The Supreme Court’s judgment
The Supreme Court, in a judgment jointly written by Lord Stephens and Lady Simler (with which Lords Sales, Briggs and Hamblen expressed agreement), dismissed the claimant’s appeal. It ruled, like the Court of Appeal below it, that section 128(1) of the 2022 Act did not breach any Convention rights.
Article 5 ECHR
The Supreme Court strongly disagreed with the High Court’s findings relating to Article 5. The High Court fell into error, said the Supreme Court, by taking as its “starting point” the position that the 2022 legislation “did not change the essential nature of a sentence of [DHMP] and that an inherent element of the sentence was the requirement of continuing review”: [59]. Legislation had already governed the field since at least the year 2000 and, in any case, the combined effect of legislative intervention, up to and including section 128(1) of the 2022 Act, had created a complete code governing DHMP, or as the Court put it at [61]: “Since 2022 the scheme for sentencing persons who commit murder as children to detention at His Majesty’s pleasure is an entirely statutory one”.
The core question, then, was “whether by excluding any opportunity to review the minimum term for those aged 18 and over when sentenced to detention at His Majesty’s pleasure, section 27A(11) gives rise to a risk of arbitrary detention under article 5 ECHR”: [62]. The Supreme Court agreed with the Court of Appeal that Article 5 does not require there to be an opportunity for review in this sense, either for sentences in general or for DHMP: [64], [68], [69]. Article 5 simply required there to be a sufficient connection between the conviction and the sentence actually imposed; this test was clearly met on the facts: [67]. Being sentenced to a minimum term, without the opportunity to petition the Secretary of State to reduce that sentence, was not arbitrary: [69].
Article 7 ECHR
The Supreme Court drew upon the familiar distinction, in the context of Article 7, between the retrospective modification of a sentence (or “penalty”) and changes made to the “execution” or “enforcement” of a sentence. The former is prohibited under Article 7; the latter is not: [129]. The Court agreed with the Court of Appeal in finding that the changes made by section 128(1) fell into the latter, rather than the former category: [144]. The changes related “exclusively to a change in the regime for early release on licence”: [143]. The sentence imposed on the claimant was DHMP, and it remained so after the changes made by the 2022 Act took effect: [142]. Article 7 was not breached by the relevant provisions of the 2022 Act: [144].
Article 14 ECHR
The Court also ruled that the provisions did not breach Article 14 of the Convention. Whilst the effect of section 128(1) was to create two categories of offender, which were treated differently based on a protected status (age) – see [114] – the Court found that the difference in treatment pursued a legitimate aim, the effect of which was to constitute a proportionate interference with the claimant’s rights.
The aim behind the legislation was the protection of the victim’s family members. In particular, the Court highlighted that victim families are contacted every time an application to vary the minimum term is made: [98]. Repeated engagement with this process caused “obvious and inevitable” distress for them: [100]. The desire to reduce this distress was “a consideration Parliament was entitled to regard as powerful”: [99]. The aim behind the legislation was therefore a legitimate one: [101]. There was a rational connection between the pursuit of that aim and the legislation in question: [115].
As to proportionality, the Court applied “low intensity of review” [79] for five reasons: first, the discrimination in this case was based on the ground of age, which is not a suspect category calling for heightened scrutiny: [80]; second, the provision under review is primary legislation: [88]; third, the legislation involves considerations of “social policy”: [89]; fourth, there is no European consensus on the issue at hand: [93]; fifth, the legislation in question involves consideration of “competing interests”: [94]. All of this meant that the legislature was in a stronger position than the court when it came to determining the proportionality of the measure, and the court should be slow to intervene in its judgment: [124]-[125]. The legislation did not breach Article 14: [126].
Comment
This judgment provides yet another instance of the Supreme Court rejecting a human rights challenge to legislation. In doing so, the Court applied a relatively orthodox understanding of what protection from arbitrariness requires in the context of Article 5, and was unwilling to recognise any wider principle that the needs of child prisoners to be protected from arbitrary detention mandates that their sentences be kept under review (at least in part because there existed no explicit Strasbourg authority to this effect: [64]).
The Court’s reasoning in relation to Article 14 is also noteworthy. By largely approving the reasoning of Sharp P in the Court of Appeal (see our blog on that judgment here) the Court once again applies a very deferential approach to discrimination issues in human rights law. Whilst the Court at least accepts that the intensity of review to be applied in Article 14 cases “varies according to the circumstances, the subject matter and the background” ([78]), the Court goes on to provide five reasons as to why a low intensity review is justified in the present case. These reasons are familiar and, as I have argued elsewhere, largely fail to convince. For example, almost all legislation – and certainly any legislation which involves differential treatment capable of engaging Article 14 issues – will involve “competing interests”. And the courts have interpreted “social policy” so widely that it has come to encompass almost any kind of legislative issue.
We also see in this judgment some now-expected language emanating from the case of SC: “the assessment of proportionality in this case ultimately depends on whether Parliament made the right judgement… this question cannot be answered by a process of legal reasoning because there are no legal standards by which a court can decide where the balance should be struck”: [124]. I have argued elsewhere that in some cases, this language has been used to justify an abdication of the duty of the courts to perform the required proportionality assessment (“there are no legal standards…”). This interpretation was rejected recently in the case of LMN, where the Court of Appeal confirmed that SC should not be treated as authority for the position that in some cases a proportionality assessment should not be carried out at all. Thankfully, the Supreme Court appears to confirm this in Quaye. After setting out the above passage, the Court confirms: “it follows that the court should be slow to substitute its own view for the political judgement of Parliament in this respect”. The message, therefore, is that courts should apply a low intensity review, rather than no review at all. This is a subtle but important difference, and a welcome clarification that SC is not to be treated as authorising the courts to abandon the proportionality test altogether in cases involving social and political controversy.
Dr Lewis Graham is a Lecturer in Human Rights Law at the University of Manchesterand an editor of the Administrative Court Blog.
A three-judge panel of the Upper Tribunal (Lady Poole, UTJ Citron and UTJ Brewer) in Cruelty Free International v Information Commissioner & Home Office[2026] UKUT 328 (AAC) has held that Article 10 ECHR can, in narrow circumstances, confer a right to receive information from a public authority – but that this particular Appellant still cannot have any.
Background
Cruelty Free International (“CFI”), a campaigning organisation opposed to the testing of cosmetic products on live animals, sought information about Home Office licences authorising scientific testing.
The Home Office declined to disclose all the information sought. It relied on section 44(1)(a) of the Freedom of Information Act 2000 (“FOIA”), which exempts information whose disclosure “is prohibited by or under any enactment”, together with section 24 of the Animals (Scientific Procedures) Act 1986 (“ASPA”). Section 24 ASPA, in broad terms, makes it a criminal offence to disclose information obtained in the course of licensing such experiments where that information was given in confidence.
Secretary of State for the Home Department v Hirtie [2026] EWCA Civ 1000, handed down by the Court of Appeal on 30 July 2026, is a deportation appeal that turns less on the substance of Article 8 than on procedural discipline: whether a party who unequivocally withdraws a ground of appeal before the Upper Tribunal (”UT”) can resurrect it before the Court of Appeal. The Court’s answer, delivered by Stuart-Smith LJ, was a firm no, reinforcing a growing body of authority requiring parties to identify and narrow the issues in dispute at the earliest opportunity.
Background
Mr Hirtie, a Romanian national, was convicted of section 18 wounding with intent (the most serious form of assault) and sentenced to 39 months’ imprisonment, making him a “foreign criminal” under section 32 of the UK Borders Act 2007 and liable to automatic deportation.
The Secretary of State (”SSHD”) rejected his human rights claim in September 2023, finding that neither exception to deportation under section 117C of the Nationality, Immigration and Asylum Act 2002 applied and that there were no “very compelling circumstances” outweighing the public interest in removal.
The decision letter was structured throughout on the assumption that Mr Hirtie’s partner and children would remain in the United Kingdom following his deportation — the “stay” scenario. As Hirtie records at §13: “The structure of the SSHD’s reasoning is clear beyond argument: the possibility of Mr Hirtie’s partner and children going to live in Romania was simply not in issue.”
The route through the tribunals
Mr Hirtie’s skeleton argument before the First-tier Tribunal (“FtT”) expressly identified the “go” scenario as a matter not in dispute, and the SSHD never contradicted this. The FtT allowed the appeal, finding that separation from Mr Hirtie would have a “profound” impact on his partner — going “beyond undue hardship” — given her traumatic history of losing her parents young and being raised in an orphanage, and that this amounted to “very compelling circumstances” under section 117C(6).
On appeal to the UT, the SSHD raised the “go” scenario for the first time as Ground 1, drafted in terms the presiding judge, UTJ O’Callaghan, considered misleading. Hirtie records at §31: “The end result was that the Senior Presenting Officer who was appearing for the SSHD agreed that Ground 1 … should be withdrawn. The withdrawal was unequivocal, albeit in the face of a heavy judicial headwind.” The UT went on to reject the SSHD’s remaining ground and upheld the FtT’s decision.
Reviving a withdrawn ground
Before the Court of Appeal, the SSHD sought to resurrect the “go” scenario, arguing that section 117A(2)(b) of the 2002 Act obliged the tribunal to consider it regardless of whether either party had raised it. Warby LJ, granting permission, deliberately left open whether a party could revive an argument withdrawn below.
Stuart-Smith LJ rejected the attempt at §52: “She had been properly represented before the UT and was not forced to withdraw the ground. No good reason was offered for resurrecting it on appeal.”
Applying Singh v Dass [2019] EWCA Civ 360, decided 7 March 2019, the Court set out the governing test for admitting a new point on appeal. Haddon-Cave LJ held at §16-17 of that case: “An appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court… An appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b), had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial.”
Applying this in Hirtie, the Court held at §53 that admitting the “go” scenario would require fresh evidence about relocation difficulties, that the FtT hearing would have unfolded differently had the issue been live, and that this was not a pure point of law the Court of Appeal could resolve without remittal.
The deeper procedural principle
More fundamentally, the Court held that allowing the SSHD to raise the “go” scenario now would conflict with the case-management philosophy established in Lata (FtT: Principal Controversial Issues) [2023] UKUT 163 (IAC), decided 23 June 2023, and endorsed by the Court of Appeal in AL v Secretary of State for the Home Department [2026] EWCA Civ 370, handed down 31 March 2026.
Lata’s headnote states at point 4: “It is a misconception that it is sufficient for a party to be silent upon, or not make an express consideration as to, an issue for a burden to then be placed upon a judge to consider all potential issues that may favourably arise, even if not expressly relied upon.”
In AL, Elisabeth Laing LJ endorsed this approach, explaining at §78 that upon proper engagement with the appeal skeleton process “a judge sitting in the First-tier Tribunal can properly expect clarity as to the remaining issues between the parties by the date of the substantive hearing.” She further held, applying the narrow Robinson-obvious exception (from R (Robinson) v Secretary of State for the Home Department [1998] QB 929), that a decision cannot be criticised for failing to address an issue neither party raised, unless it was “a point which has strong prospects of success if it is argued. Nothing less will do” (Robinson at 946B-D, cited in AL at §68).
Hirtie held at §54-55 that the SSHD was not exempt from this obligation. Having omitted any reasoned discussion of relocation difficulties from the decision letter, and having failed to challenge Mr Hirtie’s skeleton assertion that the “go” scenario was not in dispute, her silence was, per Stuart-Smith LJ, “consistent with the issue not forming part of her decision-making process and not being in dispute between the parties.”
The “very compelling circumstances” ground
The SSHD’s second ground argued that the FtT’s finding of “very compelling circumstances” was legally flawed, inadequately reasoned, and perverse — partly because the judge did not expressly cite section 117C, and partly for want of expert medical evidence about the partner’s mental health.
The Court disagreed. At §62-63, Stuart-Smith LJ held that although the FtT judge did not set out section 117C verbatim, he plainly understood and applied the correct “very high bar,” relying on Ali v Secretary of State for the Home Department [2016] UKSC 60, decided 16 November 2016 (also cited as Hesham Ali), for the proposition that the public interest in deporting foreign criminals must be accorded very significant weight. The absence of a concluding checklist recapping the relevant factors was immaterial (§64).
On perversity, the FtT judge had found the partner and Mr Hirtie’s brother “honest and credible” witnesses giving “sincere and heartfelt evidence” (§66-67), and the Court held that FtT judges are entitled to make findings about the psychological impact of separation on the basis of accepted witness evidence alone, without corroborating expert medical evidence. The judge’s conclusion, reached “by a narrow margin,” was nonetheless sufficient to withstand appellate scrutiny (§68).
Comment
Hirtie offers several practical lessons for immigration and public law practitioners handling deportation and Article 8 appeals:
Withdrawal is generally final. A party that unequivocally withdraws a ground before the UT, while properly represented and without compulsion, should not expect the Court of Appeal to allow its resurrection absent compelling justification (Hirtie at §52).
Case-management discipline applies to the Secretary of State too.Lata and AL are not confined to appellants; the SSHD is equally bound to identify and narrow issues at the earliest stage (Hirtie at §55).
Silence has consequences. Failing to engage with an opponent’s stated “matters not in dispute” will be treated as acceptance, not oversight (Lata headnote, point 4).
New points face a high bar.Singh v Dass remains the touchstone: a new point requiring fresh evidence, or one that would have changed how the hearing below was conducted, will not be entertained on appeal (Singh at §16-17).
The FtT’s reasoning need not be exhaustive. Provided the tribunal identifies and applies the correct legal test in substance, a judgment will not be struck down merely for lacking a concluding checklist (Hirtie at §64).
Witness credibility can suffice without expert evidence. Findings about the psychological impact of separation may properly rest on accepted witness testimony alone (Hirtie at §67).
The case is a useful, moderately short illustration of how tightly the appellate courts are now enforcing the “principal controversial issues” discipline established in Lata — a discipline that applies as much to the Home Office as to any other litigant.
In Cherrington v University of Derby [2026] EAT 107, the Mr Justice Cavanagh in the Employment Appeal Tribunal (“EAT”) held that an Employment Tribunal (“ET”) was not obliged to consider the Appellant’s Article 10 ECHR right to freedom of expression of its own motion when deciding whether or not his dismissal was fair. His right to freedom of expression did not “shout out” from his case, and nor was the ET obliged to consider the ECHR “as a matter of course” in unfair dismissal complaints, or even particular species of unfair dismissal complaints.
This case note briefly sets out the background to the case and the judgment, and then offers some brief comments by way of conclusion. References in square brackets are to paragraphs of the judgment.
In R (Al Hashimi) v Secretary of State for the Home Department [2026] EWCA Civ 943, the Court of Appeal held that a woman living in the United Arab Emirates could not invoke Articles 8 and 14 of the European Convention on Human Rights (“ECHR”) to challenge sex discrimination in UK nationality legislation. The preliminary obstacle was Article 1: she was not within the United Kingdom’s jurisdiction for Convention purposes (§1).
The decision is a clear restatement of the territorial limits on the ECHR. A decision taken in the UK, even one that substantially affects the interests of a person abroad, does not itself establish jurisdiction over that person (§§28-29, 39).
This decision, arising from the long running Under Cover Policing Inquiry (“UCPI”), was the first time a Court has heard full argument about the extra-territoriality of a notice issued under section 21 Inquiries Act 2005 (the “IA”). Simply put, the Court decided that an Inquiry Chair does have the power to issue a s21 notice to a person residing overseas. This represents a departure from the approach of previous public inquiries.
A Court of Appeal panel of five Judges, including the Lady Chief Justice, Lady Carr LCJ, the Master of the Rolls, Sir Geoffrey Vos, the Vice President of the Court of Appeal (Criminal Division), Edis LJ, and Lewis and Whipple LJJ has overturned the Divisional Court’s decision quashing the proscription of Palestine Action, holding that it erred in its approach both to the challenge brought under the Home Secretary’s relevant policy and to whether a fair balance had been struck with reference to the rights to freedom of expression and freedom of assembly and association under Articles 10 and 11 of the European Convention on Human Rights.
This article takes an extended look at the reasoning in this decision.
This decision has wide-ranging implications for people in care settings across the UK, public bodies, and practitioners, and reframes the approach to deprivation of liberty under Article 5 of the European Convention of Human Rights (“ECHR”).
The decision originated with a reference brought by the Attorney General for Northern Ireland on the meaning of deprivation of liberty for adults (defined as those aged 16 and above) assessed as lacking mental capacity to make decisions about their residence and care arrangements, and living in community settings. The Minister of Health for Northern Ireland (“the Minister”) sought to revise a code of practice in Northern Ireland to provide that even where an adult had been assessed as lacking the relevant mental capacity, they could nevertheless provide valid consent to their care arrangements through the expression of wishes and feelings which go beyond mere acquiescence to their confinement. The Minister sought to issue the revised code of practice under section 288(4) of the MCA 2016 to replace the existing Deprivation of Liberty Safeguards Code of Practice issued under section 288(1) of the MCA 2016.
The issue for the Supreme Court to determine was whether this revised code would be incompatible with Article 5 of the ECHR. If so, the revised code would be unlawful.
On its face, R (on the application of Martin) v the Chancellor of the Exchequer [2026] EWHC 1123 (Admin) was a garden variety public law challenge to a government consultation on two technical forms of tax relief for agricultural property. It features on this blog, however, because of its contribution to the caselaw on the proper constitutional limits on the jurisdiction of the courts vis-à-vis the two other branches of the state, especially Parliament.
Case overview
The three Claimants – two farmers, a father and son, and an unincorporated association set up in 2025 to advance agriculture and farming through good governance practices and tax policy – sought permission to apply for judicial review of a technical consultation conducted by HMRC designed to elicit views on a specific aspect of the government’s proposals for reforming tax relief on agricultural property. Those proposals were eventually incorporated as legislative measures into what is now the Finance Act 2026. At the time of the hearings, on 17-18 March 2026, the legislation was in the form of the Finance (No 2) Bill 2025-26 and was still awaiting Royal Assent.
At its core, the Claimants’ case was that the government had promised to consult on changes to Agricultural Property Relief (“APR”) and Business Property Relief (“BPR”) but had failed adequately to do so (see [5]). The consultation process, they claimed, was therefore unlawful. They sought a declaration to that effect by way of relief.
Both the first and second Defendants – the Chancellor of the Exchequer and HMRC – denied that the Claimants had a legitimate expectation of consultation, and resisted the three other grounds of review advanced (see [32]). They also denied that the third Claimant had standing to bring judicial review proceedings and argued that, in any case, the claim was brought out of time.
More interestingly, for our purposes, they also argued that the issues raised by the claim were non-justiciable both because of their essentially political character and for reasons of parliamentary privilege. The Office of the Speaker of the House of Commons took the lead on making submissions that the claim trespassed on parliamentary privilege and was therefore non-justiciable.
Whipple LJ and Fordham J sat as a divisional court for a rolled-up hearing to consider both permission and substantive judicial review proceedings, handing down judgment on 12 May 2026.
Parliamentary privilege
The law
A decision might benefit from parliamentary privilege, such that it falls outwith the Court’s jurisdiction, because of Article IX of the Bill of Rights 1689, which provides that “the Freedome of Speech and Debates or Proceedings in Parlyament ought not to be impeached or questioned in any Court or Place out of Parlyament.”
The sort of thing which Article IX precludes from being ‘impeached or questioned’ by the courts was examined by the Supreme Court in the case of R v Chaytor [2010] UKSC 51 at [47]:
[T]he principal matter to which article 9 is directed is freedom of speech and debate in the Houses of Parliament and in parliamentary committees. This is where the core or essential business of Parliament takes place. In considering whether actions outside the Houses and committees fall within parliamentary proceedings because of their connection to them, it is necessary to consider the nature of that connection and whether, if such actions do not enjoy privilege, this is likely to impact adversely on the core or essential business of Parliament.
While the idea of ‘speech and debate’ in Parliament is self-explanatory, then, Chaytor sets out two questions which must be answered in order to determine whether something outside the Houses and committees – something which, in Whipple LJ’s words at [83], is “incidental to the core or essential business of Parliament” – counts as a ‘proceeding in Parliament’ and therefore attracts parliamentary privilege:
What is the nature of the connection between the matter in question, on the one hand, and the core and essential parliamentary business within the Houses and committees, on the other?
Given that connection, would a failure to extend privilege to that matter adversely impact on the core and essential business of Parliament?
A matter might nonetheless be protected by parliamentary privilege, and therefore be non-justiciable, even if it is not protected by Article IX: R (SC) v Secretary of State for Work and Pensions at [164]-[165]; Prebble v Television New Zealand Ltd [1995] 1 AC 321.
In her judgment, Whipple LJ put it this way, at [105(i)]:
Parliamentary privilege goes wider than merely protecting proceedings once they are initiated in Parliament. It encompasses the comity between Parliament and the courts, based on mutual respect and the separation of constitutional powers.
The parties’ submissions
The Claimants relied heavily on Chaytor to support the contention that parliamentary privilege should not be accorded overly liberally and to buttress the argument that the target of the judicial review, HMRC’s technical consultation, could not be said to be a proceeding in Parliament. As such, the Court was not precluded by Article IX from adjudicating on its lawfulness.
They argued that the courts had taken a wrong turn in a key line of caselaw – beginning with R (Adiatu) v HM Treasury [2020] EWHC 1554 (Admin) – which decided in unequivocal terms, but without reference to Chaytor, that parliamentary privilege could, and in those cases did, attach to government decisions taken en route to subsequent parliamentary proceedings.
The Speaker conceded that Chaytor was indeed authority for the meaning of ‘proceedings in Parliament’ in the context of Article IX, but argued that the Claimants were mistaken in identifying the scope of that term as the key issue in this case.
This case turned, instead, on two separate questions, corresponding to the periods of time before and after the introduction of the Finance Bill, respectively.
Until 2 December 2025 at the very latest, when the Finance Bill was introduced to Parliament, the question was whether a challenge to the technical consultation, which led to measures included in the Finance Bill, would be non-justiciable for wider (i.e. non-Article IX) reasons of parliamentary privilege.
At the time of the hearings, when the Finance Bill was awaiting Royal Assent, the question was whether the Court, in considering the lawfulness of the technical consultation which led to measures included in the Finance Bill – itself undoubtedly a proceeding in Parliament – could be said to be impeaching or questioning those proceedings.
As to the first question, the Speaker’s submission was that the Claimant’s challenge was non-justiciable because, if successful, it would necessarily delay the laying of the Finance Bill, which would constitute an impermissible interference with Parliament. This was the clear position from the impugned line of case law that the Claimants sought to persuade the court to overturn. Those cases were not decided incorrectly and did not err in failing to cite Chaytor. Whereas Chaytor was authority for the scope of ‘proceedings in Parliament’, that question was not in issue in the impugned line of authorities beginning with Adiatu, which instead dealt with the question, entirely pertinent in this case, of when judicial proceedings could be said to encroach impermissibly on territory that was the constitutional preserve of Parliament.
As to the second question, the Speaker argued that the Court undoubtedly would be impeaching or questioning proceedings in Parliament by accepting jurisdiction in this case. The Speaker relied in particular on the case of R (A and Others) v Secretary of State for the Home Department [2022] EWHC 360 (Admin), in which Fordham J had previously concluded, at [26], that:
[a] declaration from a judicial review court, declaring that the consultation which preceded the Bill and informed its design was unlawful would—even if the court bent over backwards to make very clear that that was the scope and extent of its judgment and its declaration—clearly raise questions about whether some step ought to be taken in light of that conclusion of law by the court.
Even if the Court’s conclusion did not involve the government taking “some step”:
the court’s judgment [would] instead cast a legal ‘shadow’ over the product of the consultation. That shadow would, in my judgment, itself stand – in the circumstances of the present case – as an interference in the parliamentary process. The court would, unmistakably, have concluded that the ‘product’ of the consultation was legally ‘tainted’.
The Speaker argued that the Court’s consideration of HMRC’s technical consultation would similarly cast a legal shadow over the Finance Bill and thereby fall foul of Article IX.
The decision of the divisional court
The merits, the timing, and the political character of the decision under challenge
The Court refused the Claimants permission to apply for judicial review, finding that their substantive claim was unarguable: there never was any legitimate expectation to a consultation of the sort claimed by the Claimants (see [10]). It also held, at [71]-[79], that the claim was brought out of time.
The Court declined to rule on the second Defendant’s contention that the subject matter of the claim was – in Whipple LJ’s words at [47(i)]) – “quintessentially political” and therefore outside its jurisdiction. In R (Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin), the Court was prepared to say that a government promise to hold a referendum on the UK’s accession to the Treaty of Lisbon was precisely the sort of question on which the judiciary was ill-suited to adjudicate. Whipple LJ limited herself to the observation, at [113], that “it is an open question whether a similar analysis [to the one in Wheeler] would apply in the context of a promise of consultation relating to a tax policy change.”
Parliamentary privilege
The Court did, however, explore the question of parliamentary privilege in some detail, devoting almost a quarter of the judgment, from [80]-[110], to the subject.
The Court declined the Claimants’ invitation to overhaul the authorities on the question of parliamentary privilege generally, instead accepting the Speaker’s submissions.
The Court also agreed with the Speaker, at [110], that the Finance Bill was incontrovertibly a proceeding in Parliament at the time of the hearings and that to hear the Claimant’s challenge to the technical consultation would plainly impeach or question that proceeding in Parliament. As such, Article IX of the Bill of Rights 1689 prohibited the Court from considering the claim.
Samuel Talalay is a pupil barrister at 1 Crown Office Row.
The Speaker was represented by David Manknell KC and Rajkiran Arhestey of 1 Crown Office Row, neither of whom were involved in the writing of this post.
The Court of Appeal in Re J, Re M and Re P (Parental Responsibility) [2026] EWCA Civ 344 has provided authoritative guidance on a fundamental question in family law: whether a person who is not a child’s biological father can acquire parental responsibility by being named on the birth certificate. The court firmly answered that question in the negative, clarifying the meaning of “father” under the Children Act 1989 and resolving a line of inconsistent first instance decisions.
In addition to undertaking a comprehensive review of the AF-disclosure case law, Chamberlain J also rejected the notion of some form of an intermediate level of disclosure in closed material proceedings, where the AF-disclosure threshold is not met. The decision offers some much-needed clarity in this area of law.
Article 10 of the European Convention on Human Rights (“ECHR” or “the Convention”) provides qualified protection for speech. Section 12(1A) of the Terrorism Act 2000 (“the 2000 Act”) criminalises certain speech acts relating to proscribed organisations. In the case of R v ABJ; R v BDN[2026] UKSC 8 the Supreme Court was asked to decide whether these two things could be reconciled: is s 12(1A) of the 2000 Act compatible with the Convention?
In its judgment, given on 26 February 2026, the Court answered this question with an unequivocal ‘yes’. The offence introduced by s 12(1A) was prescribed by law and necessary in a democratic society. Crucially, conviction would always represent a proportionate interference with the defendant’s Article 10 right to free speech where the elements of the offence, properly understood, were made out.
In providing such a resounding answer, however, the Court risks setting the bar too high for legislative provisions to be compatible with the Convention.
In Medmoune v France App no 55026/22 (ECHR, 5 February 2026), the Fifth Section of the European Court of Human Rights considered the extent of a Member State’s obligation under Art. 2 ECHR (the right to life) when deciding to withdraw life support, in circumstances where the patient had explicitly asked for it to be continued.[1] The judgment helpfully illustrates the contentious boundary at which informed patient consent must give way to the expert opinion of medical professionals.
In a recent judgment, the High Court in AAA v Human Fertilisation and Embryology Authority [2026] EWHC 317 (Fam) (Morgan J) heard 15 applications from fertility clinic patients for declaratory relief. Those patients (the “Applicants”) had embryos or gametes which were stored at various fertility clinics. They sought declarations that it was lawful for those gametes or embryos to continue to be stored and used in circumstances where their written consent to storage had expired and had not been renewed (within the timeframes provided by legislation for renewal of consent).
Morgan J found that there were relevant administrative failures and oversights on behalf of the fertility clinics, and relief was granted in relation to 14 out of the 15 applications.
The Human Fertilisation and Embryology Authority (“HFEA”), the fertility clinics, and the Secretary of State for Health and Social Care (“SSHSC”) were Interested Parties to the applications.
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