The claimants, a human rights organisation and two Members of Parliament, sought judicial review of the decision of the defendant not to hold a public inquiry into allegations that the UK intelligence services had been complicit in the unlawful detention, mistreatment and rendition of individuals by other states in the years following the terrorist attack on New York in September 2001. The claimants contended, inter alia, that article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms imposed a positive obligation on states to conduct an effective independent investigation into allegations of torture and ill-treatment and that the steps taken by the Government had not justified abandoning a public inquiry. The defendant sought to rely on material which it was asserted could not be disclosed without damaging the interests of national security, and Special Advocates were appointed. The claimants contended that there were entitled to disclosure of that material on the basis that article 6(1) of the Convention applied to the claim for judicial review. In determining two preliminary issues the Divisional Court held that (1) article 6(1) of the Convention did not apply to the judicial review claim because it did not determine “civil rights and obligations”; and (2), even if article 6(1) did apply, the claimants were not entitled to disclosure of closed material in accordance with the standard set in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28; [2010] 2 AC 269. The claimant’s appealed. By a respondent’s notice, the defendant contended, inter alia, that the claimants were not “victims” within the meaning of article 34 of the Convention and section 7 of the Human rights Act 1998 so that they could not rely upon article 3 in the judicial review proceedings and that the claim would not involve the determination of a civil right within the meaning of article 6(1).
On the appeal —
Held, appeal dismissed. Convention rights were not free-floating entities which were available to and enforceable by anyone who disagreed with a decision of a public authority on the grounds that it breached, or might breach, somebody’s Convention rights. Convention rights had effect in the law of England and Wales to the extent provided for by the 1998 Act. Therefore, the starting point was not article 3, or article 6(1), but that Act. The claimants’ case was that the defendant breached section 6(1) of the 1998 Act in deciding not to hold a judicial inquiry, thereby failing to comply with the positive investigative obligation imposed by article 3. The effect of section 7(1) and (7) of the 1998 Act was that a person could bring a claim founded on a Convention right, and only had standing in an application for judicial review, “if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the [Strasbourg Court] in respect of that act”. The clear purpose of section 7 of the 1998 Act was to permit, and only to permit, a victim to litigate an alleged breach of Convention rights. It was only if the litigant was a victim that the Convention right in question could arguably be a “civil right” of his for the purposes of article 6(1). To recognise the claimants in the present case as victims of an alleged violation of the procedural obligation on article 3 of the Convention would mark a significant development of the case law of the European Court of Human Rights and, as such, was not a step that a domestic court should take. That said it was not considered likely that the Strasbourg court would recognise the claimants as victims of any violation of article 3, since to do so would introduce a right of private individuals and organisations to bring claims in the public interest, something that the court had set its face against save in very limited circumstances. It followed that the claimants were not the victims of any violation of article 3 for the purposes of article 34 of the Convention. Therefore, the effect of section 7(1) of the 1998 Act was that they could not bring a claim that the defendant had acted in a away which was made unlawful by section 6(1). Moreover, the effect of section 7(3) was that, in so far as the judicial review claim rested on such an allegation (by not complying with the investigative obligation imposed by article 3) the claimants did not have standing to bring that claim. Accordingly, the civil limb of article 6 of the Convention did not apply and the claimants were not entitled to disclosure of the closed material (paras 39, 47–49, 56).
Ben Jaffey QC, Jason Pobjoy and Natasha Simonsen (instructed by Birnberg Peirce) for the claimants.
Sir James Eadie QC, Ben Watson QC and James Stansfeld (instructed by Treasury Solicitor) for the defendant.