Keir Baker writes:
The case of the Chagossians originates from the forced eviction of the islanders, who were required to leave their homes to make space for the construction of a US naval base on the archipelago’s main island of Diego Garcia, seen as a strategically-important location in the Indian Ocean.
Around 2,000 people were forced to leave their homes and have lived in exile for over 30 years. They and their descendants - who now number 5,000 - have submitted numerous legal challenges to this forced emigration, without success.
In 2008, the House of Lords dismissed their appeal by a 3:2 majority.
However, fresh evidence emerged and the main appellant, Olivier Bancoult, launched a bid to gain an order for a further appeal to (one would assume) definitively end the case.
He claimed a feasibility study questioning whether the Chagossians would be able to live effectively on the islands had not been made available to his lawyers, and may have created a different outcome had it been available.
As the Chagossians’ advocate David Fitzgerald QC argued, something had gone wrong in the legal procedure if the claimants had been deprived of an opportunity to challenge the reliability of this report.
Looking at the European Convention of Human Rights (ECHR) –transposed into UK legislation by the now-threatened Human Rights Act 1998 (HRA) - it would seem that Article 6 of the ECHR, which provides all citizens within its jurisdiction a right to ‘a fair and public hearing,’ has here been compromised.
In order to ensure they received the hearing, the Chagossians needed to prove that this was the case.
If the Chagossians use of Article 6 were successful, the legal rights contained within Article 8 of the ECHR (‘private and family life, his home and his correspondence’) would act as the main grounds on which they could base their appeal, given that the Chagossians had been forced from their homeland to the nearby island of Mauritius, where they live in slum conditions, suffer high unemployment and complain of racist treatment by the indigenous population.
As a result, this whole affair provides an interesting context in which issues regarding common law human rights and their ability to shape and influence the law can be examined.
This is an increasingly important issue, with Conservative proposals to scrap the HRA raising questions about whether Human Rights will be sufficiently protected by the common law.
If the HRA is repealed, to continue their battle against their forced eviction, the Chagossians may have to rely solely on common law human rights, relying on precedent and jurisprudence that may not effectively and comprehensively cover the space that would be left behind.
In general, the common law as a whole is talked about positively, subject to the caveat of its subservience to Parliamentary sovereignty.
For example, writing extra-judicially, Lord Justice Laws argued that it is the unifying principle of the ‘constitution’ and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’
But the extent to which the case law runs sufficiently in parallel with the statutory causes of action from the HRA is an issue that has been examined and debated by the courts and academics alike.
On one hand, many suggest that the common law can effectively protect human rights thanks to the approach articulated by Lord Bingham in the pre-HRA case of R v Secretary of State for Defence, ex parte Smith [1995] EWCA Civ 22.
Here, he said:
The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.
But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important.
The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
The case of the Chagossians originates from the forced eviction of the islanders, who were required to leave their homes to make space for the construction of a US naval base on the archipelago’s main island of Diego Garcia, seen as a strategically-important location in the Indian Ocean.
Around 2,000 people were forced to leave their homes and have lived in exile for over 30 years. They and their descendants - who now number 5,000 - have submitted numerous legal challenges to this forced emigration, without success.
In 2008, the House of Lords dismissed their appeal by a 3:2 majority.
However, fresh evidence emerged and the main appellant, Olivier Bancoult, launched a bid to gain an order for a further appeal to (one would assume) definitively end the case.
He claimed a feasibility study questioning whether the Chagossians would be able to live effectively on the islands had not been made available to his lawyers, and may have created a different outcome had it been available.
As the Chagossians’ advocate David Fitzgerald QC argued, something had gone wrong in the legal procedure if the claimants had been deprived of an opportunity to challenge the reliability of this report.
Looking at the European Convention of Human Rights (ECHR) –transposed into UK legislation by the now-threatened Human Rights Act 1998 (HRA) - it would seem that Article 6 of the ECHR, which provides all citizens within its jurisdiction a right to ‘a fair and public hearing,’ has here been compromised.
In order to ensure they received the hearing, the Chagossians needed to prove that this was the case.
If the Chagossians use of Article 6 were successful, the legal rights contained within Article 8 of the ECHR (‘private and family life, his home and his correspondence’) would act as the main grounds on which they could base their appeal, given that the Chagossians had been forced from their homeland to the nearby island of Mauritius, where they live in slum conditions, suffer high unemployment and complain of racist treatment by the indigenous population.
As a result, this whole affair provides an interesting context in which issues regarding common law human rights and their ability to shape and influence the law can be examined.
This is an increasingly important issue, with Conservative proposals to scrap the HRA raising questions about whether Human Rights will be sufficiently protected by the common law.
If the HRA is repealed, to continue their battle against their forced eviction, the Chagossians may have to rely solely on common law human rights, relying on precedent and jurisprudence that may not effectively and comprehensively cover the space that would be left behind.
In general, the common law as a whole is talked about positively, subject to the caveat of its subservience to Parliamentary sovereignty.
For example, writing extra-judicially, Lord Justice Laws argued that it is the unifying principle of the ‘constitution’ and that ‘its distinctive method has endowed the British State with profoundly beneficial effects.’
But the extent to which the case law runs sufficiently in parallel with the statutory causes of action from the HRA is an issue that has been examined and debated by the courts and academics alike.
On one hand, many suggest that the common law can effectively protect human rights thanks to the approach articulated by Lord Bingham in the pre-HRA case of R v Secretary of State for Defence, ex parte Smith [1995] EWCA Civ 22.
Here, he said:
The court may not interfere with the exercise of an administrative discretion on substantive grounds save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of responses open to a reasonable decision-maker.
But in judging whether the decision-maker has exceeded this margin of appreciation the human rights context is important.
The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.
Indeed,
in the more-recent Supreme Court decision in R (Osborn) v Parole Board [2013] UKSC 61, Lord Reed
described how this approach had been effectively adopted into the Common law,
thereby in his view demonstrating how the UK’s domestic law can successfully
protect and promote human rights issues, regardless of the existence of the
HRA:
The
Human Rights Act has however given domestic effect, for the purposes of the
Act, to the guarantees described as Convention rights.
It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so...
It does not however supersede the protection of human rights under the common law or statute...
Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
That approach is now well established.
It requires public authorities generally to act compatibly with those guarantees, and provides remedies to persons affected by their failure to do so...
It does not however supersede the protection of human rights under the common law or statute...
Human rights continue to be protected by our domestic law, interpreted and developed in accordance with the Act when appropriate.
That approach is now well established.
However,
so far as the Chagossians’ case is concerned, Lord Reed’s assessment of the
state of the Common law is only partly true.
His evaluation is indeed accurate in terms of the protection of Article 6 rights; with the case of Ridge v Baldwin (No. 1) [1963] UKHL 2 illustrating how the courts have consistently tried to interpret legislation and reach decisions in compliance with what jurists such as Trevor Allan may deem substantive Rule of Law principles.
In Ridge, the principle in question was the right to a fair hearing, thereby supplying a Common law precedent on which the Chagossians may be able to rely for their case.
Indeed, this case, along with others such as R v Secretary of State for the Home Department, Ex Parte Simms [2000] UKHL 33 (the right of freedom of expression) or R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 (the right to access to confidential legal advice) shows how important human rights have been augmented by the HRA.
However, as Lord Bingham described in Daly, these cases also independently recognise those rights found within the HRA via the ‘orthodox application of common law principles.’
Nevertheless, there are a variety of decisions that project a picture of common law complacency - most likely stemming from the existence of the statutory sources - regarding human rights, including judicial adherence to the ‘mirror principle’, which follows Lord Bingham’s suggesting in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 that domestic courts should do ‘no more and no less’ than the European Court of Human Rights in Strasbourg when protecting Convention rights.
Others too include judicial refusal to apply the HRA horizontally, and judicial affirmation that public authorities can ignore human rights when making decisions so long as the ultimate decision does not violate the ECHR.
Combined, these instances appear to show, that Lord Neuberger was correct when he said that the introduction of the HRA is when ‘human rights started to leak into the judicial cerebellum.’
Furthermore, there are very few examples that may be helpful for the Chagossians of this supposed effectiveness of the common law in terms of Article 8 of the ECHR, with current legal precedents based entirely on the common law seeming either constraining or unhelpful to their case.
His evaluation is indeed accurate in terms of the protection of Article 6 rights; with the case of Ridge v Baldwin (No. 1) [1963] UKHL 2 illustrating how the courts have consistently tried to interpret legislation and reach decisions in compliance with what jurists such as Trevor Allan may deem substantive Rule of Law principles.
In Ridge, the principle in question was the right to a fair hearing, thereby supplying a Common law precedent on which the Chagossians may be able to rely for their case.
Indeed, this case, along with others such as R v Secretary of State for the Home Department, Ex Parte Simms [2000] UKHL 33 (the right of freedom of expression) or R v Secretary of State For The Home Department, Ex Parte Daly [2001] UKHL 26 (the right to access to confidential legal advice) shows how important human rights have been augmented by the HRA.
However, as Lord Bingham described in Daly, these cases also independently recognise those rights found within the HRA via the ‘orthodox application of common law principles.’
Nevertheless, there are a variety of decisions that project a picture of common law complacency - most likely stemming from the existence of the statutory sources - regarding human rights, including judicial adherence to the ‘mirror principle’, which follows Lord Bingham’s suggesting in R v Special Adjudicator, ex parte Ullah [2004] UKHL 26 that domestic courts should do ‘no more and no less’ than the European Court of Human Rights in Strasbourg when protecting Convention rights.
Others too include judicial refusal to apply the HRA horizontally, and judicial affirmation that public authorities can ignore human rights when making decisions so long as the ultimate decision does not violate the ECHR.
Combined, these instances appear to show, that Lord Neuberger was correct when he said that the introduction of the HRA is when ‘human rights started to leak into the judicial cerebellum.’
Furthermore, there are very few examples that may be helpful for the Chagossians of this supposed effectiveness of the common law in terms of Article 8 of the ECHR, with current legal precedents based entirely on the common law seeming either constraining or unhelpful to their case.
In
certain cases, such as that of Smith v Chief Constable of Sussex Police [2008] UKHL 50, the courts have explicitly refused
to develop discrete causes of action in relation to the scenarios that would
otherwise be covered by Article 8 of the ECHR – via the HRA.
In other instances, the courts have allowed the concept of privacy to begin to seep into the English common law.
Most notably, in Campbell v MGN Ltd [2004] UKHL 22 the law of confidentiality was extended to cover some privacy rights (albeit motivated by the HRA).
In the more recently-decided Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311 the High Court and the Court of Appeal created a tort of misuse of private information, underived from the Article 8 (for more on this, see ‘Vidal-Hall v Google: Can Big Brother Be Defeated’).
In other instances, the courts have allowed the concept of privacy to begin to seep into the English common law.
Most notably, in Campbell v MGN Ltd [2004] UKHL 22 the law of confidentiality was extended to cover some privacy rights (albeit motivated by the HRA).
In the more recently-decided Google Inc v Vidal-Hall & Ors [2015] EWCA Civ 311 the High Court and the Court of Appeal created a tort of misuse of private information, underived from the Article 8 (for more on this, see ‘Vidal-Hall v Google: Can Big Brother Be Defeated’).
However,
whilst the common law in regard to privacy is clearly on the move, particularly
thanks to the Google case, there still remains no
overarching principle or cause of action that is as comprehensive as that which
is found in Article 8.
This is both problematic and demonstrative of the deficiencies of common law human rights, because as described by Lord Hoffman in Wainwright & Anor v. Home Office [2003] UKHL 53:
This is both problematic and demonstrative of the deficiencies of common law human rights, because as described by Lord Hoffman in Wainwright & Anor v. Home Office [2003] UKHL 53:
What
the courts have so far refused to do is to formulate a general principle of
"invasion of privacy”...
Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies.
Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person's rights...have been infringed by a public authority, he will have a statutory remedy...
The creation of a general tort will... pre-empt the controversial question of the extent, if any, to which the Convention requires the state to provide remedies for invasions of privacy by persons who are not public authorities...
There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself.
he English common law is familiar with the notion of underlying values - principles only in the broadest sense - which direct its development....
This is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.
Furthermore, the coming into force of the Human Rights Act 1998 weakens the argument for saying that a general tort of invasion of privacy is needed to fill gaps in the existing remedies.
Sections 6 and 7 of the Act are in themselves substantial gap fillers; if it is indeed the case that a person's rights...have been infringed by a public authority, he will have a statutory remedy...
The creation of a general tort will... pre-empt the controversial question of the extent, if any, to which the Convention requires the state to provide remedies for invasions of privacy by persons who are not public authorities...
There seems to me a great difference between identifying privacy as a value which underlies the existence of a rule of law (and may point the direction in which the law should develop) and privacy as a principle of law in itself.
he English common law is familiar with the notion of underlying values - principles only in the broadest sense - which direct its development....
This is an area which requires a detailed approach which can be achieved only by legislation rather than the broad brush of common law principle.
All
the problems described by Lord Hoffman conspire to ensure that the common law
still lacks the breadth of the ECHR.
Certainly, for a case such as that of the Chagossians, there is nothing definitive, no applicable ratio that would be sufficient for ensuring success in their appeal.
Certainly, for a case such as that of the Chagossians, there is nothing definitive, no applicable ratio that would be sufficient for ensuring success in their appeal.
In
conclusion then, the case of the Chagossians suggests that the UK’s Common law
human rights are not sufficiently comprehensive to act as a suitable
replacement for the HRA.
Dinah Rose QC (the barrister behind The Guardian’s successful appeal for the release of Prince Charles’ advocacy correspondence) seems to evaluate the situation most accurately in a recent tweet, in which she said ‘there are fundamental common law rights (but) they have limitations.’
Importantly for the Chagossians however, it may be those limitations, which represent the (according to the current Common law precedents) hitherto irreplaceable elements of the HRA, that cost them their home, their community and their country.
Dinah Rose QC (the barrister behind The Guardian’s successful appeal for the release of Prince Charles’ advocacy correspondence) seems to evaluate the situation most accurately in a recent tweet, in which she said ‘there are fundamental common law rights (but) they have limitations.’
Importantly for the Chagossians however, it may be those limitations, which represent the (according to the current Common law precedents) hitherto irreplaceable elements of the HRA, that cost them their home, their community and their country.
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