New questions over the Human Rights Act

Dr Helen O'Nions considers what the new political scene will mean for the much-delayed British Bill of Rights, and other developments in human rights law

As the dust begins to settle after the
EU referendum and Theresa May's installation as the new Conservative party leader and prime minister, questions over the future of the Human Rights Act 1998 (HRA) are certain to resurface.

As home secretary, May made no secret of
her dislike of judicial activism (both European
and domestic) and openly called for the UK to withdraw from the European Convention on Human Rights (ECHR).

Despite criticism from some cabinet colleagues and former attorney general Dominic Grieve,
May has been confident that the convention is responsible for many of society's ills. Implicit in
her desire to leave the convention is a rejection of Michael Gove's proposal for a British Bill of Rights which would retain the position of the convention. The recent Queen's Speech included a commitment to replace the HRA with the tailor-made British
Bill of Rights, which was expected to enhance
the powers of British courts to act as the final arbiters of disputes over the interpretation of convention rights.

How such legislation could operate while the
UK remains party to the convention is a subject of bemusement. Withdrawal from the convention would resolve the legal uncertainty over conflicting legal supremacies but it remains to be seen whether such action is politically palatable.

It is possible those anxious for reform will take comfort in recent decisions of the European Court of Human Rights (ECtHR) which have widened the margin of appreciation to allow states a greater degree of discretion, particularly in the field of qualified rights. This development towards a greater emphasis on subsidiarity has been observed following the Grand Chamber decisions in Animal Defenders v UK (Application no 48876/08) and SAS v France (Application no 43835/11). It is well established that the impact of the margin will be minimal when assessing state restrictions on absolute rights. Yet it is cases concerning these rights that have proved most controversial, particularly when the Strasbourg court is perceived to have reduced the state's ultimate territorial power to control its borders
by removing those suspected of terrorism (as in Chahal v UK (Application no 22414/93) and Othman (Abu Qatada) v UK (Application no 8139/09)). There may be some signs here that the court's position is being softened by the reform debate in the UK.

De Menezes case

In March, a majority of 13 to four found that the failure of the Crown Prosecution Service (CPS) to prosecute any police officer over the fatal shooting of Jean Charles de Menezes in July 2005 did not violate the right to life (Da Silva v UK (Application no 5878/08)).

In the aftermath of the July 2005 bombings,
the police officers were deemed to have acted
in self-defence as they held an honest, albeit mistaken, belief that de Menezes was a suicide bomber and therefore that such force was absolutely necessary. This assessment followed a lengthy investigation by the CPS which concluded there was insufficient evidence to mount a successful prosecution.

Immigration detention

Following suspension of the detained fast track (see SJ160/8), immigration detention was again
in the courts, this time in the context of detention pending removal (JN v UK (Application no 37289/12)). The UK is the only EU country that does not provide for a maximum time limit for detention in these cases and it has not opted in to the EU Returns Directive that would have required detention to be limited to 18 months. Detention pending deportation falls within the exception to the right to liberty in article 5(1)(f), subject to the limitations prescribed under the common law (see R v Governor of Durham Prison ex parte Hardial Singh [1984] 1 WLR 704). These principles require that the secretary of state must intend to deport the person and can only use the power to detain for that purpose; that the period of detention must
be reasonable; if it becomes apparent that deportation will not be possible within that reasonable period, the power of detention should not be exercised; and the secretary of state should act with reasonable diligence and expedition to effect removal.

In a ruling of some comfort to the then home secretary, the ECtHR held that article 5(1)(f) did not require states to establish time limits for detention in cases pending deportation and that there were sufficient procedural safeguards to enable the lawfulness of detention to be tested. The absence of an automatic judicial review of detention was found not to violate article 5(1)(f) as the applicant was protected by article 5(4), which entitled him
to 'take proceedings' to challenge the detention.

The subject of immigration detention is set to remain a thorn in the government's side as the All-Party Parliamentary Group on Refugees and Migration recently recommended establishing a time limit of 28 days. Its conclusions echoed the findings of the Shaw report and the views of the outgoing chief inspector of prisons. A House of Commons amendment to the Immigration Act 2006 restricting detention to 28 days was defeated. However, some concessions were made in the introduction of automatic judicial oversight of detention and a time limit on the detention of pregnant women.

Chagos islanders

In UK law, nationality is not commensurate with citizenship. Several nationalities that do not have full rights to citizenship continue to exist, albeit
in ever-decreasing numbers, as a hangover from British colonial history.

The story of the Chagos islanders marks one
of several low points in the British government's treatment of subjects without full citizenship.
The highly criticised House of Lords decision
in R v Secretary of State for the Foreign and Commonwealth Office ex parte Bancoult [2000] EWHC Admin 413 concluded the islanders had
no right of abode and could therefore be forcibly resettled after the British overseas territory was leased to the US for defence purposes. This judgment returned for consideration by the Supreme Court in Bancoult (No 2) [2016] UKSC 35.

Bancoult (No 2) was an attempt to set aside
the first judgment on the basis of procedural irregularities. These included flaws in a feasibility study that had rejected the possibility of resettlement and the emergence of a recent
study that challenged the government's position that resettlement was impossible. Lord Mance dissented in the original decision but on this occasion found the judgment could not be set aside as there was no evidence that the foreign secretary would have reached a different conclusion based on the information that was or should have been available at the time. Lord Kerr and Lady Hale dissented, reasoning there was
at least an arguable case that the evidence supporting the decision was so flawed as to
make the refusal of resettlement irrational.

The story of the islanders' fight to return to their homeland will continue as the Supreme Court has now given leave to challenge the creation of the marine protection zone around the islands. The islanders contend the zone was not established to protect marine life but was created for an improper purpose, namely to prevent their return.

Student loans

In the Scottish courts, the restriction of student loans to under 55s was found to violate the
public sector equality duty under section 149
of the Equality Act 2010 and the prohibition on discrimination in article 14 of the ECHR (Hunter, Re Judicial Review [2016] CSOH 71). The provision of the loan was held to fall within the substantive right conferred by article 2 of protocol 1 of the ECHR, which provides that 'no person shall be denied the right to education'.

Lady Scott reasoned the denial of a loan would make such education prohibitively expensive
and the right would therefore become illusory.
The prohibition of indirect discrimination under article 14 is not absolute. Restrictions can be lawful, providing they are proportionate to a legitimate objective. However, the court ruled the legitimate objective of encouraging wider access to higher education could not be served by such a measure.

Hillsborough inquest

Finally, the importance of the HRA in the fight to achieve a full public inquest into suspicious deaths became very apparent with publication of the conclusions of the Hillsborough inquiry. After a 27-year fight for justice (see SJ160/20), the inquest jury returned a verdict of 'unlawful killing', opening up the possibility of a fresh prosecution for manslaughter of David Duckenfield, the former chief superintendent of South Yorkshire police.

Significantly, the inquest placed the families and friends of Hillsborough victims at its centre with a purpose widened to examine the circumstances rather than just the means of the deaths.
This followed the House of Lords judgment in
R v Her Majesty's Coroner for the Western District of Somerset and another ex parte Middleton [2004] UKHL 10,which examined the process by which deaths in custody were investigated subject to article 2 of the ECHR.

Dr Helen O’Nions is a senior lecturer at Nottingham Law School @LawNLS www.ntu.ac.uk/nls