Proscribed by Law? R. (Miranda) v. Home Secretary,  EWCA Civ. 6
The decision of the Court of Appeal in the high-profile case of R. (Miranda) v. Home Secretary,  EWCA Civ. 6 was handed down last week. My interest in the case, which stems from the detention, questioning and search of David Miranda, was piqued by Laws L.J.’s discussion of the “prescribed by law” test at first instance (see also my article from 2014). I was critical of this approach. On appeal, Lord Dyson M.R. concluded that Schedule 7 of the Terrorism Act, under which the state action against Miranda was carried out conferred an unduly wide discretion on officers and thus was not “prescribed by law”:
I accept that [there] are constraints on the exercise of the power, but in my judgment they do not afford effective protection of journalists’ article 10 rights. The central concern is that disclosure of journalistic material (whether or not it involves the identification of a journalist’s source) undermines the confidentiality that is inherent in such material and which is necessary to avoid the chilling effect of disclosure and to protect article 10 rights. If journalists and their sources can have no expectation of confidentiality, they may decide against providing information on sensitive matters of public interest. That is why the confidentiality of such information is so important. It is, therefore, of little or no relevance that the Schedule 7 powers may only be exercised in a confined geographical area or that a person may not be detained for longer than nine hours. I accept that the fact that the powers must be exercised rationally, proportionately and in good faith provides a degree of protection. But the only safeguard against the powers not being so exercised is the possibility of judicial review proceedings. In my view, the possibility of such proceedings provides little protection against the damage that is done if journalistic material is disclosed and used in circumstances where this should not happen. An important rationale for the principle of legal certainty that underpins the concept of “prescribed by law” is that there should be adequate safeguards against arbitrary decision-making. Unlike the position in relation to article 5 and 8, the possibility of judicial review proceedings to challenge the rationality, proportionality and good faith of a decision to interfere with freedom of expression in cases involving journalistic material cases does not afford an adequate safeguard (at para. 113).
David Scott explains: ” it would be impractical to assume an average journalist would be able to obtain an emergency interim injunction upon detention under Schedule 7, and judicial review after the fact could not restore the confidentiality of sources or material, there were inadequate legal safeguards to avoid the risk that it will be exercised arbitrarily. The stop powers under Schedule 7 were therefore incompatible with Article 10″. As I noted in my original post, “Where “an unduly wide discretion” is conferred upon the authorities, it should be hemmed in by guidelines [or other provisions] so individuals’ exercise of their protected rights is not ‘chilled’ by the prospect of running afoul of a broadly drawn discretionary power”.
However, Lord Dyson M.R. has drawn some criticism for the structure of his judgment. He concluded that the use of the Schedule 7 powers in Miranda’s particular case was proportionate. How could he then turn around and declare Schedule 7 as a whole to be unlawful because it failed the “prescribed by law” test? Carl Gardner puts the point succinctly:
The Human Rights Act forces judges to make a choice. Either a piece of legislation is in principle compatible with human rights, in which case its use in particular cases may still breach rights (and so be unlawful); or it’s incompatible with those rights in principle, in which case its use in every case will breach rights (and, in an apparent paradox, will therefore be lawful). You can’t have it both ways. You can’t hold the questioning of David Miranda compatible with human rights if you also think the legislation it was done under is not.
No doubt this apparent contradiction is a product of the way the case was argued: the proportionality of Miranda’s treatment was the third ground of appeal and incompatibility the fifth. The “prescribed by law” test is certainly distinct from the proportionality test, so it is not surprising that the two points were argued separately.
The difficulty is that Lord Dyson M.R.’s judgment does not address s. 6 of the Human Rights Act 1998:
(1) It is unlawful for a public authority to act in a way which is incompatible with a Convention right.
(2) Subsection (1) does not apply to an act if—
(a) as the result of one or more provisions of primary legislation, the authority could not have acted differently; or
(b) in the case of one or more provisions of, or made under, primary legislation which cannot be read or given effect in a way which is compatible with the Convention rights, the authority was acting so as to give effect to or enforce those provisions.
In particular, Lord Dyson M.R.’s conclusions on the proportionality of Miranda’s treatment (which depend on the applicability of s. 6(1)) may be proscribed by s. 6(2)(b), because the “primary legislation” was held to be incompatible with the Convention rights and the officers were “acting so as to give effect to or enforce those provisions”. The question is whether the fact that the “prescribed by law” test and the proportionality test are distinct has any relevance to the interpretation of s. 6(2)(b). It is at least theoretically possible for provisions that are incompatible because they fail the “prescribed by law” test to be applied proportionately or disproportionately by a public authority. Mr. Gardner makes a strong case that the distinction is irrelevant, because the officers were acting “so as to give effect to” Schedule 7, which was incompatible, thereby rendering s. 6(1) inapplicable. No doubt the Supreme Court will deliver a thorough discussion of the interaction between the “prescribed by law” test, the proportionality test and s. 6(2)(b), if it hears the case.
This content has been updated on January 27, 2016 at 13:24.