The Supreme Court has, today, handed down judgment in R(AB) v Secretary of State for Justice  UKSC 28.
In AB the Appellant sought to argue that the solitary confinement of a child under 18 was automatically a breach of Article 3 ECHR (“inhuman and degrading treatment”) save for exceptional circumstances where that treatment could be shown to be necessary.
Lord Reed, giving the judgment of Court, accepted that solitary confinement should be “ordered only exceptionally” and “that must be especially clear in relation to detainees under 18 years of age” (see ). However, this was not a “win” for the Appellants because of the Court’s analysis. This is where the significance of the Court’s analysis arises.
In the field of human rights it is notoriously difficult to establish bright line rules. The various articles of the ECHR, and most other international human rights instruments, whether domestically incorporated or not, tend to establish broad textured “rights.” Some articles are “unqualified” in the sense of not containing a proportionality derogation. However, even those unqualified rights, such as Article 3 ECHR relied on in this case, do not tend to set down bright line rules which, if breached, automatically lead to unlawfulness. The closest are the obligations in relation to deprivations of liberty under Article 5 ECHR and as interpreted by Lord Dyson in Lumba v Secretary of State for the Home Department  UKSC 12.
The Appellant in this case, sought to establish a bright line rule in relation to solitary confinement of minors by referring to comments from the Treaty bodies for other international human rights treaties (such as the UN Convention on the Rights of the Child). The ECtHR in Strasbourg often makes reference to the decisions of such bodies, and the provisions of other international human rights treaties that the Contracting State has also signed so as to develop and inform the jurisprudence of the ECtHR under the Convention.
However, these arguments received very short shrift from Lord Reed. Lord Reed restated the orthodoxy, that domestic Courts must have regard to case law of the ECtHR, but it is not the role of the domestic court to develop the case law under the Convention generally. That is for the ECtHR in Strasbourg. The ECtHR in Strasbourg had not accepted the propositions for which the Appellants argued, instead, applying a more fact sensitive and principles based approach, rather than one which provided that particular conduct would always be unlawful unless it could be shown to be strictly necessary and the circumstances were “exceptional.”
The judgment exemplifies the approach increasingly being shown by domestic courts following Brexit, and the Brexit litigation, where the Courts are going to increasingly lengths to explain why they are taking account of materials from “outside” of the domestic sphere, where Parliament has not incorporated those Treaties through legislation. This case is an interesting read alongside Green LJ’s judgment in Heathrow Hub Limited v HM Treasury  EWCA Civ 783 on the Court’s approach to the Trade and Cooperation Agreement with the EU and with GATT.
The case is also a salient reminder of the limitations of arguments based on Human Rights instruments, especially the ECHR While those rights do provide a check on the exercise of executive power unless there is specific case law from the ECtHR which establish hard edged principles (itself extremely rare), it is difficult to make good an argument that the ECHR requires a particular, hard edged approach to be taken to preclude a policy or form of conduct absolutely, subject to the public authority establishing a very narrow exception.
Katherine Apps is a barrister at 39 Essex Chambers. She is on the Attorney General’s A panel of Counsel and the EHRC B Panel of Counsel. The views expressed in this comment are her’s alone.
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