Tuesday 3 September 2013

Leaving the main road for a shortcut? The UK, the ECHR and the exhaustion of domestic remedies

On the day of the 60th Anniversary of the European Convention on Human Rights, a very interesting case landed on Matron’s desk that could have ramifications for UK public authorities in several ongoing cases.
The case in question, Malik v The United Kingdom, concerns a decision by the European Court of Human Rights on whether a complaint by the applicant against treatment he received under Schedule 7 of the Terrorism Act 2000 is admissible despite the fact that the applicant, by his own admission, has not exhausted all formally available domestic remedies. So it is only an admissibility decision, not yet a decision on the lawfulness of Schedule 7 (for more on that see Matron’s recent post), but what an admissibility decision it is.
The case is interesting for UK lawyers for two reasons. First, on the facts it is very similar to the case of David Miranda, journalist Glen Greenwald’s partner, who was detained under Schedule 7 only a few weeks ago, and who is about to take the UK government to court over his own treatment. In the case of Mr Malik, a British citizen, he was detained en route home from the Hajj pilgrimage in Saudi Arabia. He was extensively questioned and searched by Heathrow police and subsequently forced to give DNA samples at a local police station. He was singled out under the Act because he had two passports (having previously been advised by the UK passport authorities to get the second one to make it easier to get a visa to go on the Hajj as he had Israeli stamps on his other passport). 
The Miranda case has of course brought the range of powers available to UK border police under Schedule 7 (and the potential for the abuse of those powers) to the attention of large parts of the public for the first time. As the facts of the cases go, Mr Malik’s detention is slightly different from Mr. Miranda's as there seems to be a clearer intention to detain the former for the purpose of determining whether he was in fact involved in terrorist activities (a point that is still in dispute with regard to David Miranda). Nevertheless, the legal questions are similar in both cases. Are the Schedule 7 powers, which allow the police to detain individuals without the need for reasonable suspicion, too wide to be compatible with Convention rights, in particular Article 5(1) (right to liberty and security of person) and Article 8 ECHR (right to respect for private life)? With the Malik case now in the queue way ahead of Mr Miranda, the good news is that we could see a decision on this issue considerably earlier than we had previously expected. 
However, at least to human rights geeks like Matron, the Malik case is also interesting for another reason, namely the oddity of its admissibility itself. For those not yet aware of this, the road to the European Court is a long and windy one. In order “to afford the Contracting States the opportunity of preventing or putting right the violations alleged against them before those allegations are submitted to the Convention institutions” (Selmouni v France), Article 35 ECHR normally requires applicants to exhaust all domestic remedies before they can bring their case to Strasbourg. In this case, as the UK government argued in its response to the application, Mr. Malik could arguably have challenged the legality of his treatment by way of judicial review in the High Court. Or alternatively, could have brought a claim for damages in the County Court.
However, as the Court also pointed out in Selmouni, that rule is based on the assumption, reflected in Article 13 ECHR, that there is in fact an effective domestic remedy available in respect of the alleged breach. And it seems to be the question of what constitutes an “effective” remedy that is at issue here. 
The only remedies which Article 35 requires the applicant to exhaust are those that relate to the breaches of Convention rights he alleges and that are, at the same time, both available and sufficient. The “existence of those remedies must be sufficiently certain not only in theory but also in practice, failing which they will lack the requisite accessibility and effectiveness” (Selmouni v France).
There is also the question of the burden of proof in this context. If the government claims that a claim should be declared inadmissible for non-exhaustion, it must prove that that the domestic remedy to which it refers the applicant was an effective one “available in theory and in practice at the relevant time, that is to say, that it was accessible, was one which was capable of providing redress in respect of the applicant’s complaints and offered reasonable prospects of success”.
The problem in the Malik case seemed to be that although Mr Malik could in fact have sought the remedies proffered by the Government (judicial review of the Heathrow police's actions in the High Court or damages in the County Court) neither of those two remedies were likely to provide him with any relief. 
Starting with the claim for damages, this was unlikely to be successful as the UK border police had arguably acted within the powers granted to them by primary legislation. In any case, Mr Malik’s claim in this case was specifically NOT that the police had exceeded the remit of its powers under Schedule 7, but that those powers themselves were too wide to be compatible with Convention rights. An award of damages was therefore unlikely. 
With regard to the potential High Court challenge, the very much case hangs on the convoluted way in which the UK Parliament, when adopting the Human Rights Act 1998 (HRA), has tried to reconcile the constitutional principle of parliamentary sovereignty with the a right of domestic courts to review the compatibility of acts of public authorities with the ECHR. That legislative compromise, oft criticised but yet to be properly reviewed, goes something like this:

  1. Because of the principle of parliamentary sovereignty (i.e. the fact that no constitutional institution in the UK other than Parliament itself has the right to repeal or declare invalid an Act of Parliament) primary legislation itself cannot be subject to direct judicial review. This is a concept that has always seemed alien to a Kraut like Matron who comes from a system where this – lets face it – very quick and pragmatic way of checking the legislative’s power is the norm.
  1. The HRA does, however, allow the UK courts to review the actions of public authorities other than Parliament for their compatibility with Convention rights. Under section 6 HRA, it is unlawful for a public authority to act in a way which is incompatible with a Convention right; and under section 8 HRA a court “may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate” in relation to any act of a public authority which it finds is unlawful. However, it can only award damages if it has the power to do so (in civil proceedings). Which brings us back to the argument above.
  1. The only other remedy a UK court has at its disposal is the famous “declaration of incompatibility” under section 4 HRA. This means that in the context of a case before it, a court can declare a provision of primary legislation to be incompatible with Convention rights. However, this declaration itself does not affect the validity, continuing operation or enforcement of the relevant provision and – more importantly – such a declaration is not binding on the parties to the proceedings in which it is made. This means that:
  1. the right to decide whether or not to repeal the offending provision remains with the UK Parliament; and
  1. the applicant cannot necessarily claim damages on the basis of that incompatibility.

This compromise has served successive UK governments well as it grants them both wiggle room and the requisite time to get political agreement for changes to primary legislation that the courts deem necessary. To Matron’s knowledge, there are as yet no cases where Parliament has not – eventually – changed the law following a declaration of incompatibility. However, “eventually” is the operative word in this case, as the existing regime at the very least allows for the potential of long legislative delays. And as we all know from the well-known cliché: justice delayed is often justice denied. 
Which seems to be why, in this case - as in the cases of Gillan and Quinton v. the United Kingdom before it (which dealt with equally wide stop and search powers under section 44 of the Terrorism Act) - the UK’s strategy with regard to the HRA seems to have spectacularly backfired because the European Court seems to have declared Malik’s application admissible precisely because the “declaration of incompatibility” remedy has no binding effect. Without it having such effect (and based on the requirements relating to the burden of proof the UK government would have needed to argue that it had that effect – which it didn’t for obvious political reasons) the remedy was not an effective one as far as the applicant was concerned. As a result the European Court did not consider the exhaustion of that remedy necessary for the application before it to be admissible.
Given the number of surveillance cases currently before the UK courts that challenge the compatibility of UK primary law with Convention rights, this decision could therefore have considerable impact. Could this mean, for example, that the case brought by Privacy International with regard to the provisions in the Regulation of Investigatory Powers Act 2000 on which the TEMPORA interceptions are based could be fast-tracked straight to the European Court? Again, the real issue at stake in that case does not concern the actions of the UK security services, which are likely to have acted well within the wide-ranging powers that RIPA grants,  but the compatibility of the relevant RIPA provisions with Convention rights. Given that it will be nigh on impossible to prove that any particular individual has suffered damages from those interceptions, that remedy seems to Matron not to be an effective one in that case as well. Given further the track record of the Investigatory Powers Tribunal before which the case had to be brought (the number of claims upheld is roughly equal to the number of Pandas in Scotland), can it really be said that applicants should be required to spend time and money on going through domestic motions that are  unlikely to grant them the relief they are aiming for? 
And if this is so, what does this mean for the concept of parliamentary sovereignty to which the UK is so wedded? Matron for one will stock up on popcorn.