Public Law Podcast: The Bill of Rights Bill

In the latest episode of our Public Law Podcast series, Andrew Lidbetter, Nusrat Zar, and Jasveer Randhawa discuss the Bill of Rights Bill, which was laid before Parliament on 22 June 2022. In some respects the Bill keeps closely to the proposals laid out in the original consultation document, published earlier this year. However, there are some notable changes and additions. Our view is that the Bill, in its present form, is likely to constitute a significant change to the UK’s human rights regime. We summarise key points in the Bill and present our views in this discussion.

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

The Bill is available to view here.

Andrew Lidbetter
Andrew Lidbetter
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+44 20 7466 2066

Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Constitutional All Change? The Judicial Review and Courts Act, the Brexit Freedoms Bill and a new Bill of Rights

Recent weeks have seen a number of notable developments concerning new or proposed legislation which could have a wide-ranging impact on aspects of public and administrative law. In particular:

  • The Judicial Review and Courts Act 2022 has recently received Royal Assent and introduces, amongst other things, changes to remedies in judicial review.
  • The Queen’s Speech, delivered on 11 May 2022, revealed the Government’s legislative agenda for the Parliamentary year ahead, including the introduction of a Bill of Rights and a Brexit Freedoms Bill which could impact claims based on human rights and retained EU law respectively, going forward.

The Judicial Review and Courts Act 2022 (the “JRCA“)

On 28 April 2022, the JRCA received Royal Assent (though the relevant provisions discussed below have not yet come into force). The JRCA will introduce a number of changes to judicial review, which we detail further below. You can also listen to our views on the draft bill here.

(i) Quashing orders

Section 1 of the JRCA amends the Senior Courts Act 1981 to provide for two new types of quashing order, which can be made with or without conditions:

  • A suspended quashing order (“SQO“) which may provide that quashing does not take effect until a date specified in the order. The impugned decision or act will be valid until that date. The purpose of having a period of suspension would be to retain some certainty in a period where the original decision is valid, whilst allowing the public body time to re-evaluate its decision before the date of suspension.
  • A prospective quashing order (“PQO“) which may remove or limit any retrospective effect of the quashing. The effect of a PQO would be that only future acts or decisions would be affected.

In deciding whether to make an SQO or PQO, the court must take into account factors such as:

  • The nature and circumstances of the relevant defect;
  • Any resulting detriment to good administration;
  • The interests or expectations of persons who would benefit from the quashing;
  • The interests or expectations of persons who have relied on the impugned act; and
  • Any other matter that appears relevant to the court.

Notably, the Government accepted the House of Lords’ proposal to remove the presumption that either an SQO or PQO should be granted where this offered adequate redress, unless there was a good reason not to do so. We welcome this amendment as it gives the courts greater discretion as to the use of these new remedies.

(ii) Exclusion of review of an Upper Tribunal decision to refuse permission to appeal a First-tier Tribunal decision.

Section 2 of the JRCA 2022 amends the Tribunals, Courts and Enforcement Act 2007 by providing that where the Upper Tribunal refuses permission to appeal a decision of the First-tier Tribunal, that decision is described as “final and not liable to be questioned or set aside in any other court” (subject to certain limited exceptions). This is a legislative attempt to ensure that such a decision should not be amenable to judicial review. The purpose of this was to partially reverse the decision in R (Cart) v Upper Tribunal [2011] UKSC 28.

The Queen’s Speech

The Queen’s Speech, along with its accompanying Background Briefing Notes, provided some detail on legislative developments which may have an effect on the nature and/or scope of public law claims going forward.

(i) A new Bill of Rights

The Government announced its intention to introduce a Bill of Rights which is likely to impact the approach to human rights claims in the UK going forward. This announcement is a further step pursuant to the Government’s intention to “restore the balance of power between the legislature and the courts” through the proposed Bill of Rights.

According the Background Briefing Notes, the main elements of the Bill are:

  • Establishing the primacy of UK case law, clarifying there is no requirement to follow the Strasbourg case law and that UK Courts cannot interpret rights in a more expansive manner than the Strasbourg Court.
  • Ensuring that UK courts can no longer alter legislation contrary to its ordinary meaning and constraining the ability of the UK courts to impose ‘positive obligations’ on our public services without proper democratic oversight by restricting the scope for judicial legislation.
  • Guaranteeing spurious cases do not undermine public confidence in human rights so that courts focus on genuine and credible human rights claims. The responsibility to demonstrate a significant disadvantage before a human rights claim can be heard in court will be placed on the claimant.
  • Recognising that responsibilities exist alongside rights by changing the way that damages can be awarded in human rights claims, for example by ensuring that the courts consider the behaviour of the claimant when considering making an award.”

As outlined in our previous blog post here, this development was foreshadowed in the Government’s consultation to overhaul the existing human rights regime in the UK by replacing the Human Rights Act 1998 with a new Bill of Rights (the “HRA Consultation“). HSF’s views on the HRA Consultation were discussed here and in March we published HSF’s response to the consultation.

Proposals envisaged in the HRA Consultation included providing guidance to the courts on how to apply the principle of proportionality and requiring a ‘permission stage’ for human rights claims in order to ‘weed out frivolous or unmeritorious claims’. However, the extent to which the specific proposals in the HRA Consultation will be carried forward in the draft wording of the Bill of Rights remains to be seen. It is therefore unclear what precise impact any new Bill of Rights will have on the scope of and approach to human rights claims, but it is possible that the impact could be significant.

(ii) The Brexit Freedoms Bill

Following the UK’s departure from the EU, the Government has also announced an intention to introduce a Brexit Freedoms Bill. This has the potential to enable further divergence from EU law going forward. The stated purpose of the Bill is to “end the supremacy of European law and seize the benefits of Brexit“. The main elements of the Bill are stated to be:

  • Creating new powers to strengthen the ability to amend, repeal or replace the large amounts of retained EU law by reducing the need to always use primary legislation to do so.
  • Removing the supremacy of retained EU law as it still applies in the UK.
  • Clarifying the status of retained EU law in UK domestic law to reflect the fact that much of it became law without going through full democratic scrutiny in the UK Parliament.”

The focus on the Bill therefore appears to be on EU retained law (i.e. some EU law measures which were effectively transferred into domestic law and ‘retained’ as UK law following the end of the Brexit transition period). This approach was taken in relation to a significant volume of EU legislation and according to the Queen’s Speech briefing paper, “the Government’s review of retained EU law has, to date, identified over 1,400 pieces of EU-derived law that have been transferred into UK law.”

The proposals for the Brexit Freedoms Bill could have an impact on public law claims founded upon EU retained law going forward. For example, currently, a piece of retained EU law in our domestic legislation may be similar (if not the same) in substance to the original EU law measure on which it was based. This means that post-Brexit, any claim based on that piece of retained EU law may be similar in substance to a claim that would have been based on the original EU law measure before Brexit. However, the Brexit Freedoms Bill appears to envisage facilitating amendments / replacements of retained EU law. This could create potential for greater (and possibly more accelerated) divergence of our domestic law from EU law measures.

Conclusion

Each of the developments discussed above has the potential for far-reaching implications. Taken together they give a strong indication of the Government’s wish for Parliament and the Executive to “take back control”, whether that be by moving away from EU law or the influence of the European Court of Human Rights, or encouraging the courts in judicial review cases to consider allowing unlawful acts to remain valid at least for some period of time.  It is also interesting to see a further attempt to use an ouster clause. It remains to be seen how the courts will interpret and apply these new provisions once they are included in legislation and come into force.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066

Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465

Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Hannah Lau
Hannah Lau
Associate
+44 20 7466 2314

Court finds Government’s Covid policy in care homes unlawful

In R (Gardner and Harris) v Secretary of State for Health and Social Care and others [2022] EWHC 967 (Admin) the Divisional Court has found that arrangements by the Department of Health for discharging patients from hospitals to care homes during the pandemic were unlawful.

Key points

  • Article 2 of the European Convention on Human Rights (ECHR) (the right to life) contains both a ‘systems duty’ and an ‘operational duty’. The systems duty requires the state to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty requires the state to take practical steps to safeguard people’s right to life from specific dangers where there is a link to the state’s responsibility.
  • A real and immediate risk to life is a necessary but not sufficient factor for the existence of an Article 2 operational duty. The duty may exist even in the absence of an assumption by the state of responsibility, where it has become aware of dangerous situations involving a specific threat to life. In appropriate circumstances the operational duty may also arise where the state engages in activities which it knows or should know pose a real and immediate risk to the life of a vulnerable individual or group of individuals.
  • The implementation of protective measures in relation to care homes during the pandemic did not trigger state responsibility under Article 2 or Article 8 (the right to respect for private and family life) of the ECHR.
  • In considering whether the decisions made and the policies promulgated by a public body are unlawful by the standards of public law, the Court has to consider the facts as they were presented at the time to the decision makers. The Court must ask whether the decisions taken fell outside the range of reasonable decisions properly open to the Government in the light of the knowledge then available and the circumstances then existing.

Background

The daughters of two care home residents who, along with 20,000 others, died of COVID-19 in a care home in England in April and May 2020 (the Claimants) brought a claim for judicial review against the Secretary of State for Health and Social Care (SoS), NHS England (NHSE) and Public Health England (PHE) (the Defendants) in relation to four policies issued between 13 March and 15 April 2020.

Judicial review was sought on three grounds:

  • Breaches of the Claimants’ fathers’ rights under Article 2 and Article 8 of the ECHR (the ECHR claims).
  • Unlawfulness, on the basis of failure to take into account relevant considerations, failure to conduct a sufficient enquiry, taking into account irrelevant considerations, irrationality and breach of the duty of transparency (the public law claims).
  • Breaches of the public sector equality duty under section 149 of the Equality Act 2010, which imposes an obligation to have regard to the need to advance equality of opportunities and to eliminate discrimination (the PSED claim).

The four policies under challenge included the March Discharge Policy, which comprised two policies dated 17 and 19 March 2020 relating to arrangements for discharging patients from hospitals to care homes without testing and isolation, and the April Admissions Guidance dated 2 April 2020, which advised that symptomatic or asymptomatic COVID-19 patients could be safely cared for in a care home.

Judgment

Unanimous judgment was given by two judges (Bean LJ and Garnham J) sitting as a Divisional Court.

ECHR claims

The Claimants submitted that the Defendants had a positive obligation to take appropriate steps to safeguard the lives of those within England and do all that could have been required to prevent life from being avoidably put at risk. They alleged that both the ‘systems duty’ and ‘operational duty’ applied and were breached by the Defendants during the first wave of the pandemic. The systems duty required the Defendants to put in place a legislative and administrative framework designed to protect against risks to life, whilst the operational duty required the state to take practical steps to safeguard people’s right to life from specific dangers in circumstances where there was a link to the state’s responsibility.

The Court rejected the ECHR claims in their entirety. In relation to the systems duty, the Court dispensed with the Claimants’ arguments that the Defendants breached their duty to put in place a legislative and administrative framework; on the contrary, the complaint concerned the contents of the policies implemented.

In relation to the operational duty, the Court concluded that any acceptance of the argument that protective measures relating to private sector care homes involved a sufficient connection or link with the state would significantly widen the scope of the Article 2 operational duty owed to potentially very large numbers of elderly people. Strasbourg authority did not support the extension of the duty to “as broad and undefined a sector of the population as residents of care homes for the elderly” and the Court doubted that the European Court of Human Rights would be willing to declare such a duty.

Public law claims

The Court held that the decision to issue the March Discharge Policy and the April Admissions Guidance was irrational in that the Policy and the Guidance failed to advise that where an asymptomatic patient (other than one who had tested negative) was admitted to a care home, he or she should so far as practicable be kept apart from other residents for 14 days.

The public law claims against NHSE were dismissed on the basis that it was not responsible for making such arrangements.

Public sector equality duty

The PSED claim was dismissed on the basis that in the “highly pressured” circumstances of March and April 2020, the Government could not be reasonably criticised for failing to carry out an equalities impact assessment of its policies relating to care homes, nor did the PSED add anything to the Defendants’ duties under common law.

Comment

The Court’s judgment is a noteworthy development in the growing body of litigation regarding Government decision making during the pandemic. In considering the claim the Divisional Court recognised that the Defendants had to make judgments in circumstances of enormous pressure, in respect of a novel disease against a background of uncertain and rapidly developing scientific knowledge. The case however turned on a clear-cut failure to take into account highly relevant considerations regarding the risks of non-symptomatic transmission of COVID-19, which by mid-March 2020 had been acknowledged by the Government in Parliament and in the media.

A further point of interest is the Court’s approach to deficiencies in the witness evidence presented by the SoS, with the Court declining to resolve disputes of fact in favour of the Defendants. It held that “where there is no record at all of an important issue being raised with the Secretary of State nor of his response we cannot simply assume that everything relevant was taken into consideration“. Even in the exceptional circumstances of a pandemic, maintaining a thorough paper trail of decision-making remains critical for the purposes of defending a judicial review.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

High Court clarifies scope of challenges to consultations on primary legislation

The High Court has clarified that complaints of unfair consultation relating to the introduction of primary legislation cannot found a ground of challenge by way of judicial review (R (on the application of A) v Secretary of State for the Home Department [2022] EWHC 360).

Key points

  • The principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts” and the principle of separation of powers.
  • The Court would offend the constitutional principles of Parliamentary privilege and separation of powers if it concerned itself with complaints regarding a consultation and engagement process relating to the introduction of primary legislation.
  • The statutory duty under the Equalities Act 2010 not to indirectly discriminate and the public sector equality duty under the 2010 Act are not applicable to the “function” of making a substantive decision as to the design of a Bill of primary legislation to be placed before Parliament.

Background

In March 2021 the Secretary of State for the Home Department (the “Defendant“) presented to Parliament a policy statement entitled “New Plan for Immigration”. The Defendant stated in the policy statement that a comprehensive consultation and engagement process would commence on 24 March 2021. The subsequent consultation and engagement process lasted for six weeks. On 6 July 2021, the Nationality and Borders Bill was introduced in the House of Commons.

On 28 May 2021, the Claimants (a group of asylum seekers from El Salvador, Sudan, Yemen and Eritrea) filed a claim for judicial review which contained three grounds of challenge:

Ground One – The consultation on the New Plan for Immigration was indirectly discriminatory pursuant to sections 19 and 29(6) of the Equality Act 2010 (the “EA“) as the consultation documents were published only in English and Welsh.

Ground Two – The consultation was in breach of the public sector equality duty pursuant to section 149 of the EA (“PSED”) as certain engagement sessions were invitation-only and did not allow wider participation.

Ground Three – The consultation was in breach of common law requirements for lawful consultation, in particular the Gunning principles derived from R v Brent London Borough Council, ex p Gunning (1985) 84 LGR 168.

Permission for judicial review was refused on the papers, and the Claimants renewed their application for permission at an oral hearing.

Judgment

The Court (Fordham J) dismissed the renewed application for permission on all grounds.

The Court considered first whether the claim was justiciable. This involved consideration of  whether the Court’s supervisory jurisdiction on judicial review extends to the Court ‘policing’ the Gunning principles in the context of a consultation which was concerned with “delivering effective legislative change” and whose culminating substantive decision entailed the design of a Bill of primary legislation to be introduced into Parliament. The Court concluded that the answer to that question was clearly and beyond reasonable argument “no”.

The Court noted that Article 9 of the 1689 Bill of Rights set the scene for consideration of this topic. Article 9 provides: “That the freedom of speech, and debates or proceedings in Parliament, ought not to be impeached or questioned in any court or place out of Parliament”. The Court noted that the principles on which the law of Parliamentary privilege is based involve “the requirement of mutual respect by the Courts for the proceedings and decisions of the legislature and by the legislature (and the executive) for the proceedings and decisions of the Courts”, and that one of the principles on which the law of Parliamentary privilege is based is “the principle of the separation of powers, which in our Constitution …requires the executive and the legislature to abstain from interference with the judicial function, and conversely requires the judiciary not to interfere with or to criticise the proceedings of the legislature”.

The Court first addressed the third ground of challenge. It noted that it is well established that when a public authority decides to conduct a consultation the Gunning standards are applicable. It is also well established that in principle when a public authority reaches a substantive decision arising out of a decision-making process in which the Gunning standards have been breached, the substantive decision is vitiated. The Court concluded that a declaration that an applicable legal standard was breached in a consultation and engagement process culminating in the operative decisions as to the design of a Bill to introduce into Parliament would constitute a breach of Parliamentary privilege and the constitutional separation of powers.

On this basis it held that the Gunning standards are not applicable to a decision about the design of the consultation and engagement process which led to the introduction of the Nationality and Borders Bill.

In respect of the first two grounds, the Court held that both the EA duties invoked by the Claimants were inapplicable to the function of designing the consultation and engagement process which led to the introduction of the Bill. This was on the basis that it would be a breach of Parliamentary privilege and the constitutional separation of powers for a Court to hold that the procedure that led to legislation being enacted was unlawful. This resulted in the actions by a Government body leading up to the making of primary legislation (including decisions as to the design of the consultation and engagement process) not being within the “functions” of a public authority to which the PSED applies.

The Court went on to conclude that even if it had found the matters to be justiciable, it would have refused permission for judicial review on lack of arguability of all three grounds.

Comment

The High Court’s decision reaffirms the importance of the concepts of Parliamentary privilege and the constitutional separation of powers when considering the scope of the Court’s supervisory jurisdiction.

The Court noted that the approach to the question of justiciability in case law recognises that responsibility for considering standards and accountability in relation to those standards is a responsibility of Parliament. The Court does not have a role of identifying legal standards and enforcing them (albeit they would be identified and enforced in the context of decision-making culminating in delegated legislation) so as to identify procedural impropriety in the lead up to primary legislation, for the purpose of informing Parliament or members of Parliament or informing public debate. That would be an act of interference which the Court’s “chosen, self-denying ordinance” based on the constitutional principles of the separation of powers and the rule of law inhibits it from undertaking.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Lara Nassif
Lara Nassif
Senior Associate
+44 20 7466 7506

Public Law Podcast: Government Consultation Paper on the Human Rights Act 1998

In the latest episode of our Public Law Podcast, Andrew Lidbetter, Nusrat Zar, and Jasveer Randhawa discuss the Government’s consultation paper on the replacement of the Human Rights Act 1998. The Government suggests a number of changes which are intended to, it states, ‘restore common sense to the application of human rights in the UK’. The consultation paper proposes to introduce a new Bill of Rights in place of the 1998 Act. In this podcast, we detail our thoughts on some of the key proposed changes.

This podcast can be listened to on SoundCloudApple and Spotify and don’t forget to subscribe to the channel to receive updates on future episodes.

The consultation paper is available to view here.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

Government releases consultation paper on the replacement of the Human Rights Act

The Ministry of Justice has today released a consultation paper outlining proposals for reform of the Human Rights Act 1998.

Reform has been anticipated for many years, having been brought to the forefront of public attention upon the release of the Government’s 2019 manifesto. The consultation paper proposes an ‘overhaul‘ of the Act in order to ‘restore common sense to the application of human rights in the UK‘. It states that it will remain faithful to the basic principles of human rights in the European Convention on Human Rights and proposes a new, distinctly British, Bill of Rights, designed to ‘make sure a proper balance is struck between individuals’ rights, personal responsibility, and the wider public interest‘.

The consultation paper proposes the following in relation to the new Bill of Rights:

  • The United Kingdom is to remain a party to the European Convention on Human Rights, and the Bill of Rights will retain the rights listed in Schedule 1 of the 1998 Act.
  • Section 2 of the 1998 Act, which requires English courts to ‘take into account‘ Strasbourg jurisprudence, is to be amended so as to provide that domestic Courts should firstly consider whether a rights issue can be solved by reference to domestic legislation or the common law. The aim is to ensure a wider range of jurisprudence is considered by English courts and to foster a more ‘autonomous‘ approach to the development of human rights.
  • Section 3 of the 1998 Act, which requires English Courts to interpret legislation as compatible with Convention rights ‘so far as it is possible‘, is either to be repealed or replaced by language that is less strict: legislation should be interpreted as compatible with Convention rights where this could be done ‘on an ordinary reading of the words‘ of the statute and where it would be ‘consistent with the overall purpose of the legislation‘.
  • The right to a jury trial is to be added.
  • The importance of the right to freedom of expression is to be emphasised, and the Courts should only grant relief impinging upon it when there are exceptional reasons.
  • A permission stage for human rights claims is to be introduced to weed out frivolous or unmeritorious claims. The permission stage could require applicants to show that they have suffered a ‘significant disadvantage‘ or, failing that, that their claim should be heard on the basis of ‘overriding public importance‘.
  • Public authorities are not to be held liable when acting in accordance with the will of Parliament. Moreover, the extent of public authorities’ ‘positive‘ obligations in human rights law is to be limited.
  • Guidance is to be provided to the Courts on the application of the principle of proportionality for qualified Convention rights. Whilst the precise wording has not been determined, guidance will involve requiring Courts to take into account the expressed view of Parliament.
  • Deportations in the public interest are not to be inhibited by human rights claims.
  • The role of personal responsibility is to be recognised in the human rights scheme. The Bill of Rights could, for example, use a remedy system to reduce rewards on account of the applicant’s conduct.
  • A process for assessing European Court of Human Rights’ rulings is to be set up, with Parliament at the centre.

The consultation closes on 8 March 2022. The Ministry of Justice states that after it has received and considered the responses, it will in due course put forward legislative proposals to Parliament to revise and replace the Human Rights Act with a Bill of Rights.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998

High Court finds failure to comply with human rights duties in context of monitoring of pollutant levels

The High Court has found that positive operational duties under the Human Rights Act 1998 (“HRA“) were triggered by the failure of the Environment Agency (“EA”) to address recommendations in a health risk assessment by Public Health England (“PHE“) regarding the operation of a landfill site which operates under an EA permit (R (on the application of Richards) v Environment Agency [2021] EWHC 2501 (Admin)).

Key points

  • Section 6 of the HRA provides that it is “unlawful for a public authority to act in a way which is incompatible with a Convention right”, and that an act includes a failure to act. A positive operational duty can arise where there is a positive duty on state authorities to take reasonable and appropriate operational measures to protect individuals’ rights.
  • In determining whether a positive operational duty under Article 2 (the right to life) of the European Convention on Human Rights (“ECHR“) is triggered, there must be a known, real and imminent risk to life. This can include a reduction in life expectancy. Once triggered, the public authority must take reasonable steps to protect the right to life.
  • In determining whether a positive operational duty under Article 8 (the right to private life) of the ECHR is triggered, there must be a direct impact on the individual’s home, family or private life, striking a fair balance between the individual and community as a whole, and minimum pollutant levels must be met. Once triggered, the authority must take reasonable and appropriate measures to secure rights to private and family life.
  • The public authority will be afforded a latitude of judgment in respect of compliance with positive operational duties, and the Court will not impose its own views as to best policy.

Background

The claimant, Mathew Richards, is a 5 year old boy who lives in close proximity to Walleys Quarry Landfill Site (“WQLS“). WQLS operates under a permit issued by the EA. Mathew was born prematurely and developed lung complications and respiratory problems. Hydrogen sulphide emissions from WQLS prevented his recovery, which would inevitably lead to chronic obstructive pulmonary disease and would consequently significantly reduce his life expectancy. The local community also expressed significant concerns about the impact of the hydrogen sulphide emissions emanating from WQLS on their own health and wellbeing.

PHE, the executive agency of the Department of Health and Social Care, conducted a health risk assessment of the air quality at WQLS. It found that the level of hydrogen sulphide in the air exceeded guideline levels and was not acceptable. PHE recommended that: (1) all measures be taken to reduce off-site odours from the landfill site as early as possible so that WHO guidelines are met, and (2) all measures be taken to reduce the concentrations of hydrogen sulphide in the local area for 2022 to levels below those health-based guidance values used to assess long-term exposure.

The claimant sought judicial review of the EA, alleging that it had failed to discharge its statutory duty under the HRA to protect his rights under the ECHR which are incorporated into English law by way of the HRA, in particular his right to life under Article 2 of the ECHR and his right to respect for private and family life under Article 8. The two critical questions considered by the Court were: (1) whether positive operational duties were triggered under Articles 2 and 8, meaning that the EA would have an obligation to take reasonable and appropriate measures to secure Mathew’s rights to respect for private and family life and to life; and (2) what those positive operational obligations would entail in the circumstances.

Judgment

The High Court held that Article 2 imposes a positive obligation on state authorities to take appropriate steps to safeguard the lives of those in its jurisdiction. This duty requires a legislative and administrative framework to be put in place to protect the right to life.

The Court cited the Supreme Court’s judgment in Rabone v Pennine Care NHS Trust [2012] UKSC 2 (“Rabone“), where the Court held that the trigger for the Article 2 positive operational duty is that “the authorities knew or ought to have known at the time of the existence of a real and imminent risk to the life of an identified individual or individuals“. The real and imminent risk to life must be present and continuing and significant and substantial. Once triggered, the authority must have “failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk“.

It was held that in this case there was a real and imminent risk to the claimant’s life that was significant, substantial, present and continuing by virtue of his development of a condition which reduced his life expectancy, caused by the activity at WQLS, thereby accelerating death. The Court held that severe environmental pollution affecting an individual’s well-being and adversely affecting private and family life can trigger a positive obligation on the state authorities pursuant to Article 8 to take reasonable and appropriate measures to secure rights to private and family life. There must be a direct impact on the individual’s home, family or private life, striking a fair balance between the individual and community as a whole, and minimum pollutant levels must be met. Overall, it was held that the positive operational duty under Article 8 was triggered in this case.

The High Court held that on the facts there was no evidence that the EA had complied with its legal duty. Compliance would require a clear objective and a plan to achieve that objective, and there was no evidence to this effect.

The High Court accordingly made a declaration that the EA must implement the recommendations of PHE in order to comply with its legal obligations. However, the Court declined to find that there was a current breach by the EA of its duties.

Comment

The High Court’s judgment is the first domestic judgment dealing with both Article 2 and Article 8 rights in an environmental context. The Court noted that the majority of similar cases before the European Court of Human Rights are “looking back” cases where the harm has already been done. The Court contrasted the current case which was “in the moment”, with the pollution being a current problem. The judgment makes clear that in such cases the Courts must “step up” to address and enforce the positive operational duties.

The judgment clarifies that a shortening of life expectancy will be deemed a real and immediate risk to life under Article 2 of the ECHR. This is because the relevant risk to life is to be identified with a risk of life ending earlier than it would have but for the relevant failing on the part of the state authority, irrespective of whether death happens immediately or after a time lag (of perhaps several decades if the victim is a child).

Moreover, the judgment makes clear that the lived experience of the victim’s wider local community is relevant in Article 2 and/or Article 8 pollution cases, despite their not being party to the proceedings. It is relevant to establishing as regards Article 8 whether the adverse effects of pollution have reached the “minimum level” necessary to engage the operational duty, and whether a “fair balance” has been struck between the victim’s interest and the public interest. It is also relevant as regards Article 2 to establish whether reasonable steps have been taken by the authority to avoid the risk to life.

Finally, it is notable that the Court declined to find a current breach by the EA. The Court’s reasoning was that there is an “obvious and pressing public interest imperative” that the EA must comply with its legal duties as a matter of urgency“, and that what matters is to provide clarity with regards to what the EA’s legal obligations are and what the EA must legally do.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Lara Nassif
Lara Nassif
Senior Associate and Solicitor Advocate
+44 20 7466 7506

Court of Appeal and High Court consider property rights under the Human Rights Act

Two recent judgments have demonstrated the utility of the right to property under Article 1 of the First Protocol of the European Convention on Human Rights (“A1P1”) for companies and the scope for challenges where public decisions have interfered with private contracts. A1P1 is incorporated into English law by way of the Human Rights Act 1998, and provides for a right to peaceful enjoyment of possessions.

In R (Aviva Insurance Limited) v Secretary of State for Work and Pensions [2020] EWHC 3118 (Admin), the High Court found that the Secretary of State’s scheme for the recovery of state benefits from insurers in asbestos-related claims was incompatible with the insurers’ A1P1 rights.

In Solaria Energy UK Limited v Department for Business, Energy and Industrial Strategy [2020] EWCA Civ 1625, the Court of Appeal held that Solaria’s sub-contract with another company was a possession for the purposes of A1P1, despite contractual limits on its assignability.

Key Points

  • When considering whether a contract is a possession for the purposes of A1P1, the starting point is that a concluded and part-performed commercial contract is presumed to be a possession.
  • While assignability is a factor in considering whether a contractual right is a possession, it is not a conclusive factor.
  • Although legislation may not have been unlawful when it was first introduced, incompatibilities with ECHR rights may arise due to subsequent legal developments.

R (Aviva Insurance Limited) v Secretary of State for Work and Pensions

Background

Aviva holds a large book of long-tail employers’ liability insurance (for which Swiss Re provides reinsurance), whereby claims regarding asbestos-related diseases arising in the course of employment are covered by insurance in place at the time exposure occurred, even if the disease does not manifest itself until much later on. Such insurance is compulsory in the UK.

In personal injury litigation against a negligent employer, the claimant’s damages are reduced by the amount of specified state benefits received. The Social Security (Recovery of Benefits) Act 1997 (the “1997 Act”) requires the employer (and by extension its insurer) to then reimburse the Compensation Recovery Unit (“CRU”, part of the Department for Work and Pensions) in respect of those benefits. The 1997 Act retroactively applies to diseases that arise due to exposure prior to 1997, and the insurance policies that were in place at the time of exposure.

There have been a number of developments in the law of tort since 1997 that have greatly increased the number of asbestos-related claims and the amounts recouped by the CRU from insurers. Aviva and Swiss Re (together, the “Claimants”) sought judicial review of the Secretary of State for Work and Pensions (the “SSWP”) on the grounds that, following these legal developments, the CRU’s interpretation and application of the 1997 Act was incompatible with their A1P1 rights. The Claimants alleged that the Defendant breached their A1P1 rights in five respects:

  1. The requirement to repay 100% of the recoverable benefit to the CRU even where the employee’s contributory negligence has reduced the amount of damages payable to them;
  2. The requirement to repay 100% of the recoverable benefit to the CRU even where the employee sustains a divisible disease like asbestosis and the employer is only liable in tort for a small portion of that disease;
  3. The requirement to repay 100% of the recoverable benefit to the CRU even where there would be other defendants that would be liable but they or their insurers can not be traced;
  4. The requirement to repay recoverable benefits even where those benefits do not correspond to any recognised head of loss in tort, for example the repayment of Universal Credit which can include a housing element, whereas housing benefit was previously unrecoverable;
  5. The requirement to repay 100% of the recoverable benefit to the CRU in relation to settled claims, which generally involve an element of compromise and may be settled without admission of liability.

Judgment

Henshaw J considered the context in which the 1997 Act was introduced and the preceding systems for reimbursement of state benefits in tortious claims. Henshaw J found that “what Parliament did not have in contemplation was that, as a result of future developments in the law as between compensators and victims, compensators or their insurers would become liable for the cost of state benefits having no real relationship to the degree of injury or risk that those compensators had inflicted on the injured person”. Henshaw J considered that this amounted to an ongoing interference with the Claimants’ A1P1 rights each time the Claimants incurred a liability under the 1997 Act in respect of a specific claim arising out of a pre-1997 insurance policy.

Under A1P1, any interference with property must be justified. In particular the interference must serve a legitimate interest and be proportionate. Henshaw J considered the proportionality of the five features of the scheme that the Claimants argued were incompatible with their A1P1 rights, using a four stage test:

  1. On the question of whether the scheme had a legitimate aim, it was common ground that the objective of recovering costs attributable to tortious wrongdoing was legitimate.
  2. On whether the interferences were rationally connected to the aim of recovering costs attributable to tortious wrongdoing, Henshaw J considered that the decision to leave contributory negligence out of the 1997 Act was driven by practical concerns and fairness to injured persons. However, the second and third features were not rationally connected to the aim of recovering costs attributable to tortious wrongdoing, as the recovery of 100% of benefits despite only partial responsibility went over and above that aim. On the other hand, Henshaw J found that the fourth and fifth features were rationally connected to the legitimate aim.
  3. On whether the features went no further than necessary to achieve the legitimate aim, Henshaw J looked at similar schemes that had been proposed in Scotland and Wales and found that the first three interferences did go further than was necessary, as schemes could have been constructed so as to reduce the amount of benefits to be repaid in line with the tortious liability in those instances. Henshaw J considered that the fourth and fifth interferences went no further than was necessary to achieve the aim.
  4. On whether the features strike a fair balance between the interests of the community and the rights of the Claimants, Henshaw J concluded that while a fair balance may have been struck at the time the 1997 Act was passed, it did not necessarily follow that there was still a fair balance following subsequent legal developments. He concluded that the first three features did not strike a fair balance, in particular when bearing in mind their retrospective effect.

Henshaw J therefore concluded that the first three features of the operation of the 1997 Act raised in the claim were incompatible with the Claimants’ A1P1 rights. Permission to appeal to the Court of Appeal has been granted to both parties.

Solaria Energy UK Limited v Department for Business, Energy and Industrial Strategy

Background

In October 2011, the Department of Energy and Climate Change (which in 2016 was disbanded and its functions merged to form the Department for Business, Energy and Industrial Strategy, the defendant in this case) published a consultation which included a proposal to reduce certain subsidies in respect of electricity generated by solar panel installations and to bring forward the date for this reduction (the “Proposal”). The Proposal had a substantial impact on the solar energy industry.

In order to establish a successful A1P1 claim, claimants must first prove an unlawful interference by a public body. A significant number of A1P1 claims were brought by manufacturers and suppliers of solar panels which were considered by the Court of Appeal in Breyer Group Plc v Department of Energy and Climate Change [2015] EWCA Civ 408 (“Breyer”). The Court held that in principle the unlawful proposal could amount to a wrongful interference with or deprivation of the claimants’ possessions, namely existing contracts, contrary to A1P1.

Although Solaria had entered into a sub-contract for the supply of solar panels to another company in July 2011, it had not been a claimant in Breyer. Instead, Solaria continued to supply solar panels well into 2012. Eventually, Solaria issued proceedings against BEIS in December 2018, alleging interference with its July 2011 sub-contract contrary to its A1P1 rights. Solaria claimed that as a result of the Proposal, it was forced to renegotiate its sub-contract at a lower rate. However, Solaria’s claim was struck out by the Technology and Construction Court for two reasons. First, the Court found that Solaria’s sub-contract was not a possession for the purposes of A1P1. Although Solaria’s contractual rights under the sub-contract had a value to Solaria, that value was not a readily realisable or marketable value because the sub-contract could not be assigned. Secondly, the judge found Solaria’s claim to be out of time under the one year limitation period for HRA damages claims. Solaria appealed to the Court of Appeal on both grounds.

Judgment

Coulson LJ, who gave the leading judgment, noted that in Breyer a distinction was drawn between existing enforceable contracts and draft contracts which had yet to be concluded. While the former were found to be part of the goodwill of a business and therefore possessions under A1P1, the latter amounted to a loss of future income and were not actionable. Coulson LJ considered that “whilst not all contracts are possessions within the meaning of A1P1, the starting point must be that a signed and part-performed commercial contract is, prima facie, a possession”.

Coulson LJ considered that the judge at first instance was wrong to conclude that Solaria’s sub-contract was not a possession simply because it was not assignable. The sub-contract was in fact assignable, provided that the other party consented to that assignment. While that might affect the value of the sub-contract, it did not prevent the sub-contract from being a possession. Furthermore, even if the contract had contained an absolute bar on assignment, the Court considered that the sub-contract would still be a possession. While assignability was a factor in considering whether a contractual right was a possession, it was not a conclusive factor.

The Court of Appeal unanimously concluded that Solaria’s sub-contract was a possession for the purposes of A1P1. However, the Court upheld the first instance ruling that the claim was out of time and Solaria’s appeal was dismissed.

Conclusion

Property rights which are protected under the Human Rights Act can take many forms. They may involve requirements that property be used in particular ways, as was the case with the requirement on insurers to reimburse state benefits in the event of certain successful claims, or proposed changes to subsidy regimes that affect contracts between two private parties.

The judgment in Aviva demonstrates that the law provides protection for those who find their rights interfered with on the basis that they are disproportionate or do not serve a legitimate purpose. The judgment also indicates that although legislation may not have been unlawful when it was first introduced, incompatibilities with ECHR rights may arise due to subsequent legal developments.

The judgment in Solaria serves as a reminder that the concept of possessions under A1P1 is wider than the concept of property in English law, and that a concluded and part-performed commercial contract can be a possession for the purposes of A1P1.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621
Benjamin Coney Critchley
Benjamin Coney Critchley
Associate
+44 20 7466 7472

Independent Human Rights Act Review launches a public call for evidence

On 13 January 2021, the Independent Human Rights Act Review (the “IHRAR“) published a call for evidence. The IHRAR is a panel of experts appointed by the Government to consider whether there is a need to reform the Human Rights Act (“HRA“) “to ensure it continues to meet the needs of the society it serves”.

The call for evidence is structured to cover two broad themes:

  • The relationship between domestic courts and the European Court of Human Rights (the “ECtHR“) in the context of section 2 of the HRA. Pursuant to section 2, domestic courts and tribunals are required to “take into account” the case law of the ECtHR, albeit they are not bound by that case law under the usual rules of precedent. The Review will consider how section 2 has been operating and whether there is any need for reform.
  • The impact of the HRA on the relationship between the judiciary, the executive and the legislature. In particular, the IHRAR will consider the way the HRA balances those roles, including whether the current approach risks “over-judicialising” public administration and draws domestic courts unduly into questions of policy.

The specific questions on which the IHRAR has invited responses are listed in its terms of reference. See this blog post for further details of the terms of reference and the formation of the IHRAR. The call for evidence closes on 3 March 2021.

Sir Peter Gross, the Chair of the IHRAR, stated upon publication of the call for evidence that the ’review proceeds on the basis that the UK will remain a signatory to’ the European Convention on Human Rights.

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621

Government launches independent review of the Human Rights Act 1998

The Government has announced that a panel of experts led by former Court of Appeal Judge, Sir Peter Gross, will conduct an Independent Human Rights Act Review (the “IHRAR”). The Human Rights Act 1998 (the “HRA”) incorporates the fundamental rights and freedoms set out in the European Convention on Human Rights (the “Convention”) into domestic British law. The purpose of the review is to consider whether there is a need to reform the HRA. The Panel will take “a fresh look at the [HRA] – how it operates and protects human rights – to ensure it continues to meet the needs of the society it serves”.

Context

The 2019 Conservative Manifesto was not the first Conservative manifesto to make reference to the HRA. The 2017 Conservative Manifesto committed to “consider” the human rights legal framework after Britain had left the European Union, whereas the 2015 Conservative Manifesto promised to “scrap” the HRA, introduce a Bill of Rights and “curtail” the role of the European Court of Human Rights (the “ECtHR”). Therefore, it was foreseeable that a prospective Conservative government in 2019 would also make a commitment in respect of the human rights framework. The 2019 Conservative Manifesto promised to “update” the HRA.

Terms of Reference

The Terms of Reference of the IHRAR refer to the United Kingdom’s contribution to human rights law, which it states is founded in the common law tradition and continued with the drafting of the Convention. Citing the impact which the HRA has had on relations between the judiciary, the legislature and the executive and the “perception” that, under the HRA, the courts have increasingly been presented with questions of policy as well as law, the Government considers that it is timely to review the operation of the HRA.

There are two overarching themes that the IHRAR will consider:

  1. The relationship between the domestic courts and the ECtHR: Domestic courts and tribunals are not bound by the jurisprudence of the ECtHR. However, pursuant to section 2 of the HRA, in so far as relevant, domestic courts and tribunals must “take into account” that jurisprudence when determining a question that has arisen in connection with a Convention right. The Panel will consider (among other questions):
    1. How the duty under section 2 has been applied in practice?
    2. How have domestic courts and tribunals dealt with issues falling within the margin of appreciation? When applied, this legal doctrine gives a public authority a degree of discretion when making decisions.
    3. Does the current approach to ‘judicial dialogue’ between domestic courts and the ECtHR satisfactorily allow domestic courts to raise concerns as to the application of ECtHR jurisprudence, having regard to the circumstances of the United Kingdom?
  2. The impact of the HRA on the relationship between the judiciary, the executive and the legislature: The Panel will consider whether the HRA balances those roles, including whether there is “over-judicialising” of public administration, drawing domestic courts unduly into questions of policy. By way of illustration, these are examples of questions that the Panel will consider:
    1. Section 3 of the HRA requires the courts to read and give effect to primary and subordinate legislation in a way which is compatible with Convention rights. Should any changes be made to this framework?
    2. Should any change be made to the framework of the section 4 HRA duty i.e. that if the court is satisfied that a provision is incompatible with a Convention right, it may make a declaration of that incompatibility?
    3. How have courts and tribunals dealt with provisions of subordinate legislation that are incompatible with the HRA Convention rights?
    4. In what circumstances does the HRA apply to acts of public authorities taking place outside the territory of the United Kingdom?
    5. Section 10 of and Schedule 2 of the HRA provide ministers with the power to make remedial orders, i.e. to amend legislation that has been found incompatible with the Convention. Should this be modified, for example by enhancing the role of Parliament?

The IHRAR will not consider potential changes to the operation of the Convention or the ECtHR, which are not within the scope of this Review.

Next steps

The Panel is expected to report its recommendations in Summer 2021, after which the Government will respond to the report.

A further point to note is that the 2019 Conservative Manifesto also promised to review the constitution and administrative law, including the relationship between the Government, Parliament and the courts; the functioning of the Royal Prerogative; the role of the House of Lords; access to justice and judicial review. The 2019 Conservative Manifesto undertook to establish a Constitution, Democracy and Rights Commission to consider these issues, as well as the HRA, in depth.

On 31 July 2020, the Government established the Independent Review of Administrative Law (the “IRAL”) to consider options for reform to judicial review. In its latest announcement the Government has stated that the IRAL and the IHRAR, together with other workstreams which will be announced in due course, will deliver the Commission on Constitution, Democracy and Rights. Therefore, it is likely that we will see further reviews taking place to address remaining constitutional issues referred to in the 2019 Manifesto.

To read more about the IRAL, please see the following blog posts:

 

Andrew Lidbetter
Andrew Lidbetter
Partner
+44 20 7466 2066
Nusrat Zar
Nusrat Zar
Partner
+44 20 7466 2465
Jasveer Randhawa
Jasveer Randhawa
Of Counsel
+44 20 7466 2998
Shameem Ahmad
Shameem Ahmad
Associate
+44 20 7466 2621