Extraterritoriality and the Procedural Duties of Administrative Decision-makers: R (Marouf) v Home Secretary, [2023] UKSC 23

In a recent post I described the concept of procedural duties in administrative law. The UK Supreme Court recently delivered an important decision on the scope of procedural duties: R (Marouf) v Secretary of State for the Home Department, [2023] UKSC 23. The particular question addressed by the Supreme Court was whether the duty has extra-territorial effect.

The appellant brought a challenge to the Vulnerable Persons Resettlement Scheme, which aimed to provide emergency sanctuary in the UK, outside the strictures of immigration legislation, for particularly vulnerable displaced refugees, such as women and children. As a Palestinian refugee, the appellant fell outside the scope of the Scheme because the Scheme relies on the United Nations Commissioner for Human Rights: Palestinian refugees in the appellant’s situation are not within the Commissioner’s remit.

The challenge was based in part on s. 149 of the Equality Act 2010, which contains what is known as the public sector equality duty. Pursuant to this duty, a public authority must have due regard, in the exercise of its functions, to the need to eliminate discrimination, harassment, victimisation and similar conduct; advance equality of opportunity between persons who share a relevant protected characteristic — such as age, disability and race — and persons who do not share it; and foster good relations between persons who share a relevant protected characteristic and persons who do not share it.

Most importantly, the duty “requires the taking of reasonable steps to make enquiries about what may not yet be known to a public authority about the potential impact of a proposed decision or policy on people with the relevant characteristics” (R (Bridges) v Chief Constable of South Wales [2020] EWCA Civ 1058, at para. 181). In this case, as the first-instance judge found, the question was whether the Home Secretary had confronted “the way in which the Scheme would not increase equality of opportunity for Palestinian refugees” (at para. 18).

Lady Rose framed this case as turning on whether the Home Secretary was obliged to comply with the duty in implementing the Scheme in Lebanon. In other words, does the duty apply extraterritorially?

Indeed, Lady Rose rejected the proposition that the issue of territoriality could be sidestepped. The appellant argued that this was purely a domestic matter, as “Parliament is presumed to be legislating here are the public bodies subject to the duty, not the myriad persons within and outside the UK whom a decision by the public body may affect” (at para. 53). For Lady Rose, there was no getting around extraterritorial effect:

The problems that can arise from giving the provision extraterritorial effect do not only arise when the decision making body is outside the UK. The issue of extraterritoriality that arises here was correctly identified by Simler LJ as being whether the duty extends to having due regard for promoting equality etc in respect of persons or matters outside the UK when exercising functions within the UK which affect those overseas (at para. 53).

With the issue thus framed, Lady Rose held that the public sector equality duty does not apply extraterritorially. First, Lady Rose reiterated the presumption against extraterritorial effect of statutes. The appellant suggested that recent jurisprudence qualified the presumption (see paras. 25-41), but Lady Rose quoted with approval from Bennion, Bailey and Norbury, Statutory Interpretation (2020, 8th ed): “Unless the contrary intention appears, an enactment is taken not to apply to people and matters outside the territory to which it extends” (at para. 38). The appellant’s argument “that the presumption against extraterritorial effect only arises where that jurisdiction risks generating real problems by interfering with foreign states” (at para. 40) conflated the policy reasons underlying the presumption with the presumption itself. Rather, “[i]n the absence of express words, the extraterritorial application of legislation may be implied but it is high threshold that needs to be overcome” (at para. 41).

Second, Lady Rose disagreed with the appellant’s argument that the flexible nature of the duty meant that it was more plausible that it could have extraterritorial effect. The idea here was that because the duty is context-sensitive, it would apply with relatively little intensity when British policies had overseas effect. Lady Rose was not swayed: “If there is likely to be no useful purpose served in most cases by imposing the duty with extraterritorial effect, it is less, rather than more, likely that Parliament intended to extend the scope of the duty beyond this jurisdiction” (at para. 46).

Ultimately, there was “nothing” in the legislation indicating that the duty was intended to have extraterritorial effect (at para. 54):

The [duty] is intended to ensure that the specified public bodies have due regard to the need to adopt policies which help to bring about the societal change that would see the elimination of discrimination, equality of opportunity and good relations between different groups within the community. There is no general duty under section 149 on public bodies to attempt to bring about that kind of change in countries outside the United Kingdom and it is not open to a person with a protected characteristic but no connection to the United Kingdom to challenge a decision of a public body on the grounds that a policy adopted failed to have due regard to the need to improve their position within that overseas community…It is no doubt the case that where decisions and policies are being discussed within a Government department, consideration will be given to whether the effects on people overseas are likely to be advantageous or disadvantageous from the point of view of the UK’s overall interests. The wisdom of having such an internal discussion as part of policy making certainly does not mean that the [duty] should apply (at paras. 54-55).

A further argument based on the inter-relationship between the duty and other provisions of the Equality Act 2010 fared no better (at paras. 58-66). In the end, accepting the appellant’s “argument would confer rights on people all over the world to challenge the decision-making process of a public body exercising its functions, if the exercise of the public body’s functions affected them” (at para. 64). Plainly, the Supreme Court was not persuaded that it could or should go so far.

This content has been updated on July 24, 2023 at 17:49.