Human rights

April 17th, 2019 by James Goudie KC

In R (SC) v SoS for Work and Pensions (2019) EWCA Civ 615 Leggatt LJ said as regards the European Convention on Human Rights (“the Convention”):-

“29.    … the Convention is not aimed at securing social and economic rights. The rights defined in the Convention are predominantly civil and political in nature. This reflects the original purpose of the Convention, conceived and developed as it was in the aftermath of the Second World War as a bulwark for protecting the peoples of Europe against tyranny and oppression. As stated in its Preamble, the Convention is a collective enterprise of European countries which are “like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law”, and is designed to maintain “those fundamental freedoms which are the foundation of justice and peace in the world.” Within the legal framework established by the Council of Europe, social and economic rights are protected by a separate treaty, the European Social Charter, adopted by the Council in 1961.

  1. In accordance with article 31(1) of the Vienna Convention on the Law of Treaties, the Convention is to be interpreted in the light of its object and purpose. Consistently with the general purpose of the Convention, the European Court of Human Rights has identified the “essential object” of article 8 as being to protect the individual against arbitrary interference by the state: … The Court has not interpreted article 8 in wholly negative terms and has indicated that there may be positive obligations inherent in respect for private or family life: … But article 8 has never been held to impose an obligation on the state to have in place any positive programme of financial support for private or family life.
  2. Attempts to argue that article 8 imposes an obligation to provide financial support for family life have met with short shrift. …
  3. Where the European Court of Human Rights has held that the Convention imposes obligations on the state to make socio-economic provision for basic material needs, it has done so by reference to article 3, which prohibits inhuman or degrading treatment. … It is clear that the test for a breach of article 3 is a demanding one …
  4. UK domestic case law is to similar effect. …”

“41.    To determine whether the relevant legislation is incompatible with article 14, four questions need to be answered. First, does the alleged discrimination concern the enjoyment of a right set forth in the Convention – the test for this purpose being whether the facts of the case fall “within the ambit” of a Convention right? Second, is the alleged ground of discrimination a “status” listed or falling within article 14? Third, has the claimant been treated less favourably than a class of persons whose situation is relevantly similar? Fourth, if so, is there an objective and reasonable justification for the difference in treatment? The answers to the third and fourth questions determine whether there is “discrimination” within the meaning of article 14.”

“47.    The term “possessions” in A1P1 has been interpreted broadly as encompassing not just tangible property but various intangible rights and legitimate expectations to payments or assets of various kinds. …”

“84.    According to settled case law of the European Court of Human Rights, the question whether there is an “objective and reasonable justification” for a difference in treatment is to be judged by whether it pursues a “legitimate aim” and there is a “reasonable relationship of proportionality” between the aim and the means employed to realise it: …

  1. In the case law of the European Court of Human Rights, it is also well settled that states have a certain “margin of appreciation” in applying the proportionality test, the breadth of which will vary according to the circumstances, the subject matter and the background” …”

“87.    … there are compelling reasons for according the full area of judgment allowed to the UK under the Convention in matters of social and economic policy to the legislature and the executive. Within the UK’s constitutional arrangements, the democratically elected branches of government are in principle better placed than the courts to decide what is in the public interest in such matters. Those branches of government are in a position to rank and decide among competing claims to public money, which a court adjudicating on a particular claim has neither the information nor the authority to do. In making such decisions, the legislature and the executive are also able and institutionally designed to take account of and respond to the views, interests and experiences of all citizens and sections of society in a way that courts are not. Above all, precisely because decisions made by Parliament and the executive on what is in the public interest on social or economic grounds are the product of a political process in which all are able to participate, those decisions carry a democratic legitimacy which the judgment of a court on such an issue does not have. For such reasons, in judging whether a difference in treatment is justified, it is now firmly established that the courts of this country will likewise respect a choice made by the legislature or executive in a matter of social or economic policy unless it is “manifestly without reasonable foundation”.”

“89.    Although it is not immediately obvious how the “manifestly without reasonable foundation” test relates to the assessment of proportionality that the court must undertake, the explanation may be that the court is required to ask whether the difference in treatment is manifestly disproportionate to a legitimate aim. …

  1. … just as in ordinary judicial review proceedings where a test of reasonableness is applied the intensity of the court’s review will vary according to the context … it is clear that, in assessing proportionality, the intensity with which a court will scrutinise a policy justification for a difference in treatment will depend on the circumstances. Three factors, in particular, are important in this regard.
  2. First, … the nature of the ground on which the difference in treatment is based is significant. … In other words, the nature of the ground on which the difference in treatment is based will affect the intensity with which the court will scrutinise the proffered justification and hence the readiness with which the court will conclude that there was manifestly no reasonable foundation for the difference in treatment.
  3. A second relevant consideration is whether the measure resulting in differential treatment has been approved by Parliament and, if so, with what degree of scrutiny. …

Plainly, the weight which should be attached to the democratic basis for the decision is even greater where the measure in question has not merely been considered and approved by Parliament but has been enacted by Parliament in primary legislation. …

  1. A third important factor is whether or to what extent the values and interests relevant to the assessment of proportionality were actually considered when the policy choice was made. Thus, it is clear that, where a public authority has addressed the particular issue before the court and has taken account of the relevant human rights considerations in making its decision, a court will be slower to upset the balance which was struck. Conversely, where there is no indication that this has been done, “[t]he court’s scrutiny is bound to be closer and the court may have no alternative but to strike the balance for itself, giving due weight to such judgments as were made by the primary decision-maker on matters he or it did consider”: …”

“102.  … the best interests of a child are a factor which must, when relevant, be included in the balancing exercise and given significant weight when assessing whether interference with rights protected by article 8 is justified. …”

“112.  … I do not accept that it is a proper or permissible approach for a court to decide … whether allegedly discriminatory legislation is consistent with the UK’s obligations under an international convention and then, if the court considers that it is not, to treat this as supporting a conclusion that the difference in treatment created by the legislation is not justified and is therefore incompatible with article 14 of the Convention. There is no basis in either legal principle or precedent for treating a state’s compliance or lack of compliance with its obligations under other international treaties as relevant to whether it has acted compatibly with article 14 (or any other provision of the Convention). … when the European Court refers to international instruments in interpreting the Convention, the purpose of doing so is not to establish whether the respondent state is in breach of its international obligations. … The purposes for which the Court has regard to other international instruments are, first, to seek to achieve an interpretation of the Convention which is consistent with rules of international law and, second, as evidence of internationally accepted common values.”

“115.  One way in which an international convention may be relevant … is by demonstrating an international consensus as to the importance of prohibiting discrimination on a particular ground. … this may affect the weight of the reasons required to justify a difference in treatment based on that ground. …

  1. … It is clear law that the duty of a public authority under section 6 of the Human Rights Act 1998 to act compatibly with Convention rights is one of result, not of process: … In other words, the fact that a public authority has not taken account of a relevant consideration or followed an appropriate decision-making process is not itself a basis for concluding that it has acted incompatibly with Convention rights: it goes only to the weight that should be accorded to the judgment made by the public authority. As this legal principle applies to considerations which, under the Convention, are directly relevant to whether there has been a breach of a Convention right, it must also apply a fortiori to any consideration derived from another international instrument which is indirectly relevant, …”

Nicola Davies LJ (paragraph162) and Patten LJ (paragraph 163) agreed.

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