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FACING FACTS: JUDICIAL APPROACHES TO SECTION 4
OF THE HUMAN RIGHTS ACT 1998
The issuing of a declaration of incompatibility under section 4 of the Human Rights Act 1998 (HRA) was once likened by Jack Straw to an “unexploded bomb” landing in a minister’s room.^1 It is therefore unsurprising that a low number of declarations of incompatibility have been made.^2 But the traditional judicial approach to section 4 is unsatisfactory and unduly deferential to the executive.^3 In particular, courts should consider looking beyond the instant case when deciding whether to make a declaration of incompatibility to look at the impugned legislation more generally.^4 Although a victim is required to launch an action against a public authority under the HRA,^5 nothing in the text of the HRA requires an actual victim’s rights to be violated for a section 4 declaration to be made.^6 Indeed, sections 3 and 4 apply to all litigation, even if no public authority is involved.^7 The courts’ current approach logically involves the consideration of the instant case as a potential example of incompatibility. If an incompatibility is found, the legislation will then be declared incompatible on its face—and it will follow that the present applicant’s rights have been violated, although no remedy will be forthcoming.^8 A difficulty arises where the instant case is not thought to be especially compelling despite flaws in the legislation becoming apparent—under what circumstances, if (^1) House of Lords Select Committee on the Constitution, Judicial Appointments Process, Oral and Written Evidence Q.133 (2011). (^2) At the time of the last Ministry of Justice report (December 2014), 29 declarations had been made since the HRA came into force on 2 October 2000, of which 20 declarations had become final: Ministry of Justice, Responding to Human Rights Judgments , Cm. 8962 (2014), at p.5. The reports are usually produced annually, but the report for 2014–15 has been overdue since December 2015. Two of the declarations made since the 2014 report was published are discussed in this paper: R. (on the application of Miranda) v Secretary of State for the Home Department [2016] EWCA Civ 6; [2016] 1 W.L.R. 1505 and R. (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56; [2016] 3 W.L.R. 1267. (^3) Although the powers of the HRA apply to senior courts UK-wide, in the interests of space, this paper will largely concentrate on the position in England and Wales. (^4) See also R. Buxton, “The Future of Declarations of Incompatibility” [2010] P.L. 213, especially at 215. (^5) HRA s.7(1). (^6) Because s.7 only applies to the regime under HRA ss.6–8 on public authorities. See further below. (^7) That much is clear enough from the terms of the HRA itself, but for confirmation, see J. Wadham, H. Mountfield, E. Prochaska and R. Desai, Blackstone’s Guide to the Human Rights Act 1998 , 7th edn (Oxford: Oxford University Press, 2015) (subsequently “Blackstone’s Guide”), at para.3.04. (^8) HRA s.4(6) and cf. the discussion of Miranda below.
any, should a declaration still be made? While courts have to consider the particulars of the instant case when using the section 3 interpretation duty, or when deciding whether to give a remedy under section 8, the instant case should not necessarily be the end of the story where section 4 is concerned. Domestic traditions as well as comparisons with other courts— particularly the US courts and the European Court of Human Rights—have combined to cause a reluctance to use section 4. Against the background of the UK courts’ traditional approach, two recent (and somewhat related) cases will be used as case studies to show the (different) wrong turns the courts have taken recently: Beghal v D.P.P. ,^9 and R. (on the application of Miranda) v Secretary of State for the Home Department.^10 Of course not all courts have the power to make declarations of incompatibility,^11 and a court has no duty to make a section 4 declaration—as is well known, the section explicitly says that a court “may” make a declaration if it finds that a provision is incompatible with a Convention right.^12 And a court cannot make a declaration on a whim—the Crown must receive 21 days’ notice in cases where the court is considering making a declaration.^13 A party alleging a Convention breach must therefore give notice as to whether a section 4 declaration is being sought and must set out in a statement of case why the legislation is apparently incompatible.^14 But, assuming that notice has been given and whilst respecting the courts’ discretion, they could, and should, be more robust in making declarations. The courts have been said to be reluctant to make judgments beyond the instant case in front of them.^15 That is to say, if the court is not convinced that there has been a breach of potentially incompatible legislation in the instant case, the court will usually (but not always) (^9) [2015] UKSC 49; [2016] A.C. 88. (^10) [2016] EWCA Civ 6. (^11) The courts with the power to make such declarations are listed in HRA s.4(5). (^12) Which can be contrasted with the mandatory interpretation provision in HRA s.3, where the court “must”, so far as possible, read and give effect to legislation in a way which is compatible with Convention rights. (^13) HRA s.5(1) and Civil Procedure Rules (CPR) 19.4A(1). (^14) CPR Practice Direction 16, para.15.1. (^15) D. Bonner, H. Fenwick and S. Harris-Short, “Judicial Approaches to the Human Rights Act” (2003) 52 I.C.L.Q. 549 at 568.
experience of litigants”.^20 Judicial legitimacy may therefore be called into question in cases where declarations are not required to decide the instant case. Provided, however, that the courts limit themselves to cases where future incompatibilities will very clearly arise, without too much conjecture, legitimacy can be maintained. The approach recommended here would result in a modest increase in section 4 use. Given that section 3, rather than section 4, is the section which has been accused of “undermin[ing] Parliamentary sovereignty”,^21 the approach endorsed here should be workable in practice without unduly raising political eyebrows (or hackles), for reasons which will be further developed in this paper. The argument advanced here is also likely to survive any changes to our human rights architecture, since nothing in the Conservative Party’s plans for a Bill of Rights so far suggests that a section 4-type power would be removed.^22 It is the section 3 power, given its controversy, that faces being watered down to “[p]revent our laws from being effectively re-written through ‘interpretation’”.^23 It is impossible to tell how many extra declarations might be made if the approach endorsed here were followed. It may lead to more declarations being sought, although the lack of remedy in the instant case must surely limit the likely number of applicants, most of whom seek a declaration as a “fallback” or “booby prize”.^24 More declarations would likely be issued, but a declaration would not be issued in every case in which it is sought. Certain challenges to Acts will undoubtedly be unsuccessful, either because the legislation is genuinely compatible, or because the court would have to strain too hard to find a potential incompatibility. It is likely that the issuing of declarations of incompatibility will increase (^20) K. Roach, “Remedies for Laws that Violate Human Rights” in J. Bell, M. Elliott, J.N.E. Varuhas and P. Murray (eds.), Public Law Adjudication in Common Law Systems: Process and Substance (Oxford: Hart, 2016), p.269 at p.290. (^21) Conservative Party, Protecting Human Rights in the UK: The Conservatives’ Proposals for Changing Britain’s Human Rights Laws (2014), at p.4 (subsequently Protecting Human Rights in the UK ). (^22) There is no mention of section 4 whatsoever in Protecting Human Rights in the UK. (^23) Protecting Human Rights in the UK , at p.6. (^24) T. Hickman, “Bill of Rights Reform and the Case for Going Beyond the Declaration of Incompatibility Model” [2015] N.Z.L.R. 35 at 5 6.
anyway if the section 3 power is narrowed as the current nascent Bill of Rights plans suggest. It is possible, then, that coupled with the approach endorsed here, section 4 (or its Bill of Rights equivalent) could become more controversial than it is at present. But declarations should not be controversial. They do not give undue power to the judiciary. Shying away from making declarations of incompatibility in fact shows undue deference to the executive at the expense of parliamentary intention. Despite plans to curb section 3, the executive find declarations of incompatibility to be more publicly embarrassing than the “subterranean method” of interpretation.^25 We might also hope that any increase in declarations is offset by a reduction caused by pre-HRA statutes being increasingly replaced by post-HRA statutes.^26
THE LIMITED UTILITY OF COMPARISONS WITH OTHER COURTS
Before looking at the domestic approach, it is worth pausing to consider some comparisons with other courts because such comparisons may have caused misapprehensions as to the proper role of our domestic courts. European Court of Human Rights (ECtHR) Under section 2 of the HRA, the UK courts have a duty to take Strasbourg jurisprudence into account in determining cases dealing with Convention rights. The UK courts have interpreted this provision according to the so-called “mirror principle”, meaning that they should do “no more, but certainly no less” than Strasbourg.^27 But a comparison with Strasbourg may not always be appropriate. The section 2 duty, and particularly how it has been interpreted by the UK courts, may be hampering our domestic courts from being more robust in exercising their (^25) A. Kavanagh, Constitutional Review under the UK Human Rights Act (Cambridge: Cambridge University Press, 2009) (subsequently Constitutional Review ), at p.230. (^26) Despite, of course, Convention-compatibility not being guaranteed: HRA s.19. (^27) R. (on the application of Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 A.C. 323 at [20] per Lord Bingham.
4 declaration does not move the law on in any irreversible way and should not necessarily, therefore, be exercised with an eye on Strasbourg. Furthermore, because declarations have no immediate legal effect, they threaten neither legal certainty nor judicial legitimacy because they cannot have “unforeseen consequences” for parties beyond the instant case.^30 Declarations which are not required for the instant case are therefore not necessarily problematic because they do not affect the law without further action. US courts Comparisons with US courts have been drawn by various commentators.^31 In American constitutional jurisprudence, the terms “facial challenge” and “as-applied” challenge are widely used. The terms are not well-known in the UK jurisdictions. That is understandable— they in fact have limited use for reasons which will become clear. The terms are, however, worth exploring for the limited use they do have, and for confusion which they may cause if a transplant into the UK is attempted. In a facial challenge in the US courts, an Act (or a provision) is struck down if it is thought to be unconstitutional across all its possible applications. It is difficult for the applicant to succeed because she must “must establish that no set of circumstances exists under which the Act would be valid”.^32 In an as-applied challenge, an Act (or a provision) may have its application limited if it is deemed to be unconstitutional in certain circumstances i.e. as against an individual or a group.^33 The US courts have claimed that facial challenges are, and should be, rarely successful, although this claim has been (^30) Young, “Towards an Expository Justice Approach?”. (^31) See, for example, Simester and Sullivan, at sec.2.5(1)(b); and Kavanagh, Constitutional Review , at pp.291–
(^32) US v Salerno 481 U.S. 739 at 745 (1987), except in First Amendment cases where the “overbreadth” doctrine applies (where the Act is said to have too many unconstitutional applications). (^33) See R.N. Pine, “Speculation and Reality: The Role of Facts in Judicial Protection of Fundamental Rights” (1988) 136 U. Pa. L. Rev. 655 at 701.
questioned (both empirically and normatively) by writers such as Fallon.^34 Reasons which can be advanced for the rarity of facial challenges in the US do not apply in the UK jurisdictions. For starters, the UK courts have no strike down power. Declarations of incompatibility can be made more readily since they have only political, not legal, implications. Any reluctance of the US courts to use (or at least admit to using) such a drastic measure do not apply to the UK’s less drastic alternative.^35 Linked to that is the fact that the UK courts need not worry about impinging on parliamentary sovereignty when they make a section 4 declaration. In making such a declaration, the courts are only doing what they have been tasked to do by Parliament under the terms of the HRA. That Act was (although certain politicians, and even some commentators,^36 would no doubt disagree) drafted carefully so as to ensure the continuing sovereignty of Parliament.^37 As Lord Woolf has said, when exercising their powers under the Human Rights Act, the courts are “only doing what they have to swear to do on appointment and that is to give a judgment according to law”.^38 The judges therefore act “in support of Parliament not otherwise” when they make declarations of incompatibility.^39 The US courts’ strike down power, stemming as it does from the common law,^40 has far more implications for sovereignty, not just in its operation but in its very existence. It is therefore more natural to assume that the US courts could feel cautious about (^34) R.H. Fallon, “Fact and Fiction about Facial Challenges” (2011) 99 California Law Review 915 at 917– 918 and generally (subsequently “Fact and Fiction”). (^35) Cf. Kavanagh, Constitutional Review , who argues that the declaration of incompatibility mechanism is “a considerably stronger judicial tool than is often assumed” and not very different from a strike down power given its effect: at p.289. See too Lord Hoffmann, “Human Rights and the House of Lords” (1999) 62 M.L.R. 159 at 159 – 160. The strength of these arguments is weakened by the fact that, since they were made, we have an example of legislation not being amended after a declaration of incompatibility: see below. (^36) See, for example, Bogdanor’s assertion that “[i]n practice, the principle of the rule of law, as embodied in the Human Rights Act, may be coming to supersede the doctrine of the sovereignty of Parliament”: V. Bogdanor, The New British Constitution (Oxford: Hart, 2009), at p.74, and ch.3 generally. See also Kavanagh’s view that “the HRA only preserves the doctrine of parliamentary sovereignty in formal terms”: Constitutional Review , at p.336 and ch.11 generally. (^37) In relation to s.4, see HL Deb., vol.584 col.1294 (January 19, 1998) (Lord Chancellor (Irvine)); Rights Brought Home: The Human Rights Bill , Cm. 3782 (1997), at para.2.13. (^38) Lord Woolf, “The Impact of Human Rights” in Lord Woolf (ed. by C. Campbell-Holt), The Pursuit of Justice (Oxford: Oxford University Press, 2008), p.209 at p.219. (^39) Woolf, “The Impact of Human Rights”, at p.219. (^40) Marbury v Madison 5 U.S. 137 (1803).
may use the term “as-applied” to suggest that the court has considered the individual circumstances of the case.^49 But in America, as-applied challenges mean that the legislation may be disapplied only in certain circumstances. That disapplication will undoubtedly be based on the instant case. But it does not necessarily follow that the UK courts, in looking at the facts of a specific case, make a declaration only in respect of a certain category of people. The issue tackled in this paper is the courts taking a case-specific approach, regardless of whether any declaration impugns the whole provision, or is more restrictive.^50 For those reasons, the term “case-specific” rather than “as-applied” is used in this paper to refer to cases where the question of compatibility is determined based on the instant facts, rather than looking more broadly at the legislation.
THE TRADITIONAL RELUCTANT APPROACH
The courts famously view declarations of incompatibility as “a measure of last resort”.^51 In one sense, the courts have to take such a view, given the relationship between sections 3 and 4 of the HRA.^52 That well-known relationship is not examined in depth here. Instead, the central consideration is whether, having discounted section 3, the courts should always limit themselves to the facts of a particular case when deciding whether to make a declaration. That question should be answered in the negative. It may not always be easy to tell whether the court is taking a case-specific or a broader approach, or whether the court thinks that incompatibility must be established in all possible circumstances or only in certain circumstances. Frequently the court will not explain explicitly that it is taking either path. Indeed the difference only really matters when, on the facts of the case before it, the court decides not to make a declaration, whilst still finding a (^49) This appears to be the meaning given in Simester and Sullivan, at sec.2.5(i)(b). (^50) For an example of a somewhat restrictive declaration, see the discussion of Miranda below. (^51) R. v A. (No.2) [2001] UKHL 25; [2002] 1 A.C. 45 at [44] per Lord Steyn. (^52) Kavanagh, Constitutional Review , at p.124.
flaw with an Act. If the court makes the declaration, it should not matter whether they concern themselves only with the instant case, or with the legislation more generally.^53 Likewise, if legislation truly is compatible then it makes no difference which approach is taken. It only makes a difference when the facts of the case are not compelling enough to convince the court to issue a declaration,^54 despite the fact that the legislation, in certain other applications, is thought to be more problematic. There are certain examples of the courts looking beyond the instant case when making a declaration of incompatibility. One such example is R. (on the application of Anderson) v Secretary of State for the Home Department ,^55 in which the Home Secretary’s role in setting tariffs for convicted murderers was declared incompatible with Article 6 of the ECHR because the non-independent Home Secretary was fulfilling a judicial function in making sentencing decisions “even if he does no more than confirm what the judges have recommended”.^56 The fact that this particular case was especially compelling (because of the Home Secretary’s departure from the judicial recommendation) does not appear to have affected the court’s decision. There were, however, no circumstances in which the Home Secretary’s power could be exercised in a Convention-compliant way. The situation is more difficult, and less clear, when the legislation can be exercised in both compatible and incompatible ways. Take, for example, Percy v D.P.P.^57 Percy concerned a conviction under section 5 of the Public Order Act 1986, a provision which criminalises a wide range of activity. Section 5 makes it a crime to use “threatening or abusive words or behaviour, or disorderly behaviour” or to display “any writing, sign or other visible representation which is threatening or (^53) Unless a somewhat restrictive declaration is made, such as in Miranda , as discussed below. (^54) Or are compelling but do not require the issuing of a declaration as in R. (on the application of Johnson) v Secretary of State for the Home Department [2016] UKSC 56. (^55) [2002] UKHL 46; [2003] 1 A.C. 837. (^56) Anderson at [28] per Lord Bingham. (^57) [2001] EWHC Admin 1125; (2002) 166 J.P. 93.
Convention rights and thus the court may shy away from making the declaration. Public authorities must constantly be vigilant as to whether a particular exercise of their powers will be Convention-compliant. Basing section 4 decisions on specific cases rather than the legislation as whole may make legislation even more difficult for decision-makers to navigate. Furthermore, the choice between sections 3–4 and sections 6–8 will not be available in all cases, since not all cases involve a public authority. In certain circumstances, then, the courts should move away from case-specific reasoning altogether and simply examine the legislation on its face. This argument will be substantiated later in the paper in relation to the Beghal case. Is it possible for a court to make a declaration where there is no “victim” under section 7 of the HRA? On this issue, the courts have sometimes expressed hesitation. In R. (on the application of Rusbridger) v Attorney General^61 the editor of a national newspaper sought clarification of Victorian legislation which made it a crime to advocate republicanism, and a declaration of incompatibility under section 4 of the HRA if necessary. The court stated that there was no need for a person to be a “victim” in order to rely on section 4 of the HRA.^62 In this case there was no victim since no charges had been brought, although articles “which unambiguously advocated republicanism” had been published.^63 But it was equally clear that “victimless” cases may often be doomed to fail, as this one was, the court holding that:^64 “[I]t is not the function of the courts to keep the statute book up to date … sections 3 and 4 of the Human Rights Act 1998 are not intended to be an instrument by which the courts can (^61) [2003] UKHL 38; [2004] 1 A.C. 357. (^62) Rusbridger at [21] per Lord Steyn. (^63) Rusbridger at [10] per Lord Steyn. (^64) Rusbridger at [36] per Lord Hutton. See also Lord Rodger at [58] and Lord Walker at [61].
chivvy Parliament into spring-cleaning the statute book.”^65 The obsolete legislation was not causing any mischief in practice, and pressures on parliamentary time are great. But “spring-cleaning” (here taken to mean repealing a provision without a replacement enactment) could easily be swept up in the Law Commissions’ regular Statute Law (Repeals) Bills. Many declarations of incompatibility, however, cannot reasonably be described as “spring-cleaning” given that they are designed to prompt new legislation to be drafted and enacted. In such cases, a lack of parliamentary time is unlikely to be an appropriate shield to hide behind given that a fundamental human right is at stake. In addition, as will be argued further below, declarations open up the option to use section 10 of the HRA to amend legislation with minimal parliamentary time. As Buxton has correctly pointed out, the effect of a declaration in a particular case clearly must be “secondary” to section 4’s “role as a machinery for purging the statute book of non-conforming provisions” because section 4 provides no remedy for the applicant.^66 In Rusbridger , given that the court said it was “unreal” to suggest that the impugned provision could survive post-HRA,^67 why not just make the declaration? Perhaps, in addition to practical concerns about parliamentary time, the court felt too shackled by its traditional role, but section 4 is a different power which requires a different approach. Similarly, in Lancashire C.C. v Taylor , the court decided that, although technically a victim is not needed, making a declaration where there was no victim would go against section 7 of the HRA.^68 The court stressed the fact that it would not entertain “purely hypothetical” arguments.^69 Given the “desirably flexible approach to the grant of (^65) The reference to s.3 is especially peculiar since use of s.3 cannot be described as any sort of “chivvying” of Parliament. (^66) R. Buxton, “The Future of Declarations of Incompatibility” [2010] P.L. 213 at 214. See HRA, s.4(6). (^67) Rusbridger at [28] per Lord Steyn. (^68) [2005] EWCA Civ 284; [2005] 1 W.L.R. 2668 at [44] per Lord Woolf. (^69) Lancashire C.C. at [43] per Lord Woolf.
brought by an applicant in good faith that she has a tenable argument, but the court being less convinced. Readers will of course be familiar with the text of section 4, but it is worth looking at the precise wording closely: “(1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility.” In addition, of course, section 4(6) provides no remedy for the instant party. Section 4 makes no mention of a victim, nor for the need for a breach in the instant case. The terms of section 4 put the provision, not the applicant, centre stage. As Buxton has argued, litigation between two specific parties is only the “necessary context” for declarations of incompatibility because of the English courts’ inability to act “of [their] own motion”.^76 Similarly, in a US- context, Spann has said that dispute resolution is a “charade” which hides the courts’ true purpose of “tell[ing] us how to conform our behavior to our fundamental values”.^77 It has long been recognised that public law judgments can have “extended impact” far beyond the parties to a particular case.^78 Specifically, “[d]eclarations of incompatibility always have the potential to touch on circumstances not before the court given that legislation often has a broad application”.^79 Declarations are therefore always at least partially expository in nature.^80 (^76) Buxton, “The Future of Declarations of Incompatibility” at 214–215. (^77) G.A. Spann, “Expository Justice” (1983) 131 U. Pa. L. Rev. 585 at 585. (^78) A. Chayes, “The Role of the Judge in Public Law Litigation” (1976) 89 Harv. L.R. 1281 at 1297. See also Miles, “Standing under the HRA” at 153. (^79) Young, “Towards an Expository Justice Approach?”. (^80) Miles “Standing under the HRA” at 137; Sathanapally, Beyond Disagreement , at pp.110– 111.
During the passage of the Human Rights Bill, an amendment (number 103) was proposed to add a clause 4(2A) to the Bill:^81 “(2A) A court may not make a declaration of incompatibility unless it is necessary for the purpose of determining the matter before it.” The amendment was defeated,^82 on the basis that:^83 “The purpose of a declaration is to draw attention to a legislative incompatibility with the convention and to act as a trigger for a remedial order under … [section 10]. A declaration of incompatibility has no effect on the case before the court … Amendment No. 103 would prevent a declaration from being made unless that were specifically necessary to determine the case in question, yet the kinds of cases where the issues are likely to arise will almost inevitably be complex and involve different issues, each of which will have to be resolved by the court … Amendment No. 103 … has no place in the scheme that we have established in … [section 4]. The Government believe that this group of amendments [of which amendment number 103 was one] is fundamentally misconceived.” This defeated amendment makes it clear—once section 4 is on the table, the court may look beyond the present case at the impugned legislation more generally. In R. (on the application of Nasseri) v Secretary of State for the Home Department , Lord Hoffmann stated that, given the very great discretion afforded to the court in section 4 cases, he would “not … wish to exclude” the possibility of a declaration being made where the public authority was not (^81) HC Deb., vol.313 col.437 (June 3, 1998) (Alan Haselhurst). A related unsuccessful amendment was proposed to add to the end of clause 4(2) the words “setting out the nature and extent thereof in so far as arises from the nature of the case before the court”. The proposed amendment was designed, amongst other things, to “give judges a clear indication that declarations of incompatibility should not be issued unless required to resolve a particular case before the court”: HC Deb., vol.313 col.451 (June, 3 1998) (Anne McIntosh). (^82) By 320 votes to 128: HC Deb., vol.313 cols 461–464 (June 3, 1998). (^83) HC Deb., vol.313 col.460 (June 3, 1998) (Geoff Hoon).
case, but that the legislation had the potential to be incompatible in other, more extreme cases.^90 Nasseri was not cited, and Lord Hoffmann’s possibility of making a declaration despite the instant facts was not explored. Article 8 was engaged but not breached because the interference was “in accordance with the law” under Article 8(2). The court noted the different expectations we have at airports as opposed to when we are “anywhere in the street”.^91 When we enter an airport we are aware that we must consent, if we wish to go ahead with our travel plans, to inspections of our body, documents and luggage. Only Lord Kerr applied a facial test to the legislation. The upper limits of schedule 7, he noted, are not things that a person would normally think she is consenting to when entering an airport. For example, to be detained for six hours,^92 to have items of property seized for up to seven days,^93 or to have documents or other data (for example, phone or computer records) copied and retained “for so long as is necessary”.^94 None of those things happened to Beghal, but for Lord Kerr that was rightly irrelevant. But the majority held that Beghal’s detention was a proportionate restriction on her Article 8 rights to pursue the legitimate aim of fighting terrorism because, in particular, no data on her had been kept. The court did suggest, however, that where such data was kept beyond an initial investigatory period, the intrusion into privacy was more “considerable”.^95 Lord Hughes therefore recommended that such retention should be based on a reasonable suspicion, which does not need to be made out for the person to be stopped and have the data taken from them in the first place.^96 In terms of Beghal’s Article 5 argument, it was relevant that she had only been (^90) Whether the court was expressing a view that the legislation was potentially incompatible or merely being critical is debatable, but the strongest suggestion of incompatibility is perhaps in terms of the six-hour detention period at [54]. (^91) Beghal at [38] per Lord Hughes, with whom Lord Hodge agreed. (^92) Terrorism Act 2000 sched.7, para.6A(3). (^93) Or longer, if the item is needed as evidence: Terrorism Act 2000 sched.7, para.11. (^94) Terrorism Act 2000 sched.7, para.11A. (^95) Beghal at [57] per Lord Hughes, with whom Lord Hodge agreed. (^96) Beghal at [57]–[58]. See also [72] per Lords Neuberger and Dyson.
questioned for around 30 minutes.^97 The court found that there was therefore no breach of Article 5 because her detention was justified under Article 5(1)(b)—to secure the fulfilment of an obligation prescribed by law—and because it was no longer than necessary. But the court hinted that at its upper reaches (six hours) the legislation could be more problematic.^98 In addition to the short duration of her detention and the fact that no items were taken from her or copied, we may also have limited sympathy for Mrs Beghal because her husband was a convicted terrorist. Perhaps, therefore, the examining officer did have genuine cause to stop her. But the possible discriminatory operation of schedule 7, where no reasonable suspicion of terrorist activity is needed to stop someone, is evident. Although the legislation does not appear to be used excessively,^99 or in a discriminatory fashion,^100 risks nevertheless exist. As Lord Kerr noted, it should not matter that the powers were not used in a discriminatory fashion in this case, or indeed that they are generally not used in that fashion. The important thing is that they could be so used.^101 He also noted that the Code of Practice for the use of schedule 7 mandates that ethnicity or religion cannot be the only reason for stopping someone—the fact that the Code legitimises either of those features as being one possible reason to stop someone is troubling.^102 A Home Office circular was issued to examining officers in the light of Beghal instructing that, pending revisions to the Code, race, ethnicity or religion should only be taken into account “if present in association with factors which show a connection with the threat from terrorism”.^103 Respectfully, it is not clear what (if anything) such revisions actually change. In a sense, therefore, it is true to say that the court did review the legislation on its (^97) In total she was delayed at the airport for around two hours, but part of that time was for prayer at her request. (^98) Beghal at [54]. (^99) According to the independent reviewer of terrorism legislation, 0.014% of people travelling through British ports in 2014–15 were stopped under schedule 7: D. Anderson, The Terrorism Acts in 2014: Report of the Independent Reviewer on the Operation of the Terrorism Act 2000 and Part 1 of the Terrorism Act 2006 (2015) (subsequently “Terrorism Acts Report 2015”), at para.6.3. (^100) Terrorism Acts Report 2015, at para.6.11. (^101) Beghal at [93]. (^102) Beghal at [104]. (^103) Home Office Circular 001/2016: Schedule 7 to the Terrorism Act 2000 (2016).
