Form and Substance in Article 6 ECHR: Poshteh v Royal Borough of Kensington & Chelsea [2017] UKSC 36

Some of the contretemps between the UK Supreme Court and the European Court of Human Rights produce more heat than light. Article 6 of the European Convention on Human Rights has been a persistent source of discord for the last decade or so. The most recent exhibit is Poshteh v Royal Borough of Kensington & Chelsea [2017] UKSC 36. I will suggest in this post that a focus on the substantive concerns underpinning Article 6, rather than the form of Article 6, is a useful way of producing some much-needed light.

Article 6 provides, innocuously enough:

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.

Determining what falls within the phrase “civil rights and obligations” has proved to be a vexatious task. It might well be true, as the dissenting judges in Feldbrugge v The Netherlands (1986) 8 EHRR 425 argued, that Article 6 was never intended to apply to non-criminal relationships between the state and individuals; its rigorous safeguards were to apply only to disputes inter partes and penal procedures. But these judges were in dissent. Since Feldbrugge, the European Court of Human Rights has consistently held that “a personal, economic and individual right…flowing from specific rules laid down by the legislation in force” is a “civil right” within the meaning of Article 6 (Feldbrugge at para. 37: see also Salesi v Italy (1998) 26 EHRR 187).

As one can imagine, there has been significant debate about when an entitlement to some sort of administrative benefit flows “from specific rules” set out in statute. In particular, where the existence of or extent of an entitlement is contingent upon the exercise of administrative discretion or an evaluative judgement of some sort, it is not not immediately obvious that Article 6 is engaged, because the entitlement in question does not seem to “flow” from a set of statutory rules. I will suggest, however, that this formal analysis obscures the relevant issues and ought to be replaced by a substantive approach.

The Ali litigation is a good example of the problems that have arisen in delineating the scope of Article 6. The litigation cconerned s.193 of the Housing Act 1996, which imposes duties on local authorities in respect of homeless persons. At particular issue was s. 193(5):

The local housing authority shall cease to be subject to the duty under this section if the applicant, having been informed by the authority of the possible consequence of refusal and of his right to request a review of the suitability of the accommodation, refuses an offer of accommodation which the authority are satisfied is suitable for him and the authority notify him that they regard themselves as having discharged their duty under this section.

In Ali v Birmingham City Council [2010] UKSC 8, [2010] 2 AC 39, the UK Supreme Court held that decisions under s. 193(5) did not engage Article 6 because the claimants’ entitlements were “dependent upon a series of evaluative judgments by the provider as to whether the statutory criteria are satisfied and how the need for it ought to be met” (at para. 49). As had been said previously, “The whole scheme is shot through with discretions in which either the council’s duty is dependent upon it being “satisfied” of some state of affairs or can be discharged in various ways of its own choosing” (Runa Begum v Tower Hamlets London Borough Council [2003] 2 AC 430, at para. 67, per Lord Hoffmann). But the Strasbourg Court disagreed:

It is true that accommodation is a “benefit in kind” and that both the applicant’s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a “civil right”… [T]he “discretion” in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met…the Council was required to secure that accommodation was provided…In this regard, the Court agrees with Hale LJ in Adan v. Newham London Borough Council, in which she opined that the right to accommodation under section 193 “is more akin to a claim for social security benefits than it is a claim for social or other services, where the authorities have a greater degree of discretion and resource considerations may also be relevant” (Ali v United Kingdom (2016) 63 EHRR 20, at para. 59).

In Poshteh, however, the UK Supreme Court refused to depart from its previous decision in Ali: “It is appropriate that we should await a full consideration by a Grand Chamber before considering whether (and if so how) to modify our own position” (at para. 37, per Lord Carnwath).

It is unfortunate, in my view, that the back and forth between London and Strasbourg has been dominated by debates about form, in which the judges focus on conceptual questions such as “how much discretion is too much discretion?” An injection of substance would be helpful.

Early on, the Strasbourg Court made clear that the nature of the governing legislation and institution are not determinative: “Only the character of the right at issue is relevant" (Konig (28 June 1978, Series A no. 27), at para. 90). Indeed, in Konig, the Court was centrally concerned with substance rather than form:

Whether or not a right is to be regarded as civil ... must be determined by reference to the substantive content and effects of the right - and not its legal classification - under the domestic law of the State concerned. In the exercise of its supervisory functions, the Court must also take account of the object and purpose of the Convention and of the national legal systems of the other Contracting States (ibid. at para. 89).

If one looks to substance rather than form, one can better understand why the Strasbourg Court has insisted upon the application of Article 6 to rights that “flow” from statutory rules.

Article 6 is designed to ensure that decisions are taken by impartial and independent decision-makers. In general, the more rule-based a statutory scheme, the more important it will be for the decision-maker to be independent, that is, free from influence from her superiors, those in other administrative units or her political masters. As a matter of substance, one does not want extraneous considerations of policy intruding on the application of objective legal standards to proven facts (and note that even the application of objective standards might sometimes require evaluative judgements to be made). Where access to an entitlement or benefit is contingent only on proving a set of facts — for instance, that X contributed to a national insurance scheme for Y years — a decision-maker should not look to broader considerations of policy — X’s contribution to society, or the mounting costs of national insurance. Independence ensures that decision-makers cannot be put under pressure to have regard to broader considerations.

By contrast, where the operation of a statutory scheme involves the interpretation and application of vague standards by democratically accountable decision-makers, it might be perfectly reasonable to have regard to broader considerations. Ministerial decision-making in the planning area, which depends on the ability of a democratically elected politician to bring considerations of policy, economics and culture to bear on decisions, is a classic example. Here, independence from political influence would be a vice rather than a virtue, because it is quite proper for the final decisions to be infused by broader considerations (see the discussion in R (Alconbury) v Secretary of State for Environment, Transport and the Regions [2003] 2 AC 295, especially at paras. 48, 60, 159).

In short, when one takes “account of the object and purpose of the Convention” and views matters through the lens of substance rather than form, the Ali litigation has a rather different complexion. The relevant issue is not whether the Housing Act 1996 is “shot through with discretion”, as Lord Hoffmann had it, but whether the judgements to be made by housing officers involve the application of objective criteria to proven facts or require recourse to broader considerations of policy. It seems to me that it must be the former: it would be obviously inappropriate for housing officers to refuse to discharge their duties under the 1996 Act on the basis of concerns about the worthiness of applicants or the cost of providing accommodation. As the Strasbourg Court put it, “[T]he “discretion” in the present case had clearly defined limits: once the initial qualifying conditions under section 193(1) had been met…the Council was required to secure that accommodation was provided”. This is not an area in which one would want, or expect, housing officers’ judgements to be influenced, still less dictated, by their superiors or their political masters. If so, the UK Supreme Court has been wrong about the Housing Act 1996.

There is one final point to make about the “object and purpose” of the Convention. The stakes in the Article 6 debate in the UK are not especially high. Any decisions under the Housing Act 1996 that were tainted by the broader considerations I referenced above would presumably be ultra vires and could be quashed on judicial review. The ‘curative’ principle, whereby the exigencies of Article 6 can be satisfied by judicial review by an independent and impartial tribunal, will generally ensure that administrative decision-making in the UK is, viewed in the round, compliant with Article 6 (see, again, R (Alconbury) v Secretary of State for Environment, Transport and the Regions [2003] 2 AC 295, especially at paras. 49, 61-62, 122, 135 and 196-197).

But in other states that are signatories to the Convention, this may not be the case. There will not always be robust judicial review to quash decisions based on irrelevant considerations or taken to achieve improper purposes. If so, the “object and purpose” of the Convention will best be served by taking a large and liberal approach to the interpretation of “civil rights and obligations”. Annoyance felt by British judges might be a price worth paying.

If the Strasbourg Court brought these considerations to the fore more often, perhaps the quality of its dialogue with the UK Supreme Court would improve. Regardless, however, if the UK Supreme Court were to focus on substance rather than form, its own understanding of the Strasbourg jurisprudence would be enhanced and British judges may even begin to see the benefits of a robust approach to Article 6.

This content has been updated on August 1, 2017 at 12:50.