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The United Kingdom was an occupying power in Iraq from May 2003, and a mandatory power acting in support of the Iraqi government from June 2004 until her withdrawal in 2011. She was a mandatory power in Afghanistan between December 2001 and her withdrawal early in 2015. In both countries, the United Kingdoms international status depended throughout on successive resolutions of the United Nations Security Council. Substantial numbers of British troops were engaged in both theatres as part of separate multi national forces, primarily in southern Iraq and in the Afghan province of Helmand. They were required to deal with exceptional levels of violence by organised armed groups. In the course of their operations, prisoners were taken and detained in British military facilities for varying periods of time. These two appeals arise out of actions for damages brought against the United Kingdom government by detainees, alleging unlawful detention and maltreatment by British forces. They are two of several hundred actions in which similar claims are made. In both cases, the claim is based in part on article 5(1) of the European Convention on Human Rights, which provides that no one shall be deprived of his liberty except in six specified cases and in accordance with a procedure prescribed by law. They also rely on article 5(4), which requires that the detainee should be entitled to take proceedings by which the lawfulness of his detention may be tested. The appeals have been heard together with a view to resolving one of the more controversial questions raised by such actions, namely the extent to which article 5 applies to military detention in the territory of a non Convention state in the course of operations in support of its government pursuant to mandates of the United Nations Security Council. Abd Ali Hameed Ali Al Waheed was captured by HM forces at his wifes home in Basrah on 11 February 2007 during a search. The Secretary of State contends that components for improvised explosive devices (IEDs) and explosive charges and various other weaponry were found on the premises. He was held at a British army detention centre for six and a half weeks. He was then released after an internal review had concluded that a successful prosecution was unlikely, as there was no evidence that he had personally handled the explosives. At a pre trial review before Leggatt J, it was common ground that so far as Mr Al Waheeds claim was based on detention in breach of article 5(1) of the Convention, the judge and the Court of Appeal would be bound to dismiss it by the decision of the House of Lords in R (Al Jedda) v Secretary of State for Defence [2008] AC 332. The Appellate Committee had held in that case that article 5(1) was displaced by the United Nations Security Council Resolutions authorising military operations in Iraq. The judge was therefore invited to dismiss the claim under article 5(1) by consent and grant a certificate for a leap frog appeal directly to the Supreme Court. A limited number of facts have been agreed, but there are no findings. Serdar Mohammed, whom I shall refer to as SM, was captured by HM forces in Afghanistan on 7 April 2010. The Secretary of State contends that he was captured in the course of a planned operation involving a firefight lasting ten hours in which a number of men were killed or wounded, and that he was seen to flee from the site, discarding a rocket propelled grenade launcher and ammunition as he went. He was brought into Camp Bastion at Lashkar Gah, which was the joint operating base of the British army in Helmand. Intelligence is said to have identified him shortly afterwards as a senior Taliban commander who had been involved in the large scale production of IEDs and was believed to have commanded a Taliban training camp in 2009. SM was detained for a period of three and a half months in British military holding facilities until 25 July 2010, when he was transferred to the Afghan authorities. He was subsequently convicted by the Afghan courts for offences relating to the insurgency and sentenced to ten years imprisonment. In his case, the procedural history is more complicated. Leggatt J directed three preliminary issues to be determined on the assumption that the circumstances of SMs capture and detention, as pleaded in the Secretary of States defence, were true. One of the preliminary issues concerned the relationship between article 5 of the Convention and the international law governing detention in the course of armed conflict. In the result, the judge held that in Afghanistan HM forces had no power, either under the relevant Security Council Resolutions or under customary international law, to detain prisoners for any longer than was required to hand them over to the Afghan authorities, and then for no more than 96 hours. He also found that they had no greater power under the domestic law of Afghanistan. On that footing, he considered that in detaining SM the United Kingdom was in breach of article 5(1) and (4) of the Convention: see [2014] EWHC 1369 (QB). The Court of Appeal, although differing from some aspects of the judges reasoning, reached the same conclusion: see [2016] 2 WLR 247. These decisions, and the reasoning behind them, have significant implications for the Ministry of Defence and for British troops deployed to Iraq or Afghanistan and indeed other theatres to which they may be deployed under UN mandates. The Secretary of State formulated eight grounds on which he sought leave to appeal to the Supreme Court in Serdar Mohammed. He received permission to appeal, either from the Court of Appeal or from the Supreme Court on six of them, the question of permission for the other two being deferred until the hearing. As a result of directions given in the course of the appeals, the sole ground of appeal before us at the opening of the hearing was the Secretary of States ground 4. In the statement of facts and issues in Serdar Mohammed, the parties agreed that ground 4 raised the following issues: (1) Whether HM armed forces had legal power to detain SM in excess of 96 hours pursuant to: the relevant resolutions of the United Nations International Humanitarian Law applicable in a (a) Security Council; and/or (b) non international armed conflict. If so, whether article 5(1) of the ECHR should be read (2) so as to accommodate, as permissible grounds, detention pursuant to such a power to detain under a UN Security Council Resolution and/or International Humanitarian Law. In Al Waheed, the parties are agreed that the same issues arise, except that the question is whether HM armed forces had power to detain Mr Al Waheed at all, there being no separate issue relating to the first 96 hours. In the course of the hearing the parties were invited to make written submissions on two further questions arising in SMs appeal about the scope of article 5, which had been argued before Leggatt J and the Court of Appeal. This was because it was considered to be unsatisfactory to examine the Secretary of States ground 4 without regard to them. The additional questions substantially corresponded to the Secretary of States grounds 5 and 6. They were: (3) Whether SMs detention was compatible with article 5(1) on the basis that it fell within paragraph (c) of article 5(1) of the Human Rights Convention (detention for the purpose of bringing a suspect before a competent judicial authority) or article 5(1)(f) (detention pending extradition); and (4) Whether the circumstances of his detention were compatible with article 5(4) of the Human Rights Convention (if necessary, as modified). These are complex appeals raising distinct issues, which were argued in stages. They are also related to other appeals arising out of military operations in Iraq and Afghanistan which were before the court at the same time. For these reasons the argument has extended over an unusually long period, rather more than a year. The retirement of Lord Toulson in July 2016 meant that he did not sit on the oral argument on the procedural requirements of articles 5(1) and 5(4) of the Convention, and has been concerned only with the other issues. Lord Hodge, who sat for the first time on these appeals in October 2016 has been concerned only with those procedural issues. International and Non International Armed Conflict International humanitarian law is the modern name for what used to be called the law of war and is still commonly called the law of armed conflict. It is a body of international law based on treaty and custom, which seeks to limit for humanitarian reasons the effects of armed conflict. International humanitarian law distinguishes between international and non international armed conflict. An international armed conflict is an armed conflict between states. A non international armed conflict is an armed conflict between one or more states on the one hand and non state actors on the other. In theory, it is the difference between an armed conflict of juridical equals and an armed conflict conducted by a lawfully constituted authority against organised rebels or criminals. The distinction is an ancient one. It dates back at least as far as Grotius (De Jure Belli ac Pacis I.4, III.6.27), who limited certain belligerent rights to public wars, on the ground that the rights of participants in civil wars were governed by municipal law administered by the municipal judge. But the crude distinction proposed by Grotius was never an adequate tool for dealing with the complex position of non state actors. As Vattel pointed out a century later (Droit des Gens, III.18.293), civil wars break the bonds of society, leaving the parties without a common judge and in the same practical position as two nations. Vattel made this point in support of his argument that once a civil war achieved a level of intensity on a par with an interstate war, the humanitarian customs of war should be observed by both sides. But ever since his day, there has been a tension between the desire of states to civilise the conduct of war by extending humanitarian rules to all armed conflicts, and their desire to treat their internal enemies as rebels and criminals rather than belligerents. International humanitarian law treats the parties to international armed conflicts as juridically equal and their rights and obligations as reciprocal. It proceeds on the basis that in such a conflict members of the armed forces of a state are reciprocally entitled to combatant immunity. They commit no offence by merely participating in the armed conflict, but only by committing war crimes proscribed by international law. Their detention is authorised on the footing that it is a purely administrative measure with no penal purpose, and must terminate when the armed conflict ends. However, notwithstanding the persistent advocacy of the International Committee of the Red Cross in favour of applying the same rules under both regimes, states have generally been reluctant to accept that a non international armed conflict can be reciprocal in the same way as international armed conflicts. Their concern is that unless a special regime is devised for such conflicts, the corollary would be a recognition of the juridical equality of the participants and the immunity of non state actors. None the less, it is now accepted that the law of armed conflict cannot be confined to wars waged between states. A non international armed conflict is an armed conflict for the purposes of international humanitarian law, albeit that it raises more difficult problems of definition and classification than an international armed conflict. The leading modern authorities are the decisions of the International Criminal Tribunal for Yugoslavia, whose jurisdiction depends on the existence of an armed conflict. They identify non international armed conflicts by reference to their duration, their intensity and the degree of organisation of the non state actors engaged. In its widely cited decision in Prosecutor v Duko Tadi (Jurisdiction of the Tribunal) ICTY Case No IT 94 1 AR72 (2 October 1995), the Tribunal held (para 70) that an armed conflict existed whenever there is a resort to armed force between states or protracted armed violence between governmental authorities and organised armed groups or between such groups within a state, provided that it exceeds the intensity requirements applicable to both international and internal armed conflicts. The intensity requirements were considered in greater detail in Prosecutor v Ramush Haradinaj ICTY Case No IT 04 84 T (3 April 2008). Indicative factors included (para 49): intensity of the number, duration and individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict. In short, the test is whether the operations conducted by non state actors are characteristic of those conducted by the armed forces of the state, as opposed to its police force. It is common ground that British troops in Afghanistan were engaged in an armed conflict. The main distinction between international and non international armed conflict lies in the more limited provision made for the latter in the main relevant treaties. Although the earliest Geneva Convention was adopted in 1864, no attempt was made to provide by treaty for non international armed conflicts until the Geneva Conventions of 1949. Article 21 of the Third Geneva Convention of 1949 in terms confers on states a right to detain prisoners of war which they had long enjoyed as a matter of customary international law, and comprehensively regulates the conditions of their detention. Article 78 of the Fourth Geneva Convention confers on an occupying power a right to detain civilians in cases where this is considered necessary for imperative reasons of security. But these provisions apply only in international armed conflicts: see common article 2. The International Committee of the Red Cross had proposed that the Conventions of 1949 should apply in their entirety in international and non international armed conflicts alike. But this proposal was rejected by most states. Instead, it was agreed to confer a more limited measure of protection by common article 3, which unlike the rest of the Conventions applied in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties. Common article 3 does not in terms confer a right of detention. But it provides for the humane and non discriminatory treatment of persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention or any other cause. It specifically prohibits the practice against such persons of violence, killing, mutilation, cruelty, torture, hostage taking and outrages against their personal dignity, as well as the infliction of penal sentences upon them otherwise than by the judgment of a regularly constituted court affording all the judicial guarantees which are recognised as indispensable by civilised peoples. Further provision for the treatment of prisoners in non international armed conflicts is made by Protocol II, adopted in 1977 in cases where dissident armed forces or other armed groups control part of the territory of a state so as to enable them to carry out sustained and concerted military operations and to implement this Protocol: article 1. In those circumstances, the existence of a legal right in international law to detain members of opposing armed forces in a non international armed conflict must depend on (i) customary international law, and/or (ii) the authority of the Security Council of United Nations. To establish the existence of a rule of customary law, two things are required. First, there must be a uniform, or virtually uniform practice of states conforming to the proposed rule, reflected in their acts and/or their public statements; and, secondly, the practice must be followed on the footing that it is required as a matter of law (opinio juris). It follows that although the decisions of domestic courts may be evidence of state practice or of a developing legal consensus, they cannot themselves establish or develop a rule of customary international law: see Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270 at para 63 (Lord Hoffmann). Lord Reed has dealt fully in his judgment with the question whether the detention of members of the opposing armed forces is sanctioned by customary international law in a non international armed conflict. He concludes that as matters stand it is not, and I am inclined to agree with him about that. But for reasons which will become clear, I regard it as unnecessary to express a concluded view on the point. It is, however, right to make certain observations about it which bear on the construction of the relevant Security Council Resolutions. The first is that, whether or not it represents a legal right, detention is inherent in virtually all military operations of a sufficient duration and intensity to qualify as armed conflicts, whether or not they are international. As the International Committee of the Red Cross has recently observed (Statement, 27 April 2015), deprivation of liberty is a reality of war. Whether detention is carried out by states or by non state armed groups, whether it is imposed on military personnel or on civilians, it is certain to occur in the vast majority of armed conflicts. The same view was expressed by the Supreme Court of the United States in holding, in Hamdi v Rumsfeld 542 US 507 (2004), at p 10, that a power of detention was implicitly conferred by a statute authorising the use of all necessary and appropriate force: Detention of individuals falling into the limited category we are considering [the Taliban and Al Qaeda], for the duration of the particular conflict in which they were captured, is so fundamental and accepted an incident to war as to be an exercise of the necessary and appropriate force Congress has authorized the President to use. It has been the practice of states to capture and detain members of the opposing armed forces throughout the recorded history of war. That includes its recent history, which has for the most part been a history of non international armed conflicts. The purpose of any state participating in an armed conflict is to overcome the armed forces of the other side. At any time when the opposing forces are in the field, this necessarily involves disabling them from fighting by killing them or putting them hors de combat. The availability of detention as an option mitigates the lethal character of armed conflict and is fundamental to any attempt to introduce humanitarian principles into the conduct of war. In many cases, the detention of an enemy fighter is a direct alternative to killing him, and may be an obligation, for example where he surrenders or can be physically overpowered. As the majority of the US Supreme Court observed in Hamdi, at p 11, citing the earlier decision in In re Territo 156 F 2d 142, 145, (1946) The object of capture is to prevent the captured individual from serving the enemy. He is disarmed and from then on must be removed as completely as practicable from the front, treated humanely, and in time exchanged, repatriated, or otherwise released. Second, if there is nevertheless an insufficient consensus among states upon the legal right of participants in armed conflicts to detain under customary international law, it is not because of differences about the existence of a right of detention in principle. At their most recent international conference (Geneva, 8 10 December 2015), the constituent associations of the Red Cross and Red Crescent approved a resolution by consensus which recited that states had the power to detain in all forms of armed conflict and proposing measures to strengthen the humanitarian protection available to detainees. The lack of international consensus really reflects differences among states about the appropriate limits of the right of detention, the conditions of its exercise and the extent to which special provision should be made for non state actors. There is no doubt that practice in international and non international armed conflicts is converging, and it is likely that this will eventually be reflected in opinio juris. It is, however, clear from the materials before us that a significant number of states participating in non international armed conflicts, including the United Kingdom, do not yet regard detention as being authorised in such conflicts by customary international law. Third, if there were a right of detention on whatever legal basis, there are various conditions which might be imposed for its exercise. But if the right were to have any reality, it would at least have to apply in a case where detention was necessary for imperative reasons of security, the test which article 78 of the Fourth Geneva Convention (1949) applies to the right of an Occupying Power to detain civilians. This is the narrowest available test, and the one which has been proposed by the International Committee of the Red Cross. On these appeals, the Secretary of State does not contend for anything less. The Security Council Resolutions At the time of Mr Al Waheeds detention, the relevant Security Council Resolution was 1723 (2006). This extended the authority conferred by Resolution 1546 (2004), which had marked the point at which Britain ceased to be an occupying power in Iraq and became a mandatory power acting in support of the newly formed indigenous government of Iraq. Articles 9 and 10 of Resolution 1546 (2004) It is convenient to start with the position in Iraq. reaffirmed the authorisation conferred by earlier resolutions for the multinational force to operate in Iraq, and conferred on it the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the multinational force and setting out its tasks, including by preventing and deterring terrorism, so that, inter alia, the United Nations can fulfil its role in assisting the Iraqi people as outlined in para 7 above and the Iraqi people can implement freely and without intimidation the timetable and programme for the political process and benefit from reconstruction and rehabilitation activities. The attached letters included a letter of 5 June 2004 from the US Secretary of State, which expressed the willingness of the United States to deploy forces to maintain internal security in Iraq. Their activities, he said include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraqs political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security R (Al Jedda) v Secretary of State for Defence [2008] AC 332 arose out of the detention of the applicant by HM forces in Iraq in October 2004. Article 103 of the UN Charter provides that the obligations of members under the Charter should prevail over their obligations under any other international agreement. The main issue on the appeal was whether that meant that the Security Council Resolutions authorising military operations in Iraq displaced article 5 of the European Convention on Human Rights. This depended on whether detention in the course of those operations was an obligation, or merely a power. The House of Lords held that Resolution 1546 both authorised and required the exercise of a power of detention where this was necessary for imperative reasons of security. Lord Bingham, with whom the rest of the House agreed, gave three reasons for this. The first was that British forces occupying Iraq before Resolution 1546 came into effect had been authorised to intern persons for imperative reasons of security. This was because detention in those circumstances was authorised by the Hague Regulations (1907), and if the occupying power considers it necessary to detain a person who is judged to be a serious threat to the safety of the public or the occupying power there must be an obligation to detain such person. (para 32) Resolution 1546 was intended to continue the pre existing security regime, not to change it. Lord Binghams second reason was that although the resolution was couched in permissive terms, this merely reflected the fact that the United Nations can invite but not require states to contribute forces for purposes such as the security of Iraq. Applying a purposive approach, and adopting the view of a substantial body of academic writing, he considered the exercise of that authority to be an obligation for those who accede to that invitation. The third reason was that those states which contributed forces became bound by articles 2 and 25 of the UN Charter to carry out the decisions of the Security Council so as to achieve its objectives. They were therefore bound to exercise the power of detention where this was necessary for imperative reasons of security. The decision of the Appellate Committee in Al Jedda was rejected by the European Court of Human Rights when the matter came before them: Al Jedda v United Kingdom (2011) 53 EHRR 23. I shall return to the implications of this decision below. But it was rejected only insofar as it treated the exercise of the power of detention as an obligation. It was not suggested that the exercise of the power of detention was not even authorised by the Security Council Resolution. Turning to the position in Afghanistan, Security Council Resolution 1386 (2001) authorised the establishment of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas so that the Afghan Interim Authority can operate in a secure environment. It called on the International Security Assistance Force (ISAF) to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate, and on member states to contribute personnel and resources to ISAF. Article 3 authorised member states participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate. The mandate was subsequently extended by Resolution 1510 (2003) to the provision of security assistance for reconstruction and humanitarian efforts throughout Afghanistan. At the time of SMs detention, the most recent Security Council Resolution was 1890 (2009), which extended the mandate by twelve months and reaffirmed its earlier resolutions. Resolution 1890 contained a number of recitals which throw light on the nature of ISAFs role as it was then perceived to be and on the dangerous character of its mission. The recitals recognised that the responsibility for providing security and law and order resided with the government of Afghanistan, and that the mandate of ISAF was to assist the Afghan government to improve the security situation. What was meant by the security situation appears from a subsequent recital expressing the Security Councils strong concern about the security situation in Afghanistan, in particular the increased violent and terrorist activities by the Taliban, Al Qaida, illegally armed groups, criminals and those involved in the narcotics trade, and the increasingly strong links between terrorism activities and illicit drugs, resulting in threats to the local population, including children, national security forces and international military and civilian personnel. The recitals go on to express concern about the high level of civilian casualties, and the harmful consequences of violent and terrorist activities by the Taliban, Al Qaida and other extremist groups on the capacity of the Afghan Government to guarantee the rule of law, to provide security and basic services to the Afghan people, and to ensure the full enjoyment of their human rights and fundamental freedoms. They condemned in the strongest terms all attacks, including Improvised Explosive Device (IED) attacks, suicide attacks and abductions, targeting civilians and Afghan and international forces and their deleterious effect on the stabilization, reconstruction and development efforts in Afghanistan, and condemning further the use by the Taliban, Al Qaida and other extremist groups of civilians as human shields. They recorded the Security Councils support for ISAFs work in improving the security situation in Afghanistan in the face of these threats, and welcomed ISAFs intention to undertake continued enhanced efforts in this regard including the increased focus on protecting the Afghan population as a central element of the mission, and noting the importance of conducting continuous reviews of tactics and procedures and after action reviews and investigations in cooperation with the Afghan Government in cases where civilian casualties have occurred and when the Afghan Government finds these joint investigations appropriate. Under article 24 of the United Nations Charter, the Security Council has primary responsibility for the maintenance of international peace and security, and under article 25 the member states of the UN have a duty to carry out its decisions in accordance with the Charter. The basis of the Security Council Resolutions in Iraq and Afghanistan was Chapter VII (Action with respect to Threats to the Peace, Breaches of the Peace and Acts of Aggression). This confers extensive powers on the Security Council to deploy force on its own account or call on its members to do so, and imposes on members corresponding duties to support these operations. Measures taken under Chapter VII of the United Nations Charter are a cornerstone of the international legal order. They are taken under a unique scheme of international law whose binding force is now well established. In Legal Consequences for States of the Continued Presence of South Africa in Namibia, Advisory Opinion [1971] ICJ Rep 16, paras 115 116, the International Court of Justice confirmed that these provisions are binding not only by treaty on members of the United Nations but as a matter of customary international law on the small number of states which are not members. In Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, at para 115, Lord Steyn described them as embodying a principle of international public policy. At para 114 he summarised their status in the following terms: Not only has the Charter of the United Nations been adhered to by virtually all states, that is 189 states, but even the few remaining non members, have acquiesced in the principles of the Charter: American Law Institute, Restatement of the Law, The Foreign Relations of Law of the United States, 3d (1987), Section 102, comment (h). It is generally accepted that the principles of the United Nations Charter prohibiting the use of force have the character of jus cogens, ie is part of peremptory public international law, permitting no derogation: see Restatement, p 28, para 102, comment (k). Security Council Resolutions under Chapter VII of the Charter, and therefore the resolutions in question here, were binding in law on all members including the United Kingdom and Iraq It would have been contrary to the international obligations of the United Kingdom were its courts to adopt an approach contrary to its obligations under the United Nations Charter and under the relevant Security Council Resolutions. These considerations are recognised in the jurisprudence of the European Court of Human Rights in the same way as they are by other international courts and by the domestic courts of England. In Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE10 at paras 148 149, the Strasbourg Court declined to review the compatibility of the acts of French, German and Norwegian troops operating under direct United Nations command. In doing so it drew attention to the significance of the UNs functions in conducting peacekeeping operations or authorising member states to conduct such operations, and to the special legal framework within which these functions were performed. 148. the primary objective of the UN is the maintenance of international peace and security. While it is equally clear that ensuring respect for human rights represents an important contribution to achieving international peace (see the Preamble to the Convention), the fact remains that the UNSC has primary responsibility, as well as extensive means under Chapter VII, to fulfil this objective, notably through the use of coercive measures. The responsibility of the UNSC in this respect is unique and has evolved as a counterpart to the prohibition, now customary international law, on the unilateral use of force. 149. Since operations established by UNSC Resolutions under Chapter VII of the UN Charter are fundamental to the mission of the UN to secure international peace and security and since they rely for their effectiveness on support from member states, the Convention cannot be interpreted in a manner which would subject the acts and omissions of contracting parties which are covered by UNSC Resolutions and occur prior to or in the course of such missions, to the scrutiny of the Court. To do so would be to interfere with the fulfilment of the UNs key mission in this field including, as argued by certain parties, with the effective conduct of its operations. It would also be tantamount to imposing conditions on the implementation of a UNSC Resolution which were not provided for in the text of the Resolution itself. This reasoning equally applies to voluntary acts of the respondent States such as the vote of a permanent member of the UNSC in favour of the relevant Chapter VII Resolution and the contribution of troops to the security mission: such acts may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim. A Security Council Resolution adopted in the exercise of these responsibilities is not itself a treaty, nor is it legislation. But it may constitute an authority binding in international law to do that which would otherwise be illegal in international law. Sir Michael Wood, a former Principal Legal Adviser to the Foreign and Commonwealth Office, has made the point that Security Council Resolutions are not usually drafted by the Secretariat, but within the various national missions. For this reason they are not always clear or consistent either in themselves or between one resolution and another: The Interpretation of Security Council Resolutions, Max Planck Yearbook of United Nations Law [1998] 73. The meaning of a Security Council Resolution is generally sensitive to the context in which it is made. In its advisory opinion of June 1971 on the Legal consequences for states of the continued presence of South Africa in Namibia (South West Africa) notwithstanding Security Council Resolution 276 (1970) [1971] ICJ Rep 16, 53, para 114, the International Court of Justice observed: The language of a resolution of the Security Council should be carefully analysed before a conclusion can be made as to its binding effect. In view of the nature of the powers under article 25 [which requires member states to carry out decisions of the Security Council], the question whether they have been in fact exercised is to be determined in each case, having regard to the terms of the resolution to be interpreted, the discussions leading to it, the Charter provisions invoked and, in general, all circumstances that might assist in determining the legal consequences of the resolution of the Security Council. The expression all necessary measures, as used in a Security Council Resolution has, however, acquired a meaning sanctioned by established practice. It authorises the use of the full range of measures open to the United Nations itself for the purpose of maintaining or restoring international peace and security under Chapter VII of the Charter. This will normally involve the use of force under article 42, but subject to the requirement that the measures should be necessary. What is necessary depends primarily on the specific mandate, on the general context and on any conditions or limitations laid down in the resolution. In Gill & Flecks valuable Handbook of the International Law of Military Operations (2010), at para 25.03, the opinion is expressed that although Security Council Resolutions do not as a rule authorise operational detention in so many words, a mandate to use all necessary means to achieve the assigned tasks logically encompasses operational detention as one such means, if indeed necessary. A similar approach was adopted by the European Court of Human Rights in Behrami v France; Saramati v France, Germany and Norway, supra. In that case, the analysis of the legal responsibility of UN forces proceeded on the basis, accepted by the Court, that Security Council Resolution 1244 (1999), authorising military operations in Kosovo, implicitly authorised detention: see paras 124, 127. There was no express authority to detain. But it was deduced from the authority conferred on troop contributing nations by article 7 to take all necessary means to fulfil certain responsibilities specified in article 9, including supporting the work of the international civil presence. In my opinion, that inference was inevitable, just as it is in relation to the corresponding operations in Iraq and Afghanistan. This point is not dependent on the categorisation of the relevant armed conflict as international or non international. In my opinion, it is clear that the authorisation given to troop contributing states in Afghanistan by Resolution 1386 (2001) to use all necessary measures included the detention of members of the opposing armed forces when this was required for imperative reasons of security. The nature of the mission, apparent from the context recited in Resolution 1890 (2009), involved operations of two kinds. The first entailed operations ancillary to the ordinary law enforcement processes of the Afghan government, essentially heavy police work. The second entailed armed combat with the forces of an organised insurrection, with a view to defending ISAF and its contingent forces, protecting the civilian population against the continual threat of violence, and creating a secure environment for the reconstruction of the Afghan state and the country generally. The distinction between these two functions broadly corresponds to the distinction made by UK military doctrine between (i) military internment authorised either by the host states municipal law or by United Nations Security Council Resolutions, and (ii) criminal detention in support of the national police force: see Joint Doctrine Publication 1 10 (Prisoners of War, Internees, Detainees, April 2006), at para 113. In performing functions in the former category they must be authorised to employ methods appropriate to military operations. In short, if detention is imperative for reasons of security, it is must be necessary for the performance of the mission. Leggatt J accepted this up to a point, but considered that it could authorise detention only for a very short period. His reason was that once a prisoner had been captured and disarmed, he no longer represented an imminent threat to the security of HM forces or the civilian population. His continued detention thereafter could not therefore be justified under the Security Council Resolutions. This seems a surprising conclusion and it was rejected, rightly to my mind, by the Court of Appeal. If a person is a sufficient threat to HM forces or the civilian population to warrant his detention in the first place, he is likely to present a sufficient threat to warrant his continued detention after he has been disarmed. Unless UK forces are in a position to transfer him for detention to the civil authorities for possible prosecution, the only alternative is to release him and allow him to present the same threat to HM forces or the civilian population. This necessarily undermines the mission which constitutes the whole purpose of the armys operations. I conclude that in both Iraq and Afghanistan, the relevant Security Council Resolutions in principle constituted authority in international law for the detention of members of the opposing armed forces whenever it was required for imperative reasons of security. It was not limited to detention pending the delivery of the detainee to the Afghan authorities. I say that this was the position in principle, because that conclusion is subject to (i) in the case of SM the question whether that authority was limited to 96 hours by virtue of the detention policy of ISAF, and (ii) in the case of both SM and Mr Al Waheed, the question whether the authority conferred by the relevant Security Council Resolutions was limited by article 5 of the European Convention on Human Rights. The alleged limitation of detention to 96 hours in Afghanistan This issue arises from differences between the detention policy applied generally by ISAF and that operated by United Kingdom forces and the forces of certain other troop contributing nations in their own areas of operation. Both Leggatt J and the Court of Appeal concluded that although detention was in principle authorised by the Security Council Resolutions for imperative reasons of security, in Afghanistan the duration of that detention was limited to 96 hours by ISAFs detention policy. In order to address this question, it is necessary to say something about the relationship between ISAF and the command structure of British forces in Afghanistan. Overall command of ISAF was exercised by its commander in Afghanistan who was himself under the command of NATO at the relevant time. ISAFs detention policy was contained in its Standard Operating Procedures for detention (SOP 362). Paras 4 8 of SOP 362 provided that the only grounds on which a person might be detained were that detention was necessary for ISAF force protection, self defence of ISAF or its personnel or the accomplishment of the ISAF mission. Detention was limited to 96 hours, after which the person must either be released or transferred to the Afghan authorities. That period could be extended on the specific authority of the ISAF commander or his delegate, or in a case where there were logistical difficulties about effecting his release or transfer within the 96 hour period. Across Afghanistan there was a regional command structure with distinct task forces. Most British troops, including those who detained SM, were deployed in Helmand as part of Task Force Helmand. They operated there under their own national chain of command. British commanders in the field reported up their chain of command to UK Permanent Joint Headquarters, which in turn reported to the Ministry of Defence. The judge found that the conduct of operations in Afghanistan, including detention policy, was regarded as United Kingdom sovereign business. He described the relationship between the UK Detention Authority and the ISAF chain of command as one of liaison and coordination only. The British position, summarised in a military assessment report of September 2006, was that the United Kingdom was responsible for complying with its domestic and international legal obligations and that this required that responsibility for detention should rest with British officials. The judge found (para 181) that ISAF headquarters tacitly accepted this, and that thereafter detention decisions continued to be taken by British officials without involving ISAF. It was essentially for this reason that the judge and the Court of Appeal found that the United Kingdom and not the United Nations was responsible for SMs detention, a conclusion which is no longer challenged. It is clear from the recitals in the successive Resolutions of the Security Council, culminating in Resolution 1890 (2009), that the level of violence increased over time and that the threat to the force and the civilian population from suicide attacks, improvised explosive devices and other extreme methods had become very serious by 2009. The evidence is that Helmand was one of the most difficult provinces. In these circumstances, the United Kingdom government became concerned that the 96 hour limit was unsatisfactory, primarily because in some cases it did not allow long enough for the prisoner to be interrogated with a view to acquiring valuable intelligence which was judged essential for mission accomplishment. This was unsatisfactory to the main detaining nations (identified as the United States, the United Kingdom, Canada and the Netherlands), but it was considered that agreement to a change would not be obtained from other detaining nations or from non detaining nations. For these reasons, the United Kingdom decided in November 2009 to adopt its own detention policy. The UK policy was announced in Parliament on 9 November 2009: see Hansard (HL (Written Statements)), 9 November 2009, cols WS 31 32). The minister recorded that under ISAF guidelines, detainees were either transferred to the Afghan authorities within 96 hours for potential prosecution, or released. He said that in the majority of cases, UK forces will operate in this manner. However, in the light of the evolving threat to our forces, they would detain for longer periods those prisoners who can yield vital intelligence that would help protect our forces and the local population potentially saving lives, particularly when detainees are suspected of holding information on the placement of improvised explosive devices. Given the ongoing threat faced by our forces and the local Afghan population, this information is critical, and in some cases 96 hours will not be long enough to gain that information from the detainees. Indeed, many insurgents are aware of the 96 hours policy and simply say nothing for that entire period. In these circumstances the Government have concluded that Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access. Each case will be thoroughly scrutinised against the relevant legal and policy considerations; we will do this only where it is legal to do so and when it is necessary to support the operation and protect our troops. The new policy was notified to NATO, which made no objection. The judge found that it was also accepted by ISAF headquarters. The detention policy applied by HM forces in Afghanistan was contained in UK Standard Operating Instructions (SOI) J3 9 (Stop, Search and Detention Operations in the Herrick JOA), issued on the authority of UK Permanent Joint Headquarters. It was originally issued in 2006. At the time of SMs capture, the version in force was Amendment 1, issued on 6 November 2009. This was replaced on 10 April 2010, three days after SMs capture, by Amendment 2, which was issued to forces in the field two days later on 12 April. Since Amendment 2 was in force for substantially the whole of the period when the judge found SMs detention to have been unlawful, I shall refer throughout to this version. SOI J3 9 authorised British troops to conduct stops, search, detention and questioning procedures in accordance with [Security Council Resolutions] for reasons of force protection, mission accomplishment and self defence. The introduction sets out in general terms the principles governing detention policy. It provided: 6. Detention Criteria. UK Forces are authorised to conduct stop, search, detention and question procedures in accordance with Reference A for reasons of Force Protection, Mission Accomplishment and Self Defence. ISAF authorises detention for up to a maximum of 96 hours following the point of detention 7. Post detention requirements. Within 96 hours detainees will in most cases be either handed over to the Afghan Authorities in accordance with [the UK/Afghan Memorandum of Understanding] or released. Detention and evidence gathering processes must be managed as a capability to ensure that they support the collection of tactical intelligence and assist the Afghan criminal justice system in achieving lawful convictions. In almost all cases, Afghan Authorities in this context refers to the National Directorate of Security (NDS) and it is to the NDS that transfers will normally be made Detainees should only ever be detained beyond 96 hours in exceptional circumstances as follows: a. On medical or logistic grounds, with HQ ISAF authorisation (and ministerial authority where appropriate) b. With PJHQ and ministerial authority Part I of SOI J3 9 dealt with the initial capture of a detainee. It provided: 8. As in the case of stop and search, a person must only be detained if it is deemed necessary to do so. If items found during the search of the individual or any other factors indicate that he may be a threat to mission accomplishment, the call sign or wider force protection, he should be detained. If items found relate purely to criminal conduct and do not threaten the accomplishment of the mission, there are no grounds for UK FE to detain. In such circumstances the individual should be released and his details passed to the ANP Force protection must always be the primary concern in such situations. 9. Decision to Detain. UK FE can detain persons only if: The person is a threat to force protection; and/or to mission threat a. b. The person is a accomplishment; and/or c. It is necessary for reasons of self defence. The view of the courts below was, in effect, that the United Kingdom had no power under the Security Council resolutions to adopt its own detention policy so far as that policy purported to authorise detention for longer than was permitted by ISAFs practice, even in the exceptional circumstances envisaged in SOI J3 9. This was because they considered that the Security Council Resolutions conferred the authority to take all necessary measures on ISAF and not on troop contributing nations. It followed that although British forces had their own chain of command leading ultimately to ministers in London, compliance with ISAFs detention policy was a condition of any authority to detain conferred by the Security Council Resolutions. In my opinion they were mistaken about this. The Security Council Resolution has to be interpreted in the light of the realities of forming a multinational force and deploying it in a situation of armed conflict. ISAF is simply the expression used in the Resolutions to describe the multinational force and the central organisation charged with co ordinating the operations of its national components (liaison and co ordination, to use the judges phrase). Resolution 1386 (2001) provides for the creation of that force, but article 3 (quoted above) expressly confers authority to take all necessary measures on the member states participating in it. Both practically and legally, the British government remained responsible for the safety of its forces in Afghanistan and the proper performance of their functions, as the United States Supreme Court has recognised in the case of American forces participating in multinational forces under United Nations auspices: Munaf v Geren (2008) 533 US 674. ISAF was not authorised, nor did it purport to serve as the delegate of the Security Council for the purpose of determining what measures should prove necessary. It follows that the United Kingdom was entitled to adopt its own detention policy, provided that that policy was consistent with the authority conferred by the relevant Security Council Resolutions, ie provided that it did not purport to authorise detention in circumstances where it was not necessary for imperative reasons of security. For these reasons, I conclude that the authority conferred by the Security Council Resolutions on Afghanistan to detain for imperative reasons of security, was not limited to 96 hours. I would have reached the same conclusion even if I had thought that the power to detain was conferred by the Security Council Resolutions on ISAF, as opposed to the troop contributing nations. This is because, in agreement with Lord Mance and for the same reasons, I consider that the unchallenged evidence, accepted by the judge, shows that ISAF tacitly accepted the United Kingdoms right to adopt its own detention policy within the limits allowed by the Resolutions. Impact of the European Convention on Human Rights All international human rights instruments include provisions which potentially affect the conduct of military operations in an armed conflict. Those which protect the rights to life and liberty are the most likely to be relevant. In the European Convention on Human Rights, these rights are protected by articles 2 and 5. Article 5 provides, so far as relevant: (1) Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law: (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. (3) Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. (4) Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. The enforcement of human rights has from its inception been a significant part of the United Nations mission under its Charter. It is therefore appropriate to construe Security Council Resolutions on the footing that those acting under their authority will respect the human rights of those with whom they deal, so far as that is consistent with the proper performance of the functions entrusted to them. But that qualification is important. In the first place, although it is axiomatic that under a resolution authorising all necessary measures, the measures must be necessary, ie required for imperative reasons of security, military operations will in the nature of things interfere with rights such as the right to life, liberty and property. Secondly, most if not all schemes of human rights protection assume a state of peace and basic standards of public order. This is particularly true of provisions protecting liberty, which are generally directed to penal and police procedures. They assume not just minimum levels of public order, but a judiciary with effective criminal jurisdiction and a hierarchy of state officials with a chain of responsibility. The rights which they protect cannot be as absolute in a war zone in the midst of a civil war, where none of these conditions necessarily obtains. Thirdly, Security Council Resolutions such as those authorising peacekeeping operations in Iraq and Afghanistan are addressed to every country in the world. They must be taken to mean the same thing everywhere. This means that they cannot be construed by reference to any particular national or regional code of human rights protection, such as the European Convention on Human Rights. The United Kingdom is a member of the Council of Europe and a party to the European Convention, but about 50 countries participated in ISAF many of which were not. These considerations are particularly important when it comes to article 5 of the European Convention, which is unique among international codes of human rights protection in containing an exhaustive list of six grounds on which the law may authorise a deprivation of liberty. No other major international human rights instrument has this feature. In particular it is not a feature of the corresponding provision, article 9, of the International Covenant on Civil and Political Rights. The Covenant, which is an expansion in treaty form of the Universal Declaration of 1948, has been ratified by 167 states to date and may be regarded as the paradigm statement of internationally recognised human rights. Article 9.1 provides: Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The rest of article 9 is concerned with procedural safeguards. These include provisions for judicial supervision and a right of resort to a court to challenge the detention. No attempt is made to prescribe exhaustively the grounds on which the law may authorise detention, provided that those grounds do not amount to a licence for arbitrary detention. The attempt by the draftsmen of article 5 of the European Convention to codify the exceptions more precisely makes it unusually inflexible if applied according to its literal meaning in a situation of armed conflict. In some circumstances, some of the six grounds may adventitiously accommodate military detention. But as the Strasbourg court recognised in Hassan v United Kingdom (2014) 38 BHRC 358, para 97, they are not designed for such a situation and are not well adapted to it. When the Security Council calls upon member states of the United Nations to participate in an armed conflict, the relevant source of human rights protection as far as the Security Council is concerned is not some particular code of human rights, let alone a national or regional one. It is the body of principle which applies as a matter of international law in armed conflicts. The laws of armed conflict are lex specialis in relation to rules laying down peace time norms upon the same subjects. In the case of a non international armed conflict, this includes Common Article 3 of the Geneva Conventions and, where it applies, Additional Protocol II. In Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion [1996] ICJ Rep 226, the International Court of Justice considered the interrelation between international humanitarian law and international human rights law, taking the International Covenant on Civil and Political Rights as the measure of the latter. Article 6 of the International Covenant on Civil and Political Rights provides that no one may be arbitrarily deprived of his life. At para 25 of its advisory opinion, the Court observed that the protection of the International Covenant of Civil and Political Rights does not cease in times of war, except by operation of article 4 of the Covenant whereby certain provisions may be derogated from in a time of national emergency. Respect for the right to life is not, however, such a provision. In principle, the right not arbitrarily to be deprived of ones life applies also in hostilities. The test of what is an arbitrary deprivation of life, however, then falls to be determined by the applicable lex specialis, namely, the law applicable in armed conflict which is designed to regulate the conduct of hostilities. Thus whether a particular loss of life, through the use of a certain weapon in warfare, is to be considered an arbitrary deprivation of life contrary to article 6 of the Covenant, can only be decided by reference to the law applicable in armed conflict and not deduced from the terms of the Covenant itself. Referring to these observations in Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, the International Court of Justice said, at para 106: the relationship between As regards international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law. In order to answer the question put to it, the Court will have to take into consideration both these branches of international law, namely human rights law and, as lex specialis, international humanitarian law. Cf Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, [2005] ICJ Rep, 168, para 216. As a study group of the United Nations International Law Commission has observed, when lex specialis is being invoked as an exception to the general law, then what is being suggested is that the special nature of the facts justifies a deviation from what otherwise would be the normal course of action: Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law (2006) A/CN.4/L.682. These observations, which were made in the context of article 6 of the International Covenant on Civil and Political Rights, are equally true of the prohibition in article 9 of the Covenant of arbitrary detention or detention otherwise than in accordance with law. Article 9, like article 6, applies in hostilities. But the question what is arbitrary or in accordance with law in an armed conflict cannot be answered in the same way as it would be in peacetime. International humanitarian law does not specifically authorise detention in a non international armed conflict. But, as I have explained, the relevant Security Council Resolutions did authorise detention, and international humanitarian law regulates its consequences on the assumption that it is an inevitable feature of state practice. In that respect, the Resolutions served the same function in a non international armed conflict as the authority to detain under article 21 of the Third Geneva Convention does in an international armed conflict. It conferred an authority in international law to detain in circumstances where this was necessary for imperative reasons of security. The next question is how these considerations can live with the European Convention when troops are contributed to a United Nations multinational force by a member state of the Council of Europe. The European Convention is not easy to apply to military operations outside the national territory of a contracting state. Article 2(2)(c) provides that the right to life is not infringed when it results from necessary action taken to quell an insurrection, but there is no corresponding provision for killing in the course of an international armed conflict. Article 5 of the European Convention, as I have observed, lists the permissible occasions for a deprivation of liberty in terms which take no account of military detention in the course of an armed conflict, whether international or non international. In the case of an armed conflict on the national territory of the member state concerned, these problems may be resolved by resort to article 15, which permits derogation from (among others) article 2 in respect of deaths resulting from lawful acts of war and from article 5 generally. But derogation under article 15 is permitted only in time of war or other public emergency threatening the life of the nation. Like Lord Bingham of Cornhill in R (Al Jedda) v Secretary of State for Defence [2008] AC 332, para 38, I am inclined to think that the nation in article 15 means the nation seeking to derogate. It cannot, as Leggatt J suggested, mean Iraq or Afghanistan. It is of course theoretically possible that an armed conflict outside the United Kingdom might threaten the life of the British nation. The fighting in France in 1939 40 could no doubt have been so described. But it is difficult to imagine any circumstances in which this would be true of an armed conflict abroad in which UK armed forces were engaged as part of a peacekeeping force under the auspices of the United Nations. In Bankovic v Belgium (2001) 44 EHRR SE5, the European Court of Human Rights rejected an argument that a Convention states obligation under article 1 to secure to everyone within their jurisdiction the rights and freedoms secured by Section I, could apply to those affected by military operations conducted abroad, unless they occurred in the territory of another Convention state or in a non Convention territory where a Convention state exercised effective governmental control. Two features of the reasoning are particularly significant for present purposes. The first was the Courts view that the rights protected by Section I of the Convention were a total package. It could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question (para 73). The Convention could not therefore be applied in a non Convention territory where the Convention state in question was not in a position to apply it as a whole. The second significant feature of the reasoning concerned the relationship between the Convention and international law generally. In Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE10 at para 122, the Court cited the decision in Bankovic in support of the broader proposition that the principles underlying the Convention must take into account relevant rules of international law when examining questions concerning its jurisdiction and, consequently, determine state responsibility in conformity and harmony with the governing principles of international law of which it forms part, although it must remain mindful of the Conventions special character as a human rights treaty. The principle thus stated corresponds to the ordinary principle on which treaties are interpreted, taking into account any relevant rules of international law: see Vienna Convention on the Law of Treaties, article 31(3)(c). In Al Skeini v United Kingdom (2011) 53 EHRR 18, the Grand Chamber adopted what was widely regarded as a radically different approach. The Convention was held to apply, so far as relevant, to extra territorial military operations in any case where the agents of a Convention state exercised control and authority over an individual, even if they did not exercise governmental powers in the place where the relevant operations occurred. The procedural requirements of article 2 were accordingly applied to the deaths of Iraqi citizens in the course of firefights with British troops. The implications of this for the conduct of military operations were apparent from the Grand Chambers judgment in Al Jedda v United Kingdom (2011) 53 EHRR 23, which was delivered on the same day as Al Skeini. The Strasbourg court, rejecting the prior decision of the House of Lords, held that in the absence of a derogation under article 15 military detention in the course of an armed conflict outside the national territory of a Convention state contravened article 5, because it could not be brought within any of the six permitted occasions for detention in article 5(1). It rejected the submission that under article 103 of the UN Charter, UN member states had an obligation to give effect to resolutions of the Security Council which prevailed over obligations under the European Convention. This was because the relevant Security Council Resolution left the choice of methods to the multinational force in Iraq. In the absence of sufficiently specific language the Security Councils authorisation to use all necessary measures did not therefore create an obligation to detain even if it created a power to do so. The Strasbourg court reached a similar conclusion in two cases arising out of Security Council Resolutions imposing sanctions on specified individuals: Nada v Switzerland (2012) 56 EHRR 18, and Al Dulimi and Montana Management Inc v Switzerland (Application No 5809/08) (judgment delivered 21 June 2016). In both cases article 103 of the United Nations Charter was held to be inapplicable because the sanctions resolutions left enough discretion to member states to fall short of an obligation. In equating the application of physical force with the exercise of jurisdiction, the decision of the Strasbourg court in Al Skeini was consistent with the opinion of the United Nations Human Rights Committee, which has treated extraterritorial kidnappings as exercises of state jurisdiction: see Lopez Burgos v Uruguay (Case No C 52/79) (1981) 68 ILR 41 and Lilian Celiberti de Casariego v Uruguay (Case No C 56/79) (1981) 68 ILR 29. The principle in Al Skeini was also adopted by this court in Smith v Ministry of Defence [2014] AC 52, in the admittedly rather different context of the states duties to its own soldiers. But it goes substantially further than the jurisprudence of the International Court of Justice, which has thus far recognised the extraterritorial application of human rights treaties only in cases where governmental powers are exercised by a state in the course of a military occupation of foreign territory: see Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, [2004] ICJ Rep 136, para 109; Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v Uganda) Judgment, [2005] ICJ Rep 168, para 216. It also gives rise to serious analytical and practical difficulties, when applied to a states treatment of enemy combatants outside its own territory, because the practical effect is to apply the Convention to any extra territorial exercise of force. This is not consistent with the essentially regional character of the Convention. It goes well beyond the ordinary concept of extra territorial jurisdiction in international law, which is generally confined to territory where the state is the governmental authority or occupying power and to enclaves of national jurisdiction such as ships, aircraft, military establishments or diplomatic premises. It thereby requires a Convention state to apply its terms in places where it has no effective administrative control and no legal right to effective administrative control. It brings the Convention into potential conflict with other sources of international law such as the Charter and acts of the United Nations, as well as with the municipal law of the territory in question. It requires the application of the Convention to the conduct of military operations for which it was not designed and is ill adapted, and in the process cuts across immunities under national law which may be fundamental to the constitutional division of powers, as they arguably are in the United Kingdom. The ambit of article 1 of the Convention is a matter of particular sensitivity to any Convention state. At the level of international law, by defining the extent of the Contracting Parties obligation to give effect to its provisions, it identifies the limits of what they have agreed in an altogether more fundamental sense than the following articles which set out the rights protected. At the level of municipal law, the authority of the courts to apply the Convention is a creature of the Human Rights Act 1998. It is ultimately a matter for the courts of the United Kingdom to decide the territorial ambit of the obligation of public authorities under section 6 to act compatibly with the Convention. In doing so it will in accordance with established principle assume that the legislature intended to act consistently with the United Kingdoms treaty obligations. It will not depart from the interpretation of those obligations by the European Court of Human Rights without very good reason. But it cannot in the last resort be bound by the view of the Strasbourg court on that question if it is satisfied that that view goes beyond what Parliament has enacted. As Lord Neuberger and Lord Mance observed of the European Communities Act 1972 in R (Buckinghamshire County Council) v Secretary of State for Transport [2014] 1 WLR 324, para 207, there may be fundamental principles, whether contained in other constitutional instruments or recognised at common law, whose abrogation Parliament neither contemplated nor authorised. The particular application of the principle in Al Skeini by the Strasbourg court in Al Jedda gives rise to further difficulties of its own. It caused consternation among those concerned with the enforcement of international humanitarian law, because it appeared to undermine its role in armed conflicts as well as the efficacy of international peacekeeping operations. In an influential article in the International Review of the Red Cross (The European Court of Human Rights Al Jedda judgment: the oversight of international humanitarian law, (2011) 93 IRRC 837), Jelena Pejic, the Legal Adviser in the Legal Department of the International Committee of the Red Cross and a distinguished authority in this field, criticised the decision on the grounds (i) that it required authority to detain in armed conflicts to be specifically conferred by the language of a Security Council Resolution, when the relevant lex specialis in international law was the Geneva Conventions; and (ii) that to make detention an obligation of powers participating in an armed conflict would restrict their discretion in a way which would be operationally counter productive and hardly a human rights friendly outcome (pp 847 848). For the moment, she concluded (p 851), Al Jedda casts a chilling shadow on the current and future lawfulness of detention operations carried out by ECHR states abroad. In addition, their ability to engage with other, non ECHR, countries in multinational military forces with a detention mandate currently remains, at best, uncertain. It is, however, unnecessary to explore these problems any further in the present case, because of the relatively narrow basis on which Al Jedda was argued and decided and because of the development of the jurisprudence of the Strasbourg court since it was decided. Al Jedda was presented as a case of conflicting obligations. The argument in the Strasbourg court proceeded, as it had done in the House of Lords, on the footing that there was an irreconcilable conflict between the Security Council Resolutions and article 5 of the European Convention, one of which must be displaced by the other: see para 105. By declining to treat military detention as an obligation, as opposed to a discretionary power, the court was able to treat article 5 as consistent with the United Kingdoms obligations under the UN Charter. But, in the light of later developments, perhaps the most significant feature of the decision in Al Jedda was that it marked a clear (though unacknowledged) departure from the principle stated in Bankovic that the Convention could not be divided and tailored for particular situations and had to be applied on an all or nothing basis. It thereby opened the possibility of a partial or modified application of the Convention to the extra territorial acts of Convention states. In particular, some adaptation of the Convention might be required by the international law context in which those acts occurred: see paras 76, 102. This suggests that a more fruitful approach in Al Jedda would have been to reconcile the terms of the Convention with those of the Security Council Resolutions by adapting the former to the situation created by the latter. This was the step which the Grand Chamber ultimately took in Hassan v United Kingdom (2014) 38 BHRC 358, a decision which was considered by the Court of Appeal but unfortunately appeared too late to be taken into account by Leggatt J. The facts were that the applicants brother had been detained by British forces in Iraq for a period of nine days. When it was ascertained that he was a civilian who posed no threat to security, he was released. This happened in 2003, immediately after the invasion of Iraq by coalition forces, at a stage when the armed conflict was international in character. Hassans detention did not fall within any of the six cases specified in article 5(1) where detention might be permitted, and he had no effective access to a court for the purposes of article 5(4). The Grand Chamber none the less held that there was no violation of article 5. It rejected the argument that article 5 was displaced, as it had in Al Jedda, but held that it fell to be adapted to a context in which international humanitarian law provided the relevant safeguards against abuse. The judgment calls for careful study. The starting point is that on the Courts analysis no question arose of conflicting international obligations or of a Security Council Resolution displacing or overriding article 5 of the European Convention. Cases of conflicting obligations may have to be resolved by deciding which of them is to override the other. But where an obligation is inconsistent with a mere power, there is normally no conflict. The power does not have to be exercised. The United Kingdom relied in Hassan on article 21 of the Third Geneva Convention and article 78 of the Fourth Geneva Convention. These provisions did no more than confer a power to detain. No one suggested that they gave rise to an obligation to detain or that they overrode article 5 of the Convention. The question was a different one, namely what did article 5 mean in the context of an armed conflict. Or, as the Grand Chamber put it (para 99), whether the Court should interpret [the obligations of the United Kingdom under article 5] in the light of powers of detention available to it under international humanitarian law. In particular, the question was whether the six cases of permissible detention listed in article 5(1) were to be interpreted as exhaustive in that context. This involved interpreting it according to the ordinary principles of international law, taking account of state practice in its application and of any relevant rules of international law: see article 31(3)(b) and (c) of the Vienna Convention. In the result, the Grand Chamber held that article 5(1) fell to be modified by treating the six cases as non exhaustive so as to accommodate the existence of a power of detention in international law. This was a very different issue from the one which had arisen in Al Jedda, as the court pointed out at para 99. The court began (para 97) by drawing attention to the incongruity of the six permitted grounds of detention in article 5(1) of the Convention in a situation of armed conflict: It has long been established that the list of grounds of permissible detention in article 5(1) does not include internment or preventive detention where there is no intention to bring criminal charges within a reasonable time (see Lawless v Ireland [1961] ECHR 332/57 at paras 13 and 14; Ireland v UK [1978] ECHR 5310/71 at para 196; Guzzardi v Italy [1980] ECHR 7367/76 at para 102; Jecius v Lithuania [2000] ECHR 34578/97 at paras 47 52; and Al Jedda v UK (2011) 30 BHRC 637 at para 100). Moreover, the court considers that there are important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict. It does not take the view that detention under the powers provided for in the Third and Fourth Geneva Conventions is congruent with any of the categories set out in sub paras (a) to (f). Although article 5(1)(c) might at first glance seem the most relevant provision, there does not need to be any correlation between security internment and suspicion of having committed an offence or risk of the commission of a criminal offence. As regards combatants detained as prisoners of war, since this category of person enjoys combatant privilege, allowing them to participate in hostilities without incurring criminal sanctions, it would not be appropriate for the court to hold that this form of detention falls within the scope of article 5(1)(c). The court went on to consider whether these inconsistencies could be resolved by resort to the right of derogation under article 15. It did not decide whether derogation was available in respect of armed conflict in Iraq, but concluded that it was unnecessary to do so, because the consistent practice of states was not to derogate from article 5 of the European Convention or article 9 of the International Covenant on Civil and Political Rights in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflict: However, in respect of the criterion set out in article 31(3)(b) of the Vienna Convention , the court has previously stated that a consistent practice on the part of the high contracting parties, subsequent to their ratification of the convention, could be taken as establishing their agreement not only as regards interpretation but even to modify the text of the convention (see, mutatis mutandis, Soering v United Kingdom [1989] ECHR 14038/88 at paras 102 103 and Al Saadoon v United Kingdom [2010] ECHR 61498/08 at para 120). (para 101) In those circumstances, the solution was to adapt the states obligations under the European Convention so as to accommodate the lex specialis applicable to armed conflict: The court has made it clear on many occasions that the Convention must be interpreted in harmony with other rules of international law of which it forms part This applies no less to international humanitarian law. The four Geneva Conventions of 1949, intended to mitigate the horrors of war, were drafted in parallel to the European Convention on Human Rights and enjoy universal ratification. The provisions in the Third and Fourth Geneva Conventions relating to internment, at issue in the present application, were designed to protect captured combatants and civilians who pose a security threat. The court has already held that article 2 of the Convention should be interpreted in so far as possible in light of the general principles of international law, including the rules of international humanitarian law which play an indispensable and universally accepted role in mitigating the savagery and inhumanity of armed conflict (see Varnava v Turkey [GC] para 185, ECHR 2009), and it considers that these observations apply equally in relation to article 5. Moreover, the International Court of Justice has held that the protection offered by human rights conventions and that offered by international humanitarian law co exist in situations of armed conflict In its judgment Armed Activities on the Territory of the Congo, the International Court of Justice observed, with reference to its advisory opinion concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, that [a]s regards the relationship between international humanitarian law and human rights law, there are thus three possible situations: some rights may be exclusively matters of international humanitarian law; others may be exclusively matters of human rights law; yet others may be matters of both these branches of international law The court must endeavour to interpret and apply the Convention in a manner which is consistent with the framework under international law delineated by the International Court of Justice. (para 102) The Courts conclusion is set out at paras 104 106. Dealing first with the lawfulness of detention, it observed: 104. None the less, and consistently with the case law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by article 5 of the Convention without the exercise of the power of derogation under article 15 (see para 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that article 5 could be interpreted as permitting the exercise of such broad powers. 105. As with the grounds of permitted detention already set out in those subparagraphs, deprivation of liberty pursuant to powers under international humanitarian law must be lawful to preclude a violation of article 5 para 1. This means that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of article 5 para 1, which is to protect the individual from arbitrariness (see, for example, Kurt v Turkey (1998) 5 BHRC 1, para 122; El Masri v former Yugoslav Republic of Macedonia (2012) 34 BHRC 313, para 230; see also Saadi v Italy (2008) 24 BHRC 123, paras 67 74, and the cases cited therein). In para 104 of the judgment the Grand Chamber referred to the co existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict. It is clear that the fact that the relevant lex specialis applicable to armed conflict contained its own safeguards against abuse, albeit less extensive than those of article 5 of the Convention, was at least part of the reason why it was legitimate to accommodate the six permitted grounds of detention to cater for detention in the course of armed conflict. The rules of international humanitarian law which the court had in mind are identified in para 106 of the judgment: 106. As regards procedural safeguards, the Court considers that, in relation to detention taking place during an international armed conflict, article 5 paras 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provide that internment shall be subject to periodical review, if possible every six months, by a competent body. Whilst it might not be practicable in the course of an international armed conflict for the legality of detention to be determined by an independent court in the sense generally required by article 5 para 4 (see, in the latter context, Reinprecht v Austria, para 31, ECHR 2005 no 67175/01), none the less, if the contracting state is to comply with its obligations under article 5 para 4 in this context, the competent body should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. The reference to articles 43 and 78 of the Fourth Geneva Convention is of some importance. Leaving aside common article 3, the Fourth Geneva Convention is concerned with the treatment of protected persons (essentially civilian non combatants) who in the course of an international armed conflict find themselves in the hands of a belligerent or occupying power of which they are not nationals. The Convention authorises the internment of aliens found in the territory of a party to the conflict (article 42) and of protected persons generally in an occupied territory (article 78). The analogy between those situations and the present one is that internment is authorised under article 42 only if the security of the Detaining Power makes it absolutely necessary and under article 78 only for imperative reasons of security. The difference of phraseology reflects the fact that internment in an occupied territory may be necessary for the security of those interned. There is no substantial difference in the test of necessity as between the two situations. This contrasts with the position relating to prisoners of war under the Third Geneva Convention, where it is enough to justify their detention that they belong to a hostile organised armed force or a civilian service ancillary to such a force. Since the factual basis of internment is more readily disputable under Fourth Convention, article 43 confers on those interned under article 42 a right to have their internment reconsidered as soon as possible by an appropriate court or administrative board designated by the Detaining Power for that purpose. If continued detention is authorised, the court or administrative board must review the case at least twice a year to determine whether detention is still justified. Article 78 confers similar rights on persons interned under that article. In either case, article 132 provides that an internee shall be released as soon as the reasons which necessitated his internment no longer exist. With the possible exception of article 5 of the Third Geneva Convention (which provides for a competent tribunal to determine disputed claims to prisoner of war status), articles 43 and 78 of the Fourth Geneva Conventions are the only provisions of the Geneva Conventions which confer rights on detainees that can in any sense be said to correspond to those conferred by article 5 of the European Convention on Human Rights. It was argued before us that these observations had no bearing on a non international armed conflict such as we are concerned with on these appeals, and no bearing on detentions under the authority of a Security Council Resolution as opposed to international humanitarian law. There are occasional passages in the judgment which can be cited in support of these arguments. But I would not accept them, for two main reasons. In the first place, the Grand Chamber in Hassan dealt with the point before them by reference to international armed conflicts because that was the character of the Iraqi conflict at the time of the events in question. It followed that the relevant source of the international law power to detain was the Third and Fourth Geneva Conventions. But the essential question was whether article 5 of the European Convention on Human Rights should be interpreted so as to accommodate an international law power of detention which was not among the permissible occasions for detention listed at article 5(1). The question is the same in the present cases, although the source of the international law power to detain is a resolution of the Security Council under Chapter VII of the Charter instead of the Geneva Conventions. I have already pointed out that resolutions under Chapter VII are a cornerstone of the international legal order. Their status as a source of international law powers of coercion is as significant as the Geneva Conventions, and is just as relevant where the Convention falls to be interpreted in the light of the rules of international law. Secondly, I reject the argument that the decision has no application to non international armed conflicts because, while there are differences between the two classes of armed conflict, those differences do not, as it seems to me, affect the particular features of the reasoning in Hassan which are critical to the resolution of these appeals. The fundamental question in Hassan was whether the six permitted grounds listed in article 5(1) of the Convention were to be treated as exhaustive in the context of armed conflict. The Court decided that they were not. This was because the exhaustive list of permitted grounds was designed for peacetime and could not accommodate military detention in the very different circumstances of an armed conflict: para 97. The Grand Chamber referred at para 102 to the decision of the International Court of Justice in Armed Activities on the Territory of the Congo, and its advisory opinion concerning The Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. At para 104, it drew the same distinction as the International Court of Justice had made between peacetime norms, such as the prohibition of internment by international human rights instruments, and detention in the course of an armed conflict. These points do not depend on the international character of the armed conflict in question. The taking of prisoners of war and the detention of civilians posing a threat to security are inherent in international and non international armed conflicts alike. The practice of states to detain is common to both and is universal in both contexts. It is right to add that the state practice as regards derogations, to which the Grand Chamber attached some importance, is the same in both international and non international armed conflicts. No member of the Council of Europe has ever derogated from the European Convention with respect to military action of whatever kind taken abroad: see Pejic, art cit, at p 850. It is fair to point out that some aspects of the functions of the peacekeeping forces deployed in Iraq and Afghanistan can more readily be accommodated within the six specified grounds in article 5(1) than the internment of prisoners of war in an international armed conflict. In particular, where armed forces are operating in support of the government of the territory, article 5(1)(c) may apply (detention for the purpose of bringing a person before a competent legal authority on suspicion of having committed an offence or to prevent him from committing one). But the enforcement of the criminal law against individual suspects is far from exhausting the functions of the forces deployed in either theatre. As I have pointed out (paras 21 22, 28 above), their mandate under the relevant Security Council Resolutions extended well beyond operating as an auxiliary police force. It required them to engage as combatants in an armed conflict with the forces of a violent, organised insurrection, with a view to defending itself, protecting the civilian population, and creating a secure environment for the reconstruction of the country. Once one concludes that the six grounds are not necessarily exhaustive in a situation of armed conflict, the next question is whether there is some alternative legal standard to determine what circumstances justify detention and subject to what procedural safeguards. The court in Hassan answered this question by seeking to identify the fundamental purpose of ECHR article 5(1) and to consider whether that purpose would be sufficiently served by the rules applicable in armed conflict even if the case did not come within the six permitted grounds. They considered that, as with other international human rights instruments, the fundamental purpose of article 5 was to protect the individual from arbitrariness (para 105). The essence of arbitrariness is discretion uncontrolled by law. There were two essential conditions for ensuring that detention was not uncontrolled by law. The first was that there should be a legal basis for it. In other words, there must be a legal power to detain and it must not be exercisable on discretionary principles so broad, flexible or obscure as to be beyond legal control. The second was that there must be some sufficient means available to the detainee to challenge the lawfulness of his detention. In these respects article 5 of the European Convention, although a great deal more prescriptive in detail, shares the objective of article 9 of the Universal Declaration of Human Rights and article 9 of the International Covenant on Civil and Political Rights. The relevance of the Geneva Conventions in Hassan was that in the context of an international armed conflict, they provided an appropriate alternative legal standard to the literal application of article 5. But it does not follow that in a conflict to which the relevant provisions of the Geneva Conventions do not directly apply, anyone detained by the peacekeeping forces must necessarily be treated as being detained arbitrarily. The present question is whether there is an appropriate legal standard in a non international armed conflict, notwithstanding that the relevant provisions of the Geneva Conventions do not directly apply. As far as the right of detention itself is concerned, the answer is reasonably straightforward. There is, for the reasons which I have explained, a sufficient legal basis for detention in the Security Council Resolutions. The implicit limitation to occasions where detention is necessary for imperative reasons of security, provides a clear legal standard which is no wider than the purpose of the UN mandate requires. Indeed, it is the same standard as that which applies under articles 42 and 78 of the Fourth Geneva Convention, which the Grand Chamber endorsed in the context of an international armed conflict. The claimants argue that the Grand Chamber could not have envisaged that its reasoning would be applied to non international armed conflicts because the procedural safeguards derived from international humanitarian law, which they regarded as an acceptable substitute for the protection of article 5, were available only to those detained in the course of an international armed conflict. I recognise the force of this argument, but I think that it is mistaken. It is true that with the exception of common article 3, the Third and Fourth Geneva Conventions apply only in international armed conflicts. The duty of review in articles 43 and 78 of the Fourth Convention, to which the Grand Chamber attached importance, does not apply to those detained in the course of a non international armed conflict. But it should be noted that it does not apply to most of those detained in an international armed conflict either. It applies only to those detainees who are protected persons within the meaning of article 4 of the Fourth Convention. They are, as I have observed, mainly civilian non combatants. The definition of protected persons expressly excludes those who are protected by the Third Geneva Convention. The persons thus excluded from the ambit of articles 43 and 78 of the Fourth Convention include not only the armed forces and civilian ancillary services of a belligerent state, but also other persons participating in an international armed conflict as members of organised and identifiable resistance movements or militias, or as persons who on the approach of the enemy take up arms spontaneously: see article 4 of the Third Geneva Convention. The Third Convention has no equivalent provision for review of the detention of persons in these categories. It is of course possible that the Grand Chamber intended to confine the accommodation between international humanitarian law and article 5 of the European Convention on Human Rights strictly to the limited category of detainees entitled to the benefit of articles 43 and 78 of the Fourth Geneva Convention. This would, however, have been a rather arbitrary choice. The Grand Chamber was not concerned to define the ambit of international humanitarian law but to adapt article 5 of the Convention to conditions of armed conflict for which it was not primarily designed. I think it unlikely that they intended that article 5 should apply without modification to prisoners of war taken in an international armed conflict, simply because no review procedure was available to them under the Geneva Conventions. It is in my opinion clear that they regarded the duty of review imposed by articles 43 and 78 of the Fourth Convention as representing a model minimum standard of review required to prevent the detention from being treated as arbitrary. They were adopting that standard not just for cases to which those articles directly applied, but generally. Given that the Security Council Resolutions themselves contain no procedural safeguards, it is incumbent on Convention states, if they are to comply with article 5, to specify the conditions on which their armed forces may detain people in the course of an armed conflict and to make adequate means available to detainees to challenge the lawfulness of their detention under their own law. There is no reason why a Convention state should not comply with its Convention obligations by adopting a standard at least equivalent to articles 43 and 78 of the Fourth Geneva Convention, as those participating in armed conflicts under the auspices of the United Nations commonly do. Provided that the standard thus adopted is prescribed by law and not simply a matter of discretion, I cannot think that it matters to which category the armed conflict in question belongs as a matter of international humanitarian law. The essential purpose of article 5, as the court observed at para 105 of Hassan, is to protect the individual from arbitrariness. This may be achieved even in a state of armed conflict if there are regular reviews providing sufficient guarantees of impartiality and fair procedure to protect against arbitrariness (para 106). which are central to the resolution of these appeals: I conclude that Hassan v United Kingdom is authority for three propositions (1) The Strasbourg court was concerned in Hassan with the interface between two international legal instruments in the domain of armed conflict outside the territory of a Convention state. This is pre eminently a domain governed by international legal norms. In that context, the Grand Chamber recognised that international law may provide a sufficient legal basis for military detention for the purposes of article 5, which requires that any detention should be lawful. This is consistent with the courts approach in Medvedyev v France (2010) 51 EHRR 39, in which the adequacy of the legal basis for the detention of the applicant on a Cambodian merchant ship on the high seas by French armed forces was analysed wholly in terms of international law. The particular source of the international law right to detain which was relevant in Hassan was international humanitarian law, specifically the Geneva Conventions. But I see no reason to regard the position as any different in a case where the source of the international law right to detain is a resolution of the UN Security Council under powers conferred by the UN Charter. It does not of course follow from the fact that international law authorises military detention for the purposes of article 5 of the Convention, that it also constitutes a defence to a claim in tort. That depends on other considerations lying wholly in the realm of municipal law, notably the concept of Crown act of state, which are addressed in the Serdar Mohammed case in a separate judgment. (2) Hassan does not add a notional seventh ground of permitted detention to those listed at (a) to (f) of article 5(1), namely military detention in the course of armed conflict. Its effect is rather to recognise that sub paragraphs (a) to (f) cannot necessarily be regarded as exhaustive when the Convention is being applied to such a conflict, because their exhaustive character reflects peacetime conditions. This means that where the armed forces of a Convention state are acting under a mandate from the Security Council to use all necessary measures, article 5(1) cannot be taken to prevent them from detaining persons for imperative reasons of security. (3) The procedural provisions of article 5, in particular article 5(4), may fall to be adapted where this is necessary in the special circumstances of armed conflict, provided that minimum standards of protection exist to ensure that detention is not imposed arbitrarily. The minimum standard of protection is a standard equivalent to that imposed by articles 43 and 78 of the Fourth Geneva Convention. This involves an initial review of the appropriateness of detention, followed by regular reviews thereafter, by an impartial body in accordance with a fair procedure. These are the minimum requirements for protection against arbitrary detention, and nothing in the Grand Chambers decision in Hassan justifies any departure from them. Indeed, it is clear that in the Courts view, the continuing existence of these procedural obligations in large measure justified reading the six permitted occasions for detention as non exhaustive in conditions of armed conflict. In the following sections of this judgment, I shall deal with the safeguards which were available to those in SMs position. The circumstances of SMs detention after his capture Part II of SOI J3 9 dealt with the processing of detainees through temporary holding facilities after capture, and their ultimate release or transfer to the Afghan authorities. The Detention Authority was required to decide within 48 hours whether the prisoner should be released, further detained or transferred to the Afghan authorities. The relevant paragraphs of Part II provided: 19. The Detention Authority must decide whether to release, transfer or further detain the detainee. This decision must be made within 48hours of the time of detention of the detainee. To authorise continued detention, the Detention Authority will need to be satisfied, on the balance of probabilities, that it is necessary for self defence or that the detainee has done something that makes him a threat to Force Protection or Mission Accomplishment. 24. Logistical Extensions. On some occasions, practical, logistic reasons will entail a requirement to retain a UK detainee for longer than the 96 hours. Such occasions would normally involve the short notice non availability of pre planned transport assets or NDS facilities toreceive transferred detainees reaching full capacity. These occasions may lead to a temporary delay until the physical means to transfer or release correctly can be reinstated. Where this is the case, authority to extend the detention for logistic reasons is to be sought from both HQ ISAF and from Ministers in the UK through the Detention Authority. 25. Initial Detention Review. The Initial Detention Review must take place within 48 hours of the point of detention The Detention Authority does not have the authority to hold a detainee for longer than 96 hours from the point of detention (this authority must be sought from Ministers through the Detention Review Committee (DRC) see paras 26 29 below. Routinely, therefore, within the 96 hour point the detainee must be either released or transferred to the Afghan authorities. Detention beyond 96 hours is only permitted in exceptional circumstances. 26. Detention Review Committee (DRC). The DRC is the mechanism which supports the Detention Authority in managing detention cases in the Op HERRICK theatre. The key role of the DRC is in assessing applications for exceptional extension to detention before they are submitted through PJHQ and from there on to the MoD for Ministerial approval as necessary. The committee should be convened by the Detention Authority as and when required and may take the form of a standing committee. The committees membership is flexible (and should be reviewed regularly by the Detention Authority), but should include the following as a minimum: Detention Authority (chair), [Chief of Staff Joint Force Support Afghanistan, Joint Force Support Afghanistan Legal Adviser, Commanding Officer Intelligence Exploitation Force, Force Provost Marshall, Staff Officer Grade 2, J3 Branch (current operations), Joint Force Support Afghanistan Policy Adviser, Task Force Helmand Liaison Officer Joint Force Support Afghanistan] The chair may call on SME advice from Comd Med, S02 J2X and the [redacted] as necessary, but the core membership must remain outside the chain of command for targeting and tactical legal issues, with the aim of being able to present cases to the Detention Authority cold. Members do not hold a vote as such, but attend in order to provide expert advice to the Detention Authority to assist in his decision making Detention beyond the 96 hour limit applied by ISAF was permitted only in exceptional circumstances on medical or logistic grounds or with the authority of both the UK Permanent Joint Headquarters and ministers in London. The criteria used to assist ministers in deciding whether to approve continued detention were set out in paragraph 27 of Part II and the procedure was described in para 29. They provided, so far as relevant, as follows: 27. Extension of Detention. Where it is believed that there are exceptional circumstances which justify an extension to the 96 hour limit, the Detention Authority should make an application for an extension through the DRC to PJHQ, using the form at Annex G. This application should describe the background to the application, the operational imperative for the extension, any anticipated impacts of the decision and any other pertinent factors to assist in the consideration of the application. The following criteria are used to assist Ministers in deciding whether or not to approve applications for extension of detention: a. Will the extension of this individual provide significant new intelligence vital for force protection? b. Will the extension of this individual provide significant new information on the nature of the insurgency? c. How long a period of extension has been requested [redacted] 29. Extended Detention Review Process. In exceptional cases, where extended detention is authorised beyond 96 hours, the detention is to be the subject of review as follows: a. Detention Authority. The Detention Authority is to conduct an internal review of the detention through the DRC every 72 hours after extended detention starts. The Detention Authority is similarly to submit a review to PJHQ at the 14 day period to seek authorisation for continued extended detention, using Annex H. b. PJHQ. PJHQ J3 will review all periods of extended detention every 14 days, informed by a submission from Theatre c. Ministerial Level. The Minister authorising the extension is to review the decision every 14 days The maximum detention permissible (inclusive of the initial ISAF permissible 96 hours), as endorsed by UK Ministers and the Attorney General, is [redacted] The judge found that until some point shortly before 12 April 2010 (five days after SMs capture) the Detention Authority for British forces in Helmand was the commander of Task Force Helmand. He delegated his authority to handle routine authorisations and reviews to the commander of the Camp Bastion Joint Operating Base. At some point on or shortly before that date the commander of Joint Force Support (Afghanistan) became the Detention Authority. The evidence about which officer was the Detention Authority at the time when the first application was made to extend SMs detention beyond 96 hours was unclear, but the Secretary of States case proceeded on the basis that it was the later arrangements which applied, and the judge proceeded on the same basis. As Part II, paragraph 27 records, the Detention Authority chaired the Detention Review Committee, whose function was to support him in managing detention cases and to provide him with expert advice. The Committee had an important role in preparing the reports on which any decision would be based and in advising the Detention Authority. But the decision rested with the Detention Authority alone. SM was captured in the early hours of 7 April 2010. Upon his arrival at Camp Bastion, he was informed that he had been detained because he was considered to pose a threat to the accomplishment of the ISAF mission, and that he would either be released or transferred to the Afghan authorities as soon as possible. He was told that he was entitled to make a statement about his detention if he wished, to which he replied through the interpreter that he was working in his field when a helicopter arrived, and so he lay down in the field until he was attacked by a military dog and then arrested. He was told that he was entitled to contact the International Committee of the Red Cross, and on being asked whether there was any one whom he wished to be informed of his capture he gave the name of his father. Thereafter, he was detained in British military detention facilities, at Camp Bastion and at Kandahar airport. On 9 April 2010, two days after SMs capture, a request was made to the Ministry of Defence in London to exceptionally extend the 96 hour detention limitation in order to gain intelligence from [SM], on the basis that in theatre reviews of the continuing utility of his detention would be conducted every 72 hours. The official submission to the minister was consistent with the criteria set out in Part II, paragraph 27 of SOI J3 9. It recommended that SM should be further detained to gain valuable intelligence, and advised that this was necessary in the particular case for intelligence exploitation. It described the circumstances of his capture, summarised what was known or believed about him, and set out the information relevant to each of the three criteria listed in paragraph 27. On 12 April, a minister authorised his continued detention to gain valuable intelligence. Writing to the Foreign Secretary to report his decision, the minister recorded his view that questioning SM would provide significant intelligence which was vital for force protection purposes and would provide valuable information about the nature of the Taliban insurgency. Thereafter, in theatre reviews were conducted every 72 hours until 4 May, and after that roughly every 14 days. Responsibility for making decisions about the prosecution of detainees rested with the Afghan authorities, principally the National Directorate of Security (NDS). The review documentation suggests that after an initial assessment of SM, the Detention Review Committee took the view that the prospect of a successful prosecution was weak unless a confession was obtained. This was because the rocket propelled grenade launcher had not been recovered and the biometric evidence linking him with other weaponry was judged to be of poor quality. On 19 April it is recorded that the NDS will be consulted further, and on 22nd it is recommended that he be held until the [redacted] point and then transferred to the NDS for investigation by the Afghan authorities. Although there are references to discussions on the point with the NDS from 24 April 2010, the Secretary of States pleading and evidence is that the NDS was not asked until 4 May, when the British authorities had concluded that there was no more intelligence to be obtained from him. On that date it was decided that SM should remain in UK custody for interrogation until 6 May. Contact was then made with the NDS to find out whether they wished to take him into their custody for investigation and possible prosecution. They replied that they did, but had insufficient capacity to do so at the prison to which he was to be transferred. At the time, there was a serious capacity problem, partly because of an increase in the number of detentions following the surge of the previous year; and partly because the British authorities had a policy of refusing to transfer detainees to a number of NDS prisons at which they had reason to believe that detainees were liable to be maltreated. The result was that from 6 May 2010 the British authorities regarded themselves as holding SM on behalf of the Afghan authorities until capacity became available at an acceptable prison. He was finally transferred on 25 July. The judge distinguished between three periods of detention. He found that for the first 96 hours after his capture (the first period), SM was detained for the purpose of bringing him before an Afghan prosecutor or judge in circumstances where he was believed to be a senior Taliban commander involved in the production of improvised explosive devices. He found that his detention beyond 96 hours had been authorised by Ministers for the sole purpose of interrogating him with a view to obtaining intelligence, and that that remained the sole purpose of his detention for the next 25 days until 4 May, when the NDS formally expressed their intention of taking him into their custody as soon as they could (the second period). From 4 May to 25 July 2010, (the third period), the judge considered that SM was once again being held for the purpose of bringing him before the competent legal authorities on reasonable suspicion of having committed an offence. Application of ECHR: article 5(1) Of the six permissible grounds of detentions listed in article 5(1), only two were relied upon by the Secretary of State before us. They were ground (c), which deals with lawful detention for the purpose of bringing a suspect before a competent legal authority, and ground (f), which deals with detention pending extradition. Ground (f): detention pending extradition I can deal shortly with this ground. The judge accepted that the transfer of a detainee to the Afghan authorities was capable of being an extradition, but held that it did not apply on the facts. For my part, I would not even accept that it was capable of being an extradition. The judges reasoning on this point was that the Convention was only engaged because SM was regarded as being within the jurisdiction of the United Kingdom for the purposes of article 1. It followed that the transfer constituted a removal of the detainee from the jurisdiction of the United Kingdom to that of Afghanistan, notwithstanding that it occurred within the national territory of Afghanistan. In my opinion, this analysis stretches the meaning of sub paragraph (f) further than it will go, and is not consistent with what actually happens when a detainee is transferred from British to Afghan custody. Sub paragraph (f) is concerned with movements between the territorial jurisdiction of one state and that of another. Thus it deals with detention in the course of enforcing immigration control and with deportation on the same footing as extradition. SM was not within the territorial jurisdiction of the United Kingdom at any time. He was not even in a place where the United Kingdom exercised effective governmental control. He was within its jurisdiction for the purpose of article 1 of the Convention in a different sense, namely that he was under the physical power and control of the United Kingdoms agents: see Al Skeini v United Kingdom (2011) 53 EHRR 18, para 136. That physical power and control was exercised, like other functions of HM forces, in support of the government of Afghanistan. It is not therefore correct to speak of a transfer from the jurisdiction of the United Kingdom to that of Afghanistan. Afghanistan always had criminal jurisdiction in Helmand Province and in other places where British forces operated. In transferring a detainee to the Afghan criminal justice system British forces were simply enabling the criminal jurisdiction which Afghanistan already possessed over SM to be more effectually exercised. Ground (c): detention for the purpose of bringing SM before a competent legal authority The judge concluded that SMs detention was justified on ground (c) during the first 96 hours. He held that ground (c) did not apply during the second period, because in that period he was being held solely for intelligence exploitation and not for ultimate transfer to the Afghan authorities. The Strasbourg court has consistently ruled that detention for the sole purpose of intelligence exploitation is incompatible with article 5(1) of the Convention in a domestic context, even in the face of a significant terrorist threat: Sakik v Turkey (1998) 26 EHRR 662, para 44, calan v Turkey (2005) 41 EHRR 45, para 104, Medvedyev v France (2010) EHRR 39, para 126. The Grand Chambers decision in Hassan does not in my opinion justify a departure from that principle in an armed conflict. Nor does the Secretary of State suggest otherwise. However valuable the intelligence is expected to be, its exploitation lacks the immediate connection with the neutralisation of the threat which justifies detention for imperative reasons of security. As Justice OConnor pointed out in the Supreme Court of the United States in Hamdi v Rumsfeld 542 US 507 (2004), the considerations of military security which justify the detention of combatants do so only for the purpose of preventing them from returning to the battlefield. Since imperative reasons of security were the only ground on which detention was authorised by the relevant Security Council Resolutions, it follows that the new policy announced to Parliament in November 2009, which permitted extended detention solely for the purpose of intelligence exploitation, had no basis in international law. In other circumstances, it might have been argued that the intention to transfer SM to the Afghan authorities persisted during the second period notwithstanding that advantage was being taken of his detention to question him. But that would not be consistent with the facts. The evidence shows that after an initial assessment following his capture, there was thought to be little prospect that the evidence would support a prosecution. The NDS was not asked at this stage whether they wanted him for further investigation and possible prosecution. If SM had been detained in the second period in order to obtain better evidence against him, the case might have fallen within sub paragraph (c), even if that evidence was not forthcoming: see Brogan v United Kingdom (1988) 11 EHRR 117 at para 53. But in fact the intelligence that the British authorities hoped to obtain by detaining him related not to his own criminality but to the nature of the Taliban insurgency and the requirements of force protection generally. It follows that SMs detention in the second period cannot be justified by reference to article 5(1)(c). It does not follow from this that SM would or should have been released on 11 April if ministers had not authorised his further detention for intelligence exploitation. While this must be a matter for trial, it is on the face of it more likely that if SM had not been detained for intelligence exploitation during the second period, the British authorities would have asked the NDS earlier whether they wanted to take custody of him, and would have received the same answer. He would then have been further detained until he could be transferred to them, although not necessarily until 25 July. To the extent that his detention was prolonged by the interlude of intelligence exploitation, and that this was not taken into account in determining the duration of his imprisonment pursuant to the sentence of the Afghan court, he may have suffered a recoverable loss. Turning to the third period, the judge held that article 5(1)(c) applied in principle because from 4 May 2010 SM was once again being detained for the purpose of being transferred to the Afghan authorities. But he held that his detention in the third period could not be justified on that ground because he was not brought promptly or at all before a judicial officer as required in such cases by article 5(3). I shall return to article 5(3) when I come to deal with the procedural requirements of article 5. Detention for imperative reasons of security I have explained earlier in this judgment why, even on the footing that none of the of the six grounds of detention specified in article 5(1) of the Convention applies, military detention may be justified. Notwithstanding the ostensibly exhaustive character of the six grounds, that article cannot be taken to prevent HM forces from detaining persons in the course of an armed conflict for imperative reasons of security. The real question in those circumstances is whether this was in fact why SM was detained in the second and third periods. The judge made findings about the reasons for SMs detention on which the claimants naturally rely. But the problem about these findings is that they were made for the purpose of determining whether SMs detention was justified on any of the six grounds specified in article 5(1). It is not easy to redeploy them for the rather different purpose of determining whether detention was justified by imperative reasons of security. This is not only because, coming to the matter as he did before the judgment of the Strasbourg court in Hassan, the judge regarded the six grounds as exhaustive, and imperative reasons of security as irrelevant. The judge also believed that there could be no imperative reasons of security for detaining someone once he had been captured and disarmed. He did not therefore consider the possibility that imperative reasons of security might have been a concurrent reason for SMs detention during the second and third periods. I have already said, in agreement with the Court of Appeal, that in my opinion he was wrong about this. For that reason, I do not think it possible to attach any weight to his finding that interrogation was the sole purpose of SMs detention in the second period, nor to his implicit view that detention pending the availability of prison capacity to the NDS was the sole reason for his detention in the third period. So far as the judge rejected the possibility that SM was also being detained for imperative reasons of security, he did so on a false legal premise. There is, as it seems to me, a real issue about whether imperative reasons of security continued to operate after the first 96 hours concurrently with other factors. It is clear from SOI J3 9, the relevant part of which I have quoted, that the British authorities in Afghanistan did not regard themselves as entitled to detain any person unless his detention was and remained necessary for self defence, force protection, or wider mission accomplishment. Persons arrested on these grounds might, consistently with the Security Council Resolutions, have been detained for as long as they continued to represent a threat. In fact, however, as the minister explained to Parliament when announcing the new detention policy in November 2009, the policy was to hold them only pending transfer to the Afghan authorities or (subject to ministerial authorisation) for intelligence exploitation. In the absence of one or other of these grounds, the detainee would be released, as SM would have been if the NDS had shown no interest in him on 4 May 2010. For that reason, the only question with which a minister was concerned when considering whether to authorise extended detention for intelligence exploitation was whether it was justified for that purpose. There is nothing in SOI J3 9 or in the ample documentation concerning SMs detention to suggest that the minister was concerned with any other grounds for his detention. It seems probable that even after ministers had authorised continued detention for intelligence exploitation purposes, it was a precondition for the actual exercise of that authority in the field that detention should be assessed as necessary for imperative reasons of security. The detention documentation relating to SM appears to suggest that this test was applied at each review after the ministerial authorisation had been received. On each occasion, the Detention Review Committees assessment for the authorising officers included an account of the circumstances of his capture, followed by the following statement: Legal issues. The test to be applied is whether, on the balance of probabilities, [SM] has done something which makes him a threat to self defence, force protection, or wider mission accomplishment. Having considered that [SM] was seen running from a Col known to have links with Obj WHITE, in an attempt to evade [redacted] after they had been engaged from nearby compounds, the route along which he was running was found to contain a hidden RPG launcher and two rounds and the assessment that he may be Obj WHITEs deputy, I advise that the policy test is satisfied. The judgment of those involved was presumably that this test was satisfied in SMs case. On that basis, there may have been concurrent reasons for holding any detainee, because imperative reasons of security were a necessary condition for detention, even if not the only one. Unlike the judge, the Court of Appeal did consider the possibility that imperative reasons of security constituted a concurrent reason for his detention after the expiry of the initial period of 96 hours. But they did so only by reference to the grounds on which further detention was authorised by ministers in London. It is correct that the sole criterion for ministerial authorisation for continued detention beyond 96 hours was the value of the intelligence that the detainee might be in a position to provide. Indeed, that was the reason for the change of policy which led to the adoption of the procedure for ministerial authorisation. It is also correct that British troops had no right, either under SOI J3 9 or under the Security Council Resolutions, to arrest someone solely in order to interrogate them. But it does not follow that they could not interrogate a detainee who was being held for imperative reasons of security. Nor does it follow that continued detention after 96 hours for intelligence exploitation was not also justified by imperative reasons of security. It is not necessary for this court to express a concluded view on these points, and not appropriate to do so on the inevitably incomplete information before us. They will be open to the parties at the full trial of the action. At that trial, my discussion of the facts at paras 86 88 may turn out to be very wide of the mark. For present purposes, it is enough to say that imperative reasons of security are capable of justifying SMs detention in all three periods. Application of article 5: Procedural safeguards Article 5 imposes procedural requirements on any deprivation of liberty at four points. Under article 5(1), the detention must be in accordance with a procedure prescribed by law. Under article 5(2), the detainee must be informed promptly, in a language that he understands, of the reason for his detention. Under article 5(3), where a person is detained in accordance with article 5(1)(c) (detention of suspects for the purpose of bringing them before the competent legal authorities), he must be brought promptly before such an authority. And under article 5(4) the detainee must be entitled to take proceedings by which his detention shall be decided speedily by a court, and his release ordered if the detention is not lawful. The claimants allege breach of all of these requirements except for the one imposed under article 5(2). ECHR article 5(1): in accordance with a procedure prescribed by law There is a substantial overlap between the requirement of article 5(1) that any detention should be in accordance with a procedure prescribed by law and the requirements of the other sub articles, in particular article 5(4). In substance, the difference is that this part of article 5(1) requires that the detention should be authorised by law. Moreover, as explained over the years in the jurisprudence of the Strasbourg court, it also implicitly defines what kind of rules may properly be regarded as law for this purpose. By comparison, article 5(4) prescribes the minimum content of that law in one critical area, namely the availability of an effective right to challenge the lawfulness of the detention. Both sub articles are concerned with the protection of persons against arbitrariness, which the Grand Chamber in Hassan identified as the core function of article 5. I have dealt with the Grand Chambers analysis of this point at paras 63 and 68(3) above. The requirement that the procedure should be prescribed by law, is intended to satisfy the test of legal certainty which is inherent in any prohibition of arbitrary detention. Law for this purpose has the enlarged meaning which it normally bears in the Convention. It is not limited to statute, but extends to any body of rules which is enforceable, sufficiently specific, and operates within a framework of law, including public law: Nadarajah v Secretary of State for the Home Department [2004] INLR 139, at para 54; R (Gillan) v Comr of Police of the Metropolis [2006] 2 AC 307, paras 32 34. In Medvedyev v France, (supra,) another case of extraterritorial military detention, the Strasbourg court observed at para 80 that it was essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of lawfulness set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness and to allow the citizens if need be, with appropriate advice to foresee, to a degree that is reasonable in the circumstances of the case, the consequences which a given action may entail. As I have pointed out (para 63), this means in a case like the present one, that a power of detention must not only be governed by rules but those rules must not be exercisable on discretionary principles so broad, flexible or obscure as to be beyond effective legal control. The procedure governing military arrest and detention by HM forces in Afghanistan was laid down by SOI J3 9. I have summarised this document above, and quoted the essential parts of it. Its requirements were precise, comprehensive and mandatory. The principles on which discretionary judgments were to be made, whether by the Detention Authority in the theatre or by ministers in London, were exactly specified. The judge considered that it defined the conditions for deprivation of liberty with sufficient clarity and precision to meet the requirement of legal certainty. The Court of Appeal agreed, and so do I. ECHR article 5(3): brought promptly before a judge or other officer authorised by law Article 5(3) qualifies the ground of detention specified in article 5(1)(c). It requires that a person suspected of having committed an offence, who is detained for the purpose of bringing him before the competent legal authority, must be brought promptly before a judge or other officer authorised by law. It is relevant to this appeal only so far as it is sought to justify his detention under article 5(1)(c) during the third period. It is plain that SM was not brought before a judge or other officer promptly or at all in that period. The question is therefore how far the requirements of article 5(3) can properly be adapted to conditions of armed conflict in a non Convention state. Without the benefit of the decision in Hassan, the judge understandably did not appreciate the significance of this question and did not deal with it. The Court of Appeal recorded the judges conclusion, but did not address article 5(1)(c) at all, presumably because it was irrelevant in the light of their conclusion that any authority to detain conferred by the Security Council Resolutions was limited to the 96 hours prescribed by the ISAF policy. This is, I think, a more difficult question than the judge appreciated. Articles 5(3) and 5(4) are both directed to the requirement for independent judicial oversight of any detention. Article 5(3) must be read with article 5(1)(c), to which it is ancillary. Unlike article 5(4), which applies generally, article 5(3) is concerned only with prospective criminal proceedings. What is envisaged is that the suspect will be brought promptly before a judge or other officer with jurisdiction either to try him summarily or to release him summarily or to make arrangements for his continued detention or release on bail or otherwise pending a later trial. In the present case, that posits a judge or other officer with criminal jurisdiction under Afghan law. It is far from clear what if any procedures of this kind existed in Afghanistan. The judges findings about Afghan criminal procedure do not identify any. The judge adopted the statement of principle by the Strasbourg court in Demir v Turkey (1998) 33 EHRR 43, para 41, that where necessary, it is for the authorities to develop forms of judicial control which are adapted to the circumstances but compatible with the Convention. This gives rise to no particular difficulty in a purely domestic case such as Demir, where the state is responsible both for the arrest and detention of the suspect and for the process of prosecution and trial. But in citing Demir the judge appears to have thought that the British government assumed the same responsibility in Afghanistan. This cannot in my view be correct. The United Kingdom was not a governmental authority or an occupying power. It was responsible for SMs arrest and detention, but it did not have and could not have assumed responsibility for the organisation or procedures of the system of criminal justice in Afghanistan, which was a matter for the Afghan state, nor for the conduct of prosecutions, which was a matter for the NDS. The operations of the British army in Afghanistan did not displace the role of the NDS, which had jurisdiction throughout the country, including those areas in which British troops were operating. It was seized of SMs case at the latest by 4 May 2010, when the third period began. The British authorities regarded themselves as holding SM on their behalf. If there was such a procedure as article 5(3) envisages, it was on the face of it the responsibility of the NDS and not of the British army to operate it. For the same reason, I do not think that the judge can have been right to say that, quite apart from any limit on detention arising from ISAF policy, any period of detention in excess of four days without bringing the person before a judge is prima facie too long. I doubt whether there can be even a prima facie rule about the appropriate period of detention which applies as a matter of principle in all circumstances for the purpose of article 5(3) of the Convention, although four days is probably a reasonable maximum in the great majority of cases. A prima facie limit of four days takes no account of the truly extraordinary position in which British troops found themselves in having to contain a violent insurgency while dealing with the prosecuting authorities of a country whose legal system had recently been rebuilt and over which they had no control or constitutional responsibility. The judge recorded that the Secretary of State adduced no evidence that it was impractical to bring SM before an Afghan judicial officer and that accordingly the Secretary of State had failed to justify the detention under articles 5(1)(c) and 5(3). I confess to finding this an unsatisfactory basis on which to resolve this question. The judge cannot be criticised for adopting it, because he understandably assumed in the light of the then state of Strasbourg jurisprudence that article 5 of the Convention fell to be applied without modification to military detention in Afghanistan. There are difficulties about determining preliminary issues of law in a complex case, in conjunction with limited questions of fact, the answers to which are not only inter related but dependent on the answers to the issues of law. The difficulties are increased when the issues of fact fall to be determined partly on assumptions derived from the pleadings and partly on evidence. They are further increased when the basis on which article 5 of the Convention falls to be applied is changed by developments in the jurisprudence of the Strasbourg court after the judge has given judgment, with the result that findings made in one legal context have to be applied in another. On any view there will have to be a trial before SMs claims can be finally determined. I would therefore decline to determine at this stage whether the procedure adopted in SMs case was compatible with article 5(3) of the Convention, and would leave that question to a trial at which the relevant facts can be found and assessed in the light of the judgments on this appeal. ECHR article 5(4): right to take proceedings to decide the lawfulness of the detention If the essence of arbitrariness is discretion uncontrolled by law, article 5(4), although procedural in nature, is fundamental to the values protected by article 5. The gravamen of the procedural objection to SMs detention was that he had no practical possibility of testing its lawfulness while he remained in British custody. There are three avenues by which in theory a detainee might have challenged his detention. The first was an application to the High Court in England for a writ of habeas corpus. The second was an internal challenge under the system of review provided for by SOI J3 9. The third was an application for equivalent relief to the courts of Afghanistan. No one appears to have suggested that the third possibility was available even in theory, and we have no information about it. We are therefore perforce concerned with the first two. The Secretary of State submits that there would be no jurisdiction to grant a writ of habeas corpus in these cases. This appears always to have been the British governments position in relation to military detention in Iraq and Afghanistan. There is aged but respectable authority that habeas corpus will not be granted to prisoners of war: see R v Schiever (1759) 2 Keny 473, Furly v Newnham (1780) 2 Dougl 419, The Case of Three Spanish Sailors (1779) 2 W Bl 1324. Nor will it be granted to those interned as enemy aliens in the United Kingdom in time of war: Ex p Weber [1916] 1 KB 280; [1916] 1 AC 421, R v Superintendant of Vine Street Police Station, Ex p Liebmann [1916] 1 KB 268. None of these cases, however, decided that there is no jurisdiction to grant habeas corpus. They decided only that it would not be granted on the merits because the detention of prisoners of war and enemy aliens was a lawful exercise of the prerogative of the Crown. These classes of persons were regarded as liable to internment merely on account of their status. Thus in Ex p Weber, and in the later case of R v Home Secretary, Ex p L [1945] KB 7, where there was an issue about whether the applicant was in fact an enemy alien, the court resolved it. It must have had jurisdiction to do that. The only case in which the courts have declined to entertain the issue was R v Bottrill, Ex p Kuechenmeister [1947] KB 1, a questionable decision in a case where the Crown had continued to detain a civilian internee after the war had ended. The application for habeas corpus was met with the answer that the courts would not review the Crowns prerogative to determine whether or not the United Kingdom was still at war. If this decision was ever good law, it has certainly not been since the decision of the House of Lords in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 that the exercise of prerogative powers is in principle reviewable. Once that is accepted, the rest is legally straightforward. A writ of habeas corpus is a personal remedy directed against the person alleged to have possession or control of the applicant. Jurisdiction to issue it depends on the respondent being within the jurisdiction of the court, and not on the location of the applicant. There is no principle to the effect that the writ is not available where the applicant has been captured in the course of armed conflict, if he disputes the status which is said to make his detention lawful or otherwise challenges its lawfulness. Thus the US Supreme Court has recognised that habeas corpus is available to persons captured in non international armed conflicts seeking to challenge their designation as enemy combatants: Hamdi v Rumsfeld 542 US 507 (2004). The same court has held that habeas corpus may issue to a public official whose agents have effective control over the applicants detention outside the United States: Boumedienne v Bush 553 US 73 (2008). In the United Kingdom, this court has gone further and approved the issue of the writ in a case where the applicant had been lawfully delivered in Iraq by British forces to the United States, and the only element of control over his subsequent detention was an undertaking by the United States to return him on demand: Rahmatullah v Secretary of State for Defence (JUSTICE intervening) [2013] 1 AC 614. There was no reason in principle why SM should not have been entitled to apply for habeas corpus while he was detained by British forces in Afghanistan. I have concluded that British forces in Afghanistan were entitled to detain him if detention was and remained necessary for imperative reasons of security. On that footing, the only issue on the review would have been whether the Detention Authority had reasonable grounds for concluding that imperative reasons of security required the detention to continue. The problem about treating the right to apply for habeas corpus as a sufficient compliance with article 5(4) lies not in any legal difficulty, but in the absence of any practical possibility of exercising it. SM was an illiterate man with, by his own account, limited formal education, detained by troops who did not speak his language and who worked within a system of military law which he had no reason to understand. In these respects, his position must have been similar to that of many other detainees. Without sponsors in the United Kingdom, a detainee in Afghanistan would face formidable practical difficulties in applying for habeas corpus in an unfamiliar court in a distant foreign country, even if the circumstances of his detention allowed it. In fact, however, they did not allow it. The British authorities did not recognise the existence of a right to challenge military detention. Like other persons detained by British forces under SOI J3 9, SM had no access to legal advice or assistance and no facilities for communicating with his family or making contact with the outside world (except with the Red Cross). It follows that although SM was entitled in point of law to apply for a writ of habeas corpus, the procedures operated by the British authorities prevented that right from being effective. Wisely, Mr Eadie QC, who appeared for the Secretary of State, did not press this aspect of his case. This would not necessarily matter if there was a satisfactory alternative. I turn therefore to the system of internal review, which is the real area of dispute. The procedure put in place by SOI J3 9 operated wholly internally. In itself this was not necessarily objectionable. The Grand Chamber in Hassan (para 106) envisaged that it might not be practical in a war zone to bring the detainee before a court. Articles 43 and 78 of the Fourth Geneva Convention, which they regarded as providing an alternative standard in that event, provide for a review by an appropriate court or administrative board designated by the Detaining Power for that purpose (article 43), or in the case of an occupying power a competent body set up by the said Power (article 78). The essential requirements emphasised by the Grand Chamber were (i) that the detention should be reviewed shortly after it began and at frequent intervals thereafter, and (ii) that it should provide sufficient guarantees of impartiality and fairness to protect against arbitrariness. In my opinion, the British procedures satisfied the first criterion but not the second. Even on the footing that a review by a court was impractical, the procedure which existed had two critical failings, both of which were pointed out by the courts below. The first was that it lacked independence. It is true, as counsel for the Secretary of State pointed out, that in addition to fairness the fundamental requirement in the eyes of the Grand Chamber was impartiality, and that independence is not necessarily the same thing. This is, however, an unsatisfactory distinction in practice. We are concerned with the framework of rules governing military detention, and not with the circumstances of any individual case. What is required is not just impartiality in fact, but the appearance of impartiality and the existence of sufficient institutional guarantees of impartiality. I would accept that it may be unrealistic to require military detention in a war zone to be reviewed by a body independent of the army or, more generally, of the executive, especially if reviews are to be conducted with the promptness and frequency required. But it is difficult to conceive that there can be sufficient institutional guarantees of impartiality if the reviewing authority is not independent of those responsible for authorising the detention under review, as it commonly is in the practice of other countries including the United States. The Court of Appeal doubted whether the procedure for review under SOI J3 9 was sufficiently independent but considered that it was impossible to reach a concluded view on that point without further information about the procedure and the chain of command. I am bound to say that I do not see how the process described in SOI J3 9 (Amendment 2) can possibly be regarded as independent. The UK Detention Authority was responsible both for authorising detention and then for reviewing his own decision. The role of the Detention Review Committee was purely advisory and it consisted, with the possible exception of the Legal Adviser and the Political Adviser (a civilian), of his military subordinates. There was no procedure for the case to be reviewed at any higher level than the Detention Authority, except where it was referred to a minister in London for authority to detain beyond 96 hours. But the written procedures envisaged that in those cases the minister would focus on the intelligence value of extended detention, and the documentation in SMs own case does not suggest that any wider considerations were before him. I do not doubt that those who operated this system in the field brought an objective eye to the matter. On the facts to be assumed for the purpose of this appeal, SMs detention was certainly not arbitrary. The problem is that there were no sufficient institutional guarantees that this would necessarily be so. The assumptions in SMs case have not been fully tested, as they might have been under a procedure which was fairer to the detainee. The second failing of the system was that it made no provision for the participation of the detainee. SM did not in fact participate. Indeed, there is no reason to believe that he was even aware that the reviews were occurring. The right conferred on a detainee by article 5(4) of the Convention is to take proceedings by which the lawfulness of his detention shall be decided. This is not simply a requirement that the authorities should review their own act. It is a right of challenge which must necessarily involve the detainee. Specifically, he must be entitled to challenge the existence of any imperative reasons of security justifying his detention, which was the essential condition for it to be lawful. This is, as I have observed in another context, an inherently disputable question. At each review of his detention, the Detention Authority had before him a brief written summary of what SM had said when he was first brought into Camp Bastion and asked whether he had anything to say about his detention. This recorded that he was briefly questioned and denied he was running away or that he had been in command [redacted] stating he is simply a farmer and had no knowledge of the RPG launcher or rounds. Otherwise, the only version of the facts which was before the Detention Authority was that of the soldiers who captured him. It may well be that SM would have had little to add. But the vice of the procedure adopted is that we cannot know that, because he was never given an opportunity to do so. There is no treaty and no consensus specifying what fairness involves as a matter of international humanitarian law. But some basic principles must be regarded as essential to any fair process of adjudication. In the present context, the minimum conditions for fairness were (i) that the internee should be told, so far as possible without compromising secret material, the gist of the facts which are said to make his detention necessary for imperative reasons of security; (ii) that the review procedure should be explained to him; (iii) that he should be allowed sufficient contact with the outside world to be able to obtain evidence of his own; and (iv) that he should be entitled to make representations, preferably in person but if that is impractical then in some other effective manner. It is a more debatable question whether he should be allowed access to legal advice and assistance. In a situation of armed conflict this may not always be possible, at any rate within the required time scale. But there is no evidence before us to suggest that the restrictions on access to such assistance imposed by the British authorities in Afghanistan were necessary. They do not, for example, appear to have been imposed by ISAF, whose procedures permitted both communication with the outside world and contact with lawyers: see SOP 362 (Detention Procedure), para 7. In these respects, British practice also conflicted with the UN Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, adopted by the General Assembly in 1988: see Principles 17 19; and with the position taken by the International Committee of the Red Cross: see Pejic, Procedural Principles and Safeguards for Internment/ Administrative Detention in Armed Conflict and Other Situations of Violence, International Review of the Red Cross, 87 (2005), 375 at 388. The absence of minimal procedural safeguards was unwise as well as legally indefensible, for it rendered the decisions of the Detention Authority more vulnerable than they need have been. Even without a judicial element, a proper procedure for the fair and independent review of detention in the theatre may be faster, more efficient, better informed, and more satisfactory for both detainer and detainee than a procedure by way of application for habeas corpus or judicial review in the courts of a country on the other side of the world. I conclude that the United Kingdom was in breach of its obligations under article 5(4) of the Convention. How far this conclusion will help SM remains to be seen. Article 5(4) imposes an ancillary duty on the state, breach of which does not necessarily make the detention unlawful under article 5(1): R (Kaiyam) v Secretary of State for Justice [2015] AC 1344, para 37. It does not therefore follow from a finding of breach of article 5(4) that SM ought to have been released any earlier than he in fact was. The facts which are being assumed for the purpose of the preliminary issues may or may not be proved at trial. If they are proved, it is difficult to envisage that a fair and independent review process would have resulted in his release, and an application for habeas corpus would probably have failed. In those circumstances, it is far from clear that SM would be able to show that he had suffered any recoverable loss. Conclusion In the result, in Serdar Mohammed I would set aside paragraph 1(3)(ii) and paragraph 1(5) of the judges order dated 20 May 2014. Subject to the parties submissions on the form of order, I would make the following declarations: (1) For the purposes of article 5(1) of the European Convention on Human Rights HM armed forces had legal power to detain SM in excess of 96 hours pursuant to UN Security Council Resolutions 1386 (2001), 1510 (2003) and 1890 (2009) in cases where this was necessary for imperative reasons of security. (2) ECHR article 5(1) should be read so as to accommodate, as permissible grounds, detention pursuant to that power. (3) SMs detention in excess of 96 hours was compatible with ECHR article 5(1) to the extent that he was being detained for imperative reasons of security. (4) SMs detention after 11 April 2010 did not fall within ECHR article 5(1)(f), and his detention between 11 April and 4 May 2010 did not fall within ECHR article 5(1)(c). (5) The arrangements for SMs detention were not compatible with ECHR article 5(4) in that he did not have any effective means of challenging the lawfulness of his detention. (6) Without prejudice to any other grounds on which it may be found that SMs detention was unlawful, the defendant is liable under ECHR article 5(5) and section 8 of the Human Rights Act 1998 to pay compensation to the claimant so far as the duration of his detention (including any detention pursuant to his conviction by the court in Afghanistan) was prolonged by his detention by HM forces between 11 April and 4 May 2010 for intelligence exploitation purposes. All other questions raised in Serdar Mohammed by the issues identified in paras 5 and 6 of this judgment, should be open to the parties at any further trial. In Al Waheed I would make the following declarations: (1) For the purposes of article 5(1) of the European Convention on Human Rights HM armed forces had legal power to detain Mr Al Waheed pursuant to UN Security Council Resolutions 1546 (2004) in cases where this was necessary for imperative reasons of security. (2) ECHR article 5(1) should be read so as to accommodate, as permissible grounds, detention pursuant to that power. LORD WILSON: I agree with the judgment of Lord Sumption. In the light, however, of the disagreement within the court, I propose in my own words to address the main issues before it. A: RESOLUTION 1546 (2004) REFERABLE TO IRAQ The authority given by the UN Security Council in Resolution 1546 was to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with Mr Powells letter dated 5 June 2004; and it is worth noticing that the authority was expressed to be given to the multinational force. Mr Powells letter included, as an example of such a measure, internment where this is necessary for imperative reasons of security. In the Al Jedda case both in the House of Lords and in the Grand Chamber of the Strasbourg court, Mr Al Jedda therefore conceded that the resolution conferred on the UK, as one member of the multinational force, an authorisation, valid under international law, to detain Iraqi nationals where necessary for imperative reasons of security. Mr Al Waheed makes the same concession. But an issue remains, albeit in the end not at the centre of either of these appeals, whether in context the authorisation should, as in the Al Jedda case the House of Lords accepted but the Grand Chamber rejected, be regarded as an obligation. In the House Lord Bingham accepted at para 31 that the language of the resolution was one of authorisation rather than of obligation. He proceeded, however, with the agreement of the other members of the House (apart from Lady Hale, who had doubts about it), to identify in paras 32 to 34 three reasons which, so he considered, justified a conclusion that, for the purposes of article 103 of the UN Charter, the resolution imposed an obligation to intern in the specified circumstances. So Lord Bingham concluded in para 39 that the conflict between the UKs obligation to detain an Iraqi national under the resolution and its obligation to uphold his right not to be deprived of his liberty under article 5 of the European Convention (the Convention) should be the subject of what one might now conveniently describe as an accommodation: namely that the United Kingdom might detain him if necessary for the imperative reasons but must ensure that the detainees rights under article 5 are not infringed to any greater extent than is inherent in such detention. When the Al Jedda case reached the Strasbourg court, the Grand Chamber carefully considered the reasons which Lord Bingham and the other members of the House had articulated. In para 102 of its judgment, however, it noted that, of the four declared purposes of the UN, one was to achieve international co operation in promoting respect for human rights. In that light it approached the task of interpreting Resolution 1546 with a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights. It followed, so the Grand Chamber considered, that, in the event of any ambiguity in the terms of a resolution of the Security Council, the interpretation more in harmony with the requirements of the Convention should be preferred. In some of its language, for example in para 101 of the judgment, the court seemed to accept that Resolution 1546 did contain obligations; but the decision was that, insofar as it did so, the obligations did not extend to internment on the part of such states as were members of the Council of Europe because article 5(1) cast a contrary obligation upon them. It was accepted without argument by the Grand Chamber in the Al Jedda case that the effect of article 5(1), even when construed in the context of Resolution 1546 and its successors, was such as to impose an obligation on member states not to effect internment otherwise than with a view to criminal proceedings pursuant to subpara (c). At the outset of its assessment, namely in paras 99 and 100, the court emphasised that since, as was accepted, none of the six exceptions prescribed in article 5(1) applied, the United Kingdom did indeed have an obligation thereunder not to intern Mr Al Jedda. So the only question was whether its obligation under article 5(1) had altogether been displaced by the resolutions in the light of article 103 of the UN Charter. The assumption of the Grand Chamber was therefore that, subject only to the possibility of its displacement altogether, the extent of the United Kingdoms obligation under article 5(1) was immutable even in the context of the resolutions; and, having made that assumption, the Grand Chamber turned to construe the resolutions in order to determine the applicability of article 103. In Mr Al Waheeds appeal the central task of this court today is to decide whether, particularly in the light of the later reasoning of the Grand Chamber in the Hassan case, it is necessary to regard the extent of the United Kingdoms obligation to him under article 5(1) as having been immutable. Unless it was immutable, we have no need to wrestle with the difference of opinion as to whether Resolution 1546 cast an obligation to detain where necessary for imperative reasons of security. B: RESOLUTION 1386 (2001) REFERABLE TO AFGHANISTAN The authority given by the UN Security Council in Resolution 1386 was to take all necessary measures to fulfil the mandate given to ISAF; and its mandate was, by para 1, to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment. Later resolutions expanded the geographical reach of the mandate beyond Kabul and surrounding areas and they progressively extended the period for which the authority was to remain operative; but the terms of the authority itself remained untouched. There can be no doubt that all necessary measures included a power to intern. All measures were included so long as they were necessary. If, as the Security Council was later to recognise expressly when passing Resolution 1546 in relation to Iraq and when annexing Mr Powells letter to it, all necessary measures to contribute to the maintenance of security in Iraq included a power of internment, how could the Council not have regarded it as likewise included in relation to the maintenance of security in Afghanistan? An authority to assist in the maintenance of security which did not include a power to intern would not have been a worthwhile authority at all. In Mr Mohammeds case the Court of Appeal agreed that the authority included a power to intern but held that the authority had been given to ISAF and so was subject to their policy. There, in my respectful opinion, the Court of Appeal misread the resolution. The authority to take all necessary measures was given to the member states participating in the [ISAF]. In this regard the later Resolution 1546 referable to Iraq, which, in conferring authority on the multinational force, is accepted to have conferred authority on the United Kingdom, ran closely parallel to it. ISAF was no more than an umbrella body, which had no independent personality in law, international or otherwise. Indeed the authority to take all necessary measures was unqualified: it was not to take all such necessary measures as ISAF might identify. Were the continued internment of an insurgent after 96 hours to be objectively necessary and yet to conflict with ISAFs policy, the authority to intern under the resolution would be unaffected. How could necessity, of all things, be subordinated to policy? C: THE AL SKEINI CASE In a second controversial decision handed down on the same day as its decision in the Al Jedda case, namely Al Skeini v United Kingdom (2011) 53 EHRR 18, the Grand Chamber held that non detained Iraqi civilians, shot by United Kingdom forces in the course of military operations during the second of the three periods in which United Kingdom forces operated in Iraq, namely the period of occupation from 1 May 2003 to 28 June 2004, had also had rights under the Convention which the United Kingdom had been bound to respect, including a right under article 2 of the Convention to an investigation into their deaths, and that the United Kingdom had breached it. The declared basis of this seemingly novel extension of the Convention was that during this period the United Kingdom had assumed authority for the maintenance of security in South East Iraq and had thus assumed authority over the individual civilians whom they had shot, even if it had not had effective control over the area in which the shootings had occurred (para 149). The Grand Chamber added, however, that, when jurisdiction under article 1 of the Convention depended upon authority over an individual, including when a Convention state took a person into custody abroad, rather than upon effective control over an area, Convention rights could be divided and tailored (paras 136 137). This was an important recognition that the courts substantial extra territorial enlargement of the concept of jurisdiction under article 1 of the Convention required re examination of the breadth of certain of the articles in section 1 of it. It seems obvious that in particular attention would need to be given to the tailoring of article 5(1) which, on the face of it, permitted no detention in the course of military operations; and the first step towards doing so was soon taken by the Grand Chamber in its decision in the Hassan case. D: THE HASSAN CASE The facts in the Hassan case were that on 23 April 2003 British forces, searching for the applicant who was a general in the army of the Baath party, raided his home in Basra and found not him but his brother, T, who might well have been armed with an AK 47 machine gun. They arrested T either as a suspected combatant or as a civilian suspected to pose a threat to security. They detained him for eight days. At about midnight on 1/2 May 2003, having established that he was a civilian rather than a combatant and that he did not pose a threat to security, they released him. Following his subsequent death, the applicant brought a claim on Ts behalf in the High Court against the Secretary of State in which he alleged a breach of Ts rights under the Convention, including under article 5. The judge dismissed the claim on the ground that Ts detention, albeit managed by British forces, had been in a camp officially designated as a US facility and under overall US control, with the result (so the judge held) that he had not been within the jurisdiction of the United Kingdom within the meaning of article 1 of the Convention. The applicant then made an analogous application against the United Kingdom in the Strasbourg court. Disagreeing with the High Court judge, the Grand Chamber held that, while in detention, T had been in the physical control of United Kingdom forces and that the substantive provisions of the Convention were therefore engaged. It therefore proceeded to consider the nature of its obligations to him, in particular under article 5. At this stage it is important to note the context of Ts detention. It occurred in the first of the three periods in which United Kingdom forces operated in Iraq, namely between 20 March 2003 and 1 May 2003, during which there was an international armed conflict (an IAC). Geneva Convention III, relating to the treatment of prisoners of war, and Geneva Convention IV, relating to the protection of civilians in time of war, have a common article 2, which provides that they apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, in other words that they apply to an IAC. Article 21 of Convention III provides that the Detaining Power may subject prisoners of war to internment. Article 78 of Convention IV provides that the Occupying Power may intern protected persons if it considers it necessary, for imperative reasons of security. Insofar as British forces suspected that T was a combatant, the United Kingdom had power to detain him under article 21 of Convention III. Insofar, alternatively, as they suspected that he was a civilian who posed a threat to security, it had power to detain him under article 78 of Convention IV. The source of the power to detain him was therefore in those two conventions rather than, for example, in any resolution of the Security Council. Section II of Part III of Convention III and Section IV of Part III of Convention IV contain elaborate provisions for the proper treatment of prisoners of war and civilian internees respectively. By 13 votes to four, the Grand Chamber held that, in detaining T, the United Kingdom had not violated article 5(1) of the Convention. Its central reasoning was as follows: (a) There were important differences of context and purpose between arrests carried out during peacetime and the arrest of a combatant in the course of an armed conflict (para 97). (b) None of the six exceptions to the right to liberty, prescribed in article 5(1), applied (para 97). (c) But in Cyprus v Turkey (1976) 4 EHRR 482 the European Commission of Human Rights had refused to examine the lawfulness of the detentions of Greek Cypriot forces by Turkey in the area of Cyprus under Turkish control because the detentions had been effected under Geneva Convention III, which accorded to the detainees the status of prisoners of war thereunder (para 99). (d) The court should interpret article 5(1) of the Convention in the light of article 31(3) of the Vienna Convention on the law of treaties 1969 (the Vienna Convention), which required it to take into account, at (b), any subsequent practice in the application of the (European) Convention which established the agreement of the parties regarding its interpretation and, at (c), any applicable rules of international law (para 100). (e) The case of Al Saadoon v United Kingdom (2010) 51 EHRR 9 demonstrated that, in accordance with article 31(3)(b) of the Vienna Convention, consistent practice of the parties to the (European) Convention could even establish an agreement to modify its text (para 101). I interpolate that the central fact there had been that all but five of the member states had agreed in a protocol that the death penalty shall be abolished. Taking it together with consistent state practice not to impose the death penalty, the Strasbourg court in the Al Saadoon case had held, at para 120, that the protocol indicated that article 2 of the Convention, which had allowed for the imposition of the death penalty in specified circumstances, had been amended so as to delete that part of it. (f) The practice of member states, when engaged extra territorially in IACs in which they effected detentions under Geneva Conventions III and IV, had not been to exercise their power of derogation from article 5 under article 15 of the Convention (para 101). (g) In accordance with article 31(3)(c) of the Vienna Convention, the court should interpret article 5 of the Convention in harmony with international humanitarian law, in particular Geneva Conventions III and IV, which had been designed to protect both prisoners of war and captured civilians who posed a threat to security (para 102). (h) The United Kingdom (which had argued see para 90 that it was more in the interests of a detainee that the detaining power should not derogate altogether from article 5 but should instead remain subject to a suitably accommodated interpretation of it) had been correct in saying that the lack of derogation did not disable the court from interpreting article 5 in the light of Geneva Conventions III and IV (para 103). (i) The safeguards in article 5(2) to (4) of the Convention, albeit also to be interpreted in the light of Geneva Conventions III and IV, should continue to apply to detentions during an IAC but, in the light of those safeguards and of those in the Geneva Conventions themselves, the six exceptions to the right to liberty prescribed in article 5(1) should be accommodated, as far as possible with the taking of prisoners of war and the detention of civilians under the Geneva Conventions (para 104). (j) The court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by article 5 of the Convention without the exercise of the power of derogation under article 15 It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that article 5 could be interpreted as permitting the exercise of such broad powers. (para 104). (k) But the requirement in article 5(1) that every deprivation of liberty should be lawful continued to apply to these cases, with the result that detentions had to comply with the provisions of the two Geneva Conventions (para 105). (l) Interpretation in the light of the Geneva Conventions of the safeguard in article 5(4), when applied to detentions during an IAC, required limited, but only limited, departure from its usual interpretation (para 106). The central issue in these appeals is whether the reasoning of the Grand Chamber in the Hassan case should be applied so as to justify a conclusion that, when detaining the two claimants, the United Kingdom did not violate article 5(1) any more than when it had detained T. The obvious difference is that the detention of T took place in the course of an IAC whereas the detention of the claimants took place in the course of a non international armed conflict (a NIAC). In the Hassan case the Grand Chamber laid great stress on Geneva Conventions III and IV, which, as I have explained, provided both the source of the power to detain T and the safeguards which were to surround his detention. But these two Geneva Conventions scarcely relate to a NIAC. They include just one provision relating to a NIAC, namely article 3, which is common to both of them and which requires humane treatment of all those taking no active part in the conflict, whether by reason of detention or otherwise. Additional Protocol II to the Geneva Conventions, dated 8 June 1977 and expressed to relate to the protection of victims of NIACs, develops and supplements article 3 (Part I, article 1), in particular by elaborating upon the requirement that they be treated humanely (Part II). But the legal regulation exerted by the Geneva Conventions, together with Additional Protocol II, of states participating in a NIAC is negligible in comparison with their regulation of states participating in an IAC. This is no accident. In his article entitled Is There a Way Out of the Non International Armed Conflict Detention Dilemma?, 91 Intl L Stud 32 (2015), Professor Rona identifies at pp 37 38 three reasons why states have traditionally had no desire to accept international regulation of the grounds of their detentions, or of the procedures relating to them, during a NIAC. They have insisted that: international regulation would be an intrusion into their sovereign (a) right to address conflict confined to their own territory; (b) an entirely adequate, means of addressing it; and their domestic law, in particular their criminal law, was the proper, and (c) the prospect that international regulation would afford reciprocity of rights to the other party to the conflict, ie to the insurgents, was unacceptable. On any view the claimants are entitled to place reliance on the references of the Grand Chamber in the Hassan case to the application in that case of the two Geneva Conventions and, of course, on the sentence in para 104 of its judgment, quoted in para 124(j) above, which begins [i]t can only be in cases of international armed conflict . But one does not have to delve far below the surface of the Grand Chambers judgment in the Hassan case in order to perceive the problems which confront the claimants in seeking to distinguish it. It was inevitable that in its judgment the Grand Chamber should speak in terms of an IAC: for T had been detained in the first period of the conflict in Iraq. The court had no reason to consider detention in the course of a NIAC. Significantly the essential distinction which it drew, both in para 97 and in para 104, was between detention during an IAC, on the one hand, and detention during peacetime (as opposed to during a NIAC), on the other. The Grand Chamber relied heavily on the requirement under article 31(3)(c) of the Vienna Convention that, in interpreting the (European) Convention, it should take account of any relevant rules of international law. It had not considered this important principle in the Al Jedda case when making the assumption which I have identified in para 117 above. In the Hassan case the relevant authority under international law for the purposes of article 31(3)(c) was derived from the two Geneva Conventions. In the present cases, by contrast, it was derived from the resolutions of the Security Council. There is no reason to afford any less interpretative significance to the resolutions of the Security Council than to the Geneva Conventions. On the contrary the resolutions may be said to have carried greater significance. The purposes of the United Nations, invested with greater world wide authority than any other body in seeking to achieve them, are to maintain international peace and security, and to that end to take effective collective measures for the prevention and removal of threats to the peace and to achieve international co operation in promoting and encouraging respect for human rights: paras 1 and 3 of article 1 of the UN Charter. Primary responsibility for the maintenance of international peace and security is conferred by the UN on the Security Council which, in discharging it, must act in accordance with those purposes: article 24. Unlike the generalised authorities to detain during every IAC which are to be found in the two Geneva Conventions, the authority to detain in the resolutions was specifically devised by the Security Council to address what it had concluded to be the threat to international peace and security which were constituted by the situations in Iraq and Afghanistan. But the authority conferred by the Security Council was appropriately narrow: internment would be lawful not because it was expedient nor even because it was reasonably deemed to be necessary but only when it was actually necessary for the maintenance of security. Since about the end of the Second World War an apparently rigid distinction has emerged between an IAC and a NIAC. But, particularly where there is foreign intervention in an armed conflict within a state, the distinction is often difficult to apply in practice: International Law and the Classification of Conflicts ed Wilmshurst (2012), Chapter III by Professor Akande, p 56. Before concluding that article 5(1) of the Convention falls to be accommodated to an IAC but not to a NIAC, we should ask: why not? There is in principle no lesser need for detention in a NIAC than in an IAC. I can see no reason why, if an authorisation for detention during a NIAC is valid under international law in that it emanates from the Security Council, article 5(1) should hobble the authorisation so long, of course, that safeguards against arbitrary or unchallengeable detention remain in place. So I agree with the conclusion of the Court of Appeal in Mr Mohammeds case, at para 163, that, in the light of the Hassan case, a resolution of the Security Council which (contrary to that courts construction of Resolution 1386) did confer direct authority on a troop contributing state to effect a detention during a NIAC would be compatible with article 5 of the Convention, provided that procedural safeguards in relation to detention and to its review were also compatible with it. Interpretation of the procedural safeguards provided in paras (2) to (4) of article 5 may also be sufficiently flexible to take account of the context of the detentions, namely that they took place in the course of armed conflict and pursuant to the resolutions (see the Hassan case at para 106). But any dilution of those safeguards should be to the minimum extent necessary to accommodate the demands of that context; and (if I may gratefully adopt the reasoning in para 146 of the decision in a different context of the Grand Chamber in Al Dulimi v Switzerland, Application No 5809/08, 21 June 2016) these resolutions, which contained no explicit wording to the contrary, cannot justify any interpretation of the safeguards which undermines their objective that detentions should not be arbitrary. But it is insufficient to consider only the safeguards, diluted to the minimum extent necessary, in paras (2) to (4) of article 5. In the context of detention safeguards are so important that they are subject to a double lock. The extra lock is provided by the requirement in para 1 that no one shall be deprived of his liberty save in accordance with a procedure prescribed by law. No one suggests that this particular IN ACCORDANCE WITH LAW phrase requires to be accommodated with the circumstances surrounding the detentions in Iraq and Afghanistan. An interesting question, left open in the courts below but pressed on this court by Ms Fatima QC on behalf of the first interveners in the appeal relating to Mr Mohammed, is whether, even if the detentions were to accord with international law, the phrase would nevertheless also require their accordance with national law. Even after having studied paras 79 and 80 of its judgment in the Medvedyev case, cited by Lord Sumption at para 80 above, I regard the Strasbourg court as not yet having provided clear authority on this question for us to consider. On any view, however, there is much to be said in favour of Ms Fatimas submission that accordance with national law remains necessary. At the centre of the requirement is the need for the detaining state to be answerable for the detention; and that need is most obviously met in the domestic law by which the state is bound. The detention is required to accord with a procedure prescribed by law; within the resolutions which in these appeals represent the relevant international law there is no prescription of procedure. In its report to the UN Human Rights Council dated 4 May 2015, the Working Group on Arbitrary Detention suggested, in Guideline 17 at para 115(ii), that a detention in the course of a NIAC had to be shown to be on the basis of grounds and procedures prescribed by law of the State in which the detention occurs and consistent with international law. Although the prescription can no doubt be by any law by which the detaining State is bound, thus including, if it is operating abroad, its own domestic law, the guideline in my view helps to identify the source of the law with which article 5 requires accordance. So the next question is: what does this phrase in the opening words of article 5(1) require of domestic law? The answer is complicated first by the use in the Convention of the word lawful in the description of each of the six exceptions to the right to liberty in (a) to (f) of para 1; and also by the three specific safeguards, each clearly procedural, which are importantly provided by paras 2, 3 and 4 of the article. So there is overlap between the various requirements of the article in this respect. All of them are generally designed to prevent a detention from being arbitrary: A v United Kingdom (2009) 49 EHRR 29, para 164. Clearly, however, the precise territory of the phrase in the opening words of para 1 is procedure. In Winterwerp v The Netherlands (1979) 2 EHRR 387, the Strasbourg court stated at para 45: The notion underlying the term in question is one of fair and proper procedure, namely that any measure depriving a person of his liberty should issue from and be executed by an appropriate authority and should not be arbitrary. This statement has stood the test of time; and in my view the only helpful elaboration of it has been the suggestion that the phrase relates to the quality of the law rather than the content of it. As the Grand Chamber observed in Mooren v Germany (2009) 50 EHRR 23, para 76, it requires the relevant domestic law to be compatible with the rule of law. The court added: Quality of the law in this sense implies that where a national law authorises deprivation of liberty it must be sufficiently accessible, precise and foreseeable in its application, in order to avoid all risk of arbitrariness. In para 80 of the Medvedyev case, cited above, these requirements were described as falling within the general principle of legal certainty. In the case of Iraq Mr Powell referred in his letter annexed to Resolution 1546 to the obligations of the multinational force under the Geneva Conventions. Why did he do so in circumstances in which, apart from those in common article 3, the obligations would not in terms relate to the NIAC which was shortly to begin? The answer is to be found in sections 1 and 6 of the revised Memorandum No 3, which was promulgated lawfully, so I will assume on 27 June 2004 by the administrator of the Coalition Provisional Authority. The memorandum was given continuing effect under Iraqi law after 28 June 2004, when the conflict became a NIAC, by article 26(C) of the Transitional Administrative Law which had been promulgated in March 2004 by the Iraqi Governing Council: see the Al Saadoon case at para 22, cited at para 124(e) above. Under those sections the multinational force was to apply the relevant standards of Geneva Convention IV as a matter of policy during the forthcoming NIAC and specific provisions were made for regular reviews of internment. Procedural safeguards under Iraqi law, binding on the United Kingdom when operating there, were thereby put in place; and in my view it follows that Mr Al Waheeds detention was in accordance with a procedure prescribed by law. In para 38 of its judgment in the Al Jedda case the Grand Chamber, which had set out the memorandum in para 36, referred to the Iraqi Constitution adopted in 2006; and it seemed to suggest that (or at least to question whether) articles 15 and 37 of the constitution thereafter rendered Mr Al Jeddas detention unlawful even under Iraqi law. Unfortunately, however, the Grand Chambers attention was not drawn to article 46 of the constitution, which allows other Iraqi laws, such as the memorandum, to limit constitutional rights in certain circumstances. In its consideration of a second claim made by Mr Al Jedda, namely Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773, the Court of Appeal concluded that article 46 did indeed limit Mr Al Jeddas constitutional rights, with the result that his detention remained lawful under Iraqi law even after 2006. It would be extraordinary that, by a side wind generated by a conventional constitutional provision intended to protect civilians against arbitrary detention during peacetime, detentions in Iraq effected by the multinational force during the final years of the armed conflict suddenly became unlawful under Iraqi law. In the case of Afghanistan, the requisite obligation upon the United Kingdom under article 5(1) to effect internment there only if in conformity with the rules of national law as well as to keep within the boundaries of its authorisation under international law arose even more directly. For the Ministrys policy in that respect was set out in instruction SOI J3 9; and United Kingdom law will in principle require it to have implemented its policy. The conclusion of Leggatt J that the terms of the instruction satisfied the requirement of legal certainty in the opening words of article 5(1) does not appear to have been challenged in the Court of Appeal and is not in issue before this court. F: CONCLUSION I conclude that the effect of the resolutions of the Security Council was to modify the United Kingdoms obligations to the claimants under para 1 of article 5 of the Convention with the result (a) that its detention of Mr Al Waheed was not in breach of it and (b) that, to the extent that Mr Mohammed was detained for imperative reasons of security, its detention of him was not in breach of it. The invitation of the claimants to this court has been that it should depart from the decision of the House of Lords in the Al Jedda case pursuant to Practice Statement (Judicial Precedent) [1966] 1 WLR 1234. Any departure pursuant to the statement must be from the previous decision itself rather than from any of the reasoning which led to it. Like that of Mr Al Waheed, the detention of Mr Al Jedda by United Kingdom forces took place during the third and final period in which they operated in Iraq; and Resolution 1546 and its successors applied to it. It can now be seen that the effect of the resolutions was to modify Mr Al Jeddas right under article 5(1) of the Convention, with the result that, by detaining him, the United Kingdom did not violate it. So, by a jurisprudential route different from that which it took, the decision of the House to that effect can now be seen to have been correct. Far more debateable is whether, in light of the points later to be made by the Grand Chamber, the reasoning of the House was correct. For reasons which one can well understand but which in retrospect have proved unfortunate, the drafters of the Convention chose to identify six cases as being the only cases in which it would be lawful for a member state to deprive a person of liberty. Compare the exhaustive precision of article 5(1) with, for example, article 9(1) of the UNs International Covenant on Civil and Political Rights 1966, which, although otherwise closely modelled on article 5, provides that [n]o one shall be deprived of his liberty except on such grounds as are established by law. There is nothing to indicate that the drafters of the Convention contemplated that its jurisdiction under article 1 would extend to the operations of member states in the course of armed conflict beyond their territories. Once, however, the Strasbourg court had construed the jurisdiction of the Convention as extending that far, it became essential, as indeed was swiftly recognised in the Al Skeini case, that Convention rights should be so divided and tailored as to make the extension workable. Otherwise member states would be driven, insofar as they were able to do so, to derogate under article 15 from their obligations under the Convention which would leave the human rights of those caught up in the conflict far less protected. The exercise of tailoring article 5 was duly conducted by the Grand Chamber in the Hassan case; and today, by a majority, the court takes forward the exercise which it charted. In my view it is no part of the function of this court to speculate upon the approach of another court, not even of the Grand Chamber of the Strasbourg court, to the issue presently raised before it. We cannot foretell the determination in the Grand Chamber of any claim which might now be brought by the claimants, and by the hundreds of other claimants in our courts in a position analogous to them, of a violation by the United Kingdom of article 5(1) of the Convention. No doubt there would again be dissentient voices, concerned, in a way understandably, about a perceived dilution of Convention rights. But a vastly more important factor would be in play. For all of us judges, both in Strasbourg and in the United Kingdom, who believe many of us, passionately in the value of the Convention in having raised the standards of a states treatment of its people across the Council of Europe, its very credibility is at stake in determination of the present issues. Could it be that, by reason of article 5(1), such state contributors to the multinational forces in Iraq and Afghanistan as happened also to be members of the Council of Europe would be legally disabled from effecting internments in Iraq after 28 June 2004, and from effecting internments in Afghanistan beyond 96 hours, even where necessary for the maintenance of security and even pursuant to UN resolutions which, having surveyed the nature of the conflict there, expressly sanctioned internment in such circumstances? Could it be that those contributors to the multinational force would be disabled from acting pursuant to the UN resolutions although fellow contributors which happened not to be members of the Council of Europe would not be so disabled? Such conclusions would bring the Convention into widespread international disrepute and it is, frankly, a relief for me to have found myself persuaded that they can properly be avoided. By contrast there was a clear breach of Mr Mohammeds rights under para 4 of article 5 of the Convention, irrespective of the extent to which the paragraph falls to be accommodated with the exigencies of an armed conflict; and in that regard the only remaining question for the trial judge should, in my view, be whether the breach caused Mr Mohammed to suffer loss. For the reasons given by Lord Sumption at paras 105 and 106 above, the violation of the paragraph was in each of two respects: first, the structural system for the reviews of Mr Mohammeds detention meant that they were not sufficiently independent of those within the United Kingdom force who sought its continuation; and second, he was afforded no opportunity to contribute to them. Lord Mance argues strongly, at para 216 below, that the evidence so far filed by the Ministry about the structural system for the reviews might, if supplemented, displace a positive finding against it in the first respect; but in my view the opportunity already given to the Ministry to file the relevant evidence has been fair and there is no justification for granting to it any extra indulgence. LORD MANCE: Introduction The present appeals concern claims for damages by two individuals in respect of their allegedly wrongful detention by British forces in respectively Iraq and Afghanistan. I have had the benefit of reading in draft three of the other judgments which have been prepared, by respectively Lord Sumption, Lord Wilson and Lord Reed. A central issue of principle on these appeals is whether the United Kingdom, in the course of assisting the recognised governments of Iraq and Afghanistan to combat non international armed insurgencies, had under international law power to detain suspected terrorists or insurgents when necessary for imperative reasons of security, or whether any power to detain must be found within the express terms of article 5 of the European Convention on Human Rights. The United Kingdom advances two bases on which it submits that it possessed such power; one is customary international law applicable to a non international armed conflict (a NIAC) read with the Geneva Conventions and their additional Protocols; the other is the relevant Security Council Resolutions (SCRs) endorsing the authority of the United Kingdom to act as part of the multinational force in Iraq and as part, or indeed leader, of the International Security Assistance Force (ISAF), in Afghanistan at the relevant times. Customary international law Lord Reed concludes positively that customary international law and the Geneva Conventions and their Protocols do not confer any such authority to detain on states (para 263). Lord Sumption is inclined to agree with Lord Reed on this, but regards it as unnecessary to decide (para 14). His more nuanced thinking is that, while there is in principle consensus about a right to detain, there is a lack of consensus about its limits and conditions and the extent to which special provision should be made for non state actors, but that practice is converging and it is likely that this will ultimately be reflected in opinio juris (para 16). My position is closer on this issue to Lord Sumptions than to Lord Reeds. Like Lord Sumption I also regard it as one which is in the event unnecessary to decide. But I add one observation. The role of domestic courts in developing (or in Lord Sumptions case even establishing) a rule of customary international law should not be undervalued. This subject was not the object of detailed examination before us, and would merit this in any future case where the point was significant. But the intermeshing of domestic and international law issues and law has been increasingly evident in recent years. Just as States answer for domestic courts in international law, so it is possible to regard at least some domestic court decisions as elements of the practice of States, or as ways through which States may express their opinio juris regarding the rules of international law. The underlying thinking is that domestic courts have a certain competence and role in identifying, developing and expressing principles of customary international law. The potential relevance of domestic court decisions as a source of international law was recognised and discussed as long ago as 1929 by H Lauterpacht, then an assistant lecturer at the London School of Economics, in his article Decisions of Municipal Courts as a Source of International Law 10 British Yearbook on International Law (1929) 65 95. This drew on insights derived from Lauterpachts joint editorship with his former LSE doctorate supervisor, the then Arnold McNair, of the Annual Digest and Reports of Public International Law Cases (now the International Law Reports) series also launched in 1929: see The Judiciary, National and International, and the Development of International Law by Sir Robert Jennings QC in vol 102 of the series (1996). There is a further extensive bibliography on the subject annexed at pp 18 19 of the Fourth report on identification of customary international law dated 25 May 2016 submitted by Sir Michael Wood QC as rapporteur to the International Law Commission (ILC). Most recently, in the chapter The Interfaces between the National and International Rule of Law: a Framework Paper in The Rule of Law at the National and International Levels (Hart Publishing, 2016) the classic answer given by Machiko Kanetake (at p 27) is that under international law, national rule of law practices are, after all, part of state practices, which contribute to the creation of new customary international law, that they may also form part of the general principles of international law, and may also qualify as opinio juris. Sir Michael Wood, as rapporteur to the ILC, recognised in his Second Report dated 22 May 2014 para 58 the potential significance in international law of domestic jurisprudence not only as state practice, but also, with caution, as a means for the determination of rules of customary international law: see also his Third Report dated 27 March 2015 paras 41(e) and 76(b). Yet more significantly, the current draft Annual Report of the International Law Commission to the UN General Assembly for 2015, following upon Sir Michael Woods Reports, contains the following draft Conclusion 13 (subject to finalisation in 2018): Decisions of courts and tribunals 1. Decisions of international courts and tribunals, in particular of the International Court of Justice, concerning the existence and content of rules of customary international law are a subsidiary means for the determination of such rules. 2. Regard may be had, as appropriate, to decisions of national courts concerning the existence and content of rules of customary international law, as a subsidiary means for the determination of such rules. Security Council Resolutions (SCRs) (a) The relevant SCR for Iraq was 1723 (2006), whereby the Security Council, recognizing the tasks and arrangements set out in letters annexed to resolution 1546 (2004) and the cooperative implementation by the Government of Iraq and the multinational force of those arrangements, reaffirmed the authorisation for the multinational force as set forth in resolution 1546 (2004) and decided to extend the mandate of the multinational force as set forth in that resolution until 31 December 2007, taking into consideration the Iraqi Prime Ministers letter dated 11 November 2006, which had in turn requested such extension in accordance with the Security Council Resolutions 1546 (2004) and 1637 (2005) and the letters attached thereto until 31 December 2007. SCR 1546 (2004) itself reaffirming the authorisation conferred by earlier resolutions, conferred the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution . The resolution went on to state that the letters set out the tasks of the multinational force, including preventing and deterring terrorism. The letters included a letter of 5 June 2004 from the US Secretary of State, expressing the United States willingness to deploy forces to maintain internal security in Iraq and to undertake activities which would, the letter said: include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraqs political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security SCR 1546 (2004) is thus on its face clear. It gave authority to take all necessary measures, which, it was expressly stated, would include internment where this is necessary for imperative reasons of security. In Al Jedda v United Kingdom (2011) 53 EHRR 23, the European Court of Human Rights addressed the relevant letter (which it had earlier summarised in para 34), by concluding that it did not impose an obligation or requirement to detain (para 108). On that basis, it further concluded that the letter could not override the United Kingdoms duties under article 5 of the Convention. But it did not suggest that the SCR, read with the letter, did not contain power to detain. The European Court of Human Rights in Al Jedda was only concerned with arguments based under article 103 on competing obligations: see paras 101 110. Once it had concluded that there were no competing obligations, that was the end of those arguments. The relationship between a power to detain conferred by international law in circumstances of armed conflict and article 5 of the European Convention on Human Rights was not squarely addressed until Hassan v United Kingdom (2014) 38 BHRC 358. There it was addressed in the context of an international armed conflict (IAC). The Third and Fourth Geneva Conventions expressly recognise certain powers (though not obligations) to detain prisoners of war and civilians who pose a risk to security. The European Court of Human Rights held that the scheme provided by article 5 had to be read in the light of, and modified to reflect, the power to detain on security grounds, subject to the condition that such detention was not arbitrary, but was accompanied by a review process which was independent, even if it was not by a court. The European Court of Human Rights acknowledged at the outset that the arguments raised in Hassan were novel. As it said (para 99): 99. This is the first case in which a respondent state has requested the court to disapply its obligations under article 5 or in some other way to interpret them in the light of powers of detention available to it under international humanitarian law. In particular, in Al Jedda v United Kingdom (2011) 30 BHRC 637, the United Kingdom government did not contend that article 5 was modified or displaced by the powers of detention provided for by the Third and Fourth Geneva Conventions. Instead they argued that the United Kingdom was under an obligation to the United Nations Security Council to place the applicant in internment and that, because of article 103 of the United Nations Charter, this obligation had to take primacy over the United Kingdoms obligations under the convention. It was the governments case that an obligation to intern the applicant arose from the text of United Nations Security Council Resolution 1546 and annexed letters and also because the resolution had the effect of maintaining the obligations placed on occupying powers under international humanitarian law, in particular article 43 of the Hague Regulations (see Al Jedda v United Kingdom (2011) 30 BHRC 637 at para 107). The court found that no such obligation arose. In this passage, the European Court of Human Rights was recognising, realistically, that it had before it arguments that had not been, though they might have been, raised for its consideration in Al Jedda. (This is so, even though its reference to powers of detention provided for by the Third and Fourth Geneva Conventions may quite possibly be open to question, in the light of paras 115 116 of this judgment.) To treat the fact that the United Kingdom did not in Al Jedda present any argument about the relationship between a power to detain conferred by international law and the provisions of article 5 of the Convention as fatal to any such argument now appears to me unreal. The United Kingdom has now changed its stance, and the previous stance of one individual state cannot in context anyway be significant. As to the European Court of Human Rights, in a case law system, like that which the European Court of Human Rights operates under the Convention, courts proceed from case to case, sometimes having to reconsider or modify past jurisprudence (moreover, in Strasbourg without applying any strict doctrine of precedent). Above all, it is necessary to bear in mind the very considerable difficulty of the issues which arise, since the European Court of Human Rights judgment in Al Skeini v United Kingdom (2011) 53 EHRR 18, in applying the Convention to circumstances and territories outside any which are likely to have been in Contracting States mind when they agreed to secure the Convention rights and freedoms to everyone within their jurisdiction (Convention, article 1). Finally, if Hassan had been decided before Al Jedda, it is quite obvious that the submissions and the reasoning in the judgment in Al Jedda would have been very different. Hassan itself concerned a situation of IAC, where the Geneva Conventions confer express powers to detain. This was, not surprisingly, underlined by the European Court of Human Rights as a reason for concluding that the terms of article 5 could not be applied, and that they should be modified so as to recognise a further and different power to detain, based on the Conventions concurrently. Thus, the court said in para 104: 104. None the less, and consistently with the case law of the International Court of Justice, the Court considers that, even in situations of international armed conflict, the safeguards under the Convention continue to apply, albeit interpreted against the background of the provisions of international humanitarian law. By reason of the co existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in subparagraphs (a) to (f) of that provision should be accommodated, as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by article 5 of the Convention without the exercise of the power of derogation under article 15 (see para 97 above). It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that article 5 could be interpreted as permitting the exercise of such broad powers. Again, it would be unrealistic to treat this (and in particular the word only in the last sentence) as either addressing or as decisive of the issue now before the courts, where there is on the face of SCR 1546 an unqualified power to detain where necessary for imperative reasons of security. There is no logical and substantial reason why article 5 should not adapt to a power to detain contained in a SCR directed to a NIAC, just as it does to a power to detain conferred by customary international law and/or the Geneva Conventions in the context of an IAC. The reasons why there may as yet be no recognised customary international law power to detain in a NIAC are closely associated with member states wish to avoid recognising or giving reciprocal rights to insurgent groups. These are precisely the reasons why a host state may request, and the Security Council may under Chapter VII of the UN Charter confer, a unilateral power to detain to a friendly third state helping the host state to resist the insurgency. The principal basis on which Lord Reed would refuse to recognise the existence of any such power consists in the reasoning in Al Jedda, as followed in Nada v Switzerland (2012) 56 EHRR 18 and Al Dulimi and Montana Management Inc v Switzerland (Application No 5809/08) (unreported) (judgment given 21 June 2016). In the latter two cases, the European Court of Human Rights identified the need for clear and specific language if SCRs were to be read as intending states to take measures that would conflict with their obligations under international human rights law: see in particular Al Dulimi, para 140. That was said in the context of the fundamental right of a person made the subject of a sanctions order to know and have the right to address the case against him or her. In the present case, not only is SCR 1546 clear on its face in authorising detention, but there is nothing in general international human rights law precluding such a measure. Article 5 of the European Convention on Human Rights is alone in seeking to define and limit grounds of permissible detention. International human rights law generally is reflected by the International Covenant on Civil and Political Rights (ICCPR). Article 9 of the ICCPR provides a general limitation, by reference to a test of arbitrariness, no more. It reads, so far as relevant: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. 2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him. The argument that one must start with the express terms of article 5 of the Convention, and read SCR 1546 consistently therewith is not in my opinion sustainable. SCR 1546 was not directed to states party to the Convention, but to all member states of the United Nations and to the multinational force established to operate in Iraq. It is perfectly tenable to treat a SCR as intended impliedly (in the absence of clear and specific language to the contrary) to comply with general principles of international law, as the European Court of Human Rights indicated in Nada and Al Dulimi. But article 5 of the European Convention does not reflect general international law, and it is circular to construe SCR 1546 in the light of an assumption that it cannot have been intended to detract or differ from article 5. The starting point is not what article 5 says. The starting point is to identify what SCR 1546 says about the power to detain in a NIAC, just as the starting point in Hassan was to see what customary international law and the Geneva Conventions say about the power to detain in an IAC. As the European Court of Human Rights said in Hassan (paras 77 and 102) that it had observed on many occasions, the Convention cannot be interpreted in a vacuum and should so far as possible be interpreted in harmony with other rules of international law of which it forms part. The fundamental significance in international law of SCRs under Chapter VII of the United Nations Charter needs little underlining. It has been recorded by Lord Sumption in his judgment (para 23), and was clearly expressed by the European Court of Human Rights in Behrami v France; Saramati v France, Germany and Norway [2007] 45 EHRR SE10, para 149, when the Court said that the contribution by NATO states of troops to the KFOR security mission in Kosovo may not have amounted to obligations flowing from membership of the UN but they remained crucial to the effective fulfilment by the UNSC of its Chapter VII mandate and, consequently, by the UN of its imperative peace and security aim. To treat SCR 1546 as contemplating that member states, participating in the peace keeping operations in Iraq and exercising the power to detain afforded by its terms, would satisfy their European Convention obligations by derogating from the Convention appears to me unreal. Putting the same point the other way round, I see no basis for treating member states party to the Convention when exercising such power to detain as being in breach of article 5 unless they derogated from the Convention. First, it seems clear that article 15 of the Convention, which authorises derogation in time of war or other public emergency threatening the life of the nation was itself not conceived with this this type of situation expressly in mind. Second, if it be said that the expanded concept of jurisdiction now recognised in European Court of Human Rights jurisprudence under article 1 should lead to some implied modified understanding of the scope of potential derogation under article 15, that is both highly speculative, and a possibility which any contracting state can well be forgiven for missing. Third, not surprisingly, there is just as little indication that any state has ever purported to derogate under article 15 in respect of involvement in a NIAC as there is in respect of involvement in an IAC (see Hassan). Fourth, it would be splitting hairs to treat the reasoning and decision in Hassan as turning essentially on state practice not to derogate under article 15 in the course of an IAC. In the light of the above, I conclude that SCR 1546, properly construed in the light of its terms and the circumstances to which it was directed, provided for a power to detain in a NIAC for imperative reasons of security. On the assumption (which the government does not now challenge on this appeal) that the matters in question fell within the United Kingdoms jurisdiction under article 1 of the Convention, and provided that sufficient procedural safeguards exist (see the next two paragraphs), I also conclude that article 5 of the Convention should be interpreted in a way which gives effect to and enables the exercise of this power. This can be done, as it was in Hassan, by recognising that the fundamental purpose of article 5(1) is to protect the individual from arbitrariness in accordance with the basic international law principle stated in ICCPR, article 9 (para 160 above). On that basis, the more detailed express terms of article 5(1) may be seen as illustrations of, rather than limitations on, the exercise of the power to detain. This in turn allows scope for or accommodates the operation of wider powers to detain in situations of armed conflict, where provided by general international law or by a specific SCR under Chapter VII. It follows that I concur in principle with all that is said by Lord Sumption in para 18 to 30 and 40 to 68 and by Lord Wilson in paras 114 to 117 and 121 to 134 of their respective judgments. On that basis, the only point requiring further attention is whether a power to detain where this is necessary for imperative reasons of security, as provided in Iraq by SCR 1546, is too unspecific, or too lacking in procedural safeguards, to be recognised either generally or in conjunction with and in addition to the express terms of article 5. As already stated (para 160), the general principle of international law is that No one shall be subjected to arbitrary arrest or detention. The relevant ICCPR article 9(1) goes on to provide that: No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. The requirement for grounds to be established is met by a power to detain where necessary for imperative reasons of security. The requirement for a procedure established by law was met in Hassan by the terms of the Third and Fourth Geneva Conventions. The Third Convention provides for the internment of prisoners of war (articles 4(A) and 21), for any doubt about their status to be determined by a competent tribunal (article 5) and for their release and repatriation without delay after the cessation of active hostilities (article 118). The Fourth Convention provides for the detention of individuals definitely suspected of or engaged in activities hostile to the security of the state (Fourth Convention, article 5), for any such action to be reconsidered as soon as possible by an appropriate court or administrative board, and, if maintained, to be reviewed periodically and at least twice yearly (article 43). The United Kingdom had reason to believe that Mr Hassan fell within these categories, and released him as soon as screening showed that he was a civilian who did not pose a threat to security: Hassan, para 109. In agreement with Lord Sumption (paras 67 68), I would not read Hassan as requiring the procedure needed to avoid arbitrariness to be specified in the convention or other treaty or the relevant SCR authorising detention. The procedure falls to be established by or on behalf of the detaining state, and it must at least comply in a NIAC both with the minimum standard of review required in an IAC under article 43 of the Fourth Geneva Convention and accepted as appropriate in that context in Hassan and, subject to such alterations as are necessary to meet the exigencies of armed conflict, with the procedural requirements of article 5: see per Lord Sumption, paras 91 et seq. (b) Afghanistan The relevant SCR in respect of Afghanistan at the time of the detention of Mr Serdar Mohammed (SM) was 1386 (2001), the operation of which was subsequently extended, lastly by SCR 1890 (2009). Lord Sumption has stated the terms of these SCRs in his paras 21 22. SCR 1386 authorised the establishment of an International Security Assistance Force (ISAF) to assist in the maintenance of security in Kabul and surrounding areas, working in close cooperation with the Afghan Interim Authority, and it authorised member states participating in [ISAF] to take all necessary measures to fulfil its mandate. This last critical phrase of article 3 of SCR 1386 falls to be read in the context of the extreme circumstances of violence (including improvised explosive device, IED, and suicide attacks targeting civilians as well as Afghan and international forces and use of civilians as human shields), terrorism, illegally armed groups, increasingly strong links between terrorism activities and illegal drugs, recounted in recitals to resolution 1890. For the reasons coinciding with those given by Lord Sumption in paras 28 and 30 and by Lord Wilson in paras 118 and 119, I consider that the critical phrase in article 3 of SCR 1386 in principle contemplated and authorised detention where necessary to fulfil the mandate, in short detention for imperative reasons of security. Again, appropriate procedural safeguards must be established, meeting the standards identified in para 160 and 165 to 167 above. Afghanistan do the SCRs give powers to ISAF alone or to both ISAF and its member states? This further question arises because of SMs case that any permissible detention was governed by the detention policy guidelines adopted by ISAF, which basically restricted detention (before transfer to the custody of Afghan authorities) to 96 hours with only limited exceptions. I understand Lord Reed to conclude that it was, for reasons set out in his paras 322 334 and 343 346. The context in which this question arises can be summarised as follows. Leggatt J considered that the position of ISAF in Afghanistan broadly mirrored that of KFOR in Kosovo, as examined by the European Court of Human Rights in Behrami. But he went on to reject the United Kingdoms submission that the detention of SM was in reality undertaken by or on behalf of ISAF and so the United Nations, to which SM must in consequence address any claim. He rejected it, because the United Kingdom had at least in November 2009, pursuant to responsibilities which it saw as resting on itself under national and international law, established its own extended detention policy, claiming to enable it to detain for periods longer than 96 hours. It had not, in this respect, acted on behalf of or under any authority conferred, at least originally, on ISAF. ISAF originally complained about this, but Leggatt J inferred that ISAF headquarters did subsequently accept the UK position as detention decisions continued to be taken by United Kingdom officials without involving ISAF and there is no evidence of any further complaints. But that did not mean that the United Kingdom was acting as part of or on behalf of ISAF. See generally per Leggatt J, paras 180 184, and see further paras 181 190 below. On that basis Leggatt J held the United Kingdom responsible for the detention of SM. The United Kingdom thus failed below on the basis that the relevant SCRs gave power only to ISAF to detain, and not to individual member states participating in security operations in Afghanistan: see the Court of Appeals judgment, paras 155 156. Lord Sumption (para 38) and Lord Wilson (para 120) consider that the correct analysis is that the relevant SCRs conferred power to act on the individual participating member states, and that there is no basis for limiting this power (as between the United Kingdom and SM) by reference either to ISAFs detention policy or to any agreement between the United Kingdom and the Afghan authorities, such as that dated 23 April 2006, by clause 3.1 whereof it was agreed that the The United Kingdom AF will only arrest and detain personnel where permitted under ISAF Rules of Engagement. In these circumstances, Lord Sumption concludes that the United Kingdom was entitled to operate its own detention policy vis vis SM, provided of course that this complied as a minimum with the procedural standards required under international law to avoid arbitrariness. The difference on this point between Lord Reed on the one hand and Lord Sumption and Lord Wilson on the other turns on the construction of the relevant SCRs. It is correct that article 3 of SCR 1386 authorised the member states participating in the International Security Assistance Force to take all necessary measures to fulfil its mandate. This followed recitals which inter alia recorded a request in the Bonn Agreement to the Security Council to consider authorising the early deployment to Afghanistan of an international security force and welcomed a letter from the United Kingdom government and took note of the United Kingdoms offer contained therein to take the lead in organising and commanding an International Security Assistance Force. In the light of these recitals, articles 1 and 2 of SCR 1386 went on to authorise as envisaged in Annex 1 to the Bonn Agreement, the establishment for six months of an International Security Assistance Force to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, so that the Afghan Interim Authority as well as the personnel of the United Nations can operate in a secure environment and, second, to call upon member states to contribute personnel, equipment and other resources to the International Security Assistance Force. Article 3 was, further, followed by articles 4 and 5, respectively calling upon the International Security Assistance Force to work in close consultation with the Afghan Interim Authority in the implementation of the force mandate, as well as with the Special Representative of the Secretary General and calling upon all Afghans to cooperate with the International Security Assistance Force and relevant international governmental and non governmental organizations, and welcom[ing] the commitment of the parties to the Bonn Agreement to do all within their means and influence to ensure security . The Bonn Agreement itself contained recitals reaffirming the independence, national sovereignty and territorial integrity of Afghanistan, recognizing that some time may be required for a new Afghan security force to be fully constituted and functional and that therefore other security provisions detailed in Annex I to this agreement must meanwhile be put in place and considering that the United Nations, as the internationally recognized impartial institution, has a particularly important role to play, detailed in Annex II to this agreement, in the period prior to the establishment of permanent institutions in Afghanistan. Consistently with the references contained in SCR 1386, Annex I to the Bonn Agreement provided: 3. Conscious that some time may be required for the new Afghan security and armed forces to be fully constituted and functioning, the participants in the UN Talks on Afghanistan request the United Nations Security Council to consider authorizing the early deployment to Afghanistan of a United Nations mandated force. This force will assist in the maintenance of security for Kabul and its surrounding areas. Such a force could, as appropriate, be progressively expanded to other urban centres and other areas. 4. The participants in the UN Talks on Afghanistan pledge to withdraw all military units from Kabul and other urban centres or other areas in which the UN mandated force is deployed. It would also be desirable if such a force were to assist in the rehabilitation of Afghanistans infrastructure. Annex II to the Bonn Agreement included the provision that: 1. The Special Representative of the Secretary General will be responsible for all aspects of the United Nations work in Afghanistan. The Bonn Agreement therefore envisaged a UN mandated force (ISAF) under UN control to assist the Afghan Interim Authority. It does not support the idea of individual contributing nations operating on their own authority or terms to support the UNs role or give effect to its aims. SCR 1510 (2003) authorised expansion of the mandate of [ISAF] to allow it, as resources permit, to support the Afghan Transitional Authority and its successors in the maintenance of security in areas of Afghanistan outside of Kabul and its environs (article 1). It called upon ISAF to continue to work in close consultation with the Afghan Transitional Authority and its successors and the Special Representative of the Secretary General as well as with the Operation Enduring Freedom Coalition in the implementation of the force mandate, and to report to the Security Council on the implementation of the measures set out in article 1 (article 2). It decided also to extend the authorization of ISAF, as defined in resolution 1386 (2001) and this resolution, for a period of 12 months (article 3), and it authorised the member states participating in [ISAF] to take all necessary measures to fulfil its mandate (article 4) and requested the leadership of [ISAF] to provide quarterly reports on the implementation of its mandate to the Security Council through the Secretary General. SCR 1890 (2009) decided to extend the authorization of [ISAF], as defined in resolution 1386 (2001) and 1510 (2003), for a period of 12 months beyond 13 October 2009 (article 1). It authorised the member states participating in ISAF to take all necessary measures to fulfil its mandate (article 2). It recognised the need to further strengthen ISAF to meet all its operational requirements, and in this regard calls upon member states to contribute personnel, equipment and other resources to ISAF (article 3), and stressed the importance of increasing, in a comprehensive framework, the functionality, professionalism and accountability of the Afghan security sector, encourage[ing] ISAF and other partners to sustain their efforts, as resources permit, to train, mentor and empower the Afghan national security forces (article 4). It further called upon ISAF to continue to work in close consultation with the Afghan Government and the Special Representative of the Secretary General as well as with the OEF coalition in the implementation of the force mandate (article 5), and requested the leadership of ISAF to keep the Security Council regularly informed, through the Secretary General, on the implementation of its mandate, including through the provision of quarterly reports (article 6). Under these SCRs, member states were, necessarily, to provide the personnel and resources which ISAF needed, and were thus authorised to participate in ISAF and take all necessary measures to fulfil its mandate. But the SCRs are replete with references to ISAF acting and being authorised to act, to ISAF having or being given resources and to ISAF reporting to the Secretary General. SCRs also need to be read in light of the principle of proportionality: see Simma et al, The Charter of the United Nations: A Commentary (2012), who continue: This will typically lead to a restrictive reading: resolutions should be understood to embody less restrictive measures generally favoured on proportionality grounds unless the SC has clearly used its discretion to decide otherwise. Thus, in cases of deliberate ambiguity, especially as regards delegations of powers and authorizations to use force, a narrow interpretation is appropriate. Against a narrow view, Lord Sumption notes the exceptional and escalating levels and threats of violence faced by UK forces. That these were particularly serious in Helmand Province where UK troops were located is a fact. On the other hand, the wording of the mandate conferred by the SCRs goes back to the outset of UN involvement, when these levels and threats were not necessarily apparent. Viewing the SCRs overall, I am unable to read them as authorising member states to act otherwise than as participants in or in collaboration with ISAF. The alternative construction, which Lord Sumption and Lord Wilson adopt, amounts to saying that member states received their own authorisation entitling them each to act quite independently of ISAF and each other. This appears to me ultimately a recipe for confusion and unlikely to have been intended by the Security Council. That is not however the end of the matter as regards the United Kingdoms authority to operate its own detention policy. ISAFs and the United Kingdoms policies regarding detention The position is summarised in Lord Sumptions judgment in paras 31 to 37. ISAF policy under its Standard Operating Procedures SOP 362 allowed up to 96 hours for release or handing over into the custody of Afghan authorities, subject in para 8 to authority, vested in the ISAF commander in the following terms: The authority to continue to detain an individual beyond the 96 hour point is vested in COMISAF (or his delegated subordinate). A detainee may be held for more than 96 hours where it is deemed necessary in order to effect his release or transfer in safe circumstances. This exception is not authority for longer term detentions but is intended to meet exigenciessuch as that caused by local logistical conditions eg difficulties involving poor communications, transport or weather conditions or where the detainee is held in ISAF medical facilities and it would be medically imprudent to move him. Where this exigency applies, COMISAF must be notified. Where, in the opinion of COMISAF (or his delegated subordinate), continuation of detention is warranted, COMISAF (or his delegated subordinate) may authorize continued detention. Although no change was made in ISAFs guidelines, the United Kingdom did over the years develop and operate its own policy relating to detention. In the years prior to November 2009, this involved decisions regarding detention being taken by United Kingdom officials, rather than ISAF. On the evidence of Mr Devine, called by the Ministry and unchallenged on this point, ISAF was kept informed both of the United Kingdoms policy in this respect and of individual detentions made under it. Leggatt J made significant findings in this connection. In para 181, he referred to a United Kingdom report of an initial objection by the Chief of Staff of ISAF in this connection in 2006, to the effect that ISAF, rather than United Kingdom officials should be taking detention decisions. The United Kingdom rejected this objection, explaining that it considered that the United Kingdom had to take such decisions in order to ensure that its legal obligations were properly discharged. The report concluded by saying that, now United Kingdom officials had made this point to NATO HQ, it is hoped that HQ ISAF will soon be directed to accept the UK position. Importantly, Leggatt J went on to say, in the passage already quoted in para 25 above: I infer that ISAF headquarters did subsequently accept the UK position as detention decisions continued to be taken by UK officials without involving ISAF and there is no evidence of any further complaints. Until November 2009, United Kingdom policy matched ISAF policy with regard to the length of detention. But, with effect from November 2009, the United Kingdoms detention policy changed to allow detention beyond 96 hours not only in accordance with ISAF policy, on the grounds set out in para 8 of SOP 362 and with ISAF HQ authorisation, but also in exceptional circumstances with the authority of United Kingdom HQ and United Kingdom ministerial authorisation. The revised policy was set out in BRITFOR Standard Operating Instruction J3 9 dated 6 November 2009. Annex G required detailed justification to be submitted with any application for extension of detention beyond 96 hours. The notes to assist its compilation identified as relevant factors the intelligence gained to date and likely to be obtained by further detention and its relevance for any prosecution, together with (and emphasised) the likely impact of detention for United Kingdom/Coalition forces, and in particular whether detention would save life and limb and what the detained was likely to do if released, as well as any legal issues relevant to continued detention. Mr Devine also gave evidence that ISAF was made aware at the highest level of the change introduced in November 2009 and of its application thereafter in individual cases and never objected. He said in one passage: No, my point under this policy is when we introduced the policy in November 2009 we informed ISAF both through its senior body, the North Atlantic Council, and I assume, I dont recall, ISAF through its chain of command. The chain of command, and indeed the NATO political authority, the North Atlantic Council, were fully aware of the policy we were undertaking. I think we can take that understanding how NATO works, I think we can take that consent as NATO authority for our actions. Mr Devines evidence on this point was again not challenged by cross examination. In this connection, Leggatt J said this in para 184: The MOD has argued that the UK did not operate a detention policy which was separate from ISAF policy because ISAF policy envisaged and accommodated some variations in national practice and, in particular, ISAF accepted the need for the UK to depart from the ISAF 96 hour detention limit in exceptional circumstances in light of the fact that UK armed forces were operating in an area of Afghanistan where there is a particularly high level of insurgent activity. I have accepted the evidence of Mr Devine that NATO was informed of the UKs decision to apply a national policy caveat to the ISAF 96 hour limit and did not object to this. But that is a very long way from showing that either UK detention operations generally or individual detentions by UK armed forces were under the command and control of ISAF. It is clear that they were not. The documentation shows that NATO was indeed informed in the most formal way and at the highest level, by letter dated 5 November 2009 to its Secretary General, Mr Anders Rasmussen, giving full details and the explanation for the change in policy. The terms would clearly have been expected to elicit an objection, if objection there had been. In fact there was none. In the light of Mr Devines evidence, I read Leggatt Js findings in paras 181 and 184 as accepting as an inference that ISAF acquiesced in the UK position that it was open to the UK to take its own detention decisions within the 96 hour period, and, in and after November 2009, to apply its own policy regarding detention in excess of 96 hours in exceptional circumstances. In international law terms, the position is in my opinion covered by the judgment in Case Concerning the Temple of Preah Vihear (Cambodia v Thailand) Merits, [1962] ICJ Rep (judgment of 15 June 1962), where the ICJ said this at p 23: It has been contended on behalf of Thailand that this communication of the maps by the French authorities was, so to speak ex parte, and that no formal acknowledgment of it was either requested of, or given by, Thailand. In fact, as will be seen presently, an acknowledgment by their conduct was undoubtedly made in a very definite way; but even if it were otherwise it is clear that the circumstances were such as called for some reaction, within a reasonable period, on the part of the Siamese authorities, if they wished to disagree with the map or had any serious question to raise in regard to it. They did not do so, either then or for many years, and thereby must be held to have acquiesced. Qui tacet consentire videtur si loqui debuisset ac potuisset. The Court of Appeal did not consider that ISAFs failure to protest in these circumstances could be considered to amount to tacit consent (para 71). I do not agree with the Court of Appeals analysis. The Court of Appeal did not refer to Leggatt Js clear conclusion in para 181 that ISAF did subsequently accept the UKs position regarding detention, and para 184, which the Court of Appeal did cite, is directed not to the contrary, but to the question of command and control. Leggatt J expressly accepted the evidence of Mr Devine, which also establishes that ISAF was kept fully and regularly informed of the UK detention policy and its application to particular detainees. The natural inference from this and from the absence of any further complaints by ISAF at any time is, in my opinion, that ISAF did accept the UKs right to apply its policies and procedures both before and after November 2009, even though they differed from ISAFs. I add that it seems that two other members of ISAF also adopted different policies regarding the 96 hour limit, the USA by enacting domestic legislation and Canada by reaching specific agreement with the Afghan authorities to treat detainees as prisoners of war. Domestic legislation would protect US forces in at any rate the United States. It may be that an agreement with the Afghan authorities could be presented as an independent source of authority to detain under local law. The UK did not pursue either of these protective routes. But in no case is there an indication that ISAF raised any objection to this conduct by members of ISAF. I add that, had I not concluded that ISAF tacitly accepted (and indeed that the judges findings amount to acceptance that ISAF tacitly accepted) the UKs position regarding its policies both before and after November 2009, I would not have determined this largely factual point against the Ministry of Defence. I would have remitted it to the judge for further examination, on the basis that Mr Devines evidence on the point was effectively unchallenged, such potential significance as the point may have does not appear to have emerged very clearly at the hearing before him, and the point should now be clearly addressed and determined. The consequences of the above analysis The above analysis means that the UK was, when implementing its detention policies before and after November 2009, acting in a way which was accepted as permissible by ISAF. ISAF could not however authorise any detention policy by a state whose forces were participating in ISAF outside the scope of the authority which ISAF had under the relevant SCRs. The SCRs did not authorise detention save where necessary for imperative reasons of security. Any policy involving detention purely for intelligence gathering reasons, without the co existence of some other ground such as danger to UK forces or the ISAF mission generally, could not properly have been authorised by ISAF, or applied by the UK. But, subject to that caveat, I see no reason why ISAF should not accept the operation by a particular state participating in ISAF of its own detention policy, separate from ISAFs own guidelines. A number of possibilities arise from these conclusions. One is that, as a result of ISAFs tacit assent to the United Kingdoms operation of its own policies, responsibility for any detention by United Kingdom forces should be borne by ISAF, not the United Kingdom. The Ministry of Defence argued as much before the courts below, relying on the decision of the Grand Chamber of the European Court in Behrami v France, Saramati v France, Germany and Norway (2007) 45 EHRR SE10. Leggatt J rejected the argument for the reasons given in his para 184 (quoted in para 185 above). The essential reason was that the UK forces were not in this respect under the command and control of ISAF. The Ministry of Defence originally sought permission to appeal against this conclusion (by a proposed Ground 3 in its notice of appeal to this court). The Ministry has not however pursued that application, so that Leggatt Js conclusion in para 184 stands. That is again not the end of the matter. The issue to which Leggatt J was referring in his para 184 whether UK armed forces were under the command and control of ISAF in relation to detention is one thing. Whether the UK was authorised by ISAF to pursue its own detention policy in the context of its activities as a participating member of ISAF is another. Accordingly, subject to the caveat that detention purely for intelligence gathering reasons could not be justified, the primary question in relation to each period of detention in respect of which SM complains is whether there was a good reason for his detention for imperative reasons of security, and if so whether exceptional circumstances existed justifying United Kingdom forces in continuing to act as the detaining authority, rather than handing SM over to the Afghan authorities, after the first 96 hours. If such circumstances operated as a concurrent reason for continued detention, they could justify the detention, even if another illegitimate reason, such as a desire to interrogate, was also in operation. Even if the only motive for continued detention present in the United Kingdom authorities mind was to continue interrogation, that does not exclude the possibility that another basis in fact existed, which would have justified and led to continued detention, had the United Kingdom authorities directed themselves correctly. SM is claiming damages for wrongful detention. It is highly material to consider whether, but for any failures which he may establish in United Kingdom authorities reasoning or procedures, he would have been any better off in other words, anywhere other than in custody. Further, if the answer is that he would not have been in the custody of United Kingdom forces, but would have been in the custody of Afghan forces, it would be material to consider whether this would have involved him in any form of detriment, justifying an award to damages. Exceptional circumstances could well exist if extended detention was or would have been necessary because SM represented a real danger to United Kingdom forces or ISAFs mission generally, but could not in the meanwhile be transferred to Afghan custody because the Afghan facilities were for the time being either unsatisfactory or full. As to this, para 44 of the Ministrys amended defence, which is for the purposes of the issues now before the Court to be taken as correct, indicates that overcrowding and lack of capacity in Afghan facilities was a reason for non transfer during the third period from 6 May to 25 July 2010 in respect of which SM complains. It seems unlikely that this situation did not also exist during the second period starting on 10 April 2010. Another factor of potential relevance is that throughout that period a legal challenge was on foot as to the appropriateness of any transfers of detainees to any of the three detention facilities operated by the National Directorate of Security (NDS) of Afghanistan in Kabul, Kandahar and Lashkar Gah. The relevant proceedings were heard in the Divisional Court on 19 to 23 and 26 to 29 April 2010. They led to a judgment given 25 June 2010, which concluded that it would be unlawful for United Kingdom transfers to be made to NDSs Kabul facility. It could hardly lie in the mouths of the present respondents to assert that they could have been transferred to a facility to which it would have been unlawful for such a transfer to be made. As to the danger or risks for United Kingdom forces or the ISAF mission, the assumed facts set out in paras 26 to 65 of the amended defence speak for themselves. I set out the most material: 26. The claimant was detained at around 3.20 am (Afghan time) on 7 April 2010 as part of a planned ISAF operation. The team which undertook this operation included UK military personnel, members of the Afghan Partnering Unit and ISAF military working dogs. The operation targeted a senior Taliban commander and the vehicle in which it was believed he was travelling. When the operation was launched, approximately four people were seen leaving the vehicle and entering two compounds. 27. From the outset of the operation, as their helicopter touched down near the two compounds, the capturing team came under heavy fire. 28. The claimant ran from one of the two compounds, along with another insurgent. The other insurgent fired upon UK military personnel and was killed. The claimant fled from the compound into a field about 450 metres from the compound. He was asked a number of times via an interpreter to identify his location and to come out with his hands up. He did not do so. He was considered to present a significant and imminent threat. Accordingly, a military working dog was released into the field by its handler and the dog apprehended the claimant, in the process causing him to suffer a bite to his right arm. 29. Halfway along the route along which the claimant was observed to have fled, between the compound and the place of his arrest, UK Armed Forces found a rocket propelled grenade (RPG) launcher and two RPG rounds. 30. During the course of the operation, another two insurgents were found in one of the two compounds. One of them engaged UK armed forces and was killed. The other insurgent was captured. 31. UK Armed Forces safely extracted the claimant and the other captured insurgent. They did so whilst under heavy and sustained small arms and RPG fire. The extraction took about ten hours. Three members of UK Armed Forces were wounded in action. 32. The claimant was lawfully captured and detained in accordance with ISAFs standard operating procedures, pursuant to authorisation contained in UN Security Council Resolution 1890 (2009) and in compliance with IHL. 33. the claimants asserted ignorance of the RPGs and launcher is denied. The Detainee Transfer Paperwork records that explosive traces were found on the claimants clothes. 36. In response to questioning the claimant stated he was a farmer. The defendant subsequently received information that the claimant was a senior Taliban commander, also known as Mullah Gulmad. Mullah Gulmad was, and is, believed to have been involved with the large scale production of IEDs and to have commanded a local Taliban training camp in mid 2009. 38. On 7 April 2010, at Camp Bastion, the claimant was informed, with the aid of an interpreter, that he had been detained because he was considered to pose a threat to the accomplishment of the ISAF mission and that he would either be released by ISAF or transferred to the Afghan authorities as soon as possible. He was informed that he had the right to contact the International Committee of the Red Cross (ICRC) at any time and when asked if he wished to have someone informed of his detention, gave the name of his father. Taking this account as correct, as we are required for present purposes to do, it is unsurprising that, in an initial application by BRITFOR for continued detention dated 8 April 2010 the Detention Authority said this in respect of SM in the section of the relevant form (Annex G) headed Legal Issues: The test to be applied is whether, on the balance of probabilities, Detainee 995 has done something that makes him a threat to force protection, self defence or wider mission accomplishment. Having considered all the evidence and intelligence relating to this operation, in particular Detainee 995s actions immediately prior to capture and the assessment that he attempted to hide two RPGs, I advise that the policy test is satisfied. The Legal Issues sections in the eight subsequent Annex G applications which were completed to obtain a series of 72 hour extensions of detention included similar information, but were from time to time also expanded and updated. Thus on 13 April 2010 specific mention was added of the fact that the compound from which SM had fled had been known to have links with Obj White (code for the local Taliban commander) and the assessment was added that SM may be that commanders deputy. By 16 April 2010, the assessment was expanded to say that SM is the commanders deputy. On 25 April 2010, there was reference to the positive identification that he is a TB Comd and Obj WHITEs deputy. On 28 April 2010, the addition was made that the recent CHEMEX results have revealed a high confidence return for RDX, PETN and TNT. It is also assessed that he may be Obj WHITES deputy. On 1 May 2010, the further addition appeared that he has been positively identified by HUMINT as call sign . (The dots represent redactions in the versions before the Supreme Court.) The picture which on its face emerges is that the completion of the Annex G applications was not a mere formality or box ticking exercise. Rather, it appears as a conscientious exercise on each occasion in reconsidering and restating the facts and in re applying the test whether SM had done something which makes him a threat to self defence, force protection or wider mission accomplishment. The initial application was also completed with No to Release and Yes to Transfer, Extension to 96 hours and Extension beyond 96 hours. The eight subsequent applications were all completed with No to Release and Yes to Transfer and to Extension beyond 96 hours. In these circumstances, despite the further entries to the effect that the evidence to hand made this a weak case to hand to the NDS, the natural (and unsurprising) inference is that SM was seen throughout not only as a threat to self defence, force protection and/or wider mission accomplishment, but also as a suspect who, once United Kingdom forces ceased to hold him and a suitable NDS facility was available, was to be handed over to the NDS rather than released. Whether exceptional circumstances for extended detention in this or any other sense existed which justified or could have justified detention by United Kingdom forces for longer than 96 hours is therefore an issue which should, in my view, be left open for further consideration at trial. The judges findings in relation to the second and third periods of SMs detention were made on the false premises that, firstly, once someone has been captured and disarmed, there can be no imperative reasons of security for detaining him further, and, secondly, that article 5 of the ECHR applied without qualification or addition. The judge also appears to have thought that a short term absence of capacity in the NDS Lashkar Gar detention facility would preclude a conclusion that SM was being held with a view to transfer there (see eg his para 348). That was wrong in my view, if there was a fair prospect of transfer there within a not unreasonable longer term period. I add that the Court of Appeal was incorrect, in para 250 of its judgment, to say that Mr Devine had stated about SM that his continued detention was not assessed to be necessary for force protection purposes. Likewise, if, contrary to my above conclusions, ISAF cannot be treated as having tacitly accepted the UKs changed policy in and after November 2009, it should still remain open to the UK to submit that SMs detention beyond 96 hours could and would have been authorised under ISAFs guidelines, had they been applied. That too will require factual inquiry and findings about the reasons for which SM was in fact held, as well as potentially about any other basis or bases on which he could and would have been held in any event, and in each case whether they would have constituted grounds for extended detention within the terms of the ISAF guidelines. Para 8 of the ISAF guidelines gives some limited, but not exclusive, examples of the exigencies which may justify extended detention. It also contemplates extended detention where it is deemed necessary in order to effect his release or transfer in safe circumstances. Whether the situation falls within these words or not, there must be a strong argument that the relevant exigencies could include, for example, extended detention when necessary because the person in question represented a real danger to UK forces or ISAFs mission generally, but could not for the meanwhile be transferred to Afghan custody because the Afghan facilities were for the time being either unsatisfactory or full. In these circumstances, and in common with Lord Sumption, (paras 86 and 87), I am not satisfied that Leggatt Js findings can be transposed to the present context, when the issue is now whether there were exceptional reasons which under UK policy, or alternatively, exigencies which under ISAF rules, justified SMs continuing detention during either or both of those periods. I would remit that issue for determination at the trial accordingly. Application of ECHR This brings me to consider whether and how far detention for exceptional reasons under UK policy or by reasons of exigencies under ISAF rules can be regarded as consistent or can be accommodated with article 5 of the ECHR. The Ministry of Defence relies upon article 5(1)(c) and (f) as heads expressly covering the present circumstances, alternatively upon the accommodation between the power to detain conferred by SCR 1546 and article 5 which I have already concluded (para 164 above) should be made in the context of non international armed conflicts such as those in Iraq and Afghanistan in which United Kingdom forces were engaged at the times relevant to these appeals. To the extent that SM was held with a view to handing him over to the NDS on reasonable suspicion of having committed an offence or offences, article 5(1)(c) would constitute a basis for his detention. It would, however, be necessary to go on to consider whether the United Kingdom had complied with article 5(3). Article 5(3) is (as Lord Sumption also notes in his para 96) not easy to fit into a context where the United Kingdom was not in a position to exercise judicial authority or power, or ever going to put SM on trial itself. Applying an approach similar to that taken in Hassan, it may be that it can be modified in the present context to accommodate administrative procedures undertaken by United Kingdom authorities. Alternatively, if articles 5(1)(c) and 5(3) do not, even with modification, fit the present circumstances, then, to the extent that SM was held with a view to his handing over to the NDS, there is to my mind attraction in Leggatt Js view that article 5(1)(f) can be regarded as applicable to a de facto transfer of jurisdiction between armed forces of different States in Afghanistan. It would then be necessary to consider whether the United Kingdom complied with article 5(4). However, even if neither article 5(1)(c) nor article 5(1)(f) directly applies, each offers an analogy which points towards and assists in identifying a more general accommodation between the international law power to detain and article 5. Under both article 5(1)(c) and (f), the Ministry of Defence faces a difficulty if its only actual motivation in continuing to detain during the second period was to interrogate. That, as I have stated, was not a legitimate basis under the SCR, any more than it is under the European Convention on Human Rights (see authorities cited by Lord Sumption in para 80). If there was in fact some other legitimate basis on which SM could and would still have been detained, then the question would arise whether, on showing this, the Ministry of Defence could bring itself directly within article 5(1)(c) or (f), or whether its relevance would simply be to the question whether SM should receive any (or what) damages. This would then merit further argument in due course before the judge. If neither article 5(1)(c) nor article 5(1)(f) applies directly, the question arises whether and how far the power conferred by SCR 1546 to detain for imperative reasons of security can and should be accommodated with article 5. For reasons indicated in paras 152 to 168 above, I consider that the two can and should be read together. But this is subject always to compliance with core procedural requirements modelled on the provisions of article 5(1), (3) and (4). With regard to article 5(1) (in accordance with a procedure prescribed by law), I am content to adopt what Lord Sumption says in his paras 91 to 93. With regard to article 5(3), which will arise for consideration if the circumstances prove on further consideration to make article 5(1)(c) relevant, I agree with Lord Sumption that the critical question is how far the requirements of article 5(3) can properly be adapted to the conditions of armed conflict in Afghanistan, and that this question should be left to be determined at the trial (see his paras 95 and 98 in particular). For completeness, I must address the argument raised by the First Interveners and considered by Lord Wilson in paras 136 140 that, whatever the international or Convention law position, compliance with domestic law (whether English law or the law of the place of detention or one or other is not entirely clear) is also required for any detention to be in accordance with law. This argument cannot, in my view, arise in Al Waheed in the light of the limited leap frog issue before the Supreme Court. In SM the argument was suggested below by Ms Fatima QC for the Interveners, but neither court found it necessary to deal with. However, the Ministry of Defence argued unsuccessfully for a reverse position, namely that it was authorised to detain SM by Afghan law, and this alone sufficed to justify SMs detention under article 5, whatever the international legal position. The Supreme Court has now decided to defer decision whether to grant permission to appeal on this issue. My own view is that Ms Fatimas argument fails for the reasons given by Lord Reed in his paras 343 345, which I understand to fit with those given by Lord Wilson in his para 139. But, if the view were to be taken that the argument does not fail for these reasons, this adds potentially to the significance of the issue on which the Court has now deferred any decision whether to grant permission to appeal (viz, whether Afghan law authorised detention in accordance with international law, and in particular in accordance with any Security Council Resolution authorising such detention). ECHR article 5(4): right to review of the lawfulness of detention Article 5(4) provides in terms that: Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. In Hassan, para 106, the European Court of Human Rights explained how this might be understood and adapted to cater for the exigencies of an international armed conflict: 106. As regards procedural safeguards, the Court considers that, in relation to detention taking place during an international armed conflict, article 5 paras 2 and 4 must also be interpreted in a manner which takes into account the context and the applicable rules of international humanitarian law. Articles 43 and 78 of the Fourth Geneva Convention provide that internment shall be subject to periodical review, if possible every six months, by a competent body. Whilst it might not be practicable, in the course of an international armed conflict, for the legality of detention to be determined by an independent court in the sense generally required by article 5 para 4 (see, in the latter context, Reinprecht v Austria, (2005) no 67175/01, para 31, ECHR 2005XII), none the less, if the Contracting State is to comply with its obligations under article 5 para 4 in this context, the competent body should provide sufficient guarantees of impartiality and fair procedure to protect against arbitrariness. Moreover, the first review should take place shortly after the person is taken into detention, with subsequent reviews at frequent intervals, to ensure that any person who does not fall into one of the categories subject to internment under international humanitarian law is released without undue delay. For reasons already given, I consider that this guidance is equally relevant in relation to the NIAC in which United Kingdom forces were engaged and in the context of which SM was captured and detained. In October 2012, a wide range of 24 states together with international organisations including the UN, NATO, the African Union, the European Union and the ICRC agreed on The Copenhagen Process: Principles and Guidelines. These were specifically intended to reflect generally accepted standards (Commentary, para 16.2) applicable to international military operations in the context of non international armed conflicts and peace operations (Introductory para IX). Principle and Guideline 12 reads: A detainee whose liberty has been deprived for security reasons is to, in addition to a prompt initial review, have the decision to detain reconsidered periodically by an impartial and objective authority that is authorised to determine the lawfulness and appropriateness of continued detention. This is both consistent with and supports the application to detention in the course of a NIAC of principles similar to those recognised in Hassan as appropriate in relation to an IAC. The possibility that SM could have sought habeas corpus while in United Kingdom forces custody was not pressed by Mr Eadie QC. Even assuming that a writ of habeas corpus could (contrary to the Ministry of Defences primary case) have lain, Mr Eadie was, as I understood him, prepared to accept that the possibility of seeking and obtaining such a writ would not, at least in the Afghan context, satisfy the modified requirements of article 5(4). On the other hand, it is not, I understand, suggested, and in any event could not, I think, realistically be suggested, that SM should have been afforded access to any local court prior to being handed over to an NDS detention facility. The question is therefore whether the legality of SMs detention was subject to periodic review by a competent body in the sense of a body providing sufficient guarantees of impartiality and fair procedure to protect against arbitrariness, the first such review taking place shortly after he was taken into detention, with subsequent reviews at frequent intervals thereafter. What is frequent must depend on the context in and basis on which a detainee is being held. But the European Court of Human Rights was, on the face of it, envisaging periodic reviews of greater regularity than if possible every six months, the phrase it quoted earlier in para 106 from the Fourth Geneva Convention. The scheme established by SOI J3 9 is detailed and clear. The reviews undertaken under it in respect of SM were very frequent, and the documentation relating to them can be seen (despite redactions for security reasons) to be impressive in its thoroughness. Criticisms are however directed in two main areas: (a) sufficiency of the guarantees of impartiality and (b) fairness of the procedure so far as concerns SMs involvement. Before considering these criticisms, it is appropriate to consider the purpose, in the context of the present case, of reviews such as those contemplated by Hassan, para 106, and by Copenhagen principle 12. The purpose is to ensure that detention only occurs and continues when there is good cause for it. For that reason, the detainee should be told why he is being detained, and given the opportunity to give his account of events as well as to pass information to the outside world which will reach his family. But, if this has occurred and a detainee is held as an active member of the Taliban and a continuing threat, with a view to his eventual transfer to NDS custody, the frequency of review which is required may well diminish. In the present case, the actual frequency of reviews was closely linked with the process of obtaining authorisation for further interrogation, but interrogation was not itself a basis for detention. What was a potential basis for detention was the risk that SM posed to United Kingdom forces and the ISAF mission and the intention to transfer him into NDS custody with a view to further investigation and/or criminal prosecution. In the present case, SM was arrested during armed operations and extracted under heavy and sustained small arms and RPG fire in a process which took ten hours. He must have known that he was being arrested as an insurgent, and he responded to questioning by saying that he was a farmer: see para 195 above. He was then taken to Camp Bastion where he was interviewed through an interpreter, told that he had been detained as a threat to the ISAF mission and further told that he would be either released or transferred to the Afghan authorities as soon as possible. He was then given the opportunity of making a statement about his detention. Form Annex A Rights of a detainee, which was (on the currently assumed facts) accurately translated to him and signed by SM by thumbprint, records SMs response and information which he was given, in the following terms: I was working in the field 9 12. Helicopter came so I layed down in my Field, they let the dog attack me and then arrested me. Likewise, he was informed of his right to contact the ICRC by letter at any time during your detention here. No subsequent information came to light to change the United Kingdom forces assessment of SMs role and involvement with the Taliban in any way which could have militated in favour of his release, rather than his detention and transfer in due course into NDS hands. On the contrary, such further information as came to light merely strengthened the grounds for considering that he was an insurgent: see para 196 above. In fact, SM was also interrogated over a period during which he maintained an obstructive approach to questioning and persisted in his denial of involvement in the insurgency and specifically Obj WHITE, as recorded in Annex G relating to the eighth successive 72 hour review. So it is clear that he did have further opportunities to give his account and to provide any information which might put a different complexion on his involvement. Against this background, I turn more specifically to the two areas of criticism. As to (a), sufficiency of the guarantees of impartiality, the Court of Appeal dealt with this at some length, on the assumption that (although it took place on 9 10 April 2010) the initial review as well as all the subsequent reviews were all conducted in accordance with the revised Detention Authority regime set out in Amendment 2 of SOI J3 9 dated 12 April 2010. The Court of Appeal noted that under Amendment 2 the Detention Authority was the Commander of Joint Force Support (Afghanistan), and went on (para 288): Amendment 2, para 12 states that his continuing duty as the Detention Authority to ensure that each detention is justified provided an independent level of review for all detention operations, and that the Legal Advisor is a member of the Detention Review Committee. We note that it is also stated that the core members of the Detention Review Committee must remain outside the chain of command for targeting and tactical legal issues, although they are not wholly outside the chain of command in the Theatre. The Court of Appeal went on to point out (para 289) that the judge had made no detailed findings about the nature of this relationship (because he did not need to in the light of his view that strict compliance with article 5 was necessary and because he was only dealing with preliminary issues), and continued: This, together with the fact that this issue was only explored in the Secretary of States post hearing note on outstanding issues, means that we have limited information as to the precise relationship of the chain of command which has the Commander of Joint Force Support (Afghanistan) at its pinnacle and those responsible for detaining a person. The court lacks the factual context required to reach a decision about the independence of the reviewing body. That would include details of the precise chain of command in Afghanistan, and the meaning of the statement that the core membership must remain outside the chain of command for targeting and tactical reasons. However, the Court of Appeal went on to give some guidance, stating: 291. We doubt whether a Detention Authority squarely within the chain of command in the relevant theatre, advised by a committee consisting of members who are either the subordinates of the Detention Authority or otherwise within the chain of command under him meets the requirement of independence and impartiality. and 292. As to whether that regime satisfied the requirements of independence and impartiality, we know that the core membership included the Commanding Officer of the Intelligence Exploitation Force and the Force Provost Marshal. The relationship of the legal adviser who was also a core member of the Detention Review Committee and those responsible for tactical legal issues, who it was stated should not be core members, was not explained. We, however, note that the legal and political Advisers and the Force Provost Marshal provided advice to the Detention Authority as to whether to release, transfer or detain in the first 48 hours. The Force Provost Marshal was stated to be the subject matter specialist for detention issues. This does not sit easily with, and might even be thought to be contrary to the requirement that all members of the Committee should be able to present cases cold to the Detention Authority. Moreover, the Detention Authority reported to military superiors, and MoD civil servants advised a government minister who made the decision about whether to authorise further detention. For these reasons, we also doubt that the new regime was sufficiently independent, although our doubts are of a lesser order than those concerning the former Detention Authority regime. During the hearing before the Supreme Court, Mr Eadie produced a list giving the full composition of the Detention Review Committee as well as explaining some of the acronyms used in Amendment 2. But for my part I do not think that the picture is materially clearer than it was before the Court of Appeal. Both the Court of Appeal and Lord Sumption in para 105 of his judgment also adopt the concept of independence as an element of the appropriate test. To my mind, that risks introducing too formal an aspect into an essentially military review. It is notable that the European Court of Human Rights in Hassan, para 106, used only the word impartial, while Copenhagen principle 12 spoke only of review by an impartial and objective authority. I am not confident that the Supreme Court knows enough about the relationships between the various ranks and posts identified in the list that the Court has been given or the way in which the military operates to be able to condemn the review system introduced by Amendment 2 as inadequate. Appellate judges with no military experience sitting thousands of miles from the theatre of armed conflict should, I think, be very cautious to assess the impartiality of a group of officers from or about whom, or of a process about which, they have heard no oral evidence. This should be left to the judge who will at trial have had the opportunity of hearing evidence and making findings about these matters. On this, I see no reason for us, sitting in the Supreme Court, to disagree with the Court of Appeal. Up to this point, I have focused on the process before the Detention Authority and Detention Review Committee. I have done so, because the material available suggests to me that it was only at this level that the existence and level of any threat presented by SM were assessed. So far as appears, and subject to anything that may emerge at trial, it appears that the matter only went to a higher level (that is to Permanent Joint Headquarters (PJHQ) and ultimately to ministerial level) in the context of the 14 day reviews which were undertaken under Amendment 2 Part II paragraph 29 using Annex H, to gain permission for further detention for further interrogation. Annex H does not appear to have included information directed at enabling either PJHQ or ministers themselves to form any view on whether SM presented a threat which itself justified further detention pending transfer into NDS hands. Both paragraph 27 of Part II of Amendment 2 to SOI J3 9 and the way in which Annex H was itself completed focus on the value of the intelligence which any extension of detention might provide for force protection and/or (more generally) for a better understanding of the nature of the insurgency. I would add that in the light of what I have said in paras 209 211 above, I find it difficult to see that the circumstances of SMs detention called for reviews every 72 hours or even every 14 days directed to the question whether he was a threat to United Kingdom forces or the ISAF mission. If he was a threat on capture, as he clearly was on the assumed facts, there was nothing to make that threat go away. Rather, as I have said, the only information becoming available simply strengthened the case for regarding him as a threat. There was no change in the general situation in Afghanistan to affect this. The reason for the regular reviews which actually occurred was the repeated need to authorise further interrogation. But that was not by itself a justified reason for detention (and one might add that, if it had been, it could hardly be expected that SM would be offered the opportunity to make observations on the course of interrogation so far or the merits or otherwise of further interrogation). I turn to (b), the fairness of the procedure as regards SM. For the reasons I have already given, he was in my view given and in possession of sufficient information about the case against him at the outset, and had an appropriate opportunity of responding to it. He must have known that this was part of a process of considering the appropriateness of his continuing detention. Likewise, to the extent that he was held thereafter because he would if released have been a threat and was being held pending transfer to the NDS, I cannot see what any further opportunity or opportunities to comment could have offered him in practical terms. However, I accept that in order to avoid leaving a suspect in SMs position in silent limbo, and in some contexts perhaps also to minimise the risks of ill treatment there is an intrinsic value in having a suspects case reviewed at regular intervals and informing him of the opportunity to make representations. This is so, even if such reviews appear unlikely to lead to any change in his treatment or detention. Here, SM was not, so far as appears, informed about any review process or offered any opportunity of making representations in that connection (although he was offered the opportunity at any time of contacting the ICRC). On the face of it, the United Kingdom fell short in this respect of providing him with the appropriate procedural guarantees. However, the claimant is seeking damages, expressly including just satisfaction. In this context, it seems highly unlikely indeed contrary to all the evidence presently available to suggest that there would have been any prospect that informing SM about any review process, or offering him any opportunity of making representations in respect of it, would have made any difference to actual events. There is of course a question whether SMs handing over to the NDS was delayed, or (putting the point the other way around) whether his detention in United Kingdom hands was extended, by the fact that the United Kingdom regarded him as a potential source of information material to the success of the ISAF mission, and repeated extensions of his detention were sought and obtained on that ground. He was not notified of the reviews which led to such extensions. Had he been notified, he might, at least in theory, have objected to any extensions with that purpose in mind. Had that objection (however implausible it may seem) been given weight, the question would at once have arisen whether there was any other basis for United Kingdom forces continuing to detain him. The United Kingdom authorities would then have had to consider, earlier than it appears they did, the question whether there was any NDS detention facility with spare capacity to which they could properly transfer SM. Again, however, so far as one can presently see, such a process may well have led to no more than SM remaining in United Kingdom custody pending transfer to NDS or his slightly earlier transfer from United Kingdom to NDS custody. Either way, a claim for substantial damages might be optimistic. In the light of the above, I, for my part, would limit myself to the views expressed, and remit the whole case to the judge for trial on that basis. Conclusions The appeal in Al Waheed is not concerned with the question whether minimum procedural standards were established and applied in relation to the relevant detention. I agree with its disposition as Lord Sumption proposes. As to SM, whether the United Kingdom was or would have been entitled to detain him after the expiry of a 96 hour period, that is after 11 April 2010, depends upon whether it can show, firstly, that detention was required for imperative reasons of security, and, secondly, that exceptional circumstances under the UK policy (or alternatively exigencies under ISAF guidelines) existed justifying United Kingdom forces in continuing to act as the detaining authority, rather than handing the detainee over to Afghan authorities. This and the further issue whether failure to provide SM with an appropriate review process in any respect led to any extended detention or other loss should be remitted for determination at the trial. LORD HUGHES: (with whom Lord Neuberger agrees) The ground in this case has been comprehensively covered by the judgments above. It would not help to repeat the valuable analysis offered. Subject to what follows, I agree with the judgments of Lord Mance, Lord Wilson and Lord Sumption. It is necessary to address three points on which these judgments do not agree, and one further point which is considered by Lord Wilson at paras 136 140. The first difference is whether the UN Security Council resolutions concerning Afghanistan conferred authority to detain (and to lay down rules about detention) upon ISAF as an entity (as Lord Mance says) or upon the troop contributing member nations through the medium of ISAF (as Lord Sumption and Lord Wilson say). This difference has no impact on the outcome of the appeal in the case of Serdar Mohammed because, as Lord Mance concludes, ISAF in any event endorsed the decision of the United Kingdom to adopt its own detention policy, as was also the position in relation to the USA and Canada. I therefore doubt if it is necessary to express a concluded view on this topic, but, subject only to observing that the authority to troop contributing member nations is clearly premised on mutual co operation although not on precise identity of polices, I presently prefer the analysis of Lords Sumption and Wilson. The second difference relates to whether there has been established an infringement of article 5(4) ECHR on the grounds that the United Kingdom system of internal review in Afghanistan failed to achieve sufficient impartiality. On this topic I agree with Lord Mance, for the reasons he gives, that that suggested shortcoming has not been established, and accordingly do not agree with the contrary conclusion of Lords Sumption and Wilson. I particularly support Lord Mances observations in the last four sentences of para 215. I also agree with both Lord Mance and Lord Sumption that it is very questionable that any further opportunity to state his case could have made any difference to Serdar Mohammed. The third difference concerns the possible application of article 5(1)(f). On this topic I agree with Lord Mance at paras 202 203. My primary conclusion is, like Lords Mance, Sumption and Wilson, that the very terms of article 5(1)(f), as well as those of other subparagraphs, demonstrate that in the context of armed conflict the article must be interpreted on the principle explained in Hassan. If, however, that were to be wrong, then it seems to me that subparagraph (f) is capable of including situations in armed conflict when one State detains for the purpose of handing over the detainee to another. I should add that I doubt if there is a difference between Lord Mance and Lord Sumption as to the possible application of article 5(1)(c). On the findings of fact made by the judge at para 333 it cannot apply to the second period of Serdar Mohammeds detention but if he could have been detained in that period for the purpose of producing him to the Afghan authorities, this goes to the question whether he is entitled to any, or if so what, award of damages. The additional point considered by Lord Wilson at paras 136 140 concerns the relevance of the domestic law of the country concerned. As to that, I agree with the conclusions of Lord Mance at para 204, for the reasons which he gives and in the light of the observations of the ECtHR in calan v Turkey (2005) 41 EHRR 45, cited by Lord Reed at para 345. LORD TOULSON: My involvement in this appeal has been in relation to all issues except the procedural requirements of articles 5(1), 5(3) and 5(4) of the Convention in relation to the detention of Serdar Mohammed. On all those issues I agree, subject to one point, with the judgments of Lord Mance, Lord Wilson and Lord Sumption. The one point is that discussed in para 226 of Lord Hughes judgment with which I agree. LORD HODGE: My only involvement in this appeal has been the hearing on 26 October 2016, following the retirement of Lord Toulson, at which the court considered the procedural requirements of articles 5(1), 5(3) and 5(4) of the Convention in relation to the detention of Serdar Mohammed. On those matters I agree with the judgment of Lord Sumption at paras 68 and 90 110 and with the declarations which he proposes at para 111(4), (5) and (6). LORD REED: (dissenting) (with whom Lord Kerr agrees) I agree in part with the conclusions reached by Lord Sumption, in which the majority of the court concur. In particular, I agree that Mr Mohammeds detention by HM Forces after 11 April 2010 did not fall within article 5(1)(f) of the European Convention on Human Rights, and that his detention between 11 April and 4 May 2010 did not fall within article 5(1)(c). I also agree that the arrangements for his detention did not fall within article 5(4), and that the question whether they complied with article 5(3) should be considered after trial. I also agree that the Ministry of Defence is in principle liable to pay compensation to Mr Mohammed if and in so far as his detention was prolonged by his detention by HM Forces between 11 April and 4 May 2010 for intelligence exploitation purposes. There are also some matters on which I have reached a different conclusion, in agreement with the courts below: in particular, whether UN Security Council Resolutions (SCRs) 1546 (2004) and 1890 (2009) should be interpreted as authorising detention in circumstances other than those specified in article 5(1)(a) to (f) of the Convention, and in consequence whether HM Forces were entitled to detain Mr Al Waheed and Mr Mohammed in such circumstances, pursuant to those SCRs. Having reached that conclusion, I also require to consider whether a right to detain was conferred by international humanitarian law, an issue on which Lord Sumption does not (and does not require to) reach a concluded view. In relation to that issue, I conclude that no right of detention arose under international humanitarian law. I therefore reach the conclusion that Mr Mohammeds detention between 11 April and 4 May 2010, being authorised neither by an SCR nor by international humanitarian law, was in violation of article 5(1). Given the importance of the issues, and the potential influence of this courts decision, I have thought it right to prepare a reasoned judgment. As it is a long judgment which discusses many issues and arguments, I shall summarise my main conclusions at the outset, with references to the sections of the judgment containing the relevant discussion: (i) Conventional (ie treaty based) international humanitarian law provides no authority for detention in a non international armed conflict (paras 243 270 and 274). (ii) Customary international humanitarian law, in its present state of development, provides no authority for detention in a non international armed conflict (paras 256 257, 271 273 and 275 276). (iii) For the purpose of applying the European Convention on Human Rights, UN Security Council Resolutions should be interpreted on the basis that there is a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights; that, in the event of ambiguity, the court must choose the interpretation which is most in harmony with the requirements of the Convention; and that it is to be expected that clear and explicit language will be used if the Security Council intends states to take measures which would conflict with their obligations under international human rights law (paras 277 289). (iv) The judgment of the Grand Chamber of the European Court of Human Rights in the case of Hassan v United Kingdom [2014] BHRC 358 should not be interpreted as entailing a departure from that approach (paras 290 300). (v) The court should depart from the decision of the House of Lords in Al Jedda v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58; [2008] 1 AC 332, that SCR 1546 imposed an obligation to detain in circumstances other than those listed in sub paras (a) to (f) of article 5(1) of the Convention, which prevailed over the obligation to comply with the Convention by virtue of article 103 of the Charter of the United Nations (paras 304 305). (vi) Hassan should not be interpreted as warranting the modification of article 5(1) so as to permit detention in circumstances not falling within sub paras (a) to (f), in relation to the detention authorised in Iraq by SCR 1546 (2004), as extended by SCRs 1637 (2005) and 1723 (2006) (paras 292 297 and 307 315). (vii) Interpreting SCR 1546 consistently with the Convention, Mr Al Waheeds detention by HM Forces was compatible with article 5(1) of the Convention only if he was detained in circumstances falling within sub paras (a) to (f) (para 316). (viii) Hassan should not be interpreted as warranting the modification of article 5(1) so as to permit detention in circumstances not falling within sub paras (a) to (f), in relation to the detention authorised in Afghanistan by SCR 1386 (2001), as extended by SCR 1890 (2009) (para 324). (ix) Interpreting SCRs 1386 and 1890 consistently with article 5(1), HM Forces had authority to detain Mr Mohammed under the SCRs for more than 96 hours only in circumstances falling within sub paras (a) to (f) of article 5(1) (paras 322 334). (x) Mr Mohammeds detention by HM Forces between 11 April 2010 (ie the end of the initial period of 96 hours) and 4 May 2010 was for the purpose of obtaining intelligence. It did not fall within sub paras (a) to (f) of article 5(1) (paras 335 346 and 351). (xi) Mr Mohammeds detention during that period was in any event for a purpose falling outside the scope of the authority granted by SCR 1890, and was therefore for that reason also incompatible with article 5(1) (paras 343 and 352 353). (xii) Mr Mohammeds detention by HM Forces after 4 May 2010 fell within the scope of article 5(1)(c) of the Convention, and was not incompatible with article 5(1) (paras 347 350 and 354 357). (xiii) The arrangements for Mr Mohammeds detention were not compatible with article 5(4), since he did not have any effective means of challenging the lawfulness of his detention (para 359). (xiv) Whether there was a violation of article 5(3) of the Convention should be considered after trial (para 359). Article 5 of the European Convention on Human Rights Article 5(1) of the Convention defines the circumstances in which persons may be detained. It begins: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. In relation to the question whether a procedure prescribed by law has been followed, the Convention refers essentially to national law but also, where appropriate, to other applicable legal standards, including those which have their source in international law: Medvedyev v France (2010) 51 EHRR 39, para 79. Medvedyev itself provides an example of a situation where the legal basis of detention was assessed by reference to international law, since the detention took place on the high seas. There follows in sub paragraphs (a) to (f) a list of circumstances in which detention is permissible. They do not include detention for reasons of security, or for the gathering of intelligence. The only ones which are relevant to these appeals are those set out in sub paragraphs (c) and (f): (c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; . (f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition. The remaining paragraphs of article 5 are concerned with procedural protections against arbitrary detention: 2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him. 3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial. 4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. 5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation. Although the conflicts in Iraq and Afghanistan with which these appeals are concerned took place outside Europe, the European Court of Human Rights has held that a contracting state which detains persons in a situation of armed conflict, outside its own territory, has those persons within its jurisdiction for the purposes of article 1 of the Convention, so that the Convention is applicable. That approach has been applied in particular to the detention of persons by HM Forces operating in Iraq during both the international and the non international phases of the armed conflict there (the distinction between the international and non international phases will be explained shortly): see Al Skeini v United Kingdom (2011) 53 EHRR 18, Al Jedda v United Kingdom (2011) 53 EHRR 23 and Hassan v United Kingdom (2014) 38 BHRC 358. The substantive guarantees set out in the Convention have been given effect in the domestic law of the United Kingdom by the Human Rights Act 1998. In so far as HM Forces operating in conflicts overseas may have been acting in circumstances which engaged the United Kingdoms responsibilities under the Convention, and in so far as the Human Rights Act is applicable to those overseas operations, any breach of the Convention rights by those forces falls within the jurisdiction of British courts. The central question which has to be determined at this stage of these appeals is how article 5 applied in the context of the phases of the armed conflicts in Iraq and Afghanistan during which Mr Al Waheed and Mr Mohammed were respectively interned by HM Forces. It is contended on behalf of the Secretary of State that detention in these non international armed conflicts was authorised under international law by one or more of (1) treaty based international humanitarian law, (2) customary non international law, or (3) the relevant SCRs. It is further contended that article 5(1) is modified in its application to these conflicts so as to accommodate the authorisation of detention under international humanitarian law or the relevant SCRs, with the consequence that the list of permissible grounds of detention set out in sub paras (a) to (f) is not to be regarded as exhaustive. It is also contended that detention in these conflicts satisfied the requirement in article 5(1) that any deprivation of liberty must be in accordance with a procedure prescribed by law. In considering these contentions, it is necessary to consider the relationship between the Convention, international humanitarian law, and SCRs. It is also necessary to consider the extent to which the application of international humanitarian law and international human rights law depends on the nature of the armed conflict in question: whether, in particular, it is classified under international humanitarian law as an international or a non international armed conflict. It may be helpful at the outset to consider the meaning of these terms. International and non international armed conflict Non international armed conflict is an expression which has no universally agreed definition, but can be understood for present purposes as referring, in the language of article 3 of all four of the Geneva Conventions of 1949 (common article 3), to armed conflict not of an international character, as opposed to international armed conflict, which can be understood as referring, in the language of common article 2, to cases of declared war or of any other armed conflict which may arise between two or more of the high contracting parties. So understood, non international armed conflict includes conflict in which organised armed groups engage in hostilities against a state. Such conflict may be purely internal to the state concerned, or it may not. It may include situations where a foreign state intervenes in an internal armed conflict in support of the government of the state concerned, at its invitation or with its consent. Such conflict is to be distinguished from conflict in which one state engages in hostilities against another, which falls into the category of international armed conflict. Examples of non international armed conflict involving the intervention of foreign armed forces include certain phases of the recent conflicts in Iraq and Afghanistan. Although the conflict in Iraq began as an international armed conflict conducted by coalition forces against the Iraqi armed forces, a multi national force, to which about 40 states contributed, remained there after that war had concluded and a new Iraqi Government had been established, so as to assist the Iraqi Government in combating insurgents. That phase of the conflict was a non international armed conflict. Similarly, when an international security assistance force, to which about 50 states contributed, assisted the Government of Afghanistan in its struggle against the Taliban, that also was a non international armed conflict. Detention and the Geneva Conventions It is necessary next to consider the significance of the distinction between international and non international armed conflicts in relation to the authorisation of detention under international humanitarian law. In that regard, it is helpful to begin by considering the relevant provisions of the Geneva Conventions. Traditionally, international humanitarian law, like other international law, was concerned almost entirely with the reciprocal relationships between states, and therefore with conflicts between states rather than internal conflicts between a state and its subjects (subject to exceptions under customary law where internal conflicts affected relationships with other states). It was therefore concerned only with international armed conflict (subject, as I have explained, to limited exceptions). Atrocities committed in civil wars led however to the adoption, as part of the Geneva Conventions, of a limited measure of treaty based regulation of non international armed conflict under common article 3. That article provides for the humane treatment of those who may have been involved in armed conflict not of an international character occurring in the territory of one of the high contracting parties. It states in para 1: Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed hors de combat by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely . It goes on to prohibit specific acts, such as torture and rape. Common article 3 was later supplemented by Additional Protocol II to the Geneva Conventions (1977). This is narrower in scope than common article 3 in two important respects. First, it is only applicable in armed conflicts taking place on the territory of a state that has ratified it. Those states do not include several states in which non international armed conflicts have recently taken place, including Iraq and, until November 2009, Afghanistan. It also applies to a more limited category of armed conflicts than common article 3: namely, those that take place in the territory of a contracting party between its armed forces and dissident armed forces which, under responsible command, exercise such control over a part of its territory as to be enable them to carry out sustained and concerted military operations and to implement [the obligations imposed by the Protocol]. Certain categories of armed conflict are excluded: first, armed conflicts in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self determination, and secondly situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature. The Protocol spells out rules of humane treatment in greater detail than common article 3, and lays down minimum standards in relation to the prosecution and punishment, under domestic law, of criminal offences related to the armed conflict. By comparison, the Geneva Conventions deal much more fully with the treatment of those involved in international armed conflict. In relation to the present appeals, it is relevant to note in particular the provisions concerned with the detention of prisoners of war and civilians. In relation to the first of these categories, article 21 of the Third Geneva Convention authorises the detention of prisoners of war: The Detaining Power may subject prisoners of war to internment. The persons who may be detained under this power are defined in detail by article 4(A). They include members of armed forces of a party to the international armed conflict (article 4(A)(1)), members of other armed forces who profess allegiance to a party to the conflict (article 4(A)(3)), members of militias fulfilling certain conditions (article 4(A)(2)), and persons who accompany the armed forces, such as civilian contractors and war correspondents (article 4(A)(4)). The treatment of prisoners of war during their internment is also the subject of detailed regulation. Under article 118 of the Third Geneva Convention, they must be released and repatriated without delay after the cessation of active hostilities in the international armed conflict. So far as civilians are concerned, the Fourth Geneva Convention is concerned with protected persons, defined by article 4 as those who at a given moment and in any manner whatsoever, find themselves, in case of a conflict or occupation, in the hands of a Party to the conflict or Occupying Power of which they are not nationals. That general definition is then subject to a number of exclusions, such as nationals of a neutral state who find themselves in the territory of a belligerent State . while the State of which they are nationals has normal diplomatic representation in the State in whose hands they are. In the section of the Convention dealing with aliens in the territory of a party to the conflict, article 41 prohibits measures of control of protected persons more severe than assigned residence or internment. Article 42 sets out the permitted grounds of internment, and provides that the internment . of protected persons may be ordered only if the security of the detaining power makes it absolutely necessary. The International Criminal Tribunal for the former Yugoslavia has interpreted article 42 as permitting internment only if there are serious and legitimate reasons to think that the interned persons may seriously prejudice the security of the detaining power by means such as sabotage or espionage: Prosecutor v Zejnil Delali, Case No: IT 96 21 T, Trial Chamber, 16 November 1998, para 1132. Article 43 lays down procedures governing internment: Any protected person who has been interned . shall be entitled to have such action reconsidered as soon as possible by an appropriate court or administrative board designated by the detaining power for that purpose. If the internment . is maintained, the court or administrative board shall periodically, and at least twice yearly, give consideration to his or her case, with a view to the favourable amendment of the initial decision, if circumstances permit. Article 46 requires that restrictive measures taken regarding protected persons, in so far as they have not previously been withdrawn, must be cancelled as soon as possible after the close of hostilities in the international armed conflict. Further provision for the detention of civilians is made in the section of the Fourth Geneva Convention dealing with occupied territories. Article 68 is concerned with protected persons who commit an offence which is solely intended to harm the occupying power. In the case of certain specified types of offence, such persons are liable to internment, provided its duration is proportionate to the offence committed. A further power of internment is provided by article 78: If the occupying power considers it necessary, for imperative reasons of security, to take safety measures concerning protected persons, it may, at the most, subject them to assigned residence or to internment. Decisions regarding such assigned residence or internment shall be made according to a regular procedure to be prescribed by the occupying power in accordance with the provisions of the present Convention. This procedure shall include the right of appeal for the parties concerned. Appeals shall be decided with the least possible delay. In the event of the decision being upheld, it shall be subject to periodical review, if possible every six months, by a competent body set up by the said power. Article 79 of the Fourth Geneva Convention prohibits the internment of protected persons other than in accordance with articles 41, 42, 43, 68 and 78. Detailed provision is made elsewhere in the Fourth Geneva Convention in relation to the treatment of internees. Article 132 requires that each interned person shall be released as soon as the reasons which necessitated his internment no longer exist, and article 133 provides that internment shall cease as soon as possible after the close of hostilities, subject to specified exceptions. Whereas articles 4 and 21 of the Third Geneva Convention, and articles 4, 42, 43, 68 and 78 of the Fourth Geneva Convention, confer explicit authority to detain in an international armed conflict, and contain detailed provisions concerning the grounds and procedures governing detention in those circumstances, no comparable treaty provisions of international humanitarian law apply in relation to non international armed conflicts. Instead, legal authority for the detention of participants in a civil conflict, and the grounds and procedures governing detention in those circumstances, are normally regulated by the domestic law of the state where the conflict occurs. They may also be regulated for some purposes by the domestic law of the detaining state, if different from the state where the conflict occurs; or by SCRs. It will be necessary to return to the latter possibility. This distinction reflects the fact that prisoners of war have committed no offence by their participation in an international armed conflict. They are detained purely as an administrative measure, for the duration of the hostilities. Non state actors who participate in a non international armed conflict, on the other hand, commit offences against the law of the country in question when fighting to overthrow its government (as in most, but not all, non international armed conflicts), and killing or injuring individuals in the course of doing so. They are therefore subject to penal proceedings, including detention pending trial or following conviction. The distinction has long been understood and accepted by the British Government. For example, during the Troubles in Northern Ireland, participants in the violence, other than the forces of the Crown, were treated as criminals under domestic law rather than as prisoners of war. When the Government wished to impose administrative internment on suspected members of the IRA, instead of dealing with them through the criminal justice system, Parliament enacted legislation in order to enable it to do so. The Ministry of Defence summarised the general position in The Joint Service Manual of Armed Conflict (2004 ed), paras 15.6.2 15.6.3: Unlike combatants in an international armed conflict, members of dissident armed forces remain liable to prosecution for offences under domestic law. These can include normal acts of combat for example, a dissident combatant who kills or injures a member of the government forces may be prosecuted for murder or other offences against the person and even membership of the dissident group. A member of the security forces who kills a dissident or a civilian will also have to justify his actions under domestic law and may be tried before the courts for any offence he may have committed. A captured member of dissident fighting forces is not legally entitled to prisoner of war status. He may be dealt with according to the law of the state for any offences he may have committed. A member of the security forces who is captured by the dissidents is not entitled to prisoner of war status but any mistreatment of him is likely to amount to an offence against the law of the state. Prisoner of war status does not arise in internal armed conflicts unless the parties to the conflict agree, or decide unilaterally, as a matter of policy, to accord this status to detainees. Otherwise, the treatment of detainees is governed by the domestic law of the country concerned, and human rights treaties binding on that state in time of armed conflict and the basic humanitarian principles mentioned in [common article 3 and Additional Protocol II]. It added at para 15.30.3: Arguments in favour of the view that detention in non international conflicts is authorised by international humanitarian law Some commentators have argued that international humanitarian law impliedly authorises the detention of persons in a non international armed conflict: see, for example, Gill and Fleck, The Handbook of the International Law of Military Operations (2010), p 471, and Pejic, Procedural principles and safeguards for internment/administrative detention in armed conflict and other situations of violence (2005) 87 International Review of the Red Cross 375, 377. In summary, such arguments place reliance on the reference to detention in common article 3, and the reference to persons interned or detained in Additional Protocol II. They argue that common article 3 and Additional Protocol II, in requiring detention in non international armed conflicts to comply with certain humanitarian standards, impliedly recognise that detention is authorised by international humanitarian law in such circumstances. They also argue that, since states are undeniably entitled to use lethal force in combating insurgents in non international armed conflicts, they must also be authorised to use the lesser alternative of detention. It is inherent in the nature of any armed conflict that parties to such a conflict may capture persons who, if at liberty, would pose a threat to their security. There must, it is contended, be an implied authority under international humanitarian law to intern such persons, since otherwise the alternatives would be either to release them or to kill them. A related approach has been adopted by the International Committee of the Red Cross (ICRC) in its Opinion Paper, Internment in Armed Conflict: Basic Rules and Challenges (2014), where it distinguishes between traditional non international armed conflict, occurring between government armed forces and non state armed groups, and non international armed conflict with an extraterritorial element, in which the armed forces of one or more state, or of an international or regional organisation, fight alongside the armed forces of a host state, in its territory, against one or more organised non state armed groups (p 7). In a situation of traditional non international armed conflict, the ICRC Opinion Paper acknowledges that domestic law constitutes the legal framework for possible internment whereas, in a situation of non international armed conflict with an extraterritorial element, the Opinion Paper contends that common article 3 and Additional Protocol II, and also customary international humanitarian law, reflected in those instruments, contain an inherent legal basis to intern (pp 7 8). Arguments against that view As a matter of policy, there is much to be said for the view that international humanitarian law should recognise a right to intern in non international armed conflicts with an extra territorial element. As statements of the current state of the law, however, these contentions are controversial. Many scholars take a different view: to give only a few recent examples, see Conte, The legality of detention in armed conflict, in The War Report 2014 (2015), ed Casey Maslen; Dinstein, Non International Armed Conflicts in International Law (2014), para 274; Debuf, Captured in War: Lawful Internment in Armed Conflict (2013), p 465; Goldman, Extraterritorial Application of the Human Rights to Life and Personal Liberty, Including Habeas Corpus, During Situations of Armed Conflict, in Research Handbook on Human Rights and Humanitarian Law (2013), eds Kolb and Gaggioli, p 121; Hill Cawthorne, Detention in Non International Armed Conflict (2016), Chapter 3; Milanovic, The Applicability of the Conventions to Transnational and Mixed Conflicts, in The 1949 Geneva Conventions: A Commentary (2015), Clapham, Gaeta and Sassli (eds), pp 46 47; Rona, Is there a Way Out of the Non International Armed Conflict Dilemma? (2015) 91 International Law Studies 32; Rowe, Is there a right to detain civilians by foreign armed forces during a non international armed conflict? (2012) 61 ICLQ 697, 702; and Sivakumaran, The Law of International Armed Conflict (2012), p 71. The contentions set out in paras 256 and 257 above have also been rejected by the International Commission of Jurists in its Legal Commentary on the Right to Challenge the Lawfulness of Detention in Armed Conflict (2015), pp 16 23. Considering first the contention that the Geneva Conventions and their Protocols impliedly authorise detention in non international armed conflicts, the arguments against that view can be summarised as follows. Textual arguments First, whereas articles 4 and 21 of the Third Geneva Convention (concerning prisoners of war), and articles 4, 42, 68 and 78 of the Fourth Geneva Convention (concerning civilians) confer express authority to detain specified categories of person on specified grounds in situations of international armed conflict, the Conventions and their Additional Protocols contain no provisions expressly conferring such authority in situations of non international armed conflict. Applying ordinary principles of interpretation (expressio unius, exclusio alterius), it is unlikely in those circumstances that the contracting parties intended to confer such authority by implication. Secondly, the Geneva Conventions and Additional Protocol II are silent as to the grounds of detention and the applicable procedural safeguards in a non international armed conflict, in contrast to the detailed provision made for international armed conflict. It is argued that it is difficult to suppose that these instruments were intended to confer an authority to detain, or to interpret them as doing so, when they contain no indication of the scope of the power supposedly conferred. The ICRC Opinion Paper suggests that these matters can be addressed, in the context of an extraterritorial non international armed conflict, by an ad hoc international agreement between the international forces and the host state, or by the domestic law of the host state (p 8). In that event, however, the legal basis for detention would be the international agreement or domestic law. Contextual arguments It is also argued that there are cogent reasons why the states negotiating the Conventions and their Additional Protocols are unlikely to have intended to confer any such authorisation. It is apparent from the travaux prparatoires that states regarded it as important to maintain their sovereignty over internal matters. Common article 3 was a controversial measure, the British delegate, for example, objecting that it would strike at the root of national sovereignty (Final Record of the Diplomatic Conference of Geneva of 1949: Vol II, Section B (1963), p 10). It has to be remembered that it was only in the aftermath of the Second World War that the scope of international law was widely extended to matters internal to sovereign states. In that regard, common article 3 was connected to other developments, including the emergence of international human rights law, with the Universal Declaration of Human Rights (1948) and the International Covenant on Civil and Political Rights (ICCPR) (1966), together with regional instruments such as the European Convention on Human Rights (1950). Similar concerns about sovereignty were also expressed by numerous states during the diplomatic conference which led to Additional Protocol II (see Hill Cawthorne, op cit, pp 23 24). A further concern was to avoid giving the appearance of a legitimate status to those who rebel against their government (ibid, pp 25 26). The British delegate in 1949 commented, for example, that the application of the Conventions [to internal conflicts] would appear to give the status of belligerents to insurgents, whose right to wage war could not be recognised (Final Record, Vol II, Section B, p 10). In so far as common article 3 raised that concern, it was addressed by common article 3(4), which makes clear that the legal status of the parties to the conflict is not altered. It is argued that it is unlikely, given those concerns, that the parties intended to depart from the position that the detention of captured insurgents was governed by domestic law, subject to guarantees of humane treatment. Furthermore, since international humanitarian law is generally understood as being reciprocal in its operation (unlike international human rights law, which is directly binding only on states), the authorisation of detention in non international armed conflicts would have entailed that states recognised the legitimacy of detention by dissident armed groups (for example, the legitimacy of the detention of British and American troops in Afghanistan by the Taliban): something which would be anathema to most states. Arguments against inferential reasoning Fourthly, in so far as the contentions are based on an inference, from the fact that common article 3 and Additional Protocol II require a minimum level of humanitarian treatment for people who are detained during non international armed conflict, that detention is therefore authorised by those instruments, it is argued that the reasoning rests on a non sequitur: that the regulation of conduct by international humanitarian law entails that the conduct in question is authorised by international humanitarian law. Provisions requiring that persons interned in a non international armed conflict should be treated humanely implicitly recognise that detention occurs in fact, but, it is argued, do not imply that it is authorised by law, let alone that it is authorised by international law rather than by the domestic law of the place where the conflict takes place or some other applicable law, still less that it is authorised by those very provisions. Common article 3 and Additional Protocol II, it is argued, are not concerned with the grant of powers to detain: they are simply intended to ensure the humane treatment of all persons who are detained, including those detained by non state groups, and apply whether their detention is legally justified or not. As the International Committee of the Red Cross Commentary on the Geneva Conventions (1952), ed Pictet, states in relation to common article 3, it merely ensures respect for the few essential rules of humanity which all civilised nations consider as valid everywhere and in all circumstances (p 60). Fifthly, it is argued that a similar fallacy that the absence of a prohibition is equivalent to the presence of an authorisation vitiates the contention that, since international humanitarian law does not prohibit the use of lethal force in non international armed conflict, therefore it must impliedly provide lawful authority for the use of the lesser alternative of detention. In the first place, it is argued, the contention is based on a false dichotomy: that either international humanitarian law confers lawful authority for the detention of prisoners, or they must be killed or released. As explained above, however, lawful authority for detention (and, indeed, for killing) in a non international armed conflict is normally conferred not by international humanitarian law but by the domestic law of the state in which the conflict occurs. It may also be conferred by other sources of law, such as the domestic law of the detaining state, or SCRs. Detention may be authorised by any of these sources of law only for defined purposes, such as criminal investigation and prosecution, and it may be rendered subject to judicial control (just as domestic or international law may authorise killing only in specified circumstances, and render soldiers who kill in other circumstances liable to prosecution and punishment). The idea that, in the absence of authority under international humanitarian law, soldiers have no lawful option in a non international armed conflict but to release captured prisoners is therefore mistaken. Furthermore, it is argued, the contention that authority to kill impliedly carries with it authority to detain, even if well founded, would only result in authority to detain those who might otherwise be lawfully killed: a limited category of persons which would not, for example, include Mr Al Waheed, who on the assumed facts was an unarmed man who offered no violence towards the members of HM Forces who detained him. The argument would not, therefore, support the existence of a power of detention of the width for which the Secretary of State argues in the present proceedings. In short, it is argued that it is not germane to the question here in issue to demonstrate that the killing of insurgents in non international armed conflict is not prohibited by international humanitarian law. It does not follow from the absence of such a prohibition that international humanitarian law therefore confers lawful authority for detention. In international armed conflict, such authority can be found in article 21 of the Third Geneva Convention and articles 42, 68 and 78 of the Fourth Geneva Convention, but those provisions do not apply to non international armed conflict. In a situation of the latter kind, lawful authority must be sought elsewhere. Normally, it will arise under domestic law, but it may also arise out of other branches of international law, as for example where it is conferred by an SCR. Arguments based on the absence of protection against arbitrary detention Sixthly, it is argued that the contention that common article 3 and Additional Protocol II authorise detention in non international armed conflict is difficult to reconcile with the requirement under international law that the deprivation of liberty must be non arbitrary. That is a requirement which the ICRC maintains is implicit in the obligation, imposed by common article 3 and Additional Protocol II, that detainees should be treated humanely, and it is in any event imposed by article 9(1) of the ICCPR, which provides that no one shall be subjected to arbitrary arrest or detention and that no one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law. Similar provisions exist in the regional human rights treaties: article 6 of the African Charter on Human and Peoples Rights, article 7 of the American Convention on Human Rights, article 14 of the Arab Charter on Human Rights, and article 5 of the European Convention on Human Rights. Any law authorising detention must therefore define the circumstances in which it applies with sufficient precision to avoid overly broad or arbitrary interpretation or application (see the Human Rights Committees General Comment No 35, Article 9 (Liberty and security of the person), UN Doc CCPR/C/GC/35 (2014), para 22: the Human Rights Committee is the UN body established to monitor the implementation of the ICCPR, and has included among its members present and former judges of the European Court of Human Rights). This requirement is illustrated by several reports in which the Human Rights Committee has considered grounds for detention to be insufficiently precise (eg Concluding Observations: Initial Report of Honduras, UN Doc CCPR/C/HND/CO/1 (2006), para 13). The concept of arbitrariness is, however, of broader scope: it is not to be equated with against the law but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law: Mukong v Cameroon, UN Doc CCPR/C/51/D/458/1991 (1994). International humanitarian law, however, contains no definition of the permitted grounds of detention in non international armed conflict, nor any mention of procedural protections. Specifically in relation to security detention in situations of armed conflict, the Human Rights Committee has stated that security detention authorised and regulated by and complying with international humanitarian law in principle is not arbitrary (General Comment No 35, para 64; emphasis added). In other words, in order for detention for reasons of security not to be arbitrary, on the hypothesis that it is (1) authorised by international humanitarian law, it must also be (2) regulated by international humanitarian law, so that (3) it is possible to determine whether the detention is in compliance with international humanitarian law. These requirements are satisfied in situations of international armed conflict by the provisions of the Third and Fourth Geneva Conventions which were discussed earlier. In non international armed conflict, on the other hand, it is argued that neither common article 3 nor Additional Protocol II defines who may be detained, on what grounds, in accordance with what procedures, or for how long. In consequence, it is argued, there is no possibility of determining whether detention in non international armed conflict complies with any such requirements. Arguments relating to customary international humanitarian law Considering next the contention that detention in a non international armed conflict is authorised by customary international humanitarian law, the arguments against that view can be summarised as follows. It is argued that the contention lacks sufficient support in either opinio juris or state practice. So far as the former is concerned, the contention is disputed by many experts in this area of the law, as explained in para 258 above. It is argued that it is also unsupported by the ICRCs major international study into state practice, Henckaerts and Doswald Beck, Customary International Humanitarian Law (2005). That study concludes that the arbitrary deprivation of liberty is prohibited (pp 347 349), but not that there are grounds on which the deprivation of liberty is authorised under customary international humanitarian law. The ICRCs catalogue of the rules of customary international humanitarian law is also said to give no support to the idea that they include an authority to detain: ICRC, Customary IHL, www.icrc.org/customary ihl/eng/docs/v1. So far as state practice is concerned, it is of course true that states involved in non international armed conflicts have detained persons, but, it is argued, it does not follow that they have done so in reliance on a right to do so under international humanitarian law (rather than the absence of a prohibition of such detention under international humanitarian law, and a right under domestic law, or under an SCR). Reference was made by counsel for the Secretary of State to a recital forming part of the preamble to Resolution 1 of the 32nd International Conference of the ICRC and Red Crescent in December 2015, which refers to states having in all forms of armed conflict, the power to detain, but commentators have argued that those words are not conclusive evidence of state practice, and that the resolution was not in any event concerned with the authorisation of detention. Reference was also made to The Copenhagen Process: Principles and Guidelines, but commentators have pointed out that the official commentary to principle 16 states that the mere inclusion of a practice in The Copenhagen Process Principles and Guidelines should not be taken as evidence that states regard the practice as required out of a sense of legal obligation. As the Court of Appeal noted at para 231 of its judgment in the case of Mr Mohammed, the only example of a state which has placed reliance on international humanitarian law as a basis for detention in a non international armed conflict, other than the Ministry of Defence in the present proceedings, appears to be the Netherlands, in a letter dated 21 July 2006, headed Combating international terrorism, sent by the Foreign Minister, the Minister of Defence and the Minister for Development Cooperation to the President of the House of Representatives (KST 99753, 27 225 Nr 221). That approach can be contrasted with the practice of the UK and other states in Iraq and Afghanistan (see paras 311 312, 336 337 and 341 below). In addition, it has been pointed out that the ICRC itself accepts that customary international humanitarian law prohibits the arbitrary deprivation of liberty: see ICRC, Customary IHL, rules 87 and 99. That prohibition is said to be a rule applicable in both international and non international armed conflict, established by state practice in the form of military manuals, national legislation and official statements, and also international human rights law. The arguments discussed in paras 268 270 above are therefore also relevant in this context. Conclusions As the foregoing discussion makes clear, there are substantial arguments both for and against the contention that the Geneva Conventions or their Protocols implicitly confer authority under international law for detention in non international armed conflicts. My current view, based on the submissions in the present case, is that the arguments against that contention the textual arguments discussed in paras 260 261 above, the contextual arguments discussed in paras 262 263, the arguments against inferential reasoning discussed in paras 264 267, and the arguments based on the absence of adequate protection against arbitrary detention discussed in paras 268 270 are cumulatively the more persuasive. Customary international humanitarian law is a developing body of law, and it may reach the stage where it confers a right to detain in a non international armed conflict. The submissions made on behalf of the Ministry of Defence have not, however, persuaded me that it has yet reached that stage. The contention that authority for detention in non international armed conflicts is conferred by customary international humanitarian law is controversial as a matter of expert opinion. There appears to be a paucity of state practice which is supportive of the contention, as explained at para 272. In those circumstances, I have not been persuaded that there exists at present either sufficient opinio juris or a sufficiently extensive and uniform practice to establish the suggested rule of customary international law. In short, it appears to me that international humanitarian law sets out a detailed regime for detention in international armed conflict, conferring authority for such detention, specifying the grounds on which detention is authorised, laying down the procedures by which it is regulated, and limiting its duration, in accordance with the requirements of article 9 of the ICCPR and analogous regional provisions. In contrast, subject to compliance with minimum standards of humane treatment, international humanitarian law leaves it to states to determine, usually under domestic law, in what circumstances, and subject to what procedural requirements, persons may be detained in situations of non international armed conflict. It follows that the Ministry of Defences argument in the present case that the detention of Mr Al Waheed and Mr Mohammed was authorised by conventional or customary international humanitarian law should be rejected. Detention in the non international conflicts in Iraq and Afghanistan under the It is necessary next to consider the Ministry of Defences contention that authority for detention, in circumstances falling outside article 5(1)(a) to (f) of the Convention, was conferred on HM Forces, in the non international conflicts in Iraq and Afghanistan, by the relevant SCRs. For the purpose of considering that contention, the SCRs have to be interpreted in accordance with principles laid down by the European Court of Human Rights in a number of its judgments. It is therefore necessary to begin by considering the most significant of these judgments. (1) Al Jedda v United Kingdom In the case of Al Jedda v United Kingdom the Grand Chamber concluded that there had been a violation of article 5(1) in respect of the detention by HM Forces of a suspected insurgent during the non international armed conflict in Iraq. Mr Al Jeddas detention occurred between October 2004 and December 2007, after an Iraqi Government had been established with sovereign authority. It overlapped with that of Mr Al Waheed, which occurred during February and March 2007. The Multi National Force was at that time fighting against insurgents with the consent of the Iraqi Government, under a mandate established by SCR 1546 (2004), as extended by SCRs 1637 (2005) and 1723 (2006). SCR 1546 had been preceded by letters to the President of the Security Council from the Prime Minister of Iraq and the US Secretary of State. In his letter, the Prime Minister requested the Security Council to make a new resolution authorising the Multi National Force, which had previously been in occupation of Iraq following the defeat of Iraqi forces, to remain on Iraqi territory and to contribute to maintaining security there, including through the tasks and arrangements set out in the accompanying letter from the US Secretary of State. In his letter, the Secretary of State confirmed that the Multi National Force was prepared to continue to contribute to the maintenance of security in Iraq, including by preventing and deterring terrorism. He added that, under the agreed arrangement, the Multi National Force stood ready to continue to undertake a broad range of tasks to contribute to the maintenance of security and to ensure force protection. These include activities necessary to counter ongoing security threats posed by forces seeking to influence Iraqs political future through violence. This will include combat operations against members of these groups, internment where this is necessary for imperative reasons of security, and the continued search for and securing of weapons that threaten Iraqs security. The words internment when this is necessary for imperative reasons of security reflected the terms of article 78 of the Fourth Geneva Convention, which had applied prior to the establishment of the Iraqi Government, when Iraq had been an occupied territory. These letters were annexed to SCR 1546. The preamble to the resolution recognised the request of the Iraqi Prime Minister in the annexed letter to retain the presence of the Multi National Force, welcomed the willingness of the Multi National Force to continue efforts to contribute to the maintenance of security and stability in Iraq, and noted the commitment of all forces . to act in accordance with international law. In para 9 of the resolution the Security Council noted that the Multi National Force remained in Iraq at the request of the incoming government, and reaffirmed the authorisation for the Multi National Force first established under SCR 1511, having regard to letters annexed to this resolution. In para 10 it stated that the Multi National Force: shall have the authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed to this resolution expressing, inter alia, the Iraqi request for the continued presence of the Multi National Force and setting out its tasks, including by preventing and deterring terrorism. Procedures were laid down for the review of detention, under the domestic law of Iraq, by Coalition Provisional Authority (CPA) Memorandum No 3 (Revised), which provided: (1) Any person who is detained by a national contingent of the MNF [Multi National Force] for imperative reasons of security in accordance with the mandate set out in UNSCR 1546 (hereinafter security internee) shall, if he is held for a period longer than 72 hours, be entitled to have a review of the decision to intern him. (2) The review must take place with the least possible delay and in any case must be held no later than seven days after the date of induction into an internment facility. (3) Further reviews of the continued detention of any security internee shall be conducted on a regular basis but in any case no/later than six months from the date of induction into an internment facility. (4) The operation, condition and standards of any internment facility established by the MNF shall be in accordance with Section IV of the Fourth Geneva Convention . It has been held by a majority of the Court of Appeal that detention in accordance with these procedures was lawful under the law of Iraq: Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758; [2011] QB 773. Mr Al Jedda was detained in a British military facility for over three years. His continuing internment was authorised and reviewed in accordance with the CPA Memorandum, initially by British military personnel and subsequently also by representatives of the Iraqi and British Governments and by non British military personnel, on the basis of intelligence material which was never disclosed to him. He was able to make written submissions to the reviewing authorities but there was no provision for an oral hearing. His internment was authorised for imperative reasons of security. There was no intention at any point to bring criminal charges against him. In these circumstances, his detention did not fall within any of sub paragraphs (a) to (f) of article 5(1) of the Convention. In domestic proceedings, the majority of the House of Lords considered that it could be inferred from the text of SCR 1546, and from the context in which it was adopted, that states contributing to the Multi National Force were authorised to intern individuals where necessary for imperative reasons of security; that the authorisation should be regarded as an obligation for the purposes of article 103 of the UN Charter (In the event of a conflict between the obligations of the members of the United Nations under the present Charter and their obligations under any other international agreement, their obligations under the present Charter shall prevail); and that, to the extent that such internment was unavoidably incompatible with article 5(1) of the European Convention, the UKs obligations under article 5(1) were therefore qualified: R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2007] UKHL 58; [2008] 1 AC 332. In a speech which anticipated some of the points later to be made by the European court, Baroness Hale of Richmond agreed only to the extent that competing commitments under the UN Charter and the Convention could be reconciled by adopting a qualification of the Convention rights. The European court rejected the idea that the SCR should be interpreted as impliedly imposing an obligation which would contravene obligations under international human rights law: [T]he court must have regard to the purposes for which the United Nations was created. As well as the purpose of maintaining international peace and security, set out in the first sub paragraph of article 1 of the UN Charter, the third sub paragraph provides that the United Nations was established to achieve international cooperation in . promoting and encouraging respect for human rights and fundamental freedoms. Article 24(2) of the Charter requires the Security Council, in discharging its duties with respect to its primary responsibility for the maintenance of international peace and security, to act in accordance with the Purposes and Principles of the United Nations. Against this background, the court considers that, in interpreting its resolutions, there must be a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights. In the event of any ambiguity in the terms of a Security Council resolution, the court must therefore choose the interpretation which is most in harmony with the requirements of the Convention and which avoids any conflict of obligations . [I]t is to be expected that clear and explicit language would be used were the Security Council to intend states to take particular measures which would conflict with their obligations under international human rights law. (para 102) The principles of interpretation of SCRs which can be taken from that passage are the following: (1) there is a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights; (2) in the event of ambiguity, the court must choose the interpretation which is most in harmony with the requirements of the European Convention; and (3) it is to be expected that clear and explicit language will be used if the Security Council intends states to take measures which would conflict with their obligations under international human rights law. On that basis, the European court interpreted SCR 1546 as leaving unaffected the obligation of the member states within the Multi National Force to comply with their obligations under international human rights law: Internment is not explicitly referred to in the resolution. In para 10 the Security Council decides that the Multi National Force shall have authority to take all necessary measures to contribute to the maintenance of security and stability in Iraq in accordance with the letters annexed, which inter alia set out the Multi National Forces tasks. Internment is listed in Secretary of State Powells letter, as an example of the broad range of tasks which the Multi National Force stood ready to undertake. In the court's view, the terminology of the resolution appears to leave the choice of the means to achieve this end to the member states within the Multi National Force. Moreover, in the preamble, the commitment of all forces to act in accordance with international law is noted. It is clear that the Convention forms part of international law . In the absence of clear provision to the contrary, the presumption must be that the Security Council intended states within the Multi National Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law. (para 105) The court rejected the Governments alternative contention that a legal basis for the applicants detention could be found in international humanitarian law. The argument was that SCR 1546 had maintained in place the position under international humanitarian law which had existed during the occupation of Iraq, when the Fourth Geneva Convention applied. The court noted that para 2 of SCR 1546 recorded the end of the occupation, and that the Fourth Geneva Convention did not in any event authorise indefinite internment (para 107). The court also considered whether a basis for detention which could operate to disapply the requirements of article 5(1) was provided by the agreement between the Iraqi Government and the US Government, set out in the letters annexed to SCR 1546, but concluded that such an agreement could not override the obligations under the Convention (para 108). The court therefore concluded that there was no conflict between the United Kingdoms obligations under the UN Charter and its obligations under article 5(1) of the Convention (para 109). It followed that the applicants detention constituted a violation of article 5(1) (para 110). (2) Nada v Switzerland Shortly after Al Jedda, the Grand Chamber decided the case of Nada v Switzerland (2012) 56 EHRR 18, which concerned a Swiss law implementing an SCR requiring sanctions to be imposed on individuals listed as being associated with Al Qaeda. The sanctions imposed were incompatible with the applicants rights under article 8 of the Convention. The court confirmed the principles laid down in para 102 of Al Jedda, set out in para 284 above, but distinguished that case on the basis that the SCR in issue in Nada clearly and explicitly imposed an obligation to take measures capable of breaching human rights, whereas in Al Jedda the wording of the resolution at issue did not specifically mention internment without trial (para 172). However, the court also found that Switzerland enjoyed some latitude, which was admittedly limited but nevertheless real, in implementing the SCR (para 180). On the basis of that finding, it took the view that Switzerland could not confine itself to relying on the binding nature of SCRs, but should have persuaded the court that it had taken or at least had attempted to take all possible measures to safeguard the applicants rights under the Convention within the constraints set by the SCR. On that basis, the court found it unnecessary to determine the relative priority of the two instruments (paras 196 197). (3) Al Dulimi v Switzerland The case of Al Dulimi and Montana Management Inc v Switzerland (Application No 5809/08) (unreported) given 21 June 2016 also concerned the implementation of sanctions required by an SCR. The Grand Chamber repeated what it had said in para 102 of Al Jedda (para 140). It gave effect to that approach by holding that, since the SCR in question did not contain any clear or explicit wording excluding the possibility of judicial supervision of the listing of persons on whom sanctions were to be imposed, it must be understood as authorising national courts to exercise sufficient scrutiny so that any arbitrariness could be avoided (para 146). (4) Hassan v United Kingdom Between Nada and Al Dulimi, the Grand Chamber decided the case of Hassan v United Kingdom, which concerned an earlier phase of the Iraq conflict than Al Jedda or the present appeal of Mr Al Waheed. Mr Hassan was captured by HM Forces in Iraq during 2003, at a time when the situation there constituted either international armed conflict or occupation, and the Third and Fourth Geneva Conventions applied. He was detained for about nine days. He complained of a violation of his rights under article 5 of the Convention. In response, the British Government submitted that his detention had been authorised under article 21 of the Third Geneva Convention, as a prisoner of war, or by articles 42 and 78 of the Fourth Geneva Convention, as a civilian whose internment was necessary for imperative reasons of security. In those circumstances, it argued, article 5 of the Convention was displaced, or had to be modified so as to be compatible with the applicable lex specialis, namely international humanitarian law. In deciding how article 5 was to be interpreted in the light of the provisions of the Third and Fourth Geneva Conventions, the court applied article 31 of the Vienna Convention on the Law of Treaties (para 100). Under article 31(3)(b), account was to be taken of any subsequent practice in the application of the treaty in question which established the agreement of the parties regarding its interpretation. The practice of the contracting parties to the European Convention was not to derogate from their obligations under article 5 in order to detain persons on the basis of the Third and Fourth Geneva Conventions during international armed conflict. That practice was contrasted with the practice of the contracting states in relation to non international armed conflict, such as the Troubles in Northern Ireland and the Kurdish conflict in Turkey, and their practice in relation to terrorist threats (para 101). Under article 31(3)(c) of the Vienna Convention, account was to be taken of any relevant rules of international law applicable in the relations between the parties. The provisions in the Third and Fourth Geneva Conventions relating to internment were designed to protect captured combatants and civilians who posed a security threat. The International Court of Justice had held that the protection offered by human rights conventions and that offered by international humanitarian law co existed in situations of armed conflict. The court must therefore endeavour to interpret and apply the European Convention in a manner which was consistent with the framework under international law delineated by the International Court of Justice (para 102). Accordingly: By reason of the co existence of the safeguards provided by international humanitarian law and by the Convention in time of armed conflict, the grounds of permitted deprivation of liberty set out in sub paras (a) to (f) of [article 5(1)] should be accommodated as far as possible, with the taking of prisoners of war and the detention of civilians who pose a risk to security under the Third and Fourth Geneva Conventions. The court is mindful of the fact that internment in peacetime does not fall within the scheme of deprivation of liberty governed by article 5 of the Convention without the exercise of the power of derogation under article 15. It can only be in cases of international armed conflict, where the taking of prisoners of war and the detention of civilians who pose a threat to security are accepted features of international humanitarian law, that article 5 could be interpreted as permitting the exercise of such broad powers. (para 104) The court added that deprivation of liberty pursuant to powers under international humanitarian law must be lawful to preclude a violation of article 5(1). This meant that the detention must comply with the rules of international humanitarian law and, most importantly, that it should be in keeping with the fundamental purpose of article 5(1), which was to protect the individual from arbitrariness (para 105). In that regard, the court cited its case law concerning the necessary safeguards against arbitrary detention. Applying this approach to the facts, the court found that the applicant was captured in circumstances giving reason to believe that he might be either a person who could be detained as a prisoner of war or someone whose internment was necessary for imperative reasons of security, both of which provided a legitimate basis for detention under international humanitarian law (under article 21 of the Third Geneva Convention and articles 42 and 78 of the Fourth Geneva Convention). He was subject almost immediately to a screening process which led to his being cleared for release. He was released shortly afterwards (para 109). In these circumstances, his detention was consistent with the powers available to the UK under the Third and Fourth Geneva Conventions, and was not arbitrary. In these circumstances, the court held that there had been no breach of article 5(1) of the European Convention. The relevance of Hassan to the present appeals In the present appeals, the majority of the court accept the Ministry of Defences argument that the reasoning in Hassan leads to the conclusion that, where an SCR authorises detention in a non international armed conflict in circumstances other than those contemplated by sub paragraphs (a) to (f) of article 5(1), the latter provision must be modified so as to be consistent with the SCR. On that basis, the majority accept that article 5(1) is modified so as to permit the detention which is said to have been authorised by the SCRs in question in these appeals. The argument takes as its starting point an interpretation of the SCRs as authorising detention in circumstances falling outside the terms of article 5(1)(a) to (f). It is because of that interpretation that it can be argued that article 5(1) then requires to be modified so as to accommodate the detention authorised by the SCRs. The terms of SCR 1546, which applied in the case of Mr Al Waheed, have already been considered. They did not clearly or explicitly authorise detention in circumstances falling outside article 5(1)(a) to (f), as the court held in Al Jedda. Nor did SCR 1890, which applied in the case of Mr Mohammed, and will be considered later. Applying the approach to the interpretation of SCRs established by the court in its case law both prior and subsequent to Hassan, and summarised in para 285 above, it follows that the SCRs cannot be interpreted as authorising detention falling outside article 5(1)(a) to (f). The premise on which the Ministry of Defences argument is based is therefore inconsistent with the clear and constant jurisprudence of the Grand Chamber concerning the interpretation of SCRs. The answer put forward by the majority of the court is that, following Hassan, article 5(1) must be interpreted as permitting detention during armed conflicts which falls outside the categories listed in sub paragraphs (a) to (f) but is authorised by an SCR. On that basis, the interpretation of the SCRs as authorising detention which falls outside article 5(1)(a) to (f) is not incompatible with the Convention. There are a number of reasons why the judgment in Hassan does not appear to me to be applicable to detention in the non international conflicts with which these appeals are concerned, which are explained below at paras 307 315 and 324. But a point which should be made at the outset is that the reasoning of the majority appears to me to be circular. The proposition which the majority seek to establish that article 5(1) is modified so as to permit detention falling outside sub paragraphs (a) to (f), where such detention is authorised by an SCR is actually assumed for the purposes of its premise, that the SCRs should be interpreted as authorising such detention. The case of Hassan was not concerned with the interpretation of an SCR. The court did not, therefore, cite or consider, let alone depart from, the approach to the interpretation of SCRs which it had set out in Al Jedda and repeated in later cases. On the contrary, at para 99 it pointed out that its judgment in Al Jedda had concerned the SCR there in question, and that no issue had been raised in relation to the powers of detention provided for in the Third and Fourth Geneva Conventions. The only issue in the case of Hassan was the interpretation of article 5 of the Convention in a context where detention was authorised by international humanitarian law in particular, by the provisions of the Geneva Conventions authorising the detention of prisoners of war and civilians during international armed conflicts. Those provisions did not apply in the situations with which the present appeals are concerned. Nor was the detention of Mr Al Waheed or Mr Mohammed authorised by any other rules of international humanitarian law, for the reasons summarised in paras 274 276 above. The case of Hassan does not therefore appear to me to be in point when deciding whether the detention of Mr Al Waheed or Mr Mohammed was authorised by the relevant SCRs. The answer to that question depends on the interpretation of the SCRs; and the principles governing their interpretation, for the purpose of establishing whether there has been a breach of the Convention, are those laid down in Al Jedda, Nada and Al Dulimi, and summarised in para 285 above. Put shortly, in Al Jedda the court required greater precision of international law, when it comes to authorising military detention in situations of armed conflict, than was afforded by SCR 1546. Nothing in Hassan appears to me to cast any doubt on that decision. Hassan was concerned with powers of detention under the Geneva Conventions which are explicit and detailed, as explained at paras 249 252 above. A different argument is put forward by Lord Mance at para 163: that to start from the premise that SCR 1546 should be interpreted consistently with article 5(1) is unsustainable, since article 5(1) does not reflect general international law, but is unique in stating an ostensibly exhaustive list of circumstances in which detention is permissible (unlike article 9 of the ICCPR), whereas SCR 1546 was not directed only to states party to the Convention but to all member states of the United Nations. I recognise the force of that argument, but it appears to me to be inconsistent with the approach to the interpretation of SCRs which the European court has adopted in a clear and constant line of decisions at Grand Chamber level. Having considered the Strasbourg authorities, I can next consider the appeals. The case of Mr Al Waheed Mr Al Waheed is an Iraqi citizen. He was detained by HM Forces in Iraq for about six weeks during February and March 2007, when the relevant legal regime was identical to that considered in Al Jedda and explained at paras 278 281 above. The relevant facts in relation to his detention have not yet been established, but it is assumed for the purposes of this appeal that he was detained on 11 February 2007 at a house where arms, ammunition, components for improvised explosive devices (IEDs), and explosive charges, were found. Two days later an ad hoc British Divisional Internment Review Committee decided that he should be interned for imperative reasons of security. On 22 February the committee decided that, if it were confirmed that he could not be proved to have handled any of the recovered material, it was unlikely that he could be successfully prosecuted, and he should be released. His case was reviewed again on 12 or 13 March, and again on 21 March, when a decision on his release was deferred while forensic evidence was obtained. On 28 March he was released. Mr Al Waheed accepts that SCR 1546, as extended by SCR 1723, authorised detention. He complains, however, that his detention violated article 5(1) of the Convention. It is conceded on behalf of the Secretary of State that his detention was attributable to the UK, and that he fell within the jurisdiction of the UK during his internment for the purposes of article 1 of the Convention (which governs its applicability). It is maintained on behalf of the Secretary of State that his detention was justified under article 5(1)(c), but that issue is not before the court in this appeal. The only issue raised in the appeal, as a preliminary point, is whether it was legally necessary for his detention to fall within any of sub paragraphs (a) to (f) of article 5(1). In relation to that issue, the judge, Leggatt J, was bound by the decision of the House of Lords in Al Jedda that article 5(1) did not apply to detention under SCR 1546 for imperative reasons of security, since SCR 1546 should be construed as imposing an obligation to detain, and such an obligation prevailed over the inconsistent obligation imposed by article 5(1) of the Convention, by reason of article 103 of the UN Charter. Since the Court of Appeal would have been equally bound by that decision, the appeal has come directly to this court. Discussion In my opinion this court should depart from the reasoning of the House of Lords in relation to this point, summarised in para 283 above. It did not approach the interpretation of SCR 1546 on the basis subsequently laid down by the Grand Chamber and summarised in para 285 above. That approach, subsequently applied in relation to other SCRs in the cases of Nada and Al Dulimi, represented a development in the courts case law, based on a fuller consideration of international law than appears in the speeches in the House of Lords. Its interpretation of SCR 1546 was also based on a fuller consideration of the scope of the authority conferred than appears to have been canvassed in argument before the House of Lords. Although it is of course open to this court to adopt a different approach to the relationship between the Convention and other international instruments from that adopted by the Grand Chamber, such a course would run contrary to the general intention that the Human Rights Act 1998 should bring rights home, and would require some compelling justification. It does not seem to me that such a justification has been made out. In particular, the Ministry of Defences argument that the issue is a question of interpretation of the UN Charter and the SCR, on which the European court has no particular authority, seems to me to be an over simplification. The interpretation and application of the Convention depend on its interaction with other international instruments, and a uniform approach to these issues is desirable if the Convention system of guaranteeing a minimum level of human rights protection by all the contracting parties is to be preserved. In my view, this court should therefore proceed on the basis that article 103 of the UN Charter is not applicable. Consistently with that conclusion, the Grand Chamber held in Al Jedda that there was a presumption that the Security Council intended states within the Multi National Force to contribute towards the maintenance of security in Iraq while complying with their obligations under international human rights law. In its view, nothing in SCR 1546 displaced that presumption. Article 5(1) of the Convention therefore continued to apply. Since Mr Al Jeddas detention did not fall within any of sub paragraphs (a) to (f), it followed that there was a violation of article 5(1). As I have explained, it is now argued that the reasoning in Hassan supersedes that in Al Jedda. I reject that argument, firstly for the reasons explained in paras 295 300 above, and also for the following additional reasons. In addressing the problem which arose in Hassan, the courts starting point was article 31(3)(b) of the Vienna Convention, and the need to take account of subsequent practice in the application of the treaty in question. In that regard, the court noted the absence of any practice of derogating from article 5 of the Convention in relation to detention during international armed conflicts, notwithstanding the practice of exercising powers of detention under the Third and Fourth Geneva Conventions in circumstances not falling within any of sub paragraphs (a) to (f) of article 5(1). The court expressly contrasted that position with the practice of derogating from article 5 in relation to non international armed conflicts, citing cases concerned with internal conflicts in Northern Ireland and Turkey as examples. In order to answer that point, counsel for the Secretary of State argue that a distinction should be drawn between purely internal conflicts, and those which are extraterritorial, in the sense that they involve armed forces from outside the host state. They point out that, although there have been a number of military missions involving contracting states participating in non international armed conflicts outside their own territory since their ratification of the Convention, no state has ever made a derogation in respect of these. But that is not in itself enough to meet the requirements of article 31(3)(b) of the Vienna Convention (assuming, for the sake of the argument, the validity of the distinction drawn between extraterritorial and other non international armed conflicts: a distinction which is controversial and has not as yet been drawn by the European court in its case law). In the first place, it has to be borne in mind that until the case of Al Skeini it might not have occurred to contracting states participating in military operations overseas that they remained bound by their obligations under the Convention. More importantly, however, a practice of non derogation is significant only if (1) it has been the practice of contracting states to detain persons during non international armed conflicts in circumstances not falling within sub paragraphs (a) to (f) of article 5(1) of the Convention, and (2) if so, that practice has been sufficiently accepted by other contracting states to justify imputing to all of them an intention to modify the obligations undertaken under article 5. It appears to me that neither of these conditions is met. The practice of other contracting states in relation to non international armed conflicts does not establish a common intention to modify the obligations arising under article 5 in the context of extraterritorial non international armed conflicts. On the contrary, statements by a number of contracting states confirm, without qualification, the continuing relevance of international human rights law and, in particular, of the Convention. The German government, for example, made explicit in 2007, in a statement to the Bundestag, its view that its obligations under the Convention continued to apply in relation to persons detained by its forces operating in Afghanistan as part of the International Security Assistance Force (ISAF) (ICRC, Customary IHL Database: Practice Relating to Rule 99 Deprivation of Liberty (www.icrc.org/customary ihl/eng/docs/v2_rul_rule99)). Switzerland has questioned the United Kingdoms claim that the provisions of the Convention need to be qualified, in the context of military operations overseas, in order to take SCRs into account, and recommended that the United Kingdom should consider that any person detained by armed forces is under the jurisdiction of that state, which should respect its obligations concerning the human rights of such individuals (UN Human Rights Council, Report of the Working Group on UPR: United Kingdom, UN Doc A/HRC/8/25 (2008), para 33). The Netherlands has expressed the view that international human rights law, in the absence of derogation, continues to apply without restriction during armed conflicts, and that detainees therefore cannot be held indefinitely or without due process (Hill Cawthorne, op cit, p 178). The argument now put forward by the Ministry of Defence is also a recent departure from the previous practice of the United Kingdom. In Al Jedda, for example, the government did not suggest that the nature of the situation in Iraq at the material time, as an extraterritorial non international armed conflict, affected the application of article 5. Its view of the law at the time of its operations during the non international armed conflict in Afghanistan is discussed below (see paras 336 337). In addressing the problem which arose in Hassan, the court also based its reasoning on the requirement under article 31(3)(c) of the Vienna Convention to take account of other relevant rules of international law applicable in the relations between the parties when interpreting the European Convention. The relevant rules in Hassan were the provisions in the Third and Fourth Geneva Conventions conferring powers of internment on specified grounds during an international armed conflict, subject to specified procedural safeguards. In Mr Al Waheeds case the Secretary of State argues, by analogy, that the European Convention must also be interpreted compatibly with the exercise of the powers of internment conferred by SCR 1546. As explained in para 285 above, the European court construed SCR 1546 in Al Jedda on the basis that there is a presumption that the Security Council does not intend to impose any obligation on member states to breach fundamental principles of human rights; that, in the event of ambiguity, the court must choose the interpretation which is most in harmony with the requirements of the European Convention; and that it is to be expected that clear and explicit language will be used if the Security Council intends states to take measures which would conflict with their obligations under international human rights law. On that basis, the court interpreted the SCR as meaning that the Security Council intended states within the Multi National Force to contribute towards the maintenance of security in Iraq while complying fully with their obligations under the Convention. Article 5(1)(a) to (f) therefore applied, so as to limit the circumstances in which SCR 1546 was to be understood as authorising detention. As explained in paras 288 289 above, the court has followed the same approach to the interpretation of SCRs in more recent cases. On that basis, there is no need to modify article 5 in order for it to be interpreted harmoniously with SCR 1546. Accordingly, whereas in Hassan the court identified an inconsistency between the terms of article 5 of the Convention and the provisions of international humanitarian law regulating detention in an international armed conflict, and resolved that inconsistency by concluding that a substantial body of state practice, together with the need to reconcile the Third and Fourth Geneva Conventions with the European Convention, justified reading article 5 so as to accommodate the relevant provisions of those Conventions, there is no such inconsistency between article 5 and SCR 1546; and there exists, in any event, no comparable body of state practice. It follows that it was necessary for Mr Al Waheeds detention to fall within one or more of the categories listed in sub paragraphs (a) to (f) of article 5(1), in order for it to be compatible with article 5 of the Convention. The case of Mr Mohammed Mr Mohammed is an Afghan national who was detained by HM Forces in Afghanistan for about 15 weeks during 2010. It is assumed, for the purposes of this appeal, that he was captured by HM Forces on 7 April 2010 during a military operation which targeted a senior Taliban commander and the vehicle in which he was travelling. After an exchange of fire, during which two insurgents were killed, Mr Mohammed and another insurgent were captured. They were extracted after an operation lasting ten hours, during which British troops were under heavy and sustained fire. Three British soldiers were wounded. Following his capture, Mr Mohammed was taken to Camp Bastion in Helmand Province. HM Forces received information that he was a senior Taliban commander involved in the large scale production of IEDs. He was said to have commanded a Taliban training camp. On 8 April, an application for the extension of his detention beyond 96 hours for intelligence purposes was submitted to UK Permanent Joint Headquarters (PJHQ), in accordance with BRITFOR Standard Operating Instructions J3 9 (J3 9), discussed at paras 339 340 below. It stated that there was no information to confirm Mr Mohammeds identity, and that information suggested that he might be a senior Taliban commander with an extensive knowledge of the structure of the Taliban and of IED networks. On 9 April, an application was submitted to the Ministry of Defence to extend the 96 hour limit in order to gain intelligence from Mr Mohammed. On 12 April, a minister authorised Mr Mohammeds continued detention to gain further valuable intelligence. The Afghan authorities were not asked whether they wanted Mr Mohammed transferred to them for investigation and possible prosecution. The view had been formed by this time that it would be a weak case to pass to the Afghan authorities for prosecution, given the available evidence. On 4 May it was decided that there was no more intelligence to be obtained from Mr Mohammed. The Afghan authorities were then asked whether they wished to have Mr Mohammed transferred into their custody for criminal investigation and possible prosecution. They responded that they did, as soon as space became available. As they had insufficient capacity at the Lashkar Gah detention facility to which he was to be transferred, he continued to be held by UK armed forces until capacity became available. He was transferred to the Afghan authorities on 25 July 2010. He was subsequently prosecuted and convicted by the Afghan courts of offences relating to the insurgency. He was sentenced to ten years imprisonment. Mr Mohammed complains that his detention, beyond the initial period of 96 hours, violated his rights under articles 3, 5, 6 and 8 of the Convention, as given effect by the Human Rights Act 1998. A number of preliminary issues were identified and decided by Leggatt J. In particular, he found that for the first 96 hours after his capture, Mr Mohammed was detained for the purpose of bringing him before the competent legal authorities on reasonable suspicion of having committed an offence. His detention during that period was authorised, in the judges view, by SCR 1890 and the Memorandum of Understanding concluded between the British and Afghan Governments, as explained at paras 322 326 and 329 334 below. During the period of 24 days between 11 April and 4 May 2010, on the other hand, Mr Mohammed was detained by HM Forces for the sole purpose of obtaining intelligence. During the 82 days between 5 May and 25 July 2010, he was detained for logistical reasons, as they were described, because of the shortage of space in Afghan detention facilities. The judge concluded that Mr Mohammeds detention after the initial period of 96 hours was contrary to article 5 of the Convention, the effect of which was not, in his view, displaced or qualified by SCRs or international humanitarian law. He also held that Mr Mohammeds detention after an initial period of a few days (as explained at para 329 below) was unlawful under Afghan law. On appeal, those conclusions were upheld by the Court of Appeal. The Secretary of State has appealed to this court on a number of grounds. Those which are being considered at this stage of the proceedings are: if so, whether article 5(1) of the Convention should be read so as to (1) whether HM armed forces had the legal power to detain Mr Mohammed in excess of 96 hours pursuant to the relevant SCRs or international humanitarian law; (2) accommodate detention pursuant to such a power; (3) whether Mr Mohammeds detention was in any event compatible with article 5(1) on the basis that it fell within para (c) (detention for the purpose of bringing a suspect before a competent judicial authority) or (f) (detention pending extradition); and (4) whether the circumstances of his detention were compatible with article 5(4) (if necessary, as modified). So far as (1) is concerned, the contention based on international humanitarian law has already been rejected at paras 274 277 above. It is also unnecessary to consider ground (4), as to which I agree with Lord Sumption. That leaves the contention under ground (1) based on the SCRs, any issue then arising under ground (2), and the issues arising under ground (3). The interpretation of SCR 1890 It is common ground that, at the time when Mr Mohammed was detained, HM Forces were engaged in a non international armed conflict. They were operating as part of ISAF, whose establishment had initially been authorised by SCR 1386 (2001), following the establishment of the Afghan Interim Authority by the Bonn Agreement of 5 December 2001 and its agreement to the deployment of such a force. SCR 1386 authorised the establishment of ISAF to assist the Afghan Interim Authority in the maintenance of security in Kabul and its surrounding areas, and authorised the member states participating in ISAF to take all necessary measures to fulfil its mandate. The mandate was subsequently extended to the whole of Afghanistan. At the time of Mr Mohammeds capture, the SCR in force was SCR 1890 (2009). In its preamble, it reaffirmed the Security Councils strong commitment to the sovereignty . of Afghanistan, recognised that the responsibility for providing security and law and order throughout the country resides with the Afghan authorities, and stressed the role of [ISAF] in assisting the Afghan Government to improve the security situation. It also called for compliance with international humanitarian and human rights law. It again authorised the member states participating in ISAF to take all necessary measures to fulfil its mandate. Whereas the letters annexed to SCR 1546 referred explicitly to internment for imperative reasons of security, SCR 1890 said nothing about internment or detention. It was, however, apparent at the time when SCR 1890 was adopted that the accomplishment of ISAFs mission would involve engaging in combat operations against armed and organised insurgents, in the course of which it was inevitable that insurgents and suspected insurgents would be taken prisoner. In that context, construing the SCR in accordance with the principle of interpretation in good faith, ut res magis valeat quam pereat, the words all necessary measures should be understood as encompassing the detention of insurgents. At the same time, since SCR 1890 said nothing about the procedures to be followed, but conferred a mandate on a basis which recognised the sovereignty of Afghanistan and envisaged ISAFs role as being to assist the Afghan authorities in the maintenance of security, it must have been intended that detention would be in accordance with procedures agreed with the Afghan Government. As explained at paras 329 334 below, a Memorandum of Understanding covering these matters was indeed agreed with the Afghan Government. It is argued on behalf of the Ministry of Defence, as in the case of Mr Al Waheed, that in the light of the Hassan judgment, article 5(1) of the Convention is modified by SCR 1890, or in any event by customary international humanitarian law, so as to permit detention falling outside the scope of sub paras (a) to (f). I reject that argument, in agreement with the judge and the Court of Appeal, for the reasons explained at paras 276 277 above in relation to customary international law, and at paras 296 300 and 307 315 in relation to Hassan. Construed on that basis, SCR 1890 can be understood as having conferred on the states participating in ISAF authority under international law to take prisoner persons who posed an imminent threat to ISAF forces or the civilian population, and to detain them for the purpose of transferring them to the Afghan authorities, so that those authorities could then undertake criminal investigations and proceedings. It is accepted, for reasons explained below at para 331, that a period of 96 hours could reasonably be required for that purpose, and it is apparent that there could be circumstances where a longer period was necessary (eg where a detainee was medically unfit to be transferred, or where the Afghan authorities did not have accommodation immediately available). So construed, SCR 1890 is consistent with the principles established by the case law of the European court and summarised in para 285 above. As explained there, the European court considers there to be a presumption that, unless it uses clear and unambiguous language to the contrary, the Security Council does not intend states to take measures which would conflict with their obligations under international human rights law. Interpreting SCR 1890 on that basis, there is nothing which demonstrates, in clear and unambiguous terms, an intention to require or authorise detention contrary to international human rights law. That construction of SCR 1890 is also consistent with the traditional approach to non international armed conflicts, including the approach of the Ministry of Defence, under which the treatment of insurgents is regulated primarily by the law, including the criminal law, of the state where the conflict occurs: see paras 253 255 above. Behrami v France; Saramati v France, Germany and Norway I am not persuaded that the admissibility decision in Behrami v France; Saramati v France, Germany and Norway (2007) 45 EHRR SE10 supports a different conclusion. The relevant part of that decision concerned the criminal justice system operating in Kosovo at the time when the territory was governed by the United Nations Interim Administration in Kosovo (UNMIK), established by SCR 1244. UNMIK was assisted by the UN security presence in Kosovo, Kosovo Force (KFOR), also established by SCR 1244. Para 7 of the SCR authorised member states to establish KFOR with all necessary means to fulfil its responsibilities under para 9. Its responsibilities under para 9 included supporting, as appropriate . the work of [UNMIK]. UNMIKs responsibilities, as set out in para 11, included maintaining civil law and order, including . through the deployment of international police personnel. The UNMIK police force was commanded by the commander of KFOR (COMKFOR). Mr Saramati was arrested by UNMIK police officers on suspicion of attempted murder, by order of COMKFOR, and detained on the orders of COMKFOR until his trial. The admissibility decision concerned the question whether Mr Saramatis detention was the responsibility of the contracting states which had contributed the individuals holding the position of COMKFOR during the relevant period, or was attributable to the UN. In the course of considering that question, the European court stated that KFORs security mandate included issuing detention orders. It stated (para 124) that it based that finding on two considerations. The first was the terms of the agreement under which the government of the Federal Republic of Yugoslavia (FRY) withdrew its own forces from Kosovo in favour of UNMIK and KFOR, which provided that KFOR would operate with the authority to take all necessary action to establish and maintain a secure environment for all citizens of Kosovo. As the court stated, UNMIK and KFOR exercised the public powers normally exercised by the government of the FRY (para 70). The second consideration was para 9 of SCR 1244, as well as para 4 of Annex 2, which repeated the relevant wording of the agreement with FRY, as confirmed by later documents describing the procedures governing detention authorised by COMKFOR. This was a very different context from that of SCR 1890: as has been explained, that SCR was premised on a recognition of the sovereignty of Afghanistan, and of the Afghan authorities responsibility for security. The Memorandum of Understanding SCR 1890 did not itself specify the procedures required to comply with the requirement in article 5(1) of the Convention that detention should be in accordance with a procedure prescribed by law. It was however supplemented by agreements between the Afghan Government and the states participating in ISAF. The relevant agreement between the UK and Afghanistan at the time of Mr Mohammeds detention was a Memorandum of Understanding dated 23 April 2006. Para 3 provided: 3.1 The UK AF will only arrest and detain personnel where permitted under ISAF Rules of Engagement. All detainees will be treated by UK AF in accordance with applicable provisions of international human rights law. Detainees will be transferred to the authorities of Afghanistan at the earliest opportunity where suitable facilities exist. Where such facilities are not in existence, the detainee will either be released or transferred to an ISAF approved holding facility. 3.2 The Afghan authorities will accept the transfer of persons arrested and detained by the UK AF for investigation and possible criminal proceedings . In relation to para 3.1, applicable provisions of international human rights law were recognised at the time to include the European Convention on Human Rights: see para 332 below. The Memorandum of Understanding made no provision for HM Forces to detain persons for intelligence purposes rather than transferring them to Afghan custody, but it provided for British personnel to have full access to question persons who had been transferred to Afghan custody. In relation to para 3.1 of the Memorandum of Understanding, detention was permitted under ISAF rules of engagement, at the relevant time, in the circumstances set out in ISAFs Standard Operating Procedures 362 (the SOP). Para 1 of that document stated that commanders at all levels are to ensure that detention operations are conducted in accordance with applicable international law and human rights standards. Para 4 stated that the only grounds upon which a person could be detained under current ISAF Rules of Engagement were if the detention was necessary for ISAF force protection, for the self defence of ISAF or its personnel, or for accomplishment of the ISAF mission. Para 5 stated that the current policy for ISAF was that detention was permitted for a maximum of 96 hours, after which time an individual was either to be released or handed into the custody of the Afghan National Security Forces or the Government of Afghanistan. According to internal United Kingdom correspondence, 96 hours reflected the time it might take to transport someone from a battlefield to an Afghan detention facility. Para 6 of the SOP stated that, as soon as practicable after a detention had taken place, the decision to continue to detain must be considered by an appropriate authority. Certain senior ranks were specified as being permitted to act as an ISAF Detention Authority. That authority must be able to support the grounds of detention by a reasonable belief in facts. Para 7 permitted a Detention Authority to authorise detention for up to 96 hours. Authority for detention beyond that period could only be granted by the commanding officer of ISAF (COMISAF) or his delegated subordinate. In that regard, para 8 stated: A detainee may be held for more than 96 hours where it is deemed necessary in order to effect his release or transfer in safe circumstances. This exception is not authority for longer term detentions but is intended to meet exigencies such as that caused by local logistical conditions eg difficulties involving poor communications, transport or weather conditions or where the detainee is held in ISAF medical facilities and it would be medically imprudent to move him. Where this exigency applies, COMISAF must be notified. Where, in the opinion of COMISAF (or his delegated subordinate), continuation of detention is warranted, COMISAF (or his delegated subordinate) may authorize continued detention. (Emphasis supplied) A footnote stated that the standards outlined within this SOP are to be considered the minimum necessary to meet international norms and are to be applied. In relation to international norms, the document identified two sources of international human rights law: the ICCPR and the European Convention on Human Rights. It was therefore envisaged under the Memorandum of Understanding, read with the SOP, that persons would only be detained by HM Forces on specified grounds, would be screened as soon as practicable, and would be transferred to the Afghan authorities at the earliest opportunity, for investigation and possible criminal proceedings. Detention by HM Forces would normally be for a maximum of 96 hours, although that period could be extended by a decision taken at a senior level where necessary in order to effect the detainees release or transfer in safety. The detention which this agreement permitted fell within the authorisation conferred by SCR 1890. It reflected the traditional treatment of insurgents in a non international armed conflict as having committed offences under domestic criminal law, and ISAFs mandate to assist the sovereign Afghan authorities. It was compatible with article 5(1)(c) of the Convention: that is to say, the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so. A procedure was prescribed which protected detainees against arbitrary detention. The new United Kingdom policy: detention beyond 96 hours in order to obtain intelligence In the event, powers of detention which were limited to holding persons for up to 96 hours, before transferring them to the Afghan criminal system if they might have committed a criminal act, were found by the states principally involved in detaining insurgents, including the United Kingdom, to be unsatisfactory from a military perspective. Particularly after they undertook operations in Helmand Province, HM Forces wished to be able to hold detainees for longer periods for the purpose of questioning them in order to obtain intelligence, for example about the whereabouts of IEDs. Ministers were advised that legal advice has confirmed that there is currently no basis upon which we can legitimately intern such individuals (briefing paper for the Armed Forces Minister on Detention Policy in Afghanistan, dated 1 March 2006). They were told that the considered advice was that the European Convention would apply unless those detained were immediately handed over to the Afghan authorities, and that the possibility of amending the 96 hour policy to permit longer periods of detention . would not be lawful because the UNSCR does not authorise extended detention (ibid). The advice concluded that The reality of the legal basis for our presence in Afghanistan is such that available powers may fall short of that which military commanders on the ground might wish (ibid). It was felt that the UK was unlikely to succeed in having the SCR revised to provide some kind of specific authorisation to detain, and that, so far as ISAF was concerned, even with the added authority of a UNSCR, the reservations of some of our allies in becoming involved or associated with detention or internment are likely to remain (internal correspondence concerning UNSCR renewal in Afghanistan, dated 25 June 2007). A further memorandum stated: There is no power for any ISAF forces to intern individuals in Afghanistan. This would require an express UNSCR authorisation and preferably a power in Afghan law as well, neither of which currently exist. Therefore, if UK forces were to intern people, we would probably be acting unlawfully. (Ministry of Defence briefing note, Detention by UK Forces on Overseas Operations Iraq and Afghanistan, sent on 12 September 2007) A later briefing for the Secretary of State explained that, although in Iraq a significant proportion of operations had been triggered by intelligence from detainees: In Afghanistan, however, we cannot replicate Iraq arrangements because UK forces have no power to intern under the extant UNSCR (only a power to temporarily detain is inferred). (Ministerial Brief on Afghanistan: Intelligence Exploitation Capability, dated June 2008: NATO was in effective command of ISAF) Later correspondence dated 10, 21 and 24 August 2010 considered the possibility that the ISAF rules of detention might be altered, but concluded that any approach to NATO would be unsuccessful, and that the United Kingdom would have to adopt its own policy if it wished to detain individuals for more than 96 hours. The policy then adopted, as announced to Parliament on 9 November 2009, was that while HM Forces would adhere to NATO guidelines (ie, the SOP) in the majority of cases, Ministers in the United Kingdom would in some cases authorise detention for more than 96 hours in order to obtain intelligence: [I]n exceptional circumstances, detaining individuals beyond 96 hours can yield vital intelligence that would help protect our forces and the local population potentially saving lives, particularly when detainees are suspected of holding information on the placement of improvised explosive devices. Given the ongoing threat faced by our forces and the local Afghan population, this information is critical, and in some cases 96 hours will not be long enough to gain that information from the detainee. Indeed, many insurgents are aware of the 96 hours policy and simply say nothing for that entire period. In these circumstances, the Government have concluded that Ministers should be able to authorise detention beyond 96 hours, in British detention facilities to which the ICRC has access. Each case will be thoroughly scrutinised against the relevant legal and policy considerations; we will do this only where it is legal to do so and when it is necessary to support the operation and protect our troops. Following a Ministerial decision to authorise extended detention, each case will be thoroughly and regularly monitored by in theatre military commanders and civilian advisers. Individuals will not remain in UK detention if there is no further intelligence to be gained. We will then either release the detainee or transfer the detainee to the Afghan authorities. (Hansard (HL (Written Statements), 9 November 2009, cols WS 31 32) The policy announced to Parliament was reflected in J3 9. The version of J3 9 which was in force during most of Mr Mohammeds detention was Amendment 2. Part 1 dealt with the initial stages of detention. It stated in para 9 that a person could be detained by British forces only if he was a threat to force protection or mission accomplishment, or if it was necessary for reasons of self defence. Part II dealt with the processing of detainees, and required the detaining authority to decide within 48 hours whether to release, transfer or further detain the detainee. To authorise continued detention, the Detention Authority had to be satisfied that it was necessary for self defence or that the detainee had done something that made him a threat to force protection or mission accomplishment (para 19). Para 25 stated that the Detention Authority did not have the authority to hold a detainee for longer than 96 hours from the point of detention, and that authority for any further detention must be sought from Ministers through the Detention Review Committee (DRC). Para 27 stated that the criteria used to assist Ministers in deciding whether or not to approve applications for extension of detention were a. Will the extension of this individual provide significant new intelligence vital for force protection? b. Will the extension of this individual provide significant new information on the nature of the insurgency? c. How long a period of extension has been requested [redacted] Para 29 set out the procedure to be followed following an extension. This involved fortnightly reviews, internally and at Ministerial level. The only other nations whose forces were detaining significant numbers of insurgents by that stage of ISAF operations were the USA and Canada (the Netherlands having been the fourth nation in that category at an earlier stage). They also departed from the ISAF policy limiting detention to a maximum of 96 hours, but on a different basis from the United Kingdom. The USA authorised its conduct by domestic legislation. Canada entered into an agreement with the Afghan Government providing for it to treat detainees as if they were prisoners of war, and thus to apply the Third Geneva Convention. An internal assessment dated 18 September 2011 described the United Kingdoms current detention regime in Afghanistan as being based upon United Kingdom national sovereignty. Afghanistan was however a sovereign state at the relevant time; and it was inconsistent with Afghan sovereignty for the United Kingdom to carry out detention in Afghanistan without the permission of the government of that country. The judge found that the United Kingdom policy was not agreed with the Afghan Government, and that there was no evidence that any attempt was made to amend the Memorandum of Understanding between the British and Afghan Governments to reflect the new policy. The legal basis of detention for intelligence purposes The judge concluded that the United Kingdom policy announced in November 2009 had no legal basis under Afghan, international or English law. In relation to Afghan law, he considered that, since the United Kingdom Government was operating on the territory of an independent sovereign state at the invitation of, or at least with the consent of, that state, it was arguable that it was necessary under article 5(1) for the detention to comply with the law of that state. On the basis that there had been no argument on the point, however, he proceeded on the assumption that it was sufficient that there was a basis for the detention under the SCR (para 301). The Court of Appeal considered it unnecessary to decide the point (para 126). The point has however been pursued before this court on behalf of the first interveners, who had also raised it in their skeleton argument before the judge. As they point out, the European court has said many times that, where the lawfulness of detention is in issue, including the question whether a procedure prescribed by law has been followed, the Convention refers essentially to national law and lays down an obligation to conform to the substantive and procedural rules of national law. The same approach has been followed by the UN Human Rights Committee in relation to article 9 of the ICCPR. They also point out that that approach has been adopted, specifically in relation to detention in a non international armed conflict, in the Report of the UN Working Group on Arbitrary Detention, Basic Principles and Guidelines on remedies and procedures on the right of anyone deprived of their liberty to bring proceedings before a court, UN Doc WGAD/CRP.1/2015 (2015), Guideline 17, para 115(a)(ii) (With regard to detention in relation to a non international armed conflict: (a) . the detaining State must show that: . (ii) administrative detention is on the basis of grounds and procedures prescribed by law of the State in which the detention occurs and consistent with international law). I am not persuaded that that is the correct approach to adopt to the application of the Convention in the present context. Guidance is provided by the judgment in Ocalan v Turkey (2005) 41 EHRR 45, which concerned the arrest of a Turkish citizen in Kenya by Turkish officials who then transferred him to Turkey. The court considered it irrelevant to examine whether the conduct of the officials had been unlawful under Kenyan law: what mattered was whether their conduct had been authorised by the Kenyan Government, so as to provide a basis in international law for an extra territorial arrest, and had a legal basis under Turkish law. The court stated: Irrespective of whether the arrest amounts to a violation of the law of the state in which the fugitive has taken refuge a question which only falls to be examined by the court if the host state is a party to the Convention the court requires proof in the form of concordant inferences that the authorities of the state to which the applicant has been transferred have acted extra territorially in a manner that is inconsistent with the sovereignty of the host state and therefore contrary to international law. Only then will the burden of proving that the sovereignty of the host state and international law have been complied with shift to the respondent Government. (para 60; emphasis supplied) So far as international law and English law are concerned, I agree with the judges conclusion, which is consistent with the legal advice given to the British Government at the time. The practice of detaining persons for more than 96 hours for intelligence purposes, rather than transferring them to the Afghan authorities for the purpose of criminal investigations and proceedings, was not authorised by SCR 1890, interpreted as explained in para 325 above. The grounds for the persons being detained by HM Forces, rather than being transferred to the Afghan authorities for criminal investigation and prosecution, did not fall within any of those listed in sub paras (a) to (f) of article 5(1) of the Convention. Indeed, even leaving article 5(1) out of account, the phrase necessary for imperative reasons of security in the SCR did not authorise detention for the purpose of obtaining intelligence from the detainee. In addition, the policy did not respect Afghan sovereignty, having been introduced without the agreement of the Afghan Government, and without any amendment of the Memorandum of Understanding. Since the detention during that period was not authorised by SCR 1890, it was, on that basis also, not lawful for the purposes of article 5(1). Detention pending the availability of space in Afghan facilities As explained at para 332 above, the Memorandum of Understanding, read with the SOP, permitted detention to be extended beyond 96 hours where necessary to enable the detainee to be transferred in safe circumstances. Provision for logistical extensions was also made by para 24 of J3 9: On some occasions, practical, logistic reasons will entail a requirement to retain a UK detainee for longer than the 96 hours. Such occasions would normally involve the short notice non availability of pre planned transport assets or NDS [Afghan National Security Directorate] facilities to receive transferred detainees reaching full capacity. These occasions may lead to a temporary delay until the physical means to transfer or release correctly can be reinstated. Where this is the case, authority to extend the detention for logistic reasons is to be sought from both HQ ISAF and from Ministers in the UK through the Detention Authority. In the event, HM Forces held people for substantial periods when the Afghan authorities wished to accept their transfer but the detention facilities were full, or when the only accommodation available was in facilities which were considered unsuitable. This situation arose as a result of three factors. One was the fact that Afghanistan remained a state under reconstruction, with limited detention facilities. The second was the large number of insurgents captured by HM Forces, particularly during operations in Helmand. The third was the fact that the treatment of detainees in some Afghan detention facilities did not meet Convention standards. It was indeed held by the Divisional Court, during the period when Mr Mohammed was detained pending the availability of space in the Afghan detention facility at Lashkar Gah, that it would be unlawful for HM Forces to transfer detainees to the Afghan detention facility in Kabul: R (Evans) v Secretary of State for Defence [2010] EWHC 1445 (Admin). The judge accepted, in relation to Mr Mohammed, that his detention in these circumstances was for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. The implication is that such detention fell in principle within the scope of article 5(1)(c) of the Convention. That conclusion has not been challenged: as the Court of Appeal noted, the question has not been explored at any stage of the proceedings. I am inclined to agree with the judge, and to regard such detention as in principle authorised by SCR 1890, but in the absence of any argument on the point it would be inappropriate to consider the issue in detail. There are, however, other aspects of article 5 which are also relevant to detention in these circumstances: notably, the requirement in article 5(1) that detention be in accordance with a procedure prescribed by law, and the procedural requirements of article 5(3) and (4). It will be necessary to return to these. Application to the facts of Mr Mohammeds case On the facts of the case, Mr Mohammeds detention by HM Forces between 11 April 2010 (ie after 96 hours) and 4 May 2010 (when he ceased to be held for intelligence purposes) was not in my view compatible with article 5(1), since it was not for any of the purposes listed in sub paras (a) to (f). In particular, the reason for his detention at that time was not to bring him as a suspect before a competent judicial authority, within the meaning of article 5(1)(c). Nor was he, either then or later, detained pending extradition within the meaning of article 5(1)(f), for the reasons explained by Lord Sumption at para 79. Even if SCR 1890 were to be construed as going beyond article 5(1)(a) to (f), and as authorising detention when necessary for imperative reasons of security, I would not regard it as authorising Mr Mohammeds detention during this period. Although I accept that detention for imperative reasons for security would not become unauthorised by reason of a concurrent purpose of obtaining intelligence, it appears to me to be clear from the facts found by the judge that the obtaining of intelligence was the only reason why HM Forces detained Mr Mohammed during the period in question, rather than enquiring of the Afghan authorities whether they wished to have him transferred to their custody. That was not a reason for detention falling within SCR 1890. Nor was Mr Mohammeds detention during this period in accordance with the commitment in SCR 1890 to respect Afghan sovereignty, since it was based on a policy to which the Afghan Government had not agreed. I respectfully disagree with Lord Sumptions conclusion that there remains a question whether Mr Mohammeds detention between 11 April and 4 May 2010 was for imperative reasons of security, which should be determined after trial. The grounds for his initial detention clearly fell within the scope of that phrase, but it seems to me to be clear that this was not the reason why he continued to be detained by HM Forces after 11 April. As the judge observed at para 333 of his judgment, not only was the obtaining of intelligence the sole purpose alleged in the Secretary of States defence, but there was no other criterion set out in the UK policy which could have been used to approve an extension of Mr Mohammeds detention at that time (the availability of space in Afghan detention facilities not having been investigated). Furthermore, as the Court of Appeal noted at para 250 of its judgment, according to the evidence given on behalf of the Ministry of Defence, Mr Mohammeds continued detention beyond 96 hours was for the purposes of intelligence exploitation and was not assessed to be necessary for force protection purposes. In relation to the period of detention between 5 May and 25 July 2010, the judge found that, although the circumstances of the detention fell within the scope of article 5(1)(c) of the Convention, there was a violation of the requirement in article 5(1) that the detention should be in accordance with a procedure prescribed by law. In that regard, he held (para 309) that detention for lengthy periods (82 days in the case of Mr Mohammed, and between 231 and 290 days in the cases of the interveners) was not authorised by para 24 of J3 9. Alternatively, he held that if that para 24 did authorise detention for such protracted periods, then it failed to meet the test of legal certainty implicit in the requirement that detention be in accordance with a procedure prescribed by law, since it failed to provide standards which were clearly defined and whose application was reasonably foreseeable. I recognise the force of that reasoning. I also recognise the importance of legal certainty, especially in this context. The European court referred in Hassan to the fundamental purpose of article 5(1), which is to protect the individual from arbitrariness (para 105). In Medvedyev v France, the court stated: . where deprivation of liberty is concerned, it is particularly important that the general principle of legal certainty be satisfied. It is therefore essential that the conditions for deprivation of liberty under domestic and/or international law be clearly defined and that the law itself be foreseeable in its application, so that it meets the standard of lawfulness set by the Convention, a standard which requires that all law be sufficiently precise to avoid all risk of arbitrariness . (para 80) Nevertheless, it is also necessary to recognise the practical exigencies of the situation which confronted HM Forces at the time, and to endeavour to apply the Convention in a manner which is feasible in the real world. The terms of para 24 of J3 9 suggest that it was originally envisaged as a basis for accommodating occasional logistical problems, normally arising at short notice and leading to a temporary delay. It did however provide a procedure for extending detention which could be used when more serious and long term problems emerged in relation to the capacity of the Afghan authorities to deal satisfactorily with large numbers of insurgents and suspected insurgents, in the context of a state undergoing reconstruction. In principle, the provision by a member of ISAF of detention facilities on behalf of the Afghan authorities, when they were unable to cope, was within its mandate under SCR 1890. In the nature of things, the duration of such detention in individual cases could not be predicted, particularly when it depended on contingencies, such as the willingness of the Afghan authorities to treat detainees humanely, and the outcome of legal proceedings in the English courts, which lay wholly outside the control of HM Forces and the Ministry of Defence. It is also relevant to note that para 24 of J3 9 required the detention to be authorised by HQ ISAF as well as by UK Ministers. It was therefore consistent with para 8 of the SOP, and hence with the Memorandum of Understanding. In these circumstances, it appears to me that the basic requirement that there should be a procedure prescribed by law was satisfied by J3 9. I agree with Lord Mance that, in considering Mr Mohammeds claim for damages for wrongful detention, it is highly material to consider whether, but for any failures on the part of the United Kingdom authorities, he would have been any better off in other words, would have spent less time in custody. That is an important question both in relation to the period during which Mr Mohammed was held by HM Forces for the purpose of obtaining intelligence, and in relation to the period during which he was held because of the unavailability of suitable accommodation in an Afghan detention facility. Further, as Lord Mance observes, if the answer is that he would have been in the custody of the Afghan authorities, it will be material to consider whether this would have involved him in any form of detriment. Finally, in relation to article 5(3) and (4) of the Convention, I agree with Lord Sumptions conclusions, and with the core of his reasoning at paras 94 109. Whether there was a breach of article 5(3) should be considered after trial. It is however apparent from the material already before the court that the arrangements for Mr Mohammeds detention were not compatible with article 5(4), since he did not have any effective means of challenging the lawfulness of his detention. Conclusions For these reasons, I would have allowed Mr Al Waheeds appeal and declared that it was legally necessary for his detention to fall within one or more of sub paragraphs (a) to (f) of article 5(1). In agreement with the judge and the Court of Appeal, I would have dismissed the Secretary of States appeal in the case of Mr Mohammed, so far as based on the grounds considered at this stage.

This judgment is one of three being given simultaneously on the liabilities of the United Kingdom government for allegedly tortious acts done by HM Forces in the course of operations overseas or by foreign governments in which UK officials are alleged to have been complicit. This particular judgment deals with allegations that persons in Iraq and Afghanistan were unlawfully detained in breach of article 5 of the European Convention on Human Rights (ECHR) by HM forces engaged in peacekeeping operations in those countries under mandates from the United Nations Security Council. Serdar Mohammed (SM) was captured by British forces in Afghanistan on 7 April 2010. It is the Governments case that his capture took place in the course of a planned operation involving a ten hour firefight, from which SM was seen fleeing, discarding a rocket propelled grenade launcher and ammunition as he went. Intelligence is said to have identified him as a senior Taliban commander. SM was detained in British facilities until 25 July 2010, when he was transferred to the Afghan authorities. His detention can be divided into three periods: (i) the first 96 hours, (ii) 11 April to 4 May 2010, when he was being interrogated, and (iii) 4 May to 25 July, when he was held pending transfer to the Afghan authorities. Abd Ali Hameed Al Waheed was captured by British forces in Basrah, Iraq on 11 February 2007 at his wifes home. The Government contends that weaponry material for explosives were found on the premises. He was held at a British army detention centre for six and a half weeks, and was then released after an internal review had concluded that a successful prosecution would be unlikely. The relationship between article 5 and international law is one of three preliminary issues in Serdar Mohammed. The High Court held that British forces had no power to detain prisoners for any longer than was required to transfer them to the Afghan authorities, and then for no more than 96 hours. Accordingly, it held that the detention of SM breached article 5(1) and 5(4) of the ECHR. The Court of Appeal reached the same conclusion, albeit for different reasons. In Al Waheed, it was common ground before the High Court that, so far as the claim was based on a breach of article 5(1) of the ECHR, the judge and the Court of Appeal would be bound to dismiss it by virtue of the decision of the House of Lords in Al Jedda. The judge granted a certificate for a leapfrog appeal to the Supreme Court. Lord Toulson sat on all aspects of the appeals other than those involving the scope and procedural requirements of articles 5(1)(c) and/or (f), 5(3) and 5(4) of the Convention in relation to the detention of Serdar Mohammed, in relation to which (following Lord Toulsons retirement) Lord Hodge sat on 26 October 2016. By a majority of 7 to 2, the Supreme Court dismisses Mr Al Waheeds appeal, and allows the Governments appeal in Serdar Mohammed in part. The majority holds that British forces had power to take and detain prisoners for periods exceeding 96 hours if this was necessary for imperative reasons of security, but that its procedures for doing so did not comply with ECHR article 5(4) because they did not afford prisoners an effective right to challenge their detention. Lord Sumption (with whom Lady Hale agrees) gives the lead judgment. Lord Wilson gives a concurring judgment. Lord Mance adds a mainly concurring judgment, as does Lord Hughes (with whom Lord Neuberger agrees). On the issues with which he was involved, Lord Toulson agrees with Lord Mance, Lord Wilson and Lord Sumption. So far as he was involved, Lord Hodge agrees with Lord Sumption. Lord Reed (with whom Lord Kerr agrees) gives a dissenting judgment holding that there was authority to detain prisoners for periods exceeding 96 hours only in circumstances falling within the grounds specified in article 5(1) (which would cover the first and third periods of detention, but not the second). The first issue the Court addresses is whether British forces had legal power to detain SM in excess of 96 hours. The possible sources for such a power are customary international law and/or the authority of the UN Security Council [13]. The majority finds it unnecessary to express a concluded view on whether customary international law sanctions the detention of combatants in a non international armed conflict (NIAC) [14, 113, 148, 224]. Lord Reed concludes that no such rule currently exists as a matter of customary international law [275]. However, the majority holds that authority to capture and detain enemy combatants for imperative reasons of security was implicitly conferred by the relevant Security Council resolutions [30, 119, 164, 224]. These were UNSCR 1546 (2004) in Iraq [20]; and UNSCR 1386 (2001) in respect of Afghanistan [28, 119]. The majority (other than Lord Mance) further concludes that individual states participating in the International Security Assistance Force (ISAF) in Afghanistan were not limited by ISAFs policy of restricting detention to 96 hours, so that the United Kingdom was entitled to adopt its own detention policy [38 39]. Lord Mance considers that the resolutions conferred authority to detain on ISAF, not the contributing states [180], but arrives at the same conclusion as the majority regarding the legitimacy of the United Kingdoms detention policy on the ground that ISAF tacitly accepted of the UKs adoption of this policy [39, 188]. The next question is whether it is possible to reconcile these conclusions under public international law with article 5 ECHR. The European Court of Human Rights in Hassan v UK was able to accommodate the six permitted grounds of detention under article 5 with the power recognised under public international law to detain in the course of an international armed conflict (IAC). The majority holds that the same approach applies to a NIAC, where the source of the power to detain is a resolution of the Security Council [60, 134 6, 164, 224]. The six permitted grounds for detention in article 5(1) ECHR were formulated in relation to peacetime conditions and could not be regarded as exhaustive in conditions of armed conflict. Their object was to protect the individual from arbitrariness. This object was achieved if there was a legal basis for detention and the power to detain was not exercisable on grounds which were unduly broad, opaque or discretionary [63, 93, 164 167, 224]. The procedure governing military arrest in Afghanistan was suitably clear and precise to meet the standards of article 5(1) [93, 113, 165 167, 224]. Article 5(1) did not therefore prevent a Convention state from acting under the authority conferred by a Security Council resolution. A majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Hodge, Lord Reed and Lord Kerr) considers that the detention of SM did not fall within any of the six specified grounds in article 5(1), during the second period of his detention. He was not at any time held pending extradition to the Afghan authorities, because transfer to the civil authorities within Afghanistan did not constitute an extradition within article 5(1)(f) [78, 84, 113, 235, 236, 351]. Any period when he was being detained solely for intelligence exploitation purposes could not be justified under article 5(1)(c) [81, 84, 113, 235, 236, 351], or under the relevant Security Council resolution. Lord Mance, Lord Hughes and Lord Neuberger consider that whether SMs detention during any period fell within article 5(1)(f), as modified if necessary under Hassan, should be remitted for trial [202 203, 230]. Lord Mance would also have remitted for trial the question whether article 5(1)(c) justified detention during the second period [202 203]. However, a majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Mance, Lord Hughes, Lord Neuberger and Lord Toulson) holds that there should be remitted for trial issues as to: whether intelligence exploitation was in fact the sole ground for detention during the second period or whether imperative reasons of security were not also a concurrent reason, justifying detention under article 5 read with and modified as necessary under Hassan having regard to the relevant Security Council resolution [89, 113, 191 200 and 223, 224], and whether SMs detention during the third period fell within article 5(1)(c) or was justified by imperative reasons of security under article 5 read with and modified as necessary having regard to the relevant Security Council resolution [83, 94 98, 111, 113, 204, 224, 235]. The question of article 5(3) compatibility must also be left for trial [83, 94 98, 111, 113, 204, 224, 235]. A majority holds that it is unnecessary for the United Kingdom to establish a right of detention under Afghan law in order to rely on article 5 read with and modified as necessary having regard to the relevant Security Council resolution [139, 202, 233 and 343 346]. Under article 5(4), the minimum standard of protection from arbitrariness equates to that imposed by articles 43 and 78 of the Fourth Geneva Convention: an impartial body carrying out initial and regular reviews in accordance with a fair procedure [68, 134, 205 206, 224, 235]. Fairness required that SM be given an effective means of challenging his detention. A majority (Lord Sumption, Lady Hale, Lord Wilson, Lord Hodge, Lord Reed and Lord Kerr) holds that there was a breach of the requirement to provide sufficient guarantees of impartiality and fairness to protect against arbitrariness in two respects: the procedure lacked independence and it failed to provide for the participation of the detainee [104 106, 144]. Lord Mance, Lord Hughes and Lord Neuberger consider that in both respects the matter should, as the Court of Appeal concluded, be remitted for trial in the light of the views they express [212 218, 227] The majority all agree that a finding of breach of the procedural standards required by article 5(4) will not necessarily entitle SM to damages. A different review process might well have led to no more than SM remaining in UK custody or being transferred slightly to Afghan custody. [110, 113, 219 220, 223, 224, 232, 235]. In his dissenting judgment, Lord Reed concludes that the Security Council resolutions cannot be interpreted as authorising detention falling outside article 5(1)(a) to (f) of the ECHR [296]. Moreover, Hassan v UK only operates to modify article 5 where it is necessary to reconcile it with the Third and Fourth Geneva Conventions (i.e. not in the case of a NIAC, to which the Geneva Conventions have only limited application). [315 316]. SMs detention during the second period was incompatible with article 5 as it was not for one of the six specified purposes [351]. In any event, it was for a purpose outside the scope of the authority granted by UNSCR 1890; it does not remain an open question whether it was for imperative reasons of security [352 353].

long

The appeals now before the Supreme Court in Belhaj and Boudchar v Straw and Ministry of Defence v Rahmatullah concern the alleged complicity of United Kingdom authorities and officials in various torts, allegedly committed by various other states in various overseas jurisdictions. The torts alleged include unlawful detention and rendition, torture or cruel and inhuman treatment and assault. The defences include in both appeals state immunity and the doctrine of foreign act of state. The case of Rahmatullah also raises for consideration the inter relationship of these concepts with article 6 of the European Convention on Human Rights. The meticulous but differing analyses of the Court of Appeal (Lord Dyson MR and Sharp and Lloyd Jones LJJ) in Belhaj and Leggatt J in Rahmatullah underline the difficulties. The Supreme Court has nonetheless benefitted greatly from their analyses, as well as that of a previous Court of Appeal (Rix, Longmore and Davis LJJ) in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2012] EWCA Civ 855; [2014] QB 458 (Yukos v Rosneft). The issues come before the courts by way of challenges under CPR rule 11.1 to the existence or exercise by the court of jurisdiction over the appellants (the defendants in the proceedings), combined with applications for dismissal of the relevant claims under CPR rule 3.1. The issues have, necessarily, to be determined by reference to allegations contained in the respondents (the claimants) pleadings which have not been investigated or tested. One of the appellants objections to their adjudication is indeed that it is impermissible or inappropriate for a domestic court to investigate allegations of the type advanced. The claimants allegations Both cases originate with events in February/March 2004. In Belhaj, Mr Belhaj, a Libyan national and opponent of Colonel Gaddafi, and his wife, Mrs Boudchar, a Moroccan national, attempted (under, it seems likely, other names) to take a commercial flight from Beijing to London, but were instead and for whatever reason deported by the Chinese authorities to Kuala Lumpur. There they were detained. MI6 is alleged to have become aware of their detention and on 1 March 2004 to have sent the Libyan intelligence services a facsimile reporting their whereabouts. This is said to have led to a plan being developed to render them against their will to Libya. Thereafter, they allege, they were unlawfully detained first by Malaysian officials in Kuala Lumpur and then by Thai officials and United States agents in Bangkok, before being put on board a US airplane which took them to Libya. There they were further detained, in the case of Mrs Boudchar until 21 June 2004, in the case of Mr Belhaj until 23 March 2010. Mr Belhaj and Mrs Boudchar allege that the United Kingdom procured this detention in all these places by common design with the Libyan and US authorities. They allege that they suffered mistreatment amounting to torture at the hands of US agents in Bangkok and in the airplane and at the hands of Libyan officials in Libya. They allege that the United Kingdom by common design arranged, assisted and encouraged [their] unlawful rendition to Libya. They rely in this connection upon a letter dated 18 March 2004 alleged to have been written by the second appellant, Sir Mark Allen, allegedly a senior official of the Secret Intelligence Service (SIS) to Mr Moussa Koussa, Head of the Libyan External Security Organisation. The letter congratulated Mr Moussa Koussa on the safe arrival of [Mr Belhaj]. It said that This was the least we could do for you and for Libya to demonstrate the remarkable relationship we have built over recent years. It indicated that British intelligence had led to Mr Belhajs transfer to Libya, although the British services did not pay for the air cargo. Mr Belhaj and Mrs Boudchar further allege that the United Kingdom conspired in, assisted and acquiesced in torture, inhumane and degrading treatment, batteries and assaults inflicted upon [them] by the US and Libyan authorities. Again, it should be stressed that these are allegations, based inter alia on alleged awareness of the risks of torture of detainees in United States and/or Libyan hands. It is also pleaded that the renditions took place as part of a co ordinated strategy designed to secure diplomatic and intelligence advantages from Colonel Gaddafi. The claims are framed as claims for false imprisonment, trespass to the person, conspiracy to injure or to use unlawful means, misfeasance in public office and negligence. They are brought against Mr Jack Straw as Foreign Secretary, Sir Mark Allen, the SIS, the Security Service, the Attorney General, the Foreign and Commonwealth Office and the Home Office, all of whom are the appellants in Belhaj. The first and second appellants, Mr Straw and Sir Mark Allen, state that the Official Secrets Act makes it impossible for them to advance any positive case in response to the allegations against them. The remaining appellants state that it is the position of Her Majestys Government that it would be damaging to the public interest for them to plead to such allegations. Upholding Simon J on the point, the Court of Appeal held, and it is now accepted, that all the claims depend upon proof that torts such as those alleged existed under the laws of the places where they were allegedly committed (subject only to any countervailing considerations of, in particular, public policy under section 14 of the Private International Law (Miscellaneous Provisions) Act 1995). The issues now before the Court relate to all the claims, save for three negligence claims which are independent of the alleged facilitation of and acquiescence in rendition to and detention in Libya and which arise from alleged failure by the appellants to take protective steps after they became aware that Mr Belhaj and Mrs Boudchar were in Libya. In Rahmatullah, Mr Rahmatullah, a Pakistani citizen, was on 28 February 2004 detained by British forces in Iraq on suspicion of being a member of Lashkar e Taiba, a proscribed organisation with links to Al Qaeda. The UK and the USA were at the time occupying forces in Iraq, where there was a situation of international armed conflict. Shortly after his original detention, within a matter of days at most, Mr Rahmatullah was transferred into the custody of US forces, and by the end of March 2004 they had transferred him to Bagram Airbase in Afghanistan, where he was detained for over ten years without charge or trial, until released on 15 May 2014. He alleges that he was subjected to severe mistreatment in both British and United States detention. His claims are put under the like heads to Mr Belhajs and Mrs Boudchars, with assault and torture as additions. Again, the claims allege in various terms that the relevant appellants acted in concert or combination with the United States authorities, or assisted, encouraged or were complicit in relation to the alleged unlawful detention and mistreatment by the United States authorities. Again, the tenor of the allegations is that the United States authorities were the actors, even if they were being encouraged or engaged, procured, or utilised by the appellants to do as they allegedly did. Leggatt J regarded the claims relating to Mr Rahmatullahs detention by British forces and transfer into the custody of US forces as barred by the defence of Crown act of state, assuming that arrest and detention were authorised pursuant to lawful United Kingdom policy. The appeal from that aspect of his judgment was joined with the appeal in Mohammed (Serdar) v Ministry of Defence [2015] EWCA Civ 843; [2016] 2 WLR 247. The Court of Appeal allowed the appeal on the basis that Crown act of state is a nuanced defence, applicable only where there are compelling considerations of public policy which require the court to deny a claim founded on an act of the Executive performed abroad (para 359), with the result that there must be a trial on the facts on the issue of Crown act of state. In its separate judgment of todays date from that decision of the Court of Appeal, the Supreme Court restores (though for different reasons) Leggatt Js conclusions that Crown act of state is in principle available in respect of the United Kingdoms detention and transfer to US custody of Mr Rahmatullah. The issues now before the Supreme Court relate solely to Mr Rahmatullahs claims in tort in respect of alleged acts or omissions of US personnel while he was in US detention. The claims are brought against the Ministry of Defence and the Foreign and Commonwealth Office, both of which are the appellants in Rahmatullah. The appellants case in both proceedings is that the issues now before the Supreme Court are inadmissible or non justiciable on their merits by reason of principles governing state immunity and/or foreign act of state. More specifically, the appellants submit that the claims are based on conduct where the prime actors were foreign state officials, and they either implead the foreign states or would require the English courts to adjudicate upon foreign acts of state. I use the phrase foreign act of state loosely at this point to cover various bases on which it is submitted that the English court cannot or should not adjudicate upon proceedings against the United Kingdom, its authorities or officials when the proceedings would also involve adjudicating upon the conduct of a foreign state, even though state immunity is not established on the part of the United Kingdom and the relevant foreign state is not impleaded in the proceedings. The appellants submit that the principles governing foreign act of state dovetail naturally with those governing state immunity, and that underpinning both are conceptions of mutual international respect and comity. That said, there are, as will appear, also differences, not least that state immunity is firmly based on customary international law, whereas foreign act of state in most if not all of its strands has been developed doctrinally in domestic law. State immunity qualifies the jurisdiction of domestic courts. Foreign act of state in one sense requires a domestic court to accept without challenge the validity of certain foreign state acts, but in another sense it is a broader principle of non justiciability, whereby the domestic court must simply declare itself incompetent to adjudicate. The difficulties which exist in separating or aligning these strands are considerable. I note at this point that the appellants do not suggest that the tortious claims against them which are in issue on these appeals can or do attract a defence of Crown act of state. The leading authorities on Crown act of state are now Nissan v Attorney General [1970] AC 179 and the Supreme Courts separate judgment, delivered today in the cases of Rahmatullah and Serdar Mohammed (para 6 above). In Nissan, Lord Pearson said (at p 237F G) that: it is necessary to consider what is meant by the expression act of state, even if it is not expedient to attempt a definition. It is an exercise of sovereign power. Obvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessations of territory. Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court. Nissan concerned the Crowns occupation of a hotel while assisting to maintain peace under an agreement made between the United Kingdom and Cyprus. The doctrine of Crown act of state was held not to bar a claim for compensation. Lord Morris said (at p 217D) that the acts in question in that case (of feeding and housing troops in the hotel) were far removed from the category of transactions which by reason of being a part of or in performance of an agreement between states are withdrawn from the jurisdiction of the municipal courts. And Lord Wilberforce indicated (pp 235H 236A) that between the acts complained of and the pleaded agreement with the Government of Cyprus, the link was altogether too tenuous for the Crown to be able to invoke Crown act of state if accepted as sufficient to attract the description of act of state it would cover with immunity an endless and indefinite series of acts, judged by the officers in command of the troops to be necessary, or desirable, in their interest. On the other hand, in our concurrently delivered judgment, we have accepted that the doctrine of Crown act of state is available in respect of the United Kingdoms detention and transfer to United States custody of Mr Rahmatullah. In these circumstances, two questions arise as to how that fits with the absence of any suggestion that Crown act of state is or could be a defence in respect of the United Kingdoms alleged involvement in the wrongful detention, combined with mistreatment, by various foreign states of Mr Belhaj, Mrs Boudchar and Mr Rahmatullah. First, one can understand why there is no plea of Crown act of state in respect of the allegations of severe mistreatment inflicted on the various respondents by various foreign state authorities. Further, in the cases of Mr Belhaj and Mrs Boudchar, the allegations of wrongful detention and mistreatment might well be regarded as inseparable. However, in the case of Mr Rahmatullah, the appellants deny the allegations of mistreatment, while admitting that he remained in United States custody for more than ten years. There has been no plea of Crown act of state in respect of any period of this detention, which is not necessarily linked with any mistreatment. If Crown act of state is available, as the court holds, in respect of detention by the United Kingdom, then one might have thought that it would logically be available in respect of detention by a third state in respect of which the Crown is alleged to have been complicit. The explanation may, however, lie in the length of the period of Mr Rahmatullahs detention and the considerations that he was never charged or tried, was deprived of any access to a lawyer for the first six years and was unable to speak freely for the remainder of the period. A plea of Crown act of state in respect of detention of this nature might well have been considered unrealistic. Second, however, this leaves a tension between, on the one hand, apparent recognition that the nature of the acts is not such as to justify a plea of Crown act of state in respect of the United Kingdoms alleged complicity in such acts and, on the other hand, the case now advanced that the alleged involvement of other states in such acts precludes any claim against the United Kingdom in respect of them on the grounds of foreign act of state. As I have said in my separate concurrent judgment (para 4), it is likely to be easier to establish that a domestic court should abstain from adjudicating on the basis of Crown act of state than on the basis of foreign act of state. Summary of conclusions For the reasons which I shall set out, I have reached the following conclusions: State immunity (paras 12 to 31): (i) The appellants pleas of state immunity fail because the various foreign states (Malaysia, Thailand, the United States and Libya) are not impleaded, and their legal position is not affected, either directly or indirectly by the claims in tort advanced by the respondents solely against the appellants: para 31. Foreign act of state (paras 32 to107): (ii) The concept of foreign act of state needs to be disaggregated, or broken down, and approached at a more particular level of enquiry: para 34. (iii) Three types of foreign act of state can be identified under current English authority: a) The first is the rule of private international law, whereby a foreign states legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within the foreign states jurisdiction: para 35. b) The second is that a domestic court will not normally question the validity of any sovereign act in respect of property within the foreign states jurisdiction, at least in times of civil disorder: para 38. c) The third is that a domestic court will treat as non justiciable or, to use language perhaps less open to misinterpretation, abstain or refrain from adjudicating upon or questioning certain categories of sovereign act by a foreign state abroad, even if they occur outside the foreign states jurisdiction: para 40. (iv) The appellants case, to the effect that the second and/or third types should be expanded or combined so as to cover all sovereign (jure imperii) acts by a foreign state anywhere abroad outside the jurisdiction of the domestic court whose jurisdiction is in issue, should be rejected: a) To the extent that it exists at all, the second type of foreign act of state is and should be limited to acts relating to property within the jurisdiction of the foreign state: para 74 to 78. b) If (contrary to a), the second type were to be viewed as covering acts directed against the person, it would be subject to a public policy exception, which would enable at least the allegations of complicity in torture, unlawful detention, enforced rendition and disappearance made in these cases to be pursued in the English courts: para 80. c) The third type of foreign act of state is not limited territorially. Whether an issue is non justiciable falls to be considered on a case by case basis. Considerations both of separation of powers and of the sovereign nature of foreign state or inter state activities may lead to a conclusion that an issue is non justiciable in a domestic court: paras 90 to 95. But in deciding whether an issue is non justiciable, English law will have regard to the extent to which the fundamental rights of liberty, access to justice and freedom from torture are engaged by the issues raised: paras 98 and 101. d) I see little attraction in and no basis for accepting a yet further doctrine whereby United Kingdom courts might be precluded from investigating acts of a foreign state, if the Foreign Office communicated to it the Governments view that this would embarrass the United Kingdom in its international relations (though I accept that consequences for international relations may feed into the question of justiciability or abstention under the third type of foreign act of state): para 41. e) In the present case, the circumstances as they are presently before the Supreme Court do not lead to a conclusion that the issues are non justiciable in a domestic court: paras 96 to 105. f) Had a contrary conclusion been reached, the result would have been that, although the relevant foreign states could, at least in theory, have been sued within their own jurisdictions for the torts alleged to have been directly committed by their own officers, the appellants could not have been sued anywhere for their alleged complicity in such torts, since they would be entitled to invoke state immunity in any foreign jurisdiction: para 102. Miscellaneous points (paras 108 to 110): (v) It is unnecessary to reach any final determination of the respondents case: a) that, in so far as what is alleged amounts to complicity in torture, the United Nations Convention against Torture (Treaty Series No 107 (1991)) obliges states to provide a universal civil remedy in respect of torture wherever committed in the world, at least when (allegedly) committed by or with the connivance of United Kingdom citizens, and that any otherwise applicable type of foreign act of state should be modified accordingly. It suffices to say that I would as at present advised see no basis for differing from the rejection of this argument in Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitution Affairs intervening) (Jones v Saudi Arabia) [2006] UKHL 26; [2007] 1 AC 270. b) that article 6 of the Convention rights scheduled to the Human Rights Act 1998 is engaged by and renders impermissible in the present circumstances any reliance by the appellants on either state immunity or foreign act of state. Again, this would face a difficulty raised by the House of Lords conclusions in Holland v Lampen Wolfe [2000] 1 WLR 1573 and Jones v Saudi Arabia, paras 14 and 64, that article 6 is not engaged by a plea of state immunity. The European Court of Human Rights has reached a contrary conclusion (see eg Al Adsani v United Kingdom (2001) 34 EHRR 11; Sabeh El Leil v France (2011) 54 EHRR 14), and it would have been necessary to consider this disagreement. Foreign act of state, on the other hand, operates, even under the case law of the European Court of Human Rights, as a substantive bar to liability or adjudication (see Roche v United Kingdom (2005) 42 EHRR 30; Markovic v Italy (2006) 44 EHRR 52), and so would not, if applicable, engage article 6. Further, even if article 6 were engaged, the question would then have arisen whether it rendered impermissible any reliance on either state immunity or foreign act of state. But, since I would hold that the appellants cannot rely on either in any event, it is unnecessary to go further into this. Conclusion: (vi) These conclusions lead to the conclusion that the appellants are not entitled to rely on state immunity or the doctrine of foreign act of state to defeat the present proceedings, and the appeals must accordingly be dismissed and the cases proceed to trial. The detailed reasoning supporting them follows. State immunity State immunity is, as indicated, a principle of customary international law recognised at common law, but now provided for by the State Immunity Act 1978. The International Court of Justice has described state immunity as occupying an important place in international law and international relations and as deriving from the principle of sovereign equality of states, which, as article 2, para 1 of the United Nations Charter makes clear, is one of the fundamental principles of the international legal order: Jurisdictional Immunities of the State, Germany v Italy, judgment of 3 February 2012 [2012] ICJ Rep, p 99. The absolute independence of every sovereign authority and the international comity which induces every sovereign state to respect the independence and dignity of every other sovereign state were similarly identified as the bases of state immunity by Brett LJ in the seminal common law case of The Parlement Belge (1880) 5 PD 197, 214 215. Section 1 of the 1978 Act provides: General immunity from jurisdiction. (1) A state is immune from the jurisdiction of the courts of the United Kingdom except as provided in the following provisions of this Part of this Act. (2) A court shall give effect to the immunity conferred by this section even though the state does not appear in the proceedings in question. The Act specifies various exceptions to state immunity, including, but not limited to, submission to the jurisdiction (section 2), commercial contracts and contracts to be performed in the United Kingdom (section 3), personal injuries and damage to property (section 5) and ownership, possession and use of property (section 6). Sections 5 and 6 read: 5. Personal injuries and damage to property. A state is not immune as respects proceedings in respect of (a) death or personal injury; or (b) damage to or loss of tangible property, caused by an act or omission in the United Kingdom. 6. Ownership, possession and use of property. (1) A State is not immune as respects proceedings relating to any interest of the state in, or its possession or use (a) of, immovable property in the United Kingdom; or (b) in, or its possession or use of, any such property. any obligation of the state arising out of its interest (2) A state is not immune as respects proceedings relating to any interest of the state in movable or immovable property, being an interest arising by way of succession, gift or bona vacantia. (3) The fact that a state has or claims an interest in any property shall not preclude any court from exercising in respect of it any jurisdiction relating to the estates of deceased persons or persons of unsound mind or to insolvency, the winding up of companies or the administration of trusts. (4) A court may entertain proceedings against a person other than a State notwithstanding that the proceedings relate to property (a) which is in the possession or control of a state; or (b) in which a state claims an interest, if the state would not have been immune had the proceedings been brought against it or, in a case within para (b) above, if the claim is neither admitted nor supported by prima facie evidence. It follows that state immunity is a personal immunity, ratione personae, possessed by the state in respect of its sovereign activities (acta jure imperii) so far as these do not fall within any of the exceptions. When state immunity exists, the nature and gravity of the alleged misconduct are irrelevant. Even the admitted illegality of the acts complained of does not alter the characterisation of those acts as acta jure imperii: Jurisdictional Immunities, para 60; see also Jones v Saudi Arabia [2007] 1 AC 270, where the House rejected the argument that torture or some other contravention of a jus cogens cannot attract immunity rationae materiae because it cannot be an official act: per Lord Hoffmann at para 85. The classification does not appear in the 1978 Act, but the situations in which state immunity applies are commonly described as involving either direct or indirect impleading of the state. A state is (directly) impleaded by legal proceedings taken against it without its consent: Cia Naviera Vascongado v SS Cristina (The Cristina) [1938] AC 485, 490, per Lord Atkin. Lord Atkin also identified a second situation of immunity in which, even though the state may not be a party, the proceedings relate to state property. In so far as the state is put in a position where it must either forego or appear to defend its property interest, this situation can readily be described as one of indirect impleading: see eg The Parlement Belge (1880) 5 PD 197, 217 219, where the Court of Appeal did just that. On the other hand, immunity exists, as will appear, in some situations where a states property interests are affected in ways which it may not be so natural to identify as indirect impleading, and these are sometimes therefore treated separately: see eg United States of America v Dollfus Mieg et Cie SA [1952] AC 582, where Lord Porter at pp 612 and 614 referred to an action impleading the two governments or affecting their rights and to the foreign governments being implicated or their rights invaded, while Lord Radcliffe in contrast at p 616 treated it as a suit which might affect a sovereigns interest in property under the head of proceedings which amount in one way or another to a suit against the sovereign; and see recently in Canada Khadr v The Queen 2014 FC 1001, para 35 per Mosley J. The appellants submit that the immunity is wide enough to cover cases such as the present where it is integral to the claims made that foreign states or their officials must be proved to have acted contrary to their own laws, before any claim against the United Kingdom authorities and individuals sued can get off the ground. The respondents submit the contrary, on the basis that nothing in the present proceedings can or would involve any form of judgment against, or in any way affect any legal interests of, the relevant foreign states or their officials. Some uncertainty exists about the appropriate classification of the undoubted immunity which exists in relation to proceedings directed against state officials for acts done in their official capacity, in circumstances where the state itself would if sued have had state immunity. That immunity is firmly established: see Propend Finance Pty v Sing (1997) 111 ILR 611 and Jones v Saudi Arabia, cited above. But the two leading speeches in Jones v Saudi Arabia, with both of which all other members of the House expressed their agreement, explain it on differing bases. Lord Bingham in para 31 said: It is, however, clear that a civil action against individual torturers based on acts of official torture does indirectly implead the state since their acts are attributable to it. Were these claims against the individual defendants to proceed and be upheld, the interests of the Kingdom would be obviously affected, even though it is not a named party. In contrast, Lord Hoffmann at para 69 said that: state in section 1(1) of the [State Immunity Act] and government, which the term state is said by section 14(1)(b) to include, must be construed to include any individual representative of the state acting in that capacity, as it is by article 2(1)(b)(iv) of the Immunity Convention. The official acting in that capacity is entitled to the same immunity as the state itself. It is unnecessary to consider which of these two formulations may be preferable, although Lord Hoffmanns should not be misunderstood as suggesting that a state official possesses his own personal immunity which he can waive. His immunity depends upon the states, and can only be waived by the state. The immunity in respect of acts done in the course of their office extends to state officials ratione materiae even after they have left office (as well as to heads of state, who enjoy an additional immunity ratione personae while in office): see eg R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, 202G H, 269F and 281C G, per Lords Browne Wilkinson, Millett and Phillips, citing Hatch v Baez (1876) 7 Hun 596. Whatever classification be adopted, the property cases are instructive as to the boundaries of state immunity. They originate in the context of admiralty proceedings in rem: see eg The Parlement Belge, an action in rem against a mail ship belonging to the King of the Belgians in his public capacity, and The Cristina itself. In the light of modern understanding of the nature of an action in rem, it might be argued that such an action involves from the outset direct impleading: see Republic of India v India Steamship Co Ltd (The Indian Grace) [1997] UKHL 40; [1998] AC 878. Be that as it may be, the House in The Cristina approved a number of previous authorities indicating that a state might be impleaded by proceedings against a vessel of which it had de facto possession, or such rights of direction and control, without possession, as arise from requisitioning (referring to The Broadmayne [1916] P 64), when those proceedings would, if successful result in an order of the court affecting that possession or those other rights: see United States of America v Dollfus Mieg et Cie SA [1952] AC 582, 617, per Lord Radcliffe. United States of America v Dollfus Mieg et Cie SA was concerned with property, but in a very different context. The Bank of England held for safe custody 64 numbered bars of gold which had in 1944 been forcibly and wrongfully removed by German troops from a French bank holding them on behalf of Dollfus Mieg. The bars were recovered from Germany by Allied forces and lodged with the Bank of England, to be held to the order of a Tripartite Commission for the Restitution of Monetary Gold established by the American, British and French governments to deal on their behalf with gold taken from Germany. The Commission was no more than three sovereigns joined in a particular relation: p 615, per Lord Radcliffe. The Bank of England by mistake sold 13 of the bars, retaining 51. Dollfus Mieg claimed delivery up alternatively damages against the Bank of England. The action was stayed at the instance of the United States and France as regards the 51 bars, on the basis that the claim indirectly impleaded the three states as bailors in respect of their immediate possessory rights as against the Bank. It was allowed to continue as regards the 13 bars, on the basis that the Bank had terminated any bailment by their sale. Lord Radcliffe faced squarely the problem that title was what was in issue, saying: But certainly a special difficulty begins when he [the sovereign] is not actually named but the suit is one which may result in a judgment or order that will affect his interest in some piece of property. Even to say that much begs one important question, for it assumes that he has a valid interest in that property: whereas a stay of proceedings on the ground of immunity has normally to be granted or refused at a stage in the action when interests are claimed but not established, and indeed to require him to establish his interest before the court (which may involve the courts denial of his claim) is to do the very thing which the general principle requires that our courts should not do. Lord Radcliffe resolved the problem by reference to the three states possessory rights as bailors of the goods to the Bank of England, concluding at pp 618 619 that: The property of a sovereign state, which is an abstraction, must be in the physical possession of some actual person, and I do not see any distinction of substance in a matter of this kind between the possession of a servant of the state and the possession of its bailee when the bailment is of such a nature as that of the bank in this case. Indeed, I think that the Commissions possession and control of the gold bars in the hands of the bank amounted to a form of property more substantial than that which HM Government acquired by requisitioning the Broadmayne. The suit began as a claim in detinue. That means that the court was going to be asked or at any rate could be asked to make an order upon the bank to hand over the bars to the plaintiffs. Such an order would unquestionably interfere with the Commissions possession of them and compel the Commission, if they wished to recover possession, to come to court and try to get them back from the plaintiffs. I cannot feel any doubt that such a suit offends against the principle of sovereign immunity. In short, the Commission would no longer be entitled to look to the Bank as bailees, but would have as owners to establish title by proceedings against Dollfus Mieg. Addressing an argument that Dollfus Mieg could avoid the problem by limiting itself to a claim in conversion for damages, Lord Radcliffe found the point one of considerable difficulty, but in the end concluded that a claim on this basis was also precluded by state immunity: when I consider the real nature of a claim for damages for conversion I come to the same conclusion. Subject to the payment of costs and special damages (if there are any) an action for damages for conversion can always be stayed if the defendant offers to hand over the property in dispute. In that sense a suit for damages for conversion is an attempt to use the courts process to interfere with the existing possession of the chattel the title to which is in dispute. If the defendant continues to resist and damages are awarded against him he may keep the chattel and pay the damages; but if he does he becomes entitled, if he is a bailee, to set up the plaintiffs title to the goods, which he has thus paid for, against his own bailor. In other words the courts judgment in the personal action against him would materially affect the existing right of his bailor in respect of the possession and disposal of the chattel. The result of a judgment in damages has thus some analogy to a sale by the court of a chattel which is in the possession or under the requisition of a foreign sovereign: if the sale cannot be ordered in the one case because to order it would be to use the courts process against the sovereign, then the judgment cannot be rendered in the other. Again, the Commission would no longer be able to look to the Bank of England as simple bailees, but would face the issue that the Bank now stood, at least in theory, in the same position as Dollfus Mieg. It seems clear that Lord Radcliffe viewed the facts in Dollfus Mieg as close to the outer parameters of state immunity. Ultimately, the decision focused on the existence of a bailment, and on the second order consequences for the three States and the Bank of Englands legal positions as bailors and bailee if Dollfus Miegs claim could be pursued and was successful. Five years later the House confirmed in Rahimtoola v Nizam of Hyderabad [1958] AC 379 that a similar position applied where the issue was title to a chose in action, consisting of monies transferred without authority from an account of the Nizam and his government at the Westminster Bank Ltd to an account opened by that bank in the name of Mr Rahimtoola, the High Commissioner for Pakistan, in his capacity (as the House held) as agent for the state of Pakistan. The Nizams suit was barred by state immunity. Viscount Simonds put the matter as follows at p 395: A suit by a third party, the Nizam, is calculated and intended to interfere with the title of Rahimtoola and his principals, the Government of Pakistan, and with their possession or control of their property. It can only be maintained if the Government of Pakistan take a course which their sovereign dignity entitles them to reject and descend into the arena. The appellants argue on the present appeals that state immunity was recognised as existing in Rahimtoola, although the State of Pakistan would not have been bound by a judgment in proceedings involving a third party. But that was not how Viscount Simonds saw the matter unsurprisingly since Mr Rahimtoola was acting in his official capacity and proceedings against him therefore involved, on their face, state property. The special treatment in section 6(4) of the State Immunity Act 1978 of claims against third parties in respect of property cases also suggests that such cases represent a particular head of immunity, based on a states possession or control of or claim to some (legal) interest in the property in question. However, the appellants rely upon the United Nations Convention on Jurisdictional Immunities of States and Their Property (2004) as being based on a broader conception of interests, which, they submit, should inform the domestic understanding of indirect impleading. Articles 5 and 6 provide: Article 5 State immunity A state enjoys immunity, in respect of itself and its property, from the jurisdiction of the courts of another state subject to the provisions of the present Convention. Article 6 Modalities for giving effect to state immunity 1. A state shall give effect to state immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another state and to that end shall ensure that its courts determine on their own initiative that the immunity of that other state under article 5 is respected. A proceeding before a court of a state shall be considered to have been instituted against another state if that other state: a. is named as a party to that proceeding; or b. is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other state. By article 2(1)(b), State is defined in broad terms, as meaning: (i) the State and its various organs of government; (ii) constituent units of a federal State or political subdivisions of the State, which are entitled to perform acts in the exercise of sovereign authority, and are acting in that capacity; (iii) agencies or instrumentalities of the State or other entities, to the extent that they are entitled to perform and are actually performing acts in the exercise of sovereign authority of the State; and (iv) representatives of the State acting in that capacity. The appellants rely on the words interests or activities in article 6(2)(b) which, they submit, indicate that state immunity should be understood as extending beyond claims affecting property or other rights. The Convention is not yet in force, lacking a sufficient number of ratifications, including any from the United Kingdom. But in Jones v Saudi Arabia, at para 26, Lord Bingham referred to the Convention as being, [d]espite its embryonic status, the most authoritative statement available on the current international understanding of the limits of state immunity in civil cases, going on to say that the absence of a torture or jus cogens exception [in it was] wholly inimical to the claimants contention. This was a statement made expressly about the limits of state immunity in the context of an issue whether the legal liability of a state official for torture fell outside the scope of such immunity. That was a fundamental question which the Convention, however embryonic, could be expected to cover. To attach equivalent relevance to the use in a Convention with no binding international status of the ambiguous terminology of article 6(2)(b) is to take Lord Binghams words out of context. The appellants reliance on the further passage in Lord Binghams speech quoted at para 17 above, with its adoption of the word interests is open to the same objection. The appellants note that the International Court of Justice has referred to the adoption of the Convention (see eg Jurisdictional Immunities, paras 77 and 89). Again, this was in the context of the issue, very different from the present, whether state immunity was subject to any exception in the case of violations of human rights, the law of armed conflict or jus cogens. The drafting history locates article 6 firmly in the context of the case law concerning the arrest of vessels, such as The Parlement Belge, and property in which states claim an interest, such as Dollfus Mieg: see eg the Report of the International Law Commission (Yearbook 1991, Vol II, (2), pp 23 25). The Report also explains the focus of article 6 as avoiding the exercise of State jurisdiction in a way which would put any foreign sovereign in the position of having to choose between being deprived of property or otherwise submitting to the jurisdiction; and it explains the words to affect as having been introduced to replace the prior draft wording to bear the consequences of a determination by the court which may affect, in order to avoid unduly broad interpretations of article 6(2)(b). Even so, concerns were expressed at the drafting stage by both Australia and the United States about the potential width of article 6(2)(b): see the Report of the Secretary General of the United Nations A/47/326 of 4 August 1992. But academic commentators have concluded that any uncertainty in its scope should be addressed by recognising that interests should be limited to a claim for which there is some legal foundation and not merely to some political or moral concern of the State in the proceedings: Fox and Webb, The Law of State Immunity, 3rd ed (2015 revision), p 307; and OKeefe, Tams (eds), The United Nations Convention on Jurisdictional Immunities of States and Their Property (2013), pp 110 111, indicating that some specifically legal effect should be required as distinct from a social, economic or political effect. Reliance was also placed by the appellants on two decisions of the International Court of Justice, the first the Case of The Monetary Gold removed from Rome in 1943 (judgment of 15 June 1954) ICJ Reports 1954, P19 and the second the Case concerning East Timor (Portugal v Australia) (judgment of 30 June 1995) ICJ Reports 1995, P90. In Monetary Gold an arbitrator had held that certain gold removed from Rome by the Germans had belonged to Albania, but France, the United Kingdom and the United States agreed that it would be delivered up to the United Kingdom in partial settlement of the International Courts judgment of 15 December 1949 against Albania in the Corfu Channel case [1949] ICJ Rep, p 244, unless either Albania or Italy applied to establish a claim. Albania did not so apply. Italy did, but objected to the courts jurisdiction in the absence of Albania. The court held that, since Italys claim would involve determining the legal position as between Albania and Italy, it could not adjudicate without Albanias consent. It said, inter alia, that Albanias legal interests would not only be affected by a decision, but would form the subject matter of the decision (p 32). Addressing an argument that, as a third party, Albania would not under the courts rules be bound, the court responded: This rule, however, rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot, without the consent of that third state, give a decision on that issue binding upon any state, either the third state, or any of the parties before it. The case is distinct from the present. The International Court was, above all and as in the domestic case of Dollfus Mieg, being asked to determine the immediate destination of specific property. In the courts below, Leggatt J at para 78 distinguished East Timor and the Court of Appeal at para 42 distinguished Monetary Gold as cases about international jurisdiction, required in the case of the International Court to be based upon consent, in contrast with which domestic courts exercise compulsory jurisdiction over those within their reach. That is correct as far as it goes, but states domestic jurisdiction also depends on consent in contexts where state immunity otherwise exists. The situation is therefore nuanced. Nevertheless, Monetary Gold is not about state immunity, and does not on its facts assist on the issue now before the court, even by way of analogy. The same applies to the East Timor case. By United Nations Resolution 1514 of 15 December 1960, East Timor was under Portuguese administration as a non self governing territory. Following internal disturbances in 1975, the Portuguese authorities withdrew to an island, and the armed forces of Indonesia intervened, after which the Portuguese withdrew entirely. In 1978 Australia recognised the fact that East Timor was part of Indonesia but not the means by which this was brought about, and in 1989 Australia negotiated a Treaty with Indonesia, to create a Zone of Cooperation in an area between the Indonesian Province of East Timor and Northern Australia. Portugal claimed that, in entering into this Treaty, Australia had acted unlawfully and in violation of the obligation to respect the status both of Portugal as the administering power and of East Timor as an area under such administration. The court accepted the erga omnes character of this obligation, but declined jurisdiction to rule on the lawfulness of Australias conduct, when any judgment would imply an evaluation of the lawfulness of the conduct of another State [viz Indonesia] which is not a party to the case (p 102). It stressed that, as in Monetary Gold, Indonesias rights and obligations would constitute the very subject matter of such a judgment made in the absence of that partys consent, contrary to the well established principle that the Court can only exercise jurisdiction over a state with its consent. The subject matter of any judgment would have been, in essence, whether Portugal or Indonesia had the right to administer, and so enter into treaties relating to, East Timor, an issue about territorial title. The present appeals involve no issues of proprietary or possessory title. All that can be said is that establishing the appellants liability in tort would involve establishing that various foreign states through their officials were the prime actors in respect of the alleged torts. But, unlike the position in Dollfus Mieg, that would have no second order legal consequences for the relationship between the respondents and the foreign states in question or their officials. None of the above domestic and international cases carries the concept of interests so far as to cover any reputational or like disadvantage that could result to foreign states or their officials from findings as between the appellants and respondents. On the contrary, the pains which the House of Lords took in Dollfus Mieg and Rahimtoola to identify a potential legal effect of the litigation on the relevant state rights point against any broader conception of interest. Some consequences of the appellants case are also worthy of note. The present proceedings in which they are sued as ancillary parties would be incapable of being maintained in this jurisdiction against them or against the states (Malaysia, Thailand, Libya and the United States) alleged to be primarily responsible for the physical conduct complained of by the respondents. Each such other state would, on conventional principles governing state immunity, be capable of being pursued in its own courts in respect of the particular conduct complained of in its case. But the claims could also not be pursued against the appellants in the courts of any of such other states, since the appellants would there enjoy state immunity against any direct impleading. The appellants case on state immunity in this jurisdiction would preclude suit against them anywhere. For the reasons given, I consider that the issues now before the Supreme Court do not attract state immunity, because the legal position of the foreign states, the conduct of whose officials is alleged to have been tortious in the places where such conduct occurred, will not be affected in any legal sense by proceedings to which they are not party. The decisions reached by the Court of Appeal in Belhaj and by Leggatt J in Rahmatullah were correct and the appeals should be dismissed on the issue of state immunity. The starting point of the appellants case is that adjudication of the issues now before the court in favour of the claimants would necessarily involve a finding by the English courts that foreign states had acted illegally under the laws of the places where the conduct complained of occurred. With regard to Mr Belhajs and Mrs Boudchars alleged detention and mistreatment, that would mean in Kuala Lumpur by Malaysian officials, in Bangkok by Thai officials as well as United States officials, in the airplane by United States officials and in Libya by Libyan and United States officials. With regard to Mr Rahmatullahs detention and alleged mistreatment, that would mean by Foreign act of state United States officials in Iraq and Afghanistan. So much can be accepted as the premise to what follows. In the opening words of his introduction to the chapter entitled The Foreign Act of State in his book Foreign Affairs in English Courts (1986), Dr Francis Mann wrote that: Public policy dominates one of the most difficult and most perplexing topics which, in the field of foreign affairs, may face the municipal judge in England: the doctrine of the foreign act of State displays in every respect such uncertainty and confusion and rests on so slippery a basis that its application becomes a matter of speculation. In Yukos v Rosneft the Court of Appeal suggested (para 115) that, in view of the limitations on foreign act of state recognised in the case law: The important thing is to recognise that increasingly in the modern world the doctrine is being defined, like a silhouette, by its limitations, rather than to regard it as occupying the whole ground save to the extent that an exception can be imposed. Leggatt J observed (para 134) that, when a rule is said to be defined by its absence, there is reason to wonder whether there is in fact such a rule. That aphorism goes too far. As Dr Francis Mann has suggested, quoting Cardozo J (Mann, Conflict of Laws and Public Law [1971] 1 Recueil des Cours 107, pp 148 149, 151 156 and Foreign Affairs in English Courts (1986) p 164), what is required is to approach the concept of foreign act of state at a more particular level of enquiry, by enunciating principles rather than maxims which, starting as devices to liberate thought, often end by enslaving it. Or, to adopt a phrase from Professor Campbell McLachlans Foreign Relations Law (CUP, 2014), para 12.129, what is required is a much more fine grained approach disaggregating the general category in order to achieve the specialization of the principle in its application to particular classes of case. Happily, there is a very substantial measure of common ground within the Supreme Court about the broad framework or structure of the relevant principles. Addressing briefly at this point such differences as there are between Lord Sumption and myself, Lord Sumption in para 227 distinguishes between (i) cases concerned with the applicability or examinability of foreign municipal legislation within a states own territory (which he calls municipal law act of state) and (ii) cases concerning the transactions of foreign states (which he calls international law act of state). This distinction corresponds generally with the distinction which I have identified in para 11(iii) above between the first type of foreign act of state (which I consider is better viewed as a rule of private international law, a view with which Lord Sumption expresses sympathy in the first four sentences of his para 229) and the third type of foreign act of state (which I describe as a rule of non justiciability or judicial abstention). What Lord Sumption does in para 228 is enlarge the first of his two categories, to embrace the second potential type of foreign act of state identified in para 11(iii) above), that is executive acts by a foreign state within its own territory. Apart from differences in the terminology we prefer, the differences between us lie in the ambit assigned to the second and third type of foreign act of state. Lord Sumption includes within the second acts against the person as well as property, and he gives the third type of foreign act of state (non justiciability or judicial abstention, or in his terminology international law act of state) a wider scope than I do, but then cuts that back by a domestic public policy qualification drawing inter alia on the international law concept of jus cogens. VI Three types of foreign act of state Three types of foreign act of state are in my opinion identifiable under current English authority. First, there is a well established rule of private international law, according to which a foreign states legislation will be recognised and normally accepted as valid, in so far as it affects property, whether movable or immovable, situated within that state when the legislation takes effect: Dicey, Morris and Collins, The Conflict of Laws, 15th ed (2012), rule 137; and see Carr v Fracis Times & Co [1902] AC 176 (seizure of ammunition by British officers in Muscat under the authority of a proclamation of the absolute ruler, the Sultan of Muscat, whose word was law), Luther v Sagor [1921] 23 KB 532 (seizure by decree of Russian revolutionaries later recognised as the government), Princess Paley Olga v Weisz [1929] 1 KB 718 (seizure by similar decrees) and Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368 (compulsory purchase of shares in Spain). Movable and immovable property is thus subject to a territorial principle. So too is domestic trade mark protection based on a reputation acquired domestically, which cannot therefore be affected by foreign legislation: Lecouturier v Rey [1910] AC 262, cited by Warrington LJ in Luther v Sagor, pp 548 549. Under familiar conflict of laws principles, different connecting factors govern the recognition of foreign state legislation in other spheres. For example, foreign legislation affecting contractual rights will be recognised if enacted by the state whose law governs the contract: Dicey, Morris and Collins, op cit, rule 227(1); and see eg In re Helbert Wagg & Co Ltds Claim [1956] Ch 323 and Adams v National Bank of Greece and Athens [1961] AC 255. And, if one moves away from state legislation to adjudication by state courts, yet further connecting factors govern the recognition of foreign judgments. Leaving aside treaty arrangements and the European regime of the Brussels Regulation and Lugano Convention, the recognition of foreign judgments depends upon the foreign court having had jurisdiction in the limited international sense recognised by English courts and examined in Dicey, Morris & Collins, op cit, rules 43 to 47. However recognition will, exceptionally, be refused, when recognition would conflict with a fundamental principle of domestic public policy. The classic authorities in respect of legislation affecting property or contracts are Oppenheimer v Cattermole [1976] AC 249 (non recognition of Nazi laws discriminating against Jews) and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] UKHL 19; [2002] 2 AC 883 (non recognition of an Iraqi law confiscating the Kuwait Airways fleet, which was in Iraq, and giving it to Iraqi Airways in undeniable breach of Security Council Resolutions). Similarly, recognition may be denied to foreign judgments where this would be contrary to public policy: Dicey, Morris & Collins, rule 51; see also Altimo Holdings and Investment Ltd v Kyrgyz Mobil Tel Ltd [2011] UKPC 7; [2012] 1 WLR 1804 (Altimo) and Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458. Second, it has been held that a rule exists whereby an English court will not question a foreign governmental act in respect of property situated within the jurisdiction of the foreign government in question. The Court of Appeal in Princess Paley Olga upheld the judgment against the claimant Princess on this (its third) ground, as well as two others in the case, stating that: This court will not inquire into the legality of acts done by a foreign Government against its own subjects in respect of property situate in its own territory (per Russell LJ at p 736) See also per Scrutton LJ at pp 723 724 and Sankey LJ at pp 726 730. Similar reasoning, derived from United States authority including Oetjen v Central Leather Co (1918) 246 US 297 (para 51 below), had appeared in AOAM v James Sagor & Co [1920] 3 KB 532, in particular in the judgment of Warrington LJ at p 549. The issue there was however whether to recognise a confiscatory decree, which was treated by the other members of the court simply as Russian legislation. Other direct authority on this type of foreign act of state is limited, though there are some general dicta wide enough to embrace it as well as the third type of foreign act of state: see eg Lord Sumners statement in Johnstone v Pedlar [1921] 2 AC 262, 290 that Municipal Courts do not take it upon themselves to review of the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign state done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification; See also Lord Wilberforces dicta in Buttes Gas, to which reference is made in para 59 below. The existence of this second type of act of state has not in fact been challenged on this appeal. However, assuming (as I am prepared for present purposes to do without deciding) that it exists, it will be necessary to examine more closely its scope and rationale. It may be regarded, like the first type of act of state, as a rule of private international law though this can hardly be in a literal conflicts of laws sense since the effect of the relevant act is determined not by law, but regardless of law. Perram J called it in Habib v Commonwealth [2010] FCAFC 12; (2010) 265 ALR 50 at paras 38 and 43 a super choice of law rule. In these circumstances, it can, so far as it exists, just as well be understood as a special rule of abstention: witness Scrutton LJs reference to an act of state into the validity of which this Court would not enquire in Princess Paley Olga v Weisz [1929] 1 KB 718, 723 724. In Empresa Exportadora de Azucar v Industria Azucarera Nacional SA (The Playa Larga and Marble Islands) [1983] 2 Lloyds Rep 171, the Court of Appeal was concerned with unlawful conduct involving theft by Cuban sellers of one cargo of sugar, property in which had already passed to the buyers, and non delivery of a second combined with trickery whereby the intended buyers were nonetheless induced to pay its price. The first cargo was on a vessel which was discharging at its Chilean discharge port, when the vessel was withdrawn by the sellers. The second cargo was on the high seas en route to Chile when withdrawn. The Court rejected any defence of foreign act of state for a series of reasons, primarily because there was no such plea and no proof that the acts were acts of the Chilean government, but secondarily also because, if they were, there seems no compelling reason for judicial restraint or abstention in a case where it is clear that the acts relied on were carried out outside the sovereigns own territory. Whether that reasoning was correct in respect of the second type of foreign act of state arises for consideration on these appeals. Whether any like doctrine extends to sovereign acts in respect of persons, rather than property, also requires determination. Third, it is established at the highest level that there are issues which domestic courts should treat as non justiciable or should abstain from addressing. The Court of Appeal in Yukos v Rosneft understood this principle as not so much a separate principle as a more general and fundamental principle, which had to a large extent subsumed [the first and second types of act of state] as the paradigm restatement of that principle (paras 48 and 66). That, in my view, plays into the problem identified by Dr Mann and Professor McLachlan (see para 33 above). It blurs the distinctions between different types of foreign act of state to which I have referred in para 11 above. It impedes the important task of identifying the scope and characteristics of each type of foreign act of state. The Court of Appeal in Yukos v Rosneft suggested at para 65 that the third type might be allied with a yet further doctrine, precluding United Kingdom courts from investigating any acts of a foreign state when and if the Foreign Office communicated the Governments view that such investigation would embarrass the United Kingdom in its international relations. I see little attraction in and no basis for giving the Government so blanket a power over court proceedings, although I accept and recognise that the consequences for foreign relations can well be an element feeding into the question of justiciability. I consider in paras 100 to 102 below the reliance placed by the appellants on adverse effects of these proceedings on international relations. Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888 is the leading English authority on the third type. It was recently considered by this Court in dicta in Shergill v Khaira [2014] UKSC 33; [2015] AC 359. In Buttes Gas, the claimant Buttes Gas sued Dr Hammer and Occidental Oil Company for slander, eliciting a counterclaim for an alleged conspiracy between Buttes Gas, the Ruler of Sharjah and others to cheat and defraud, and to procure the British government and others to act unlawfully to the detriment of, Dr Hammer and Occidental Oil. The counterclaim related to oil exploration rights off the island of Abu Musa in the Persian Gulf, and raised a whole series of boundary and other international and inter state law issues, set out by Lord Wilberforce on p 937 of the report. The claimant applied to strike out the counterclaim. Lord Wilberforce, giving the sole reasoned speech concluded at p 938A C: It would not be difficult to elaborate on these considerations, or to perceive other important inter state issues and/or issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive) there are to follow the Fifth Circuit Court of Appeals no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no mans land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were unlawful under international law. I would just add, in answer to one of the respondents arguments, that it is not to be assumed that these matters have now passed into history, so that they now can be examined with safe detachment. Having concluded that the counterclaim was non justiciable, the House noted the injustice which could follow if the claim alone proceeded. In the event, the House was able, without more, to take advantage of the claimants offer to submit to a stay of the claim as a term of dismissal of the counterclaim. In Shergill v Khaira [2015] AC 359 this Court referred to the third type of foreign act of state under the head of non justiciability which it said (para 41) refers to a case where an issue is said to be inherently unsuitable for judicial determination by reason only of its subject matter (even though it would otherwise be within the English courts jurisdiction under, for example, the Brussels Regulation and Lugano Convention or the rules of court). The court went on (paras 41 43) to say that such cases generally fall into one of two categories: (i) The first was where the issue was beyond the constitutional competence assigned to the courts under our conception of the separation of powers, of which the paradigm cases are the non justiciability of certain transactions of foreign states and of proceedings in Parliament. The distinctive feature of such cases was that once the forbidden area is identified, the court may not adjudicate on the matters within it, even if it is necessary to do so in order to decide some other issue which is itself unquestionably justiciable. Buttes Gas falls into this category. (ii) The second category was of cases not involving private legal rights or obligations or reviewable matters of public policy, and included issues of international law which engage no private right of the claimant or reviewable question of public law. Such issues were not justiciable in the abstract, but must nevertheless be resolved if their resolution is necessary in order to decide some other issue which is in itself justiciable. Examples of this second category, where no private right or reviewable question of public law was engaged, are Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, where the Nabob was seeking to sue for an account due under an international treaty, and JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, where the House of Lords stated that it is axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law (p 499F G per Lord Oliver of Aylmerton). The appellants propose a different categorisation, pursuing a theme pointed up by Rix LJ in Yukos v Rosneft (No 2) and by the Court of Appeal in Belhaj. According to this categorisation, a domestic court will not adjudicate upon any sovereign or jure imperii act committed by a foreign state anywhere abroad. Analytically, this can be viewed either as expanding the scope of the second type of foreign act of state and treating the third type as a particular instance, or (following Rix LJ) as expanding the scope of the third type to subsume and treat as non justiciable not merely special circumstances comparable with, even if not identical to, those involved in Buttes Gas, but any sovereign or jure imperii act committed by a foreign state anywhere outside the domestic jurisdiction invoked in the relevant proceedings. Whichever view is taken, there is a tension between the proposed categorisation, on the one hand, and Lord Wilberforces cautious references to the second and third types of foreign act of state in Buttes Gas, followed up by Rix LJs emphasis in Yukos v Rosneft (No 2) on the limited, or silhouette like, nature of the doctrine, to which reference has already been made: para 33 above. The appellants categorisation would lead to a dramatic expansion of the scope of foreign governmental act of state as a bar to domestic adjudication against defendants otherwise amenable to the English jurisdiction. Whatever typology be adopted, the appellants submit that both cases now before the Supreme Court fall into one or both of the second and third types of foreign act of state, properly understood, and that, in so far as they fall within the third type, they belong within the first sub category. The second type, they submit, should be understood as covering acts relating to the person as well as property. On this basis, the second type would cover, at least, the governmental acts of Malaysian, Thai and Libyan officials within their own jurisdictions. The acts of United States officials on United States aircraft in Belhaj or in Iraq where the United States was an occupying power or Afghanistan where it was present by consent should, the appellants submit, likewise be regarded as occurring within United States jurisdiction. But, in any event, they submit that the second type should not be limited territorially, any more than the third. As to the third type, the issues before the Court concern alleged or actual detention and interrogation allegedly agreed between, and involving transfers of the relevant individuals between, states in the context of arrangements made for political or security reasons. This category cannot, the appellants submit, be limited territorially. VII Analysis of the case law (i) Carr v Fracis Times & Co Carr v Fracis Times & Co falls squarely within the first type of foreign act of state. The seizure of ammunition was lawful because the Sultan of Muscat was an absolute ruler whose word and proclamation were law in that state. The only possible hint of the second type of act of state appears in a dictum near the end of the Earl of Halsbury LCs speech, saying that the lawfulness of what happened rests, and must rest, upon the authority of the sovereign of Muscat; and it appears to me that any other decision would be open to very serious questions of policy if, in every case where the lord of a country has declared what the law of his own country is, it were open to an English tribunal to enter into the question and to determine, as against him, what was the law of his country. The judgment can, on the other hand, also be read as positively emphasising the significance of establishing a legal base for an act such as expropriation. The same may be said of the earlier authority of Dobree v Napier (1836) 2 Bing (NC) 781, where (it appears from the fourth declaration) a vessel supplying the revolutionary Don Miguel of Portugal was seized in the Portuguese port of St Martinho by Sir Charles Napier as admiral in the service of the Queen of Portugal lawfully under Portuguese law (p 796). (Today, the action against Sir Charles Napier would also be expected to fail on grounds of sovereign immunity, wherever the seizure took place. The fact that the seizure occurred in the context of a civil war might also bring into play the third type of act of state.) (ii) The United States authorities In relation to the first and second types of foreign act of state, the Court of Appeal in Luther v Sagor and Princess Paley Olga drew heavily on United States authority, particularly Underhill v Hernandez 168 US 250 (1896) and Oetjen v Central Leather Co 246 US 297 (1918). As with Luther v Sagor and Princess Paley Olga, these were cases concerning the acts of revolutionaries who were ultimately successful and became recognised governments. It is, as Dr Mann wrote in The Sacrosanctity of the Foreign Act of State in Studies in International Law (1973), referring to Williams v Bruffy 96 US 176 (1877) and other authority, well established that recognition has retroactive effect. But one difference between the issues in the two United States and the two English cases appears to have passed unmarked in the latter. In both the United States cases, the issue considered by the court was not whether state conduct fell to be regarded as lawful or valid though unlawful under ordinary domestic law. It was whether state conduct should be regarded as unlawful because it was contrary to international law governing armed conflict. Admittedly, in Underhill v Hernandez the plaintiffs case appears to have been that the law of nations was under the Constitution of Venezuela to be enforced in cases of civil war and the defendant was ready to assume that international law was part of the law of the land where any question arises which is properly the subject of its jurisdiction (plaintiffs brief pp 27 28 and defendants brief p 29). But reliance in a domestic court on the law of war to establish the wrongfulness of a revolutionary governmental act is self evidently more ambitious than reliance on unlawfulness under ordinary domestic law. A precursor of Underhill v Hernandez is Hatch v Baez (1876) 7 Hun 596, where the claimant sought to sue a former president of the Dominican Republic, now resident in New York, for injuries allegedly suffered as a result of acts done by the former president as president. Gilbert Js judgment contains a sentence in terms echoed in later case law: We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory. But, for the rest and on its facts, Hatch v Baez can be seen as a clear case of sovereign immunity, enjoyed, and not so far as appears waived, by the Dominican Republic, as well as a case dating (like the Duke of Brunswicks case, which Gilbert J cited) from a time when the strands of state immunity and foreign act of state were not distinctly separated. Similarly, one would today expect the claim in Underhill v Hernandez to have been met by a plea of state immunity. In Underhill v Hernandez, Underhill, a US citizen, had constructed a waterworks in Bolivar for the government which was eventually overthrown by revolutionary forces, one of whose generals was Hernandez. After Hernandez had captured Bolivar, Underhill sought to leave. Hernandez refused the request and confined Underhill to his house, in order to coerce Underhill into continuing to operate his waterworks and repair works for the benefit of the revolutionary forces. Underhills claim for damages was dismissed. In Underhill v Hernandez Fuller CJ opened his judgment with another broad statement along the same lines as Gilbert Js (p 252): Every sovereign State is bound to respect the independence of every other sovereign State, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Throughout much of the rest of his short judgment the focus was on the existence of civil war, and it is relevant to note that he went on (p 254): The decisions cited on plaintiff's behalf are not in point. Cases respecting arrests by military authority in the absence of the prevalence of war; or the validity of contracts between individuals entered into in aid of insurrection; or the right of revolutionary bodies to vex the commerce of the world on its common highway without incurring the penalties denounced on piracy; and the like, do not involve the questions presented here. (italics added) The words which I have italicised open the possibility that the ratio of Underhill v Hernandez may be limited to state detention in war time situations. The recognition in that context by United States courts of what was effectively a right to detain would not necessarily have been a radical step, in view of international humanitarian legal considerations subsequently enshrined in the Geneva Conventions of 1949. For example, the Fourth Convention relative to the Protection of Civilian Persons in Time of War entitles civilians to leave the territory unless their departure is contrary to the interests of the State (article 35) and authorises the confinement to residence of a civilian if necessary for security reasons (articles 42 and 78). Hernandezs acts were, in the light of his success, the acts of the government of Venezuela (p 254). True, this was a civil war, but article 3 of the Third Convention itself contemplates that the parties to a non international armed conflict will endeavour to agree to bring its other provisions into force. It is, at the least, an open question what the attitude of the Supreme Court would have been to a case such as the present where there is no suggestion of any war, international or civil, to serve as the context for the detention or rendition. In Oetjen, animal hides were seized and sold to satisfy a monetary assessment to support the revolution, and there was an issue of title between an assignee from the original owner and a person deriving his claim to title from the purchaser from the revolutionary forces. This was resolved by application of Fuller CJs opening words, with the unsurprising conclusion that the assignee of the former owner failed in its claim. Subsequent consideration of these and other similar cases by the United States Supreme Court in Ricaud v American Metal Co Ltd 246 US 304 and Banco Nacional de Cuba v Sabbatino 376 US 398 (1964) evidences a shift in their rationalisation. Like Oetjen, Sabbatino concerned competing claims to property (sugar) which had been disposed of in two inconsistent directions as a result of its revolutionary expropriation. The Court cited with approval (p 418) reasoning from Ricaud to the effect that act of state: does not deprive the courts of jurisdiction once acquired over a case. It requires only that, when it is made to appear that the foreign government has acted in a given way on the subject matter of the litigation, the details of such action or the merit of the result cannot be questioned but must be accepted by our courts as a rule for their decision. Discussing the conceptual basis for this rule of decision, the court went on (pp 421 422): We do not believe that this doctrine is compelled either by the inherent nature of sovereign authority, as some of the earlier decisions seem to imply, see Underhill, supra; American Banana, supra; Oetjen, supra, at 303, or by some principle of international law. That international law does not require application of the doctrine is evidenced by the practice of nations. Most of the countries rendering decisions on the subject fail to follow the rule rigidly If international law does not prescribe use of the doctrine, neither does it forbid application of the rule even if it is claimed that the act of state in question violated international law. A footnote to the second sentence recorded that a doctrine in similar terms had been articulated in England in Luther v Sagor and Princess Paley Olga, with which the US Supreme Court compared Anglo Iranian Oil Co v Jaffrate (The Rose Mary) [1953] 1 WLR 246, [1953] Intl L Rep 316 (Aden Sup. Ct) as endorsing an exception to the doctrine if the foreign act violated international law. The Supreme Court cannot have been informed of Upjohn Js disapproval of that general exception in In re Helbert Wagg & Co Ltds Claim [1956] 1 Ch 323, 346 349. The footnote went on to observe that Civil law countries, however, which apply the rule make exceptions for acts contrary to their sense of public order. The Court explained its own view of act of state as follows (p 423): The act of state doctrine does, however, have constitutional underpinnings. It arises out of the basic relationships between branches of government in a system of separation of powers. It concerns the competency of dissimilar institutions to make and implement particular kinds of decisions in the area of international relations. The doctrine as formulated in past decisions expresses the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder rather than further this countrys pursuit of goals both for itself and for the community of nations as a whole in the international sphere. Subsequent to Sabbatino, Congress passed the Hickenlooper amendment, providing that no United States court should in future decline, on the ground of the act of state doctrine, to give effect to the principles of international law, including the principles of compensation, except in any case where the President determined application of that doctrine to be required by the foreign policy interests of the United States. At least at this point, therefore, United States law departed significantly from any principle in English common law. Still more recently, the Supreme Court in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn, International (1990) 493 US 400 endorsed the basis of the doctrine explained in Sabbatino (p 404), underlining that it is not some vague doctrine of abstention but a principle of decision binding on federal and state courts alike. It endorsed the statement in Ricaud that the act within its own boundaries of one sovereign state becomes a rule of decision for the courts of this country (p 406). However, it went on: Act of state issues only arise when a court must decide that is, when the outcome of the case turns upon the effect of official action by a foreign sovereign. The issues in Kirkpatrick were held not to turn upon the effect of official action by a foreign sovereign (p 406). An unsuccessful under bidder sued the successful bidder for a Nigerian construction contract under United States anti racketeering statutes, on the basis that the contract had been won by bribing officials of the Nigerian Government. Although it was clear that the bribery would have been illegal under Nigerian law, the court held that Regardless of what the courts factual findings may suggest as to the legality of the Nigerian contract, its legality is simply not a question to be decided in the present suit, and there is thus no occasion to apply the rule of decision that the act of state doctrine requires. The Supreme Court also addressed instructively the relationship between the considerations underlying the doctrine of foreign act of state and its application: Petitioners insist, however, that the policies underlying our act of state cases international comity, respect for the sovereignty of foreign nations on their own territory, and the avoidance of embarrassment to the Executive Branch in its conduct of foreign relations are implicated in the present case because, as the District Court found, a determination that Nigerian officials demanded and accepted a bribe would impugn or question the nobility of a foreign nations motivations, and would result in embarrassment to the sovereign or constitute interference in the conduct of foreign policy of the United States. These urgings are deceptively similar to what we said in Sabbatino, where we observed that sometimes, even though the validity of the act of a foreign sovereign within its own territory is called into question, the policies underlying the act of state doctrine may not justify its application. We suggested that a sort of balancing approach could be applied the balance shifting against application of the doctrine, for example, if the government that committed the challenged act of state is no longer in existence. 376 US, at 428. But what is appropriate in order to avoid unquestioning judicial acceptance of the acts of foreign sovereigns is not similarly appropriate for the quite opposite purpose of expanding judicial incapacities where such acts are not directly (or even indirectly) involved. It is one thing to suggest, as we have, that the policies underlying the act of state doctrine should be considered in deciding whether, despite the doctrines technical availability, it should nonetheless not be invoked; it is something quite different to suggest that those underlying policies are a doctrine unto themselves, justifying expansion of the act of state doctrine (or, as the United States puts it, unspecified related principles of abstention) into new and uncharted fields. This passage bears out an earlier observation by Lord Wilberforce in Buttes Gas (p 934C) that United States courts have moved towards a flexible use of the doctrine [of act of state] on a case to case basis: see para 57 below. (iii) Buttes Gas v Hammer The reasoning and nuances of United States law have not been constant and are not necessarily transposable to English law. This was also expressly recognised by Lord Wilberforce in Buttes Gas at p 936F G. However, he drew support from reasoning in the United States case law for his conclusion that there was room for a principle, in suitable cases, of judicial restraint or abstention: p 934C, and see pp 936H 937A. After noting the statement in Sabbatino that international law does not require application of the doctrine of act of state, he went on (p 934): Granted this, and granted also, as the respondents argue, that United States courts have moved towards a flexible use of the doctrine on a case to case basis, there is room for a principle, in suitable cases, of judicial restraint or abstention. Lord Wilberforce then examined where this approach had led the United States courts in litigation on the very same situation as that before the House. He quoted in extenso from a letter written by the Legal Adviser to the US Department of State, discounting any suggestion that issues relating to disputed territorial jurisdiction should be analysed by reference to the so called Act of State doctrine which is traditionally limited to governmental action within the territory of the respective state, and arguing that judicial self restraint rather follows from the general notion that national courts should not assume the functions of arbiters of territorial conflicts between third powers even in the context of a dispute between private parties (p 936B C). In essence, this was the argument that Lord Wilberforce accepted. He summarised the approach he took in relation to the United States case law as follows (pp 936F 937A): The constitutional position and the relationship between the executive and the judiciary in the United States is neither identical with our own nor in itself constant. Moreover, the passages which I have cited lay emphasis upon the foreign relations aspect of the matter which appeared important to the United States at the time. These matters I have no wish to overlook or minimise. I appreciate also Mr Littmans argument that no indication has been given that Her Majestys Government would be embarrassed by the court entering upon these issues. But, the ultimate question what issues are capable, and what are incapable, of judicial determination must be answered in closely similar terms in whatever country they arise, depending, as they must, upon an appreciation of the nature and limits of the judicial function. This has clearly received the consideration of the United States courts. When the judicial approach to an identical problem between the same parties has been spelt out with such articulation in a country, one not only so closely akin to ours in legal approach, the fabric of whose legal doctrine in this area is so closely interwoven with ours, but that to which all the parties before us belong, spelt out moreover in convincing language and reasoning, we should be unwise not to take the benefit of it. This led on pp 937 938 to Lord Wilberforces summary of the complex inter state issues and to his conclusion, based on a principle of judicial abstention and non justiciability, set out in para 42 above. Lord Wilberforces treatment earlier in his speech of foreign act of state in the more limited senses of the first and second types is instructive. Speaking of the category of cases exemplified by Carr v Fracis Times & Co, Luther v Sagor and Princess Paley Olga, he described them (p 931A B) as: cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation often, but not invariably, arising in cases of confiscation of property. He said that Mr Littman (counsel for Dr Hammer and Occidental) had given the House a valuable analysis of such cases , suggesting that these are cases within the area of the conflict of laws, concerned essentially with the choice of the proper law to be applied. Without more, Lord Wilberforce then simply identified two suggested limitations, one that foreign legislation can be called in question where it is seen to be contrary to international law or to public policy, the other that foreign legislation is only recognised territorially ie within the limits of the authority of the state concerned. He dismissed their relevance not by questioning the existence of the suggested limitations, but on the contrary on the basis, as to the first, that It is one thing to assert that effect will not be given, to a foreign municipal law or executive act if it is contrary to public policy, or to international law (cf In re Helbert Wagg & Co Ltds Claim [1956] Ch 323) and quite another to claim that the courts may examine the validity, under international law, or some doctrine of public policy, of an act or acts operating in the area of transactions between states. and, as to the second, that The second argument seems to me to be no more valid. To attack the decree of 1969/70 extending Sharjahs territorial waters, ie its territory, upon the ground that the decree is extra territorial seems to me to be circular or at least question begging. There is here, in the reference to an executive act, a possible passing reference, though no more, to the second type of foreign act of state. Lord Wilberforce did not regard this as covering the circumstances before him, because he went on to make clear that he did not regard the case against justiciability of the instant dispute as validated by the rule [ie the rule governing the second type of foreign act of state] itself and that any conclusion in favour of non justiciability would have to be upon some wider principle: p 931F. A further reference to the first and/or second types of foreign act of state appears in Lord Wilberforces reference at p 934B to Sabbatino as a case of act of state in the normal meaning, viz, action taken by a foreign sovereign state within its own territory. In Sabbatino, the United States courts had declined to determine whether the Cuban expropriation decree complied with the requirements of Cuban law: 376 US 398 (1964); 416 FN 17. What is clear, therefore, is that Lord Wilberforces reliance on reasoning in the United States authorities of Underhill v Hernandez, Oetjen and Sabbatino as well as on the judgments delivered in the United States in parallel litigation between Buttes Gas and Occidental led on his analysis not to an expanded principle of the second type I have identified; rather, it led to a principle of self restraint or abstention in suitable cases (p 934C), which he described as inherent in the very nature of the judicial process and which constitutes the third type of foreign act of state. Similarly, Lord Wilberforce treated the older English cases of Blad v Bamfield (1674) 3 Swans 603 607 (App) 607 and Duke of Brunswick v King of Hanover (1844) 6 Beav 1; (1848) 2 HL Cas 1 as precursors of these United States cases. Indeed, he referred (p 933C D) to Underhill v Hernandez (933C D) as following the Duke of Brunswicks case, which, although not mentioned expressly by Fuller CJ, had been referred to in the Circuit Court of Appeals and certainly finds echoes in Fuller CJs language in Underhill v Hernandez. Blad v Bamfield is sometimes treated, on the basis of the report of the first hearing of the case (p 603), as a claim by English traders, Bamfield and others, against Peter Blad, a Dane, for wrongful seizure of their goods in Iceland for allegedly fishing contrary to letters patent granted to the defendant by the King of Denmark, as ruler of Iceland. Blad sought an injunction to restrain the proceedings. Bamfield and others claim was seen by the Privy Council at that point as a question of private injury which would depend upon Danish law, for whatever was law in Denmark, would be law in England in this case but if the wrong were done without colour of authority, it was fit to be questioned (p 604). On that basis, the claim was at Lord Nottingham LCs instance allowed to proceed, and the case stood over. However, a different picture emerges from the report of the second hearing before Lord Nottingham a year later in chancery. It then became clear, first, that the claim relates to a trespass done upon the high sea (p 605), and second that the very manner of the defence [to the injunction] offered by [Bamfield and others] had made it directly a case of state; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public; for every misinterpretation of an article may be the unhappy occasion of a war; and if it had been known at Board that this would have been the main part of their case, doubtless the Council would not have suffered it to depend in Westminster Hall. On that basis, Lord Nottingham decreed a permanent stay since it would be monstrous and absurd to send it to a trial at law, where either the court must pretend to judge of the validity of the kings letters patent in Denmark, or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd. The House in Buttes Gas understandably saw this reasoning as an early precursor of a concept of non justiciability. The actual decision can also be seen as an example of the second category of case identified in Shergill v Khaira [2015] AC 359, paras 41 42, in so far as Bamfield was attempting to derive private rights from an unincorporated treaty (see para 43(ii) above), and perhaps also as an example of the second type of act of state, if and so far as Bamfield was attempting to challenge the validity of the kings letters patent in Denmark, granted in favour of Blad for the sole trade of Iceland. In Duke of Brunswick, the King of Hanover was sued for sovereign acts in respect of which it is clear that he had sovereign immunity (once the submission was rejected that he was acting in his private capacity as an English subject). But, drawing directly on words used by Lord Cottenham LC, Lord Wilberforce saw the case also as recognising a general principle of restraint or immunity ratione materiae, to the effect that the courts in England will not adjudicate or sit in judgment upon acts done abroad by virtue of sovereign authority (p 932E F). At p 932F G, he identified this point in Lord Cottenhams further words: It is true, the bill states that the instrument was contrary to the laws of Hanover and Brunswick, but, notwithstanding that it is so stated, still if it is a sovereign act, then, whether it be according to law or not according to law, we cannot inquire into it. Lord Wilberforce thus derived from his examination of the Duke of Brunswicks case support, no doubt by reference to the issue in dispute, for a principle of non justiciability by the English courts of a certain class of sovereign acts (p 933C). Lord Wilberforce viewed the relevant acts in that case as having been performed within the territory of the sovereign concerned (p 933B). But he did not suggest that this limited the principle of self restraint, and the decision in Buttes Gas itself indicates that there can be no such absolute limitation. Lord Wilberforces view as to where the acts were committed is in fact questionable. The plea was that the King of Hanover had, after succeeding HM William IV in 1837, taken possession of the Dukes personal property in Brunswick and elsewhere (p 5). Further, the instrument directly challenged by the claim, under which the King of Hanover claimed to be the lawful guardian of the Dukes personal property, was signed by HM William IV at St Jamess on 6 February 1833 and by the claimants brother in Brunswick on 14 March 1833. The Lord Chancellor also observed (pp 19 21) that the challenge to that instrument was itself a challenge to acts of persons claiming to have the right so to act by virtue of their sovereign authority. That referred to authority claimed under a decree of the Germanic Diet of Confederation, which was established by the Treaty of Vienna 1815 and sat in Frankfurt under Austrian presidency. The Diet had on 2 September 1830 purported to depose the Duke and declare that the throne of Brunswick had passed to his brother. As the Lord Chancellor said, whether the constitution of Germany authorized it or not, is a question we have no power to interfere with, or to inquire into. The case can be seen on this basis as falling, like Buttes Gas itself, into the first category in Shergill v Khaira, ie as non justiciable or requiring judicial abstention. VIII Application of the first and second types of foreign act of state The appellants can gain no assistance from the first type of act of state. That depends upon establishing the legality of what occurred in the relevant foreign state. They do however invoke the second type of foreign act of state, or the generalised doctrine which they submit underlies this and the third type of foreign act of state. Leaving aside for the moment any issue as to whether the second type of act of state or any such generalised doctrine can cover acts against the person or acts committed outside the jurisdiction of the state committing them, it is convenient to deal at the outset with the respondents submission that the respondents are not inviting the English court to adjudicate upon the validity of the conduct of the foreign states allegedly involved, but are only asking the court to find that such conduct occurred as a matter of fact. The respondents rely in this context on the United States authorities of Kirkpatrick and Sharon v Time, Inc 599 F Supp 538, 546 (SDNY 1984). But in my view validity in the Kirkpatrick sense encompasses legality. To that extent, I do not agree with one part of the reasoning of Perram J in The Federal Court of Australia in Habib v Commonwealth of Australia [2010] FCAFC 12; (2010) 265 ALR 50, at para 44. On these appeals the respondents cases on the issues before the Supreme Court depend upon showing illegal conduct by the various States allegedly implicated as well as by the appellants as accomplices. I turn therefore to consider the second type of foreign act of state. This has direct support at Court of Appeal level: para 38 above. But other support for it in English law is noticeably limited, and it is in my opinion unnecessary on this appeal for this Court to reach or endorse a conclusion that it exists in any form at all. Rule 137 of Dicey, Morris and Collins makes no reference to it, but, on the contrary, reads: A governmental act affecting any private proprietary right in any movable or immovable thing will be recognised as valid and effective in England if the act was valid by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise. The qualifications if the act was valid by the law of the country and the final phrase and not otherwise confine the scope of rule 137 to the first type of foreign act of state. They might, by themselves, be read as inconsistent with the existence of any second type of foreign act of state. But rule 3 in Dicey, Morris and Collins is in terms which it is possible to read widely enough to cover the second type of foreign act of state. It reads: English courts have no jurisdiction to entertain an action: (1) For the enforcement, either directly or indirectly, of a penal, revenue or other public law of a foreign state; or (2) founded upon an act of state. The commentary to rule 3 in Dicey, Morris and Collins approves the suggestion made by Lord Keith of Avonholm in Government of India v Taylor [1955] AC 491, 511, that enforcement of claims of the sort identified would amount to an extension of the sovereign power which imposed the taxes or law, or as an assertion of sovereign authority by one state within the territory of another. On that basis, sub rule (2) may be seen inversely as a recognition of the sovereign authority of a foreign state within its own foreign jurisdiction. But a potential problem about such a reading is that it equates sovereignty with executive activity. In states subject to the rule of law, a states sovereignty may be manifest through its legislative, executive or judicial branches acting within their respective spheres. Any excess of executive power will or may be expected to be corrected by the judicial arm. A rule of recognition which treats any executive act by the government of a foreign state as valid, irrespective of its legality under the law of the foreign state (and logically, it would seem, irrespective of whether the seizure was being challenged before the domestic courts of the state in question), could mean ignoring, rather than giving effect to, the way in which a states sovereignty is expressed. The position is different in successful revolutionary or totalitarian situations, where the acts in question will in practice never be challenged. It is probably unsurprising that the cases relied upon as showing the second kind of foreign act of state are typically concerned with revolutionary situations or totalitarian states of this kind. The commentary in Dicey, Morris and Collins goes on to indicate that sub rule (2) covers both Crown act of state and foreign act of state. In relation to Crown act of state, Dicey, Morris and Collins makes clear that it contemplates acts against person as well as property. In relation to foreign act of state, the text is less specific. At para 5 047 Dicey picks up the citation from Underhill v Hernandez quoted in para 49 above and its deployment in Luther v Sagor and in Princess Paley Olga and then focuses on cases of property seizure: Thus the executive seizure of property by a foreign sovereign within its territory will not give rise to an action in tort in England, either on the basis of this general principle, or because the act was lawful by the law of the place where it was committed. Nor can a former owner challenge title to property acquired from a foreign government which had been confiscated within its own territory, again either on the basis of the general principle or on the basis of the rule that the validity of a confiscatory transfer of title depends on the lex situs. In discussing these cases in Foreign Affairs in English Courts (1986) p 179, Dr Francis Mann also says pertinently in my view that it is clear in English law that the doctrine of act of state is limited to action taken by a foreign state within its own territory or, perhaps one should say, in respect of property situate in its territory. (italics added for emphasis) In its judgment in Sabbatino, the United States Supreme Court laid some stress on the fact that it was limiting itself to a property context. It said at p 428: Therefore, rather than laying down or reaffirming an inflexible and all encompassing rule in this case, we decide only that the Judicial Branch will not examine the validity of a taking of property within its own territory by a foreign sovereign government, extant and recognized by this country at the time of suit, in the absence of a treaty or other unambiguous agreement regarding controlling legal principles, even if the complaint alleges that the taking violates customary international law. The Court went on to underline what is special about property when addressing the suggested violation of customary international law at p 433: Another serious consequence of the exception pressed by respondents would be to render uncertain titles in foreign commerce, with the possible consequence of altering the flow of international trade. If the attitude of the United States courts were unclear, one buying expropriated goods would not know if he could safely import them into this country. Even were takings known to be invalid, one would have difficulty determining after goods had changed hands several times whether the particular articles in question were the product of an ineffective state act. As I have already observed, the United States authorities of Hatch v Baez and Underhill v Hernandez, which might on their facts be taken to be authorities extending the second type of foreign act of state to acts affecting persons as well as property, were both cases which could and would now be seen as involving a straightforward defence of state immunity. Looking elsewhere abroad for assistance on this aspect, German law treats foreign confiscatory acts of state as falling outside normal conflicts principles and subject to special rules. Based on the territorial principle (Territorialittsprinzip) such foreign confiscatory acts fall to be recognised, so long as the confiscated property was at the time of its confiscation within the jurisdiction of the confiscating state. This is subject only to considerations of ordre public, according to which the Rechtsnorm (legal norm or rule) of another state will not be applied, if it leads to a result inconsistent with fundamental principles of international law, as opposed to purely domestic constitutional provisions, regarding confiscation. The following two cases illustrate the position. First, in a judgment with wide significance delivered on 23 April 1991, the principles stated in the previous paragraph were held by the German Federal Constitutional Court (Bundesverfassungsgericht or BVerfG) to be consistent with fundamental principles of the German Federal Constitution (Grundgesetz). The issue was the constitutionality of provisions in the Agreement dated 15 June 1990 and Treaty of 31 August 1990 (incorporating such Agreement) between the Federal Republic and the German Democratic Republic (DDR) providing for the reunification of Germany. These provided that confiscations of property effected in the years 1945 to 1949 (the period of Russian occupation before the founding of the DDR) by virtue of the law governing such occupation or act of state were not to be reversed. The Constitutional Court at paras 132 133 explained the principles of what it described as German international confiscation law in the terms identified in para 67 above. It made clear that these principles applied, even if such a confiscation would (for lack of compensation or any other reason) be illegitimate in a domestic context. It regarded the Territorialittsprinzip governing international confiscatory measures as internationally recognised, and, on this basis, it accepted that the confiscatory measures effected in the DDR without compensation both in the immediate post war period by Russian occupying forces and later during the years 1945 1949 with a view to the establishment of a new socialist order were constitutional in terms of the Federal German Constitution. Second, in an impressively reasoned judgment of 7 January 2005 (1 W 78/04), the Hanseatisches Oberlandesgericht Hamburg elaborated the conceptual basis of the same principles. The claim was by a Zimbabwean farmer, whose harvest had allegedly been illegally expropriated by state officials. He claimed elements of that harvest which he alleged had, as a result of a chain of sales, arrived in Hamburg harbour. The Hamburg Court of Appeal rejected the claim, holding inter alia, in translation (para 7): In the context of worldwide trade, goods arrive daily in Germany from across the whole world for the purpose of further processing, onward sale or end use. Not a few come from states, which do not provide the legal protection which is among the fundamental principles of German law. It is demanding too much of the domestic jurisdiction to give it the task, in the case of a foreign act of state taking place abroad, of offering the legal protection which the foreign state is not ready to provide its own citizens, simply because a chain of sales leads through Germany. Conduct contrary to international law falls to be addressed in other ways, such as through political influence, through the conclusion of treaties between individual states and through the development of the protective legal system of international tribunals. I note in parenthesis that the Hamburg Court recognised that, in certain situations, this principle might have to give way to considerations of ordre public, if the application of the foreign norm led to a result which was inconsistent with fundamental principles of German law (para 6). But it made clear that, for this to be the case, the subject matter would have to involve a substantial German connection, which did not exist in a case of Zimbabwean expropriation. While the principle applied in this case parallels the second type of foreign act of state in a property context, there does not appear to be any authority accepting a similar principle of foreign act of state in German law outside a property context. Two authorities suggest that it is no bar to a claim against the German Federal Republic that it involves determining the lawfulness under international law of the conduct of a third state or an international organisation outside the jurisdiction of any such third state: see the judgments in the Vavarin Bridge case, of the Oberlandesgericht Kln: Az 7 U 8/04, (28.07.2005) paras 73 to 74 (decided on different grounds on appeal to the Bundesgerichtshof (the BGH or German Supreme Court): III ZR 190/05) and in separate proceedings before the BVerfG (the Federal Constitutional Court): 2 BvR 2660/06; 2 BvR 487/07; and the judgment in the Kunduz Road Tankers case of the Oberlandesgericht Kln: Az 7 U 4/14 (30.04.2015). Both the Vavarin Bridge and the Kunduz Road Tankers cases were however concerned with activities of the German armed forces outside Germany (in respectively Kosovo and Afghanistan). So they fall outside the scope of the second type of foreign act of state, as I have defined this, and are better read as authority indicating that a need to adjudicate upon the conduct of a foreign state was not seen in the German courts as a basis for any abstention on the lines of the third type of foreign act of state. For completeness, both cases are also of interest as indicating the existence under German law of a doctrine along the lines of Crown act of state. Thus in the Vavarin Bridge case, the BVerfG acknowledged that certain foreign and defence policy decisions were non justiciable under German law, but confined these within narrow limits by reference to the high complexity or particular dynamics of the relevant material and the difficulty of implementing any decision with regard to it under domestic law: section IV, para 3(aa); and in the Kunduz Road Tankers case the German Supreme Court, overruling the Oberlandesgericht, has recently held, firstly, that an individual foreign victim has no international law right to pursue in a domestic court a claim for alleged violation of international humanitarian law (the law of armed conflict) by the state of that domestic court rather, any remedy in international law lay through invoking the protection of his own state and, secondly, that such a victim also has no claim under German domestic law; in the latter connection, the BGH said that the responsibility of state officers under para 839 of the Brgerliches Gesetzbuch (the BGB or German civil code) for intentionally or negligently causing harm to third parties could not be extended to injuries caused by the armed intervention of German forces since this was essentially an international law matter and any such extension would impact on the area of German foreign policy: II ZR 140/15 (06.10.2016). Lord Sumption refers briefly in para 201 of his judgment to dicta in French and Dutch authority as suggesting a principle very similar to his view of the English act of state doctrine. It is, however, necessary to put such authority in context. All but one of the French cases cited by Lord Sumption were property cases falling within the first or second type of foreign act of state (and the one possible exception, considered in para 72(vi) below, is inconsistent with established United Kingdom case law). Thus: (i) In Socit Cementos Rezola v Larrasquitu et tat espanol (Cour dappel de Poitiers) [1938] Sirey Rec Gen iii, 68, the issue before the French courts was whether to recognise the requisitioning by the Republican Government of Spain of a vessel registered in Spain but evidently outside the Spanish jurisdiction at the time of her requisition. In accordance with the Spanish decree ordering the requisition, notice had been placed in the vessels register by the Spanish consul at Bordeaux. The French Court of Appeal accepted the requisition as effective, thereby, in effect, applying a rule whereby the transfer of merchant vessels depends not on their physical situs, but on the legal position under the law of their registry: compare Dicey, Morris & Collins, The Conflict of Laws (15th ed) para 22E 057 for a discussion of the common law position. It is worth noting that the Poitiers Court of Appeal referred to the requisitioning as an exercise of full sovereignty by the Spanish state qui na port aucune atteinte lordre public de ltat franais. The inference is that there could be some circumstances in which a foreign act of state of this nature might be refused recognition, as being contrary to the public policy of the forum state. (ii) This inference is supported by a decision of the Cour de cassation, Companie Algrienne de Transit et dAffrtement Serres et Pilaire (la SATA) v Socit Nationale des Transport Routiers (la SNTR) (10 mars 1979 (No de pourvoi: 77 13943), in which the Chambre commerciale refused to recognise un acte de puissance public of the State of Algeria, transferring the property of SATA to SNTR, because it constituted expropriation by a foreign state without payment of appropriate compensation (une dpossession opre par un tat tranger sans quune indemnit quitable ait t pralablement verse). (For a sharp critique of this decision, advocating an approach to property cases similar in fact to the German, see a note by Paul Lagarde in Revue critique de droit international priv 1981, pp 527 525.) (iii) Martin v Bank of Spain [1952] ILR 202 involved a refusal by the Bank of Spain as agent of the Spanish state to issue in Spain new notes in exchange for old notes which were no longer legal tender. In holding that the acts in question were, even apart from the principle of immunity, public acts which are not subject to judicial control in France, the Cour de cassation was doing no more, at most, than recognise the second type of act of state, that is the right of a state to deal with property within its own jurisdiction. (iv) Similarly, in poux Reynolds v Ministre des Affaires trangres (1965) 47 ILR 53, the Tribunal de Grande Instance de la Seine was being asked by a buildings former owners to adjudicate upon the validity of a confiscation of property by the Hungarian State, and its subsequent assignment to the French Legation in Hungary said to have taken place under an international agreement. Again, the confiscation falls directly within the second type of act of state. The court also said that the French courts were not competent to interpret the provisions of the international agreement (which it was said did not cover the assignment to the French Legation), but, in the light of the confiscation, the claimants can have had no sustainable rights in any event. (v) Bank Indonesia v Senembah Maatschappij and Twentsche Bank (1959) 30 ILR 28 is another case regarding seizure by the Indonesian State in Indonesia of property which was then, apparently, put into the hand of Bank Indonesia acting in a private law capacity, not as a state organ. It was therefore within the second type of act of state. The case is also of particular interest for the Court of Appeal of Amsterdams statement that the Act of State doctrine relied on by the Bank Indonesia was not a generally accepted rule of international law, and did not apply when the relevant measures were in conflict with international law. On that basis, although the court said that as a rule, a court will not, and should not, sit in judgment on the lawfulness of acts jure imperii performed by, or on behalf of, a foreign Government, this rule must be subject to an exception when the acts in question can be deemed to be in flagrant conflict with international law. This, the Court went on to hold, they were, because they were unmistakably discriminatory and also because they were being used as a means to exert pressure in a political dispute over Netherlands New Guinea. (vi) The Cour de cassation concluded in the case of Ramirez Sanchez Illich, alias Carlos (ECLI:FR:CCASS: 1995:CR06093) that Carloss arrest in Khartoum by Sudan authorities with a view to his return to France for trial constituted an act of sovereignty and that domestic jurisdictions were incompetent to adjudicate upon the conditions under which such authorities had effected such arrest and handed Carlos over to French police in Khartoum to be transported back to France for trial without any arrest warrant or legal procedures. French civil law and common law therefore diverge in this area: see para 73(v) below. Thus it can be said that, even in relation to property, the general picture is that French and Netherlands case law is not unqualified in accepting the validity of foreign acts of state. That the second type of foreign act of state is, assuming that it exists, subject to significant limitations under English law has become increasingly clear over recent years. The Court of Appeal was on any view correct in Yukos v Rosneft to identify the importance of these limitations. Thus: (i) The second type of foreign act of state is, by definition, limited to sovereign or jure imperii acts, excluding in other words commercial or other private acts. (ii) It has been held inapplicable to judicial acts, even though such acts can engage the states responsibility in human rights or international law: Yukos v Rosneft, paras 73 91, citing Altimo (above). In Altimo, the Privy Council held (para 101) that: The true position is that there is no rule that the English court (or Manx court) will not examine the question whether the foreign court or the foreign court system is corrupt or lacking in independence. The rule is that considerations of international comity will militate against any such finding in the absence of cogent evidence. On that basis, the Court of Appeal in Yukos v Rosneft held justiciable the issue whether judicial acts had been part of a campaign waged by the Russian state for political reasons against the Yukos group and its former CEO (para 29), where it was alleged that the courts were in a position of systematic dependency on the dictates or interference of the domestic government (para 90). Another possible explanation of these cases is, however, that they do not illustrate an exception from the second type of foreign act of state, but reflect the public policy exception to the recognition of foreign judicial acts which exists as a matter of conflicts of law in respect of the first type of foreign act of state: see para 37 above. In an English (or English law based) court, it is not surprising if public policy has a fairly expansive role in relation to foreign judicial acts. If one believes in justice, it is on the basis that all courts will or should subscribe to and exhibit similar standards of independence, objectivity and due process to those with which English courts identify. Given the evidence, a domestic court should be able to detect, and it would be surprising if it were obliged to overlook, accept or endorse, any significant shortfall in this respect. (iii) The English courts are entitled to determine whether a foreign law is legal, for example under the local constitution; the foreign law will not be regarded as an act of state which cannot be challenged: Buck v Attorney General [1965] Ch 745, 770; Al Jedda v Secretary of State for Defence [2010] EWCA Civ 758, [2011] QB 773, para 74, per Arden LJ and para 189 per Lord Dyson MR; and see McLachlan, Foreign Relations Law, para 12 129; Dicey, Morris and Collins para 5 048. (iv) Acts of officials granting or registering intellectual property rights have been held to be outside any doctrine of foreign act of state: Lucasfilm Ltd v Ainsworth [2011] UKSC 39; [2012] 1 AC 208. (v) In a criminal law context, English courts have had no hesitation (a) about investigating and adjudicating upon the wrongful detention and rendition of individuals by foreign states in conjunction with United Kingdom authorities, in breach of a foreign law. In R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42, the House held that kidnapping and abduction from South Africa of a person wanted for trial in England in violations of international law and of the laws of another state [ie South Africa] required recognition by the court in order to uphold the rule of law, with the result that the trial was stayed: see eg pages 62G, 67G and 73G. In R v Mullen [2000] QB 520, the Court of Appeal Criminal Division followed Ex p Bennett, setting aside the conviction of Mr Mullen, who had been deported from Zimbabwe to the United Kingdom as a result of a plan concocted between the United Kingdom and Zimbabwean authorities which involved breaching Zimbabwean extradition law. The Australian High Court decision in Moti v The Queen [2011] HCA 50, 245 CLR 456, discussed in para 82 below, has adopted the same approach after expressly considering and rejecting a Crown submission that foreign act of state precluded its adoption. (b) Lord Sumption suggests (para 246) that Mullen, Bennett and Moti can all be explained on the basis that any unlawfulness in the conduct of the foreign officials was incidental, that the unlawfulness of the Australian officials conduct was enough to justify staying the proceedings against Mr Moti and that the unlawfulness of the acts of their foreign collaborators was irrelevant. This in my opinion misreads all three cases; it inverts their significance. It was an essential step in the reasoning of each that the foreign officials (the primary actors in the illegal deportation in each case) had acted illegally. Far from being incidental or irrelevant, the foreign officials illegal conduct was in each case the key to the scheme of deportation. Without it, there would have been no illegal deportation at all. If the second type of foreign act of state had any application to personal wrongs of this nature, investigation and condemnation of the British authorities conduct should have been precluded on the grounds that the direct actors in the illegality were foreign state officials, acting within their own territory, whose conduct was immune from investigation or criticism. In neither of the first two cases did anyone conceive of such an argument, and in the third, where it was raised, it was categorically, and rightly, dismissed. In so far as the present appeals relate to alleged complicity by British officials in illegal conduct by foreign officials within their own foreign jurisdictions, they present exact parallels in a civil context to these three deportation cases in a criminal context. It is no answer to this that, on a hypothesis contrary to the actual facts, the British or Australian authorities in these cases might (possibly) have been able to kidnap the wanted individuals from the foreign jurisdictions by themselves without the relevant local authorities involvement. The doctrine of foreign act of state must depend on the actual facts, not on inapplicable counter factuals. Indeed, if counter factuals of this nature were relevant at all, they could presumably also be advanced in the current cases of Belhaj and Rahmatullah. All this suggests caution in todays world about recognising the application of the second type of foreign act of state in areas where it has hitherto had no discernible domestic role. The recognition by the Court of Appeal in (in particular) Princess Paley Olga of the second type of foreign act of state was not challenged on the present appeal, and I am, as I have said, content for present purposes to proceed on that basis, because of the special characteristics of property, and the special considerations applying to it, in particular the need for security of title and of international trade. Similar characteristics and considerations do not apply to individuals who have been the victim of personal torts, and who can found jurisdiction against a relevant non state actor outside the territory of any foreign state also implicated in the tortious acts. Recognising title to property is different from refusing to inquire into the justification for the infliction of personal injury. The second type of foreign act of state can and should, in my view, be limited as a matter of principle to sovereign acts seizing or affecting (i) property which is (ii) within the jurisdiction of the state in question at the time when the act takes effect. It is for the common law to define to what extent, if at all, it is prepared to refrain from adjudicating upon an issue involving a foreign states conduct, when the foreign state is not impleaded and the actual defendant has him or itself no immunity. I see no reason in this context to go any further than I have indicated by giving the doctrine any wider effect. In the United States, as I have noted, Hatch v Baez was and Underhill v Hernandez could have been, and would today certainly be, resolved by reference to state immunity. Whether, even in the United States, the reasoning in Underhill v Hernandez should be limited to contexts where a plea of state immunity would also be possible, or, as may even be (see paras 49 and 50 above), to situations of detention by the military in times of war, is unnecessary for decision here. On any view, movable property presents special considerations because of its marketability, as all the decided cases on movables (Oetjen, Luther v Sagor, Princess Paley Olga and Sabbatino) illustrate. Personal injury or detention does not present these considerations. Crown act of state also presents different considerations, since the Crown cannot claim state immunity in its own courts. In contrast, any proceedings against a foreign state or its officials in the English courts will be barred by state immunity. It is only in particular situations, like the present, that foreign act of state of the second type could conceivably be relevant. I see no reason to extend the doctrine (assuming the second type to exist at all) to cover such situations. On the contrary, to do so would, once again, be on the face of it to render the appellants immune from suit both in their own jurisdiction and anywhere else, while leaving the foreign states at least vulnerable to suit in their own jurisdictions. The appellants submit in response to this last point that foreign act of state would cease to be an objection to English proceedings against the appellants as secondary parties, if and when the respondents had successfully established the relevant facts and the liability of each of the relevant foreign states by proceedings in those states domestic courts. It is true that General Assembly Resolution 56/83 on Responsibility of States for internationally wrongful acts deals in turn with a state which breaches an international obligation (articles 12 15), before dealing with the responsibility of a state in connection with the act of another state. In the latter connection, it addresses situations of aid or assistance (article 16), direction and control (article 17) and coercion (article 18). A rgime which insisted on the actual actor being sued first would attach jurisdictional significance to a factor which would not normally have this significance and which might distort the natural course of events: a state aiding or assisting, and certainly a state procuring, directing, controlling or coercing, might be the more culpable party and natural target than the actual actor. There could also be two main actors, or it could be uncertain which state was a main actor and which a secondary participant; eg in the present case, take for example the alleged wrongful rendition from Malaysia by collaboration between Malaysian and United States authorities. So it could be uncertain which should be sued first. It would on any view be optimistic to view the proposed course as a light task. It would make recourse against the appellants dependent upon the operation, in the present case, of up to four separate foreign court systems. In their joint intervention before the Supreme Court, the International Commission of Jurists, JUSTICE, Amnesty International and Redress (the NGO Interveners) make the point that No rendition to torture case against US officials has, to the knowledge of the NGO Interveners, ever succeeded in a US court since September 11. Such actions are commonly blocked by various other US doctrines to which the appellants refer in their written case, in particular the political questions doctrine and the state secrets doctrine. As Professor Jonathan Hafetz has observed [in Recapitualising Federal Courts in the War on Terror, St Louis University Law Journal, Vol 56, 2012, p 21]: Federal courts have repeatedly dismissed actions by noncitizens against US officials seeking damages for arbitrary detention, torture, and other mistreatments. The dismissals, which rest on various grounds, including the state secrets privilege, Bivens special factors, and qualified immunity, typically cite the twin concerns of separation of powers and limited judicial capacity as reasons for denying litigants a federal forum. The decisions portray federal courts as unable to provide remedies for even the most egregious rights violations In the upshot, therefore, in relation to the second type of foreign act of state, I consider that Leggatt J was correct in paras 115 and 177 of his judgment in Rahmatullah to treat the traditional foreign act of state doctrine, by which I understand he meant to cover the first and second types of foreign act of state, as limited to acts done within the foreign states jurisdiction as well as subject to a potential public policy exception. But Leggatt J was, in my view, on less certain ground in so far as he held that the second type of act of state could not apply to acts of the United States in Iraq and Afghanistan, because these were not acts done within US territory where the laws of the United States applied. He did not address, and may not have been asked to address, the basis on which the United States was present in those countries. In the case of Iraq, it was, together with the United Kingdom, an occupying power acting pursuant to Security Council Resolution 1483 (2003) dated 22 May 2003. As such, it had the duty under article 43 of the Geneva Convention IV dated 18 October 1907 to respect unless absolutely prevented, the laws in force in the country. Nonetheless, it was the relevant state power, and it is certainly arguable that, within the ambit of the second type of foreign act of state, its acts should be recognised. As to Afghanistan, the United States was present there by consent of the Afghan Transitional Authority as part of the International Security Assistance Force: see Security Council Resolution 1510 (2003) dated 13 October 2003. No doubt, it had considerable powers, but it appears much less possible to argue that its acts in that capacity should be regarded as within the ambit of the second type of foreign act of state. Whatever answer is given to these points, however, I would reach the same conclusion as Leggatt J with regard to the second type of act of state, on the basis that (assuming it to exist at all) it is and should be confined to acts affecting property. The second type of foreign act of state therefore has no application in Rahmatullah. Similar reasoning applies in Belhaj, with regard to any reliance on the second type of foreign act of state. The claims are all for physical detention or rendition or mistreatment and so, I would hold, outside the second type. Those for mistreatment by the United States officials in Thailand and (if such mistreatment be alleged there, which is unclear) Libya also relate to conduct on any view outside United States jurisdiction. In contrast, those for mistreatment on a United States airplane in transit between Thailand and Libya, at least while over areas like the high seas not under the sovereignty of any state, can and should be probably regarded as occurring within United States jurisdiction, assuming the aircraft to have been registered there: see Dicey, Morris and Collins, rule 129 exception 2 and compare also the (Chicago) Convention on International Civil Aviation, article 17. The Court of Appeal in Belhaj dealt with the issues before it on a different basis, by recognising a public policy exception unrestricted by any need for the facts relied upon to be indisputable or undisputed. Had I regarded the second type of foreign act of state as applicable to personal wrongs, I would have concluded that the Court of Appeal was right in Belhaj to recognise such an exception or, as I would prefer to see it, qualification. Lord Wilberforce in Buttes Gas recognised in general terms that public policy could constitute a valid basis for refusal to recognise a foreign act of state of either the first or second type: see the quotation from his speech cited in para 59 above. The appellants submit that to recognise such an exception or qualification, when its application would involve investigating disputed facts, goes beyond anything contemplated or decided in the Kuwait Airways case. I do not accept that submission. In Kuwait Airways, Iraqi Airways was raising a conventional defence by relying on the Iraqi law by which the Kuwait Airways fleet, then in Iraq, was transferred to it. To take itself outside the scope of the first type of foreign act of state, Kuwait Airways had in response to invoke the public policy exception, by relying on matters happening at an international level and involving hostilities between states and the reactions and resolutions of the Security Council. That response raised immediate problems of justiciability, which could however be overcome by pointing to the clarity, indisputability and seriousness of the violations of the United Nations Charter and Security Council Resolutions. Unless a claim for detention or mistreatment by United Kingdom officers in conjunction with foreign state authorities can be regarded as non justiciable within the third type of foreign act of state, no such considerations arise. Were it (contrary to my view) necessary to identify the scope of such a qualification, it would at least be as extensive as that discussed later in this judgment in the context of non justiciability or judicial abstention. The Court of Appeal in Belhaj found (in paras 96 102) assistance and support for its conclusion in the Federal Court of Australia decision in Habib v Commonwealth [2010] FCACA 12; (2010) 265 ALR 50. It saw this, rightly in my view, as based on two distinct lines of reasoning. One, not directly relevant here, was the Australian constitutional position, which was viewed as requiring a remedy. The other was a more general conclusion regarding the scope of the second type of foreign act of state. The Federal Court treated this type as potentially applicable to claims relating to person as well as property. The claim was that Australian officials had aided, abetted and counselled torture of an Australian citizen by foreign officials while he was detained in Pakistan, Egypt and Afghanistan and in Guantanamo Bay. Contrary to the appellants case, the relevant facts were neither clear nor accepted: see eg paras 58 67 per Perram J and para 110 per Jagot J. Black CJ saw public policy as an answer to any defence of act of state in relation to the claim (paras 7 and 13). Perram J saw the defence of foreign act of state being advanced as a rule of validity (not a rule of abstention or deference), and therefore as one on which a human rights exception might be hung: see paras 43 and 45. Jagot J accepted that there was a public policy exception, and explicitly rejected any distinction between known and alleged violations, as without support in the authorities or in principle. She added that there were legal parameters in international and Australian law enabling judicial determination of the claims and meaning that this was no judicial no mans land: paras 107 110. The case is also of particular interest, because the claim was, as it is in the issues now before the Supreme Court, for secondary responsibility arising from alleged aid, abetting or counselling by Commonwealth officials in relation to conduct allegedly committed by foreign officials. The Australian High Court returned to this theme in Moti v The Queen 245 CLR 456 in a context which has resonance in the present appeals. Mr Moti claimed that he had been deported by officials of the Solomon Islands Government from the Solomon Islands to Australia, where he was wanted for trial. The deportation occurred after the High Commissioner had issued a travel document for Mr Moti and visas for the Solomon Islands officials who were to accompany him on the aircraft bound for Australia, knowing that Solomon Islands law was going to be breached by deporting Mr Moti on the same day without giving him a seven day opportunity to challenge deportation. The majority judgment, given by French CJ for six out of the seven members of the High Court, held that there was no general and universally applicable rule that Australian courts may not be required (or do not have or may not exercise jurisdiction) to form a view about the lawfulness of conduct that occurred outside Australia by reference to foreign law (para 50) and that Here, the question of the lawfulness of the appellants removal from Solomon Islands, although effected by the Solomon Islands Government, was a preliminary to the decision whether a stay should be granted. The primary judge was not right to conclude that [i]t is not for this court to express an opinion on these decisions made by the Solomon Islands government. The appellants submit that this decision falls within the Kirkpatrick exception, as a case where all that mattered was the facts about what happened in the Solomon Islands, not whether these facts involved illegality. I reject that analysis, basically for reasons already given in para 73(v)(b) above. It was critical to establish that there was illegality under Solomon Islands law, with which the Australian High Commissioner had at the least gone along. In the present appeals, the issue whether there was illegal conduct by foreign state officials under their own laws is also a preliminary to a decision on whether the appellants arranged, assisted or encouraged or otherwise connived or joined in such conduct, but that is no reason for an English court to refuse to determine it. There remains the question what considerations could as a matter of public policy require the English court to investigate and adjudicate upon an issue if and to the extent that this would otherwise be impermissible on the ground that it constituted a foreign act of state of the second type. In the property context, to which I consider the second type of foreign act of state should be confined, the relevant considerations are likely to be extreme. In Luther v Sagor the Court of Appeal rejected roundly submissions that the confiscatory decree was so immoral and so contrary to the principles of justice recognised in the United Kingdom that no attention should be paid to it. In relation to the second type of foreign act of state, considered in Princess Paley Olga, the arbitrariness of a governmental seizure of property without any legislative footing was even more evident. On the other hand, the Hamburg Court of Appeal case mentioned in para 69 above and the Amsterdam Court of Appeal case of Bank Indonesia v Senembah Maatschappij and Twentsche Bank (1959) 30 ILR 28, mentioned in para 72(v) above, both suggest that, even in relation to property, there may be some public policy limits in terms of arbitrariness and discrimination to the foreign state acts which a domestic court should recognise. On the hypothesis, contrary to my conclusion, that the second type of foreign act of state should be seen as extending to sovereign acts against the person, the case for recognising some public policy limits would seem, if anything, even stronger. However, since I do not consider that the second type of foreign act of state has any application to sovereign conduct against the person within the relevant foreign state, it is unnecessary and I think undesirable on these appeals to attempt to be more specific about the circumstances in which public policy could and should entitle a domestic court to adjudicate upon any such conduct. For these reasons, I do not consider that the issues now before the Supreme Court fall within the second type of foreign act of state, assuming this to exist in any form, or that it should not proceed to trial for that reason. IX Application of third type of foreign act of state In the light of the above, the critical issue becomes the scope of the third type of foreign act of state. On this, the Courts below adopted different approaches. The Court of Appeal in Belhaj, paras 53 55, drawing on the analysis of the Court of Appeal in Yukos v Rosneft (No 2), paras 66 67, approached foreign act of state as an over arching principle of non justiciability, subject to limitations. It saw it as founded on the principle of sovereign equality of states identified in the Duke of Brunswicks case (see para 63 above) and by Fuller CJs statement in Underhill v Hernandez (para 49 above). It coupled this with considerations of comity, with the caveat that this should not be confused with the avoidance of embarrassment (para 66). The Court of Appeal noted correctly (paras 65 66) that both these bases for an over arching principle of non justiciability had been cited, with approval, by Lord Wilberforce in Buttes Gas. It did not accept that this Courts judgment in Shergill v Khaira should be read as suggesting that the third type of act of state is limited to situations of lack of judicial competence arising from the principle of separation of powers (para 67). The critical limitation identified by the Court of Appeal in Belhaj at paras 83 87 and 114 (and in Yukos v Rosneft at para 69) was the public policy limitation identified in Oppenheimer v Cattermole and the Kuwait Airways case. Those were both cases involving the first type of foreign act of state the requirement under ordinary conflicts principles for domestic recognition of foreign legislation affecting movable or immovable property within the foreign jurisdiction: see, in relation to Kuwait Airways, para 80 above. As explained in para 80 above, the third type of foreign act of state only arose for consideration in Kuwait Airways, because the public policy, on which Kuwait Airways relied in response to prevent the recognition of the Iraqi law, concerned inter state hostilities and the Security Councils intervention under Chapter VII of the UN Charter. The clarity and seriousness of the breaches of international law involved enabled the House to conclude that Kuwait Airways response was justiciable. The facts in Belhaj are in dispute. They are neither indisputable nor obvious. On its approach to foreign act of state and to the Kuwait Airways case, the Court of Appeal in Belhaj saw itself as faced with an exception to the foreign act of state doctrine, which had hitherto only been recognised in cases of indisputable and obvious violations of fundamental rights, and which would need to be understood in a wider sense if the claims by Mr Belhaj and Mrs Boudchar were to proceed. It concluded that the limitation was indeed to be understood more widely, drawing on various considerations set out at paras 114 121. They were, in summary, that (i) international law has moved from regulating state to state conduct, to regulating human rights for the benefit of individuals, (ii) the allegations in Belhaj are of particularly grave violations of human rights, (iii) the respondents are either current or former officials of state in the United Kingdom or government departments or agencies, whose conduct would not normally be exempt from an investigation, in which there is a compelling public interest, and who are only suggested to be exempt because of the alleged involvement of other states and their officials, (iv) there is no lack of judicial or manageable standards, (v) unless the English courts exercise jurisdiction, the allegations will never be subject to judicial investigation and (vi) the risk of displeasing allies or offending other states cannot outweigh the need to exercise jurisdiction. Leggatt J in contrast understood the third type of foreign act of state as a principle of non justiciability limited to cases where the issues were genuinely political in one of the two senses mentioned in Shergill v Khaira. I understand by this that he meant that either (i) the court was being asked to adjudicate upon the legality of decisions and acts of sovereign states on the international political stage governed by power politics, or in relation to which there were no manageable or judicial standards, or (ii) the court was being asked to adjudicate in the abstract on international legal issues without there being any domestic foothold in the form of a relevant enforceable legal right requiring this to be done. He held that neither was the case: paras 141 and 163. In my view, Leggatt J was correct in Rahmatullah to approach the claims on the basis that the question is whether the principle of non justiciability constituting the third type of foreign act of state applies at all, rather than whether any exception to it exists or should be grafted onto it. The third type of foreign act of state is a principle of non justiciability or abstention. The Court of Appeal explained the principle as founded on the sovereign equality of states and comity. There is force in the appellants submission that, if this is the basis of the principle and if it is otherwise engaged by the issues or subject matter, then a public policy exception to its application is difficult to rationalise. The graver the alleged violations by foreign state officials, the greater would then be the infringement of the principles of sovereign equality of states and comity if domestic courts were to investigate and adjudicate upon the allegations. For this reason, I prefer to put the focus on the ambit of the third type of foreign act of state. However, I agree with Lord Sumption (para 248) that this difference between us cannot be critical. What matters is how one defines the ambit or any exceptions. It is clear from Buttes Gas that the application of the third type of foreign act of state is fact and issue sensitive; it needs to be considered on a case by case basis in the light of the issues involved. There is, in this context, no reason why the third type of foreign act of state should be limited territorially. Further, in Buttes Gas the House was concerned with a highly unusual situation, and I accept the appellants submission that it does not follow that the principle is limited to analogous situations. In particular, Lord Wilberforces reference to an absence of judicial or manageable standards (para 42 above) was directed very specifically to the circumstances before him. If and when it is the case that there are no judicial or manageable standards by which to determine an issue, then the case will no doubt be non justiciable. But an absence of such standards should not be seen as a generalised or exclusive test. In Shergill v Khaira, the Supreme Court was concerned with a very different factual situation to the present and it did not have the benefit of the extensive citation of authority and submissions which we have had on the present appeals. The categorisation advanced in paras 41 43 of the Supreme Courts judgment in that case was deliberately not exhaustive (vide, the word generally), and neither were the examples given of cases within the two identified sub categories intended to be exhaustive. As to the Court of Appeals conclusion (paras 67 68) that this Courts judgment in Shergill v Khaira should not be understood as limiting the third type of act of state to situations of lack of judicial competence arising from the separation of powers, I agree that lack of judicial competence is not a helpful qualification. Judicial abstention is in contrast a helpful term, and preferable in my view to non justiciability. This third type of act of state (described explicitly by Lord Sumption as international law act of state) has on any view a broad international basis. This was, in Shergill v Khaira, identified briefly by the reference in para 40 to the dispute in Buttes Gas as trespassing on the proper province of the executive, as the organ of the state charged with the conduct of foreign relations, and developed more fully in para 42 in Shergill v Khaira. Considerations of separation of powers and of the sovereign nature of foreign sovereign or inter state activities may both lead to a conclusion that an issue is non justiciable in a domestic court. The problem is to identify more precisely in relation to what issues and when such adjudication is inappropriate. The appellants submit that Leggatt J took too large a view of the issues properly justiciable in a domestic court. In particular, having held that there were judicial and manageable standards to resolve the issues in Rahmahtullah, and dismissed in this context any difficulties which might arise if the United States did not cooperate with evidence or documents, he considered that justiciability depended upon whether examination of the acts of United States officials was necessary in order to decide a question of domestic legal right: paras 153 and 163. In short he circumscribed the circumstances capable of being embraced by the first sub category, and too readily assumed that, because a claim of right was made, the case fell within the second sub category, in Shergill v Khaira (see para 43 above). In this connection, Leggatt J also treated the previous Court of Appeal decision in R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872 as falling within the second sub category, and explained the Court of Appeals refusal there to grant relief on the basis that no claim of right was involved. The claimant in Noor Khan was seeking no more than a public declaration that a GCHQ officer or other Crown agent who passes locational intelligence to an agent of the US may commit an offence of encouraging or assisting in a crime under sections 44 46 of the Serious Crime Act 2007 (para 150). The claimant in Noor Khan was the son of a tribal elder killed in a US drone strike in Pakistan pursuant, allegedly, to locational intelligence supplied by GCHQ to the CIA. He maintained that there could be no defence of combat immunity to a charge of murder: GCHQ and CIA officials were not members of the US and UK armed forces and could not be combatants, there was no armed conflict in Pakistan and Al Qaeda was too incoherent and sporadic in its actions for it to be shown that there was an armed conflict even in Afghanistan. In any event, if there was an armed conflict, it was non international in nature. Leggatt J explained this case as one where the claimant was not claiming that he had any legal right which the defendant had violated. The relief sought was, in effect, an advisory opinion on the criminal law. The case, he said, fell therefore into the second sub category identified in Shergill v Khaira (para 43 above). It would seem to follow from this and from para 163 of Leggatt Js judgment that, if the claimant had had some substantive claim (eg for damages in his fathers or his own right), the claim would, in Leggatt Js view, have been justiciable. In my opinion, that is unlikely to be correct, though it is unnecessary to reach any firm conclusions in this area. Noor Khan was a very particular case: it proceeded on an assumption that, under sections 44 46 of the Serious Crime Act 2007, the liability of UK nationals should be determined not by reference to whether the United States agents whose conduct was said to have been assisted by UK nationals were actually guilty of any offence within the jurisdiction of the UK courts, but by considering whether the conduct so assisted would have constituted an offence within the jurisdiction of the UK courts, if committed by a UK national. Lord Dyson MR, giving the sole reasoned judgment, regarded the claim as non justiciable, because, quoting (at paras 34 and 35) from and agreeing with Moses LJs analysis below: The proposition, even if it is right, that a person may be guilty of secondary liability for murder under sections 44 46, although the principal could not, is no answer to the fundamental objection to Lord Dyson went on to say (para 37): the grant of a declaration: that it involves, and would be regarded around the world as an exorbitant arrogation of adjudicative power in relation to the legality and acceptability of another sovereign power. Even if the argument focused on the status of the attacks in North Waziristan (international armed conflict, armed conflict not of an international nature, pre emptive self defence) for the purposes of considering whether the United Kingdom employee might have a defence of combatant immunity, it would give the impression that this court was presuming to judge the activities of the United States. In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country. In substance, therefore, Lord Dyson saw the issue as one of the lawfulness of the use of drones and as non justiciable, because its resolution would depend upon determining whether there was an armed conflict in Pakistan and/or Afghanistan, whether any such conflict was international or non international in nature and what rights of action or self defence existed. All those are issues on which the policy and judgment of the executive and armed forces might be expected to prevail: compare the Court of Appeal Criminal Divisions provisional view to that effect in R v Gul (Mohammed) [2012] 1 WLR 3432, paras 20 to 23. (The decision in Gul was upheld on grounds not referring to this point at [2014] UKSC 64; [2014] AC 1260). It is true that the common law develops and responds to changing times and attitudes, and that a sharp division between the domestic and international legal sphere is less visible today than in the past. The case of Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 is an example of this development. I also note encouragement given by distinguished international lawyers in article 2 of the Institut de Droit internationals resolution The Activities of National Judges and the International Relations of their State (Milan, 1993), to the effect that: National courts, when called upon to adjudicate a question relating to the exercise of political power, should not decline competence on the basis of the political nature of the question if such exercise of power is subject to a rule of international law. Some matters are however better addressed at the international legal level, rather than in domestic courts. In civil as well as common law, it appears unsurprising under present conditions that domestic courts should treat acts of government consisting of an act of war or of alleged self defence at the international level as non justiciable and should abstain from adjudicating upon them: see the concurrently issued judgment in the cases of Rahmatullah and Serdar Mohammed to which reference is made in paras 6 and 8 above; see also para 71 above and the remarks of the majority and of Judge Costa in his concurring judgment in Markovic v Italy (2006) 44 EHRR 52, paras 113 116. Whether, at least apart from the special statutory provisions in Noor Khan, there might also have been issues of non justiciability under the principle of Crown act of state does not require further examination here. However, even if Leggatt J took too limited a view in this respect of the circumstances in which domestic courts should exercise self restraint and abstain, I have little difficulty with the result he reached on the facts as alleged and assumed for present purposes before him. What is alleged in Rahmatullah is wrongful detention combined with severe mistreatment over a period of years by United States authorities, in circumstances for which the United Kingdom is alleged to have secondary responsibility. Whether that case can be made out will depend on identifying the relevant laws in force at the relevant times, whether they be the domestic laws in force in Iraq and Afghanistan or international law, as well as upon investigation of the relevant facts. Apart from the mere fact that the primary actor was the United States, I do not on present material see a basis for concluding that the issues will involve sovereign, international or inter state considerations of such a nature that a domestic court cannot or should not appropriately adjudicate upon them. The mere fact that Mr Rahmatullah was handed over to the United States under an agreement cannot, I think, suffice to make the claims for alleged wrongful detention combined with severe mistreatment by the United States non justiciable in respect of either the United States primary, or the United Kingdoms ancillary, involvement. I would accept that detention overseas as a matter of considered policy during or in consequence of an armed conflict and to prevent further participation in an insurgency could in some circumstances constitute a foreign act of state, just as it may constitute Crown act of state when undertaken by the United Kingdom: see our concurrent judgment in Rahmatullah and Serdar Mohammed. But here we are concerned, in Belhaj, with allegations of apparently arbitrary rendition with a view to forcible handing over to an arbitrary ruler and, in Rahmatullah, with allegations of what again appears to have been arbitrary detention without any of the usual forms of legal or procedural protection accompanied by severe mistreatment. Even if one could say that such treatment reflects some policy of the various foreign states involved, or indeed of the United Kingdom, it goes far beyond any conduct previously recognised as requiring judicial abstention. There is certainly also no lack of judicial and manageable standards by which to judge it. The critical point in my view is the nature and seriousness of the misconduct alleged in both cases before the Supreme Court, at however high a level it may have been authorised. Act of state is and remains essentially a domestic law doctrine, and it is English law which sets its limits. English law recognises the existence of fundamental rights, some long standing, others more recently developed. Among the most long standing and fundamental are those represented in Magna Carta 1225, article 29, which reads: No free man shall be taken, or imprisoned, or dispossessed, of his Liberties, , or be outlawed, or exiled, or in any way destroyed; nor will we condemn him, nor will we commit him to prison, excepting by the legal judgment of his peers, or by the laws of the land. To none will we sell, to none will we deny, to none will we delay right or justice. Further, torture has long been regarded as abhorrent by English law: see eg A v Secretary of State for the Home Department (No 2) [2005] UKHL 71; [2006] 2 AC 221, para 11, per Lord Bingham, and individuals are unquestionably entitled to be free of deliberate physical mistreatment while in the custody of state authorities. Sovereign states who without justification and without permitting access to justice detain or mistreat individuals in the course or in relation to their conduct of foreign relations or affairs have sovereign immunity in foreign domestic courts. But I see no reason why English law should refrain from scrutinising their conduct in the course of adjudicating upon claims against other parties involved who enjoy no such immunity here, where the alleged conduct involves almost indefinite detention, combined with deprivation of any form of access to justice and, for good measure, torture or persistent ill treatment of an individual. This is consistent with the reasoning in R (Abbasi) v Secretary of State for Foreign and Commonwealth Affairs [2002] EWCA Civ 1598, where, in the context of a claim judicially to review the Secretary of State for alleged inaction in respect of the plight of a British citizen detained in Guantanamo, the Court of Appeal said that where fundamental human rights are in play, the courts of this country will not abstain from reviewing the legitimacy of the actions of a foreign sovereign state (para 53) and that it was not possible to approach this claim for judicial review other than on the basis that, in apparent contravention of fundamental principles recognised by both jurisdictions and by international law, Mr Abbasi is at present arbitrarily detained in a legal black hole (para 64). These observations are together sufficient to support a conclusion that Mr Rahmatullahs claims against the Ministry of Defence and the Foreign and Commonwealth Office are not, as presented, barred by reason of the doctrine of foreign act of state. I recognise of course that the whole factual position may appear differently if and when the case is tried on the basis of actual, rather than assumed facts. There will or may then be evidence as to what actually happened and what really motivated those holding and treating Mr Rahmatullah. I also recognise, as Leggatt J did, that there may be practical evidential difficulties in disputing the accounts of what happened to Mr Rahmatullah in US custody. That assumes that the United States will not cooperate with information and evidence. But, even if the United States do not cooperate, evidential difficulties of this nature are, I think, far from what was in mind in Buttes Gas or any other of the relevant authorities and are not a basis for concluding that a claim is non justiciable. Turning to Belhaj, on the assumed facts, this appeal too cannot in my view be regarded as raising any issues of a sovereign, international or inter state nature upon which a domestic court cannot or should not appropriately adjudicate. Simon J at first instance concluded with hesitation that there were no clear and incontrovertible standards for deciding both whether the actions of the Chinese state were unlawful by the standards of Chinese law (para 146) and whether the conduct of US authorities outside the United States was unlawful (para 150). The respondents have since made clear that they do not rely on any act or conduct committed by or in conjunction with the Chinese authorities. A hint of the underlying reasons why the United Kingdom may have been willing to supply information to Libya about Mr Belhaj is present in the alleged letter reference to demonstrating the remarkable relationship we have built over the years, and the respondents themselves add to this an allegation that the renditions took place as part of a co ordinated strategy designed to secure diplomatic and intelligence advantages from Colonel Gaddafi. As to this, there is, as I have noted (paras 8 to 10 above) no suggestion that general foreign policy advantages of this nature could justify a plea of Crown act of state. Any attempt to rely on them to support a plea of foreign act of state in respect of the present claims against the United Kingdom for collaboration or connivance in the alleged false imprisonment, rendition from one country to another or mistreatment of individuals such as Mr Belhaj and Mrs Boudchar would at once meet the difficulty that the United Kingdom would be advancing its own breaches of the fundamental rights of those individuals. The letter reference and the respondents allegation do not therefore represent any basis for regarding the claims as non justiciable. Essentially, what is relied upon by the appellants is the fact that they were not, while various foreign states were, the prime actors in the alleged false imprisonment, rendition or mistreatment. Bearing in mind the nature and seriousness of the infringements of individual fundamental rights involved, this constitutes no basis for a domestic court to abstain or refrain from adjudicating upon the claims made. I note, once again, that a contrary conclusion would have meant that the claims against the appellants could not be pursued anywhere in the world, in contrast with the claims against the alleged prime actors. In circumstances, where the alleged letter might, on one reading, suggest that one or more of the appellants in Belhaj was aware that the intelligence supplied to Libya about Mr Belhaj would be used to effect his rendition to Libya, even though the United Kingdom did not actually pay for the air cargo, a distinction between those primarily and secondarily responsible may also prove to be unpersuasive. A similar point applies in Rahmatullah where some of the pleaded allegations appear to assert that, even though United States authorities were the actors, the prime instigator was the appellants. Again, the evidential difficulties on which Mr James Eadie QC relied, on the basis that cooperation is unlikely to be forthcoming from the Malaysian, Thai, Libyan and United States authorities or their states, cannot in my view make the claims against the appellants non justiciable or require judicial abstention. Some reliance has been placed in both sets of proceedings on evidence about the effect on international relations of investigation in English courts of the issues which they raise. The appellants have relied in both sets of proceedings on evidence from Dr Laurie Bristow, a senior diplomat, currently National Security Director in the Foreign and Commonwealth Office. He considered it highly unlikely that the foreign states involved would supply evidence to enable the appellants to defend themselves. He reminded the court of the policy of successive governments to neither confirm nor deny allegations in relation to the intelligence services. Although he had not consulted any of the relevant foreign governments, he considered that there was a real risk that the trial of the proposed proceedings would cause serious harm to, and that findings of the nature sought in respect of United States officials would have a seriously damaging impact on, the United Kingdoms relationship with the United States, and could well lead to a restriction of the unparalleled access and the historic intelligence sharing relationship and national security cooperation which the United Kingdom currently enjoys. He accepted that, given the change in regime in Libya, it is unlikely that the findings sought in respect of Libya would damage relations with Libya, but considered that the allegations in respect of Malaysia and Thailand were highly politically sensitive, and that findings would probably be interpreted as interference or give rise to a strongly negative reaction. In Rahmatullah this evidence was countered by the respondent with evidence from a former US diplomat Mr Thomas Pickering, and a former US government official adviser, then director of American Studies at the Department of Politics and International Studies at Cambridge University who expressed the firm belief that adjudicating on Mr Rahmatullahs case was highly unlikely to cause damage to the relations or national security cooperation between the US and UK and that to assert that the US would be offended was to misunderstand the value the United States places on the rule of law and an unbiased and open judicial system. Leggatt J in Rahmatullah thought it wrong for a court to become involved in attempting to resolve this sort of issue, and declined to attach weight to the evidence. Simon J in Belhaj reached with hesitation his conclusion that foreign act of state applied in reliance both on his view (with which I have already expressed disagreement) that there were no clear and incontrovertible standards for deciding whether United States officials had acted unlawfully and on the fact that there is incontestable evidence that such an inquiry would be damaging to the national interest (para 150). The Court of Appeal noted that, although deference to executive suggestion as to the likely consequences for foreign relations may well be suited to the very different constitutional arrangements in the United States, it has played no part in the development of the act of state doctrine in this jurisdiction, and that in Buttes Gas Lord Wilberforce expressly left aside all possibility of embarrassment in our foreign relations in coming to the conclusion that the issues raised were not justiciable. As to this last point, however, Lord Wilberforce did this at pp 936G and 938A B, expressly noting by way of explanation that no indication of any embarrassment had been drawn to the Houses attention by Her Majestys Government. The inference is, if anything, that it might have been a relevant factor, had it been shown. The courts are placed in a difficult situation when asked to feed into a judgment about justiciability an assessment of the likely prejudice to the United Kingdoms good relations and security interests with a foreign state, if serious allegations of misconduct involving misconduct by that foreign state are ventilated in the English courts. Such an assessment might also be easier to take into account if the issue was whether a prima facie defence of foreign act of state of the second type was outweighed by public policy considerations, rather than where, as here, the issue is whether a foreign act of state of the third type has been shown, making the case non justiciable. That said, I would not exclude the relevance to justiciability of a clear governmental indication as to real and likely damage to United Kingdom foreign policy or security interests. But little emphasis was in fact placed before the Supreme Court on such considerations as a relevant, still less a decisive factor. Viewing the appeals together, it can also be seen that Dr Bristows forcefully expressed views are not unchallenged. Finally, as Dr Bristow recognised, the governmental position in Libya has changed radically, even if not very happily. One might even also add that a different administration holds office in the United States. On the present appeals, I do not consider that the evidence available can lead to a conclusion that the cases should be regarded as non justiciable or require judicial abstention. Lord Sumption takes a more general view of the third type of foreign act of state (non justiciability or abstention or, in his terminology, international law act of state). But in paras 249 280 he argues in favour of the recognition in English domestic law of a public policy qualification. He finds it helpful in this connection to consider the scope of certain international law rules with jus cogens force, though he does not suggest that domestic public policy in all cases necessarily reflects or corresponds with international law rules having jus cogens force: see para 257. On this basis, he concludes that, so far as the allegations made in these proceedings amount to allegations of complicity in torture or of arbitrary detention without any legal ground or recourse to the courts, including enforced disappearance and rendition, a domestic court should not abstain from adjudicating upon them. Not every unlawful detention would, in his view, fall into this category, and nor would the allegations made of other cruel, inhuman or degrading treatment, but the position on the facts is not at this stage clear to the point where any of the allegations made should be struck out (see paras 278 280). Such difference in approach as there is between Lord Sumption and myself in this area makes no difference to the outcome of these appeals, and seems unlikely to make much if any difference to the outcome of any trial. But I prefer to analyse the qualifications to the concept of foreign act of state by reference to individual rights recognised as fundamental by English statute and common law, rather than to tie them too closely to the concept of jus cogens: (i) The analogy of jus cogens would suggest that a domestic court would be able to adjudicate upon an allegation that its national government connived in a serious violation of the claimants rights by a foreign government, but would be required to abstain from adjudicating upon a less serious violation, such as mere unlawful detention or cruel or inhuman treatment not amounting to torture. (ii) Jus cogens is a developing concept notoriously difficult to define, and capable of giving rise to considerable argument. Oppenheims International Law (9th ed) (1995) Vol 1, para 2 said: Such a category of rules of ius cogens is a comparatively recent development and there is no general agreement as to which rules have this character, citing a wealth of authority in a footnote. Brownlies Principles of International Law (8th ed) (2000) notes that during the 1960s scholarly opinion came to support the view that there can exist overriding norms of international law, referred to as peremptory norms (ius cogens), identified in article 53 of the Vienna Convention on the Law of Treaties as comprising any norm accepted and recognized by the international community of States as a whole as a norm from which no derogation is permitted and which can be modified only by a subsequent norm of general international law having the same character. Brownlies Principles says that The least controversial of this class are the prohibition of the use of force in article 2(4) of the [United Nations] charter, of genocide, of crimes against humanity (including systematic forms of racial discrimination), and the rules prohibiting trade in slaves. It goes on to cite the International Law Commissions synopsis in Fragmentation of International Law: Difficulties arising from the Diversification and Expansion of International Law (A/CN.4/L.702, 18 July 2006), which lists the prohibition of aggression, slavery and the slave trade, genocide, racial discrimination apartheid and torture, as well as basic rules of international humanitarian law applicable in armed conflict, and the right to self determination. Similarly, Harris and Sivakumarans Cases and Materials on International Law (8th ed) (2015), para 2 033 footnote 68, gives the prohibitions on the use of armed force, torture and genocide as prime examples of jus cogens rules. The Report of the United Nations Working Group on Arbitrary Detention, A/HRC/22/44, 24 December 2012), to which Lord Sumption refers in paras 269 271 is clearly a most valuable and important soft law pronouncement, which is likely to influence the development of generally accepted and recognised norms. But the scope for argument about the precise parameters of even such norms as the Working Group suggests in this area is evident from a full reading of para 38, reading: The Working Group regards cases of deprivation of liberty as arbitrary under customary international law in cases where: (a) When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty; (b) the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights; (c) The total or partial non observance of the international norms relating to the right to a fair trial established in the Universal Declaration of Human Rights and in the relevant international instruments is of such gravity as to give the deprivation of liberty an arbitrary character; (d) Asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review of remedy; (e) The deprivation of liberty constitutes a violation of the international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; disability or other status, and which aims towards or can result in ignoring the equality of human rights. (iii) If violation of a jus cogens were a primary test of whether a domestic court could adjudicate upon an issue which was otherwise non justiciable and upon which it would otherwise have to abstain from adjudicating, central areas of abstention identified by Lord Sumption would become potentially amenable to adjudication. The prohibition on the use of armed force and on aggression are core examples of jus cogens. Yet these are, rightly as would be my present view, treated by Lord Sumption himself as giving rise to core examples of issues upon which domestic courts should refrain from adjudicating: see eg Lord Sumptions paras 223 224, with references to Noor Khan; and see paras 93 95 above. (iv) If, as Lord Sumption indicates is his view (para 257), not every violation of a peremptory norm of international law is an exception to the foreign act of state doctrine, then it is not clear how one determines when or why ius cogens is an appropriate basis for any exception in any particular case. (v) Ultimately, in an area of judicial abstention, a case by case approach, along lines to which Lord Wilberforce referred, is in my opinion always likely to be necessary. Nothing I have said should be taken to mean that the existence of relevant jus cogens principles may not be a stimulus to considering whether judicial abstention is really called for in a particular situation. But the doctrine of abstention rests on underlying principles relating to the role of a domestic judge and the existence of alternative means of redress at an international level, which make it difficult to tie too closely to particular rules of international law, however basic and binding at that level. X Miscellaneous points It follows from my above conclusions that it is unnecessary to reach any final determination upon the respondents case that, in so far as what is alleged amounts to complicity in torture, the United Nations Convention against Torture (Treaty Series No 107 (1991)) obliges states to provide a universal civil remedy in respect of torture wherever committed in the world, at least when (allegedly) committed by or with the connivance of United Kingdom citizens such as the appellants, and that any otherwise applicable type of foreign act of state should be modified to enable this. The argument turns on the scope of article 14 of the Convention. As the Court of Appeal observed, Lord Bingham in Jones v Saudi Arabia, para 25, expressed the clear conclusion, after looking at the drafting history and other background material, that this article does not provide for universal civil jurisdiction, and that it requires a private right of action for damages only for acts of torture committed in territory under the jurisdiction of the forum state. As at present advised, I see no basis for reaching a contrary conclusion, or indeed for treating the concept of jurisdiction in this context in an expanded sense, such as the European Court of Human Rights has been prepared to attach to it in the specific context of article 1 of the European Convention on Human Rights. But it is unnecessary to express any concluded view on this, any more than it was for the Court of Appeal to do so. Another point which can strictly remain undecided is whether article 6 of the Convention rights scheduled to the Human Rights Act 1998 is engaged by and renders impermissible in the present circumstances any reliance by the appellants on either state immunity or foreign act of state. As regards state immunity, Mr Belhaj and Mrs Boudchar would have faced the initial difficulty of trying to persuade the Supreme Court in the light of the European Court of Human Rights judgments in Al Adsani v United Kingdom (2001) 34 EHRR 11 and Jones v United Kingdom (2014) 59 EHRR 1 to overrule Holland v Lampen Wolfe [2000] 1 WLR 1573, in which a majority of the House of Lords held that article 6 is not even engaged by a plea of state immunity: see also Jones v Saudi Arabia at paras 14 and 64 per Lord Bingham and Lord Hoffmann. As regards foreign act of state, the question would have been whether for similar reasons article 6 was or was not engaged. Foreign act of state, on the other hand, operates, even under the case law of the European Court of Human Rights, as a substantive bar to liability or adjudication: see Roche v United Kingdom (2005) 42 EHRR 30; Markovic v Italy (2006) 44 EHRR 52). On this basis, foreign act of state, even if it had been otherwise applicable, would not engage article 6. In either case, if article 6 was engaged, the question would then have arisen whether it rendered impermissible any reliance on either state immunity or foreign act of state. But, in view of what I have already decided, it is unnecessary to go further into this. XI Overall Conclusion As indicated in para 11(vi) above, it follows from the reasoning and conclusions on the issues of state immunity and foreign act of state set out above, that the appeals in both Belhaj and Rahmatullah should in principle be dismissed although by reasoning differing in some significant respects from that of both courts below thus enabling both sets of claims to be further pursued. The Supreme Court will however invite written submissions as to the precise form of order and of any declarations that may be appropriate as well as on costs within 28 days of the handing down of this judgment. LORD NEUBERGER: (with whom Lord Wilson agrees) Introductory These two appeals involve allegations that the defendants, in their capacity as officials or emanations of the executive arm of the government of the United Kingdom, facilitated the claimants unlawful detention, and ill treatment (and, in the cases of Mr Belhaj and Mrs Boudchar, their kidnapping and rendition), and should pay the claimants compensation accordingly. Mr Belhaj and Mrs Boudchar allege that the defendants assisted United States and Libyan officials in their unlawful kidnapping and detention, their unlawful rendition (accompanied by ill treatment), and their subsequent incarceration and torture in Libya. Mr Rahmatullah alleges that, following his capture by UK troops in Iraq (and his unlawful detention and ill treatment), he was handed over to US officials pursuant to a memorandum of understanding (MoU) between the UK and US Governments, and that US officials then unlawfully detained him for ten years and ill treated and tortured him, and that the defendants facilitated that detention, ill treatment and torture. As the two claims are against UK government officials and entities, and not against any foreign government officials or entities, there is no question of any relief being sought other than against domestic defendants. Nonetheless, various points of principle have been raised by those defendants as to why the claims cannot or should not be entertained by the courts of England and Wales. Those points of principle must be determined on the assumption that the facts as pleaded by the claimants are true. The points to be determined at this stage are whether the defendants can rely on (a) the doctrine of state immunity or (b) the doctrine of foreign act of state, as defences to the claims. So far as the doctrine of state immunity is concerned, I agree that it cannot assist the defendants for the reasons given by Lord Mance in paras 12 31 above and by Lord Sumption in paras 181 197 below. There is nothing that I can usefully add to their impressive analyses of this issue. The doctrine of foreign act of state (the Doctrine) raises more troubling issues. The nature of the Doctrine In summary terms, the Doctrine amounts to this, that the courts of the United Kingdom will not readily adjudicate upon the lawfulness or validity of sovereign acts of foreign states, and it applies to claims which, while not made against the foreign state concerned, involve an allegation that a foreign state has acted unlawfully. In so far as it is relied on in these proceedings, the Doctrine is purely one of domestic common law, and it has all the advantages and disadvantages of a principle that has been developed on a case by case basis by judges over the centuries. Thus, while it is pragmatic and adaptable to changing norms (as Lord Wilberforce pointed out in Blathwayt v Baron Cawley [1976] AC 397, 426), it is a principle whose precise scope is not always easy to identify. Another problem of relying on what was said in most of the earlier cases which have been cited to us in relation to the Doctrine is that the legal basis for a judicial decision that a claim could or would not be resolved by a court was not expanded on in any detail, and was not characterised by an expression such as act of state at least as a term of article Many of the judgments do not distinguish between what are now treated as three separate doctrines, namely Crown act of state, foreign act of state, and state immunity. The rules identified in the cases It appears to me that the domestic cases, to which we have been referred, suggest that there may be four possible rules which have been treated as aspects of the Doctrine, although there is a strong argument for saying that the first rule is not part of the Doctrine at all, or at least is a free standing aspect of the Doctrine effectively franked by international law. The first rule is that the courts of this country will recognise, and will not question, the effect of a foreign states legislation or other laws in relation to any acts which take place or take effect within the territory of that state. The second rule is that the courts of this country will recognise, and will not question, the effect of an act of a foreign states executive in relation to any acts which take place or take effect within the territory of that state. The third rule has more than one component, but each component involves issues which are inappropriate for the courts of the United Kingdom to resolve because they involve a challenge to the lawfulness of the act of a foreign state which is of such a nature that a municipal judge cannot or ought not rule on it. Thus, the courts of this country will not interpret or question dealings between sovereign states; [o]bvious examples are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory per Lord Pearson in Nissan v Attorney General [1970] AC 179, 237. Nissan was a case concerned with Crown act of state, which is, of course, a different doctrine and is considered in Rahmatullah v Ministry of Defence 2017 UKSC 1, but the remark is none the less equally apposite to the foreign act of state doctrine. Similarly, the courts of this country will not, as a matter of judicial policy, determine the legality of acts of a foreign government in the conduct of foreign affairs. It is also part of this third rule that international treaties and conventions, which have not become incorporated into domestic law by the legislature, cannot be the source of domestic rights or duties and will not be interpreted by our courts. This third rule is justified on the ground that domestic courts should not normally determine issues which are only really appropriate for diplomatic or similar channels (see Shergill v Khaira [2015] AC 359, paras 40 and 42). A possible fourth rule was described by Rix LJ in a judgment on behalf of the Court of Appeal in Yukos Capital SARL v OJSC Rosneft Oil Co (No 2) [2014] QB 458, para 65, as being that the courts will not investigate acts of a foreign state where such an investigation would embarrass the government of our own country: but that this doctrine only arises as a result of a communication from our own Foreign Office. The cases where the rules have been applied The first rule appears to me to be well established and supported by a number of cases, at least in relation to property. It was applied in Duke of Brunswick v King of Hanover (1848) 2 HLC 1, where Lord Cottenham LC rejected a challenge to the validity of a Hanoverian bill deposing and replacing the Duke of Brunswick, on the ground that a foreign sovereign cannot be made responsible here for an act done in his sovereign character in his own country. It was also relied on in Carr v Fracis Times & Co [1902] AC 176, where seizure of ammunition within Muscat territorial waters was effected by a British officer pursuant to a proclamation issued by the Sultan of Muscat, and the validity of the proclamation could not be challenged as, per Lord Halsbury LC at p 179, the Sultans authority there [sc Muscat] is supreme, and what he says is law for the purpose of governing all acts which take place within his territory. Another example of the first rule is Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532, where at p 549 Warrington LJ said that the English courts could not ignore and override legislative and executive acts of the Government of Russia and its agents affecting the title to property in that country (and see Bankes LJ to the same effect at p 545). The first rule was also applied in Princess Paley Olga v Weisz [1929] 1 KB 718 see Scrutton LJs first two reasons at pp 722 723, reflected also in the judgments of Sankey and Russell LJJ at pp 730 732 and 732 736 respectively). The first rule was also invoked in Buttes Gas and Oil Co v Hammer (Nos 2 and 3) [1982] AC 888, 937, where Lord Wilberforce said that an inquiry into the motives of the then ruler of Sharjah in making [a] decree was non justiciable, because the decree applied within the territory of Sharjah. The second rule also has significant judicial support, but again only in relation to property. Thus, it appears to have been applied in Blad v Bamfield (1673) 3 Swans 604, in the light of Lord Nottinghams point that the validity of the Kings letters patent in Denmark was non justiciable in English courts (emphasis added). Another example is Dobree v Napier (1836) 2 Bing NC 781, where Tindal CJ stated that no one can dispute the right of the Queen of Portugal to appoint in her own dominions the defendant as her officer to seize a vessel which is afterwards condemned as a prize (emphasis added). The second rule was also relied on in Luther v Sagor (in the passages in the judgments of Warrington and Bankes LJJ cited above), and in Princess Paley Olga (see Scrutton LJs third reason at pp 722 724, reflected in the judgments of Sankey and Russell LJJ at pp 726 730 and 736 respectively). The third rule has been applied in a number of cases, again in relation to property. Examples of the third rule involving transactions between states include Blad in the light of Lord Nottinghams view that a trial about the exposition and meaning of the articles of peace between two states would be monstrous and absurd. It also was applied in Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56, which was expressly treated as a case of mutual treaty between persons acting as states independent of each other so that it consequently not a subject of private, municipal jurisdiction. The third rule is also apparent from Lord Kingsdowns dictum in Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22 (a decision based on Crown act of state) that [t]he transactions of independent States between each other are governed by other laws than those which Municipal Courts administer. That point was repeated by Lord Halsbury LC in Cook v Sprigg [1899] AC 572. Most of the issues held to be such that the court would not adjudicate upon them in Buttes Gas by Lord Wilberforce at pp 937 938 seem to me to be examples of the third rule eg what was the boundary of the continental shelf between (i) Sharjah and UAQ, (ii) Abu Musa and UAQ, (iii) Iran and both Emirates. As the Court of Appeal said in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 287, at the heart of the dispute in that case was a boundary dispute between states which made it impossible to say what the territorial limitations of those states were. And, as it was put in this Court in Shergill, para 40, the dispute arose out of the way in which the four states concerned had settled the issue of international law by a mixture of diplomacy, political pressure and force. A more recent example of the application of the third rule, and this time in relation to injury to the person, is in R (Noor Khan) v Secretary of State for Foreign Affairs [2014] 1 WLR 872, where the Court of Appeal refused the applicant permission to seek judicial review of the provision of information by the UK intelligence services to the US government to assist it in targeting drone strikes in Pakistan. The argument was that the provision of information for this purpose was unlawful, as it involved requiring GCHQ officers to encourage and/or assist the commission of murder (para 7). At para 29 Lord Dyson MR, giving the judgment of the Court of Appeal, said that the court will also usually not sit in judgment on the acts of a sovereign state as a matter of discretion. In expressing that view, he was following some remarks of Simon Brown LJ in R (Campaign for Nuclear Disarmament) v Prime Minister of the United Kingdom (2002) 126 ILR 727, para 47(ii). As to the supposed fourth rule, it derives support from the United States, whose jurisprudence was said by Lord Wilberforce to be helpful in Buttes Gas at pp 936 937. After initially suggesting in Oetjen v Central Leather Co 246 US 297, 303 304 (1918) that the Doctrine was based on the highest considerations of international comity and expediency, the US Supreme Court preferred to explain it by reference to the strong sense of the Judicial Branch that its engagement in the task of passing on the validity of foreign acts of state may hinder the conduct of foreign affairs per Harlan J in Banco Nacional de Cuba v Sabbatino 376 US 398, 423 (1964), cited with apparent approval by Scalia J in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn, International 493 US 400, 406 (1990). There is little authority to support the notion that the fourth rule is part of the law of this country, save that, as discussed in the Court of Appeals judgment in Kuwait Airways, paras 340 350, there are certain areas (such as the recognition of foreign governments, and the extent of a foreign governments territory) in which a certificate from the Foreign Office is regarded by the courts of this country as conclusive see Luther v Sagor. But that is rather a different point. However, there is a trace of the fourth rule in the Court of Appeals reasoning that the application in Noor Khan was not to be entertained because, if it succeeded, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful, which would be seen as a serious condemnation of the US by a court of this country (para 37). If the fourth rule exists, which I doubt (see para 150 below), it would require exceptional circumstances before it could be invoked. Decisions of foreign courts While other jurisdictions may have developed analogous principles to some or all of the four rules, it seems to me that courts in this jurisdiction should exercise great caution before relying on, let alone adopting, the reasoning of foreign courts in connection with the Doctrine. Decisions of courts in states with a civil law system and with a coherent written constitution seem to me to be as likely to mislead as to help when it comes to analysing the boundaries of a common law rule developed on a case by case basis over the years. However, I accept that any practical explanation by a court for or against judicial abstention is worth considering. In this case, for example, Lord Mance and Lord Sumption have referred to decisions of courts in France, the Netherlands and Germany. In each of those three countries, the courts appear to have developed some legal rules in this area which, while differing from each other (not much in the cases of France and the Netherlands), are, unsurprisingly, comprehensible and principled. Deciding which of those rules would be most appropriate for the courts of this country seems an unnecessarily cumbersome way, and indeed an unnecessarily constraining way, of resolving the question we have to decide. While they were cited with approval in this jurisdiction (most notably by Bankes, Warrington and Scrutton LJJ in Luther v Sagor at pp 541 542, 550 551 and 557, by Scrutton and Sankey LJJ in Princess Paley Olga at pp 724 725 and 728 729 and by Lord Wilberforce in Buttes Gas at pp 933 937), decisions of courts of the United States, which have purported to adopt the Doctrine as initially developed in this jurisdiction, appear to me to be of very limited assistance. This is for three reasons. First, the constitutional arrangements and conventions in the USA are very different from those in the UK. Secondly, much of the reasoning in the cases where act of state was first referred to as a principle (Hatch v Baez (1876) 7 Hun 596 and Underhill v Hernandez 168 US 250 (1897)) was really directed to the different doctrine of state immunity. And, thirdly, the justification for the doctrine of act of state has been recast by the US Supreme Court as summarised in para 131 above, which ties in very well with the first reason. The validity of the first rule in relation to property and property rights There is no doubt but the first rule exists and is good law in relation to property (whether immovable, movable, or intellectual) situated within the territory of that state concerned. Sovereignty, which founds the basis of the Doctrine, denotes the legal competence which a state enjoys in respect of its territory (Brownlies Principles of Public International Law, 8th ed, (2012), p 211), and there is no more fundamental competence than the power to make laws. There is no doubt, however, that the first rule only applies to acts which take effect within the territory of the state concerned see eg Peer International Corpn v Termidor Music Publishers Ltd [2004] Ch 212. The validity of the second rule in relation to property and property rights I find aspects of the second rule in relation to property and property rights more problematical. In so far as the executive act of a state confiscating or transferring property, or controlling or confiscating property rights, within its territory is lawful, or (which may amount to the same thing) not unlawful, according to the law of that territory, I accept that the rule is valid and well established. However, in so far as the executive act is unlawful according to the law of the territory concerned, I am not convinced, at least in terms of principle, why it should not be treated as unlawful by a court in the United Kingdom. Indeed, if it were not so treated, there would appear something of a conflict with the first rule. None the less, I accept that there are dicta which can be fairly said to support the existence of the rule even where the act is unlawful by the laws of the state concerned (see para 127 above). However, I am not persuaded that there is any judicial decision in this jurisdiction whose ratio is based on the proposition that the second rule applies to a case where the states executive act was unlawful by the laws of the state concerned. Thus, the Duke of Brunswick, Carr v Fracis, Luther v Sagor and Princess Paley Olga cases all involved acts which were apparently lawful according to the laws of the state concerned (being pursuant to a bill or decree), and there is no suggestion of unlawfulness in relation to the acts in Blad or Dobree. Similarly, there is nothing to suggest that, when Lord Wilberforce suggested in Buttes Gas at p 931 that an act of state extended to a foreign municipal law or executive act, he intended to refer to an executive act which was unlawful by the laws of the state concerned, let alone, where the act took place in the territory of another state, by the laws of that state. At best, therefore, there are simply some obiter dicta which support the notion that the second rule can apply to executive acts which are unlawful by the laws of the state concerned. There is support for the notion that the second rule does not apply to executive acts which are not lawful by the laws of the state concerned in Dicey, Morris and Collins on The Conflict of Laws, (15th ed (2012)) which at p 1380 sets out Rule 137 in these terms: A governmental act affecting any private proprietary right in any movable or immovable thing will be recognised as valid and effective in England if the act was valid by the law of the country where the thing was situated (lex situs) at the moment when the act takes effect, and not otherwise. Further, it does not appear to me that the common law regards it as inappropriate for an English court to decide whether a foreign states executive action infringed the law of that state, at least where that is not the purpose of the proceedings. Support for that view is to be found in the judgment of Diplock LJ in Buck v Attorney General [1965] Ch 745, 770, and of Arden and Elias LJJ in Al Jedda v Secretary of State for Defence [2011] QB 773; [2010] EWCA Civ 758 at paras 74 and 189 respectively. However, I am unconvinced that cases such as R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42 assist on this point. In that case, the assumed facts (which subsequently turned out to be inaccurate: see 1995 SLT 510) were that the applicant had been kidnapped and brought to this country from South Africa in a joint exercise involving the police of the UK and of South Africa. Accordingly, even if the second rule would otherwise have applied, the courts of this country had jurisdiction to rule on the apparent unlawfulness of the applicants treatment because of the public policy exception (considered in paras [153ff] below). Having said that, there is pragmatic attraction in the argument that an executive act within the state, even if unlawful by the laws of that state, should be treated as effective in the interest of certainty and clarity, at least in so far as it relates to property and property rights. In relation to immovable property within the jurisdiction of the state concerned, there appear to be good practical reasons for a foreign court recognising what may amount to a de facto, albeit unlawful, transfer of, or other exercise of power over, such property. So far as movable property or other property rights are concerned, if by an executive, but unlawful act, the state confiscates such property within its territory, the same point applies so long as the property remains within the territory of that state. And there is practical sense, at any rate at first sight, if when the property is transferred to another territory following a sale or other transfer by the state, the transferee is treated as the lawful owner by the law of the other territory. However, there are potential difficulties: if the original confiscation was unlawful under the laws of the originating state, and the courts of that state were so to hold, or even should so hold, it is by no means obvious to me that it would be, or have been, appropriate for the courts of the subsequent state to treat, or have treated, the confiscation as valid. The question whether the second rule exists in relation to executive acts which interfere with property or property rights within the jurisdiction of the state concerned, and which are unlawful by the laws of that state, is not a point which needs to be decided on the present appeal. Property rights do not come into this appeal, and no doubt for that very reason, the point was not debated very fully before us. Accordingly, it seems to me that it is right to keep the point open. The validity of the third rule in relation to property and property rights There is no doubt as to the existence of the third rule in relation to property and property rights. Where the Doctrine applies, it serves to defeat what would otherwise be a perfectly valid private law claim, and, where it does not apply, the court is not required to make any finding which is binding on a foreign state. Accordingly, it seems to me that there is force in the argument that, bearing in mind the importance which both the common law and the Human Rights Convention attach to the right of access to the courts, judges should not be enthusiastic in declining to determine a claim under the third rule. On the other hand, even following the growth of judicial review and the enactment of the Human Rights Act 1998, judges should be wary of accepting an invitation to determine an issue which is, on analysis, not appropriate for judicial assessment. I believe that this is reflected in observations of Lord Pearson in Nissan. Immediately after the passage quoted in para 123 above, he said Apart from these obvious examples, an act of state must be something exceptional. Any ordinary governmental act is cognisable by an ordinary court of law (municipal not international): if a subject alleges that the governmental act was wrongful and claims damages or other relief in respect of it, his claim will be entertained and heard and determined by the court. A little later, he explained that where the Doctrine applied the court does not come to any decision as to the rightness or wrongness of the act complained of: the decision is that because it was an act of state the court has no jurisdiction to entertain a claim in respect of it, and added that [t]his is a very unusual situation and strong evidence is required to prove that it exists in a particular case. In Yukos v Rosneft, para 66, Rix LJ suggested that Lord Wilberforces principle of non justiciability has to a large extent subsumed [the act of state Doctrine] as the paradigm restatement of that principle. If the foreign act of state principle is treated as including what I have called the first and second rules, then I do not agree. The third rule is based on judicial self restraint and is, at least in part, concerned with arrangements between states and is not limited to acts within the territory of the state in question, whereas the first and second rules are of a more hard edged nature and are almost always concerned with acts of a single state, normally within its own territory. Having said that, I accept that it will not always be easy to decide whether a particular claim is potentially subject to the second or third rule. The third rule may be engaged by unilateral sovereign acts (eg annexation of another state) but, in practice, it almost always only will apply to actions involving more than one state (as indeed does annexation). However, the fact that more than one sovereign state is involved in an action does not by any means justify the view that the third rule, rather than the second, is potentially engaged. The fact that the executives of two different states are involved in a particular action does not, in my view at any rate, automatically mean that the third rule is engaged. In my view, the third rule will normally involve some sort of comparatively formal, relatively high level arrangement, but, bearing in mind the nature of the third rule, it would be unwise to be too prescriptive about its ambit. The validity of the fourth rule As already mentioned, there will be issues on which the position adopted by the executive, almost always the Foreign Office, will be conclusive so far as the courts are concerned for instance, the recognition of a foreign state, also the territorial limits of a foreign state and whether a state of war exists. However, apart from those types of cases, the fourth rule has no clear basis in any judicial decisions in this jurisdiction, although, at least on one reading, the Court of Appeal in R (Khan) v Secretary of State for Foreign and Commonwealth Affairs [2014] 1 WLR 872 seem to have accepted that it existed. If a member of the executive was to say formally to a court that the judicial determination of an issue raised in certain legal proceedings could embarrass the Governments relations with another state, I do not consider that the court could be bound to refuse to determine that issue. That would involve the executive dictating to the judiciary, which would be quite unacceptable at least in the absence of clear legislative sanction. However, there is a more powerful argument for saying that such a statement should be a factor which the court should be entitled to take into account when deciding whether to refuse to determine an issue. Some indirect support for such an argument is to be found in In re Westinghouse Electric Corpn Uranium Contract Litigation MDL Docket No 235 [1978] AC 547, 616 617 and 639 640, and in Adams v Adams [1971] P 188, 198. Again, it is a point which does not have to be decided in this case, and was not argued. In fairness to the defendants, there was some evidence to support such an argument, but it was answered in some detail, and in any event it was, rightly in my view, not pressed on their behalf in relation to the application of the Doctrine in these two cases. Characterisation of the Doctrine: Having discussed the four possible rules which may be said to fall under the umbrella of the Doctrine, it is appropriate briefly to identify the characterisation of the various rules. I agree with Lord Mance that the first rule is a general principle of private international law. The rule was characterised by Upjohn J in In re Helbert Wagg & Co Ltds Claim [1956] Ch 323, 344 345 as: the elementary proposition that it is part of the law of England, and of most nations, that in general every civilized state must be recognized as having power to legislate in respect of movables situate within that state and in respect of contracts governed by the law of that state, and that such legislation must be recognized by other states as valid and effectual to alter title to such movables. (Emphasis added) To the extent that it exists, the second rule also seems to me to be a general principle, and, at least to some extent, it may be close to being a general principle of private international law. The third rule is based on judicial self restraint, in that it applies to issues which judges decide that they should abstain from resolving, as discussed by Lord Mance in paras 40 45 and by Lord Sumption in paras 234 239 and 244. It is purely based on common law, and therefore has no international law basis, although, as discussed below, its application (unsurprisingly) can be heavily influenced by international law. I turn now to discuss the limitations of, and exceptions to, the Doctrine. The cases establish that there are limitations and exceptions, each of which apply to some or all of these three or four rules. Many of those limitations and exceptions were fully examined by the Court of Appeal in Yukos v Rosneft, paras 68 to 115. But only three are relevant for present purposes. Limits and exceptions to the Doctrine: Public Policy It is well established that the first rule, namely that the effect of a foreign states legislation within the territory of that state will not be questioned, is subject to an exception that such legislation will not be recognised if it is inconsistent with what are currently regarded as fundamental principles of public policy see Oppenheimer v Cattermole [1976] AC 249, 277 278, per Lord Cross of Chelsea. This exception also applies where the legislation in question is a serious violation of international law see Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, para 29, per Lord Nicholls of Birkenhead. The circumstances in which this exception to the Doctrine should apply appear to me to depend ultimately on domestic law considerations, although generally accepted norms of international law are plainly capable of playing a decisive role. In his opinion in Kuwait Airways, paras 28 and 29, Lord Nicholls emphasised the need to recognise and adhere to standards of conduct set by international law and held that recognition of the fundamental breach of international law manifested by the Iraqi decree in that case would be manifestly contrary to the public policy of English law, like the Nazi German confiscatory decree in Oppenheimer. However, there is nothing in what Lord Nicholls said which suggests that it is only breaches of international law norms which would justify disapplication of the Doctrine. On the contrary: his reference to the public policy of English law supports the notion that the issue is ultimately to be judged by domestic rule of law considerations. The point is also apparent from the opinion of Lord Hope. At para 139, he said that the public policy exception is not limited to cases where there is a grave infringement of human rights, but is founded upon the public policy of this country plainly a domestic standard. The exception to the Doctrine based on public policy has only been considered by the courts in relation to the first of the four rules set out above. However, I cannot see grounds for saying that it does not apply similarly to the second rule, executive acts within the territory of the state concerned. As to the third rule, dealings between states, (as well as the fourth rule if it exists) it appears to me that in many types of case this exception may be applicable, but in some it may not. In the course of its judgment in R (Abbasi) v Secretary of State for Foreign & Commonwealth Affairs and Secretary of State for the Home Department [2003] UKHRR 76, the Court of Appeal effectively suggested that the exception could be applied to the third rule. In paras 32 and 33, they said that the English court will not adjudicate upon the legality of a foreign States transactions in the sphere of international relations in the exercise of sovereign authority, but that this was subject to exceptions, as Oppenheimer and Kuwait Airways demonstrated. The Court was accordingly prepared to hold that the detention of a UK citizen in Guantanamo Bay subject to indefinite detention in territory over which the United States has exclusive control with no opportunity to challenge the legitimacy of his detention before any court or tribunal was unlawful, despite his detention being an act of state on the part of the US see paras 64, 66 and 107. (It is fair to add that, although expressed as if it involved transactions in the field of international relations, it is arguable that the issue before the Court of Appeal in Abbasi was not in fact concerned with the third rule, but the second). Limits and exceptions to the Doctrine: Injury to the person None of the English cases discussed so far (save Noor Khan [2014] 1 WLR 872) involved alleged wrongs or acts in relation to the person, as opposed to alleged wrongs or acts in relation to property. As to that, it appears to me to be a very powerful argument for saying that the first rule must apply equally to injuries to the person as it applies to the taking of property. The notion that English courts will respect a sovereign states right to legislate as it sees fit in relation to the taking of property within its territory (subject always to the exception of legislation which conflicts with public policy) appears to me to be based on the principle that the law in a given territory should generally be treated as being that laid down by the legislature of that territory. In other words, it is either based on, or at least is close to, the choice of law, or proper law, principle which applies in private law conflict cases. That seems to derive support from what Lord Wilberforce said in Buttes Gas at p 931, and indeed from the reasoning of Lord Bingham in R (Al Jedda) v Secretary of State for Defence (JUSTICE intervening) [2008] AC 332, paras 40 43, approving the reasoning and decision of the Court of Appeal at [2007] QB 621, paras 105 107. Assuming that the second rule can apply to executive acts in relation to property which are unlawful by the laws of the state in which it occurred, I am unconvinced that it would apply in such a case in so far as the act resulted in injuries to the person. In no English case has it been held, or even suggested, that an executive act, unlawful by the laws of the state in which it occurred, can be subject to the Doctrine in a case where the cause of action is personal injury or death. As discussed in paras 143 144 above, there is a serious practical argument in favour of the second rule applying to unlawful executive acts in so far as they relate to interference with property and property rights, but that argument does not apply to personal harm whether physical or mental. Bearing in mind that (i) the Doctrine is not concerned with claims against a foreign state, (ii) there is no good practical reason for the second rule to apply to cases of unlawfully causing harm to the person, (iii) there are no judicial decisions or even judicial observations where it has been held so to apply, and (iv) there will be cases of personal harm where the third rule can be invoked, I consider that we should hold that the second rule does not apply to cases where a foreign state executive has caused physical or mental harm to a claimant through an act in the territory of that state which was unlawful under the laws of that state. Further, such recent authority as there is in this jurisdiction tends to support a limited interpretation of the second rule. In Lucasfilm Ltd v Ainsworth [2012] 1 AC 208, para 86, Lord Walker and Lord Collins said that in England the foreign act of state doctrine has not been applied to any acts other than foreign legislation or governmental acts of officials such as requisition, and so refused to apply it to the grant of a patent. The notion that the second rule only applies to executive acts in relation to property within the jurisdiction of the state concerned is also supported by the editors of Dicey, Morris and Collins in the passage cited in para 139 above. In a case where neither the first nor the third rule applies, it seems to me that there is force in the point that, as a matter of elementary justice, if a member of the executive of a foreign state injures a claimant physically in the territory of that state, and the injury was not authorised by the law of that state, a third party who is properly sued in this country on the ground that he was in some way also responsible for the injury should not normally be allowed to rely on the Doctrine as a defence. (I say normally, because, as already indicated, there will be occasions where the third rule may apply). In other words, the onus seems to me to be very much on those who wish to justify the extension of the second rule to unlawful acts which cause physical or mental damage, and I can see no good reason for doing so. Limits and exceptions to the Doctrine: Territoriality So far as the cases are concerned, the first, second and third rules have only been applied in relation to acts within the territory of the state concerned. I find it hard to see how it could be argued that the first rule, which is concerned with legislation, could apply to acts which take effect in a location outside the territory of the state concerned. The same applies to the second rule, which is concerned with executive acts. The older cases indicate that both rules are based on sovereign power, and, as mentioned in para 136 above, the nature of sovereign power is that it is limited to territory over which the power exists. Further, a location outside the relevant territory would be in the territory of another state, and normal principles, including the first rule, would indicate that the laws of that other state will normally apply. It is therefore hard to see how the law of the state which committed the act could apply so far as the first rule is concerned. As to the second rule, in the absence of any judicial decision to the contrary, I cannot see any good reason why, if the act in question was unlawful pursuant to the laws of the location in which it occurred, the act of state doctrine should assist a defendant simply because the act was carried out by the executive of another state. The position with regard to territoriality seems to me to be less clear so far as the third rule is concerned. As Rix LJ observed in Yukos at para 49, [i]t is not entirely clear from what Lord Wilberforce actually said in Buttes Gas whether what I have called the third rule is confined to what transpires territorially within a foreign sovereign state. However, I also agree with Rix LJ that, at least in some circumstances it could do so, as it is inherent in the nature of the rule that it may apply to actions outside the territory of the state concerned. The application of these principles to these cases Mr Belhaj and Mrs Boudchar contend that the defendants assisted US officials to kidnap, detain and torture them in Malaysia and Thailand, and to take them to Libya, in order for them to be detained and tortured there by Libyan officials. It is not suggested (at least at this stage of the proceedings) that the alleged detention, kidnapping and torture in Malaysia or Thailand or the alleged rendition to Libya were lawful in Malay or Thai law, or that the alleged rendition was lawful in US law, or that the subsequent detention and torture in Libya were lawful in Libyan law. They were executive actions by members of the executive of the governments of the US and Libya, and it appears, to some extent, members of the executive of the governments of Malaysia and of Thailand. In my view, at least on the evidence available so far, and in agreement with Lord Mance and Lord Sumption, the acts complained of by Mr Belhaj and Mrs Boudchar do not fall within the third rule. There is no suggestion that there was some sort of formal or high level agreement or treaty between any of the states involved which governed the cooperation between the executives of the various countries concerned. As already mentioned, the mere fact that officials of more than one country cooperate to carry out an operation does not mean that the third rule can be invoked if that operation is said to give rise to a claim in domestic law. It would be positively inimical to the rule of law if it were otherwise. Having said that, even if the third rule otherwise applied, I would still hold that this was a case where, assuming that the claimants were detained, kidnapped and tortured as they allege, the public policy exception would apply. In that connection, Lord Sumptions impressive analysis of the relevant international law is important in the present context because I consider that any treatment which amounts to a breach of jus cogens or peremptory norms would almost always fall within the public policy exception. However, as explained above, because the Doctrine is domestic in nature, and in agreement with Lord Mance and Lord Sumption, I do not consider that it is necessary for a claimant to establish that the treatment of which he complains crosses the international law hurdle before he can defeat a contention that the third rule applies. Given that the third rule does not apply, I consider that it is clear that the Doctrine cannot be relied on as against Mr Belhaj and Mrs Boudchar, and the first rule plainly does not apply. As to the second rule, I consider that it cannot be relied on because (i) the alleged wrong doing involves harm to individuals and not property, and (ii) the public policy exception would anyway apply, as it would in relation to the third rule. The position of Mr Rahmatullah is arguably a little more nuanced. Although I accept that there is an argument to the contrary, at the moment it does not seem to me that his treatment by the US authorities should be treated as having taken place within the US jurisdiction, because it was within the Afghan jurisdiction. Quite apart from this, Mr Rahmatullahs allegations involve physical and mental harm. Accordingly, for each of those two reasons, the second rule is not engaged. However, because the defendants were apparently acting pursuant to the MoU between the UK and US governments, there is an argument that, unlike in the case of Mr Belhaj and Mrs Boudchar, the third rule is engaged. I was initially inclined to think that that argument may be a good one. However, I have come to the conclusion that the third rule does not apply in relation to Mr Rahmatullah. As Lord Mance says, the existence and terms of the MoU do not bear on the allegations which are of complicity in unlawful detention and ill treatment. In any event, even if that is wrong and the third rule was engaged, I consider that Mr Rahmatullah could rely on the public policy exception, essentially for the reasons given by Lord Sumption. To be held without charge or trial for ten years, particularly when coupled with significant mistreatment (even if it did not amount to torture) is sufficient to take Mr Rahmatullahs case into the public policy exception, bearing in mind the severity and flagrancy of the alleged interference with his rights, and the length of time for which it allegedly lasted. Conclusion Accordingly, I would dismiss the defendants appeals in so far as they contend that the courts below held that their defences of state immunity and foreign act of state in each of the two actions must be rejected. LADY HALE AND LORD CLARKE: We agree with the reasoning and conclusion in the judgment of Lord Neuberger. The defences of state immunity and foreign act of state do not apply at all in the two cases before us. This is also the conclusion reached by Lord Mance for essentially the same reasons. It is not necessary for us to express a view on other issues which do not strictly arise for decision in these cases. LORD SUMPTION: (with whom Lord Hughes agrees) Introduction These appeals raise questions of some constitutional importance concerning the ambit of the act of state rule. They arise from allegations that British officials were complicit in acts of foreign states constituting civil wrongs and in some cases crimes and breaches of international law. Yunus Rahmatullah is a national of Pakistan. He was detained in Baghdad in February 2004 by British forces, on suspicion of being a member of Lashkar e Taiba, a terrorist organisation based in Pakistan with links to Al Qaeda. At the time of his detention, the United Kingdom and the United States were occupying powers in Iraq. British forces were part of a multinational force responsible for the security and stabilisation of the country under Resolution 1511/2002 of the Security Council of the United Nations. They were deployed primarily in a designated area of south eastern Iraq, but Mr Rahmatullah was detained outside that area in a sector under the control of the United States. Accordingly, on the day after his detention he was transferred to United States custody under the terms of a Memorandum of Understanding concerning the custody of detainees, which had been agreed between the two occupying powers. The United States removed him shortly afterwards to Bagram airbase in Afghanistan, where he was detained for more than ten years without charge or trial, before he was finally released in May 2014. Mr Rahmatullah alleges that while in the custody of British and American forces he was subjected to torture and other serious mistreatment. The present appeal is not concerned with any mistreatment that may have occurred while Mr Rahmatullah was in British custody. It is concerned only with his case that the United Kingdom is responsible for the acts of United States personnel during the period when he was in their custody. He claims damages from the British government on the ground (i) that his treatment by US personnel was part of a common design or concerted course of action between Britain and the United States, (ii) that United States personnel were in the relevant respects agents of the United Kingdom, and (iii) that the United Kingdom knew or should have known that if delivered into the custody of United States forces he was liable to be unlawfully rendered to other countries, and unlawfully detained, tortured and otherwise mistreated. We are told that Rahmatullah is representative of many hundreds of claims in the High Court in which the same legal issues arise. Mr Belhaj is a Libyan national. In 2004 he was the leader of the Libyan Islamic Fighting Group, an organisation opposed to the government of Colonel Gaddafi, which is alleged to have been a terrorist organisation at the relevant time. He led an attempted uprising against the Gaddafi regime in 1998, and fled the country when it was suppressed. Mrs Boudchar, his wife, is a Moroccan national. In February 2004 Mr Belhaj and Mrs Boudchar were living in China but wished to come to the United Kingdom to claim asylum. They allege that Chinese officials detained them at Beijing airport as they were about to board a flight to London, and later put them on a flight to Kuala Lumpur in Malaysia. There, they were held for two weeks by the Malaysian authorities. They were then allowed to leave for the United Kingdom but were required to go via Bangkok. On 7 March 2004 they were put on a commercial flight to London via Bangkok. At Bangkok they were taken off the aircraft by Thai officials and delivered to agents of the United States. At some time in the next two days they were flown to Libya in a US registered aircraft said to have been owned by a CIA front company. In Libya, they were taken to Tajoura prison. Mrs Boudchar was released in June 2004 after being held there for rather more than three months. Mr Belhaj was held successively at Tajoura and Abu Salim prisons for six years before being released in March 2010. It is alleged that they were tortured and subjected to other serious mistreatment by US officials in Bangkok and in the aircraft carrying them to Libya, and by Libyan officials in Libya. The claimants at one stage relied upon mistreatment by the Chinese authorities, but they no longer do so. The present proceedings are brought in support of a claim for damages against a number of departments and officials of the British government who are said to have been complicit in what happened to them. The defendants include the intelligence services, the departments of state responsible for them, the then Foreign Secretary Mr Straw, and Sir Mark Allen, who is said to have been a senior official of the Secret Intelligence Service. The case against them is that the SIS, having learned that Mr Belhaj and Mrs Boudchar were being detained in Malaysia, passed the information to the Libyan intelligence services and assisted the rendition flight with transit facilities at the British owned but American operated base at Diego Garcia in the Indian Ocean. It is not alleged that British officials were directly involved in the rendition, torture or mistreatment of the claimants. But it is said that they enabled it to happen, knowing of the risk that the defendants would be unlawfully detained, tortured and otherwise mistreated by the Americans and the Libyans. It is also alleged that British officials took advantage of Mr Belhajs detention in Libya by interrogating him there at least twice. The defendants, it is said, thereby incurred liability in tort. Both claims were pleaded by reference to English law. But it is now common ground that any liability in tort is governed by the law of the countries where they occurred, ie successively Malaysia, Thailand and Libya, and (in respect of what happened outside those countries on a US registered aircraft), the United States. It is important to draw attention to the limited character of the issues presently before the Court. The allegations of fact summarised in the two preceding paragraphs are taken from the pleadings. They are no more than allegations. None of them has been proved. The present appeals are concerned with the question whether they would give rise to a cause of action if they were true. That turns on three issues: (i) whether the claims against the British government and its officials indirectly implead Malaysia, Thailand, Libya and the United States, so as to be barred by state immunity; (ii) whether the tortious acts alleged are non justiciable or non actionable as acts of state of those countries; and (iii) if the claim is barred or non justiciable as a matter of domestic law, whether that is consistent with article 6 of the European Convention on Human Rights. In Belhaj, Simon J held that there was no state immunity but that the claims were barred as being based on foreign acts of state. He rejected the argument that this outcome was inconsistent with article 6 of the Convention. The Court of Appeal affirmed the judgment on state immunity and accepted that the act of state doctrine was engaged. But it allowed the appeal on the ground that the act of state doctrine was subject to (i) a limitation to acts of state occurring within the jurisdiction of the state in question, and (ii) an exception on the ground of public policy for grave violations of human rights. In Rahmatullah, Leggatt J also rejected the argument based on state immunity. He, however, took a more radical approach to the foreign act of state doctrine, holding that it was not engaged at all. He then made a leap frog order with a view to enabling the case to be considered by this court together with Belhaj. State Immunity State immunity is a rule of customary international law which requires states to accord each other immunity from the jurisdiction of their domestic courts in respect of their sovereign acts (acts jure imperii). In Jurisdictional Immunities of the State (Germany v Italy, Greece intervening) [2012] ICJ Rep 99, the International Court of Justice held that the rule derived from the principle of the sovereign equality of states, which was one of the fundamental principles of the international legal order (para 57). In the United Kingdom, effect was given to the rule of international law by the common law for some three centuries before it became statutory with the enactment of the State Immunity Act 1978. Section 1(1) of that Act provides that a state is immune from the jurisdiction of the courts except in cases specified by the Act. For this purpose, a state includes the sovereign or other head of state in his public capacity, the government of that state and any department of that government: see section 14(1). The same immunity is conferred on a separate entity, in respect of anything which it does in the exercise of sovereign authority, if the circumstances are such that a state would have been immune: section 14(2). The statutory exceptions are for proceedings relating to private, as opposed to sovereign or public acts. They relate broadly to commercial transactions, and other transactions in which a state engages otherwise than in the exercise of sovereign authority: sections 3 11. All of these exceptions depend for their application on the nature or subject matter of the action. To that extent it may be described as a subject matter immunity. But the basic rule, subject to the exceptions, is that state immunity is a personal immunity from the exercise of jurisdiction, which depends upon the identity of the person sued. As a matter of both international and domestic law, the categorisation of an act as sovereign depends on its character, not its purpose or underlying motive: see Playa Larga (Owners of Cargo lately laden on board) v I Congreso del Partido (Owners) [1983] AC 244, 262 267 (Lord Wilberforce), where the national and international authorities are reviewed. Lord Wilberforce formulated the test as follows, at p 267: in considering under the restrictive theory whether state immunity should be granted or not, the court must consider the whole context in which the claim against the state is made, with a view to deciding whether the relevant act(s) upon which the claim is based, should, in that context, be considered as fairly within an area of activity, trading or commercial, or otherwise of a private law character, in which the state has chosen to engage, or whether the relevant act(s) should be considered as having been done outside that area, and within the sphere of governmental or sovereign activity. By this standard there can be no real doubt that the acts alleged against the relevant foreign governments in these cases were sovereign acts, whether they were lawful or not. If Malaysia, Thailand, Libya and the United States had been sued, they would have been immune. However, they have not been sued. Only the government and agents of the United Kingdom have been. They accept that state immunity is not available to them, but none the less invoke it on the basis that the issues engage the interests of the other states. Their argument is based on the very limited categories of cases in which state immunity may apply notwithstanding that the relevant foreign state is not itself a party. Two such categories are well established in English law. The first, which does not arise in these appeals, is the case of a civil claim against an employee or other agent of a state in respect of acts which are attributable in international law to that state. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia (Secretary of State for Constitutional Affairs intervening) [2007] 1 AC 270, the House of Lords held that the agent was entitled to immunity on the same basis as his principal. This is because so far as the agents of a state act in their public capacities, they are identified with the state in international law, so that references in the Act to a state must be construed to include any individual representative of the state acting in that capacity: para 69 (Lord Hoffmann), cf para 10 (Lord Bingham). The second case comprises actions in which a state, without being a party, is said to be indirectly impleaded because some relevant interest of that state is directly engaged. In England, the only cases in which a foreign state has been held to be indirectly impleaded in this way are those involving the assertion of some right over property of that state situated within the jurisdiction of the English courts. The paradigm case of indirect impleader, and the earliest to be considered by the English courts, is an Admiralty action in rem against a state owned ship. During the period when the United Kingdom applied the absolute doctrine of state immunity it was established that an action in rem against a state owned ship was barred by state immunity. The principle, adapted to reflect the restricted doctrine of state immunity, is now embodied in section 10 of the State Immunity Act. The reason is that an action in rem is in reality an action against the ships owner, although the owner is not named. Thus the action may be brought only if at the time when the cause of action arose the owner would have been liable in personam; in current practice it may be brought against a ship in respect of a liability arising in connection with another ship under the same ownership. A defendant who appears to the writ in rem thereby becomes liable in personam even if he would not otherwise have been. In The Parlement Belge (1880) 5 PD 197, Brett LJ, delivering the judgment of the court, said at pp 218 219: In a claim made in respect of a collision the property is not treated as the delinquent per se. Though the ship has been in collision and has caused injury by reason of the negligence or want of skill of those in charge of her, yet she cannot be made the means of compensation if those in charge of her were not the servants of her then owner, as if she was in charge of a compulsory pilot. This is conclusive to shew that the liability to compensate must be fixed not merely on the property but also on the owner through the property. If so, the owner is at least indirectly impleaded to answer to, that is to say, to be affected by, the judgment of the court To implead an independent sovereign in such a way is to call upon him to sacrifice either his property or his independence. To place him in that position is a breach of the principle upon which his immunity from jurisdiction rests. We think that he cannot be so indirectly impleaded, any more than he could be directly impleaded. The case is, upon this consideration of it, brought within the general rule that a sovereign authority cannot be personally impleaded in any court. Although the expression indirect impleader has passed into common usage, the truth is that proceedings in rem against property are a form of direct impleader, as Lord Wright pointed out in The Cristina [1938] AC 485, at p 505. The principle that a state is impleaded by proceedings against its property is, however, based on more than the technicalities of Admiralty procedure. It reflects the broader rule that if the relief claimed would directly affect a foreign states interest in property, it makes no difference whether the action is framed in rem or in personam, and no difference whether it is brought against the state or someone else who is in possession or control of the property. In United States of America v Dollfus Mieg et Cie SA [1952] AC 582, gold bars had been looted by German troops in 1944 from a French bank which was holding them for Dollfus Mieg & Cie. They were recovered by allied forces in Germany and lodged with the Bank of England by a Tripartite Commission comprising the governments of Britain, France and the United States to await the Commissions decision upon their ultimate disposal. Accordingly the allied governments had no beneficial interest in the gold but an immediate right to possession as against the Bank. Dollfus Mieg brought a personal action against the Bank, claiming delivery of the bars still in its possession or damages for the Banks act in converting the bars by refusing delivery. The House of Lords held that the action against the Bank for specific delivery of the gold was barred by state immunity. Earl Jowitt considered (p 604) that the two foreign states were neither directly nor indirectly impleaded, but that state immunity should be extended to apply to actions against a states bailee. He did not expand on the reasons for that extension, but appears to have regarded it as a principle sui generis rather than an illustration of some broader rule. It is, however, clear that this was not the view taken by his colleagues. Lord Porter pointed out (p 612) that chattels and other personal property must necessarily be held by states through servants or agents and that bailees were on the same footing as agents. In other words, the Bank was to be identified with the three governments so far as it acted as their bailee. Lord Oaksey (p 614) agreed with Lord Porter. Lord Tucker (pp 621 622) took the same view. Lord Radcliffe, whose analysis is the most complete, approved the statement in the then current edition of Diceys Conflict of Laws that any action or proceeding against the property of [a foreign sovereign] is an action or proceeding against such person (p 616). In his view the merit of the rule thus stated was that it does make it clear that the property of a sovereign enjoys no immunity in legal proceedings except in so far as those proceedings amount in one way or another to a suit against a sovereign. This left unresolved the alternative claim against the Bank in its own right for damages for conversion. Lord Radcliffe rejected that claim also, on the ground that upon discharging any liability for conversion, the Bank would become entitled to set up the plaintiffs title against his bailor. In other words the courts judgment would materially affect the existing right of his bailor in respect of the possession and disposal of the chattel: pp 619 620. Similar issues arose in Rahimtoola v Nizam of Hyderabad [1958] AC 379. The Nizam sued the former High Commissioner of Pakistan in the United Kingdom, who had received a sum of money paid out of the Nizams account by a signatory during the Indian invasion of Hyderabad. It was held that the action was barred. The critical point was the capacity in which the High Commissioner had acted. The Court of Appeal had decided that no question of state immunity arose because the High Commissioner was only an agent of the state of Pakistan. In the House of Lords that decision was reversed, but there are some differences in the reasoning of the appellate committee. In my view, the correct analysis was that of Viscount Simonds, who thought that as an agent of Pakistan for the purpose of receiving the money, the High Commissioner was in the relevant respect to be identified with Pakistan. Like Lord Radcliffe in Dollfus Mieg, he approved the rule stated in Dicey (pp 393 394), observing: No doubt, if a defendant, by whatever name he is called, can be identified with the sovereign state, his task is easy: he need prove no more in order to stay the action against him. But, as soon as it is proved that quoad the subject matter of the action the defendant is the agent of a sovereign state, that, in other words, the interests or property of the state are to be the subject of adjudication, the same result is reached. Accordingly, he treated an action to assert a proprietary right in assets under the control of a state as a mode of impleading that state. Addressing an argument that Pakistan held the money in trust for the Nizam or as money had and received to his use, he added at p 397 These are matters which directly concern the principal on whose behalf Rahimtoola received the money. They cannot be determined without impleading him. Therefore they cannot be determined at all. This principle is now implicitly reflected in section 6(4) of the State Immunity Act, which provides that a court may entertain proceedings against a person other than a state relating to property in the possession or control of a state, or in which a state claims an interest, if the state would not have been immune had the proceedings been brought against it. In these cases, English and international law treated a claim against a states property as tantamount to a claim against the state. The appellants argue that the true rationale of this rule is broader than this. It is, they submit, that a state is to be treated as indirectly impleaded in any case where the issues would require the court to adjudicate on its legal rights or liabilities, albeit as between other parties. Two matters in particular are urged in support of this argument. The first is that it is said that an analogous principle is applied as a matter of international law by tribunals of international jurisdiction. The second is that the extension for which they contend is recognised in the current draft convention adopted by the United Nations for codifying the international law of state immunity. In both cases, the argument is that English law should conform to the principles of international law which underlie the domestic doctrine of state immunity. In support of the first point, the appellants rely on two decisions of the International Court of Justice, Monetary Gold Removed from Rome (1954) ICJ Rep, p 19 and East Timor (Portugal v Australia) (1995) ICJ Rep, p 90. The jurisdiction of the International Court over states is founded on their agreement to submit, either specifically in relation to a particular dispute or generally in relation to certain categories of dispute. In both of these cases the Court declined to decide an issue as between the parties because it affected the rights of a non party state. Monetary Gold concerned a claim by the United Kingdom to apply Albanian gold stored at the Bank of England towards satisfaction of a judgment which it had previously obtained from the Court against Albania. A competing claim had been made by Italy to apply the same gold in satisfaction of its own claims against Albania. Italy, however, had no judgment. The court declined to decide the issue as between the United Kingdom and Italy because it could not do so without deciding whether Italys claims against Albania were well founded, something that it could not do in litigation to which Albania was not a party. Giving its reasons at pp 32 33, the court observed: In the present case, Albanias legal interests would not only be affected by a decision, but would form the very subject matter of the decision. It is true that, under article 59 of the Statute, the decision of the court in a given case only binds the parties to it and in respect of that particular case. This rule, however, rests on the assumption that the court is at least able to render a binding decision. Where, as in the present case, the vital issue to be settled concerns the international responsibility of a third state, the court cannot, without the consent of that third state, give a decision on that issue binding upon any state, either the third state, or any of the parties before it. East Timor concerned a claim by Portugal that Australia had not been entitled to conclude a treaty with Indonesia relating to the exploitation of certain natural resources of East Timor, a Portuguese territory which had been occupied by Indonesia since 1975. Indonesia was not a party. The Court applied the Monetary Gold principle. It declined to entertain the dispute because it could not do so without adjudicating in the absence of Indonesia on the lawfulness of its occupation and its right to make treaties concerning the natural resources of East Timor. As the Court pointed out in Monetary Gold (p 32), the underlying principle is that a court can only exercise jurisdiction over a state with its consent. But the point about both of these cases was that the decision would have involved an exercise of jurisdiction over a non party state without its consent. This was because the resolution of the dispute as between the parties might have conferred upon at least one of them an international right at the expense of the non party. In Monetary Gold, the resolution of the issue in favour of Italy would have enabled Italy to satisfy its claim against Albanias gold, leaving Albania to satisfy the United Kingdoms judgment from other assets. In East Timor, the resolution of the issue in favour of Portugal, by binding Australia, would have prevented Australia from implementing its treaty with Indonesia and Indonesia from concluding any other treaty with Australia in right of East Timor. Both cases had two features which in combination account for the outcome. First, the rights or liabilities of the non party state were the very subject matter of the dispute between the parties. Secondly, although the judgment would have bound only the parties, each of the parties would have been bound to deal with the non party in accordance with it. Even on the assumption (and it is a large one) that the principle applied in these cases can readily be transposed to the domestic law plane, the mere fact that the rights or liabilities of the non party were in issue would not be enough. Turning to the appellants second argument, the United Nations Convention on Jurisdictional Immunities of States and their Property (2004) is an attempt to codify the international law of state immunity. It was drafted by the International Law Commission of the United Nations between 1977 and 2004. The final document was adopted by the General Assembly of the United Nations in December 2004. It will enter into force when 30 states have ratified it. As yet, however, it has been signed by only 31 states and ratified by only 19, not including the United Kingdom. Notwithstanding its uncertain status as a treaty, it has been regarded as an authoritative statement of customary international law. In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, supra, at para 8, Lord Bingham endorsed the view expressed by Aikens J in AIG Capital Partners Inc v Republic of Kazakhstan [2006] 1 WLR 1420 (para 80) that the Convention powerfully demonstrates international thinking. Article 1 of the Convention recites that it applies to the immunity of a state and its property from the jurisdiction of the courts of another state. Article 6 of the Immunities Convention provides: 1. A State shall give effect to State immunity under article 5 by refraining from exercising jurisdiction in a proceeding before its courts against another State and to that end shall ensure that its courts determine on their own initiative that the immunity of that other State under article 5 is respected. 2. A proceeding before a court of a State shall be considered to have been instituted against another State if that other State: is named as a party to that proceeding; or (a) (b) is not named as a party to the proceeding but the proceeding in effect seeks to affect the property, rights, interests or activities of that other State. Article 6(2)(b) incorporates the concept of indirect impleader. The appellants rely for their case on the breadth of the concluding words of paragraph (2)(b), and notably the extension of the concept beyond a states property or rights, to its interests and activities. There was an issue before us about how far these expressions can be said to represent the current consensus of nations. Certainly, comments in the course of the drafting suggest that some states considered the final words to be too broad. It is, however, unnecessary to resolve this question, because the scope of the final words of article 6(2)(b) are plainly limited by their context. Article 6(2)(b) is concerned only with cases where the proceedings seek to affect the property, rights, interests or activities of a state. It is difficult to envisage a case where this would be true, unless it related to property within the jurisdiction of the domestic forum in which the foreign state had an interest, especially in the context of a Convention which is expressly concerned only with the immunity of the state eo nomine and its property (see article 1). An examination of the travaux confirms this. The most illuminating document is the International Law Commissions report to the General Assembly of 1991, which includes a commentary on article 6: see Yearbook of the International Law Commission, 1991, ii(2), 23 25. This describes the genesis of article 6(2)(b) in domestic court decisions about state owned property. It records that the word affect was used in order to avoid appearing to create too loose a relationship between the proceedings and their consequences. And the discussion of its meaning relates wholly to actions involving seizure or attachment of public properties or properties belonging to a foreign state or in its possession or control: see paras 11 13 of the commentary under article 6. The essential point about the property cases is that they have the potential directly to affect the legal interests of states notwithstanding that they are not formally parties. In the case of an action in rem, this is obvious. The courts decision binds all the world. But although perhaps less obvious it is equally true of an action in personam, where the court is asked to recognise an adverse title to property in someone else or award possession of property as of right to another. As Lord Porter and Lord Radcliffe put it in Dollfus Mieg (pp 613, 616) the law cannot consistently with the immunity of states require a state to appear before a domestic court as the price of defending its legal interests. None of this reasoning, however, applies in a case where the foreign state has no legal interest to defend because the courts decision in its absence cannot directly affect its legal interests. I would not altogether rule out the possibility that litigation between other parties might directly affect interests of a foreign state other than interests in property. But, as I have observed, it is not easy to imagine such a case. The appellants argument is in reality an attempt to transform a personal immunity of states into a broader subject matter immunity, ie, one which bars the judicial resolution of certain issues even where they cannot affect the existence or exercise of a states legal rights. No decision in the present cases would affect any rights or liabilities of the four foreign states in whose alleged misdeeds the United Kingdom is said to have been complicit. The foreign states are not parties. Their property is not at risk. The courts decision on the issues raised would not bind them. The relief sought, namely declarations and damages against the United Kingdom, would have no impact on their legal rights, whether in form or substance, and would in no way constrict the exercise of those rights. It follows that the claim to state immunity fails. Act of state: foundations In Nissan v Attorney General [1970] AC 179, 211 212, Lord Reid observed: I think that a good deal of the trouble has been caused by using the loose phrase act of state without making clear what is meant. Sometimes it seems to be used to denote any act of sovereign power or of high policy or any act done in the execution of a treaty. That is a possible definition, but then it must be observed that there are many such acts which can be the subject of an action in court if they infringe the rights of British subjects. Sometimes it seems to be used to denote acts which cannot be made the subject of inquiry in a British court. But that does not tell us how to distinguish such acts: it is only a name for a class which has still to be defined. The first task of a court dealing with a contention that the act of state doctrine applies is to clarify what is meant by an act of state, and what legal consequences follow from this categorisation. The act of state doctrine comprises two principles. The first can conveniently be called Crown act of state and does not arise in the present cases. It is that in an action based on a tort committed abroad, it is in some circumstances a defence that it was done on the orders or with the subsequent approval of the Crown in the course of its relations with a foreign state. The second, commonly called foreign act of state, is that the courts will not adjudicate upon the lawfulness or validity of certain sovereign acts of foreign states. For this purpose a sovereign act means the same as it does in the law of state immunity. It is an act done jure imperii, as opposed to a commercial transaction or other act of a private law character. These are distinct principles, although they are based on certain common legal instincts. Unlike state immunity, act of state is not a personal but a subject matter immunity. It proceeds from the same premise as state immunity, namely mutual respect for the equality of sovereign states. But it is wholly the creation of the common law. Although international law requires states to respect the immunity of other states from their domestic jurisdiction, it does not require them to apply any particular limitation on their subject matter jurisdiction in litigation to which foreign states are not parties and in which they are not indirectly impleaded. The foreign act of state doctrine is at best permitted by international law. It is not based upon it: see Carreau & Marrella, Droit International, 11th ed (2012), 701; Weil, Le controle par les tribunaux nationaux de la licit des actes des gouvernements trangers, Annuaire franais de droit international, 23 (1977), 16, 30. The policy which the foreign act of state doctrine reflects does, however, have partial analogues in the municipal law of a number of civil law jurisdictions, subject in some cases to extensive public policy exceptions. The question has generally arisen in the context of foreign legislative expropriations. These might have been recognised in other countries on the basis that the passing of property is governed by the lex situs. In fact, however, they are recognised in some civil law countries on the basis that they are acts of state beyond challenge in the domestic courts of another country. The French courts in particular have proceeded in these cases upon a principle based on a lack of competence or jurisdiction to rule on the legality of foreign acts of state, which is quite distinct from the corresponding principle (acte de gouvernement) relating to acts of the French government in the conduct of its foreign relations: see Larrasquitu et l'Etat Espagnol v Socit Cementos Rezola (Cour dAppel de Poitiers, 20 December 1937), (1938) 8 ILR 196 (the French jurisdiction is incompetent to consider the regularity of the act of a foreign sovereign, for that would be to judge that act); Martin v Banque d'Espagne (Cour de Cassation, 3 November 1952) (1952) ILR 202 (the acts in question, even apart from the principle of immunity from jurisdiction, were public acts which are not subject to judicial control in France); Epoux Reynolds v Ministre des Affaires Etrangres (Tribunal de Grande Instance de la Seine, 30 June 1965) (1965) 47 ILR 53 (a French court has no jurisdiction to adjudicate on the legality of that measure). The principle is thus expressed in terms which are not confined to expropriation cases, and it has in fact been applied more widely, notably in a well known decision of the Cour de Cassation in a case involving the lawfulness of the act of a foreign state in deporting a criminal suspect to France: In re Illich Ramirez Sanchez (Cour de Cassation, 21 February 1995) ECLI:FR:CCASS:1995:CR06093). So also the courts of the Netherlands: Petroservice & Credit Minier Franco Roumain v El Aguila (Ct App, The Hague, 4 December 1939), (1939) 11 ILR 17 (A Dutch Court is obliged to refrain from entering into an independent examination of the validity or invalidity of public acts of a foreign government); Bank Indonesia v Senembah Maatschappij and Twentsche Bank NV (1959) 30 ILR 28 (Court of Appeal of Amsterdam, 4 June 1959) (as a rule, a Court will not, and should not, sit in judgment on the lawfulness of acts jure imperii performed by, or on behalf of, a foreign Government, except in cases of flagrant conflict with international law). Like the French courts, the Dutch courts have applied the same principle in contexts other than expropriation, for example in addressing allegations of complicity by Dutch companies in the military operations of a foreign state: Republic of South Moluccas v Royal Packet Shipping Co (Amsterdam Court of Appeal, 8 February 1951) (1951) 17 ILR 150. German law, on the other hand, arrives at a similar result, by reference to a special rule based on the autonomy of states acting within their own territory: Unification Treaty Constitutionality Case, Bundesverfassungsgericht, judgment of 23 April 1991, 94 ILR 42. The German courts appear to have rejected any more general principle limiting the subject matter jurisdiction of the courts over issues incidentally requiring a determination of the lawfulness or validity of a foreign states sovereign acts: Kunduz, Oberlandsgericht Kln, judgment of 30 April 2015, AZ 7 U 4/14, para 17. In none of these jurisdictions does the question appear to be governed by ordinary principles of the choice of law. Differences between major civil law jurisdictions means that one cannot attach too much weight to the case law of any one of them. None the less, I find the approach of the French and Dutch courts instructive. It reflects a strong juridical instinct in two jurisdictions with a long standing engagement with international relations, which has an obvious relevance for the United Kingdom. In England, the origin of the foreign act of state doctrine is commonly thought to be the decision of Lord Chancellor Nottingham in Blad v Bamfield (1673) 3 Swan 603; (1674) 3 Swan 604, although this view turns more on his expansive turns of phrase than on anything that he actually decided. The dispute arose out of the volatile relations between England and Denmark in the second half of the 17th century. Peter Blad appears to have been the holder of a patent of monopoly from the King of Denmark to trade in Iceland, then a Danish possession. Bamfield was an Englishman whose property was seized on the high seas in 1668 by the authority of the Danish Crown and forfeited by the Danish courts, on the ground that he had been fishing off Iceland in breach of the monopoly. Some years later, Blad made the mistake of visiting England. Bamfield sued him at law, contending that the monopoly was illegal and invalid since it was contrary to a right to trade which had in practice been recognised by Denmark for 50 years before the seizure. Blad contended that he could not be liable because the seizure was an act of state. He initially complained to the Privy Council on the ground that as an act of state it was susceptible of relief only by diplomatic means. Lord Nottingham, who was sitting on the Council, stood up and said this was not a question of state, but of private injury, and suggested that the matter should properly be brought before the Court of Chancery. But when the case came before him in chancery, Lord Nottingham changed his mind. This was because Bamfield was now contending that reliance on the Danish letters patent was precluded by the terms of the Anglo Danish commercial treaty of 1670. This, he said, made all the difference: it is very true that this cause was dismissed from the council board being not looked on there as a case of state, because for aught appeared to them, it might be a private injury, and unwarrantable, and so fit to be left to a legal discussion. But now the very manner of the defence offered by the defendant had made it directly a case of state; for they insist upon the articles of peace to justify their commerce, which is of vast consequence to the public; for every misinterpretation of an article may be the unhappy occasion of a war. Nottingham restrained Bamfields action at law on the ground that to send it to a trial at law, where either the court must pretend to judge of the validity of the Kings letters patent in Denmark or of the exposition and meaning of the articles of peace; or that a common jury should try whether the English have a right to trade in Iceland, is monstrous and absurd. What barred Bamfields case was his reliance on a treaty as invalidating a legal instrument of the Danish Crown relating to commercial operations in a Danish possession. In a later age it would have been held that a treaty operated only on the plane of international law, and could not give rise to private rights in a citizen. But Lord Nottinghams concern was a different one. He was simply expressing the view, which was still commonly expressed long after his day, that a domestic court was incompetent to construe a treaty. Nabob of the Carnatic v East India Co (1793) 2 Ves Jun 56 arose out of the East India Companys controversial relations with the Nabob at a stage when the courts had not yet learned to identify the East India Company with the British government. The companys dealings with the Nabob are the subject of some of Edmund Burkes most famous Parliamentary orations. The facts, in summary, were that the Company had assisted the Nabob, a sovereign ruler, in his wars against neighbouring princes. The Nabob had thereby incurred large debts to them, secured on his public revenues and on part of his territory. The Nabob alleged that they had taken more than he owed them, and sued for an account. The company, although a private person in respect of its trading activities, was treated as a sovereign in relation to its operations as the ruler of a large part of India. The commissioners discharging the office of Chancellor dismissed the claim (p 60): It is a case of mutual treaty between persons acting in that instance as states independent of each other; and the circumstance, that the East India Company are mere subjects with relation to this country, has nothing to do with that. That treaty was entered into with them, not as subjects, but as a neighbouring independent state, and is the same, as if it was a treaty between two sovereigns; and consequently is not a subject of private, municipal, jurisdiction. Dobree v Napier (1836) 2 Bing NC 781 marked an important development of the law. It arose out of the civil wars of Portugal in the 1830s. The plaintiffs steamship Lord of the Isles was captured on the high seas in 1833 while trying to run warlike stores through a blockade of the Portuguese coast maintained by warships loyal to Queen Maria II. The ship was subsequently forfeited by a Portuguese prize court. The Queens admiral happened to be a British subject, the adventurer Sir Charles Napier (not to be trusted except in the hour of danger), and upon his return home he was sued in the Kings Bench for trespass. Tindal CJ dismissed the action. The main reason was that the decree of the prize court was a judgment in rem and conclusive. But he went on to reject an argument to the effect that having entered Portuguese service in breach of the Foreign Enlistment Act 1819, Napier was disabled from relying on the authority of the Queen of Portugal or the decision of her prize courts. He did so on the ground that a breach of the Act could not render the acts of the Portuguese state justiciable: no one can dispute the right of the Queen of Portugal, to appoint in her own dominions, the defendant or any other person she may think proper to select, as her officer or servant, to seize a vessel which is afterwards condemned as a prize; or can deny, that the relation of lord and servant, de facto, subsists between the queen and the defendant Napier. For the Queen of Portugal cannot be bound to take any notice of, much less owe any obedience to, the municipal laws of this country For as we hold that the authority of the Queen of Portugal to be a justification of the seizure as prize, there is as little doubt but that she might direct a neutral vessel to be seized when in the act of breaking a blockade by her established, which is the substance of the first special plea, or of supplying warlike stores to her enemies, which is the substance of the second. (pp 796 798) The decision on this last point was approved by the House of Lords in Carr v Fracis Times & Co [1902] AC 176. Lord Halsbury LC analysed the case as follows, at pp 179 180: There, it was an act of state done by command of the Portuguese Crown and done by an English subject. It was an a fortiori case; the act done by the English subject was an act which he was by English law prohibited from doing; to the plea that it was done by the authority of the Portuguese Crown, there was a replication that he was forbidden by the Foreign Enlistment Act to take that part in the proceedings which he was proved to have taken; nevertheless, the judgment of the Court held that that was a perfectly lawful proceeding, that it was an act of State, that it was authorized by the Portuguese Crown, and no action would lie in this country against an English subject who participated in it. The essential point was that the blockade was, as a matter of international law, a sovereign act of Portugal in the conduct of its relations with the rest of the world, in particular those nations who might, or whose subjects might, seek to run the blockade in support of the Queen of Portugals domestic enemies. Duke of Brunswick v King of Hanover (1848) 2 HLC 1 marked another milestone in the development of this area of the law, not only in England but in the United States, where it would later serve as the point of departure for adoption of the foreign act of state doctrine into their law. The background to this celebrated decision was a revolution in the German state of Brunswick which overthrew the government of the feckless and despotic Duke Charles in 1830. In accordance with a power conferred on them by the Diet of the German Confederation, HM William IV of England, in his separate capacity as King of Hanover, and the deposed Dukes brother William, subsequently joined in two public instruments. The first, of 1831, purported to depose Charles in favour of William. The second, of 1833, purported to deprive him of his assets in Brunswick, France, England and elsewhere for his own protection and vest them in the Duke of Cambridge as guardian. In 1843 Charles brought an action in Chancery against the current guardian, who was HM William IVs successor as King of Hanover, for an account of his dealings with the property on the footing that these transactions were contrary to the law of Hanover and void. The bill was dismissed by Lord Langdale MR for want of equity. His decision was affirmed on different grounds by the House of Lords. The defendant was entitled to state immunity, and parts of the reasoning appear to be based on that ground. But as Lord Wilberforce later observed in Buttes Gas & Oil Co v Hammer [1982] AC 888, 932E F, it also stands as authority for the foreign act of state doctrine, because the ground of the decision was that the decree of the Diet and the two public instruments could not be challenged in an English court. The Lord Chancellor (Cottenham) said, at pp 21 22: If it were a private transaction , then the law on which the rights of individuals may depend might have been a matter of fact to be inquired into, and for the court to adjudicate upon, not as a matter of law, but as a matter of fact. If it be a matter of sovereign authority, we cannot try the fact whether it be right or wrong: The allegation that it is contrary to the laws of Hanover, taken in conjunction with the allegation of the authority under which the defendant had acted, must be conceded to be an allegation, not that it was contrary to the existing laws as regulating the right of individuals, but that it was contrary to the laws and duties and rights and powers of a Sovereign exercising sovereign authority. If that be so, it does not require another observation to shew, because it has not been doubted, that no court in this country can entertain questions to bring Sovereigns to account for their acts done in their sovereign capacities abroad. The rest of the House agreed, Lord Campbell observing at p 26 that even if the Duke of Cambridge, who was not a sovereign, had been sued it would equally have been a matter of state, and at p 27 that the Court of Chancery I presume would not grant an injunction against the French Republic marching an army across the Rhine or the Alps. Secretary of State in Council of India v Kamachee Boye Sahaba (1859) 13 Moo PCC 22 was a case of Crown act of state. The question at issue was the lawfulness of the annexation of the princely state of Tanjore by the East India Company on behalf of the British Crown. However, the Privy Council made no distinction between Crown and foreign act of state for this purpose. Lord Kingsdown, delivering the advice of the Board, formulated the issue (p 77) as being whether the annexation was done under colour of legal right, in which case the existence of that right was a justiciable question, or as an exercise of power, an act not affecting to justify itself on grounds of municipal law, in which case it was an act of state. Holding that it was the latter, Lord Kingsdown said (p 86): Of the propriety or justice of that act, neither the court below/or the Judicial Committee have the means of forming, or the right of expressing if they had formed, any opinion. It may have been just or unjust, politic or impolitic, beneficial or injurious, taken as a whole, to those whose interests are affected. These are considerations into which their Lordships cannot enter. It is sufficient to say that, even if a wrong has been done, it is a wrong for which no municipal court of justice can afford a remedy. In Cook v Sprigg [1899] AC 572 another case of colonial annexation, Lord Halsbury LC expressed the same principle in terms which would subsequently be taken up by Lord Wilberforce in Buttes Gas & Oil Co v Hammer [1982] AC 888, 933F G: It is a well established principle of law that the transactions of independent states between each other are governed by other laws than those which municipal courts administer. In Carr v Fracis Times [1902] AC 176, the captain of HMS Lapwing, acting on the authority of the Sultan of Muscat, seized a cargo of ammunition within the territorial waters of Muscat. The proclamation which authorised the seizure was lawful by the law of Muscat. The case might have been decided on ordinary choice of law grounds. But the Sultans proclamation was challenged on the ground that he had made it under a mistake as to the destination of the cargo. This argument was rejected because, mistaken or not, the proclamation was an act of state. Lord Halsbury LC said, at p 179: It is not an act as between person and person; it is an act of state which the Sultan says authoritatively is lawful; and I cannot doubt that under such circumstances the act done is an act which is done with complete authority and cannot be made the subject of an action here. He went on to say (pp 179 80) that it made no difference that the seizure was carried out by a British naval officer. This was the state of English authority at the time when the foreign act of state doctrine was considered by the courts of the United States in a number of decisions which have proved influential on both sides of the Atlantic. United States cases Although there are, as always, precursors in earlier dicta about related issues, the foreign act of state doctrine in the United States really begins with the decision of the Supreme Court of New York in Hatch v Baez 7 Hun 596 (1876). The issue arose out of a coup d'tat in the Dominican Republic in 1868, which resulted in the deposition of the then President and his replacement by Buonaventura Baez. Hatch, who was living at the time in Dominica, was believed to have supported the old regime. As a result, he was arrested and imprisoned and his goods seized by Baezs soldiery. Some years later, after Baez had left office, he settled in New York and Hatch sued him there for trespass to his person and goods on the footing that these things had been done on his orders. Before the New York Supreme Court, Baez admitted that the New York courts had jurisdiction over him, but pleaded act of state, relying on Duke of Brunswick v King of Hanover. The court dismissed the claim. It observed, at pp 599 600: We think that, by the universal comity of nations and the established rules of international law, the courts of one country are bound to abstain from sitting in judgment on the acts of another government done within its own territory. Each state is sovereign throughout its domain. The acts of the defendant for which he is sued were done by him in the exercise of that part of the sovereignty of St Domingo which belongs to the executive department of that government. To make him amenable to a foreign jurisdiction for such acts, would be a direct assault upon the sovereignty and independence of his country. The only remedy for such wrongs must be sought through the intervention of the government of the person injured. The issue first came before the Supreme Court in Underhill v Hernandez 168 US 250 (1897). This case arose out of another civil war, in Venezuela. General Hernandez had been the local commander of the revolutionary army which enabled Joaquin Crespo to seize power in 1892. Crespos government was subsequently recognised by the United States as the legitimate government of Venezuela. In November 1893, Hernandez was arrested at a New York hotel and required to post a bond to secure damages for false imprisonment, assault and battery, claimed against him in a civil suit brought by Underhill, an American businessman who lived in Venezuela and owned a commercial waterworks in Bolivar. Underhill alleged that Hernandez had refused him a passport to leave the city and had ordered him to be confined to his house, and that his soldiers had assaulted and abused him, all in order to force him to operate his waterworks in the interest of the new regime. The New York judge directed a verdict for Hernandez, on the ground that he had been a military commander representing a de facto government in the prosecution of a war. The case was then removed to the Federal Courts, and the judges decision was upheld by the Second Circuit Court of Appeals, on the ground that the acts of the defendant were the acts of the government of Venezuela, and as such, are not properly the subject of adjudication in the courts of another government. The Supreme Court granted a petition to review the decision and upheld it. The judgment of Chief Justice Fuller began (p 252) by rationalising the act of state doctrine on the same basis as the Supreme Court of New York in Hatch v Baez: Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves. Where a civil war prevails, that is, where the people of a country are divided into two hostile parties, who take up arms and oppose one another by military force, generally speaking foreign nations do not assume to judge of the merits of the quarrel. It is clear that for the court the critical factor was the subsistence of armed hostilities. Hernandez was a military commander representing the authority of the revolutionary party as a government, which afterwards succeeded and was recognized by the United States. In both of these cases, state immunity might have been raised, on the footing that Baez was a former head of state and Hernandez had been acting as an agent of the (subsequently) recognised government of Venezuela. But in both cases, the defendant submitted to the jurisdiction and the matter was dealt with after a trial. Any right to raise state immunity was therefore lost, and foreign act of state was the sole relevant ground of appeal. On the other hand, in Oetjen v Central Leather Co 246 US 297 (1918), state immunity never could have been raised. The case arose out of the Mexican civil war of the early 20th century. In 1914, forces loyal to Venustiano Carranza occupied the town of Torreon and seized a large quantity of hides belonging to one Martinez. Subsequently, after the United States had recognised Carranzas government, Martinezs assignee sued a Texan company to whom the hides had been sold, alleging that the title of the original owner subsisted because the hides had been taken contrary to the Hague Convention respecting the Laws and Customs of War on Land (1907). The court dismissed the suit. It doubted whether the Convention applied to a civil war or whether it prohibited seizures in these circumstances. But in order to provide guidance in similar cases, it preferred to base its decision on the fact that the seizure was an act of state. Having held that the recognition of the Carranza government by the United States meant that it fell to be treated as the government of the state of Mexico, the Court continued at pp 303 304: The principle that the conduct of one independent government cannot be successfully questioned in the courts of another is as applicable to a case involving the title to property brought within the custody of a court, such as we have here, as it was held to be to the cases cited, in which claims for damages were based upon acts done in a foreign country, for it rests at last upon the highest considerations of international comity and expediency. To permit the validity of the acts of one sovereign state to be re examined and perhaps condemned by the courts of another would very certainly imperil the amicable relations between governments and vex the peace of nations. It is not necessary to consider, as the New Jersey court did, the validity of the levy of the contribution made by the Mexican commanding general, under rules of international law applicable to the situation, since the subject is not open to re examination by this or any other American court. The remedy of the former owner, or of the purchaser from him, of the property in controversy, if either has any remedy, must be found in the courts of Mexico or through the diplomatic agencies of the political department of our Government. These cases were decided at a time when the courts of the United States adopted an approach to foreign sovereign acts which was very similar to that adopted in England, and largely influenced by it. They proceed on the footing that the act of state doctrine is based on the same concept as state immunity, viz the equality and autonomy of sovereign states. Like Lord Cottenham in Duke of Brunswick v King of Hanover, the US Supreme Court objected to the concept of a domestic court sitting in judgment upon the acts of another sovereign, even in his absence. More recently, the US Supreme Court in Banco Nacional de Cuba v Sabbatino 376 US 398 (1964), has viewed the act of state doctrine primarily as an aspect of the constitutional separation of powers under the US Constitution and has closely associated it with the political question rule. This has led it to attach greater significance to the views of the executive about the impact that different outcomes would have on US foreign policy, and to adopt a flexible approach to the act of state doctrine depending mainly on the degree of embarrassment that would be caused to the State Department in each case. This development would not be consistent with the accepted principles governing the relations between the courts and the executive in England. English law has continued to act on the original rationale of the US doctrine, and Underhill v Hernandez continues to be cited on this side of the Atlantic as a correct statement of the principle. England: the Russian Revolution cases Johnstone v Pedlar [1921] 2 AC 262 did not involve a foreign act of state. It is the leading modern authority for the proposition that Crown act of state is not a plea available to a defendant in relation to acts done in the United Kingdom, even against aliens. But in the course of distinguishing between Crown and foreign acts of state, Lord Sumner summarised the effect of the latter doctrine as follows, at p 290: Municipal Courts do not take it upon themselves to review the dealings of State with State or of Sovereign with Sovereign. They do not control the acts of a foreign state done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification. Shortly after this statement was made, the principle stated was applied in a series of cases heard after the United Kingdoms recognition of the Soviet government, which arose from the confiscation of private property in Russia in the aftermath of the Russian Revolution. These raised questions very similar to those which had been considered by the courts of the United States. In Aksionernoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532, the stock of the plaintiffs timber mill had been confiscated by a decree of the Russian Republic in June 1918 and sold to the defendants, who subsequently imported it into England. The plaintiffs sued them there for a declaration that the timber remained their property and damages for its conversion. They contended that no effect should be given to the decree of June 1918 because (among other reasons) it was immoral. In the Court of Appeal, all three judges rejected the argument that the decree was immoral. Bankes LJ did so on straightforward choice of law grounds. The passing of property was governed by the lex situs, and the decree was part of that law. No question of its morality arose. But Warrington and Scrutton LJJ rejected it on the ground the decree was an act of state. Warrington LJ thought (pp 548 549) that the decree was entitled to the respect due to the acts of an independent sovereign state, and added that the acts of an independent sovereign government in relation to property and persons within its jurisdiction cannot be questioned in the Courts of this country, citing Oetjen v Central Leather Co. Scrutton LJ thought (pp 558 559) that any criticism of the morality of the decree was the proper function of the executive, not the judiciary. In Princess Paley Olga v Weisz [1929] 1 KB 718, the facts were similar except that the goods in question were works of art forcibly removed from the plaintiffs palace at Tsarskoye Selo. The Court of Appeal again dismissed the claim. All three members of the Court held that effect fell to be given to the decree as part of the lex situs. But they also upheld a distinct argument that even if, as the plaintiff alleged, the decree did not justify the seizure, it was an act of state into the validity of which this Court would not inquire: see pp 723 724 (Scrutton LJ); cf pp 729 730 (Sankey LJ), and 723 724. Scrutton LJ (pp 724 725) adopted the statement of principle in Oetjen v Central Leather Co on this point as corresponding to the law of England. Buttes Gas In Regazzoni v KC Sethia (1944) Ltd [1958] AC 301, a contract for the sale of jute was held to be unenforceable because it involved the shipment of the cargo from India in breach of an Indian prohibition of exports to South Africa. The House of Lords rejected an argument that the Indian law should be disregarded on the ground that it was contrary to international law because it is a hostile act directed against a friendly state, and as such contrary to English public policy (see p 307). Commenting on this argument at pp 325 326, Lord Reid said: It was argued that this prohibition of exports to South Africa was a hostile act against a Commonwealth country with which we have close relations, that such a prohibition is contrary to international usage, and that we cannot recognize it without taking sides in the dispute between India and South Africa. My Lords, it is quite impossible for a court in this country to set itself up as a judge of the rights and wrongs of a controversy between two friendly countries, we cannot judge the motives or the justifications of governments of other countries in these matters and, if we tried to do so, the consequences might seriously prejudice international relations. By recognizing this Indian law so that an agreement which involves a breach of that law within Indian territory is unenforceable we express no opinion whatever, either favourable or adverse, as to the policy which caused its enactment. Lord Keith of Avonholm, concurring, said at p 327: The English courts cannot be called on to adjudicate upon political issues between India and South Africa. Regazzoni v Sethia marked a return to concepts of non justiciability canvassed a century before in the colonial annexation cases. The principal modern landmark in this area of the law is the important and much debated decision of the House of Lords in Buttes Gas & Oil Co v Hammer [1982] AC 888. This was ostensibly an action for slander with a counterclaim for common law conspiracy to defraud. But it was actually a dispute about the extent of the territorial waters of the emirate of Sharjah around the island of Abu Musa in the Persian Gulf. Buttes Gas sued Dr Hammer and Occidental Petroleum for alleging in a press release that it had procured the Ruler of Sharjah to backdate a decree extending the territorial waters of the emirate. Their object was said to be to obtain for themselves the benefit of oil bearing deposits in the extended area, at the expense of Occidental which claimed to hold a concession for the same area from the neighbouring Ruler of Umm al Qywain. Occidental alleged that the extension of Sharjahs territorial waters was contrary to international law, and counterclaimed damages for an alleged conspiracy to defraud them, to which the Ruler and the United Kingdom were parties. According to the counterclaim the United Kingdom, which was responsible for the foreign relations and defence of both emirates, intervened politically with the Ruler of Umm al Qywain to forbid Occidentals drilling operations there and deployed a warship to turn back the companys drilling platform. Buttes applied to have the counterclaim struck out, principally on the ground that it was based on acts of state by the Ruler of Sharjah and the government of the United Kingdom. The House struck out the proceedings. The leading speech was delivered by Lord Wilberforce, with whom the rest of the Appellate Committee agreed. After rejecting the argument that the counterclaim was barred as being based on a claim to title to foreign land, and putting to one side the case law about Crown act of state, he continued, at p 931: A second version of act of state consists of those cases which are concerned with the applicability of foreign municipal legislation within its own territory, and with the examinability of such legislation often, but not invariably, arising in cases of confiscation of property. Mr Littman gave us a valuable analysis of such cases as Carr v Fracis Times & Co [1902] AC 176; Aksionairnoye Obschestvo AM Luther v James Sagor & Co [1921] 3 KB 532 and Princess Paley Olga v Weisz [1929] 1 KB 718, suggesting that these are cases within the area of the conflict of laws, concerned essentially with the choice of the proper law to be applied. Two points were taken as regards the applicability of this line of authority. First, it was said that foreign legislation can be called in question where it is seen to be contrary to international law or to public policy; the decree of 1969/70 was so contrary. Secondly, it was contended that foreign legislation is only recognised territorially ie within the limits of the authority of the state concerned. In my opinion these arguments do not help the respondents. As to the first, it is true, as I have pointed out, that the attack on Sharjahs decree of 1969/70 is not upon its validity under the law of Sharjah, but upon its efficacy in international law. But this brings it at once into the area of international dispute. It is one thing to assert that effect will not be given to a foreign municipal law or executive act if it is contrary to public policy or to international law (cf In re Helbert Wagg & Co Ltds Claim [1956] Ch 323) and quite another to claim that the courts may examine the validity, under international law or some doctrine of public policy, of an act or acts, operating in the area of transactions between states. The second argument seems to me to be no more valid. To attack the decree of 1969/70 extending Sharjahs territorial waters, ie its territory, upon the ground that the decree is extra territorial seems to me to be circular or at least question begging. Lord Wilberforce went on, at pp 931 932, to dismiss Occidentals counterclaim as raising matters which were non justiciable on wider grounds: the essential question is whether there exists in English law a more general principle that the courts will not adjudicate upon the transactions of foreign sovereign states. Though I would prefer to avoid argument on terminology, it seems desirable to consider this principle, if existing, not as a variety of act of state but one for judicial restraint or abstention. In my opinion there is, and for long has been, such a general principle, starting in English law, adopted and generalised in the law of the United States of America which is effective and compelling in English courts. This principle is not one of discretion, but is inherent in the very nature of the judicial process. Lord Wilberforce regarded the general principle as being derived from a wider principle concerning the transactions of sovereign states, of which the cases about the expropriation of property under municipal law were no more than a part. While eschewing arguments about terminology, he appears in this passage to have regarded the general principle as something different from the act of state doctrine. It is unquestionably different from the rule about the application to a sovereign act of the sovereigns municipal law, which was I think the only point that he was making. There is much to be said for the view of Rix LJ, delivering the judgment of the Court of Appeal in Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2) [2014] QB 458, para 66, that Lord Wilberforces principle of non justiciability has, on the whole, not come through as a doctrine separate from the act of state principle itself, but rather has to a large extent subsumed it as the paradigm restatement of that principle. It would seem that, generally speaking, the doctrine is confined to acts of state. However, I do not believe, any more than Lord Wilberforce did, that anything is gained by arguments about labels. He proceeded to make good his general principle by reference to the decisions in Blad v Bamfield and Duke of Brunswick v King of Hanover. The latter case, which Lord Wilberforce regarded as still authoritative, has generally been cited both in England and the United States as turning on the act of state doctrine. Lord Wilberforce regarded it as authority for the proposition that the courts will not adjudicate upon acts done abroad by virtue of sovereign authority. He considered that it was the basis of the US Supreme Courts decisions in Underhill v Hernandez and Oetjen v Central Leather Co, the cases which provided the foundation for the act of state doctrine in the United States, and which he had cited with approval at pp 933 934. In applying this wider principle to the particular facts before him, Lord Wilberforce emphasised (p 938) that the issue before the House turned on questions of international law arising between states: It would not be difficult to elaborate on these considerations, or to perceive other important inter state issues and for issues of international law which would face the court. They have only to be stated to compel the conclusion that these are not issues upon which a municipal court can pass. Leaving aside all possibility of embarrassment in our foreign relations (which it can be said not to have been drawn to the attention of the court by the executive), there are no judicial or manageable standards by which to judge these issues, or to adopt another phrase (from a passage not quoted), the court would be in a judicial no mans land: the court would be asked to review transactions in which four sovereign states were involved, which they had brought to a precarious settlement, after diplomacy and the use of force, and to say that at least part of these were unlawful under international law. Recent decisions The detailed application of the principle formulated by Lord Wilberforce in Buttes Gas has often been disputed but the principle itself has not. It was restated by Lord Oliver in JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry (the Tin Council case) [1990] 2 AC 418, in a speech with which Lord Keith of Kinkel, Lord Brandon and Lord Griffiths agreed. Rejecting an argument that the treaty creating the International Tin Council could give rise to justiciable private law rights, he held at p 499 that it was axiomatic that municipal courts have not and cannot have the competence to adjudicate upon or to enforce the rights arising out of transactions entered into by independent sovereign states between themselves on the plane of international law. In R (Abbasi) v Secretary of State for Foreign Affairs [2002] EWCA Civ 1598; [2003] UKHRR 76 the Court of Appeal declined to decide that the detention of prisoners in Guantanamo Bay was contrary to the obligations of the Unites States under the 3rd Geneva Convention. At para 32, the court accepted the following statement by Counsel of the general rule: It is well established that the English court will not adjudicate upon the legality of a foreign states transactions in the sphere of international relations in the exercise of sovereign authority, citing Buttes Gas and Oil v Hammer [1982] AC 888 at 932 (per Lord Wilberforce); Westland Helicopters Ltd v AOI [1995] QB 282. To do so would involve a serious breach of comity: see Buck v Attorney General [1965] 1 Ch 745 at 770 771 (per Lord Diplock) and R v Secretary of State, Ex p British Council of Turkish Cypriot Associations 112 ILR 735 at 740 (per Sedley J). [Counsel] observed that the relief sought by the claimants was founded on the assertion that the United States government was acting unlawfully. For the court to rule on that assertion would be contrary to comity and to the principle of state immunity. Apart from the decisions in the present case, the most recent discussion of the principles underlying the foreign act of state doctrine is the decision of the Court of Appeal in R (Noor Khan) v Secretary of State for Foreign Affairs [2014] 1 WLR 872. The case raised issues in some ways similar to the present ones. The claimants father had been killed in Pakistan by a missile fired from an American drone. He applied for judicial review of the decision of the Foreign Secretary to supply intelligence to the United States for use in targeting drone strikes and sought various declarations as to the lawfulness of supplying locational intelligence for this purpose. His case was that an official passing intelligence in these circumstances committed an offence by encouraging or assisting an act by the American operators of the drone which would, if committed by a British subject, amount to murder, contrary to sections 44 to 46 of the Serious Crimes Act 2007. The Court of Appeal dismissed the application on grounds of both principle and discretion. Addressing the point of principle, it adopted the following statement of Moses LJ in the Divisional Court as a correct statement of principle: It is necessary to explain why the courts would not even consider, let alone resolve, the question of the legality of United States drone strikes. The principle was expressed by Fuller CJ in the United States Supreme Court in Underhill v Hernandez (1897) 168 US 250, 252: Every sovereign state is bound to respect the independence of every other sovereign state, and the courts of one country will not sit in judgment on the acts of the government of another done within its own territory. Redress of grievances by reason of such acts must be obtained through the means open to be availed of by sovereign powers as between themselves (cited with approval in Buttes Gas and Oil Co v Hammer (No 3) [1982] AC 888, 933, and R v Jones (Margaret) [2007] 1 AC 136, 163). The principle that the courts will not sit in judgment on the sovereign acts of a foreign state includes a prohibition against adjudication on the legality, validity or acceptability of such acts, either under domestic law or international law: Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883, 1080, para 24. The rationale for this principle, is, in part, founded on the proposition that the attitude and approach of one country to the acts and conduct of another is a matter of high policy, crucially connected to the conduct of the relations between the two sovereign powers. To examine and sit in judgment on the conduct of another state would imperil relations between the states: Buttes Gas case [1982] AC 888, 933. Turning to the question of discretion, the Court of Appeal accepted that arguably the offences created by sections 44 to 46 of the 2007 Act did not require a finding that the US operators of the drone had committed murder, but only a finding that they would have done so if they had been British citizens. However, they declined (paras 36 37) to determine the question because the public, especially in the United States, would be unlikely to make or understand that distinction: But none of this can disguise the fact that in reality the court will be asked to condemn the acts of the persons who operate the drone bombs. Whilst for the purposes of the 2007 Act these persons are to be treated as if they are UK nationals, everyone knows that this is a legal fiction devised by Parliament in order to found secondary liability under sections 44 to 46. In reality, the persons who operate the drones are CIA officials and in doing so they are implementing the policy of the US Government. In my view, a finding by our court that the notional UK operator of a drone bomb which caused a death was guilty of murder would inevitably be understood (and rightly understood) by the US as a condemnation of the US. In reality, it would be understood as a finding that (i) the US official who operated the drone was guilty of murder and (ii) the US policy of using drone bombs in Pakistan and other countries was unlawful. The fact that our courts have no jurisdiction to make findings on either of these issues is beside the point. What matters is that the findings would be understood by the US authorities as critical of them. Although the findings would have no legal effect, they would be seen as a serious condemnation of the US by a court of this country. Remedies by way of judicial review are of course discretionary. But the only relevance of the discretion to this decision was that it enabled the court to ignore any difference that there might be between the legal analysis and the public perception, and to reject the claim on the ground that it would embarrass Anglo American relations, a consideration that would be irrelevant to a claim of right. For present purposes, the point is that the claimants allegations involved a challenge to the lawfulness under English law of the acts of British officials, who were said to have incurred an accessory liability for murder by US forces. If Mr Khan, instead of applying for judicial review, had claimed damages in tort for personal injury, in his own right or on behalf of his fathers estate, no discretion would have been involved. But he would still have lost, on the point of principle identified by Moses LJ and approved in the Court of Appeal. It should be noted that the principle stated by Moses LJ and approved by the Court of Appeal was founded on the rule formulated by Fuller CJ in Underhill v Hernandez. The search for general principle The English decisions have rarely tried to articulate the policy on which the foreign act of state doctrine is based and have never done so comprehensively. But it is I think possible to discern two main considerations underlying the doctrine. There is, first and foremost, what is commonly called comity but I would prefer to call an awareness that the courts of the United Kingdom are an organ of the United Kingdom. In the eyes of other states, the United Kingdom is a unitary body. International law, as Lord Hoffmann observed in R v Lyons [2003] 1 AC 976 at para 40, does not normally take account of the internal distribution of powers within a state. Like any other organ of the United Kingdom, the courts must respect the sovereignty and autonomy of other states. This marks the adoption by the common law of the same policy which underlies the doctrine of state immunity. Secondly, the act of state doctrine is influenced by the constitutional separation of powers, which assigns the conduct of foreign affairs to the executive. This is why the court does not conduct its own examination of the sovereign status of a foreign state or government but treats the Secretary of States certificate as conclusive: Government of the Republic of Spain v SS Arantzazu Mendi [1939] AC 256, 264 (Lord Atkin). It is why Lord Templeman graphically described the submissions of the claimants in the Tin Council case as involving a breach of the British constitution and an invasion by the judiciary of the functions of the Government and of Parliament: see p 476. To that extent the rationale of the foreign act of state doctrine is similar to that of the corresponding doctrine applicable to acts of the Crown, as Elias LJ observed in Al Jedda v Secretary of State for Defence [2011] QB 773, paras 209 212. When one turns to the ambit of the doctrine, the first point to be made is that there are many cases involving the sovereign acts of states, whether British or foreign, in which the action fails, not on account of any immunity of the subject matter from judicial scrutiny, but because the acts in question are legally irrelevant. They give rise to no rights as a matter of private law and no reviewable questions of public law. It is on this ground that the court will not entertain an action to determine that Her Majestys government is acting or proposes to act in breach of international law in circumstances where no private law status, right or obligation depends on it: R (Campaign for Nuclear Disarmament) v Prime Minister [2001] EWHC 1777 (Admin); R (Al Haq) v Secretary of State for Foreign and Commonwealth Affairs [2009] EWHC 1910 (Admin). Unlike Mr Khan, who contended that his father had been killed as a result of breaches of English domestic law, the claimants had, as Cranston J put it in the latter case, at para 60, no domestic foothold; cf Shergill v Khaira [2015] AC 359 at para 43. By comparison Mr Khan did have a domestic foothold. He had standing to apply for judicial review, and he contended that his father had been killed because of a breach by British officials of English law, but the court declined to treat the matter as governed by ordinary principles of English law because of its subject matter. The same is true of the present cases. They are concerned with the effect of a foreign act of state in a case where private law rights are engaged, because the claimants rely on the acts of the relevant states as ordinary torts under the municipal law of the countries in which they were committed. The question that we have to decide on this appeal is whether they can do so consistently with the law relating to foreign acts of state. As Lord Wilberforce observed in Buttes Gas, at p 930F G, the main difficulty in identifying a principle underlying that law arises from the indiscriminate use of act of state to cover situations which are quite distinct and different in law. It is always possible to break down the cases into different factual categories, and deconstruct the law into a fissiparous bundle of distinct rules. But the process is apt to make it look more arbitrary and incoherent than it really is. I think that it is more productive to distinguish between the decisions according to the underlying principle that the court is applying. The essential distinction which Lord Wilberforce was making in Buttes Gas was between (i) those cases which are concerned with the applicability of foreign municipal legislation within its own territory and with the examinability of such legislation (p 931A B), and (ii) cases concerning the transactions of sovereign states (p 931G H). This distinction is supported by the case law extending over more than three centuries which I have reviewed above. It is possible to extract two related principles from it. The first is concerned with the application to a state of its own municipal law, and the second with the application of international law to that states dealings with other states. Municipal law act of state The first principle can conveniently be called municipal law act of state. It comprises the two varieties of foreign act of state identified in the judgment of Lord Mance at paras 11(iii)(a) and (b) of his judgment, although he would limit it to legislative or executive acts against property. The principle is that the English courts will not adjudicate on the lawfulness or validity of a states sovereign acts under its own law. Municipal courts, as Lord Sumner put it in Johnstone v Pedlar [1921] 2 AC 262, 290, do not control the acts of a foreign State done within its own territory, in the execution of sovereign powers, so as to criticise their legality or to require their justification. In Yukos Capital Sarl v OJSC Rosneft Oil Co (No 2), supra, at para 110, Rix LJ formulated the principle as involving a distinction between referring to acts of state (or proving them if their occurrence is disputed) as an existential matter, and on the other hand asking the court to inquire into them for the purpose of adjudicating upon their legal effectiveness, including for these purposes their legal effectiveness as recognised in the country of the forum. It is the difference between citing a foreign statute (an act of state) for what it says (or even for what it is disputed as saying) on the one hand, something which of course happens all the time, and on the other hand challenging the effectiveness of that statute on the ground, for instance, that it was not properly enacted, or had been procured by corruption, or should not be recognised because it was unfair or expropriatory or discriminatory. Municipal law act of state is by definition confined to sovereign acts done within the territory of the state concerned, since as a general rule neither public nor private international law recognises the application of a states municipal law beyond its own territory. It has commonly been applied to legislative acts expropriating property: examples include Carr v Fracis Times, Luther v Sagor and the general principle which served as the starting point of the House of Lords in Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883 (see paras 257 258 below). In these cases, title will have passed under the lex situs and the expropriation will be recognised in England on ordinary choice of law grounds unless, exceptionally, its recognition would be contrary to public policy. In this context, it is difficult to see that anything is added by calling the expropriation an act of state. However, the fact that the act of state doctrine and ordinary choice of law principles lead to the same result in the case of the legislative expropriations of property, does not entitle one to press the analogy any further. In particular, it cannot follow that municipal law act of state is limited to legislative acts expropriating property. Property is of course special for some purposes. It is likely to be under the exclusive jurisdiction of the state where it is located. It is marketable and may be tradeable internationally. It gives rise to policies favouring certainty of title. Considerations like these go some way to explaining why the lex situs of property is generally regarded as the law with the closest connection to an issue about title, and is for that reason designated as the proper law. But it is difficult to see that they have any bearing on the very different problems with which the act of state doctrine is concerned. The rules governing the choice of law are concerned with the law to be applied in determining an issue assumed to be justiciable, while the act of state doctrine in all its forms is concerned with the proper limits of the English courts right to determine certain kinds of issue at all. Thus it is well established that municipal law act of state applies not just to legislative expropriations of property, but to expropriations by executive acts with no legal basis at all. Examples include Duke of Brunswick v King of Hanover and Princess Paley Olga v Weisz, and the United States decisions in Hatch v Baez, Underhill v Hernandez, and Oetjen v Central Leather Co. These transactions are recognised in England not because they are valid by the relevant foreign law, but because they are acts of state which an English court cannot question. Strictly speaking, on the footing that the decree authorising the seizure of Princess Paley Olgas palace did not extend to her chattels, the acts of the revolutionary authorities in seizing them were Russian law torts. But once the revolutionary government was recognised by the United Kingdom, it would have been contrary to principle for an English court to say so. Once it is accepted that executive acts may be acts of state, there is no rational reason why the principle should be limited to executive seizures of property, as opposed to injury to other interests equally protected by the municipal law of the place where they occurred. I can see no rational ground for distinguishing between the expropriation of property by executive act and its physical destruction by executive act, and no sensible basis on which the former is to be treated as an act of state and the latter not. For the same reasons, I think that personal injury and other wrongs against the person inflicted by the agents of a foreign state are as much capable of being acts of state as the destruction or detention of property. No such limitation applies to extraterritorial exercises of sovereign authority, whether by the British Crown or by a foreign state. No such limitation was recognised by Lord Wilberforce in Buttes Gas, who included executive acts as potentially relevant acts of state (p 931D E). In Hatch v Baez, the plaintiffs main complaint was that he had been imprisoned and assaulted. In Underhill v Hernandez the plaintiff claimed to have been imprisoned and intimidated. The decisions in these cases were in terms justified by reference to the act of state doctrine. State immunity not having been claimed, they could not have been decided on any other basis. One might ask why an English court should shrink from determining the legality of the executive acts of a foreign state by its own municipal law, when it routinely adjudicates on foreign torts and foreign breaches of contract. The answer is that the law distinguishes between exercises of sovereign authority and acts of a private law character. It is fair to say that the decided cases on this point generally involved internal revolutions or civil wars leading to a breakdown of law of a kind which could ultimately be resolved only by force. Other countries implicitly recognise the outcome diplomatically with retrospective effect, and their courts follow suit. Similar problems can arise in relation to the acts of totalitarian states where there may be no rule of law even in normal times. But I do not think that the act of state doctrine can be limited to cases involving a general breakdown of civil society or states without law. Quite apart from the formidable definitional problems to which such an approach would give rise, the basis of the doctrine is not the absence of a relevant legal standard but the existence of recognised limits on the subject matter jurisdiction of the English courts. It is this principle which applies to the alleged act of Malaysia in deporting Mr Belhaj and Mrs Boudchar, and Thailands act in detaining them and delivering them to the Americans. They were domestic exercises of governmental authority by those two countries. So was the detention and torture of Mr Belhaj and Mrs Boudchar by Libya in Libyan prisons. International law act of state The second principle, which can conveniently be called international law act of state, corresponds to the variety of foreign act of state identified in the judgment of Lord Mance at para 11(iii)(c). It is that the English courts will not adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states: see Blad v Bamfield, Nabob of the Carnatic v East India Co, Dobree v Napier, Secretary of State in Council of India v Kamachee Boye Sahaba, Cook v Sprigg, Buttes Gas & Oil Co v Hammer, R (Abbasi) v Secretary of State for Foreign Affairs, and R (Noor Khan) v Secretary of State for Foreign Affairs. This is because once such acts are classified as acts of state, an English court regards them as being done on the plane of international law, and their lawfulness can be judged only by that law. It is not for an English domestic court to apply international law to the relations between states, since it cannot give rise to private rights or obligations. Nor may it subject the sovereign acts of a foreign state to its own rules of municipal law or (by the same token) to the municipal law of a third country. In all of the cases cited, the claimant relied on a recognised private law cause of action, and pleaded facts which disclosed a justiciable claim of right. But the private law cause of action failed because, once the cause of action was seen to depend on the dealings between sovereign states, the court declined to treat it as being governed by private law at all. As Tindal CJ observed in Dobree v Napier, the English courts could not apply English law to the sovereign acts of the Queen of Portugal on the high seas. Nor, on the same principle, could they have applied the municipal law of some third country. This, as it seems to me, is as true of private law causes of action based on wrongs against the person (as in Hatch v Baez and Noor Khan) as it is of those based on wrongs against property (as in Dobree v Napier). If a foreign state deploys force in international space or on the territory of another state, it would be extraordinary for an English court to treat these operations as mere private law torts giving rise to civil liabilities for personal injury, trespass, conversion, and the like. This is not for reasons peculiar to armed conflict, which is no more than an ill defined extreme of inter state relations. The rule is altogether more general, as was pointed out by Lord Wilberforce in Buttes Gas (p 931D E). Once the acts alleged are such as to bring the issues into the area of international dispute the act of state doctrine is engaged. Dicey, Morris & Collins on the Conflict of Laws, 15th ed (2012) write at para 5 049: The act of state doctrine has no application when it is clear that the relevant acts were done outside the sovereigns territory. The authority cited for this statement is the decision of the Court of Appeal in Empresa Exportadora de Azucar v Industria Azucarera Nacional CA (The Playa Larga and the Marble Islands) [1983] 2 Lloyds Rep 171, 194. The facts of that case were that a Cuban state owned trading enterprise had sold two cargoes of sugar for delivery at a Chilean port. President Allendes government in Chile was overthrown while one of the ships, the Playa Larga, was discharging at Valparaiso and the other, the Marble Islands, was on its way. Both vessels were operated by another Cuban state enterprise. The Cuban government arranged for the Playa Larga to leave Chile with part of its cargo still on board and for the Marble Islands to be diverted elsewhere. In an arbitration under the contract of sale, the tribunal awarded the Chilean buyers damages for non delivery and conversion of the undelivered part of the cargo of the Playa Larga, together with the restitution of the purchase price of the cargo of the Marble Islands. Act of state was not raised before the arbitrators, but was said to be available on their findings of fact. It was rejected by the judge and the Court of Appeal on the ground that it was not open to the sellers, and was in any event unsound because there was no act of state. The claim arose from a commercial transaction, not a sovereign act: p 193. But the court went on to deal briefly with other points, including the argument that the act of state doctrine was limited to acts done within the territory of the foreign state, which they accepted: p 194. For this, they relied mainly on statements in Duke of Brunswick v King of Hanover, Underhill v Hernandez and Buttes Gas. In my opinion the statement in Dicey, Morris & Collins is applicable to what I have called municipal law act of state but not to international law act of state. As I have observed, where the issue is whether the legislative or executive acts of a foreign sovereign are valid or lawful under its own municipal law, a limit to the sovereigns territory follows as a matter of course from the rule itself. This is because, with limited exceptions, generally governed by treaty, international law does not recognise the right of states to apply its domestic public laws extra territorially: France v Turkey (Affaire du Lotus) PCIJ, Series A, No 10, at pp 18 19. This limitation is recognised in the municipal law of most states, and is a fundamental principle of English private international law: see Government of India v Taylor [1955] AC 491, 511 (Lord Keith of Avonholm); Ortiz v Attorney General of New Zealand [1984] AC 1, 21 (Lord Denning MR); Williams & Humbert Ltd v W & H Trade Marks (Jersey) Ltd [1986] AC 368, 428, 430 3; In re State of Norways Application [1990] AC 723, 808 (Lord Goff). All of the judicial observations supporting the territorial limitation of the foreign act of state doctrine, including those on which the Court of Appeal relied in the Playa Larga, have been made in the context of challenges to the recognition of foreign municipal legislation or to the lawfulness of an executive act of state under the foreign states municipal law: see Duke of Brunswick v King of Hanover, supra, at 17; Hatch v Baez, supra, at p 599; Underhill v Hernandez, supra, at p 252; Buttes Gas, at p 931A B; WS. Kirkpatrick & Co Inc v Environmental Tectonics Corporation International, 493 US 400 (1900) 400, 405; Kuwait Airways Corpn v Iraqi Airways Co (Nos 4&5), at para 135 (Lord Hope); A Ltd v B Bank [1997] FSR 165, at para 13. Turning to international law act of state, the position is different. Where the question is the lawfulness of a states acts in its dealings with other states and their subjects, the act of state doctrine applies wherever the relevant act of the foreign state occurs (save, arguably, if it occurred in the United Kingdom: see A Ltd v B Bank [1997] FSR 165 at para 13). The reason is, again, inherent in the principle itself. It is not concerned with the lawfulness of the states acts under municipal systems of law whose operation, in the eyes of other states, is by definition territorial, but with acts whose lawfulness can be determined only by reference to international law, which has no territorial bounds. In the nature of things a sovereign act done by a state in the course of its relations with other states will commonly occur outside its territorial jurisdiction. States maintain embassies and military bases abroad. They conduct military operations outside their own territory. They engage in intelligence gathering. They operate military ships and aircraft. All of these are sovereign acts. The paradigm cases are acts of force in international space or on the territory of another state. Obvious examples, as Lord Pearson observed in Nissan v Attorney General [1970] AC 179, 237, are making war and peace, making treaties with foreign sovereigns, and annexations and cessions of territory. In my opinion, subject to the important public policy exception to which I shall come, it is not open to an English court to apply the ordinary law of tort, whether English or foreign, to acts of this kind committed by foreign sovereign states. Thus if, in the Playa Larga, the Cuban mode of prosecuting its dispute with General Pinochets government in Chile had been an act of state, it would have been contrary to principle for an English court to judge its lawfulness according to English (or any other) municipal law, whether it happened in Cuba, Chile or on the high seas. In Dobree v Napier the relevant acts occurred on the high seas, but their inherently governmental character made it impossible to treat it as a tortious conversion of goods under English municipal law. In Buttes Gas, it was impossible to know in whose territory they had occurred, since that begged the question at issue, but Lord Wilberforces wider principle was applied regardless of the answer to that question. The Court of Appeal proceeded on the same basis in R (Noor Khan) v Secretary of State for Foreign and Commonwealth Affairs, where the relevant acts occurred in Pakistan. I think that they were right to do so. Subject to any public policy exception, it is this principle which applies to the acts alleged against United States officials in the present cases. In Rahmatullah, they were exercises of governmental authority by the armed forces and officials of the United States, acting as an occupying power in Iraq and a mandatory power in Afghanistan. In Belhaj, the claimants rendition from Thailand to Libya and their mistreatment in the process was also an exercise by the United States of governmental authority. It involved the application of force by United States officials in the course of their governments campaign against international terrorism and in the conduct of their relations with Malaysia, Thailand and Libya. Whatever one may think of the lawfulness or morality of these acts, they were acts of state performed outside the territorial jurisdiction of the United States, which cannot be treated by an English court as mere private law torts, any more than drone strikes by US armed forces can. Juridical basis The foreign act of state doctrine has commonly been described as a principle of non justiciability. The label is unavoidable, but it is fundamentally unhelpful because it is applied to a number of quite different concepts which rest on different principles. One, comparatively rare, case in which an issue may be non justiciable is that although it is legally relevant, the courts are incompetent to pronounce upon it or disabled by some rule of law from doing so. Leaving aside cases in which the issue is assigned to the executive or the legislature under our conception of the separation of powers, most cases of this kind involve issues which are not susceptible to the application of legal standards. The most famous example is Buttes Gas, where Lord Wilberforce declined to resolve the issue because there were no judicial or manageable standards by which to do so. The court was therefore incompetent to adjudicate upon it at all. As this court pointed out in Shergill v Khaira [2015] AC 359 at para 40, this was because the issue was political. But there is another sense in which an issue may be non justiciable, which is also illustrated by the facts of Buttes Gas. It may be non justiciable because the English court ought not to adjudicate upon it even though it can, because it is not a matter which can properly be resolved by reference to the domestic law of the state. Occidentals contention in Buttes Gas was that the mixture of diplomacy and power politics by which the four states involved had eventually resolved the border dispute in a manner unsatisfactory to them, could be characterised as an unlawful conspiracy for the purposes of domestic law. An unlawful conspiracy is in itself justiciable. It is a recognised cause of action in English law. But an English court could not adjudicate upon it because it was parasitic upon a finding that the foreign states involved had acted in breach of international law, being the only law relevant to their acts. This too can fairly be called a principle of non justiciability, because its effect is that it is not the proper function of the English courts to resolve the issue. But Buttes Gas has been widely misunderstood as suggesting that an absence of judicial or manageable standards is the juridical basis of the foreign act of state doctrine in all cases where it is applied to the transactions of sovereign states. It is not. The absence of judicial or manageable standards was simply the reason why the House declined to review the particular facts alleged in that case. Incidental unlawfulness The act of state doctrine does not apply, in either form, simply by reason of the fact that the subject matter may incidentally disclose that a state has acted unlawfully. It applies only where the invalidity or unlawfulness of the states sovereign acts is part of the very subject matter of the action in the sense that the issue cannot be resolved without determining it. There is no real difference between the parties on this point, but it is worth emphasising none the less, for it is of some importance. Some such distinction is essential if the act of state doctrine is not to degenerate into a mere immunity against international embarrassment. The principle is implicit in many of the English cases, but it can best be illustrated by the decision of the US Supreme Court in WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International, 493 US 400 (1990), which is also the case in which it was first clearly articulated. Environmental Tectonics had succeeded in a competitive tender for a construction contract with the government of Nigeria. The plaintiff, an unsuccessful bidder, alleged that the company had bribed Nigerian government officials, and claimed damages under various US federal statutes. The receipt of bribes was illegal under Nigerian law, but the Supreme Court held that the act of state doctrine did not apply because the legal implications of bribery in Nigerian law were not a necessary part of the plaintiffs case. He had only to prove that the bribes had been paid, and that Environmental Tectonics had thereby committed an act unlawful under US law. That the facts would incidentally disclose offences by the bribed officials was irrelevant. Scalia J, delivering the judgment of the Court held (p 406) that act of state issues only arise when a court must decide that is, when the outcome of the case turns upon the effect of official action by a foreign sovereign. There are many circumstances in which an English court may have occasion to express critical views about the public institutions of another country, without offending against the foreign act of state doctrine or any analogous rule of law. In deportation and extradition cases, for example, it may be necessary to review the evidence disclosing that the person concerned would be tortured or otherwise ill treated by the authorities in the country to which he would be sent. In forum non conveniens cases the court may have to conclude that in some countries the courts are corrupt or controlled by the state. When evidence is said to have been obtained by torture at the hands of officials of a foreign state, a court which is invited to exclude it cannot avoid investigating the allegation and upholding it if the evidence bears it out. I do not regard this as undermining the foreign act of state doctrine, because that doctrine proceeds on a different basis. The foreign act of state doctrine has never been directed to the avoidance of embarrassment, either to foreign states or to the United Kingdom government in its dealings with them. But neither is it concerned with incidental illegality. Where an English court makes findings in a deportation case about, say, the use of torture in a foreign jurisdiction it is not concerned with its lawfulness or unlawfulness, either under the law of the foreign jurisdiction or in international law. It is simply applying its own standards to an exercise of its own jurisdiction. In the present cases the question whether the acts alleged against the relevant foreign states were unlawful is not incidental. It is essential to the pleaded causes of action against the defendants in both actions. This is because the various civil wrongs which are alleged to have caused damage to the claimants are not said to have been committed directly by the defendants. They were committed by the foreign states. If the conduct of the foreign states was lawful, it cannot be tortious for the defendants to have assisted in their commission. The Court of Appeal analysed the various causes of action against the defendants in order to demonstrate that each of them depended on establishing that the conduct of the foreign states was unlawful. I think that their analysis is unanswerable. The judgment of Leggatt J In his judgment in Rahmatullah, Leggatt J accepted that there was a difference between cases which turned on the application to a states sovereign acts of its own municipal law, and cases concerning transactions between states. Indeed, he regarded them as juridically wholly distinct. Borrowing a concept from the decisions of the United States Supreme Court in Ricaud v American Metal Co Ltd 246 US 304 (1918) and WS Kirkpatrick & Co Inc v Environmental Tectonics Corpn International, 493 US 400 (1990), 406, he described what he called the traditional act of state doctrine as a rule of decision applicable to challenges to the lawfulness of an act of state under the states municipal law. By this he meant that it requires the court to decide the case on the footing that the relevant acts of a foreign state were valid under its own law (para 123). By comparison, in cases concerning the transactions of foreign sovereign states, the rule was one of judicial restraint or abstention. It prevents a court from deciding or adjudicating upon a case on the ground that its subject matter is not suitable for judicial determination. He regarded judicial restraint or abstention as being required only when there were no judicial or manageable standards, and that, he thought, could never be the case if a municipal law right was engaged. For this last point, he relied mainly on the decision of this court in Shergill v Khaira [2015] AC 359. It will be apparent from what I have already said that I cannot accept this analysis. In the first place, I doubt whether the act of state doctrine, as applied to the sovereign acts of a foreign state, is helpfully described as a rule of decision. The principle, at any rate in the English case law, is one of non justiciability. It is that the court will decline to determine the lawfulness of an act of state, not that it will determine its lawfulness on some assumption about the content of the foreign law. Secondly, not all cases in which the foreign act of state doctrine is applied to transactions between states lack judicial or manageable standards for their decision. The courts are, for example, perfectly competent to construe treaties, and regularly do so when municipal law rights depend on it: Republic of Ecuador v Occidental Exploration and Petroleum Co [2006] QB 432. As Lord Wilberforce pointed out in Buttes Gas (p 926F), they are competent to determine the international boundaries of sovereign states and have done so without difficulty in proper cases. On the facts of R (Noor Khan) v Secretary of State for Foreign Affairs, the courts would have been competent to apply English criminal law to the operators of drones over Pakistan. If the courts, in appropriate cases, decline to do these things, it is usually not because of any lack of legal standards, but because it would be contrary to principle. Shergill v Khaira was not an act of state case. The question was whether the court could entertain a claim to enforce the trusts of a religious charity, if that would require it to decide religious issues. It was argued that it could not do so, because such issues were non justiciable for want of judicial or manageable standards by which to assess them. Lord Neuberger, Lord Sumption and Lord Hodge, in a joint judgment with which Lord Mance and Lord Clarke agreed, distinguished (para 41) between (i) rules of law such as state immunity which confer immunity from jurisdiction, or rules like the act of state doctrine which protected certain acts from challenge; and (ii) cases where an issue is said to be inherently unsuitable for judicial decision by reason only of its subject matter. Where a legal right of the citizen or a reviewable question of public law arose, the case could not be regarded as inherently unsuitable for judicial decision. But the case is not authority for the proposition that the application of the foreign act of state doctrine to transactions between states depends on the absence of any municipal law right, nor that it was coterminous with the class of cases in which there were no judicial or manageable standards. Leggatt Js analysis derives some support from the decision of the High Court of Australia in Moti v The Queen 245 CLR 456. The facts of this case were somewhat similar to those of the English cases of R v Horseferry Road Magistrates Court, Ex p Bennett [1994] 1 AC 42 and R v Mullen [2000] QB 520. In these cases, it had been held that the involuntary deportation of an accused person from a foreign country by British officials to face trial in England, otherwise than by way of lawful extradition, was an abuse of process in English criminal proceedings. In each case, the deportation had been carried out with the co operation of the police in the foreign country. What made this an abuse of process was the breach of the domestic law of the foreign country and of international law by the British prosecuting authorities or British officials acting in support of them: see Bennett, at pp 62G (Lord Griffiths), 67G (Lord Bridge); and Mullen, at p 535F. The assumed facts suggested that the local police must also have acted in breach of their own law, but I cannot accept Lord Mances view that this was critical to the analysis. The removal of the victim to the jurisdiction in which he was brought to trial would have been as much an abuse of process and for exactly the same reasons if the prosecutors had simply kidnapped him with no assistance from local officials. Any unlawfulness in the conduct of the foreign officials was incidental. That was presumably why no point was taken on the foreign act of state doctrine in either of the English cases. Mr Motis position was exactly the same. He had been illegally deported from the Solomon Islands by a process in which Australian officials in the Islands were involved. His case was that the criminal proceedings should be stayed because of what Australian officials did in connection with his deportation (para 9). On this occasion the foreign act of state doctrine was raised. The short answer to this would have been that the unlawfulness of the Australian officials conduct was enough to justify staying the proceedings against Mr Moti. The unlawfulness of the acts of their foreign collaborators was incidental and irrelevant. But in rejecting the argument, the Court adopted the view of Dr F A Mann, a long standing critic of the act of state doctrine, that there was no bar to adjudication of the lawfulness of a foreign governmental act if it was necessary to the resolution of an issue within the jurisdiction and competence of the forum: see paras 50 52. In my view this was too wide and certainly wider than anything that was required for the decision of the case. The proposition which the High Court of Australia accepted from Dr Mann is tantamount to the abolition of the foreign act of state doctrine. This was indeed a consummation devoutly wished by that great scholar. He regarded the whole doctrine as incoherent. Properly understood, I do not think that it is incoherent. What is clear, however, is that to arrive at the view held by Dr Mann it would be necessary to throw over a substantial body of jurisprudence, much of it recent and much of it not considered by the High Court of Australia, including Lord Wilberforces analysis in Buttes Gas. The judgment of the Court of Appeal The Court of Appeal took a different approach. They considered that while the facts of Buttes Gas might be analysed in terms of lack of judicial competence the act of state doctrine was not limited to such situations, even as applied to the transactions of sovereign states. I agree with this. The Court of Appeal accepted that the act of state doctrine was engaged by the claimants allegations in Belhaj, and that it barred the claim unless those allegations fell within one of the recognised exceptions to the doctrine. The exceptions which they regarded as relevant were (i) an exception for cases where the unlawful character of the foreign states acts was merely incidental to the allegations; (ii) an exception for acts done outside the territory of the foreign state; and (iii) a public policy exception for violations of international law or fundamental human rights. The Court of Appeal held that the second and third exceptions applied. I have already dealt with exception (i), which is uncontentious, and exception (ii), which I consider inapplicable to the kind of act of state relied upon here. The critical point, to my mind, is exception (iii). Violations of international law or fundamental human rights The Court of Appeal described this as an exception to the ordinary immunity of foreign acts of state. It might equally have been described, as Lord Mance does, as a category of case to which the principle does not apply to begin with. The difference, if there is one, does not seem to me to matter. What matters, on either analysis, is that the principle which underlies this category should be sufficiently clear to make the law coherent and as clear as is consistent with the difficulty of the subject. To say of a rule of law or an exception to that rule that it is based on public policy does not mean that its application is discretionary according to the courts instinct about the value of the policy in each particular case. But rules of judge made law are rarely absolute, and this one like any other falls to be reviewed as the underlying policy considerations change or become redundant, or as it encounters conflicting policy considerations which may not have arisen or had the same significance before. Conceptions of public policy, as Lord Wilberforce observed in Blathwayt v Baron Cawley [1976] AC 397, 426, should move with the times and that widely accepted treaties and statutes may point the direction in which such conceptions, as applied by the courts, ought to move. The acceptability of a foreign law must be judged by contemporary standards, Lord Nicholls added in adopting that statement in Kuwait Airways, at para 28. The standards which public policy applies in cases with an international dimension have changed a great deal in the past half century. In Hatch v Baez, Underhill v Hernandez and Oetjen v Central Leather Co the US Supreme Court declined to consider whether the arbitrary detention of the plaintiff and the expropriation of his property were breaches of international law. In all three cases, this was said to be because any such breach would have been a matter for diplomatic resolution between the United States and the foreign states involved and not for domestic litigation. The courts view on this point reflected the then state of customary international law, which recognised only limited obligations owed by states with regard to the treatment of aliens within their territory. These were generally based on discrimination or denial of justice, as they had been since the middle ages. They were not based on the acceptance of minimum standards for the content of a states municipal law. A comparison between the first edition of Oppenheims International Law (1905), paras 320 321, and the ninth edition (1992) edited by Sir Robert Jennings and Sir Arthur Watts, paras 404 405, 407, 409, will make the point. Since the Second World War there has been a considerable expansion of the range of matters with which international law is concerned, which now extends to many aspects of the relations between states on the one hand and their subjects or residents on the other. The growing importance of the international protection of human rights is one aspect of this change, but not the only one. International law increasingly places limits on the permissible content of municipal law and on the means available to states for achieving even their legitimate policy objectives. At the same time, the relationship between English law and international law has changed. It used to be said that customary international law is part of the common law. The sentiment dates back to Lord Mansfield in Triquet v Bath (1764) 3 Burr 1478, 1481 and Blackstones Commentaries, Bk IV, Chapter 5. The classic example in their day was the recognition at common law of the immunities of states and diplomatic agents. At a time when there was very little overlap between international and municipal law, the assumption of Mansfield and Blackstone had much to be said for it. Today it would be truer to say, as Lord Bingham was inclined to think in R v Jones (Margaret) [2007] 1 AC 136 (para 11), that international law is not a part of but is one of the sources of the common law. The same view has been expressed by Professor Brierly, International Law in England (1935) 51 LQR 24, 31, and by the editors of Brownlies Public International Law, 8th ed (2012), 68. English law has always held to the dualist theory of international law. In principle, judges applying the common law are not at liberty to create, abrogate or modify municipal law rights or obligations in accordance with unincorporated norms derived from international law, whether customary or treaty based. But, as Lord Bingham pointed out in R v Lyons [2003] 1 AC 976, at para 13, international law may none the less affect the interpretation of ambiguous statutory provisions, guide the exercise of judicial or executive discretions and influence the development of the common law. Although the courts are not bound, even in these contexts, to take account of international law, they are entitled to do so if it is appropriate and relevant: see, in the context of discretions R (Hurst) v London Northern District Coroner [2007] 2 AC 189, paras 53 59 (Lord Brown), and R (Wang Yam) v Central Criminal Court [2015] UKSC 76, at paras 35 36 (Lord Mance). In those areas which depend on public policy, the content of that policy may be and in practice often is influenced by international law. These observations are especially pertinent when public policies conflict, as they inevitably do when one seeks to fix limits to a principle of law such as the foreign act of state doctrine. There is a danger that retaining the doctrine while recognising exceptions, will result either in the exception consuming the rule or in the rule becoming incoherent. This concern lies behind the refusal of the US Supreme Court to treat a violation of international law as such as being an exception to the foreign act of state doctrine: see Banco Nacional de Cuba v Sabbatino, supra, at p 431. Any exception must be limited to violations of international law which can be distinguished on rational grounds from the rest. This was the question with which the House of Lords had to contend in the milestone decisions in Oppenheimer v Cattermole [1976] AC 249 and Kuwait Airways Corpn v Iraqi Airways Co (Nos 4 and 5) [2002] 2 AC 883. The question in Oppenheimer v Cattermole was whether the English courts should recognise a Nazi decree law of 1941 which deprived Jews of their German nationality and confiscated their property if they were ordinarily resident outside Germany at the date of the decree. If regard was had to the decree, Mr Oppenheimer lost his German nationality upon its publication, with the result that his pension from the German Federal Republic did not qualify for exemption from income tax in the United Kingdom. The basic rule, at any rate before the Universal Declaration of Human Rights (1948), was not in doubt. In both public and private international law, each state was exclusively entitled to determine who its nationals were in accordance with its own law, subject to limits upon its right to impose its own nationality extra territorially. The Court of Appeal had held that a relevant foreign law regulating nationality had to be recognised however inequitable, oppressive or objectionable it may be: [1973] Ch 264, 273 (Buckley LJ). The House of Lords dismissed his appeal on other grounds, without finding it necessary to decide this point. But Lord Cross, with whom Lord Hodson and Lord Salmon agreed, held that had the point arisen the decree would have been disregarded. His analysis includes extensive reference to international law. But the real ground of his decision was not that the decree was itself a violation of international law. It was that the principle of international law which left each state free to determine who were its nationals could not require the courts of other states to recognise determinations repugnant to their own public policy. That raised the question how effect could be given to English public policy. The decree of 1941 could not be regarded as invalid under German law. Nor could the subsistence of German nationality be determined according to some law other than German law. The solution adopted by Lord Cross was that as a matter of English public policy a law of this sort constitutes so grave an infringement of human rights that the courts of this country ought to refuse to recognise it as a law at all (p 278). In Kuwait Airways, the House of Lords went further than Lord Cross had done. It held by a majority (Lord Scott dissenting) that in certain circumstances the municipal law of a state could be disregarded, even in its application to matters within its own territory and notwithstanding the act of state doctrine, on the ground that it constituted a sufficiently serious violation of international law. The issue was whether an English court should recognise a decree law of the Iraqi government (Resolution 369) extinguishing the existence of Kuwait as an independent state and expropriating its assets, including aircraft belonging to Kuwait Airways Corporation which were then located in Iraq. Iraqi law was the lex situs. As such, it was the law designated by ordinary principles of private international law. The argument (summarised by Lord Nicholls at para 24) was that it could not be disregarded as a violation of the law of nations consistently with the foreign act of state doctrine. The violation itself was admitted, and in any event incontestable. Resolution 369 was, in Lord Nicholls words, part and parcel of the Iraqi seizure of Kuwait. The seizure had been a flagrant breach of article 2(4) of the United Nations Charter by which states renounce the threat or use of force as an instrument of international policy, a provision which as Lord Steyn (para 115) pointed out had the character of jus cogens. The annexation and the seizure of the assets of Kuwaiti nationals had been specifically condemned by successive resolutions of the UN Security Council. Further Security Council resolutions had called on all states to take all necessary measures to protect the assets of the legitimate government of Kuwait and its agencies and to refrain from any action that might be regarded as recognising the seizures. These resolutions were binding in international law on all states, including the United Kingdom. The House declined to give effect to Resolution 369. The leading speech was delivered by Lord Nicholls. Lord Steyn and Lord Hope agreed with Lord Nicholls, adding observations of their own on the exclusion of Resolution 369. Lord Hoffmann also agreed, adding observations on another point. Lord Nicholls starting point (para 16) was that the rejection of an otherwise applicable foreign law was justified in cases where its application would be wholly alien to fundamental requirements of justice as administered by an English court. In particular (para 26) the rule that the transactions of sovereign states were not justiciable could not prevent the court from examining them in a case where, because the violation of international law was incontestable, the adjudication problems confronting the English court in the Buttes litigation do not arise. That being so, the court was at liberty to refuse to recognise a foreign law which offended against English public policy. The next question was whether it did. Lord Nicholls regarded Resolution 369 as contrary to public policy for three related reasons, which are summarised at para 29 of his speech. First, it was a gross violation of established rules of international law of fundamental importance, as repugnant to English public policy as the Nazi decree considered in Oppenheimer v Cattermole. Secondly (for good measure), the enforcement or recognition of Resolution 369 would be contrary to the obligations of the United Kingdom under the UN Charter (para 29). Third, it would sit uneasily with the almost universal condemnation of Iraqs behaviour and with the military action, in which this country participated, taken against Iraq to compel its withdrawal from Kuwait. Lord Steyn, while warning (para 114) that not every breach of international law will trigger the public policy exception, gave his own reasons in terms similar to Lord Nicholls. So did Lord Hope. He identified the relevant public policy as being that our courts should give effect to clearly established principles of international law (para 139). But he thought it clear that very narrow limits must be placed on any exception to the act of state rule (para 138). He concluded, at para 149: Respect for the act of state doctrine and the care that must be taken not to undermine it do not preclude this approach. The facts are clear, and the declarations by the Security Council were universal and unequivocal. If the court may have regard to grave infringements of human rights law on grounds of public policy, it ought not to decline to take account of the principles of international law when the act amounts as I would hold that it clearly does in this case to a flagrant breach of these principles. As Lord Upjohn indicated in In re Claim by Helbert Wagg Co Ltd [1956] Ch 313, 334, public policy is determined by the conceptions of law, justice and morality as understood in the courts. I would hold that the effectiveness of Resolution 369 as vesting title in IAC to KACs aircraft is justiciable in these proceedings, and that such a flagrant international wrong should be deemed to be so grave a matter that it would be contrary to the public policy of this country to give effect to it. The principle which the Appellate Committee applied in Kuwait Airways was that the English courts were not precluded from questioning the propriety or otherwise of a foreign legislative act and declining to recognise it, if it offended a fundamental requirement of justice as administered by an English court. It is the same as the principle which allows an English court to decline to apply a rule of an otherwise applicable foreign law which is contrary to public policy: see, now, section 14(3)(a)(i) of the Private International Law (Miscellaneous Provisions) Act 1995. This is a principle of English public policy. But in an international context, it is informed by any relevant norms of international law binding on the United Kingdom as it was in Kuwait Airways. Recognition of the influence of international law does not mean that every rule of international law must be adopted as a principle of English public policy, even if it is acknowledged as a peremptory norm (jus cogens) at an international level. For my part, I would adopt the cautious observations of Le Bel J, delivering the judgment of the Supreme Court of Canada in Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 176 at paras 150 151. The issue before the court in that case was whether to recognise a public policy exception to state immunity in cases where this would conflict with the values protected by the Canadian Charter of Rights and Freedoms. Le Bel J pointed out that not all commitments in international agreements amount to principles of fundamental justice. Their nature is very diverse. International law is ever changing. The interaction between domestic and international law must be managed carefully in light of the principles governing what remains a dualist system of application of international law and a constitutional and parliamentary democracy. The mere existence of an international obligation is not sufficient to establish a principle of fundamental justice. Were we to equate all the protections or commitments in international human rights documents with principles of fundamental justice, we might in effect be destroying Canadas dualist system of reception of international law and casting aside the principles of parliamentary sovereignty and democracy. The role of international law in this field, as he went on to point out, is to influence the process by which judges identify a domestic principle as representing a sufficiently fundamental legal policy: 151. That being said, I am prepared to accept that jus cogens norms can generally be equated with principles of fundamental justice and that they are particularly helpful to look to in the context of issues pertaining to international law. Just as principles of fundamental justice are the basic tenets of our legal system . , jus cogens norms are a higher form of customary international law. In the same manner that principles of fundamental justice are principles upon which there is some consensus that they are vital or fundamental to our societal notion of justice, jus cogens norms are customs accepted and recognized by the international community of states from which no derogation is permitted Torture The legal implications of torture in English and international law have been considered by the House of Lords on a number of occasions: R v Bow Street Metropolitan Stipendiary Magistrate, Ex p Pinochet Ugarte (No 3) [2000] 1 AC 147, A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2007] 1 AC 270. Torture is unconditionally prohibited by article 3 of the European Convention on Human Rights and by the UN Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment (1984). The United Kingdom is a party to these instruments and has given effect to them by statute. The prohibition has the status of jus cogens erga omnes. That is to say that it is a peremptory norm of international law which gives rise to obligations owed by each state to all other states and from which no derogation can be justified by any countervailing public interest. In the words of article 2.1 of the UN Torture Convention, no exceptional circumstances whatsoever, whether a state of war or a threat of war, internal political instability or any other public emergency, may be invoked as a justification of torture. In A v Secretary of State for the Home Department (No 2), supra, at para 33, Lord Bingham, said: There can be few issues on which international legal opinion is more clear than on the condemnation of torture. Offenders have been recognised as the common enemies of mankind (Demjanjuk v Petrovsky (1985) 612 F Supp 544, 566, Lord Cooke of Thorndon has described the right not to be subjected to inhuman treatment as a right inherent in the concept of civilisation (Higgs v Minister of National Security [2000] 2 AC 228, 260), the Ninth Circuit Court of Appeals has described the right to be free from torture as fundamental and universal (Siderman de Blake v Argentina (1991) 965 F 2d 699, 717) and the UN Special Rapporteur On Torture (Mr Peter Koojimans) has said that If ever a phenomenon was outlawed unreservedly and unequivocally it is torture (Report of the Special Rapporteur on Torture, E/CN 4/1986/15, para 3). In Jones v Ministry of the Interior of the Kingdom of Saudi Arabia, the House of Lords held that notwithstanding the status of the prohibition of torture as jus cogens in international law, the United Kingdom was under no international law obligation to make a civil remedy available for torture committed outside its territorial jurisdiction. There were two reasons for this. The main reason was that as a matter of customary international law breach of a jus cogens norm does not itself require civil jurisdiction to be assumed by states. Lord Bingham, with whom the rest of the Appellate Committee agreed, expressed this (para 24) in terms taken from the first edition of Fox, The Law of State Immunity: State immunity is a procedural rule going to the jurisdiction of a national court. It does not go to substantive law; it does not contradict a prohibition contained in a jus cogens norm but merely diverts any breach of it to a different method of settlement. Lord Hoffmann, concurring, said, at para 45: To produce a conflict with state immunity, it is therefore necessary to show that the prohibition on torture has generated an ancillary procedural rule which, by way of exception to state immunity, entitles or perhaps requires states to assume civil jurisdiction over other states in cases in which torture is alleged. Such a rule may be desirable and, since international law changes, may have developed. But it is not entailed by the prohibition of torture. Lord Bingham and Lord Hoffmann went on to consider whether an obligation to make a civil remedy available could be derived from the Torture Convention. They concluded that it could not. Article 14 of the Torture Convention, which dealt with the states obligations in respect of civil remedies, dealt only with remedies for torture committed within the states territorial jurisdiction. These conclusions have provoked some academic controversy and have been criticised by the respondents on these appeals. But they were supported by the decision of the International Court of Justice in Democratic Republic of Congo v Belgium (case concerning arrest warrant of 11 April 2000) (2002) ICJ Rep 3, in which state immunity was held to be available in proceedings based on breach of another peremptory norm of international law, namely the prohibition of war crimes and crimes against humanity. More recently, in Jurisdictional Immunities of the State (Germany v Italy, Greece Intervening) [2012] ICJ Rep 99, the International Court of Justice reaffirmed its decision in Arrest Warrant and held that Italy and Greece were in breach of customary international law in rejecting claims by Germany to state immunity in respect of massacres and deportations of civilians by German armed forces in Italy and Greece during the Second World War. The Court specifically endorsed the decision of the House of Lords in Jones v Saudi Arabia: see paras 85, 87, 96. In its reasoning, the International Court adopted the same distinction between procedure and substance as Lord Bingham at para 24 of his speech in that case: To the extent that it is argued that no rule which is not of the status of jus cogens may be applied if to do so would hinder the enforcement of a jus cogens rule, even in the absence of a direct conflict, the Court sees no basis for such a proposition. A jus cogens rule is one from which no derogation is permitted but the rules which determine the scope and extent of jurisdiction and when that jurisdiction may be exercised do not derogate from those substantive rules which possess jus cogens status, nor is there anything inherent in the concept of jus cogens which would require their modification or would displace their application. (para 95) Since that decision, the European Court of Human Rights in Jones v United Kingdom (2014) 59 EHRR 1, at para 198 and the Supreme Court of Canada in Kazemi Estate v Islamic Republic of Iran [2014] SCC 62; [2014] 3 SCR 176 at paras 102 105, 141 167, have both conducted a careful review of the international material and the decisions of national courts, and arrived at the same conclusion on this point as the House of Lords did in Jones. I do not propose to re examine that material once more, because the present question is not the correctness of the decision in Jones, but its relevance in the rather different context of the foreign act of state doctrine. In Jones, the absence of any international law obligation to make a civil remedy available for torture abroad mattered. This was because states unquestionably have an international law obligation to recognise the forensic immunity in their own courts of other states and their agents. The International Court of Justice held as much in Arrest Warrant and again in Jurisdictional Immunities. That international law obligation might have been displaced if there had been a countervailing international law obligation to provide a civil remedy for torture wherever committed. The act of state doctrine, by comparison, does not reflect any obligation of states in international law. It follows that an exception to it does not need to be based on a countervailing international law obligation in order to accord with principle. It is enough that the proposed exception reflects a sufficiently fundamental rule of English public policy. In my opinion, it would be contrary to the fundamental requirements of justice administered by an English court to apply the foreign act of state doctrine to an allegation of civil liability for complicity in acts of torture by foreign states. Respect for the autonomy of foreign sovereign states, which is the chief rationale of the foreign act of state doctrine, cannot extend to their involvement in torture, because each of them is bound erga omnes and along with the United Kingdom to renounce it as an instrument of national or international policy and to participate in its suppression. In those circumstances, the only point of treating torture by foreign states as an act of state would be to exonerate the defendants from liability for complicity. The defendants are not foreign states. Nor are they the agents of foreign states. They are or were at the relevant time officials and departments of the British government. They would have no right of their own to claim immunity in English legal proceedings, whether ratione personae or ratione materiae. On the other hand, they would be protected by state immunity in any other jurisdiction, with the result that unless answerable here they would be in the unique position of being immune everywhere in the world. Their exoneration under the foreign act of state doctrine would serve no interest which it is the purpose of the doctrine to protect. This is not a point which has arisen in any English case apart from R (Noor Khan) v Secretary of State for Foreign Affairs. But it was considered by the Supreme Court of Canada in Omar Ahmed Khadr v Canada [2008] 2 SCR 125 and by the Federal Court of Australia in Habib v Commonwealth (2010) 265 ALR 50. Khadr was not a case of torture. The plaintiff had been captured by US forces in Afghanistan and transferred to Guantanamo Bay. The allegation was that Canadian officials had connived in his unlawful detention there by the United States government. The Supreme Court of Canada held that the foreign act of state doctrine had no application for two reasons. First, the US Supreme Court in Rasul v Bush (2004) 542 US 466 had held that the indefinite detention without access to a court of persons captured in military operations was a violation of the Geneva Conventions: paras 21 24. That constituted an admission by the United States and made a finding of violation uncontentious. The court declined to consider what the position would have been in the absence of that decision. Secondly, the considerations of comity which underlay the foreign act of state doctrine cannot be used to justify Canadian participation in activities of a foreign state or its agents that are contrary to Canadas international obligations: para 18.This was because (i) Canada was itself party to the Geneva Convention, and under an international law obligation not to countenance the violations in question, and (ii) the right to apply for habeas corpus was a fundamental human right recognised by Canadian law also: paras 25 26. In Habib, the plaintiff had been arrested in Pakistan and successively detained there, in Egypt and at Guantanamo Bay. The allegation was that Australian officials aided and abetted officials of the various foreign states involved to torture him. Jagot J, delivering the leading judgment in the Federal Court of Australia, held, at para 114, that the modern cases on the foreign act of state doctrine do not support a conclusion that the act of state doctrine prevents an Australian court from scrutinising the alleged acts of Australian officials overseas in breach of peremptory norms of international law to which effect has been given by Australian laws having extra territorial application. She went on to point out that the public policy considerations which justified both the act of state doctrine and the exceptions to it had to be considered in a context where the prohibition on torture forms part of customary international law and those partners themselves are signatories to an international treaty denouncing torture. The purpose of the foreign act of state doctrine is to preclude challenges to the legality or validity of the sovereign acts of foreign states. It is not to protect English parties from liability for their role in it. In itself, that would not prevent them from taking incidental advantage of the foreign act of state doctrine. In R (Noor Khan) v Secretary of State for Foreign Affairs, British officials were entitled to take advantage of the doctrine in a case where they were said to have assisted in military action overseas by a foreign sovereign. I think that that decision was correct. But torture is different. It is by definition an act of a public official or a person acting in an official capacity: see article 1 of the Torture Convention. Article 4 of the Convention requires the United Kingdom to criminalise not only torture (as defined) but acts constituting complicity in torture. Article 5 requires the United Kingdom to establish criminal jurisdiction over offences referred to in article 4 wherever in the world they are committed, if they are committed by its nationals or by persons present in its territory. It is no answer to these points to say that these treaty provisions are concerned with criminal law and jurisdiction. So they are. But the criminal law reflects the moral values of our society and may inform the content of its public policy. Torture is contrary to both a peremptory norm of international law and a fundamental value of domestic law. Indeed, it was contrary to domestic public policy in England long before the development of any peremptory norm of international law. It derives its force chiefly from Englands long domestic tradition of abhorrence of torture, even in a period when it was commonplace in other jurisdictions. As Lord Bingham observed in A v Secretary of State for the Home Department (No 2), supra, at para 12, the condemnation of torture is not simply an exclusionary rule of evidence. It is more aptly categorised as a constitutional principle than as a rule of evidence: cf para 51. The Secretary of State submits that unless the facts are undisputed or indisputable, as they were in Kuwait Airways, the foreign act of state doctrine precludes any examination of the facts. In my view this submission fails to distinguish between two different inquiries: (i) an enquiry into the lawfulness or validity of the alleged act of state, and (ii) an inquiry into the question whether there is any factual foundation for applying the foreign act of state doctrine at all. Whenever the foreign act of state doctrine is invoked, the court must decide whether it applies. If it cannot do it by reference to the pleadings or admissions, it must examine the evidence. This may involve examining what the state has done, for example where there is an issue as to its responsibility for the acts of its alleged agents. Thus in Underhill v Hernandez the application of the foreign act of state doctrine came before the Supreme Court on an appeal from the decision at a trial. The trial court had made findings of fact about the responsibility of the government of Venezuela. The Supreme Court relied on these findings (p 254) without any suggestion that in making them the lower court had been sitting in judgment on that government. The same point could be made about Hatch v Baez and Oetjen v Central Leather Co. The need to establish a factual foundation for the application of the doctrine must equally apply where the issue concerns not the character of the act but the availability of an exception. I conclude that it would not be consistent with English public policy to apply the foreign act of state doctrine so as to prevent the court from determining the allegations of torture or assisting or conniving in torture made against these defendants. Unlawful detention, enforced disappearance and rendition Article 9 of the Universal Declaration of Human Rights (1948) provides that no one shall be subjected to arbitrary arrest, detention or exile. The prohibition of arbitrary detention gives rise to problems of definition far more complex than those associated with the prohibition of torture. Torture is always contrary to international law, but not all detention is arbitrary. On the question what makes it arbitrary, there is as yet no clear consensus. The editors of the American Law Institutes authoritative Restatement (3rd) of the Foreign Relations Law of the United States (1987) express the view that arbitrary detention violates customary international law if it is prolonged and practiced as state policy: see para 702(e) and Comment (h). More recently, in December 2012, the UN Working Group on Arbitrary Detention, after canvassing states on the question what factors qualified detention as arbitrary in their domestic law, concluded that detention might be regarded as arbitrary in customary international law if it lacked any legal basis, but also in some circumstances even if it did have a legal basis, depending on the reason for the detention and in some cases on its duration: UN A/HRC/22/44, at para 38. These more or less speculative suggestions may indicate that the boundaries of arbitrary detention in international human rights law are not yet fixed. But it is clear that the irreducible core of the international obligation, on which there is almost complete consensus, is that detention is unlawful if it is without any legal basis or recourse to the courts. The consensus on that point is reflected in the terms of the International Covenant on Civil and Political Rights (1966), an expansion in treaty form of the Universal Declaration of 1948, which provides by article 9: 1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedures as are established by law. 3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release 4. Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful. 5. Anyone who has been the victim of unlawful arrest or detention shall have an enforceable right to compensation. The Covenant has been ratified by 167 states to date, including the United Kingdom, the United States, Thailand and Libya. Malaysia is one of a handful of states which are not a party, but it has declared that it adheres to its principles. The UN Working Group regarded this irreducible core as jus cogens: loc cit, para 49. In my opinion they were right to do so. It is fair to say that article 4 of the Covenant does recognise a limited right to derogate from its terms in time of public emergency which threatens the life of the nation to the extent strictly required by the exigencies of the situation, with certain exceptions such as torture, arbitrary killing and slavery. The existence of a right to derogate is normally regarded as inconsistent with the status of jus cogens: see article 53 of the Vienna Convention on the Law of Treaties. But this difficulty is more apparent than real. Although expressed as a right of derogation, the exception for public emergencies corresponds to the general exception from state responsibility which international law recognises in cases where an act prohibited by international law is shown to be the only way for a state to safeguard an essential interest against a grave and imminent peril: see the International Law Commissions Draft Articles on Responsibility of States for Internationally Wrongful Acts, article 25, and the extensive review of judicial decisions and state practice cited in the associated commentary. For this reason the UN Working Group considered that non derogability in an emergency was consistent with the prohibition being a peremptory norm: UN A/HRC/22/44, at paras 50 51. The same view is expressed in the Reporters Notes to para 702 of the American Restatement: see Note 11. The significant point for present purposes is that the core prohibition in international law of detention without legal basis or recourse to the courts corresponds to a fundamental principle of English public policy. Like English laws rejection of torture it is an essential feature of our constitutional order. It has traditionally been traced, at any rate since the time of Sir Edward Coke, to the 29th article of Magna Carta. Charles James Fox is not always a useful source of constitutional principle, but most lawyers would agree with his famous description of the writ of habeas corpus as the great palladium of the liberties of the subject. The principle underlying the writ is that the availability of recourse to a court to test the legality of detention is the hallmark of its constitutionality. Indeed, although the position has in some respects been modified by statute, at common law the reach of the writ of habeas corpus has even been held to extend to anywhere in the world where a servant of the Crown or any other person amenable to the personal jurisdiction of the court has detained a person: Ex p Anderson (1861) 3 El & El 487. Or appears to be in a position to procure his production: Rahmatullah v Secretary of State for Defence [2013] AC 614. I turn to rendition and enforced disappearance, both of which are aggravated forms of arbitrary detention. Rendition is an archaic expression which was once more or less synonymous with extradition. The Oxford English Dictionary, in its Supplement for September 2006, defines extraordinary rendition as the seizure and transportation by authorities of a criminal suspect from one country to another without the formal process of extradition. Sometimes used spec with reference to moving a terrorist suspect for interrogation in a country considered to have less rigorous regulations for the humane treatment of prisoners. I shall take it to have the meaning given to it by the Belhaj claimants in their Particulars of Claim, namely a euphemism commonly used since about 2001 to describe covert unlawful abduction organised and carried out by state agents, across international borders, for the purpose of unlawful detention, interrogation and/or torture. The context of Mr Rahmatullahs pleading shows that he is using it in the same sense. Enforced disappearance was described by Leggatt J in R (Al Saadoon) v Secretary of State for Defence [2015] EWHC 715 (Admin); [2015] 3 WLR 503, para 209, as a concept recognised in international law and a practice which is internationally condemned. It involves detention outside the protection of the law where there is a refusal by the state to acknowledge the detention or disclose the fate of the person who has been detained. Its cruelty and vice lie in the facts that the disappeared person is completely isolated from the outside world and at the mercy of their captors and that the persons family is denied knowledge of what has happened to them. Enforced disappearance is a violation of article 5 of the European Human Rights Convention in the case of persons within the jurisdiction of a Convention state: Kurt v Turkey (1998) 27 EHRR 373. In December 2006 the United Nations adopted a draft Convention for the Protection of all Persons from Enforced Disappearance, which seeks to provide more generally for enforced disappearance. The Convention came into force in December 2010. It has to date been signed by 94 states and ratified by 45. But the parties do not include the United Kingdom, the United States, Malaysia or Libya. Thailand is a signatory, but has not ratified. In these circumstances I consider that the Convention has nothing to contribute to the issues on this appeal. However, even in the absence of specific rules of international law relating to rendition and enforced disappearance, a prohibition of these practices is necessarily comprised in the more general prohibition of arbitrary detention by other international instruments, notably article 9 of the International Covenant on Civil and Political Rights. The UN Working Group on Arbitrary Detention was surely right to say (loc cit, para 60) that secret and/or incommunicado detention constitutes the most heinous violation of the norm protecting the right to liberty of human beings under customary international law. The arbitrariness is inherent in these forms of deprivation of liberty as the individual is left outside the cloak of any legal protection. Likewise, the European Court of Human Rights has had no difficulty in dealing with rendition cases within the jurisdiction of a Convention state under the broader heading of the right to liberty and security of the person protected by article 5: see El Masri v Macedonia (2013) 57 EHRR 25; Al Nashiri v Poland & Husayn v Poland (2015) 60 EHRR 16. Historically, rendition is not a complete stranger to English practice. As Lord Hope pointed out in A v Secretary of State for the Home Department (No 2) [2006] 2 AC 221, at paras 106 10, in the second half of the 17th century, persons accused of treason were occasionally deported by administrative decision to Scotland, where confessions could lawfully be extracted from them by torture. More recently, administrative deportation of British subjects was practised by British colonial administrations: M Lobban, Habeas Corpus, Imperial Rendition and the Rule of Law, Current Legal Problems, (2015) 68, 27 84. But renditions to Scotland were probably always contrary to the law of England, and colonial renditions were only ever accepted by the courts on the basis that the Crown had power to legislate for the colonies in a manner contrary to fundamental principles of English law: see R v Earl of Crewe, Ex p Sekgome [1910] 2 KB 576, 607, 609 610 (Vaughan Williams LJ), 615 617 (Farwell LJ), 627 629 (Kennedy LJ). This digression into history serves mainly to show how much has changed as a result of the adoption of fundamental human rights by English law and, more broadly, its recognition of the broader implications of the rule of law. In the rare modern instances of rendition to the United Kingdom by or with the complicity of British officials, the courts have not been willing to tolerate the consequences. The difference, as Lord Griffiths put it in R v Horseferry Road Magistrates Court, Ex p Bennett, at p 62A, is that the judiciary accept a responsibility for the maintenance of the rule of law that embraces a willingness to oversee executive action and to refuse to countenance behaviour that threatens either basic human rights or the rule of law. In my opinion the foreign act of state doctrine cannot be applied to the detention alleged to have been inflicted on these claimants by US and Libyan officials, for substantially the same reasons as it cannot be applied to the allegations of torture. They exhibit the same combination of violation of peremptory norms of international law and inconsistency with principles of the administration of justice in England which have been regarded as fundamental since the 17th century. The fact that if the pleaded allegations are correct the claimants were forcibly transported across international borders without any lawful process of extradition is a significant aggravating factor engaging the same considerations of public policy. The position is less clear in relation to the relatively brief periods of detention said to have been inflicted on Mr Belhaj and Mrs Boudchar by the authorities in Malaysia and Thailand, in respect of which the pleaded allegations are thinner. But there can be no justification for striking out that part of the Particulars of Claim in the absence of a trial of the facts. Other cruel, inhuman or degrading treatment The Torture Convention applies to both torture and other cruel, inhuman or degrading treatment, but it distinguishes between them. Article 1.1 of the Convention defines torture properly so called. Article 2.2, which precludes derogations in any circumstances, applies only to torture as defined. The international obligation of states in relation to other cruel, inhuman or degrading treatment is defined by article 16. It is to prevent such acts within its jurisdiction. The Convention also imposes on states the ancillary administrative and investigatory obligations laid down by articles 10, 11, 12 and 13 of the Convention. The international obligation upon states to assume universal criminal jurisdiction over torture does not apply to the lesser forms of ill treatment. In A v Secretary of State for the Home Department (No 2), supra, at para 53, Lord Bingham acknowledged the significance of these differences: Ill treatment falling short of torture may invite exclusion of evidence as adversely affecting the fairness of a proceeding under section 78 of the 1984 Act, where that section applies. But I do not think the authorities on the Torture Convention justify the assimilation of these two kinds of abusive conduct. Special rules have always been thought to apply to torture, and for the present at least must continue to do so. In these circumstances, it is difficult to regard the prohibition of ill treatment falling short of torture as jus cogens. Nor does it engage the same fundamental considerations of English public policy which justify treating torture as an exception to the foreign act of state doctrine. The practical consequences of this difference in cases like the present are, however, limited. Like torture, other cruel, inhuman or degrading treatment must by definition be committed or authorised by a public official: article 16. It may fall short of torture, either because it is insufficiently severe or because it is not committed for one of the purposes specified in article 1 (obtaining information or a confession, punishment, intimidation, coercion, or other reasons based on discrimination). Given the breadth of the definition of torture, which extends to any intentional infliction of severe pain and suffering, whether physical or mental, and the wide range of motives which may lead to ill treatment being classified as torture, the residual category of other cruel, inhuman or degrading treatment is in practice likely to be a very narrow one. Article 6 of the European Convention on Human Rights The conclusion that I have reached on the ambit of the exceptions to the act of state doctrine means that article 6 is only marginally relevant to the present appeals. It could not apply to the detentions themselves. It could apply only so far as the treatment of the claimants while they were detained amounted to cruel, inhuman or degrading treatment but fell short of torture. I will therefore deal with it briefly. Article 6 might in principle apply so far as the application of the foreign act of state doctrine would constitute a denial of the claimants right to a court: Golder v United Kingdom (1975) 1 EHRR 524. There are circumstances in which an immunity from liability or adjudication will engage article 6. In these cases, it must be justified by reference to the legitimacy of the objective and the proportionality of the means. State immunity is a controversial but well established example in the jurisprudence of the Strasbourg Court: Fogarty v United Kingdom (2002) 34 EHRR 12; Al Adsani v United Kingdom (2002) 34 EHRR 11; Cudak v Lithuania (2010) 51 EHRR 15; Sabeh El Leil v France (2012) 54 EHRR 14. But, except in rare cases where there are no judicial or manageable standards by which to determine an issue, the foreign act of state doctrine is not an immunity. It is a rule of substantive law which operates as a limitation on the subject matter jurisdiction of the English court. In Roche v United Kingdom (2005) 42 EHRR 30 the European Court of Human Rights held that the right to a court protected by article 6 was not engaged by a substantive rule of domestic law excluding liability, but only by a bar which was procedural in nature. The most pertinent illustration is Markovic v Italy (2006) 44 EHRR 52. The applicants in this case were relatives of persons who had been killed in the NATO air raid on Belgrade in 1999. The raid was said to be an act of war in violation of international law. It had been launched from bases in Italy. The Corte de Cassazione had held that by a rule of substantive law the Italian courts had no jurisdiction over acts of war or indeed over any acts of the Italian state which were impugned on the sole ground that they violated international law. The Strasbourg court applied the distinction between substance and procedure that they had formulated in Roche. They agreed that the limitation on the jurisdiction of the Italian court was substantive. It followed (para 114) that the decision of the Corte de Cassazione, does not amount to recognition of an immunity but is merely indicative of the extent of the courts powers of review of acts of foreign policy such as acts of war. To the limited extent that the foreign act of state doctrine might apply in these cases, it does not in my opinion engage article 6. Disposition For these reasons I would declare (i) that the claimants claims are not barred by state immunity, and (ii) that on the facts pleaded the claimants claims are not barred by the foreign act of state doctrine so far as they are based on allegations of complicity or participation in torture or in detention or rendition otherwise than by legal authority. I would affirm the decision of the Court of Appeal in Belhaj that no part of the claim is struck out.

This judgment is one of a number given by the Supreme Court today on issues arising from alleged complicity of United Kingdom officials in allegedly tortious acts of the UK or other states overseas. Mr Belhaj and his wife were detained in Kuala Lumpur in 2004. The respondents allege that MI6 informed the Libyan authorities of their whereabouts, leading to them being rendered to Libya against their will. They allege that they were unlawfully detained by Malaysian officials in Kuala Lumpur, Thai officials and US agents in Bangkok, and finally in Libya. They allege that the United Kingdom arranged, assisted and encouraged their rendition, as well as conspired in and assisted torture, inhumane and degrading treatment inflicted on them by the US and Libyan authorities. Mr Rahmatullah was detained by British forces in Iraq on 28 February 2004 on suspicion of being a member of the proscribed organisation Lashkar e Taiba. Within a few days he was transferred into US custody. By the end of March 2004 the US authorities had transferred him to Bagram Airbase in Afghanistan, where he was detained by such authorities without charge for over ten years. Part of his claim is that, in relation to this ten year period, British officials acted in combination with the US authorities and/or assisted or encouraged his unlawful detention and mistreatment by the US authorities. Rahmatullah is said to be representative of other claims currently before the High Court. The issues before the Court are whether, assuming for present purposes that the allegations made are true, the claims of UK complicity for unlawful detention and mistreatment overseas at the hands of foreign state officials are properly triable in the English courts. The appellants rely on the doctrines of state immunity and/or foreign act of state. In Belhaj the High Court held that there was no state immunity but that the claims were barred being based on foreign acts of state. The Court of Appeal affirmed the decision on state immunity but held the doctrine of foreign act of state to be: (i) limited to acts occurring within the jurisdiction of the relevant foreign state; and (ii) subject to a public policy exception for grave human rights violations. In Rahmatullah, the High Court held that neither doctrine applied. Both cases come before the Court on appeal, in the case of Rahmatullah by leapfrog order. The Supreme Court unanimously dismisses the Governments appeals. Lord Mance gives the lead judgment. Lord Neuberger gives a concurring judgment, with which Lord Wilson, Lady Hale and Lord Clarke agree. Lord Sumption adds a further concurring judgment, with which Lord Hughes agrees. State immunity is based on the sovereign equality of states and international comity [12]. The appellants submit that state immunity covers (under the concept of indirect impleading) cases where it is integral to a claim against United Kingdom authorities to prove that foreign officials acted contrary to their own laws. They rely on the concepts of interests or activities in Article 6(2)(b) of the 2004 UN Convention on Jurisdictional Immunities of States and Their Property [25]. However, the Court concludes that none of those concepts covers reputational disadvantage that could be suffered by foreign states [29, 195]. The relevant foreign states will not be affected in any legal sense by proceedings to which they are not party. The pleas of state immunity fail accordingly [31, 197]. Lord Mance identifies three types of foreign act of state rule recognised in current English authority, broadly also reflected in the judgment of Lord Neuberger. The first is a rule of private international law, whereby a foreign states legislation will normally be recognised and treated as valid, so far as it affects movable or immovable property within that states jurisdiction [35, 135]. The second rule (taking, without necessarily endorsing current Court of Appeal authority) goes no further than to preclude a domestic court from questioning the validity of a foreign states sovereign act in respect of property within its jurisdiction, at least in times of civil disorder [38, 74 78]. Even if this rule were, however, viewed as extending more generally to acts directed against the person, it would be subject to a public policy exception which would permit the allegations of complicity in torture, unlawful detention and enforced rendition in this case to be pursued in the English courts [80, 156]. Thirdly, a domestic court will treat as non justiciable or will refrain from adjudicating on or questioning certain categories of sovereign act by a foreign state abroad, even if outside the jurisdiction of that state [40, 123]. Whether an issue is non justiciable under the third rule falls to be considered on a case by case basis, having regard to the separation of powers and the sovereign nature of activities [90 95]. English law will take into account whether issues of fundamental rights are engaged, including liberty, access to justice and freedom from torture [98, 101]. The international relations consequences of a court adjudicating on an issue may also feed into the assessment under the third rule [41]. In this case, the circumstances do not lead to a conclusion that the issues are non justiciable [96 105, 167 8]. Lord Neuberger underlines the limits of the foreign act of state doctrine. A public policy exception qualifies the first and (so far as it exists) second rules; and, if necessary, also the third rule [157]. Lord Sumption identifies in the case law two relevant principles: municipal law act of state corresponding generally with the first two rules of Lord Mances framework [228], and international law act of state corresponding generally with Lord Mances third rule. Municipal act of state is confined to acts done within the territory of the relevant foreign state [229]. International law act of state requires the English courts not to adjudicate on the lawfulness of the extraterritorial acts of foreign states in their dealings with other states or the subjects of other states, since these occur on the plane of international law [234]. But the doctrine does not apply simply because the subject matter may incidentally disclose that a state has acted unlawfully and it is subject to a further public policy exception, potentially applicable in cases of violations of jus cogens under international law (fundamental norms from which no derogation is permitted) and of fundamental human rights [248]. It is unnecessary to decide whether: a) the UN Convention against Torture requires any modification of the doctrine of foreign act of state to give a universal civil remedy for torture [11(v)(a), 108]; b) article 6 of the European Convention on Human Rights precludes reliance on state immunity or foreign act of state; or to say more than that the appellants would face difficulties on each point [11(v)(b), 281 4]. In the result, state immunity is no bar to the claims, and the appellants have not, on the assumed facts, shown any entitlement to rely on the doctrine of foreign act of state to defeat the present proceedings. The appeals are dismissed and the cases may proceed to trial.

long

These appeals arise out of tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights, and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted a suicide is lawful. The appeals arise out of claims brought by three men, Tony Nicklinson, Paul Lamb and someone known for the purpose of these proceedings as Martin, each of whom was suffering such a distressing and undignified life that he had long wished to end it, but could not do so himself because of his acute physical incapacity. Mr Lamb contends that the law should permit him to seek assistance in killing himself in this country, and, if it does not, it should be changed so as to enable him to do so. He is supported by the widow of Mr Nicklinson, who has died since the proceedings were issued. Martins case is that there should be clearer guidance in the policy published by the DPP with regard to prosecuting those from whom he would like advice and assistance in connection with killing himself. An outline of the facts The first appeal arises from the fact that Mr Nicklinson suffered a catastrophic stroke eight or nine years ago, when he was aged 51. As a result, he was completely paralysed, save that he could move his head and his eyes. He was able to communicate, but only laboriously, by blinking to spell out words, letter by letter, initially via a perspex board, and subsequently via an eye blink computer. Despite loving and devoted attention from his family and carers, his evidence was that he had for the past seven years consistently regarded his life as dull, miserable, demeaning, undignified and intolerable, and had wished to end it. Because of his paralysed state, Mr Nicklinson was unable to fulfil his wish of ending his life without assistance, other than by self starvation, a potentially protracted exercise, involving considerable pain and distress. His preference was for someone to kill him by injecting him with a lethal drug, such as a barbiturate, but, if that was not acceptable, he was prepared to kill himself by means of a machine invented by Philip Nitschke, an Australian doctor. This machine, after being loaded with a lethal drug, could be set up so as to be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Because he was told that it would be unlawful for someone to kill him or even to assist him in killing himself, Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his rights under article 8 of the Convention. While expressing great sympathy and respect for Mr Nicklinsons situation and wishes, the High Court, in an impressive judgment given by Toulson LJ, with whom Royce and Macur JJ agreed, refused him both forms of relief [2012] EWHC 2381 (Admin). Following that decision, Mr Nicklinson embarked on the very difficult and painful course of self starvation, refusing all nutrition, fluids, and medical treatment, and he died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then both added (because she contended that she had a claim in her own right) and substituted (in her capacity as administratrix of Mr Nicklinsons estate) as a party to the proceedings, and pursued an appeal to the Court of Appeal. The Court of Appeal, while again sympathetic and respectful of her position, dismissed her appeal for reasons given in a similarly impressive judgment by Lord Dyson MR and Elias LJ, with whom Lord Judge CJ agreed [2013] EWCA Civ 961; [2014] 2 All ER 32. Because it was feared that there might be a challenge to Mrs Nicklinsons right to pursue an appeal, Paul Lamb was added as a claimant in the proceedings before the hearing in the Court of Appeal. Since a catastrophic car crash in 1990, Mr Lamb has been completely immobile, save that he is able to move his right hand. He requires carers 24 hours a day, suffers pain every day, and is permanently on morphine. His condition is irreversible, and he wishes a doctor to end his life, which he regards as consisting of a mixture of monotony, indignity and pain. He therefore applied for the same relief as Mr Nicklinson had sought, and it was similarly refused by the Court of Appeal. The second appeal arises from the fact that Martin (who wishes to be so described in order to maintain his privacy) suffered a brainstem stroke in August 2008, when he was 43. He is almost completely unable to move and can only communicate thorough slow hand movements and via an eye blink computer. His condition is incurable, and, despite being devotedly looked after by his wife and carers, his evidence is that he wishes to end his life, which he regards as undignified, distressing and intolerable, as soon as possible. Apart from self starvation, Martins only way of achieving this is by travelling to Zurich in Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. However, he first needs (i) to find out about this service, (ii) to join Dignitas, (iii) to obtain his medical records, (iv) to send Dignitas money, and (v) to have someone accompany him to Zurich. For understandable reasons, his wife does not want to be involved, and he does not want to involve any other member of his family, in this project. So, as he says, he needs assistance from one of his carers or from an organisation such as Friends At The End. Martin began proceedings seeking an order that the DPP should clarify, and modify, his published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 (the 2010 Policy) and other relief. He seeks the clarification and modification to enable responsible people, including, but not limited to, carers who are willing to do so, to know that they could assist Martin in committing suicide through Dignitas without the risk of being prosecuted. Martins proceedings were heard together with those brought by Mr Nicklinson, and they failed in the High Court. A few months later, he embarked on an attempt to end his life by self starvation, but abandoned it in distressing circumstances. Martins appeal, which was heard together with that of Mrs Nicklinson and Mr Lamb, was partially successful, in that Lord Dyson and Elias LJ considered that, in certain respects, the 2010 Policy was not sufficiently clear in relation to healthcare professionals [2013] EWCA Civ 961, para 140; [2014] 2 All ER 32. Lord Judge CJ took a different view, and would have dismissed Martins appeal. The Court of Appeal gave Mrs Nicklinson and Mr Lamb (the appellants) permission to appeal to the Supreme Court in the first appeal. In the second appeal, the Court of Appeal gave the DPP permission to appeal, and Martin permission to cross appeal, as he contends that the order of the Court of Appeal in his case does not go far enough. The tragic situations in which Mr Nicklinson, Mr Lamb and Martin found or find themselves are not as uncommon as some may like to think. There is reliable statistical and anecdotal evidence which indicates that, in recent years, hundreds of people suffering from terminal or chronic conditions, whose lives are often painful and/or undignified, committed suicide annually, that a significant number of them were assisted in doing so, and that there are many who wish to die, but (like Mr Nicklinson, Mr Lamb and Martin) cannot do so without assistance or advice, which it is generally assumed that they are unable to obtain because of the current state of the law. Examples of such evidence may be found in Assisted Dying for the Terminally Ill Bill First Report HL Paper 86 I, 2005, especially para 77, and the Report on Assisted Dying, the Falconer Report, 2012, especially pp 108 138. The legal and policy background The domestic law relating to killing and suicide Murder represents the most serious form of homicide, and it is a common law offence in England and Wales, although some of its ingredients have been altered by legislation, most significantly by the Homicide Act 1957 (the 1957 Act). For present purposes, it suffices to say that the offence of murder involves the perpetrator killing a person when intending either to kill or to inflict grievous bodily harm. A conviction for murder carries a mandatory life sentence. Manslaughter is also a common law offence with statutory amendments, again most notably in the 1957 Act. The offence of voluntary (as opposed to involuntary) manslaughter is, in effect, murder in circumstances where the perpetrator is able to raise certain specified grounds of mitigation, including diminished responsibility and loss of control (all of which are subject to certain requirements). Manslaughter carries a maximum sentence of life imprisonment, and there is no minimum sentence. Mercy killing is a term which means killing another person for motives which appear, at least to the perpetrator, to be well intentioned, namely for the benefit of that person, very often at that persons request. Nonetheless, mercy killing involves the perpetrator intentionally killing another person, and therefore, even where that person wished to die, or the killing was purely out of compassion and love, the current state of the law is that the killing will amount to murder or (if one or more of the mitigating circumstances are present) manslaughter see per Lord Judge CJ in R v Inglis [2011] 1 WLR 1110, para 37. As Lord Browne Wilkinson said in Airedale NHS Trust v Bland [1993] AC 789, 885, the doing of a positive act with the intention of ending life is and remains murder. Nonetheless, a doctor commits no offence when treating a patient in a way which hastens death, if the purpose of the treatment is to relieve pain and suffering (the so called double effect) see per Lord Goff of Chieveley in Bland at p 867. The House of Lords in that case decided that no offence was involved in refusing or withdrawing medical treatment or assistance, ultimately because this involved an omission rather than a positive act. While Lord Goff, Lord Browne Wilkinson and Lord Mustill were all concerned about the artificiality of such a sharp legal distinction between acts and omissions in this context, they also saw the need for a line to be drawn, and the need for the law in this sensitive area to be clear see at pp 865, 885 and 887 respectively. Until 1961, it was an offence to commit suicide, which was regarded as self murder; people who unsuccessfully attempted to kill themselves were not infrequently prosecuted. Section 1 of the Suicide Act 1961 (the 1961 Act) provided that [t]he rule of law whereby it is a crime for a person to commit suicide is hereby abrogated. As suicide was regarded as self murder before 1961, a person who aided or encouraged another person to commit suicide committed an offence; thus, the survivor of a suicide pact was guilty of murdering the successful self murderer see R v Croft [1944] 1 KB 295. Section 4 of the 1957 Act provided that such a survivor would only be guilty of manslaughter. However, the abolition of suicide four years later as a crime meant that it was necessary to address the question of what to do about assisting and encouraging suicide. Parliament dealt with that issue in section 2 of the 1961 Act (section 2), subsection (1) of which has now been repealed and re enacted in the form of subsections (1) (1C) by section 59(2) of the Coroners and Justice Act 2009 (the 2009 Act). The relevant parts of section 2 in its current form provide as follows: (1) A person (D) commits an offence if (a) D does an act capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) D's act was intended to encourage or assist suicide or an attempt at suicide. (1C) An offence under this section is triable on indictment and a person convicted of such an offence is liable to imprisonment for a term not exceeding 14 years. (4) [N]o proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. The involvement of the civil courts In Bland, the House of Lords held that it was lawful for doctors to discontinue treatment of a person who was in what was then called a persistent vegetative state. As Lord Goff explained at p 864, it had already been established that if an adult patient of sound mind refuses, however unreasonably, to consent to treatment or care by which his life would or might be prolonged, the doctors responsible for his care must give effect to his wishes, even though they do not consider it to be in his best interests to do so. Where a person was unable to communicate his wishes, the correct question to ask, according to Lord Goff at p 868, was whether it is in his best interests that treatment which has the effect of artificially prolonging his life should be continued, and in that case the answer was in the negative. In adopting the best interests principle, the House of Lords followed its earlier decision in In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, and in adopting the omission/commission distinction, it followed the approach of the Court of Appeal in two cases which raised the question of medical treatment for a severely disabled child In re B (A Minor) (Wardship: Medical Treatment) [1981] 1 WLR 1421 (Re B (Wardship)) and In re J (A Minor) (Wardship: Medical Treatment) [1991] Fam 33. Lord Goff accepted that there was a fundamental difference between a positive action which caused death and an omission which resulted in a death. At p 866, he said: [T]the doctor's conduct in discontinuing life support can properly be categorised as an omission. It is true that it may be difficult to describe what the doctor actually does as an omission, for example where he takes some positive step to bring the life support to an end. But discontinuation of life support is, for present purposes, no different from not initiating life support in the first place. The way in which that passage is expressed indicates a certain and understandable discomfort with the notion that switching a machine off actually is an omission. A little later, Lord Goff dealt with another difficulty to which his conclusion gave rise, when he contrasted the position of a doctor in such a case with that of an interloper who maliciously switches off a life support machine. Although he did not expressly say so, such an action must, I think, amount to murder or manslaughter, and Lord Goff dealt with the difficulty by saying that such an interloper would be actively intervening to stop the doctor from prolonging the patients life, and such conduct cannot possibly be categorised as an omission. Subsequently, there has been a number of cases where, in the best interests of a patient, and often contrary to the wishes of his close family, the court has authorised switching off a life support machine, stopping providing food and drink, and withholding medical treatment (even of an elementary nature), all of which would lead inevitably to death. As was said in Bland, the common law has always recognised the right of a person to refuse treatment in advance, and, in that connection, Parliament has intervened to an extent through sections 24 26 of the Mental Capacity Act 2005, which permits individuals with capacity to make a valid advance direction refusing medical treatment, including treatment which would be life sustaining. Further, the courts have also recognised that, where a patient is unable to give her consent, it is lawful to give her treatment if it is necessary in her best interests see Re F. In cases of withdrawal of treatment, the House of Lords recommended in Bland that, before treatment could be withheld in any case where it was impossible for the patient to be consulted, permission should be sought from the High Court until a body of experience and practice [had] buil[t] up which will obviate the need for application in every case pp 873 4. The role of the court in such cases was recently discussed by Lady Hale in Aintree University Hospitals NHS Foundation Trust v James [2013] 3 WLR 1299, paras 18 22 and 35 39. As Hoffmann LJ said in Bland at p 825, Modern medicine faces us with fundamental and painful decisions about life and death which cannot be answered on the basis of normal everyday assumptions. The accuracy of this observation was subsequently demonstrated by the decision of the Court of Appeal In re A (Children) (Conjoined Twins: Surgical Separation) [2001] Fam 147 (Conjoined Twins). This decision took the law further in that the court authorised surgeons to separate conjoined twins, a positive act rather than omission, which would inevitably hasten the death of one twin in order to improve very considerably the life expectancy of the other. In the subsequent case of In re B (Consent to Treatment Capacity) [2002] 1 FLR 1090 (Re B (Treatment)), the applicant, who was effectively tetraplegic, and who was dependent on an artificial ventilation machine in order to breathe, wished the machine to be turned off, as she wanted to die, owing to the very poor quality of her life. Her doctors refused to turn the machine off, and she applied to the court for an order that they do so. Having concluded that the applicant had the mental capacity to make the decision, Dame Elizabeth Butler Sloss P decided that the issue was not to be determined by considering what the court concluded was in her best interest. As explained in para 23 above, under the common law, it was purely a matter for the applicant whether or not the machine was turned off, provided that she was in a fit mental state to form a view. And, as she wanted the machine turned off, and she was mentally fit, the continued application of the machine to her body constituted in law trespass to the person. Accordingly she was granted the relief which she sought. The Convention and assisted suicide The two most central rights contained in the Convention for the purposes of the present appeals are in articles 2 and 8. Article 2, in summary form, guarantees the right to life, and, unsurprisingly, it is an unqualified right. Article 8.1 entitles everyone to respect for his private life. This right is qualified, as article 8.2 prohibits any interference by a public authority with the exercise of this right unless (i) it is in accordance with the law, and (ii) it is necessary in a democratic society, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 (Pretty v DPP), Mrs Pretty, who suffered from the progressive condition of motor neurone disease, complained that (i) the refusal of the DPP to grant her husband proleptic immunity from prosecution if he assisted her in killing herself (which she wished to do when her disease became intolerable), and/or (ii) the prohibition on assisting suicide in section 2, violated her rights under articles 2, 3, 8, 9 and 14 of the Convention. The House of Lords held that Mrs Prettys desire to end her life prematurely did not engage her rights under any of those articles. The House went on to find that, if this was wrong, the government, to quote Lord Bingham at para 30, ha[d] shown ample grounds to justify the existing law and the current application of it, although this was not to say that no other law or application of it would be consistent with the Convention. This view was also adopted by Lord Steyn, Lord Hope, and Lord Scott at paras 62, 97, and 124, and, albeit implicitly, by Lord Hobhouse at paras 111 and 120. Mrs Pretty then applied to the European Court of Human Rights (the Strasbourg court), where she was partially successful, in that it was held, albeit in somewhat guarded terms, that her desire to end her life did engage article 8.1, but not any other article see Pretty v United Kingdom (2002) 35 EHRR 1 (Pretty v UK), para 67. In three subsequent decisions, the Strasbourg court has stated in clear terms that article 8.1 encompasses the right to decide how and when to die, and in particular the right to avoid a distressing and undignified end to life (provided that the decision is made freely) see Haas v Switzerland (2011) 53 EHRR 33, para 51, Koch v Germany (2013) 56 EHRR 6, paras 46 and 51, and Gross v Switzerland (2014) 58 EHRR 7, para 60. These cases also establish that the fact that a third party may have to be involved in enabling a person to die does not prevent that person from invoking article 8.1. Furthermore, it is clear from Koch, paras 43 46 that a person in Mrs Nicklinsons position, namely a spouse or partner who shares a close relationship with the person who wishes to die, and is closely involved in that persons suffering and desire to die, can invoke an article 8 right of her own in that connection. It is also clear from Koch, paras 78 82 that, at least in the Strasbourg court, Mrs Nicklinson would not be able to rely on her late husbands article 8 rights in her capacity as his personal representative or sole beneficiary. Although Mrs Prettys article 8 rights were held to have been interfered with in Pretty v UK, she failed in her claim, because the interference with her right was held to be justified by article 8.2, at least from the perspective of the Strasbourg court. In para 74 of its decision, the Strasbourg court described section 2 as designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. The court also said that many terminally ill individuals will be vulnerable, and it is the vulnerability of the class which provides the rationale for the law in question. Accordingly, it was primarily for states to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or exceptions were to be created. At para 76, the Strasbourg court said this: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided . It does not appear arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. The court accordingly concluded in para 78 that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others, so that there was no violation of article 8. In Haas, the applicant was severely bipolar, and wanted to obtain a lethal dose of a drug to kill himself, but could not do so, because Swiss law required him to get a prescription, and, before he could do that, he needed a psychiatric assessment. The Strasbourg court referred at para 55 to the fact that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it, and therefore considered that the states enjoy a considerable margin of appreciation in this area. The court accordingly concluded in para 56, that, although it had sympathy with the applicants wishes, the regulations put in place by the Swiss authorities pursue, inter alia, the legitimate aims of protecting everybody from hasty decisions and preventing abuse. The court also observed in para 58 that the right to life guaranteed by article 2 obliges states to establish a procedure capable of ensuring that a decision to end ones life does indeed correspond to the free wish of the individual concerned. In Koch, the applicants late wife, who was tetraplegic, needed his help to commit suicide. The Strasbourg court considered that the German courts failure to entertain his application, which was for a declaration that the refusal of a Federal drugs institute to enable him to obtain a lethal dose of medication was unlawful, infringed his article 8 rights, which could encompass a right to judicial review, even in a case in which the substantive right in question had yet to be established para 53. For present purposes, the case is of interest mainly because, in para 26, the court explained that in 36 of the 43 member states (including the UK) any form of assistance to suicide is strictly prohibited and criminalised by law, in three (Germany, Sweden and Estonia) such assistance is not a criminal offence, and four (Switzerland, Belgium, the Netherlands and Luxembourg) allowed medical practitioners to prescribe lethal drugs, subject to specific safeguards. At para 70, the court stated that the fact that the state parties to the Convention are far from reaching a consensus on the legal treatment of assisting suicide points to a considerable margin of appreciation enjoyed by the state in this context. In Gross, the applicant had become so old and frail that she found her quality of life so bad that she had for some time wished to kill herself. However, she was unable to find a doctor in Switzerland who would provide her with the necessary prescription for a lethal drug, because her counsel was unable to guarantee that any doctor who prescribed the drug would not risk any consequences from the point of view of the code of professional medical conduct para 11. At para 62, the court observed that there could be positive obligations inherent in an effective respect for private life, and that this could include both the provision of a regulatory framework of adjudicatory and enforcement machinery protecting individuals rights and the implementation, where appropriate, of specific measures. At para 63, the court explained that the applicants case primarily raises the question whether the State had failed to provide sufficient guidelines defining if and under which circumstances medical practitioners were authorised to issue a medical prescription to a person in the applicants circumstances. Having considered the Swiss law on the topic, the court (in what was a bare majority judgment, as three of the seven judges dissented) held that the applicants article 8 rights were infringed. The court said in para 65 that there was a lack of clear legal guidelines, which was likely to have a chilling effect on doctors who would otherwise be inclined to provide someone such as the applicant with the requested medical prescription. In the following paragraph, the court explained that, if there had been clear, state approved guidelines defining the circumstances under which medical practitioners are authorised to issue the requested prescription in cases where an individual has come to a serious decision, in the exercise of his or her free will, to end his or her life, but where death is not imminent as a result of a specific medical condition, the applicant would not have found herself in a state of anguish and uncertainty regarding the extent of her right to end her life. So far as the domestic position is concerned, section 1 of the Human Rights Act (the 1998 Act) defines Convention rights as, inter alia, the rights set out in articles 2 12 and 14 of the Convention. Section 3(1) provides that [s]o far as it is possible to do so, legislation must be read and given effect in a way which is compatible with the Convention rights. Section 4 states that where one of the more senior courts in the UK concludes that a statutory provisions is nonetheless incompatible with a Convention right, it may make a declaration of that incompatibility. Section 6 requires public authorities to act compatibly with the Convention save where statute prevents them from doing so. The role of the DPP Section 2(4) of the 1961 Act precludes any prosecution of a person who has allegedly contravened section 2(1) without the DPPs consent. However, as Lord Hughes convincingly demonstrates in his judgment, section 2(4) has a relatively limited function. The DPP always has the right to decide that it is not in the public interest to prosecute, even where it is clear that an offence was committed; and the DPP has power to stay a private prosecution if satisfied, inter alia, that it is not in the public interest for the prosecution to proceed. All that section 2(4) does, therefore, is to rule out the bringing of a private prosecution for encouraging or assisting a suicide without the DPPs prior consent (although it is worth noting that, before the creation of the Crown Prosecution Service (CPS), it would have prevented the police prosecuting without the consent of the DPP). However, that does not undermine the importance of the prosecutorial discretion in connection with assisting suicide. The public importance of, and the public concern about, this discretion in the present context were recognised by the DPP in December 2008, when he voluntarily published a decision containing his full reasons for not prosecuting the parents of a tetraplegic young man for taking their son to Zurich to enable him to be assisted to kill himself, as discussed by Lord Hope and Lord Brown in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, paras 49 51 and 79 81 respectively. The proceedings in Purdy were brought following the decision of the Strasbourg court in Pretty v UK, in order to require the DPP to spell out his policy in relation to his prosecutorial discretion in a public document. Ms Purdy suffered from progressive multiple sclerosis and expected that a time would come when she would regard her continued existence as intolerable and would wish to end her life. She would need the assistance of her husband to do so (by taking her to Switzerland to enable her to use the services of Dignitas) and wished to ensure, as far as possible, that he would not be prosecuted under section 2(1) of the 1961 Act. She sought information from the DPP as to his likely attitude to a prosecution of her husband in those circumstances, and he declined to give it. While maintaining her claim for information, Ms Purdy accepted that the DPP could not give her husband a guarantee of immunity from prosecution, as this would be a matter for Parliament (per Lord Hope at para 30). Departing from its decision in Pretty v DPP, following the Strasbourg courts decision in Pretty v UK, the House of Lords upheld her contention that the DPPs refusal infringed her article 8 rights. Given that her article 8 rights were engaged, Ms Purdy was entitled to expect the law to be accessible and foreseeable, and this required that the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise, as Lord Hope said at para 43 quoting from Hasan and Chaush v Bulgaria (2000) 34 EHRR 1339, para 84. The Strasbourg court also observed that [t]he level of precision required of domestic legislation depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The DPPs argument in Purdy was that his Code for Crown Prosecutors, issued under section 10 of the Prosecution of Offences Act 1985, provided sufficient guidance, but the House rejected this argument as the Code applied to all crimes and [fell] short of what [was] needed to satisfy the Convention tests of accessibility and foreseeability in relation to assisting a suicide per Lord Hope at para 53. As Lady Hale put it in para 64, the object of the exercise should be to focus, not upon a generalised concept of the public interest, but upon the features which will distinguish those cases in which deterrence will be disproportionate from those cases in which it will not. Accordingly, as Lord Hope said at para 56, the DPP should be required to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution. Within three months of this decision, the DPP issued a draft policy, identifying sixteen factors which would favour prosecution, and thirteen which would point against prosecution. Eight of the sixteen and seven of the thirteen were said to carry more weight than the remaining eight and six respectively. The CPS consulted widely about the contents of this draft policy, raising a large number of questions, and receiving over 4700 responses, which the DPP describes as being of a high quality and the largest number of responses the CPS has ever received about a single topic. As a result, he modified the draft policy and produced the 2010 Policy. The 2010 Policy The 2010 Policy is detailed. After making a number of points, including the need for a prosecutor to be satisfied that a case satisfies the evidential requirement before considering whether it satisfies the public interest requirement, it deals with the relevant public interest factors from para 39. Para 39 makes the points that each case must be determined on its own merits, and that an overall assessment is required, a point repeated at para 47, where it is also stated that the list of factors in the 2010 Policy is not intended to be exhaustive. Para 39 also states that sometimes a single factor one way will outweigh a number of factors the other way, and para 40 points out that the absence of a specified factor should be regarded as neutral. Paras 41 and 42 deal with the reliability of the evidence relating to the factors. The 2010 Policy then turns to Public interest factors tending in favour of prosecution and continues: 43. A prosecution is more likely to be required if: 1. The victim was under 18 years of age; 2. The victim did not have the capacity (as defined by the Mental Capacity Act 2005) to reach an informed decision to commit suicide; 3. The victim had not reached a voluntary, clear, settled and informed decision to commit suicide; 4. The victim had not clearly and unequivocally communicated his or her decision to commit suicide to the suspect; 5. The victim did not seek the encouragement or assistance of the suspect personally or on his or her own initiative; 6. The suspect was not wholly motivated by compassion; for example, the suspect was motivated by the prospect that he or she or a person closely connected to him or her stood to gain in some way from the death of the victim; 7. The suspect pressured the victim to commit suicide; 8. The suspect did not take reasonable steps to ensure that any other person had not pressured the victim to commit suicide; 9. The suspect had a history of violence or abuse against the victim; 10. The victim was physically able to undertake the act that constituted the assistance him or herself; 11. The suspect was unknown to the victim and encouraged or assisted the victim to commit or attempt to commit suicide by providing specific information via, for example, a website or publication; 12. The suspect gave encouragement or assistance to more than one victim who were not known to each other; 13. The suspect was paid by the victim or those close to the victim for his or her encouragement or assistance; 14. The suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not], or as a person in authority, such as a prison officer, and the victim was in his or her care; 15. The suspect was aware that the victim intended to commit suicide in a public place where it was reasonable to think that members of the public may be present; 16. The suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. 44. On the question of whether a person stood to gain, (paragraph 43(6) see above), the police and the reviewing prosecutor should adopt a common sense approach. It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspects act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The 2010 Policy then turns to Public interest factors tending against prosecution, and continues: 45. A prosecution is less likely to be required if: 1. The victim had reached a voluntary, clear, settled and informed decision to commit suicide; 2. The suspect was wholly motivated by compassion; 3. The actions of the suspect, although sufficient to come within the definition of the offence, were of only minor encouragement or assistance; 4. The suspect had sought to dissuade the victim from taking the course of action which resulted in his or her suicide; 5. The actions of the suspect may be characterised as reluctant encouragement or assistance in the face of a determined wish on the part of the victim to commit suicide; 6. The suspect reported the victim's suicide to the police and fully assisted them in their enquiries into the circumstances of the suicide or the attempt and his or her part in providing encouragement or assistance. The DPPs evidence in these proceedings is that there has been only one prosecution under section 2, and that was a successful prosecution of someone who provided petrol and a lighter to a vulnerable man known to have suicidal intent, and who subsequently suffered severe burns as a result. The DPP also informed the Court that it appears from Dignitass website that, between 1998 and 2011, a total of 215 people from the UK used its services, and that nobody providing assistance in that connection has been prosecuted. Assisted dying: the debate In Pretty v DPP at para 54, Lord Steyn explained that the subject of euthanasia and assisted dying have been deeply controversial for a very long time, and continued: The arguments and counter arguments have ranged widely. There is a conviction that human life is sacred and that the corollary is that euthanasia and assisted suicide are always wrong. This view is supported by the Roman Catholic Church, Islam and other religions. There is also a secular view, shared sometimes by atheists and agnostics, that human life is sacred. On the other side, there are many millions who do not hold these beliefs. For many the personal autonomy of individuals is predominant. They would argue that it is the moral right of individuals to have a say over the time and manner of their death. On the other hand, there are utilitarian arguments to the contrary effect. The terminally ill and those suffering great pain from incurable illnesses are often vulnerable. And not all families, whose interests are at stake, are wholly unselfish and loving. There is a risk that assisted suicide may be abused in the sense that such people may be persuaded that they want to die or that they ought to want to die. Another strand is that, when one knows the genuine wish of a terminally ill patient to die, they should not be forced against their will to endure a life they no longer wish to endure. Such views are countered by those who say it is a slippery slope or the thin end of the wedge. It is also argued that euthanasia and assisted suicide, under medical supervision, will undermine the trust between doctors and patients. It is said that protective safeguards are unworkable. The countervailing contentions of moral philosophers, medical experts and ordinary people are endless. The literature is vast . It is not for us, in this case, to express a view on these arguments. But it is of great importance to note that these are ancient questions on which millions in the past have taken diametrically opposite views and still do. Following the decision in Bland, the House of Lords Committee on Medical Ethics, after receiving evidence, reported that [a]s far as assisted suicide is concerned, they saw no reason to recommend any change in the law (see HL Paper 21 I, 1994, para 26). This was primarily based on the message which society sends to vulnerable and disadvantaged people, which should not, however obliquely, encourage them to seek death, but should assure them of our care and support in life (ibid, para 239). The Government in its response agreed on the grounds that a change in the law would be open to abuse and put the lives of the weak and vulnerable at risk (1994) Cm 2553, page 5. The possibility of relaxing the statutory prohibition on assisting suicide has been debated in the House of Lords and House of Commons on at least six occasions in the past nine years. Thus, in November 2005, following the publication of HL Paper 86 1 referred to in para 14 above, Lord Joffe unsuccessfully introduced the Assisted Dying for the Terminally Ill Bill (the 2005 Bill) in the House of Lords, and in July 2009, Lord Falconer of Thoroton moved an amendment that would have permitted assisting the terminally ill to commit suicide during the debate on the Bill which became the Coroners and Justice Act 2009. During the debate on the 2005 Bill, Lord Joffe made it clear that he did not support assisted dying for patients who are not terminally ill, and that this was reflected in the Bill, on the basis that after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill Hansard (HL Debates), 12 May 2006 Col 1188. During the July 2009 debate on the Bill which became the 2009 Act, the House of Lords defeated the amendment Hansard (HL Debates) 7 July 2009, cols 595ff. Their Lordships approved section 59 of the 2009 Act, whose purpose, as explained above, was to re enact section 2 of the 1961 Act in clearer terms. There was an adjournment debate on assisted dying in the House of Commons in November 2008 Hansard (HC Debates), 11 November 2008, cols 221WHff. The House of Commons also approved the 2009 Act in a brief debate during which the purpose of section 59 was explained Hansard (HC Debates), 26 January 2009, col 35. More recently, there was a debate on the Directors 2010 Policy in the House of Commons in March 2012, where changes in the law were mooted, but the 2010 Policy was approved see Hansard (HC Debates), 27 March 2012, cols 1363ff. In September 2010, Lord Falconer set up and chaired a commission on Assisted Dying, which took evidence from many individuals and organisations, and the commissions report was published in January 2012. While it is a full and apparently balanced report, Lord Falconer is a strong and public supporter of liberalising the law on assisted dying, much of the funding of the commission came from people who take the same view, and some people who were against assisted dying refused to give evidence to the commission. The evidence from doctors and other caring professionals was mixed. The views of the medical professional bodies was also mixed ranging from being against doctor involvement, via neutral to being in favour of it. The Falconer Report indicated that in three jurisdictions where it was permissible to assist suicide, there was no evidence of vulnerable groups being subject to any pressure or coercion to seek an assisted death. The same view was expressed in the 2011 report of the Royal Society of Canada Expert Panel on End of Life Decision Making and in the 2012 report of the Quebec National Assembly Dying with Dignity Select Committee. The Falconer Report concluded that there [was] a strong case for providing the choice of assisted dying for terminally ill people, while protecting them and vulnerable people generally from the risk of abuse or indirect social pressure to end their lives. However, the members of the Commission were unable to reach a consensus on the issue of whether a person who has suffered a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, but they were agreed that people who assisted loved ones and friends in that situation should continue to be treated by the law with compassion and understanding. The issues in these appeals Introductory In the first appeal, the appellants, Mrs Nicklinson and Mr Lamb, contend that section 2(1) of the 1961 Act, at least if read in accordance with conventional principles, constitutes a disproportionate, and therefore an unjustifiable, interference with the article 8 rights of people who have made a voluntary, clear, settled and informed decision to commit suicide, and, who, solely because of their physical circumstances, require the assistance of a third party to achieve that end. I will refer to such people as Applicants, a neutral and convenient, if not entirely accurate, expression. The appellants case is that the article 8 rights of Applicants should be accommodated by their being able to seek the assistance of third parties to enable them to kill themselves in a dignified and private manner, at a time of their choosing, in the United Kingdom, subject to some appropriate form of control so as to ensure that their decision to commit suicide is indeed voluntary, clear, settled and informed. Accordingly, they bring these proceedings against the Secretary of State for Justice, contending that this Court should either (i) read section 2(1) in such a way as to enable it to comply with the Convention (under section 3 of the 1998 Act), or, if that is not possible, (ii) make a declaration that section 2 is incompatible with the Convention (under section 4 of the 1998 Act). The Secretary of State contends that, in the light of the Strasbourg jurisprudence, this is not a contention which is capable of properly being raised before a court, and, even if that is wrong, bearing in mind the practical, moral and policy issues involved, this is not a contention which a domestic court should entertain under the United Kingdoms constitutional settlement. Martins argument in the DPPs appeal in the second appeal is rather different in its target. Although he also relies on article 8, Martin does not challenge the compatibility of section 2 with the Convention. His first argument is that the terms of the 2010 Policy are insufficiently clear in relation to the likelihood of prosecution of those individuals (other than relatives and close friends of the person concerned), especially including doctors and other members of the caring professions, who might otherwise be prepared, out of compassion, to provide a person who has a voluntary, clear, settled and informed wish to commit suicide, with information, advice and assistance in connection with that wish. His second argument is that the Policy should be modified to make it clear that, at any rate absent any aggravating circumstances, such an individual would not be liable to be prosecuted. The DPP argues that it would be inappropriate for a court to seek to dictate what her policy should be. The first appeal raises the following issues: a. Does section 2 impose an impermissible blanket ban on assisted suicide, outside the UKs permitted margin of appreciation? If not, b. Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, does this Court have the constitutional competence to decide whether section 2 infringes article 8? If so, c. Bearing in mind the nature of the issue, is it nonetheless inappropriate for this Court to consider whether section 2 infringes article 8, on the ground that it is an issue which is purely one for Parliament? If not, d. In the light of the evidence and the arguments presented on this appeal, should the Court decide that section 2 infringes article 8? And finally, e. In the light of the answers to these questions, what is the proper order to make on the first appeal? It is perhaps worth explaining at this stage the difference between issues (b) and (c). Issue (b) raises the general question whether, in a case where the Strasbourg court decides that a point is within a member states margin of appreciation, it is open to a domestic court to declare that a statutory provision, which is within that margin, nonetheless infringes Convention rights in the United Kingdom. Issue (c), which only arises if the court does have such power, is more specific to this case; it is whether, bearing in mind the nature of the point raised in the first appeal, a domestic court is an appropriate forum for considering whether the statutory provision involved, section 2 of the 1961 Act, infringes Convention rights in the United Kingdom, or whether the issue is best left entirely to Parliament. The second issue may be said to raise a constitutional point, whereas the third issue involves more of an institutional point. The second appeal raises two points, namely: f. (raised by the DPPs appeal) does the 2010 Policy comply with the requirements of article 8, and hence section 6 of the 1998 Act, and in particular the requirement of foreseeability? and g. (raised by Martins cross appeal) if the DPP were to prosecute in a case such as Martins, would it represent a disproportionate interference with his article 8 rights? I shall deal with these issues, some of which have more than one facet, in Is section 2 within the UKs margin of appreciation under article 8? issue (a) The appellants contend, as a self contained point, that the effect of the four Strasbourg court decisions on assisted suicide is that a blanket ban such as that imposed by section 2 infringes article 8, even allowing for the wide margin of appreciation accorded to member states. In other words, the appellants argue that, even allowing for the wide margin of appreciation afforded to member states on the issue of assisted suicide, a blanket ban would be regarded by the Strasbourg court as impermissibly outside that wide margin. This contention is said to be supported by the more general proposition that, where a ban curtails a Convention right, the Strasbourg court would hold that it cannot be a blanket ban. In support of this proposition, the appellants cite Hirst v UK (2005) 42 EHRR 41, which was concerned with the right of prisoners to vote. I do not accept this argument. So far as the general point is concerned, the expression blanket ban is not helpful, as everything depends on how one defines the width of the blanket. Thus, a blanket ban on voting for all those serving life sentences would appear to be acceptable to the Strasbourg court and certainly should be in my view. As for the more specific point, I do not consider that the Strasbourg jurisprudence suggests that a blanket ban on assisted dying is outside the margin of appreciation afforded to member states and, even if it is, then, in any event, the provisions of section 2(4) prevent the ban in this jurisdiction being a blanket ban. In connection with the specific point, the opening two sentences of para 76 of the Strasbourg courts decision in Pretty v UK (quoted in para 32 above) are not particularly happily worded. However, it appears to me that the effect of that decision is that, so far as the Strasbourg court is concerned, a national blanket ban on assisted suicide will not be held to be incompatible with article 8. The word therefore in the first sentence refers back to what precedes the paragraph, which (ignoring the discursion in para 75) is a passage at the end of para 74, which seems to me to say that it is a matter for each member state whether, and if so in what form, to provide for exceptions to a general prohibition on assisted suicides. This conclusion is, I think, strongly supported by the fact that the court stated that the great majority of member states have what the appellants would characterise as blanket bans on assisted suicide. The decision in Koch is said by the appellants to support the notion that a blanket ban on assisting a suicide cannot comply with article 8. I do not accept that. The question whether the German substantive law relating to the provision of prescriptions infringed article 8 was specifically left open, and the decision was limited to the fact that the applicants article 8 rights had been infringed by the German courts refusal to consider that issue see paras 52 and 71 of the judgment. Further, the Strasbourg court also made it clear in paras 70 71 that it was for the national court to decide whether what was effectively a prohibition on prescribing drugs to enable people to kill themselves infringed article 8, which appears to me to indicate that such a prohibition did not give rise to a problem under article 8 so far as the Strasbourg court was concerned. Accordingly, I would reject the argument that a blanket ban on assisting suicide is outside the margin of appreciation afforded by the Strasbourg court to member states. In any event, it seems to me that, even if this is wrong, there can be no question of the Strasbourg court holding that section 2 infringes article 8 on the ground that it contains a blanket ban. What it said in paras 76 78 of Pretty v UK appears to me to make it clear that, whatever argument might have been raised if section 2(1) had stood on its own, prosecutorial discretion reinforced by section 2(4), provided that it was implemented so as to render the law accessible and foreseeable, ensured that the current UK law relating to assisted suicide complied with the Convention so far as the Strasbourg court was concerned. None of the subsequent three decisions of that court on assisted suicide call this conclusion into question. (Of course, this would not mean that every aspect of the implementation of national law on assisted dying would be outside the scope of the Strasbourg courts consideration cf the decisions in Koch and Gross). Is it constitutionally open to the UK courts to consider compatibility? issue (b) The Strasbourg court explained in Pretty v UK, para 74, and Haas, para 57, that, when considering legislation on assisted suicide, one has to balance the article 8.1 rights of those who wish to be so assisted, against the need to protect the weak and vulnerable in relation to their article 2 and article 8.1 rights. The court has also acknowledged that views as to where the balance should come down can vary (eg in Gross, para 66), and that this is reflected by the different approaches in different members states see Haas, para 55 and Koch, paras 26 and 70. As explained, this has led the Strasbourg court to conclude that member states enjoy a wide margin of appreciation on the issue of assisted dying see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. At first sight, it may appear from this that, as the High Court held, it would be inappropriate for this Court even to consider whether it should determine whether or not section 2 is incompatible with article 8. In R (Ullah) v Special Adjudicator [2004] 2 AC 323, para 20, Lord Bingham said that [t]he duty of national courts is to keep pace with the Strasbourg jurisprudence as it evolves over time: no more, but certainly no less, and the Strasbourg court has determined that, at any rate so far as its jurisdiction is concerned, section 2 is consistent with the Convention. Accordingly, it might seem to follow that a UK court should not take a different view. It was, in part, on this basis that the Court of Appeal rejected the contention that section 2 was inconsistent with article 8 see at [2013] EWCA Civ 961, paras 111 114; [2014] 2 All ER 32. In my judgment, however, that is not a good answer to the claims made by the appellants. Lord Binghams observation in Ullah was directed to the majority of cases raising claims that Convention rights have been infringed, where the Strasbourg court concludes either that there has been an infringement or that there has been no infringement. In such cases, in so far as they are capable of being of wider application than to the particular case before it, the Strasbourg court would intend that its conclusions and reasoning be applicable to all member states. So far as the law on assisted suicide is concerned, the conclusion reached by the Strasbourg court is of a different nature. As explained above, the court has held that there is a wide margin of appreciation accorded to each state in this area, and that it is for each state to decide for itself how to accommodate the article 8 rights of those who wish and need to be assisted to kill themselves with the competing interests of the prevention of crime and the protection of others see Pretty v UK, para 74, Haas, para 55 and Koch, paras 70 and 71. In those circumstances, it does not appear to me that the dictum quoted above from Ullah is in point. (For this reason, this is not the occasion to address the question whether, and if so how far, the principle enunciated by Lord Bingham in Ullah, para 20, should be modified or reconsidered.) In a case such as this, the national courts therefore must decide the issue for themselves, with relatively unconstraining guidance from the Strasbourg court, albeit bearing in mind the constitutional proprieties and such guidance from the Strasbourg jurisprudence, and indeed our own jurisprudence, as seems appropriate. Support for this conclusion is to be found in In re G (Adoption: Unmarried Couple) [2009] 1 AC 173. In paras 33 35, Lord Hoffmann pointed out that Convention rights, as defined in section 1 of the 1998 Act, were domestic and not international rights, and that the duty of domestic courts under section 2 of that Act was to take into account, rather than to regard themselves as bound by, decisions of the Strasbourg court, but that there were normally good reasons why we should follow the interpretation adopted in Strasbourg. At para 36 of re G, however, Lord Hoffmann said that different considerations apply in cases in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says the question is within the margin of appreciation. In the following paragraph, Lord Hoffmann stated that in such cases, it is for the court in the United Kingdom to interpret [the relevant article or articles of the Convention] and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. He expanded on this by adding that [t]he margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. Lord Hope agreed with Lord Hoffmann at para 50, and Lady Hale expressed similar views at paras 116 120, saying pithily that if the matter is within the margin of appreciation which Strasbourg would allow us, then we have to form our own judgment. Lord Mance, at para 130, took the same view, explaining that when performing their duties under sections 3 and 6 [of the 1998 Act], courts must of course give appropriate weight to considerations of relative institutional competence. Having then emphasised the importance of giving weight to the decisions of a representative legislature and democratic government within the discretionary area of judgment accorded to those bodies, he made the point that the precise weight will depend, inter alia, on the nature of the right and the extent to which it falls within an area in which the legislature, executive, or judiciary can claim particular expertise. As Lord Hoffmann and Lord Mance explained, their approach does not involve the court calling into question the sovereignty of Parliament. The court has jurisdiction to consider whether a provision such as section 2 is compatible, or can be rendered compatible, with article 8, because that is part of the courts function as determined by Parliament in the 1998 Act. As it happens, it also reflects what the Strasbourg court decided about an individuals right of access to the court in Koch. In an interesting passage in para 229 below, Lord Sumption suggests that, where an issue has been held by the Strasbourg court to be within the margin of appreciation, the extent to which it is appropriate for a UK court to consider for itself whether the Convention is infringed by the domestic law may depend on the reason why the Strasbourg court has concluded that the issue is within the margin. I agree that the reasoning of the Strasbourg court must be taken into account and accorded respect by a national court when considering whether the national law infringes the Convention domestically, in a case which is within the margin of appreciation just as in any other case as section 2(1)(a) of the 1998 Act recognises. However, both the terms of the 1998 Act (in particular sections 2(1) and 4) and the principle of subsidiarity (as expounded for instance in Greens and MT v UK [2010] ECHR 1826, para 113) require UK judges ultimately to form their own view as to whether or not there is an infringement of Convention right for domestic purposes. It is true that in Re G, the House of Lords was concerned with a statutory instrument, but the passages to which I have referred must, as a matter of logic and principle, be as applicable to primary, as to secondary, legislation. It is also true that the decision in Re G was based on the irrationality of the legislation concerned. Where the legislature has enacted a statutory provision which is within the margin of appreciation accorded to members states, it would be wrong in principle and contrary to the approach adopted in Re G, for a national court to frank the provision as a matter of course simply because it is rational. However, where the provision enacted by Parliament is both rational and within the margin of appreciation accorded by the Strasbourg court, a court in the United Kingdom would normally be very cautious before deciding that it infringes a Convention right. As Lord Mance said in Re G, the extent to which a UK court should be prepared to entertain holding that such legislation is incompatible must depend on all the circumstances, including the nature of the subject matter, and the extent to which the legislature or judiciary could claim particular expertise or competence. In these circumstances, given that the Strasbourg court has held that it is for each state to consider how to reconcile, or to balance, the article 8.1 rights of a person who wants assistance in dying with the protection of morals and the protection of the rights and freedoms of others, I conclude that, even under our constitutional settlement, which acknowledges parliamentary supremacy and has no written constitution, it is, in principle, open to a domestic court to consider whether section 2 infringes article 8. The more difficult question, to which I now turn, is whether we should do so. Is it institutionally appropriate to consider whether section 2 infringes article 8? issue (c) Introductory Having concluded that the court does have jurisdiction in principle to determine whether section 2 infringes the Convention, the next question is whether it is institutionally appropriate for a domestic court to consider whether section 2 infringes the article 8 rights of individuals such as Mr Nicklinson and Mr Lamb. In that connection, I have summarised the nub of their case in para 55 above. In approaching this question, it is important to bear in mind that, as Lord Mance explained in Re G, what we have to consider is the breadth of the discretion which the courts should accord to Parliament, or, to put it another way, the limits of the courts deference to Parliaments judgment, on the issue of the extent to which assisting suicide should be criminalised. A summary of the parties respective contentions Section 2 interferes with the article 8 right of Applicants (as I have called them) to determine how and when they should die. Accordingly, it can only be a valid interference if it satisfies the requirements of article 8.2, ie if it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or, most importantly for present purposes, for the protection of the rights and freedoms of others. When considering whether legislative measures satisfy those requirements, four questions generally arise, as Lord Wilson explained in R (Aguilar Quila) v The Secretary of State for the Home Department [2012] 1 AC 621, para 45 (as recently illuminatingly discussed by Lord Reed in Bank Mellat v HM Treasury (No 2) [2013] 3 WLR 179, 222, paras 20ff): (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? The appellants accept that the legislative objective of section 2 is to safeguard life, and in particular the lives of the vulnerable and the weak, including those who are not in a position to take informed decisions against acts intended to end life or assist in ending life, to quote from Pretty v UK, para 74, or, as Lady Hale put it in Purdy at para 65, people who are vulnerable to all sorts of pressures, both subtle and not so subtle, to consider their own lives a worthless burden to others. As to the four requirements, as I will call them, identified in Lord Wilsons analysis, the appellants accept that requirement (a) is satisfied in that this objective is sufficiently important to justify limiting a fundamental right, namely the article 8 right of those wish to end their lives and need the assistance of others to do so. They also accept that, so far as requirement (b) is concerned, section 2 has been designed to meet this objective and is rationally connected to it. Accordingly, the issue whether section 2 infringes article 8 turns on whether requirements (c) and (d), necessity and balance, are satisfied. In that connection, the appellants case is that the absolute terms of section 2 are more than necessary to achieve its end, or that they do not strike a fair balance between the interests of Applicants and those of the weak and vulnerable, bearing in mind the grave and significant interference which it involves with the article 8 rights of Applicants, and that this is an argument which a domestic court should consider. In summary terms, the Secretary of States case is that, given that it is accepted that the statutory ban on assisting suicide, subject to prosecutorial discretion, can be rationally justified by the need to protect the weak and vulnerable and was recently affirmed by Parliament in the 2009 Act, any question of decriminalisation should be left to Parliament, as it is a controversial, difficult and sensitive moral and politico social issue, which requires the assessment of many types of risk and the imposition of potentially complex regulations, and it is not a matter on which judges are particularly well informed or experienced. The Secretary of State also relies on the fact that section 2 was held to comply with the Convention by the House of Lords in Pretty v DPP less than thirteen years ago. The protection of the weak and vulnerable Although, as mentioned above, the appellants accept the Secretary of States contention that section 2 is designed to meet the objective of protecting the weak and vulnerable and is rationally connected to that objective, it is worth examining that contention. So far as assisting (as opposed to encouraging) suicide is concerned, section 2 is a somewhat indirect and blunt instrument in that it is, as a matter of practice, aimed at those who need assistance in committing suicide rather than those who are weak and vulnerable. It is a measure of the relative weakness of the connection that, in para 350 below, Lord Kerr concludes that, contrary to the appellants concession, requirement (b) is not satisfied. I do not agree with that conclusion, because it seems to me, in general terms, that a blanket ban on assisting suicide will protect the weak and vulnerable, and, more particularly, that it may well be that those who are in the same unhappy position as Applicants, but do not wish to die, are in a particularly vulnerable position. However, the somewhat tenuous connection between the actual and intended targets is not irrelevant when one turns to requirements (c) and (d). More specifically, if one concentrates on the appellants argument that section 2 should be modified so as to exclude Applicants, it seems to me that the concern about the weak and vulnerable has two aspects. First, there would be a direct concern about weak and vulnerable people in the same unhappy position as Applicants, who do not have the requisite desire (namely a voluntary, clear, settled and informed decision to commit suicide), but who either feel that they have some sort of duty to die, or are made to feel (whether intentionally or not) that they have such a duty by family members or others, because their lives are valueless and represent an unjustifiable burden on others. (This aspect is more fully described by Lord Sumption at para 228 below). Secondly, there is a concern that the extension of the law to permit assisted suicide would send a more general message to weak and vulnerable people, who would consequently be more at risk of committing, or seeking assistance to commit, suicide while not having the requisite desire to do so. The appellants argue that the article 8 rights of Applicants to put an end to their lives, which are rights of a very high order bearing in mind their very cruel circumstances, should not be sacrificed for a merely speculative concern about another class of persons. They say that the harmful effect that liberalising the law on assisting suicide may have on vulnerable and weak people is no more than speculative, because no evidence has been adduced to suggest otherwise, and because in jurisdictions where assisted suicide is permitted, there do not seem to have been any undesirable consequences for the weak and vulnerable. It is true that the Falconer Report, supported by the reports of the two Canadian panels, states that in the Netherlands, Oregon and Switzerland there is no evidence of abuse of the law, which permits assisting a suicide in prescribed circumstances and subject to conditions. However, negative evidence is often hard to obtain, there is only a limited scope for information given the few jurisdictions where assisted suicide is lawful and the short time for which it has been lawful there, and different countries may have different potential problems. In other words, the evidence on that point plainly falls some way short of establishing that there is no risk. The most that can be said is that the Falconer commission and the Canadian panels could find no evidence of abuse. As Lord Sumption points out in paras 224 225 below, however, while the factual evidence in this connection is sparse, anecdotal, and inconclusive, the expert experienced and professional opinion evidence does provide support for the existence of the risk. In all the circumstances, this concern cannot, in my opinion, possibly be rejected as fanciful or unrealistic. Having said that, if a proposal were put forward whereby Applicants could be helped to kill themselves, without appreciably endangering the lives of the weak and vulnerable, then this objection could be overcome, or at least circumnavigated. In that connection, Lady Hale, during argument, brought home to me the significance of the point that it has been regarded as quite acceptable in cases such as Re B (Treatment) that the High Court should have the power to accede to a request by an individual that her life support machine be turned off. Furthermore, albeit less relevantly, I note that in the Mental Capacity Act 2005 Parliament has recognised the right of individuals to give advance directions that they be refused medical treatment. In the former case, the appropriate protection for the weak and vulnerable appears to be that a High Court Judge must first be satisfied that the request is based on a settled, informed and voluntary desire. In the latter case, it would seem that a formal document recording the desire will suffice. The moral arguments The contention that there is a moral justification for the present law did not feature much in argument, and then only in very general terms. In so far as the argument is based on the sanctity, or primacy, of other human lives, it does little more, in my view, than replicate the concerns about the lives of the weak and vulnerable. In so far as it is based on the sanctity or primacy of Applicants lives, it has been substantially undermined by the enacting of section 1 of the 1961 Act. I find it hard to see how a life can be said to be sacred if it is lawful for the person whose life it is to end it; to put the point another way, if the primacy of human life does not prevent a person committing suicide, it is difficult to see why it should prevent that person seeking assistance in committing suicide. I also agree with what Lord Wilson says in this connection in paras 199 and 200 below. Another moral justification briefly advanced for not changing the law was that Parliament did not want to send out a message that human life is to be undervalued. I am somewhat sceptical about semaphore justifications for legislative or judicial decisions, but I accept that we should proceed on the basis this may have some force. However, it seems to me that, once again, this argument is another way of expressing the concern about the need to protect weak and vulnerable people, albeit a larger class of weak and vulnerable people. There is a rather different moral issue, which was not really covered in argument, namely that, while it is one thing for a person to take his own life, it is another thing to take, or even to assist in the taking of, someone elses life. In other words, there may be a view that, even though it is morally acceptable for people to take their own lives, it would be morally corrupting for another person, and indeed for society as a whole, if that other person could assist people in taking their lives. I think that there would be significantly more force in this point if the assister actually performed the act which caused the death, such as actually administering the barbiturate, as opposed to setting up a system which enables the person who wishes to commit suicide to activate the machine to perform the final act. In the eyes of the law, there is a very large difference between the two courses: the first is murder or manslaughter, and the second an offence under section 2. In this connection, the decision of the House of Lords in R v Kennedy (No 2) [2008] 1 AC 269 is very much in point. In that case, the House of Lords, in a powerful opinion given by Lord Bingham, overruled a decision that a defendant was guilty of manslaughter when he had produced a situation in which [the alleged victim] could inject herself [with a lethal drug], in which her self injection was entirely foreseeable and in which self injection could not be regarded as extraordinary on the ground that this decision conflicted with the rules on personal autonomy and informed voluntary choice para 16. Accordingly, [t]he finding that the deceased freely and voluntarily administered the injection to himself, knowing what it was, is fatal to any contention that the appellant caused the heroin to be administered to the deceased or taken by him para 18. To my mind, the difference between administering the fatal drug to a person and setting up a machine so that the person can administer the drug to himself is not merely a legal distinction. Founded as it is on personal autonomy, I consider that the distinction also sounds in morality. Indeed, authorising a third party to switch off a persons life support machine, as in Bland or Re B (Treatment) seems to me, at least arguably, to be, in some respects, a more drastic interference in that persons life and a more extreme moral step, than authorising a third party to set up a lethal drug delivery system so that a person can, but only if he wishes, activate the system to administer a lethal drug. Indeed, if one is searching for a satisfactory boundary between euthanasia or mercy killing and assisted suicide, which Lord Sumption discusses at para 227 below, I believe that there may be considerable force in the contention that the answer, both in law and in morality, can best be found by reference to personal autonomy. Subject to those cases where the act can be classified as an omission (eg, to my mind somewhat uncomfortably in terms of common sense, switching off a life supporting machine at least if done by an appropriately authorised person, as in Bland and Re B (Treatment)), it seems to me that if the act which immediately causes the death is that of a third party that may be the wrong side of the line, whereas if the final act is that of the person himself, who carries it out pursuant to a voluntary, clear, settled and informed decision, that is the permissible side of the line. In the latter case, the person concerned has not been killed by anyone, but has autonomously exercised his right to end his life. (I should perhaps make it clear that I am not thereby seeking for a moment to cast doubt on the correctness of the decisions in Bland and Re B (Treatment), both of which appear to me to have been plainly rightly decided). The argument based on the value of human life is not one which can only be raised by the Secretary of State. The evidence shows that, in the light of the current state of the law, some people with a progressive degenerative disease feel themselves forced to end their lives before they would wish to do so, rather than waiting until they are incapable of committing suicide when they need assistance (which would be their preferred option). Section 2 therefore not merely impinges adversely on the personal autonomy of some people with degenerative diseases, but actually, albeit indirectly, may serve to cut short their lives. For the reasons I have discussed, therefore, while it would be wrong to ignore the moral arguments against permitting Applicants to be assisted to kill themselves, I do not consider that they are particularly telling. Indeed, by requiring one to focus on the important feature of personal autonomy, they appear to me to provide a degree of support for the appellants case. In any event, quite apart from the points already made, the mere fact that there are moral issues involved plainly does not mean that the courts have to keep out. Even before the 1998 Act came into force, the courts were prepared to make decisions which developed the law and involved making moral choices of this type. Re B (Wardship), Re J, Bland, Re F and (albeit only by a week) Conjoined Twins were all decided before the 1998 Act was in force, and each decision would have been regarded as involving a wrong moral choice by some people. Further, in Re B (Treatment) the court was prepared to decide that an action should be taken (albeit that it was classified as an omission by Lord Goff) which would end a persons life because that person wanted that action to be taken (although, of course, it should not have been necessary to go to court to give effect to Bs wishes, unless there was some concern over her mental capacity or some other special reason). Thus, the courts have been ready both to assume responsibility for developing the law on what are literally life and death issues, and then to shoulder responsibility for implementing the law as so developed. It is perhaps worth noting in the present context that, despite pleas from judges, Parliament has not sought to resolve these questions through statutes, but has been content to leave them to be worked out by the courts. The argument that the issue should be left to Parliament The Secretary of State contends that, under our constitutional settlement, the determination of the criminal law on a difficult, sensitive and controversial issue such as assisted suicide is one which is very much for Parliament. There is obvious force in that argument, given that, less than five years ago, Parliament approved the general prohibition on assisting suicide, by redrafting section 2(1), so that it continued to render all cases of assisted suicide criminal, and by leaving subsection (4), with its control by the DPP, in place. Nonetheless it is self evident that the mere fact that Parliament has recently enacted or approved a statutory provision does not prevent the courts from holding that it infringes a Convention right. By the 1998 Act, Parliament has cast on the courts the function of deciding whether a statute infringes the Convention. In a case such as the present, where the margin of appreciation applies, a court will only invoke this function where it has concluded that the issue is within its competence, in which case the fact that Parliament has recently considered the issue, while relevant, cannot automatically deprive the courts of their right, indeed their obligation, to consider the issue. It is not easy to identify in any sort of precise way the location of the boundary between the area where it is legitimate for the courts to step in and rule that a statutory provision, which is not irrational, infringes the Convention and the area where it is not. However, it is not, I think, sensible or even possible to seek to define where the boundary lies. In Woolwich Equitable Building Society v Inland Revenue Commissioners [1993] AC 70, the House of Lords had to consider whether, by changing the common law they would be overstepping the boundary which separates legitimate development of the law from judicial legislation. Lord Goff said this at p 173: I feel bound however to say that, although I am well aware of the existence of the boundary, I am never quite sure where to find it. Its position seems to vary from case to case. Indeed, if it were to be as firmly and clearly drawn as some of our mentors would wish, I cannot help feeling that a number of leading cases in your Lordships House would never have been decided the way they were. If that is the position with regard to a long existing boundary, it is scarcely surprising that it should be the same in relation to a boundary which has been in existence for less than fourteen years. In connection with the present case, the Secretary of State can justifiably place reliance on Lord Binghams observations about the Hunting Act 2004 in R (Countryside Alliance) v Attorney General [2008] 1 AC 719, para 45: There are of course many who do not consider that there is a pressing (or any) social need for the ban imposed by the Act. But after an intense debate a majority of the countrys democratically elected representatives decided otherwise. It is of course true that the existence of duly enacted legislation does not conclude the issue. Here we are dealing with a law which is very recent and must be taken to reflect the conscience of a majority of the nation. The degree of respect to be shown to the considered judgment of a democratic assembly will vary according to the subject matter and the circumstances. But the present case seems to me pre eminently one in which respect should be shown to what the House of Commons decided. The democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Those observations serve as a salutary reminder that we, as judges, should be very cautious before being prepared to hold that we should exercise our jurisdiction under section 4 of the 1998 Act in the present case. However, Lord Binghams words plainly do not by themselves justify a simple refusal to hold that we have or should exercise the jurisdiction. Furthermore, the reasons for, and nature of, the controversy in that case were very different from those in this appeal, and the interference with the article 8 rights of people such as Mr Lamb as a result of section 2 is enormously greater than any arguable alleged interference with the rights of those who wished to hunt in the Countryside Alliance case. Quite apart from this, there is force in the point that difficult or unpopular decisions which need to be taken, are on some occasions more easily grasped by judges than by the legislature. Although judges are not directly accountable to the electorate, there are occasions when their relative freedom from pressures of the moment enables them to take a more detached view. As Lord Brown said in the Countryside Alliance case at para 158, [s]ometimes the majority misuses its powers. Not least this may occur when what are perceived as moral issues are involved. However, (save, as some have argued, in circumstances which are very unlikely ever to arise) Parliamentary sovereignty and democratic accountability require that the legislature has the final say, as section 4 of the 1998 Act recognises: Lord Kerr accurately records the position in para 343 below. As for the other points relied on by the Secretary of State, it is true that in Pretty v DPP the House of Lords unanimously rejected the contention that section 2 infringed the article 8 rights of Ms Pretty, even if such rights were engaged. However, that was immediately after the House had wrongly concluded that her article 8 rights were not engaged, and before the Strasbourg court had considered the issue in the cases referred to in paras 29 38 above. Further, the arguments deployed in Pretty v DPP on this issue were very general in nature (see at p 805D). Indeed, as I shall seek to explain later in this judgment, it seems to me that the arguments deployed by the appellants in this appeal were not sufficiently focussed to justify a declaration of incompatibility in the first appeal. The extent of the need for assessing views, experiences and expertise, as invoked by the Secretary of State, will depend very much on the nature of the appellants proposals, as well as the evidence and arguments. Similarly, the degree of familiarity and confidence which the judiciary can claim in relation to the proposal, which will depend on the precise nature of the proposals. However, as the cases considered in paras 21 26 above demonstrate, the courts are used to dealing with life and death issues of the sort to which the present proceedings give rise. The Secretary of States reliance on the need for detailed provisions and regulatory safeguards has some force, but the court is not being asked to set up a specific scheme under which Applicants could be assisted to commit suicide such that it would be disproportionate for the law to forbid them from doing so. As Lord Hughes says in para 267 below, it is a matter for Parliament to determine the precise details of any scheme. But that does not prevent the court from concluding that there are a number of possible schemes. For the purpose of deciding that article 8 is infringed, the court needs to consider that aspect no further than is necessary to satisfy itself that some such scheme or schemes could be practically feasible. It is also relevant to bear in mind the current position, whereby, with Parliaments approval, the policy of the DPP is to investigate any assisted suicide after the event, and to lean against prosecuting where the assister was a close relative or friend activated by compassion, at least where there are no other, aggravating, relevant factors. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled, and informed wish to die and for his suicide then to be organised in an open and professional way, would, at least in my current view, provide greater and more satisfactory protection for the weak and vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself had such a wish, and also to investigate the actions and motives of any assister, who would, by definition, be emotionally involved and scarcely able to take, or even to have taken, an objective view. It is also appropriate to ask which of those two courses would be more satisfactory for the compassionate friend or relative (whose article 8 rights may also be engaged). Furthermore, it is clear from the 2010 Policy, the evidence summarised in para 48 above, as well as from the DPPs decision referred to in para 39 above, that those people who, out of compassion, assist relations and friends who wish to commit suicide, by taking or accompanying them to Dignitas, are routinely not prosecuted. In other words, those people who have access to supportive friends and relations, and who possess the means and physical ability to travel to Switzerland, are able in practice to be assisted in their wish to commit suicide, whereas those people, such as Mr Lamb and Martin, who lack one or more of those advantages, cannot receive any such assistance. Further, even those who can in practice be helped to travel to Switzerland to die would, understandably, prefer to die without the upheaval involved, at their homes with dignity in peace. The point discussed in paras 92 95 above, relating to the moral difference between a doctor administering a lethal injection to an Applicant, and a doctor setting up a lethal injection system which an Applicant can activate himself, is also of significance in relation to institutional competence. It could be said to be a radical step for a court to declare a statutory provision incompatible, if such a declaration involved effectively stating that the law should be changed so as to decriminalise an act which would unquestionably be characterised as murder or (if there were appropriately mitigating circumstances) manslaughter. If, on the other hand, Dr Nitschkes machine, described in para 4 above, could be used, then a declaration of incompatibility would be a less radical proposition for a court to contemplate. Conclusion on this issue In my view, bearing in mind all the features discussed in the preceding 26 paragraphs, the arguments raised by the Secretary of State do not justify this Court ruling out the possibility that it could make a declaration of incompatibility in relation to section 2. The interference with Applicants article 8 rights is grave, the arguments in favour of the current law are by no means overwhelming, the present official attitude to assisted suicide seems in practice to come close to tolerating it in certain situations, the appeal raises issues similar to those which the courts have determined under the common law, the rational connection between the aim and effect of section 2 is fairly weak, and no compelling reason has been made out for the court simply ceding any jurisdiction to Parliament. Accordingly, while I respect and understand the contrary opinion, so well articulated by Lord Sumption and Lord Hughes, I am of the view that, provided that the evidence and the arguments justified such a conclusion, we could properly hold that that section 2 infringed article 8. A court would therefore have to consider an application to make a declaration of incompatibility on its merits, and it seems to me that it would be inappropriate for us to fetter the judiciarys role in this connection in advance. More specifically, where the court has jurisdiction on an issue falling within the margin of appreciation, I think it would be wrong in principle to rule out exercising that jurisdiction if Parliament addresses the issue: it could be said with force that such an approach would be an abdication of judicial responsibility. In that connection, I agree with what Lord Mance says in para 191 below. Further, in practical terms, given the potential for rapid changes in moral values and medicine, it seems to me that such an approach may well turn out to be inappropriate in relation to this particular issue. However, I consider that, even if it would otherwise be right to do so on the evidence and arguments which have been raised on the first appeal, it would not be appropriate to grant a declaration of incompatibility at this time. In my opinion, before making such a declaration, we should accord Parliament the opportunity of considering whether to amend section 2 so as to enable Applicants, and, quite possibly others, to be assisted in ending their lives, subject of course to such regulations and other protective features as Parliament thinks appropriate, in the light of what may be said to be the provisional views of this Court, as set out in our judgments in these appeals. It would, of course, be unusual for a court to hold that a statutory provision, conventionally construed, infringed a Convention right and could not be construed compatibly with it, and yet to refuse to make a declaration under section 4 of the 1998 Act. However, there can be no doubt that there is such a power: section 4(2) states that if there is an incompatibility, the court may make a declaration to that effect, and the power to grant declaratory relief is anyway inherently discretionary. The possibility of not granting a declaration of incompatibility to enable the legislature to consider the position is by no means a novel notion. As pointed out by Lady Hale, Lord Nicholls in Bellinger v Bellinger [2003] 2 AC 467, para 53, said this: It may also be that there are circumstances where maintaining an offending law in operation for a reasonable period pending enactment of corrective legislation is justifiable. An individual may not then be able, during the transitional period, to complain that his rights have been violated. The admissibility decision of the court in Walden v Liechtenstein (Application no 33916/96) (unreported) 16 March 2000 is an example of this pragmatic approach to the practicalities of government. In my view, even if the facts and arguments otherwise justified a declaration of incompatibility on the first appeal (which for the reasons given below, I consider they do not), this is one of those exceptional cases where it would have been inappropriate to grant a declaration of incompatibility at this stage. That view is based on considerations of proportionality in the context of institutional competence and legitimacy which are well articulated by Lord Mance in paras 166 170 below, taking forward his discussion in Re G, referred to in paras 71 73 above. There is a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like Re G where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than thirteen years ago, the House of Lords in Pretty v DPP gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte face. In para 204 below, Lord Wilson refers to the power of the court under section 4 of the 1998 Act as giving rise to mechanism for collaboration between the courts and Parliament, and many judges and academics have referred to the dialogue which takes place between national courts and the Strasbourg court. While those expressions should not detract from the seriousness of a declaration of incompatibility, they may be helpful metaphors. Dialogue or collaboration, whether formal or informal, can be carried on with varying degrees of emphasis or firmness, and there are times when an indication, rather than firm words are more appropriate and can reasonably be expected to carry more credibility. For the reasons just given, I would have concluded that this was such a case. Parliament now has the opportunity to address the issue of whether section 2 should be relaxed or modified, and if so how, in the knowledge that, if it is not satisfactorily addressed, there is a real prospect that a further, and successful, application for a declaration of incompatibility may be made. It would not be appropriate or even possible to identify in advance what amounts to a reasonable time in this context. However, bearing in mind the predicament of the Applicants, and the attention the matter has been given inside and outside Parliament over the past twelve years, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of Applicants explicitly debated in the near future, either along with, or in addition to, the question whether there should be legislation along the lines of Lord Falconers proposals. Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made, as indicated in para 112 above. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 below, while of real interest, might fairly be said to be somewhat premature. Should the Court grant a declaration of incompatibility? issue (d) This question does not need to be answered in the light of the conclusion I have reached in the immediately preceding paragraphs. However, it would, I think, be wrong to leave the first appeal without stating that, even if I had concluded that it would in principle have been institutionally appropriate to make a declaration of incompatibility in these proceedings, I would not have done so on the basis of the evidence and arguments laid before the courts. Before we could uphold the contention that section 2 infringed the article 8 rights of Applicants, we would in my view have to have been satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State (particularly the concern to protect the weak and vulnerable) were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not consider that we can be properly confident that we have the evidence or that the courts below or the Secretary of State have had a proper opportunity to address the issue, in order to determine whether requirement (c) or (d) in Aguilar Quila is satisfied. That brings me to the appellants specific proposals, which in my view suffered from a lack of proper focus. As I understand it, they rely heavily on the recommendations of the Falconer Report and the conclusions of Smith J in the Canadian case of Carter v Canada [2012] BCSC 886, but I would find it hard to accept either of them as a sound basis for supporting the appellants case. So far as the Carter case is concerned, I have nothing to add to what Lord Mance says at paras 178 182 below. As for the Falconer Commission, in common with the proponents of change in 2006 and 2009 in the House of Lords, it recommended that section 2 should be cut down only to the extent that assistance could be accorded to those who were terminally ill with twelve months or less to live. (I believe that Lord Falconer is currently proposing a shorter period, six months.) That would not assist Applicants. Further, I find it a somewhat unsatisfactory suggestion. Quite apart from the notorious difficulty in assessing life expectancy even for the terminally ill, there seems to me to be significantly more justification in assisting people to die if they have the prospect of living for many years a life that they regarded as valueless, miserable and often painful, than if they have only a few months left to live. Further, the Falconer Report suggests that the decision whether to permit someone to be assisted to die should be left to doctors. That is understandable (though I am not entirely convinced by it) if the issue is whether the person concerned will die shortly. However, if the people who are to be assisted are in the sad situation of Applicants, I would have thought that there is much to be said for the idea, first mooted by Lady Hale and developed in her judgment in paras 314 316 below, that it should be a High Court Judge who decides the issue. Indeed, it appears to me that it may well be that the risks to the weak and vulnerable could be eliminated or reduced to an acceptable level, if no assistance could be given to a person who wishes to die unless and until a Judge of the High Court has been satisfied that his wish to do so was voluntary, clear, settled and informed. As explained in paras 21 26 above, over the past twenty five years, the High Court has been able to sanction a number of actions in relation to people which will lead to their deaths or will represent serious invasions of their body sterilisation, denial of treatment, withdrawal of artificial nutrition and hydration, switching off a life support machine, and surgery causing death to preserve the life of another. It is true that in most of these cases, the court is involved because the person concerned cannot express his wishes. However, that is not true of cases such as Re B (Treatment), where the issue for the court would be identical to that in the type of case raised by the appellants. In these circumstances, I consider that it is certainly conceivable that a court could conclude that section 2 infringes article 8 in so far as it precludes an Applicant from receiving assistance in committing suicide, provided that a High Court Judge has formally determined that he has a voluntary, clear, settled and informed wish to do so. However, over and above the reason discussed in paras 113 118 above, it would not have been appropriate to reach such a conclusion in these proceedings. Neither the Secretary of State nor the courts below have had a proper opportunity to consider this, or any other, proposal. As Lord Mance explains more fully in paras 175 177 below, in both the High Court and the Court of Appeal, the claim of a declaration of incompatibility was rather a fall back argument, and the appellants contended that the issue could not be determined without further fact finding. Further, the argument in those courts was primarily advanced on the basis that someone would actually have to kill Mr Nicklinson and Mr Lamb, as opposed to enabling them to administer a fatal dose themselves through operating an eyeblink computer, and, for the reasons given in paras 92 95 and 110 above, the ability of an Applicant to commit suicide through the use of a machine such as the eye blink computer is of importance in my view. In any event, at least on the basis of the arguments and evidence which have been put before the Court, there would have been too many uncertainties to justify our making a declaration of incompatibility. Of course, it is for Parliament to decide how to respond to a declaration of incompatibility, and in particular how to change the law. However, at least in a case such as this, the Court would owe a duty, not least to Parliament, not to grant a declaration without having reached and expressed some idea of how the incompatibility identified by the court could be remedied. Thus, it appears to me that it would be necessary to consider purely factual matters, such as whether devices such as Dr Nitschkes machine are reliable, whether they could be activated by Applicants, and whether it would be feasible to use them. There would also be mixed factual and policy issues to consider, such as whether appropriate safeguards (including by whom and on what basis the decision to permit an assisted suicide should be made) could be developed to protect both those who firmly wish to die and those who do not, whether Applicants could be fairly identified and regulated as a self contained collection of people, whether there would be implications for people who were not Applicants but wished to be assisted in killing themselves, and if so what the implications were, and how they should be dealt with. The disposal of the first appeal issue (e) In these circumstances, I consider that we should dismiss the first appeal. However, it is right to add that, if I had concluded that article 8 was infringed by section 2 as conventionally interpreted, I would have had no hesitation in rejecting the appellants contention that section 2 could be read, in the light of section 3 of the 1998 Act, so as to comply with the Convention. The only argument put forward to support the contention was that, a person who assisted an Applicant to die could rely on the doctrine of necessity to avoid criminal liability under section 2. As Lord Dyson and Elias LJ explained in para 25 of their judgment in the Court of Appeal, to extend the defence of necessity to a charge of assisted suicide would be a revolutionary step, which would be wholly inconsistent with both recent judicial dicta of high authority, and the legislatures intentions. As to judicial dicta, see R v Howe [1987] 1 AC 417, 429B D and 453B F, per Lord Hailsham and Lord Mackay respectively, Bland, pp 892E 893A per Lord Mustill, and Inglis at para 37, per Lord Judge CJ. So far as legislative intention is concerned, in 1961, Parliament decided, through section 2(1), to create a statutory offence of assisting a suicide in a provision which admitted of no exceptions, and it confirmed that decision as recently as 2009 (when section 2(1) was repealed and re enacted in more detailed terms) following a debate in which the possibility of relaxing the law on the topic was specifically debated. I turn then to the issues raised by the DPPs appeal. Does the 2010 Policy infringe article 8? issue (f) The challenge to the validity of the 2010 Policy In Purdy at para 41, Lord Hope explained that any law which restricts a Convention right must satisfy the two requirements of accessibility and foreseeability. He went on to explain that the requirement of foreseeability is satisfied where the person concerned is able to foresee. the consequences which a given action may entail, a formulation which was derived from the Sunday Times case, para 49, and a number of subsequent decisions of the Strasbourg court. The level of precision required of domestic legislation, as was stated in Hasan and Chaush, para 84, depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. The decision in Purdy was not merely justified by the fact that the crime of assisting suicide can engage articles 2 and 8; it was more because the crime, at least in many cases, has a unique combination of features, all of which point firmly towards a requirement for clear guidance. First, section 2(1) renders it a crime to assist someone else to do an act which is not itself in any way a crime. Secondly the victim is not merely a willing participant, but the instigator. Thirdly, the victims article 8 rights are interfered with unless the crime is committed. Fourthly, the person committing the offence will be a reluctant participant, motivated by compassion for the so called victim, and not by emotions which normally stimulate criminal behaviour. It is true that the last three of these four characteristics are not an inevitable feature of a case of assisting a suicide, but they will all frequently feature in such cases. Indeed, it was because assisting suicide was such an unusual crime that subsection (4) was included in section 2 see Purdy, para 46. Even more centrally, it was because all four characteristics were such likely features of a potential offence under section 2 that Purdy was decided in the way that it was. The requirement for a specific policy was not to protect the interests of those who were contemplating putting pressure on the vulnerable, or seeking to benefit from someones suicide, but to protect the interests of the very people assistance of whose suicide would involve all four characteristics see Purdy, paras 53, 68, 86 and 102. The need for a clear policy in this area is said to be supported by the reasoning of the majority of the Strasbourg court in Gross. It concerned a somewhat different aspect of assisted dying, but the courts emphasis in para 66 on the need for guidelines to avoid a person being in a state of anguish and uncertainty regarding the extent of her right to end her life, seems to me to apply to a case such as those that have given rise to these appeals. I note also the conclusion in para 69 that it was up to the domestic authorities to issue comprehensive and clear legal guidelines as to whether and under which circumstances an individual not suffering from a terminal illness should be granted the ability to acquire a legal dose of medication allowing them to end their life. Martins argument in the second appeal is that, as a result of a lack of clarity in the 2010 Policy, the law relating to the crime of assisting suicide fails to live up to the foreseeability requirement. The lack of clarity is said to arise where a person who has a voluntary, clear, settled and informed wish to die and who requires assistance, is given such assistance by a third party, who is acting purely out of compassion and who has exerted no pressure on the person, but is not a relation or friend, and would often be a doctor or other professional carer. Where the third party is a friend or relation, then in the absence of any aggravating factor, the 2010 Policy indicates that a prosecution would be unlikely, but in any other case the position could fairly be described as more opaque. The evidence suggests that this uncertain state of affairs leads doctors and other professional carers almost always to refuse to give any information or advice to those who wish to end their lives. This degree of caution, although understandable, appears to go too far, and I gladly associate myself with the accurate and helpful guidance given in para 255(2), (3) and (4) of Lord Sumptions judgment. Having said that, Lord Dyson MR and Elias LJ expressed the problem which was said to exist with the 2010 Policy very well at para 140 of the Court of Appeals judgment: How does [the 2010 Policy] apply in the case of a medical doctor or nurse who is caring for a patient and out of compassion is willing to assist the patient to commit suicide, but is not, as it were, in the business of assisting individuals to commit suicide and perhaps has never done so before? How much weight is given by the DPP to para 43(14) alone? And if the professional accepts some payment for undertaking the task, will that be likely to involve a finding that he or she is not wholly motivated by compassion, thereby triggering both paragraph 43(6) and paragraph 43(13)? These questions are of crucial importance to healthcare professionals who may be contemplating providing assistance. It is of no less importance to victims who wish to commit suicide, but have no relative or close friend who is willing and able to help them to do so. Suppose that (i) none of the factors set out in para 43 is present (apart from the para 43(14) factor) and (ii) all of the factors set out in para 44 are present. What is the likelihood of a prosecution in such a situation? The Policy does not say. To adopt the language of the Sunday Times case, even in such a situation, the Policy does not enable the healthcare professional to foresee to a reasonable degree the consequences of providing assistance. In short, we accept the submission that the Policy does not provide medical doctors and other professionals with the kind of steer that it provides to relatives and close friends acting out of compassion . Is it appropriate to expect greater foreseeability? Lord Hughes and Lord Kerr rightly point out that (i) the state of the law is clear, indeed could not be clearer, in the sense that any form of assisting a suicide is a crime under the unconditional provisions of section 2, and (ii) the role of the DPP is constitutionally limited, in that it is not, and indeed cannot be, to make the law, let alone to change the law, but to decide how much guidance she can properly give in her policy with regard to prosecutions under section 2(1). We are not therefore in the same area as that which was being discussed in the passages cited from Gross in para 135 above, which was concerned with what conduct would be lawful in Swiss law. Further, any policy which the DPP has (whether published or not) must be applied after the event. In these circumstances, it is inevitable that any policy issued by the DPP has to retain a degree of flexibility: each case has to be assessed after the event by reference to its own particular facts. However, I do not share Lord Hughess concerns about (i) the decision in Purdy (the correctness of which was not challenged by anyone in these appeals), or (ii) the risk of a spill over into other statutory crimes where there is a provision such as section 2(4). As to (i), particularly given the unique combination of features identified in para 133 above, it was appropriate to require the DPP to publish a policy in relation to assisting suicide, given that his existing general code did not satisfactorily apply to that crime. It was not as if the House was seeking to say what that policy should be. As to (ii), although section 2(4) was given weight in Purdy, it is the DPPs general prosecutorial discretion which is the relevant power which gave rise to the decision in that case. More importantly, as already mentioned, it is the unique character of the offence, coupled with the decision in Pretty v UK, which led the House to decide that a specific published policy for assisting suicide was required. Accordingly, we are here concerned with a very unusual crime which is the subject of a specific policy. However, that does not undermine the force of the constitutional argument that it is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy. The purpose of the DPP publishing a code or policy is not to enable those who wish to commit a crime to know in advance whether they will get away with it. It is to ensure that, as far as is possible in practice and appropriate in principle, the DPPs policy is publicly available so that everyone knows what it is, and can see whether it is being applied consistently. While many may regret the fact that the DPPs policy is not clearer than it is in relation to assistance given by people who are neither family members nor close friends of the victim, and while many may believe that the policy should be the same for some categories of people who are not family members or close friends as for those who are, it would not be right for a court in effect to dictate to the DPP what her policy should be. A further point In these circumstances, were it not for one point, I would simply have accepted the DPPs case on the second appeal. However, the matter is not quite so simple in light of what was said by Lord Judge CJ (dissenting on this point) in the Court of Appeal about the 2010 Policy: 185. [I]t seems clear to me that paragraph 14 addresses the risks which can arise when someone in a position of authority or trust, and on whom the victim would therefore depend to a greater or lesser extent, assisting in the suicide in circumstances in which, just because of the position of authority and trust, the person in authority might be able to exercise undue influence over the victim. As I read this paragraph it does not extend to an individual who happens to be a member of a profession, or indeed a professional carer, brought in from outside, without previous influence or authority over the victim, or his family, for the simple purposes of assisting the suicide after the victim has reached his or her own settled decision to end life, when, although emotionally supportive of him, his wife cannot provide the necessary physical assistance. 186. Naturally, it would come as no surprise at all for the DPP to decide that a prosecution would be inappropriate in a situation where a loving spouse or partner, as a final act of devotion and compassion assisted the suicide of an individual who had made a clear, final and settled termination to end his or her own life. The Policy deliberately does not restrict the decision to withhold consent to family members or close friends acting out of love and devotion. The Policy certainly does not lead to what would otherwise be an extraordinary anomaly, that those who are brought in to help from outside the family circle are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. The stranger brought into this situation, who is not profiteering, but rather assisting to provide services which, if provided by the wife, would not attract a prosecution, seems to me most unlikely to be prosecuted. In my respectful judgment this Policy is sufficiently clear to enable Martin, or anyone who assists him, to make an informed decision about the likelihood of prosecution. For the reasons given by Lord Dyson MR and Elias LJ quoted in para 138 above, I do not agree with Lord Judge CJ that one can spell out of the 2010 Policy the approach which he sets out so clearly in those two paragraphs. However, the important point for present purposes is that what is said in those two paragraphs represents, according to her counsel on instructions, the view of the DPP herself, as to the appropriate policy. If the DPPs policy does not mean what she intends it to mean, and this has been made clear in open court, then it is her duty, both as a matter of domestic public law and in the light of the Strasbourg jurisprudence as a public authority, to ensure that the confusion is resolved. However, I am of the view that it would not be appropriate, at least at this stage, to make an order which would require the DPP to amend the 2010 Policy. Rather, I think, it is appropriate to leave it to her to review the terms of the 2010 Policy, after consultation if she thinks fit, with a view to amending it so as to reflect the concerns expressed in the judgments of this Court, and any other concerns which she considers it appropriate to accommodate. There are three reasons which persuade me that it would be inappropriate to make any order against the DPP at this stage. First, it is really only as a result of the hearing of this appeal that it has become clear that the 2010 Policy may not reflect the DPPs views. It would therefore be somewhat harsh for the court to impose a duty on her to deal with the problem, as opposed to giving her the opportunity to do so. Secondly, although her agreement with Lord Judge CJs analysis was no doubt considered, the DPP should not be regarded as bound by it. She should have a proper opportunity to consider the 2010 Policy, after making such enquiries as she thinks appropriate. Thirdly, in any event, the contents of any order would either be very vague or they would risk doing that which the court should not do, namely usurping the functions of the DPP, or even of Parliament. Given that, in an important respect, the 2010 Policy does not appear to reflect what the DPP intends, it seems to me inevitable that she will take appropriate steps to deal with the problem, particularly in the light of the impressive way in which her predecessor reacted to the decision in Purdy. However, if the confusion is not sorted out, then, at least in my view, the courts powers could be properly invoked to require appropriate action, but, as I have said, it seems very unlikely that this will be necessary. The contents of the Policy issue (g) In the light of my conclusion in the immediately preceding paragraphs, Martins cross appeal does not arise. Conclusions For the reasons I have given (which are generally the same as those of Lord Mance) I would summarise my conclusions as follows: a) In common with all other members of the Court, I do not consider that section 2 imposes what the Strasbourg court would regard as an impermissible blanket ban on assisted suicide, which would take it outside the margin of appreciation afforded on this issue to member states; c) b) Given that the Strasbourg court has decided that it is for the member states to decide whether their own law on assisted suicide infringes article 8, I consider, in common with other members of the Court, that domestic courts have the constitutional competence to decide the issue whether section 2 infringes article 8; (i) Unlike Lord Sumption, Lord Clarke, Lord Reed and Lord Hughes, I do not consider that it would be institutionally inappropriate, or only institutionally appropriate if Parliament refuses to address the issue, for a domestic court to consider whether section 2 infringes the Convention, but, (ii) Unlike Lady Hale and Lord Kerr, I do not consider that it would be institutionally appropriate for us to determine the issue at this time; d) Notwithstanding the views of Lady Hale and Lord Kerr to the contrary, I am of the view that, quite apart from my view in para (c)(ii), in the light of the evidence and the arguments presented on this appeal the Court is not in a position to decide the issue; In common with all members of the Court, I do not consider that the Court should involve itself with the terms of the DPPs policy on assisted suicide, albeit that I would expect the DPP to clarify her policy. e) In these circumstances, I would dismiss the appeal brought by Mrs Nicklinson and Mr Lamb, allow the appeal brought by the DPP, and dismiss the cross appeal brought by Martin. LORD MANCE I agree generally with the reasoning and conclusions of Lord Neuberger on the appeals by Mrs Nicklinson and Mr Lamb, read with the following observations of my own. On the appeal and cross appeal in the case of Martin, I agree that the Director of Public Prosecutions appeal should be allowed and Martins cross appeal dismissed, for reasons given by Lord Neuberger and Lord Sumption, supplemented by short observations of my own. The appeals by Mrs Nicklinson and Mr Lamb Before us the appeals by Mrs Nicklinson and Mr Lamb have acquired a different focus from that of Mr Nicklinsons case below. Below, Mr Nicklinsons case, as recorded by Toulson LJ in paras 15 and 21 of his judgment in the Divisional Court, was that the only way in which [he] could end his life other than by self starvation would be by voluntary euthanasia. Although a statement had been produced by a North Australian doctor, Dr Nitschke, to the effect that it would be technologically possible for Mr Nicklinson to take the final step of initiating suicide with the aid of a machine which Dr Nitschke has invented, pre loaded with lethal drugs and capable of being digitally activated by Mr Nicklinson by a blink of his eye (para 16), Toulson LJ went on to say that In these circumstances [Mr Nicklinson] wants to be able to choose to end his life by voluntary euthanasia at a moment of his choosing (para 17); and he added that, although Dr Nitschkes evidence meant that the claim that s.2 of the Suicide Act 1961 was incompatible with article 8 of the Convention was not entirely academic, the main part of the argument on Mr Nicklinsons behalf under article 8 was directed to establishing that it requires voluntary active euthanasia to be permitted by law (para 21). In the Divisional Court (para 122) and Court of Appeal (para 105), the cases of R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800 and Pretty v United Kingdom (2002) 35 EHRR 1 were treated as binding on the issue whether the blanket ban contained in s.2 of the Suicide Act is compatible with the Convention as interpreted by the Strasbourg court. The Court of Appeal added the caveat that the court must also satisfy itself as to the proportionality of the ban as a matter of domestic law (para 110), but concluded that in a case like this, it would be improper for a court to find a blanket prohibition disproportionate where this is not dictated by Strasbourg jurisprudence (para 111). In the courts below, therefore, the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder at common law and/or in the light of article 8 of the European Convention on Human Rights. That case is not now pursued. The case now advanced is that a machine like Dr Nitschkes would offer a feasible means of suicide, and that the prohibition on assisting suicide in s.2(1) of the Suicide Act 1961, as amended by s.59 of the Coroners and Justice Act 2009, should be read down to permit this assistance to be volunteered, or if that is not possible that the prohibition should be declared incompatible with article 8 of the Convention on Human Rights. In my opinion the decision of the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 establishes at the international level that it is within the margin of appreciation of Member States of the Council of Europe to legislate in terms involving a blanket prohibition of assisted suicide. More recent cases, such as Haas v Switzerland (2011) 53 EHRR 33, Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7 throw no doubt on this, since they concern either a state (Switzerland) which permits assisted suicide or a state (Germany) whose courts had acted contrary to article 6 of the Convention by refusing even to address the issue. It is of interest to compare the European Court of Human Rights decision in Pretty with the majority reasoning of the United States Supreme Court in Washington v Glucksberg 521 U.S. 702 (1997). The United States Supreme Court was concerned with the due process clause in the American Constitution, under which a wide range of fundamental liberties has in the past been recognised, including the right to marry, to have and direct the upbringing of children and to have an abortion (Roe v Wade 410 U.S. 113 (1973) and Planned Parenthood v Casey 505 U.S. 833 (1992) and the right to refuse unwanted lifesaving medical treatment (Cruzen v Director, Missouri Dept. of Health 497 U.S. 261 (1990). It held that the right to due process did not extend to a right to commit assisted suicide, and that the State of Washingtons blanket prohibition on assisted suicide was accordingly not unconstitutional. It noted that the overwhelming majority of States prohibited assisted suicide, some after quite recent debates about it, but it also noted that voters in Oregon had in 1994 enacted a Death with Dignity Act legalising physician assisted suicide for competent, terminally ill adults (p 717). Its comment was that this showed that the States are currently engaged in serious, thoughtful examination of physician assisted suicide and other similar issues (p 719). It is a comment of some relevance in my opinion to the position in which this Court finds itself in relation to Parliament, a subject to which I shall return. I do not read paragraph 76 of the European Court of Human Rights judgment in Pretty as suggesting that a blanket prohibition may be incompatible with article 8 at the international level. I agree with Lord Neubergers analysis in his paragraphs 62 to 65. When the European Court of Human Rights said in paragraph 76 in Pretty that: It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. it was, as I see it, reaffirming the legitimacy (at the international level and bearing in mind the margin of appreciation) of a blanket prohibition, but recognising that, at the subsequent stage of enforcement and adjudication, some flexibility in approach was appropriate. In Purdy, at para 74, Lord Brown thought it implicit in the Courts reasoning in Pretty v United Kingdom that in certain cases, not merely will it be appropriate not to prosecute, but a prosecution under section 2(1) would actually be inappropriate. He went on: If in practice the ban were to operate on a blanket basis, the only relaxation in its impact being by way of merciful sentences on some occasions when it is disobeyed, that would hardly give sufficient weight to the article 8 rights with which the ban, if obeyed, is acknowledged to interfere. The emphasis in this passage is on the distinction between merciful sentencing and the decisions not to prosecute at all which the Director is expressly authorised to take under s.2(4). The passage does not suggest that a blanket ban is in principle impermissible (if it did, it would be contrary to much else that the Court said in Pretty v United Kingdom and later cases). It is recognising the exercise of the Directors discretion under s.2(4) as an important concomitant of the blanket ban in the United Kingdom context. But it is a concomitant, not intended to undermine or qualify the legitimacy of the blanket prohibition, but directed to the treatment of those who infringe it. In Haas, para 55, the Court observed that the vast majority of member States seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. It follows that the States enjoy a considerable margin of appreciation in this area. In Koch v Germany (2013) 56 EHRR 6, para 70, the Court repeated its reference to a considerable margin of appreciation. It is, in these circumstances, important to note how the Court put the position under article 8 in Haas at para 51, and repeated it in Koch, para 52 and Gross, para 59. It said that, in the light of the previous case law: an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. It would be wrong in my view to deduce from this that the Strasbourg jurisprudence accepts that those capable of freely reaching a decision to end their lives, but physically incapable of bringing that about by themselves, have a prima facie right to obtain voluntary assistance, which is now the issue in this case, to achieve their wish. article 8.1 is, on the authority of Pretty v United Kingdom, engaged in this area. But it does not by itself create a right. A right only exists (at least in any coherent sense) if and when it is concluded under article 8.2 that there is no justification for a ban or restriction. Autonomy is an important value. But, as soon as the giving of assistance to those physically incapable of committing suicide without assistance comes into question, other factors, in particular the wider implications for third parties (not just the voluntary assister), also require consideration. The European Court of Human Rights words capable of . acting in consequence were carefully devised. To distinguish in this respect between those capable of committing suicide by themselves and others is not unjustifiably to discriminate against the latter. A submission to contrary effect was rejected by the House of Lords in R (Pretty), where Lord Bingham said: She contends that the section is discriminatory because it prevents the disabled, but not the able bodied, exercising their right to commit suicide. This argument is in my opinion based on a misconception. The law confers no right to commit suicide. A similar answer was also given by the European Court of Human Rights in Pretty v United Kingdom. In relation to the applicants complaint that she has been discriminated against in the enjoyment of the rights guaranteed under that provision in that domestic law permits able bodied persons to commit suicide yet prevents an incapacitated person from receiving assistance in committing suicide (para 86), the Court said: 87. For the purposes of article 14 a difference in treatment between persons in analogous or relevantly similar positions is discriminatory if it has no objective and reasonable justification, that is if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised. Moreover, the Contracting States enjoy a margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a different treatment (see Camp and Bourimi vs the Netherlands, no. 28369/95, 37, ECHR 2000 X). Discrimination may also arise where States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different (see Thlimmenos vs Greece [GC], no. 34369/97, 44, ECHR 2000 IV). 88. Even if the principle derived from Thlimmenos was applied to the applicant's situation however, there is, in the Court's view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable (see paragraph 74 above). Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. It follows from the margin of appreciation which exists at the international level that it is for domestic courts to examine the merits of any claim to receive assistance to commit suicide: see Koch, para 71. The United Kingdom position is on the face of it clear. Parliament has legislated for a blanket prohibition, combined with a discretion on the part of the Director of Public Prosecutors to decide whether in any particular case to prosecute. Pursuant to the House of Lords decision in R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the Director has issued his 2010 Policy statement, set out in Lord Neubergers judgment at paras 46 and 47. As the Court of Appeal noted (para 110), the fact that Parliament has legislated a blanket ban is not the end of the matter as far as United Kingdom courts are concerned. Under the Human Rights Act 1998, it is the courts role to consider United Kingdom legislation in the light of the Convention rights scheduled to that Act. Where a considerable margin of appreciation exists at the international level, both the legislature and the judiciary have a potential role in assessing whether the law is at the domestic level compatible with such rights. That means considering whether a blanket prohibition is in accordance with law, in the sense that it not only meets a legitimate aim, but does so in a way which is necessary and proportionate. The legislators choice is not necessarily the end of the matter: see In re G (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173. At this point, however, questions of institutional competence arise at the domestic level. The interpretation and ambit of s.2 are on their face clear and general, and whether they should be read down or declared incompatible in the light of article 8 raises difficult and sensitive issues. Context is all, and these may well be issues with which a court is less well equipped and Parliament is better equipped to address than is the case with other, more familiar issues. On some issues, personal liberty and access to justice being prime examples, the judiciary can claim greater expertise than it can on some others. The same applies to the legislature even though I fully accept, that, while the legislature is there to reflect the democratic will of the majority, the judiciary is there to protect minority interests, and to ensure the fair and equal treatment of all. Whether a statutory prohibition is proportionate is, in my view, a question in the answering of which it may well be appropriate to give very significant weight to the judgments and choices arrived at by the legislator, particularly when dealing with primary legislation. In their impressive judgments in the courts below, Toulson LJ (at paras 57 to 62 and 75 to 84) and Lord Dyson MR (at paras 49 and 56 to 60) cited extensively from prior authority cautioning against courts interference in difficult ethical and social issues better fitted for Parliamentary resolution under our democratic traditions. One such case was Airedale NGHS Trust vs Bland [1992] UKHL 5; [1993] AC 789, where the House of Lords addressed the narrow but vital distinction between mercy killing and the discontinuance of life sustaining measures in the context of an application to discontinue measures of the latter kind in respect of a patient in a permanent vegetative state. In this context, Lord Browne Wilkinson said (p.880A B) that it is not for the judges to seek to develop new, all embracing, principles of law in a way which reflects the individual judges moral stance when society as a whole is substantially divided on the relevant moral issues (p 880A B per Lord Brown Wilkinson Lord Mustill said (p.890G 891C): These are only fragments of a much wider nest of questions, all entirely ethical in content, beginning with the most general "Is it ever right to terminate the life of a patient, with or without his consent?" I believe that adversarial proceedings, even with the help of an amicus curiae, are not the right vehicle for the discussion of this broad and highly contentious moral issue, nor do I believe that the judges are best fitted to carry it out. On the latter aspect I would adopt the very blunt words of Scalia J. in Cruzan vs Director, Missouri Department of Health (1990) 110 S.Ct. 2841, 2859, where a very similar problem arose in a different constitutional and legal framework. These are problems properly decided by the citizens, through their elected representatives, not by the courts. My Lords, I believe that I have said enough to explain why, from the outset, I have felt serious doubts about whether this question is justiciable, not in the technical sense, but in the sense of being a proper subject for legal adjudication. The whole matter cries out for exploration in depth by Parliament and then for the establishment by legislation not only of a new set of ethically and intellectually consistent rules, distinct from the general criminal law, but also of a sound procedural framework within which the rules can be applied to individual cases. The rapid advance of medical technology makes this an ever more urgent task, and I venture to hope that Parliament will soon take it in hand. Meanwhile, the present case cannot wait. We must ascertain the current state of the law and see whether it can be reconciled with the conduct which the doctors propose. In that case, as Lord Mustills final sentences indicate, the House had to address the point under the law as it then stood. I note however that the United States Supreme Court reached a similar result in another decision under the due process clause: Vacco v Quill 521 U.S. 793 (1997), handed down on the same day as Washington v Glucksberg. Rejecting an argument that the State of New Yorks ban on assisted suicide by the prescription of lethal medication to mentally competent, terminally ill patients suffering great pain was unconstitutional, the Supreme Court said that the distinction between assisting suicide and withdrawing life sustaining treatment, a distinction widely recognised and endorsed in the medical profession and in our legal traditions, is both important and logical; it is certainly rational (pp 800 801), and that even though the line between the two may not be clear, . certainty is not required, even were it possible (p 808). In the present appeal, current United Kingdom law is clear. Prior to the Human Rights Act 1998 that would have been the end of the matter. The question is how far the Human Rights Act requires a different approach. It is in my view a mistake to approach proportionality as a test under the Human Rights Act which is insensitive to considerations of institutional competence and legitimacy. The qualifying objectives reflected in article 8.2 of the Convention can engage responsibilities normally attaching in the first instance to other branches of the state, whether the executive or the legislature. When considering whether a particular measure is necessary and all the more when considering whether it is justified on a balancing of competing and often incommensurate interests, courts should recognise that there can still be wisdom and relevance in the factors mentioned in the preceding two paragraphs. This is all the more so when the court is considering the scope of the Convention rights, as enacted domestically, in a situation, like the present, which the European Court of Human Rights has held to fall within the United Kingdoms international margin of appreciation. That Parliament has regularly addressed the general area and is still actively engaged in considering associated issues in the context of Lord Falconers Assisted Dying Bill 2013 underlines the significance of the point. This does not mean that there is a legal rule that courts will not intervene (as to which see Lord Steyn, extra judicially in Deference: A Tangled Story, [2005] PL 345, commenting on R (ProLife Alliance) v British Broadcasting Corp [2003] UKHL 23, [2004] 1 AC 185, paras 74 77 per Lord Hoffmann) or that the courts have no role. It means merely that some judgments on issues such as the comparative acceptability of differing disadvantages, risks and benefits have to be and are made by those other branches of the state in the performance of their everyday roles, and that courts cannot and should not act, and do not have the competence to act, as a primary decision maker in every situation. Proportionality should in this respect be seen as a flexible doctrine. That institutional competence is important in the context of judgments made on issues of proportionality has been recognised in a series of cases: see e.g. A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, paras 29 and 38 39, per Lord Bingham, R (SB) v Governors of Denbigh High School [2006] UKHL 15, [2007] 1 AC 100, para 34, per Lord Bingham, R (Animal Defenders International) v Secretary of State for Culture, Media and Sport [2008] UKHL 15, [2008] 1 AC 1312, para 53, per Lady Hale, R (Countryside Alliance) v Attorney General [2007] UKHL 52, [2008] 1 AC 719, para 45, per Lord Bingham (the passage quoted by Lord Neuberger in his para 102) and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, paras 68 76 per Lord Reed, with whose observations in these paragraphs Lord Sumption, Lady Hale, Lord Kerr and Lord Clarke agreed at para 20 and Lord Neuberger agreed at para 166. Lord Reeds observations, worth study in their entirety, included the following: 71. An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend on the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court. 74. The judgment of Dickson CJ in Oakes (R v Oakes [1986] 1 SCR 103) provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in de Freitas (de Freitas v Permanent Secretary if Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69), and the fourth reflects the additional observation made in Huang (Huang v Secretary of State for the Home Department [2007] 2 AC 167). I have formulated the fourth criterion in greater detail than Lord Sumption JSC, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781 782 that the limitation of the protected right must be one that it was reasonable for the legislature to impose, and that the courts were not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois State Board of Elections v Socialist Workers Party (1979) 440 US 173, 188189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. 76. In relation to the fourth criterion, there is a meaningful distinction to be drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four). As Lord Reed also observed at para 69: 69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the EU Treaty. The test is expressed in more compressed and general terms than in German or Canadian law, and the relevant jurisprudence is not always clear, at least to a reader from a common law tradition. In R v Ministry of Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023, the European Court of Justice stated, at para 13): The court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. The intensity with which the test is applied that is to say, the degree of weight or respect given to the assessment of the primary decision maker depends on the context. The flexibility of proportionality in the parallel context of European Union law was underlined in the Court of Appeal with regard to legislative choices made by a minister in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394 (see especially at paras 126 134 and 203 per Arden LJ and Lord Neuberger MR, respectively) and was, still more recently, underlined in my judgment (in which Lord Neuberger and Lord Clarke joined) in Kennedy v The Charity Commission [2014] UKSC 20, para 54. It is also demonstrated instructively in the context of Convention law in an article by Julian Rivers, Proportionality and Variable Intensity of Review (2006) 65 CLJ 174. The main justification advanced for an absolute prohibition on assisting suicide, even in cases as tragic as Mr Nicklinsons and Mr Lambs, is the perceived risk to the lives of other, vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so. The relevant measure is the prohibition, which on this basis has a legitimate aim. Whether it is rationally connected to that aim depends upon the existence of the perceived risk. Whether it is necessary depends upon whether a lesser measure would have achieved, or at least not unacceptably have compromised, the aim. Whether it is proportionate depends upon identifying what the measure achieves and balancing this against the consequences for other interests. These four stages, derived from the passage in Lord Reeds judgment in Bank Mellat quoted in para 168 above, are analytically useful. They are also subject to some modification in particular contexts, not here directly relevant. (For example, the third stage may not apply in quite the same way under article 1 of Protocol No 1.) The third and fourth stages may raise potentially overlapping considerations, but the distinction between them is important. The third asks whether the aim could have been achieved without significant compromise by some less intrusive measure. The fourth involves the critical exercise of balancing the advantages of achieving the aim in the way chosen by the measure against the disadvantages to other interests. This balancing exercise, often involving the weighing of quite different rights or interests, is a core feature of the courts role, and can be described as involving proportionality in the strict sense of that word. How intensely the court will undertake the exercise, and to what extent the court will attach weight to the judgment of the primary decision maker (be it legislature or executive), depends at each stage on the context, in particular the nature of the measure and of the respective rights or interests involved. The primary decision makers choices as to the aim to adopt and the measure to achieve it may be entitled to considerable respect. But at the fourth stage other interests may come into play, the intrinsic and comparative weight of which the court may be as well or even better placed to judge in the light of all the material put before it. The existence of a risk to other vulnerable individuals is a premise of the decisions of the European Court of Human Rights at the international level. Thus, in Pretty v United Kingdom, para 74, the Court said of s.2(1) of the Suicide Act 1961: Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. Further, at the United Kingdom domestic level, the existence of such a risk was also accepted by the House of Lords in R (Pretty) as an alternative ground of decision if article 8.1 was engaged. It is submitted on the present appeal that developments and further evidence available since the Pretty v United Kingdom and Purdy cases require the Supreme Court to reach a conclusion opposite to its considered view in R (Pretty) (which also formed the starting point for its decision in Purdy) that the blanket prohibition in s.2(1) was proportionate. As to this, first, I do not consider that either the reasoning on legal or other issues or the decision in Pretty v United Kingdom and the more recent Strasbourg cases of Haas, Koch and Gross or the Houses reasoning or decision in Purdy affect the view expressed on this point in R (Pretty). The experience acquired regarding the s.2(4) discretion does not mean that the principle needs reconsideration. Of 85 cases referred to the CPS between 1 April 2009 and 1 October 2013, 64 were not proceeded with and 11 were withdrawn. 9 are ongoing and only 1 has been successfully prosecuted. The Directors discretion is evidently effective to avoid prosecutions which would serve no useful purpose after the event, but these figures do not appear to me to bear on the appropriateness of the blanket prohibition or on risks that could develop without it. I would accept that it is in principle open to claimants in the position of the appellants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence, and, further, that this would not involve inviting the Supreme Court to depart precedentially from Purdy. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being re litigated in this way, although courts should no doubt discourage such re litigation in the absence of fresh and significantly different evidence. However, examination of the course of the present case raises in my view serious questions about its suitability for any such exercise. At no stage does this litigation appear to have been approached on the basis that the court should hear primary evidence about the issues. There has been nothing like the wide ranging examination of expert and statistical material concerning suicide and the psychological factors and risks bearing on its occurrence which appears to have informed the United States Supreme Courts judgments in Washington v Glucksberg. Much of the material put before the Supreme Court on the present appeal has been second hand, adduced in other litigation or by other inquiries. Thus Toulson LJ, when referring to the January 2012 report of the Commission on Assisted Dying chaired by Lord Falconer, said (para 24): We were asked to read the report and have done so. However, it is important to stress that it was not an officially appointed commission. Its report contains an interesting analysis of arguments and views, but it would not be right for the court to treat it as having some form of official or quasi official status. The report in fact records that some prominent individuals and organisations that are fundamentally opposed to any form of assisted dying being legally permitted in the UK refused to participate in giving evidence (p.39). Toulson LJ also records (para 25) that after judgment was given at first instance by Smith J in Carter v Canada [2012] BCSC 886, counsel for Mr Nicklinson applied for leave to introduce the evidence in that case into the present case, recognising that, if it were admitted, there would have to be a further hearing in order to enable the witnesses to be called and cross examined. Similarly, before the Court of Appeal counsel accepted that determination of the question whether there had been a disproportionate interference with article 8 rights would involve consideration of a vast array of detailed evidence, including sociological, philosophical and medical material, which would have to be conducted by the Divisional Court. Before the Supreme Court, on the other hand, the appellants primary case has become not to invite the Supreme Court to embark upon a close study of the evidence that is now available of the relative risks and advantages of relaxing the prohibitions on assisted suicide, but instead to submit that the Supreme Court can strike the necessary balance without such a forensic exercise because it has been conducted already by a number of expert bodies whose conclusions are remarkably similar and upon whose conclusions the Court can place weight. In the alternative, if the Court considers that it cannot carry out the balancing exercise without further exploration of the underlying evidential issues, they repeat their request that the case should be remitted to the High Court for that exercise to be conducted along the lines of that in Carter v Canada [2012] BCSC 886, with appropriate guidance as to how the balancing exercise is to be conducted. The appellants primary case before the Supreme Court amounts in substance to an invitation to short cut potentially sensitive and difficult issues of fact and expertise, by relying on secondary material. There can in my opinion be no question of doing that. Their secondary case (their primary case below) is that the case should in effect re commence from the beginning with directions for evidence to be called and examined on the relevant issues of fact. But the handing down of the first instance decision in Carter v Canada shortly before the Divisional Court hearing is not a justification for not applying at the outset for a trial of the relevant issues on the basis of evidence directly examined before the court. The main basis relied upon for departing from the view expressed in Pretty is the fresh evidence said to have been gained in the meantime. That comes, first, from those few states where assisted suicide is lawful (Switzerland, Oregon, Vermont and Montana) or where both euthanasia and assisted suicide are lawful (the Netherlands, Belgium and Luxembourg), and, second, from other sources, such as the Falconer Commission on Assisted Dying (January 2012), the Royal Society of Canada (RSC) Expert Panel on End of Life Decision Making (2011), the Quebec Dying with Dignity Select Committee Report (March 2012) and the examination of the issue by Smith J at first instance in Carter v Canada [2012] BCSC 886 (over ruled at [2013] BCCA 435 on the ground that the issue was covered by the prior authority of Rodriguez v British Columbia (Attorney General) [1993] 3 S.C.R. 519). As I have already noted, the Falconer Commission did not receive (though it would have liked to) the evidence of committed opponents of the idea of assisted suicide, and some of the other evidence is open to the comment that it was commissioned by or involved persons already on record as committed to a change in the law. In Carter v Canada, where both claimants suffered from intractable and progressive diseases, the RSC Report was also tendered without there being the opportunity to cross examine its makers. The Government of Canada criticised it as essentially argument on one side of the debate (and largely legal argument), rather than a balanced or comprehensive review of the issues, and noted that three of the authors were expert witnesses for the plaintiffs, while a fourth author had been assisting the plaintiffs with instructing expert witnesses. Canada also called another Fellow of the Royal Society of Canada, who said that, in his view, the RSC Report reads as though it was written with a pre ordained conclusion, commented on the rapidity with which the panel had proceeded, and noted that its membership lacked representation from the palliative care community, and included persons who had previously expressed views supportive of physician assisted dying. In the event, Smith J said this: [129] I have now reviewed the RSC Report and have concluded that it will be admitted in evidence, in the main for the fact that the expert panel made the recommendations that it did. I have not relied upon it as evidence on any contentious matters such as the efficacy of safeguards in jurisdictions that permit physician assisted dying. Its review of the legal landscape regarding end of life care in Canada is not evidence, but the equivalent of a law review article or a legal text. In Rodriguez every judge at every level had agreed that the purpose of protecting vulnerable persons from inducement to commit suicide was pressing and substantial, and it was also held that the prohibition on assisted suicide was rationally connected to that purpose. No challenge was made to either conclusion in Carter v Canada. The issue there was focused on whether the prohibition was the minimum step necessary and was proportionate in the pursuit of that purpose. Smith J said that considerable deference was due to Parliament on that issue, but that this did not relieve the court of its role in assessing such matters. Ultimately, she concluded: 1267. With respect to the absolute prohibitions alleged salutary effects in preventing wrongful deaths, or in preventing abuse of vulnerable people, my review of the evidence from Canada and elsewhere leaves me unconvinced that an absolute prohibition has that effect in comparison with a prohibition combined with stringently limited exceptions. On that basis, she concluded: the benefits of the impugned law are not worth the costs of the rights limitations they create (para 1285). It is in my view clear from the judgment at first instance in Carter v Canada and from even the superficial examination of the evidence which the appellants now in effect invite as their primary case (paragraph 175 above) that it would be impossible for this Court to arrive at any reliable conclusion about the validity of any risks involved in relaxing the absolute prohibition on assisting suicide, or (which is surely another side of the same coin) the nature or reliability of any safeguards which might accompany and make possible such a relaxation, without detailed examination of first hand evidence, accompanied by cross examination. This has not occurred in this case, but, in its absence, I do not see how one can accept the appellants submission that the circumstances have so changed that R (Pretty) v Director of Public Prosecutions should now no longer be followed. Whatever else may be said about the evidential position, it is not in my opinion sustainable to suggest that there is no evidence and to describe as ruminations a conclusion that permitting assisted suicide in the case of persons in Mr Nicklinsons and Mr Lambs position would pose a relevant risk to vulnerable people (compare paras 349 to 351 of Lord Kerrs opinion). There is a rational connection between the current prohibition in s.2(1) and its aim. As I have already mentioned, both R (Pretty) and Pretty v United Kingdom proceed on that basis. So too, the United States Supreme Court in Renquist CJs forceful majority judgment in Washington v Glucksberg regarded it as unquestionable that the State of Washingtons ban on assisted suicide was rationally related to legitimate government interests (p 728). I also note that Lord Joff himself, when moving the second reading of his Assisted Dying for the Terminally Ill Bill on 12 May 2006 (Hansard, col 1188) said: When I gave evidence to the Select Committee about the original Bill, I expressed my personal conviction, which was honestly held at the time, that I would welcome a widening of the scope of the legislation. I no longer hold that view. One of the advantages of the Select Committee process was the opportunity to see different regimes in operation, and to hear a wealth of evidence from those who have thought deeply about the issues and are intimately involved in them. At the end of the process, it is now my firm view that the extent of legislative change that I put before the House today . will have the most advantage and carry the least risk. I would not support further extension into the field of euthanasia, or support assisted dying for patients who are not terminally ill. Others, of course, may have different views, but after three years of legislative effort on the subject, I have no intention of pursuing this issue beyond the ambit of the present Bill. The Falconer Commission also concluded that it could only recommend a relaxation of s.2 of the Suicide Act in respect of the terminally ill, and Lord Falconers bill, like Lord Joffes bill was so confined (though the End of Life Assistance (Scotland) Bill introduced in Scotland in January 2010 and defeated by 18 votes to 16 in December 2010 covered persons (a) diagnosed as terminally ill and finding life intolerable or (b) permanently physically incapacitated to such an extent as not to be able to live independently and finding life intolerable). The Falconer Commission heard evidence about and accepted the risks of any greater extension. It said in its summary of its conclusions at p.27: The Commission accepts that there is a real risk that some individuals might come under pressure to request an assisted death if this option should become available, including direct pressures from family members or medical professionals, indirect pressures caused by societal discrimination or lack of availability of resources for care and support, and self imposed pressures that could result from the individuals having low self worth or feeling themselves to be a burden on others. Giving a specific example, the Falconer Commission recorded at p.201 the evidence of Professor Raymond Tallis representing Healthcare Professionals for Assisted Dying, who cautioned against any such extension, with the words: I think that there are genuine dangers in extending the scope of assisted dying to people who are not terminally ill, who are disabled. All those things that disability groups fear, I think that it would certainly play into those appropriate fears. The Falconer Commission also received evidence from many disabled people and does not consider that it would be acceptable to recommend that a non terminally ill person with significant physical impairments should be made eligible under any future legislation to request assistance in ending his or her life (p.27). Finally, the Falconer Commission reported (p.323): The Commission was unable to reach a consensus on the issue of whether a person who has had a catastrophically life changing event that has caused them to be profoundly incapacitated should be able to request an assisted death, and we consider that this lack of consensus reflects the mixed views of society on this issue. Bearing in mind the considerable concerns of many disabled people about such a provision, we have recommended that it would not be appropriate for such a provision to be included in future legislation. The most persuasive case that may be made on behalf of persons in the tragic positions of Mr Nicklinson or Mr Lamb is that they represent a distinct and relatively small group, within which it should be possible to identify in advance by a careful prior review (possibly involving the court as well as medical opinion) those capable of forming a free and informed decision to commit suicide and distinguish them from those who might be vulnerable; and that, on this basis, any risks associated with other groups, or with any proposal that might be made to allow assisted suicide within other groups, can and should be disregarded. On such a basis, it may be argued that the current blanket prohibition is unnecessary or disproportionate. The present position is that some persons (whether or not capable of committing suicide unaided) are assisted to do so (unlawfully though it be) without any such prior review. Further, decisions such as Bland to which I have referred in para 165 above and the further cases referred to by Lord Neuberger in paras 21 to 26 and 98 show that the law and courts are already deeply engaged in issues of life and death. Lord Neuberger also shows in paras 92 to 97 that assisting a suicide could be seen not only as promoting the autonomy of the person committing suicide, but also as involving a less drastic interference in life than some interferences already authorised by law, and conceivably also as enabling some people to postpone suicide. A system permitting assisted suicide in limited circumstances such as the present after careful prior review could on its face have some positive benefits when compared with the current blanket prohibition, coupled with the de facto occurrence of assisted suicides in relation to which the Director of Public Prosecution has to undertake the more difficult task after the event of deciding whether the suicide assisted was the result of a voluntary, clear, settled and informed decision: see the Directors guideline number 1 tending to weigh against, and guideline number 4 weighing in favour of, prosecution. The case which I have outlined in the previous paragraph in favour of a relaxing of the prohibition on assisted suicide is not however one on which even the Falconer Commission was able to reach agreement, and it would at the very least require detailed expert investigation and evidence before its premises could be accepted. This is so, quite apart from any argument that it would be difficult if not impossible to determine what should be the ambit of the persons who should be entitled to take advantage of any relaxation of the current prohibition difficult in particular to draw the line between the sort of unbearable suffering which persons in the position of Mr Nicklinson and Mr Lamb undergo and the suffering which others not subject to their physical disability may subjectively feel (which would in turn raise the question what is meant by unbearable suffering, touched on by the Falconer Commission at pp.202 203.) Toulson LJ (at paras 85 to 86) observed correctly that the courts could not themselves fashion any scheme which would define circumstances in which or safeguards subject to which assisted suicide might be appropriate. By the same token, it is impossible, at least on present material, to say with confidence in advance that any such scheme could satisfactorily and appropriately be fashioned. This militates strongly against the courts intervening in this area, at least at this stage, to declare s.2 incompatible at the domestic level, when it is compatible at the international level. In saying this, I note that the Joint Committee on Human Rights in its Seventh Report of Session 2002 2003 (HL Paper 74, HC 547) and Twelfth Report of Session 2003 2004 (HL Paper 93, HC 603) was in each case generally content with the safeguards proposed in respect of assisted suicide of the terminally ill in Lord Joffs bill. But the terminally ill represent a different group which may call for different safeguards from those which the present would require; the current focus of legislative proposals on the terminally ill may also be influenced by the thought that, since their life expectancy is short, the consequences of any risks materialising of the sort identified by the Falconer Commission at p 27 (para 185 above) may be seen as less serious. Moreover, any assessment of evidence about risks and potential safeguards must inevitably raise questions regarding the degree of residual risk which is acceptable in this present context. In Carter v Canada (paras 1196 1199) the Government of Canadas argument, that the legislation was justified because its purpose was to eliminate all risk, was, not surprisingly, rejected. But any relaxation of the present blanket prohibition would require value judgments of difficulty and delicacy in particular, how much risk would attach to and be acceptable in consequence of a relaxation coupled with the introduction of safeguards, and how such risk should be measured against the benefits to persons such as Mr Nicklinson and Mr Lamb, in relation to whom it may be said with certainty that they formed their wish to commit suicide with clear and independent minds, so that there was and is no such risk. The issue at this point is primarily how to assess and balance the factors bearing on acceptability and proportionality which arise for consideration at the third and/or fourth stages of the exercise identified by Lord Reed in Bank Mellat, para 74. As in the different context of Sinclair Collis, so too here I think that the legislators assessment of the value of the evidence and of the choices to be made in its light is entitled to considerable weight, even if the evidence appears to a court weaker and less conclusive than it might be: see e.g. Sinclair Collis, paras 161, per Arden LJ, and 236 239 and 255, per Lord Neuberger MR. In these circumstances, the position has not been shown by any convincing evidence to have changed materially since R (Pretty) v Director of Public Prosecutions, and I would refuse to make a declaration of incompatibility. In the light of the way in which it has been presented and pursued, remission to the Divisional Court would not be appropriate. To remit would in reality amount to ordering the case to begin over again with a fresh first instance investigation involving a full examination of expert evidence. I see no basis for that exceptional course. I am also influenced in the view that this is not an appropriate time to contemplate such an investigation by, firstly, the very frequent consideration that Parliament has given to the subject over recent years (see Lord Neubergers judgment, para 51) and by, secondly, the knowledge that Parliament currently has before it the Assisted Dying Bill and the hope that this may also give Parliament an opportunity to consider the plight of individuals in the position of Mr Nicklinson and Mr Lamb. Parliament has to date taken a clear stance, but this will give Parliament the opportunity to confirm, alter or develop its position. I would, in particular, associate myself at this point with Lord Neubergers conclusions at paras 110 to 117 of his judgment. While I would, like him, not rule out the future possibility of a further application, I would, as matters presently stand, adapt to the present context a thought which Renquist CJ expressed in a slightly different context in Washington v Glucksberg, p 735: that there is currently an earnest and profound debate about the morality, legality, and practicality of . assisted suicide and [o]ur holding permits this debate to continue, as it should in a democratic society. Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. However, (and as is implicit in paras 164 et seq above) this does not mean that I agree with Lord Sumptions view that it would be unconstitutional for the courts to consider in the present context whether Parliaments ultimate decision meets the requirements of the Convention rights scheduled to the Human Rights Act 1998, or that, in considering this, the courts role is limited to assessing the rationality of Parliaments decision, as I understand that paras 230, 233 and 234 of Lord Sumptions judgment may suggest. Ultimately, Parliament has itself assigned to the courts a constitutional role in balancing the relevant interests, public and private. Lord Sumption accepts that, in performing this role, courts may up to a point be required to confront the moral consequences of their decisions (para 233). But, although judges must work within a framework of legal principle, reasoning and precedent, very little, if any, judicial decision making, especially at an appellate level, is or ought to be separated from a consideration of what is just or fair, and the balancing of interests required under the Human Rights Convention merely underlines this. In circumstances such as the present, it may be incumbent on a court to weigh social risks to the wider public and the moral convictions of a body of members of the public together with values of human autonomy and of human dignity in life and death advocated by other members, and in doing so it will attach great significance to the judgment of the democratically informed legislature. But Lord Sumptions view that that legislative judgment must, in the present social and moral context, necessarily be determinative, reminds me of a submission raised by the Attorney General and rejected by the House of Lords in a political context in A v Secretary of State for the Home Department [2005] 2 AC 68, paras 37 42, where Lord Bingham said (para 42): I do not in particular accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true, as pointed out in para 29 above, that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic state, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required courts, so far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it The courts are charged by Parliament with delineating the boundaries of a rights based democracy (Judicial Deference: servility, civility or institutional capacity? [2003] PL 592, 597). The appeal and cross appeal in Martins case. In Purdy the House held the Director was under a duty to clarify his position as to the factors which he regarded as relevant for and against prosecution in such a case and was required to promulgate an offence specific policy identifying the facts and circumstances which he would take into account in deciding whether a prosecution should be brought. The criticism made of the current 2010 policy is that factor (14) recited as favouring prosecution (viz, that the suspect was acting in his or her capacity as a healthcare professional and the victim was in his or her care) leaves unclear the Directors policy in a case where such a professional, without previous influence or authority over the person proposing to commit suicide, renders assistance to that end in the period immediately before the suicide, motivated by compassion. In the Court of Appeal, Lord Judge CJ, in an interpretation which the Director expressly endorsed before the Supreme Court, explained (para 185) that factor (14) was not intended to embrace healthcare professionals brought in from outside, without previous influence or authority over the victim, or his family, for the simply purpose of assisting the suicide after the victim has reached his or her own settled decision to end life. I agree with both Lord Neuberger and Lord Sumption that it is not clear that factor (14) has this significance. But I would not order the Director to clarify it in the sense explained by the Director. As Lord Sumption observes, it is open to question whether the sense confirmed by the Director before the Supreme Court would on consideration prove to be consistent with other aspects of the Directors policy, particularly those arising from factors (6), (12), (13) and (16) set out as favouring prosecution. I agree with Lord Neuberger and Lord Sumption that there is nothing on the face of the policy as it presently stands which is open to objection, and that the only appropriate course, in the light of the discussion and submissions before this Court, is that the Director should be left to consider the position and either confirm or reformulate her policy, as she may then decide. I have considered Lord Sumptions summary of the current legal position in his para 255. The second sentence of para (1) of that summary may be open to different interpretations, and I have stated my own approach to s.2(1) of the Suicide Act in this judgment. In all other respects, I find useful and agree with Lord Sumptions summary. I would therefore allow the Directors appeal and dismiss Martins cross appeal. I would leave her to review her published policy in the light of the judgments given on this appeal, and to confirm or reformulate it as she may or may not then decide to be appropriate. LORD WILSON At the end of the six months in which all the members of this court have deliberated upon these appeals with an intensity unique in my experience, I find myself in agreement with the judgment of Lord Neuberger. I regard his crucial conclusions on the first appeal as the following: (a) The evidence before the court is not such as to enable it to declare that section 2(1) of the 1961 Act either was incompatible with the rights of Mr Nicklinson or is incompatible with the rights of Mr Lamb (para 119). (b) For the evidence does not enable the court to be satisfied either that there is a feasible and robust system whereby those in their position can be assisted to commit suicide or that the reasonable concerns of the Secretary of State, particularly to protect the weak and vulnerable, can be sufficiently met so as to render the absolute ban in the subsection disproportionate (para 120). (c) Even were the evidence such as to have enabled the court to make it, a declaration of incompatibility would at this stage have been inappropriate (para 115). (d) It would have been inappropriate because, even prior to the making of any declaration, Parliament should have the opportunity to consider whether, and if so how, to amend the subsection to permit assistance to commit suicide to be given to those in the position of Mr Nicklinson and Mr Lamb (para 116). (e) In particular because the Assisted Dying Bill is presently before it, it would be reasonable to expect Parliament in the near future to enlarge its consideration so as to encompass the impact of the subsection on those in their position (para 118). (f) Were Parliament not satisfactorily to address that issue, there is a real prospect that a further, and successful, application for a declaration of incompatibility might be made (para 118). (g) The risks to the weak and vulnerable might well be eliminated, or reduced to an acceptable level, were Parliament to provide that assistance might be given to those in their position only after a judge of the High Court had been satisfied that their wish to commit suicide was voluntary, clear, settled and informed (para 123). Lady Hale and Lord Kerr put forward a powerful case for making a declaration of incompatibility even at this stage. But two principal objections are levelled against it. The first objection is founded upon the sanctity (or, for those for whom that word has no meaning, the supreme value) of life which, for obvious reasons, is hard wired into the minds of every living person. It lies at the heart of the common law and of international human rights and it is also an ethical principle of the first magnitude. As Hoffmann LJ suggested in his classic judgment in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789 at 826, a law will forfeit necessary support if it pays no attention to the ethical dimension of its decisions. In para 209 below Lord Sumption quotes Hoffmann LJs articulation of that principle but it is worth remembering that Hoffmann LJ then proceeded to identify two other ethical principles, namely those of individual autonomy and of respect for human dignity, which can run the other way. In the Pretty case, at para 65, the ECtHR was later to describe those principles as of the very essence of the ECHR. It was in the light (among other things) of the force of those two principles that in the Bland case the House of Lords ruled that it was lawful in certain circumstances for a doctor not to continue to provide life sustaining treatment to a person in a persistent vegetative state but relevantly to the practical resolution of the issue raised by the present appeals that prior authorisation of the non continuation of the treatment should, as a matter of good practice, be obtained in the Family Division of the High Court. In making the latter recommendation the House was reflecting its conclusion In re F (Mental Patient: Sterilisation) [1990] 2 AC 1, at 56 and 79, reached in the light of a review of practice in the U.S. and Australia, that an operation of sterilisation should not be performed on an incapable adult without prior judicial authorisation. I agree with the observation of Lord Neuberger at para 94 that, in sanctioning a course leading to the death of a person about which he was unable to have a voice, the decision in the Bland case was arguably more extreme than any step which might be taken towards enabling a person of full capacity to exercise what must, at any rate now, in the light of the effect given to article 8 of the ECHR in the Haas case at para 51, cited at para 29 above, be regarded as a positive legal right to commit suicide. Lord Sumption suggests in para 212 213 below that it remains morally wrong and contrary to public policy for a person to commit suicide. Blackstone, in his Commentaries on the Laws of England, Book 4, Chapter 14, wrote that suicide was also a spiritual offence in evading the prerogative of the Almighty, and rushing into his immediate presence uncalled for. If expressed in modern religious terms, that view would still command substantial support and a moral argument against committing suicide could convincingly be cast in entirely non religious terms. Whether, however, it can be elevated into an overall conclusion about moral wrong and public policy is much more difficult. The second objection relates to the so called slippery slope. In respectful disagreement with Lord Kerr at para 354 below, I consider that, unless the court can be satisfied that any exception to the subsection can be operated in such a way as to generate an acceptably small risk that assistance will be afforded to those vulnerable to pressure to seek to commit suicide, it cannot conclude that the absolute prohibition in the subsection is disproportionate to its legitimate aim. In this respect the court may already be confident; but it cannot be satisfied. In an area in which the community would expect its unelected judiciary to tread with the utmost caution, it has to be said that, in appeals which the Court of Appeal understood to be presented to it on the basis that Mr Lamb could not commit, and that the late Mr Nicklinson could not have committed, suicide even with assistance, with the result that the issue which it addressed was their alleged right to euthanasia, the evidence and argument available to this court fall short of enabling it to be satisfied of what, like Lord Neuberger, I regard as a pre requisite of its making a declaration of incompatibility. Were Parliament for whatever reason, to fail satisfactorily to address the issue whether to amend the subsection to permit assistance to be given to persons in the situation of Mr Nicklinson and Mr Lamb, the issue of a fresh claim for a declaration is to be anticipated. It would no doubt be issued, as was that of Mr Nicklinson, in the Family Division of the High Court. The Crown would be entitled pursuant to section 5(1) of the 1998 Act to notice of the claim and I expect that the Attorney General would thereupon see fit to intervene pursuant to section 5(2). In that way the court would, I hope, receive the focussed evidence and submissions which this court has lacked. While the conclusion of the proceedings can in no way be prejudged, there is a real prospect of their success. Two features of a declaration are worth noting. The first is that it is indeed legitimate for a declaration to be made even though the provision only sometimes operates incompatibly with human rights. Thus in the Bellinger case, cited by Lord Neuberger at para 114 above, the former provision in section 11(c) of the Matrimonial Causes Act 1973, namely that a marriage shall be void if the parties are not respectively male and female, was declared incompatible even though it infringed the rights under article 8 only of those who had undergone gender reassignment and wished to marry persons of their own genetic sex. The concomitant is, however, that, in making a declaration, it behoves the court precisely to identify in the circumstances of the successful applicant the factors which precipitate the provisions infringement of his human rights. In addressing its task of fashioning a response to the declaration, Parliament deserves no less. The second, linked, feature of a declaration is that it affords to the courts of the U.K., no doubt uniquely, an opportunity to collaborate to some extent with Parliament in the amendment of the statutory provision which is discovered to have overridden human rights. I do not regard a degree of collaboration as objectionable or, in particular, as compromising judicial independence. But a court will be of maximum assistance to Parliament in this regard if it not only identifies the factors which precipitate the infringement but articulates options for its elimination. In this latter regard I wish expressly to indorse Lord Neubergers suggestion at para 123 that, in formulating an exception to the subsection, Parliament might adopt the procedure approved in the F and Bland cases and require that a High Court judge first be satisfied that a persons wish to commit suicide was (to use words which Parliament may feel able to improve) voluntary, clear, settled and informed. I am unaware of any situation in which the courts have acknowledged an inability to distinguish between the expression of an intention which genuinely reflects the speakers wish and one which does not do so. The ways in which the intentions have been expressed; the consistency or otherwise of its expression; the explanation proffered for it; and, of course, the quality of the speakers life; all these would inform the courts inquiry. A court might wish to hear evidence from the claimant himself, directly or indirectly; from members of his family; from his friends; from his medical practitioner and other professionals involved in his care; and no doubt also from a doctor and/or psychiatrist and/or other medical expert introduced into the case in order to report to the court. As a former judge of the Family Division, but with hesitation apt to the absence of submissions in this regard, I identify the following factors which the court might wish to investigate before deciding whether it can be so satisfied: (a) the claimants capacity to reach a voluntary, clear, settled and informed decision to commit suicide and the existence of any factor which, notwithstanding the requisite capacity, might disable him from reaching such a decision; (b) the nature of his illness, physical incapacity or other physical condition (the condition); (c) the aetiology of the condition; (d) its history and the nature of the treatments administered for it; (e) the nature and extent of the care and support with which the condition requires that he be provided; (f) the nature and extent of the pain, of the suffering both physical and psychological and of the disability, which the condition causes to him and the extent to which they can be alleviated; (g) his ability to continue to tolerate them and the reasonableness or otherwise of expecting him to continue to do so; (h) the prognosis for any change in the condition; (i) his expectation of life; (j) his reasons for wishing to commit suicide; (k) the length of time for which he has wished to do so and the consistency of his wish to do so; (l) the nature and extent of his discussions with others, and of the professional advice given to him, about his proposed suicide and all other options for his future; (m) the attitude, express or implied, to his proposed suicide on the part of anyone likely to benefit, whether financially or otherwise, from his death; (n) the proposed mechanism of suicide and his proposed role in achieving it; (o) the nature of the assistance proposed to be given to him in achieving it; (p) the identity of the person who proposes to give the assistance and the relationship of such person to him; (q) the motive of such person in proposing to give the assistance; and (r) any financial recompense or other benefit likely to be received by such person in return for, or in consequence of, the proposed assistance. Lord Neuberger comments at para 118 that it may be somewhat premature for me to identify the above factors. But, in that a majority of the court expects that even now, prior to the making of any declaration, Parliament will at least consider reform of the law, I put forward the factors with a view only to enabling Parliament to appreciate the scrupulous nature of any factual inquiry which it might see fit to entrust to the judges of the Division. On balance I concur in upholding the appeal of the Director of Public Prosecutions in the proceedings brought by Martin and in dismissing his cross appeal. By issue of the current policy, the director has done all that the House of Lords required in the Purdy case, cited at para 39 above. There is certainly a case for concluding that she might reasonably do more to clarify, in one way or another, the size of the risk that she would consent to the prosecution of health care professionals who, out of a sense of professional concern, perhaps even of perceived obligation and in any event of sympathy, propose to relieve their patients of profound and permanent suffering by assisting them to commit suicide. But big questions are raised, particularly in the judgment of Lord Hughes below, whether the fact that she might reasonably do more can properly be translated by the principle of legality in article 8 into a legal obligation. A more satisfactory outcome for the health care professionals than more detailed exposition of the directors policy would be a courts conclusion that their proposed assistance falls within a statutory exception to the prohibition in the subsection. By the judgments of five members of this court in the other appeals, the prospect of some such exception has come at least somewhat closer and, were it to materialise, it would represent a resolution to the unenviable difficulties currently confronting them which would be sounder in law as well as more satisfactory to themselves. LORD SUMPTION Introduction: assisted suicide English judges tend to avoid addressing the moral foundations of law. It is not their function to lay down principles of morality, and the attempt leads to large generalisations which are commonly thought to be unhelpful. In some cases, however, it is unavoidable. This is one of them. Suicide is not a novel issue. The moral and legal objections to it have been debated for centuries. There is a case for saying that the only proper concern of the law is to ensure that a person who commits suicide or tries to do so is in a position to make an informed and rational choice. It is the same case today as it was two millennia ago when Seneca described suicide as the last defence of a free man against intolerable suffering: It makes a great deal of difference whether a man is lengthening his life or only his death. If the body is useless for service, then why should he not free the struggling soul? Perhaps he should even do it a little before he needs to, lest when the time comes he may be unable to perform the act. Since the danger of living in wretchedness is so much greater than the danger of dying soon, he is a fool who refuses to sacrifice a little time to win so much. Few men have lasted through extreme old age to death without impairment, and many have lain inert and useless. How much more cruel, then, do you suppose it really is to have lost a portion of your life, than to have lost your right to end it?: Ep. LVIII. This is the classic statement of the principle of autonomy. But it expresses only one side of a complex moral dilemma. There are some moral values, of which the state is the proper guardian, with no rational or utilitarian justification, but which are nevertheless accepted because they are fundamental to our humanity and to our respect for our own kind. The principle of autonomy is one of these values. Its basis is the moral instinct, which is broadly accepted by English law subject to well defined exceptions, that individuals are entitled to be the masters of their own fate. Others are bound to respect their autonomy because it is an essential part of their dignity as human beings. There is, however, another fundamental moral value, namely the sanctity of life. A reverence for human life for its own sake is probably the most fundamental of all human social values. It is common to all civilised societies, all developed legal systems and all internationally recognised statements of human rights. I cannot put the point better than Hoffmann LJ did in the Court of Appeal in Airedale NHS Trust v Bland [1993] AC 789, 826C E: we have a strong feeling that there is an intrinsic value in human life, irrespective of whether it is valuable to the person concerned or indeed to anyone else. Those who adhere to religious faiths which believe in the sanctity of all God's creation and in particular that human life was created in the image of God himself will have no difficulty with the concept of the intrinsic value of human life. But even those without any religious belief think in the same way. In a case like this we should not try to analyse the rationality of such feelings. What matters is that, in one form or another, they form part of almost everyone's intuitive values. No law which ignores them can possibly hope to be acceptable. Leaving aside purely regulatory offences, the criminal law necessarily responds to moral imperatives which command general acceptance among the population at large. The problem in this case is that on the issue of suicide, our most fundamental moral instincts conflict. Our belief in the sanctity of life is not consistent with our belief in the dignity and autonomy of the individual in a case where the individual, being of sound mind and full capacity, has taken a rational decision to kill himself. These are ancient dilemmas. Ours is not the first generation to confront them. But they are more acute and controversial today, for two main reasons, which are related. One is that advances of medical science have made it possible to preserve life well beyond the point where it is worth living. The other is that it is more difficult in modern conditions for intensely personal end of life choices to be made informally, within the family and with the support of a trusted medical practitioner. The medical profession, for wholly understandable reasons, is less willing in a transparent, highly regulated and litigious world to take the responsibility for cutting life short or helping someone else to do so, without an assurance of immunity which in the present state of the law is impossible to give. The answer which English law gives to these questions is entirely clear. Suicide was a common law offence in England until 1961. It was treated as a form of murder. A particular feature of the law of murder, which makes it unusual among offences against the person, is that the consent of the victim is not a defence to a charge of deliberate killing. Suicide, or self murder, was therefore an offence notwithstanding its voluntary character. It followed that an unsuccessful attempt at suicide was criminal, and so was the act of an accessory. The Suicide Act 1961 abolished the rule of law which made suicide an offence, but preserved the criminal liability of accessories. As amended by the Coroners and Justice Act 2009, section 2(1) created a statutory offence committed by any person who does an act which is (a) capable of encouraging or assisting the suicide or attempted suicide of another person, and (b) intended to encourage or assist suicide or an attempt at suicide. The reason for decriminalising suicide was not that suicide had become morally acceptable. It was that imposing criminal sanctions was inhumane and ineffective. It was inhumane because the old law could be enforced only against those who had tried to kill themselves but failed. The idea of taking these desperate and unhappy individuals from their hospital beds and punishing them for the attempt was as morally repugnant as the act of suicide itself. It was ineffective because assuming that they truly intended to die, criminal sanctions were incapable by definition of deterring them. For these reasons, attempted suicide had probably never been an offence in Scotland and by 1961 had long ceased to be one in most European countries. Even in England, prosecution had become rare by the time that the offence was abolished. These points are discussed in Glanville Williams, The Sanctity of Life and the Criminal Law (1958), 248 249. However, the continuing legal objection to suicide was reflected in the fact that very many countries in which suicide was lawful nevertheless imposed criminal liability on those who advised or assisted it. Research summarised in the judgment of the European Court of Human Rights in Koch v Germany (2013) 56 EHRR 6 at para 26 suggests that of the 42 members states of the Council of Europe for which information was available, 36 imposed criminal liability on any form of assistance to suicide and another two, while not imposing criminal liability on direct assistance in suicide, prohibited the prescribing of drugs in order to facilitate it. In Haas v Switzerland (2011) 53 EHRR 33, at para 55 the Court concluded that the vast majority of member states seem to attach more weight to the protection of the individuals life than to his or her right to terminate it. In R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, Lord Bingham said at para 35 that, while the 1961 Act abrogated the rule of law whereby it was a crime for a person to commit (or attempt to commit) suicide, it conferred no right on anyone to do so. Lord Hope, in the same vein, observed at para 106 that the Act did not create a right to commit suicide. It followed, as both of them pointed out, from the continuing prohibition of advice and assistance under section 2 of the Act. By this they were plainly not seeking to suggest that suicide remained a legal wrong. The point was that it belonged to the familiar category of acts lawful in themselves but contrary to public policy. This is a categorisation which primarily affects the legal responsibilities of third parties. In particular, it has consequences for the criminal liability of secondary parties or for the enforceability of associated contractual and other legal obligations. The different legal treatment of the person who wishes to commit suicide and the person who is willing to assist him is not arbitrary. It responds to the same moral instincts which give rise to most dilemmas in this field. Recommendation 1418 (1999) of the Council of Europe recorded at paragraph 9c the Councils view that a terminally ill or dying persons wish to die never constitutes any legal claim to die at the hand of another person, and that a terminally ill or dying persons wish to die cannot of itself constitute a legal justification to carry out actions intended to bring about death. This is because, as Lord Hobhouse observed in his speech in Pretty at para 111, the intervention of another party puts the conduct into a different category from conduct which has involved the deceased alone. I think that Hoffmann LJ came close to the heart of the matter in Airedale NHS Trust, when he pointed out (at page 831) that this was, connected with our view that the sanctity of life entails its inviolability by an outsider. Subject to exceptions like self defence, human life is inviolate even if the person in question has consented to its violation. That is why although suicide is not a crime, assisting someone to commit suicide is. Why should this be so? There are at least three reasons why the moral position of the suicide (whom I will call the patient from this point on, although the term may not always be apt) is different from that of a third party who helps him to kill himself. In the first place, the moral quality of their decisions is different. A desire to die can only result from an overpowering negative impulse arising from perceived incapacity, failure or pain. This is an extreme state which is unlikely to be shared by the third party who assists. Even if the assister is moved by pure compassion, he inevitably has a greater degree of detachment. This must in particular be true of professionals such as doctors, from whom a high degree of professional objectivity is expected, even in situations of great emotional difficulty. Secondly, whatever right a person may have to put an end to his own life depends on the principle of autonomy, which leaves the disposal of his life to him. The right of a third party to assist cannot depend on that principle. It is essentially based on the mitigating effect of his compassionate motive. Yet not everyone seeking to end his life is equally deserving of compassion. The choice made by a person to kill himself is morally the same whether he does it because he is old or terminally ill, or because he is young and healthy but fed up with life. In both cases his desire to commit suicide may be equally justified by his autonomy. But the choice made by a third party who intervenes to help him is very different. The element of compassion is much stronger in the former category than in the latter. Third, the involvement of a third party raises the problem of the effect on other vulnerable people, which the unaided suicide does not. If it is lawful for a third party to encourage or assist the suicide of a person who has chosen death with a clear head, free of external pressures, the potential arises for him to encourage or assist others who are in a less good position to decide. Again, this is a more significant factor in the case of professionals, such as doctors or carers, who encounter these dilemmas regularly, than it is in the case of, say, family members confronting them for what will probably be the only time in their lives. The Nicklinson and Lamb appeal: Is section 2 of the Suicide Act in principle compatible with the Human Rights Convention? The sole directly relevant authority is Pretty v United Kingdom (2002) 35 EHRR 1. Mrs Pretty suffered from motor neurone disease. She wanted to be able to count on the assistance of her husband to commit suicide when her suffering became intolerable to her and she was no longer capable of reaching the Dignitas clinic in Switzerland unaided. The European Court of Human Rights held that section 2 of the Suicide Act, by interfering with Mrs Prettys right to end her life, engaged article 8.1 of the Convention. In its subsequent decision in Haas v Switzerland (2011) 53 EHRR 33, at paras 50 51, the Court held that the effect of this decision was that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. Article 8.1 was engaged because respect for Mrs. Prettys private life entailed accepting her autonomy in making her own end of life choices. This is not exactly a right to commit suicide. It is an immunity from interference by the state with the settled decision of a person of full legal and mental capacity to kill himself, unless the interference can be justified under article 8.2. That being so, the question arose whether the prohibition of all acts of assistance by section 2 of the Suicide Act was justifiable under article 8.2. In that context, the question could not be addressed simply on the footing that her autonomy entitled her to choose death. She needed the assistance of a third party whose own position had to be considered. Of the three considerations that I have summarised above (paragraph 215), it was the third which the Court regarded as decisive. It was held that section 2 of the Suicide Act was justifiable by considerations of public health and in particular by the implications for vulnerable people. The relevant considerations were summarised as follows at para 74: [T]he Court finds. that States are entitled to regulate through the operation of the general criminal law activities which are detrimental to the life and safety of other individuals. The more serious the harm involved the more heavily will weigh in the balance considerations of public health and safety against the countervailing principle of personal autonomy. The law in issue in this case, section 2 of the 1961 Act, was designed to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life. Doubtless the condition of terminally ill individuals will vary. But many will be vulnerable and it is the vulnerability of the class which provides the rationale for the law in question. It is primarily for States to assess the risk and the likely incidence of abuse if the general prohibition on assisted suicides were relaxed or if exceptions were to be created. Clear risks of abuse do exist, notwithstanding arguments as to the possibility of safeguards and protective procedures. After a brief discussion of the question whether this analysis would create a dangerous precedent, the Court concluded, at para 76: The Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate. In my opinion the passages which I have quoted express the ratio of this decision. The question whether to impose a blanket ban on assisted suicide lay within the margin of appreciation of the United Kingdom. This was because it was for each state to assess the risk and likely incidence of abuse if the general prohibition on assisted suicide were relaxed or if exceptions were to be created. Section 2 was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. It is clear from the way in which the Court treated the separate complaint of a contravention of article 14 that it considered that the United Kingdom had taken that view and been entitled to do so. At para 89, the Court wrote: Even if the principle derived from the Thlimmenos case is applied to the applicants situation, however, there is, in the Courts view, objective and reasonable justification for not distinguishing in law between those who are and those who are not physically capable of committing suicide. Under article 8 of the Convention, the Court has found that there are sound reasons for not introducing into the law exceptions to cater for those who are deemed not to be vulnerable. Similar cogent reasons exist under article 14 for not seeking to distinguish between those who are able and those who are unable to commit suicide unaided. The borderline between the two categories will often be a very fine one and to seek to build into the law an exemption for those judged to be incapable of committing suicide would seriously undermine the protection of life which the 1961 Act was intended to safeguard and greatly increase the risk of abuse. The same conclusion had been reached for substantially the same reasons by the Supreme Court of Canada, dealing with a very similar issue in Rodriguez v Attorney General of Canada [1993] 3 SCR 519, which the Strasbourg Court regarded as persuasive in Pretty: see para 74. Section 7 of the Canadian Charter of Rights and Freedoms provided that every person had the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The Court held that the Canadian prohibition of assisted suicide did not violate the Charter. Writing for the majority, Sopinka J held that section 7 was engaged but that it was justified because of the difficulty of protecting the life of others without a blanket ban: Given the concerns about abuse that have been expressed and the great difficulty in creating appropriate safeguards to prevent these, it cannot be said that the blanket prohibition on assisted suicide is arbitrary or unfair, or that it is not reflective of fundamental values at play in our society. I am thus unable to find that any principle of fundamental justice is violated by section 241(b). (p 608) As I have sought to demonstrate in my discussion of s.7, this protection is grounded on a substantial consensus among western countries, medical organizations and our own Law Reform Commission that in order to effectively protect life and those who are vulnerable in society, a prohibition without exception on the giving of assistance to commit suicide is the best approach. Attempts to fine tune this approach by creating exceptions have been unsatisfactory and have tended to support the theory of the slippery slope. The formulation of safeguards to prevent excesses has been unsatisfactory and has failed to allay fears that a relaxation of the clear standard set by the law will undermine the protection of life and will lead to abuses of the exception. (p 613) The relevance of prosecutorial discretion In Pretty, the European Court of Human Rights considered at para 76 the discretionary elements of English criminal proceedings which in practice mitigated the blanket character of the ban on assisted suicide: 76 . The Government has stated that flexibility is provided for in individual cases by the fact that consent is needed from the DPP to bring a prosecution and by the fact that a maximum sentence is provided, allowing lesser penalties to be imposed as appropriate. The Select Committee report indicated that between 1981 and 1992 in 22 cases in which mercy killing was an issue, there was only one conviction for murder, with a sentence for life imprisonment, while lesser offences were substituted in the others and most resulted in probation or suspended sentences. It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence. 77 Nor in the circumstances is there anything disproportionate in the refusal of the DPP to give an advance undertaking that no prosecution would be brought against the applicants husband. Strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. In any event, the seriousness of the act for which immunity was claimed was such that the decision of the DPP to refuse the undertaking sought in the present case cannot be said to be arbitrary or unreasonable. 78 The Court concludes that the interference in this case may be justified as necessary in a democratic society for the protection of the rights of others and, accordingly, that there has been no violation of article 8 of the Convention. I do not read these observations as making the conformity of section 2 with article 8 dependent on the existence of a prosecutorial discretion or the way that it is exercised. The conformity of section 2 with article 8 depended, as I have pointed out, on whether the states assessment of the risk and likely incidence of abuse was such as to justify a blanket ban. This is the sole factor identified at paras 74 and 89 of the Courts judgment. The existence and limits of the prosecutorial discretion are put forward at para 76 (i) as matters which a member state may properly take into account in deciding whether a blanket ban on assisted suicide is proportionate, and (ii) as a reason for rejecting Mrs. Prettys complaint that the Director of Public Prosecutions had refused to give her an advance undertaking not to prosecute her husband if he helped her to kill herself. Applying the margin of appreciation It follows that it is for the United Kingdom to decide whether in the light of its own values and conditions section 2 of the Suicide Act is justifiable under article 8.2 of the Convention in the interest of the protection of health. That gives rise to two issues of principle. One is the nature of the decision, and in particular the extent to which the evidence requires the conformity of section 2 with article 8 to be reassessed. The other is whether in a case with the particular features of this one such a reassessment is a proper constitutional function of the Courts as opposed to Parliament. The role of evidence The evidence before us of the risk of abuse if the rule against assisted suicide were to be relaxed or qualified consists substantially of material from two sources: the report of Lord Falconers Commission on Assisted Dying, and the decision of Lynn Smith J in the Supreme Court of British Columbia on a very similar issue in Carter v Canada [2012] BCSC 886. We were invited to conclude on the basis of this material that the views of Parliament in 1961 and of the Strasbourg Court at the time of Pretty had now been overtaken by the more recent knowledge. Lord Mance has reviewed this material and summarised the problems associated with it in terms with which I agree. There are obvious difficulties about reaching a concluded view on untested, incomplete and second hand material of this kind. The authority of these sources is also diminished by other considerations. The Commissions report, although measured and, as far as one can tell, objective, was inspired by a campaign to change the law. Committed opponents of assisted suicide declined to give evidence before it. Lynn Smith Js review of the extensive evidence before her excluded a substantial body of apparently relevant material as inadmissible and was ultimately set aside by the Court of Appeal on the ground that it was inconsistent with the law laid down by the Supreme Court of Canada in Rodriguez. However, I would in any event reject the submission that the issue has been overtaken by more recent knowledge because I think that this material even if taken at face value is inconclusive both factually and legally. It is inconclusive factually, for reasons which emerge very clearly from the report of the Commission on Assisted Dying. The only jurisdictions with experience of legalised assisted suicide are certain states of the United States, of which the most important is Oregon, and the Netherlands, Belgium and Switzerland. The data from these sources is contested and acknowledged to be of variable robustness. It is also sensitive to underlying conditions such as standards of education, the existence of long term relationships between GPs and patients and other social and cultural factors, which are not necessarily replicated in the United Kingdom. Indeed, there may well be significant regional and sociological variations within the United Kingdom. It is plain from the expert evidence reviewed by the Commission that there is a diversity of opinion about the degree of risk involved in relaxing or qualifying the ban on assisted suicide, but not about its existence. The risk exists and no one appears to regard it as insignificant. There is a reputable body of experienced opinion which regards it as high. It includes the British Geriatrics Society, the British Association of Social Work and Action against Elder Abuse. It may fairly be said that their evidence was not empirical but judgmental and anecdotal. But that may be thought to reflect the nature of the issue, which makes it unrealistic to expect decisive empirical evidence either way. The concept of abuse embraces at least two distinct problems. One is that the boundary between assisted suicide and euthanasia is so porous that in practice it may be crossed too often, sometimes even in cases where there was no true consent. The other is the risk that that if assisted suicide were lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. I can deal shortly with the first kind of abuse. It is true that the boundary between assisted suicide and euthanasia is porous. The point is illustrated by the existence of machines for committing suicide, such as Dr Nitschkes, which involve an elaborate process of production and preparation in which everything is done by the assister apart from the final activation of the equipment which he has set up. There seems to me to be no moral and very little functional distinction between suicide by this method and a lethal injection administered by a third party. Nonetheless, I am sceptical of arguments based on this fact, because they assume that assisters, and in particular medical practitioners, would not understand or respect the boundary between voluntary and involuntary choices or between euthanasia and assistance. The papers for this appeal disclose no evidence to support that assumption and a certain amount of evidence to contradict it. I do not doubt that both assisted suicide and euthanasia occur, but they occur in spite of the present state of the law, and would occur in spite of any safeguards that might be included in some alternative state of the law. The vulnerability to pressure of the old or terminally ill is a more formidable problem. The problem is not that people may decide to kill themselves who are not fully competent mentally. I am prepared to accept that mental competence is capable of objective assessment by health professionals. The real difficulty is that even the mentally competent may have reasons for deciding to kill themselves which reflect either overt pressure upon them by others or their own assumptions about what others may think or expect. The difficulty is particularly acute in the case of what the Commission on Assisted Dying called indirect social pressure. This refers to the problems arising from the low self esteem of many old or severely ill and dependent people, combined with the spontaneous and negative perceptions of patients about the views of those around them. The great majority of people contemplating suicide for health related reasons, are likely to be acutely conscious that their disabilities make them dependent on others. These disabilities may arise from illness or injury, or indeed (a much larger category) from the advancing infirmity of old age. People in this position are vulnerable. They are often afraid that their lives have become a burden to those around them. The fear may be the result of overt pressure, but may equally arise from a spontaneous tendency to place a low value on their own lives and assume that others do so too. Their feelings of uselessness are likely to be accentuated in those who were once highly active and engaged with those around them, for whom the contrast between now and then must be particularly painful. These assumptions may be mistaken but are none the less powerful for that. The legalisation of assisted suicide would be followed by its progressive normalisation, at any rate among the very old or very ill. In a world where suicide was regarded as just another optional end of life choice, the pressures which I have described are likely to become more powerful. It is one thing to assess some ones mental ability to form a judgment, but another to discover their true reasons for the decision which they have made and to assess the quality of those reasons. I very much doubt whether it is possible in the generality of cases to distinguish between those who have spontaneously formed the desire to kill themselves and those who have done so in response to real or imagined pressure arising from the impact of their disabilities on other people. There is a good deal of evidence that this problem exists, that it is significant, and that it is aggravated by negative modern attitudes to old age and sickness related disability. Those who are vulnerable in this sense are not always easy to identify (there seems to be a consensus that the factors that make them vulnerable are variable and personal, and not susceptible to simple categorisation). It may be, as Lord Neuberger suggests, that these problems can be to some extent be alleviated by applying to cases in which patients wish to be assisted in killing themselves a procedure for obtaining the sanction of a court, such as is currently available for the withdrawal of treatment from patients in a persistent vegetative state. But as he acknowledges, there has been no investigation of that possibility in these proceedings. It seems equally possible that a proper investigation of this possibility would show that the intervention of a court would simply interpose an expensive and time consuming forensic procedure without addressing the fundamental difficulty, namely that the wishes expressed by a patient in the course of legal proceedings may be as much influenced by covert social pressures as the same wishes expressed to health professionals or family members. These are significant issues affecting many people who are not as intelligent, articulate or determined as Diane Pretty or Tony Nicklinson. They disclose in turn a more fundamental problem. There is a variety of reasons why the resolution of some issue may lie within the margin of appreciation of the state. It may be because the Strasbourg court has recognised that a legitimate diversity of cultural values among member states of the Council of Europe makes a range of possible answers equally consistent with the Convention. Such issues as the prohibition of abortion in Ireland (A v Ireland (2011) 53 EHRR 13) and the presence of crucifixes in Italian classrooms (Lautsi v Italy (2012) 54 EHRR 3) are cases in point. In cases like these, if the Strasbourg court has held the rule or practice of the particular state to be within the states margin of appreciation, then absent a fundamental shift of cultural values either within the state in question or among the members states of the Council of Europe generally, there is usually little if any scope for a national court in that state to say that the rule or practice in question is contrary to the Convention. Strasbourg has said that it is not. Different considerations arise if the reason why the rule or practice is within a states margin of appreciation is that the proportionality of some measure or its rational connection with some legitimate objective in itself is sensitive to national conditions which are more effectively assessed by national institutions. The latter exercise calls for an evaluation by national authorities of local needs and conditions: see Buckley v United Kingdom (1996) 23 EHRR 101 at para 75. But these are not rigid or mutually exclusive categories, and one of the problems about the present issue is that it shares some features of both. The question whether the protection of the health of the vulnerable requires a general prohibition on assistance for suicide cannot be a pure question of fact susceptible to decision on evidence alone. Like many issues in the area of human rights, it turns at least partly on a judgment about the relative importance of the different and competing interests at stake. There is no complete solution to the problem of protecting vulnerable people against an over ready resort to suicide. I doubt whether even a procedure for obtaining judicial sanction would be a complete solution, although with more information than we have at present it might prove to be a partial one. The real question about all of these possibilities is how much risk to the vulnerable we are prepared to accept in this area in order to facilitate suicide by the invulnerable. This is a particularly difficult balance to draw in a case where the competing interests are both protected by the Convention. For this reason, there is an important element of social policy and moral value judgment involved. The relative importance of the right to commit suicide and the right of the vulnerable to be protected from overt or covert pressure to kill themselves is inevitably sensitive to a states most fundamental collective moral and social values. Parliament or the Courts? The Human Rights Convention represents an obligation of the United Kingdom. In a matter which lies within the margin of appreciation of the United Kingdom, the Convention is not concerned with the constitutional distribution of the relevant decision making powers. The United Kingdom may make choices within the margin of appreciation allowed to it by the Convention through whichever is its appropriate constitutional organ. That will depend on its own principles of constitutional law. In In Re G (Adoption: Unmarried Couple) [2009] 1 AC 173, the House of Lords accepted that where questions of social policy were within the United Kingdoms margin of appreciation and admitted of more than one rational choice, that choice would ordinarily be a matter for Parliament, but considered that even in the most delicate areas of social policy, this would not always be so. They held that the rule in question, namely the ineligibility of unmarried couples to adopt children, was irrational and unjustifiably discriminatory because it erected a reasonable generalisation (that children were better brought up by married couples) into a universal rule of eligibility preventing unmarried couples from even being considered. It therefore contravened articles 8 and 14 of the Convention: see paras 16 20 (Lord Hoffmann), 53 (Lord Hope), 129 130, 143 144 (Lord Mance). Doubtless, where there is only one rational choice the Courts must make it, but the converse is not true. Where there is more than one rational choice the question may or may not be for Parliament, depending on the nature of the issue. Is it essentially legislative in nature? Does it by its nature require a democratic mandate? The question whether relaxing or qualifying the current absolute prohibition on assisted suicide would involve unacceptable risks to vulnerable people is in my view a classic example of the kind of issue which should be decided by Parliament. There are, I think, three main reasons. The first is that, as I have suggested, the issue involves a choice between two fundamental but mutually inconsistent moral values, upon which there is at present no consensus in our society. Such choices are inherently legislative in nature. The decision cannot fail to be strongly influenced by the decision makers personal opinions about the moral case for assisted suicide. This is entirely appropriate if the decision makers are those who represent the community at large. It is not appropriate for professional judges. The imposition of their personal opinions on matters of this kind would lack all constitutional legitimacy. Secondly, Parliament has made the relevant choice. It passed the Suicide Act in 1961, and as recently as 2009 amended section 2 without altering the principle. In recent years there have been a number of bills to decriminalise assistance to suicide, at least in part, but none has been passed into law. Lord Joffe introduced two bills on the House of Lords in 2004 and 2005. The 2005 bill went to a second reading in May 2006, but failed at that stage. Lord Falconer moved an amendment to the Coroners and Justice Bill 2009 to permit assistance to a person wishing to travel to a country where assisted suicide is legal. The amendment also failed. The Assisted Dying Bill, sponsored by Lord Falconer, is currently before the House of Lords. In addition to these specific legislative proposals, the issue of assisted suicide has been the subject of high profile public debate for many years and has been considered on at least three occasions since 2000 by House of Lords Select Committees. Sometimes, Parliamentary inaction amounts to a decision not to act. But this is not even an issue on which Parliament has been inactive. So far, there has simply not been enough Parliamentary support for a change in the law. The reasons why this is so are irrelevant. That is the current position of the representative body in our constitution. As Lord Bingham observed in R (Countryside Alliance) v Attorney General [2008] AC 719 at para 45, [t]he democratic process is liable to be subverted if, on a question of moral and political judgment, opponents of the Act achieve through the courts what they could not achieve in Parliament. Cf. Axa v The Lord Advocate [2012] 1 AC 868 at para 49 (Lord Hope). Third, the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas. The legislature has access to a fuller range of expert judgment and experience than forensic litigation can possibly provide. It is better able to take account of the interests of groups not represented or not sufficiently represented before the court in resolving what is surely a classic polycentric problem. But, perhaps critically in a case like this where firm factual conclusions are elusive, Parliament can legitimately act on an instinctive judgment about what the facts are likely to be in a case where the evidence is inconclusive or slight: see R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 394, esp. at para 239 (Lord Neuberger), and Bank Mellat v H.M. Treasury (no. 2) [2013] 3 WLR 179, 222 at paras 93 94 (Lord Reed). Indeed, it can do so in a case where the truth is inherently unknowable, as Lord Bingham thought it was in R (Countryside Alliance) v Attorney General at para 42. In the course of argument, it was suggested that the case for the Respondents in the Nicklinson appeal required the Appellants to suffer a painful and degrading death for the sake of others. This is a forensic point, but up to a point it is a legitimate one. It is fair to confront any judge, or indeed legislator, with the moral consequences of his decision. The problem about this submission, however, is that there are many moral consequences of this decision, not all of them pointing in the same direction. For my part, I would accept a less tendentious formulation. In my view, if we were to hold that the pain and degradation likely to be suffered by Mr Lamb and actually suffered by Mr Nicklinson made section 2 of the Suicide Act incompatible with the Convention, then we would have to accept the real possibility that that might give insufficient protection to the generality of vulnerable people approaching the end of their lives. I conclude that those propositions should be rejected, and the question left to the legislature. In my opinion, the legislature could rationally conclude that a blanket ban on assisted suicide was necessary in Convention terms, i.e. that it responded to a pressing social need. I express no final view of my own. I merely say that the social and moral dimensions of the issue, its inherent difficulty, and the fact that there is much to be said on both sides make Parliament the proper organ for deciding it. If it were possible to say that Parliament had abdicated the task of addressing the question at all, so that none of the constitutional organs of the state had determined where the United Kingdom stood on the question, other considerations might at least arguably arise. As matters stand, I think it clear that Parliament has determined that for the time being the law should remain as it is. For this reason I would not wish to encourage the notion that if the case for Mr Nicklinson and Mr Lamb had been differently presented and procedures for scrutinising cases in which patients expressed a desire for assistance in killing themselves had been examined on this appeal, the decision of this court might have been different. In my opinion, the issue is an inherently legislative issue for Parliament, as the representative body in our constitution, to decide. The question what procedures might be available for mitigating the indirect consequences of legalising assisted suicide, what risks such procedures would entail, and whether those risks are acceptable, are not matters which under our constitution a court should decide. I have not dealt with the possibility that the present state of the law might also be justifiable under article 8.2 for the protection of morals. That is because the point was hardly argued, and because the protection of health seems to me to be a sufficient justification. But I would certainly not rule it out. The criminal law is not a purely utilitarian construct. Offences against the person engage moral considerations which may at least arguably be a sufficient justification for a general statutory prohibition supported by criminal sanctions. The fact that the parties to these proceedings chose not to argue a point which might nevertheless legitimately influence Parliament illustrates one of the difficulties of deciding an issue of this kind judicially in the course of contested forensic litigation. The Martin appeal: are the Director of Public Prosecutions Guidelines to Prosecutors sufficiently clear? Although the acts covered by section 2(1) of the Suicide Act constitute an offence in all cases, an important element of discretion is introduced at two stages of the criminal process. The first is the discretion of the Director of Public prosecutions whether to prosecute or consent to a prosecution under section 2(4). The second is the discretion of a sentencing court upon conviction. These discretions are closely related. The Directors decision will be governed by the long standing practice, published in the Code for Crown Prosecutors and associated guidelines, which requires a prosecutor to be satisfied not only that the evidence is available to justify a conviction, but that it is in the public interest to prosecute. The public interest test depends on the presence of factors mitigating culpability, in other words on the same factors which would be taken into account by a sentencing court if there were a conviction. Indeed the link was once overt. In his classic statement of the policy in 1951, the then Attorney General Lord Shawcross observed that it is not always in the public interest to go through the whole process of the criminal law if, at the end of the day, perhaps because of mitigating circumstances, perhaps because of what the defendant has already suffered, only a nominal penalty is likely to be imposed (Hansard (HC Debates) 483, col 683, 29 January 1951). I have already expressed the view that section 2 of the Act is compatible with the Convention regardless of the operation of the Directors discretion. There are, however, many circumstances in which the domestic law of a state is not required by the Convention to confer some right or discretion, but nevertheless if it does so, it will be held to the Conventions standards. A Convention state is not required to allow assisted suicide, and if it does, it may qualify it with conditions designed to prevent abuse: Haas v Switzerland (2011) 53 EHRR 33 at paras 57 58. In Gross v Switzerland, (2014) 58 EHRR 7, the European Court of Human Rights held that the ambit of the right and the scope of any restrictions upon it must, within the bounds of practicality, be clear. Therefore in Switzerland, one of the few countries to allow assisted suicide in principle, article 8 was infringed by the Swiss guidelines concerning the circumstances in which medical practitioners might prescribe lethal drugs. This was because they did not sufficiently clearly show how they applied to persons (such as Mrs. Gross) who were not terminally ill. To be justifiable under article 8.2 of the Convention, a measure engaging article 8.1 must be in accordance with the law. For this purpose, law has an extended definition embracing those respects in which the application of the law depends on practice. In R (Purdy) v Director of Public Prosecutions [2010] 1 AC 345, the House of Lords held that the Code for Crown Prosecutors and any associated guidelines fell within the broad category of law for the purpose of deciding whether section 2 of the Suicide Act was justifiable. It followed that the principle of legality required them to be sufficiently accessible and clear, which they were not. It is important to understand what the House regarded as sufficient level of precision and clarity, and why. The problem about law whose application depends on administrative discretion is that, unless the criteria for the exercise of that discretion are made clear in advance, it offers no protection against its inconsistent and arbitrary application. This is the basis of the Strasbourg Courts jurisprudence on the point. As the Court observed in Glmez v Turkey (Application no 16330/02) (unreported, 20 May 2008), at para 49, [d]omestic law must afford a measure of protection against arbitrary interference by public authorities with Convention rights, in respect of which the rule of law would not allow unfettered powers to be conferred on the Executive. Lord Hope, with whom Lord Phillips and Lord Neuberger agreed in terms and Baroness Hale and Lord Brown in substance, recognised this in Purdy: see paras 41, 46. He cited as the guiding principle the test stated by the European Court of Rights in Hasan and Chaush v Bulgaria (2003) (2000) 34 EHRR 1339 at para 84: In matters affecting fundamental rights it would be contrary to the rule of law, one of the basic principles of a democratic society enshrined in the Convention, for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any such discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Lord Hope considered that protection against arbitrary exercises of discretion required that the Directors policy should be stated in advance with sufficient precision to make the consequences of a given course of action reasonably foreseeable. The requirement of foreseeability will be satisfied where the person concerned is able to foresee, if need be with appropriate legal advice, the consequences which a given action may entail. A law which confers a discretion is not in itself inconsistent with this requirement, provided the scope of the discretion and the manner of its exercise are indicated with sufficient clarity to give the individual protection against interference which is arbitrary. Para 41 A high standard of clarity and precision is required of any law defining the elements of a criminal offence. We are not, however, concerned with the elements of criminal liability but with the likelihood that those who have incurred criminal liability will be prosecuted. That is not a matter of definition but of discretion. The degree of clarity and precision which it is reasonable to expect of a published policy about the exercise of the prosecutorial discretion is different in at least two important respects from that which can be expected of a statutory provision creating an offence. The first is that the pursuit of clarity and precision must be kept within the bounds of practicality. What is practically attainable, as the European Court of Human Rights recognised in the passage which Lord Hope quoted from Hasan and Chaush v Bulgaria, (quoted at para 238 above), must depend on the range of people and situations to which it is expected to apply. It is not practically possible for guidelines to prosecutors to give a high level of assurance to persons trying to regulate their conduct if the range of mitigating or aggravating factors, or of combinations of such factors, is too wide and the circumstances affecting the weight to be placed on them too varied for accurate prediction to be possible in advance of the facts. The second limitation is a point of principle. The pursuit of clarity and precision cannot be allowed to exceed the bounds of constitutional propriety and the rule of law itself. The Code and associated guidelines may be law in the expanded sense of the word which is relevant to article 8.2 of the Convention. But they are nevertheless an exercise of executive discretion which cannot be allowed to prevail over the law enacted by Parliament. There is a fine line between, on the one hand, explaining how the discretion is exercised by reference to factors that would tend for or against prosecution; and, on the other hand, writing a charter of exemptions to guide those who are contemplating breaking the law and wish to know how far they can count on impunity in doing so. The more comprehensive and precise the guidelines are, the more likely they are to move from the first thing to the second. As Lord Bingham observed in R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 at para 39, the Director has no power to give a proleptic grant of immunity from prosecution. This is not just a limitation on the statutory powers of a particular public official. It is a constitutional limitation arising from the nature of the function which he performs. The Bill of Rights declares that the pretended Power of Suspending of Laws or the Execution of Laws by Regal Authority without Consent of Parliament is illegal. The European Court of Human Rights expressed the same notion in Pretty at para 77, when it pointed out that strong arguments based on the rule of law could be raised against any claim by the executive to exempt individuals or classes of individuals from the operation of the law. Mrs Pretty had originally made an extreme claim. She wanted the Director to give her an assurance that her husband would not be prosecuted if he helped her to kill herself. But the point made by the Strasbourg Court would have applied equally, as they pointed out, to a case where the exemption was sought for classes of individuals, and this must be so whether those classes are defined by their acts or in any other way. Although both of these limitations emerge clearly from the Strasbourg case law cited by Lord Hope in support of his analysis in Purdy, neither of them was considered in detail in that case. This was because the published criteria which were held to be inadequate in Purdy were exceptionally vague. They consisted at that stage only in the Code which, because it had to cover the whole range of criminal offences, was necessarily couched in wholly general terms. No one was suggesting that the Director should do more than set out the most significant factors that would guide his decision: see the argument of Lord Pannick QC at page 350B/C. Lord Hope concluded from his examination of the principle that the Director should be required to to promulgate an offence specific policy identifying the facts and circumstances which he will take into account in deciding, in a case such as that which Ms Purdys case exemplifies, whether or not to consent to a prosecution under section 2(1) of the 1961 Act: para 56. Lord Brown of Eaton under Heywood considered at para 86 that what was needed was a custom built policy statement indicating the various factors for and against prosecution. In the event, the order of the House was made in the precise terms suggested by Lord Hope. Anything more than that would, as it seems to me, have been both impractical and contrary to constitutional principle, both problems of which the Committee was profoundly conscious. The Committee must have regarded the limited form of order which they made as satisfying the principle which they had declared. They must also have appreciated that guidance stating the principles on which the discretion was exercisable and indicating the factors for and against prosecution would not in all cases enable the individual to know in advance whether he would be prosecuted, but only what matters would be taken into account. The Directors published policy The Directors current policy is described in her predecessors Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide, published in February 2010 after the decision in Purdy. Lord Neuberger has set out the relevant parts, and I will not do so again. In summary, it lists sixteen public interest factors tending in favour of prosecution and six public interest factors tending against prosecution. The factors tending in favour of prosecution include (6) that the suspect was not wholly motivated by compassion, (12) the suspect gave encouragement or assistance to more than one victim who were not known to each other, (13) the suspect was paid by the victim or those close to the victim for his or her encouragement or assistance, (14) the suspect was acting in his or her capacity as a medical doctor, nurse, other healthcare professional, a professional carer [whether for payment or not],. and the victim was in his or her care, and (16) the suspect was acting in his or her capacity as a person involved in the management or as an employee (whether for payment or not) of an organisation or group, a purpose of which is to provide a physical environment (whether for payment or not) in which to allow another to commit suicide. Paragraph 44 recommends a common sense approach to the question of personal gain: It is possible that the suspect may gain some benefit financial or otherwise from the resultant suicide of the victim after his or her act of encouragement or assistance. The critical element is the motive behind the suspect's act. If it is shown that compassion was the only driving force behind his or her actions, the fact that the suspect may have gained some benefit will not usually be treated as a factor tending in favour of prosecution. However, each case must be considered on its own merits and on its own facts. The factors in favour of and against prosecution are all subject to the general considerations at paragraphs 36 42. For present purposes, it is enough to quote paragraphs 39 and 40: 39 Assessing the public interest is not simply a matter of adding up the number of factors on each side and seeing which side has the greater number. Each case must be considered on its own facts and on its own merits. Prosecutors must decide the importance of each public interest factor in the circumstances of each case and go on to make an overall assessment. It is quite possible that one factor alone may outweigh a number of other factors which tend in the opposite direction. Although there may be public interest factors tending against prosecution in a particular case, prosecutors should consider whether nonetheless a prosecution should go ahead and for those factors to be put to the court for consideration when sentence is passed. 40 The absence of a factor does not necessarily mean that it should be taken as a factor tending in the opposite direction. For example, just because the victim was not under 18 years of age does not transform the factor tending in favour of prosecution into a factor tending against prosecution. In formulating the published policy the Director did exactly what the order in Purdy required him to do. In the words of Lord Hopes statement of the principle at para 41, it set out the scope of the discretion and the manner of its exercise. The Director identified the factors that he would take into account, adding appropriate caveats about the importance of taking each case on its merits and considering the weight to be attached to each factor in the light of all the relevant circumstances. Moreover, the policy was carefully drafted so as avoid the risk of appearing to dispense from the operation of the law in certain cases, by identifying relevant factors rather than categories of persons or acts which would not, or probably not be prosecuted. Unless we are prepared to say that the House of Lords was wrong in Purdy to regard the order which it made as answering the principle which it declared, or unless circumstances have changed in some relevant respect, we should not now say that the February 2010 published policy is inadequate. No relevant change of circumstances has been alleged, and far from regarding the order made in Purdy as wrong, it seems to me to have been soundly based on principle. Martins case is that the current guidelines are inadequate because they do not make it sufficiently clear that an assister who has done nothing to encourage the suicide and whose assistance was motivated by nothing but compassion, will not be prosecuted. In particular, he says that they draw an unjustifiable distinction between assistance given by those who are connected to the patient by ties of love and affection (which he calls Class 1 cases), and others with no such connection (Class 2 cases). Martin accepts that the published policy is sufficiently clear about the former category. Unless there is particular cause for concern, all the factors tend against the prosecution of assisters in this category. They can assume, he says, that they will not be prosecuted. But he says that the position of those without emotional ties to the patient is unclear, especially if they are healthcare professionals or other professional carers. It is to their position that his submissions have been mainly directed. The Directors published policy has deliberately and rightly not been framed by reference to categories of suspect. But the factors listed do suggest a difference in treatment between those whose assistance is given in a professional capacity, whether as doctors, nurses or carers, and others who are connected by emotional bonds to the patient, in practice generally members of his family. In my view, Martin is wrong to suggest that those in the latter category can count on escaping prosecution. That will depend on all the relevant circumstances, of which the emotional bond may well be the most important but is unlikely to be conclusive. However, the published policy does show that assisters of this kind are less likely to be prosecuted than professionals or other outsiders, other things being equal, which they may not be. Thus, the professional character of an assisters involvement will itself tell in favour of prosecution (factor 14). In addition he, and others without emotional ties to the patient, may not be regarded as wholly motivated by compassion (factor 6) and are quite likely to be paid for their assistance (factor 13). Martin objects to these distinctions, as well as to the leeway left to prosecutors by the advice at paragraph 39 that the weight to be given to each factor should be assessed case by case instead of being subject to weightings set out in the published policy. This case was substantially accepted by the majority of the Court of Appeal. But in my view, it was wrong in principle for a number of reasons. In the first place, although presented as a complaint about the lack of clarity in the published policy, it is in reality a complaint about its substance. As I have pointed out, professionals and other outsiders differ in important respects from those whose willingness to assist the patient arises from an emotional relationship with him. The moral issues raised by the intervention of an outsider are more difficult to assess than those arising from assistance given by (say) members of the patients family. The answer is likely to be affected by an altogether wider range of factors and therefore to be correspondingly less clear in advance. One can illustrate this by reference to the significance of compassion, which everyone agrees is critical in most of these cases. In the case of a close family member, for example a parent, child or spouse, the compassionate character of his or her motivation will usually be obvious, even if the assister stood to benefit financially by the patients death. So far as anything is straightforward in this difficult field, it is the overwhelming emotional impact of the patients suffering on those closest to him. What constitutes a purely compassionate motive in the case of an outsider is likely to be much less obvious. At one extreme, the professional who assists the patient to kill himself may be a long term living in carer who has formed an emotional bond with the patient not unlike that of his closest relatives. At the opposite end of the range, the professional may have little or no personal acquaintance with the patient, but out of compassion for human suffering in general holds himself out as being ready to assist patients who have freely chosen suicide. Between these extremes there is an infinitely complex range of possibilities. The position of the professional is likely to be affected by his closeness to the patient, the length of his acquaintance with him, the extent of his previous responsibility for the patients care, his relations with the patients family, his opinions about the legal prohibition of assisted suicide, any relevant rules or guidance of his professional body, any involvement on his part in assisting other patients to commit suicide, whether he is paid for his assistance and if so how much, and many other matters. In addition to being more difficult to evaluate, the involvement of the professional raises issues with important implications for other terminally ill or suffering patients, many of whom may be vulnerable. The most that the Director can reasonably be expected to do in the face of such a complex process of evaluative judgment is to identify the main factors that will be relevant. It is neither possible nor proper for him to attempt a precise statement in advance of the facts about when a professional will or will not be prosecuted. Either such a statement will have to be so general and qualified as to be of limited value for predictive purposes, or else it is liable to tie the Directors hands in a way that would in practice amount to a dispensation from the law. In the Divisional Court Toulson LJ at paras 141 143 gave three reasons why it would be wrong to require the Director to reformulate her policy: 141. First, it would go beyond the Convention jurisprudence about the meaning of law in the context of the rule of law. Even when considering the meaning of law in the strict sense of that which may be enforced by the courts, the jurisprudence allows a degree of flexibility in the way that it is formulated (Sunday Times v UK). This must apply even more in relation to law in the extended sense of meaning the law as it is liable in practice to be enforced (Purdy paragraph 112), because flexibility is inherent in a discretion. It is enough that the citizen should know the consequences which may well result from a particular course of action. 142. Secondly, it would be impractical, if not impossible, for the DPP to lay down Guidelines which could satisfactorily embrace every person in Mr Havers class 2, so as to enable that person to be able to tell as a matter of probability whether he or she would be prosecuted in a particular case. As Mr Havers rightly observed, the factors for and against prosecution may point in opposite directions. I do not see how the DPP could be expected to lay down a scheme by which a person would be able to tell in advance in any given case whether a particular factor or combination of factors on one side would be outweighed by a particular factor or a combination of factors on the other side. The DPP is not like an examiner, giving or subtracting marks in order to decide whether a candidate has achieved a pass mark. The DPP has expressed his opposition to any such schematic approach for the good reason that each case ultimately involves a personal judgment. 143. Thirdly, it would require the DPP to cross a constitutional boundary which he should not cross. For the DPP to lay down a scheme by which it could be determined in advance as a matter of probability whether an individual would or would not be prosecuted would be to do that which he had no power to do, i.e. to adopt a policy of non prosecution in identified classes of case, rather than setting out factors which would guide the exercise of his discretion. In my opinion, the Court of Appeal had no convincing answer to these points. This is, I think, because there is none. Ultimately, the question of legal principle posed by the reasoning of the House of Lords in Purdy is whether the uncertainty about the position of professionals allows the arbitrary and inconsistent exercise of executive discretion. In my opinion it does not. Any lack of clarity or precision does not arise from the terms of the Directors published policy. It arises from the discretionary character of the Directors decision, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case. All of these are proper and constitutionally necessary features of the system of prosecutorial discretion. The terms of the published policy reflect them. The document sets out the principal relevant factors for and against. It treats the professional character of an assisters involvement as a factor tending in favour of prosecution. It is at least as clear as any sentencing guidelines for this offence could be. The Lord Chief Justices interpretation of the Directors published policy I turn, finally, to a question which arose in the course of the argument, and which has assumed greater prominence than was perhaps expected when the appeal was opened. Lord Judge dissented in the Martin appeal, mainly because he took a different view of the interpretation of the published policy from the rest of the Court of Appeal. Paras 185 and 186 of his judgment have been set out, substantially in full, by Lord Neuberger at para 142 of his judgment. In summary, Lord Judge thought that factor 14 tending in favour of prosecution was concerned only with professionals who abused a position of trust arising from their professional relationship with the patient, for example by bringing undue influence to bear upon him. He thought that it did not extend to a professional carer who, with no earlier responsibility for the care of the victim, comes in from outside to help. He would have regarded it as an extraordinary anomaly that such a person should be more likely to be prosecuted than the family members who brought him in, at any rate if he was not profiteering. This, in Lord Judges view, was because such a person would be doing no more than (say) the patients wife would do if she could. He regarded it as an extraordinary anomaly, that those who are brought in to help from outside the family circle, but without the natural love and devotion which obtains within the family circle, are more likely to be prosecuted than a family member when they do no more than replace a loving member of the family, acting out of compassion, who supports the victim to achieve his desired suicide. Like Lord Neuberger, I do not think that this is what the Directors published policy says. On its face, it discloses a much more general principle that the professional character of an assisters involvement is in all circumstances a factor tending in favour of prosecution, although one whose weight will vary (like all the listed factors) according to the circumstances. Nonetheless, in the course of argument, Counsel for the Director accepted, on her specific instructions, that paras 185 and 186 of Lord Judges judgment correctly represented her policy. If this is so, and if, as I consider, the published policy as it stands says something different, then it is clear that the Director is bound to resolve the inconsistency one way or the other. However, I am not prepared to say that she must resolve it by incorporating Lord Judges interpretation into the published document. I am not prepared to do this for three reasons. First, it is unnecessary. I have no doubt that the Director will in any event wish to review the terms of the published policy in the light of the judgments on this appeal, especially on this point. Secondly, it is legally inappropriate. The Directors duty is to ensure (i) that her published policy is clear, and (ii) that it accurately represents her actual policy. It is not her duty to adopt Lord Judges interpretation as her policy, and in the absence of her concession in argument nobody could have suggested that it was. Third, it would not be appropriate to make an order the effect of which would be to hold her to that concession, until she has had the fullest opportunity of considering the implications of the two relevant paragraphs of Lord Judges judgment for the published policy as a whole, in the light of her legal and constitutional role as a prosecuting authority and in the light of our judgments in this case. The third point requires some expansion. The reason for making it is that Lord Judges two paragraphs cannot simply be incorporated into the existing published policy. They beg a number of questions, some of them fundamental, on which we do not know the Directors views, and on which she may not yet have formed concluded views. Lord Judge was interpreting factor (14) tending in favour of prosecution. But the relationship between a revised factor (14) and the other factors would need careful consideration if the resulting document is to be clear and coherent. The various listed factors for and against prosecution set out in the existing published policy are concerned with two main matters: (i) whether the assister was entitled to believe that the patient had made a free, settled and unpressured decision to die, and (ii) whether the assister was motivated wholly by compassion. The most difficult issue concerns the relationship between a revised factor (14) and the existing factor (6), which treats it as a factor tending in favour of prosecution that the suspect was not wholly motivated by compassion. The purely compassionate character of the assisters motivation is a major head of mitigation, which is more likely to be available to someone with an emotional connection to the patient than it is to an outsider with no emotional or even a prior professional connection. There may be very little mitigation available to, say, an assister acting under no compelling pressure arising from a prior relationship with the patient, who has simply been brought in to contribute his technical expertise to the commission of a criminal offence. It can fairly be said that in many cases this approach will deprive those closest to the patient of the means of enabling him to kill himself. This is so. But it is not the object of the published policy to facilitate assisted suicide. Its object is to enable prosecutors to address the main factors which mitigate guilt. Otherwise he is at risk of moving away from the concept of mitigating guilt, and towards that of dispensing certain categories of person from the operation of the Act. The relationship between a revised factor (14) and the existing factor (6) is probably the most delicate issue, but it is not the only one. What kind of professional carer with no earlier responsibility for the care of the victim will be covered by the revised policy? One may infer from the existing factor (12) tending in favour of prosecution that they will not generally include those who held themselves out as giving technical assistance for suicide or who, without holding themselves out, had done it before. Lord Judge appears to have made the (surely realistic) assumption that they would charge for their services, although not in a profiteering way. But how would such persons be affected by factor (13), which treats the receipt of payment as a factor tending in favour of prosecution. And what would constitute profiteering? Equally delicate questions may arise when one broaches the question what kind of assistance is to be covered by the revised policy. One may infer from factor (16) that the revised policy would not extend to the provision of suicide clinics in the United Kingdom to do what Dignitas does in Switzerland. But highly contentious issues may arise as to the application of the revised policy to some forms of assistance falling well short of that extreme. The context of Lord Judges remarks and the facts of Martins case suggest that he was thinking mainly of assistance consisting in accompanying the patient to Dignitas in Switzerland. But the same considerations would not necessarily apply to supplying lethal prescription drugs or specialised equipment. All of these questions might require consultation with the medical professions or even the general public, as occurred before the publication of the current policy. Unless the Director proposes to modify factors (6), (12) (14) and (16), the circumstances in which Lord Judges professional carer with no earlier responsibility for the care of the victim will be protected may be far too narrowly confined to justify Lord Judges prediction at para 186 that they are most unlikely to be prosecuted. But for present purposes the decisive consideration is that it is a matter for the Director and not for us to decide whether to adopt Lord Judges interpretation of the policy and if so how and how far to do so. The present state of the law The current position may fairly be summarised as follows: (1) In law, the state is not entitled to intervene to prevent a person of full capacity who has arrived at a settled decision to take his own life from doing so. However, such a person does not have a right to call on a third party to help him to end his life. (2) A person who is legally and mentally competent is entitled to refuse food and water, and to reject any invasive manipulation of his body or other form of treatment, including artificial feeding, even though without it he will die. If he refuses, medical practitioners must comply with his wishes: Sidaway vs Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] A.C. 871, 904 905; In re F (Mental Patient: Sterilisation) [1990] 2 A.C. 1; Airedale NHS Trust v Bland [1993] AC 789. A patient (or prospective patient) may express his wishes on these points by an advance decision (or living will). (3) A doctor may not advise a patient how to kill himself. But a doctor may give objective advice about the clinical options (such as sedation and other palliative care) which would be available if a patient were to reach a settled decision to kill himself. The doctor is in no danger of incurring criminal liability merely because he agrees in advance to palliate the pain and discomfort involved should the need for it arise. This kind of advice is no more or less than his duty. The law does not countenance assisted suicide, but it does not require medical practitioners to keep a patient in ignorance of the truth lest the truth should encourage him to kill himself. The right to give and receive information is guaranteed by article 10 of the Convention. If the law were not as I have summarised it, I have difficulty in seeing how it could comply. (4) Medical treatment intended to palliate pain and discomfort is not unlawful only because it has the incidental consequence, however foreseeable, of shortening the patients life: Airedale NHS Trust v Bland [1993] AC 789, 867D (Lord Goff), 892 (Lord Mustill), R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800, 831H 832A (Lord Steyn). (5) Whatever may be said about the clarity or lack of it in the Directors published policy, the fact is that prosecutions for encouraging or assisting suicide are rare. Between 1998 and 2011, a total of 215 British citizens appear to have committed suicide with medical assistance at the Dignitas clinic in Switzerland. Not one case has given rise to prosecution. Although cases of assisted suicide or euthanasia are periodically reported to the police (85, we were told, between 1 April 2009 and 1 October 2013) there has been only one recent prosecution for assisting suicide, and that was a particularly serious case. This state of English law and criminal practice does not of course resolve all of the problems arising from the pain and indignity of the death which was endured by Tony Nicklinson and is now faced by Mr Lamb and Martin. But it is worth reiterating these well established propositions, because it is clear that many medical professionals are frightened by the law and take an unduly narrow view of what can lawfully be done to relieve the suffering of the terminally ill under the law as it presently stands. Much needless suffering may be occurring as a result. It is right to add that there is a tendency for those who would like to see the existing law changed, to overstate its difficulties. This was particularly evident in the submissions of Dignity and Choice in Dying. It would be unfortunate if this were to narrow yet further the options open to those approaching death, by leading them to believe that the current law and practice is less humane and flexible than it really is. Conclusion I would dismiss the appeal of Mrs Nicklinson and Mr Lamb. I would allow the Directors appeal in Martins case, and dismiss Martins cross appeal. LORD HUGHES The claimants in these cases, and Mrs Nicklinson's husband before his death, together with some other people in similar positions, see themselves as in a cruel paradox. They have concluded that their lives are not worth living. Whether others in comparable positions would think the same of themselves is, for them, not the point. No one questions their mental capacity to reach the decisions that they have. It is impossible not to understand the depth of their dismay, given the combination of appalling limitation on even the most basic of functions and constant pain. If they were able, unassisted, to commit suicide, they have decided that they would. But their disabilities are so great that they cannot do so, unless they can persuade someone else to help them. Their physical conditions are not likely to be terminal in the near future, so that they will remain unable to achieve their wish for an indefinite period. Whatever the legal position, their appeal for relief will not fail to touch most hearers. A court can, however, only respond to this appeal by applying the law. That is, of course, not the same as deciding what individual judges would personally like the law to be. Under our constitutional arrangements, firmly entrenched even if largely unwritten, the legislative function is committed to Parliament and courts must not usurp it. Courts do have the necessary function to interpret statutes and to decide what they mean, and to synthesise the different sources of English law, statute law, common law and European. An essential question in this case is whether these latter, properly judicial, functions, can extend to afford the claimants the relief they seek. In this case there is a perfectly clear Act of Parliament. The Suicide Act 1961 abolished the offence of suicide, so that the suicide himself or herself is no longer committing an offence. But it deliberately, and plainly, created in section 2(1) a separate offence of assisting someone else to commit suicide. True it is that this was fifty years ago, but, even if the law knew a concept of statutory obsolescence, as it does not, this statute was deliberately re enacted in 2009, after lively public and Parliamentary debate, and after a private member's Bill designed to relax the law had been considered in Parliament and rejected. If anything, the new sections 2A and 2B inserted into the 1961 Act in 2009 somewhat extend the scope of the offence under section 2(1). There is no escape from the fact that unless section 2(1) of the Suicide Act is for some reason or to some extent ineffective, anyone who assists the present claimants or people in like position to commit suicide is guilty of an offence. The only possible route to qualifying the statute lies in the European Convention on Human Rights ("ECHR"), as part of English law via the Human Rights Act 1998. The argument that it does so in the present cases depends on deploying article 8 of the Convention, by one or other of two possible legal routes. Article 8 provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The scheme of article 8 is well known. Like several other articles dealing with so called qualified rights, it first states an area in which it is concerned to limit State action affecting individuals, and then, by paragraph (2) sets out the i) ii) qualifications which must be exhibited by State action if it is to be legitimate. Those qualifications are two, the first of legality and the second of justification: the State's action must be 'in accordance with the law'; and it must be justified as a proportionate means to a legitimate end. The reach of article 8 can now be seen to be extensive. "Private and family life" undoubtedly covers a wide range of personal activity. There are times when, as a sphere of personal activity is identified as falling within the reach of article 8, it is tempting to say that there is therefore a fundamental right to that particular form of activity. The better view is that the fundamental right is to what article 8.1 actually speaks of namely respect for private and family life. Whether there is a right to do the particular thing under consideration depends on whether the State is or is not justified in prohibiting it, or placing conditions upon it, and that in turn depends on whether the State's rules meet the requirements of article 8.2. To take a simple example unconnected with the present appeals, the consumption of drugs whether for reasons of health, pain relief, athletic performance or simple recreation may well be an aspect of private life within the reach of article 8.1. But it does not follow that there is a fundamental right to take cannabis or steroids, ecstasy or cocaine, still less for others to supply such drugs to would be users. The great majority of European States prohibit at least some drug usage in the general public interest, and such prohibition is generally more than fully justified under article 8.2. It is now clear that a person's autonomy in making decisions about how to end his life engages article 8. I agree that it follows that his autonomy in deciding to seek advice or assistance also does so. One ought not, however, in the present cases, to begin with the proposition that an individual has a right to make an end of life decision and to seek assistance in carrying it out. That would be to fall into the error explained in the last paragraph and to assume the answer to these cases. These cases depend not simply on article 8.1 but on its interrelation with article 8.2. And although the claimants in both appeals invoke article 8 they rely on quite different aspects of it. In the first appeal, of Mrs Nicklinson and Mr Lamb, the issue is now whether the claimant can lawfully engage the assistance of a medical practitioner such as Dr Nitschke to provide a complex machine to deliver a lethal injection, which the claimant can himself activate. Their wish is to undergo this process in England. Their case depends upon the justification limb of article 8.2. They can succeed only if the application of section 2(1) to them in their situations would fail the test of proportionate pursuit of legitimate aim. In effect, they can succeed only if in law the generalised ban upon assisted suicide in section 2(1) is contrary to their article 8 rights. In the second appeal, AM challenges not section 2(1) but the position of the Director of Public Prosecutions. He contends that the policy statement issued by the Director following the order to provide such which was made in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345 is not enough and must be amplified to deal more specifically with the position of a medical carer who assists, as distinct from a friend or relative who does. He has two distinct arguments. First and principally, he invokes article 8.2 not for the rule of proportionate justification but for the rule of legality. His contention is that a restriction on his private life must, to be in accordance with the law, make it sufficiently foreseeable whether a medical carer will be prosecuted. His secondary contention, advanced on his cross appeal, is that the Director's policy statement discourages the sort of professional compassionate assistance which he seeks, and that it is thus a disproportionate interference with his article 8 rights. This secondary position involves, like the appeal of Mrs Nicklinson and Mr Lamb, the invocation of the justification limb of article 8.2. This distinction is central to these appeals. So far as the first appeal is concerned, I have little to add to the reasoning of Lord Sumption, with which I respectfully agree. I also agree with the reasons given in the Court of Appeal, which on this point was unanimous. It is plain that the Strasbourg court has not found that a generalised prohibition on assisting others to commit suicide is a breach of article 8. Given the great preponderance of European States which adopt such a rule, and not least recommendation 1418 of the Council of Europe in 1999, it would have been extremely surprising if it had done so. It is true that Strasbourg thus regards the question as one to be resolved by individual States within their margin of appreciation. But in this country, with our constitutional division of responsibility between Parliament and the courts, this is very clearly a decision which falls to be made by Parliament. For the moment, the balance between the public interest in the protection of the vulnerable and the preservation of life on the one hand and the private interests of those minded to commit suicide on the other has been struck by the 1961 Act, re enacted in 2009. A change, whether desirable or not, must be for Parliament to make. That is especially so since a change would be likely to call for an infrastructure of safeguards which a court decision could not create. The position of the DPP Historically, England and Wales came late to a State public prosecutor considerably later than Scotland and much later than many European countries. The office of Director of Public Prosecutions was not created until 1879 and then in the face of no little opposition. Leaving aside bodies specially authorised to prosecute in particular areas, such as Local Authorities or Health and Safety Inspectors, for more than a century after this prosecutions remained essentially in the hands of the police, each local force of which was independent of any other. Those local police forces prosecuted either through the office of local solicitors instructed for the purpose, or, later, in some cases through solicitors established by the force for this specific purpose. Although the Director of Public Prosecutions had throughout that time the power to take over a prosecution if he judged it necessary, he had a very limited staff and was concerned only with a small number of the most serious cases. It was only with the Prosecution of Offences Act 1985 that a single body, the Crown Prosecution Service, came into existence with the duty, amongst others, of handling virtually all prosecutions initiated by the police, and the Director became its head. Whichever has been the body initiating prosecutions, the law of England and Wales has always recognised that a prosecution does not invariably follow acts which in law amount to a criminal offence. A well known statement of the position is that of the Attorney General, Sir Hartley Shawcross, in 1951, cited by Viscount Dilhorne in the House of Lords in Smedleys Ltd v Breed [1974] AC 839 at 856: "In 1951 the question was raised whether it was not a basic principle of the rule of law that the operation of the law is automatic where an offence is known or suspected. The then Attorney General, Sir Hartley Shawcross, said: 'It has never been the rule of this country I hope it never will be that criminal offences must automatically be the subject of prosecution.' He pointed out that the Attorney General and the Director of Public Prosecutions only intervene to direct a prosecution when they consider it in the public interest to do so and he cited a statement made by Lord Simon in 1925 when he said: ' . there is no greater nonsense talked about the Attorney General's duty than the suggestion that in all cases the Attorney General ought to decide to prosecute merely because he thinks there is what the lawyers call a case. It is not true and no one who has held the office of Attorney General supposes it is. Sir Hartley Shawcross's statement was indorsed, I think, by more than one of his successors." It may be relevant, especially when considering European pronouncements in this area, to note that this general position is not the same in a number of European criminal justice systems. Several of them have embedded either in constitution or criminal code the rule that the Public Prosecutor is under a prima face duty to prosecute when facts amounting to an offence are disclosed. Section 152(2) of the German Code of Criminal Code of Procedure is but one example and article 112 of the Italian constitution another. In Germany, such a domestic rule is regarded as an aspect of the principle of legality. There are broadly similar rules in Austria, Greece, Russia, Poland, Spain, Switzerland and Turkey. Whilst it is certainly true that there are increasingly provisions in many such countries permitting a decision that a prosecution in a particular case is not in the public interest, or authorising diversion to other methods of dealing with proscribed conduct (sometimes described as an aspect of the principle of expediency), this rule remains the default position. It is essential to identify the scope of the decisions thus being taken by prosecutors in England and Wales over the years. The prosecutor is expected to exercise independent judgment in scrutinising all the myriad facts of each particular case put before him. His power to decide, in the public interest, whether to proceed even where there is a prima facie case that the offence has been committed exists in every class of case, from the most trivial to the most serious. There is nothing in the least unusual in this respect about the offence under section 2(1) of the Suicide Act. The decision to be made is of the same kind as might be made, for example, in the case of a 13 year old caught shoplifting. It might well not be in the public interest to prosecute such a youngster, for example if it was apparent that he had been punished severely by either his parents or his school, or the object stolen had been a twopenny sweet. Conversely, it might be very much in the public interest if there had been longstanding widespread thieving by children in the area, there had been public warnings designed to deter which had failed, or the evidence showed that the child had recruited other younger boys to do the same. Similar decisions may have to be made in relation to offences such as causing death by careless driving. It might be judged not to be in the public interest to prosecute a mother whose careless but comparatively venial mistake at the wheel had resulted in the death of her own child where she was clearly going to bear the guilt for the rest of her life. The case against prosecution might be even stronger if the mother were herself seriously disabled in the same accident. Conversely, prosecution might well be in the public interest if she had been showing off at the wheel, had disregarded warnings to slow down, or she had had previous proven episodes of bad driving. What is common to all these decisions is that they are made ex post facto and are made individually for the single case under consideration, when all the facts have been investigated and are known. Of course some factors may recur, but in different combinations and of different intensities. Every case is different. Contrast the position when the Director of Public Prosecutions, or any other prosecutor, is asked to state in advance when a particular form of behaviour will result in prosecution and when it will not or may not. Then she is in immediate peril of crossing a constitutional Rubicon. She is in danger of doing one or both of two things. First she is likely to create an advance exemption from the law for a particular group of potential offenders. Second, she is likely in effect to modify the law as laid down in statute or at common law. She has no power to do either of these things. Both are a breach of her constitutional position. She is the head of a branch of the Executive, albeit one with the degree of independence of a non ministerial government department. As Lord Bingham pointed out in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61 [2002] 1 AC 800 at paragraph 39, the power to dispense with and suspend laws and the execution of law without the consent of Parliament was denied to the Crown and its servants by the Bill of Rights 1689 (1 Will & Mary, sess 2, c 2). Section 2(4) of the Act, which requires the Director to consent to any prosecution brought under section 2(1) does not begin to alter this position, which is general to all offences, whether her consent is a requirement or not. Provisions requiring that prosecutions be brought only with the consent of the Director, or less frequently with that of the Attorney General or the Director of Her Majesty's Revenue and Customs, are relatively commonplace. The court was provided with a list of well over 130 statutes containing such stipulations. The number of offences affected is a great deal larger than 130 and they range from river pollution to insider dealing, and from lottery offences to corporate manslaughter. In evidence to the Franks Committee in 1972, the Home Office identified typical overlapping reasons for such provisions to be inserted into statutes: (a) to secure consistency in prosecutions, including where the offence may go wider than the mischief aimed at, (b) to prevent vexatious private prosecutions, (c) to enable account to be taken of mitigating factors, (d) to provide an element of central control in sensitive areas and (e) to enable account to be taken of national security or international considerations. There is no reason to think that section 2(4) was inserted into the Suicide Act with any intention of doing more than keeping the prosecutions in reliable hands. There is no reason at all to suppose that section 2(4) carries with it any greater or different function than the case specific ex post facto judgment described above. This is the "flexibility", inherent in the requirement for the Director to handle prosecutions for the section 2(1) offence, which the Strasbourg court was considering in Pretty v United Kingdom (2002) 35 EHRR 1. Similarly, the Government there also drew attention to the absence of any mandatory sentence for the offence, thus allowing lesser penalties to be imposed as appropriate. Both the process of abstaining from charging and the process of accepting mitigation in sentence are exercises in flexibility applied after the event to a person who has (or prima facie appears to have) in fact committed the offence, and both are decisions made for the individual case. Flexibility in sentencing was, for the Court, illustrated by the evidence, cited at paragraph 76, that over an eleven or twelve year period most so called 'mercy killing' cases (charged no doubt usually as manslaughter) had resulted in probation orders or suspended sentences. It was in this context that the Court addressed the article 8.2 rule of legality and went on immediately to say: "It does not appear to be arbitrary to the Court for the law to reflect the importance of the right to life, by prohibiting assisted suicide while providing for a system of enforcement and adjudication which allows due regard to be given in each particular case to the public interest in bringing a prosecution, as well as to the fair and proper requirements of retribution and deterrence." There is no occasion to read this observation, as Lord Brown read it in Purdy, as a decision that the generalised prohibition on assisting suicide was only saved from incompatibility with article 8 by the existence of the Director's powers in relation to prosecutions. The juxtaposition of those powers with discretionary sentencing is inconsistent with such a reading. Indeed, given the preponderance of generalised prohibitions on assisted suicide throughout Europe, and without any general prosecutorial discretion still less guidance as to how it might be exercised, it would have been extremely surprising if this had been what the Court was saying. The seductive argument presented on behalf of the claimant in Purdy contained a vital step which ignored the distinction here set out between examination after the event of all the facts of a case and advance exemption from the law of particular kinds of offending. The case for the claimant was opened in this way, at p 349: The discretion conferred on the Director of Public Prosecutions by section 2(4) is integral to the application of the criminal offence created by section 2(1). the flexibility introduced by the consent provisions of section 2(4) was recognised by the European Court of Human Rights in Pretty v United Kingdom (2002) 35 EHRR 1 as an important factor relevant to establishing that the prohibition in section 2(1) was not a disproportionate interference with article 8: see at para 76. Section 2(4), therefore, constitutes parliamentary acknowledgment that there is a category of individuals who, notwithstanding they may have committed the offence under section 2(1), should nevertheless suffer no criminal penalty as a result and whom it is not in the public interest to prosecute. It is legitimate to say that Parliament no doubt recognised that there might be persons who commit the section 2(1) offence, whom it turns out not to be in the public interest to prosecute. That, however, is true of every offence in the criminal calendar. It is not legitimate to suppose that there is a category of such persons which can be identified in advance by the Director of Public Prosecutions. She cannot do so without crossing the constitutional boundary into either changing the law or giving advance exemption from it to a group of potential offenders. The basis of the case against the Director both in Purdy and in the present appeal of AM on the legality limb of article 8 is a suggested lack of sufficient foreseeability. The Strasbourg court has made clear that the level of precision which is required of domestic law to meet the principle of legality depends to a considerable degree on the content and that the overriding objective of the principle is to guard against arbitrary executive behaviour: see for example Gillan v United Kingdom [2010] ECHR 28; (2010) 50 EHRR 1105. But the foreseeability which any citizen is entitled to expect in relation to the decision of a prosecutor whether or not to institute proceedings is no more but no less than the knowledge that the prosecutor will examine all the facts of any case where an offence has been committed and will decide whether or not it is in the public interest to proceed. No doubt the citizen is entitled to expect more when the question is whether he has committed an offence or not, but in the case of the present appellants it is the settled assumption that they will have done so. The Court of Appeal in the present case appears to have accepted the argument that the legality rule of article 8.2 demanded that a person contemplating assisting someone else to commit suicide should know the answer to the question "What is the likelihood of a prosecution?" (see paragraph 140). But that question cannot be answered without crossing the constitutional boundary between judging each case on its merits according to the public interest and providing something close to an advance exemption in particular circumstances. The Strasbourg court has more than once made clear that the principle of legality does not extend to enabling potential offenders to avoid the application to them of a law which they may wish to avoid: see for example Weber and Saravia v Germany [2006] ECHR 1173; (2006) 46 EHRR SE 47 at paragraph 93. In the context of this law, it is the crossing of this constitutional boundary which could properly be described as arbitrary, not the preservation of an individualised ex post facto review of a case. In Purdy, the House of Lords likewise accepted the legality/foreseeability argument. Lord Hope confined himself to this reasoning, which is the way, so far as I can see, that the case for Mrs Purdy was advanced. Despite some observations which may suggest a view that section 2(1) might in some applications fail to be proportionate (Lady Hale at paras 63 64, Lord Brown at para 74), it is clear that the order made was based on acceptance of the legality/flexibility case (Lady Hale at para 64, first sentence, Lord Brown at para 85, Lord Neuberger at para 106). Even if, contrary to my respectful view, the order in Purdy was justified, the argument for AM in the present appeal cannot properly be described as anything other than an attempt to obtain for a particular category of persons an advance indication that they will not be prosecuted even though they will have committed the offence. Mr Havers QC rests his case on the contention that the existing policy issued by the Director satisfactorily indicates what may happen to relatives who, out of compassion, assist a patient to commit suicide ("class 1") but does not provide the same indication to professional carers who do so ("class 2"). It is to be noted that this is not really a claim to greater clarity, which might favour either more or fewer prosecutions; rather, it is a claim to a policy of non prosecution for class 2. The Court of Appeal accepted this argument, finding at paragraph 140 that the existing policy "does not provide medical doctors and other professionals with the kind of steer in class 2 cases that it provides to relatives and close friends acting out of compassion in class 1 cases." But the legitimate functions of the Director of Public Prosecutions do not extend to giving to a particular group of those who, however understandably, are contemplating committing a criminal offence, an advance "steer" as to whether they are likely to be prosecuted, still less an indication that they will not be prosecuted although they have committed the offence. There are several further difficulties. First, the legitimate prosecutor's function of deciding whether a particular case does or does not warrant proceedings requires a close examination of all its facts. Certainly amongst the relevant facts will be the character and motivation of the potential defendant. But even more important, in most cases, will be to ask what exactly the potential defendant has done. In the context of the section 2(1) offence, an essential factor is the kind of assistance given and what if any degree of encouragement it involved. The argument in Purdy appears to have proceeded on the assumption of only one kind of assistance, namely arranging a journey to a country where assisted suicide is lawful and within it to a respectable clinic where such assistance is provided. But as the facts of the other appeals in the present case show, this is only one of many ways in which the offence under section 2(1) might be committed. What of assistance to travel to Switzerland but in order there to adopt some different method of suicide away from the Dignitas clinic? What of the doctor who prescribes a lethal dose of barbiturates? What of the doctor who does more, and prepares a syringe for his patient to use, or for a relative to use? And what of someone such as Dr Nitschke who assembles for such as Mr Lamb a complicated piece of machinery but himself stops a millimetre or two short of giving the injection. Mr Lamb, no doubt like others, does not wish to travel abroad. He hopes for a dispensation to allow a doctor to assist him in this country. Does the location make any difference? If it does not, would someone who set up a Dignitas like clinic in an English city be entitled to the same advance steer or not ? Although the argument in Purdy may have centred entirely on a proposed journey to Switzerland, the order made against the Director did not. It required him: to promulgate policy identifying facts and circumstances which he will take into account in deciding whether to consent to prosecution under section 2(1) of the Suicide Act 1961 When, loyal to that order, the Director set about formulating more detailed policy, which involved a major exercise in public consultation, it will be observed that he eschewed altogether the otherwise central element of the kind of assistance. He was right to do so. It is quite apparent, and appears to be common ground in the present appeal, that to require his successor to give an advance indication of her policy in relation to differing forms of assistance would cross the line into requiring her to re define the offence, and that that is illegitimate. But simply to pose these questions demonstrates the illegitimacy of the order against her which is sought in the present case. The order made by the Court of Appeal was wholly open ended, namely a declaration: "that theDirector of Public Prosecutions (DPP) is in breach of section 6(1) of the Human Rights Act 1998, read with article 8.2 of the European Convention on Human Rights, in that he has made insufficiently foreseeable the consequences, in terms of the exercise of his prosecutorial discretion under section 2(4) of the Suicide Act 1961, of the encouragement or assistance of a suicide or attempted suicide." Even if this order could be narrowed to limit it to medical or other professional carers, the problem identified above remains, whilst if it were to be thus narrowed it would be shown even more clearly to be directed to advance exemption of particular groups of offenders. The second difficulty is demonstrated by the first. If it be the law that the Director must provide more specific policy guidance to offer a "steer" to Mr Havers' class 2 professional carers, it is not easy to see why she should not also be required to provide a similar steer to other groups of potential defendants, for example those whose proposed assistance would take one of the possible forms set out in para 281. If for one such group, then it ought to follow for each of the others, and no doubt for many more. Thirdly, although it can be said that the section 2(1) offence has particular characteristics, it is difficult to see any proper basis, if the Director is required to indicate in advance factors going to prosecution in this case, why the same should not be true of all other criminal offences, in relation to which her function is the same. In fact, the special nature of this offence can be overstated. It is not unique for the law to make it an offence to assist others to do what is not itself a crime, as is demonstrated for example by the offence of living on the earnings of prostitution: prostitution itself, in the absence of public soliciting, is not an offence but living on the earnings of prostitution is, whether or not it involves any element of exploitation. Those who are the 'victims' of crime may in circumstances other than assisting suicide be instigators of it, for example in some cases of forbidden sexual relationships. There may be a number of cases where the victim's article 8 interests are potentially engaged (subject to justification) unless the crime is committed, the recreational user of dangerous drugs who wants a supplier to sell to him may well be an example. It is obvious that there may well be many reluctant offenders in many crimes. But even if it can properly be said that this offence combines features which are not together found elsewhere, it is the fact that the Director controls all but a marginal set of police prosecutions see section 3(2) of the Prosecution of Offences Act 1985. If it be the law that she can be required to provide a statement of policy as to factors identifying who is likely to be prosecuted in this case, it is difficult to see why the same law does not apply to other offences. Once such a requirement is made, the criminal law is in danger of being diverted from the proper trial process into anticipatory applications for judicial review of the policy, made on hypothetical or uncertain facts by those who seek either to reduce the likelihood of prosecution or to increase it. Such a process subverts the criminal law and encourages satellite litigation. Like Lord Sumption, I am unable to see that there is any answer to the three reasons given in the Divisional Court by Toulson LJ (paras 141 to 143) why it would be wrong to require the Director to reformulate her policy. For these reasons, which supplement those of Lord Sumption with which I largely agree, AM cannot properly call for a yet further policy statement from the Director on grounds of legality/foreseeability. For my part, I do not think it is appropriate, for the reasons set out above, for any court to embark upon close construction of the terms of the Director's existing published policy, although if one is to consider it I do not dissent from the analysis set out by Lord Sumption at paragraph 253. I should also record my respectful agreement with those basic propositions of law set out in Lord Sumption's judgment at 255 subparagraphs (1) (4). Nor can AM obtain the order which he seeks against the Director on his alternative ground, relying on the justification limb of article 8.2 and on proportionality. This is a repetition of the proportionality argument in the first appeal. If section 2(1) is not disproportionate unless and until Parliament says that it is, then for the same reason the Director cannot be required to "modify" her policy, for that would be to use the Director to change the law. If on the other hand section 2(1) were to be adjudged contrary to article 8 because disproportionate, then the correct remedy would be a declaration of incompatibility; it would still be impermissible, for all the reasons set out above and as explained by Lord Kerr, for the court to use the Director's powers in an individual case to achieve wholesale changes in the law. I would for these reasons dismiss the appeals of Mrs Nicklinson and Mr Lamb, and the cross appeal of AM, but allow the appeal of the Director of Public Prosecutions. LORD CLARKE I agree that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. I agree that the appeals and cross appeal should be so disposed of for the reasons given by Lord Sumption, Lord Reed and Lord Hughes. I add a few words of my own on the differing views, not as to the disposal of the appeals, but as to what may happen in the future. Lord Neuberger, Lord Mance and Lord Wilson conclude that the appeal and cross appeal should be disposed of in the same way but contemplate the possibility that circumstances may arise in the future in which an application for a declaration of incompatibility might succeed. In his para 197 Lord Wilson has summarised what he calls Lord Neubergers crucial conclusions in the first appeal. I agree that those are indeed his crucial conclusions. I also agree with the conclusions at para 197(a) to (e). Among the critical factors appear to me to be the fact that the detailed proposals made by Lord Neuberger and Lord Wilson were not advanced in argument and thus have not been subjected to the kind of detailed scrutiny that these difficult questions deserve. A further critical factor is that to date Parliament has not considered the position of those in a similar position to that of Mr Nicklinson and Mr Lamb. I agree with Lord Wilson that Lord Neuberger also included the points in his para 197(f) and (g). However, he went further, in order to explain what he meant by saying in para 118 (referred to in Lord Wilsons para 197(f)) what might happen if the issue was not satisfactorily addressed. Lord Neuberger said that, for various reasons, one would expect to see the issue whether there should be any and if so what legislation covering those in the situation of the Applicants explicitly debated in the near future. Importantly, he added this: Nor would it be possible or appropriate to identify in advance what would constitute satisfactory addressing of the issue, or what would follow once Parliament had debated the issue: that is something which would have to be judged if and when a further application is made. So that there is no misunderstanding, I should add that it may transpire that, even if Parliament did not amend section 2, there should still be no declaration of incompatibility: that is a matter which can only be decided if and when another application is brought for such a declaration. In that connection, Lord Wilsons list of factors in para 205 [above], while of real interest, might fairly be said to be somewhat premature. Subject to what follows, I agree with Lord Neuberger. If Parliament chooses not to debate these issues, I would expect the court to intervene. If, on the other hand, it does debate them and, after mature consideration, concludes that there should be no change in the law as it stands, as at present advised and save perhaps in exceptional circumstances, I would hold that no declaration of incompatibility should be made. In this regard I agree with the views expressed by Lord Mance at para 190, after referring earlier to the opinion of Rendquist CJ in Washington v Glucksberg 521 US 702 (1997) at p 735, that Parliament is certainly the preferable forum in which any decision should be made, after full investigation and consideration, in a manner which will command popular acceptance. In these circumstances I would conclude that the courts should leave the matter to Parliament to decide. I recognise that it may well be that, for the reasons given by Lord Neuberger and Lord Wilson, Parliament will conclude that some such process as they suggest might be appropriate but, as I see it, that is a matter for it (and not the courts) to determine. In particular, judges should not express their own personal views on the moral questions which arise in deciding what is the best way forward as a matter of policy. As Lord Sumption says in para 228, the imposition of the personal opinions of professional judges in matters of this kind would lack all constitutional legitimacy. LORD REED I agree with the majority of the court that, in the first appeal, the appeals of Mrs Nicklinson and Mr Lamb should be dismissed and, in the second appeal, that the DPPs appeal should be allowed and Martins cross appeal should be dismissed. In relation to these matters I am generally in agreement with the reasoning of Lord Clarke, Lord Sumption and Lord Hughes, so far as consistent with the following observations of my own. There is also a great deal in the judgment of Lord Mance with which I respectfully agree, including in particular his discussion of proportionality. I add a few words of my own in order to clarify one mattter. I entirely accept that, as Lady Hale puts it, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law. If the question whether a provision of primary legislation is compatible with a Convention right arises before one of the courts listed in section 4(5) of the Human Rights Act 1998, the court evidently has jurisdiction to determine it. In that respect, amongst others, the Human Rights Act introduces a new element into our constitutional law, and entails some adjustment of the respective constitutional roles of the courts, the executive and the legislature. It does not however eliminate the differences between them: differences, for example, in relation to their composition, their expertise, their procedures, their accountability and their legitimacy. Accordingly, it does not alter the fact that certain issues are by their nature more suitable for determination by Government or Parliament than by the courts. In so far as issues of that character are relevant to an assessment of the compatibility of executive action or legislation with Convention rights, that is something which the courts can and do properly take into account. They do so by giving weight to the determination of those issues by the primary decision maker. There is nothing new about this point. It has often been articulated in the past by referring to a discretionary area of judgment. The question whether section 2 of the Suicide Act 1961 is incompatible with the Convention turns on whether the interference with article 8 rights is justified on the grounds which have been discussed. That issue raises highly controversial questions of social policy and, in the view of many, moral and religious questions on which there is no consensus. The nature of the issue therefore requires Parliament to be allowed a wide margin of judgment: the considered assessment of an issue of that nature, by an institution which is representative of the citizens of this country and democratically accountable to them, should normally be respected. That is not to say that the courts lack jurisdiction to determine the question: on the contrary, as I have explained. But it means that the courts should attach very considerable weight to Parliaments assessment. In the present case, I am far from persuaded that that assessment is unjustifiable under the Convention. That is not to say that it is inconceivable that the position could alter in the future: changes in social attitudes, or the evolution of the Convention jurisprudence, could bear on the application of the Convention in this context, as they have done in other contexts in the past. But that is not the position at present. LADY HALE There is so much in the comprehensive judgment of Lord Neuberger with which I entirely agree. He has shown that, even if the Strasbourg court would regard the issue before us as within the margin of appreciation which it accords to member states, it is within the jurisdiction accorded to this court under the Human Rights Act 1998 to decide whether the law is or is not compatible with the Convention rights recognised by UK law: Re G (Adoption: Unmarried Couple) [2009] 1 AC 173. Hence both he and Lord Wilson accept that, in the right case and at the right time, it would be open to this court to make a declaration that section 2 of the Suicide Act 1961 is incompatible with the right to respect for private life protected by article 8 of the European Convention on Human Rights. Understandably, however, they would prefer that Parliament have an opportunity of investigating, debating and deciding upon the issue before a court decides whether or not to make such a declaration. Lord Mance is also prepared to contemplate that possibility, although he too thinks Parliament the preferable forum in which any decision should be made (paras 190 191)). Together with Lord Kerr and I, who would make a declaration now, this constitutes a majority who consider that the court both can and should do this in an appropriate case. Lord Clarke (para 293) and Lord Sumption (para 233) might intervene but only if Parliament chooses not to debate the issue; otherwise, they, and Lord Reed and Lord Hughes, consider that this is a matter for Parliament alone. Like everyone else, I consider that Parliament is much the preferable forum in which the issue should be decided. Indeed, under our constitutional arrangements, it is the only forum in which a solution can be found which will render our law compatible with the Convention rights. None of us consider that section 2 can be read and given effect, under section 3(1) of the Human Rights Act 1998, in such a way as to remove any incompatibility with the rights of those who seek the assistance of others in order to commit suicide. However, in common with Lord Kerr, I have reached the firm conclusion that our law is not compatible with the Convention rights. Having reached that conclusion, I see little to be gained, and much to be lost, by refraining from making a declaration of incompatibility. Parliament is then free to cure that incompatibility, either by a remedial order under section 10 of the Act or (more probably in a case of this importance and sensitivity) by Act of Parliament, or to do nothing. It may do nothing, either because it does not share our view that the present law is incompatible, or because, as a sovereign Parliament, it considers an incompatible law preferable to any alternative. Why then is the present law incompatible? Not because it contains a general prohibition on assisting or encouraging suicide, but because it fails to admit of any exceptions. The problem with the present law is vividly illustrated by comparing the situation of people like Mr Nicklinson, Mr Lamb and Martin with that of Ms B: see Re B (Consent to Treatment: Capacity) [2002] EWHC 429 (Fam), [2002] 1 FLR 1090. Ms B was a professional woman in her forties, who became paralysed from the neck down as a result of a cervical cavernoma. She could move her head and use some of her neck muscles but could not move her torso, arms and legs at all. She was totally dependent upon her carers in the intensive care unit where she had been for a year. Her life was supported by artificial ventilation. Without it she would have a less than 1% chance of independent ventilation. And death would almost certainly follow. She wanted the ventilator turned off but her doctors refused to do so. She brought proceedings in the Family Division of the High Court seeking declarations that she had the mental capacity to choose whether or not to accept the treatment and that the hospital was treating her unlawfully, together with nominal damages to recognise the tort of trespass to her person. Dame Elizabeth Butler Sloss P granted her the remedies she sought. The principal question was whether she had capacity to consent to or refuse life sustaining treatment. If she had that capacity it was for her to make that decision for herself and not for her doctors to make it for her. It was irrelevant whether they or anyone else thought that continued treatment would be in her best interests. It is important to note that Ms B was entitled to refuse treatment without having to go to court. The hospital should have acceded to her wishes. The only valid reason for not doing so would be a reasonable doubt about whether she had the capacity to give or refuse her consent to life sustaining treatment. Had she lacked that capacity, the question would indeed have been governed by what was in her best interests. As she did have capacity, she was entitled to take whatever decision she wanted: it was for her to decide where her own best interests lay. The reason that she had to go to court was that her request for the machine to be turned off was seen by some of the people looking after her as killing her or assisting her to die and thus ethically unacceptable (para 97). But our law draws two crucial distinctions. The most important is between the positive and the negative, between killing and letting die, between taking active steps to end a patients life, even though this is what the patient herself earnestly desires, and withholding or withdrawing life sustaining medical treatment or intervention to which a patient refuses her consent (whether at the time or in advance). While this distinction may make sense to us, it must often make little sense, especially to those who suffer the cruel fate of paralysis: those who can breathe without artificial help are denied a choice which those who cannot do so may make, should they wish to do so. For some of the people looking after them, it will be a mystery why they must switch off the machine or withdraw artificial nutrition and hydration if this is what the patient wants, but they may not painlessly administer a lethal dose of medication which the patient wants just as much. The second distinction is between killing and helping someone to kill herself, between murder (or voluntary manslaughter) and assisting suicide. Both are crimes, but the latter is less serious than the former. The distinction between them is less clear cut than the distinction between killing and letting die, but it is nevertheless important. Mercy killing is the choice and the act of the person who kills, however benevolent the motive. Committing suicide is the choice and the act of the person who does it, and that person commits no crime. Hence, as Lord Neuberger explains, assisting suicide is a very unusual offence. In Pretty v United Kingdom (2002) 35 EHRR 1, disagreeing with the majority of the House of Lords in R (Pretty) v Director of Public Prosecutions [2001] UKHL 61, [2002] 1 AC 800, the Strasbourg court held that the right to respect for private life protected by article 8.1 of the European Convention on Human Rights was engaged by the prohibition of assisting suicide contained in section 2(1) of the Suicide Act 1961 (most clearly stated in para 86, referring back to paras 61 to 67). The court agreed with Lord Hope that the way she chooses to pass the closing moments of her life is part of the act of living, and she has the right to ask that this too must be respected (para 64). Since then, the Strasbourg court has been even clearer about what the right entails, in Haas v Switzerland (2011) 53 EHRR 33, at para 51 (repeated in Koch v Germany (2013) 56 EHRR 6, para 52, and Gross v Switzerland (2014) 58 EHRR 7, para 59): . an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. I agree with Lord Kerr that the court was not saying that the right to choose the manner and timing of ones death depends upon being physically capable of carrying out that choice without any assistance. Of course, it does not follow from a persons right to respect for her autonomous choices about how and when she wishes to die that she also has the right to demand to be provided with help from other people. It does not follow from the right to marry and found a family in article 12 of the Convention that a person has a right to be provided with a marriage partner. But it does follow from that right that the states right to place obstacles in the way of a person who does wish to become a marriage partner is severely limited. In Pretty, Haas, Koch and Gross, the Strasbourg court might have drawn a clear distinction between taking ones own life and having the help of another to do so. The court might have said that, while interfering with a persons right to take her own life would require justification under article 8.2, interfering with that persons freedom to receive the willing help of another in doing so did not require justification. But the court said no such thing. It went on in each case to consider the justifications advanced for interfering with the help which others might wish to give. And in the Gross case, it held that the interference was not justified. The House of Lords must have taken the same view in R (Purdy) v Director of Public Prosecutions [2009] UKHL 45, [2010] 1 AC 345, when it unanimously accepted that the prohibition of assisting suicide in section 2(1) of the Suicide Act 1961 was an interference with the article 8.1 rights of the would be suicide. Had it not been such an interference, there would have been no need to look for justification under article 8.2, and the requirement that the interference be in accordance with the law would not have arisen. This Court has not been invited to hold that Purdy was wrongly decided and I for one would not be prepared to do so. It must also follow that no distinction can be drawn between those who could do it all for themselves, but merely prefer to have some help, and those who cannot do it all for themselves. I agree entirely with Lord Kerr (at para 332 of his judgment) that that cannot have been what the Strasbourg Court meant by the reference to being capable of . acting in consequence of their freely reached decision. The action could include authorising others to act as well as taking action oneself. The question, therefore, remains as it has always been. Is an outright prohibition of such help a proportionate interference with the right of the individual to choose the manner and timing of her death? As is well known, to be justified, such interference has to be (i) for a legitimate aim which is important enough to justify interfering with a fundamental right, (ii) rationally connected to achieving that aim, (iii) no more than reasonably necessary to achieve it, and (iv) in the light of this, striking a fair balance between the rights of the individual and the interests of the community (see R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621, para 45; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2013] 3 WLR 179, 222, para 20). The only legitimate aim which has been advanced for this interference is the protection of vulnerable people, those who feel that their lives are worthless or that they are a burden to others and therefore that they ought to end their own lives even though they do not really want to. In terms of article 8.2, this could be put either as the protection of health or as the protection of the rights of others, the right in question being the most important right of all, the right to life protected by article 2. As Lord Sumption points out, an alternative aim might be advanced, as the protection of morals. Respect for the intrinsic value of all human life is probably the most important principle in Judaeo Christian morality. It would surely justify an absolute refusal to oblige any person to help another commit suicide. It would not so obviously justify prohibiting those who freely judged that, in the circumstances of a particular case, there was no moral impediment to their assisting suicide. Respect for individual autonomy and human dignity are also important moral principles. The very complexity of the moral argument, amply demonstrated in the material before this court, tells against relying upon this as the legitimate aim of the legislation. Is it then reasonably necessary to prohibit helping everyone who might want to end their own lives in order to protect those whom we regard as vulnerable to undue pressures to do so? I can understand the argument that it is: how does a person judge which pressures are undue and which are not? We can all understand why people placed in the situation of Mr Nicklinson, Mr Lamb, Martin or Ms B might wish an end to their suffering. But (as I ventured to point out in Purdy, at para 66) there are many other reasons why a person might consider it a sensible and reasonable thing to do. On what basis is it possible to distinguish some of those pressures from others? That problem is certainly enough to justify a general ban on assisting suicide. But it is difficult to accept that it is sufficient to justify a universal ban, a ban which forces people like Mr Nicklinson, Mr Lamb and Martin to stay alive, not for the sake of protecting themselves, but for the sake of protecting other people. In Pretty, the Strasbourg court rejected the argument that Mrs Pretty was suffering inhuman and degrading treatment contrary to article 3. But no one who has read the appellants accounts of their lives and their feelings can doubt that they experience the laws insistence that they stay alive for the sake of others as a form of cruelty. It would not be beyond the wit of a legal system to devise a process for identifying those people, those few people, who should be allowed help to end their own lives. There would be four essential requirements. They would firstly have to have the capacity to make the decision for themselves. They would secondly have to have reached the decision freely without undue influence from any quarter. They would thirdly have had to reach it with full knowledge of their situation, the options available to them, and the consequences of their decision: that is not the same, as Dame Elizabeth pointed out in Re B (Treatment), as having first hand experience of those options. And they would fourthly have to be unable, because of physical incapacity or frailty, to put that decision into effect without some help from others. I do not pretend that such cases would always be easy to decide, but the nature of the judgments involved would be no more difficult than those regularly required in the Court of Protection or the Family Division when cases such as Aintree University Hospitals NHS Trust v James [2013] 3 WLR 1299 or Re B (Treatment) come before them. I mention those courts as the decision makers, because they are accustomed to dealing with such sensitive life and death questions, some of them (as Lord Neuberger points out) even more dramatic than this. But other bodies, sufficiently neutral and independent of anyone involved with the applicant, and skilled at assessing evidence and competing arguments, could be envisaged. The task would differ from that of the Court of Protection when making decisions on behalf of people who lack capacity, in that there would be no discretion or assessment of the applicants best interests involved. The whole purpose of the procedure is to respect the autonomous choice of a person who has the capacity to make it. In that respect the task would be very similar to that of Dame Elizabeth Butler Sloss in Re B (Treatment). Were there to be such a procedure, it would appear to me to be more than sufficient to protect those vulnerable people whom the present universal prohibition is designed to protect. They simply would not meet the qualifications to be allowed help. The process would not be invoked and even if it were it would not succeed in securing them that help. It would be a more suitably targeted solution than any prosecution policy, however enlightened and humane, could ever be. It would have the merit of resolving the issue in advance rather than relying on ex post facto executive discretion to solve the problem (although it should not preclude the exercise of prosecutorial discretion in a case where prior authorisation had not been obtained). To the extent that the current universal prohibition prevents those who would qualify under such a procedure from securing the help they need, I consider that it is a disproportionate interference with their right to choose the time and manner of their deaths. It goes much further than is necessary to fulfil its stated aim of protecting the vulnerable. It fails to strike a fair balance between the rights of those who have freely chosen to commit suicide but are unable to do so without some assistance and the interests of the community as a whole. I understand that Lord Neuberger and Lord Wilson are receptive to that view in principle, but consider that this is not the right occasion or the right time to make a declaration of incompatibility. That is an entirely understandable view, given in particular the original focus of the cases of Mr Nicklinson and Mr Lamb on voluntary euthanasia rather than assisted suicide (as explained in full by Lord Mance). The sort of process which I have suggested above was scarcely touched upon, let alone explored, in evidence or argument. However, the question for us is one of principle rather than fact: once the principle is established, the question for the judge or other tribunal which is asked to authorise the assistance would be one of fact. He or she would have to be satisfied on the evidence that the applicant had freely reached a fully informed decision which she had the capacity to reach and needed the defined help which was available to enable her to put that decision into effect. It is at that point that the evidence relating, for example, to Dr Nitschkes machine, would become relevant and important. I also understand that Lord Mance would not rule out such a solution, but he considers that we lack the evidence, in particular about the risks to people who need the protection of this law, to justify departing from the view taken by the House of Lords in Pretty. It is worth remembering that the House took the view that article 8 was not engaged at all, and so the observations made about the justification for any interference were strictly obiter dicta. Furthermore, the assertions made about the need to protect vulnerable people were just that: they were no more based on solid evidence than were the assertions to the contrary made, for example, in Carter v Canada [2012] BCSC 886. Indeed, the experience of those few jurisdictions where assisted suicide is permitted provides some means of testing the case for a universal ban. In my view, the question is one of principle rather than evidence, and in principle it is the interference which requires justification rather than the limited exception which is suggested. The Carter case will be coming before the Supreme Court of Canada, probably later this year, and it will be interesting to see how they approach the issue. Left to myself, therefore, I would have allowed the first appeal and made a declaration that section 2(1) of the Suicide Act 1961 is incompatible with article 8, to the extent that it does not provide for any exception for people who have made a capacitous, free and fully informed decision to commit suicide but require help to do so. It seems to me that as a general rule, the prohibition is justified. It is the lack of any exception to meet the particular circumstances of the sorts of case before us that is incompatible. I agree with Lord Wilson (para 203) that it is legitimate to make a declaration even though a provision only sometimes operates incompatibly with the convention rights (as in Bellinger v Bellinger [2003] UKHL 21, [2003] 2 AC 467). I am, however, a little bit nervous about his list of factors (para 205), because factors are more readily associated with the exercise of a discretion, rather than an issue of fact, which I believe this to be, and some of them are a little suggestive of a best interests jurisdiction. But they are helpful in illustrating some of the factual matters which a decision maker might wish to explore in addressing the four essential requirements which I have outlined at para 314 above. Turning to the second appeal, the Director of Public Prosecutions is required by the order made in Purdy to clarify what facts and circumstances she will take into account in deciding whether a prosecution is in the public interest. I entirely agree with Lord Neuberger that she should reconsider her policy in the light of the difference of opinion as to its meaning which emerges from the judgments in the Court of Appeal. We were told on her behalf that the Lord Judge CJs interpretation of her policy was correct. If so, that should be made clear in the policy. People should be able to go to that policy, and not to the judgments in this court, in order to understand it. Left to myself, I would go further. It seems to me, as it seemed in Purdy, that the policy has two purposes. The first, and uncontroversial, purpose is to make the way in which decisions to prosecute will be taken sufficiently clear to meet the Convention requirement that the interference be in accordance with the law. This entails accessibility (hence the need to clarify the policy) and foreseeability, as well as consistency and lack of arbitrariness. We can debate endlessly what the Strasbourg court meant, at para 76 of Pretty (quoted by Lord Neuberger at para 32 above) by first stating that the Court does not consider therefore that the blanket nature of the ban on assisted suicide is disproportionate and going on to discuss the flexibility of enforcement in the next sentence. It might have been reverting to the non arbitrary requirement of legality. Or it might have been continuing its discussion of proportionality. I ventured to suggest in Purdy (paras 63 and 64) that the policy may have a part to play in securing that section 2(1) does not operate as a disproportionate interference with the right protected by article 8 and now so clearly articulated in Haas v Swizerland. The underlying theme of the factors which the DPP considers relevant to whether a prosecution will be in the public interest is clearly to identify the sort of cases which might be covered by the exception proposed above. The time may therefore be ripe for a review to see whether further progress can be made in that direction without offending against the constitutional prohibition of dispensing with the laws. But I agree that there is no need to make an order requiring the DPP to conduct a review. She will no doubt be considering the position in the light of the judgments in this Court and in the Court of Appeal. Hence, I would have allowed the appeal of Mrs Nicklinson and Mr Lamb and made the declaration of incompatibility outlined above. I am content to allow the Directors appeal and to dismiss the cross appeal in the case of Martin. I also wish to record my agreement with the important statements in para 255(2), (3), and (4) of Lord Sumptions judgment. I have, however, reservations about both the statements in paragraph 255(1), which may require some qualification or elaboration, especially in the light of Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] 1 AC 681, and Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2, [2012] 2 AC 72. A policeman is surely entitled to prevent a would be suicide from jumping off Westminster Bridge. I should perhaps add that my conclusion is not a question of imposing the personal opinions of professional judges. As already explained, we have no jurisdiction to impose anything: that is a matter for Parliament alone. We do have jurisdiction, and in some circumstances an obligation, to form a professional opinion, as judges, as to the content of the Convention rights and the compatibility of the present law with them. Our personal opinions, as human beings, on the morality of suicide do not come into it. LORD KERR I agree with Lord Neuberger, Lady Hale, Lord Mance, and Lord Wilson that this court has the constitutional authority to issue a declaration of incompatibility. In agreement with Lady Hale, I consider that there is no reason that we should refrain from doing so. The first appeal The overarching issue on the first appeal is whether section 2(1) of the Suicide Act 1961 is incompatible with the appellants rights under article 8 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). If it is incompatible, then it is the duty of this court to say so. That is a duty with which we have been charged by Parliament. And it is a duty from which we cannot be excused by considerations such as that the Director of Public Prosecutions can choose to implement the law in a way that will not infringe the appellants rights, or that Parliament has debated the issue and has decided not to repeal it. In making that declaration we do not usurp the role of Parliament. On the contrary, we do no more than what Parliament has required us to do. Scope of the right In Haas v Switzerland, (2011) 53 EHRR 33 at para 51 the European Court of Human Rights (ECtHR) said: the Court considers that an individuals right to decide by what means and at what point his or her life will end, provided he or she is capable of freely reaching a decision on this question and acting in consequence, is one of the aspects of the right to respect for private life within the meaning of article 8 of the Convention. This right against unjustified interference with the freedom to decide by what means and at what point his or her life will end does not impose a positive duty on the state. For it to amount to a positive duty there would have to be some claim that the state was required to furnish the assistance, rather than merely tolerate it. There is no question of the appellants claiming that they should be assisted by the state to do what they want to do. Affirming statements to like effect appear in para 52 of Koch v Germany (2013) 56 EHRR 6 and Gross v Switzerland (2014) 58 EHRR 7, paras 59 and 60. Nor does this right, contrary to what Lord Sumption suggests in paragraph 215 of his judgment, create a right for a third party to assist. The mere fact that giving effect to the right of the person wishing to receive assistance to die has as a corollary that the assister would not be prosecuted does not mean that the assister has a Convention right to so assist. If that were so, the assister would be able to claim independently that he was entitled to render such assistance. No one contemplates that. It is suggested that the words capable of acting in consequence were carefully devised to exclude from the ambit of article 8 those who are physically incapable of bringing about their desired death. I reject that suggestion. Had it been the Strasbourg courts intention to shut out from the application of article 8 those who wished to end their lives but were physically incapable of doing so, one would surely have expected to have that position explicitly stated and, more importantly, the reasons for it expressly articulated. If some mechanical means (which they could activate) of carrying out their wish was available, they would be capable of acting in consequence of their decision. It cannot seriously be suggested that they are incapable because no such mechanical means exists but that there is available to them willing and informed human intervention. The only sensible interpretation of this proviso, and the one that accords with common sense, is simply that the person should be capable of exercising free will at all stages of the process. Reaching a decision and acting in consequence are to be read as amounting to this, the emphasis being on freely rather than on a stepwise reading of what it is that one ought freely to be able to do. Being freely capable of acting on a decision to end ones life does not therefore mean being physically capable of so acting unaided. A person is just as capable of freely acting in consequence of his decision to end his life by recourse to informed and willing assistance to bring that about as he is by drawing exclusively on his own resources. If I wish to die and am physically unable to bring the medication that will end my life to my own lips but have someone who will do that for me, I am acting just as freely by having them do so as if the hand that bore the draught was my own. The starting point, therefore, is that the appellants have a right under article 8 of ECHR to end their lives and to have recourse to willing, informed assistance to bring about their wish. The test to be applied The essential question is therefore whether the interference with that right is justified. Justification of interference with a right to bring intolerable suffering to an end must be of a different order from that which will be required to warrant intervention in most species of article 8 rights. One should not fail to confront the stark reality of this. The appellants are condemned to a life bereft of pleasure or quality. They live in the knowledge of the distress that their condition and their own misery causes to those close to them. The nature of the interference in this case is not in dispute, and the test for whether it is justified is set out in the decisions of the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167 and of this court in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621. In the latter case, Lord Wilson said at para 45: In Huang v Secretary of State for the Home Department [2007] 2 AC 167, Lord Bingham of Cornhill suggested, at para 19, that in such a context four questions generally arise, namely: (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; and (d) do they strike a fair balance between the rights of the individual and the interests of the community? Before dealing with the substantive application of the test, however, it is necessary to deal with these preliminary questions about how this court should approach the task: (1) the constitutional relationship between the court and Parliament and (2) the standard of review. Margin of appreciation and the division of powers in the British constitution ECtHRs decision in Pretty was that the blanket ban on assisted suicide did not breach Mrs Prettys rights under article 8 of the Convention. But that does not mean that it was found to be proportionate. As Lord Sumption has said in para 218 of his judgment, the ban was capable of being justified because although it applied to many people who were not in need of protection, it was open to the United Kingdom to take the view that it had to apply generally in order to serve the needs of those who were. The fact that it was capable of being justified and that it was open to the United Kingdom to take the view that the provision had to apply generally was sufficient to withstand Strasbourgs scrutiny because their examination is carried out at one remove from that which this court must apply. The context in which justification is to be judged is different in the domestic setting. In R (G) (Adoption: Unmarried Couple) [2009] 1 AC 173 it was held that that a fixed rule which excluded unmarried couples from the process of being assessed as potential adoptive parents interfered with their article 8 and article 14 rights. In so finding, the House of Lords said that it should not be inhibited from going further than the European court had gone because a margin of appreciation was available to member states particularly in delicate areas of social policy. At para 32 Lord Hoffmann said: It must be remembered that the Strasbourg court is an international court, deciding whether a member state, as a state, has complied with its duty in international law to secure to everyone within its jurisdiction the rights and freedoms guaranteed by the Convention. Like all international tribunals, it is not concerned with the separation of powers within the member state. When it says that a question is within the margin of appreciation of a member state, it is not saying that the decision must be made by the legislature, the executive or the judiciary. That is a matter for the member state. Later in his speech, Lord Hoffmann discussed the reasons that courts of this country should normally follow Strasbourg jurisprudence, Then at paras 3638 he said this: But none of these considerations can apply in a case in which Strasbourg has deliberately declined to lay down an interpretation for all member states, as it does when it says that the question is within the margin of appreciation. 37. In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch. 38. It follows, my Lords, that the House is free to give, in the interpretation of the 1998 Act, what it considers to be a principled and rational interpretation to the concept of discrimination on grounds of marital status This court is likewise free (and, I would suggest, required) to give a principled and rational interpretation of section 2(1) of the 1961 Act and to determine whether its potential application goes beyond what is required in order to achieve what has been identified by the Strasbourg court in Pretty v United Kingdom, as its aim: to safeguard life by protecting the weak and vulnerable and especially those who are not in a condition to take informed decisions against acts intended to end life or to assist in ending life (para 74). An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with ECHR. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act it is open to Parliament to decide to do nothing. What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the courts view of the law. The remission of the issue to Parliament does not involve the courts making a moral choice which is properly within the province of the democratically elected legislature. Lastly in this regard, it is irrelevant to the compatibility of section 2(1) that Parliament has debated this issue a number of times without repealing that section. This is something that the court must determine on the basis of its own evaluation of the evidence. What Parliament has had to say is irrelevant to the courts decision, except in so far as it provides evidence which the court can independently evaluate. Standard of review Lord Mance has referred to the judgments of Arden LJ and Lord Neuberger MR in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] 2 QB 394. The passages from the judgments of Arden LJ and Lord Neuberger to which Lord Mance has alluded (paras 170 and 189) were concerned with the intensity of review of a policy measure of a European Community institution. In my view they cannot be applied to an assessment of proportionality in the present context. The cardinal factor in this case, as established in Re G (Adoption: Unmarried Couple), is the constitutional relationship between our court and the Parliament of the United Kingdom. But the more fundamental objection to this approach is that it appears to suggest that the courts assessment of whether a particular statutory provision is incompatible should be adjusted or, indeed, disavowed, according to the courts perception of whether it or the legislature can lay claim to greater expertise. It appears to me that this is fundamentally at odds with the courts duty under section 4 of the Human Rights Act. Of course, if the court feels that it does not have enough material or even, conceivably, sufficient expertise, to decide whether a particular measure is incompatible with a Convention right, it should decline to make the declaration. The view that Parliament might have the means to consider the issue more fully or on a broader canvas does not impel the conclusion that the courts should shy away from addressing the question whether the provision is incompatible with a Convention right, judged on the material that has been presented. On the contrary, such is the courts duty when presented with that claim. It would be wrong, of course, not to recognise that some forms of interference may present greater challenges than others in terms of justification which depends on practical or empirical evidence. And that it may not be appropriate to insist on evidence of that nature in such instances. The need for a particular measure may not be susceptible of categorical proof. This is especially true in the realm of social policy where the choice between fiercely competing and apparently equally tenable opinions may be difficult to make. In those circumstances a more nuanced approach is warranted to the question of whether the interference is proportional. This should not be confused, however, with deference to the so called institutional competence of the legislature. The courts approach in these difficult areas may call for a less exacting examination of the proffered justification. But this more generous attitude is not based on the view that Parliament is better placed to make a judgment on the need for the measure than is the court or that the court should therefore regard itself as inept to conduct an assessment of the incompatibility of the measure. Rather, it reflects the reality that choices in these areas are difficult to make and that it may not be easy to prove that the right choice has been made. Rational connection In para 215 of his judgment Lord Sumption has identified three points that are made in support of a general prohibition of assisted suicide. He dismisses the first two for reasons with which I agree and on which I do not need to dilate. The third argument, the so called pressure argument, is that which Lord Sumption finds persuasive. This is the argument which proposes that if assisted suicide was lawful, some people would be too ready to bring an end to their lives under real or perceived pressure from others. It is suggested that the great majority of people contemplating suicide for health related reasons are likely to be conscious that their disabilities, because they make them more dependent on others, would feel increased pressure because the legalisation of assisted suicide would be followed by its progressive normalisation. One needs to have a clear view of the nature of the susceptibility of the vulnerable in this area and how it can be said to be increased by making assisted suicide (provided that it is accompanied by appropriate safeguards) available. It is reasonable to assume that this vulnerable class of persons is composed of persons who are physically able to commit suicide. Why should they feel more vulnerable because those who cannot do so are enabled to bring their lives to an end? One can understand that those who consider themselves to be a burden might feel constrained to consider suicide because it no longer attracts the opprobrium that it once did. But why should they be more disposed to do so because of a law which permits those who want to, but cannot, commit suicide to avail of human assistance to bring about their desire? The two situations are not linked in any logical way. On that account I do not consider that it has been demonstrated that there is the necessary rational connection between the aim of the legislation and the interference with the article 8 right. Justification of an interference with a Convention right must be evidence based. In so far as the evidence goes, it conspicuously fails to support the proposition that permitting assisted suicide will increase pressure on the vulnerable and the elderly. Ruminations that this may be the consequence of a more nuanced provision cannot be a substitute for evidence or, at least, some rational basis on which the two circumstances may be found to be connected. Whether no more than necessary It is beyond dispute that section 2(1) applies to many people who are not in need of its protection and who are prejudiced by its application to them. Unless it could be shown that the protection of the vulnerable group could only be achieved by drawing the provision as widely as it has been drawn, it is disproportionate to apply it to a category of persons whose Convention rights are violated in consequence. While, in these appeals, it may not be easy to show, by reference to empirical data, that the protection of vulnerable individuals requires the blanket provision in section 2(1), some basis at least for proposing that it is required must be established. Nothing in the case advanced by the respondent establishes that the appellants inclusion in the group affected was unavoidable to protect the vulnerable group. In the absence of evidenceor at least a tenable basis on which it might be assertedthat this was required, it is impossible to conclude that the interference with the appellants rights is proportionate. In para 112 of his judgment, Lord Neuberger has said, [W]e could properly hold that section 2 infringed article 8. But, he said in para 120, Before we could uphold [that] contention we would have to [be] satisfied that there was a physically and administratively feasible and robust system whereby Applicants could be assisted to kill themselves, and that the reasonable concerns expressed by the Secretary of State were sufficiently met so as to render the absolute ban on suicide disproportionate. I do not agree that a fully formed, guaranteed to function, less intrusive means of achieving the objective must be established in order to demonstrate the disproportionality of the provision. The imposition of such a requirement would herald a significant circumscription on the operation of the principle of proportionality generally. It is entirely possible to assert that a particular provision would go beyond what it seeks to achieve without having to describe the details of a more tailored measure that would attain that aim. The present case exemplifies and supports that proposition. If it is the case that it is unnecessary, in order to protect those who are vulnerable, to legally forbid those who are incapable of bringing their lives to an end from seeking assistance to do so, why should it be compulsory to show that a more targeted provision is possible? The measure must be intrinsically proportionate. It cannot assert that its proportionality is established by the absence of a viable, less intrusive alternative. If it is disproportionate measured by its capacity to achieve its own purpose, it cannot be saved from that condition by the claim that a less intrusive restriction that would have excluded the appellants has not been articulated. In any event, if it is necessary to conceive of a less intrusive means of protecting the vulnerable in order to find a lack of proportionality in the present law, this is not difficult to find. As Lord Neuberger has pointed out in para 124, the High Court has for more than 25 years sanctioned the bringing to an end of life. Why should it not do so in relation to the type of case with which we are concerned here? It can, of course, be said that this was not examined in any detail during any of the stages that this appeal has passed through. That, I believe, is not the point. If we are concerned with whether an alternative to the present scheme for the protection of the vulnerable is viable, this does not require a close examination of the precise conditions in which such an alternative would operate. To suggest that detailed evidence is required of how such a system would function is to erect an uncalled for hurdle in the way of the inescapable conclusion that an arrangement could undoubtedly be devised that would ensure sufficient protection of the vulnerable. Although the majority of the member states of the Council of Europe prohibit any form of assisted suicide, there is no evidence that in those states which permit it there has been any increase in pressure or exploitation of the position of elderly and vulnerable individuals. Similarly, in other parts of the world such as some of the states in America which permit assisted suicide, no evidence has emerged of the vulnerable, the disadvantaged or the elderly being oppressed. I do not consider, therefore, that there is any reason to conclude that the legitimate aim of protecting members of our society from pressure to commit or contemplate suicide can only be fulfilled by preservation of the law in its present state. I would therefore make a declaration of incompatibility on this basis. Fair balance Section 2(1) does not strike a fair balance between, on the one hand, the rights of those who wish to, but who are physically incapable of, bringing their lives to an end and, on the other, the interests of the community as a whole. Section 2(1) is a yoke from which the appellants yearn to be free. No one has offered a reason that the interests of the community should outweigh that earnest desire beyond that the sanctity of life entails its inviolability by an outsider as Hoffmann LJ put it in Airedale NHS Trust v Bland [1993] AC 789, 831. But what does that mean? A person who is prepared to assist someone who is physically incapable of bringing about the end of his life can hardly be described as an outsider. More importantly, is the sanctity of life protected or enhanced by insisting that those who freely wish to but are physically incapable of bringing their lives to an end, should be required to endure untold misery until a so called natural death overtakes them? I agree with Lord Neuberger that if the store put on the sanctity of life cannot justify a ban on suicide by the able bodied, it is difficult to see how it can justify prohibiting a physically incapable person from seeking assistance to bring about the end of their life. As one of the witnesses for one of the interveners, the British Humanist Association, Professor Blackburn, said, there is no defensible moral principle in denying the appellants the means of achieving what, under article 8 and by all the requirements of compassion and humanity, they should be entitled to do. To insist that these unfortunate individuals should continue to endure the misery that is their lot is not to champion the sanctity of life; it is to coerce them to endure unspeakable suffering. In paras 9094 of his judgment Lord Neuberger considers an argument based on rather different moral considerations. As he has pointed out, this was not covered in the submissions made to the court. It is to the effect that while it may be morally acceptable for a person to set up a system that would allow someone to bring about his death, it is morally unacceptable that an assister should carry out the act which causes the death. It may be true, as Lord Neuberger has said, that the law makes a significant difference between the two situations. But if there are sufficient safeguards in place to ensure that the outcome represents the voluntary, clear, settled and informed wish of the assisted person (and this must underpin the assistance in either form), I question whether there is as clear a moral distinction as Lord Neuberger seeks to draw. If one may describe the actual administration of the fatal dose as active assistance and the setting up of a system which can be activated by the assisted person as passive assistance, what is the moral objection to a person actively assisting someones death, if passive assistance is acceptable? Why should active assistance give rise to moral corruption on the part of the assister (or, for that matter, society as a whole), but passive assistance not? In both cases the assisters aid to the person who wishes to die is based on the same conscientious and moral foundation. That it is that they are doing what the person they assist cannot do; providing them with the means to bring about their wished for death. I cannot detect the moral distinction between the individual who brings a fatal dose to their beloveds lips from the person who sets up a system that allows their beloved to activate the release of the fatal dose by the blink of an eye. Quite apart from the lack of any rational connection between the terms of section 2(1) and its aims, and its failure to do no more than necessary to achieve those aims, I would in any case make a declaration of incompatibility on the basis that it does not strike a fair balance between the appellants rights and those of the community. The second appeal Having concluded that section 2(1) is incompatible with ECHR, I am driven to conclude that it cannot be transformed into a condition of compatibility by guidelines issued by the Director of Public Prosecutions. Even if, as a matter of practical application, the section could be operated in a way that did not give rise to breach of an individuals Convention rights, this could not redeem it from its state of incompatibility. If a provision of an Act of Parliament is incompatible with an applicants Convention right, this is a matter for Parliament. It is an elementary constitutional principle that the executive cannot correct the meaning out of an Act of Parliament. As Lord Browne Wilkinson said in R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, 552: It is for Parliament, not the executive, to repeal legislation. That elementary principle is founded in turn on the distinct powers and responsibilities of Parliament and the executive. These are clearly reflected in the scheme of the Human Rights Act, which above all treats legislation and executive action entirely separately. Its treatment of primary legislation is self contained: if it is incompatible, the court must issue a declaration of incompatibility. There is no scope for avoiding that obligation by requiring an executive agency to apply the incompatible provision in a way that avoids an actual violation of the Convention right. The ethos of the Human Rights Act is to direct remedies to the true source of the incompatibility. The court cannot avoid recognition of the incompatibility by having executive guidance reworked. I would therefore allow the Directors appeal and dismiss Martins cross appeal.

These appeals arise from tragic facts and raise difficult and significant issues, namely whether the present state of the law of England and Wales relating to assisting suicide infringes the European Convention on Human Rights (the Convention), and whether the code published by the Director of Public Prosecutions (the DPP) relating to prosecutions of those who are alleged to have assisted suicide is lawful. Until 1961 suicide was a crime in England and Wales and encouraging or assisting a suicide was therefore also a crime. By section 1 of the Suicide Act 1961, suicide ceased to be a crime. However, section 2 of that Act (Section 2) provided that encouraging or assisting a suicide remained a crime, carrying a maximum sentence of 14 years in prison, but that no prosecutions could be brought without the permission of the DPP. Section 2 was amended by Parliament in 2009, but its basic effect remains unchanged. Following a decision of the House of Lords in 2009, the DPP published Policy for Prosecutors in respect of Cases of Encouraging or Assisting Suicide (the 2010 guidelines) setting out his policy in relation to prosecutions under Section 2. In the first appeal, Mr Nicklinson suffered a catastrophic stroke some nine years ago, since when he was completely paralysed, save that he could move his head and his eyes. For many years, he had wanted to end his life, but could not do so without assistance, other than by self starvation, a protracted, painful and distressing exercise. He wanted someone to kill him by injecting him with a lethal drug, but if necessary he was prepared to kill himself by means of a machine invented by a Dr Nitschke which, after being loaded with a lethal drug, could be digitally activated by Mr Nicklinson, using a pass phrase, via an eye blink computer. Mr Nicklinson applied to the High Court for (i) a declaration that it would be lawful for a doctor to kill him or to assist him in terminating his life, or, if that was refused, (ii) a declaration that the current state of the law in that connection was incompatible with his right to a private life under article 8 of the Convention (Article 8). The High Court refused Mr Nicklinson both forms of relief; he then declined all food and died of pneumonia on 22 August 2012. Mr Nicklinsons wife, Jane, was then added as a party to the proceedings and pursued an appeal. Mr Lamb was added as a claimant in the Court of Appeal. Since a car crash in 1991, Mr Lamb has been unable to move anything except his right hand. His condition is irreversible, and he wishes to end his life. He applied for the same relief sought by Mr Nicklinson. The Court of Appeal dismissed the appeal brought by Mr Nicklinson and Mr Lamb. In the second appeal an individual known as Martin suffered a brainstem stroke in August 2008; he is almost completely unable to move and his condition is incurable. Martin wishes to end his life by travelling to Switzerland to make use of the Dignitas service, which, lawfully under Swiss law, enables people who wish to die to do so. Martin began proceedings seeking an order that the DPP should clarify, and modify, his the 2010 Policy to enable responsible people such as carers to know that they could assist Martin in committing suicide through Dignitas, without the risk of being prosecuted. Martins claim failed in the High Court, but his appeal was partially successful, in that the Court of Appeal held that the 2010 Policy was not sufficiently clear in relation to healthcare professionals. Mrs Nicklinson and Mr Lamb have appealed to the Supreme Court in the first appeal and the DPP has appealed and Martin has cross appealed in the second appeal. The Supreme Court, by a majority of seven to two dismisses the appeal brought by Mr Nicklinson and Mr Lamb. It unanimously allows the appeal brought by the DPP, and dismisses the cross appeal brought by Martin. Each of the nine Justices gives a judgment. On the first appeal, the Supreme Court unanimously holds that the question whether the current law on assisted suicide is incompatible with Article 8 lies within the United Kingdoms margin of appreciation, and is therefore a question for the United Kingdom to decide. Five Justices (Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) hold that the court has the constitutional authority to make a declaration that the general prohibition on assisted suicide in Section 2 is incompatible with Article 8. Of those five, Lord Neuberger, Lord Mance and Lord Wilson decline to grant a declaration of incompatibility in these proceedings, but Lady Hale and Lord Kerr would have done so. Four Justices (Lord Clarke, Lord Sumption, Lord Reed and Lord Hughes) conclude that the question whether the current law on assisting suicide is compatible with Article 8 involves a consideration of issues which Parliament is inherently better qualified than the courts to assess, and that under present circumstances the courts should respect Parliaments assessment. On the second appeal, the Supreme Court unanimously allows the DPPs appeal. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case are all proper and constitutionally necessary features of the system of prosecution in the public interest. In light of the Supreme Courts conclusion on the second appeal, Martins cross appeal does not arise. The first appeal: is the present law on assisting suicide incompatible with Article 8? The Supreme Court unanimously holds that, according to the case law of the European Court of Human Rights, the question whether to impose a general ban on assisted suicide lies within the margin of appreciation of the United Kingdom [66, 154, 218, 267, 339]. Whether the current law is incompatible with Article 8 is, therefore, a domestic question for the United Kingdom courts to decide under the Human Rights Act 1998. It is also the unanimous view of the court that Section 2 engages Article 8, as it prevents people who are physically unable to commit suicide without assistance from determining how and when they should die. Accordingly, it can only be a justified interference if it satisfies the requirements of Article 8(2), ie that it is necessary in a democratic society for one or more of the purposes specified in that article, which in the present context would be for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others [79, 159, 216, 335]. Lord Neuberger, Lady Hale, Lord Mance, Lord Kerr and Lord Wilson hold that, within the constitutional settlement of the United Kingdom, the court has the constitutional authority to make a declaration of incompatibility in relation to the blanket ban on assisted suicide [76, 191, 299, 326]. Lord Neuberger, Lord Mance and Lord Wilson conclude that, while the question of assisted suicide is a difficult, sensitive and controversial issue on which great significance will be attached to the judgment of the democratically informed legislature, this does not mean that the legislative judgment is necessarily determinative [76, 191]. However, while the sensitive and controversial nature of this issue does not justify the court ruling out the possibility that it could make a declaration of incompatibility, it would be inappropriate for a court to decide whether Section 2 is incompatible with Article 8 before giving Parliament the opportunity to consider the position in the light of this judgment [116]. The main justification advanced for an absolute prohibition on assisted suicide is the perceived risk to the lives of vulnerable individuals who might feel themselves a burden to their family, friends or society and might, if assisted suicide were permitted, be persuaded or convince themselves that they should undertake it, when they would not otherwise do so [81, 171]. A system whereby a judge or other independent assessor is satisfied in advance that someone has a voluntary, clear, settled and informed wish to die and for his or her suicide then to be organised in an open and professional way would arguably provide greater and more satisfactory protection for the vulnerable, than a system which involves a lawyer from the DPPs office inquiring, after the event, whether the person who had killed himself or herself had such a wish [108, 186]. The interference with Mr Nicklinsons and Mr Lambs Article 8 rights is grave and the arguments in favour of the current law are by no means overwhelming [111]. However, even had it been appropriate to issue a declaration of incompatibility at this time, Lord Neuberger, Lord Mance and Lord Wilson would not make a declaration in these proceedings. In the courts below the main focus was on Mr Nicklinsons submissions that necessity should be recognised as a defence to murder, whereas before the Supreme Court the case advanced was that a machine like Dr Nitschkes would offer a feasible means of suicide for those who have an autonomous wish but require assistance to do so. They are not confident that the court has the necessary evidence on, or that the courts below or the Secretary of State has had a proper opportunity to address, this issue [119 121, 153]. Lady Hale and Lord Kerr would have issued a declaration of incompatibility. It is clear that Article 8 confers a right on an individual to decide by what means and at what point his or her life will end, provided that he or she is capable of freely reaching a decision. They hold that, in making no exception for those whose expressed wish to die reflects an autonomous desire rather than undue pressure, the current ban on assisting suicide is incompatible with Article 8 [300, 326]. Lady Hale draws attention to the similarity between a procedure for identifying those who have made such an autonomous decision but require some help to carry it out and other life and death decisions currently made in the Family Division of the High Court and the Court of Protection. Lord Kerr emphasises that when courts make a declaration of incompatibility, they do precisely what Parliament, through the Human Rights Act 1998, has empowered them to do, and remit the issue to Parliament for a political decision informed by the courts view of the law [343]. The remission of the issue to Parliament does not involve the court making a moral choice which is properly within the province of the democratically elected legislature [344]. Lord Kerr would also hold that there was no rational connection between the aim of Section 2(1) and the interference with the Article 8 right [350]. Lord Sumption, Lord Hughes, Lord Reed and Lord Clarke accept that the courts have jurisdiction under the Human Rights Act to determine whether the current universal ban on assisting suicide is compatible with Article 8, but consider that the question turns on issues which Parliament is in principle better qualified to decide, and that under present circumstances the courts should respect Parliaments assessment. The question requires a judgment about the relative importance of the right to commit suicide and the right of the vulnerable, especially the old and sick, to be protected from direct or indirect pressure to do so. It is unlikely that the risk of such pressure can ever be wholly eliminated. Therefore the real question is how much risk to the vulnerable is acceptable in order to facilitate suicide by others who are free of such pressure or more resistant to it. This involves important elements of social policy and a moral value judgment, which are inherently more suitable for decision by Parliament as the representative organ of the constitution. This is for three reasons: (1) the issue involves a choice between two fundamental but mutually inconsistent moral values, the sanctity of life and the principle of autonomy, which are sensitive to a societys most fundamental collective moral and social values and upon which there is no consensus in our society, (2) Parliament has made the relevant choice on a number of occasions in recent years, and (3) the Parliamentary process is a better way of resolving issues involving controversial and complex questions of fact arising out of moral and social dilemmas in a manner which allows all interests and opinions to be expressed and considered [228 232]. The second appeal: is the 2010 Policy lawful? The Supreme Court unanimously allows the DPPs appeal. Section 2(4) of the Suicide Act 1961 precludes any prosecution of a person who has allegedly contravened Section 2 without the DPPs consent [39]. It is one thing for the court to decide that the DPP must publish a policy, and quite another for the court to dictate what should be in that policy [141]. The exercise of judgment by the DPP, the variety of relevant factors, and the need to vary the weight to be attached to them according to the circumstances of each individual case, are all proper and constitutionally necessary features of the system of prosecution in the public interest [249, 271]. During these proceedings, counsel for the DPP indicated that under the 2010 Policy a stranger who is not profiteering from his or her action, but assisting to provide services which, if provided by a close relative, would not attract a prosecution, was most unlikely to be prosecuted. The Director will be able to consider further whether that indication should stand and whether, if so, the 2010 Policy needs amendment, without it being appropriate to order her to undertake any such review [146, 193, 251 and 323]. In light of the courts conclusion on the second appeal, Martins cross appeal does not arise. Further observations Lord Sumption summarises [255(2), (3) and (4)] the principal respects in which the law already allows for the alleviation of suffering in the terminally ill, in view of the fact that they appear to be widely misunderstood. These paragraphs are specifically endorsed by Lord Neuberger [137], Lady Hale [324] and Lord Mance [194].

long

This has proved an unusually difficult case to resolve. Not only are the substantive issues, relating to the compatibility of abortion law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the ECHR or the Convention), of considerable depth and sensitivity; but there is also the procedural issue raised by the Attorney General for Northern Ireland, who challenges the standing of the Northern Ireland Human Rights Commission (NIHRC) to bring these proceedings. The court is divided on both questions, but in different ways. On the substantive compatibility issues, a majority Lord Mance, Lord Kerr, Lord Wilson and I hold that the current law is incompatible with the right to respect for private and family life, guaranteed by article 8 of the Convention, insofar as it prohibits abortion in cases of rape, incest and fatal foetal abnormality. Lady Black agrees with that holding in the case of fatal foetal abnormality. Lord Kerr and Lord Wilson also hold that it is incompatible with the right not to be subjected to inhuman or degrading treatment, guaranteed by article 3 of the Convention. Lord Reed and Lord Lloyd Jones hold that the law is not incompatible with either article 8 or article On the procedural issue, a majority Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones hold that the NIHRC does not have standing to bring these proceedings and accordingly that this court has no jurisdiction to make a declaration of incompatibility to reflect the majority view on the compatibility issues. A minority Lord Kerr, Lord Wilson and I hold that the NIHRC does have standing and would have made a declaration of incompatibility. In these unusual circumstances, it is not possible to follow our usual practice and identify a single lead judgment which represents the majority view on all issues. We have therefore decided to revert to the previous practice of the appellate committee of the House of Lords and print the judgments in order of seniority. It is for that reason only that my judgment comes first. Far more substantial judgments on all issues follow from Lord Mance and Lord Kerr. Introduction The substantive questions in this case are legal issues specifically related to the implementation in UK law, by the Human Rights Act 1998 (HRA), of the ECHR, which in turn has to be interpreted in the light of other international treaties to which the UK is a party, in this case the United Nations Convention on the Elimination of All Forms of Discrimination against Women 1979 (CEDAW) and the United Nations Convention on the Rights of Persons with Disabilities 2006 (CRPD). Moral and political issues, important though they undoubtedly are, are relevant only to the extent that they are relevant to the legal issues which have to be resolved. The starting point for any discussion of the legal issues has to be the right of all human beings, male and female, to decide what shall be done with their own bodies. This right has long been recognised by the common law: it is the reason why consent is needed for invasive medical treatment however well intentioned: see Montgomery v Lanarkshire Health Board (General Medical Council intervening) [2015] AC 1430. It is also recognised by the ECHR: see Pretty v United Kingdom (2002) 35 EHRR 1, where it was said that the notion of personal autonomy is an important principle underlying the interpretation of its guarantees (para 61). For many women, becoming pregnant is an expression of that autonomy, the fulfilment of a deep felt desire. But for those women who become pregnant, or who are obliged to carry a pregnancy to term, against their will there can be few greater invasions of their autonomy and bodily integrity. The point is vividly made in Professor Thomsons famous article (A Defence of Abortion, reprinted in R M Dworkin (ed), The Philosophy of Law): You wake up in the morning and find yourself back to back in bed with an unconscious violinist. A famous unconscious violinist. He has been found to have a fatal kidney ailment, and the Society of Music Lovers has canvassed all the available medical records and found that you alone have the right blood type to help. They have therefore kidnapped you, and last night the violinists circulatory system was plugged into yours, so that your kidneys can be used to extract poisons from his blood as well as your own. The director of the hospital now tells you, Look, were sorry the Society of Music Lovers did this to you we would never have permitted it had we known. But still, they did it, and the violinist is now plugged into you. To unplug you would be to kill him. But never mind, its only for nine months. By then he will have recovered from his ailment, and can be safely unplugged from you. There can be no doubt that the grossest invasion of your legal rights has taken place: the question is whether you are now under a legal duty to endure that invasion for the next nine months. By definition we are here considering the cases of women and girls who either did not want to become pregnant at all, or having experienced the joy of a wanted pregnancy, have reached the agonising conclusion that because of the foetal abnormalities, they do not wish to carry the pregnancy to term. There will of course be women who decide that they do wish to continue the pregnancy despite the circumstances. Any woman or girl who finds herself in such a situation and wants an abortion will have made her own moral choice, often a very difficult moral choice. The question is whether others, many of whom will never be placed in that situation, are entitled to make a different moral choice for her, and impose upon her a legal obligation to carry the pregnancy to term. The present law, contained in sections 58 and 59 of the Offences Against the Person Act 1861, an Act of the UK Parliament, and section 25(1) of the Criminal Justice Act (NI) 1945, an Act of the Northern Ireland legislature, does impose that obligation upon her, unless there is a risk to her life or of serious long term or permanent injury to her physical or mental health. Indeed, it does more than that. It has, as the United Nations Committee on the Elimination of Discrimination against Women has recently pointed out, a chilling effect upon clinicians, who are reluctant to discuss the options for fear of being thought to aid, abet, counsel or procure an abortion which might be unlawful. It also discourages women who have had abortions, lawful or unlawful, from seeking proper after care, because of section 5 of the Criminal Law Act (NI) 1967: anyone who knows or believes that an offence has been committed and has information which might be of material assistance in securing the apprehension, prosecution, or conviction of the person who committed it, commits an offence if they fail without reasonable excuse to give that information to the police within a reasonable time. The Departmental Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland (March 2016) draws professionals attention to both these risks. The Royal Colleges of Obstetricians and Gynaecologists, of Midwives and of Nursing described the 2013 draft as intimidating for women and for professionals and the CEDAW Committee found that the finalised Guidance perpetuates such intimidation (Report of the inquiry concerning the United Kingdom of Great Britain and Northern Ireland under article 8 of the Optional Protocol to the Convention on the Elimination of All Forms of Discrimination against Women, CEDAW/C/OP.8/GBR/1, published 23 February 2018, para 18). This being the state of the law in Northern Ireland, it is not suggested that this Court can strike it down or interpret it out of existence. The only question is whether it is incompatible with either article 3 or article 8 of the ECHR and whether the Court both can and should declare it so. The first question, therefore, is whether the NIHRC has standing to bring these proceedings. Standing This is an arid question, because there is no doubt that the NIHRC could readily have found women who either are or would be victims of an unlawful act under the Human Rights Act 1998 and either supported or intervened in proceedings brought by those women. The relevant sections of the Northern Ireland Act 1998, which established the Commission, are set out in full in paras 48, 49 and 50 of Lord Mances judgment. Under section 69(5) of the Northern Ireland Act 1998, the NIHRC may do two things: the first is to give assistance to individuals in accordance with section 70 (section 69(5)(a)). Section 70 applies to proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has brought or wishes to bring (section 70(1)(a)) or proceedings in which such a person relies or wishes to rely on such law or practice (section 70(1)(b)). This will clearly encompass, not only actions brought under section 7(1)(a) of the HRA, but also other proceedings in which a person wishes to rely on the HRA; the latter must include cases such as Ghaidan v Godin Mendoza [2004] 2 AC 557, in which there was no suggestion of an unlawful act by a public authority but the court was being asked to construe certain provisions of the Rent Act 1977 compatibly with the Convention rights. The second thing that the NIHRC may do is to bring proceedings involving law or practice relating to the protection of human rights (section 69(5)(b)). Unlike section 69(5)(a), there is no cross reference to another section of the Act which might limit the breadth of that power. Nevertheless, it is argued that the power is limited by section 71, which is headed Restrictions on application of rights. The first thing to notice about section 71 is that it is directed to sections 6(2)(c) or 24(1)(a) of the Northern Ireland Act (set out in para 51 of Lord Mances judgment). Section 71(1) provides that nothing in those sections shall enable a person to bring any proceedings on the ground that any legislation or act is incompatible with the Convention rights or to rely on any of the Convention rights in any such proceedings unless he would be regarded as a victim of the legislation or act in the European Court of Human Rights in Strasbourg. Section 6(2)(c) provides that an Act of the Northern Ireland Assembly is outside its competence (and thus not law under section 6(2)) if it is incompatible with any of the Convention rights. Section 71(3) limits the scope of that prohibition. Section 24(1)(a) provides that a Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with any of the Convention rights. Section 71(4) similarly limits the scope of that prohibition. The aim of section 71(1) was thus to prevent private persons bringing proceedings to challenge Acts of the Assembly, subordinate Northern Irish legislation or executive acts unless they could claim to be victims. But, under section 71(2), the principal Law Officers of England, Northern Ireland and Scotland could bring such proceedings. It is not clear why the original version of section 71(1) (set out in para 175 of Lord Kerrs judgment) referred to section 69(5)(b), but it had the effect of preventing the NIHRC bringing proceedings to challenge any legislation or act, because the NIHRC could never (or hardly ever) claim to be a victim of such legislation or act. That defect was recognised by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 and the problem dealt with by deleting the reference to section 69(5)(b) in section 71(1) and expressly providing in section 71(2A) that the prohibition did not apply to the NIHRC. It is clear, therefore, that the NIHRC has power to challenge any legislation or act without being its victim. Sections 71(2B) and (2C) go on to deal with the Commissions instituting or intervening in human rights proceedings. Section 71(2B)(a) makes it clear that the Commission itself need not be a victim of the unlawful act to which the proceedings relate. But section 71(2B)(c) provides that the Commission may act only if there is or would be one or more victims of the unlawful act. By section 71(2C) human rights proceedings means proceedings under section 7(1)(b) of the HRA or under section 69(5)(b) of the Northern Ireland Act. Section 7(1)(b) refers to claims that a public authority has acted or proposes to act incompatibly with a Convention right, which claims may be relied on in any legal proceedings, but only if the person making the claim is or would be a victim of the unlawful act. Construing the subsection as a whole, the reference to proceedings under section 69(5)(b) must mean proceedings brought by the NIHRC claiming that a public authority has acted or proposes to act incompatibly with a Convention right. It then makes perfect sense for section 71(2B)(c) to provide that the NIHRC can only bring proceedings in respect of an unlawful act if there is or would be a real victim of such an act. But we know that the Human Rights Act provides two different methods of seeking to ensure compliance with the Convention rights. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to section 7(1) of the HRA. The other is to challenge the compatibility of legislation under sections 3 and 4 of the HRA, irrespective of whether there has been any unlawful act by a public authority. This may be done in proceedings between private persons, as in Wilson v First County Trust (No 2) [2004] 1 AC 816 and Ghaidan v Godin Mendoza. But it may also be done in judicial review proceedings brought by person with sufficient standing to do so. A current example is Steinfeld v Secretary of State for Education [2017] 3 WLR 1237, where the provisions in the Civil Partnership Act 2004 limiting civil partnerships to same sex couples are under challenge. The NIHRC clearly has standing to bring such proceedings by virtue of section 69(5)(b). In my view, therefore, section 71(2B) and (2C) are dealing only with proceedings brought by the NIHRC, or interventions by the NIHRC in proceedings brought by others, in respect of claims that a public authority has acted or proposes to act unlawfully. Not surprisingly it requires that there be an identifiable victim of such an unlawful act. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation of any sort under sections 3 and 4 of the HRA. This would be clearer still if the words if any were inserted after unlawful act in section 71(2B)(c), but it is in my view clear that the unlawful act means the unlawful act alleged in the proceedings, so it does not apply where no such unlawful act is alleged. For the reasons given by Lord Kerr, it would be very surprising if it did limit the NIHRCs power to bring such a challenge. It is to my mind clear that the Equality and Human Rights Commission in Great Britain, albeit operating under different legislation (set out in para 63 of Lord Mances judgment), does have that power, so there can be no objection in principle. Article 8 I propose first to address the compatibility of Northern Ireland abortion law with article 8 of the ECHR, because it is common ground that the current law is indeed an interference with the right of pregnant women and girls to respect for their private lives which is guaranteed by article 8(1). The question is whether in terms of article 8(2) it is justified because it is in accordance with the law and is necessary in a democratic society for the protection of health or morals, or for the protection of the rights and freedoms of others. In answering the second part of that question, it is now customary to ask whether the measure in question has a legitimate aim, is rationally connected to that aim, and is a proportionate means of achieving it. For the reasons given by Lord Kerr and Lord Mance, I agree that such interference is not justified, but would like to make a few points of my own. Although the current state of the law has been criticised for its lack of clarity and is certainly not as clear as is the law in the rest of the UK it is no more uncertain than many other areas of the law which rely upon the application of particular concepts in this case a risk to life or of serious and prolonged or permanent injury to physical or mental health to the facts of a particular case. It is also sufficiently accessible to those affected by it for the interference to be in accordance with the law for this purpose. It is more difficult to articulate the legitimate aim. It cannot be protecting the rights and freedoms of others, because the unborn are not the holders of rights under the Convention (Vo v France (2004) 40 EHRR 12) or under domestic law (In re MB (Medical Treatment) [1997] 2 FLR 426). But the community undoubtedly does have a moral interest in protecting the life, health and welfare of the unborn it is that interest which underlies many areas of the law, including the regulation of assisted reproduction, and of the practice of midwifery, as well as of the termination of pregnancy. But the community also has an interest in protecting the life, health and welfare of the pregnant woman that interest also underlies the regulation of assisted reproduction, of midwifery and of the termination of pregnancy. And pregnant women are undoubtedly rights holders under the both the Convention and domestic law with autonomy as well as health and welfare rights. The question, therefore, is how the balance is to be struck between the two. Where there is no consensus of opinion among the member states of the European Union, the Strasbourg court will usually allow individual member states a wide (though not unlimited) margin of appreciation when undertaking such balancing exercises. In A, B and C v Ireland (2010) 53 EHRR 13, the majority of the Grand Chamber of the Strasbourg court took the unusual step of holding that the margin of appreciation allowed to Ireland had not been decisively narrowed, despite the existence of a consensus amongst a substantial majority of the contracting States allowing abortion on wider grounds than those allowed under Irish law (which was and, for the time being at least, remains even narrower than the law in Northern Ireland). The majority felt able to do this because the prohibition was based on the profound moral views of the Irish people as to the nature of life and women had the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland (para 241). The minority (of six) pointed out that this was the first time that the court had disregarded a European consensus on the basis of profound moral views and considered it a real and dangerous new departure, even assuming those views were still well embedded in the conscience of the Irish people (para O III11). Two of the women in the A, B and C case were seeking abortions on what were described as health and well being grounds: the majority found no violation. The third was concerned that continuing her pregnancy might endanger her life because she had cancer: the Court found a violation of the States positive obligation to secure effective respect for her private life because there was no accessible and effective procedure by which she could have established whether she qualified for a lawful abortion in Ireland. The position in this case is quite different. In the first place, there is no evidence that the profound moral views of the people of Northern Ireland are against allowing abortion in the three situations under discussion here. Quite the reverse. There is a remarkably consistent series of public opinion polls showing majority support for abortion in these circumstances. The most recent survey was a serious academic study, more rigorous than a conventional opinion poll (the results of the Northern Ireland Life and Times Survey are set out in para 110 of Lord Mances judgment). This evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference with the rights of the pregnant women entailed in making them continue their pregnancies to term even though they, by definition, have reached a different moral conclusion no doubt, for many, an agonising one. In the second place, we are dealing with three very different situations from those with which the A, B and C case was concerned, situations in which it cannot seriously be contended that a pregnant woman has a duty to carry the pregnancy to term. In the case of rape, not only did she not consent to becoming pregnant, she did not consent to the act of intercourse which made her pregnant, a double invasion of her autonomy and the right to respect for her private life. In this connection, it is worth noting that the Sexual Offences (Northern Ireland) Order 2008 labels two offences rape: article 5 makes it the offence of rape intentionally to penetrate, inter alia, a vagina with a penis where the woman does not consent and the man does not reasonably believe that she consents; article 12 makes it the offence of rape of a child intentionally to penetrate a person under 13 with a penis, irrespective of consent or a belief in consent; both offences carry a maximum of life imprisonment. Article 16 is labelled Sexual activity with a child and makes it an offence for a person of 18 or older intentionally to touch another person where the touching is sexual and that other person is either under 16 and the toucher does not reasonably believe that she is 16 or over or she is under 13. If the touching involves penetration of a vagina with a penis, the offence carries a maximum sentence of 14 years imprisonment. Thus the only difference between the article 16 offence and the article 12 offence is that, if the child is 13 or over but under 16, no offence is committed if the penetrator reasonably believed that she was 16 or over. Consent or reasonable belief in consent does not feature in either offence. Thus it is conclusively presumed in the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis. It is difficult, therefore, to see any reason to distinguish between the offences under article 12 and article 16 for the purpose of this discussion, nor indeed to exclude pregnancies which would be the result of an offence under article 16 were it not for the penetrators reasonable belief that the child was 16 or over: she is still deemed incapable of giving a real consent to it. The claim refers only to rape and incest (as well as foetal abnormality) but there is no longer any offence labelled incest in Northern Ireland law. There is, however, an offence under article 32 of the 2008 Order labelled Sexual activity with a child family member which follows the same pattern as article 16: it covers sexual touching of a child whom the toucher knows or can reasonably be expected to know is related in the defined ways; if the child is 13 but under 18 the toucher must not believe that she is 18 or over; no such exception applies if the child is under 13; the offence carries a maximum penalty of 14 years imprisonment if the touching involves penetration, inter alia, of the vagina. Article 68 creates an offence labelled Sex with an adult relative: penetration and article 69 creates an offence of consenting to such penetration. Thus the criminal law covers (in substance) the same ground as was previously covered by the law of incest. I see no reason to exclude pregnancies which are the result of the offences created by articles 16, 32 and 68 from this discussion. Nor do I see any reason to treat child pregnancies resulting from penetration by a relative any differently from child pregnancies arising in other circumstances. Adult pregnancies are different, because there may have been genuine consent to the penetration. But the giving of that consent is itself an offence, and so the law should not treat it on the same footing as a real consent. Furthermore, as Lord Mance has convincingly demonstrated, there is good evidence that most intra familial sexual relationships are abusive. And once again, by definition we are discussing a woman who does not consent to the pregnancy: she has made a conscious choice that she does not wish to continue with it. These are all, therefore, situations in which the autonomy rights of the pregnant woman should prevail over the communitys interest in the continuation of the pregnancy. I agree, for the reasons given by Lord Kerr and Lord Mance, that in denying a lawful termination of her pregnancy in Northern Ireland to those women and girls in these situations who wish for it, the law is incompatible with their Convention rights. I agree with Lord Mance, in particular, that relying on the possibility that she may be able to summon up the resources, mental and financial, to travel to Great Britain for an abortion if anything makes matters worse rather than better. This conclusion is reinforced by the recent Report of the CEDAW Committee. This contains a helpful discussion of the difficulties of travelling out of Northern Ireland for abortion, which it concludes is not a viable solution (paras 25 to 32). The third type of case with which we are concerned, that of foetal abnormality, does have to be separated into cases where the foetus suffers from a fatal abnormality, one which will cause death either in the womb or very shortly after delivery, and other serious abnormalities. Both share the feature that the pregnancy may have been very much wanted by the woman, and her partner, and the news of the abnormality will have been doubly devastating. But in the case of fatal foetal abnormality, there can be no community interest in obliging the woman to carry the pregnancy to term if she does not wish to do so. There is no viable life to protect. It is, of course, essential that the diagnosis be as accurate as possible, but we have the evidence of Professor Dornan that, before the law was clarified in Family Planning Association of Northern Ireland v Minister for Health, Social Security and Public Safety [2004] NICA 39; [2005] NI 188, abortions were offered in such cases and there was a high level of accuracy in the diagnosis. Travelling to Great Britain is even more difficult in such cases, as the problem is often detected comparatively late in the pregnancy, at 18 to 20 weeks, which leaves very little time to make the arrangements and there may be no counselling offered on what the options are. If the woman does manage to travel, not only will she have all the trauma and expense associated with that, but also serious problems in arranging the repatriation of the foetal remains. Serious foetal abnormality is a different matter. The CEDAW committee has obviously had some difficulty in reconciling its views on the legalisation of abortion, which it systematically recommends in all cases (Report, para 58), with the views of the United Nations Committee on the Rights of Persons with Disabilities. Thus the CEDAW Committee states (Report, para 60): The Committee interprets articles 12 and 16, clarified by GR Nos 24 and 28, read with articles 2 and 5, to require States parties to legalise abortion, at least in cases of rape, incest, threats to the life and/or health (physical or mental) of the woman, or severe foetal impairment. The Committee has not taken the view it does of the legalisation of abortion because there is an express provision to that effect in the Convention: it has taken the view that it is the inescapable conclusion from the rights which the Convention does recognise. Article 12 requires State parties to eliminate discrimination against women in the field of health care, in order to ensure equality between men and women in access to health care services. Article 16 requires the same in relation to family relations, including the right to decide freely and responsibly on the number and spacing of children. Article 2 is a general prohibition of discrimination against women and requires positive steps to achieve equality between men and women. Article 5 requires, inter alia, the elimination of practices based on the inferiority or superiority of either of the sexes or on stereotypical roles for men and women. However (Report, para 62): In cases of severe foetal impairment, the Committee aligns itself with the Committee on the Rights of Persons with Disabilities in the condemnation of sex selective and disability selective abortions, both stemming from the need to combat negative stereotypes and prejudices towards women and persons with disabilities. While the Committee consistently recommends that abortion on the ground of severe foetal impairment be available to facilitate reproductive choice and autonomy, States parties are obligated to ensure that womens decisions to terminate pregnancies on this ground do not perpetuate stereotypes towards persons with disabilities. Such measures should include the provision of appropriate social and financial support for women who choose to carry such pregnancies to term. Accordingly, the CEDAW Committee recommended to the UK that it adopt legislation legalising abortion at least where there is a threat to the pregnant womans physical or mental health; rape or incest; and severe foetal impairment, including fatal foetal abnormality without perpetuating stereotypes towards persons with disabilities and ensuring appropriate and ongoing support, social and financial, for women who decide to carry such pregnancies to term (para 85). As already stated, the guarantees contained in the ECHR should be interpreted in the light of other relevant international human rights instruments. Some may think that the CEDAW Committees recommendations strike the right balance, but I recognise and understand that others may think that they do not give sufficient weight to the valuable and rewarding lives led by many people with serious disabilities. Article 3 Article 3 differs from article 8 in several ways. First, the right not to be subjected to torture or inhuman or degrading treatment or punishment is absolute it is not to be balanced against any other rights, including the right to life of people whose lives might be saved if, for example, a prisoner were tortured in order to discover their whereabouts. Second, therefore, the treatment complained of has to reach what is referred to as a minimum level of severity but which actually means a high level of severity in order to attract the prohibition. Third, although the motive with which the treatment is inflicted may be relevant, the principal focus is upon the effect upon the victim. I have no doubt that the risk of prosecution of the woman, and of those who help her, thus forcing her to take that risk if she procures an illegal abortion in Northern Ireland, or to travel to Great Britain if she is able to arrange that, constitutes treatment by the State for this purpose. It is the State which is subjecting her to the agonising dilemma. I also have little doubt that there will be some women whose suffering on being denied a lawful abortion in Northern Ireland, in the three situations under discussion here, will reach the threshold of severity required to label the treatment inhuman or degrading. This is another respect in which article 3 is unlike article 8. In every case where a woman is denied a lawful abortion in Northern Ireland which she seeks in the three situations under discussion, her article 8 rights have been violated. But it cannot be said that every woman who is denied an abortion in such circumstances will suffer so severely that her rights under article 3 have been violated. It depends upon an intense focus on the facts of the individual case which the article 8 question, at least in the three cases under discussion, does not. This is not a situation, as it is under article 8, where the operation of the law is bound to produce incompatible results in every case. But neither is it a situation where the law can always be operated compatibly with the Convention rights if the public authority takes care to act in a way which respects those rights. Rather, it is a situation in which the law is bound to operate incompatibly in some cases. I have sympathy for the view expressed by Lord Kerr that the risk of acting incompatibly with article 3 rights is such as to engage the positive obligation of the state to prevent that risk materialising; but it is unnecessary to decide the point, in the light of my conclusion that the present law is incompatible with article 8 in the three respects discussed above. Remedy I have reached the following conclusions (i) that the NIHRC does have standing to challenge the legislation in question here; (ii) that, in denying a lawful abortion in Northern Ireland to a woman who wishes it in cases of rape, incest and fatal foetal abnormality, the law is incompatible with article 8 of the Convention; and (iii) that it will also operate incompatibly with article 3 of the Convention in some cases. I agree, for the reasons given by Lord Kerr, that the incompatibility with article 8 cannot be cured by further reading down of section 58 of the Offences against the Person Act 1861 under section 3 of the HRA. Should we therefore make a declaration of incompatibility under section 4 of the HRA? I understand, of course, the view that this is a matter which should be left entirely to the democratic judgment of the Northern Ireland Assembly (or the United Kingdom Government should direct rule have to be resumed). But I respectfully disagree for several reasons. First, although the Strasbourg court was prepared to accord Ireland a wide measure of appreciation in the A, B and C case, that was, as the minority pointed out, most unusual. It cannot be guaranteed that the Strasbourg court would afford the United Kingdom the same margin of appreciation in this case, given that public opinion in Northern Ireland is very different from assumed public opinion in Ireland at the time of the events in A, B and C. In any event, even if it did, that does not answer the question. It means only that the United Kingdom authorities have to decide what is, or is not, compatible with the Convention rights. Second, this is not a matter on which the democratic legislature enjoys a unique competence. It is a matter of fundamental human rights on which, difficult though it is, the courts are as well qualified to judge as is the legislature. In fact, in some ways, the courts may be thought better qualified, because they are able to weigh the evidence, the legal materials, and the arguments in a dispassionate manner, without the external pressures to which legislators may be subject. It falls within the principle accepted by the House of Lords in In re G (Adoption: Unmarried Couple) [2009] AC 173 and indeed by the majority of this Court in R (Nicklinson) v Ministry of Justice (CNK Alliance Ltd intervening) [2015] AC 657. Third, Parliament has expressly given the higher courts the power to rule upon the compatibility or incompatibility of legislation with the Convention rights. Parliament did not say, when enacting section 4 of the HRA, but there are some cases where, even though you are satisfied that the law is incompatible with the Convention rights, you must leave the decision to us. Parliamentary sovereignty is respected, not by our declining to make a declaration, but by what happens if and when we do. Parliament has three options. First, it may share the courts view and approve a fast track remedial order under section 10 of the HRA, which is appropriate if the matter is quite simple and easy to solve. Second, it may share our view and pass an Act of Parliament to put things right, which is appropriate if the matter is not simple and easy to solve, and complex arrangements have to be put in place. Third, it may do nothing. This could be because it disagrees with courts view, and prefers to wait and see what view is eventually taken by the European Court of Human Rights. Or it could be because it is inclined to leave matters as they are for the time being. The do nothing option is no doubt more attractive if the matter is one which Strasbourg would regard as within the UKs margin of appreciation. It is at this point that the democratic will, as expressed through the elected representatives of the people, rules the day. All that a declaration on incompatibility does, therefore, is place the ball in Parliaments court. This is not a case like Nicklinson in which the matter was already before Parliament and the issues were not as clear cut: the case had changed from one of active euthanasia to one of assisted suicide in the course of its progress through the courts. In this case, if the court has reached a firm conclusion that the law is incompatible there is little reason not to say so, particularly where, as here, the UK has already been advised that the law is in breach of its international human rights obligations under another treaty. I would therefore have allowed this appeal and made a declaration accordingly, but in the light of the majoritys view of the standing of the NIHRC to bring these proceedings it must follow that we have no jurisdiction formally to declare the majoritys view. But, as Lord Mance explains in para 135 that does not mean that it can safely be ignored. LORD MANCE: Summary (a) By these proceedings against the Department of Justice and the Attorney General for Northern Ireland (the respondents), the Northern Ireland Human Rights Commission (the Commission) challenges the compatibility of the law in Northern Ireland with articles 3 and 8 of the European Convention on Human Rights (the Convention rights), insofar as that law prohibits abortion in cases of fatal and other foetal abnormality, rape and incest. (b) The respondents raise an initial objection to the challenge, that it is outside the Commissions competence (in the sense of power) to institute abstract proceedings of this nature (an actio popularis). I deal with this issue in paras 47 to 72. The courts below considered that the Commission had competence. The Supreme Court concludes by a majority, consisting of Lord Reed, Lady Black, Lord Lloyd Jones and myself, that the objection is well founded and that the courts below were wrong on this issue. (c) It follows that the Supreme Court has no jurisdiction to give any relief in respect of the challenge to Northern Ireland abortion law. But that challenge has been fully argued, and evidence has been put before the Court about a number of specific cases. It would, in the circumstances, be unrealistic and unhelpful to refuse to express the conclusions at which I would have arrived, had I concluded that the Commission had competence to pursue the challenge. (d) I would have concluded, without real hesitation at the end of the day, that the current state of Northern Ireland law is incompatible with article 8 of the Convention, insofar as it prohibits abortion in cases of fatal foetal abnormality, rape and incest, but not insofar as it prohibits abortion in cases of serious foetal abnormality: see paras 73 to 134. That conclusion, obiter in my case, is of the essence of the judgments of the three members of the Court (Lady Hale, Lord Kerr and Lord Wilson) who (dissenting) would have held that the Commission had competence. Lady Black would (obiter) reach the same conclusion as I do with regard to fatal foetal abnormality, but not rape or incest. Lord Kerr and Lord Wilson would go further than I would have done and hold that the current law in Northern Ireland law is also incompatible with article 3 of the Convention rights as regards fatal foetal abnormality, rape and incest. Lady Hales view on this point appears in paras 28 to 30 of her judgment. (e) With that summary, I will turn to introduce the proceedings more fully. However, those who may at the outset wish to have an idea of the distressing cases to which the Commission has drawn attention in the context of its challenge can look at once at paras 84 to 90 below. Introduction This is an appeal in proceedings for judicial review commenced by the Northern Ireland Human Rights Commission (the Commission) on 11 December 2014. By their Order 53 statement, the Commission sought general relief, unrelated to any particular set of facts, consisting of: a. A declaration pursuant to section 6 and section 4 of the Human Rights Act 1998 (the HRA) that sections 58 and 59 of the Offences against the Person Act 1861 (the 1861 Act) and section 25 of the Criminal Justice Act (NI) 1945 (the 1945 Act) are incompatible with articles 3, 8 and 14 of the European Convention on Human Rights so far as they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest; b. A declaration that, notwithstanding the provisions of the above sections, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest; c. A declaration that the rights of women in Northern Ireland with a diagnosis of serious malformation of the foetus or who are pregnant as a result of such rape or incest are breached by the above sections; and/or d. such further or other relief as the Court might think appropriate. The declarations sought to focus on three broad situations: serious malformation of the foetus; rape; and incest. In this judgment, I shall divide the first into fatal foetal abnormality and serious (but not fatal) foetal abnormality. The expert evidence before the judge indicated that doctors are well capable of identifying cases of fatal foetal abnormality, that is cases where the foetus will die in the womb or during or very shortly after birth. As to rape, it was made clear during the course of submissions before the Supreme Court, that the Commission, when commencing these proceedings, had in mind situations in which, because a child was under the age of 13, consent cannot in law be given, but had not focused on, for example, sexual offences (not described in law as rape) committed against children aged 13 or more, but under the age of 16. I return to this aspect in paras 73 and 131 below. As to incest, there was again no detailed examination of the offence(s) in question. There is no longer any offence called, in law rather than colloquially, incest. Since 2008, the relevant law is found in articles 32 to 36 and 68 to 69 of the Sexual Offences (Northern Ireland) Order 2008, mirroring sections 25 to 29 and 64 to 65 of the Sexual Offences Act 2003 in England and Wales. These articles introduce a very wide range of penetrative offences involving related persons, but it is only those which can lead to pregnancy which are presently relevant. In this context, article 32 contains offences under the head Sexual activity with a child family member. This is capable of commission where the child family member (B) is either under 18, and is someone who the person committing the offence (A) does not reasonably believe to be 18 or over, or is under 13. The relevant family relationships are defined in section 34, and the maximum punishment on conviction on indictment of an offence involving penetration of the vagina is up to 14 years. Article 68 contains the offence of Sex with an adult relative: penetration, which may, inter alia, be committed when a person aged 16 or over (A) penetrates the vagina of (B) aged 18 or over. Article 69 contains the offence of Sex with an adult relative: consenting to penetration, which may be committed where A (aged 18 or over) penetrates the vagina of B (aged 16 or over) with Bs consent. Articles 68 and 69 have their own definition of the prohibited relationships, and the maximum sentence on conviction of indictment is in each case up to two years. For convenience, I shall in this judgment continue to use the colloquial term incest to refer to all three offences, although it is clear that the legislator has identified a significant general difference between offences under article 32 involving a child family member on the one hand and offences under articles 68 and 69 involving adults. I shall consider the position in respect of incest in greater detail in paras 127 to 131 below. In support of its Order 53 statement, the Commissions Chief Commissioner, Mr Les Allamby, swore an affidavit, confirming that the Commissions case was made pursuant to section 4 of the HRA and based on alleged incompatibility with Convention Rights of the sections identified above of both the 1861 and the 1945 Acts. In other words, it treated both Acts as primary legislation. On that basis, it is not clear on what basis it could have been thought that any relief could be granted beyond that identified in sub para (1). Just conceivably, sub paras (2) and (4) may have been framed to cover the possibility of a more expansive interpretation of the Bourne exception (deriving from R v Bourne [1939] 1 KB 687), along the lines which the Lord Chief Justice accepted in the Court of Appeal: para 79. Be that as it may be, while the 1861 Act is clearly primary legislation, the same cannot in my opinion be said of the 1945 Act. The 1945 Act was an Act of the Parliament of Northern Ireland, established by the Government of Ireland Act 1920. In terms of the HRA, it constitutes subordinate, rather than primary, legislation: see the definitions in section 21 of the HRA, and in particular paragraph (c) in relation to subordinate legislation. For present purposes, this point may not prove significant, since it is unclear what section 25 of the 1945 Act adds, at least in law, to sections 58 and 59 of the 1861 Act. Brice Dicksons Law in Northern Ireland, para 7.17, instances the 1945 Act as one of a number introduced in the face of jury reluctance to convict of existing offences with greater overtones of evilness in the same areas. Before the Supreme Court, the first issue is whether it was within the Commissions competence to seek the relief identified in sub paragraph 43 above, that is a general declaration of incompatibility in relation to primary legislation of the United Kingdom Parliament. This issue is raised both in direct response to the Commissions claim and pursuant to devolution questions referred to the Supreme Court under section 33 of the Northern Ireland Act 1998 (the NI Act 1998) by the Attorney General for Northern Ireland by notice dated 18 January 2017. The devolution questions which have been referred ask, in summary, whether the Commission was empowered to institute human rights proceedings or seek a declaration of incompatibility other than as respects an identified unlawful act or acts. Only if it was within the Commissions competence to issue proceedings for the relief claimed, could the court make any declaration of incompatibility, even if incompatibility was otherwise established. The second issue, arising strictly only if the Commission had such competence, is whether any incompatibility is established. Both Horner J and the Court of Appeal held that the Commission had such competence. Having so held, Horner J went on to conclude that there was incompatibility, but only in so far as it is an offence to procure a miscarriage (a) at any stage during a pregnancy where the foetus has been diagnosed with a fatal foetal abnormality, or (b) up to the date when the foetus is capable of being born alive where a pregnancy arises as a result of rape or incest. The Court of Appeal, in three differently reasoned judgments, concluded that there was no incompatibility. The respondents, the Department of Justice and the Attorney General for Northern Ireland, appeal on the first issue, while the Commission appeals on the second issue. The Commissions competence to seek the relief claimed Logically, the issue of the Commissions competence should be taken first, and I propose to do so, although in the event it will also be appropriate to express views on the issue of incompatibility, which has been fully argued. The Commission is a body corporate created by section 68 of the NI Act 1998. It was accepted by the House of Lords in In re Northern Ireland Human Rights Commission [2002] NI 236 that it only has such powers as are conferred on it by statute, though these can clearly include such powers as may fairly be regarded as incidental to or consequential upon those things which the legislature has authorised: ibid, p 243C. The relevant statutory provisions in the current legislation define the Commissions functions as follows: 69. The Commissions functions. (1) The Commission shall keep under review the adequacy and effectiveness in Northern Ireland of law and practice relating to the protection of human rights. (2) The Commission shall, before the end of the period of two years beginning with the commencement of this section, make to the Secretary of State such recommendations as it thinks fit for improving its effectiveness; the adequacy and effectiveness of the functions (a) (b) conferred on it by this Part; and (c) of this Part relating to it. the adequacy and effectiveness of the provisions (3) The Commission shall advise the Secretary of State and the Executive Committee of the Assembly of legislative and other measures which ought to be taken to protect human rights as soon as reasonably practicable after receipt of (a) a general or specific request for advice; and (b) on such other occasions as the Commission thinks appropriate. (4) The Commission shall advise the Assembly whether a Bill is compatible with human rights as soon as reasonably practicable after receipt of (a) a request for advice; and (b) on such other occasions as the Commission thinks appropriate. (5) The Commission may (a) give assistance to individuals in accordance with section 70; and (b) bring proceedings involving law or practice relating to the protection of human rights. (6) The Commission shall promote understanding and awareness of the importance of human rights in Northern Ireland; and for this purpose it may undertake, commission or provide financial or other assistance for (a) (b) research; and educational activities. (7) The Secretary of State shall request the Commission to provide advice of the kind referred to in para 4 of the Human Rights section of the Belfast Agreement (8A) The Commission shall publish a report of its findings on an investigation. (8) For the purpose of exercising its functions under this section the Commission may conduct such investigations as it considers necessary or expedient (9) The Commission may decide to publish its advice and the outcome of its research (10) The Commission shall do all that it can to ensure the establishment of the committee referred to in paragraph 10 of that section of that Agreement. (11) In this section a reference to the Assembly includes a reference (a) to a committee of the Assembly; (b) human rights includes the Convention rights. Section 70 of the NI Act reads: 70. Assistance by Commission. (1) This section applies to (a) proceedings involving law or practice relating to the protection of human rights which a person in Northern Ireland has commenced, or wishes to commence; or (b) proceedings in the course of which such a person relies, or wishes to rely, on such law or practice. (2) Where the person applies to the Northern Ireland Human Rights Commission for assistance in relation to proceedings to which this section applies, the Commission may grant the application on any of the following grounds (a) that the case raises a question of principle; (b) that it would be unreasonable to expect the person to deal with the case without assistance because of its complexity, or because of the persons position in relation to another person involved, or for some other reason; that there are other special circumstances which (c) make it appropriate for the Commission to provide assistance. (3) Where the Commission grants an application under subsection (2) it may (a) provide, or arrange for the provision of, legal advice; (b) arrange for the provision of legal representation; (c) provide any other assistance which it thinks appropriate. (4) Arrangements made by the Commission for the provision of assistance to a person may include provision for recovery of expenses from in certain circumstances. Section 71 reads as follows: the person 71. Restrictions on application of rights. (1) Nothing in section 6(2)(c) or 24(1)(a) shall enable a person to bring any proceedings in a court or tribunal on (a) the ground that any legislation or act is incompatible with the Convention rights; or (b) to rely on any of the Convention rights in any such proceedings unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights. (2) Subsection (1) does not apply to the Attorney General, the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate. (2A) Subsection (1) does not apply to the Commission. (2B) In relation to the Commissions instituting, or intervening in, human rights proceedings (a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate, (b) section 7(3) and (4) of the Human Rights Act 1998 (c 42) (breach of Convention rights: sufficient interest, &c) shall not apply, (c) be one or more victims of the unlawful act, and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies). the Commission may act only if there is or would (2C) For the purposes of subsection (2B) human rights proceedings means proceedings (a) which rely (wholly or partly) on section 7(1)(b) of the Human Rights Act (i) 1998, or (ii) (b) an expression used in subsection (2B) and in section 7 of the Human Rights Act 1998 has the same meaning in subsection (2B) as in section 7. section 69(5)(b) of this Act, and (3) Section 6(2)(c) (a) does not apply to a provision of an Act of the Assembly if the passing of the Act is, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, not unlawful under subsection (1) of that section; and (b) does not enable a court or tribunal to award in respect of the passing of an Act of the Assembly any damages which it could not award on finding the passing of the Act unlawful under that subsection. (4) Section 24(1)(a) (a) does not apply to an act which, by virtue of subsection (2) of section 6 of the Human Rights Act 1998, is not unlawful under subsection (1) of that section; and (b) does not enable a court or tribunal to award in respect of an act any damages which it could not award on finding the act unlawful under that subsection. In this section the Convention has the same meaning (5) as in the Human Rights Act 1998. 6. Legislative competence. (1) A provision of an Act is not law if it is outside the legislative competence of the Assembly. (2) A provision is outside that competence if any of the following paragraphs apply Sections 6(2)(c) and 24(1)(a), to which reference is made at the start of section 71 address the legislative competence of, respectively, the Northern Ireland Assembly and of Northern Irish Ministers and departments, as follows: (a) it would form part of the law of a country or territory other than Northern Ireland, or confer or remove functions exercisable otherwise than in or as regards Northern Ireland; (b) it deals with an excepted matter and is not ancillary to other provisions (whether in the Act or previously enacted) dealing with reserved or transferred matters; (c) rights; it is incompatible with EU law; (d) (e) it discriminates against any person or class of person on the ground of religious belief or political opinion; (f) it is incompatible with any of the Convention it modifies an enactment in breach of section 7. (3) For the purposes of this Act, a provision is ancillary to other provisions if it is a provision (a) which provides for the enforcement of those other provisions or is otherwise necessary or expedient for making those other provisions effective; or (b) which is otherwise incidental to, or consequential on, those provisions; 24. EU law, Convention rights, etc. (1) A Minister or Northern Ireland department has no power to make, confirm or approve any subordinate legislation, or to do any act, so far as the legislation or act is incompatible with EU law; is incompatible with any of the Convention (a) rights; (b) (c) discriminates against a person or class of person on the ground of religious belief or political opinion; (d) in the case of an act, aids or incites another person to discriminate against a person or class of person on that ground; or (e) in breach of section 7. in the case of legislation, modifies an enactment (2) Subsection (1)(c) and (d) does not apply in relation to any act which is unlawful by virtue of the Fair Employment and Treatment (Northern Ireland) Order 1998, or would be unlawful but for some exception made by virtue of Part VIII of that Order. Sections 6, 7 and 8 of the HRA provide as follows: It is unlawful for a public authority to act in a way which 6. Acts of public authorities. (1) 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 (3) rights, the authority was acting so as to give effect to or enforce those provisions. In this section public authority includes (a) (b) functions of a public nature; a court or tribunal, and any person certain of whose functions are but does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament. (4) (5) In relation to a particular act, a person is not a public authority by virtue only of subsection (3)(b) if the nature of the act is private. (6) failure to (a) for legislation; or (b) make any primary legislation or remedial order. An act includes a failure to act but does not include a introduce in, or lay before, Parliament a proposal 7. Proceedings. (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or rely on the Convention right or rights concerned (b) in any legal proceedings, but only if he is (or would be) a victim of the unlawful act. (2) In subsection (1)(a) appropriate court or tribunal means such court or tribunal as may be determined in accordance with rules; and proceedings against an authority include a counterclaim or similar proceeding. (3) If the proceedings are brought on an application for judicial review, the applicant is to be taken to have a sufficient interest in relation to the unlawful act only if he is, or would be, a victim of that act. (4) (5) Proceedings under subsection (1)(a) must be brought before the end of the period of one year beginning with the date on (a) which the act complained of took place; or (b) considers equitable having regard circumstances, such longer period as the court or tribunal to all the but that is subject to any rule imposing a stricter time limit in relation to the procedure in question. (6) In subsection (1)(b) legal proceedings includes (a) proceedings brought by or at the instigation of a public authority; and (b) tribunal. an appeal against the decision of a court or (7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act. 8. Judicial remedies. (1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate. (2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings. (3) No award of damages is to be made unless, taking account of all the circumstances of the case, including any other relief or remedy granted, or order (a) made, in relation to the act in question (by that or any other court), and (b) other court) in respect of that act, the consequences of any decision (of that or any the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made. (4) In determining (a) whether to award damages, or (b) the amount of an award, the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under article 41 of the Convention. The Commission relies on section 69(5)(b) of the NI Act 1998 for its power to bring these proceedings. But proceedings relying wholly or partly on section 69(5)(b) constitute, under section 71(2C)(a)(ii), human rights proceedings and are subject therefore to the restrictions (taking this word from the heading of section 71) in section 71(2B). Under section 71(2B)(a), the Commission need not itself be a victim or potential victim of the unlawful act to which the proceedings relates and, consistently with this, section 71(2B)(b) provides that sections 7(3) and (4) of the HRA do not apply. But section 71(2B) contains a number of pointers to the fact that the legislature contemplated that human rights proceedings, for the purposes of section 71(2B), are proceedings which relate to an unlawful act. That contemplation can be seen in the reference in section 71(2B)(a) to the unlawful act to which the proceedings relate. The provision in section 71(2B)(c) that the Commission may act only if there is or would be one or more victims of the unlawful act reflects the same contemplation. It is also consistent with the provision in section 71(2B)(d) that no award of damages may be made to the Commission, whatever the position would be under section 8(3) of the HRA, since section 8 addresses the possibility of an award of damages as a remedy available in relation to an act (or proposed act) which the court finds is (or would be) unlawful. The other type of proceedings which, under section 71(2C)(a)(i) constitute human rights proceedings for the purposes of section 71(2B) and (2C), consists of proceedings in which a person who is (or would be) a victim of the unlawful act pursuant to section 7(1)(b) of the HRA relies on a Convention right. Section 71(2C)(a)(i) does not refer to section 7(1)(a), which provides that a person who claims that a public authority has acted or proposes to act in a way made unlawful by section 6(1) of the HRA may bring proceedings against the authority. It does not follow that its reference to section 7(1)(b) covers only situations where a Convention right is relied on by way of defence, rather than as the basis of a claim. Section 7(1)(b) is wide enough to cover both. This type of proceedings will by definition involve the Commission intervening in, rather than instituting, the proceedings within the opening words of section 71(2B). In this context, section 71(2B) reflects and regulates the existence of the incidental or consequential power which the House of Lords held the Commission to possess in In re Northern Ireland Human Rights Commission: see para 66 below. The Commission will, in contrast, be acting pursuant to its power under section 69(5)(b) to bring proceedings involving law or practice relating to the protection of human rights, when it institutes human rights proceedings within the opening words of section 71(2B). The upshot under section 71(2B) and (2C) is that, where the Commission is intervening in human rights proceedings, the person instituting the proceedings must be an actual or potential victim of an unlawful act, and, where the Commission is itself instituting human rights proceedings, it need not be, but there must be an actual or potential victim of an unlawful act to which the proceedings relate. By section 71(2C)(b), an expression used in subsection (2B) and in section 7 of the HRA has the same meaning in the former as in the latter. Section 7(1) of the HRA refers to section 6(1) of the HRA for the concept of an unlawful act, and that subsection provides that it is unlawful for a public authority to act in a way which is incompatible with a Convention right. But the subsection is expressly stated, by section 6(2), not to apply to (in summary) an authoritys act which was (a) compelled by a provision of primary legislation or which was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with Convention rights. Further, by section 6(6), an act does not include a failure to introduce, or lay before Parliament a proposal for legislation or make any primary legislation. It follows that the Commissions powers under sections 69 and 71 of the NI Act 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the Convention Rights. Neither the Westminster Parliaments enactment of, nor its or the Northern Irish legislatures failure to repeal or amend, the 1861 Act can constitute an unlawful act under sections 6 and 7 of the HRA: see the preceding paragraphs of this judgment. Such proceedings would not therefore involve any suggestion of an unlawful act within the meaning of section 7 of the HRA or, therefore, of section 71 of the NI Act. The Lord Chief Justice of Northern Ireland thought that this conclusion could be avoided by reading into section 71(2C)(a)(ii) the additional words in respect of unlawful acts after Act: para 42. This would leave section 69(5)(b) completely unconstrained and unregulated by section 71 as regards proceedings not relying on any unlawful act. That is by itself implausible. But, more fundamentally, there is neither a need nor any basis for any such words to be read into section 71. A reading of section 71 as a whole makes clear that it was envisaged as establishing a limited jurisdiction. Section 71(1) identifies the requirement of victimhood to be satisfied by any person challenging legislation of the devolved Assembly or subordinate legislation or other acts of the devolved administration which are unlawful in terms of sections 6 and 7 of the HRA. Further, sections 71(3) and (4) make express that section 71(1) is not intended to embrace proceedings challenging legislation of the devolved Assembly or subordinate legislation or an act of the devolved administration which is, by virtue of section 6(2) of the HRA, not unlawful for the purposes of sections 6(1) and 7 of the HRA. It is in other words clear that no one can claim to be an actual or potential victim in relation to any such devolved or subordinate legislation or devolved act if it was compelled by or done to give effect to or to enforce provisions of primary legislation. The exclusion of the Commission from section 71(1) is simply the prelude to the Commissions powers to institute or intervene in proceedings, but this is carefully limited to situations where there is or would be an unlawful act, of the kind identified in section 7 of the HRA. It is likewise clear that the Commission cannot either institute or intervene in proceedings where neither it nor anyone else can claim to be an actual or potential victim of an unlawful act, because the situation falls within section 6(2) of the HRA. In these circumstances, it is, as I have said, implausible to suppose that Parliament by the NI Act 1998 at the same time intended the Commission to be able to institute or intervene in proceedings where the complaint was that primary legislation of the United Kingdom Parliament was itself incompatible with the Convention rights, without either referring to this or imposing any restriction on the circumstances. It would amount to carte blanche to the Commission, without having to establish any standing or interest other than its general interest in promoting and protecting human rights, to bring any proceedings it thought fit to establish the interpretation and/or incompatibility of primary legislation under section 3 and/or 4 of the HRA. This would contrast incongruously with the express and careful delimitation by Parliament of its capacity to institute or intervene in proceedings where and only where a specific unlawful act is in question under sections 6 and 7. It is wrong to approach the present issue on the basis of an assumption that it would be anomalous if the Commission did not have the (apparently unlimited) capacity suggested to bring proceedings to establish the interpretation, or incompatibility with Convention rights, of any primary Westminster legislation it saw as requiring this for the better protection of human rights. The issue is one of statutory construction, not a priori preconception. It is in fact no surprise, in my view, that Parliament did not provide for the Commission to have capacity to pursue what would amount to an unconstrained actio popularis, or right to bring abstract proceedings, in relation to the interpretation of United Kingdom primary legislation in some way affecting Northern Ireland or its supposed incompatibility with any Convention right. On the contrary, it is natural that Parliament should have left it to claimants with a direct interest in establishing the interpretation or incompatibility of primary legislation to initiate proceedings to do so; and should have limited the Commissions role to giving assistance under sections 69(5)(a) and 70 and to instituting or intervening in proceedings involving an actual or potential victim of an unlawful act as defined in section 7 of the Human Rights Act 1998. True it is that sections 3 and 4 of the HRA are not made expressly subject to the victimhood requirement which affects sections 6 and 7: R (Rusbridger) v Attorney General [2004] 1 AC 357, para 21, per Lord Steyn; though they must undoubtedly be subject to the usual rules regarding standing in public law proceedings. However, a capacity to commence general proceedings to establish the interpretation or incompatibility of primary legislation is a much more far reaching power than one to take steps as or in aid of an actual or potential victim of an identifiable unlawful act. Further, Parliaments natural understanding would have reflected what has been and is the general or normal position in practice, namely that sections 3 and 4 would be and are resorted to in aid of or as a last resort by a person pursuing a claim or defence under sections 7 and 8: see Lancashire County Council v Taylor [2005] EWCA Civ 284; [2005] 1 WLR 2668, para 28, reciting counsels submission, and paras 37 44, concluding that, to exercise the courts discretion to grant a declaration to someone who had not been and could not be personally adversely affected would be to ignore section 7. This being the normal position, it is easy to understand why there is nothing in section 71 to confer (the apparently unlimited) capacity which the Commission now suggests that it has to pursue general proceedings to establish the interpretation or incompatibility of primary legislation under sections 3 and/or 4 of the HRA, in circumstances when its capacity in the less fundamental context of an unlawful act under sections 6 and 7 is expressly and carefully restricted. In instructive written submissions by the Equality and Human Rights Commission (EHRC) for England and Wales and Scotland as intervener, the EHRC invites comparison with the legislation which governs it, and suggests that it would be incongruous if there were a distinction between the position in England, Wales and Scotland on the one hand and Northern Ireland on the other. Sections 9 and 30 of the Equality Act 2006 provide as follows in relation to the EHRC: 9(1) Human rights The Commission shall, by exercising the powers conferred by this Part encourage good practice in relation to human (a) promote understanding of the importance of human rights, (b) rights, (c) promote awareness, understanding and protection of human rights, and (d) encourage public authorities to comply with section 6 of the Human Rights Act 1998 (c 42) (compliance with Convention rights). Judicial review and other legal proceedings 30. (1) The Commission shall have capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function. (2) The Commission shall be taken to have title and interest in relation to the subject matter of any legal proceedings in Scotland which it has capacity to institute, or in which it has capacity to intervene, by virtue of subsection (1). (3) The Commission may, in the course of legal proceedings for judicial review which it institutes (or in which it intervenes), rely on section 7(1)(b) of the Human Rights Act 1998 (c 42) (breach of Convention rights); and for that purpose the Commission may act only if there is or would the Commission need not be a victim or potential (a) victim of the unlawful act to which the proceedings relate, (b) be one or more victims of the unlawful act, (c) and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies); section 7(3) and (4) of that Act shall not apply, and an expression used in this subsection and in section 7 of the Human Rights Act 1998 has the same meaning in this subsection as in that section. (4) Subsections (1) and (2) (a) do not create a cause of action, and (b) are, except as provided by subsection (3), subject to any limitation or restriction imposed by virtue of an enactment (including an enactment in or under an Act of the Scottish Parliament) or in accordance with the practice of a court. These provisions are different from those in the NI Act 1998, in both its original form and the form in which it was amended in 2007. It is open to argument under section 30(1) of the 2006 Act that the EHRC is given general capacity to initiate proceedings relevant to any matter in connection with which the Commission has a function, and that section 30(3) is merely regulating one particular kind of such proceedings. I need express no view on the correctness of this argument. Even if it were correct, the mere perception that it might be welcome and entirely sensible, as the EHRC put it, if both the Northern Ireland Commission and the EHRC had the same powers cannot help construe different statutory schemes enacted at different times in different terms and without reference to each other. For these reasons, I conclude that sections 69 and 71 are incapable of conferring on the Commission power to institute or intervene in proceedings in so far as the complaint relates to the suggested incompatibility of primary legislation of the United Kingdom Parliament, namely the 1861 Act, with one or more of the Convention rights scheduled to the HRA. This conclusion is in my opinion reinforced by consideration of the legislative history of the NI Act 1998. As originally enacted, section 71 contained only subsections (1), (2), (3), (4) and (5). Subsections (2A), (2B) and (2C) were only added in 2007 by the Justice and Security (Northern Ireland) Act 2007, and so in the light of In re Northern Ireland Human Rights Commission, decided in 2002. Importantly also, subsection (1) as originally enacted commenced with the words: Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person Subject to the omission in 2007 of the reference in subsection (1) to section 69(5)(b) and the addition in 2007 of the reference to the Advocate General for Northern Ireland in 2007, subsections (1) and (2) remain otherwise as originally enacted. In In re Northern Ireland Human Rights Commission, the Commission had been refused permission by a coroner to intervene in an inquest into the Omagh bomb explosion in 1998, where in its view questions of human rights had arisen on which it would be appropriate for it to make submissions. By a majority, the House held that a power to intervene could be regarded as incidental to other powers expressly conferred by section 69, while noting that neither section 69(5)(a) nor section 69(5)(b) applied in terms, and that both could, under the then wording, only be invoked if the Commission could show that it was a victim for the purposes of the Convention. The Commission would, in reality, have been unable to do this. Firstly, it is a statutory public authority, listed as such in paragraph 1A of Schedule 2 to the Parliamentary Commissioner Act 1967, to which reference is made in section 75(3)(a) of the NI Act 1998. It is a core public authority within the scope of that concept as identified in Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546, para 8, per Lord Nicholls, and paras 43 47, per Lord Hope. As the House there acknowledged, core public authorities owe Convention duties, but cannot themselves be victims. Even if the Commission had been a hybrid public authority, this would only mean that it was not a public authority in respect of acts of a private nature: see Aston Cantlow, para 11 per Lord Nicholls. The present proceedings are indisputably of a public nature. Secondly and in any event, the Convention test of victimhood requires an individual applicant to have been actually affected by the alleged violation, and does not contemplate a kind of actio popularis relating to the interpretation or application of Convention rights: Klass v Germany (1978) 2 EHRR 214. The European Court of Human Rights reiterated this point with clarity in Stbing v Germany (2012) 55 EHRR 24, para 62: [I]n cases arising from individual applications it is not the Courts task to examine domestic legislation in the abstract. Rather, it must examine the manner in which the relevant legislation was applied to the applicant in the particular circumstances of the individual case In section 71(1) as originally enacted, it is clear that the reference to sections 6(2)(c), 24(1)(a) and 69(5)(b) covered all circumstances in which it was contemplated that these sections could be invoked. The legislature, for understandable reasons (see para 60 above), did not contemplate or provide that the Commission should have competence under section 69(5)(b) to bring abstract proceedings under sections 3 and 4 of the HRA. In this respect, it was following the general approach of the European Court of Human Rights itself: see Klass v Germany and Stbing v Germany (para 68 above). The need to focus on individual facts was also powerfully emphasised (in the context of article 8) by Judge Lpez Guerra, joined by Judge Casadevall, in their concurring judgment in A, B and C v Ireland (2010) 53 EHRR 13. The 2007 amendments to the NI Act 1998 confirm the legislatures approach in this regard. They removed the reference to section 69(5)(b) from section 71(1), and moved it to section 71(2C). The clear effect of section 71(2B) and (2C) is they also deal with all circumstances contemplated as falling within section 69(5)(c) and that such circumstances are to be limited to only one situation, viz where there is or would be one or more victims of an unlawful act within sections 6 and 7 of the HRA, in aid of whom the Commission initiates or intervenes in proceedings. It is, as I have said, implausible to suppose that Parliament intended at the same time to give the Commission tacit and unrestricted capacity to pursue the much more serious course of initiating proceedings to establish the interpretation or incompatibility of primary legislation, whenever it decided that this would promote or protect human rights. The combination of section 69(5)(b) and section 71 in my view therefore clearly excludes any power on the part of the Commission to institute proceedings to assert the alleged incompatibility of primary legislation of the United Kingdom Parliament with Convention rights. Any such challenge by the Commission is in my opinion outside the scope of section 71, both before and after its 2007 amendment. But, even if it were not so, it would not involve any identifiable unlawful act or any act of which any identifiable person could be said to be the actual or potential victim. The result may be seen, in some eyes, as inconvenient. However, I think it entirely comprehensible that Parliament should have left any such challenge made by reference to Convention rights to be raised in a specific context, by a victim. The Commission would be able under sections 69(5)(a) and 70 of the NI Act to give assistance to an individual commencing or wishing to commence proceedings raising a human rights issues or relying or wishing to rely on such an issue in current proceedings. That is however quite a different matter from the Commission initiating such proceedings in the abstract itself. Nothing in the Houses reasoning in In re Northern Ireland Human Rights Commission supports a suggestion that there has ever existed such a power on the part of the Commission to initiate legal proceedings. Any such suggestion would have been inconsistent with section 71 as originally enacted and would now be inconsistent with section 71 as amended with its careful definition and restriction of the circumstances in which the Commission may institute or intervene in proceedings. Those restrictions clearly exclude the claim to institute abstract proceedings for a declaration of incompatibility with primary United Kingdom legislation, which the Commission now advances. It is at this point appropriate to say something further about the 1945 Act, which the Commission appears to have treated as primary legislation for the purposes of the HRA: see para 45 above. As I have already indicated, that does not seem to me correct. It follows that it might have been open to the Commission to claim that the failure of the Northern Ireland Assembly to repeal or amend section 25 of the 1945 Act constituted itself an unlawful act within the meaning of sections 6 and 7 of the HRA. I do not see how such a claim could be directed to the first respondent, The Department of Justice, which is not a law making body (and, for good measure, would appear also to have been precluded from taking any initiative to amend the 1945 Act by virtue of section 28A of the Northern Ireland Act and paragraph 2.4 of the Ministerial Code, which assigns such matters to the Executive Committee of the Northern Ireland Assembly). The second respondent, the Attorney General, was not sued as representing the Northern Ireland Government and it may be could not have been (see section 17(3) of the Crown Proceedings Act 1947). But even assuming that a claim could have been made against him on that basis, the Commission would still be subject to the restriction under section 71(2B) that it could only institute the present proceedings if there is or would be one or more victims of the unlawful act. That restriction is not satisfied by a general assertion that the failure to abrogate or amend section 25 is likely to give rise to victims. Section 71(2B) contemplates the specific existence and identification of a victim who can say that he or she is or would be the victim of an unlawful act, in a way which satisfies section 7(1) of the HRA. Finally, however, I repeat the point made in para 45 above, that, even if the Commission could satisfy the restrictions of section 71(2B) and establish that the maintenance in force of section 25 constituted an unlawful act, the practical effect would appear to be either nothing or very little, having regard to the continuing effect of sections 58 and 59 of the 1861 Act. In summary, the present proceedings were not instituted by identifying any unlawful act or any actual or potential victim of it. First and fundamentally, as regards sections 58 and 59 of the 1861 Act, this is because they were brought to challenge the compatibility with the Convention rights of United Kingdom primary legislation, which by statutory definition is not a complaint about any act which is unlawful under the HRA or indeed otherwise. Secondly, although this would not have resolved the first objection if they had been, the proceedings were not, in fact, brought by reference to any particular alleged victim of any such incompatibility, and this remains the case although evidence has subsequently been adduced about a number of specific cases. In these circumstances, I would uphold the respondents objection to the Commissions pursuit of these proceedings, and answer the questions raised by the Attorney General of Northern Irelands reference in the negative. The alleged incompatibility The case advanced by the Commission, with the support of a number of the interveners (other interveners joining the respondents in opposition to it), involves different categories which can be identified as follows: (a) Cases of fatal foetal abnormality, (b) Cases of serious foetal abnormality, (c) Cases of pregnancy due to rape, (d) Cases of pregnancy due to incest. Clearly, there is room for argument at the margin about the precise definition and scope of these categories. There is however medical evidence to the effect that circumstances falling within category (a) can be reasonably clearly identified, whether they involve the inevitable or likely death of the foetus in the womb or within a fairly short period after birth. Cases within category (b) are on that basis cases where the foetus will live for a reasonable period after birth, but suffer from permanent abnormalities. As to category (c), the Commission initiated these proceedings with the narrow focus indicated in para 42 above. The circumstances of the JR76 interveners (see para 89 below), relating to a child of 13 or over but under 16, were not in the Commissions mind. Sexual activity with such a child is capable of constituting one of a number of sexual offences, not described as rape, set out in sections 16 to 22 of the Sexual Offences (Northern Ireland) Order 2008, (2008) No 1769 (NI 2), depending inter alia on the age of the person committing the offence. As the evidence regarding the JR76 interveners illustrates (para 89 below), a pregnancy in a case involving such an offence can well involve most distressing circumstances. However, since the question is whether current Northern legislation is bound to operate incompatibly with the Convention rights in a legally significant number of cases, it is unnecessary for us on this appeal to attempt to address every conceivable case. Bearing in mind the narrow focus of both the Commissions case as initiated and of the submissions which we heard in this area, I will focus on rape in the legal sense, and leave other cases to be considered separately, though in the light of course of any relevant assistance which this judgment may afford. Sections 58 and 59 of the 1861 Act provide as follows: 58. Administering drugs or using instruments to procure abortion. Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life . 59. Procuring drugs, &c to cause abortion. Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanor, and being convicted thereof shall be liable to be kept in penal servitude. Section 25 of the 1945 Act provides: 25. Punishment for child destruction. (1) Subject as hereafter in this sub section provided, any person who, with intent to destroy the life of a child then capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive. The word unlawfulness used in sections 58 and 59 of the 1861 Act was explained by Macnaghten J in directions given to the jury in the seminal case of R v Bourne [1939] 1 KB 687; [1938] 3 All ER 615. In order to understand its scope, he pointed to different wording used to define an associated offence in both the Infant Life (Preservation) Act 1929 in England and section 25 of the 1945 Act. Under both provisions, it is necessary to prove that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. Macnaghten J held that the same requirement was implied by the word unlawful in section 58 (and, it follows, section 59). He also considered that impairment of health might reach a stage where it was a danger to life, and that the words ought to be construed in a reasonable sense, and, if the doctor is of opinion, on reasonable grounds and with adequate knowledge, that the probable consequence of the continuance of the pregnancy will be to make the woman a physical or mental wreck, the jury are quite entitled to take the view that the doctor, who, in these circumstances, and in that honest belief, operates, is operating for the purpose of preserving the life of the mother: pp 693 694. further relaxed, in particular by the Abortion Act 1967, providing: In other parts of the United Kingdom, the prohibition of abortion has been 1. Medical termination of pregnancy. (1) Subject to the provisions of this section, a person shall not be guilty of an offence under the law relating to abortion when a pregnancy is terminated by a registered medical practitioner if two registered medical practitioners are of the opinion, formed in good faith that the pregnancy has not exceeded its twenty (a) fourth week and that the continuance of the pregnancy would involve risk, greater than if the pregnancy were terminated, of injury to the physical or mental health of the pregnant woman or any existing children of her family; or that the termination is necessary to prevent grave (b) permanent injury to the physical or mental health of the pregnant woman; or (c) that the continuance of the pregnancy would involve risk to the life of the pregnant woman, greater than if the pregnancy were terminated; or (d) that there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped. (2) In determining whether the continuance of a pregnancy would involve such risk of injury to health as is mentioned in paragraph (a) of subsection (1) of this section, account may be taken of the pregnant womans actual or reasonably foreseeable environment In Northern Ireland, the law remains as stated in the 1861 and 1945 Acts and explained in R v Bourne. In Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 37, [2005] NI 188 (the FPANI case), the Association did not challenge that proposition, but by judicial review proceedings, claimed, successfully in the Court of Appeal, that it was incumbent on the defendant Minister to investigate how many women in Northern Ireland who had pregnancies terminated in other parts of the United Kingdom could have had their abortions terminated lawfully in Northern Ireland, to provide guidance to women in that position to reduce the number travelling abroad for abortions and to provide guidance to clinicians to enable them to ensure that those having abortions gave informed consent. The Court of Appeal also expressed views about the effect of the principles established in R v Bourne. The Court concluded that it was incumbent on the Minister or his department to investigate the need for and if necessary issue guidelines to clarify for the medical profession and the public the legal principles governing abortion, including the provision of aftercare for those having abortions in Northern Ireland as well as those returning from having an abortion in England. Its conclusions were to be expressed more precisely in declarations, which were not examined before the Supreme Court on the present appeal. Articles 2, 3, 8 and 14 of the Convention rights scheduled to the HRA provide as follows: 2. Right to life. 1. Everyones right to life shall be protected by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is not more than absolutely necessary: in defence of any person from unlawful violence; in order to effect a lawful arrest or to prevent the (a) (b) escape of a person lawfully detained; in action lawfully taken for the purpose of quelling a riot or insurrection. 3. Prohibition of torture. No one shall be subjected to torture or to inhuman or degrading treatment or punishment. 8. Right to respect for private and family life. 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Prohibition of discrimination. 14. The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. The issue on this appeal is whether the existing law in Northern Ireland is compatible with these articles of the Convention in the categories of case identified in paras 42 and 67 above. During the submissions made by Ms Caoilfhionn Gallagher QC for Humanists UK as interveners, a submission was made that the existing law, interpreted in accordance with R v Bourne, was generally too imprecise to be in accordance with the law within article 8. That is a submission which lies outside the scope of the present appeal. It would require revisiting the territory covered in the FPANI case and, quite probably, considering what has occurred in the light of whatever declarations were made in that case. That is not what the present appeal has been or is about. Even if there proved to be force in the point made by Ms Gallagher, it could at best only lead to a conclusion that the legal principles should be further clarified, whether by the court or the department or by legislative amendment. The Abortion Act 1967 applicable in the rest of the United Kingdom demonstrates the feasibility of further legislative clarification. When considering the compatibility in the abstract of the current Northern Ireland legislation with any particular Convention right, it is not enough to show that, as a matter of practice or when applied in the light of administrative guidance, legislation has proved prone to give rise to unjustified infringement of a Convention right. The relevant question is whether the legislation itself is capable of being operated in a manner which is compatible with that right, or, putting the same point the other way around, whether it is bound in a legally significant number of cases to lead to unjustified infringement of the right. That is how Lady Hale DPSC expressed the test in The Christian Institute v The Lord Advocate [2016] SLT 805, para 88. She cited her own previous words in R (Ali) and R (Bibi) v Secretary of State for the Home Department [2015] 1 WLR 5055, para 2, where she rightly emphasised that the test sets a complainant a difficult task and at para 6 she also cited words of Lord Hodge at para 69, on which I wish to make this observation. Lord Hodge stated in para 69 that The court would not be entitled to strike down the Immigration Rule under consideration in that case unless satisfied that it was incapable of being operated in a proportionate way and so was inherently unjustified in all or nearly all cases. In support, Lord Hodge cited a dictum of Aikens LJ, giving the only reasoned judgment in R (MM (Lebanon)) v Secretary of State for the Home Department [2014] EWCA Civ 985; [2015] 1 WLR 1073, para 134, to the effect that If the particular immigration rule is one which, being an interference with the relevant Convention right, is also incapable of being applied in a manner which is proportionate or justifiable or is disproportionate in all (or nearly all) cases, then it is unlawful. However, I myself see no basis for so high a numerical test. It cannot be necessary to establish incompatibility to show that a law or rule will operate incompatibly in all or most cases. It must be sufficient that it will inevitably operate incompatibility in a legally significant number of cases. That itself is, as Lady Hale observed, is a difficult hurdle to overcome. Very often the problem lies not in the law or rule itself, but in the way it has been understood or applied in practice, and, even in borderline cases, very often the solution can be found in a conforming interpretation, however bold, under section 3 of the Human Rights Act 1998. The latter course is not however possible in relation to the 1861 or 1945 Acts, in view of their unequivocal tenor and terms. Expert evidence Professor (or as he was then Dr) James Dornan, director of foetal medicine at the Royal Jubilee Maternity Service at the Royal Maternity Hospital, Belfast gave evidence to the court in the FPANI case and has given further evidence in the present proceedings. In the FPANI case (see paras 122 to 123), he explained how, after his appointment as a consultant with responsibility for foetal medicine in 1986, he had clarified with the Department of Health the implications of diagnosis of congenital deformities, and was, as he recorded in a letter dated 31 August 2001, informed that we should not change our clinical practice and that termination of pregnancy should be carried out for lethal abnormalities or abnormalities where there would be a major physical or mental problem for the foetus prior to the stage of viability. (At that time 28 weeks, now considered to be 24 weeks.) We were also informed that termination could be offered and performed on a pregnancy that could have a serious mental or physical effect on the mother. Therefore for the past decade, terminations of pregnancy for the above abnormalities have been offered to mothers and are carried out on mothers from throughout Northern Ireland in our unit. In the FPANI case (para 83), Nicholson LJ inferred that the Department of Health had not considered the legal position in relation to abnormal foetuses, and that It would appear that it has never been indicated to Dr Dornan or his colleagues that it might be necessary to obtain a psychiatric viewpoint on the mothers mental health, if that was the ground on which the abortion of a viable foetus was carried out or that the effect on the mothers health would have to be serious and long term. In the present proceedings, Professor Dornan has updated the position in a statement dated 17 October 2017, in which he records that the FPANI case made it clear that we could no longer offer a pregnant woman the option of an abortion on the grounds of fatal foetal abnormality alone, the focus had to be on the pregnant woman and a pregnancy could be lawfully terminated if its continuation threatened her life or would have a serious and long term effect on her physical or mental health (para 12). His statement endorses the Department of Healths and the Royal College of Midwiferys conclusions that foetal or serious foetal abnormalities can now be diagnosed with a high degree (Professor Dornan says extremely high degree) of accuracy. As to fatal or lethal abnormality, he summarises clinicians typical understanding of that term as applying where a foetus is diagnosed as liable to die during pregnancy, labour or within a short period of birth (para 17), and adds that clinicians are well able to accurately diagnose antenatally whether a foetus has a condition which is incompatible with life, whether in the sense that it is unlikely to be able to continue to term, to survive the birth process or to be able to maintain its vital functions independently for anything more than a few days (para 20). Professor Dornan also explains the risks of, in particular, sepsis to the physical health of a mother of an abnormal foetus, which may die and remain undetected in utero for a significant period (up to two weeks), as well as the significant risks to the mental health of a mother required to continue with a pregnancy knowing that her baby has a fatal abnormality and may die at any moment. Horner J accepted that The doctors know when the foetus has an FFA (a fatal foetal) abnormality. This is primarily a medical diagnosis not a legal judgment (para 160). Before the Supreme Court Christian Action and Research in Education (CARE), ADF International (UK) and Professor Patricia Casey as joint interveners suggested that other professional opinion differed but the evidence before the judge and his finding were clear. Factual cases put in evidence The Commissions case on the issue before the Court is supported by evidence relating to a selection of pregnant women. Their experiences are harrowing. Three cases concern foetal abnormality. In the first, Ashleigh Topley recounts her joy as a prospective mother in 2013, up to the point when a 20 week scan revealed her babys severe bone abnormality, with a fatal prognosis. A doctor explained that an abortion would be a possibility, only for that relatively hopeful outcome to be shattered by a consultants distressingly blunt statement the next day: Well, thats not going to happen, followed by another to the effect that, if Mrs Topley were to continue with the pregnancy, things would just proceed as normal. A later consultants appointment confirmed that the babys condition meant that it could survive through Mrs Topley in the womb, unless and until its heart ran out of room, but would not survive birth. At 35 weeks pregnant, her waters broke and she gave birth to a girl, whose appearance indicated that her heart had probably stopped beating two or so days earlier. During and after the pregnancy, Mrs Topley faced the ordeal of others congratulating her on her pregnancy or asking about the baby. A second sad case is that of Sarah Ewart, on whose behalf as an intervener the Supreme Court has received both written and oral submissions. In summer 2013, just prior to 20 weeks into her pregnancy, a scan revealed that her baby had anencephaly, the lack of a developed brain and skull. She was told that there was no risk to her health, and that the baby would be monitored fortnightly and labour induced if it was then discovered that it had died. She did not feel that she could say that her mental health was at risk (and a consultant psychiatrist later confirmed that he could not predict this either). She was horrified to discover that, without a skull, the baby could not travel down the birth canal, and decided that she could not face the prospect of a long and painful labour. Her mother contacted Assembly and Westminster representatives, with scant results. Her doctor explained the guidelines for abortion (presumably those developed after the FPANI case), and that nothing could be done for Ms Ewart in Northern Ireland, adding that she wasnt going to prison for anyone. The concerns of Ms Ewart, her husband and parents were increased by a departmental briefing to the effect that the courts in Northern Ireland have not ruled on whether it is lawful to encourage or arrange for someone to have a termination and that in the absence of current law on the subject, it remains a grey area and practitioners should be mindful of that fact. There were protesters outside the Family Planning Association in Belfast, who crowded round and abused them as they left. The Association had however by then arranged an appointment for an abortion in Streatham, where no one knew about anencephaly. Her Northern Ireland medical notes could not be transferred to the English clinic, where she felt criticised for having left an abortion so late and the process lacked dignity and was like a conveyor belt. There was, apparently because of a lack of clarity whether this would be permitted in Northern Ireland, no autopsy on the remains to provide an indication of the likelihood of recurrence of fatal foetal conditions. The whole experience was devastating and at times almost overwhelming. The third case is that of Denise Phelan, a qualified lawyer and teacher, who found herself having to carry until one month before her due date in summer 2016 a baby who she knew from an early stage could not live. Her evidence is that none of her professional training was of any assistance at all in dealing with the reality that in my most desperate time of need the law of Northern Ireland not only could not assist me but actually made things worse. She continued: The sadness I felt in learning that the foetus I was carrying had a fatal abnormality was completely overtaken by the horror of realising that I had to continue on with the pregnancy in the knowledge that the foetus could die at any moment and then there would be the awful experience of having to deliver it. After learning that her baby had Edwards Syndrome, Mrs Phelan and her husband were told that they would have to go to England if they decided to terminate the pregnancy, but that doctors in Northern Ireland could not because of the law give any information about that. She understood that there was a limit of 24 weeks for such a process, and was not informed to the contrary. When she and her husband asked further about English clinics, they were shocked not just at the cost which was over 1,400, but more so by how the abortion clinics acted like businesses and by the apparent absence of any NHS aftercare. She had a prior history of mental illness and chronic migraine, which reasserted itself with a vengeance, leaving her incredibly ill with grief, depression, and chronic migraine and vomiting. She records one psychiatrist saying on the telephone that if a mothers mental health was at risk, the symptoms would simply be treated with medication, while the psychiatrist who she saw assessed her as ineligible for an abortion under Northern Ireland law, saying the bar was set so high that an abortion on those grounds was impossible to obtain. With her husband she eventually made arrangements to attend an English abortion clinic in her 24th week, but she had chronic migraine and could not travel. She became even more depressed and ill as a result, and thought of committing suicide. She knew when her baby died, but it was five days before she was induced to give birth. During that period the dead baby released meconium which fills the womb and suffers decay, an experience for which no one had prepared her and her husband and which remains seared in her mind. As one example of a case involving rape, Dawn Purvis of Marie Stopes International Northern Ireland (MSNI) cites client B, who presented at MSNI pregnant after being raped by her partner, with whom she was enduring a domestically violent relationship and who had refused to allow her to use any contraception. Her GP had refused to refer her to any health care provider on the basis that abortion was illegal in Northern Ireland, and MSNI assessed her as ineligible for an abortion under Northern Ireland law. Client B was upset and distressed at being informed that she would have to travel to England for an abortion, this being compounded by her fear of her partner and of his reaction if he found out that she was pregnant and planning a termination. She underwent a termination outside Northern Ireland. Other examples of the distressing consequences of pregnancy following rape are given by Mara Clarke of Abortion Support Network (ASN). One is of a woman beaten and raped by a group of men including a close relative. Northern Ireland organisations and agencies knew of her circumstances, but none offered any assistance. She managed to raise 100 towards the costs of obtaining an abortion in England, including travel and accommodation, with ASN funding the remaining 1,200. She later told ASN that, without their help, she would be dead either by her own hand or by that of those who abused her. The case of two other interveners before the Supreme Court calls for mention. They are mother and daughter, identified as the JR76 interveners, referring to judicial review proceedings to which they are party in Northern Ireland. The daughter aged 15, and therefore legally unable to consent to sexual intercourse, became pregnant as a result of a relationship with a boy one year older. The boy was abusive, and threatened to kick the baby out of her and to stab it if born. The daughter wanted to continue her schooling and go to university. Discussing the situation with her supportive mother, the daughter decided that she could not go through with the pregnancy or a termination in England. She would have had to obtain travel documents and go with her mother. Instead, she asked her mother to obtain pills to put an end to the pregnancy, neither apparently realising this was unlawful. Taking the pills led to heavy bleeding, as a result of which the daughter saw her GP, but not to termination of the pregnancy. The GP referred her to Children and Adolescent Mental Health Services (CAMHS), who advised a referral to a local maternity/gynaecologist clinic and also contacted Social Services, who a month later contacted the Police Service of Northern Ireland (PSNI). The PSNI then, without notice, obtained her medical records from her GP and CAMHS, which led to her being questioned on child protection grounds in her mothers absence, and then to her mother being interviewed under caution and charged by the Public Prosecution Service for Northern Ireland. The pending judicial review proceedings relate to that decision to prosecute. As an example of pregnancy due to incest, Dawn Purvis identified client C, aged under 13, who presented at MSNI with a relative after becoming pregnant as a result of familial sexual abuse elsewhere within the family. Client C had, as is common in such cases, concealed the abuse and pregnancy beyond nine weeks and four days. MSNI only provide medical abortions within that period, and then not to girls under 16. MSNI initiated its safeguarding procedures and social services and the PSNI became involved. Client C became frightened and distressed when told that she would have to travel to England, but did so. Subsequently, the PSNI have asked to retain the products of conception, and have travelled to England to collect them. These are distressing cases. But they are not before the Court for resolution, in the way that they could have been if those directly involved in them had brought proceedings as victims. Had these cases been before the Court, the circumstances of each would have been the subject of individualised investigation and adjudication. Instead, they are deployed in support of a general challenge to Northern Ireland law as incompatible with the Convention rights. Further, the Court is invited to address this challenge in terms of risk. An analogy is suggested with cases such as Chahal v United Kingdom [1996] 23 EHRR 413 and Saadi v Italy [2008] 49 EHRR 30, where the European Court of Human Rights identified as the relevant test of the legitimacy of a deportation, whether there would be a real risk of torture or inhuman or degrading treatment in the country to which deportation was proposed. In my view, these points demonstrate the problem about treating the Commission as having a generalised competence to challenge legislation, and illustrate a likely reason why the NI Act 1998 was framed so as not to confer such a competence. When a challenge is made by a victim, the court focuses on the treatment which the victim has actually received or is actually receiving, and its cause may well prove not to have been the applicable legislation, but rather the way this was (mis)understood or (mal)administered. In contrast, where, as here, the claim is that the legislation itself presents a risk of treatment incompatible with the Convention, the focus is in one sense narrowed, in so far as it is now solely on the legislation and its effect, but in another sense broadened, in so far as it is submitted that compatibility must be judged not by reference to actual facts, but by reference to risk. That said, others among my colleagues consider that the Commission is competent to bring the present proceedings. In the circumstances I shall go on to express my own views on the generalised challenges which are made. The starting point is that an unborn foetus is not treated in domestic law as being already a person. In the context of abortion, a conclusion that a foetus is not a person appears to follow naturally from the interpretation of the 1861 and 1945 Acts, according to which the preservation both of the mothers life and of her long term mental health from serious damage prevail, without more, over any interests of the unborn foetus. The English law position was considered more generally in In re MB (Medical Treatment) [1997] EWCA Civ 3093; [1997] 2 FLR 426, 444. The issue there was whether the court had power to compel a woman of competent decision making power to have a caesarean in order to save her unborn child. The Court of Appeal rejected the existence of such a power, saying forcibly: The law is, in our judgment, clear that a competent woman who has the capacity to decide may, for religious reasons, other reasons, or for no reasons at all, choose not to have medical intervention, even though, as we have already stated, the consequence may be the death or serious handicap of the child she bears or her own death. She may refuse to consent to the anaesthesia injection in the full knowledge that her decision may significantly reduce the chance of her unborn child being born alive. The foetus up to the moment of birth does not have any separate interests capable of being taken into account when a court has to consider an application for a declaration in respect of a caesarian section operation. The court does not have the jurisdiction to declare that such medical intervention is lawful to protect the interests of the unborn child even at the point of birth. (italics added) In Attorney Generals Reference (No 3 of 1994) [1998] AC 245, the House concluded, as the headnote puts it, that a foetus is neither a distinct person separate from its mother, nor merely an adjunct of the mother, but was a unique organism to which existing principles could not necessarily be applied. This introduces a note of caution about any absolutist attempt of definition, and the italicised sentence in the quotation from In re MB (Medical Treatment) above may in that respect be too dogmatic. The European Court of Human Rights has also taken a somewhat more nuanced approach. Vo v France (2004) 40 EHRR 12 was concerned with a case where a doctor by negligence had caused the termination of a pregnancy at the 20 to 24 weeks stage. The doctor had been acquitted of causing unintentional harm on the ground that the foetus was not at that stage a person. Complaint was made that this involved a breach of article 2. The European Court of Human Rights after considering the previous case law said that, in the circumstances examined to date, under various national laws on abortion, the unborn child is not regarded as a person, directly protected by article 2. However, it went on to leave open the possibility that in certain circumstances certain safeguards might be extended to the unborn child (para 80). In the context of the new situation before it, no single answer could be given to the question when life begins and who is a person. The question was within each states margin of appreciation (para 82). But, so far as there was a consensus, it was only that the foetus/embryo belonged to the human race and had the potential to develop into a full person (para 84). In A, B and C v Ireland (2010) 53 EHRR 13, the issue was whether the Irish prohibition on abortion was compatible with the Convention. The prohibition applied save where necessary to save the mothers life, so obliging pregnant mothers fearing for their health or well being if their pregnancy continued to travel to England for an abortion. The Court at para 213 referred to Vo v France in support of a dictum that the womans right to respect for her private life must be weighed against other competing rights and freedoms involved including those of the unborn child. That is a more open ended proposition, but at para 222 the Court repeated that it had been confirmed by the Courts finding in . Vo v France that it was neither desirable nor possible to answer the question of whether the unborn was a person for the purposes of article 2 of the Convention. In the light of this and of the Courts case law generally, the Court cannot in para 213 be read as equating the interests of an unborn child with those of the mother in the context of abortion. Article 3 The Commissions primary case is that the 1861 and 1925 Acts infringe article 3. Article 3 contains an unqualified or absolute prohibition of torture and of inhuman or degrading treatment or punishment. The European Court of Human Rights explained the concept in Gfgen v Germany (2010) 52 EHRR 1, para 88 in these terms: In order for ill treatment to fall within the scope of article 3, it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age, and state of health of the victim. Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions. Again, it is apparent that the exercise which the Commission invites of judging the general incompatibility of legislation with article 3 sits uneasily with the case by case and contextual approach with which both the European Court of Human Rights and domestic courts are more familiar under article 3. The European Court of Human Rights has considered article 3 in the context of abortion in a number of cases. A, B and C v Ireland is a useful starting point, although it did not concern foetal abnormality, rape or incest. The three applicants, all resident in Ireland, each travelled to England for an abortion, believing that they had no right to one in Ireland. Each had become pregnant unintentionally. The Court found that the first applicant had had an abortion for reasons of health and well being, namely her history of alcoholism, post natal depression and difficult family circumstances, the second applicant had had an abortion because she did not feel ready to be a mother, and the third applicant had had an abortion because of a fear (whether or not well founded) that her pregnancy constituted a risk to her life, because it might cause her cancer to recur and mean that she did not then receive cancer treatment in Ireland. The Court accepted that, although the psychological impact was not susceptible to clear proof, travelling abroad for an abortion constituted a significant psychological burden on each applicant (para 126), and said that an abortion in Ireland would have been a less arduous process, as well as less expensive. The third applicant made the additional complaint (which the Court upheld under article 8) that there had been no proper regulatory framework and system for considering and establishing whether she was entitled to an abortion in Ireland. The judgment is of interest for the Courts treatment of the complaints made in the above circumstances by all three applicants under article 3. The Court recited the effect of the first two sentences quoted above from Gfgen and went on simply to say that the facts alleged do not disclose a level of severity falling within the scope of article 3, with the result that it rejected the complaints under that article as manifestly ill founded (paras 164 165). I note in passing that, contrary to the Commissions submissions before the Supreme Court, I see no reason to exclude as a relevant factor in the connection that the foetuses in question would have been viable. The first and second applicants complaints under article 8 were rejected on the ground that the prohibition in Ireland of abortion for health and well being reasons, based as it is on the profound moral views of the Irish people as to the nature of life left open the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, and represented a choice which fell within the margin of appreciation accorded to the Irish state (para 241). The third applicant succeeded under article 8 on special grounds, as already mentioned. In two cases the European Court of Human Rights has held that article 3 was infringed by failures to give effect to rights to an abortion which domestic law in the circumstances conferred. It is well established in Strasbourg case law that a Convention breach may consist in failing to give effect to domestic law rights, even though there is no Convention obligation on domestic law to provide such rights: see eg RR v Poland (2011) 53 EHRR 31, para 200, Marckx v Belgium (1979) 2 EHRR 330, para 31, and Stec v United Kingdom (2005) 41 EHRR SE18, para 53. In RR v Poland the applicant learned of possible malformation of the foetus from an ultrasound at the 18 week stage. Her repeated requests for genetic tests were met with procrastination, confusion and a lack of proper counselling and information, and it was not until the 23rd week that, with the help of a sympathetic doctor, she was able to gain access to a hospital by subterfuge and have appropriate tests, the results of which were only available two weeks later. She was then told that the foetus had Edwards syndrome, but was refused an abortion on the basis that it was now too late, after the 24 week stage. As a result, she had to carry the baby to term, and deliver it. The legislation providing for abortion expressly, and unequivocally entitled a pregnant woman to unimpeded access to prenatal information and testing (para 156). The applicant was in a situation of great vulnerability and deeply distressed by the information that the foetus could be malformed (para 159). The services not provided to her had been available, and she had been shabbily treated and, as the Polish Supreme Court had also found, humiliated (para 160). In P and S v Poland [2012] 129 BMLR 120, P aged 14 became pregnant due to rape, evidenced by bruises. Polish law permitted an abortion in such circumstances, but the reality of its practical implementation was in striking discordance with the theoretical right. P was given contradictory information and was subject to religious pressure, medical procrastination, combined with the release by a hospital of information to the national press, exposing P to public comments, unwanted and intrusive text messages from unknown persons and harassment by anti abortion activists. The Lublin Family Court even removed P from the custody of her mother (S), on the (unfounded) basis that her mother was pressurising her to have an abortion contrary to her wishes, and put her in a juvenile shelter. Eventually, after S complained to the Ministry of Justice, she was informed that P could have an abortion in Gdansk, 500 kilometres away. S and P drove there clandestinely and the abortion was carried out on 17 June 2008. Nonetheless, in July 2008 criminal proceedings were begun against P on suspicion of unlawful sexual intercourse with a minor under 15. These proceedings were only dismissed in November 2008 on the basis that P was the victim, not the perpetrator. In these circumstances, the Court focused on Ps great vulnerability, her young age, the extent to which she had been pressurised and exposed to unwanted public attention, the misguided criminal proceedings commenced against her, and (echoing a phrase from RR v Poland) procrastination, confusion and lack of proper and objective counselling and information throughout; and on that basis found a breach of article 3. In contrast, in Tysiac v Poland (2007) 45 EHRR 42, the Court rejected the applicants complaint under article 3, while accepting it under article 8. She had complained about the failure to afford her an abortion in circumstances where she had an understandable fear that giving birth would lead to her losing her already poor sight, leading to a further six months of pregnancy and a caesarean birth, after which her sight did in fact deteriorate significantly (although the causation of this was in issue), causing her immense personal hardship and psychological distress. The Court held that there was no adequate system in Poland for deciding whether an abortion was lawful and appropriate, for resolving issues arising in this connection and for enabling the applicant to know her position, thereby exposing her to prolonged uncertainty, severe distress and anguish. Nonetheless, the Court only held there to have been a breach of article 8. The case made under article 3 was rejected, evidently on the ground that the ill treatment did not reach the requisite level of severity, since the Court referred in this connection to Ilhan v Turkey (2000) 34 EHRR 36, para 87, which proceeded on that basis. These three cases are all instances of careful consideration of particular facts, to decide whether the relevant threshold of severity has been crossed. They were decided on an assessment of the actual circumstances of the conduct relied on as contrary to article 3. They were not decided by reference to an assessment of the risk that the State might commit an actual breach of article 3. They lend no support to a general conclusion that the current Northern Irish legislative position necessarily involves a breach of article 3 in respect of any pregnant woman faced with a choice between carrying her foetus to term or travelling abroad for an abortion. Even when one takes into account that the present case concerns pregnancies where the foetus is diagnosed as fatally or seriously abnormal or is the result of rape or incest, it remains the case that the pregnant woman may, and it seems likely in most cases can if she chooses, travel elsewhere from Northern Ireland for an abortion. It is clear that this can be a distressing and expensive experience, even taking into account that it has now been accepted that the NHS should bear the costs of such an abortion in England. Nevertheless, this is the result of current Northern Irish legislative policy, which itself no doubt originates in moral beliefs about the need to value and protect an unborn foetus. In these circumstances, I do not see that current Northern Ireland law can be regarded as giving rise either generally or necessarily in any case to distress of such severity as to infringe article 3, any more than the European Court of Human Rights considered it to be in A, B and C v Ireland. Instead, the focus should be on individual cases, in a way which the Commissions actio popularis does not permit. The appellant submits that it is wrong to look solely in this connection to article 3 of the Human Rights Convention. International legal material under other instruments, to which the European Court of Human Rights would itself have regard, can and in their submission should inform the view taken of article 3: see eg Opuz v Turkey (2009) 50 EHRR 28, para 185. In the present context, the Commission invites attention to decisions of the United Nations Human Rights Committee (UNHRC) in relation to article 7 of the International Covenant on Civil and Political Rights, the first sentence of which is, with the addition of the further alternative cruel before inhuman or degrading, in identical terms to the first sentence of article 3 of the Human Rights Convention. In Mellet v Ireland (9 June 2016) and Whelan v Ireland (17 March 2017), substantially overlapping groups of distinguished international lawyers have recently considered specific complaints by two Irish women about the circumstances in which they were denied abortions in respect of fatally abnormal foetuses in Ireland, and were compelled to travel abroad to obtain them. In each case, the UNHRC concluded that the prohibition on abortion in Ireland, the shame and stigma associated with the criminalisation of abortion of a fatally ill foetus, the compulsion in such a case to travel abroad from the familiar home environment to have an abortion, the lack of information and assistance in Ireland, before and after such abortion, the fact of having to leave the babys remains behind and then in Whelan having them unexpectedly delivered by courier, were all factors combining to lead to a conclusion that article 7 was breached. In each case, the UNHRC also concluded that there was arbitrary or unlawful interference with the complainants privacy contrary to article 17 of the Covenant. Mellet and Whelan represent the conclusions of distinguished lawyers under a different international treaty to the Human Rights Convention. In both cases, the UNHRC received and recorded submissions from the Irish government on A, B and C v Ireland. The UNHRC did not, however, specifically address the requirement under the case law of the European Court of Human Rights for treatment to have a significant severity before it falls to be treated under article 3, compared for example with article 8 of the Convention, or consider the (perhaps more restrictively worded) equivalent of article 8 to be found in article 7 of the Covenant. Further, in both decisions, the UNHRC was at pains to note that, according to General Comment No 20 on the Covenant, its text was not limited, and no justification or extenuating circumstances may be invoked to excuse a violation for any reason: Whelan at para 7.7. While it also true that article 3 of the Human Rights Convention is in terms unqualified, the contextual application which the European Court of Human Rights adopts (para 94 above) militates against too absolutist an approach. It is not clear that the UNHRC takes the same approach. Even so, both UNHRC decisions adopt the same approach as the European Court of Human Rights, in that they focus intensely on the particular facts. Although the UNHRC decisions do so in the context of fatal foetal abnormality, which is now in issue before the Supreme Court, they are not authorities as to the position under the Human Rights Convention and, even if they were, they could not stand for a general proposition that the Northern Ireland legislation with which the present appeal is concerned must itself be condemned as generally incompatible with article 3. For these reasons, therefore, I would reject the Commissions general case that the 1861 and 1945 Acts are of themselves incompatible with article 3 of the Human Rights Convention. That does not mean that the Northern Ireland authorities treatment of a pregnant woman, with a foetus with a fatal abnormality or the result of rape or incest (or, indeed, in other cases) may not on particular facts achieve that level of severity that justifies a conclusion of breach of article 3. It means only that the legislation by itself cannot axiomatically be regarded as involving such a breach. Article 8 It is common ground that the prohibition of abortion in the circumstances in issue on this appeal constitutes an interference coming within the scope of, or engaging, article 8 in the case of persons affected by that prohibition: see also A, B and C v Ireland, para 214. But article 8 is, in contrast to article 3, qualified by reference to the interests identified in its para 2 and set out in para 80 above. In A, B and C v Ireland the questions arising were addressed under three heads: (i) Was the interference in accordance with the law? (ii) Did it pursue a legitimate aim? (iii) Was it necessary in a democratic society? In domestic authority a more detailed, overlapping schema is commonly identified: (i) Was the aim or objective of the interference sufficiently important to justify the limitation of a fundamental right? (ii) Was the interference rationally connected to such aim or objective? (iii) Could a less intrusive measure have been used? (iv) Having regard to these matters and to the severity of the interference, was a fair balance struck between the rights of the individual and of the community? See Bank Mellat v Her Majestys Treasury (No 2) [2014] AC 700, per Lord Sumption at para 20 and, in slightly greater detail, Lord Reed at para 74. Taking head (i), in the present context, the interference was prescribed by law the 1861 and 1945 Acts. I have already noted that this appeal is not about whether those Acts define sufficiently clearly the circumstances in which abortion is permitted. It is clear at least since the FPANI case that they exclude, as such and without more, abortion in the circumstances of foetal abnormality and of pregnancy due to rape or incest, with which this appeal is concerned. The next step, taking head (ii), is to identify and consider the legitimacy of the aim or objective of the legislative prohibition. In terms of article 8(2), the potentially relevant interests are the protection of health or morals, and, perhaps, if a foetus is treated as or equated with an other, the protection of the rights and freedoms of others. It is clear that there exists in Northern Ireland a considerable body of religious or moral opinion that places great weight on the interests of the unborn child and believes that, even in the situations in issue on this appeal, those interests deserve such protection as the present legislative prohibition affords. How much protection is actually achieved, when the possibility exists and is clearly taken up by many pregnant women of travelling abroad for an abortion, is however very doubtful. The likelihood is that it is only a few women who are not sufficiently informed or sufficiently funded and organised who miss out on this possibility. With regard to the moral or religious case made against abortion, in A, B and C v Ireland (para 222) the European Court of Human Rights recalled that it had in Open Door Counselling and Dublin Well Woman v Ireland (1992) 15 EHRR 244: found that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum. The impugned restriction in that case was found to pursue the legitimate aim of the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect. The position in Ireland was that, pursuant to the 1983 referendum, the Eighth Amendment to the Irish Constitution was passed to the effect that Ireland acknowledges the right to life of the unborn and with due respect to the equal right to life of the mother, guarantees in its laws to regard and, as far as practicable, by its laws to defend and vindicate that right. A, B and C v Ireland shows that a constitutional choice in such terms is well capable of constituting the pursuit of a legitimate aim, even though it is not one which is shared by, or reflects any sort of consensus in, other Council of Europe States. In A, B and C v Ireland, the Court was not persuaded that limited opinion polls put before it by the applicants were sufficiently indicative of a change in the views of the Irish people, concerning the grounds for lawful abortion in Ireland, as to displace the states opinion to the Court on the exact content of the requirements of morals in Ireland (para 226). The position in Northern Ireland is very different. The retention in Northern Ireland of the 1861 and 1925 Acts, without qualification, is not the result of, and has not been endorsed by, any referendum. It reflects without much doubt a deliberate moral choice or choices in the past on an issue which is still controversial. But the extent of the protection given to the foetus is less extensive than in Ireland. There is no express recognition of a right, still less an equal right, to life on the part of the unborn, and the Northern Ireland legislation permits abortion to protect not only the life of the pregnant woman, but also her mental health from serious long term injury. Further, Mr McGleenan for the Department of Justice does not argue that a foetus has a free standing right to life, but for an analysis along the lines adopted by the European Court of Human Rights in Vo v France, whereby the foetus has a potential and intrinsic value. The issue is currently controversial for at least two reasons. First, the Commission has been pressing the Northern Ireland Department of Justice since 2013 to present proposals for amending the law in all the areas before the Supreme Court. The Department eventually concluded that the law should be reconsidered as a matter of policy, not, Mr McGleenan stressed, because it considered that the Convention required such reconsideration. But it confined its October 2014 consultation paper, as well as its June 2015 paper seeking approval to draft a bill, to fatal foetal abnormality. In February 2016 the Northern Ireland Assembly voted by 59 votes to 40 against amendments to the Justice (No 2) Bill which would have legalised abortion in cases of fatal foetal abnormality and by 64 votes to 32 against amendments legalising abortion in cases of rape, incest or indecent assault. The opposition to these amendments was presented on the basis that the Justice Bill was the wrong vehicle for consideration of an issue which was best dealt with in a more measured way, and was accompanied by a proposal for a working group. Such a group was set up, and it is anticipated that it will recommend reform. But, in the absence of any Northern Ireland government since early 2017, no progress has been possible. Nonetheless, Mr McGleenan submits, the ordinary legislative process should be followed, even though it is, at least for the time being, at an impasse. On the other hand, the Commission now submits that there is strong public support for changes in the law. A poll commissioned by Amnesty International in 2014 found that respectively 69%, 68% and 60% of those polled people considered that abortion should be permitted in cases of respectively rape, incest and fatal foetal abnormality. In 2017 the Northern Ireland Life and Times Survey, a joint project of Queens University, Belfast and the Ulster University, reported on the results of a survey undertaken in 2016, which showed the following percentages definitely or probably in favour of permitting abortion in the following situations: Probably Foetus 23 has fatal abnormality and will not survive birth Foetus has serious abnormality and may not survive birth Pregnancy due to rape or incest A woman has a serious health condition and a doctor says she will die if she continues with the pregnancy A doctor says there is a serious threat to the womans physical or mental health if she continues with the pregnancy Definitely 58 24 27 54 56 30 28 46 45 17 44 31 17 A doctor says there is more risk to the life of a pregnant woman if she continues with the pregnancy than if she were to have an abortion A woman wants an abortion because she does not want to have children Neither Horner J nor Weatherup LJ in the Court of Appeal was prepared to put much weight on opinion polls in the present context. Weatherup LJ noted that a referendum had not been held and could not be expected in Northern Ireland where the use of a referendum is usually reserved for constitutional issues (para 145). Accordingly, he said, support for a measure must be gauged by the votes of members of Parliament and in respect of devolved matters that means the votes of the members of the Northern Ireland Assembly. Weatherup LJs observations address an important point. The paradigm, at both the Westminster and devolved levels, is one of representative democracy. It is integral to representative democracy that a Parliament or other legislative Assembly may reach and maintain decisions which would not be shared by a majority if put to a popular vote. A classic instance is the abolition in most cases of the death penalty in the UK in 1965, in circumstances where public opinion overwhelmingly supported its retention at that date, and appears to have remained on balance in favour of such a penalty until 50 years later. Where deployed as an exception to this paradigm, a referendum can certainly have a potent effect. But there are no rules as to when referenda take place, and none is likely on the subject of abortion in Northern Ireland. And opinion polls can never equate to a referendum. Views elicited by opinion polls cannot by themselves prevail over the decision to date by the Northern Ireland Assembly to maintain, at least for the present, the existing policy and law. As a matter of general principle, the paradigm must apply, when it comes to deciding whether the present prohibition pursues a legitimate aim or objective. The one qualification that may be made relates to the nature of the Assemblys most recent vote on 10 February 2016 to reject amendments to the Justice (No 2) Bill: para 109 above. Out of a total of 108 potential votes, I understand that most of the Ulster Unionist members (with 16 votes between them) and Alliance members (with 8 votes between them) were in favour of the amendments, while the Democratic Union Party (the DUP), the largest party (38 votes) does not appear to have rejected the amendments for reasons of inflexible moral principle, but rather because the issues demanded careful consideration from the medical professionals, practitioners, families and ethics and legal experts to ensure that sufficient and proper clarity and guidance are the hallmarks of the way forward. It was the DUP which in these circumstances proposed the establishing of a working party as the key to a sensible, informed and appropriate way forward, with a view to its reporting in six months. Since January 2017, any such solution has been precluded by the cessation of the Assemblys activity, and over two years have now elapsed since the vote on 10 February 2016 without any step towards a real resolution of this pressing issue. Taking the approach of the European Court of Human Rights in A, B and C v Ireland, the focus moves to question (iii): was the interference necessary in a democratic society? Taking the more detailed approach indicated in Bank Mellat, the interference can be seen to be rationally connected with the fulfilment of the relevant aim or objective, in so far as the aim or objective is a moral one. On the other hand, if the connection is viewed by reference to the success of the current legislation in preserving births and lives of babies who would otherwise be aborted, the connection is less readily sustained, bearing in mind the lack of up to date evidence on this point. In August 2017 the Advertising Standards Authority rejected a complaint that a poster issued by the pro life campaign group BothLivesMatter was misleading, when it estimated at 100,000 the total number of people alive in Northern Ireland today, who would not be had the Abortion Act 1967 been extended to Northern Ireland. That figure does not however bear or help in any way in relation to the situations of abnormality, rape and incest in issue on this appeal. The real issue on this appeal is, on that basis, whether the interference was necessary in a democratic society, in the sense that, having regard to all the relevant matters, it struck a fair balance. In the present context, that means a fair balance between the rights of the pregnant woman and the interests of the foetus which the community has by maintaining the 1861 and 1925 Acts determined to merit protection. In relation to this central issue, the Supreme Court faces a fundamental question about its role in relation to that of the Northern Ireland Assembly, which has until now determined to maintain the 1861 and 1925 Acts unamended in an area where devolution has conferred on it legislative competence to amend the law. Looked at from the perspective of the European Court of Human Rights, there is no doubt that this is a situation where that Court would afford the United Kingdom, represented in this context by the Northern Ireland Assembly, a large margin of appreciation. That is evidenced by A, B and C v Ireland, although as pointed out in the concurring judgment of Judge Lpez Guerra, joined by Judge Casadevall in that case, the margin is not unlimited at the Strasbourg level. Here, however, the Convention rights have been domesticated, and the position in that context is on any view different. As Lord Hoffmann put it in In re G [2009] 1 AC 173, para 37: In such a case, it is for the court in the United Kingdom to interpret articles 8 and 14 and to apply the division between the decision making powers of courts and Parliament in the way which appears appropriate for the United Kingdom. The margin of appreciation is there for division between the three branches of government according to our principles of the separation of powers. There is no principle by which it is automatically appropriated by the legislative branch. See also my judgment, at paras 128 130, where I pointed out that Sections 3, 4 and 6 of the Human Rights Act 1998 define the courts role in relation to the new domestic Convention rights. Courts must act compatibly with them (unless primary legislation precludes this, when all that courts can do is make a declaration of incompatibility). But I added this important note of caution: In performing their duties under sections 3 and 6, courts must of course give appropriate weight to considerations of relative institutional competence, that is to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies: see Brown v Stott [2003] 1 AC 681, 703, though the precise weight will depend on inter alia the nature of the right and whether it falls within an area in which the legislature, executive or judiciary can claim particular expertise: see R v Department of Public Prosecution, Ex p Kebilene [2000] 2 AC 326, 381 per Lord Hope of Craighead. The Supreme Court has quite recently had again to consider its role in relation to the United Kingdom Parliament in a context which can be seen as having both similarities to and differences from the present. R (Nicklinson) v Ministry of Justice [2015] AC 657 involved the question whether primary legislation which prevented assistance being given to persons with locked in syndrome who wished to commit suicide was compatible with Convention rights. The Supreme Court by a majority reiterated the applicability in this context of the approach taken in In re G. But, by a different majority, it also held that it would be inappropriate to make a declaration of incompatibility. One reason given by some of the members of the majority in this connection was that proportionality is sensitive to considerations of institutional competence and legitimacy and that a further opportunity should be given for both ministerial and Parliamentary reconsideration (see paras 115 116 per Lord Neuberger, paras 166 170 per Lord Mance and para 197(d) per Lord Wilson) without prejudging the position if Parliament chose to maintain the blanket prohibition on assisting suicide. On the present appeal, the Department of Justice and the Attorney General for Northern Ireland are able to rely on Nicklinson, when submitting that the Northern Ireland Assembly should be given the opportunity of completing its unfinished work of examination of the present law. The obvious difficulty about this has already been identified. There is no assurance as to when or even that the Northern Ireland Assembly will resume its activity or address an issue on which it had wished to receive the working party report some 20 months ago. Nicklinson was also a different case from the present in significant respects. First, it centred on a difficult balancing exercise between the interests of different adult persons: on the one hand, the sufferer with locked in syndrome, unable to act autonomously, but unable to receive assistance to commit suicide; on the other hand, the others, elderly or infirm, who might feel pressured by others or by themselves to commit suicide, if assistance were permissible. The balancing of autonomy and suffering against the risks to others was and is a particularly sensitive matter. The legislature had chosen an absolute protection against the latter risks, with which the courts should not, at least at that juncture, interfere. On the present appeal, there is in law no question of a balance being struck between the interests of two different living persons. The unborn foetus is not in law a person, although its potential must be respected. In addition, the current legislation already recognises important limitations on the interests and protection of the unborn foetus. It permits abortion of a healthy foetus in circumstances where the mothers life would be at risk or where she would suffer serious long term damage to her physical or psychological health. There is therefore no question of any absolute protection of even a healthy foetus. The Northern Ireland position is in that respect also more nuanced than the Irish position considered in A, B and C v Ireland, where the profound moral views identified by the European Court of Human Rights subordinated the interests of the unborn foetus in only one situation, namely where the pregnant womans life would otherwise be compromised. A further difference is that Nicklinson was decided against a background where the attitude maintained by the United Kingdom Parliament reflected a similar attitude across almost the whole of the rest of Europe. Northern Ireland is, in contrast, almost alone in the strictness of its current law, with Irelands even stricter regime having been reconsidered in the referendum held on 25 May 2018, in which the people of that country voted by a large majority (66.4%) to replace the Eighth Amendment of the Irish Constitution, effected in 1983 (which had, as already stated, affirmed the right to life of the unborn, and guaranteed, with due regard to the equal right to life of the mother, to respect and, as far as practicable, but its laws to defend and vindicate that right, by the simple words: Provision may be made by law for the regulation of termination of pregnancy. Under the Eighth Amendment, prior to such replacement, and in the light of Irish Supreme Court decision in Attorney General v X [1992] IESC 1 (a case of pregnancy following rape) and the Protection of Life during Pregnancy Act 2013, abortions were only permissible where there was a real and substantial risk to the womans life (including by suicide). None of this of course means axiomatically that the Northern Irish position may not be justifiable. The margin of appreciation has its domestic homologue in the respect due to the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies, which I mentioned in In re G (para 130). But the close ties between the different parts and peoples of the United Kingdom make it appropriate to examine the justification for the differences in this area with care. One might think that this would also apply as between peoples living and able freely to interchange with each other on the same island. In the light of the above, it is, I think, appropriate to examine the substantive position in relation to the present prohibition before returning to the question whether the Supreme Court should express its own view on the proportionality of the prohibition, rather than leaving it to the Northern Ireland Assembly to complete its consideration of the matter, when and if it resumes operations. I start with cases of fatal foetal abnormality, and identify in this context a number of considerations. Fatal foetal abnormality First, the present position in Northern Ireland is, as I have pointed out, not an absolutist, but a qualified, one. The interests of even the entirely viable foetus are already subordinated not simply to the life, but also to the maintenance, in substance, of the long term physical and psychological health, of the pregnant woman. Second, and in contrast, a pregnant woman is in Northern Ireland refused an abortion of a foetus which can be and has been diagnosed definitively as suffering a fatal abnormality which will cause it either to die in the womb or shortly after birth. In the case of a foetus with a fatal abnormality, Horner J said there was nothing to weigh in the balance (para 160). That may perhaps put the point too high, but, even if it does, I agree with his view that the present law cannot be regarded as proportionate. It is difficult to see what can be said to justify inflicting on the woman the appalling prospect of having to carry a fatally doomed foetus to term, irrespective of such associated physical risk as that may on the evidence involve. Third, the moral beliefs or policy views at the origin of the present law, or relied on now to justify it, cannot in my opinion explain the contrast in the treatment of these two situations. Even viewing the latter situation by itself, they cannot justify the infliction of such suffering on women who, by definition, do not share such beliefs or views. Fourth, the present law treats the pregnant woman as a vehicle who must (as far as Northern Ireland is concerned) be expected to carry a foetus to birth, whatever the other circumstances, and whatever her wishes, as long as this experience does not end her life or ruin her health. As Ms Dinah Rose QC for the Family Planning Association and other interveners submitted, and as I would accept, that approach fails to attach any weight whatsoever to personal autonomy and the freedom to control ones own life: values which underpin article 8 of the Convention. Fifth, whatever view may be taken on the first four points, the actual effect of the present law in achieving its aims appears negligible as well as haphazard, in so far it appears probable that all it does is put the large majority of women affected to the stress, indignity and expense of arranging for a mechanical process of abortion away from their familiar home surroundings and sources of local support, while meaning that a minority of women, less well informed, funded or organised, miss out on an abortion altogether (witness the experiences of Mrs Topley and Mrs Phelan). Even for the majority who do travel abroad, the potential stress and trauma is clearly substantial and potentially long term, even though not sufficiently serious to justify an abortion under current Northern Ireland law. The European Court of Human Rights in A, B and C v Ireland relied on the possibility of travelling abroad to have an abortion as a reason for not condemning Irish law. To my mind, however, the fact that the present Northern Ireland law does not achieve its identifiable aims, in most cases, but merely outsources the issue, by imposing on the great majority of women within the categories in issue on this appeal the considerable stress and the cost of travelling abroad, away from their familiar home environment and local care, to undergo the humiliating conveyor belt experience described in evidence, is a potent indication that the present law is disproportionate. In so far as it does achieve such aims, it in effect victimises unfortunates who miss this humiliating opportunity, because of stress, confusion or lack of funding or organisation in the situation in which they find themselves. I cannot therefore regard the present law as striking a proportionate balance between the interests of women and girls in the cases of fatal foetal abnormality, when it fails to achieve its objective in the case of those who are well informed and well supported, merely imposing on them harrowing stress and inconvenience as well as expense, while it imposes severe and sometimes life time suffering on the most vulnerable, who, commonly because of lack of information or support, are forced to carry their pregnancy to term. A number of the considerations identified in relation to fatal foetal abnormality apply with equal force in relation to rape. This is so in particular in relation to the considerations identified in paras 122, 125 and 126. As to the considerations identified in paras 123 and 124, pregnancy following rape must be considered on the assumption that the foetus is perfectly viable. The moral beliefs or policy relied on to justify the current law focus on that point. But pregnancy following rape presents anguish of a different nature, certainly comparable in severity with that imposed on a woman who is expected to carry a foetus with a fatal abnormality to term. In the case of a pregnancy resulting from rape, a woman is not just expected to carry the foetus to birth, as long as the experience does not end her life or ruin her health (the consideration identified in para 125). She is also potentially responsible for the child once born, under a relationship which may continue as long as both live. Causing a woman to become pregnant and bear a child against her will (as by a negligently performed vasectomy of a partner in McFarlane v Tayside Health Board [2000] 2 AC 59) was described in Parkinson v St James and Seacroft University Hospital NHS Trust [2001] EWCA Civ 530; [2002] QB 266, para 58 as an invasion of that fundamental right to bodily integrity. Hale LJ went on there to describe the profound physical and psychological changes involved in pregnancy, as well as the continuing responsibilities, legal and practical, of a mother after giving birth, of which, short of adoption, she cannot rid herself. The additional burden and torment of being expected to carry to birth and thereafter to live with a baby who is the product of a rape can only be imagined. Sexual crime is, as Horner J said at para 161 the grossest intrusion on a womans autonomy in the vilest of circumstances. This is a situation where the law should protect the abused woman, not perpetuate her suffering. That this trauma will not by definition amount to serious and long term psychological injury seems to me quite insufficient to outweigh this consideration. Again, there is the possibility, very probably taken up by most in these categories, of travelling abroad for an abortion (the consideration identified in para 126). Again, I am unable to regard this as any justification of the law. On the contrary and for reasons already given in para 126, I regard it rather as a factor confirming its disproportionality. The current law in Northern Ireland does not significantly achieve its object. It stresses and humiliates the majority and victimises the minority. I therefore conclude that the current law is disproportionate in relation to cases of pregnancy due to rape. Incest It is clear from the legislation itself, briefly outlined in para 44 above, that there are differences between cases which fall, colloquially though no longer in law, under the head of incest. Cases of pregnancy resulting from sexual activity with a child, falling within article 32 of the 2008 Order, are clearly at one end of a scale. But Professor Jennifer Temkin LLD of Sussex University, an expert in the field, also records (citing in support D E H Russells Sexual Exploitation (1984), p 114) that: The general view is, however, that incest rarely commences above the age of 20 but having started at a younger age may continue into adulthood. (Do we need the Crime of Incest? (1991) Current Legal Problems 185, 187.) Further, the Home Office White Paper Protecting the Public Strengthening Protection Against Sex Offenders and Reforming the Law on Sexual Offences, (2002), Cm 5668, which preceded the Sexual Offences Act 2003 in England and Wales stated (para 59) that there is evidence that some adult familial relationships are the result of long term grooming by an older family member and the criminal law needs to protect adults from abuse in such circumstances. Professor Temkins answer to the question in her title was affirmative. She refers to innumerable studies showing that incest in all its forms is frequently harmful or extremely harmful to victims (p 186). She cites D Glaser and S Froshs Child Sexual Abuse (1988), p 17, as recording that sexually abused children commonly show depression, guilt or lowered self esteem, and D Finkelhors study Sexually Victimised Children (1979), p 101, as indicating that father/daughter incest is particularly traumatic and as finding that the girls suffering most trauma were those abused between the ages of 16 and 18 (p 100). Professor Temkin also points out that rape is hard to prove and that Many coercive and exploitative incestuous acts will not fall within the narrow legal definition of rape (p 193). Incest is also destructive both to those who participate in it and to those who are indirectly involved (p 187). It crosses a boundary, which is necessary to protect the family and the individual from the family (p 188). It is, in short, potentially destructive of wider family relationships, even though it also witnesses a prior breakdown of ordinary behaviour. These factors exist quite apart from a slight, though noticeable, risk of foetal and post natal abnormalities: surveys referred to in a Max Planck Institut report put before the German Constitutional Court in the case of Herrn S (2 BvR 392/07 of 26 February 2008) identify a 1.7 to 2.8% increased risk of genetic abnormalities in a child of an incestuous relationship and a 7 to 30% increased risk of disease in the first year of life. In the present context, that risk, which is a further factor relied on by Professor Temkin in favour of the current criminalisation of incest, can be put on one side. Most of the points made above with regard to incest are underlined in the German Federal Constitutional Courts judgment of 26 February 2008 in the case of Herrn S (2 BvR 392/07 of 26 February 2008). This judgment, when examined by the European Court of Human Rights in Stbing v Germany (2012) 55 EHRR 24 was held not to involve any violation of article 8 of the Convention. Stbing was in fact one of the cases, to which Professor Temkin refers as having so much exercised the romantic imagination of some writers (and, she might have added, at least one composer), but which are statistically irrelevant (p 188). It was a case of a brother brought up from the age of three separate from his birth family, to which he only returned aged about 24, to discover that he had a seven years younger sister, with whom he very soon commenced consensual sexual relations, and over the next five years had four children. Perhaps with such rare cases in mind, it has been suggested that the prohibition on consensual sexual relations between adults falling within the presently prohibited degrees of affinity should be reconsidered (see eg Incest Should Incest between Consenting Adults be a Crime? by H H Peter Bowsher QC [2015] Crim LR 208, and other material there cited). But it is clear that, when pregnancy due to incest is under consideration, the focus cannot and should not be on the rare situation exemplified in Stbing. Rather, it must be on the sort of picture found by the Scottish Law Commission in its 1980 Memorandum No: 44, The Law of Incest in Scotland. Examining some 16 cases where pregnancies were alleged to have occurred, the Scottish Law Commission found that two involved step fathers and step daughters, and that, of the remaining 14, 11 concerned father daughter incest, two concerned brother sister incest, and one uncle niece incest. The present issue is whether a blanket prohibition of abortion in cases of incest is proportionate. In the light of the factors I have identified, I have no doubt that the only answer is that it is not. The most typical cases of abortion involve exploitative relationships with young or younger female relatives. The agony of having to carry a child to birth, and to have a potential responsibility for, and lifelong relationship with, the child thereafter, against the mothers will, cannot be justified. The same considerations that I have identified in paras 122, 125 and 126 above apply. Similar considerations to those which I have identified in relation to rape in para 127 above also apply. There can be exceptional cases, such as perhaps Stbing, where such considerations do not apply with the same force, but they cannot justify a law which is clearly disproportionate in many, indeed typical, instances of incest. Serious foetal abnormality I have up to this point left on one side cases of serious foetal abnormality, in respect of which the Commission also seeks relief, by way of a declaration of incompatibility. Like Horner J (para 166), I see the position here as different. The foetus has the potential to develop into a child though it will have to cope with a mental and/or physical disability. There can also be additional stresses and strains which may have serious effects upon the whole family, as Hale LJ said in Parkinson (para 90). The law is, as she also said at para 91, able to distinguish between the needs of ordinary children and the special needs of a disabled child, and to cater for the latter in terms of care and facilities or, in an appropriate case, by way of damages. But in principle a disabled child should be treated as having exactly the same worth in human terms as a non disabled child, save to the extent that additional costs due to the disability may be identified and recovered in damages from someone negligently responsible for causing the disability: Parkinson, para 90. This is also the consistent theme of the United Nations Committee on the Rights of Persons with Disabilities, expressing concerns about the stigmatising of persons with disabilities as living a life of less value than that of others, and about the termination of pregnancy at any stage on the basis of foetal abnormality, and recommending States to amend their abortion laws accordingly (CRPD/C/GBR/CO/1). If this embraces fatal foetal abnormality, I cannot go so far. But, in relation to disability, I consider that the Committee has a powerful point. Further, although the Abortion Act 1967 itself distinguishes children who would be seriously handicapped from others, this is in the context of a law which entrusts that judgment to the opinion of two registered medical practitioners formed in good faith: section 1. In the result, I share Horner Js view that it is not possible to impugn, as disproportionate and so incompatible with article 8, legislation which prohibits abortion of a foetus diagnosed as likely to be seriously disabled. Article 14 We were addressed separately on the question whether the present Northern Irish law involves discrimination against women. The case made was that the prohibition of abortion necessarily or at least primarily affects women, not men, that it is not necessary to find any comparator and that gender based discrimination is a suspect ground, carrying a heavy burden to justify. In view of the conclusions which I have come to on article 8, I do not find it necessary or propose to address this topic. Conclusion I return to the question whether a positive conclusion of incompatibility is appropriate in relation to cases where there is a diagnosis of fatal foetal abnormality or where the pregnancy is due to rape or incest. Should this Court leave the position in relation to these categories to be considered further whenever the Northern Ireland Assembly resumes operation and receives whatever report or recommendations the working group presents? First, there is the consideration that it is unclear what will happen in Northern Ireland, in particular whether and when the Assembly will resume its operations. But this is not itself decisive. What is clear is that the issue has been under discussion for some five years, since it was first raised by the Commission, without any definite upshot. Further, if we were to refrain now from any conclusion on it, or were to defer to the Assembly for the time being, in order for it to reach and express its own definitive position, we would have in my opinion to do so on the basis that it would then still be open to a person affected to return to court to have the matter finally resolved, if the legislature did not amend the existing law in the three areas identified. In my opinion, that is not an appropriate course, as the need for such amendment is evident and the outcome of any further litigation would in that respect be inevitable. I am in short satisfied that the present legislative position in Northern Ireland is untenable and intrinsically disproportionate in excluding from any possibility of abortion pregnancies involving fatal foetal abnormality or due to rape or incest. My conclusions about the Commissions lack of competence to bring these proceedings means that there is however no question of making any declaration of incompatibility. But the present law clearly needs radical reconsideration. Those responsible for ensuring the compatibility of Northern Ireland law with the Convention rights will no doubt recognise and take account of these conclusions, at as early a time as possible, by considering whether and how to amend the law, in the light of the ongoing suffering being caused by it as well as the likelihood that a victim of the existing law would have standing to pursue similar proceedings to reach similar conclusions and to obtain a declaration of incompatibility in relation to the 1861 Act. LORD KERR: (with whom Lord Wilson agrees) Introduction (a) Fatal foetal abnormality Ashleigh Topley married in September 2012. She and her husband had been together for seven years before they married. They wanted to have children and they stopped using contraception shortly after their wedding. In October 2013, to her great joy, Mrs Topley discovered that she was pregnant. Her baby was due to be born in July 2014. On 14 February, she attended hospital for a 20 week scan. It was diagnosed that the foetus was suffering from a fatal form of skeletal dysplasia. Mr and Mrs Topley were told that their baby would die either in the womb or within a short time of birth. As it happens, their daughter, Katy, died before her birth on 26 May 2014, when Mrs Topley was 35 weeks pregnant. A post mortem examination revealed that she had suffered from osteogenesis imperfecta, type 2, a form of skeletal dysplasia. Mrs Topley has provided a moving account of the harrowing ordeal that she and her husband faced after they learned that their baby would not survive. They received conflicting advice as to whether a termination of her pregnancy would be possible. She had to endure the experience of receiving congratulations from well intentioned individuals about the impending birth, while she was trying to come to terms with the awful reality that her baby would not survive. The three months between February and May 2014 were deeply traumatic for her. She summarised her plight in this passage of her witness statement: It was clear to me that the current 1egal framework takes no account of the circumstances that we found ourselves in. In the normal course of events, an abortion is not something that would have occurred to me. However, the serious condition that my daughter suffered from thrust us into a situation that no one could predict. My daughter was bound to die before, or close to, her birth. If she had survived, even for a short period, she may have suffered. This tragic situation was compounded for me by the apparent inability of the medical profession to offer me a termination even in these circumstances. If this had been available, I believe it would have diminished our suffering. Being forced to continue with this pregnancy added to the tragedy. We were not able to grieve for our daughter even at the time of her actual death or to start to deal with our emotions. This was further compounded by the fact that the medical professionals could not even agree amongst themselves whether a termination was permitted. Sarah Jane Ewart found out that she was pregnant on 15 July 2013. On 26 September 2013, it was discovered that her baby had anencephaly. This meant that the foetus did not have a skull; there was no bone above the eye sockets and jaw line. There was no possibility of survival beyond birth. Mrs Ewart asked if she could have a caesarean section. She was told that this would not happen. Like Mrs Topley she had to endure the ordeal of being congratulated by well wishers. She felt unable to tell them of what she described as the awfulness of the truth. Mrs Ewarts gynaecologist was so concerned about the possibility that, if she gave Mrs Ewart advice as to where she might go to seek help in relation to the termination of her pregnancy, she (the gynaecologist) would be exposed to the risk of prosecution, it was impossible for her to offer that advice. Mrs Ewarts general medical practitioner was similarly reluctant to advise. Mrs Ewarts experience of the worry associated with her condition; the indignity she felt in having to travel to England to have her pregnancy terminated; the traumatic experience of the termination; and her dependence on her mother and husband throughout this ordeal are all movingly and graphically described in her witness statement. The prolonged torment that she had to suffer is pitifully recounted by her. Her fear of becoming pregnant with another anencephalic baby, and having to undergo a similar tribulation to that which she suffered in 2013, is entirely understandable and incontestably obvious. Denise Phelan and her husband discovered in November 2015 that they were expecting their first child. The pregnancy was planned and the baby was, in Mrs Phelans words, very much wanted. In her affidavit she has described the horror of her experience during her pregnancy; the nightmare of discovering that her baby suffered from the most grievous condition; the suffering that she had to endure while waiting for the birth of the child, doomed to die (in fact her baby girl died five days before birth); the frustration and dismay at her and her husbands inability to access medical assistance for their plight; and the dreadful torment that they both had to bear after the baby was delivered stillborn. The courage of these women in giving unsparing accounts of their experiences is wholly admirable. It is impossible not to feel profound sympathy for their plight and for the ordeal that each of them has had to endure. Admiration and sympathy do not provide an answer to the complex questions which arise on this appeal, however. A dispassionate analysis of those questions is required. But the nature of their suffering and the trauma of their experiences are by no means irrelevant to the unravelling and resolution of the issues to which this appeal gives rise. (b) Pregnancy because of rape or incest Dawn Purvis is the programme director of Marie Stopes International in Northern Ireland (MSNI). This is a non profit making organisation which works in about forty countries providing sexual and reproductive health services. MSNI opened a clinic in Belfast in October 2012. It offers a range of services including advice on methods of contraception, information and support for women dealing with an unplanned pregnancy, as well as access to safe and legal abortion services and post abortion care. In an affidavit made for the purposes of these proceedings, Ms Purvis described the case of a woman who had consulted MSNI after having been raped by her partner. He refused to allow her to use any form of contraception. She was fearful that he would react violently if he discovered that she was pregnant and was seeking an abortion. Her general medical practitioner refused to refer her to any health care provider, observing simply that abortion was illegal in Northern Ireland. When this woman sought help from MSNI, it was decided that she could not qualify for an abortion under the current law. She was therefore obliged to leave Northern Ireland in order to obtain an abortion elsewhere. Ms Purvis described another case: that of a child less than 13 years old, who came to MSNI, having become pregnant as a result of sexual abuse by a member of her family. The girl and the relative who accompanied her to MSNI believed that she could be treated in Northern Ireland. She had never been outside that country before and, unsurprisingly, was frightened and distressed when told that she would have to travel to England. MSNI provided support and the child had a termination of her pregnancy carried out away from Northern Ireland. Fortunately, she was accompanied by an adult to the place where that procedure occurred but it is not difficult to imagine how traumatic the experience must have been for her. Mara Clarke is the director of the Abortion Support Network (ASN) in Coventry. Her organisation has helped a number of women and girls from Northern Ireland who have sought their assistance after becoming pregnant as a result of rape. In an affidavit of 2 February 2015, she described the distressing circumstances of four women who had been sexually assaulted and had been made pregnant. The accounts of the suffering of these women and, in some cases, the privations which their families had to endure are distressing in the extreme. I will refer only to one. The victim had been beaten and raped by a group of men. She discovered that she was pregnant. Despite the fact that a number of organisations in Northern Ireland became aware of her predicament, she was offered no support or help. She was able to raise only 100 towards the cost of travelling to England to obtain an abortion. ASN made her a grant of 1,200 to meet the additional costs of travelling, having the procedure performed and hotel accommodation. Some considerable time later, having seen a television programme about their work, she wrote to ASN to thank them for their help, adding, poignantly, that, without it, she would be dead, either by her own hand, or by the hands of those who had raped and beaten her. The Northern Ireland Human Rights Commission (described hereafter as NIHRC or the Commission), the appellant in these proceedings, has claimed that the experiences of these individuals are typical of those that many women and girls in Northern Ireland have been forced to undergo. NIHRC also claims that the reaction of medical practitioners and their reluctance to offer any assistance for fear of prosecution under the current law are also entirely typical. Those claims have not been disputed by the respondents or any of the interveners in the appeal. Again, this is not surprising in light of the current state of the law in relation to abortion in Northern Ireland. The current law Section 58 of the Offences Against the Person Act 1861, as amended, provides that: Every woman, being with child, who, with intent to procure her own miscarriage, shall unlawfully administer to herself any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, and whosoever, with intent to procure the miscarriage of any woman, whether she be or be not with child, shall unlawfully administer to her or cause to be taken by her any poison or other noxious thing, or shall unlawfully use any instrument or other means whatsoever with the like intent, shall be guilty of felony, and being convicted thereof shall be liable to be kept in penal servitude for life. Section 59 of the 1861 Act, again as amended, provides that: Whosoever shall unlawfully supply or procure any poison or other noxious thing, or any instrument or thing whatsoever, knowing that the same is intended to be unlawfully used or employed with intent to procure the miscarriage of any woman, whether she be or be not with child, shall be guilty of a misdemeanour, and being convicted thereof shall be liable to be kept in penal servitude. The Criminal Justice Act (Northern Ireland) 1945 was an Act of the Northern Ireland Parliament made by virtue of powers vested in that body by section 20 of the Government of Ireland Act 1920. Section 25 of the 1945 Act extended to Northern Ireland the effect of the materially identical section 1 of the Infant Life (Preservation) Act 1929. Section 25 of the 1945 Act provides that: (1) Subject as hereafter in this sub section provided, any person who, with intent to destroy the life of a child capable of being born alive, by any wilful act causes a child to die before it has an existence independent of its mother, shall be guilty of felony, to wit, of child destruction, and shall be liable on conviction thereof on indictment to penal servitude for life: Provided that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother. (2) For the purposes of this and the next succeeding section, evidence that a woman had at any material time been pregnant for a period of 28 weeks or more shall be prima facie proof that she was at that time pregnant of a child then capable of being born alive. Sections 58 and 59 of the 1861 Act have been considered with section 1 of the 1929 Act in England and Wales in R v Bourne [1939] KB 687 and with section 25 of the 1945 Act in Northern Ireland in Family Planning Association of Northern Ireland v Minister for Health, Social Services and Public Safety [2004] NICA 39; [2005] NI 188 (the FPANI case). The latter case also dealt with section 25 of the 1945 Act. In Bourne a surgeon performed an abortion on a young girl of 14 years who had become pregnant as a result of rape. He was charged under section 58 of the 1861 Act with unlawfully procuring an abortion. The jury was directed that it was for the prosecution to prove that the operation was not performed in good faith for the purpose of preserving the life of the girl. The surgeon was not obliged to wait until the patient was in peril of immediate death. As to the words of the 1929 Act, that no person shall be found guilty of an offence under this section unless it is proved that the act which caused the death of the child was not done in good faith for the purpose only of preserving the life of the mother, Macnaghten J (the trial judge) said to the jury that, although those words did not appear in section 58 of the 1861 Act, they were implied by the word unlawful in that section. Those words ought to be construed in a reasonable sense said Macnaghten J, and it was, therefore, the surgeons duty to perform the operation if he was of the reasonable opinion that the probable consequence of the pregnancy continuing would be to make the patient a physical and mental wreck. In the Court of Appeal in the present case ([2017] NICA 42, Morgan LCJ, Gillen and Weatherup LJJ), the Lord Chief Justice, Sir Declan Morgan, suggested that it was possible to construe the words, for the purpose only of preserving the life of the mother so as to include circumstances where the mothers life was significantly adversely affected para 49. Developing this theme, he said at para 79: I accept that the grain of the 1861 Act and the 1945 Act was intended to provide substantial protection for the foetus but in my view the phrase for the purpose of preserving the life of the mother cannot in present circumstances be interpreted reasonably as confining protection for the mother by way of abortion to those circumstances where it is likely that she will be a physical or mental wreck. I have had the benefit of affidavits sworn in these proceedings by Sarah Ewart and AT [Ashleigh Topley]. Some aspects of the effect on these women of the prohibition of abortion in this jurisdiction in their circumstances have been described in [earlier paras of the judgment]. The present law prioritises the need to protect to a reasonable extent the life that women in these emotionally devastating situations can enjoy. In my opinion that requires the court to determine what is reasonably tolerable in todays society. That is not to be defined by the values of the 1930s. I conclude that circumstances such as those described in those affidavits fall within the scope of the Bourne exception interpreted in accordance with that test. I consider that in each case the effects on these women were such that the option of abortion in this jurisdiction after appropriate advice should have been open. That conclusion is not dependent upon the state of health of the foetus. Gillen LJ expressed disagreement with these statements in para 91 of his judgment. He considered that it was institutionally inappropriate for the court to change the effect of the legislation and its interpretation in R v Bourne. Weatherup LJ also disagreed with the Lord Chief Justices view that contemporary standards could serve to enlarge the scope of the Bourne exception. He pointed out that the law as expressed by Macnaghten J had been applied by the Court of Appeal in Northern Ireland in the FPANI case where Nicholson LJ said at para 75: Procurement of a miscarriage (or abortion) is a criminal offence [in Northern Ireland] punishable by a maximum sentence of life imprisonment if the prosecution proves beyond any reasonable doubt to the satisfaction of a jury: (1) that the person who procured the miscarriage did not believe that there was a risk that the mother might die if the pregnancy was continued; or (2) did not believe that the mother would probably suffer serious long term harm to her physical or mental health; or (3) did not believe that the mother would probably suffer serious long term harm to her physical or mental health if she gave birth to an abnormal child ; (4) a person who is a secondary party to the commission of the criminal offence referred to above is liable on conviction to the same penalty as the principal; (5) it follows that an abortion will be lawful if a jury considers that the continuance of the pregnancy would have created a risk to the life of the mother or would have caused serious and long term harm to her physical or mental health. Campbell LJ in the FPANI case said in para 140 that the law in Northern Ireland permits a termination where there is a serious and long term risk to the mothers mental or physical health or well being. Sheil LJ, in accepting the principles which were said by counsel for the Minister for Health to encapsulate the law in Northern Ireland, reached essentially the same conclusion. Among those principles were that a termination of pregnancy was unlawful unless performed to preserve the life of the mother; that life included mental and physical life; that a termination would be lawful where there was a real and serious adverse effect on health but that this had to be permanent or long term. This, therefore, was the law of Northern Ireland, as pronounced by a unanimous Court of Appeal in that jurisdiction in October 2004. The Lord Chief Justices judgment in the present case would have brought about a significant change in that law in two respects. In the first place, it would shift the emphasis towards the need to protect to a reasonable extent the life that women [in cases such as those of Mrs Topley and Mrs Ewart] would enjoy (emphasis supplied). Secondly it would eliminate the requirement that there be a real, serious, long term or permanent effect on the womans physical or mental health. This would be a radical departure from not only the law as Macnaghten J declared it to be in Bourne but also as the Court of Appeal in Northern Ireland held it to be in 2004. The fundamental nature of the alteration of the law that this would bring about is perhaps best illustrated by the Lord Chief Justices statement that the court was required to determine what was reasonably tolerable in todays society. I do not consider that such a change in statutory law can be achieved by judicial decision. The 1861 and 1945 Acts are the foundation of the law on abortion in Northern Ireland. They forbid the termination of pregnancy unless it is required to preserve the mothers life. That has been interpreted to mean that abortion is permitted in order to save the mother from a condition of physical or mental devastation. That condition has been held to equiparate to long term or permanent effect on the mothers health which is both real and serious. I do not consider that it is possible to stretch the concept of preservation of life beyond these notions. The proceedings On 2 February 2015, NIHRC was given permission to apply for judicial review. Three declarations were sought: (i) A declaration pursuant to section 6 and section 4 of HRA, that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with articles 3, 8 and 14 of the European Convention on Human Rights and Fundamental Freedoms [hereafter ECHR or the Convention] as they relate to access to termination of pregnancy services for women with pregnancies involving a serious malformation of the foetus or pregnancy as a result of rape or incest. (ii) A declaration that, notwithstanding the provisions of sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act, women in Northern Ireland may lawfully access termination of pregnancy services within Northern Ireland in cases of serious malformation of the foetus or rape or incest. (iii) Further and in the alternative, a declaration that the rights of women in Northern Ireland, with a diagnosis of serious malformation of the foetus or who are pregnant as a result of rape or incest, under articles 3, 8 and 14 of ECHR are breached by sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act. Following the grant of leave to apply for judicial review, a number of organisations sought to intervene in the proceedings. They were given permission to intervene and have been represented in the proceedings before this court, although the number of interveners has increased from those who participated in the hearing before the High Court and the Court of Appeal. On 17 February 2015, the High Court issued a Notice of Incompatibility under section 4 of HRA and Order 121 of the Rules of the Court of Judicature (the rules), notifying the Attorney General and the Department of Justice that they might enter an appearance to the proceedings. The court also issued a devolution notice under paragraph 5 of Schedule 10 to the Northern Ireland Act 1998 (NIA) and Order 120 of the Rules. The case was heard at first instance by Horner J on 15 17 June 2015. NIHRC argued that where there was a serious malformation of the foetus or where the pregnancy was the result of rape or incest, the prohibition on abortion in Northern Ireland breached the rights of women and girls under article 3, article 8 and article 14 (read together with article 8) of ECHR. The Attorney General and the Department of Justice disputed these claims, arguing that there was no violation of ECHR and that, in any event, the Commission did not have standing to bring proceedings for judicial review. Horner J held that the application for judicial review should succeed in part. He held that the Commission had standing to apply for the relief that it sought. He also found that sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act were incompatible with article 8 in cases of fatal foetal abnormality, rape and incest, but not in cases of serious malformation of the foetus para 184 of his judgment. He dismissed that part of the application that depended on article 3. The Attorney General and the Department of Justice appealed Horner Js judgment. They argued that a declaration of incompatibility could not be granted in the absence of an identified unlawful act and that the Commissions failure to identify someone who was or would be a victim of the asserted breaches of the Convention was fatal to the success of the application for judicial review because it did not allow for an examination of the particular facts said to constitute the breach. NIHRC did not have standing, therefore, it was submitted. They challenged the judges findings in relation to article 8 and they claimed that he had erred in holding that the life of an unborn foetus was not protected by the common law of Northern Ireland. NIHRC cross appealed, arguing that the relevant statutory provisions were incompatible with article 3 of ECHR and article 14 (read with article 8). It also argued that appropriate declarations should have been made in the case of serious as well as fatal foetal abnormality. All three members of the Court of Appeal agreed that the Commission had standing to bring the judicial review challenge para 46 of Morgan LCJs judgment. The Lord Chief Justice held that it was within the margin of appreciation of the contracting states of the Council of Europe to determine the nature of the protection to be afforded a foetus paras 50 52 of his judgment. Gillen LJ agreed with this conclusion. Weatherup LJ held that, although the foetus was not entitled to protection under article 2 of ECHR, it was possible that some recognition of a foetuss rights might arise under article 8 paras 126 131. Gillen and Weatherup LJJ agreed with the Lord Chief Justices conclusions that article 3 was not engaged paras 52 60 of his judgment. In relation to article 8, Morgan LCJ, after reviewing European authorities, particularly A, B and C v Ireland [2010] 53 EHRR 13, concluded that the article 8 claim did not succeed, although, as observed above, he considered that the principles in Bourne could be applied to the cases of Mrs Topley and Mrs Ewart. The Lord Chief Justice conducted a close examination of the A, B and C case and concluded that it did not lend decisive weight to the arguments advanced by the Attorney General and the Department of Justice para 74. Gillen LJ disagreed. He considered that the A, B and C case established that a broad margin of appreciation should be accorded to the contracting states of the Council of Europe on the question of the legal requirements for lawful abortion paras 103 105. Weatherup LJ expressed what he described as a provisional view that the restriction on the termination of pregnancy in cases of fatal foetal abnormality and as a result of rape and incest would amount to a breach of the right to respect for private life under article 8. He considered, however, that it would not be institutionally appropriate for the court to intervene see para 178 of his judgment. Standing The discussion about the standing of the Commission to bring these proceedings begins with the Belfast Agreement and the influence which it had on the NIA. That Act was introduced to implement the agreement made in Belfast between various political parties in Northern Ireland on 10 April of that year (1998). Paragraph 5 of Strand One of the agreement stated that safeguards would be put in place to ensure that all sections of the community were protected. Those safeguards were to include the rights guaranteed by ECHR. By para 5 of Strand Three, dealing with new institutions, it was provided that NIHRC would be established. Its task would be to keep under review the adequacy and effectiveness of laws and practices, making recommendations to Government as necessary; providing information and promoting awareness of human rights; considering draft legislation referred to them by the new Assembly; and, in appropriate cases, bringing court proceedings or providing assistance to individuals doing so. This aspiration found expression in section 69 of NIA. It deals with the Commissions functions. Subsection (1) reflects para 5 of Strand Three and provides that NIHRC should keep under review the adequacy and effectiveness in Northern Ireland of laws and practice relating to the protection of human rights. Subsection (3) enjoins the Commission to advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly of legislative and other measures which ought to be taken into account to protect human rights and subsection (4) requires NIHRC to advise the Assembly whether a Bill which it proposes to pass is compatible with human rights. Subsection (6) emphasises the broad scope of the Commissions remit in relation to the protection of human rights. It is required to promote understanding and awareness of the importance of human rights in Northern Ireland and for this purpose it may undertake or commission research and educational activities. The provision in section 69 which is most directly relevant to the issue of NIHRCs standing to bring the present proceedings is subsection (5). It provides: The Commission may (a) give assistance to individuals in accordance with section 70; and (b) bring proceedings involving law or practice relating to the protection of human rights. The approach to the interpretation of these provisions should start with the general proposition that it would be anomalous if NIHRC did not have the power to challenge the compatibility of legislation with the provisions of ECHR, given its principal stated function (in section 69(1)) see para 169 above. An obvious way in which that function can be fulfilled is that the Commission should have the opportunity to present a legal challenge to potentially incompatible legislation. It is in the nature of things that not every item of legislation which is inconsistent with ECHR rights will be subject to challenge by individuals affected by it. To cater for that circumstance, it is appropriate that NIHRC should perform a supervisory function, monitoring legislation, both proposed and historic, for its conformity with contemporary human rights standards. To deny it the legal capacity to challenge legislation would deprive the Commission of an important means of carrying out its fundamental role. Moreover, the power to challenge incompatible legislation is a natural complement to the duty to advise the Secretary of State and the Executive Committee of the Northern Ireland Assembly about legislative and other measures necessary to protect human rights. The respondents argue that neither NIA nor the Human Rights Act 1998 (HRA) confers on NIHRC a freestanding right to challenge legislation on the basis of its avowed incompatibility with ECHR. It is claimed that the Commission may only contest the legislations consistency with the Convention in proceedings brought to challenge an act of a public authority which is said to be incompatible with an ECHR right and where there is an identified victim of the alleged unlawful act. The requirement that there be a victim is derived from section 7 of HRA and section 71(1) of NIA. Section 7 of HRA provides in subsection (1): Section 71(1) of NIA originally provided that: (1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or (b) in any legal proceedings, rely on the Convention right or rights concerned but only if he is (or would be) a victim of the unlawful act. (1) Nothing in section 6(2)(c), 24(1)(a) or 69(5)(b) shall enable a person (a) to bring any proceedings in a court or tribunal on the ground that any legislation or act is incompatible with the Convention rights; or (b) such proceedings, to rely on any of the Convention rights in any unless he would be a victim for the purposes of article 34 of the Convention if proceedings in respect of the legislation or act were brought in the European Court of Human Rights. (the reference to section 69(5)(b) was deleted in the amended version) In In re Northern Ireland Human Rights Commission [2002] NI 236, the House of Lords held that the Commission had the power to apply to intervene in court proceedings where a human rights issue arose. In para 11 of his speech, however, Lord Slynn of Hadley observed that section 69(5)(b) did not enable the Commission to bring proceedings on the ground that legislation was incompatible with a Convention right unless it was a victim for the purpose of proceedings brought in the European Court of Human Rights (referred to hereafter as ECtHR or the Strasbourg court). And at para 23 he said that: in respect of proceedings in which it is sought to contend that legislation is incompatible with the European Human Rights Convention they can only be brought, it seems, if the Commission can show that it is a victim for the purposes of the Convention. These observations prompted the amendment of section 71. As originally enacted section 71(2) had provided that subsection (1) did not apply to the Attorney General, the Advocate General for Northern Ireland, the Attorney General for Northern Ireland, the Advocate General for Scotland or the Lord Advocate. Section 14 of the Justice and Security (Northern Ireland) Act 2007 inserted the following provisions, among others, to section 71: (2A) Subsection (1) does not apply to the Commission. (2B) In relation to the Commissions instituting, or intervening in, human rights proceedings (a) the Commission need not be a victim or potential victim of the unlawful act to which the proceedings relate, section 7(3) and (4) of the Human Rights Act (b) 1998 (c 42) (breach of Convention rights: sufficient interest, &c) shall not apply, (c) be one or more victims of the unlawful act, and (d) no award of damages may be made to the Commission (whether or not the exception in section 8(3) of that Act applies). the Commission may act only if there is or would In circumstances in which the requirement that NIHRC be a victim was removed by this new provision, it would be surprising that the Commission should continue to be obliged to identify a particular victim before it could bring proceedings concerning the incompatibility of an item of legislation with ECHR. I shall deal with this argument in more detail below but, first, it should be noted that the Attorney General for Northern Ireland also argues that, even if section 4 of HRA were to be regarded as creating a new cause of action, NIHRC is explicitly prevented by section 71(2B) and (2C) (as to which see para 179 below) from challenging primary legislation in the absence of a specific unlawful act. Thus, not only must there be a specific victim, an identified unlawful act must have been perpetrated. I am of the clear view that section 71(2B) does not confine the Commissions opportunity to act to circumstances where a specific act directed to a particular individual is identified. Although that is, arguably, a possible theoretical interpretation of the provision, its adoption would run directly counter to the spirit of the amendment. Its purpose must surely have been to ensure that the Commission could challenge legislation which it perceived to be incompatible with the Convention. That conclusion is reinforced by a consideration of section 71(2B)(c). Section 71(2B)(c) provides that the Commission may only act if there is or would be one or more victims. The Commissions power to act on behalf of potential victims and, importantly, to act pre emptively would be robbed of its essence if unlawful act was interpreted in the narrow, literal sense. The amendment to the NIA was made in order to make it easier for NIHRC to institute HRA proceedings. In light of the clear intention to widen NIHRCs powers, it would be illogical that these would be restricted by the imposition of a requirement that there be a particular, identified unlawful act. Section 71(2C) provides: (2C) For the purposes of subsection (2B) human rights proceedings means proceedings (a) which rely (wholly or partly) on section 7(1)(b) of the Human Rights Act (i) 1998, or (ii) an expression used in subsection (2B) and in (b) section 7 of the Human Rights Act 1998 has the same meaning in subsection (2B) as in section 7. section 69(5)(b) of this Act, and Paragraph 8 of the Explanatory Notes to the 2007 Act (although the Notes do not form part of the Act and were not endorsed by Parliament) is illuminating on the question of whether a victim needs to be identified. In material part, it reads: This Act makes provision to extend the powers of the Northern Ireland Human Rights Commission It amends the Northern Ireland Act 1998 by granting powers to the Commission to institute judicial proceedings in the Commissions own right, and when doing so to rely upon the European Convention on Human Rights. This will mean that the Commission can bring test cases without the need for a victim to do so personally. I reject the arguments that the Commission is obliged to identify a victim and that it must demonstrate that an unlawful act has actually taken place before it may bring proceedings to challenge the compatibility of legislation with ECHR. HRA contemplates two distinct and complementary mechanisms for the protection of Convention rights challenges to legislation under sections 3 5 of the Act and challenges to the acts of public authorities under sections 6 9 per Lord Rodger in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, para 206. The title to sections 3 5 of the Act is legislation, and to sections 6 9 public authorities. There is every reason to conclude that the availability of two different species of challenge was in the contemplation of the legislature. True, of course, it is that a challenge to a decision of a public authority may prompt a declaration of incompatibility in relation to the legislation under which the act of the authority has taken place. But that circumstance does not preclude the making of a declaration of incompatibility where a freestanding challenge to the legislation is made and its intrinsic nature (as opposed to its impact on a particular individuals rights under ECHR), is deemed to be inconsistent with the Convention. This, I consider, is clear from the terms of section 4(1) (4) of HRA. They state: (1) Subsection (2) applies in any proceedings in which a court determines whether a provision of primary legislation is compatible with a Convention right. (2) If the court is satisfied that the provision is incompatible with a Convention right, it may make a declaration of that incompatibility. (3) Subsection (4) applies in any proceedings in which a court determines whether a provision of subordinate legislation, made in the exercise of a power conferred by primary legislation, is compatible with a Convention right. (4) If the court is satisfied that the provision is incompatible with a Convention right, and that (disregarding any possibility of revocation) the primary legislation concerned prevents removal of the incompatibility, it may make a declaration of that incompatibility. Section 69(5)(b) empowers NIHRC to bring proceedings. The only restriction on that right is that the proceedings must involve law or practice relating to human rights claims. A claim under section 4 of the HRA meets that requirement. The respondents objection resolves to the claim that an application for a declaration of incompatibility must be parasitic on or ancillary to a claim that an individuals right has been violated. But there is nothing in the text of section 4 which warrants that view. There is no reason why the court should not entertain proceedings in which NIHRC claims that the 1861 and 1945 Acts contain provisions which are generally incompatible with ECHR. Proceedings for a declaration of incompatibility are still proceedings. Nothing in section 4 of HRA suggests that an application for such a declaration must be an adjunct to some other claim. Cases which challenge primary legislation without claiming that a public authority has acted unlawfully do not engage section 6. They are actions under sections 3 or 4, and the victim requirement in section 7 need not be satisfied. In R (Rusbridger) v Attorney General [2004] 1 AC 357, journalists sought to challenge section 3 of the Treason Felony Act 1848 which, at least arguably, criminalised the publication of articles advocating abolition of the monarchy. An article to that effect was published in the Guardian newspaper and both before and after its publication, the claimant journalists sought an assurance that its publication would not lead to their being prosecuted. The Attorney General refused to give that assurance. The claimants original complaint was that the Attorney General had acted contrary to section 6(1) HRA by refusing to confirm that no prosecution would be brought if articles advocating republicanism were published in the Guardian. They launched judicial review proceedings under section 7(1)(a) of HRA, complaining of a breach of section 6(1) of HRA (which makes it unlawful for a public authority to act in a way which is incompatible with a Convention right), and in the alternative seeking a declaration pursuant to section 3 of HRA as to the scope of application of section 3 of the 1848 Act, or a declaration of incompatibility pursuant to section 4 HRA. The section 6(1) HRA complaint failed at first instance but the Court of Appeal permitted the case to proceed as an amended claim for a declaration that section 3 of the 1848 Act should be read down by the insertion of words expressly limiting its application to situations where there were acts of force or constraint or other unlawful means: [2002] EWCA Civ 397, paras 16 17, 25 and 28. When, therefore, the case came before the House of Lords it was for a declaration under section 3 of HRA (which requires courts to read and give effect to legislation in a way that is compatible with Convention rights, in so far as that is possible) and, alternatively for a declaration of incompatibility under section 4. There was no challenge to any act of a public authority as being contrary to section 6 of HRA. The case did not proceed under section 7 of HRA, therefore. Lord Steyn made it clear that, in those circumstances, the requirement in section 7, that there be a victim, did not have to be satisfied para 21. Lord Scott and Lord Walker agreed with this analysis. In the event, the House of Lords in Rusbridger refused to grant the relief sought but that was because the litigation served no practical purpose and had been unnecessary para 28. The important point to take from that case, however, in so far as the present appeal is concerned, is that it recognised a distinct form of proceeding under sections 3 and 4 of HRA which did not require victim status to be established. It was a principal feature of the respondents case in the present appeal that section 4 of HRA created no new or freestanding cause of action and that it was merely a remedies provision. That submission is clearly wrong. It fails to recognise the two distinct mechanisms for enforcing Convention rights and is inconsistent with Rusbridger. In Ghaidan v Godin Mendoza [2004] 2 AC 557 a claim for possession of a flat owned by Mr Ghaidan was made. It was resisted on the basis that the defendant had succeeded to a secure tenancy as the surviving spouse of the original tenant. The House of Lords applied section 3(1) HRA to interpret the relevant provisions of the Rent Act 1977 so that they benefited same sex as well as opposite sex couples. Lord Millett, dissenting on the application of section 3(1), would nevertheless have considered making a declaration of incompatibility pursuant to section 4 HRA (para 55). In this case, again, there was no section 6(1) challenge to an act of a public authority. The relevant obligation was either section 3 (in the case of the majority) or section 4 (according to Lord Millett). It was not deemed necessary that there be a victim. Likewise, in Wilson v First County Trust (No 2) Lord Hope noted that no claim had been made by a victim that a public authority had acted in a way that was unlawful under section 6(1) of HRA para 91. None of these three cases was brought in reliance on section 7(1) of HRA. In none of them was the lack of a victim considered to render the claims unfeasible. The cases exemplify the first of the two mechanisms adumbrated by Lord Rodger in Wilson v First County Trust (No 2), namely a challenge to the compatibility of legislation which is not associated with a challenge to an act of a public authority said to be in violation of a Convention right. In extremely helpful submissions prepared by Mr Coppel QC on behalf of the equivalent body in Great Britain, the Equality and Human Rights Commission (EHRC), it has been argued that the Equality Act 2006 (EA) invests EHRC with the power to institute proceedings which challenge the compatibility of legislation with ECHR. By virtue of section 30(1) of EA, EHRC has the capacity to institute or intervene in legal proceedings, whether for judicial review or otherwise, if it appears to the Commission that the proceedings are relevant to a matter in connection with which the Commission has a function. As with section 71A of NIA, EHRC is exempted from the victim requirement in relation to proceedings under section 7(1)(b) of HRA section 30(3) of EA. Mr Coppel QC argues that, given the enforcement mechanisms contained in the HRA, such proceedings may be constituted as section 7 HRA proceedings which challenge the act of a public authority as being contrary to section 6(1) HRA, or they may be founded on sections 3 and 4 HRA so as to seek a compatible interpretation of primary legislation, or challenge that legislation as incompatible, without there being any allegation of breach of section 6(1) HRA. Proceedings brought by the EHRC in the latter category would, he says, unquestionably be relevant to the EHRCs functions (for example) to promote protection of human rights and, in certain cases, to encourage compliance with section 6 HRA. This can be achieved by establishing a Convention compliant interpretation of legislation or by the remedying of incompatible legislation following a declaration of incompatibility. Either outcome will constrain public authorities to act compatibly with Convention rights. I accept Mr Coppels submissions. They have not been challenged by the respondents to this appeal. It would be wholly anomalous that NIHRC should not be competent to institute proceedings challenging the compatibility of legislation with ECHR unless it identified a victim and a specific unlawful act, when EHRC had been relieved of those requirements. This is especially so given that the insertions into the NIA by the Justice and Security (Northern Ireland) Act were made in the year following the EA. The Attorney General has argued that the reason for requiring an actual unlawful act and a specifically identified victim is to avoid challenges to the law in the abstract it is not sufficient, he contends, to claim that the mere existence of a law violates Convention rights. This argument is misconceived for two reasons. First, such a restriction would only be appropriate to prevent individuals from bringing challenges which serve no practical purpose. It should not operate to inhibit the bringing of proceedings by statutory bodies which have been specifically empowered to do so in order to address violations of Convention rights. Secondly, this is not in any sense an actio popularis. It is not an academic challenge brought against obsolete legislation. The 1861 and the 1945 Acts have a direct impact on individuals, as the cases discussed in the first part of this judgment amply demonstrate. It is notable that section 71(2B)(c) provides that the Commission may act only if there is or would be one or more victims of the unlawful act. If, as I consider to be the case, the implementation of the provisions of the 1861 and 1945 Acts involves the violation of Convention rights, it is clear that there have been and will be victims of such violations. The Attorney Generals suggestion that, in order to satisfy the requirement that there would be victims of the unlawful act, NIHRC must bring its case by reference to a specific potential victim and a concrete set of facts, is plainly incorrect. The natural meaning of a power to act where there would be victims clearly indicates an intention that the Commission should be able pre emptively to prevent human rights violations rather than merely bring post hoc proceedings relating to actual violations. Quite apart from this, the Attorney Generals submission (in para 53 of his reference) that the Commission has not identified any individual who is or would be a victim of any unlawful act (nor has any intervener) cannot be accepted. If these legislative provisions are found to be incompatible with ECHR, clearly there are actual and potential victims. The cases described above amply demonstrate this. And, as NIHRC notes at para 64 of its reply to the reference, neither of the respondents has ever disputed that there are women and girls in the three categories instanced, fatal foetal abnormality, serious foetal abnormality and pregnancy as the result of rape or incest. The practical effects of a finding that NIHRC does not have standing should not be shied away from. These can be considered at a general and at a particular level. The first is to deny the body instituted for the precise purpose of defending and promoting human rights protection in Northern Ireland of one of the most obvious means of securing that protection. It introduces a perplexing and unaccountable discrepancy between the powers available to EHRC and NIHRC. Most importantly, as this case vividly illustrates, it makes a significant inroad into the practicality and effectiveness of the article 3 and 8 rights of pregnant girls and women in Northern Ireland. Women suffering from the ill effects of a pregnancy where there is a fatal foetal abnormality or who are pregnant because of rape or incest do not have the luxury of time within which to seek vindication of their rights. This is pre eminently a situation where an independent body such as NIHRC should be invested with the power to mount a challenge to legislation which violates, and will violate if it continues in force, the rights of some members of the female population of Northern Ireland. Article 13 of ECHR provides for the right to an effective remedy. It is in these terms: Everyone whose rights and freedoms as set forth in this Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. This article was not included in the schedule to the HRA 1998 because it was thought that the HRA 1998 itself provided an effective remedy. A requirement that there must be a specific unlawful act affecting a particular individual before breach of article 3 or article 8 can be canvassed throws into substantial question whether an effective remedy is possible for that section of the female population of Northern Ireland whose foetus has a fatal abnormality or who are pregnant as a result of rape or incest. Fatal foetal abnormality is frequently not detected until the 20 week scan. If, for instance, the end point at which a woman may seek an abortion is 24 weeks (as under the Abortion Act 1967), this provides an impossibly short time within which vindication of the womans rights could be achieved. Moreover, the number of women who have had to endure the trauma of a fatal foetal abnormality pregnancy or a pregnancy which is the consequence of rape or incest and who would be prepared, after the event, to assert a violation of their rights cannot be presumed to be significant. If NIHRC is unable, by reason of a lack of standing, to bring proceedings to protect such womens rights, I consider that they will be deprived of the practical and effective remedy which article 13 guarantees. I consider, therefore, that NIHRC has standing to bring the present proceedings. The decision of the majority that the appellant does not have standing appears to me, with respect, to depart from a well established line of authority that an interpretation of a statute which gives effect to the ascertainable will of Parliament should be preferred to a literal construction which will frustrate the legislations true purpose. In R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687, Lord Bingham said at para 8: The basic task of the court is to ascertain and give effect to the true meaning of what Parliament has said in the enactment to be construed. But that is not to say that attention should be confined and a literal interpretation given to the particular provisions which give rise to difficulty. Such an approach not only encourages immense prolixity in drafting It may also (under the banner of loyalty to the will of Parliament) lead to the frustration of that will, because undue concentration on the minutiae of the enactment may lead the court to neglect the purpose which Parliament intended to achieve when it enacted the statute. Every statute other than a pure consolidating statute is, after all, enacted to make some change, or address some problem, or remove some blemish, or effect some improvement in the national life. The courts task, within the permissible bounds of interpretation, is to give effect to Parliaments purpose. So the controversial provisions should be read in the context of the statute as a whole, and the statute as a whole should be read in the historical context of the situation which led to its enactment. A similar approach was taken by Lord Carswell in R v Z (Attorney General for Irelands reference) [2005] 2 AC 645, where, having cited Lord Binghams statements in Quintavalle, he said at para 49: My Lords, this appeal serves as a very good example of the principle of statutory construction that in seeking to ascertain the mischief towards which a statute is directed it can be of prime importance to have regard to the historical context. If the words of a statutory provision, when construed in a literalist fashion, produce a meaning which is manifestly contrary to the intention which one may readily impute to Parliament, when having regard to the historical context and the mischief, then it is not merely legitimate but desirable that they should be construed in the light of the purpose of the legislature in enacting the provision: cf Karpavicius v The Queen [2003] 1 WLR 169, 175 176, paras 15 16, per Lord Steyn. In Attorney Generals Reference (No 5 of 2002) [2005] 1 AC 167, Lord Steyn said at para 31: No explanation for resorting to a purposive construction is necessary. One can confidently assume that Parliament intends its legislation to be interpreted not in the way of a black letter lawyer, but in a meaningful and purposive way giving effect to the basic objectives of the legislation. A more recent example of the same approach is found in Littlewoods Ltd v Revenue and Customs Comrs [2017] 3 WLR 1401, where Lord Reed and Lord Hodge said: the literal reading fatally compromises the statutory scheme created by Parliament. It cannot therefore be the construction of the critical words which Parliament intended. (para 37) and that and that: It is not a literal construction, but a departure from a literal construction is justified where it is necessary to enable the provision to have the effect which Parliament must have intended. (para 39) Bennion on Statutory Interpretation, 7th ed (2017), states at section 11.1 that: General judicial adoption of the term purposive construction is relatively recent, but the concept is not new the idea that the courts should pay regard to the purpose of a provision led to the resolution in Heydons case [which was reported in 1584]. when judges speak of purposive construction, they are often referring to a strained construction However, a purposive construction in the true sense (that is, construing an enactment with the aim of giving effect to the legislative purpose) does not necessarily require the statutory language to be strained. Most often, a purposive construction in this sense will also be a grammatical construction, as the purpose and wording of an enactment will usually align with one another. The conclusion that the Commission has standing to institute proceedings does not require a strained construction of the legislation. The statement in section 71(2B)(c) that the Commission may bring proceedings only where there is or would be victims of an unlawful act can reasonably be interpreted to mean that the Commission may act where it is clear that there have been and will be victims of the implementations of the provisions of the 1861 and 1945 Acts (as noted in para 58 above). Indeed, to interpret these words as meaning that a case must be brought in relation to a specific potential victim and a specific unlawful act constitutes a much more obviously strained construction. Section 11.1 of Bennion also cites the American case of Cabell v Markham (1945) 148 F 2d 737, in which Justice Learned Hand explained the merits of purposive interpretation: Of course, it is true that the words used, even in their literal sense, are the primary, and ordinarily the most reliable, source of interpreting the meaning of any writing: be it a statute, a contract, or anything else. But it is one of the surest indexes of a mature and developed jurisprudence not to make a fortress out of the dictionary; but to remember that statutes always have some purpose or object to accomplish, whose sympathetic and imaginative discovery is the surest guide to their meaning. Whether the interpretation of the relevant provisions is considered in terms of giving effect to the overall purpose of the legislation or curing a mischief or in its historical context, the permissible and plainly proper construction to be given to those provisions is that the Commission has standing to bring the present proceedings. The decision in this case sweeps away a vital protection for the people of Northern Ireland which, I am convinced, Parliament intended that they should have. It is my hope that Parliament will swiftly restore that protection in legislation which permits no debate as to its purpose. There is another consideration. It relates to the constitutional character of the NIA. In Robinson v Secretary of State for Northern Ireland [2002] NI 390, Lord Bingham made the following statement at para 11 in relation to that Act: The 1998 Act does not set out all the constitutional provisions applicable to Northern Ireland, but it is in effect a constitution. the provisions should, consistently with the language used, be interpreted generously and purposively, bearing in mind the values which the constitutional provisions are intended to embody. To like effect, in R v Director of Public Prosecutions, Ex p Kebeline [2000] 2 AC 326, 375, Lord Hope said: In Attorney General of Hong Kong v Lee Kwong kut [1993] AC 951, 966 Lord Woolf referred to the general approach to the interpretations of constitutions and bills of rights indicated in previous decisions of the Board, which he said were equally applicable to the Hong Kong Bill of Rights Ordinance 1991. He mentioned Lord Wilberforces observation in Minister of Home Affairs v Fisher [1980] AC 319, 328 that instruments of this nature call for a generous interpretation suitable to give to individuals the full measure of the fundamental rights and freedoms referred to, and Lord Diplocks comment in Attorney General of The Gambia v Momodou Jobe [1984] AC 689, 700 that a generous and purposive construction is to be given to that part of a constitution which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled. The same approach will now have to be applied in this country when issues are raised under the 1998 Act about the compatibility of domestic legislation and of acts of public authorities with the fundamental rights and freedoms which are enshrined in the Convention. I consider that these strong statements as to the approach to be taken to constitutional provisions provide a powerful indication that the standing of NIHRC to take these proceedings should be recognised. Article 3 of ECHR Article 3 provides: No one shall be subjected to torture or to inhuman or degrading treatment or punishment. The first thing to notice about this provision is its absolute nature. It unequivocally forbids torture or treatment which can properly be regarded as inhuman or degrading. If that threshold is passed, there is no question of mitigation or justification of the action which constitutes the offending behaviour. The focus is directly on the behaviour said to constitute torture or inhuman or degrading treatment rather than on the circumstances in which it occurred or the avowed reasons for it. If the treatment to which an individual is subjected can properly be regarded as torture or inhuman or degrading, it does not matter a whit what the person or agency which is responsible for the perpetration of that treatment considers to be the justification for it. Nor does it matter that it is believed to be necessary to inflict the treatment to protect the interests of others. Torture and inhuman or degrading treatment are forbidden. That is an end of it. But the anterior question, whether the threshold has been passed; whether the complained of behaviour is torture or inhuman or degrading treatment, does not, in every instance, leave out of account the purpose of the conduct. In Gfgen v Germany (2010) 52 EHRR 1, para 88 the Strasbourg court said: In order for ill treatment to fall within the scope of article 3 it must attain a minimum level of severity. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. Further factors include the purpose for which the treatment was inflicted together with the intention or motivation behind it, as well as its context, such as an atmosphere of heightened tension and emotions. It is necessary to treat this statement with some care, however. The three cases referred to in footnote 38 to the paragraph and which are said to support the proposition that the purpose or motivation of the persons inflicting the treatment was relevant and whether it had occurred at a time of heightened tension was material were Aksoy v Turkey (1996) 23 EHRR 553 (at para 64); Egmez v Cyprus (2000) 34 EHRR 29 (at para 78); and Krastanov v Bulgaria (2004) 41 EHRR 50 (at para 53). These cases were concerned with, inter alia, the question whether the deliberate assault of the victim constituted torture or what might be regarded as the lesser wrongdoing of meting out inhuman or degrading ill treatment. The decisions of the Strasbourg court in those cases linked the issue of torture (or the absence of it) to the question whether police officers were seeking to extract a confession. This confines the issue of motivation or purpose to a relatively narrow compass. It is understandable that ill treatment designed to extract information might be regarded as torture because it has that purpose, while the same treatment with no particular motivation would not qualify. It is important to note, however, that the treatment complained of in all three cases was considered to be in breach of article 3. It was inhuman or degrading. So, the decisions in those cases are a far cry from saying that the motivation of the inflictor of the ill treatment will always be relevant to, much less determinative of, the question of whether that ill treatment crosses the threshold which article 3 prescribes. It appears to me, therefore, that examination of the purpose of the offending behaviour or of the motivation of the person or the state which perpetrates it is principally, if not exclusively, concerned with an assessment of whether treatment which might otherwise not meet the standard set by article 3 crosses the threshold by reason of that motivation or purpose. One can readily understand why this should be so. Conduct which is offensive but, examined out of context lacking in the necessary level of severity to amount to a breach of article 3, can be converted to that condition where there are base motives for its infliction because this can contribute to its degrading or inhuman qualities. It is more difficult to see how the motivation of the inflictor of the treatment or the purpose of its being inflicted, can convert behaviour which would otherwise meet article 3 standards to a condition where it does not. In this connection, what ECtHR had to say in para 151 of RR v Poland (2011) 53 EHRR 31 is relevant: Although the purpose of [alleged ill treatment] is a factor to be taken into account, in particular whether it was intended to humiliate or debase the victim, the absence of any such purpose does not inevitably lead to a finding that there has been no violation of article 3. To bring these considerations home to the present case, I do not accept that the purpose of preserving the impugned provisions of the 1861 and 1945 Acts is relevant to the question whether their effect constitutes torture or inhuman or degrading treatment. That effect must be independently examined for its potential to qualify as treatment forbidden by article 3. If it is found to reach that standard, it cannot be diminished or rescued from the status of article 3 ill treatment by what might be said to be laudable motives or objectives. If I am wrong in that conclusion and it is relevant to take into account the purpose of preserving the impugned legislative provisions and the motivation of those responsible for their preservation, I consider that no great weight should be accorded to those factors in the present case. One begins with the premise that the primary focus of article 3 is on its effect on the victim. Where that effect is, by any objective standard, plainly degrading or inhumane, very considerable and provable benefits would surely be required to displace the primary position. It has been claimed that some 100,000 people in Northern Ireland are alive today because of the law in relation to abortion in that province. That claim featured in a poster issued by the pro life campaign group, Both Lives Matter, in January 2017. The poster was the subject of a complaint to the Advertising Standards Agency (ASA). It was suggested that the poster was misleading and that the claim, that 100,000 people were alive because of the law on abortion in Northern Ireland, could not be substantiated. ASA did not uphold the complaint. It considered that, contrary to the complaint that the advertisement had made an absolute, objective claim, it was a large, round figure that readers would typically associate with estimates and that, furthermore, readers would appreciate that it was not possible to calculate the precise number of abortions that would have theoretically occurred in Northern Ireland if abortion had been legal over the past 50 years. The joint written submissions of the interveners, CARE, ADF International and Professor Patricia Casey, cited this figure and it was relied on in the oral submissions by Mr Mark Hill QC on their behalf, to support their claim that the abortion law in Northern Ireland had a positive, beneficial effect. I do not consider that that claim is sustained by the material on which it purports to rely. I say that for two reasons. Firstly, although ASA dismissed the complaint, it is clear from its report that while it endorsed the methodologies employed by the campaign group, it did not vouch for the accuracy of the figure. It is in the nature of such an exercise that, at best, only a broad estimate could be made. Secondly, even if the accuracy of the figure could be established, it cannot be taken as a given that this outweighs the interests of women required to carry foetuses to term against their will. In this context, it is to be remembered that the clear jurisprudence of Strasbourg (which will be discussed later in this judgment) is that a foetus does not enjoy rights, whereas the expectant mother does. It is therefore misconceived to assert that, because a number of children have been born who would not otherwise have been, this trumps the essential case of the appellant on article 3. This case is that a law requiring mothers to carry babies with fatal abnormalities to term or where their pregnancy is the result of rape or incest, carries an inevitable risk that a number of them will have suffered inhuman or degrading treatment, contrary to the article. It is, in my opinion, beyond question that many women in Northern Ireland who have had to continue with a pregnancy against their will, or who have had to travel to England to obtain an abortion, have had to undergo treatment forbidden by article 3. I will give my reasons for that conclusion later in this judgment. In as much as the motivation of those responsible for the preservation of the laws bears on the question of whether an article 3 breach has been established, it can be said that it is difficult to ascertain what that motivation is, much less that it is soundly based. The respondents point to the fact that on 10 February 2016, members of the Northern Ireland Assembly voted, by 59 votes to 40, against legalising abortion in cases of fatal foetal abnormality, after an amendment was tabled by a Member of the Legislative Assembly (MLA) to the Justice (No 2) Bill. A further amendment legalising it in cases of sexual crimes tabled by another MLA was also unsuccessful. Since that date, the issue of the law on termination of pregnancy has not been further debated by the Assembly, nor has the Northern Ireland Executive considered outstanding proposals from the Department of Justice to change the law to cover cases of fatal foetal abnormality. It would be quite wrong, in my view, to conclude from this that those MLAs who voted against the amendments shared the same stance on why the law should not be amended, much less that this vote is indicative of the will of the majority of the population in Northern Ireland that the law on abortion should be maintained. As NIHRC has submitted, there is no necessary correlation between the votes cast in the Assembly on such issues and the moral views of the people of Northern Ireland. This aspect will be discussed in detail in the sections of this judgment dealing with article 8 and institutional competence and I say nothing more about it here. On the question of the reasons that MLAs voted as they did, the Hansard report of the debate in the Assembly is illuminating. Mrs Pengelly spoke on behalf of the Democratic Unionist party (DUP). She urged MLAs to vote against the amendment in relation to fatal foetal abnormality. She did so, however, on the basis that further investigation and consultation were required. She did not suggest that the DUP (then the largest party in the Assembly) was unalterably opposed to amendment of the abortion law. To the contrary, although she said that the DUP was opposed to the extension of the 1967 Abortion Act to Northern Ireland, in the following passages she made clear that the DUP had not shut its mind to possible reform: The issue before us requires it demands careful consideration from the medical professionals, practitioners, families and ethics and legal experts to ensure that sufficient and proper clarity and guidance are the hallmarks of the way forward. That is absolutely essential to ensure that the arrangements are fully grounded in compassion, good law, support and the protection of our integrity and to ensure that our societal values and rights are properly and carefully balanced and maintained Tread carefully. That is why the DUP is rejecting the amendment but outlining a road map to a sensible, informed and appropriate way forward. The Minister of Health has been asked to establish, by the end of February, a working group that will include clinicians in this field and legally qualified persons to make recommendations on how this issue can be addressed, including, if necessary, bringing forward draft legislation. We have asked that all interested parties should be consulted and that the group will be tasked to report within six months. We all need to hear more fully the views of the Royal College and others. We all need the opportunity to ask those vital questions to get the appropriate advice. That is why the working group is the best and most appropriate way forward I urge members to vote against the amendment and for the proposed way forward that we are outlining a sensible way that is based on expertise, evidence and careful, thoughtful consideration. Support a way forward that is based on love, compassion and hope. Mrs Dolores Kelly, speaking on behalf of the Social Democratic and Labour Party declared that her party was a pro life party. But the opposition of her party to the amendment was not based solely on that position. She considered that greater clarity was required about the guidelines issued by the Department of Health as to when termination could legally take place. She welcomed the decision of the First Minister to set up a working group to consider the question of abortion law in Northern Ireland. Again, it is clear that this party did not have an implacable opposition to amendment of the law. At the time of the vote on the amendment, the make up of the Assembly was DUP 38; Sinn Fin 29; Ulster Unionist Party 16; Social Democratic and Labour Party 14; Alliance Party of Northern Ireland 8; Traditional Unionist Voice 1; Green Party 1; Independent 1. It is clear from the voting record that the bulk of the opposition came from DUP but members of other parties, notably, the Social Democratic and Labour party, also joined the no lobby while members of the Ulster Unionist party and the Alliance party supported the amendment. It is inescapably clear, therefore, that there was no single, cohesive view among those who voted against the amendment as to the reasons for doing so. The motivation for preserving the law in its current state cannot begin to qualify as a basis for treating what would otherwise be inhuman or degrading treatment as something less than that. The applicability of article 3 to cases of fatal foetal abnormality and rape or incest I have already referred (in para 215 above) to the absolute nature of article 3. That characteristic was recognised by ECtHR in Pretty v United Kingdom [2002] 35 EHRR 1. At paras 50 52, the court said: 50. An examination of the Courts case law indicates that article 3 has been most commonly applied in contexts in which the risk to the individual of being subjected to any of the proscribed forms of treatment emanated from intentionally inflicted acts of State agents or public authorities. It may be described in general terms as imposing a primarily negative obligation on States to refrain from inflicting serious harm on persons within their jurisdiction. However, in light of the fundamental importance of article 3, the Court has reserved to itself sufficient flexibility to address the application of that article in other situations that might arise. 51. In. particular, the Court has held that the obligation on the High Contracting Parties under article 1 of the Convention to secure to everyone within the jurisdiction the rights and freedoms defined in the Convention, taken together with article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman and degrading treatment or punishment, including such treatment administered by private individuals. A positive obligation on the State to provide protection against inhuman or degrading treatment has been found to arise in a number of cases: see, for example the above cited A v United Kingdom where the child had been caned by his stepfather and Z v United Kingdom where four child applicants were severely abused and neglected by their parents. It also imposes requirements on State authorities to protect the health of persons deprived of liberty. 52. As regards the types of treatment which fall within the scope of article 3 of the Convention, the Courts case law refers to ill treatment that attains a minimum level of severity and involves actual bodily injury or intense physical or mental suffering Where treatment humiliates or debases an individual showing a lack of respect for, or diminishing, his or her human dignity or arouses feelings of fear, or inferiority capable of breaking an individuals moral and physical resistance, it may be characterised as degrading and also fall within the prohibition of article 3. The suffering which flows from naturally occurring illness, physical or mental, may be covered by article 3, where it is, or risks being, exacerbated by treatment, whether flowing from conditions of detention, expulsion or other measures, for which the authorities can be held responsible. The Attorney General argued that those who wished to have an abortion in Northern Ireland but were forbidden by the law from obtaining one had not been ill treated within the meaning of article 3 in that they had not been treated at all by the state. I do not accept that argument. At present, a girl or woman who obtains an abortion in circumstances other than those narrowly prescribed by the 1861 and 1945 Acts commits a criminal offence and is liable to prosecution. That constitutes ill treatment in so far as imposing that sanction on women amounts to a breach of article 3. Likewise, requiring a woman to carry to term a foetus who is doomed to die, or a foetus who is the consequence of rape or incest, when the impact on the mother is inhuman or degrading is, in every sense, treatment to which the woman is subjected by the state. It is, moreover, treatment which because of its inhumanity or degrading effect, is in violation of article 3. Moreover, the threat of prosecution of a doctor whose assistance in the termination of a pregnancy is sought has a direct impact on a girls or womans experience of pregnancy where, for instance, she has been told that the foetus she is carrying has a fatal abnormality. In this connection, the evidence of Professor Dornan is highly pertinent. He is a distinguished obstetrician and gynaecologist whose appointments include Emeritus Professor in Maternal and Foetal Medicine at the Queens University of Belfast and the Professor of Health and Life Sciences at Ulster University. He is also a member of the external advisory group to Centre for Maternal and Newborn Health (CMNH). CMNH is a World Health Organisation collaborating Centre for Research and Training on Maternal and Newborn Health whose work includes emergency obstetric care in Africa and Asia. Professor Dornan has explained that before the decision in the FPANI case, it was the clinical practice in the unit in which he was a consultant to carry out terminations of pregnancy where lethal abnormalities of the foetus were detected on screening and where abnormalities were discovered prior to the stage of viability (at that time 28 weeks, now considered to be 24 weeks) which indicated that there would be a major physical or mental problem for the foetus. After the judgments of the Court of Appeal were handed down in FPANI, that practice changed radically, as Professor Dornan explained in para 12 of his affidavit: The FPANI case, which was finally decided in 2004, made it clear that we could no longer offer a pregnant woman the option of an abortion on the grounds of fatal foetal abnormality alone. Rather the focus was to be solely on the pregnant woman. Therefore, a pregnancy could be lawfully terminated if its continuation threatened her life or would have a serious and long term effect on her physical or mental health. Hence a diagnosis of fatal foetal abnormality would only be relevant to offering a termination if the continuation with that pregnancy would have such an impact. Unless, therefore, a doctor could advise with confidence that there would be a serious and long term effect on a mothers physical or mental health, it was legally forbidden to carry out a termination of pregnancy in the case of a fatal abnormality of the foetus. And this, as Professor Dornans affidavit convincingly shows, despite the high level of accuracy in such diagnoses. In sum, a doctor treating a pregnant mother is able to tell her with confidence that her baby has a fatal condition but is not be able to offer her a termination of her pregnancy unless a prognosis of serious and long term mental or physical ill health for the mother (an inherently difficult prognosis to make) is possible. It is small wonder that the doctors in the examples given at the beginning of this judgment felt unable to assist their patients. Not all mothers who are told that the baby they are carrying has a fatal abnormality will suffer the trauma that was endured by the women whose experiences have been described earlier. Likewise, not all girls or women who become pregnant as a result of rape or incest will suffer to the same extent. Some may have uncommon reserves of stoicism and fortitude. But it is undeniable that some will suffer profound psychological trauma. That circumstance is sufficient to give rise to a violation of article 3 where proper safeguards to mitigate the risk of such trauma are not put in place. Obligations owed by the state under article 3 extend to protecting individuals from the risk of a breach of its provisions as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill treatment contrary to article 3. The positive obligation to protect citizens from ill treatment is stated in A v United Kingdom (1998) 27 EHRR 611: Article 1 taken together with article 3, requires states to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment (para 22). In RR v Poland (2011) 53 EHRR 31, the court stated that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under article 3 by reason of their failure to provide appropriate medical treatment (para 152). In Chahal v United Kingdom (1996) 23 EHRR 413 the ECtHR held that the risk of the applicant being subjected to torture, inhuman or degrading treatment if he was returned to India was sufficient to give rise to a breach of article 3 where the British authorities had evinced an intention to deport him there. So also in Saadi v Italy [2008] 49 EHRR 30, the Strasbourg court held that since there were substantial grounds for believing that, in the event of his deportation to Tunisia, the applicant would face a real risk of ill treatment, contrary to article 3, to return him there, as the Italian authorities proposed to do, would violate his article 3 rights. In Sufi and Elmi v United Kingdom [2011] 54 EHRR 9 it was held that the risk of the applicants being subjected to treatment which would violate article 3 if returned to Somalia meant that the British authorities would be in breach of the article if they carried through their intention to deport them to that country. The risk of women and girls being subject to ill treatment contrary to article 3 is therefore sufficient to trigger the states positive obligations to take measures to prevent that happening. That such a risk exists while the impugned legislative provisions remain in force is beyond dispute, in my opinion. Article 3 prohibits torture and inhuman or degrading treatment. Degrading treatment means subjecting someone to humiliation or debasement see RR v Poland at para 150. In my view, it is plainly humiliating to require a girl or woman to continue a pregnancy when she knows that the foetus she carries will die or where she finds that pregnancy abhorrent because it is the consequence of rape or incest. It has been suggested that since a woman from Northern Ireland who wishes to have an abortion can obtain one by travelling to England or Scotland, she can avoid inhuman or degrading treatment. I do not accept this. Termination of pregnancy is one of lifes most traumatic and fraught experiences. To be required to travel away from home and to undergo an abortion in unfamiliar surroundings without the normal support network that a woman would expect and hope to have is in itself deeply upsetting. A girl or woman who has become pregnant as a result of rape or incest is already in a vulnerable position and liable to suffer extreme distress. So too a mother who has been told that the child she carries will not survive. That distress can only be increased and compounded by forcing the woman to seek termination of her pregnancy in a different country, away from her family and friends and without the support of her own doctor. The fact of being required to do so is in itself sufficient to expose her to the risk of inhuman and degrading treatment. The Court of Appeals treatment of the article 3 issue Sir Declan Morgan LCJ rejected the Commissions article 3 case on the ground that the standard of severity of impact required for its engagement in this field was so high see para 60 of his judgment. In reaching that conclusion, the Lord Chief Justice examined four decisions of the Strasbourg court Tysiac v Poland (2007) 45 EHRR 42; A, B and C v Ireland (2010) 53 EHRR 13; RR v Poland; and P and S v Poland (2013) 129 BMLR 120. Before examining those decisions, it is to be noted that, as Sir Declan observed in para 53 of his judgment, the threshold level for the engagement of article 3 is relative. In other words, whether the treatment complained of is to be regarded as torture or inhuman or degrading depends on a close examination of the individual circumstances of any case in which breach of article 3 is claimed. Those individual circumstances must comprehend not only the nature of the behaviour but also its effect on those affected by it and a number of other factors. As the ECtHR said in Ireland v United Kingdom (1978) 2 EHRR 25: It depends on all the circumstances of the case, such as the nature and context of the treatment, the manner and method of its execution, its duration, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. It is not appropriate, therefore, to categorise those wishing to have a termination of pregnancy as inhabiting a single class of persons and to theorise that a high level of severity is required before article 3 is engaged for any member of that group. The same law may affect different women in different ways. The fact that some feel able to face an ordeal with stoicism or even equanimity, does not mean that others, who do not react in the same way, and who suffer severe trauma when confronted with the same prospect as those who can contemplate it equably, cannot be the victims of an article 3 breach. That is not to say, however, that those women and girls who become pregnant as a result of rape or incest, or who have been found to be bearing foetuses with serious or fatal abnormality do not share certain characteristics. Rape or incest victims are in a highly vulnerable group para 162 of P and S v Poland. Being required to give birth to a child which is the result of sexual abuse or assault carries at least the risk of having to endure treatment which is forbidden by article 3. Likewise, a woman who is obliged to carry to term a foetus who is fatally malformed is placed in a position of similar peril see RR v Poland at para 159. A law which forbids a woman, impregnated as a result of sexual assault, from avoiding its consequence, when the continuation of the pregnancy is utterly abhorrent to her and when it will prolong and intensify her suffering, faces a formidable hurdle in its defence to a claim that it violates her article 3 rights. So does a law which demands that a woman, who has been told that the foetus she carries cannot survive, but must nevertheless be sustained by her until his or her inevitable demise, with all the horrible effects that will be visited on the mother during the period, must live with that knowledge. The cases which NIHRC have cited exemplify the agony of such women. In Tysiac v Poland a pregnant woman was denied an abortion, notwithstanding her general medical practitioners opinion that her already significant myopia would deteriorate if she was to give birth. Ophthalmic specialists disagreed. ECtHR found that she had been the victim of a breach of article 8 of ECHR. The court dealt perfunctorily with her claim under article 3, stating in para 68 that the facts did not disclose a breach of the article. The judgment did not elaborate on the reasons for this conclusion. I do not consider that this case assists in the present appeal, at least not on the issue of article 3. A, B and C v Ireland was a case in which three women had been required to travel from Ireland to the United Kingdom to obtain an abortion. It will be necessary to consider the case in some detail in relation to article 8 and the margin of appreciation but, for present purposes, I focus on what the ECtHR had to say about article 3. In paras 124 127, the court set out its findings as to the circumstances in which each of the applicants travelled to England to obtain an abortion. Although the Irish government had not accepted the versions of events given by the applicants and asserted that these were not substantiated, the court considered that the essential facts as related by the women should be regarded as proved. In particular, at para 126 the court said: The Court considers it reasonable to find that each applicant felt the weight of a considerable stigma prior to, during and after their abortions: they travelled abroad to do something which, on the Governments own submissions, went against the profound moral values of the majority of the Irish people and which was, or (in the case of the third applicant) could have been, a serious criminal offence in their own country punishable by penal servitude for life. Moreover, obtaining an abortion abroad, rather than in the security of their own country and medical system, undoubtedly constituted a significant source of added anxiety. The Court considers it evident that travelling abroad for an abortion constituted a significant psychological burden on each applicant. As regards the physical effects of having to travel abroad to obtain an abortion, the court, at para 127, said: As to the physical impact of travelling for an abortion abroad, it is evident that an abortion would have been physically a less arduous process without the need to travel, notably after the procedure. However, the Court does not find it established that the present applicants lacked access to necessary medical treatment in Ireland before or after their abortions. The Court notes the professional requirements on doctors to provide medical treatment to women post abortion. Finally, the court accepted that in the case of the first applicant, having to travel to England cast a significant financial burden on her and that the second and third applicants were put to considerable expense. These effects, physical, psychological and financial, did not, in the courts estimation, constitute a breach of article 3. The reason for that conclusion is pithily expressed in para 164: the Court reiterates its case law to the effect that ill treatment must attain a minimum level of severity if it is to fall within the scope of article 3. The assessment of this minimum depends on all the circumstances of the case, such as the duration of the treatment, its physical or mental effects and, in some cases, the sex, age and state of health of the victim. In the above described factual circumstances and whether or not such treatment would be entirely attributable to the state, the Court considers that the facts alleged do not disclose a level of severity falling within the scope of article 3 of the Convention. Two important points should be made about this passage. The first is that the court was careful to reiterate the well established formula that the assessment of whether the minimum standard of severity has been met depends on all relevant circumstances. The second, and related, point is that the courts rejection of the applicants claims under article 3 rested squarely on its evaluation of the particular facts of those cases. Apart from its restatement of the requirement to examine all material circumstances, the court expressed no general principle that might be considered applicable to cases where the facts were significantly different. Plainly, cases of serious or fatal abnormality of the foetus or cases where pregnancy is the consequence of sexual assault or incest are markedly different from the A, B and C case. In my opinion, the judgment in that case does not assist in the decision as to whether there is an article 3 breach in the three categories involved in these proceedings. In RR v Poland it was discovered at the 18 week scan of the applicant in February 2002 that the foetus she was carrying might have a malformation. Two subsequent scans confirmed the possibility that the foetus was malformed. Throughout March 2002 the applicant sought, without success, to obtain genetic tests or an abortion. Eventually, on 21 March 2002 a scan confirmed that the foetus was malformed. The applicant had an amniocentesis on 26 March 2002. She was then 23 weeks pregnant. She did not receive the results until 9 April. It was revealed that the foetus had Turner syndrome. The applicant thereafter requested an abortion, but that request was refused because under the applicable domestic law, the last point at which an abortion could be undertaken on the basis of foetal abnormality was 24 weeks, and that time limit had expired. ECtHR held that there had been a violation of article 3. In para 150, the court gave a useful definition of degrading treatment: Treatment has been considered degrading when it was such as to arouse in victims feelings of fear, anguish and inferiority capable of humiliating and debasing them [Iwanczuk v Poland (2004) 38 EHRR 8 at para 51; and Wikiorko v Poland (14612/02) March 31, 2009 at para 45]. It is, of course, the case that RR was entitled to seek an abortion under the law of Poland on the basis that the child she was carrying had a serious malformation. And it is plainly relevant that the failure of the medical authorities to act promptly denied her the opportunity to vindicate that legal entitlement. But what ECtHR had to say about the nature of the effect on her in being required to carry the baby to term is clearly relevant to an evaluation of the impact that the imposition of such a requirement has on a woman who does not enjoy equivalent rights in the domestic laws of the country of which she is a citizen. At para 159 the court said: The Court notes that the applicant was in a situation of great vulnerability. Like any other pregnant woman in her situation, she was deeply distressed by information that the foetus could be affected with some malformation. It was therefore natural that she wanted to obtain as much information as possible so as to find out whether the initial diagnosis was correct, and if so, what was the exact nature of the ailment. She also wanted to find out about the options available to her. As a result of the procrastination of the health professionals as described above, she had to endure weeks of painful uncertainty concerning the health of the foetus, her own and her familys future and the prospect of raising a child suffering from an incurable ailment She suffered acute anguish through having to think about how she and her family would be able to ensure the childs welfare, happiness and appropriate long term medical care. (Emphasis supplied) In RR the applicants distress was rooted in her uncertainty about the prospects for her unborn child and the impact that her condition would have on her family. It was also due to the lack of information provided by the medical authorities. But, where a woman is presented with a definite diagnosis as to the future for the foetus she carries and the certainty that nothing can be done in Northern Ireland to alleviate her plight, can it be said that her anguish is less acute than that suffered by RR? If a lack of certainty about prognosis and the options available is sufficient to constitute a violation of article 3, is not a definite prognosis and the complete shutting down of all options an a fortiori case of breach of that article? It cannot be correct, as the Attorney General and Mr McGleenan QC for the Department of Justice argued, that the breach of article 3 in RRs case depended on the existence of her right to an abortion. The focus of article 3 is on the impact on the person affected by the ill treatment alleged, not on the reasons which underlie it. In Gfgen v Germany (quoted at para 216 above) the ECtHR stated that the Convention prohibits in absolute terms torture and inhuman or degrading treatment or punishment, irrespective of the conduct of the person concerned (para 87) and the prohibition on ill treatment of a person applies irrespective of the conduct of the victim or the motivation of the authorities. Torture, inhuman or degrading treatment cannot be inflicted even in circumstances where the life of an individual is at risk. No derogation is allowed even in the event of a public emergency threatening the life of a nation. (para 107) In the case of Mubilanzila Mayeka and Kaniki Mitunga v Belgium (2006) 46 EHRR 23, which concerned a five year old child detained by the Belgian authorities in an immigration centre, the court assessed the impact of the treatment on the applicant, stating that her position was: characterised by her very young age, the fact that she was an illegal immigrant in a foreign land and the fact that she was unaccompanied by her family from whom she had become separated so that she was effectively left to her own devices. She was thus in an extremely vulnerable situation. In view of the absolute nature of the protection afforded by article 3 of the Convention, it is important to bear in mind that this is the decisive factor and it takes precedence over considerations relating to the second applicants status as an illegal immigrant. She therefore indisputably came within the class of highly vulnerable members of society to whom the Belgian state owed a duty to take adequate measures to provide care and protection as part of its positive obligations under article 3 of the Convention. (para 55) Those who come within a highly vulnerable class (such, I suggest, as girls or women who have become pregnant as the result of rape or incest, or those who are at risk of significant suffering because they are carrying babies with a fatal foetal abnormality) are owed duties by the state under article 3 of the Convention. The nature of that duty to those within the vulnerable class is, as this case illustrates, to take adequate measures for their care and protection. In other words, it is incumbent on the state to recognise the vulnerability of girls and women in those categories and to take steps to ensure that they are appropriately protected. The states duty does not depend on or require the onset of actual suffering by an individual within the class. It is triggered by recognition of the likelihood that such suffering will occur to at least some members of the vulnerable group. P and S v Poland was a case in which the applicants were daughter and mother. In 2008, at the age of 14, P became pregnant as a result of rape. In order to have an abortion, in accordance with the 1993 Polish Law on Family Planning, she obtained a certificate from the public prosecutor on 20 May 2008 to the effect that her pregnancy had resulted from unlawful sexual intercourse. Thereafter, the applicants encountered substantial difficulties in obtaining an abortion for P. She came under pressure to have the baby from the head gynaecologist of one of the hospitals to which she had been brought; similar pressure was exerted by a Catholic priest who had been brought to see her, although she did not ask for him; she was induced to sign a statement that she wished to carry the baby to term; her mother was required to sign a statement that the carrying out of the abortion would put Ps life at risk; details of the case were released to the media and P was subject to intrusive and distressing messages and a press campaign renewing the pressure on her to keep the baby; she was unlawfully separated from her mother; when she sought police protection from harassment by anti abortion protesters, she was arrested on suspicion of having had unlawful sexual intercourse; she and her mother received contradictory information from two public hospitals as to whether they needed a referral from the regional consultant for gynaecology and obstetrics in addition to the certificate from the prosecutor, as to who could perform the abortion, who could make a decision, whether there was any waiting time prescribed by law, and what other conditions, if any, had to be complied with; finally, mother and daughter were compelled to travel a considerable distance in clandestine conditions in order for the abortion to be carried out. The Strasbourg court, in considering whether a breach of article 3 had been made out, placed considerable emphasis on the first applicants vulnerability. At paras 161 and 162 of its judgment, the court said this: 161. For the courts assessment of this complaint it is of a cardinal importance that the first applicant was at the material time only 14 years old. The certificate issued by the prosecutor confirmed that her pregnancy had resulted from unlawful intercourse. The court cannot overlook the fact that the medical certificate issued immediately afterwards confirmed bruises on her body and concluded that physical force had been used to overcome her resistance. 162. In the light of the above, the court has no choice but to conclude that the first applicant was in a situation of great vulnerability. The court concluded that Ps treatment at the hands of the authorities was deplorable and so it undoubtedly was. The Lord Chief Justice in the present case said that the P and S judgment demonstrates the high level of severity required in this context para 59. If by that, Sir Declan meant that, in every instance, an ordeal akin to that suffered by P was required to establish a breach of article 3, I do not agree. The Strasbourg court in its judgment in P and S was careful to repeat the definition of degrading treatment offered in RR v Poland; Iwanczuk v Poland (2004) 38 EHRR 148; and Wikiorko v Poland (Application No 14612/02 unreported 31 March 2009) see para 159. Feelings of fear, anguish and inferiority capable of humiliating and debasing those affected by ill treatment can be aroused by conduct of a different stripe from that endured by P and her mother in the P and S case. Could it be said, for instance, that the child whose case was described by Ms Purvis and which is detailed in para 10 above, did not suffer such feelings and did not feel humiliated and debased as a consequence? We need to be clear about what the current law requires of women in this context. It is not less than that they cede control of their bodies to the edict of legislation passed (in the case of the 1861 Act) more than 150 years ago and (in the case of the 1945 Act) almost 75 years ago. Binding the girls and women of Northern Ireland to that edict means that they may not assert their autonomy in their own country. They are forbidden to do to their own bodies that which they wish to do; they are prevented from arranging their lives in the way that they want; they are denied the chance to shape their future as they desire. If, as well as the curtailment on their autonomy which this involves, they are carrying a foetus with a fatal abnormality or have been the victims of rape or incest, they are condemned, because legislation enacted in another era has decreed it, to endure untold suffering and desolation. What is that, if it is not humiliation and debasement? Conclusions on article 3 I consider that the law on abortion in Northern Ireland is incompatible with the article 3 rights of the girls and women of that country who are pregnant with foetuses which have a fatal abnormality or who are pregnant as a result of rape or incest. I would make a declaration of incompatibility under section 4 HRA to that effect. Article 8 Article 8 of ECHR provides: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. It is accepted that the Acts of 1861 and 1945 interfere with womens rights under article 8. The single issue on this aspect of the case is whether that interference is justified. It is also accepted that it is for the state to establish that justification. The first question to be asked is whether the interference is in accordance with the law. If it is, as is now well established, examination of whether the interference with a qualified Convention right is justified requires a court to follow a four stage process. Those four stages were set out by Lord Wilson in R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2012] 1 AC 621, para 45. They are (a) is the legislative objective sufficiently important to justify limiting a fundamental right?; (b) are the measures which have been designed to meet it rationally connected to it?; (c) are they no more than are necessary to accomplish it?; (d) do they strike a fair balance between the rights of the individual and the interests of the community? (See also Lord Reed at para 75 of Bank Mellat v HM Treasury (No 2) [2014] AC 700 and Lord Sumption in the same case at para 20) In accordance with the law Following the hearing of this case before the Court of Appeal, it appears that the Lord Chief Justice sought further submissions on the meaning to be given to the word unlawfully in section 58 of the 1861 Act. In NIHRCs printed case, at para 116, it is said that the Department, in its reply to that request, stated at para 20 that the Bourne test does not afford sufficient clarity or certainty of interpretation. NIHRC states that, if this is correct, it must follow that the lack of clarity and certainty means that the criminalisation of abortion in these circumstances is not in accordance with the law as required by article 8(2): Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49. Ms Gallagher QC, on behalf of the intervener, Humanists UK, has suggested that the limited qualification to the prohibitions in sections 58 and 59 of the 1861 Act provided under section 25 of the 1945 Act, as interpreted in Bourne and affirmed in the FPANI case, is insufficiently precise and accessible for Northern Irish women with fatal foetal abnormality pregnancies. Nor was it, she suggested, sufficiently clear to allow medical professionals to decide whether they might be able provide a lawful abortion in their own jurisdiction. She claimed that the lack of clarity was underscored by the Lord Chief Justices proposed extension of the Bourne defence. It is to be remembered, of course, that both Gillen and Weatherup LJJ disagreed with the Lord Chief Justices analysis on this point and none of the parties to the appeal has sought to advance it. Nor did they apparently make submissions to that effect before the Court of Appeal. For the reasons that I have given, I do not consider that the proposed extension to Bourne is feasible and I would therefore not be prepared to hold that a lack of certainty has been introduced by the Lord Chief Justices proposal. One might observe, however, that the formula used by Macnaghten J does not lend itself to ready, confident definition. What is meant by a physical and mental wreck? Would contemporary thinking on that term accord with what it was understood to mean in 1938? There must be some question, at least, therefore, as to whether the law is sufficiently clear and accessible to women seeking abortion in Northern Ireland and to those medical practitioners from whom abortions are sought. Since this issue was not widely canvassed on the hearing of the appeal and since it is unnecessary for me to reach a final view on it in order to decide the appellants claim that the 1861 and 1945 Acts are in breach of article 8, I say nothing more on the subject. Legitimate aim Both the Department of Justice and the Attorney General have expressed in terms of some generality what the legitimate aim is that the relevant sections of the 1861 and 1945 Acts are designed to achieve. They have said that that aim is the protection of the unborn child. This was refined somewhat in the printed case of the Attorney General which, when challenging Weatherup LJs judgment on the point, suggested that the legitimate aim was the protection of the unborn childs life to the extent possible without significant and enduring damage to the life or health of the mother para 79. Horner J accepted that the protection of the unborn child was a legitimate aim so long as the foetus was viable. Even if there was a prospect that the child would suffer disability after birth, it was still a legitimate aim to afford him or her protection. The judge considered, however, that prohibition on the termination of a pregnancy where the foetus [was] doomed to die because a fatal abnormality [rendered him or her] incapable of an existence independent of the mothers womb was not a legitimate aim para 148 of his judgment. Morgan LCJ did not expressly articulate the legitimate aim at stake in this case but referred to that identified by the ECtHR in A, B and C v Ireland which he stated was the protection of morals of which the protection in Ireland of the right to life of the unborn was one aspect para 67 of the Lord Chief Justices judgment. Gillen LJ considered that this statement encapsulated the legitimate aim in the present case. The legitimate aim was, he said, the protection of morals in this jurisdiction of which the protection of the right to life of the unborn child is one aspect para 102. Weatherup LJ stated that the avowed legitimate aim was the protection of the unborn child, based on the moral view that the unborn child requires protection para 144. The Lord Chief Justice and Gillen LJ considered that the protection of the unborn child as an aspect of the protection of morals was a legitimate aim. As I discuss in the next paras, Weatherup LJ was, at least, doubtful about that proposition. Weatherup LJ pointed out that, where the existing law permits the termination of a pregnancy where the foetus is healthy, provided there is sufficient threat to the long term health of the mother, the rationale for forbidding the abortion of a foetus which has no prospect of survival is not easy to find para 167 where he said: The evidence submitted on behalf of the respondent does not address the particular character of the legitimate aim of the restrictions by reference to the precise nature of the moral view that the unborn child should be protected in such circumstances. The evidence submitted concerns the materials circulated in the consultation process about the scope of proposals for amendment of the present law. The focus is on the practicalities of amendments and the nature of conditions that might apply, all entirely legitimate matters for discussion. What is absent is the underlying rationale for the exclusion of fatal foetal abnormality by reference to the moral view on the protection of the unborn child when that protection is not afforded in those cases where termination of pregnancy is permitted under present arrangements in the case of a healthy unborn child by recognising a preference for the quality of life of the mother. (original emphasis) In other words, where a firm medical diagnosis has been made that the foetus will not survive, what is the moral value in insisting that the mother carry the unborn child to term? In this context, it is important to recognise that all three members of the Court of Appeal identified the legitimate aim as being the protection of the unborn child as an element of the moral values or views of society rather than having any intrinsic worth. The case made by the Attorney General appears to depart from the Court of Appeals understanding of the legitimate aim and to assign an inherent and fundamental value to the life of the unborn child. At para 81 of his printed case, the Attorney makes this claim: the balance struck by the current law of Northern Ireland does not purport to afford absolute protection to the unborn child. The balance is struck, instead, in favour of the mothers life and health, with the public interest in the protection of life before birth giving way when (and only when) the impact on the mother reaches the level where a threat to the life of the mother or serious and long term threat to her health can be established. Where that impact is not serious or not long term, the unborn child is absolutely protected, whether or not he/she came into being as a result of rape or incest and whether or not his/her life is likely to be short lived. On this argument, the legitimate aim of the legislation must be taken to be that, absent serious and long term threat to the mothers health, the foetus must be afforded complete and unconditional protection. Much of the argument surrounding this issue is also (and more directly) relevant to the third and fourth stages identified by Lord Wilson in Quila. As Lord Sumption said in Bank Mellat, the four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them (para 20). But I do not accept that the aim identified by the Attorney General in such absolute terms can be regarded as legitimate. How can it be said to be legitimate to force a woman to carry a baby to term, when there is conclusive evidence that it will not survive? Although he does not say so explicitly, Weatherup LJ appeared at least to doubt that restrictions on abortion in cases of fatal foetal abnormality could be a legitimate aim see the passage from para 167 of his judgment quoted at para 273 above. It should be noted, however, that at para 145 he stated that he was satisfied that the restriction on termination of pregnancies pursues the legitimate aim of the protection of morals reflecting the views of the majority of the members of the last Assembly on the protection of the unborn child. If expressed in general terms such as the protection of the unborn child, I have no quarrel with the proposition that restriction on the termination of pregnancy pursues a legitimate aim. It is when one begins to examine the nature of the restriction that difficulties with the legitimacy of the aim emerge. But this debate finds a more natural home in consideration of the third and fourth stages of Quila and I will return to it when dealing with those aspects. Rational connection If one posits that the legitimate aim is the protection of the unborn child, there is an obvious and rational connection between the aim and the restriction on termination of pregnancy. If, however, the legitimate aim is the protection of foetuses with a reasonable prospect of survival and is attended by a blanket ban on abortion in all cases where there is not a serious and long term threat to the health of the mother, a rational connection between the aim and the means employed is less easily forged. This subject is better dealt with under the third and fourth requirements of the proportionality analysis, however. The least intrusive means The third stage in Quila, are the measures no more than is necessary to achieve the aim? is sometimes expressed as, are they the least intrusive means of accomplishing the objective?. The starting point of the discussion on this question must be the recognition of the fundamental nature of the right in question. A womans right to respect for her private life, her right to exercise autonomy over her own body, her entitlement to make decisions as to her own welfare and happiness lie at the very centre of her existence. Interference with that right, to be proportionate, must be no more than is necessary to achieve the aim that it is designed to fulfil. In Mouvement Raelien Suisse v Switzerland (2012) 56 EHRR 14, para 75, in the course of considering the proportionality of the measure under challenge, ECtHR said, the authorities are required, when they decide to restrict fundamental rights, to choose the means that cause the least possible prejudice to the rights in question. And in Nada v Switzerland (2012) 56 EHRR 18, para 183, the Strasbourg court employed a similar formula: The court has previously found that, for a measure to be regarded as proportionate and as necessary in a democratic society, the possibility of recourse to an alternative measure that would cause less damage to the fundamental right at issue whilst fulfilling the same aim must be ruled out. The exercise involved in deciding whether the measure is the least intrusive throws the focus back on the question of the legitimacy of the aim. In relation to cases involving fatal foetal abnormality, is it the protection of every foetus whose continued existence does not present a threat of serious, long term harm to the health of the mother, irrespective of the chances of his or her survival, as the Attorney General argues, or is it, as Horner J suggests, the protection of unborn children who enjoy a prospect of viable life? Viewed through the prism of the fundamental nature of the mothers right under article 8, I have no hesitation in concluding that it is the latter. The question of the protection of morals or moral values adds nothing to this debate, in my opinion. As Weatherup LJ implicitly suggested, how can it be moral to allow the abortion of a healthy foetus where there is a serious threat to the long term health of the mother but to forbid it when the foetus will not survive? If, therefore, the legitimate aim in restricting abortion in these cases is the protection of unborn children who have a reasonable chance of survival after birth, the reasonableness of imposing a blanket ban on the termination of pregnancy in every case where its continuation does not present a serious, long term threat to the health of the mother is obviously difficult. Put in stark terms, if the foetus has little hope of survival, can it be said that requiring the mother to carry it to term is the least intrusive means of achieving the aim of protecting the unborn child who does have a hope of survival? Clearly not. Different considerations arise in the case of victims of rape and incest. As I have said, all three members of the Court of Appeal considered that the protection of the unborn child was an aspect of the moral values of the people of Northern Ireland, whereas the Attorney General in the appeal before this court appears to have espoused a legitimate aim which asserts the protection of the unborn child as an intrinsic value. If the legitimate aim is as the Court of Appeal expressed it to be, like Weatherup LJ, I have difficulty in understanding how the moral values of the population of Northern Ireland permit abortion to take place when there is a threat of serious, long term ill health to the mother but forbid it where that cannot be said to be present but the mother finds the pregnancy repugnant and a constant reminder of the sexual abuse to which she has been subjected. As Weatherup LJ said (at para 172), the underlying rationale for the exclusion of pregnancy arising from rape or incest by reference to the moral view on the protection of the unborn child is absent from the case presented on behalf of the respondents. If the Attorney General is right and the protection of the unborn child has an intrinsic value, freestanding of considerations of morality, it may well be that there is no less intrusive means of securing that value than by forbidding abortion in all cases save where there is a serious long term risk to the health of the mother. The Attorney General has not explained why the protection of the unborn child should be segregated from the moral values of the people of Northern Ireland, however. Moreover, the majority in A, B and C v Ireland, on which both respondents so crucially rely, identified the moral values of the population of Ireland as a critical feature in the justification for the restriction on abortion in that country. Since, however, the respondents avowed justification for interference with the rights of girls and women made pregnant as the result of rape or incest fails at the fourth stage of the proportionality exercise, I do not propose to discuss this issue further. A fair balance? As with the least intrusive means stage, so the discussion as to whether a fair balance is struck between the rights of the mother (whose foetus has a fatal abnormality or is the result of rape or incest) and the interests of the community, must begin with a clear sighted appreciation of the fundamental nature of the right involved. A woman who knows that the foetus will not survive or one who has been impregnated as a result of rape or incest and who wishes to have her pregnancy terminated is, under the current law of Northern Ireland, coerced to carry her baby to term, or to leave her country and travel abroad to have that wish fulfilled. For the reasons that I have given, I consider that requiring such a woman to do so amounts to exposing her to a breach of her article 3 rights. It follows that placing her under such duress cannot be said to strike a fair balance between her fundamental right under article 8 and the interests of the community. Even if I had decided that no breach of article 3 was involved, however, I would have concluded that a fair balance is not struck between the competing interests and I now give my reasons for that conclusion. Much has been made by the respondents about the margin of appreciation that Strasbourg has accorded to the contracting states of the Council of Europe in the field of social policy. It has been suggested in particular that, in relation to abortion in Ireland, a wide margin of freedom in decision making must be afforded to the state because of the sensitivity which attends this difficult and delicate subject. Before examining the ECtHR jurisprudence in this area, it is necessary to remember that the margin of appreciation principle is one which is not relevant in the domestic setting, at least not in the sense that the expression has been used by the Strasbourg court. The margin of appreciation principle applied on the pan European plane by the supra national court in Strasbourg recognises that in the field of social policy, there may be different views among the individual contracting states, reflecting, among other things, differing moral standards and cultural values of the various societies of the states which comprise the Council of Europe. Where those differences are marked, ECtHR evinces a reticence in imposing a universal prescription applicable to all contracting states and leaves it to the institutions of those states to make the choice which best suits the concerns and values of its citizens. When it comes to the domestic superintendence by one institution (the judiciary) of another institutions (the executives or the legislatures) decision in the field of human rights, there is no place for reticence on the basis of a margin of appreciation. There may be a case for the courts to defer to the decision of one of the other organs of the state either because of what is sometimes described as institutional competence or, relatedly, because it is considered that the decision maker is more fully equipped to take a decision than is the court. But that is not, in the strict sense, a question of the domestic courts according a margin of appreciation to those institutions. Horner J dealt with this subject admirably in the section of his judgment entitled Margin of Appreciation between paras 35 and 56. I agree with all that he had to say there and need not repeat it, beyond recalling his apt quotation of the celebrated passage from the speech of Lord Bingham of Cornhill in A v Secretary of State for the Home Department [2005] 2 AC 68, para 42: I do not accept the distinction which [the Attorney General] drew between democratic institutions and the courts. It is of course true that the judges in this country are not elected and are not answerable to Parliament. It is also of course true that Parliament, the executive and the courts have different functions. But the function of independent judges charged to interpret and apply the law is universally recognised as a cardinal feature of the modern democratic State, a cornerstone of the rule of law itself. The Attorney General is fully entitled to insist on the proper limits of judicial authority, but he is wrong to stigmatise judicial decision making as in some way undemocratic. It is particularly inappropriate in a case such as the present in which Parliament has expressly legislated in section 6 of the 1998 Act to render unlawful any act of a public authority, including a court, incompatible with a Convention right, has required courts (in section 2) to take account of relevant Strasbourg jurisprudence, has (in section 3) required the courts, as far as possible, to give effect to Convention rights and has conferred a right of appeal on derogation issues. The effect is not, of course, to override the sovereign legislative authority of the Queen in Parliament, since if primary legislation is declared to be incompatible the validity of the legislation is unaffected (section 4(6)) and the remedy lies with the appropriate minister (section 10), who is answerable to Parliament. The 1998 Act gives the courts a very specific, wholly democratic, mandate. As Professor Jowell has put it, The courts are charged by Parliament with delineating the boundaries of a rights based democracy. (Judicial deference: servility, civility or institutional capacity? [2003] PL 592, 597). The institutional competence factor has sometimes been expressed as the discretionary area of judgment see R v Director of Public Prosecutions, Ex p Kebeline [2000] 2 AC 326, 381, per Lord Hope, where he said: In this area difficult choices may have to be made by the executive or the legislature between the rights of the individual and the needs of society. In some circumstances it will be appropriate for the courts to recognise that there is an area of judgment within which the judiciary will defer, on democratic grounds, to the considered opinion of the elected body or person whose act or decision is said to be incompatible with the Convention. The notion of deference to the elected institutions has not been without criticism. In R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2015] AC 945 Lord Sumption at para 22 said: As a tool for assessing the practice by which the courts accord greater weight to the executives judgment in some cases than in others, the whole concept of deference has been subjected to powerful academic criticism: see, notably, TSR Allan, Human Rights and Judicial Review: a Critique of Due Deference [2006] CLJ 671; J Jowell, Judicial Deference: Servility, Civility or Institutional Capacity? [2003] PL 592. At least part of the difficulty arises from the word, with its overtones of cringing abstention in the face of superior status. In some circumstances, deference is no more than a recognition that a Court of review does not usurp the function of the decision maker, even when Convention rights are engaged. Beyond that elementary principle, the assignment of weight to the decision makers judgment has nothing to do with deference in the ordinary sense of the term. It has two distinct sources. The first is the constitutional principle of the separation of powers. The second is no more than a pragmatic view about the evidential value of certain judgments of the executive, whose force will vary according to the subject matter. On the question of the usurpation of the function of the decision maker, in the circumstances of the present case, this simply does not arise. The Northern Ireland Assembly has not made a decision. Its largest party, at the time of the debate in February 2016, declared that further consultation and consideration were required. Other parties, such as the SDLP, who voted against the measure, were not irreversibly opposed to reform. Likewise, the evidential value of judgments of the executive holds no sway here because none has been made. The courts should feel no sense of inhibition in relation to the question of whether the current law offends article 8 of the Convention, in the light of the absence of any firmly expressed view of the democratic institutions of Northern Ireland. Substantial reliance was placed by the respondents on the decision of this court in R (Nicklinson) v Secretary of State for Justice [2015] AC 657. In that case the claimants, although suffering from irreversible physical disabilities rendering them immobile, were of sound mind and aware of their predicament. They wished to die at a time of their choosing but were not physically capable of ending their own lives unaided. They had a settled and considered wish that their death should be hastened by the requisite assistance. They sought judicial review on the basis that, under both common law and ECHR, those who provided them with assistance to bring about their death ought not to be subject to any criminal consequences. In particular, they applied for declarations that the law of murder, or of assisted suicide forbidden by section 2(1) of the Suicide Act 1961, was incompatible with the right to respect for private life under article 8 of ECHR. At para 116, Lord Neuberger said: There is a number of reasons which, when taken together, persuade me that it would be institutionally inappropriate at this juncture for a court to declare that section 2 is incompatible with article 8, as opposed to giving Parliament the opportunity to consider the position without a declaration. First, the question whether the provisions of section 2 should be modified raises a difficult, controversial and sensitive issue, with moral and religious dimensions, which undoubtedly justifies a relatively cautious approach from the courts. Secondly, this is not a case like In re G (Adoption: Unmarried Couple) where the incompatibility is simple to identify and simple to cure: whether, and if so how, to amend section 2 would require much anxious consideration from the legislature; this also suggests that the courts should, as it were, take matters relatively slowly. Thirdly, section 2 has, as mentioned above, been considered on a number of occasions in Parliament, and it is currently due to be debated in the House of Lords in the near future; so this is a case where the legislature is and has been actively considering the issue. Fourthly, less than 13 years ago, the House of Lords in R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800 gave Parliament to understand that a declaration of incompatibility in relation to section 2 would be inappropriate, a view reinforced by the conclusions reached by the Divisional Court and the Court of Appeal in this case: a declaration of incompatibility on this appeal would represent an unheralded volte face. Several obvious points of distinction between the situation encountered in the Nicklinson case and this appeal are immediately apparent. True it may be that this case, like Nicklinson, gives rise to a difficult, controversial and sensitive issue, with moral and religious dimensions, but I would not accept that, in this instance, the incompatibility is difficult to identify or that it is difficult to cure. To the contrary, denial of a womans right to autonomy, which must surely be an indispensable aspect of her right to respect for a private life, gives rise to a readily identifiable incompatibility in cases of fatal foetal abnormality, rape or incest. And, the remedy for that incompatibility is easy to find. A simple amendment to the 1861 and 1945 Acts, permitting termination of pregnancy in those cases would achieve that aim. The other obvious point of distinction is that, unlike the position of Parliament in the Nicklinson case, the Northern Ireland Assembly is not about to actively [consider] the issue. The fourth factor identified by Lord Neuberger in Nicklinson (that a declaration of incompatibility would be a volte face) does not arise in this instance. It is to be remembered that a declaration of incompatibility does no more than indicate to the appropriate legislative body that a particular statutory provision has been deemed to be inconsistent with citizens Convention rights. As was said in paras 343 and 344 of Nicklinson: 343. An essential element of the structure of the Human Rights Act 1998 is the call which Parliament has made on the courts to review the legislation which it passes in order to tell it whether the provisions contained in that legislation comply with the Convention. By responding to that call and sending the message to Parliament that a particular provision is incompatible with the Convention, the courts do not usurp the role of Parliament, much less offend the separation of powers. A declaration of incompatibility is merely an expression of the courts conclusion as to whether, as enacted, a particular item of legislation cannot be considered compatible with a Convention right. In other words, the courts say to Parliament, This particular piece of legislation is incompatible, now it is for you to decide what to do about it. And under the scheme of the Human Rights Act 1998 it is open to Parliament to decide to do nothing. 344. What the courts do in making a declaration of incompatibility is to remit the issue to Parliament for a political decision, informed by the courts view of the law. The remission of the issue to Parliament does not involve the courts making a moral choice which is properly within the province of the democratically elected legislature. In advancing the case that the interests of the unborn child should be balanced against the article 8 rights of the mother, the respondents relied heavily on the decision of ECtHR in the case of Vo v France (2004) 40 EHRR 12. In that case, because of negligence on the part of her doctor, the applicant suffered injury to her amniotic sac, which necessitated the termination of her pregnancy. The foetus was between 20 and 24 weeks at termination. The doctor was charged with causing unintentional injury but was acquitted on the basis that the foetus was not, at that stage, a human person. The Strasbourg court observed that article 2 (which guarantees the right to life) was silent as to when life began and on the issue of who came within its protection. The court had not previously considered whether an unborn child had article 2 rights. Such case law as there was indicated that, at least in the context of abortion, an unborn child did not have a right to life and was not a person within the meaning of article 2. It had not been ruled out, however, that, in certain circumstances, the Convention might be applicable paras 76 80. It was legally difficult, indeed inappropriate, to impose one exclusive answer to the question of when life began on all the contracting states of the Council of Europe. This came within the margin of appreciation enjoyed by the various states para 82. It is, of course, important to note that Vo was a case where there was no conflict between the rights of the mother and the interests of the foetus. The mothers complaint was that her doctor had wrongly made it necessary to terminate her pregnancy. There was no occasion for the court to consider what weight should be given to the position of the foetus in circumstances where the womans article 8 rights were being interfered with. The Department of Justice has drawn attention to the observations of the Grand Chamber in Vo to the effect that there was no consensus among European states as to when life begins and suggests that, in effect, this is what NIHRC invites this court to recognise. Mr McGleenan also argues that since the Strasbourg court has not moved to exclude prenatal life, this court should find that article 2 extends to protect the human rights of the most vulnerable. He claims that a finding that article 2 did not extend protections to prenatal life would go against the very grain of the Convention. I do not accept these arguments. In the first place, the Grand Chamber in Vo had the opportunity to say that article 2 protected the life of the unborn child and explicitly refrained from so holding. More fundamentally, however, if article 2 were held to apply to unborn life, no abortion could ever be legal. In the context of abortion the right enshrined in article 2 would be absolute. In my view, the proper construction to be placed on Vo is that contracting states enjoy a margin of appreciation in deciding when human life begins but that this does not afford protection to the foetus under article 2. As NIHRC has submitted, no case in Strasbourg has recognised an article 2 entitlement for a foetus. Indeed, such a finding would run directly counter to the consensus across the vast majority of contracting states as to the right to abortion in cases of rape, incest and fatal foetal abnormality. While the laws of those states vary in terms of gestational limits, all apart from Ireland, Liechtenstein, Malta, San Marino and Andorra are unanimous in permitting abortion in those circumstances. Domestic law does not recognise rights vested in the unborn child. The courts of this country have consistently stated that the foetus has no separate rights in UK law, see In re MB [1997] 2 FLR 426; and Attorney Generals Reference (No 3 of 1994) [1998] AC 245. This line of jurisprudence mirrors that in the Canadian Supreme court in Winnipeg Child and Family Services (Northwest Area) v G (1997) 3 BHRC 611. In A, B and C v Ireland, ECtHR portrayed the balancing exercise between the first and second applicants article 8 rights and the interests of society in para 230 of its judgment thus: the Court must examine whether the prohibition of abortion in Ireland for health and/or well being reasons struck a fair balance between, on the one hand, the first and second applicants right to respect for their private lives under article 8 and, on the other, profound moral values of the Irish people as to the nature of life and consequently as to the need to protect the life of the unborn. The first applicant had become pregnant unintentionally. She was unmarried, unemployed and already had had four young children. They had been taken into care because of As inability to cope with them. She had a history of depression during all of her pregnancies. She travelled to England for an abortion, believing that she would not be able to obtain one in Ireland. Her case on article 8 was, therefore, firmly rooted in the claim that her rights under the article had been unjustifiably interfered with. The second applicant also became pregnant unintentionally. She had been advised by two different doctors that there was a substantial risk of an ectopic pregnancy but was aware by the time that she decided to travel to England for an abortion that the pregnancy was not ectopic. She did not feel able to care for a child at this time in her life and the case was principally concerned with whether an abortion should be available on well being grounds. In the case of the third applicant, C, she had been treated for three years with chemotherapy for a rare form of cancer. She had been advised that it was not possible to predict the effect of pregnancy on her cancer and that if she did become pregnant it would be dangerous for the foetus if she were to have chemotherapy during the first trimester. Her cancer went into remission and she became pregnant unintentionally. She had been unaware of this when she underwent a series of tests for cancer which were contraindicated during pregnancy. She consulted her general medical practitioner and several medical consultants. She claimed that she did not receive sufficient information as to the impact of the pregnancy on her health and life and the consequences of her prior tests for cancer on the well being of the foetus. At para 233, the court dealt with the margin of appreciation available to the Irish state in defence of its position that abortion should not be available to the states citizens: There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish state in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under article 8 of the Convention. At para 234, the court made the conventional point that a margin of appreciation would be narrowed where there was a relevant consensus among contracting states as to the circumstances in which abortion should be available. Rejecting the governments submission to the contrary, at para 235, the court said that there was indeed a consensus among a substantial majority of the contracting states of the Council of Europe towards allowing abortion on broader grounds than that accorded under Irish law. The first and second applicants could have obtained an abortion on request (according to certain criteria including gestational limits) in some 30 such states. The first applicant could have obtained an abortion justified on health and well being grounds in approximately 40 contracting states and the second applicant could have obtained an abortion justified on well being grounds in some 35 contracting states. Despite this significant consensus, the court concluded that the margin of appreciation had not been decisively narrowed. It is of critical importance that one should focus precisely on why the court arrived at that (which would at first sight appear to be an) anomalous result. The essential reasoning of the court on this issue is given at para 237: Of central importance is the finding in the above cited Vo case that the question of when the right to life begins came within the states margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a states protection of the unborn necessarily translates into a margin of appreciation for that state as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most contracting parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor in the Courts examination of whether the impugned prohibition on abortion in Ireland for health and well being reasons struck a fair balance between the conflicting rights and interests, notwithstanding an evolutive Convention. interpretation of Two themes emerge from this passage. The first is that there is no consensus as to when life begins. The second is that the rights claimed on behalf of the foetus and those of the mother are interconnected. As to the first of these, as I have pointed out, full article 2 protection cannot be afforded the foetus otherwise no termination of pregnancy would be lawful. (Indeed, as will become clear, the ECtHR acknowledged this in para 238). The courts reference to article 2 is only explicable on the basis that some lesser form of protection for the interests of the unborn child can be recognised by an individual contracting state. The majority in A, B and C did not explain how that might work in practice. As to the interconnectedness of the interests of the mother and her unborn child, it is not made clear what, if any impact, this should have on the balancing exercise. The majority certainly found that there was an interference with the applicants rights, and with it came the obligation on the part of the state to justify that interference. What is not clear from the judgment is whether an adjustment to the way in which the interests of the mother and those of the community generally is required because the interests of the foetus and the mother are interconnected. The matter becomes even less clear, in my opinion, when one considers para 238 of the majoritys judgment: It is indeed the case that this margin of appreciation is not unlimited. The prohibition impugned by the first and second applicants must be compatible with a states Convention obligations and, given the Courts responsibility under article 19 of the Convention, the Court must supervise whether the interference constitutes a proportionate balancing of the competing interests involved. A prohibition of abortion to protect unborn life is not therefore automatically justified under the Convention on the basis of unqualified deference to the protection of pre natal life or on the basis that the expectant mothers right to respect for her private life is of a lesser stature. Nor is the regulation of abortion rights solely a matter for the contracting states, as the Government maintained relying on certain international declarations. However, and as explained above, the Court must decide on the compatibility with article 8 of the Convention of the Irish states prohibition of abortion on health and well being grounds on the basis of the above described fair balance test to which a broad margin of appreciation is applicable. This constitutes a reassertion of the need for a balancing of the competing interests. The passage does not explain how this is to be carried out, however, other than by referring again to the broad margin of appreciation, which, apparently, derives from the lack of consensus as to when life begins. Quite why a lack of consensus on that matter should prompt a broad margin of appreciation on the circumstances in which abortion should be permitted, and how it affects the balancing exercise in practice, remain unexplained. Some insight into the courts reasoning is to be gleaned from the first passage of para 239: From the lengthy, complex and sensitive debate in Ireland as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well being reasons but allows women, in the first and second applicants position who wish to have an abortion for those reasons, the option of lawfully travelling to another state to do so (Emphasis supplied) The background to the restriction of abortion in Ireland was that a referendum had been held in 1983, resulting in the adoption of a provision which became article 40.3.3 of the Irish Constitution which was in the following terms: The State acknowledges the right to life of the unborn and, with due regard to the equal right to life of the mother, guarantees in its laws to respect, and, as far as practicable, by its laws to defend and vindicate that right. In the referendum 53.67% of the electorate had voted, with 841,233 votes in favour of this amendment and 416,136 against. Although proposals in subsequent referenda which sought to restrict further the circumstances in which abortion might be available in Ireland were defeated, ECtHR in the A, B and C case plainly laid great store by the result of the 1983 poll. At para 126 of its judgment, for instance, it said that the applicants, in travelling abroad to obtain abortions, were conscious that they were going against the profound moral values of the majority of the Irish people. The government had submitted to the Strasbourg court that the protection accorded under Irish law to the right to life of the unborn was based on profound moral values deeply embedded in the fabric of society in Ireland and the legal position was defined through equally intense debate. At para 222 the court said of this argument: The Court recalls that, in the Open Door case [(1992) 15 EHRR 244], it found that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life which were reflected in the stance of the majority of the Irish people against abortion during the 1983 referendum Clearly, therefore, the Strasbourg court in A, B and C considered that it should continue to deal with the question of justification of the restrictions on abortion in Ireland on the basis that they reflected the profound moral values of a majority of the Irish population. Whether that was justified on the basis of a referendum held 28 years before in which only 53.67% of the population voted is at least questionable but, in any event, no such assumption may be made in respect of the population of Northern Ireland. For the reasons that I have given, the vote in 2016 in the Assembly cannot be taken as an indication that the majority of the elected representatives opposed reform. To the contrary, it is evident that a majority was prepared to contemplate an amendment of the current law. For that reason alone, A, B and C v Ireland cannot be regarded as a significant decision in the present case. Quite apart from that consideration, however, such evidence as is available about the current views of the Northern Ireland population points clearly away from the conclusion that a majority of that countrys population wishes to maintain the law on abortion in its present form. In 2016 the Northern Ireland Life and Times Survey (NILT Survey) asked the Northern Ireland public for their views on a range of issues relating to abortion and abortion law. 1,208 respondents took part in the survey. These were chosen as representative of the various social groups in Northern Ireland. 58% of those surveyed considered that where the foetus had a fatal abnormality and would not survive beyond birth, abortion should definitely be legal. 23% felt that abortion in those circumstances should probably be legal, while 6% thought that it should probably be illegal and 10% believed that it should definitely be illegal. 4% were undecided. The respondents to the survey were also asked for their views on whether abortion should be legal in cases where a woman had become pregnant as a result of rape or incest. 54% said that abortion in those circumstances should definitely be legal. 24% believed that it should probably be legal. 8% considered that it should probably be illegal and 11% were of the view that it should definitely be illegal. 4% were undecided. At para 141 of his judgment, Horner J said that little weight can be attached to opinion polls as they are dependent on the nature of the questions asked, the circumstances in which they were asked and the nature of the persons sampled. Weatherup LJ agreed with that view see para 145 of his judgment. Both Horner J and Weatherup LJ considered that the only reliable indicator of the true nature of public opinion would be a referendum and, as Weatherup LJ observed, this was unlikely to take place in Northern Ireland since referenda were generally reserved for constitutional issues para 145. It is unquestionably correct that one should be wary of treating opinion polls, however well conducted, as an infallible guide to the views of the people on any particular issue. That is not to say, however, that they have no usefulness in counteracting a claim as to what the public mood or opinion might be. I, like Horner J and Weatherup LJ, am not disposed to accept the results of the NILT survey as providing positive evidence of the preponderant view of the people of Northern Ireland on the question of when abortion should be available. But I am not prepared wholly to discount the NILT survey. At the least, it serves to cast substantial doubt on the claim made by the respondents that opposition to the change in the law is firmly embedded in the minds and attitudes of the people of Northern Ireland. I have concluded, therefore, that when the balancing exercise is conducted in this case, the scales fall firmly in favour of a breach of article 8. Under the current law, no account is taken of a womans right to autonomy. Severe criminal sanctions are applied to those who obtain an abortion in Northern Ireland save in the narrowly circumscribed circumstances permitted by the 1861 and 1945 Acts. These undoubtedly have a significant chilling effect both on women who wish to obtain an abortion and doctors who might assist them. Abortion in cases where there is a fatal foetal abnormality or the pregnancy is the result of rape or incest is available throughout the vast majority of countries in Europe. The counterweight which the ECtHR found to exist in the A, B and C case (the profound moral values embedded in the fabric of Irish society) is not present in this much more limited instance. I am satisfied, therefore that the maintenance of sections 58 and 59 of the 1861 Act and section 25 of the 1945 Act in their present form constitutes a breach of article 8 of ECHR and would make a declaration of incompatibility in respect of those provisions in cases involving fatal foetal abnormality or where pregnancy has resulted from rape or incest. International law and standards In the High Court and the Court of Appeal NIHRC relied on a number of international treaties and judgments, decisions and general statements of treaty bodies. Horner J dealt with these in a section of his judgment entitled International Law and Obligations between paras 59 and 71. Again, I find myself in agreement with the judge in his observations and I do not repeat them. The Court of Appeal did not deal with these arguments. Although the traditional and orthodox view is that courts do not apply unincorporated international treaties (JH Rayner (Mincing Lane) Ltd v Department of Trade and Industry [1990] 2 AC 418, per Lord Oliver at 499 and R (Miller) v Secretary of State for Exiting the European Union [2018] AC 61), as Lord Hughes stated in R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] 1 WLR 1449, para 137, such treaties may be relevant in a number of ways. NIHRC relies on the third of these, namely, where the court is applying ECHR via the HRA. As Lord Hughes observed, the ECtHR has accepted that, in appropriate cases, the Convention should be interpreted in the light of generally accepted international law in the same field. Similar propositions are to be found in Convention jurisprudence, most notably, Demir v Turkey (2008) 48 EHRR 1272, para 69; Neulinger v Switzerland (2010) 54 EHRR 31, para 131. The international conventions on which the Commission principally relied were the 1979 Convention on the Elimination of All Forms of Discrimination against Women (CEDAW), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment and Punishment (UNCAT), the Council of Europe (CoE) European Social Charter (ESC) and Resolution 1607 (2008) and the United Nations Convention on the Rights of the Child (UNCRC). The Commission has cited a number of authorities in which ECtHR has relied on conclusions of the CEDAW committee, the ICCPR committee, UNCAT, ESC and UNCRC. It is unnecessary for me to discuss those decisions, in light of the view that I have formed on the compatibility of the impugned legislative provisions. It is sufficient to record that the conclusion that the current law in Northern Ireland on abortion, as it affects fatal foetal abnormality and pregnancy as a result of rape and incest is incompatible with the Convention, is in harmony with many of those decisions. I express no view (because it is not necessary to do so) on the recent decisions of the United Nations Human Rights Committee in Mellet v Ireland (9 June 2016) and Whelan v Ireland (17 March 2017). The status of those decisions and their relevance in domestic proceedings such as these are far from straightforward subjects. I consider it prudent to defer consideration of those matters to a case where they are more directly in issue. Serious malformation of the foetus In para 64 et seq of his judgment, Horner J gave a number of reasons for refusing to hold that the unavailability in Northern Ireland of abortion in cases of serious malformation of a foetus was not incompatible with the Convention rights of women in that country. I agree with his reasoning and conclusions. The United Nations Convention on the Rights of Persons with Disabilities (UNCRPD) is one of the treaties specified as an EU treaty under the EC (Definition of Treaties) (UNCRPD) Order 2009. Section 6(2)(d) of the NIA forbids the Northern Ireland Assembly from making laws contrary to UNCRPD. That circumstance alone would not, of course, preclude a finding of incompatibility but, as Horner J pointed out, UNCRPD is based on the premise that if abortion is permissible, there should be no discrimination on the basis that the foetus, because of a defect, will result in a child being born with a physical or mental disability. That is a weighty factor to place in the balance, and one which is not present in cases of fatal foetal abnormality or rape and incest. This is particularly so in the light of UNCRPD Committees consistent criticism of any measure which provides for abortion in a way which distinguishes between the unborn on the basis of a physical or mental disability, relying on general principles and obligations (articles 1 4) and equality and non discrimination (article 5) see Horner J at para 65. As Horner J pointed out, many children born with disabilities, even grave disabilities, lead happy, fulfilled lives. In many instances they enrich and bring joy to their families and those who come into contact with them. Finally, the difficulty in devising a confident and reliable definition of serious malformation is a potent factor against the finding of incompatibility. For these and the other reasons given by the judge, I would refuse to make a declaration of incompatibility in the case of serious malformation of the foetus. LORD REED: (with whom Lord Lloyd Jones agrees) I respectfully agree with Lord Mance, for the reasons which he gives, that the Commission has no power to bring the present proceedings. The questions referred by the Attorney General for Northern Ireland should be answered in the negative and the appeal of the Commission should be dismissed. Given that conclusion, it would ordinarily follow that the court should express no view on whether the laws challenged by the Commission are or are not compatible with Convention rights. Since Parliament has not conferred on the Commission the power to bring proceedings challenging in the abstract the compatibility of legislation with Convention rights, it follows that it cannot have intended that the courts should determine that issue in proceedings of that nature. That conclusion is supported by the practical difficulties involved in attempting to carry out an abstract assessment of compatibility, unanchored to the facts of any particular case. Those members of the court who take a different view of the Commissions standing to bring these proceedings are however expressing their opinion on the question which it has placed before the court; and Lord Mance also considers it appropriate to do so for the reasons which he has explained. In those circumstances, it is as well that I should explain my own view. General observations It is difficult to envisage a more controversial issue than the proper limits of the law governing abortion. Diametrically opposed views, and every shade of opinion in between, are held with equal sincerity and conviction. Each side of the debate appeals to moral or religious values which are held with passionate intensity. In a democracy on the British model, the natural place for that debate to be resolved is in the legislature. The laws involvement in the question is strictly limited. Parliament has enacted the Human Rights Act 1998, which requires the courts to give effect to the Convention rights of individuals so far as that can be done compatibly with primary legislation, and, where primary legislation is incompatible with Convention rights, enables the courts to make a declaration to that effect. It has also enacted provisions in the devolution statutes under which legislation is outside the legislative competence of the devolved legislatures if it is incompatible with Convention rights, and the devolved administrations have no power to do any act which is incompatible with Convention rights: see, in relation to Northern Ireland, sections 6(2)(c) and 24(1)(a) of the Northern Ireland Act 1998. The Convention rights include the right not to be subjected to torture or to inhuman or degrading treatment, under article 3 of the European Convention on Human Rights and Fundamental Freedoms, and the right to respect for private and family life, under article 8. The article 3 right, like the right to life under article 2, and the prohibition on slavery under article 4, is expressed in absolute terms. The article 8 right, like the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, and the right to freedom to marry, under articles 9 to 12 respectively, is expressed in terms which allow for restrictions: it is subject to such interferences as are in accordance with the law and are necessary in a democratic society in the interests of national security, public safety or the economic well being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Like a number of other Convention rights, it thus allows scope for contention as to how it is to be balanced with other competing interests. The distinction between absolute and qualified rights is fundamental to the operation of the Convention. The absolute rights reflect unconditional moral imperatives which are owed to individuals simply as human beings: not to kill them other than in certain specific situations, not to torture them, not to subject them to inhuman or degrading treatment, and not to hold them in slavery. Although the content of these rights is nuanced, and they might even be said to be subject, in substance, to certain qualifications, they are not in principle amenable to balancing against other interests. There is no scope for their being restricted by democratic policy choices. They are not issues on which the Convention accepts that there is scope for democratic debate. The courts task is not to assess the proportionality of murder, torture or enslavement, but to secure that the right to be protected against such treatment is respected. There is therefore, in principle, no room for the European Court of Human Rights to defer to the judgement of national authorities on the question whether conduct is in breach of the substantive, negative, obligations imposed by an absolute provision such as article 3: the question falls outside the scope of the principle of subsidiarity. The threshold for finding a breach of article 3 is correspondingly high: the court has repeatedly emphasised that ill treatment has to attain a minimum level of severity before it can be regarded as falling within the ambit of the article. The same high threshold applies when article 3 is applied by national courts. Thus, under article 3, there is in principle no scope for constitutional deference to the judgement of democratic institutions, but it is only where the stringent requirements of the article are satisfied that the courts will adopt such an uncompromising approach. The qualified rights are essentially different. They belong to individuals as social beings, and are subject to such limitations as are justifiable in the society in which they live. The Conventions acceptance that they are subject to restrictions that are necessary in a democratic society not just in any democratic society, but specifically in the particular society in question opens the door to democratic policy choices. The Convention accepts that there is room for reasonable minds to differ as to the policy which should be adopted. The role of the court is to determine whether the restrictions imposed in a particular case are justifiable on one of the permissible grounds, generally by applying a test of proportionality. The European Court of Human Rights can thus recognise the legitimacy of decision making at the national level, when applying a qualified provision such as article 8, and acknowledge that a judgement as to the restrictions which can appropriately be imposed in a given society is in principle best made by the authorities of that country. National courts can equally respect the judgements made by the democratic institutions of their society, applying the principle of proportionality in a manner which reflects the constitutional principle of the separation of powers. It follows that the extent, in practice, to which elements of social and ethical policy are taken out of the hands of national democratic processes and determined by judges depends on how stringently absolute provisions of the Convention, such as article 3, are applied by both the European and national courts, and on how much respect they pay to the judgement of national democratic institutions when applying a proportionality analysis to restrictions of qualified rights such as that recognised in article 8. At the European level, increasing emphasis has been placed on the critical role of national legislatures in defining human rights protection within the scope of the qualified rights. Increasing attention has therefore been paid to the question whether a legislative measure has been based on considered debate, including consideration of the impact of the measure on the Convention right in question, and of the necessity of the interference: see, for example, Donald and Leach, Parliaments and the European Court of Human Rights (2016), and Spano, The European Court of Human Rights: Subsidiarity, Process Based Review and Rule of Law (2018) HRLR 1. Parliamentary processes are regarded as especially important where the question involves the assessment of moral or ethical issues falling squarely within the scope of democratic debate, or where the legislative policy adopted reflects a historical tradition of giving legal effect to a particular conception of social or moral life. At national level, it is equally important that the courts should respect the importance of political accountability for decisions on controversial questions of social and ethical policy. The Human Rights Act and the devolution statutes have altered the powers of the courts, but they have not altered the inherent limitations of court proceedings as a means of determining issues of social and ethical policy. Nor have they diminished the inappropriateness, and the dangers for the courts themselves, of highly contentious issues in social and ethical policy being determined by judges, who have neither any special insight into such questions nor any political accountability for their decisions. Abortion law and Convention rights In interpreting the Convention in cases concerned with abortion, the European Court of Human Rights has demonstrated its awareness of the sensitivity of this topic and the extent to which it is better suited to determination by national authorities. It has never interpreted the Convention as requiring contracting states to introduce laws permitting abortion, either generally or in relation to particular categories of pregnancy. In its most recent consideration of the issue, in the case of A, B and C v Ireland (2010) 53 EHRR 13, the Grand Chamber rejected complaints by two Irish women that the prohibition on abortion in Ireland (a more restrictive prohibition than in Northern Ireland), by effectively compelling them to travel elsewhere if they wished to terminate their pregnancy, with similar consequences to those described in the present case, had violated their rights under articles 3 and 8 (the third applicant raised somewhat different issues relating to her specific situation). The court accepted that travelling abroad for an abortion was both psychologically and physically arduous for each of the applicants, and that it was also financially burdensome. Nevertheless, it pointed out that ill treatment must attain a minimum level of severity if it was to fall within the scope of article 3, and concluded that the facts alleged did not disclose a level of severity falling within the scope of the article. The complaint under article 3 was found to be manifestly ill founded. In relation to article 8, it was argued on behalf of the first and second applicants, as in the present case, that it had not been shown that the restrictions were effective in achieving the aim pursued: the abortion rate for women in Ireland was similar to states where abortion was legal since Irish women chose to travel abroad for abortions in any event. Even if the restrictions were effective, the first and second applicants questioned how the Irish state could maintain the legitimacy of their aim given the opposite moral viewpoint espoused by human rights bodies worldwide. They also suggested that the current prohibition on abortion in Ireland no longer reflected the views of the Irish people, arguing that there was evidence of greater support for broader access to legal abortion. It was pointed out that the financial burden of travel impacted particularly on poor women and their families. It was also emphasised that women experienced the stigma and psychological burden of doing something abroad which was a serious criminal offence in their own country. The extent of the prohibition on abortion in Ireland also stood in stark contrast to the more flexible regimes for which there was a clear European and international consensus. Reliance was placed, in that regard, on a range of international materials, including material produced by CEDAW. There was in addition said to be a lack of assistance by doctors, due to the chilling effect of a lack of clear legal procedures combined with the risk of serious criminal and professional sanctions. In response, the European Court of Human Rights referred to its previous case law finding that the protection afforded under Irish law to the right to life of the unborn was based on profound moral values concerning the nature of life. It referred to its finding in Vo v France (2004) 40 EHRR 12 that it was neither desirable nor possible to answer the question of whether the unborn was a person for the purposes of article 2 of the Convention, so that it would be equally legitimate for a state to choose to consider the unborn to be such a person and to aim to protect that life. In relation to the balancing exercise required by article 8, the court observed that the state authorities are, in principle, in a better position than the international judge to give an opinion, not only on the exact content of the requirements of morals in their country, but also on the necessity of a restriction intended to meet them (para 232). It continued: There can be no doubt as to the acute sensitivity of the moral and ethical issues raised by the question of abortion or as to the importance of the public interest at stake. A broad margin of appreciation is, therefore, in principle to be accorded to the Irish state in determining the question whether a fair balance was struck between the protection of that public interest, notably the protection accorded under Irish law to the right to life of the unborn, and the conflicting rights of the first and second applicants to respect for their private lives under article 8 of the Convention. (para 233) This broad margin of appreciation was not decisively narrowed by the consensus among other contracting states towards allowing abortion on broader grounds than under Irish law (a consensus which, the court said, made it unnecessary to look further to international trends and views): Of central importance is the finding in the above cited Vo case, referred to above, that the question of when the right to life begins came within the states margin of appreciation because there was no European consensus on the scientific and legal definition of the beginning of life, so that it was impossible to answer the question whether the unborn was a person to be protected for the purposes of article 2. Since the rights claimed on behalf of the foetus and those of the mother are inextricably interconnected, the margin of appreciation accorded to a states protection of the unborn necessarily translates into a margin of appreciation for that state as to how it balances the conflicting rights of the mother. It follows that, even if it appears from the national laws referred to that most contracting parties may in their legislation have resolved those conflicting rights and interests in favour of greater legal access to abortion, this consensus cannot be a decisive factor. (para 237) The court noted that the states margin of appreciation was not unlimited. It emphasised, however, that the law in Ireland was the product of considered democratic debate: From the lengthy, complex and sensitive debate in Ireland as regards the content of its abortion laws, a choice has emerged. Irish law prohibits abortion in Ireland for health and well being reasons but allows women, in the first and second applicants position who wish to have an abortion for those reasons, the option of lawfully travelling to another state to do so. (para 239) The court also placed some emphasis on the fact that the prohibition of abortion in Ireland was accompanied by measures designed to assist certain categories of women in obtaining access to abortion facilities elsewhere: On the one hand, the Thirteenth and Fourteenth Amendments to the Constitution removed any legal impediment to adult women travelling abroad for an abortion and to obtaining information in Ireland in that respect. Legislative measures were then adopted to ensure the provision of information and counselling about, inter alia, the options available including abortions services abroad, and to ensure any necessary medical treatment before, and more particularly after, an abortion. The importance of the role of doctors in providing information on all options available, including abortion abroad, and their obligation to provide all appropriate medical care, notably post abortion, is emphasised in CPA [Crisis Pregnancy Agency] work and documents and in professional medical guidelines. (ibid) In those circumstances, although the court accepted that the process of travelling abroad for an abortion was psychologically and physically arduous, especially for women in impoverished circumstances, and also accepted that it might be the case that the prohibition on abortion was to a large extent ineffective in protecting the unborn, in the sense that a substantial number of women took the option of travelling abroad for an abortion, nevertheless the first and second applicants complaints under article 8 were rejected. Having regard to the right to lawfully travel abroad for an abortion with access to appropriate information and medical care in Ireland, the court did not consider that the prohibition in Ireland of abortion for health and well being reasons, based as it was on the profound moral views of the Irish people as to the nature of life and as to the consequent protection to be accorded to the right to life of the unborn, exceeded the margin of appreciation accorded to the Irish state. The prohibition consequently struck a fair balance between the womens right to respect for their private lives and the rights invoked on behalf of the unborn. The third applicants complaint under article 8, which succeeded, concerned a different issue (the absence of a procedure by which she could have established whether she qualified for a lawful abortion in Ireland on grounds of the risk to her life of her pregnancy), and is of no relevance to the present case. The present case In the light of the European courts relatively recent judgment in A, B and C, it appears to me to be impossible to hold that the legislation in force in Northern Ireland is incompatible with article 3. In that regard, I again agree with the reasoning of Lord Mance. As he states, even when one takes into account that the present case focuses on pregnancies where the foetus is abnormal or has been conceived as the result of a sexual offence, it is apparent that the great majority of Northern Irish women wishing to terminate their pregnancy in such circumstances are able to do so by travelling elsewhere. The consequences are similar to those with which A, B and C was concerned, and do not meet the threshold for a violation of article 3. Some individual cases have been put forward in which it is said that the women in question were unable to travel abroad as a result of the failure of health professionals to provide them with appropriate assistance and advice, and endured harrowing experiences as a consequence. It may be that such cases, if established in individual applications, would be found to involve a violation of article 3. But, disturbing though those cases are, the possibility that there might be a violation of article 3 in an individual case cannot warrant a declaration that the legislation, as such, is incompatible with article 3. If a breach of article 3 were established in an individual case, the court might grant declaratory relief, but the terms of the relief would reflect the circumstances which had led to the violation. Whether it was appropriate to grant a declaration that the legislation itself was incompatible, because it could not be given effect in a manner which was compliant with article 3, would depend on a close examination of the facts of the case, and of the role which the legislation had played in bringing about the violation. In relation to article 8, I agree with Lord Mance that no declaration of incompatibility should be made, but I have reached that conclusion for somewhat different reasons. I would emphasise at the outset a point which this court has made on several occasions, namely that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights: Christian Institute v Lord Advocate [2017] HRLR 19, para 88. As in relation to article 3, the judgment in A, B and C appears to me to provide valuable guidance. The practical effect of the law in Northern Ireland, as in Ireland, is to require women to travel elsewhere if they wish to terminate their pregnancy. The general prohibition on termination for reasons other than a danger to life, or a danger of serious injury to health, is accompanied by guidance to doctors and other professionals on the information and advice which should be provided to women who wish to obtain a termination (Department of Health, Social Services and Public Safety, Guidance for Health and Social Care Professionals on Termination of Pregnancy in Northern Ireland, March 2016). That guidance advises health professionals that they can provide women who cannot lawfully obtain an abortion in Northern Ireland with information about abortion services lawfully available in other jurisdictions, and about their freedom to travel there. It also advises health professionals about their responsibility to provide aftercare, counselling and other support services to women who have had a termination of pregnancy carried out outside Northern Ireland. In those circumstances, I am not persuaded that the issues arising under article 8 in relation to the law in Northern Ireland are in general materially different from those considered in A, B and C, even if one confines ones attention to women undergoing a pregnancy where the foetus is abnormal or has been conceived as the result of a sexual offence. They are free to travel to England or Scotland, where they can have their pregnancy terminated free of charge in an NHS hospital, provided that the termination is lawful under the law in force there. They should be able to obtain advice about termination from health professionals in Northern Ireland, and they should receive whatever care they may require in Northern Ireland after the termination has been carried out. Most of the arguments relied on by those who would hold the law in Northern Ireland to be incompatible with article 8 are the same as those rejected by the European court in A, B and C. Of course, to the extent that the law places restrictions on the availability of abortion, it treats the moral value of protecting the life of the unborn as outweighing the womans personal autonomy and freedom to control her own life. That is true of any restriction on abortion. Of course, the law applies even to those who do not share the ethical perspective which underpins it. That is the nature of law: it applies to everyone, whether they agree with it or not. It may be that the law is largely ineffective to protect the unborn, because the great majority of women who wish to have abortions do so anyway, travelling to England for that purpose. Nevertheless, a society cannot be bound under the Convention to permit behaviour which it considers morally repugnant, merely because a prohibition can be obviated. On the contrary, the fact that a prohibition imposed for moral reasons can be obviated may tend to support its proportionality, since it imposes less of a restriction in reality on those who do not share the moral values which underpin it. As in relation to article 3, the court has been provided with accounts of individual cases which, if they were established in individual applications, would almost certainly demonstrate violations of article 8, due principally, it would appear, to shortcomings in the provision of advice and support by health care professionals. But the possibility that there might be violations of article 8 in some individual cases does not warrant a bald declaration that the legislation, as such, is incompatible with article 8. The principal difference between this case and A, B and C is that it raises the question whether it is proportionate to treat the moral value of protecting the life of the unborn as outweighing the womans personal autonomy in situations where the foetus is abnormal or was conceived as the result of a sexual offence: an issue which arises in a particularly acute form in cases where the foetus suffers from a fatal abnormality. There is no doubt that such situations can result in emotional anguish for the women involved, and that there can be circumstances in which, if the woman is unable to obtain a termination of the pregnancy, its continuation may pose a serious risk to her health and well being. Nevertheless, the difficulty in the form of the present appeal is that it does not invite the court to investigate the facts of individual cases where Northern Irish women undergoing particular categories of pregnancy have been unable to obtain an abortion, and to decide whether they justify the conclusion that the legislation itself is incompatible with article 8. Instead, the court is invited, as an abstract exercise, to define categories of pregnancy in respect of which a termination must be legally available if the legislation is to be compatible with article 8. That approach requires the court to address a number of difficult issues: for example, whether to treat some categories of pregnancy differently from other pregnancies at all; whether, if so, to draw the line at foetuses with fatal abnormalities which will prevent their surviving until birth or for more than a short time after birth, or to include foetuses with serious but non fatal abnormalities; whether to differentiate between healthy foetuses conceived as the result of sexual offences and other healthy foetuses; and whether, if so, to draw the line at foetuses conceived as the result of offences which were non consensual, or to include those conceived as the result of consensual offences. These are highly sensitive and contentious questions of moral judgement, on which views will vary from person to person, and from judge to judge, as is illustrated by the different views expressed in the present case. They are pre eminently matters to be settled by democratically elected and accountable institutions, albeit, in the case of the devolved institutions, within limits which are set by the Convention rights as given effect in our domestic law. A process of democratic consideration of these issues has begun in Northern Ireland and has not yet been completed, as a result of the breakdown of devolved government in January 2017. It is important that a review of these issues should be completed. It appears from the accounts of individual cases put forward in these proceedings that there is every reason to fear that violations of the Convention rights will occur, if the arrangements in place in Northern Ireland remain as they are. In those circumstances, these issues need to be discussed and determined in a democratic forum, which is where they pre eminently belong. In the meantime, the courts will have to deal with any individual cases which may come before them. But, in the present proceedings, there is no need for this court to pre empt democratic debate on changes to the law or to the arrangements for the provision of health services, or, by determining the requirements of the Convention in advance of that debate, to take the matter out of the hands of democratically accountable institutions. LADY BLACK: The Commissions competence to seek the relief claimed I agree with Lord Mance that, for the reasons he gives, the Commission has no power to bring the present proceedings. From that it would follow that the questions referred by the Attorney General for Northern Ireland should be answered in the negative and the Commissions appeal dismissed. Despite this conclusion, I feel I should express my view as to the substance of the Commissions appeal, as other members of the court have done. Article 3 I agree with Lord Mances view that, for the reasons that he sets out in paras 94 to 103 of his judgment, the Commissions argument that the legislation in Northern Ireland is incompatible with article 3 of the ECHR must be rejected. Article 8: Generally I also agree with what Lord Mance says about article 8 in the passage of his judgment commencing at para 104 and concluding at para 121, but I do not entirely share his view in relation to the compatibility of the legislation with article 8. He considers the law incompatible in cases where the pregnancy has resulted from rape or certain other sexual crimes, and in cases of fatal foetal abnormality, that is to say where the foetus cannot survive at all after birth or will die very shortly after delivery. I would only wish to express the view that the law is incompatible in cases of fatal foetal abnormality. Article 8: Cases other than fatal foetal abnormality As to cases which do not concern fatal foetal abnormality, I find myself in agreement with Lord Reeds reasoning in relation to article 8. He has pointed out the similarity between the arguments advanced unsuccessfully in A, B and C v Ireland, and those relied upon in the present case. Although it is important to note that A, B and C did not concern the particular categories of pregnancy with which we are concerned, it persuades me that, in relation to pregnancies where the foetus has a non fatal abnormality or has been conceived as the result of a sexual offence, I must bring myself to accept two related propositions. First, notwithstanding the widespread consensus (in Europe and internationally) in favour of more flexible abortion regimes, it must be accepted that there may be room for different moral viewpoints. Secondly, it must be accepted that the balance between the protection of the life of the unborn child, the interests of society, and the rights of the pregnant woman may be struck in different ways. In these circumstances, and given the difficulty identified by Lord Reed as to where to draw the line in accommodating the categories of case with which we have been concerned, as well as the current lack of certainty about what moral views are presently held by the population of Northern Ireland, I do not feel that it would be appropriate at this stage to express a positive conclusion that the legislation itself is incompatible with article 8. In so saying, I also have in mind that, as Lord Mance says at para 92 of his judgment, other factors can play a part, in addition to the legislation itself, in producing adverse treatment of which complaint may be made. He points out that where one is able to examine the specific circumstances that have arisen, the cause of the impugned treatment may, in some cases, prove to have been not the applicable legislation itself, but rather the way that it was (mis)understood or (mal)administered. That is one of the reasons why an abstract challenge to legislation presents such a difficulty. In such circumstances, alleviating the hardship of women in the categories of case that we have been asked to consider, may involve a combination of amending the law and taking practical steps to ensure that proper information and support is available to the women concerned, countering what Lord Kerr has described (para 176) as the significant chilling effect on women who wish to obtain an abortion and doctors who might assist them. Given the diverse circumstances covered by the categories upon which we have been asked to focus (as to which, see for example Lord Mances discussion of the position in relation to sexual crimes, commencing at para 127 of his judgment), the solutions require democratic debate. However, Lord Reed has made observations about the worrying situation disclosed in the accounts placed before us, and about the need for the review that had been begun in Northern Ireland to be resumed and completed. I share his view about the importance of this and about the fact that there is every reason to fear that violations of the Convention rights of women in Northern Ireland will occur if arrangements there remain as they are. Article 8: Fatal foetal abnormality In relation to foetuses with fatal abnormalities, I would go further than Lord Reed does. I do not consider the present law in Northern Ireland to be compatible with article 8 of the ECHR in relation to this category of case. Where the unborn child cannot survive, in contrast to the other categories of pregnancy with which we are concerned, there is no life outside the womb to protect. In those circumstances, even if allowance is made for the intrinsic value of the life of the foetus, the moral and ethical views of society cannot, it seems to me, be sufficient to outweigh the intrusion upon the autonomy of the pregnant woman, and her suffering, if she is obliged to carry to term a pregnancy which she does not wish to continue. Furthermore, as Lady Hale points out, and as can be seen from the experiences of some of those whose circumstances were placed before the court, a problem such as this is often diagnosed comparatively late in the pregnancy. This is likely to make the process of termination more demanding for the woman than it would be at an earlier stage in the pregnancy, and to compound the problems that exist for any woman who has to travel abroad for the procedure, including by significantly restricting the time available for making arrangements to have the termination carried out in Great Britain so as to avoid it having to be carried out at an advanced stage of the pregnancy.

Ss. 58 and 59 of the Offences Against the Person Act 1861 (an Act of the UK Parliament) (the 1861 Act) and s.25(1) of the Criminal Justice Act (NI) 1945 (an Act of the Northern Ireland legislature) (the 1945 Act) criminalise abortion in Northern Ireland. It is not however a crime to receive or supply an abortion where it is done in good faith for the purpose of preserving the life of the mother. Further it is not a crime to receive or supply an abortion where the continuance of the pregnancy will make the woman a physical or mental wreck the Bourne exception following R v Bourne [1939] 1 KB 687. The Northern Ireland Human Rights Commission (NIHRC) challenges the compatibility of the law of Northern Ireland with Art 3 (the prohibition of torture and of inhuman or degrading treatment), Art 8 (the right of everyone to respect for their private and family life) and Art 14 (the prohibition of discrimination) of the European Convention on Human Rights (ECHR) insofar as that law prohibits abortion in cases of (a) serious malformation of the foetus, (b) pregnancy as a result of rape, and/or (c) pregnancy as a result of incest. NIHRC seeks declarations to that effect under s.6 and s.4 of the Human Rights Act 1998 (HRA 1998). These proceedings are brought in the name of NIHRC, rather than the name of particular victims. Examples of particular individuals however were relied on by NIHRC during the proceedings. In the High Court Horner J held that NIHRC had standing to bring these proceedings in its own name. Further Horner J held that sections 58 and 59 of the 1861 Act were incompatible with Art 8 insofar as they criminalise abortion in cases of (a) fatal foetal abnormality, (b) rape up to the date when the foetus is capable of being born alive and (c) incest up to the date when the foetus is capable of being born alive. He made a declaration of incompatibility to that effect under s.4 HRA 1998. He did not consider that the law was incompatible with Art 3. The Northern Ireland Court of Appeal (NICA) held that NIHRC had standing to bring these proceedings. However, in three differently reasoned judgments it concluded that there was no incompatibility with any of the articles of the ECHR. NIHRC appeals the decision of NICA. NICA has also referred a reference from the Attorney General for Northern Ireland on devolution issues under para 33 of sch 10 to the Northern Ireland Act 1998 (NIA 1998). The reference relates to whether NIHRC has standing to bring these proceedings, specifically, whether NIHRC has the power to institute human rights proceedings or to seek a declaration of incompatibility other than in relation to an identified unlawful act. A majority of the court dismisses the appeal. A majority (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that NIHRC does not have standing to bring these proceedings. As such, the court does not have jurisdiction to make a declaration of incompatibility in this case. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) considers that NIHRC does have standing to bring these proceedings. A majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) does however consider that the current law in Northern Ireland is disproportionate and incompatible with Art 8 ECHR insofar as that law prohibits abortion in cases of (a) fatal foetal abnormality, (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. Lady Black joins that majority on (a) but not on (b) or (c). A minority of the court (Lord Reed, Lady Black on (b) and (c) and Lord Lloyd Jones) considers that it is not possible to conclude in the abstract, in proceedings of the present nature (as distinct from individual applications), that the current law is disproportionate or incompatible with Art 8. A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) concludes that the current law, in the abstract, is not incompatible with Art 3 ECHR. A minority of the court (Lord Kerr and Lord Wilson) disagrees and considers that it is. Lady Hale expresses sympathy with the view expressed by Lord Kerr but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8. Standing Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that NIHRC does not have standing to bring these proceedings. They were not instituted by identifying any unlawful act or any potential victim of it [73]. NIHRC relies on s.69(5)(b) of the NIA 1998 for its power to institute these proceedings. These proceedings constitute human rights proceedings under s.71(2C)(a)(ii) and are therefore subject to the restrictions in s.71(2B) [54]. Under s.71(2B) and (2C), where NIHRC is instituting human rights proceedings, it need not be a victim, but there must be an actual or potential victim of an unlawful act to which the proceedings relate [54 and 56]. S.71(2C)(b) states that an expression used in s.71(2B) has the same meaning as the same expression used in s.7 HRA 1998. S.7 HRA 1998 refers to s.6(1) for the concept of unlawful act. It does not apply to an authoritys act which was (a) compelled by a provision of primary legislation or was (b) to give effect to or enforce one or more provisions of or made under primary legislation which cannot be read or given effect in a way which is compatible with ECHR rights. Further, under s.6(6) HRA 1998, an act does not include a failure to introduce or lay before Parliament a proposal for legislation or make any primary legislation [57]. It follows that NIHRCs powers under ss.69 and 71 NIA 1998 do not include either instituting or intervening in proceedings where the only complaint is that primary legislation, such as the 1861 Act, is incompatible with the ECHR because such proceedings would not involve any unlawful act within the meaning of ss.6 and 7 HRA 1998 and consequently s.71 NIA 1998 [58]. It is no surprise that Parliament did not provide for NIHRC to have capacity to pursue what would amount to unconstrained actio popularis regarding the interpretation or compatibility of primary legislation with Convention rights [61]. The 1945 Act, as an act of a devolved legislature, is not primary legislation. It might have been open to NIHRC to claim that the failure of the Northern Ireland Assembly to repeal or amend s.25 constituted an unlawful act within the meaning of ss.6 and 7 HRA 1998. However, NIHRC, pursuant to s.71(2B), would still have to demonstrate that there is or would be one or more victims of the unlawful act. That restriction is not satisfied by a general assertion that the failure to abrogate or amend s.25 is likely to give rise to victims. There must be a specific and identifiable victim who is or would be the victim of an unlawful act [72]. Even if NIHRC could establish standing regarding the 1945 Act it would have little practical effect given the ongoing effect of the 1861 Act [72]. A minority of the court (Lady Hale, Lord Kerr and Lord Wilson) concludes that NIHRC does have standing to bring these proceedings. Lady Hale and Lord Kerr (with whom Lord Wilson agrees) hold that there are two separate species of challenge under the HRA 1998. One is for victims to bring proceedings in respect of an unlawful act of a public authority, or to rely on such an unlawful act in other proceedings, pursuant to s.7(1). The other is to challenge the compatibility of legislation under sections 3 and 4 irrespective of whether there has been any unlawful act by a public authority. NIHRC has standing to bring such proceedings by virtue of s.69(5)(b) [17 and 183 184]. In Lady Hales view section 71(2B) and (2C) deal only with proceedings brought by NIHRC or interventions by NIHRC in proceedings brought by others in respect of claims that a public authority has acted or proposes to act unlawfully. But it does not apply to or limit the general power of the NIHRC to challenge the compatibility of legislation under sections 3 and 4 of HRA 1998. The unlawful act means the unlawful act alleged in the proceedings so does not apply where no such unlawful act is alleged [18]. In Lord Kerrs view the only restriction on NIHRCs power to bring proceedings under s.69(5)(b) NIA 1998 is that the proceedings must involve law or practice relating to human rights [184]. Under s.71(2B)(c) the NIHRC may act only if there is or would be one or more victims of the unlawful act. Would be victims indicates an intention that NIHRC should be able to act pre emptively [195]. The majority decision departs in his view from well established authority that an interpretation of a statute which gives effect to the ascertainable will of Parliament should be preferred to a literal construction which will frustrate the legislations true purpose [202 213]. S.71(2B)(c) can reasonably be interpreted to mean that NIHRC may act where it is clear that there have been and will be victims of the implementation of the provisions of the 1861 and 1945 Acts, which is satisfied in this case [195 and 208]. If NIHRC is unable to bring proceedings to protect the rights of women in the three situations in this case, they will be deprived of an effective remedy under Art 13 ECHR [199]. Article 8 The courts decision on standing means that there is no possibility of making a declaration of incompatibility under s.4 HRA 1998. However, a majority of the court (Lady Hale, Lord Mance, Lord Kerr and Lord Wilson) considers that the current law in Northern Ireland on abortion is disproportionate and incompatible with Art 8 insofar as it prohibits abortion in cases of (a) fatal (as distinct from serious) foetal abnormality (b) pregnancy as a result of rape and (c) pregnancy as a result of incest. If an individual victim did return to court in relation to the present law, a formal declaration of incompatibility would in all likelihood be made. Lady Hale agrees with the reasons provided by Lord Mance and Lord Kerr and writes separately only on a few points. Lady Black joins the majority in relation to (a) but not in relation to (b) and (c). The majority on this issue starts from the position that the current law is an interference with the right of pregnant women and girls to respect for their private lives, guaranteed by Art 8(1). The question is whether the Northern Ireland abortion law is justified under Art 8(2) [9, 104, 263 and 265]. The majority concludes that it is not. Lord Mance and Lord Kerr (with whom Lord Wilson agrees) hold that the general clarity of the existing law on abortion was not the focus of the present appeal. Lord Mance holds that it is clear that all the categories in issue are prohibited under the 1861 and 1945 Acts [81, 105 and 269]. Lady Hale considers that it is no more uncertain than other areas of law which rely upon the application of particular concepts to particular facts [20]. All of the majority accept that the current law pursues a legitimate aim: the moral interest in protecting the life, health and welfare of the unborn child [21, 105 and 278]. Lady Hale highlights that the community also has an interest in protecting the life, health and welfare of the pregnant woman [21]. It is accepted that the unborn are not right holders under Art 2 ECHR and do not have a right to life in domestic law or in Northern Ireland [21, 24, 94 and 305 306]. The law as it currently stands already permits abortion to protect not only the life of the pregnant woman but also her mental health from serious long term injury [24 and 106 108]. The majority refer to the opinion polls produced by NIHRC demonstrating strong public support for changes in the law [24, 110 and 322]. Lord Mance accepts that views elicited by opinion polls cannot prevail over the decision to date by the Northern Ireland Assembly which is to maintain the existing policy and law [111]. However, Lady Hale and Lord Kerr (with whom Lord Wilson agrees) state that this evidence cannot be lightly dismissed when the argument is that profound moral views of the public are sufficient to outweigh the grave interference on the rights of pregnant women and a change in the law [24 and 325]. All of the majority however agree that the Working Group established by the Northern Irish Assembly demonstrates that the Assembly is not necessarily opposed to amending the law in the future but that any such solution has been precluded by the cessation of the Assemblys activities since January 2017 [112 and 228 229]. The majority holds that the banning of abortion in all the categories at issue is rationally connected to the legitimate aim [113 and 279]. The real issue on this appeal is whether the interference with womens Art 8 rights is necessary in a democratic society in that it strikes a fair balance between the rights of the pregnant woman and the interests of the foetus by maintaining the 1861 and 1925 Acts [21, 117 and 287]. The majority all refer to the institutional role of the UKSC in relation to the legislature. A distinction is drawn between the margin of appreciation applied by Strasbourg and considerations of institutional competence required in a domestic context [37 28, 115 and 289 295]. Lady Hale remarks that this is not a matter on which the domestic legislature enjoys a unique competence. Lady Hale, Lord Mance and Lord Kerr all highlight that Parliament, through s.4 HRA 1998, has expressly given the high courts power to rule on compatibility of legislation with the ECHR [39 and 292]. The majority on this issue also distinguishes the present case from R (Nicklinson) [2014] UKSC 38 in reaching a decision that it is institutionally appropriate for the Supreme Court to consider the compatibility of the existing law on abortion with the Convention rights. The Northern Irish Assembly is not about to actively consider the issue of abortion there is no assurance as to when it will resume its activity [40, 117 and 299]. There is no question of a balance being struck between the interests of two different living persons as in Nicklinson. The unborn foetus is not in law a person, although its potential must be respected [119]. Nicklinson was also decided against a background where the attitude maintained by the UK Parliament reflected a similar attitude across almost the whole of Europe. Northern Ireland, in contrast, is almost alone in the strictness of its current law. The close ties between the different parts and peoples of the UK make it appropriate to examine the justification for differences in this area with care [120]. Lord Kerr also distinguishes the present case from Nicklinson on the basis that the present incompatibility is not difficult to identify or cure. A simple amendment to the 1861 and 1945 Acts permitting termination of pregnancy in the three situations would achieve that aim [298]. Fatal foetal abnormality: the majority and Lady Black conclude that there is no community interest in obliging the woman to carry a pregnancy to term where the foetus suffers from a fatal abnormality [28, 133, 326, 368 and 371]. Lord Mance remarks that the present law treats the pregnant woman as a vehicle and fails to attach any weight to her personal autonomy [125]. The present law also fails to achieve its objective in the case of those who may choose to travel for an abortion, merely imposing on them harrowing stress and inconvenience as well as expense, while it imposes severe and sometimes life time suffering on the most vulnerable who, because of lack of information, or support are forced to carry their pregnancy to term [27, 28 and 126]. Serious foetal abnormality: By contrast, it is not possible to impugn as disproportionate and incompatible with Art 8 legislation that prohibits abortion of a foetus diagnosed as likely to be seriously disabled. A disabled child should be treated as having equal worth in human terms as a non disabled child [31, 133 and 331]. Rape: the majority considers that the current law is disproportionate in cases of rape and that the rights of the pregnant woman should prevail over the community interest in the continuance of the pregnancy [27, 127 and 326]. Lord Mance mentions that NIHRC made it clear that its submissions on rape included offences against children under the age of 13 who could not give consent in law but that it had not focused on sexual offences (not described as rape) committed against girls aged 13 or more but under the age of 16 [44]. Lady Hale, however, considers that for the purposes of this case, it is unnecessary to distinguish between offences where the child is under 13 and offences where the child is under 16 where no offence is committed if the perpetrator reasonably believed she was over 16. It is presumed under the law of Northern Ireland that children under 16 are incapable of giving consent to sexual touching, including penetration of the vagina by a penis, irrespective of the perpetrators belief and there is no reason to exclude such pregnancies from this case [25]. Lord Mance considers that causing a woman to become pregnant and bear a child against her will is an invasion of the fundamental right to bodily integrity. Neither Lord Mance nor Lady Hale consider the possibility of travel for an abortion as a justification for the law but rather a factor demonstrating its disproportionality [27 and 127]. Incest: A blanket prohibition of abortion in cases of incest is not proportionate [27, 132 and 326]. Lord Mance (with whom Lady Hale agrees) points to the fact that the most typical cases of incest involve abusive relationships with young or younger female relatives. The agony of having to carry a child to birth and have a potential responsibility and lifelong relationship with the child thereafter against the mothers will cannot be justified [27 and 132]. Lord Reed (with whom Lord Lloyd Jones and Lady Black (on pregnancy resulting from rape and incest) agree) would not make a declaration of incompatibility under Art 8. They are not convinced that the three situations are, as abstract categories, materially different from those explored in the case of A, B and C v Ireland (2011) 53 EHRR 13. Women are free to travel to obtain abortions on the NHS in England and Scotland. They should be provided with advice about termination, by medical professionals in Northern Ireland, and should receive whatever care they may require there after the termination has been carried out [357 and 369]. The court has been provided with information about individual cases which, if established in individual applications, would almost certainly demonstrate violations of Art 8, due principally to shortcomings in the provision of medical advice and support. However, this does not warrant a bald declaration that the legislation as such is inherently incompatible with Art 8 [359]. The difficulty with the form of the present appeal is that it does not enable the court to examine the facts of individual cases [361 and 369]. Defining categories of pregnancy in which abortions should be permitted involves highly sensitive and contentious questions of moral judgment [362]. They are pre eminently matters to be settled by democratically elected and accountable institutions [362 and 369]. That democratic consideration has not been completed in Northern Ireland as a result in the breakdown of devolved government in January 2017. However, there is every reason to fear that violations of the ECHR will occur if the arrangements in place in Northern Ireland remain as they are [363 and 370]. Article 3 A majority of the court (Lord Mance, Lord Reed, Lady Black and Lord Lloyd Jones) would not have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR [34 and 100]. Art 3 is an absolute right. The treatment complained of has to reach a minimum level of severity in order to contravene it [95]. The majority all agree that there will be some women in the three situations in this case, whose suffering on being denied an abortion in Northern Ireland will reach the threshold of severity required to label the treatment inhuman or degrading. But Lord Mance notes that it cannot be said that legally significant number of women denied an abortion in such circumstances will suffer so severely that her Art 3 rights have been violated [82]. Whether there has been any violation also depends on the facts of the individual case [34, 95, 103, 354 and 367]. Lord Mance (with whom Lord Reed, Lady Black and Lord Lloyd Jones agree) considers that the cases relied on by NIHRC to demonstrate breach of Art 3: RR v Poland (2011) 53 EHRR 31, P & S v Poland [2012] 129 BMLR 120 and Tysiac v Poland (2007) 45 EHRR 412 were decided on an assessment of the actual circumstances of the conduct relied on. They were not decided on the basis of a risk that the State might commit a breach of Art 3 [100, 353 and 367]. Lord Mance (with whom Lord Reed, Lord Lloyd Jones and Lady Black agree) notes that women are able to travel elsewhere to obtain an abortion. Although this can be a distressing and expensive experience, it does not generally or necessarily give rise to distress of such severity so as to infringe Art 3: see A, B and C [100, 353 and 367]. A minority (Lord Kerr with whom Lord Wilson agrees) would have made a declaration that the law of Northern Ireland is incompatible with Art 3 ECHR insofar as it prohibits abortion in the three categories of case presented [262]. Even though some mothers may not, there is a risk that some mothers who are denied an abortion in cases (a), (b) and (c) above will suffer profound psychological trauma which is sufficient to give rise to a violation of Art 3 [235]. The state owes individuals an obligation to protect them from the risk of a breach of Art 3 as well as a positive duty to provide appropriate healthcare treatment where the denial of that treatment would expose victims to ill treatment contrary to Art 3 [235]. The risk of women and girls being subject to ill treatment contrary to Art 3 is sufficient to trigger the states positive obligations. Travelling to England or Scotland to obtain an abortion does not avoid this. The fact of being required to do so is in itself sufficient to expose women and girls to the risk of inhuman and degrading treatment [238]. Lady Hale expresses sympathy with the view expressed by Lord Kerr (with whom Lord Wilson agrees) but does not consider it necessary to decide on incompatibility in relation to Art 3 in light of her decision on Art 8 [34].

long

Private Jason Smith joined the Territorial Army in 1992, when he was 21 years old. In June 2003 he was mobilised for service in Iraq. On 26 June 2003, after a brief spell in Kuwait for purposes of acclimatisation, he arrived at Camp Abu Naji, which was to be his base in Iraq. From there he was moved to an old athletics stadium some 12 kilometres away, where about 120 men were billeted. By August temperatures in the shade were exceeding 50 degrees centigrade. On 9 August he reported sick, saying that he could not stand the heat. Over the next few days he was employed on various duties off the base. On the evening of 13 August he was found collapsed outside the door of a room at the stadium. He was rushed by ambulance to the medical centre at Camp Abu Naji but died almost immediately of hyperthermia, or heat stroke. Private Smiths body was brought back to this country and an inquest was held. The inquest suffered from procedural shortcomings. His mother commenced judicial proceedings in which she sought an order quashing the coroners inquisition. In bringing her claim Mrs Smith relied upon the Human Rights Act 1998. She contended that throughout the time that her son was in Iraq the United Kingdom owed him a duty to respect his right to life under article 2 of the European Convention on Human Rights and that the inquest also had to satisfy the procedural requirements of article 2. On more narrow grounds than these the Secretary of State conceded that Mrs Smith was entitled to the relief that she sought, and a new inquest is to be held. Two issues of public importance have been raised by her claim. Is a soldier on military service abroad in Iraq subject to the protection of the Human Rights Act 1998 (the HRA) when outside his base? I shall call this the jurisdiction issue. If so, must the death of such a soldier be the subject of an inquest that satisfies the procedures that article 2 of the European Convention on Human Rights (the Convention) implicitly requires where there is reason to believe that a death may be attributable to default on the part of a public authority? I shall call this the inquest issue. These issues are largely academic inasmuch as the Secretary of State has conceded that a fresh inquest must be held in relation to Private Smiths death that satisfies those Convention requirements a concession which does not, of course, bind the Coroner. The courts below have nonetheless been prepared to entertain them because of their importance and this court has done the same. The jurisdiction issue Mrs Smith succeeded on this issue, both at first instance and before the Court of Appeal. Section 6(1) of the HRA provides: It is unlawful for a public authority to act in a way which is incompatible with a Convention right. Section 1 defines the Convention rights as including articles 2 to 12 and 14 of the Convention. It is common ground that the HRA is capable of applying outside the territorial jurisdiction of the United Kingdom, but that section 6(1) will only be infringed by conduct that the Strasbourg Court would hold to have violated a Convention right. This was determined by the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153. It follows that, in order to decide whether conduct has infringed section 6(1) of the HRA it is necessary to consider the ambit of application of the Convention. More particularly, no claim can succeed under the HRA unless there has been a breach of a Convention right of a person within the jurisdiction of the United Kingdom that should have been secured pursuant to article 1. Article 1 of the Convention provides: The High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section 1 of this Convention. The jurisdiction issue is whether, on the true interpretation of article 1, British troops operating on foreign soil fall within the jurisdiction of the United Kingdom. There has recently grown a small body of authority, both in this country and at Strasbourg, dealing with the application of the Convention to the activities of armed forces on foreign soil. The Grand Chamber sat to consider this question in Bankovic v United Kingdom (2001) 11 BHRC 435, which has been recognised both in this country and at Strasbourg as a leading case on the scope of jurisdiction under article 1. I propose to start by considering that case. Bankovic Five of the applicants in Bankovic were close relatives of civilians killed by air strikes carried out on a radio and television centre in Belgrade by members of NATO, when intervening in the Kosovo conflict in 1999. The sixth applicant had himself been injured in the raids. The critical issue in relation to admissibility was whether the applicants and their deceased relatives came within the jurisdiction of the respondent States within the meaning of article 1 of the Convention. The applicants founded their case on the reasoning of the Court in Loizidou v Turkey (1995) 20 EHRR 99. The Court held in that case that a Greek Cypriot, who claimed in relation to the dispossession of her property in Northern Cyprus, was potentially within the jurisdiction of Turkey for the purposes of article 1 by reason of the fact that Turkey exercised effective control of Northern Cyprus. The applicants in Bankovic accepted that they could not contend that the action of the member States in bombing Belgrade put them under an obligation in relation to the observance of all of the Convention rights in the area bombed, but argued that they should be held accountable for those rights that did fall within their control, and in particular the right to life of those whom they bombed. The Court applied the principles agreed in the Vienna Convention on the Law of Treaties 1969 (the Vienna Convention) to the task of interpreting article 1. Thus it paid primary regard to the natural meaning of the words used, but also took into consideration the travaux prparatoires (the travaux) and State practice. This approach contrasted with the approach that the Strasbourg Court has adopted of treating the Convention as a living instrument when considering the manner in which it operates. The Court recognised this at paras 64 and 65 but commented that the scope of article 1 was determinative of the scope and reach of the entire Convention system of human rights protection. The Court was indicating that the meaning of article 1, and thus the scope of application of the Convention, could not change over time, and this seems plainly correct as a matter of principle. I shall describe this as the original meaning principle. The Court approached the natural meaning of jurisdiction on the premise that this had to be consonant with the meaning of that word under principles of public international law. Under these principles the jurisdictional competence of a State was primarily territorial. Thus: article 1 of the Convention must be considered to reflect this ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each caseIn keeping with the essentially territorial notion of jurisdiction, the court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. (paras 61 and 67) Thus the Court held that jurisdiction in article 1 was not limited to the territory over which a State exercises lawful authority. It extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty in delineating article 1 jurisdiction arises in identifying and defining the exceptions to territorial jurisdiction. The Court recognised that one such exception arose where a member State had taken effective control of part of the territory of another member State. I shall call this the principle of effective territorial control. Loizidou v Turkey exemplified this jurisdiction. The Court justified this exception by remarking at para 80 that the inhabitants of Northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting State, to fulfil the obligations that it had undertaken under the Convention. Thus the Court appeared to restrict the principle of effective territorial control to the territories of the contracting States. The Court made the following comments about this head of jurisdiction: 71. In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is exceptional: it has done so when the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the government of that territory, exercises all or some of the public powers normally to be exercised by that government. 80. In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the contracting states. The FRY clearly does not fall within this legal space. The Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states. Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention. Article 56 enables a Contracting State to declare that the Convention shall extend to all or any of the territories for whose international relations the State is responsible. Thus, implicitly and paradoxically, the principle of effective territorial control does not appear to apply automatically to such territories see also Bui van Thanh v United Kingdom (1990) 33 Yearbook of the European Convention on Human Rights 59 at p 61; Loizidou v Turkey at paras 86 87; Yonghong v Portugal Reports of Judgments and Decisions 1999 IX, pp 385, 391 392. The Court rejected the suggestion that extra territorial acts could bring individuals within the jurisdiction for the purposes of some Convention rights but not others. It said at para 75: the court is of the view that the wording of article 1 does not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question and, it considers its view in this respect supported by the text of article 19 of the Convention. Indeed the applicants approach does not explain the application of the words within their jurisdiction in article 1 and it even goes so far as to render those words superfluous and devoid of any purpose. Had the drafters of the Convention wished to ensure jurisdiction as extensive as that advocated by the applicants, they could have adopted a text the same as or similar to the contemporaneous articles 1 of the four Geneva Conventions of 1949. I shall describe this as the whole package principle. The Court singled out for special mention as an example of an exceptional case of extra territorial jurisdiction that fell within article 1, the case of Drozd and Janousek v France and Spain (1992) 14 EHRR 745. I shall consider this decision in due course. The Court noted a number of other examples of States exercising extra territorial jurisdiction, implying, I believe, that those affected would be within the jurisdiction of the State in question within the meaning of article 1: Additionally, the Court notes that other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state. In these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state. The applicants in Bankovic also relied on two admissibility decisions that proceeded on a different basis of article 1 jurisdiction that has been described as state agent authority, namely de facto control by state agents of persons as opposed to territory, Issa v Turkey (Application No 31821/96) (unreported) 30 May 2000 and calan v Turkey (Application No 46221/99) (unreported) 14 December 2000. The Grand Chamber swept these aside with the comment that in neither case was the issue of jurisdiction raised by the respondent Government, adding that the merits of those cases had yet to be decided. The respondent Governments in Bankovic, including the United Kingdom, had in fact accepted the existence of jurisdiction in those cases on the basis that it was the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that states control. Mr Eadie QC, for the Secretary of State, has not in this Court accepted any general principle whereby article 1 jurisdiction can be based on the exercise of control by State agents over individuals as opposed to territory. It is convenient at this point to consider the treatment by the Strasbourg Court of the question of jurisdiction on the substantive hearings in those two cases. calan and Issa In calan (2005) 41 EHRR 985 the applicant, a Turk, was handed over to Turkish officials aboard a Turkish aircraft at Nairobi. At the substantive hearing, following that before the Court (2003) 37 EHRR 238, the Grand Chamber recorded at para 91 that it was common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey. The substantive hearing in Issa (2004) 41 EHRR 567 took place before the Second Section, three members of which had been party to the decision in Bankovic. The applicants, Iraqi nationals, alleged that their relatives had been unlawfully arrested, detained, ill treated and killed by Turkish troops in the course of a military operation in Northern Iraq. The claim failed because they were unable to prove this. The Court had, however, permitted Turkey to challenge the existence of article 1 jurisdiction, albeit that no challenge on this ground had been made at the admissibility hearing. The Court at paras 68 69 referred to the substantive decision in Loizidou v Turkey (1996) 23 EHRR 513, para 52 for the proposition that: According to the relevant principles of international law, a States responsibility may be engaged where, as a consequence of military action whether lawful or unlawful that State in practice exercises effective control of an area situated outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention derives from the fact of such control, whether it be exercised directly, through its armed forces, or through a subordinate local administration. The Court went on to say, at para 71: Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State.(Citations omitted). This clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction. Al Skeini The implications of the Strasbourg Courts decision in Bankovic received detailed analysis in Al Skeini in the Divisional Court, the Court of Appeal and the House of Lords. This Court ought to consider the conclusions of the House of Lords to be definitive unless these have plainly been invalidated by subsequent decisions of the Strasbourg Court. The claimants were relatives of six Iraqi civilians who had been killed by or in the course of operations by British soldiers in the period following completion of major combat operations in Iraq and before the assumption of authority by the Iraqi Interim Government. Five of these were shot in separate incidents in Basra. The sixth, Mr Baha Mousa, was beaten to death by British troops while detained in a British military detention unit. The claimants sought independent enquiries into these deaths, relying upon the HRA. Two preliminary issues were before the Court. Did the HRA apply outside the territorial jurisdiction and were the six Iraqi citizens within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention? The House, Lord Bingham dissenting, answered the first question in the affirmative. So far as concerns the second question, the ambit of article 1 had been exhaustively considered by the Divisional Court [2004] EWHC 2911 (Admin); [2007] QB 140 which had analysed chronologically all the relevant Strasbourg authorities, including Bankovic. The court concluded that these established that the primary meaning of within their jurisdiction in article 1 was within the territorial jurisdiction of the contracting States, subject to a number of exceptions. There was no general exception whereby those subject to the exercise of state agent authority fell within the article 1 jurisdiction of the State. Insofar as Issa had held to the contrary, it should be disregarded as inconsistent with the decision in Bankovic. The Court of Appeal [2005] EWCA Civ 1609; [2007] QB 140 differed on the last point, holding that Issa was authoritative and demonstrated that article 1 jurisdiction was established by the exercise of control over individuals by State agents, both within and outside the jurisdiction of contracting States. The House of Lords preferred the reasoning of the Divisional Court. The majority approached the issue of article 1 jurisdiction on the footing that this was essentially a matter for the Strasbourg court and the House should not construe article 1 as having any further reach than that established by that Court. As to that pre eminence should be given to the decision of the Grand Chamber in Bankovic. The House was, however, faced with the fact that, so far as Mr Baha Mousa was concerned, the Secretary of State had accepted that, because he died as a result of misconduct that took place at a detention centre within a British military base, he met his death within the jurisdiction of the United Kingdom for the purposes of article 1. The claimants sought to rely on a principle of state agent authority, arguing that if such authority was exercised over individuals, this brought them within the jurisdiction for purposes of article 1. The majority was troubled by the fact that some statements of the Court in Issa were hard to reconcile with Bankovic, and particularly with the whole package principle. Insofar as Issa could not be reconciled with Bankovic, the majority held that it should be disregarded. Thus Lord Rodger held, at para 79: the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under article 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in section 1 of the Convention. Lord Brown carried out a detailed analysis of the Strasbourg jurisprudence. He recognised some narrow categories where the Strasbourg Court had found article 1 jurisdiction in circumstances where the State had not got territorial control irregular extradition such as calan and activities of embassies and consulates. These exceptions apart, Lord Brown considered the whole package principle to be of importance: 128. There is one other central objection to the creation of the wide basis of jurisdiction here contended for by the appellants under the rubric control and authority, going beyond that arising in any of the narrowly recognised categories already discussed and yet short of that arising from the effective control of territory within the Council of Europe area. Bankovic (and later Assanidze) stands, as stated, for the indivisible nature of article 1 jurisdiction: it cannot be divided and tailored. As Bankovic had earlier pointed out, at para 40: the applicants interpretation of jurisdiction would invert and divide the positive obligation on contracting states to secure the substantive rights in a manner never contemplated by article 1 of the Convention. When, moreover, the Convention applies, it operates as a living instrument. calan provides an example of this, a recognition that the interpretation of article 2 has been modified consequent on the territories encompassed by the member states of the Council of Europe [having] become a zone free of capital punishment: para 195. (Paras 64 and 65 of Bankovic, I may note, contrast on the one hand the Conventions substantive provisions and the competence of the Convention organs, to both of which the living instrument approach applies and, on the other hand, the scope of article 1 the scope and reach of the entire Convention to which it does not.) Bear in mind too the rigour with which the court applies the Convention, well exemplified by the series of cases from the conflict zone of south eastern Turkey in which, the states difficulties notwithstanding, no dilution has been permitted of the investigative obligations arising under articles 2 and 3. 129. The point is this: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Applying Bankovic, the majority held that the five Iraqi citizens who had been killed in Basra were not within the jurisdiction of the United Kingdom for the purposes of article 1. Lord Brown indicated that he would recognise the United Kingdoms jurisdiction over Mr Baha Mousa only on the basis of an analogy with the extra territorial exception made for embassies. However, in a subsequent admissibility decision in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 the Strasbourg Court has held that detainees in British detention centres in Iraq fell within United Kingdom jurisdiction by reason of the total and exclusive de facto, and subsequently de jure, control exercised by the United Kingdom authorities over the premises in question. (para 88) A more recent example of where the Strasbourg Court has equated control over individuals with article 1 jurisdiction is the decision of the Grand Chamber in Medvedyev and others v France (Application No 3394/03) judgment delivered on 29 March 2010. On the high seas a French warship boarded a merchant vessel, crewed by the applicants who were suspected of being engaged in drug smuggling and compulsorily escorted it on a 13 day voyage into Brest. The court held at para 67 that as the vessel and its crew were, at least de facto, under the control of France, they were effectively under Frances jurisdiction for the purposes of article 1. This decision, when added to that in Issa suggests that the Strasbourg Court may be prepared to found article 1 jurisdiction on state agent authority, even though this principle does not seem consistent with the approach in Bankovic. Gentle The possibility that British soldiers serving abroad were within the article 1 jurisdiction of the United Kingdom because they were under the authority of the United Kingdom was shortly dismissed by Lord Bingham in R (Gentle) v Prime Minister [2008] AC 1356. He said, at para 8: (3) The obligation of member states under article 1 of the Convention is to secure to everyone within their jurisdiction the rights and freedoms in the Convention. Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129. The other members of the House expressed general agreement with Lord Bingham. Article 1 jurisdiction was not, however, at the heart of the case, to the extent that the Court of Appeal, whose decision was upheld, had not found it necessary to decide the point. Gentle nonetheless lends support to the analysis of the House of Lords in Al Skeini. The claimants in Al Skeini have taken their case to Strasbourg and this will give the Strasbourg Court a further opportunity to clarify this difficult area of its jurisprudence. Submissions For the Secretary of State, Mr Eadie submitted that Private Smith was only within the jurisdiction of the United Kingdom when he was within territory that was under the effective control of the United Kingdom. On this basis he conceded that article 2 had applied during those periods when Private Smith was within the military base, which included the time of his death. When, however, he was not within territory controlled by the United Kingdom, he was not within article 1 jurisdiction. His position in those circumstances did not fall within any of the recognised exceptions to the general principle that article 1 jurisdiction was territorial. In so submitting he relied in particular on Bankovic, Al Skeini and Gentle. For Mrs Smith Miss Dinah Rose QC made it clear that her case was not based on Private Smith having been on territory under the de facto control of the United Kingdom, nor upon Private Smith himself having been under the de facto control of the Army, as a State agent, but upon the fact that Private Smith was subject to the jurisdiction of the United Kingdom as a matter of both domestic and international law. He was so subject by reason of his status as a member of the Armed Forces. Miss Rose submitted that soldiers were in the same position as other State agents, such as diplomats, consular agents and judges. When exercising State powers outside the territory of the State they themselves remained subject to the jurisdiction of the State. Mr Beloff QC appeared for the Intervener, the Equality and Human Rights Commission. He supported Miss Roses submissions. He submitted that the authorities dealing with control of territory, or control of persons, did not touch on the basis of jurisdiction asserted in this case. That was personal jurisdiction, which, to quote from para 17 of his written case, does not depend on a persons location. It is founded on the reciprocal rights and obligations of nationals and their state, wherever they may be. Mr Beloff accepted that the precise question of whether article 1 jurisdiction could be founded on this basis had not arisen before the Strasbourg Court. The decision of the Court of Appeal. The Court of Appeal held that article 1 required the existence of a jurisdictional link and that this requirement was satisfied in the case of Private Smith, for the reasons set out in para 29 of its judgment. Members of the armed forces were: subject to United Kingdom military law without territorial limit and may be tried by court martial whether the offence is committed in England or elsewhere. They are also subject to the general criminal and civil law. Soldiers serve abroad as a result of and pursuant to the exercise of United Kingdom jurisdiction over them. Thus the legality of their presence and of their actions depends on their being subject to United Kingdom jurisdiction and complying with United Kingdom law. As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad. The Court was also influenced by what it perceived as the illogicality of holding that Private Smith was within the jurisdiction when on military premises, but not when outside them: it is accepted that a British soldier is protected by the 1998 Act and the Convention when he is at a military base. In our judgment, it makes no sense to hold that he is not so protected when in an ambulance or in a truck or in the street or in the desert. There is no sensible reason for not holding that there is a sufficient link between the solider as victim and the United Kingdom whether he is at a base or not. So too, if he is court martialled for an act committed in Iraq, he should be entitled to the protection of article 6 of the Convention wherever the court martial takes place. The meaning of jurisdiction interpretation. The first is that: Article 31 of the Vienna Treaty lays down a number of general rules of A treaty shall be interpreted in good faith in accordance with the ordinary meaning to be given to the terms of the treaty in their context and in the light of its object and purpose. Jurisdiction has more than one ordinary meaning. The meanings given by the Shorter Oxford Dictionary include the following: 1. Exercise of judicial authority, or of the functions of a judge or legal tribunal; power of administering law or justice. Also, power or authority in general. 2. The extent or range of judicial or administrative power; the territory over which such power extends. Jowetts Dictionary of English Law, 2nd ed (1977), after giving the primary meaning of legal authority goes on to state: Jurisdiction also signifies the district or geographical limits within which the judgments or orders of a court can be enforced or executed. This is sometimes called territorial jurisdiction. Thus the phrase within the jurisdiction can bear the natural meaning subject to the authority of but can equally bear the natural meaning within the territory over which authority is exercised. There are different varieties of authority that can be described as jurisdiction. Oppenheims International Law, 9th ed (1992), vol 1, describes these and their relationship to territorial jurisdiction: 136 State jurisdiction in general State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events. In practice jurisdiction is not a single concept. A states jurisdiction may take various forms. Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts. The extent of a states jurisdiction may differ in each of these contexts. The jurisdiction concerns both international law and the internal law of each state. The former determines the permissible limits of a states jurisdiction in the various forms it may take, while the latter prescribes the extent to which, and manner in which, the state in fact asserts its jurisdiction. 137 Territorial jurisdiction As all persons and things within the territory of a state fall under its territorial authority, each state normally has jurisdiction legislative, curial and executive over them. Territoriality is the primary basis for jurisdiction; 138 Jurisdiction over citizens abroad International law does not prevent a state from exercising jurisdiction, within its own territory, over its nationals travelling or residing abroad, since they remain under its personal authority. Accordingly, it may legislate with regard to their conduct when abroad, levy taxes in respect of their assets or earnings abroad, or legislate in respect of their foreign property. In all such cases, however, the states power to enforce its laws depends upon its national being in, or returning to, its territory or having there property against which they can be enforced. Most human rights can only be the subject of protection, or interference, by the State if the individual who enjoys them is within the administrative, or executive, authority of the State. This is obviously true of the rights that protect the person, namely those protected by articles 2, 3 4 and 5 and is also true of articles 8, 9, 10, 11 and 12. Save in exceptional circumstances those requiring State protection of these rights will be within the territorial jurisdiction of the State in question. In respect of these rights it produces a perfectly sensible result to interpret within their jurisdiction in article 1 as meaning within the territorial jurisdiction of the Member States. Public international law recognises that both legislative and judicial authority can be exercised over individuals whether they are inside or outside the territorial jurisdiction of the State. The exercise of these types of jurisdiction may well have potential impact on some human rights, but not on others. The Strasbourg Court appears to have recognised, at least implicitly, that the exercise of these types of jurisdiction can bring those who are subject to them within the jurisdiction for purposes of article 1, whether or not they are within the territorial jurisdiction of the State, in relation to those rights that are affected. In such circumstances there can be no question of the whole package principle applying. I shall give a number of examples. Article 6 protects the right to a fair trial. The English court exercises extra territorial jurisdiction in defined circumstances in relation to civil claims. If a foreigner resident abroad is impleaded by a resident of this country in the English court, it is hard to believe that the Strasbourg Court would hold the English claimant entitled to the benefit of article 6 but the foreign defendant not so entitled. Both would be within the judicial jurisdiction of the English court and there would seem a strong case for equating that with article 1 jurisdiction in the context of the application of article 6. Such an approach would seem implicitly to have been accepted by the Strasbourg Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745. The applicants in that case had been tried in criminal proceedings in Andorra by a Tribunal, presided over by a French judge. Andorra was not party to the Convention. The applicants complained, none the less, of violation of their article 6 rights to a fair trial. The Court held that the judge had not been sitting in his capacity as a French judge, but as an Andorran judge, but appears to have accepted that had this not been so the applicants would have fallen within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights. This would not, however, have entitled them to claim against France the benefit of protection of the rest of the Convention rights. What of the property rights protected by article 1 of the First Protocol? Many foreign residents own property in this country. Are they within the jurisdiction for the purposes of article 1? In Carson v United Kingdom (Application No 42184/05) judgment 16 March 2010 the Grand Chamber ruled admissible claims against the United Kingdom by 13 persons entitled to British State pensions for violation of article 14 of the Convention in combination with article 1 of the First Protocol. All the claimants had earned pensions by working in Britain, but had emigrated to South Africa, Australia or Canada on retirement. The report states, in para 1 that they were all British nationals, but para 21 states that one of them remained an Australian national. The basis of the claim was discrimination against the claimants in that their pensions were not linked to United Kingdom inflation, in contrast to the position of pensioners resident within the United Kingdom. Neither before the English courts nor before the Strasbourg Court was there any discussion of the basis upon which the claimants were treated as within the jurisdiction of the United Kingdom for the purposes of article 1. One possible answer is that because their pension rights were governed by legislation, they fell within the legislative jurisdiction of the United Kingdom in relation to those rights. There could be no question, however, of the United Kingdom having to afford them protection in relation to the whole package of Convention rights. In X v United Kingdom (1979) 15 DR 137, the Commission ruled inadmissible on the merits a claim by a British citizen, who was employed by the European Commission and resident in Brussels, for violation of article 1 of the Convention in combination with article 3 of the First Protocol. She complained that she had no right to vote in United Kingdom elections whereas members of the diplomatic service and the Armed Forces stationed outside the United Kingdom retained their right to vote. The Commission held that the discrimination was justified in that these persons were not voluntarily abroad but had been sent abroad to serve their country. They fell to be regarded as resident citizens, in contrast to the applicant who was living abroad voluntarily. It was not, however, suggested that the applicant did not fall within the article 1 jurisdiction of the United Kingdom. The basis for this jurisdiction was perhaps that, in relation to voting rights, nationals fall within the jurisdiction of their own State, whether or not they are within the territorial jurisdiction. There are other cases that suggest that where one State delegates to another State authority to control a particular area of government that engages one of the Convention rights, those subject to the exercise of the latter States authority will be deemed to be within the jurisdiction of the latter State for the purposes of article 1 in relation to that right: Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002. A recent decision of the Strasbourg Court provides a variation on this theme. In Stephen v Malta (No 1) (2009) 50 EHRR 144 the applicant was a British subject who had been arrested and detained in Spain pursuant to an arrest warrant that had been issued by a Maltese Court that had not been competent to issue it. The Strasbourg Court, of its own motion, considered article 1 jurisdiction. It remarked at para 45: the question to be decided is whether the facts complained of by the applicant can be attributed to Malta The Court gave an affirmative answer to this question and held that the applicants complaints under article 5 engaged the responsibility of Malta under the Convention. No principled explanation was given for this departure from the territorial approach to article 1 jurisdiction other than the passage quoted above which, if applied generally, would render that approach nugatory. These cases might be thought to support a general principle that there will be jurisdiction under article 1 whenever a State exercises authority, be it legislative, judicial or executive, which affects a Convention right of a person, whether that person is within the territory of that State or not. So far as the exercise of executive authority is concerned, one can postulate that this requires effective control, either of territory or of individuals, before article 1 jurisdiction is established. The fact remains, however, that the Strasbourg Court has not propounded any such general principle. Nor can such a principle readily be reconciled with the proposition, approved in Bankovic, that article 1 jurisdiction is essentially territorial in nature and that other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case. There are compelling reasons for following the approach of the Grand Chamber in Bankovic, quite apart from the reasons that led the House of Lords to treat it as a landmark decision. The travaux to which the Court referred demonstrate that the contracting States were concerned with the manner in which those within their territories were treated. It is not credible that the change to the phrase within their jurisdiction was intended to effect a fundamental extension to the scope of the Convention without this being clearly reflected in the travaux. The question then is whether, applying the original meaning principle, it is right to include a States armed forces abroad as falling within the jurisdiction of the State for purposes of article 1 by reason of the special status that they enjoy. That is the proposition that Miss Rose advances and it is one that is, as the Grand Chamber pointed out in Bankovic, not reflected by State practice. It is, furthermore, almost wholly unsupported by Strasbourg jurisprudence. decision of the Commission in Cyprus v Turkey (1975) 2 DR 125: I say almost having regard to the following passage in the admissibility 8The Commission further observes that nationals of a State, including registered ships and aircrafts, are partly within its jurisdiction wherever they may be, and that authorised agents of a State, including diplomatic or consular agents and armed forces, not only remain under its jurisdiction when abroad but bring any other persons or property within the jurisdiction of that State, to the extent that they exercise authority over such persons or property. Insofar as, by their acts or omissions, they affect such persons or property, the responsibility of the State is engaged. I am not aware of any other Strasbourg jurisprudence that suggests that armed forces remain under the jurisdiction of a State when abroad and the reasoning of the Commission in this case was far wider than that of the Court when dealing with Turkeys jurisdiction in Northern Cyprus in Loizidou v Turkey (1995) 20 EHRR 99. Miss Rose drew attention to Strasbourg jurisprudence that holds that those affected by the conduct of a States diplomatic and consular officials abroad can fall within the jurisdiction of the State, which was applied by the Court of Appeal in R (B and others) v Secretary of State for Foreign and Commonwealth Affairs [2004] EWCA Civ 1344; [2005] QB 643. She submitted that it followed from this that such officials were themselves within the jurisdiction of their States and that the same principle should apply to the armed forces. I have some difficulty with the logic of the proposition that State agents whose acts bring those affected by them within article 1 jurisdiction must, in consequence, themselves also be within the article 1 jurisdiction of the State whose agents they are but, more fundamentally, it does not seem to me that the analogy between diplomatic and consular officials and members of the armed forces is compelling. More compelling were the points made by Miss Rose in relation to the unique status of members of the armed forces. When the Convention was agreed men who were British citizens were liable to conscription under the National Service (Armed Forces) Act 1948 and, in consequence of conscription, rendered subject to the executive authority of the armed forces and to the legislative and judicial regimes that applied to the armed forces. A similar situation no doubt existed in the case of other contracting States. Today the same is true of those who volunteer to serve in the armed forces see the description of the relevant legislation set out by Lord Mance in his judgment at para 190. Under domestic law and in accordance with public international law, members of the armed forces remain under the legislative, judicial and executive authority of the United Kingdom, whether serving within or outside United Kingdom territory. From the viewpoint of domestic law they can thus be said to be within the jurisdiction of the United Kingdom wherever they are. It is not attractive to postulate that, when they are outside the territorial jurisdiction in the service of their country they lose the protection afforded by the Convention and the HRA. That, however, is not the question. The question is whether, in concluding the Convention, the contracting States agreed that article 1 jurisdiction should extend to armed forces when serving abroad as an exception to the essentially territorial nature of that jurisdiction. What were the practical implications of so doing? It is not wholly realistic to consider the perceived implications of the application of the Convention in 1953 by reference to the requirements of the Convention, that have been identified by the Strasbourg Court since 1953. In particular, it is perhaps not realistic to apply to conditions in 1953 the positive obligations in relation to article 2 that have quite recently been laid down by the Strasbourg Court. It is nonetheless instructive to consider the implications of applying the Convention to armed forces serving abroad. It is not practicable for a State to secure many of the Convention rights and freedoms for troops in active service abroad. Article 2 is, however, plainly capable of being engaged. The safety of the lives of those fighting abroad can depend critically on the acts or omissions of State agents, covering the equipment with which they are supplied, the missions on which they are sent, and strategic and tactical decisions taken by commanders in the field. If the troops are within the article 1 jurisdiction of the State the question arises of how far these matters fall within the substantive obligations imposed by article 2. Insofar as they do, the question then arises of whether the procedural obligation arises every time a serviceman is killed in circumstances which may involve a shortcoming in the performance of those substantive obligations. These are questions that I shall explore when addressing the Inquest Issue. The Convention was agreed in the aftermath of a global conflict in which millions of troops had been deployed. In 1944 the United Kingdom had over 4.5 million troops serving. British casualties in the war numbered about 330,000. By 1950 the number of British troops in service had reduced to about 700,000, many of whom were conscripts. While the Convention was being negotiated the Korean War was in progress. British casualties in that war numbered about 700. Derogation is permitted under article 15 in time of war or other public emergency threatening the life of the nation, although there can be no derogation from article 2 except in respect of deaths resulting from lawful acts of war. No derogation was made, and troops were deployed abroad in circumstances falling short of those permitting derogation under article 15. The contracting States might well not have contemplated that the application of article 2 to troop operations abroad would have involved obligations such as those I have discussed above, but whatever the implications might have seemed, it is unlikely that they would have appeared a desirable consequence of the Convention. So far as this country is concerned, it is significant that when the Crown Proceedings Act 1947 rendered the Crown susceptible to civil suit an exception was made in relation to the armed forces. Only in 1987 did the Crown Proceedings (Armed Forces) Act remove that exception. This does not lie happily with the proposition that the United Kingdom bound itself to the observance of the Convention obligations toward its armed forces abroad when it ratified the Convention in 1951. Today the size of the forces maintained by contracting States is a fraction of those that they maintained when the Convention was agreed. Every death of a British serviceman abroad is now reported in the British press. The bodies of British servicemen who die on active service are flown back and buried in this country, and it is this fact which makes it mandatory to hold an inquest in each case. The care that is taken to avoid casualties and the procedures that are followed when casualties occur are to be commended, but they would not have seemed practicable in 1953. In Al Skeini at para 107 Lord Brown expressed the view that the House should not construe article 1 as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I endorse that comment. We are here dealing with the scope of the Convention and exploring principles that apply to all contracting States. The contention that a States armed forces, by reason of their personal status, fall within the jurisdiction of the State for the purposes of article 1 is novel. I do not believe that the principles to be derived from the Strasbourg jurisprudence, conflicting as some of them are, clearly demonstrate that the contention is correct. The proper tribunal to resolve this issue is the Strasbourg Court itself, and it will have the opportunity to do so when it considers Al Skeini. For these reasons I would hold that the Court of Appeal should not have held that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at times when he was not within premises under the effective control of the army. This conclusion, and the reasoning that has led to it, accords with the comprehensive analysis of the relevant jurisprudence in the judgment of Lord Collins. For these reasons I would allow the appeal against the Court of Appeals order on the jurisdiction issue. The Inquest Issue The nature of the issue The Inquest Issue arises on the premise that Private Smith was within the jurisdiction of the United Kingdom within the meaning of article 1 at the time of the events that led to his death, so that he was entitled to the protection of article 2 of the Convention. Article 2 of the Convention provides: 1. Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. In R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 the Appellate Committee of the House of Lords, in a considered opinion, summarised the Strasbourg jurisprudence as to the effect of this provision: 2. The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life. 3. The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated (references omitted). The Inquest Issue is concerned with the procedural obligation. The procedural obligation requires a State, of its own motion, to carry out an investigation into a death that has the following features: i) It must have a sufficient element of public scrutiny of the investigation or its results. ii) It must be conducted by a tribunal that is independent of the state agents who may bear some responsibility for the death. iii) The relatives of the deceased must be able to play an appropriate part in it. iv) It must be prompt and effective. This means that it must perform its essential purposes. These are to secure the effective implementation of the domestic laws which protect the right to life and to ensure the accountability of state agents or bodies for deaths occurring under their responsibility. These features are derived from the Strasbourg jurisprudence, as analysed in Middleton and R (L (A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588. I shall describe an investigation that has these features as an article 2 investigation. The procedural obligation implicit in article 2 was first recognised by the Strasbourg Court in McCann v United Kingdom (1995) 21 EHRR 97. Since then the Court has repeatedly found such an obligation to have existed, but always in the context of a case in which the respondent State has been held to have been in breach of a substantive obligation imposed by article 2. This is no doubt because complaints of violation of the procedural obligation of article 2 are only likely to be brought by relatives before the Strasbourg Court where these are ancillary to complaints of substantive breaches of article 2. It has been stated on a number of occasions that the procedural obligation under article 2 is parasitic upon the existence of the article 2 substantive right and cannot exist independently see, for example, Lord Binghams observations at para 6 of Gentle. The Inquest Issue has been formulated in the agreed Statement of Facts and Issues as follows: Whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into Article 2 of the Convention. In the first inquest the Coroner gave a narrative verdict which included the finding that Private Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate. Subsequently, on 5 January 2007 the Coroner gave a ruling holding that the requirements of article 2 did not apply to the inquest because any shortcomings related to a failure to follow the procedures that should have applied and not to any defects in those procedures, so that there was no question of any substantive breach of article 2. The basis upon which Mrs Smith has successfully challenged this ruling has raised an important issue of principle. Both Miss Rose and Mr Beloff have contended that an article 2 investigation must be held whenever a member of the armed services dies on active service and the Court of Appeal has so found. The argument has proceeded on the following basis. There are two different types of inquest. The first has the features that the Court of Appeal identified in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1 (a Jamieson inquest). The second has the features that the House of Lords identified in R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182 (a Middleton inquest). If the requirements of article 2 apply, the coroner must conduct a Middleton inquest. The Middleton inquest will address any alleged failures on the part of the State to comply with the substantive obligations imposed by article 2. Before addressing the Inquest Issue directly I propose to explain a number of reservations that I have in relation to the procedural obligation: i) I do not see how the procedural obligation can work if it is limited to an obligation to hold an article 2 investigation if, and only if, there are grounds for suspecting a breach by the State of a substantive article 2 obligation. ii) I question the extent of the distinction between a Jamieson inquest and a Middleton inquest. iii) There is a major difficulty in identifying the substantive obligations that article 2 imposes on a State in relation to the safety of its armed forces. iv) I question the extent to which an inquest, even a Middleton inquest, will necessarily be an appropriate process for discharging the procedural obligation. The duty to investigate death The duty to hold an article 2 investigation arises where there are grounds for suspecting that a death may involve breach by the State of one of the substantive obligations imposed by article 2. This raises the question of how the State is to identify that there are grounds for such suspicion. Any effective scheme for protecting the right to life must surely require a staged system of investigation of deaths, under which the first stage takes place automatically in relation to every death, whether or not there are grounds for suspecting that there is anything untoward about the death. Where the first stage shows that the death has not, or may not have, resulted from natural causes, there will be a requirement for a further stage or stages of the investigation. The requirement for an article 2 investigation will only arise if the preceding stage of the investigation discloses that there is a possibility that the State has not complied with a substantive article 2 obligation. In the United Kingdom such a staged system of investigating deaths exists. All deaths are required to be registered under the Births and Deaths Registration Act 1953. Registration requires a death certificate certifying the cause of death from a doctor or coroner. Where there is doubt as to whether the death is due to natural causes, it will be reported to a coroner. He then decides whether further enquiries need to be carried out. These may take the form of a post mortem examination or an inquest. Section 8 of the Coroners Act 1988 requires a coroner to hold an inquest where the body of a person is lying within his district and there is reasonable cause to suspect that the deceased has died a violent or an unnatural death, has died a sudden death of which the cause is unknown or has died in prison or in such place or in such circumstances as to require an inquest under any other Act. The inquest was designed to perform a fact finding role. It was not intended necessarily to be the final stage of the investigation. Its mandate expressly excludes determining civil or criminal liability. It is, however, being used as the appropriate process for determining whether there has been a violation of the States article 2 obligations. Jamieson and Middleton Inquests Jamieson involved an application for judicial review brought by the brother of a man who had hanged himself in his prison cell. The report of the case suggests that the evidence adduced at the inquest of the prisoner covered in detail the circumstances that led up to his suicide. It was the applicants case that the prison authorities were aware of the danger that his brother would commit suicide and failed to take the steps that they should have done to prevent this. He submitted to the coroner that he should direct the jury to consider whether the death of his brother was caused or contributed to by lack of care. The coroner refused to do so and it was this decision that was challenged by judicial review. The issue thus related, not to the scope of the investigation that had taken place, but as to the verdict that the jury were permitted to give. Sir Thomas Bingham MR, giving the judgment of the Court of Appeal, traced the statutory history of the coroners role and drew particular attention to the following statutory provisions, which are still in force. Under section 8(1) of the Coroners Act 1988 a coroner has to hold a inquest when a body is lying within his district and there is reason to think that the deceased has died a violent or unnatural death, or has died a sudden death of which the cause is unknown, or has died in prison or in such circumstances as to require an inquest under any other Act. Section 11(5)(b)(i) and (ii) requires the coroners jury to set out in an inquisition who the deceased was and how, when and where he came by his death. The Coroners Rules 1984 provide: 36(1) The proceedings and evidence at an inquest shall be directed solely to ascertaining the following matters, namely(a) who the deceased was; (b) how, when and where the deceased came by his death; (c) the particulars for the time being required by the Registration Acts to be registered concerning the death. (2) Neither the coroner nor the jury shall express any opinion on any other matters. 40. No person shall be allowed to address the coroner or the jury as to the facts. 41. Where the coroner sits with a jury, he shall sum up the evidence to the jury and direct them as to the law before they consider their verdict and shall draw their attention to rules 36(2) and 42. 42. No verdict shall be framed in such a way as to appear to determine any question of(a) criminal liability on the part of a named person, or (b) civil liability. 43. A coroner who believes that action should be taken to prevent the recurrence of fatalities similar to that in respect of which the inquest is being held may announce at the inquest that he is reporting the matter in writing to the person or authority who may have power to take such action and he may report the matter accordingly. In upholding the coroners ruling, the Court of Appeal set out a number of general principles, which included the following: (1) An inquest is a fact finding inquiry conducted by a coroner, with or without a jury, to establish reliable answers to four important but limited factual questions. The first of these relates to the identity of the deceased, the second to the place of his death, the third to the time of death. In most cases these questions are not hard to answer but in a minority of cases the answer may be problematical. The fourth question, and that to which evidence and inquiry are most often and most closely directed, relates to how the deceased came by his death. Rule 36 requires that the proceedings and evidence shall be directed solely to ascertaining these matters and forbids any expression of opinion on any other matter. (2) Both in section 11(5)(b)(ii) of the Act of 1988 and in rule 36(1)(b) of the Rules of 1984, how is to be understood as meaning by what means. It is noteworthy that the task is not to ascertain how the deceased died, which might raise general and far reaching issues, but howthe deceased came by his death, a more limited question directed to the means by which the deceased came by his death. (3) It is not the function of a coroner or his jury to determine, or appear to determine, any question of criminal or civil liability, to apportion guilt or attribute blame. Middleton also involved an inquest on a prisoner who had hanged himself in his cell. Similar allegations of neglect were made and once again the evidence covered the circumstances leading up to the deceaseds suicide. The jury handed the coroner a note stating that the Prison Service had failed in its duty of care to the deceased, but the coroner concluded that this could not be appended to the inquisition. The verdict was challenged on the ground (not open in Jamieson) that it did not comply with the procedural obligations of article 2. Lord Bingham, delivering the considered decision of the Committee, held that where article 2 was engaged it might be necessary, in accordance with section 3 of the Human Rights Act, to give the relevant statutory provisions a different meaning to that which the Court of Appeal had laid down in Jamieson. The change was not a big one: 35. Only one change is in our opinion needed: to interpret how in section 11(5)(b)(ii) of the Act and rule 36 (1)(b) of the Rules in the broader sense previously rejected, namely as meaning not simply by what means but by what means and in what circumstances. 36. This will not require a change of approach in some cases, where a traditional short form verdict will be quite satisfactory, but it will call for a change of approach in others (paras 30 31 above). In the latter class of case it must be for the coroner, in the exercise of his discretion, to decide how best, in the particular case, to elicit the jury's conclusion on the central issue or issues. The decision in Middleton has been given statutory effect by section 5 (2) of the Coroners and Justice Act 2009. That section provides: 5 Matters to be ascertained (1) The purpose of an investigation under this Part into a persons death is to ascertain (a) who the deceased was; (b) how, when and where the deceased came by his or her death; (c) the particulars (if any) required by the 1953 Act to be registered concerning the death. (2) Where necessary in order to avoid a breach of any Convention rights (within the meaning of the Human Rights Act 1998 (c 42)), the purpose mentioned in subsection (1)(b) is to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. (3) Neither the senior coroner conducting an investigation under this Part into a persons death nor the jury (if there is one) may express any opinion on any matter other than (a) the questions mentioned in subsection (1)(a) and (b) (read with subsection (2) where applicable); (b) the particulars mentioned in subsection (1)(c). This is subject to paragraph 7 of Schedule 5. It seems to me that the only difference that the decision of the House in Middleton would have made to either the Jamieson inquest or the Middleton inquest would have been to the form of the verdict. In each case the Coroner appears to have permitted exploration of the relevant circumstances despite the fact that he did not permit these to be reflected in the verdict. I question whether there is, in truth, any difference in practice between a Jamieson and a Middleton inquest, other than the verdict. If there is, counsel were not in a position to explain it. Coroners appear frequently to have exercised considerable latitude as to the scope of the inquiry the inquest into the shootings in Gibraltar that were the subject of McCann v United Kingdom (1995) 21 EHRR 97 exemplifies this. The form of the verdict will, no doubt be dictated by the evidence that emerges at the inquest, but I have difficulty with the concept that the inquest itself may in midstream undergo a significant change in character from a Jamieson to a Middleton inquest. How far it is appropriate to widen the scope of an inquest in order to consider allegations of breach of obligations imposed by article 2 is a matter to which I shall revert. The substantive obligations of article 2 in relation to armed forces. If armed forces on active service abroad are within a States jurisdiction for purposes of article 1, the question arises of the scope of the substantive obligations imposed by article 2. Would the Strasbourg Court hold that they extend to the adequacy of the equipment with which the forces are provided; to the planning and execution of military manoeuvres? These questions are not easy to address, but an affirmative answer certainly cannot be excluded. McCann involved the shooting by an SAS unit of three members of the provisional IRA who were suspected of being about to detonate a bomb in Gibraltar. The Court held that article 2 imposed substantive duties in relation to the planning, execution and control of the operation, and a procedural obligation to investigate these matters in the light of the casualties. The Court adopted a similar approach to deaths that resulted from the operations of the Russian military when conducting substantial military operations against insurgents: Isayeva, Yusupova and Basayeva v Russia (Application Nos 57947 49/00) and Isayeva v Russia (Application No 57950/00), decisions of 24 February 2005. There would seem no reason why the Court might not adopt a similar approach to operations resulting in the death of a States own soldiers. The facts of this case do not require the Court to define the extent of the positive duty that article 2 imposes on a State in relation to its armed forces. How appropriate is an inquest for the discharge of article 2 procedural obligations? As I have pointed out, inquests were designed to perform a fact finding function as a stage in an overall scheme of investigation that would commence before the inquest and might continue after it. An inquest will not be the appropriate vehicle for all inquiries into State responsibility for loss of life. An inquest would not have been the appropriate means of determining whether the death of a victim of new variant CJD, contracted from eating BSE infected beef, involved government responsibility, nor for determining the issues of State responsibility for the Bloody Sunday killings. An inquest can properly conclude that a soldier died because a flack jacket was pierced by a snipers bullet. It does not seem to me, however, that it would be a satisfactory tribunal for investigating whether more effective flack jackets could and should have been supplied by the Ministry of Defence. If the article 2 obligation extends to considering the competence with which military manoeuvres have been executed, a coroners inquest cannot be the appropriate medium for the inquiry. Must an article 2 investigation be held whenever a member of the armed services dies on active service? Miss Rose argued that the State was under a positive obligation to take all reasonable steps to protect the lives of military recruits, who were subject to the authority and control of the State. It followed that any death of a serviceman on active service potentially engaged the responsibility of the State. All the evidence was likely to be under the control of the State. Where a soldier died on active service, whether he was a conscript, a regular or a reservist this triggered the obligation to hold an independent investigation. This was certainly the case where the circumstances of a soldiers death indicated the possibility of a systemic or operational failing by military personnel. The Court of Appeal considered a number of cases of deaths in the custody of the State, of one kind or another, where the article 2 procedural duty had been held to arise. It held at para 90: The question in the instant appeal is whether what may be called the custody principles apply to a case like this where the deceased lost his life while serving as a soldier in the Territorial Army. The Court went on to give an affirmative answer to this question, at least in the circumstances of a death from causes such as those that resulted in Private Smiths death. The obligation to hold an article 2 investigation is triggered by circumstances that give ground for suspicion that the State may have breached a substantive obligation imposed by article 2. That in its turn raises the question of the scope of the substantive obligations that a State owes in relation to its armed forces, which I have raised above. Whatever the scope of those obligations I do not consider that the death of a soldier on active service of itself raises a presumption that there has been a breach of those obligations. Troops on active service are at risk of being killed despite the exercise of due diligence by those responsible for doing their best to protect them. Death of a serviceman from illness no more raises an inference of breach of duty on the part of the State than the death of a civilian in hospital. For these reasons I reject the submission that the death of a serviceman on active service, assuming that this occurs within the article 1 jurisdiction of a State, automatically gives rise to an obligation to hold an article 2 investigation. Inquiries into the deaths of servicemen. I have already referred to the fact that, whatever the requirements of the Convention may be, the United Kingdom has a staged system of investigation into deaths. Where a death occurs in circumstances involving a public authority, an in house investigation will often precede the inquest and provide valuable information to assist the inquest. In the present case the Special Investigations Branch of the Military Police carried out an investigation into Private Smiths death and two Boards of Inquiry made reports. It was because the first of these was not disclosed to the coroner that a second inquest is to be held. I would expect that in the case of every military death in service some form of internal investigation is held. As the bodies of servicemen who die or are killed on active service abroad are brought back to this country, any internal investigation that has taken place will be followed by a public inquest that will satisfy many of the requirements of an article 2 investigation. It will often be only in the course of the inquest that it will become apparent that there is an issue as to whether there has been a breach by the State of its positive article 2 obligations. Only at that stage will it be appreciated that the exercise that is in progress is one called for by article 2 and one that must, if possible, satisfy the requirements of that article. Whether the inquest will be the appropriate medium to do this will depend on the nature of the obligation that is alleged to have been broken. The decision in Middleton, and section 5(2) of the 2009 Act that gives effect to it, requires the coroner to adapt the verdict, insofar as this is possible, in order to satisfy the requirements of article 2. Must the second inquest satisfy the procedural requirements of article 2? The Coroner ruled at the end of the first inquest that it was not necessary to satisfy the procedural requirements of article 2. Collins J and the Court of Appeal have held that the Coroner was mistaken. I agree. This is not, however, because Private Smiths death on active service, of itself, gave rise to a suspicion of breach by the State of its substantive article 2 obligations. It is because the evidence that was placed before the Coroner has raised the possibility that there was a failure in the system that should have been in place to protect soldiers from the risk posed by the extreme temperatures in which they had to serve. On the facts disclosed it was arguable that there was a breach of the States substantive obligations under article 2. This was enough to trigger the need to give a verdict that complied with the requirements of article 2. I am not convinced that the Coroners narrative verdict failed to do this. It summarised the facts leading to Private Smiths death and ended: Jason George Smiths death was caused by a serious failure to recognise and take appropriate steps to address the difficulty that he had in adjusting to the climate. The new inquest is likely to receive more detailed evidence of the circumstances surrounding Private Smiths death. In conducting that inquest the Coroner should certainly attempt to satisfy the requirements of an article 2 investigation. For these reasons I would dismiss the appeal on the second issue. LORD HOPE I agree with Lord Phillips that a member of the States armed forces is not, by reason of his or her personal status according to the military law and discipline of the United Kingdom, within the jurisdiction of the state for the purposes of article 1 of the European Convention on Human Rights. To hold otherwise would be to go beyond the categories that have hitherto been recognised by the Strasbourg Court in cases that do not arise from the effective control of territory within the Council of Europe area. But, as to the reasons for this view, I am in full and respectful agreement too with the judgment of Lord Collins. It is perhaps worth noting, in support of his conclusion that there are no policy grounds for extending the scope of the Convention to members of the armed services serving abroad simply because they are under the authority and control of the United Kingdom, that in an interview which he gave shortly after his retirement as President of the European Court of Human Rights, Luzius Wildhaber questioned how the Court could function effectively as a court when there was no prospect of it acquiring reliable evidence concerning the situation beyond the frontiers of Member States. He suggested that expecting the Court to act in such circumstances risked turning it into a campaigning organisation making allegations without solid evidence. He saw this as a compelling reason to be very careful about extending the notion of extra territoriality too far and to be wary about departing too much from the Bankovic judgment: Reflections of a Former President of the European Court of Human Rights [2010] EHRLR 169, 174. It is one thing, therefore, to recognise a Member States jurisdiction over persons within an area beyond the frontiers of the Member States over which their armed forces have established total and exclusive de facto control such as a military base, a military hospital or a detention centre, on the analogy with the extra territorial exception made for embassies: Al Saadoon and Mufdhi v United Kingdom (Application No 61498/08) (unreported) 30 June 2009, para 88. It is quite another to extend that jurisdiction to areas outside premises of that kind over which the armed forces may be operating but over which they do not have exclusive control, where the safeguarding of Convention rights cannot be guaranteed and where reliable evidence about the circumstances of alleged violations could be hard to come by because the state over whose territory these operations are being conducted is not a party to the Convention. A decision that the extra territorial jurisdiction should extend that far in this case would be likely to have profound consequences for other Member States and, it would seem from what Luzius Wildhaber has said, for the Court itself. A decision of that kind is best left to Strasbourg. I would in any event respectfully endorse the view expressed by Lord Brown of Eaton under Heywood in R (Al Skeini) v Secretary of State for Defence [2008] AC 153, para 107, for the further reasons he gives in this case, that article 1 should not be construed as reaching any further than the existing Strasbourg jurisprudence clearly shows it to reach. I also would hold that Private Smith was not within the jurisdiction of the United Kingdom within the meaning of article 1 when he was outside his base while serving in Iraq. There is nothing that I would wish to add on the first issue. The second issue in this appeal is whether the fresh inquest into Private Smiths death would have to comply with the procedural investigatory obligation guaranteed by article 2 of the Convention. At first sight this question is academic because the Secretary of State agrees that he will not submit to the new coroner in the fresh inquest that the scope of the investigation, or the nature of the verdict, should be less broad than would be appropriate if the inquest must satisfy the obligation of the United Kingdom under that article: see the Court of Appeals judgment [2009] 3 WLR 1099, para 62. This is on the assumption that, as Private Smith died on base, he was within the jurisdiction of the United Kingdom within the meaning of article 1 when he died and because the findings of the coroner at the first inquest indicate a possible breach of the positive obligation to establish processes to deal with the risk of heatstroke and hyperthermia. But, as Ms Rose QC for the respondent pointed out, a concession as to the scope of the inquest would not bind the coroner. The question whether the procedural obligation was triggered by Private Smiths death was argued before Collins J, in the Court of Appeal and before this Court on the basis that it raised an important issue of principle. Its importance is not limited to cases where members of the armed forces are serving in places such as Iraq and Afghanistan. It extends to cases where at the time of their death they were serving in the United Kingdom in Northern Ireland, for example or within the territory of another Council of Europe Member State. In the ideal world this would be an empty question. The coroner would have complete freedom to determine the scope of his own inquiry and to adapt the form and content of his verdict according to the needs of each case. That however is not how the scheme for the conduct of inquests has been designed in English law. As Lord Bingham of Cornhill explained in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 34 35, the scheme which has been enacted by and under the authority of Parliament must be respected, save to the extent that a change of interpretation is required to honour the international obligations of the United Kingdom under the Convention: see also R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796, para 27. The crucial difference is to be found in the way the word how in section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36(1)(b) of the Coroners Rules 1984 is to be interpreted. Tempting though it may be to depart from Middleton by declaring that there is really no material difference between the functions of the coroner and the jury in the two types of inquest as Lord Phillips has indicated, I think for all the reasons that were given in that case we should not do so. The temptation to do this, adopting what the sheriff may do when he is making his determination according to the Scottish model, was confronted and resisted in Middleton, and I think that we must follow the decision that was taken in that case. On the other hand I would not wish to limit the scope that is available to the coroner under rule 43 of the Coroners Rules 1984. How far he may go in pursuing lines of inquiry in order to determine whether he should make a report under that rule with a view to preventing the recurrence of similar fatalities must depend on his judgment as to what is appropriate in the circumstances. It is only in cases where the article 2 procedural duty applies, therefore, that the Middleton approach is available to the coroner. It will then be necessary for him to conduct an inquiry which is effective, as that expression was explained by the Grand Chamber in Ramsahai v The Netherlands (2007) 46 EHRR 983, paras 324 325; see also R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588, para 78, per Lord Rodger of Earlsferry. But that approach is not available in all cases. It arises only in the comparatively few cases where the states responsibility for the death is or may be engaged: R (Hurst) v London Northern District Coroner [2007] 2 AC 189, para 48 Lord Brown of Eaton under Heywood. In all other cases the proceedings must be conducted according to the regime for conducting inquests in England and Wales as summarised in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. Section 5 of the Coroners and Justice Act 2009 has retained the distinction between these two forms of inquest. It is only where necessary to avoid a breach of any of the Convention rights that it permits the Middleton approach: see section 5(2). The scheme which Parliament has enacted in section 5 of the 2009 Act is deceptively simple. In practice however it gives rise to a variety of problems to which the Courts attention was drawn by counsel. We cannot resolve them all in this case. But at the root of most, if not all, of them lies the problem of determining whether the case in hand is one which attracts the procedural obligation that is imposed by article 2. In broad terms, it is triggered by any death occurring in circumstances in which it appears that any one or more of the substantive obligations that article 2 imposes not to take life without justification, and to establish a framework of laws, precautions, procedures and means of enforcement which will to the greatest extent practicable protect life, has been, or may have been, violated in circumstances in which it appears that agents of the state are, or may be, in some way implicated: R (Middleton) v West Somerset Coroner [2004] 2 AC 182, paras 2 and 3. The procedural obligation depends on the existence of the substantive right. It cannot exist independently: R (Gentle) v Prime Minister [2008] AC 1356, para 6. Some situations in which the procedural obligation is triggered are now well recognised. The suicide of an individual while in the custody of the state is the prime example. It has been extended to the case where a prisoner attempted to commit suicide while in custody and suffered brain damage: R (L (A Patient)) v Secretary of State for Justice (Equality and Human Rights Commission intervening) [2009] AC 588. This is because it has been recognised that prisoners as a class present a particular risk of suicide and because those who have custody of them, as agents of the state, are or may be in some way implicated. A Middleton inquest is required in all these cases, because it is at least possible that the prison authorities failed to take the steps to protect the prisoners life that the substantive right requires. As Lord Rodger of Earlsferry said in Ls case, para 59, suicide is in this respect like any other violent death in custody. The procedural obligation extends to prisoners as a class irrespective of the particular circumstances in which the death occurred. The fact that they are under the care and control of the authorities by whom they are held gives rise to an automatic obligation to investigate the circumstances. The same is true of suicides committed by others subject to compulsory detention by a public authority, such as patients suffering from mental illness who have been detained under the Mental Health Acts: Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2009] AC 681. This approach has the merit of clarity. Everyone knows from the outset that the inquest in these cases must follow the guidance that was given in Middleton, paras 36 38. The issue before the Court is whether it is possible to achieve equal clarity in the case of an inquest into the death of a soldier. Soldiers who die while in military custody are, of course, in the same position as any other prisoner. Their case has the benefit of the substantive obligation, so the procedural obligation applies. So too does the case of members of the other armed services who die in such circumstances. The question is how far, if at all, the detainees approach can be applied to other situations which servicemen and servicewomen encounter in the service of their country, at home or abroad. Death may occur from natural causes as well as a result of neglect or injury. And fatal injuries may occur due to the mishandling of equipment during training or in other situations when personnel are not engaged in combat as well as in the face of the enemy. The conflicts in Iraq and Afghanistan have brought the issue into greater prominence. But the situation that we face today is in principle no different from that which members of the armed forces serving both at home and abroad have faced for many years. The single characteristic which currently unites all our service personnel is that they have volunteered for the branch of the service to which they belong. This applies to those who have made their profession in the armed services as well as those, like Private Smith, who chose to serve part time in reserve forces such as the Territorial Army. Mandatory military service no longer exists in this country. For this reason I would be reluctant to follow the guidance of the Strasbourg Court that is to be found in cases such as Chember v Russia, (Application No 7188/03) (unreported) 3 July 2008. The applicant in that case was called up for two years mandatory military service in the course of which he was subjected to ill treatment and harassment. The court was careful to stress in para 49 that many acts that would constitute degrading or inhuman treatment in respect of prisoners may not reach the threshold of ill treatment when they occur in the armed forces, provided they contribute to the specific mission of the armed forces in which they form part, for example training for battle field conditions: Engel v The Netherlands (No 1) (1976) 1 EHRR 647. But the description which it gave in para 50 of the duty that the State owes to persons performing military service was directed specifically to cases where it decides to call up ordinary citizens to perform military service. That description cannot be applied to those who serve in the armed forces as volunteers. It is true, of course, that those who join the armed services as volunteers accept the obligation to comply with military discipline. They are trained to obey orders, and they are subject to sanctions if they do not do so. Private Smith did not choose to go to Iraq. He received a notice of compulsory call up. But it was a condition of the service for which he volunteered that he would obey instructions of this kind. I do not think that his situation can be distinguished from that of any other member of the armed services who is deployed on active service. There is a close analogy with men and women who volunteer for service in the emergency services. Fire fighters, in particular, may face situations of great danger where their lives are at risk. But they follow instructions because that is a necessary part of the job they have chosen to do. It is tempting to select examples of cases where the cause of a soldiers death may be attributed to failures on the part of the State and to conclude that this fact in itself gives rise to the need for a Middleton inquest. But I would resist this temptation. The examples that Lord Rodger gives illustrate the difficulty. He says that he would apply the reasoning as to a prisoner committing suicide to a raw recruit to the armed forces who committed suicide during initial military training in barracks in this country: para 118. We have no evidence that raw recruits to the armed services are in this respect especially vulnerable, but this reference calls to mind the tragic cases of the four young soldiers who died at Deep Cut Barracks between 1995 and 2002 which according to the Ministry of Defence were all cases of suicide. Those soldiers were still in training, but they were not raw recruits. The training they were undergoing at Deep Cut was a course of further training, additional to the initial training which they had received in an Army Training Regiment. Where does one draw the line between the raw recruit and the more seasoned soldier who is still in training? And what about schoolchildren who commit suicide as a result of bullying from which, as they must attend school, there is no escape? Or students who do so because of the pressures they encounter in colleges or universities? To extend the substantive article 2 obligation to volunteers while they are undergoing basic or advanced training would go further than has so far been indicated as necessary by Strasbourg. Then there is the example that Lord Rodger gives of deaths as a result of friendly fire from other British forces: para 126. Trooper David Clarke, the son of the second claimant in R (Gentle) v Prime Minister [2008] AC 1356, was killed by friendly fire while on armed service with the Queens Royal Lancers in Iraq. He was driving a Challenger 2 tank when it was fired on by another Challenger 2 tank from a different unit whose crew had mistaken it for an enemy vehicle. That was an example of friendly fire by British forces. But a number of other servicemen, including several soldiers serving with the Queens Own Highlanders, were killed during the same campaign when their armoured vehicle was fired on by a US Black Hawk Helicopter. Are cases of accidental deaths due to friendly fire by allied forces to be distinguished from those which are due to accidents caused by British forces? And why should deaths due to friendly fire be distinguished from deaths due to injuries sustained as a result of the actions of opposing forces that could also have been avoided if mistakes had not been made by the soldiers themselves or by their commanders? The risk of death due to friendly fire in the confusion and heat of battle is one of the risks that a soldier must face as part of the mission for which he has volunteered. The same is true of the risk of death while in training due, for example, to mistakes made while handling weapons or other equipment or to exposure to the elements. The Court of Appeal applied the principle that extends the protection of article 2 to detained mental patients to the case of soldiers such as Private Smith who die of heatstroke while on active service in Iraq: [2009] 3 WLR 1099, paras 104 105. The essence of its reasoning is to be found in these sentences taken from para 105: [The soldiers] are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. On this basis it saw no reason why they should not have the same protection as is afforded by article 2 to a conscript. I think that this reasoning goes further than the Strasbourg Court has gone in the case of conscripts, as its reference in Chember v Russia (Application No 7188/03) 3 July 2008, para 49, to risks inherent in the specific mission of the armed forces shows. But it seems to me to be objectionable on other grounds. Members of our armed services are not conscripts. They have chosen to accept the demands of military discipline. Moreover, if the fact that they must obey orders is to be treated as the criterion, there is no logical stopping place. Every situation where death occurs in circumstances where they were obeying orders, from the training ground to battle conditions, would have to be treated in the same way. I would reject the analogy with those who are in the custody of the state. The volunteer soldiers duty to obey orders is not comparable with the state of the detainee who is held against his will in the States custody. In my opinion the substantive obligation under article 2 does not extend automatically to all service personnel in a volunteer army while they are on active service at home or within the article 1 jurisdiction overseas. Like Lord Mance, I regard the proposition that all deaths of military personnel on active service require to be investigated by a Middleton type inquiry as going too far: para 214. As I said in R (Gentle) v Prime Minister [2008] AC 1356, para 19, the guarantee in the first sentence of article 2(1) is not violated simply by deploying servicemen and women on active service overseas as part of an organised military force which is properly equipped and capable of defending itself, even though the risk of their being killed is inherent in what they are being asked to do. But one must not overlook the fact that there have been many cases where the death of service personnel indicates a systemic or operational failing on the part of the State. These may range from a failure to provide them with the equipment which is needed to protect life to mistakes made in the way they were deployed due to bad planning or inadequate appreciation of the risks that had to be faced. These are cases where the investigator should, as article 2 requires, take all reasonable steps to secure the evidence relating to the incident, to find out, if possible, what caused the death, and to identify the defects in the system which brought it about and any other factors that may be relevant: see R (Middleton) v West Somerset Coroner [2004] 2 AC 182, para 36. Private Smiths death, which occurred on base, seems to me to fall into this category. This was a place over which the armed forces had exclusive control, so the jurisdictional requirement was satisfied. And all the signs are that this was a death which might have been prevented if proper precautions had been taken. There is a sufficient indication of a systemic breach in an area that was within its jurisdiction for the purposes of article 1 to engage the responsibility of the State to carry out an effective investigation into the circumstances. There is something that ought to be inquired into, if only to ensure that tragedies of this or a similar kind do not happen again. I would hold that this is enough to trigger the article 2 procedural obligation so as to require the coroner to conduct a Middleton inquiry in his case. I recognise that the case by case approach which I favour, coupled with the lack of definition in this area of the law, creates a very real problem for the parties as well as for coroners. It risks creating satellite litigation as decisions as to whether a case falls on one side of the boundary are opened up for challenge, resulting in delays and increased costs. The solution to this highly unsatisfactory situation lies in a reform of the law which restricts inquiries in England and Wales which are of that kind to cases where there are grounds for thinking that the substantive obligation under article 2 has been violated. It does not lie in extending the potential reach of article 2 to a broadly defined category of cases which may well deserve sympathy but which lie outside the well defined circumstances in which the positive obligation has hitherto been held to apply. The balance of advantage until the law is reformed lies, I would suggest, in holding the line at cases where there are grounds for thinking that there was a failure by the State in fulfilling its responsibility to protect life and not extending it to cases which, although involving the element of compulsion that is inherent in service life, are truly outside that category. I would allow the appeal against the Court of Appeals order on the first issue. I would dismiss the appeal on the second issue. LORD RODGER The present appeal arises out of the death of Private Jason Smith on 13 August 2003, while serving in Iraq. He died of heat stroke. On the day in question the effects were first noticed when Private Smith was seen lying on the floor in the Stadium at Al Amarah where his accommodation was. He was taken to the medical facility at Camp Abu Naji where he died shortly afterwards. Because he died at the Camp, which was the centre of British operations in the area, the Secretary of State concedes that he died within the jurisdiction of the United Kingdom for purposes of article 1 of the European Convention on Human Rights and Fundamental Freedoms (the Convention). The Secretary of State further concedes that the circumstances of his death are such as to call for an independent inquiry under article 2 of the Convention. Despite these concessions, the Secretary of State asks this Court to decide points relating to the United Kingdoms jurisdiction for purposes of article 1 and to the circumstances in which an inquest which complies with the requirements in R (Middleton) v West Somerset Coroner [2004] 2 AC 182 (a Middleton inquest) has to be held. The precise basis and extent of the Secretary of States concession on the first point are not altogether clear to me. So far as the second point is concerned, the parties appeared to agree that coroners and lawyers found it difficult to know whether, in a case involving the death of a soldier on active service overseas, any inquest should be a Middleton inquest, or whether it should start a Jamieson inquest (one whose more limited scope is described in R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1), but evolve into a Middleton inquest if the coroners investigation seemed to require it. For the reasons given by Lord Collins, to which I could not possibly add anything of value, I would allow the appeal on the first issue. It follows that, leaving aside the position when they are on a United Kingdom base, soldiers on active service overseas are not within the jurisdiction of the United Kingdom for purposes of article 1 of the Convention. It follows also that their deaths will not give rise to any requirement to carry out an article 2 investigation. Nevertheless, the Secretary of State asks for a decision on the point. As counsel for the respondent pointed out, an issue could certainly arise in relation to a soldier who had been killed in combat in this country Northern Ireland providing recent examples. Unfortunately, counsels submissions left me, at least, unclear about how exactly a decision one way or the other, as to the form of the inquest, would affect such practical matters as how the coroner or parties prepared for the inquest or what would happen if the coroner decided, half way through, that it should become a Middleton inquest. There is, therefore, a limit to the guidance that this Court can usefully give in a case where the point is moot and in which we have not been told of any particular practical problems that have arisen. Ms Rose QC and Mr Beloff QC submitted, however, that the Court should lay down and it would have to be a matter of law that all inquests into the death of a soldier on active service should be Middleton inquests. Then everyone would know where they stood and such matters as legal aid, representation of relatives and the form of any eventual verdict would be clear from the outset. The submission is superficially attractive and, doubtless for that reason, a somewhat similar argument has been tried before. In R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214, Lord Brown of Eaton under Heywood dealt with it in this way: Middleton clearly accepted that Jamieson was correctly decided. Were it otherwise, the House could simply have overruled it without recourse to the Human Rights Act 1998 at all, let alone section 3. It is plain that the House was not intending the Middleton approach thereafter to apply in all cases. In the first place, an article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged. Secondly, even where the obligation does arise, it will often be satisfied without resort to a Middleton inquestin some cases by criminal proceedings, in particular where a defendant pleads not guilty and the trial involves a full exploration of the facts surrounding the death (para 30 of the committees opinion delivered by Lord Bingham of Cornhill); in others, like McCann, where short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest at para 31 of the opinion. All this is clear from the committee's opinion which in terms recognises at para 36 that only sometimes will a change of approach be called for. The key point is that the decision in Middleton involved using section 3 of the Human Rights Act 1998 to place an extended construction on section 11(5)(b)(ii) of the Coroners Act 1988 and rule 36 of the Coroners Rules 1984 (SI 1984/552). This was justified only because the extended construction was necessary in order to meet the requirements of article 2. So counsels submission really implied that, as a class, the deaths of British soldiers on active service in, say, Iraq or Afghanistan, would trigger the article 2 investigative obligation. I would reject that approach. In R (L(A Patient)) v Secretary of State for Justice [2009] AC 588 a young man had tried to hang himself in Feltham Young Offender Institution. The Secretary of State argued that, since the obligation on the prison authorities to protect a prisoner from himself is not absolute and so only arises in particular circumstances, a suicide can occur without there having been any breach of the authorities article 2 obligation to protect him. So there did not need to be an independent investigation unless there was some positive reason to believe that the authorities had indeed been in breach of their obligation to protect the prisoner. I rejected that argument in these words, at p 619: 59. That argument is mistaken. Whenever a prisoner kills himself, it is at least possible that the prison authorities, who are responsible for the prisoner, have failed, either in their obligation to take general measures to diminish the opportunities for prisoners to harm themselves, or in their operational obligation to try to prevent the particular prisoner from committing suicide. Given the closed nature of the prison world, without an independent investigation you might never know. So there must be an investigation of that kind to find out whether something did indeed go wrong. In this respect a suicide is like any other violent death in custody. In affirming the need for an effective form of investigation in a case involving the suicide of a man in police custody, the European court held that such an investigation should be held when a resort to force has resulted in a persons death: Akdogdu v Turkey, para 52. 60. In R (Middleton) v West Somerset Coroner [2004] 2 AC 182, another case of a suicide in custody, at p 191, para 3, Lord Bingham of Cornhill summarised the jurisprudence of the European court as imposing an obligation to hold an independent investigation if it appears that one or other of the substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way, implicated. Mr Giffin suggested that Lord Binghams formulation was inconsistent with there being a requirement for an independent investigation in all cases of suicide in custody. I do not agree. In summarising the case law, Lord Bingham was recognising that, where the circumstances of a prisoners death in custody indicate that the substantive obligations of the state may have been violated, any violation, whether due to a systemic or operational failure, will necessarily have involved members of the prison service in one capacity or another. An independent investigation is therefore required to see whether there was, in fact, a violation. The starting point for the reasoning in this passage is that the prison authorities are under both an obligation to take general measures to diminish the opportunities for prisoners to harm themselves and an operational obligation, in certain limited circumstances, to try to prevent a particular prisoner from committing suicide. The authorities are under these obligations because persons in custody are in a vulnerable position and the authorities are under a duty to protect them: Edwards v United Kingdom (2002) 35 EHRR 487, 507, para 56. Therefore the mere fact that a prisoner has committed suicide indicates that there may have been a failure on the part of the prison authorities to perform their article 2 obligations to prevent those in custody from doing so. I would apply precisely the same reasoning if, say, a raw recruit to the armed forces committed suicide during initial military training. It is obvious and past experience shows that recruits, who are usually very young and away from their families and friends for the first time, may be unable to cope with the stresses of military discipline and training. In these circumstances I would regard such recruits as vulnerable individuals for whom the military authorities have undertaken responsibility. So the authorities must have staff trained, and structures in place, to deal with the potential problems which may, quite predictably, arise. Therefore, if a suicide occurred in such circumstances, this would suggest that there might have been a failure on the part of the authorities to discharge their obligation to protect the recruits. There would need to be an independent inquiry especially since recruits are trained in a closed environment. I would take much the same view of Private Smiths death in this case. It may well be that, in the circumstances in Iraq at the time, a soldier could die of heatstroke without there having been any violation of the Armys obligations under article 2. Nevertheless, the likelihood of extreme heat and its possible effects on soldiers were known to the military authorities. There was an obvious need to take appropriate precautions. So, where, as here, a soldier suffers so badly from heatstroke, while in his living accommodation, that he dies shortly afterwards, it is at least possible that the Army authorities failed in some aspect of their article 2 obligation to protect him. For that reason I am satisfied that, given his concession on jurisdiction, the Secretary of State was correct to concede the need for a Middleton inquest into Private Smiths death. I would, however, take an entirely different view of the death of a trained soldier in action e g, when a roadside bomb blows up the vehicle in which he is patrolling, or when his observation post is destroyed by a mortar bomb. The fact that the soldier was killed in these circumstances raises no prima facie case for saying that the United Kingdom army authorities have failed in their obligation to protect him and that there has, in consequence, been a breach of his article 2 Convention rights. In the first place, even if an active service unit is, in some ways a closed world, it would be quite wrong to construct any argument around the idea that ordinary members of the forces are vulnerable in the same way as prisoners or detained patients or, even, conscripts doing military national service in Russia or Turkey. I have already accepted that, in the initial stages of their training, recruits to the United Kingdom forces may indeed be vulnerable in this sense. But those who pass through training and are accepted into the forces are often the reverse of vulnerable: their training and discipline make them far more self reliant and resilient than most members of the population and, so far from being isolated, they form part of a group whose members are supportive of one another. Even more importantly, any suggestion that the death of a soldier in combat conditions points to some breach by the United Kingdom of his article 2 right to life is not only to mistake, but much worse to devalue, what our soldiers do. It is not just that their job involves being exposed to the risk of death or injury. That is true of many jobs, from steeplejacks to firemen, from test pilots to divers. Uniquely, the job of members of the armed forces involves them being deployed in situations where, as they well know, opposing forces will actually be making a determined effort, and using all their resources, to kill or injure them. While steps can be taken, by training and by providing suitable armour, to give our troops some measure of protection against these hostile attacks, that protection can never be complete. Deaths and injuries are inevitable. Indeed it is precisely because, in combat, our troops are inevitably exposed to these great dangers that they deserve and enjoy the admiration of the community. The long established exemption from inheritance tax of the estates of those who die on active service is an acknowledgment of the fact that members of the armed forces can be called upon to risk death in this way in the defence of what the government perceives to be the national interest. I have deliberately referred to our soldiers and our troops because it may well be that not all Council of Europe countries look on their armed forces in the same way. For historical or cultural reasons, some may be reluctant to see their armed forces engage in combat or carry out dangerous peace keeping operations. So they may have a very different attitude to the risks to which their forces should be exposed. Correspondingly, members of their forces may not attract the level of public esteem that members of our forces, who are regularly expected to face very real threats of death or injury, enjoy. At present our troops are exposed to great dangers in Afghanistan. Inevitably, many have been killed and many more have been wounded. To suggest that these deaths and injuries can always, or even usually, be seen as the result of some failure to protect the soldiers, whether by their immediate companions or by more senior officers or generals or ministers, is to depreciate the bravery of the men and women who face these dangers. They are brave precisely because they do the job, knowing full well that, however much is done to protect them, they are going to be up against opposing forces who are intent on killing or injuring them and who are sometimes going to succeed. This is the background to any inquest into the death of a soldier on active service. In most cases the starting point is that the soldier died as a result of a deliberate attack by opposing forces by, say, a mortar bomb, or a roadside bomb, or by sniper fire. Usually, at least, that will also be the end point of the coroners investigation because it will be an adequate description not only of how the soldier was killed, but also of the circumstances in which he was killed. Of course, it will often perhaps even usually be possible to say that the death might well not have occurred if the soldier had not been ordered to carry out the particular patrol, or if he had been in a vehicle with thicker armour plating, or if the observation post had been better protected. But, even if that is correct, by itself, it does not point to any failure by the relevant authorities to do their best to protect the soldiers lives. It would only do so if contrary to the very essence of active military service the authorities could normally be expected to ensure that our troops would not be killed or injured by opposing forces. On the contrary, in order to achieve a legitimate peacekeeping objective, a commander may have to order his men to carry out an operation when he knows that they are exhausted or that their equipment is not in the best condition. Indeed the European Convention on Human Rights owes its very existence to countless individuals who carried out operations in just such circumstances. For these reasons, I am satisfied that, where a serviceman or woman has been killed by opposing forces in the course of military operations, the coroner will usually have no basis for considering, at the outset, that there has been a violation of any substantive obligation under article 2. So a Middleton inquest will not be called for and indeed it would not be lawful, in such circumstances, to return the wider verdict which is required where a potential violation of article 2 is under consideration. Of course, as his investigation proceeds, the coroner may uncover new information which does point to a possible violation of article 2. To take an extreme example, it may emerge from the evidence that the soldier actually died as a result of friendly fire from other British forces. At that point, the legal position will change because there will be reason to believe that the military authorities may indeed have failed in their article 2 duty to protect the soldiers life. So the coroner will conduct the inquest in the manner required to fulfil the United Kingdoms investigatory obligation under article 2. But the coroner is not concerned with broad political decisions which may seem to have a bearing, and may indeed actually have a bearing, on what happened. This is clear from Nachova v Bulgaria (2005) 42 EHRR 933, 957, para 110, where the Grand Chamber described the essential purpose of an article 2 investigation as being to secure the effective implementation of the domestic laws safeguarding the right to life and, in those cases involving state agents or bodies, to ensure their accountability for deaths occurring under their responsibility. Once it is established, say, that a soldier died because the blast from a roadside bomb penetrated the armour plating on his vehicle, it may well be inferred that he would not have died if the plating had been stronger. And that simple fact may be worth pointing out as a possible guide for the future. But questions, say, as to whether it would have been feasible to fit stronger protection, or as to why the particular vehicles were used in the operation or campaign, or as to why those vehicles, as opposed to vehicles with stronger protection, were originally purchased by the Ministry of Defence, or as to whether it would have been better to have more helicopters available etc, all raise issues which are essentially political rather than legal. That being so, a curious aspect of counsels submissions before this Court was the complete absence of any reference to Parliament as the forum in which such matters should be raised and debated and in which ministers should be held responsible. Of course, in consequence of pressure brought to bear by Parliament, the government might set up an independent inquiry with wide terms of reference to look into all aspects of a situation, including the political aspects. But we are concerned with the scope of a coroners inquest whose function is different. Many of the issues about the deaths of soldiers which are, understandably, of the greatest concern to their relatives are indeed of this much broader nature. In short, they raise questions of policy, not of legality, and so would fall outside the scope of any article 2 investigation which a coroner might be obliged to carry out. For these reasons I agree that the contentions advanced by Ms Rose and Mr Beloff should be rejected. LORD WALKER In common with other members of this Court I feel some disquiet about our engaging in protracted deliberation and the preparation of lengthy judgments on two issues which (as all parties agree) do not actually affect what is to happen in consequence of the tragic death of Pte Smith. It is not the function of this Court to deliver advisory opinions, and in this case we may be going some way beyond what would be regarded as a proper exercise of judicial power in a country with a written constitution providing for the separation of powers (for instance the position in Australia is very fully discussed in a paper A Human Rights Act, the Courts and the Constitution presented to the Australian Human Rights Commission by the Hon Michael McHugh AC on 5 March 2009). The fact that every death of a soldier in Afghanistan brings tragedy to his or her family, and sorrow to the whole nation, may not be a sufficient reason for stretching our jurisdiction to the limits. That is underlined by the second issue, as to coroners inquests, which has led to the submission of further detailed evidence which, informative as it is, has no possible bearing on the second inquest which is to be held on the death of Pte Smith. On the two issues argued before the Court I respectfully agree with Lord Collins on the first issue, and with Lord Phillips and Lord Rodger on the second issue. I would particularly associate myself with paras 118 127 of Lord Rodgers judgment. LADY HALE Mrs Smith must wonder why she is in this court. She did not ask to be here. All she wants is a proper inquiry, in which she can play a proper part, into how it was that her son Jason came to die of heatstroke while serving with the British army in Iraq. She wants to understand what happened to him, but she also wants others to understand it too, so that anything which reasonably can be done will be done to prevent other families suffering as hers has suffered. She had to begin these proceedings because of shortcomings in the first inquest, which are now conceded both by the Coroner and by the Ministry of Defence. The Ministry failed to produce the principal board of inquiry report into Private Smiths death, insisted upon wholesale redaction of the documents which were disclosed, and the coroner wrongly held that he had no power to order disclosure if the Ministry would not agree. As the judge commented, it has seemed to the family that the Army was concerned to cover up any shortcomings and to protect its reputation. That may not be a correct conclusion, but it is not surprising that it has been reached (para 5). But all that is now behind her. A new inquest is to be held and those points are conceded. More than that, Mrs Smith wished to establish that her son had died within the jurisdiction of the United Kingdom, so that he and she were covered by the guarantees in article 2 of the European Convention on Human Rights. This imposes upon the state a duty, not only to avoid taking life, but also to take positive steps to protect the right to life in a variety of ways. One of these is to hold a proper inquiry, in which the family of the deceased may play a proper part, if it appears that the state may have failed in its responsibility to protect life. But both of these points have also been conceded. The Ministry of Defence accept that Private Smith was within the jurisdiction of the United Kingdom when he died. They will also not object to an inquest which examines, not only the precise cause of his death, but also the circumstances in which it took place. This is as far as they or anyone else can go, because it will be for the coroner to decide, on the basis of that inquiry, what sort of verdict should be delivered. But if the evidence were to warrant it, the verdict could clearly be one which identified any breach that there may have been of the United Kingdoms obligations under article 2. That is all that is needed to decide this case. The Ministry of Defence have appealed to this court because both the trial judge and the Court of Appeal accepted the invitation of both parties to decide more than they needed to decide. Of course they meant to be helpful. But because the Ministry of Defence did not like what they said, Mrs Smith has had to wait for more than two years for the case to be over so that the fresh inquest can be arranged. Perhaps worse, it is not at all clear what this court is doing. The trial judge ordered that the first inquisition and verdict be quashed and a new inquest held that complies with the procedural obligations implicit in Article 2 of the European Convention on Human Rights, as set out in the Courts judgment. (He also dismissed a competing claim by the Ministry of Defence but there was no appeal against that.) The Court of Appeal dismissed the Ministrys appeal. So the judges order stands. As I understand it, the most we might be asked to do is to delete the words as set out in the Courts judgment. He made no declarations as to the rights of the parties so we are not asked to change those. So we are merely making observations on two extremely important and interesting questions but we are not deciding anything. In those circumstances I doubt whether any of the important and interesting things which are said about those questions in this court can be part of the essential grounds for our decision and thus binding upon other courts in future. In the words of Sir Frederick Pollock, cited by Lord Denning in Close v Steel Company of Wales Ltd [1962] AC 367, at 388 389: Judicial authority belongs not to the exact words used in this or that judgment, nor even to all the reasons given, but only to the principles accepted and applied as necessary grounds of the decision. Lest it be thought that Lord Denning took an unusual view of the circumstances in which he was bound by previous authority, he also referred to Lord Selborne LC, in Caledonian Railway Company v Walkers Trustees (1882) 7 App Cas 259, at 275: A judgment which is right, and consistent with sound principles, upon the facts and circumstances of the case which the House had to decide, need not be construed as laying down a rule for a substantially different state of facts and circumstances, though some propositions, wider than the case itself required, may appear to have received countenance from those who then advised the House. Pithier still was the Earl of Halsbury LC in Quinn v Leathem [1901] AC 495, at 506: . a case is only an authority for what it actually decides. Technically, therefore, I believe that our views are not binding, but they are of course persuasive. So it is only polite to the powerful arguments advanced by counsel, and to the patience with which Mrs Smith has listened to them, to indicate where I currently stand on each of the two broader issues. On the jurisdiction issue, I remain of the view to which I was inclined in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, that British soldiers serving in Iraq were within the jurisdiction of the United Kingdom when they were killed, in one case by friendly fire and in the other by a road side bomb. I am quite clear that this was not part of the principle, or essential ground, upon which the House of Lords decided the case: this was that taking care to discover whether or not the war was legal in international law had nothing to do with the duty in article 2 to protect life. This can easily be tested. It would have made no difference to the decision on the issue in the case where the soldiers deaths had taken place: whether they were clearly within the jurisdiction of the United Kingdom or whether they were not. The House did hear some argument on the point, but nothing as full as the argument which this court has heard. Although I am sorry to disagree with colleagues whose opinions are worthy of the deepest respect, I agree with the opinions of Lord Mance and Lord Kerr, and for the very full reasons which they give, and there is nothing which I can usefully add. On the second issue, I agree that this is a question for a coroner to determine on the evidence that emerges at the inquest, but I also agree with Lord Phillips and Lord Rodger that we already know enough to raise the serious possibility that the United Kingdom may in some way have been in breach of its obligations under article 2. So the scope of the inquiry must be wide enough to look into this and, depending on the conclusions drawn from the evidence, the verdict must be able to reflect this. I do not believe that we are either allowing or dismissing an appeal on either issue, but if we are I would dismiss it on both. LORD BROWN Are our armed services abroad, in Iraq, Afghanistan or wherever else they may be called upon to fight, within the United Kingdoms jurisdiction within the meaning of article 1 of the European Convention on Human Rights? That is the critical first issue for decision on this appeal. If they are, then the United Kingdom is required to secure to them all the Convention rights and freedoms. Some will say that this is no less than they deserve. They are brave men and women, undoubtedly entitled to these rights and freedoms whilst serving (sometimes, as recently in Northern Ireland, on active service) at home. Why should they not enjoy the same rights when, whether they like it or not, they are called upon to face dangers abroad? When abroad, they are, after all, still subject to UK military law and, indeed, remain generally under the legislative, judicial and executive authority of the UK. Others, however, will say that to accord Convention rights and freedoms to our services whilst engaged in armed combat with hostile forces abroad makes no sense at all. It could serve only to inhibit decision making in the field and to compromise our services fighting power. For my part I can readily see the force of both arguments and do not pretend to have found this an easy case to decide. In the end, however, I have concluded that, save in an exceptional case like that of Private Smith himself whose death resulted from his treatment on base, Convention rights do not generally attach to our armed forces serving abroad. Having regard to the number and length of other judgments in the case, my own reasoning will be brief. Sometimes less is more. I take as my starting point the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2008] AC 153 where I sought to analyse the existing Strasbourg jurisprudence on the reach of article 1. Nothing that I have since heard or read has persuaded me that that analysis is wrong. It was known, of course, at the time this case was argued before us, that the application in Al Skeini was to be heard in Strasbourg on 9 June 2010, with the judgment of the Grand Chamber expected some 3 6 months later, and, obviously, if the application succeeds, it is likely to transform our understanding of the scope of article 1 in cases of this sort. Meanwhile, however, Al Skeini must be assumed to be correct and, in turn, the decision of the Grand Chamber in Bankovic v Belgium (2001) 11 EHRC 435 must be regarded as Strasbourgs ruling judgment on the point. There has been some suggestion (see, for example, paras 29 and 30 of Lord Phillips judgment) that, since Bankovic, a wider concept of article 1 jurisdiction based upon state agent authority has been gaining ground in Strasbourg. In Al Skeini (at paras 124 131) I dealt at length with one post Bankovic Strasbourg decision said to support such an approach Issa v Turkey (Merits) (2004) 41 EHRR 567 and concluded that it should not be understood to detract in any way from the clearly restrictive approach to article 1 jurisdiction adopted in Bankovic. Reference is now made to more recent Strasbourg decisions, in particular Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and Medvedyev v France (Application No 3394/03) (unreported) 29 March 2010. To my mind, however, neither casts any real doubt on the Bankovic/Al Skeini analysis. In Al Saadoon the Court at para 62 cited para 132 of my own judgment in Al Skeini recognising the UKs jurisdiction over Mr Mousa essentially by analogy with the extra territorial exception made for embassies (an analogy recognised too in Hess v United Kingdom (1975) 2 DR 72, a Commission decision in the context of a foreign prison which had itself referred to the embassy case of X v Federal Republic of Germany) and, at paras 88 89, concluded that: . given the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question, the individuals detained there, including the applicant, were within the United Kingdoms jurisdiction (see Hess v United Kingdom . ). This conclusion is, moreover, consistent with the dicta of the House of Lords in Al Skeini . (see para 62 above). In the Courts view, the applicants remained within the United Kingdoms jurisdiction until their physical transfer to the custody of the Iraqi authorities on 31 December 2008. It seems to me clear that the Court was there adopting, rather than doubting, the Al Skeini analysis. The decision of the Grand Chamber in Medvedyev is sufficiently described at para 30 of Lord Phillips judgment and paras 180 182 of Lord Mances judgment. I cannot see how it supports an argument for article 1 jurisdiction generally in respect of a states armed services abroad. All that said, I recognise that whilst there is nothing in Al Skeini (or, indeed, Bankovic) which supports the respondents argument on the present appeal, neither is there anything in the cases wholly inconsistent with it. True, as para 61 of Bankovic stated, article 1 reflects an essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case. And true it is too that the particular basis of exceptional jurisdiction being contended for here has not previously been recognised by the Court, the Commissions express reference to armed forces remaining under a states article 1 jurisdiction when abroad (for example in their 1975 admissibility decision in Cyprus v Turkey 2 DR 125 cited at para 49 of Lord Phillips judgment) being conspicuously omitted from more recent such formulations. Nevertheless, as I recognised at the outset, our armed forces abroad are subject not only to UK military law but also to the UKs general criminal and civil law and (as the Court of Appeal [2009] 3 WLR 1099 pointed out at para 29 of its judgment): As a matter of international law, no infringement of the sovereignty of the host state is involved in the United Kingdom exercising jurisdiction over its soldiers serving abroad. Plainly, therefore, it can respectably be argued that special justification exists for accepting an extra territorial basis of article 1 jurisdiction in their particular case. Arguably, moreover, this would eliminate at a stroke various apparent anomalies otherwise resulting from the position contended for by the Secretary of State for example, Convention rights attaching to a soldier in, say, a tented desert base camp (or military ambulance) but not when out with a patrol group, or, indeed, to a soldier like Private Smith who dies on base but not perhaps if his hyperthermia had resulted from inadequate care and water off base. The two principal reasons why for my part I would reject the respondents argument are these. First, because, if our armed forces abroad are within the reach of the Convention but, as Al Skeini decides, the local population are not, those responsible for the planning, control and execution of military operations will owe article 2 (and article 3) duties to our servicemen but not to the civilians whose safety is also imperilled by such operations. That would seem to me an odd and unsatisfactory situation (not to mention a situation unlikely to win the hearts and minds of the local population) and to sit uneasily with the growing Strasbourg case law on internal armed conflict which, it should be noted, has not hitherto been suggested to extend also to international armed conflict situations. Cases like Ergi v Turkey) (1998) 32 EHRR 388 (extending the principles established in McCann v United Kingdom (1995) 21 EHRR 97 to situations of armed conflict), Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) (Isayeva I) and Isayeva v Russia (Application No 57950/00) (Isayeva II) (decisions of 24 February 2005) show, in the context respectively of Turkish army operations against the PKK in Turkey and Russian army operations against Chechnyan separatist fighters in Chechnya, the ECtHR closely scrutinising the planning, control and execution of military operations and asking whether all this has been done in such a way as to minimise, to the greatest extent possible, recourse to lethal force. The exigencies of armed conflict notwithstanding, Strasbourg requires the state to have taken all feasible precautions to avoid or at least minimise incidental loss of life. In all three cases substantive breaches of article 2 were found established. In Isayeva I, for instance, the Court criticised the failure of the operational command to timeously communicate the fact that civilians may have been in the vicinity of the forces on active deployment, the absence of provision of forward air controllers to direct the military aircraft participating in the attack, and the deployment of missiles with a blast radius of between 300 to 800 metres which the Court regarded as disproportionate weaponry; in Isayeva II it criticised the Russian militarys failure to adequately anticipate the arrival of Chechnyan fighters, the absence of any preemptive measures to warn or evacuate the populace, the failure to accurately quantify the operational risk of deploying aircraft armed with heavy combat weapons, and the decision to utilise what again the Court regarded as disproportionate and indiscriminate weaponry. As can be seen, Strasbourgs concern in these cases is essentially for the safety of civilians caught up in the conflict conflict, of course, occurring within the legal space (espace juridique) of the respective contracting states. Assuming Al Skeini is right, such civilians have no article 2 rights if they are outside the Council of Europe area. It is, however, the respondents case that the soldiers do. Is it really to be suggested that even outside the area of the Council of Europe Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk (risk, that is, which is disproportionate to the objective sought)? May Strasbourg say that a different strategy or tactic should have been adopted perhaps the use of airpower or longer range weaponry to minimise the risk to ground troops notwithstanding that this might lead to higher civilian casualties? Such problems would to my mind be inescapable were Strasbourg to find armed forces abroad within the reach of article 1 and then adopt with regard to their article 2 rights the approach hitherto taken in situations of internal armed conflict. My second principal reason for not holding the UKs armed forces abroad to be within the states article 1 jurisdiction is that this would be to go further than the ECtHR has yet gone, to construe article 1 as reaching further than the existing Strasbourg jurisprudence clearly shows it to reach. As the ECtHR itself pointed out in Bankovic (para 65), The scope of article 1 . is determinative of the very scope of the contracting parties positive obligations and, as such, of the scope and reach of the entire Convention system of human rights protection. Article 1 is in this respect to be contrasted with the Conventions substantive provisions and with the competence of the Convention organs, to both of which (as the Court had noted at para 64) the living instrument approach applies. It was for these reasons that all of us in Al Skeini decided that it was for the ECtHR to give the definitive interpretation of article 1 and that domestic courts should not construe it as having any wider reach than that established by Strasbourgs existing jurisprudence. The first five appellants there failed because, as Lady Hale put it (at para 91), she did not think that Strasbourg would inevitably hold that the deceased . were within the jurisdiction of the UK when they met their deaths. That is similarly my conclusion in the present case not, of course, with regard to Private Smith himself whose death, it is conceded, occurred in circumstances which did fall within the United Kingdoms jurisdiction, but rather with regard to our armed forces generally whilst serving abroad. For these reasons, together with those given by Lord Phillips and Lord Collins, I would accept the appellants argument upon the first issue. The second issue before us, although ostensibly raised with regard to Pte Smiths death, in reality invites our ruling as to which deaths amongst the UKs armed forces abroad require inquests that comply with the article 2 investigatory obligation. Plainly Pte Smiths does. Equally plainly, if the majority of us are right on the first issue, that would not be so in respect of most of our armed forces abroad (at any rate when not serving within the territory of another Council of Europe state). If, however, the majority of us are wrong on the jurisdiction issue in respect of our forces in, for example, Iraq and Afghanistan, and in any event with regard to our armed forces on, for example, active service in Northern Ireland, together with isolated cases such as that of Pte Smith, then I am in full agreement with Lord Phillips judgment on this issue and there is little that I wish to add. I agree that the obligation to hold an article 2 investigation arises only when there is ground for suspicion that the State may have breached a substantive obligation imposed by article 2 (Lord Phillips at para 84) which would certainly not ordinarily be the case where a soldier dies on active service abroad. I agree also with Lord Rodgers judgment on this point. As I earlier observed in R (Hurst) v London Northern District Coroner [2007] 2 AC 189, 214 (para 48): An article 2 investigative obligation only arises in the comparatively few cases where the states responsibility is or may be engaged. I agree also with Lord Phillips judgment at para 81 that an inquest will not always be the appropriate vehicle for discharging an article 2 investigatory obligation although I note what was said in the considered opinion of the Committee delivered by Lord Bingham in R (Middleton) v West Somerset Coroner [2004] 2 AC 182, 206 (para 47) that: in the absence of full criminal proceedings, and unless otherwise notified, a coroner should assume that his inquest is the means by which the state will discharge its procedural investigative obligation under article 2. I further agree with Lord Phillips that in practice the only real difference between a Jamieson inquest (R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1) and a Middleton inquest is likely to be with regard to its verdict and findings, rather than its inquisitorial scope. As I pointed out in Hurst (paras 27 and 51), the scope of the inquiry is essentially a matter for the coroner. Such indeed had been eloquently recognised in Jamieson itself in the Courts judgment given there by Sir Thomas Bingham MR (at para 14 of the Courts general conclusions, p 26): It is the duty of the coroner as the public official responsible for the conduct of inquests, whether he is sitting with a jury or without, to ensure that the relevant facts are fully, fairly and fearlessly investigated. He is bound to recognise the acute public concern rightly aroused where deaths occur in custody. He must ensure that the relevant facts are exposed to public scrutiny, particularly if there is evidence of foul play, abuse or inhumanity. He fails in his duty if his investigation is superficial, slipshod or perfunctory. But the responsibility is his. He must set the bounds of the inquiry. He must rule on the procedure to be followed. His decisions, like those of any other judicial officer, must be respected unless and until they are varied or overruled. As, however, I also pointed out in Hurst (para 51), the verdict and findings are not a matter for the coroner. These are severely circumscribed when an inquest is confined to ascertaining by what means the deceased came by his death (a Jamieson inquest); not so where the inquest is to fulfil the article 2 investigatory obligation when it must also ascertain in what circumstances the deceased came by his death (a Middleton inquest). Sometimes, of course, as in McCann v United Kingdom (1995) 21 EHRR 97 (the Death on the Rock case), short verdicts in the traditional form will enable the jury to express their conclusion on the central issue canvassed at the inquest (Hurst at para 48, citing Lord Bingham in Middleton at para 31). Other times, perhaps generally indeed, an article 2 obligation will require the coroner or jury to state conclusions upon the important underlying issues in a way that plainly goes beyond the sort of restricted verdict available in a Jamieson inquest and in such cases a Middleton inquest is required. Even then, however, as noted at para 37 of Middleton, the conclusions must be conclusions of fact as opposed to expressions of opinion. Nor must the verdict appear to determine any question of civil liability. Although, as I recognised in Hurst (para 51), the coroner may sometimes choose to widen the scope of the inquiry if he recognises that article 2 conclusions of fact (and thus a Middleton verdict and findings) are required, more probably (as Lord Hope envisages at para 95 of his judgment) the coroner is likely to decide the scope of inquiry with a view rather to the exercise of his rule 43 power to make a written report to a responsible authority aimed at avoiding similar fatalities in future. To my mind, guidance beyond these broad generalities is quite impossible. This is really not an area of the law in which advisory opinions are likely to prove especially helpful. LORD MANCE Issue 1 Jurisdiction: (a) general The first issue before the Supreme Court is whether a soldier on military service in Iraq is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the European Convention on Human Rights so as to benefit from the rights guaranteed by the Human Rights Act 1998 while operating in Iraq. If, or at least to the extent that, such a soldier is subject to United Kingdom jurisdiction within article 1, he will be entitled to rights guaranteed by the 1998 Act. During the period leading up to his death, Private Smith spent time both at locations (particularly the Al Amarah stadium) constituting part of the United Kingdom army bases in Iraq and elsewhere. He became ill on 13 August 2003 at the stadium after performing various duties off base (particularly supervising fuel distribution in circumstances where only coalition troops were acceptable to locals in that role and were, it appears, correspondingly stretched in terms of man power). He was taken then by ambulance to an United Kingdom accident and emergency medical centre at Abu Naji, where he sustained a cardiac arrest and died, the cause of death being heatstroke. The Secretary of State for Defence accepts that, in so far as the events leading to his death occurred on base, they occurred within United Kingdom jurisdiction for the purposes of article 1 of the Convention and that the conduct leading to them is subject to examination for compliance with article 2 of the Convention accordingly. But he submits that, in so far as they occurred elsewhere, the converse applies. This is because, in his submission, jurisdiction under article 1 is primarily territorial and the only relevant exception, covering United Kingdom bases in Iraq, arises from the analogy of United Kingdom embassies, consulates, vessels and aircraft and places of detention abroad. Some members of the Court describe this issue as academic. But it has a potential relevance in relation to the fresh inquest which has now to be held. Before the Court of Appeal, the Secretary of State noted that Mrs Smiths case regarding the circumstances leading to Private Smiths death had been extended to include circumstances that took place outside the British army base and hospital, and argued originally that, as these matters took place outside the jurisdiction of the UK, they can form no part of the consideration in this case of whether the UK is in arguable breach of its obligations under article 2 (skeleton, para 16). By the end of the hearing, the Secretary of State had conceded that he would not submit to the new coroner in the fresh inquest that the scope of that inquest is restricted in any way by any decision by him on the applicability (or not) of the enhanced article 2 investigative obligation (appellants note and Court of Appeal judgment, para 62.) However, by letters dated respectively 22 January and 12 February 2010 the coroner has (correctly) affirmed that it is not for the parties to agree the scope of the new inquest, but for the coroner to do this in the light of the judgment of this Court, and the Secretary of State has (correctly) accepted this to be so. For this reason, the scope and application of article 1 and article 2 are of potential relevance to the future conduct of the fresh inquest. It was on the analogy of embassies, consulates, vessels and aircraft and places of detention that the House of Lords held in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26; [2008] AC 153 that Mr Mousa (an Iraqi citizen who had died, allegedly as a result of torture, in United Kingdom custody in a United Kingdom base in Iraq) was within this countrys jurisdiction under article 1. The respondent, Private Smiths mother, supported by the Equality and Human Rights Commission, submits that the present case, concerning the relationship between a state and its own armed forces occupying Iraq, falls within another or a more general exception to the general principle of territoriality. (b) Gentle The Secretary of State submits that the House of Lords decision in R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356 is binding authority in his favour, negativing the application of any such exception in the present context. He refers, in particular, to Lord Binghams speech at para 8(3): Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: . Al Skeini . paras 79, 129. The claimants seek to overcome that problem, in reliance on authorities such as Soering v United Kingdom (1989) 11 EHRR 439, by stressing that their complaint relates to the decision making process (or lack of it) which occurred here, even though the ill effects were felt abroad. There is, I think, an obvious distinction between the present case and the Soering case, and such later cases as Chahal v United Kingdom (1996) 23 EHRR 413 and D v United Kingdom (1997) 24 EHRR 423, in each of which action relating to an individual in the UK was likely to have an immediate and direct impact on that individual elsewhere. But I think there is a more fundamental objection: that the claimants argument, necessary to meet the objection of extra territoriality, highlights the remoteness of their complaints from the true purview of article 2. Paras 79 and 129 in Al Skeini, to which Lord Bingham referred, concern jurisdiction based on effective control. Lord Bingham evidently considered that no other exceptional head of jurisdiction applied. However, in so far as argument was addressed to this point, it appears to have been extremely brief (see pp 1361B C and 1363G H). The passage quoted from Lord Binghams speech constituted the last of three reasons why article 2 could not embrace the process of deciding on the lawfulness of a resort to arms; and it is noticeable that, at its conclusion, in dismissing the submission based on Soering, Lord Bingham reverted to his previous two reasons. Other members of the House focused in their express reasoning on Lord Binghams first two reasons. But Lord Hoffmann, Lord Hope, Lord Scott, Lord Brown and I myself at paras 16, 28, 29, 71 and 74 all also agreed in general terms with Lord Binghams reasons. Lord Rodger said only that his reasons were essentially the same as Lord Binghams and Lord Hoffmanns (para 45), and Lady Hale regarded her reasons as being in substantial agreement with Lord Binghams (para 61), although she expressly disagreed with him on the question whether a British soldier serving under the command and control of his superiors was within the United Kingdoms jurisdiction within the meaning of article 1 (para 60). Lord Carswell left that point open (para 66), and decided the case on the basis (again part of Lord Binghams first two reasons) that article 2 did not involve a duty not to go to war contrary to the UN Charter or to investigate the lawfulness of an armed conflict. In the above circumstances, it is open to doubt whether the first part of the passage in para 8(3) quoted above from Lord Binghams speech was part of the ratio decidendi. But, even if it technically was, it was not the product of the detailed argument and citation which we have now had, and it would, in my view, be wrong to refuse to reconsider it de novo. (c) Bankovic and the concept of jurisdiction Leaving Gentle aside, the submissions of all parties have, realistically, taken as their general starting point the decisions of the European Court of Human Rights in Bankovic v United Kingdom (2001) 11 BHRC 435 and Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE 95 and of the House of Lords in Al Skeini. Dicta in the House of Lords basing jurisdiction in Al Skeini on the total and exclusive de facto, and subsequently also de jure, control exercised by the United Kingdom authorities over the premises in question were referred to with approval by the European Court of Human Rights in Al Saadoon. The decision in Al Skeini is shortly to be reviewed in that court. But for present purposes the Supreme Court can and should accept it. This starting point avoids the need for any entirely open review of the concept of jurisdiction under article 1. Just how vexed that concept and how controversial the decisions in Bankovic and Al Skeini are appears from extensive literature which they have generated: see e.g. Lawson, Life after Bankovic: on the Extraterritorial Application of the European Convention on Human Rights; OBoyle, The European Convention on Human Rights and Extraterritorial Jurisdiction: A Comment on Life after Bankovic (both in F Coopman and M Kamminga, Extraterritorial Application of Human Rights Treaties; Antwerp Oxford 2004); Loucaides, Determining the Extra territorial Effect of the European Convention: Facts, Jurisprudence and the Bankovic case (2006) 4 EHRLR 391; Milanovic, From Compromise to Principle: Clarifying the Concept of State Jurisdiction in Human Rights Treaties (2008) HRLR 8(3), 411; and King, The Extraterritorial Human Rights Obligations of States (2009) HRLR 521. Arguments that the European Court of Human Rights was guilty of a non sequitur in assimilating the concept of jurisdiction in article 1 to the concept in general international law and in relying upon this to restrict the extra territorial application of the Convention to exceptional circumstances only (see Milanovic, p 435) do not arise for consideration. Nor do similar arguments that the Court in Bankovic was wrong in failing to recognise, as a separate and equal head of jurisdiction having extra territorial effect, the existence of effective authority over individuals or of actual authority or control over a given territory or person, whether lawfully or unlawfully exercised, (Lawson, p 120, Loucaides, p 399 and Milanovic, p 435). Whatever the merits of giving the Convention a wider reach might be de lege ferenda, we are (like, in fact more so than, the House of Lords in Al Skeini: see per Lord Rodger, para 69) only concerned with its reach de lege lata. Criticisms of the House of Lords approach in Al Skeini to jurisdiction based on territorial control (see King, pp 534 536 and 545 547) and suggestions that the House ought (in the light of cases such as Issa v Turkey (2004) 41 EHRR 567) to have recognised a cause and effect notion of jurisdiction (King, p 553) are also out of place in the light of the reasoning in Bankovic and Al Skeini. The argument on the present appeal assumes the correctness of the general principles stated in Bankovic and Al Saadoon and applied in Al Skeini. According to these jurisdiction in article 1 refers primarily to territorial jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (Bankovic, para 61). The Court in Bankovic explained this conclusion as follows: 59. As to the ordinary meaning of the relevant term in article 1 of the Convention, the Court is satisfied that, from the standpoint of public international law, the jurisdictional competence of a state is primarily territorial. While international law does not exclude a states exercise of jurisdiction extra territorially, the suggested bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant states (Mann, The Doctrine of Jurisdiction in International Law, RdC, 1964, vol 1; Mann, The Doctrine of Jurisdiction in International Law, Twenty Years Later, RdC, 1984, vol 1; Bernhardt, Encyclopaedia of Public International Law edition 1997, vol 3, pp 55 59 Jurisdiction of States and edition 1995, vol 2, pp 337 343 Extra territorial Effects of Administrative, Judicial and Legislative Acts; Oppenheims International Law, 9th ed 1992 (Jennings and Watts), vol 1, 137; Dupuy, Droit International Public, 4th ed 1998, p 61; and Brownlie, Principles of International Law, 5th ed 1998, pp 287, 301 and 312 314). 60. Accordingly, for example, a states competence to exercise jurisdiction over its own nationals abroad is subordinate to that states and other states territorial competence (Higgins, Problems and Process (1994), p 73; and Nguyen Quoc Dinh, Droit International Public, 6th ed 1999 (Daillier and Pellet), p 500). In addition, a state may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying state in which case it can be found to exercise jurisdiction in that territory, at least in certain respects (Bernhardt, cited above, vol 3 at p 59 and vol 2, pp 338 340; Oppenheim, cited above, at 137; Dupuy, cited above, at pp 64 65; Brownlie, cited above, at p 313; Cassese, International Law, 2001, p 89; and, most recently, the Report on the Preferential Treatment of National Minorities by their Kin States adopted by the Venice Commission at its 48th Plenary Meeting, Venice, 19 20 October 2001). The Court found support for a primarily territorial approach to article 1 not only in general international law and the works cited in paras 59 and 60, but also in the travaux prparatoires (Bankovic, paras 19 21 and 63). During the negotiation of the Convention, the words all persons residing within the territories of the signatory States in article 1 were replaced by all persons within their jurisdiction. The Court noted that this was expressly on the basis that there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory States. However, it is not without significance that the replacement phrase adopted the word jurisdiction, rather than territories; and also that the Court itself has recognised, by the exceptions which it has endorsed, that the Convention is not exclusively confined in its application to persons within the territories of the signatory States. Lawson (cited above) points out (p 88) that the original proposal was to replace residing in by living in, but that the drafting sub committee noting that the aim was to widen as far as possible the categories of persons who are to benefit by the guarantees contained in the Convention proposed the replacement of residing within by within the jurisdiction (or, in French, relevant de leur jurisdiction). The use of the more flexible notion within the jurisdiction, with its potentially wider jurisprudential connotations, was clearly deliberate, even if it is not unlikely that the drafters did not give much thought at all to any extraterritorial impact of the Convention (Lawson, p 90; and see also Loucaides, above, p 397). Jurisdiction in general international law exists in the form of (a) jurisdiction to prescribe or legislate (and, as a subsidiary aspect, adjudicate), which is primarily territorial but generally also regarded as extending to a states nationals wherever they are, and (b) jurisdiction to enforce what is prescribed, which is usually only territorial (and does not usually exist, for example, against the persons of a states nationals, while they remain abroad): see Dr F A Mann in the writings cited in Bankovic at para 59, particularly RdC, 1964, pp 13, 22 et seq. and 127 et seq, and RdC, 1984, Chaps I and II, the Reinstatement of the Law Third: Restatement of the Foreign Relations Law of the United States, para 401 and Alcom Ltd v Republic of Colombia [1984] AC 580, 600C, per Lord Diplock. In drawing on the conception of jurisdiction in general international law (while also reminding itself of the Conventions special character as a human rights treaty: para 57), the Court was (as Lord Rodger noted in Al Skeini, para 64) relating the scope of the Convention to the existence of a pre existing relationship between the relevant state and the victim. For the Convention to apply, the mutual relationship must be one under which the state possessed and was able to enforce lawful authority and power over the victim and the victim was in return under and entitled to the states protection. Jurisdiction in international law is, as Dr Mann said (RdC, 1964, p 13), concerned with the states right of regulation or, in the incomparably pithy language of Mr Justice Holmes, with the right to apply the law to the acts of men. This means that there must be, translated to the international legal sphere, a similar bond of reciprocal allegiance to that identified domestically as existing between sovereign and subject in Calvins Case (1608) 7 Co Rep 1a; 77 ER 377: duplex et reciprocum ligamen; quia sicut subditus regi tenetur ad obedientiam, ita rex subdito tenetur ad protectionem; merito igitur ligeantia dicitur ab ligando, quia continet in se duplex ligamen. A states international jurisdiction, based on this reciprocal bond, respects the matching jurisdiction of other states based on their mutual relationship with those within their territories and their nationals. In international law, each state owes duties to protect those within its jurisdiction. If state A infringes the fundamental human rights of a person subject to state Bs jurisdiction, then, although that person may have no direct right against state A, it may become state Bs duty to pursue the matter at the international level against state A. In the same vein, the Court in Bankovic noted that the Convention was designed to ensure the observance of the engagements undertaken by the Contracting Parties (para 80) engagements which cannot be regarded as having been undertaken to benefit everyone in the world at large. Consistently with the above, in Dr Manns writings, jurisdiction in international law is thus associated with sovereignty: it is an aspect of sovereignty, it is coextensive with and, indeed, incidental to, but also limited by the states sovereignty (RdC, 1964, pp 24 31, esp p 30; see also RdC, 1984, p 20). In Bankovic itself, the only connection with the United Kingdom consisted in the act of bombing Belgrade which was alleged to constitute a breach of the Convention (a pure cause and effect notion of jurisdiction). In that context, it is unsurprising that the Court should emphasise that the Convention was not designed to be applied throughout the world, even in respect of the conduct of contracting states (para 80) and should underline the significance of a pre existing reciprocal relationship under which sovereignty of one sort or another was legitimately possessed and exercised. In Al Skeini (see paras 6, 61, 90, 97 and 132) the House of Lords decided that the United Kingdom as an occupying power did not, except within its military bases, have sufficient effective control over any territory of Iraq to bring such territory within its jurisdiction under article 1 of the European Convention on Human Rights. The present appeal raises a different question, whether the United Kingdom had sufficient authority under international law over its own forces in Iraq for them to be regarded as within its jurisdiction under article 1. (d) The respondents case For present purposes, the respondent accepts the approach taken by the Court in Bankovic and Al Saadoon and by the House in Al Skeini. But she relies on its underlying rationale the limitation of jurisdiction by reference to the limitations of sovereignty and the need to avoid conflicts of jurisdiction. This rationale appears with clarity in both paras 59 and 60 cited above. The suggested bases of extra territorial jurisdiction are, as a general rule, defined and limited by the sovereign territorial rights of the other relevant States. [A] States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence; and in addition a State may not actually exercise jurisdiction on the territory of another without the latters consent, invitation or acquiescence, unless the former is an occupying State in which case it can be found to exercise jurisdiction in that territory, at least in certain respects. In the respondents submission, the relationship between the United Kingdom and its armed forces in Iraq meets all these requirements for recognising that it involved in August 2003 the legitimate and effective exercise of jurisdiction, in the prescriptive, the adjudicatory and the enforcement senses. The United Kingdom was in August 2003 exercising its authority lawfully in Iraq, with the consent of the Coalition Provisional Authority (CPA), over United Kingdom troops including Private Smith, a United Kingdom citizen. By CPA Order No 17 issued in June 2003, the CPA formalised the status and arrangements governing the presence of the multinational force (MNF), which included the United Kingdoms armed forces, in Iraq. The MNF was given, inter alia, the right to enter into, remain in and depart from Iraq (section 13), freedom of movement without delay throughout Iraq (section 7), freedom of radio communications (section 6), the right to use without cost such areas for headquarters, camps or other premises as might be necessary as well as to use, free of cost or where this was not practicable at the most favourable rate, water, electricity and other public utilities and facilities (section 9). Importantly, by section 2 the MNF, its personnel, property, funds and assets were immune from Iraqi legal process and all MNF personnel were expressed to be subject to the exclusive jurisdiction of their Sending States. Further, the respondent submits, the CPA was in issuing CPA Order No 17 operating with the legal mandate of the Security Council, which by Resolution 1483 adopted on 22 May 2003 under Chapter VII of the UN Charter, had recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority), and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory. The respondent therefore submits that there would be no interference with Iraqi sovereignty and no attempt to impose Convention standards on Iraq or anyone other than the British state, by recognising the existence of Convention obligations as between the United Kingdom and nationals like Private Smith serving in its armed forces in Iraq. There would be no question of Private Smith being brought within the Convention merely by virtue of the fact that he was a victim of an alleged breach of article 2. On the contrary, the relationship of command and control under which Private Smith served gave the United Kingdom a broad protective capability and responsibility, which meant that a wide range of Convention rights could be effectively secured for his benefit. Further, this being an exceptional head of jurisdiction, it was, in the respondents further submission, no objection if or that there might be some Convention rights which could not be secured; the objection, identified by the House in Al Skeini, to any application of the Convention based on tailoring and restricting Convention rights did not apply to the exceptional heads of jurisdiction. In this connection, the Secretary of State points to para 130 in Lord Browns speech in Al Skeini, to which I return below (para 193). These are forceful submissions, but they require closer analysis of the status of the United Kingdoms armed forces in Iraq. Paras 59 and 60 of the Courts judgment in Bankovic recognise that state A may exercise jurisdiction on or in the territory of state B either (a) with the consent, invitation or acquiescence of state B or (b) as an occupying state at least in certain respects. I will consider in turn these alternative bases of jurisdiction (a) and (b). But first I examine three specific cases of the exceptional extraterritorial jurisdiction contemplated in paras 59 and 60 of Bankovic. These were identified and analysed by Lord Brown in Al Skeini at paras 118 to 122. (e) Cases of exceptional extra territorial jurisdiction The first involves the forcible removal by state A from state B and with state Bs consent of a person wanted for trial in state A (Al Skeini, paras 118 119). Within this category, Lord Brown put calan v Turkey (2005) 41 EHRR 985, where the European Court of Human Rights said: 91. The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that state for the purposes of article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in Snchez Ramirez v France (1996) 86 A DR 155 and Freda v Italy (1980) 21 DR 250, and, by converse implication, Bankovi v Belgium [(2001) 11 BHRC 435]. Lord Brown commented that, in circumstances where the forcible removal was effected with the full cooperation of the relevant foreign authorities and with a view to the applicants criminal trial in the respondent state, it was unsurprising that the Grand Chamber in calan had felt able to distinguish Bankovic by converse implication. The inference from para 91 in calan is that, if (a) state A exercises authority over an individual in state B by consent of state B, and (b) it does so in order to lead to exercise of state As ordinary domestic jurisdiction over that individual, then it is throughout exercising jurisdiction over that individual under article 1. The present case is not precisely on all fours (not least, because the United Kingdoms authority over its armed forces was to be exercised in Iraq), but, if the case could be analysed in terms of consent, that could hardly be critical in principle. A second exceptional category was considered by Lord Brown in para 121 with reference back to para 109(4)(iii), where he introduced the category in these terms: Certain other cases where a states responsibility could, in principle, be engaged because of acts which produced effects or were performed outside their own territory (para 69). Drozd and Janousek v France and Spain (1992) 14 EHRR 745, at para 91, is the only authority specifically referred to in Bankovic as exemplifying this class of exception to the general rule. Drozd, however, contemplated no more than that, if a French judge exercised jurisdiction extraterritorially in Andorra in his capacity as a French judge, then anyone complaining of a violation of his Convention rights by that judge would be regarded as being within Frances jurisdiction. In para 121, Lord Brown further explained this category: Another category, similarly recognised in Bankovic, was Drozd (see para 109(4)(iii) above ) into which category can also be put cases like X and Y v Switzerland (1977) 9 DR 57 and Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99 and 48209/99) (unreported) 14 May 2002. In X and Y v Switzerland, Switzerland was held to be exercising jurisdiction where, pursuant to treaty provisions with Liechtenstein, it legislated for immigration matters in both states, prohibiting X from entering either. In Gentilhomme, France operated French state schools in Algeria, again pursuant to a treaty arrangement. Drozd concerned complaints brought by defendants tried in Andorra against France and Spain as being allegedly responsible for non observance of the Convention by persons from these countries nominated to sit as judges in Andorra. Its significance is that the European Court of Human Rights found it necessary to consider whether the judges acts could be attributed to France and Spain, even though they were not performed on the territory of those states (Drozd, para 91). As the Court explained in Bankovic (para 69) the impugned acts could not, in the circumstances, be attributed to the respondent states because the judges in question were not acting in their capacity as French or Spanish judges and as the Andorran courts functioned independently of the respondent states (para 69). Rix LJ in the Divisional Court in Al Skeini (paras 158 166 and 256 257) subjected Drozd to close scrutiny, and was puzzled by its reasoning. He noted that, if the judges sitting in Andorra had been acting in their capacities as French and Spanish judges, then in this most important legal sphere, in one sense the heart of what is meant by jurisdiction, there would have been a form of extension of French and Spanish jurisdiction into the territory of Andorra, and regarded Drozd as too much of a special case to provide any firm foundation for a submission that personal jurisdiction exercised extraterritorially by state agents or authorities is a broad principle of jurisdiction under article 1 (para 257). Special case though it was, Drozd points to the possibility that certain relationships, such as those between a national judge and those under his or her authority, may attract the operation of the Convention, irrespective of whether they take place within the territory of the judges state. Gentilhomme is of interest, not just because it recognises the operation by France in Algeria of French schools with the consent of Algeria as capable of amounting to an exercise of jurisdiction by France in Algeria within the scope of article 1, but also because, on the facts, France was held not responsible. The complainants children had, under French law, dual French and Algerian nationality but, under Algerian law, were only recognised as having Algerian nationality. The complaint related to the refusal to admit them to the French schools in Algeria. However, this was the result of a decision taken by Algeria unilaterally, with which France had no option but to comply although that decision was in breach of a declaration of cultural co operation which the two countries had signed on 19 March 1962. The Court held that the conduct complained of could not be attributed to France, and the complaint was accordingly incompatible with the Convention ratione personae. The possibility of exercising jurisdiction abroad by consent, invitation or acquiescence of the overseas state, to which the Court had referred in Bankovic, est subordonne la competence territoriale de cet autre Etat, et, en principe, un Etat ne peut concrtement exerciser sa jurisdiction sur le territoire dun autre Etat sans le consentement, linvitation ou lacquiescement de ce dernier (Bankovic, paras 59 60). This appears clearly to indicate that exceptional jurisdiction may be tailored, in extent and in the liability to which it is capable of giving rise, by reference to the scope of the authority for the exercise of which abroad consent is given. The third exceptional category involves the activities of [a states] diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state (Bankovic, para 73, Al Skeini, paras 109(4)(ii) and 122). As regards the activities of diplomatic or consular agents abroad, the critical feature is, again, the consent of the foreign state, in accordance with general principles of international law, to the exercise within its territory of the authority of the sending state by representatives of that state. As Lord Brown noted in para 122, jurisdiction within article 1 has been held to exist both in relation to nationals of the sending state and even in relation to foreigners. In relation to nationals, the existence of such jurisdiction is more obvious than it is, perhaps, in relation to foreigners. The present case is concerned with the existence of jurisdiction in Iraq in relation to British soldiers. As to a states activities on board craft and vessels registered in, or flying the flag of, that state, the relevant consideration is, once again, that the state has under international law recognised authority and control over such craft and vessels since the view that a ship is a floating part of state territory has long fallen into disrepute (Brownlies Principles of Public International Law, 7th ed (2008), p 318). The recent decision of a seventeen member Grand Chamber in Medvedyev v France (Application No 3394/03) (29 March 2010) is not without interest in this connection. The Winner, a Cambodian vessel was engaged on drug trafficking in the high seas (Cape Verde). Belying its name, it was detected and boarded by the French authorities, who detained the crew on board and took them on the vessel to France for trial. France was, but Cambodia was not, party to the relevant international drug trafficking conventions, which did not in the circumstances authorise the arrest by France of the Cambodian vessel. Nevertheless, Cambodia had given France specific ad hoc authorisation to intercept, inspect and take legal action against the ship. A majority of the Court considered that the crew were within the jurisdiction of France for the purposes of article 1 on the simple basis of France having exercised full and exclusive control over the Winner and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France (contrast Bankovic, cited above) (para 67). Bankovic was cited in para 64, where the Court noted that it was only in exceptional cases that acts of the Contracting States performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them for the purposes of article 1, and that This excluded situations, however, where as in the Bankovic case what was at issue was an instantaneous extraterritorial act, as the provisions of article 1 did not admit of a cause and effect notion of jurisdiction (Bankovic, para 75). Having accepted that France had jurisdiction under article 1, the majority in Medvedyev went on to hold the detention of the crew unjustified, on the basis that, although international as well as domestic law was capable of shaping a procedure prescribed by law within article 5.1 (para 79), Cambodias ad hoc authorisation did not meet the requirements under article 5.1 of clearly defined and foreseeable law (paras 99 100). Presumably foreshadowing that conclusion, the majority appear in para 67 to have endorsed the possibility of a purely factual (albeit unlawfully exercised) concept of jurisdiction under article 1. In contrast, seven judges, dissenting from the majoritys conclusion under article 5.1, accepted that article 1 applied on the simple basis that the Winner with the agreement of the flag state was undeniably within the jurisdiction of France for the purposes of article 1 (para 10). That state B may authorise state A to exercise jurisdiction which would otherwise belong to state B for the purposes of article 1 is on any view consistent with the principles in Bankovic, paras 59 60, as well as with the three specific categories of extraterritorial jurisdiction which I have been considering. (f) The present case The present case falls directly within none of these specific categories. But all three categories depend upon the exercise by state A abroad of state power and authority over individuals, particularly nationals of state A, by consent, invitation or acquiescence of the foreign state B. They exemplify in this respect one underlying theme of paras 59 and 60 in Bankovic. The first question is whether the present case represents an example of the exercise by state A (here the United Kingdom) of its lawful authority and power over its nationals in state B (Iraq) with the consent of state B. If it does not, then it will be necessary to consider the alternative possibility mentioned in Bankovic, para 60, namely that the United Kingdom had, as an occupying power, jurisdiction under international law over its armed forces wherever they were in Iraq. (g) Exercise of jurisdiction by consent The answer to the first question depends upon the position of the CPA. The CPAs origin, role and status were examined in Al Skeini, particularly by Rix LJ in the Divisional Court at [2004] EWHC 2911 (Admin); [2007] QB 140, paras 9 39. Following their invasion of Iraq, the United States and United Kingdom became occupying powers within and subject to the provisions of the Hague Convention 1907 and the Fourth Geneva Convention 1949 (Rix LJ, para 11). The CPA was the creation of a freedom message issued in that capacity by United States General Tommy Franks on 16 April 2003 (Rix LJ, para 14). The formation and purpose of the CPA (to exercise powers of government temporarily and to transfer responsibility for administration to representative Iraqi authorities as soon as possible) were reported by letter by the two governments permanent representatives to the Security Council, The Security Council on 22 May 2003 adopted Resolution 1483 under Chapter VII of the UN Charter, that is as a measure taken to maintain or restore international peace and security. Resolution 1483 noted the contents of the letter and, as stated in para 171 above, recognised the specific authorities, responsibilities, and obligations under applicable international law of these states as occupying powers under unified command (the Authority) and called upon the Authority (in practice the CPA) consistent with the Charter of the United Nations and other relevant international law, to promote the welfare of the Iraqi people through the effective administration of the territory (para 4). But it also supported a transformative process in Iraq, through the formation, by the people of Iraq with the help of the Authority, of an Iraqi interim administration as a transitional administration run by Iraqis, until an internationally recognised, representative government is established by the people of Iraq and assumes the responsibilities of the Administration (Resolution 1483, para 9). The CPA had by regulation R1 dated 16 May 2003 already declared that there were vested in the CPA all executive, legislative and judicial authority necessary to achieve its objectives, to be exercised under relevant UN Security Council resolutions. (anticipating in this respect by some 6 days the effect of Resolution 1483, a draft of which was by then publicly available). In June 2003 the CPA issued CPA Order No 17, which formalised the status and arrangements covering the United Kingdoms occupying forces (para 171 above). To complete the picture, on 13 July 2003, following two national conferences and widespread consultation, the Iraqi Governing Council (IGC) announced its formation and was recognised formally by the CPA by regulation R6, in line with para 9 of Security Council Resolution 1483, as the principal body of an Iraqi interim administration, with which the CPA would consult and co ordinate on all matters involving the temporary governance of Iraq. The Security Council by Resolution 1500 on 14 August 2003 welcomed the establishment of the IGC as an important step towards the formation by the people of Iraq of an internationally recognized, representative government that will exercise the sovereignty of Iraq. In its later Resolution 1511 of 16 October 2003, the Security Council, again acting under Chapter VII, reaffirm[ed] the sovereignty and territorial integrity of Iraq, and underscore[ed] in that context, the temporary nature of the exercise by the Coalition Provisional Authority (Authority) of the specific responsibilities, authorities, and obligations under applicable international law recognized and set forth in resolution 1483 (2003) . The IGC eventually dissolved itself on 1 June 2004, and on 28 June 2008 the CPA transferred authority to the Iraqi Interim Government, which became the sole sovereign authority of Iraq (Rix LJ, para 38). The CPA was thus exercising, and was recognised by the Security Council as having under international law, responsibility for the temporary governance and administration of Iraq throughout the relevant period from the end of May to August 2003. In the Court of Appeal in Al Skeini [2005] EWCA Civ 1609; [2007] QB 140, para 123, Brooke LJ said that the CPA, which was not an instrument of the UK government, had the overall executive, legislative and judicial authority in Iraq whenever it deemed it necessary to exercise such authority to achieve its objectives. In the House of Lords (para 83) Lord Rodger expressed himself as being in agreement with paras 120 to 128 of Brooke LJs judgment when concluding that the United Kingdom lacked effective control of Basra and its surrounding areas. The CPA expressly endorsed and authorised the presence of the United Kingdoms armed forces in Iraq, and it had the support of Security Council Resolution 1483 in so acting. But that does not necessarily mean that the CPA equates with the state of Iraq for the purposes of consenting to the presence of foreign troops under international law. The CPA, although separate from the United Kingdom government, was the creature of the occupying forces, and Security Council Resolutions 1483 and 1511 were careful to refer to the CPA in terms consistent with this. An analysis which relies upon the Security Councils recognition of the CPAs role and upon CPA Order No 17 as a basis for saying that the state of Iraq consented to the presence and activities of United Kingdom forces in Iraq may be regarded as essentially circular: the CPA owed its existence, rights and responsibilities to the presence and activities of the occupying forces, and the Security Councils Resolution was drafted on a basis which can be said merely to recognise this truth. On the other hand, if that is so, then it is also true there was during the period May to August 2003 no other body which could claim to represent the state of Iraq, and a correspondingly reduced risk of any objectionable clash of sovereignty. (g) Exercise of jurisdiction over occupying forces This brings me to the other head of extra territorial jurisdiction mentioned in Bankovic, para 60, although not the subject of detailed analysis there or in Al Skeini: that is jurisdiction as an occupying force. The laws of war apply whatever the legitimacy or otherwise of the casus belli. They would not otherwise have much point. In the present case, the specific authorities, responsibilities, and obligations under applicable international law of the occupying forces, as well as the role of the CPA, were also endorsed by Security Council Resolution 1483. The European Court of Human Rights recognised in para 60 in Bankovic that occupation can give jurisdiction at least in certain respects, and referred to inter alia Oppenheims International Law (vol I Peace) (9th ed) (1992) para 137. This states that: International law, however, gives every state a right to claim exemption from local jurisdiction, chiefly for itself, its Head of State, its diplomatic envoys, its warships and its armed forces abroad. In relation to the words and its armed forces, footnote 19 refers to paras 556 558, which, in relation to belligerent occupation of foreign territory, refer in turn by footnote 4 to paras 166 172b of volume II Disputes,War and Neutrality of the same work (7th ed) (1952). Para 166 states that, in modern international law: although the occupant in no wise acquires sovereignty over such territory through the mere fact of having occupied it, he actually exercises for the time being military authority over it. As he thereby prevents the legitimate sovereign from exercising his authority, and claims obedience for himself from the inhabitants, he must administer the country, not only in the interest of his own military Para 169 continues: advantage, but also, at any rate so far as possible, for the public benefit of the inhabitants. As the occupant actually exercises authority, and as the legitimate Government is prevented from exercising its authority, the occupant acquires a temporary right of administration over the territory and its inhabitants; . In carrying out [the administration] the occupant is totally independent of the constitution and law of the territory, since occupation is an aim of warfare, and the maintenance and safety of his forces and the purpose of war, stand in the foreground of his interest, and must be promoted under all circumstances and conditions. But, although as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, as he is not the sovereign of the territory he has no right to make changes in the laws, or in the administration, other than those which are temporarily necessitated by his interest in the maintenance and safety of his army and the realisation of the purpose of war. On the contrary, he has the duty of administering the country according to the existing laws and the existing rules of administration; he must ensure public order and safety, must respect family honour and rights, individual lives, private property, religious convictions and liberty. It has been observed that the transformative aspect of Resolution 1483 (para 184 above) and the transformation in Iraqi society and governance which the CPA actually implemented do not reconcile easily with the traditional principles governing occupation stated in Oppenheim: see Adam Roberts, The End of Occupation (2005) ICLQ 27 and Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 604 618 and Nehal Bhuta, The antimonies of transformative occupation (2005) EJIL 721. It seems clear that neither the occupying states nor the Security Council viewed the situation as one in which there was, after the overthrow of Saddam Hussein, any legitimate sovereign. It also seems improbable that the wide ranging and in certain respects fundamental measures introduced by the CPA for the temporary governance of Iraq (as described by Rix LJ in the Divisional Court in Al Skeini at paras 19 to 26) would fit with the traditional duty of administering the country according to the existing laws and the existing rules of administration to which Oppenheim refers in para 169. However, I think it unnecessary to consider how far and on what basis the occupation of Iraq may have had features going beyond that of traditional belligerent occupation. What is important for present purposes is that the status even of a traditional occupying state is recognised and regulated by international law, and that it is one in which as regards the safety of his army and the purpose of war the occupant is vested with an almost absolute power, and in which the occupant has the right to claim immunity for its armed forces from local jurisdiction. In the context of Bankovic, the European Court may in para 60 have been thinking primarily of jurisdiction exercised by a state through occupying forces over local inhabitants. But to the extent that such jurisdiction exists, it does so only because of the states pre existing authority and control over its own armed forces. An occupying state cannot have any jurisdiction over local inhabitants without already having jurisdiction over its own armed forces, in each case in the sense of article 1 of the Convention. That is not of course to equate a states jurisdiction over third parties with its pre existing and more widely based jurisdiction over its own armed forces (see further para 191 below). In providing for the occupying forces to have immunity from Iraqi legal process, CPA Order No 17 reflected the general principle of state immunity, under international and common law, precluding civil suits in one state against a foreign state or its servants in respect of sovereign activities of that foreign state: see eg Littrell v United States of America (No 2) [1995] 1 WLR 82, Holland v Lampen Wolfe [2000] 1 WLR 1573 and Jones v Ministry of the Interior of the Kingdom of Saudi Arabia [2006] UKHL 26; [2007] 1 AC 270 (the position relating to torture not being relevant on this appeal) and, under general international law, para 137 of Oppenheim (para 187 above). No such general immunity today exists under English law as between the United Kingdom and those within its territory or having its nationality, whether the conduct occurs within or outside the United Kingdom. Soldiers can bring proceedings in England against the Ministry of Defence in respect of any breach of the states common law duty of care towards them: Crown Proceedings (Armed Forces) Act 1987, section 1. That such liability is capable of arising in respect of operations or activity anywhere in the world appears implicit in section 1 of the 1987 Act (read in the light of section 10 of the Crown Proceedings Act 1947 which it repealed) as well as in section 2 of the 1987 Act. The United Kingdom government is thus already liable to receive claims at common law by soldiers serving in Iraq based, for example, on allegations of failure to take proper care in relation to their safety, other than in the context of active operations against an enemy. A distinction between actual operations against an enemy (during the course of which no common law duty of care exists) and other activities of combatant services in time of war was drawn in Shaw Savill and Albion Co Ltd v Commonwealth of Australia (1940) CLR 344, Burmah Oil Company Ltd v Lord Advocate [1965] AC 75, 110, per Lord Reid (using the term battle damage to describe the former category), Mulcahy v Minister of Defence [1996] QB 732 and Bici v Ministry of Defence [2004] EWHC 786 (QB), paras 90 100. It is unnecessary to examine it or its scope here. I can also leave undecided the question whether the doctrine of act of state might in limited circumstances make even a claim by a British subject non justiciable: see Nissan v Attorney General [1970] AC 179; Bici v Ministry of Defence (above), para 88. In providing for the United Kingdom to have exclusive jurisdiction, CPA Order No 17 also mirrored in effect the domestic position, whereby British soldiers are subject to United Kingdom military law wherever they serve. This was so under the Army Act 1955, the Air Force Act 1955 and the Naval Discipline Act 1957 (the Service Acts), backed up by rules and regulations, including the Queens Regulations 1975, in force in 2003; and it remains so since their replacement from 31 October 2009 by the Armed Forces Act 2006. Although the Service Acts are largely silent on their territorial scope, it is not in dispute that their provisions governed service overseas as well as domestically: see Al Skeini, per Lord Bingham at paras 15(4) and 26. This is, for example, reflected in provisions for courts martial to have jurisdiction over offences committed abroad (Naval Discipline Act 1957, section 48(1)) and to sit abroad (Army Act, section 91): see also Halsburys Laws of England, Armed Forces, vol 2(2), para 303, footnote 4, noting that the jurisdiction of army and air force courts martial to try offences committed outside the United Kingdom is to be inferred from the fact that each of the offence creating provisions provides that the offence in question is committed by any person subject to military or air force law without any limiting words as to where the offence must be committed. Section 70(1) of the Army Act has made it an offence for any person subject to military law to commit a civil law offence anywhere in the world. Section 367 of the 2006 Act now provides expressly that Every member of the regular forces is subject to service law at all times. (h) Conclusion on issue of jurisdiction In the light of the above, it is in my view possible to give a clear answer to the question whether the United Kingdom had jurisdiction under international law over its armed forces wherever they were in Iraq. If the United Kingdom did not, then no state did. The invasion clearly and finally ousted any previous government. The United Kingdom was the only power exercising and having under international law authority over its soldiers. In so far as there was any civil administration in Iraq, it consented to this. If the CPAs consent is disregarded as coming from what was, in effect, an emanation of the two occupying powers, then the United Kingdom was, and was by Security Council Resolution 1483 recognised as, an occupying power in Iraq. Bankovic indicates that one basis on which the UK could be regarded as having had jurisdiction over its forces in Iraq would have been by consent of the state of Iraq. It would be strange if the position were different in the absence of any Iraqi government to give such consent, or therefore to object, to the exercise of such jurisdiction by the UK over its occupying forces. As an occupying power, the UK was necessarily in complete control of the armed forces by which it achieved such occupation, and had under international law an almost absolute power as regards their safety (Oppenheim, para 169, above), as well as duties regarding the effective administration of Iraq and the restoration of security and stability, to be performed through such forces. The United Kingdom did not have such effective control over the whole of the area of Southern Iraq or even Basra as could cause such area to be equated with territory of the United Kingdom, or therefore to require the United Kingdom to ensure the full range of Convention rights to all within it. It is, however, a different matter to suggest that the United Kingdom ceased to have jurisdiction over its armed forces (with the consequence that it ceased to owe them any further Convention duty) whenever they were out of base; and the United Kingdoms jurisdiction over its own armed forces within article 1 does not mean that it had jurisdiction within article 1 over all or any other persons with whom those armed forces came into contact off base. The actual feasibility of the United Kingdom assuring and providing protection for its armed forces in Iraq depends on the circumstances, including the circumstances and place in which such forces are serving. But to distinguish fundamentally between the existence of the protective duties on the part of the United Kingdom towards its armed forces at home and abroad also appears to me as unrealistic under the Convention as it is at common law. The relationship between the United Kingdom and its armed forces is effectively seamless. Members of the armed forces serve under the same discipline and conditions wherever they are, and they are required to go wherever they are ordered. The relationship is not territorial, it depends in every context and respect on a reciprocal bond, of authority and control on the one hand and allegiance and obedience on the other. The armed forces serve on that basis. The compact is that they will receive the support and protection of the country they serve. I recognise that these considerations could apply even in a case where the United Kingdom did not have under international law a recognised role, like that of an occupying power which it had in Iraq. That may, on another day, lead back to re examination of statements (such as that in Medvedyev: see para 182 above) which contemplate the possibility that article 1 may embrace purely factual, though unlawfully exercised, jurisdiction. That possibility does not however require consideration on this appeal. Where, as here, the United Kingdom was present in Iraq, both with the consent of the only civil administrative authority that existed and in any event as an occupying power recognised as such under international law by the Security Council, there is in my view an irresistible case for treating the United Kingdoms jurisdiction over its armed forces as extending to soldiers serving in Iraq for the purposes of article 1 of the Convention. In Al Skeini (para 53) Lord Rodger said, in the context of interpreting the scope of the Human Rights Act 1998, that where a public authority has power to operate outside of the United Kingdom and does so legitimately for example, with the consent of the other state in the absence of any indication to the contrary it would only be sensible to treat the public authority, so far as possible, in the same way as when it operates at home. Similar thinking applies to the scope of a states jurisdiction under article 1 of the Convention, and is not only consistent with, but positively supported by, the Courts reasoning in Bankovic. In the present case, Lord Collins, whose judgment I have read after formulating my own, identifies a number of cases where commonsense in his view justifies a recognition of extra territorial jurisdiction within article 1 albeit necessarily of a limited nature tailored to the context (see paras 281, 301 and 306). I agree, but in my view commonsense also suggests a similar analysis of the relationship between the United Kingdom and the British army. Is such a conclusion precluded on the basis that Convention rights cannot properly be tailored? I do not believe so. We are concerned with an exceptional head of jurisdiction. In Al Skeini, Lord Brown said this at para 130: Realistically the concept of the indivisibility of the Convention presents no problem in the categories of cases discussed in paras 119 126 above: those concern highly specific situations raising only a limited range of Convention rights. This passage might, on one view, be read as suggesting that there is something inherent in the exceptional categories of cases discussed in paras 119 to 126 which means that it could never realistically be suggested that the state was in such cases under any general Convention obligation to secure the Convention rights. But it is not obvious why. The true explanation must be that in circumstances falling within one of the exceptional categories the states Convention duties are limited to those falling within the scope of the relationship giving rise to the exception in question. The consul cannot be expected to guarantee the full range of Convention rights, any more than can a state exercising authority by consent in other circumstances, such as those existing where it takes someone into custody (calan), or operates a school (Gentilhomme) or mans a court (Drozd), abroad by consent of the foreign state. The United Kingdom could not guarantee the full range of Convention rights to foreign litigants using its courts. Yet, once a person brings a civil action in the courts or tribunals of a state, there indisputably exists a jurisdictional link for the purposes of article 1: Markovic v Italy (2006) 44 EHRR 1045, para 54. Thus the Convention was applied, unsurprisingly in my view without anyone suggesting that it might not, as the measure of the legitimacy of claims by such nationals against the United Kingdom for refusal to up rate their pensions to the same level as those of persons residing in the United Kingdom who had made equivalent National Insurance contributions: Carson v United Kingdom (Application No 42184/05), 16 March 2010, where the claims in fact failed on the basis that persons residing within and outside the territory of the United Kingdom were not in an analogous situation. I add, without needing to explore this further, that, even in relation to territorially based jurisdiction, factual inability to enforce all the Convention rights, due to temporary loss of control to rebel forces, may, it appears, qualify the extent of the jurisdiction enjoyed and of the duties attaching to it: Ilacu v Moldova and Russia (2005) 40 EHRR 1040 (GC), paras 332 333. The United Kingdoms jurisdiction over its armed forces is essentially personal. The United Kingdom cannot and cannot be expected to provide in Iraq the full social and protective framework and facilities which it would be expected to provide domestically. But the United Kingdom could be expected to take steps to provide proper facilities and proper protection against risks falling within its responsibility or its ability to control or influence when despatching and deploying armed forces overseas. Will there be consequences beyond or outside any that the framers of the Convention can have contemplated, if Convention rights, and in particular those under article 2, continue to apply as between the United Kingdom and members of its armed forces serving abroad? That the obligation on states under article 1 to secure the Convention rights to everyone within their jurisdiction is, in principle, capable of applying to members of the armed forces as it does to anyone else is clear: see Engel v The Netherlands (1976) 1 EHRR 647, paras 54, 59, and en v Turkey (Application No 45824/99), 8 July 2003, para 1. The factors which justify exposing soldiers to the risk of death differ fundamentally from those that apply where civilian lives are at risk. But there is nothing that makes the Convention impossible or inappropriate of application to the relationship between the state and its armed forces as it exists in relation to overseas operations, in matters such as, for example, the adequacy of equipment, planning or training. See also on these points Gentle, per Lord Hope, para 19. Mr Eadie QC for the Secretary of State accepted in his submissions that it could be argued that to send a soldier out of the United Kingdom (or no doubt, in the light of Al Skeini, out of base) on a mission with inadequate equipment or training could involve a breach of the Convention, by analogy with the principle recognised in Soering v United Kingdom (1989) 11 EHRR 439 and referred to in Bankovic, para 68; and that coroners inquests in respect of deaths on active service in Iraq or Afghanistan have addressed such issues. The jurisprudence of the European Court of Human Rights includes cases where that court has examined closely and criticised the conduct of armed forces in domestic contexts. Such cases start with McCann v United Kingdom (1995) 21 EHRR 97, relating to the shooting by SAS officers of members of the Provisional IRA suspected of planning to attack the Royal Anglian Regiment in Gibraltar, and include Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00), 24 February 2005, and Isayeva v Russia (Application No 57950/00), 24 February 2005, relating to the conduct of military operations by the Russian armed forces against Chechen separatist fighters which led to the deaths of civilians. In such cases, it appears that the exigencies of military life go to the standard and performance, rather than the existence of, any Convention duty. Outside the sphere of combat operations or battle damage (para 34 above), this has been held also to be the position at common law, in which connection Elias J said in Bici v Ministry of Defence, para 104 that Troops frequently have to carry out difficult and sensitive peace keeping functions, such as in Northern Ireland, whilst still being subject to common law duties of care. The difficulties of their task are reflected in the standard of the duty rather than by denying its applicability. The European Court of Human Rights has (as Lord Hope noted in Gentle, paras 18 19) itself also acknowledged that when interpreting and applying the rules of the Convention it is necessary to bear in mind the particular characteristics of military life and its effects on the situation of individual members of the armed services (Engel, para 54, and en, p 1(b)). Reluctance about accepting the application of article 2 to the armed forces serving abroad may be due to concerns on several scores: first, the improbability that the founding fathers of the Convention perceived that jurisdiction under article 1 would extend to such matters, second, the apparent absence from the Convention of any immunities paralleling those of combat operations or battle damage (or, perhaps, act of state) recognised at common law (para 189 above), and, third, the extent to which the Court has in practice shown itself ready to re examine and re assess minutely, after the event and in the cold light of day, the factual conduct and decision making of member states in difficult circumstances, as evidenced perhaps by some decisions already mentioned, including in particular McCann and, recently, Medvedyev. But none of these matters seem to me to justify giving to the concept of jurisdiction a different or more limited meaning to that which, in my view, follows from the guidance which the Court has already given, particularly in Bankovic. As to the first such matter, the scope and application of the Convention, as revealed over the years, would probably surprise its founding fathers in many respects, and it seems particularly unrealistic to measure the scope of article 1 (fixed though it is, rather than living) by reference to the now revealed positive meaning of article 2 (cf Lord Phillipss comment to like effect in para 54). As to the second and third matters, it would have been foreseeable when the Convention was concluded that combat operations against an enemy might take place in the territory of a Contracting State a context in which the Secretary of State accepts the application of the Convention. The armed forces have not infrequently also been involved in combat operations in bases under attack in Afghanistan or, previously, Iraq. On the approach accepted in Al Skeini and in Al Saadoon and Mufdhi v United Kingdom (2009) 49 EHRR SE95, the United Kingdom is already required to ensure that its armed forces enjoy whatever protection the Convention, and in particular article 2, may require in such situations. The possible existence of Soering type liability for sending troops out from the United Kingdom with inadequate equipment or training is also acknowledged by the Secretary of State (para 196 above). If (as to which I express no view) the Convention contains no homologue of the common law immunity in respect of combat operations or battle damage, that is, therefore, a concern that already exists in contexts recognised as falling within Contracting States jurisdiction under article 1 of the Convention. It is not a guide to the scope of article 1. In fact, the Convention does contain at least one provision aimed at addressing this concern. Under article 15 of the Convention states are, in time of war or other public emergency, permitted, to the extent strictly required by the exigencies of the situation, to derogate from article 2 in respect of deaths resulting from lawful acts of war. By article 15 the Contracting States were catering for the natural concern that military operations against an enemy should not be unduly hampered. Finally, the Secretary of State submits, even if a soldier in Private Smiths position might be thought to be entitled to the protection of the Convention (and of article 2 in particular) at all times while serving overseas, whether or not he was on a British base, a domestic court should decline so to decide, but should leave the matter to be taken (whether in relation to this or another case) to Strasbourg. The principle here relied upon is that the role of United Kingdom courts, when interpreting the Convention, is to keep in step with Strasbourg neither lagging behind, nor leaping ahead: doing no more, but certainly no less (R (Ullah) v Special Adjudicator [2004] UKHL 26; [2004] 2 AC 323, para 20, per Lord Bingham) or no less, but certainly no more (Al Skeini: paras 90 and 106, per Lady Hale and Lord Brown). However, it is our duty to give effect to the domestically enacted Convention rights, while taking account of Strasbourg jurisprudence, although caution is particularly apposite where Strasbourg has decided a case directly in point or, perhaps, where there are mixed messages in the existing Strasbourg case law and, as a result, a real judicial choice to be made there about the scope or application of the Convention. But neither is the case here. Strasbourg has not decided any case directly in point, and both the messages contained in its existing jurisprudence and considerations of general principle seem to me to point in a clear direction. In my judgment the armed forces of a state are, and the European Court of Human Rights would hold that they are, within its jurisdiction, within the meaning of article 1 and for the purposes of article 2 wherever they may be. On that basis, it is incumbent on us under the Human Rights Act 1998, s.6, to give effect to that conclusion. I would dismiss the appeal on the first issue. Issue 2 article 2 The second issue is whether the fresh inquest into Private Smiths death must conform with the procedural obligation implied into article 2 of the Convention. In essence: what kind of inquest should the coroner hold, leading to what kind of verdict, in respect of Private Smiths death? Again, since questions of jurisdiction are involved, this issue cannot simply be answered by reference to the Secretary of States concession (para 159 above) that he will not object to the fullest type of inquest and (presumably) verdict. The reference to the procedural obligation implied into article 2 is significant. Article 2 has two aspects; one substantive, the other procedural. The latter is implied in order to make sure that [the former is] effective in practice; and is parasitic upon the existence of the substantive right, and cannot exist independently: R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, paras 5 6, per Lord Bingham; and see Jordan v United Kingdom (2001) 37 EHRR 52, para 105 and Edwards v United Kingdom (2002) 35 EHRR 487, para 69. In its substantive aspect, article 2 requires states not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life: R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182, para 2 of the opinion of the Appellate Committee given by Lord Bingham. Where there is such an established and appropriate framework, casual errors of judgment or acts of negligence (or operational as opposed to systematic failures) by state servants or agents will not by themselves amount to breach of the substantive obligation inherent in article 2 (a principle established in the context of medical negligence): Powell v United Kingdom (2000) 30 EHRR CD 362, Takoushis v Inner North London Coroner [2005] EyWCA Civ 1440; [2006] 1 WLR 461, paras 51 to 58; Byrzykowski v Poland (2006) 46 EHRR 675, paras 104 106; and Savage v South Essex Partnership NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681. In its procedural aspect, article 2 requires member states to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated: Middleton, para 3. Thus to make good [a] procedural right to the inquiry which the respondent seeks, she must show at least an arguable case that the substantive right arises on the facts .: Gentle, para 6, per Lord Bingham. The framework of procedures and means of enforcement required under the substantive aspect of article 2 must include, where appropriate, means of civil redress and criminal prosecution. The present focus is however on the procedural aspect of article 2, and on its requirement (based clearly on the potential involvement of the state in the death) for an effective public investigation by an independent official body into certain types of death, that is those occurring in circumstances potentially engaging the substantive right which article 2 contains. English law has long required a coroners inquest in respect of certain types of death. Pending the coming into force of the relevant sections of the Coroners and Justice Act 2009, the position is governed by the Coroners Act 1988. Section 8(1) requires a coroner to hold an inquest in respect of any body lying within his district where there is reasonable cause to suspect that the deceased (a) has died a violent or an unnatural death, (b) has died a sudden death of which the cause is unknown or (c) has died in prison (or in a place or circumstances requiring an inquest under any other Act). Section 8(3) requires the coroner to summon a jury, in various cases, including where it appears that (c) applies, or the death occurred while the deceased was in police custody, or resulted from an injury caused by a police officer in the purported execution of his duty or was caused by an accident, poisoning or disease requiring notice under section 19 of the Health and Safety at Work etc Act 1974, or in circumstances the continuation or possible recurrence of which is prejudicial to public health or safety. Such an inquest is designed to lead to a verdict, certified by an inquisition setting out, so far as such particulars have been proved (i) who the deceased was; and (ii) how, when and where the deceased came by his death: section 11(3) to (5) and rule 36 of the Coroners Rules 1984. There is a clear overlap (particularly when sections 8(1)(c) and 8(3) apply) between the circumstances in which the 1988 Act requires a coroners inquest and those in which the procedural obligation inherent in article 2 arises. But the two do not necessarily coincide. The domestic duty to hold an inquest can quite often arise in circumstances not engaging the procedural obligation under article 2. The procedural obligation inherent in article 2 may be satisfied by other forms of investigation than an inquest, for example a public inquiry or even criminal proceedings. Where the domestic duty to hold an inquest and the procedural obligation inherent in article 2 coincide, the difficulty arose under English law that the coroners duty to seek to ascertain how the deceased came by his death was interpreted as limiting him to considering by what means the deceased died, rather than looking more widely at the circumstances in which this occurred: R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson [1995] QB 1. In Middleton, which concerned the suicide in prison of a long term prisoner, the House of Lords addressed this difficulty, by acknowledging that a broader inquiry was required under article 2, if the investigation was to ensure the proper accountability of state agents for deaths occurring under their responsibility. Accordingly, it held, pursuant to section 3(1) of the Human Rights Act 1998, that the word how must in such a context be given the expanded meaning of in what broad circumstances, so as to give effect to the requirements to be read into article 2 of the Convention. The House thus distinguished between a traditional Jamieson inquest and an article 2 compliant Middleton inquest. In R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, it was argued that Middleton had established the expanded meaning of how for all contexts, including those not engaging article 2, and that the traditional Jamieson inquest had therefore been entirely superseded. The House categorically rejected the argument. The question arose in Hurst was whether it would serve any useful purpose to reopen an inquest. Lady Hale and I took the view that the distinction between the scope of investigation, (rather than verdict) possible in a Jamieson as opposed to a Middleton inquest was not as stark as we understood Lord Brown (with whom Lord Bingham agreed) to be suggesting: compare paras 19 and 23, per Lady Hale and paras 74 76, per Lord Mance, with paras 51 and 56 57, per Lord Brown. I drew attention (para 74) to the possibility of a coroners report to a responsible person or authority under rule 43 of the Coroners Rules 1984. Lord Rodger (to whom I must have been mistaken in referring in para 74) was at pains to stress the distinction in scope at paras 6 7, noting that on the Jamieson approach the allegations of failure by the police to heed prior warnings of hostility on the part of the deceaseds killer towards the deceased would be outside the scope of the wider enquiry that would have been required on a Middleton approach. The potential limitations of the Jamieson approach on the scope of investigation were encapsulated by Sir Thomas Bingham MR in that case, [1995] QB 1, 23G, in a reference to rule 36 of the 1984 Rules as requiring that the proceedings and evidence shall be directed solely to ascertaining the deceaseds identity, the place and time of death and how the deceased came by his death. The Coroners and Justice Act 2009 (not yet in force) might appear to perpetuate the distinction by underlining that it is only when necessary under article 2 that the purpose of ascertaining how, when and where the deceased came by his or her death is expanded so as to be read as including the purpose of ascertaining in what circumstances the deceased came by his or her death. It is in these circumstances of relevance that Lord Phillips questions the extent of the distinction, and in particular whether there is any difference in practice between a Jamieson and a Middleton inquest, other than the verdict (paras 69(ii) and 78), and to note that he has on this point the support of Lord Walker (though he also agrees with Lord Rodger on this point) as well as of Lord Collins and Lord Kerr. Lord Hope expressly (para 95) and, as I read him, Lord Rodger implicitly (paras 112 115) see a continuing distinction between the scope of investigation under a Jamieson and a Middleton inquest. For my part, I would have wished to be able to go as far as Lord Phillips, but I do feel some difficulty about questioning whether there is in practice any real distinction at all (save in the verdict expressed), having regard to Hurst and the 2009 Act and also having regard to my relative ignorance as to the extent to which such a distinction between the two types of inquest is in fact meaningful in day to day practice (as the courts in Jamieson, Middleton and Hurst must on the face of it have thought). However, it seems unnecessary on this appeal to pursue this aspect further. Everyone agrees that coroners have a considerable discretion as to the scope of their enquiry, although the verdict that they may deliver differs according to the type of inquest being held. The practical solution is no doubt for coroners to be alert to the possibility that a Middleton type verdict may be, or become, necessary, and to be ready to adapt the scope of their investigation accordingly. In the present case, the coroner (whose verdict has been set aside on different grounds) concluded that, on the facts as he saw them in the first inquest, a traditional Jamieson type of inquest was all that was required. Collins J and the Court of Appeal disagreed. They concluded that a Middleton type inquest was required. The Court of Appeals reasoning was that Private Smith was in a position analogous to that of a prisoner, a person detained on mental or other grounds or a conscript, and that a Middleton type inquest was required in respect of any death of such a person in prison or custody or while serving in the army. The Secretary of State appeals to the Supreme Court against the Court of Appeals reasoning and conclusion. The states procedural duty under article 2 to provide for or ensure an effective public investigation by an independent official body of certain deaths or near deaths has been developed in the case law of the European Court of Human Rights and explored in domestic case law, including that of the House of Lords in R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653, Middleton (above) and R (L(A Patient)) v Secretary of State for Justice [2008] UKHL 68; [2009] AC 588. Certain categories of case in which the substantive right contained in article 2 has been held to be potentially engaged, with the result that the procedural obligation has been held to exist, are clearly recognisable: (i) Killings by state agents: McCann v United Kingdom (1995) 21 EHHR 97, para 161 (article 2 requires by implication that there should be some form of effective official investigation when individuals have been killed as a result of the use of force by, inter alios, agents of the State") and Jordan v United Kingdom (2001) 37 EHRR 52; and see Amin, paras 20 and 25, per Lord Bingham. (ii) Deaths in custody: Salman v Turkey (2000) 34 EHHR 425, esp para 99 (unexplained death in custody, because persons in custody are in a vulnerable position and the authorities are under a duty to protect them); Edwards v United Kingdom (2002) 35 EHRR 487 (violent death of a prisoner at the hands of his cell mate); Akdogdu v Turkey (Application No 46747/99), 18 October 2005, (suicide in prison); R (D) v Secretary of State for the Home Department [2005] EWHC 728 (Admin); [2006] EWCA Civ 143, considered by the House of Lords in L (a case of suicide in prison). (iii) Conscripts: lvarez Ramn v Spain (Application No 51192/99), 3 July 2001; Kilin v Turkey (Application No 40145/98),7 June 2005; Savage v South East Essex NHS Foundation Trust (MIND intervening) [2008] UKHL 74; [2009] AC 681, paras 35 37, per Lord Rodger. (iv) Mental health detainees: Savage although concerned not with any duty to investigate under article 2, but with responsibility in a claim for damages for the suicide of a mental health detainee who succeeded in absconding and committed suicide highlights the analogy between the states duties (v) towards persons in custody and persons in detention for mental health reasons as well as conscripts. Other situations where the State has a positive substantive obligation to take steps to safeguard life. Such situations exist not only where the right to life is inherently at risk, but also where the State is on notice of a specific threat to someones life against which protective steps could be taken: Osman v United Kingdom (1998) 29 EHRR 245; neryildiz v Turkey (2004) 41 EHRR 325 (state allegedly tolerated and, for political reasons, encouraged slum settlements close to a huge uncontrolled rubbish tip, without making any effort to inform the settlers of dangers posed by the tip, which in the event exploded, killing some 39 residents). In neryildiz the Court said that, where lives had actually been lost in circumstances potentially engaging the responsibility of the State, the procedural aspect of article 2 entailed a further duty on the State to ensure an adequate response judicial or otherwise so that the legislative and administrative framework set up to protect the right to life is properly implemented and any breaches of that right are repressed and punished (para 91), and that the applicable principles are rather to be found in those the Court has already had occasion to develop in relation notably to the use of lethal force, principles which lend themselves to application in other categories of cases (para 93, italics added for emphasis). The Court explained that, just as in homicide cases the true circumstances of the death often in practice were, or might be, largely confined within the knowledge of state officials or authorities, so in its view such considerations are indisputably valid in the context of dangerous activities, when lives have been lost as a result of events occurring under the responsibility of the public authorities, which are often the only entities to have sufficient relevant knowledge to identify and establish the complex phenomena that might have caused such incidents (para 93). It added that: the requirements of article 2 go beyond the state of official investigation, where this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law (para 95). In neryildiz itself, it was not the preliminary investigation following the tragedy that was at fault, but rather the operation of the judicial system in response to the tragedy and investigation: paras 96, 115, 117 118 and 150 155. The procedural obligation incumbent on the state to investigate deaths which, either of their inherent nature or in their particular circumstances, involve the states potential responsibility under article 2 may be distinguished from the general substantive obligation under article 2 to establish an appropriate regulatory, investigatory and judicial system. The distinction was drawn clearly in respect of a third party killing in Menson v United Kingdom (2003) 37 EHRR CD 220. The Court there said: The Court observes that the applicants have not laid any blame on the authorities of the respondent State for the actual death of Michael Menson; nor has it been suggested that the authorities knew or ought to have known that Michael Menson was at risk of physical violence at the hands of third parties and failed to take appropriate measures to safeguard him against that risk. The applicants case is therefore to be distinguished from cases involving the alleged use of lethal force either by agents of the State or by private parties with their collusion (see, for example, McCann v United Kingdom (1995) [21 EHRR 97]; Jordan v United Kingdom (2001) [37 EHRR 52]; Shanaghan v United Kingdom, (Application No 37715/97), judgment of 4 May 2001, ECHR 2001 III (extracts), or in which the factual circumstances imposed an obligation on the authorities to protect an individuals life, for example where they have assumed responsibility for his welfare (see, for example, Edwards v United Kingdom (2002) [35 EHRR 487]), or where they knew or ought to have known that his life was at risk (see, for example, Osman v United Kingdom (1998) [29 EHRR 245]. The Court went on: However, the absence of any direct state responsibility for the death of Michael Menson does not exclude the applicability of article 2. It recalls that by requiring a State to take appropriate steps to safeguard the lives of those within its jurisdiction (see LCB v United Kingdom (1998) [27 EHRR 212], para 36), article 2 para 1 imposes a duty on that state to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person, backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions (see Osman, cited above, para 115). With reference to the facts of the instant case, the Court considers that this obligation requires by implication that there should be some form of effective official investigation when there is reason to believe that an individual has sustained life threatening injuries in suspicious circumstances. The investigation must be capable of establishing the cause of the injuries and the identification of those responsible with a view to their punishment. Where death results, as in Michael Mensons case, the investigation assumes even greater importance, having regard to the fact that the essential purpose of such an investigation is to secure the effective implementation of the domestic laws which protect the right to life (see mutatis mutandis, the Edwards judgment, above cited, para 69). Analysis: Both the substantive and the procedural limbs of article 2 are therefore capable of giving rise to obligations of investigation on the part of state authorities, including the courts. The present appeal concerns the circumstances in which article 2 gives rise to a particular procedural obligation on the part of the state of its own motion to initiate an effective public investigation by an independent official body following a death or near death. This in turn depends upon whether the circumstances involve a potential breach of the substantive obligation which article 2 contains. The questions are how general is this obligation and whether it was potentially engaged by the circumstances giving rise to Private Smiths sad death. The present case: The Court of Appeal treated Private Smiths death as analogous to the killing or suicide of a prisoner, detainee or conscript. It said (para 105): The question is therefore whether the principles apply to soldiers on active service in Iraq. We conclude that they do. They are under the control of and subject to army discipline. They must do what the army requires them to do. If the army sends them out into the desert they must go. In this respect they are in the same position as a conscript. Once they have signed up for a particular period they can no more disobey an order than a conscript can. The army owes them the same duty of care at common law. We recognise that they may not be quite as vulnerable as conscripts but they may well be vulnerable in much the same way, both in stressful situations caused by conflict and in stressful situations caused, as in Private Smith's case, by extreme heat. We see no reason why they should not have the same protection as is afforded by article 2 to a conscript. The scope of this reasoning is uncertain. It is unclear in particular whether the Court of Appeal was suggesting that all deaths of military personnel in service require to be investigated by a Middleton type inquiry. Certainly, it was the respondents submission before the Supreme Court that all soldiers deaths on active service must be regarded as being potentially the states responsibility, because of the degree of control in a closed system, and, therefore, as requiring full investigation by a Middleton type inquiry. In my judgment, that submission goes too far. Death on military service was an everyday risk in the environment of Iraq, as it is today in Afghanistan. Military service against hostile forces in a harsh environment is a situation par excellence where soldiers lives are likely to be lost without their employing state having even potential responsibility. I do not think that courts should subscribe to a view that all military service involves lions led by donkeys (Alan Clarks words in his 1961 work, The Donkeys: a History of the British Expeditionary Force in 1915, the inspiration for Joan Littlewoods Oh, What a Lovely War!). That may or may not have been a fair description of Earl Haigs strategy in the First World War. But, whatever debate may arise about the adequacy of equipment or funding for the armed forces in todays world, I do not think that it should open on an assumption that modern generals or modern ministers of defence are necessarily or even potentially in breach of their article 2 duties. There needs to be something more than that. The European Court of Human Rights jurisprudence summarised in para 210 above, is focused on deaths where, because of the nature or context (whether general or specific) of the death, the state can, without more, be said realistically to have some form of responsibility and in particular where it may alone have sufficient relevant knowledge to identify and establish the cause of the death or near death. Whether it can be said that such responsibility potentially exists in other cases depends upon their particular circumstances. The significance of a state having exclusive knowledge of the relevant events appears to be that this tends to open up a possibility of state involvement and a corresponding need for public investigation to exclude or establish that possibility. Nothing in the case law, and nothing in principle, establishes or indicates that the duty extends to every death of every soldier on active service. There are two particular differences between the present case and any situation previously considered. First, the present case concerns a volunteer Territorial Army soldier, who, the Supreme Court was told, would also have volunteered to go to Iraq (before, then, being served with compulsory call up papers to protect his position, presumably in respect of such matters as employment). I accept that a person who volunteers for active service puts himself or herself in a position where he or she is under extreme discipline, bound to obey orders in a harsh physical environment, the concomitant being that the army authorities must protect him or her against risks potentially arising from obeying such orders. But it does not follow that every death by heatstroke engages, without more, the states potential responsibility. Second, the case concerns death, not by killing, suicide or violence, but by heat associated with the admittedly harsh physical environment in which Private Smith was placed. It was incumbent on the army authorities to address the risks of heat in active service in Iraq, and put adequate systems in place to meet them. But, again, not every death by heat on active service in Iraq can or should be treated without more as involving a potential failure by the state to fulfil that responsibility or a defective system of protection, or therefore, in my view, as requiring the same level of scrutiny and investigation as a death by killing or suicide of a person in custody or a conscript. Some further examination of the particular facts is called for, before such a conclusion. Conclusion on issue 2 In my view, therefore, the coroners general approach was correct. Only if there were sufficient indicia of such a failure or deficiency was it incumbent on the state of its own motion to ensure an effective public investigation by an independent official body, and incumbent therefore on the coroner to expand the inquest to become a Middleton type inquest. The coroner in the first inquest (whose inquisition has now been set aside) concluded that there were insufficient indicia. Death resulting from negligence by members of the armed forces in the application of an established and appropriate system of protection is not axiomatically to be equated with state responsibility for the death under article 2: see para 215 above. But the sequence of events set out in Mrs Smiths case (paras 4 to 35), including the coroners own recommendations after giving judgment, are suggestive of systematic rather than simply operational errors and persuade me that there is here a sufficient case of state responsibility for Private Smiths death for us to be able to rule now that the fresh inquest should be of the Middleton type. The Secretary of States agreement serves merely to confirm the appropriateness of this on the particular facts. I would therefore answer the second issue (identified in para 200 above) affirmatively. It also follows that I would maintain the declaration contained in para 1 of Collins Js Order dated 12 May 2008 (deleting only its final words as set out in the Courts judgment, since it is the judgments in this Court that will now be determinative). LORD COLLINS Preliminary The academic nature of the debate on the first issue As the Court of Appeal recognised, the question of jurisdiction under article 1 on this appeal is academic. After Private Smith collapsed in the stadium where he was billeted, he was taken by ambulance to the medical centre at the camp, where he died of heatstroke. The Secretary of State conceded that the relevant circumstances leading to Private Smiths death took place within the geographical area of a British army camp and a British army hospital, and that a soldier who dies on a United Kingdom base dies within the jurisdiction of the United Kingdom for the purposes of article 1 of the Convention: [2008] 3 WLR 1284, at [7] (Collins J); [2009] 3 WLR 1099, at [8], [14] (CA). These concessions flowed from the decision of the House of Lords in R (Al Skeini) v Secretary of State for Defence [2007] UKHL 26, [2008] AC 153 (see [6], [61], [132] for the concessions) that the Secretary of State was right to concede the correctness of the Divisional Courts reasoning that Mr Mousas death in a British military detention centre in Iraq was within the scope of the Convention because the camp was to be assimilated to exceptional cases of extraterritoriality such as embassies and consulates: [2007] QB 140, at [287] (Div Ct). Nevertheless the Court of Appeal decided to hear argument on, and rule upon, the question whether a British soldier in the Territorial Army, who is on military service in Iraq, is subject to the jurisdiction of the United Kingdom within the meaning of article 1 of the Convention, so as to benefit from the rights guaranteed by the Human Rights Act 1998, while operating in Iraq, or whether he is only subject to the jurisdiction for those purposes when he is on a British military base or in a British hospital. The reason why the Court of Appeal took this course is that Collins J had decided the broader question, and because both the Secretary of State and the Equality and Human Rights Commission had characterised the question as being of great general significance or importance. The question is plainly one of importance, but it is unfortunate that it has been decided in the courts below, and will be decided in this court, in a case in which the point does not arise for decision and in which it is conceded to be academic. There is an obvious danger in giving what are in substance advisory opinions on hypothetical facts divorced from any concrete factual situation: see R (Weaver) v London and Quadrant Housing Trust (Equality and Human Rights Commission intervening) [2009] EWCA Civ 587, [2010] 1 WLR 363, at [90]. That is particularly so in the present case. In some of the cases on article 1 the Strasbourg court has considered relevant the degree of control or authority exercised by the respondent state in the foreign territory and the existence of the consent of the territorial state to the exercise of authority by the respondent state: see eg Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62]; Bankovi v Belgium (2001) 11 BHRC 435, at [60], [71]; calan v Turkey (2003) 37 EHRR 238, at [93]; (2005) 41 EHRR 985, at [91]; Issa v Turkey (2004) 41 EHRR 567, at [69]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85]. The degree of authority and control exercised by United Kingdom forces in Iraq, and the legal authority under which they operated, have varied from time to time over a lengthy period which is still continuing. The invasion of Iraq by coalition forces led by the United States of America (with a substantial force from the United Kingdom and smaller contingents from Australia and Poland) began on 20 March 2003. Major combat operations ceased at the beginning of May 2003. Private Smith was in Iraq from 18 June 2003 and died on 13 August 2003. It was accepted by the Secretary of State that between 1 May 2003 and 28 June 2004 (when the occupation formally ended) the United Kingdom was an occupying power for the purposes of the Hague Regulations on the Laws and Customs of War on Land, 1949, and the Fourth Geneva Convention on the Protection of Civilians in Time of War, 1949, in those areas of Southern Iraq where British troops exercised sufficient authority. On the relationship between international human rights law and international humanitarian law (such as the Geneva Conventions) contrast Dennis, Application of Human Rights Treaties Extraterritorially in Times of Armed Conflict and Military Occupation (2005) 99 AJIL 119, 141 with Roberts, Transformative Military Occupation: Applying the Laws of War and Human Rights (2006) 100 AJIL 580, 594. The Coalition Provisional Authority (CPA) was established on 16 April 2003 by the United States Government as a caretaker administration until an Iraqi government could be established. On 13 May 2003 the United States Secretary for Defense appointed Ambassador Paul Bremer as Administrator of the CPA with responsibility for the temporary governance of Iraq. The CPA administration was divided into regional areas. CPA South remained under United Kingdom responsibility and control. It covered the southernmost four of Iraq's eighteen provinces, and United Kingdom troops were deployed in the area. The CPA was not a subordinate organ or authority of the United Kingdom. The United Kingdom was represented at CPA headquarters through the office of the United Kingdom Special Representative, who had no formal decision making power within the CPA. All the CPAs administrative and legislative decisions were taken by Ambassador Bremer. By CPA Order No 17, issued in June 2003, all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States (section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)), and coalition facilities were to be inviolable (section 9(1)): While any areas on which such headquarters, camps or other premises are located remain Iraqi territory, they shall be inviolable and subject to the exclusive control and authority of the MNF, including with respect to entry and exit of all personnel. The MNF shall be guaranteed unimpeded access to such MNF premises. Where MNF Personnel are co located with military personnel of Iraq, permanent, direct and immediate access for the MNF to those premises shall be guaranteed. On 22 May 2003 the UN Security Council adopted Resolution 1483 under Chapter VII of the UN Charter. The Security Council re affirmed the sovereignty and territorial integrity of Iraq and recognised the specific authorities, responsibilities, and obligations under applicable international law of [the United States and the United Kingdom] as occupying powers under unified command. The Resolution supported the formation of an Iraqi interim administration as a transitional administration run by Iraqis until an internationally recognised, responsible government was established to assume the responsibilities of the CPA (article 9). In July 2003 the Governing Council of Iraq was established, which the CPA was to consult on all matters concerning the temporary governance of Iraq. UN Security Council Resolution 1500 (2003) of 14 August 2003 welcomed the establishment of the Governing Council of Iraq, and Resolution 1511 (2003) of 16 October 2003 determined that the Governing Council of Iraq and its ministers were the principal bodies of the Iraqi interim administration which embodied the sovereignty of the State of Iraq during the transitional period until an internationally recognised, representative government was established and assumed the responsibilities of the CPA; called upon the CPA to return governing responsibilities and authorities to the people of Iraq as soon as practicable; and invited the Governing Council of Iraq to produce a timetable and programme for the drafting of a new constitution for Iraq and for the holding of democratic elections under that constitution. It authorised the coalition to take all necessary measures to contribute to the maintenance of security and stability in Iraq and provided that the requirements and mission of the coalition would be reviewed within one year of the date of the Resolution and that in any case the mandate of the coalition was to expire upon the completion of the political process to which the resolution referred. On 8 March 2004 the Governing Council of Iraq promulgated the Law of Administration for the State of Iraq for the Transitional Period, which provided a temporary legal framework for the administration of Iraq for the transitional period which was due to commence by 30 June 2004 with the establishment of an interim Iraqi government. Security Council Resolution 1546 (2004) was adopted on 8 June 2004. It endorsed the formation of a sovereign Interim Government of Iraq to assume full responsibility and authority by 30 June 2004 for governing Iraq, and welcomed that, also by 30 June 2004, the occupation will end and [the CPA] will cease to exist, and that Iraq will reassert its full sovereignty (article 2). It noted that the presence of the coalition force was at the request of the incoming Interim Government (as set out in correspondence between the Iraqi Prime Minister and the United States Secretary of State annexed to the resolution) and reaffirmed the authorisation for the force to remain in Iraq, with authority to take all necessary measures to contribute to the maintenance of security and stability there. Provision was again made for the mandate to be reviewed within 12 months and to expire upon completion of the political process previously referred to. On 28 June 2004 the occupation came to an end when full authority was transferred from the CPA to the Interim Government and the CPA ceased to exist. Subsequently the coalition forces, including the United Kingdom force, remained in Iraq pursuant to the request and consent of the Iraqi Government and authorisations from the Security Council. All of the relevant Security Council resolutions from 1483 (2003) onwards reaffirmed the sovereignty of Iraq. Consequently the legal position of the United Kingdom forces has changed over the period since the invasion. Between March 2003 and June 2004 the United Kingdom was a belligerent occupant. The effective government of Iraq from April 2003 until June 2004 was the CPA, together with (from July 2003) the Governing Council of Iraq. From June 2004 the United Kingdom forces have been present at the request of, and with the consent of, the Iraqi Government. The consequence of the way in which these proceedings have been dealt with is that the court is being asked to determine whether the article 2 obligation existed in relation to a British soldier who died in Iraq in August 2003, when the United Kingdom forces were belligerent occupants in part of Iraq with a very small force. In 2003, in the area of Southern Iraq for which the United Kingdom had responsibility there were about 8,000 British troops for a population of 2,760,000: R (Al Skeini) v Secretary of State for Defence [2004] EWHC 2911 (Admin), [2007] QB 140, at [42] (Div Ct). The United Kingdom was not in effective control of Basra and surrounding areas: [2007] UKHL 26, [2008] AC 153, [83], per Lord Rodger, approving Brooke LJ [2005] EWCA Civ 1609, [2007] QB 140, [124] (CA). The Court of Appeal recognised in the present case that at the time of Private Smiths death the army was neither in effective control of Iraqi territory nor acting through the consent, invitation or acquiescence of the local sovereign or its government: [2009] 3 WLR 1099 [37] [38]. The case for Mrs Smith and for the Equality and Human Rights Commission on Private Smith was not put on the basis of Private Smith having been on territory under the control of the United Kingdom, or of the army as a State agent. Their case was that Private Smith was subject to the jurisdiction of the United Kingdom as a member of the armed forces. But the question whether the elements of authority and control by the United Kingdom and/or consent of the territorial sovereign are relevant cannot be avoided, and it is regrettable that the issues fall to be decided either without any relevant factual background, or on the hypothesis that the death occurred (as Private Smiths death did) in 2003, when United Kingdom forces were not in effective control, and when they were there as belligerent occupants without the consent of the territorial sovereign, and that the only issue is whether jurisdiction over armed forces is sufficient for article 1 purposes. R (Gentle) v Prime Minister The next preliminary matter is that the first question raised on this appeal has already been the subject of a decision of the House of Lords. In R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, the appellants submitted that all British servicemen on active service overseas fall within the article 1 jurisdiction of the United Kingdom. The appellants specifically relied upon the fact that the soldiers were United Kingdom nationals under the command and control of the United Kingdom and that they were under the authority of British law when in Iraq. The argument was firmly rejected by Lord Bingham, who said at [8(3)]: Here the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted [citing Al Skeini [79] and [129]]. Lady Hale took a different view ([60]), and Lord Carswell left the point open ([66]), but Lords Hoffmann ([16]), Hope ([28]), Scott ([29]), Rodger ([45]), Brown ([71]) (but perhaps with a reservation at [70]) and Mance ([74]) agreed generally with Lord Binghams opinion. It would be a sterile exercise to consider whether this holding was part of the ratio, since on any view this important question was not subject to extensive argument, and it would be wrong for this court to dispose of the matter simply on the basis that the issue was covered by precedent. But it has to be said that the views of Lord Bingham in this area (as in many others) are entitled to the greatest possible respect. The application of the Convention and the meaning of jurisdiction The problem presented on this appeal is not a problem unique to the application of modern human rights instruments. In the United States there are many decisions on the application of constitutional rights to United States citizens and aliens abroad. See (among many others) Henkin, The Constitution as Compact and as Conscience: Individual Rights Abroad and at our Gates, 27 Wm & Mary L Rev 11, 17 24 (1985); Lowenfeld, US Law Enforcement Abroad: The Constitution and International Law 83 AJIL 880 (1989) and 84 AJIL 444 (1990); Brilmayer and Norchi, Federal Extraterrioriality and Fifth Amendment Due Process, 105 Harv L Rev 1217 (1992). The trend in the United States is to extend the protection of the Constitution to United States citizens abroad (but not, generally, aliens) whose rights are violated by United States authorities. It has been said that when the Government reaches out to punish a citizen who is abroad, the shield which the Bill of Rights and other parts of the Constitution provide to protect his life and liberty should not be stripped away just because he happens to be in another land: Reid v Covert, 354 US 1, 6 (1957), per Black J, for a plurality of four justices (military court tried and convicted the wife of a US air force sergeant for the murder of her husband at an air base in England: entitled to a jury trial as required by the Sixth Amendment). Thus in relation to the Iraq conflict, United States citizens have been held entitled to make constitutional claims arising out of detention or alleged torture by US military officials: Kar v Rumsfeld, 580 F Supp 2d 80 (DDC 2008); Vance v Rumsfeld, 5 March 2010, WL 850173 (ND Ill 2010) (American citizens do not forfeit their core constitutional rights when they leave the United States, even when their destination is a foreign war zone[T]he right of American citizens to be free from torture is a well established part of our constitutional fabric.) But as the court said in the latter case, the cases establish the importance of citizenship in circumstances in which federal agents outside the United States carry out constitutional violations (at 13). The position is different where non citizens are involved. In United States v Verdugo Urquidez, 494 US 259 (1990) it was held that the Fourth Amendment did not apply to the joint search by Mexican and United States authorities of a Mexican suspects home in Mexico while he was in custody in the United States. This is because the people means the American people. Rehnquist CJ said that aliens should not have extra territorial Fourth Amendment rights, because grave uncertainties would be created for the US employment of armed forces abroad: at 273. See also Rasul v Myers, 563 F 3d 527, 532 (DC Cir 2009) (British citizens detained at Guantanamo Bay); Re Iraq and Afghanistan Detainees Litigation, 479 F Supp 2d 85, 108 (DDC 2007) (alleged torture of Afghani and Iraqi citizens); Arar v Ashcroft, 585 F 3d 559 (2d Cir 2009) (no action against government officials allegedly responsible for aliens extraordinary rendition to Syria). But the application of constitutional protection to activities abroad does not mean that the conduct of military operations is justiciable. In the United States the conduct of military operations is so exclusively entrusted to the political branches of government as to be largely immune from judicial inquiry or interference: Harisiades v Shaughnessy, 342 US 580, 589 (1952). See Arar v Ashcroft, 585 F 3d 559, 590 (2d Cir 2009) On this appeal the question arises in the context of the meaning and application of the expression within their jurisdiction. The expression jurisdiction is used in many senses in international law. The doctrine of jurisdiction in international law has given rise to an enormous literature, of which it is useful to mention, in particular, Mann, The Doctrine of Jurisdiction in International Law, in Studies in International Law (1973), p 1; Oppenheim, International Law, 8th ed Sir Hersch Lauterpacht, 1955, pp 235 et seq; Akehurst, Jurisdiction in International Law (1972 73) 46 BYIL 145; Meessen, Extraterritorial Jurisdiction in International Law (1996); Higgins, Themes and Theories: Selected Essays, Speeches and Writings in International Law, 2009, Vol 2, pp 799 et seq. Not every use of the expression jurisdiction in international law is co terminous with that in article 1. For example, a state may exercise jurisdiction over its nationals abroad in the sense that it may prescribe rules of law in relation to its nationals abroad: Restatement (Third), Foreign Relations Law of the United States, 1987, section 402; Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, para 138; Higgins, ante, vol 2, p 802. But that does not mean that all United Kingdom nationals wherever they may be are within the jurisdiction of the United Kingdom for the purposes of article 1. Armed forces of the United Kingdom serving abroad are subject to military law and discipline, they owe allegiance to the Crown, and where they are stationed abroad with the consent of the local sovereign, the arrangements with that sovereign will normally provide for immunity (at least in certain respects) from the civil and criminal jurisdiction of the host state: for the immunity of United States armed forces in the United Kingdom see Littrell v United States of America (No 2) [1995] 1 WLR 82 (CA); Holland v Lampen Wolfe [2000] 1 WLR 1573 (HL). In that sense there can be no doubt that armed forces serving abroad are subject to the jurisdiction of the United Kingdom, or as Lord Bingham put it in R (Gentle) v Prime Minister [2008] UKHL 20, [2008] AC 1356, [8(3)], subject to the authority of the United Kingdom. The international practice is confirmed by CPA Order No 17, under which all coalition personnel were expressed to be subject to the exclusive jurisdiction of their Sending States(section 2(3)) and immune from legal process and arrest or detention (section 2(1), (3)). Nor is there any doubt that members of the armed forces have, apart from the Convention, rights to enforce the Crowns duties to them: Mulcahy v Ministry of Defence [1996] QB 732 (subject to a possible exception for active operations: Shaw Savill and Albion Co Ltd v Commonwealth (1940) 66 CLR 344 and cf Burmah Oil Co Ltd v Lord Advocate [1965] AC 75). The Crown Proceedings Act 1947, section 10 excluded armed forces from the benefit of remedies against the Crown, but its operation was suspended by the Crown Proceedings (Armed Forces) Act 1987, section 2 of which gave the Secretary of State for Defence the power (which has not yet been exercised) to revive section 10 of the 1947 Act. What is jurisdiction in international law? According to Oppenheim, International Law, 9th ed Jennings and Watts, 1992, vol 1, p 456: State jurisdiction concerns essentially the extent of each states right to regulate conduct or the consequences of events. In practice jurisdiction is not a single concept. A states jurisdiction may take various forms. Thus a state may regulate conduct by legislation; or it may, through its courts, regulate those differences which come before them, whether arising out of the civil or criminal law; or it may regulate conduct by taking executive or administrative action which impinges more directly on the course of events, as by enforcing its laws or the decisions of its courts. The extent of the states jurisdiction may differ in each of these contexts. The Restatement (Third), Foreign Relations Law of the United States (1987) vol 1, p 230, uses jurisdiction to mean the authority of states to prescribe their law, to subject persons and things to adjudication in their courts and other tribunals, and to enforce their law, both judicially and non judicially. These different aspects of jurisdiction are sometimes said to be curial or judicial jurisdiction, legislative jurisdiction, and enforcement jurisdiction. Curial jurisdiction is essentially concerned with the ability of courts to exercise jurisdiction in civil matters over foreigners. Legislative jurisdiction is about the ability of states to use their own laws to regulate or punish acts in foreign countries. The question in international law is whether states have a legitimate interest in, or sufficient connection with, acts committed abroad so as to justify the application of their laws to them. In the famous Lotus case (France v Turkey), (1927) PCIJ, Series A, No.10, p 4, the Permanent Court of International Justice said (at 19): Far from laying down a general prohibition to the effect that states may not extend the application of their laws . to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules International controversies over the extra territorial application of criminal or penal laws, such as anti trust or securities laws, are about the limits of legislative jurisdiction: see Morrison v National Australia Bank Ltd, United States Supreme Court, June 24, 2010. That is no doubt why, as will appear below, the Strasbourg court referred in Bankovi v Belgium (2001) 11 BHRC 435, [59], in the context of the words within their jurisdiction in article 1 of the Convention to the bases of jurisdiction to prescribe criminal offences for conduct abroad. As for enforcement jurisdiction, in the Lotus case (France v Turkey), the Permanent Court said (at 18 19): Now the first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. That is a statement about enforcement jurisdiction, namely the limits of the right of a state to act on the territory of another state or to take measures on its own territory which require compliance in another state. Thus a state cannot, without the consent of the territorial sovereign, perform official acts in a foreign state or carry out official investigations in the foreign state. The inability of a foreign state to claim, directly or indirectly, its taxes in England is sometimes put on the basis that it is an illegitimate extension of its territorial jurisdiction: see Government of India v Taylor [1955] AC 491. The issue on this part of the appeal On this part of the appeal the issue is whether the undoubted jurisdiction which states has over their armed forces abroad means that their soldiers are within their jurisdiction for the purposes of article 1 of the Convention. The obvious starting point is that the operation of the Convention is territorial, and that its extra territorial application is exceptional. The Strasbourg court has recognised few exceptions, and it is not easy to extract a common principled basis for them. The main questions which arise are (1) whether armed forces can be brought within article 1 simply on the basis that in international law they are subject to the jurisdiction of the state which they serve; or (2) whether they are within article 1 because of the authority and control which the state exercises over them; (3) whether they are within article 1 because there is a jurisdictional link between them and the state. In order that these questions may be considered it is necessary to consider Bankovi v Belgium (2001) 11 BHRC 435 and its antecedents, and some of the subsequent Strasbourg cases considered in Al Skeini, and finally cases decided in Strasbourg after Al Skeini. Early cases At the risk of repeating some of what has been said in other cases about the antecedents of Bankovi v Belgium (2001) 11 BHRC 435, it is important to consider what was decided by the Strasbourg court in Bankovi in December 2001 against the background of decisions of the Commission and the Court on the scope of jurisdiction under article 1 stretching over 35 years. In Soering v United Kingdom (1989) 11 EHRR 439, at [86], the Court, in plenary session, had referred to the limit on the reach of the Convention under article 1 as being notably territorial. One line of decisions suggested that a state would be responsible for acts of its officials (especially diplomatic and consular officials) performed abroad in performance of their duties to nationals: X v Germany (1965) 8 Yb ECHR 158 (Commission). Similar statements in Cyprus v Turkey (1975) 2 DR 125, at [8] and Hess v United Kingdom (1975) 2 DR 72 fall within this category also, and are not based, as they could have been (and, in the case of Cyprus, later were), on control of territory in Northern Cyprus in the former decision, or on Spandau prison being an extension of the territory of the occupying powers. It is likely that the emphasis on diplomats and consuls in the early decisions reflected the fiction of the extra territoriality of diplomatic premises. There is, however, no actual decision (as distinct from dicta) either of the Commission or of the Court which assimilates diplomatic or consular premises to the territory of the sending state. So also Cyprus v Turkey (1975) 2 DR 125, at [8] assumed an extended notion of territoriality in relation to ships and aircraft registered in a Convention state. Another line of Commission decisions expressed the thought that the expression within their jurisdiction was not equivalent to or limited to the national territory of the contracting state concerned, and extended to all persons under their actual authority and responsibility, whether that authority is exercised within their own territory or abroad : Cyprus v Turkey (1975) 2 DR 125, at [8]. See also X & Y v Switzerland (1977) 2 DR 57; M v Denmark (1992) 73 DR 193. These strands, acts by officials affecting persons, or officials exercising authority over persons, were brought together in X v United Kingdom, (Application No 7547/76) (1977) 12 DR 73. This was a child abduction case in which a Jordanian married to a British woman took their daughter to Jordan. The complaint was that the British consulate in Amman had not done enough to obtain the custody of her daughter following a custody order by the English court. The Commission was satisfied that the consular authorities had done all that could be reasonably expected of them. The Commission said, on jurisdiction, that it was clear from the constant jurisprudence of the Commission that authorised agents of a state, including diplomatic or consular agents, brought other persons or property within the jurisdiction of that state to the extent that they exercised authority over such persons or property. Insofar as they affected such persons or property by their acts or omissions, the responsibility of the state was engaged. Therefore even though the alleged failure of the consular authorities to do all in their power to help the applicant occurred outside the territory of the United Kingdom, it was still within [the] jurisdiction within the meaning of article 1. It should be noted that this formulation by the Commission is inconsistent with the text of article 1, which is about persons within the jurisdiction, and not about acts or omissions within the jurisdiction. The decision of the Court in plenary session in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 must be read against the background of the previous cases. French and Spanish judges acted as judges in Andorra which was ruled by two co princes, the President of the French Republic and the Bishop of Urgel (in Spain). The applicants were Spanish and Czech citizens, who had been convicted of armed robbery and complained that they had not had a fair trial. The Court agreed with the respondent states that the judges did not sit in their capacity as French or Spanish judges, and their judgments were not subject to supervision by the authorities of France or Spain. It does not seem to have been disputed by France and Spain that, if the judges had sat in their capacity as French or Spanish judges, the jurisdictional test of article 1 would have been satisfied. The way in which the Court put it was that France and Spain would be responsible because of acts of their authorities producing effects outside their own territory. (at [91], citing most of the cases mentioned above). See also Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, at [62]. The final strand in the authorities prior to Bankovi is represented by the notion that effective control of territory abroad is equivalent to jurisdiction over that territory. In Loizidou v Turkey (Preliminary Objections) (1995) 20 EHRR 99, the Court (reflecting Cyprus v Turkey (1975) 2 DR 125, at [8]) held (at [62]) that the responsibility of a Contracting Party may also arise when as a consequence of military action whether lawful or unlawful it exercises effective control of an area outside its national territory. The obligation to secure, in such an area, the rights and freedoms set out in the Convention, derives from the fact of such control whether it be exercised directly, through its armed forces, or through a subordinate local administration. The concept of control is also taken up in other Northern Cyprus cases: e.g. Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52]; Cyprus v Turkey (2001) 35 EHRR 731, at [77]. Prior to Bankovi, the Court had also declared admissible complaints against Turkey (a) arising out of operations of its armed forces in Northern Iraq which were alleged to have resulted in violations of the Convention, including the death and torture of some villagers (Issa v Turkey, Application No 31821/96, 30 May 2000, unreported); and (b) arising out of the arrest by Turkish security officers of the applicant, the leader of the PKK, at Nairobi airport with the consent of the Kenyan authorities, and his subsequent removal to, and trial in Turkey (calan v Turkey, (Application No 46221/99), 14 December 2000, unreported). In neither of these admissibility decisions was there any discussion of jurisdiction under article 1. Bankovi v Belgium The concessions by the respondent states The prior decisions go some way to explaining why the respondent states made a number of concessions in Bankovi, not all of which found their way into the reasoning of the Court. They accepted that (a) the exercise of jurisdiction involved the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to the state or who had been brought within that states control, and that the term jurisdiction generally entailed some form of structured relationship normally existing over a period of time (judgment of the Court at [36]); (b) the Court had applied that notion of jurisdiction to confirm that individuals affected by acts of a state outside its territory could be considered to fall within its jurisdiction because there was an exercise of some form of legal authority by the state over them (at [37]); (c) the arrest and detention of the applicants in Issa v Turkey and calan v Turkey constituted a classic exercise of such legal authority or jurisdiction over those persons by military forces on foreign soil (ibid). The issue The issue in Bankovi, stated in para [54] of the decision of the Grand Chamber by reference to the decisions in Drozd and the cases involving Northern Cyprus, was whether the fact that the acts of the respondent states were performed or had effects outside the territory of the contracting states meant that the applicants were capable of falling within the jurisdiction of the respondent states. The concept of jurisdiction in the Courts decision For present purposes, the relevant points which emerge from Bankovi are these: (1) the jurisdictional competence of a state is primarily territorial; (2) international law does not exclude a states exercise of jurisdiction extra territorially, but the bases of such jurisdiction (including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality) are as a general rule defined and limited by the sovereign territorial rights of other states; (3) the competence of a state to exercise jurisdiction over its own nationals abroad is subordinate to the territorial competence of that state and other states; (4) a state may not exercise jurisdiction on the territory of another without the consent of the latter unless it is an occupying state, in which case it may exercise jurisdiction in certain respects; (5) article 1 of the Convention reflects the ordinary and essentially territorial notion of jurisdiction; (6) other bases of jurisdiction are exceptional and require special justification in the particular circumstances of each case; (7) article 1 is not to be treated as part of the living instruments provisions, and the travaux confirmed the ordinary meaning of article 1. It should be noted that the Court nowhere explains what it understands by the expression jurisdiction in the context of article 1. The reference in para [59] to extraterritorial jurisdiction as including nationality, flag, diplomatic and consular relations, effect, protection, passive personality and universality is a mixture of two entirely different concepts of extra territoriality. The first (nationality, flag, diplomatic and consular relations) reflects the fiction of the extra territoriality of ships and aircraft and diplomatic and consular premises. The second (effect, protection, passive personality and universality) represents the generally accepted exceptions to the territorial nature of criminal jurisdiction, that is, the exceptions to the principle that a state cannot use its criminal courts to punish persons for acts committed abroad. The first aspect can be illustrated by the way it is put in the last edition of Oppenheim edited by Sir Hersch Lauterpacht, 8th ed (1955), pp 461, 793): In contradistinction to these real parts of State territory there are some things that are either in every respect or for some purposes treated as though they were territorial parts of a State. They are fictional and in a sense only parts of the territory. Thus men of war and other public vessels on the high seas as well as in foreign territorial waters are essentially in every point treated as though they were floating parts of their home State. The premises in which foreign diplomatic envoys have their official residence are in many respects treated as though they were parts of the home States of the envoys concerned. Again merchantmen on the high seas are in certain respects treated as though they were floating parts of the territory of the State under whose flag they legitimately sail. Extraterritoriality, in this as in every other case, is a fiction only, for diplomatic envoys are in reality not without, but within, the territories of the receiving States. The term extraterritoriality is nevertheless valuable because it demonstrates clearly the fact that envoys must, in most respects, be treated as though they were not within the territory of the receiving States. The so called extraterritoriality of envoys takes practical form in a body of privileges which must be severally discussed. The second aspect of jurisdiction, reflected in the Courts reference to effect, protection, passive personality and universality is that which has much exercised international lawyers (but which has nothing to do with the issue under article 1), namely the extent to which states can exercise criminal jurisdiction in respect of acts committed outside their national territory. In the Lotus case the Permanent Court said (at 20): Though it is true that in all systems of law the principle of the territorial character of criminal law is fundamental, it is equally true that all or nearly all these systems of law extend their action to offences committed outside the territory of the State which adopts them, and they do so in ways which vary from State to State. The territoriality of criminal law, therefore, is not an absolute principle of international law and by no means coincides with territorial sovereignty. Consequently it is well accepted that there are well established exceptions to the territorial principle, and they are reflected in the reference in Bankovi at [59] to effect (normally referred to as effects), protection, passive personality and universality. The exceptions normally articulated are these: first, the nationality principle by which a state has jurisdiction over crimes committed by its nationals abroad; second, the so called protective principle under which states claim jurisdiction over acts committed by aliens abroad which threaten the state; third, the passive personality basis of jurisdiction under which a state may exercise jurisdiction over crimes committed abroad by aliens if the victim is a national of the state claiming jurisdiction; fourth, the controversial effects doctrine where jurisdiction is taken over an offence which is committed abroad, but which has economic effects in the forum state (such as violations of anti trust laws or securities laws), and which is sometimes said to be an aspect of the so called objective territorial principle, jurisdiction over an offence committed outside the state but concluded or consummated within the territory; fifth, the principle of universal jurisdiction, the oldest example being jurisdiction to try pirates, and now frequently invoked in relation to jurisdiction over war crimes. See Jennings, Extraterritorial Jurisdiction and United States Anti Trust Laws (1957) 32 BYIL 146. It has to be said that neither Bankovi nor a case such as the present has anything to do with extra territorial jurisdiction in these two senses. The question here is whether armed forces serving abroad are within the jurisdiction of the contracting states in a quite different sense, namely whether the fact that they are subject to the military law and discipline of the United Kingdom, and generally not subject to the local law, results in their being within the jurisdiction of the United Kingdom for article 1 purposes. The exceptional cases The Court went out of its way in Bankovi to emphasise the exceptional nature of the cases in which a state could be responsible for acts or omissions outside its national territory. First, it expressed the view that article 1 of the Convention must be considered to reflect [the] ordinary and essentially territorial notion of jurisdiction, other bases of jurisdiction being exceptional and requiring special justification in the particular circumstances of each case (at [61]). Second, it said (at [67]): In keeping with the essentially territorial notion of jurisdiction, the Court has accepted only in exceptional cases that acts of the contracting states performed, or producing effects, outside their territories can constitute an exercise of jurisdiction by them within the meaning of article 1 of the Convention. Third, it emphasised (at [71]): In sum, the case law of the Court demonstrates that its recognition of the exercise of extra territorial jurisdiction by a contracting state is exceptional The Courts treatment of the exceptional cases where acts of contracting states performed, or producing effects, outside their territories could constitute an exercise of jurisdiction within the meaning of article 1 may be summarised in this way. The Soering v United Kingdom line of cases is not concerned with the extra territorial exercise of jurisdiction, because liability is incurred in such cases by the action of a state concerning a person while he or she was on its territory and clearly within its jurisdiction: [68]. The exceptions which the Court recognises are these. First, the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory, at [69], citing the Drozd case. Second, the responsibility of a contracting state is capable of being engaged when as a consequence of military action (lawful or unlawful) it exercises effective control of an area outside its national territory as a consequence of military operation or through the consent, invitation or acquiescence of the Government of that territory, and exercises all or some of the public powers normally to be exercised by that Government: at [70], citing Loizidou v Turkey (Preliminary Objections) and Cyprus v Turkey (2001) 35 EHRR 731. These cases were explained on this basis that the respondent state, through the effective control of the relevant territory and its inhabitants abroad as a consequence of military occupation or through the consent, invitation or acquiescence of the Government of that territory, exercises all or some of the public powers normally to be exercised by that Government (at [71]). Third (reflecting the fictional extra territoriality of diplomatic and consular premises and of ships and aircraft) other recognised instances of the extra territorial exercise of jurisdiction by a state include cases involving the activities of its diplomatic or consular agents abroad and on board craft and vessels registered in, or flying the flag of, that state and in these specific situations, customary international law and treaty provisions have recognised the extra territorial exercise of jurisdiction by the relevant state (at [73]). In applying these principles to the facts the Court rejected the suggestion that anyone adversely affected by an act imputable to a contracting state, wherever in the world that act may have been committed or its consequences felt, was thereby brought within the jurisdiction of that state for the purpose of article 1 of the Convention. The applicants had accepted that jurisdiction, and any consequent state Convention responsibility, would be limited in the circumstances to the commission and consequences of that particular act. But the Court was of the view that the wording of article 1 [did] not provide any support for the applicants suggestion that the positive obligation in article 1 to secure the rights and freedoms defined in Section I of this Convention can be divided and tailored in accordance with the particular circumstances of the extra territorial act in question (at [75]). In answer to the argument that failure to recognise the claim of the applicants would leave a vacuum in the Convention system, the Court said (at [80]): The Courts obligation, in this respect, is to have regard to the special character of the Convention as a constitutional instrument of European public order for the protection of individual human beings and its role, as set out in article 19 of the Convention, is to ensure the observance of the engagements undertaken by the Contracting Parties It is therefore difficult to contend that a failure to accept the extra territorial jurisdiction of the respondent States would fall foul of the Conventions ordre public objective, which itself underlines the essentially regional vocation of the Convention system In short, the Convention is a multi lateral treaty operating, subject to article 56 of the Convention, in an essentially regional context and notably in the legal space (espace juridique) of the Contracting States. The Convention was not designed to be applied throughout the world, even in respect of the conduct of Contracting States. Accordingly, the desirability of avoiding a gap or vacuum in human rights protection has so far been relied on by the Court in favour of establishing jurisdiction only when the territory in question was one that, but for the specific circumstances, would normally be covered by the Convention.[Emphasis in original text]. The Court said (at [80]) that Cyprus v Turkey (2001) 35 EHRR 731 related to an entirely different situation: the inhabitants of northern Cyprus would have found themselves excluded from the benefits of the Convention safeguards and system which they had previously enjoyed, by Turkeys effective control of the territory and by the accompanying inability of the Cypriot Government, as a contracting state, to fulfil the obligations it had undertaken under the Convention. The Court did not deal expressly with the applicability of the exception it had identified by reference to Drozd, namely that the responsibility of contracting states could in principle be engaged because of acts of their authorities which produced effects or were performed outside their own territory. But it did deal with the applicants reliance on the admissibility decisions in Issa v Turkey and calan v Turkey. In each of those cases the Court had held admissible complaints relating to Turkeys conduct in non contracting states, Iraq in the former case and Kenya in the latter case. All that the Court said about those cases was this (at [81]): It is true that the Court has declared both of these cases admissible and that they include certain complaints about alleged actions by Turkish agents outside Turkish territory. However, in neither of those cases was the issue of jurisdiction raised by the respondent Government or addressed in the admissibility decisions and in any event the merits of those cases remain to be decided. The conclusion of the Court (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states. The subsequent decisions The exceptional nature of any liability for extra territorial acts or omissions articulated in Bankovi has been repeatedly quoted or re stated by the Court: calan v Turkey (2003) 37 EHRR 238, at [93]; Assanidze v Georgia (2004) 39 EHRR 653, at [137]; Ilacu v Moldova and Russia (2005) 40 EHRR 1030, at [314]; Issa v Turkey (2004) 41 EHRR 567, at [68]; Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95, at [85]; Stephens v Malta (No 1)(2009) 50 EHRR 144, at [49]; Medvedyev v France, Grand Chamber, 29 March 2010, at [64]. In particular the concept of jurisdiction based on effective control has been applied in Assanidze v Georgia and Ilacu v Moldova and Russia, ante. The decisions subsequent to Bankovi in Strasbourg up to the time of Al Skeini were fully discussed by the Divisional Court, the Court of Appeal, and the House of Lords, and it is not necessary to go over the same ground. It is useful only to consider the relevance of the decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, and of the decisions subsequent to Al Skeini in Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber); Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95; and Medvedyev v France, Grand Chamber, 29 March 2010. Authority and control and State agents The decisions in calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) and Issa v Turkey (2004) 41 EHRR 567, both of which were extensively discussed in Al Skeini, are relevant on this appeal because of what is said to be their support for the argument that armed forces abroad are subject to the jurisdiction of the sending state because they are under the authority and control of the sending state. calan v Turkey In calan v Turkey (2003) 37 EHRR 238; (2005) 41 EHRR 985 (Grand Chamber) the applicant was arrested by members of the Turkish security forces inside a Turkish aircraft in the international zone of Nairobi airport. His complaint related both to his treatment in Nairobi and subsequently in Turkey. As regards his treatment in Kenya, he complained under articles 3 and 5 about handcuffing and blindfolding, alleged sedation and unlawful arrest. There was also a complaint that the abduction overseas on account of his political opinions constituted inhuman or degrading treatment within the meaning of article 3. It was held that the complaints about the arrest in Kenya fell within article 1. In the first decision the Court said (at [93]): the applicant was arrested by members of the Turkish security forces inside an aircraft in the international zone of Nairobi Airport. Directly after he had been handed over by the Kenyan officials to the Turkish officials the applicant was under effective Turkish authority and was therefore brought within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. The Court considers that the circumstances of the present case are distinguishable from those in the aforementioned Bankovi case, notably in that the applicant was physically forced to return to Turkey by Turkish officials and was subject to their authority and control following his arrest and return to Turkey The Grand Chamber said (at [91]): The Court notes that the applicant was arrested by members of the Turkish security forces inside an aircraft registered in Turkey in the international zone of Nairobi Airport. It is common ground that, directly after being handed over to the Turkish officials by the Kenyan officials, the applicant was under effective Turkish authority and therefore within the jurisdiction of that State for the purposes of Article 1 of the Convention, even though in this instance Turkey exercised its authority outside its territory. It is true that the applicant was physically forced to return to Turkey by Turkish officials and was under their authority and control following his arrest and return to Turkey (see, in this respect, the aforementioned decisions in the cases of Illich Ramirez Snchez v France and Freda v Italy; and, by converse implication, the Bankovi v Belgium . There are four features about this decision which should be noted. First, the Turkish Government conceded that the case fell within article 1. Second, it involved, at least in part, acts committed on a Turkish aircraft. Third, the Turkish activities were authorised by Kenya. Fourth (as Lord Brown pointed out in Al Skeini at [118] [119]), it involved the forcible removal by state A from state B with state Bs consent of a person wanted for trial in state A. Cf Illich Ramirez Snchez v France (Application No 28780/95) (1996) 86 A DR 155 (Commission); see also Lpez Burgos v Uruguay (1981) 68 ILR 29 and Celiberti de Casariego v Uruguay (1981) 68 ILR 41(UN Human Rights Committee). In Stephens v Malta (No 1) (2009) 50 EHRR 144, at [52], [54], in a section dealing with jurisdiction under article 1, it was held that the arrest of a British citizen in Spain pursuant to an unlawful request for extradition by Malta was attributable to, and engaged the responsibility of, Malta, but the Court did not explain why the applicant was within the jurisdiction of Malta. It is entirely consistent with common sense for the Convention to apply (even to that part of the operation which occurs abroad) when agents of a state go abroad and forcibly remove one of its citizens for trial at home. The decision is not authority for a generalised basis of jurisdiction based on authority and control by state agents. Issa v Turkey Issa v Turkey (2004) 41 EHRR 567 has been subject to close analysis and criticism at all levels in Al Skeini. It arose out of an incursion by Turkish troops into Northern Iraq in 1995 to pursue and eliminate Turkish terrorists who were seeking shelter in Iraq. The applicants were Iraqi villagers who alleged that in contravention of their Convention rights and those of their relatives, Turkish troops had (among other things) detained, tortured, and killed villagers and caused distress to others. The Court decided that the applicants relatives did not come within the jurisdiction of Turkey within the meaning of article 1. Citing Loizidou v Turkey (Merits) (1996) 23 EHRR 513, at [52], the Court re stated (but for the first time in relation to territory outside the Convention states) that the responsibility of a state could be engaged where as a consequence of military action, whether lawful or unlawful, the state in practice exercised effective control of an area situated outside its national territory: [68] [69]. That deals with jurisdiction based on control of territory, and not jurisdiction based on authority and control of the victim by state agents outside the territory of the state. In a much discussed passage, the Court said (at [71]) Moreover, a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State Accountability in such situations stems from the fact that Article 1 of the Convention cannot be interpreted so as to allow a State party to perpetrate violations of the Convention on the territory of another State, which it could not perpetrate on its own territory (ibid). Consequently, jurisdiction could have been based on either effective control of the area or (although the formulation is by no means clear) on the activities of state agents against local inhabitants. But the applicants were not within the jurisdiction of Turkey because Turkey did not exercise effective control over the relevant area, and also because it had not been proved that Turkish forces had conducted operations in the area in question: [75], [81]. It is implicit in the reasoning in this decision that there would have been jurisdiction if the Turkish troops had been guilty of atrocities even without overall control of the area. If that is so, it is inconsistent with Bankovi. It is impossible to see how an attack on villagers in a cross border incursion into a non contracting state could make the villagers within the jurisdiction of Turkey, when a bombing raid on Belgrade did not make the victims within the jurisdiction of the NATO States involved. The notion of authority and control through State agents operating abroad derives from the report of the Inter American Commission of Human Rights in Coard v United States (Report No 109/99, 29 September 1999) (1999) 9 BHRC 150, which was cited by the Strasbourg court in Issa v Turkey at [71] in support of that notion. The Commission was examining complaints about the applicants detention and treatment by United States forces in the military operation in Grenada. The American Declaration on the Rights and Duties of Man 1948 contains no express provision on its territorial limits. The Commission said: While the extraterritorial application of the Declaration has not been placed at issue by the parties Given that individual rights inhere simply by virtue of a persons humanity, each American state is obliged to uphold the protected rights of any person subject to its jurisdiction. While this most commonly refers to persons within a states territory, it may, under given circumstances, refer to conduct with an extraterritorial locus where the person concerned is present in the territory of one state, but subject to the control of another state usually through the acts of the latters agents abroad. In principle, the inquiry turns not on the presumed victims nationality or presence within a particular geographic area, but on whether, under the specific circumstances, the state observed the rights of a person subject to its authority and control. The Coard report was referred to in Bankovi at [23] and [78], but the Grand Chamber (at [78]) specifically indicated that it derived no assistance from it because the American Declaration on the Rights and Duties of Man 1948 contained no explicit limitation of jurisdiction. Jurisdiction on the basis of authority and control (especially outside the Convention states) as a separate head was firmly rejected by the House of Lords in Al Skeini: see especially Lord Brown at [116] [127], and Lord Rodger at [73] [77]; and see also Rix LJ speaking for the Administrative Court at [216], and Brooke LJ in the Court of Appeal at [103]. Not only is there no firm basis in authority for the notion of authority and control as a basis of jurisdiction under article 1, Issa is also inconsistent with the notion of the regional nature of the Convention. As Lord Rodger said in Al Skeini (at [78]): The essentially regional nature of the Convention is relevant to the way that the court operates. It has judges elected from all the contracting states, not from anywhere else. The judges purport to interpret and apply the various rights in the Convention in accordance with what they conceive to be developments in prevailing attitudes in the contracting states. This is obvious from the court's jurisprudence on such matters as the death penalty, sex discrimination, homosexuality and transsexuals. The result is a body of law which may reflect the values of the contracting states, but which most certainly does not reflect those in many other parts of the world. So the idea that the United Kingdom was obliged to secure observance of all the rights and freedoms as interpreted by the European Court in the utterly different society of southern Iraq is manifestly absurd. Hence, as noted in Bankovi, 11 BHRC 435, 453 454, para 80, the court had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. If it went further, the court would run the risk not only of colliding with the jurisdiction of other human rights bodies but of being accused of human rights imperialism. See also Mactavish J in the Federal Court of Canada: Amnesty International Canada v Canada (Chief of Defence Staff), 2008 FC 336, [2008] FCR 546, [235]. Medvedyev v France In Medvedyev v France, Grand Chamber, 29 March 2010, the applicants alleged that they had been arbitrarily deprived of their liberty contrary to article 5(1) following the boarding of the ship on which they were crewmen by French authorities and complained that they had not been brought promptly before a judge or other officer authorised by law to exercise judicial power. The ship was registered in Cambodia. Cambodia had given France authorisation to intercept the ship. The Court held unanimously (although it was divided on the merits of the claim) that because France exercised full and exclusive control over the ship and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1: at [67]. This case bears some resemblance to calan v Turkey (2003) 37 EHRR 238, except that the aircraft in calan was registered in Turkey, the respondent state, whereas the ship in Medvedyev v France was registered in Cambodia, and the applicant in calan had the nationality of the respondent state, whereas the applicants in Medvedyev had a variety of non French nationalities, Ukrainian, Romanian, Greek and Chilean. The differences are not crucial, since although an aircraft is for some purposes regarded as part of the territory of the country of registration, while it is in an airport it is no sense exempt from the criminal and public law of the territorial state, and non nationals within the jurisdiction are equally entitled to the protection of Convention rights. Al Saadoon and Mufdhi v United Kingdom (admissibility) Nor is Al Saadoon and Mufdhi v United Kingdom (admissibility) (2009) 49 EHRR SE 95 authority for any concept of extra territoriality going beyond Bankovi as recognised in Al Skeini. The applicants complained that their transfer by British forces to the custody of the Iraqi High Tribunal exposed them to a real risk of the death penalty in breach of articles 2 and 3. The United Kingdoms argument on jurisdiction was that the transfer of the applicants into the custody of the Iraqi authorities took place in circumstances where the United Kingdom forces had the power to detain Iraqi nationals only at the request of the Iraqi courts; the United Kingdom forces were not to retain any power to detain Iraqi nationals after 31 December 2008 and, within hours of the actual transfer, the base would have ceased to be inviolable and the Iraqi authorities would have had the right to come physically to the base where the applicants were detained and remove them. Consequently, it was argued, the United Kingdom was not exercising any public powers through the effective control of any part of the territory or the inhabitants of Iraq, The Court recognised that, during the first months of the detention of the applicants, the United Kingdom was an occupying power in Iraq. The United Kingdom exercised control and authority over the individuals detained in the British run detention facilities initially solely as a result of the use of military force. Subsequently its de facto control over the premises was reflected by the CPA order which provided that all premises used by the multi national force should be inviolable and subject to the exclusive control and authority of the multi national force: [87]. Given the total and exclusive de facto and subsequently also de jure control exercised by United Kingdom authorities over the premises, the individuals detained there, including the applicants, were within the United Kingdoms jurisdiction: Hess v United Kingdom. That conclusion, the Court said (at [88]), was consistent with the decision of the House of Lords in Al Skeini and the position adopted by the United Kingdom in that case before the Court of Appeal and the House of Lords (where it had been conceded that the jurisdiction under article 1 extended to a military prison occupied and controlled by the United Kingdom). The Court referred to Rasul v Bush, 542 US 466 (2004) where the United States Supreme Court decided (6 3) that United States courts had jurisdiction to consider challenges to the legality of the detention of foreign nationals incarcerated in Guantanamo Bay, since by the express terms of the agreements with Cuba, the United States exercised complete jurisdiction and control over the Guantanamo Bay. See also Al Saadoon and Mufdhi v United Kingdom (Merits), 2 March 2010, with many references to the United Kingdoms jurisdiction over the applicants: [137], [140], [164], [165]. The decisions in Al Saadoon are consistent with, and do not take the matter any further than, Al Skeini. The concept of a jurisdictional link and Markovic v Italy The conclusion of the Court in Bankovi (at [82]) was that there was no jurisdictional link between the persons who were victims of the act complained of and the respondent states. There was no elucidation of that expression, and the only other decision of the Strasbourg court in the article 1 context which makes use of the notion of jurisdictional link is Markovic v Italy (2006) 44 EHRR 1045 (Grand Chamber), in which the Court said that once a person brings a civil action in the courts or tribunals of a state, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of article 1 ([54]). Markovic v Italy is a decision which shows that the victim of a breach of the Convention need not necessarily be present in the contracting state. The applicants were nationals of Serbia and Montenegro, who had brought claims in the Italian courts for compensation for damage caused by an airstrike by NATO forces. The Italian Court of Cassation ruled that the Italian courts had no jurisdiction because the claim was a political one. The applicants claimed that this was a refusal to grant them access to a court in breach of article 6. The Court held that there was no breach of article 6 because the inability to sue the state was not the result of an immunity but of the principles governing the substantive right of action in domestic law. The Court held that the applicants were within the jurisdiction of Italy for the purposes of article 1. The Italian and British Governments argued that there was no jurisdiction for the purposes of article 1 because (for reasons which are hard to follow) the underlying claim related to NATO airstrikes outside the Convention countries. But, apart from that, they both accepted that a claimant from outside the contracting states who brings a claim in the courts of the contracting state is within its jurisdiction for article 1 purposes. The Italian Government accepted that the applicants had brought themselves within the ambit of the states jurisdiction by lodging a claim with the authorities: see [38]. The British Government seemed (somewhat artificially) to treat the bringing of the claim as a notional entry into the territory in order to bring proceedings: see [48]. As regards jurisdiction for the purposes of article 1, the Court three times used the expression jurisdictional link in these passages: 54. Even though the extraterritorial nature of the events alleged to have been at the origin of an action may have an effect on the applicability of Article 6 and the final outcome of the proceedings, it cannot under any circumstances affect the jurisdiction ratione loci and ratione personae of the State concerned. If civil proceedings are brought in the domestic courts, the State is required by Article 1 of the Convention to secure in those proceedings respect for the rights protected by Article 6. The Court considers that once a person brings a civil action in the courts or tribunals of a State, there indisputably exists, without prejudice to the outcome of the proceedings, a jurisdictional link for the purposes of Article 1. 55. The Court notes that the applicants in the instant case brought an action in the Italian civil courts. Consequently, it finds that a jurisdictional link existed between them and the Italian State. The expression jurisdictional link in the conclusion in Bankovi (at [82]) is plainly not intended to state or represent a separate and independent test of jurisdiction, and the same must be so of the passages in Markovic v Italy. Consequently, neither of those decisions suggests that there is a separate free standing head of jurisdiction based on a jurisdictional link, and (contrary to the respondents position on this appeal) there is nothing in the opinion of Lord Rodger in Al Skeini which supports such a suggestion. He said (at [64]) It is important therefore to recognise that, when considering the question of jurisdiction under the Convention, the focus has shifted to the victim or, more precisely, to the link between the victim and the contracting state [F]or the purposes of deciding whether the Convention applies outside the territory of the United Kingdom, the key question is whether the deceased were linked to the United Kingdom when they were killed. However reprehensible, however contrary to any common understanding of respect for human rights, the alleged conduct of the British forces might have been, it had no legal consequences under the Convention, unless there was that link and the deceased were within the jurisdiction of the United Kingdom at the time. For, only then would the United Kingdom have owed them any obligation in international law to secure their rights under article 2 of the Convention and only then would their relatives have had any rights under the 1998 Act. All that Lord Rodger was saying was that there must be a relevant link, not that a link, or any link, is a sufficient basis for the existence of jurisdiction under article 1. It should be added in relation to Markovic v Italy that it makes complete sense for the Convention to apply to parties to litigation in contracting states irrespective of where they are. It could not be seriously suggested, for example, that a Japanese defendant in English proceedings who is served out of the jurisdiction is not entitled to article 6 rights. In Lubbe v Cape plc [2000] 1 WLR 1545 the South African asbestosis victims suing in England submitted that to stay the proceedings in favour of the South African forum would violate their article 6 rights. A stay was refused on the non Convention ground that, because of the lack of funding and legal representation in South Africa, they would be denied a fair trial on terms of equality with the defendant. Lord Bingham said (at p 1561) that article 6 did not support any conclusion which was not already reached on application of the stay principles Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460. There was no suggestion, nor could there have been, that the claimants could not rely on article 6 because they were South Africans without any connection with the United Kingdom. In Bankovi the Court said [75] that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question, and the Court has said that in territory which is subject to the effective control of a contracting state the obligation of the State is to secure the entire range of substantive Convention rights Bankovi at [70], citing Cyprus v Turkey (2001) 35 EHRR 731 at [77]. But cases such as Markovic v Italy suggest that some qualification is necessary to the principle of indivisibility of Convention rights, and that there may be cases in which a person may be within the jurisdiction of a contracting state for limited purposes only. Another possible example is suggested by Carson v United Kingdom, Grand Chamber, 16 March 2010 (in which there was no issue under article 1). The applicants were persons who had worked in the United Kingdom and paid national insurance contributions and then emigrated to South Africa, Canada or Australia. State pensions to persons abroad were not up rated to take account of inflation with the result that they received less (far less in some cases). They failed in their claim under article 14 of the Convention and article 1 of the First Protocol, but rightly it was never suggested that because they were permanently abroad they were not within the jurisdiction of the United Kingdom for article 1 purposes in relation to interference with property situate in the United Kingdom (as the pension rights were). Consequently there may be cases in which persons abroad may not be entitled to the whole package of Convention rights. Conclusions Bankovi made it clear that article 1 was not to be interpreted as a living instrument in accordance with changing conditions: [64] [65]. It is hardly conceivable that in 1950 the framers of the Convention would have intended the Convention to apply to the armed forces of Council of Europe states engaged in operations in the Middle East or elsewhere outside the contracting states. Even the limited exceptions to territoriality recognised by the Strasbourg court were plainly not contemplated in the drafting process. The original draft prepared by the Committee of the Consultative Assembly of the Council of Europe on legal and administrative questions referred to all persons residing within their territories. Following a suggestion that residing within be replaced by living in, the Expert Intergovernmental Committee decided instead on persons within their jurisdiction. The reason was that the term residing might be considered too restrictive, and there were good grounds for extending the benefits of the Convention to all persons in the territories of the signatory states, even those who could not be considered as residing there in the legal sense of the word: Collected Edition of the Travaux Prparatoires of the European Convention on Human Rights, vol III, p 260. Apart from a comment by M Rolin, the eminent Belgian representative to the Consultative Assembly, that the protections would extend to all individuals of whatever nationality, who on the territory of any one of the states, might have had reason to complain that their rights were violated, article 1 did not give rise to any further discussion on this aspect and that text was adopted by the Consultative Assembly on 25 August 1950 without further amendment: Collected Edition, vol VI, pp 132, 148. See Bankovi at [19] [21] and also Lawson, Life After Bankovic: On the Extraterritorial Application of the European Convention on Human Rights, in Extraterritorial Application of Human Rights Treaties, ed Coomans and Kamminga, 2004, 83, at 89 90. There is nothing in the drafting history to give the slightest credence to the proposition that the Convention was to apply to the relations of the state with its armed forces abroad. It is noteworthy that, writing in the same year, Professor Hersch Lauterpacht (as he then was) produced a draft of the International Bill of the Rights of Man which provided (article 18): The obligations of this Bill of Rights shall be binding upon States in relation both to their metropolitan territory and to any other territory under their control and jurisdiction. See Lauterpacht, International Law and Human Rights, 1950, p 317. Bankovi (as applied in Al Skeini) confirms that article 1 reflects the territorial notion of jurisdiction, and that other bases of jurisdiction are exceptional and require special justification. In practice the exceptions recognised by the Court have either consisted of (1) territorial jurisdiction by a state over the territory of another contracting state; (2) extensions of territorial jurisdiction by analogy; and (3) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the Convention. The Northern Cyprus cases such as Loizidou v Turkey (Merits) and Cyprus v Turkey, and also Ilacu v Moldova and Russia and Assanidze v Georgia are all illustrations of the extension or application of territoriality to cases of effective control (or lack of control) by contracting states of Council of Europe territory. The extension of the Convention to military bases and hospitals (ultimately based on concession by the Secretary of State) in Al Skeini and Al Saadoon and Mufdhi v United Kingdom (admissibility) is consistent with the treatment in dicta of the Commission and the Court of fixed premises abroad as territorial extensions of the state. If the judges in Drozd v France and Spain had been acting as French or Spanish judges commonsense would have recognised them as extensions of the state judiciary acting abroad. So also in cases such as calan v Turkey and Medvedyev v France, where a states officials detain a person abroad for trial in its territory, it would be odd if there could be no complaint under the Convention in respect of the acts which took place outside the territory. Similarly, the application of article 6 rights to foreign claimants in Markovic v Italy makes complete sense: it would be a travesty of the Convention to deny them the right to access to a court because they were outside the Convention states. This case comes within none of the exceptions recognised by the Strasbourg court, and there is no basis in its case law, or in principle, for the proposition that the jurisdiction which states undoubtedly have over their armed forces abroad both in national law and international law means that they are within their jurisdiction for the purposes of article 1. For the reasons given in the preceding sections of this judgment, jurisdiction cannot be established simply on the basis that the United Kingdoms armed forces abroad are under the authority and control of the United Kingdom, or that there is a jurisdictional link between the United Kingdom and those armed forces. To the extent that Issa v Turkey states a principle of jurisdiction based solely on authority and control by state agents over individuals abroad, it is inconsistent with Bankovi, and with Al Skeini, where it was comprehensively criticised by the House of Lords. Nor is there anything in Markovic v Italy or in Lord Rodgers opinion in Al Skeini to support a jurisdictional link as a free standing basis for jurisdiction under article 1. Nor are there policy grounds for extending the scope of the Convention to armed forces abroad. On the contrary, to extend the Convention in this way would ultimately involve the courts in issues relating to the conduct of armed hostilities which are essentially non justiciable. I would therefore allow the appeal on the first issue. On the second issue, I agree with the judgment of Lord Phillips and would dismiss the appeal. LORD KERR Article 1 of the European Convention on Human Rights and Fundamental Freedoms provides that the High Contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in Section I of this Convention. The first issue in this appeal is concerned with the question of what is meant by the phrase, within their jurisdiction. I have read the judgment of Lord Mance and am in complete agreement with what he has said on the first issue. For the reasons that he has given, I too would dismiss the appeal on the first ground. The first issue It has been accepted in a series of decisions, both domestic and European, that the primary and essential basis for jurisdiction under article 1 is territorial. It has also been accepted that this important principle is subject to exceptions. A central issue on the first ground of appeal is whether the admissible exceptions are confined to those specific examples that have been expressly recognised by the decisions in this field, particularly those reached in Strasbourg, or whether further exceptions may be recognised by the application of principles already established by the European Court of Human Rights. In R (Gentle) v Prime Minister [2008] UKHL 20; [2008] AC 1356, Lord Bingham clearly contemplated that any exceptions to or extensions of the principle of territoriality should be specific and limited see para 8(3) of his opinion. That case of course involved a claim that the lawfulness of the war in Iraq should be investigated in order to test whether the United Kingdom had fulfilled what were said to be its article 2 obligations to soldiers who were exposed to the risk of death in that war. It was not concerned with the question that arises here whether a soldier who is within the control of the state, in the form of the army authorities, remains within the jurisdiction of the state for the purposes of article 1 of the Convention when he is outside the states national territory. As Lord Mance has pointed out, Lord Bingham outlined three reasons that article 2 had never been held to apply to the process of deciding on the lawfulness of a resort to arms. The first was that the lawfulness of military action has no immediate bearing on the risk of fatalities. The second was that the draftsmen of the European Convention had not envisaged that it could provide a suitable framework or machinery for resolving questions about the resort to war. The final reason related to the territoriality issue. On this point, Lord Bingham said: Subject to limited exceptions and specific extensions, the application of the Convention is territorial: the rights and freedoms are ordinarily to be secured to those within the borders of the state and not outside. Here, the deaths of Fusilier Gentle and Trooper Clarke occurred in Iraq and although they were subject to the authority of the defendants they were clearly not within the jurisdiction of the UK as that expression in the Convention has been interpreted: R (Al Skeini) v Secretary of State for Defence [2008] AC 153, paras 79, 129. The Al Skeini case involved the deaths of six Iraqi civilians at the hands of British troops. Five of the deceased were shot in the course of security operations; the sixth, Mr Mousa, died following gross ill treatment while in custody in a UK military detention facility. The appellants, who were relatives of the deceased, asked the Secretary of State to hold a public inquiry into their relatives' deaths. The Secretary of State indicated that he would not hold such an inquiry. The appellants sought judicial review of that decision. In order to promote that application the appellants had to establish (among other things) that their complaint fell within the scope of ECHR and that a Convention right had been violated. The violation alleged by the appellants consisted primarily of a failure to investigate, as required by article 2, a violent death alleged to have been caused by agents of the state. The House of Lords held that the Convention operated in an essentially regional context, most notably in the legal space of the contracting states (ie within the area of the Council of Europe countries). The jurisdiction under article 1 was primarily territorial. The House of Lords recognised, however, that exceptions to that principle existed. These included circumstances where the state had effective control of a foreign territory and its inhabitants through military occupation or by the consent, invitation or acquiescence of the government of that territory and it exercised all or some of the public powers that would normally have been exercised by the local government. This was the context in which the observations in paras 79 and 129 of Al Skeini (on which Lord Bingham relied in Gentle) were made. The statements of Lord Rodger in para 79 of Al Skeini were based largely on his consideration of the decision of the European Court of Human Rights in Bankovic v Belgium (2001) 11 BHRC 435. That case has been extensively discussed in the judgment of Lord Phillips and it is therefore unnecessary for me to rehearse its details. It should be noted, however, that in para 80 the court observed that Strasbourg had so far recognised jurisdiction based on effective control only in the case of territory which would normally be covered by the Convention. From this one can safely assume that it was not contemplated that the exceptions would be confined solely to this situation and, indeed, further extensions to the exceptional category have been recognised in later decisions of ECtHR. The observation in para 80 of Bankovic provided the backdrop for what Lord Rodger said at para 79 of Al Skeini: The essentially regional nature of the Convention has a bearing on another aspect of the decision in Bankovic v Belgium (2001) 11 BHRC 435. In the circumstances of that case the respondent states were plainly in no position to secure to everyone in the RTS station or even in Belgrade all the rights and freedoms defined in Section I of the Convention. So the applicants had to argue that it was enough that the respondents were in a position to secure the victims rights under articles 2, 10 and 13 of the Convention. In effect, the applicants were arguing that it was not an answer to say that, because a state was unable to guarantee everything, it was required to guarantee nothingto adopt the words of Sedley LJ, [2007] QB 140, 300, para 197. The European Court quite specifically rejected that line of argument. The court held, (2001) 11 BHRC 435, 452, para 75, that the obligation in article 1 could not be divided and tailored in accordance with the particular circumstances of the extra territorial act in question. In other words, the whole package of rights applies and must be secured where a contracting state has jurisdiction. This merely reflects the normal understanding that a contracting state cannot pick and choose among the rights in the Convention: it must secure them all to everyone within its jurisdiction. If that is so, then it suggests that the obligation under art 1 can arise only where the contracting state has such effective control of the territory of another state that it could secure to everyone in the territory all the rights and freedoms in Section I of the Convention. It is important, I believe, to note that these comments were made in the context of jurisdiction based on territorial control. This is clear from para 75 of Bankovic, on which they are founded. But the present case is not one of territorial control. It is, rather, a case of control of personnel. Soldiers serving in Iraq were under the complete control of the United Kingdom authorities. They were subject to UK law. They were not amenable to the law of Iraq. The only legal system to which they were answerable or to which they might have recourse was that of the United Kingdom. In these circumstances, one may ask, if they were not within the jurisdiction of the UK, in whose jurisdiction were they? The answer that the appellant impliedly gives to this question is that the soldiers were within the jurisdiction of the UK for all purposes except for those of article 1 of the Convention but that response merely prompts the further question, why and, for reasons that I shall touch on below, to that second query I can find no satisfactory reply. Para 129 of Al Skeini (the other passage on which Lord Bingham relied in Gentle) is equally concerned with the question of territorial control. There Lord Brown said: except where a state really does have effective control of territory, it cannot hope to secure Convention rights within that territory and, unless it is within the area of the Council of Europe, it is unlikely in any event to find certain of the Convention rights it is bound to secure reconcilable with the customs of the resident population. Indeed it goes further than that. During the period in question here it is common ground that the UK was an occupying power in southern Iraq and bound as such by Geneva IV and by the Hague Regulations. Article 43 of the Hague Regulations provides that the occupant shall take all the measures in his power to restore and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country. The appellants argue that occupation within the meaning of the Hague Regulations necessarily involves the occupant having effective control of the area and so being responsible for securing there all Convention rights and freedoms. So far as this being the case, however, the occupants' obligation is to respect the laws in force, not to introduce laws and the means to enforce them (for example, courts and a justice system) such as to satisfy the requirements of the Convention. Often (for example where Sharia law is in force) Convention rights would clearly be incompatible with the laws of the territory occupied. It is immediately evident that Lord Brown was discussing the nature and degree of control that was required before the territorial control exception could arise. The principal message as it seems to me to emerge from this passage is that the extent of the occupants actual control over the territory in question was very far from complete and therefore entirely incompatible with a capacity to enforce compliance with the Convention. On that account, the extra territorial exception could not be held to apply. When one approaches the matter from the perspective of power over military personnel, however, the level of control of the UK occupying forces is of an altogether different order from that which they could exert over the territory. The control that the UK had over Private Smith was as complete as it is possible in todays world to be. Moreover, for the reasons given by Lord Mance in paras 185 188 of his judgment, no other agency or state was entitled to or could exercise any authority over him. In plain terms, he did not come within any legal order or jurisdiction other than that of the United Kingdom. I therefore respectfully agree with Lord Mance that Lord Binghams statement in Gentle that the soldiers, although subject to the authority of the United Kingdom government, were clearly not within the jurisdiction of the UK must be treated with some reservation. Neither Lord Rodger nor Lord Brown (in the paragraphs of their opinions in Al Skeini that Lord Bingham relied on) had addressed the question whether serving soldiers came within the states jurisdiction for the purposes of article 1 of the Convention. Although a number of other members of the House of Lords in Gentle agreed in general terms with Lord Bingham, like Lord Mance, I doubt that his statement that the soldiers were not within the jurisdiction of the UK forms part of the ratio decidendi of that case. Even if it does, in light of the much fuller argument that this court has received on the topic than was presented to the House of Lords in Gentle, it is right that the matter should be considered again. Lord Brown discussed in Al Skeini the exceptions that had been already identified to the strict territorial basis for jurisdiction and Lord Mance has analysed these in paras 172 to 179 of his judgment. I agree with his analysis and with his conclusion that underpinning each of the exceptions is the exercise by a state in a country other than its national territory of power over individuals by the consent, invitation or acquiescence of the foreign state. The exclusion of extra territorial jurisdiction of one state in the territory of another rests primarily on the sovereign territorial rights of the latter state. As the court in Bankovic said, a States competence to exercise jurisdiction over its own nationals abroad is subordinate to that States and other States territorial competence para 60. Where, however, a state yields authority to a foreign state to exercise power in its sovereign territory, this principle does not apply. Likewise, if the sovereignty of the original state is ousted by an occupying force, the occupiers jurisdiction replaces that of the original state. In the present case both these situations so far as they involved UK military personnel tend to blend into each other. The UK was certainly permitted to exercise power over its soldiers, although this could not be said to be a permission granted by the state having original sovereignty over Iraq since that states sovereignty had been ousted by the invading forces. In so far as the UKs authority to exercise power over its own forces depended on the grant of permission, however, that was certainly constituted by CPA Order No 17 and Security Council Resolution No 1483. For the reasons given by Lord Mance in paras 184 to 186 of his judgment, I also consider that the UK exercised exclusive jurisdiction over its forces by reason of its being an occupying power. The situation can be described simply in the following way: the United Kingdom brought its soldiers into Iraq; it not only asserted complete authority over them while they remained there, it explicitly excluded the exercise of authority over those soldiers by any other agency or state; and it has always been clear that soldiers remain subject to the laws of the UK during their service abroad. In those circumstances it would be, to my mind, wholly anomalous to say that soldiers did not remain within the jurisdiction of the UK while serving in Iraq especially since it has been accepted in Al Skeini and not disputed by the appellant in the present case that all persons while on premises under the control of the army are within the UKs jurisdiction for the purposes of article 1 of the Convention. In Bankovic there were no fewer than 17 respondent states: Belgium, the Czech Republic, Denmark, France, Germany, Greece, Hungary, Iceland, Italy, Luxembourg, the Netherlands, Norway, Poland, Portugal, Spain, Turkey and the United Kingdom. It is interesting and significant that all seventeen subscribed to an argument described in this way in para 36 of the courts judgment: As to the precise meaning of 'jurisdiction', [the respondent governments] suggest that it should be interpreted in accordance with the ordinary and well established meaning of that term in public international law. The exercise of 'jurisdiction' therefore involves the assertion or exercise of legal authority, actual or purported, over persons owing some form of allegiance to that state or who have been brought within that state's control. They also suggest that the term 'jurisdiction' generally entails some form of structured relationship normally existing over a period of time. Of course, most soldiers serving on behalf of a member state in a foreign country would come clearly within the first of these formulations since they are subject to the legal authority of the government of their native country and they owe allegiance to that state. The court in Bankovic did not comment adversely on the argument that a states exercise abroad of legal authority over persons owing allegiance to that state would satisfy the requirements of article 1. Indeed, the courts treatment of the arguments of the parties is not at all inconsistent with that submission. It is to be noted that the final conclusions expressed by the court in paras 67 to 71 are preceded by the cross heading Extra territorial acts recognised as constituting an exercise of jurisdiction (emphasis added). By making its soldiers subject to its sole authority while abroad a state is not engaging in an extra territorial act so much as creating a state of affairs. There may not be much in this point but it is, I think, worth remarking that the focus of the court in Bankovic was whether the actions of the respondent governments might be a sufficient foundation for concluding that the applicants came within their jurisdiction whereas here the essential issue is whether soldiers who are subject to the exclusive legal control of the UK authorities remain within its jurisdiction. There is nothing in Bankovic which speaks directly to the question whether a member state that takes its soldiers abroad, asserts that it has sole authority over them and expressly excludes all other possible forms of control over them can nevertheless claim that those soldiers are not within its jurisdiction for the purposes of article 1 of the Convention. To suggest, as the Secretary of State must, that soldiers are within the jurisdiction of the United Kingdom for every conceivable legal purpose other than article 1 seems to me to involve the acceptance of one anomaly too many. In this appeal the Secretary of State has argued that, because it is impossible to secure the whole package of Convention rights for soldiers serving abroad, it should be concluded that they cannot be within the UKs jurisdiction for article 1 purposes. Expressed in this unvarnished way, the argument appears circular or, at least, intensely pragmatic. But a similar argument found favour with ECtHR in Bankovic and with the House of Lords in Al Skeini. One must consider, therefore, whether this is a universally required prerequisite in order to bring an applicant within the jurisdiction. As Lord Phillips has pointed out (in para 43 of his judgment), the European Court in Drozd and Janousek v France and Spain (1992) 14 EHRR 745 accepted that if the applicants had appeared before a French judge sitting in that capacity in Andorra they would have been within the jurisdiction of France for the purposes of article 1 in relation to their article 6 rights. They would not have been entitled to claim against France the benefit of protection of the other Convention rights, however. It is implicit in that judgment that there are certain settings in which the whole package principle does not apply. In other words, there is not an invariable pre condition that one must be able to have access to the entire panoply of Convention rights in order to be able to claim that one is within the jurisdiction of the member state for the purposes of article 1. Likewise in Carson v United Kingdom (Application No 42184/05) (unreported) 16 March 2010, the decision of the Grand Chamber on the admissibility of claims against the United Kingdom by persons who were resident abroad must have proceeded on the basis that they were within the jurisdiction for the purposes of pursuing a claim of violation of article 14 of the Convention in combination with article 1 of the First Protocol. There was no question of the applicants being entitled to the benefit of other Convention rights. It follows that the whole package of rights principle is not an indispensable requirement in every case. It is not necessary in every instance that it be shown that an applicant, in order to be entitled to claim that he is within the jurisdiction for article 1 purposes, must also show that he is entitled to the benefit of all the Convention rights. It appears to me that this principle is primarily relevant in the territorial control context. One can understand that an applicant who claims that he is entitled to be regarded as within the jurisdiction of a member state on the basis that he was, at the material time, within the territory controlled by that state should be able to demonstrate that the state was in a position to deliver all the protections secured by the Convention. In that instance the capacity of the state (or its lack of capacity) to deliver that breadth of protection can be seen as a measure of the extent of its control of the territory. Having examined the cases of Drozd; X and Y v Switzerland (1977) 9 DR 57; Gentilhomme, Schaff Benhadji and Zerouki v France (Application Nos 48205/99, 48207/99, 48209/99) (unreported) 14 May 2002, Lord Phillips suggests that they might be thought to support a general principle that there will be jurisdiction under article 1 whenever a state exercises legislative, judicial or executive authority which affects a Convention right of a person, whether or not he is within the territory of that state. He points out, however, that the Strasbourg court had not yet propounded such a principle. I agree that no principle in these precise terms has been articulated by the ECtHR but where the exercise of such authority is combined with control over the individual affected, it appears to me that the extra territorial extension of jurisdiction is undeniable. The essence of the decisions in Bankovic and Al Skeini is that an exception to the territorial basis for jurisdiction will be recognised where there is effective control of the relevant territory and its inhabitants by an occupying force. The rationale for the decision is surely the element of control. Where the occupying force supplants and replaces the power which had been wielded by the national authority, it provides, indeed imposes, its own jurisdiction. No particular magic attaches to the geographical dimension of this exercise of power it is the comprehensive nature of the power rather than the area where it is exerted that matters. Obviously, in those areas where the occupying force is unable to exert a measure of power that might be regarded as effective, its jurisdiction will not be established but that is a reflection of the restriction on the power rather than of geography. And so, where the control of an individual is of a sufficiently comprehensive nature as to qualify for the description, effective power, there is no reason in logic or principle that he should not be regarded as being within the jurisdiction of the state which wields that power over him. If a state can export its jurisdiction by taking control of an area abroad, why should it not equally be able to export the jurisdiction when it takes control of an individual? I agree with Lord Phillips that, despite some indications to the contrary, the case law of Strasbourg has not yet developed to the point of recognising a general principle that there will be jurisdiction under article 1 whenever a State exercises legislative, judicial or executive authority in a way that affects an individuals Convention right, whether that person is within the territory of that State or not. But where an individual is under the complete control of his native state while in foreign territory, I cannot see any reason that he should be regarded as being any less within its jurisdiction than individuals who happen to find themselves in a location in that territory which is under the effective control of the same state. And it appears to me that this position has already been recognised, albeit somewhat obliquely, by the ECtHR. In Issa v Turkey (2004) 41 EHRR 567 the court said at para 71: a State may also be held accountable for violation of the Convention rights and freedoms of persons who are in the territory of another State but who are found to be under the former States authority and control through its agents operating whether lawfully or unlawfully in the latter State. Lord Phillips suggests that this passage clearly advances state agent authority as an alternative to effective territorial control as a basis of article 1 jurisdiction. I agree. But, more significantly, it emphasises the importance of control (whether of territory or individuals) as the essential ingredient in extra territorial jurisdiction. That theme featured again in the recent decision of the Grand Chamber in Medvedyev v France (Application No 3394/03) judgment delivered on 29 March 2010. In that case a special forces team from a French warship boarded a merchant vessel which, it was suspected, was carrying drugs. After boarding the vessel, the French commando team kept the crew members of the merchant ship under their exclusive guard and confined them to their cabins during the rerouting of the ship to France. At para 67 the court said: the court considers that, as this was a case of France having exercised full and exclusive control (my emphasis) over the [merchant vessel] and its crew, at least de facto, from the time of its interception, in a continuous and uninterrupted manner until they were tried in France, the applicants were effectively within Frances jurisdiction for the purposes of article 1 of the Convention. The exercise of control was obviously pivotal to the finding that the merchant ships crew were within the jurisdiction of France. That control had no geographical dimension, at least not before the vessel was returned to France. But the very fact that the crew members were under the control of the French authorities, even before they arrived in France, was sufficient to bring them within French jurisdiction for the purposes of article 1 of the Convention. If taking control of the crew members on the high seas is sufficient to bring them within the jurisdiction of France, it appears to me that where a state asserts and exercises exclusive control over the members of its own armed forces while they are in foreign territory, this must be an a fortiori instance of the extra territorial reach of the Convention. The prospect of the state owing article 2 obligations to its soldiers serving overseas is not the daunting one that the appellant in this case has portrayed. For the reasons explained by Lord Rodger in his judgment, the article 2 investigation conducted by means of a coroners inquest is not concerned with matters of policy or broad political decisions. The primary function of a coroners inquest is, as Lord Phillips has put it, to find facts rather than review policy. Lord Brown expresses concern that, if it is held that soldiers operating outside the espace juridique are within the jurisdiction for the purposes of article 1, Strasbourg will scrutinise a contracting states planning, control and execution of military operations to decide whether the states own forces have been subjected to excessive risk. I am afraid that, with great respect, I must disagree. The cases which prompted Lord Browns apprehension were Ergi v Turkey (1998) 32 EHRR 388, Isayeva, Yusupova and Bazayeva v Russia (Application Nos 57947 49/00) [2005] ECHR 129 and Isayeva v Russia (Application No 57950/00) [2005] ECHR 128. In the first of these cases, the Turkish security forces had set up an ambush in the vicinity of the village where the applicants sister lived, purportedly to capture members of the PKK. The applicant alleged that his sister had been killed by a bullet fired by members of the security forces in the course of an indiscriminate, retaliatory attack on the village, apparently carried out because the inhabitants had in the past harboured members of the PKK. Although the court felt unable to conclude that the applicants sister had been killed by a bullet fired by a member of the security forces or that the firing on the village was carried out in retaliation, as alleged, it decided that, even on the governments account of having laid an ambush for the PKK and having been involved in a fire fight with them, a violation of article 2 had been established. This was because insufficient precautions had been taken to protect the lives of the civilian population. It was also held that the investigation into the death was insufficient to satisfy the procedural requirements of article 2. Judgment in the second and third cases referred to by Lord Brown was delivered on the same day, 24 February 2005. In the earlier of these two cases the applicants alleged that they had been the victims of indiscriminate bombing by Russian military planes of a civilian convoy near Grozny. The attack took place while the applicants were on what had been designated a humanitarian corridor. It was found that a large number of civilian vehicles were in the convoy when the attack took place. It was found that, even assuming that the military were pursuing a legitimate aim, the operation had not been planned and executed with sufficient care for the civilian population. In the final case the applicant claimed that she and her family were the victims of an air bombardment by Russian forces while trying to flee their village in Chechnya. It was established that heavy free falling, high explosive bombs and other non guided heavy combat weapons were used in the centre and on the edges of the applicants village. The avowed justification for this was that the civilian population was being held hostage by a large group of Chechen fighters. No attempt had been made to evacuate the village in advance and no steps had been taken to minimise the risk of injury to the civilian population. A breach of article 2 was found. The facts of these three cases are very far removed from the hypothetical example given by Lord Brown of courts embarking on scrutiny of planning, control and execution of military operations to decide whether a states own forces have been exposed to excessive risk. Lord Brown acknowledges that Strasbourgs concern in these cases was essentially for the safety of civilians caught up in conflict. That is a very different matter from the safety of combatants in the course of a war. As Lord Rodger has said, deaths and injuries of soldiers in a combat situation are inevitable. There is no reason, in my view, to anticipate that a similar level of scrutiny to that suitable to the death of a civilian will be required or appropriate where a soldier has been killed in the course of military operations. In this context, I should say that I agree entirely with Lord Rodgers observations in para 126 of his judgment. It will often be possible to suggest, after an event, measures that could have been taken that might have reduced the risk to a particular soldier but that type of retrospective analysis is surely inapposite (and will be recognised by courts as such) to address the question whether a states obligations to its soldiers under article 2 have been discharged. The duty to protect soldiers in a war setting is of an entirely different nature from the obligation to take proper steps to ensure that civilians are not exposed to unnecessary risks from military operations. I do not believe that the fear of tactical decisions taken in the field by military commanders being subject to painstaking dissection by the courts is justified or that it should deter this court from declaring that when our government commits our armed forces to wars in foreign territories, it cannot deny them the protection that the Convention affords. The second issue I have read and agree with the judgment of Lord Phillips in relation to the second issue. For the reasons that he has given, I would dismiss the appeal on this ground also.

Private Jason Smith, a member of the Territorial Army since 1992, was mobilised for service in Iraq in June 2003. After acclimatising for a short period in Kuwait he was sent to a base in Iraq, from where he was billeted in an old athletics stadium. By August the daytime temperature in the shade was exceeding 50 degrees centigrade. On 9 August he reported sick, complaining of the heat. Over the next few days he was employed in various duties off the base. On the evening of 13 August he collapsed at the stadium and died of heat stroke. An inquest found that Private Smiths death was caused by a serious failure to address the difficulty he had in adjusting to the climate. Private Smiths mother commenced proceedings to quash that verdict and for a new inquest to be held. She argued that the United Kingdom had owed her son a duty to respect his right to life which was protected by article 2 of the European Convention on Human Rights (ECHR) and that the inquest had to satisfy the procedural requirements of an investigation into an alleged breach of that right. The Secretary of State denied that a further inquest was required on the facts of the case. He also denied that a soldier on military service abroad was subject to the protection of the Human Rights Act 1998 when outside his base, while accepting that in this case Private Smith had died within the UKs jurisdiction on the base. The High Court held that Private Smith had been protected by the Human Rights Act 1998 at all times in Iraq and ordered a fresh inquest. Before the Court of Appeal the Secretary of State agreed he would not submit to the new coroner that the requirements of article 2 were inapplicable. Notwithstanding that concession, both the Court of Appeal and the Supreme Court considered that the appeal of the Secretary of State raised two issues of general importance and of practical concern: whether on the true interpretation of article 1 of the ECHR British troops operating on foreign soil fell within the jurisdiction of the United Kingdom (the jurisdiction issue); and whether the fresh inquest into the death of Private Smith must conform with the procedural requirements implied into article 2 (the inquest issue). The Court of Appeal answered both questions in the affirmative. The Supreme Court allowed the appeal on the jurisdiction issue (Lady Hale, Lord Mance and Lord Kerr dissenting) and unanimously dismissed the appeal on the inquest issue. It held that it was not necessary in every case of a death of a serviceman abroad to carry out an investigation which examined whether there was fault on the part of the state because (a) the Human Rights Act 1998 did not apply to armed forces on foreign soil and (b) in any event, there was no such automatic right. The type of investigation would depend on the circumstances of the case. The jurisdiction issue Lord Phillips stated that the European Court of Human Rights in Strasbourg had held that jurisdiction within the meaning of article 1 was essentially territorial but extended in exceptional circumstances requiring special justification to other bases of jurisdiction. The difficulty lay in defining those exceptions [para 11]. It was unlikely that the Contracting States, when they agreed the ECHR in 1951 in the aftermath of a global conflict in which millions of troops had been deployed, regarded it as desirable or practicable to extend the protection of article 2 to troop operations abroad [para 58]. It was a novel suggestion that a states armed forces by reason of their personal status fell within the jurisdiction of the state when on foreign soil and the proper tribunal to resolve the issue was the Strasbourg Court itself [para 60]. Lord Collins observed that in practice the exceptions recognised by the Strasbourg court had consisted of (i) territorial jurisdiction by a state over the territory of another contracting state; (ii) extensions of territorial jurisdiction by analogy and (iii) commonsense extensions of the notion of jurisdiction to fit cases which plainly should be within the scope of the ECHR [para 305]. This case came within none of them. Jurisdiction could not be established simply on the basis of the UKs authority and control over them, nor were there policy grounds for extending the scope of the ECHR to armed forces abroad, which would ultimately involve the courts in issues relating to the conduct of armed hostilities which were essentially non justiciable [para 308]. Lord Mance, dissenting, considered that as an occupying power in Iraq, the UK had under international law an almost absolute power over the safety of its forces. The relationship was not territorial but depended on a reciprocal bond of authority and control on the one hand and allegiance and obedience on the other [para 192]. In his view the Strasbourg court would hold that the armed forces of a state were within the meaning of article 1 and for the purposes of article 2 wherever they might be [para 199]. Lord Kerr agreed. If the state could export its jurisdiction by taking control of an area abroad it could equally do so when it took control of an individual. In his view this had already been recognised albeit obliquely by the Strasbourg court [para 331]. The inquest issue Lord Phillips stated that where there was reason to suspect a substantive breach by the state of the article 2 right to life, it was established that the state of its own motion should carry out an investigation into the death which had certain features: a sufficient element of public scrutiny, conducted by an independent tribunal, involving the relatives of the deceased and which was prompt and effective [para 64]. There was no automatic right to such an investigation whenever a member of the armed forces died on active service [para 84]. The UK had a staged system of investigation into deaths. Some form of internal investigation would always be held into military deaths in service [para 85] and a public inquest was required whenever a body was brought back to this country. This would satisfy many of the procedural requirements of article 2. If, in the course of the inquest, it became apparent that there might have been a breach by the state of its positive article 2 obligations, this should, insofar as possible, be investigated and the result reflected in the coroners verdict, so as to satisfy the procedural requirements of article 2 [para 86]. In Private Smiths case, the courts below were correct to hold that the coroner should have found a possibility that there had been a failure of the system to protect soldiers in extreme temperatures. It followed that the new inquest should comply with the procedural requirements of article 2 [paras 87 and 88]. Lord Rodger considered that the Secretary of State had correctly conceded that an article 2 investigation was needed on the facts of this case but this was not always the position. The protection of the armed forces could never be complete; deaths and injuries were inevitable. It was for this very reason that the armed forces deserved and enjoyed the admiration of the community [para 122]. It was contrary to the very essence of active military service to expect the authorities to ensure that troops would not be killed or injured by opposing forces [para 125]. Furthermore, many issues of concern to the relatives of soldiers killed on active service raised questions of policy not legality, and would fall outside the scope of any investigation by a coroner [para 127].

long

This appeal concerns the correctness of two of the most important decisions on the law of limitation of recent times: the decisions of the House of Lords in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (Kleinwort Benson) and Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49; [2007] 1 AC 558 (Deutsche Morgan Grenfell). It arises in the course of long running proceedings known as the Franked Investment Income (FII) Group Litigation. explain how it is structured. Matters are dealt with in the following order: In view of the length of this judgment, it may be helpful at the outset to (1) General introduction (paras 3 17) (2) The history of the proceedings (paras 18 56) (3) Res judicata, estoppel and abuse of process (paras 57 101) (4) The background to section 32(1)(c) of the Limitation Act 1980 (paras 102 140) (5) The Limitation Act 1980 (paras 141 142) (6) Kleinwort Benson (paras 143 164) (7) Deutsche Morgan Grenfell (paras 165 171) (8) Discussion of Deutsche Morgan Grenfell (paras 172 212) (9) Deutsche Morgan Grenfell: Summary (paras 213 214) (10) Discussion of Kleinwort Benson (paras 215 241) (11) Kleinwort Benson: Summary (para 242 243) (12) The Practice Statement of 26 July 1966 (paras 244 253) (13) Application to the present proceedings (paras 254 256) (14) Conclusion (para 257) General introduction The FII Group Litigation was established by a Group Litigation Order (GLO) made on 8 October 2003 (the FII GLO). The claimants within the FII GLO are companies which belong to groups which include UK resident companies and non resident subsidiaries. The defendants are Her Majestys Commissioners for Revenue and Customs (the Revenue). The purpose of the FII GLO is to determine a number of common or related questions of law arising out of the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends paid and received within wholly UK resident groups of companies. The provisions giving rise to those questions concern, first, the system of advance corporation tax (ACT) and, secondly, the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (ICTA) (the DV provisions). The relevant provisions of ICTA have since been amended. ACT was abolished for distributions made on or after 5 April 1999, and the DV provisions were repealed for dividend income received on or after 1 April 2009. But the problems created by their existence in the past have not gone away. Under the FII GLO, certain claims were selected as test claims, and the remaining claims were stayed. The test claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached the provisions of article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty and their predecessor articles. They seek the repayment of the tax so far as it was unlawful under EU law, dating back in some cases to the accession of the UK to the EU in January 1973 and the introduction of ACT in April of that year (expressions such as the EU and EU law will be used in this judgment, anachronistically but conveniently, to include earlier incarnations of what is now known as the EU). In the alternative, they seek an award of damages under the principles of EU law established in Francovich v Italy (Case C 479/93) [1995] ECR I 3843, given effect in our domestic law in R v Secretary of State for Transport, Ex p Factortame (No 5) [2000] 1 AC 524. The system of corporate taxation relating to dividends which underlies the FII Group Litigation has also given rise to litigation managed under a number of other GLOs, including the ACT GLO. Whereas the focus of the ACT Group Litigation is on the UK legislation which prevented UK resident subsidiaries of foreign parents from making group income elections, thereby obliging them to pay ACT when paying dividends to their foreign parents, the focus of the FII Group Litigation is on UK parented groups with foreign subsidiaries, and on the tax treatment of dividends coming into the UK from abroad. Although the present litigation is therefore concerned with factual situations which are different from those which have given rise to the ACT Group Litigation, some of the most important legal questions are common to both sets of proceedings. The ACT Group Litigation followed the decision of the Court of Justice of the European Union, as the court is now known (the Court of Justice), in the Hoechst case (Metallgesellschaft Ltd v Inland Revenue Comrs, Hoechst AG v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] ECR I 1727; [2001] Ch 620). The ACT Group Litigation includes the decision in Deutsche Morgan Grenfell. A number of other sets of proceedings have also raised issues which arise in the FII Group Litigation. One is the Controlled Foreign Companies (CFC) and Dividend Group Litigation, which also concerns claims that the tax treatment of dividends paid by foreign subsidiaries to UK resident companies was incompatible with EU law. The principal difference from the FII Group Litigation is that the CFC and Dividend Group Litigation includes claims concerned with portfolio holdings of less than 10% of the shares of the relevant companies. Another is the Foreign Income Dividends (FID) Group Litigation, which concerns claims by pension funds or life companies that the absence of a tax credit in respect of foreign income dividends, in contrast to domestic dividends, was contrary to EU law. Another is the Stamp Taxes Group Litigation, which concerns claims that stamp taxes on issues or transfers of chargeable securities to clearance or depositary services are contrary to EU law. Other relevant proceedings include the Littlewoods proceedings, which concern claims to restitution based on the payment of VAT which was paid under a mistaken understanding of the relevant EU law. Since the payments with which these various proceedings are concerned go back, in most if not all cases, to the UKs entry into the EU in 1973, a central issue in the proceedings has been the limitation of actions. Restitutionary claims for the recovery of money are normally subject under English law to a limitation period of six years from the date when the cause of action accrued, on the basis that they are founded on simple contract within the meaning of section 5 of the Limitation Act 1980 (the 1980 Act). Francovich claims to damages are subject to the same time limit, on the basis that they are founded on tort within the meaning of section 2 of that Act. Far more than six years had passed between the date when much of the tax was paid, and the right to its recovery therefore accrued, and the date when the claims were brought. As a result, a large element of the claims, together with interest on it over a period of decades, was potentially time barred. The only way around that problem was to rely on section 32(1)(c) of the 1980 Act, which applies to an action for relief from the consequences of a mistake, and postpones the commencement of the limitation period until the plaintiff has discovered the mistake or could with reasonable diligence have discovered it. Section 32(1)(c) has therefore been central to all these proceedings. They have all been based on the propositions that (a) a restitutionary claim lies for the recovery of money, including tax, paid under a mistake of law, (b) such a claim falls within the ambit of section 32(1)(c), and (c) the effect of that provision is to postpone the commencement of the limitation period in respect of such a claim until the true state of the law is established by a judicial decision from which there lies no right of appeal. Each of these propositions was novel to English law. However, the colossal amounts of money at stake in these proceedings have made it worthwhile for every arguable point to be taken, not least points which might affect the applicable limitation period. The result has been a very protracted series of related proceedings. During the many years since these various proceedings were begun, the relevant principles of English law have been undergoing development, largely driven by those proceedings themselves. It may be helpful to note at this stage the principal milestones along the road, beginning with two decisions of the House of Lords which preceded the bringing of these claims, but set the scene for what followed. In 1992 the House of Lords held that a taxpayer was entitled to recover tax which was paid in response to an unlawful demand: Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 (Woolwich). In 1998 the House of Lords held that a claim for restitution lay in respect of money paid under a mistake of law, and that such a claim fell within the scope of section 32(1)(c) of the 1980 Act: Kleinwort Benson [1999] 2 AC 349. On 8 March 2001, in the ACT Group Litigation, the Court of Justice issued its judgment in Hoechst [2001] Ch 620, establishing the incompatibility with EU law of the UK tax treatment of dividends paid by UK resident subsidiaries to foreign parents. In July 2003, at a later stage in the ACT Group Litigation, Park J gave judgment in Deutsche Morgan Grenfell, holding that the principles established in Kleinwort Benson applied to tax paid under a mistake of law, including tax paid in ignorance of the fact that the legislation under which it was charged was incompatible with EU law: [2003] EWHC 1779 (Ch); [2003] 4 All ER 645. In accordance with Kleinwort Benson, he also held that the limitation period applicable to such claims was that laid down by section 32(1) of the 1980 Act, namely six years from the date on which the mistake was or could with reasonable diligence have been discovered. That date, he held, was the date on which the Court of Justice gave judgment in Hoechst, establishing the incompatibility of the legislation in question with EU law. On 8 September 2003 the Government announced proposed legislation to exclude the application of section 32(1)(c) in respect of all mistake claims made on or after that date which related to an Inland Revenue taxation matter. Legislation to that effect was enacted in July 2004, in the form of section 320 of the Finance Act 2004 (FA 2004). In February 2005 the Court of Appeal reversed Park Js decision in Deutsche Morgan Grenfell: [2005] EWCA Civ 78; [2006] Ch 243. In October 2006 the House of Lords gave judgment in Deutsche Morgan Grenfell [2007] 1 AC 558, reversing the judgment of the Court of Appeal and restoring the decision of Park J. It also decided that the fact that the taxpayer might have a concurrent ground of action under the Woolwich principle, which was subject to a limitation period running from the date of the payment, did not prevent it from pursuing its claim on the ground of mistake. The consequence was that claims in the ACT Group Litigation could be brought for the restitution of tax paid as far back as 1973, provided that the claim had been issued prior to the deadline of 8 September 2003 imposed by section 320 of the FA 2004. Following the decision of the House of Lords in Deutsche Morgan Grenfell, the Government applied to the Court of Justice for the reopening of the hearing of the first reference in the FII Group Litigation so that it could argue for a temporal restriction on the effect of the Court of Justices judgment, which had not yet been handed down. On 6 December 2006 the Court of Justice rejected the Governments application: Order (Case C 446/04) EU:C:2006:761. On the same day, the Government announced proposed legislation excluding the application of section 32(1)(c) of the 1980 Act in respect of mistake claims made before 8 September 2003 and relating to an Inland Revenue matter. A few days later, in the first reference in the FII Group Litigation, the Court of Justice held that the UK tax treatment of dividends paid by foreign subsidiaries to UK resident parents was incompatible with EU law: Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2006] ECR I 11753; [2012] 2 AC 436 (FII (CJEU) 1). In 2007, at a further stage of the ACT Group Litigation, the House of Lords decided that compound interest was payable on the amounts awarded, whether in damages or in restitution: Sempra Metals Ltd (formerly Metallgesellschaft Ltd) v Inland Revenue Comrs [2007] UKHL 34; [2008] 1 AC 561 (Sempra Metals). Taken together with Deutsche Morgan Grenfell, this meant that interest could be compounded for a period stretching back to 1973. The day after judgment was delivered in Sempra Metals, the legislation announced in December 2006 was enacted as section 107 of the Finance Act 2007 (FA 2007). In 2012, in the FII Group Litigation, this court held that a Woolwich claim could lie in the absence of a demand (ACT being self assessed), but that, in order for a claim to fall within the ambit of section 32(1)(c) of the 1980 Act, a mistake must constitute an essential element of the cause of action, and not merely form part of the context: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19; [2012] 2 AC 337 (FII (SC) 1). The consequence was that section 32(1)(c) did not apply to the Woolwich ground of restitution. The taxpayer could however seek recovery of tax paid in ignorance of the fact that the legislation under which it was charged was incompatible with EU law, on the basis that it had been paid under a mistake. The case was argued and decided on the assumption that the decisions in Kleinwort Benson and Deutsche Morgan Grenfell were correct. The court also held that section 107 of the FA 2007 was incompatible with EU law. The court referred to the Court of Justice the question whether section 320 of the FA 2004 was also incompatible with EU law in so far as it had retrospective effect. In 2013 the Court of Justice held that it was: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (Case C 362/12) [2014] AC 1161 (FII (CJEU) 3). These decisions represented a series of defeats for the Revenue. In more recent times, however, they enjoyed greater success. In 2017, in a test case concerned with the restitution of VAT charged incompatibly with EU law, this court reined in the increasingly expansive approach to restitutionary claims which had followed the adoption of the theory of unjust enrichment in Lipkin Gorman v Karpnale Ltd [1991] 2 AC 548 and Banque Financire de la Cit v Parc (Battersea) Ltd [1999] 1 AC 221: see Investment Trust Companies v Revenue and Customs Comrs [2017] UKSC 29; [2018] AC 275. Later that year, in the Littlewoods proceedings, this court held that common law claims to restitution of VAT, together with any right to compound interest based on Sempra Metals, and the limitation regime imposed by the 1980 Act, had been effectively excluded by the statutory provisions governing the recovery of VAT: Littlewoods Ltd v Revenue and Customs Comrs [2017] UKSC 70; [2018] AC 869. In 2018, in the CFC and Dividend Group Litigation, this court held, having regard to Investment Trust Companies, that Sempra Metals had been incorrectly decided in requiring compound interest to be paid on restitutionary awards, and departed from it: Prudential Assurance Co Ltd v Revenue and Customs Comrs [2018] UKSC 39; [2019] AC 929 (Prudential). The principal question raised by the present appeal is whether, as the Revenue contend (drawing to a considerable extent on Dr Samuel Beswicks articles, The discoverability of mistakes of law (2019) Lloyds Maritime and Commercial Law Quarterly 112, and Discoverability Principles and the Laws Mistakes (2020) 136 Law Quarterly Review 139), this court should now depart from the decision of the House of Lords in Deutsche Morgan Grenfell in relation to section 32(1)(c) of the 1980 Act. The Revenue were also granted permission to appeal on the question whether the decision in Kleinwort Benson, so far as relating to limitation, was correct. Ultimately, we did not understand the Revenue to press that point, but the court received submissions upon it, partly at its own request, in view of the bearing of the decision on that subsequently taken in Deutsche Morgan Grenfell. Before considering the question whether the limitation issues in those two cases were correctly decided, however, the court has first to consider whether, as the test claimants contend, the Revenue are barred in the light of the history of these proceedings, including their failure to raise that question in FII (SC) 1, from now raising the question in these proceedings against the test claimants (whatever impact it might have on the claims of other claimants who are party to the FII GLO), because it is res judicata, or because of an estoppel, or because their doing so amounts to an abuse of process. The history of the proceedings The test claims These proceedings have a long history. That reflects their exceptional complexity and novelty, and the need to make no fewer than three references to the Court of Justice. What follows is not a complete account, but covers the stages in the proceedings which are relevant to the present appeal. The FII GLO was made on 8 October 2003, and has been repeatedly amended since then. It defined the type of claims falling within the scope of the GLO, identified the initial claimants, and provided a procedure enabling further claimants to be added. It set out the common issues of fact or law which arose for determination, without prejudice to the power of the High Court to add to or vary them. It also laid down a procedure for selecting claims to proceed as test cases and for amending, removing and adding to the common issues. Claims not selected as test claims were stayed. The claim on behalf of various members of the British American Tobacco (BAT) group was selected as a test claim in relation to a number of issues set out in the GLO, including Issue P: From what date does the limitation period commence? A claim by members of the Aegis group was chosen as the test claim in relation to Issue Q, which concerned the effect of section 320 of the FA 2004. As explained above, that provision disapplied section 32(1)(c) of the 1980 Act in relation to claims relating to an Inland Revenue taxation matter which were brought on or after 8 September 2003. It did not apply to the BAT claim, which had been issued on 18 June 2003. The BAT claim sought inter alia the restitution of tax payments made between 1973 and the issue of the claim, with compound interest, on the basis that the tax had been paid pursuant to a mistake of law or unlawful demands. In its defence, the Revenue pleaded inter alia that any right to restitution or damages which accrued more than six years before the claim form was issued (ie prior to 18 June 1997) was barred by the 1980 Act. The first reference to the Court of Justice On 28 June 2004 the trial of the BAT claim began, but it was immediately apparent that a preliminary reference to the Court of Justice would be needed on the numerous issues of EU law arising. Without delivering a judgment, Park J directed that a reference be made. It included a number of questions concerning the compatibility of domestic tax provisions with EU law, and also questions concerning the classification under EU law of the claims arising in consequence of any incompatibility. On 12 December 2006 the Court of Justice gave its judgment on the reference (FII (CJEU) 1 [2012] 2 AC 436). It said at para 184 that [i]t is clear from case law that any less favourable treatment of foreign sourced dividends in comparison with nationally sourced dividends must be regarded as a restriction on the free movement of capital in so far as it is liable to make the acquisition of holdings in companies established in other member states less attractive. The cases cited as establishing that proposition were Staatssecretaris van Financin v BGM Verkooijen (Case C 35/98) [2000] ECR I 4071 (Verkooijen), para 35; Lenz v Finanzlandesdirektion fr Tirol (Case C 315/02) [2004] ECR I 7063 (Lenz), para 21 and Proceedings brought by Manninen (Case C 319/02) [2004] ECR I 7477; [2005] Ch 236 (Manninen), para 23. In the absence of EU legislation, it was for the domestic legal system to lay down the relevant procedural rules governing actions for safeguarding EU rights, including the classification of claims, subject to the obligation of national courts and tribunals to ensure that individuals should have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied on them and the amounts paid to the member state or withheld by it directly against that tax. In relation to the Francovich claims for compensation, and the requirement that the breach of EU law by the member state must be sufficiently serious before such a claim will lie, the Court of Justice stated at [2012] 2 AC 436, paras 215 216: 215. in a field such as direct taxation, the consequences arising from the freedoms of movement guaranteed by the Treaty have been only gradually made clear, in particular by the principles identified by the Court of Justice since delivering judgment in Commission of the European Communities v French Republic (Case 270/83) [1986] ECR 273. Moreover, as regards the taxation of dividends received by resident companies from non resident companies, it was only in [Verkooijen, Lenz, and Manninen] that the Court of Justice had the opportunity to clarify the requirements arising from the freedoms of movement, in particular as regards the free movement of capital. 216. Apart from cases to which Directive 90/435/EEC [the Parent/Subsidiary Directive] applied, Community law gave no precise definition of the duty of a member state to ensure that, as regards mechanisms for the prevention or mitigation of the imposition of a series of charges to tax or economic double taxation, dividends paid to residents by resident companies and those paid by non resident companies were treated in the same way. It follows that, until delivery of the judgments in the Verkooijen, Lenz and Manninen cases, the issue raised by the order for reference in the present case had not yet been addressed as such in the case law of the Court of Justice. Procedure following the first reference Following the judgment of the Court of Justice, Rimer J directed that consecutive trials of the BAT and Aegis test claims should proceed. They would try all GLO issues raised by the test claims, including liability for restitution, save in so far as those issues concern causation or quantification (para 12 of Rimer Js order). Directions were also given for the service of amended pleadings and for preparation for trial, including the agreement of a list of questions to be decided by the court. The BAT claimants amended their particulars of claim on 13 December 2007 so as to aver that they had made the ACT payments by reason of their mistaken beliefs (i) that the ACT provisions were lawful and enforceable, and/or (ii) that the claimants were lawfully obliged to make those payments. A similar averment was also made in relation to the DV payments. The BAT claimants also set out detailed averments in support of their reliance on section 32(1)(c) of the 1980 Act. In relation to the ACT payments, the BAT claimants averred that they discovered their mistakes when the Court of Justice gave its judgment in FII (CJEU) 1 on 12 December 2006, and could not with reasonable diligence have discovered their mistakes any earlier than then, or alternatively any earlier than 8 March 2001, when the Court of Justice gave its decision in Hoechst. In relation to the DV payments, they averred that the fact that those payments were made by mistake depended upon the final determination of the issues in the proceedings, and could not with reasonable diligence be known or discovered at any other time or in any other way. In other words, although they were bringing a claim for the repayment of the DV tax on the basis that it had been paid under a mistake, they submitted that they could not discover the mistake until the question whether the DV provisions were enforceable had been determined by the court in those proceedings. They also added averments explaining why, in their submission, the application of section 107 of the FA 2007 to their claim would be contrary to EU law. As part of their argument that section 107 should not be applied to their claim, they also averred that the Revenue were estopped from denying that section 32 of the 1980 Act applied to their claim, stating that until 6 December 2006 at the earliest (the date when the Revenue announced their proposal that Parliament should enact what became section 107 of the FA 2007), the parties had proceeded on the common understanding that section 32 applied. Alternatively, they averred that, in failing to propose that there be a separate issue within the GLO as to whether section 32 applied to claims commenced before 8 September 2003 (ie claims falling outside the ambit of section 320 of the FA 2004), the Revenue represented that section 32 applied to the BAT claim and others issued before that date. In response, the Revenue amended their defence on 21 December 2007. In relation to limitation, they denied that the BAT claimants were entitled to rely on section 32(1)(c) of the 1980 Act, and referred to section 107 of the FA 2007. They averred that any right to restitution which accrued more than six years before the date of issue of the claim form was barred by the 1980 Act. They denied that the parties had proceeded on a common understanding that section 32 applied to the BAT claim, averring that the law in that regard was not fully clarified until 25 October 2006 at the earliest (the date of the decision of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558). In fact, they averred, it was their explicit position at all times prior to that date, as advanced in Deutsche Morgan Grenfell, that section 32 did not apply. In the light of the amended claim and defences, Henderson J amended Issue Q so as to include the effect of section 107 of the FA 2007 as well as section 320 of the FA 2004. Issue P remained unchanged. The BAT claim became an additional test claim in relation to Issue Q so far as relating to section 107 of the FA 2007, as well as remaining a test claim in relation to other issues, including Issue P. Henderson Js first judgment The trial proceeded over 13 days in July 2008, and Henderson Js judgment was delivered in November of that year: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2008] EWHC 2893 (Ch); [2009] STC 254 (FII (HC) 1). The Revenue were recorded as arguing inter alia that the DV claims were excluded by the statutory provisions for recovery of tax overpaid in section 33 of the Taxes Management Act 1970, and that the ACT and DV payments had not in any event been made under any mistake of law. Those arguments were rejected. Henderson J characterised the mistake of law as a mistake as to the lawfulness of the ACT regime or the Case V charge (para 262): a characterisation which was not strictly accurate, since an incompatibility with EU law does not render a United Kingdom statute unlawful under domestic law, but requires the court to disapply the incompatible provision to the extent which is necessary to comply with EU law: R v Secretary of State for Transport, Ex p Factortame Ltd (No 2) [1991] 1 AC 603. The inaccuracy was however immaterial in the present context, since a mistaken belief that the provisions were enforceable, and that the claimants were therefore obliged to make the payments, would equally be a relevant mistake of law for the purposes of a restitutionary claim based on Kleinwort Benson and Deutsche Morgan Grenfell. On the facts, the judge found that a mistake had been made. In relation to the ACT claims, he was satisfied on the evidence that the mistake was not obvious to anybody within the BAT group at the time [when the payments were made], since everybody proceeded on the footing that the tax in question was lawfully due and payable ([2009] STC 254, para 267). The position in relation to the DV claims was said to be similar (para 275). The evidence bearing on this point was discussed at a later point in the judgment. At para 391, the judge said: [I]t is the evidence of the claimants own witnesses that they paid all of the tax in dispute on the footing that they believed it to be lawfully due, and had no reason to suspect the contrary before June 2000 at the earliest. So, for example, Mr Anthony Cohn, who was a Tax Manager with BAT Holdings, said in his first witness statement dated 13 May 2004: The first time we considered that the denial of [FII] treatment of foreign dividends might be a breach of EC law was when we discussed internally the Verkooijen judgment shortly after it was published on 6 June 2000. Following this, we spent a considerable amount of time considering our options and waiting to see how EC law would develop. Following discussions with our tax advisers, PricewaterhouseCoopers and our solicitors, Dorsey & Whitney in the spring and early summer of 2003, we decided to issue the claim. Mr Hardman, who was the head of taxation at BAT Industries, confirmed the accuracy of that evidence. The judge said that he saw no reason to doubt it. He found that nobody within the BAT group questioned the lawfulness of the relevant UK legislation at any time before June 2000 (when the Verkooijen judgment was delivered), and that accordingly [a]ll the disputed tax which was paid up to that date was paid in the firm belief that it was lawfully due (para 393). That evidence was consistent with other evidence adduced in relation to the Francovich claim. In that regard, the judge noted the Report of the Committee of Independent Experts on Company Taxation (the Ruding Committee), established by the European Commission in 1990 to evaluate the need for greater harmonisation of tax. In its Report, published in 1992, the Committee noted the adverse impact on overseas investment caused by discriminatory taxation of dividends from profits earned in another member state. There was, however, no suggestion that the discrimination was contrary to EU law. The same was true of the first draft of a paper by the Adam Smith Institute entitled An Act Against Trade UK Tax Prejudice Against Trading Abroad: The Problem of Surplus ACT and its Solution, which was sent to Mr Etherington, the Head of Tax for the BAT Group, in 1989 by the Director of the Institute. Reference was also made to a number of published articles on the subject by tax lawyers. The last of the articles, published in 1998, was the only one to raise the question whether the difference in treatment constituted a violation of EU law (Lodin, The Imputation Systems and Cross Border Dividends the need for new solutions, EC Tax Review, 1998, p 229). The author concluded that there was very little guidance to be found in earlier decisions of the Court of Justice, and that the outcome of any challenge was difficult to predict. The judge commented that that assessment reflected the uncertainty acknowledged by the Court of Justice in the present proceedings, which continued at least until the decision in Verkooijen in June 2000 (para 391). He concluded that, prior to that date, there was admittedly discrimination between the way in which UK tax law treated domestic dividends and foreign dividends, with domestic dividends receiving the more favourable treatment, but whether this form of discrimination involved a breach of articles 43 and 56 remained unclear until the decision in Verkooijen ([2009] STC 254, para 395). In relation to limitation, the judge considered the effect of section 320 of the FA 2004 and section 107 of the FA 2007, that is to say, Issue Q in the GLO, and concluded that it was not open to the Revenue to rely on either provision as a defence to the test claims. The judge also identified a number of issues on which a further reference to the Court of Justice was necessary. None of those issues concerned limitation. Henderson Js order, dated 12 December 2008, included a declaration (Declaration 17) that [t]o the extent that claimants paid unlawfully levied ACT and/or corporation tax under Schedule D Case V, such ACT and/or corporation tax was paid under a mistake. It also ordered (Order 1) that: The following claims are successful in relation to the GLO issues determined in the trial: (a) claims for repayment of corporation tax paid on or after 1 January 1973 on dividends received from companies resident in other EU member states; (b) claims for the repayment of surplus ACT (including ACT purportedly utilised against unlawful corporation tax on dividends under l(a)), or the time value of ACT utilised against lawful corporation tax or ACT refunded under the FID [foreign income dividends] regime, paid on or after 1 January 1973, by claimants which received dividend income from subsidiaries in other member states in so far as the ACT would not have been payable if dividend income from other EU member states had been treated as franked investment income; (c) claims for the time value of ACT on third country FIDs paid on or after 1 July 1994 and refunded under the FID regime; (d) claims under l(a), (b) or (c). claims for the repayment of interest based on The judge had not, however, addressed in his judgment the question of when the limitation period began to run Issue P in the GLO and said nothing in his judgment about the reasoning in Kleinwort Benson and Deutsche Morgan Grenfell relating to section 32(1)(c) of the 1980 Act. The first appeal to the Court of Appeal Both the test claimants and the Revenue appealed. It was common ground in the appeal that section 32(1)(c) of the 1980 Act applied in principle to the test claims for money paid under a mistake of law, following the decisions of the House of Lords in Kleinwort Benson and Deutsche Morgan Grenfell. The only point arising in relation to limitation was whether the application of section 32(1)(c) was precluded by section 320 of the FA 2004 in relation to the Aegis claim, and by section 107 of the FA 2007 in relation to the BAT claim. The Court of Appeal concluded that EU law did not preclude the application of either provision, since the claimants continued to have Woolwich claims (subject to a six year limitation period), and those claims were sufficient to meet the requirements of EU law: [2010] EWCA Civ 103; [2010] STC 1251 (FII (CA) 1). The court also directed that a further reference should be made to the Court of Justice, in order to seek clarification of its judgment in FII (CJEU) 1 [2012] 2 AC 436. Accordingly, the order of the court, dated 19 March 2010, varied Henderson Js Order 1 so as to exclude claims falling within the scope of the issues to be referred to the Court of Justice. Order 4 was also varied so as to state that all claims made outside the applicable limitation periods were unsuccessful. The first appeal to the Supreme Court In November 2010 this court granted both parties permission to appeal on a number of issues, including the question whether the availability of the Woolwich claims sufficed to meet the requirements of EU law. The second reference was then made to the Court of Justice, and it gave its ruling in 2012: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) (No 3) (Case C 35/11) [2013] Ch 431 (FII (CJEU) 2). In their submissions in the appeal to this court, the Revenue accepted that section 32(1)(c) of the 1980 Act applied to the test claimants claims for restitution on the basis of mistake, subject to the effect of section 320 of the FA 2004 and section 107 of the FA 2007. The argument in relation to limitation was therefore concerned with the effect of those provisions, and with the question whether section 32(1)(c) also applied to the Woolwich claims, as the test claimants submitted. The judgments proceeded on the same basis. As explained earlier, the court held that, in order for a claim to fall within the ambit of section 32(1)(c) of the 1980 Act, a mistake must constitute an essential element of the cause of action, and that the provision did not therefore apply to a Woolwich claim: FII (SC) 1 [2012] 2 AC 337. In so holding, the court upheld the earlier decision of Pearson J in Phillips Higgins v Harper [1954] 1 QB 411 (Phillips Higgins). As Lord Walker of Gestingthorpe pointed out at para 63, if that approach were to be departed from, there would be no principled stopping place for the expansion of the scope of section 32(1)(c) until it overrode the common law rule that ignorance of the existence of a cause of action does not prevent time from running. The consequence would be that the leading case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 would be seen to have missed the point, and the limits and rationale of sections 11 and 14A of the 1980 Act (which extend the limitation period for actions of damages for personal injuries, and other actions of damages for negligence, respectively, until the facts constituting the cause of action are known) would have to be revisited. The court also held that section 107 of the FA 2007 was incompatible with EU law, and referred two questions to the Court of Justice, including a question concerning the compatibility with EU law of section 320 of the FA 2004. The Court of Justice delivered its judgment in December 2013: FII (CJEU) 3 [2014] AC 1161. In the light of that judgment, this court held in April 2014 that neither section 320 of the FA 2004 nor section 107 of the FA 2007 could be applied to the test claims. The quantification trial In the meantime, in May 2013 Henderson J ordered that the trial of the BAT claim be resumed to determine all remaining issues of liability and quantification, apart from a few issues, not relating to limitation, which had been referred to the Court of Justice. Henderson J laid down a timetable for the amendment of the pleadings and the agreement of a list of issues to be decided at the resumed trial. In their amended particulars of claim, the BAT claimants continued to plead mistakes of law as set out at para 26 above, and those averments were admitted by the Revenue. In relation to limitation, the BAT claimants averred: 18. As set out above, the claimants claim relief from the consequences of mistakes within the meaning of section 32(1)(c) of the Limitation Act 1980 (section 32) and, in relation to their claims seeking such relief whether in restitution or as damages or howsoever arising (mistake claims), the claimants are entitled to rely on that provision. l8A. Accordingly, the six year period of limitation does not begin to run until the claimants have discovered their mistake or could with reasonable diligence have discovered it. In this regard: (a) The claimants discovered their mistakes relating to the ACT Payments when the ECJ gave its judgment on 12 December 2006. The claimants could not with reasonable diligence have discovered these mistakes any earlier than they did, alternatively any earlier than when the ECJ gave its decision in Metallgesellschaft Ltd v Inland Revenue Comrs and Hoechst AG v Inland Revenue Comrs (Joined Cases C 397/97 and C 410/98) on 8 March 2001. (b) The claimants discovered their mistakes relating to the FID enhancements when the ECJ gave its judgment on 12 December 2006. The claimants could not with reasonable diligence have discovered these mistakes any earlier than they did. (c) The fact that the DV Corporation Tax Payments, to the extent of their unlawfulness, and the payments connected with DV Corporation Tax and identified in paragraphs 17B(a)(ii) above were made by mistake depends upon the final determination of the issues in these proceedings. In the premises, the claimants could not with reasonable diligence have discovered these mistakes at any other time or in any other way. 18B. In the premises, the claimants mistake claims are not time barred. Following the decisions in FII (SC) 1 and FII (CJEU) 3, those paragraphs were admitted by the Revenue. Nevertheless, the Revenue informed the BAT claimants that they wished to argue at trial that the relevant date was not 12 December 2006 (the date of the judgment in FII (CJEU) 1) but 8 March 2001 (the date of the judgment in Hoechst). Accordingly, the parties agreed that one of the issues to be decided at the trial was Issue 28: When did the claimants discover (or could with reasonable diligence have discovered) their mistake? Accordingly, in respect of which payments and periods do the claimants have valid mistake claims? Henderson Js second judgment Following a 16 day trial, Henderson J delivered his judgment in December 2014: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2014] EWHC 4302 (Ch); [2015] STC 1471 (FII (HC) 2). In relation to Issue 28, he noted that the question as to when the claimants could first have discovered their mistake had been left undecided in FII (HC) 1 [2009] STC 254, and that it was of no practical significance to the BAT claimants, since their claim form was issued on 18 June 2003. That date was within the relevant six year period, whether that period began on 8 March 2001, as the Revenue argued, on 25 October 2006 (the date of the judgment in Deutsche Morgan Grenfell), as the judge was inclined to think, or on 12 December 2006, as the claimants argued. The issue might, however, be relevant to other claims in the FII GLO. He observed at para 454 that there was what might at first sight appear to be an insuperable logical difficulty in the claimants case on this issue: how could it be said that they neither had discovered, nor with reasonable diligence could have discovered, their mistake until 12 December 2006, when they had already started the present action three and a half years earlier? But, he said, that position necessarily followed from the courts jurisprudence. By parity of reasoning with the decision of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558, he considered that it was strongly arguable that it was only when that judgment was delivered, on 25 October 2006, that time began to run against the BAT claimants. That judgment was pertinent, in his view, because it was the first time an appellate court had determined that a restitutionary claim lay for the recovery of tax on the ground that it had been paid under a mistake of law. Although Park J had decided the same point three years earlier, it was only the decision of the House of Lords which achieved finality on the issue. However, in the light of the majority judgments in FII (SC) 1 [2012] 2 AC 33, particularly that of Lord Walker, he concluded that the date when the claimants discovered (or could with reasonable diligence have discovered) their mistake was 8 March 2001, when the Court of Justice delivered its judgment in Hoechst [2001] Ch 620. In that regard, Henderson J referred to Lord Walkers discussion of legitimate expectations, in the course of which he had observed at [2012] 2 AC 337, para 103 that, until the Court of Justice issued its judgment in Hoechst, there was no general appreciation that the UK corporation tax regime was seriously open to challenge as infringing the Treaty, and had stated at para 104 that, after the date of the judgment in Hoechst, a well advised multi national group based in the UK would have had good grounds for supposing that it had a valid claim to recover ACT levied contrary to EU law, with at least a reasonable prospect that the running of time could be postponed until then (but not subsequently). It is relevant to note that, when the parties received the judgment in draft, counsel for the claimants complained to the judge that, if the Revenue wished to argue Issue 28, they must apply to amend their pleadings, and satisfy the court that such an amendment should be permitted. In response, counsel for the Revenue noted that no pleading point had been taken until the draft judgment was released, and stated that the Revenue had not sought to amend their pleadings in the test claim because the issue was of no significance in relation to that claim (ie the BAT claim). Both parties had, however, recognised the significance of the issue for other claims (which had been stayed before being pleaded out), and had agreed that it should be included in the list of issues to be decided at the trial. The judge rejected the complaint, noting that the point was included in the agreed list of issues, and observing that the pleaded position as between the test claimants and the Revenue was not relevant to this issue, since both parties agreed that it made no difference so far as they were concerned. (Declaration 24) in the following terms: In his order, dated 30 January 2015, Henderson J granted a declaration Issue 28 is answered as follows: A. The date when the claimants discovered (or could with reasonable diligence have discovered) their mistake is 8 March 2001 when the ECJ delivered its judgment in Hoechst/Metallgesellschaft. It is common ground that on any view the BAT claimants started their mistake claims within the extended limitation period. As a result, all of the mistake claims of the BAT claimants dating back to 1973 are in time. The test claimants were granted permission to appeal against Declaration 24A. There was no appeal against Declaration 24B. The second appeal to the Court of Appeal In the course of the hearing before the Court of Appeal, in June 2016, counsel for the Revenue observed that the central issue in all of the cases concerned with claims for the restitution of money paid under a mistake was whether section 32(1)(c) does apply to mistakes of law. He also observed that this critical issue might be a matter for this court in the present proceedings. That appears to have been the first indication, in the papers before this court, that the decisions in Kleinwort Benson and Deutsche Morgan Grenfell might be challenged. The hearing proceeded, however, on the basis that the Court of Appeal was bound to follow the decisions of the House of Lords, and the argument focused on the effect of Deutsche Morgan Grenfell. In November 2016 the Court of Appeal allowed the test claimants appeal on Issue 28: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2016] EWCA Civ 1180; [2017] STC 696 (FII (CA) 2). Declaration 24A was amended so as to read: The date when the claimants discovered (or could with reasonable diligence have discovered) their mistake is 12 December 2006 [the date of the judgment in FII (CJEU) 1]. In their judgment, delivered in November 2016, the Court of Appeal noted at paras 348 349 the position on the pleadings. After quoting paras 18 and 18B of the amended particulars of claim (para 44 above), they noted that the Revenue had admitted those paragraphs, and observed that [t]hat no doubt reflected the fact that even on the basis of the fall back reasonable discoverability date of 8 March 2001 the BAT claimants claims were comfortably in time since proceedings had been commenced in 2003. As they noted, however, other claimants had not commenced proceedings until much later, and the Revenue had made it plain that, although pleadings had not been required in the cases of those claimants, it would be raising a limitation defence in them. So it had been agreed that Issue 28 should be determined. In relation to that issue, the court noted at para 372 that they were bound by the decision of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558, which in their view established that in the case of a point of law which is being actively disputed in current litigation the true position is only discoverable, for the purpose of section 32(1)(c) of the 1980 Act, when the point has been authoritatively determined by a final court. An authoritative determination of a related point by a final court in earlier proceedings would only start time to run, in their view, if it necessarily meant that the same conclusion would follow in the instant proceedings. The provisions in issue in Hoechst were not the same as those in issue in the FII GLO, and it was not contended that the decision in Hoechst necessarily meant that the latter provisions also infringed EU law. On that basis, the court concluded that the limitation period began to run for the test claimants only on the date when judgment was delivered in FII (CJEU) 1: that is to say, 12 December 2006, three and a half years after they had issued their claims. The second appeal to the Supreme Court Thereafter, the Revenue sought permission to appeal to this court on a multiplicity of grounds, including Issue 28, and invited the court to depart from that decision in Deutsche Morgan Grenfell. That ground of appeal was directed at the test claimants (ie the BAT claimants) as well as other claimants. Further submissions were filed following this courts decision in Prudential [2019] AC 929 (para 15 above), inviting the court also to depart from the decision in Kleinwort Benson as to the scope of section 32(1)(c) of the 1980 Act. Following an oral hearing, permission to appeal on Issue 28 was granted, without prejudice to the test claimants entitlement to argue that, even if the court were to hold that those decisions should be departed from, that decision should not affect the outcome of the present case, whether by reason of res judicata, issue estoppel, abuse of process or otherwise. The court also directed that the appeal on Issue 28 should be heard in advance of the appeal and cross appeal on all remaining grounds. In the event, and partly at the invitation of the court, the arguments at the hearing of the appeal involved a comprehensive consideration of the decisions in Kleinwort Benson and Deutsche Morgan Grenfell, so far as relating to limitation. The Finance (No 2) Act 2015 In 2015 Parliament again responded to restitution claims relating to taxation in the Finance (No 2) Act 2015 (F(No 2)A 2015). In section 38 of that Act Parliament introduced Part 8C of the Corporation Tax Act 2010, which imposed a higher rate of Corporation Tax (45%) on the interest paid on restitution claims for overpaid tax, if the interest was not simple interest at a statutory rate. This measure, which counsel described as a windfall tax, was Parliaments response to the large claims which were being made against the Exchequer. In section 52 of F(No 2)A 2015 Parliament also provided that the rates of interest payable on tax related judgment debts were those set out in tax legislation. Res judicata, estoppel and abuse of process Until June 2016 the Revenue appear to have given no indication that they might seek to challenge the decisions in Kleinwort Benson and Deutsche Morgan Grenfell and argue that section 32(1)(c) does not apply to mistakes of law: para 51 above. Issue 28 itself (para 45 above) assumes that section 32(1)(c) does so apply, and in the courts below that issue was directed to a debate on whether 8 March 2001 or 12 December 2006 is the relevant date under that subsection for the start of the limitation period. The emergence of the challenge to the decisions in both Kleinwort Benson and Deutsche Morgan Grenfell in this court after such extensive and costly legal proceedings has, unsurprisingly, caused the claimants to advance a vigorous case in which they argue that the Revenue cannot and, in any event, should not be allowed to make this challenge. The claimants primary position is that this court should dismiss the appeal in relation to Issue 28 on the grounds of res judicata, estoppel and abuse of process. Alternatively, they submit that the appeal should be limited to the identification of the relevant date under section 32(1)(c), because the wider challenge would contradict the Revenues concessions in the courts below, would amount to an abuse of process and would cause the claimants unfair prejudice. As a fall back, the claimants argue that the court should decline to entertain the appeal on Issue 28 in relation to the test claimants and the other claimants whose claims were issued within six years of 8 March 2001, or order that its determination does not apply to those claimants. The rules or concepts of res judicata, estoppel, and abuse of process support the same legal policies, namely that there should be finality in litigation and that a party should not be twice vexed in the same matter: Johnson v Gore Wood & Co [2002] 2 AC 1, p 31, per Lord Bingham of Cornhill. Lord Bingham went on to state: This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole. The other members of the Committee, except Lord Millett who delivered a concurring speech, agreed in terms with Lord Bingham on this rationale. Similarly, in Virgin Atlantic Airways Ltd v Zodiac Seats UK Ltd [2013] UKSC 46; [2014] AC 160 (Virgin Atlantic Airways), para 55 Lord Neuberger of Abbotsbury stated: The purpose of res judicata is not to punish a party for failing to take a point, or for failing to take a point properly, any more than to punish a party because the court which tried its case may have gone wrong. It is to support the good administration of justice, in the public interest in general and the parties interest in particular. That common purpose does not alter the fact that each rule or concept has its own rules, and each must be considered in turn. The claimants in their pleadings on this appeal use the term res judicata not as a portmanteau term to describe the different legal principles of which Lord Sumption spoke in Virgin Atlantic Airways Ltd (above), but equate it with cause of action estoppel. Lord Sumption in that case (para 17) described cause of action estoppel thus: The first principle is that once a cause of action has been held to exist or not to exist, that outcome may not be challenged by either party in subsequent proceedings. (Emphasis added) He stated that it is a form of estoppel precluding a party from challenging the same cause of action in subsequent proceedings (emphasis added). In his exposition of the law in relation to res judicata, with which the other Justices agreed, Lord Sumption quoted the speech of Lord Keith of Kinkel in Arnold v National Westminster Bank plc [1991] 2 AC 93 (Arnold) which described this estoppel in these terms (p 104D E): Cause of action estoppel arises where the cause of action in the later proceedings is identical to that in the earlier proceedings, the latter having been between the same parties or their privies and having involved the same subject matter. In such a case the bar is absolute in relation to all points decided unless fraud or collusion is alleged, such as to justify setting aside the earlier judgment. The discovery of new factual matter which could not have been found out by reasonable diligence for use in the earlier proceedings does not, according to the law of England, permit the latter to be re opened. Cause of action estoppel extends also to points which might have been but were not raised and decided in the earlier proceedings for the purpose of establishing or negativing the existence of a cause of action. Lord Keith quoted from the judgment of Sir James Wigram V C in Henderson v Henderson (1843) 3 Hare 100, 114 115: In trying this question, I believe I state the rule of the court correctly, when I say, that where a given matter becomes the subject of litigation in, and adjudication by, a court of competent jurisdiction, the court requires the parties to that litigation to bring forward their whole case, and will not (except under special circumstances) permit the same parties to open the same subject of litigation in respect of matter which might have been brought forward as part of the subject in contest, but which was not brought forward, only because they have, from negligence, inadvertence, or even accident, omitted part of their case. The plea of res judicata applies, except in special cases, not only to points upon which the court was actually required by the parties to form an opinion and pronounce a judgment, but to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time. Lord Keith ([1991] 2 AC 93) observed that this passage has frequently been treated as settled law and referred to the advice of the Judicial Committee of the Privy Council in two cases: Hoystead v Commissioner of Taxation [1926] AC 155 and Yat Tung Investment Co Ltd v Dao Heng Bank Ltd [1975] AC 581. He stated: It will be seen that this passage appears to have opened the door towards the possibility that cause of action estoppel may not apply in its full rigour where the earlier decision did not in terms decide, because they were not raised, points which might have been vital to the existence or non existence of a cause of action. (Emphasis added) In Virgin Atlantic Airways Ltd (above) Lord Sumption stated ([2014] 160, para 22) that Arnold was authority for the following propositions: (1) Cause of action estoppel is absolute in relation to all points which had to be and were decided in order to establish the existence or non existence of a cause of action. (2) Cause of action estoppel also bars the raising in subsequent proceedings of points essential to the existence or non existence of a cause of action which were not decided because they were not raised in the earlier proceedings, if they could with reasonable diligence and should in all the circumstances have been raised. (Emphasis added) From these authorities it is clear that cause of action estoppel operates only to prevent the raising of points which were essential to the existence or non existence of a cause of action. The claimants complaint in short is that the Revenue had conceded both in their pleadings and in counsels submissions that section 32(1)(c) applied to mistakes of law and that BAT (and by implication other claimants which had raised proceedings within six years after 8 March 2001) faced no limitation defence. Those concessions relate to the defence of limitation. The effect of limitation is to render an otherwise valid claim unenforceable to the extent that the claim relates to periods beyond the period of limitation. The concessions had and have no bearing on the existence or non existence of the cause of action which is a claim for restitution based on the payment of tax which was paid under a mistaken understanding of the relevant law. The Revenue therefore are not barred from their challenge by cause of action estoppel. The second estoppel which we must consider is issue estoppel. This expression, which appears to have been coined by Higgins J in the Australian case of Hoystead v Federal Taxation Comr (1921) 29 CLR 537, 561 and adopted by Diplock LJ in Thoday v Thoday [1964] P 181, 197 198, concerns the principle which Lord Sumption in Virgin Atlantic Airways Ltd (above), para 17 described as: the principle that even where the cause of action is not the same in the later action as it was in the earlier one, some issue which is necessarily common to both was decided on the earlier occasion and is binding on the parties. In Thoday (above), p 198, Diplock LJ observed that issue estoppel was an extension of the public policy underlying cause of action estoppel and described it in these terms: There are many causes of action which can only be established by proving that two or more conditions are fulfilled. Such causes of action involve as many separate issues between the parties as there are conditions to be fulfilled by the plaintiff in order to establish his cause of action; and there may be cases where the fulfilment of an identical condition is a requirement common to two or more different causes of action. If in litigation upon one such cause of action any of such separate issues as to whether a particular condition has been fulfilled is determined by a court of competent jurisdiction, either upon evidence or upon admission by a party to the litigation, neither party can, in subsequent litigation between one another upon any cause of action which depends upon the fulfilment of the identical condition, assert that the condition was fulfilled if the court has in the first litigation determined that it was not, or deny that it was fulfilled if the court in the first litigation determined that it was. In Fidelitas Shipping Co Ltd v V/O Exportchleb [1966] 1 QB 630, 642 Diplock LJ expressed the view that in an action in which certain questions of fact or law are tried and determined before others and an interlocutory judgment is given, the parties are bound by the determination of that issue in subsequent proceedings in the same action and their only remedy is to appeal the interlocutory judgment. He saw this as an example of issue estoppel. In Arnold (above), p 105 Lord Keith said that issue estoppel may arise where a particular issue forming a necessary ingredient in a cause of action has been litigated and decided and in subsequent proceedings between the same parties involving a different cause of action to which the same issue is relevant one of the parties seeks to re open that issue. He referred to the passage in Diplock LJs judgment in Thoday which we have quoted above and, by reference to Diplock LJs judgment in Fidelitas Shipping (above), observed that issue estoppel had been extended to cover the case where in subsequent proceedings it is sought to raise a point which might have been but was not raised in the earlier proceedings ([1991] 2 AC 93, p 106). Lord Sumption in Virgin Atlantic Airways (above), para 21, explained Lord Keiths judgment in Arnold (above) in relation to issue estoppel. In the case of that estoppel it was in principle possible to challenge a previous decision on an issue not only by taking a new point which could not reasonably have been taken in the earlier proceedings but also (in contrast to cause of action estoppel) to reargue in materially altered circumstances an old point which had previously been rejected. In para 22 he stated that Arnold was authority for the following proposition: (3) Except in special circumstances where this would cause injustice, issue estoppel bars the raising in subsequent proceedings of points which (i) were not raised in the earlier proceedings or (ii) were raised but unsuccessfully. If the relevant point was not raised, the bar will usually be absolute if it could with reasonable diligence and should in all the circumstances have been raised. The claimants did not argue in their written case that there is an issue estoppel, but Mr Daniel Margolin QC raised the possibility in his oral submissions and we must address it. The answer to this challenge lies in the terms of the GLO and the way in which the proceedings developed. The question of limitation was raised in Issue P in the GLO (From what date does the limitation period commence?) and the BAT claim was the test claim in relation to that issue: para 20 above. Issue P was not argued or determined in Henderson Js first judgment (FII (HC) 1 [2009] STC 254) or in the appeals which arose out of that judgment. The only question relating to a limitation defence which was decided in the first trial was Issue Q, which concerned the effect of section 320 of the FA 2004 and section 107 of the FA 2007: paras 29 and 35 above. This is unsurprising, as in the first phase of the litigation the Revenues only limitation defence to BATs mistake of law claims was its reliance on those statutory provisions to exclude the application of section 32(1)(c). In the period leading up to the second trial before Henderson J the BAT claimants asserted in their revised pleadings that the mistake claims were not time barred, and the Revenue admitted those assertions: para 44 above. Notwithstanding that admission in relation to the BAT claimants, the Revenue wished to argue that the relevant date under section 32(1)(c) was 8 March 2001 because that date would support a limitation defence in relation to some of the other claims. As a result, the parties agreed that Issue 28 be decided at the second trial: para 45 above. It would not have been possible for the Revenue to argue at first instance or in the Court of Appeal that either Kleinwort Benson or Deutsche Morgan Grenfell was wrongly decided. But until June 2016 the Revenue gave no indication and made no reservation that they might seek to advance such an argument if the case were to return to the Supreme Court. With the benefit of hindsight, that is unquestionably unfortunate. But it does not give rise to an issue estoppel in circumstances where Issue P had to be determined in the second phase of the proceedings and the argument which the Revenue now wish to advance could be raised only in the Supreme Court. The claimants advance a closely related argument that this court has no jurisdiction to address the challenge which the Revenue now seek to mount. This is because Henderson J in his second judgment (FII (HC) 2 [2015] STC 1471) made the declaration (Declaration 24) which we have set out in para 50 above. That declaration answered Issue 28 by stating two things. First, in Declaration 24A it stated that the date at which the BAT claimants could have discovered their mistake was 8 March 2001. Secondly, in Declaration 24B it stated: It is common ground that on any view the BAT claimants started their mistake claims within the extended limitation period. As a result, all of the mistake claims of the BAT claimants dating back to 1973 are in time. There was no appeal against Declaration 24B. The BAT claimants now argue that by failing to appeal that declaration, the Revenue cannot raise the arguments which they wish to raise against them and the other claimants whose claims were issued within six years of 8 March 2001 because this court has no jurisdiction to consider a challenge to a court order which has not been appealed. We reject this argument. The failure to appeal the declaration in question does not exclude the jurisdiction of this court. The declaration is not a judicial determination but records an agreed position at that time. Such an order is not readily the subject of an appeal. The issue to which the declaration of the common position gives rise is whether the Revenue should be allowed to depart from that common position by withdrawing their concession at this late stage in the proceedings. That is a matter which we address in paras 83 100 below. The claimants alternative argument is that the Revenue, by seeking to extend Issue 28 into an argument that Kleinwort Benson and Deutsche Morgan Grenfell were wrongly decided, are guilty of an abuse of process. The principle of abuse of process was first formulated by Wigram V C in Henderson v Henderson (above) and more recently was analysed by the House of Lords in Johnson v Gore Wood & Co [2002] 2 AC 1. In that case Lord Bingham (at p 31B E) stated: The bringing of a claim or the raising of a defence in later proceedings may, without more, amount to abuse if the court is satisfied (the onus being on the party alleging abuse) that the claim or defence should have been raised in the earlier proceedings if it was to be raised at all. It is, however, wrong to hold that because a matter could have been raised in earlier proceedings it should have been, so as to render the raising of it in later proceedings necessarily abusive. That is to adopt too dogmatic an approach to what should in my opinion be a broad, merits based judgment which takes account of the public and private interests involved and also takes account of all the facts of the case, focusing attention on the crucial question whether, in all the circumstances, a party is misusing or abusing the process of the court by seeking to raise before it the issue which could have been raised before. Lord Bingham then rejected the submission that the rule in Henderson v Henderson did not apply when an action had been settled by compromise. He stated, pp 32 33: An important purpose of the rule is to protect a defendant against the harassment necessarily involved in repeated actions concerning the same subject matter. A second action is not the less harassing because the defendant has been driven or thought it prudent to settle the first; often, that outcome would make a second action the more harassing. Lord Goff of Chieveley, Lord Cooke of Thorndon and Lord Hutton agreed in terms with Lord Binghams analysis. Lord Milletts speech is consistent with Lord Binghams analysis. He described the doctrine of res judicata as a rule of substantive law and contrasted that with the Henderson v Henderson doctrine which he described as a procedural rule based on the need to protect the process of the court from abuse and the defendant from oppression ([2002] 2 AC 1, p 59D E). The abuse of process doctrine is not confined to the raising of subsequent proceedings after the completion of an action but can apply to separate stages within one litigation. See, for example, Tannu v Moosajee [2003] EWCA Civ 815. In Virgin Atlantic Airways Ltd (above) Lord Sumption agreed with Lord Milletts analysis of the relationship between on the one hand the estoppels which come within the law of res judicata and on the other the abuse of process doctrine, stating ([2014] AC 160, para 25): Res judicata is a rule of substantive law, while abuse of process is a concept which informs the exercise of the courts procedural powers. In my view, they are distinct although overlapping legal principles with the common underlying purpose of limiting abusive and duplicative litigation. While the concept of abuse of process informs the exercise of the courts procedural powers, it is not a question of the exercise by the court of a discretion: Aldi Stores Ltd v WSP Group plc [2017] EWCA Civ 1260; [2008] 1 WLR 748, para 16 per Thomas LJ, para 38 per Longmore LJ. If the court, on making the broad, merits based judgment of which Lord Bingham spoke, concludes that a claim, a defence, or an amendment of a claim or of a defence involves an abuse of process or oppression of the opposing party, it must exclude that claim, defence or amendment. A finding of abuse of process operates as a bar. Thus, as Lord Wilberforce stated in delivering the judgment of the Judicial Committee of the Privy Council in Brisbane City Council v Attorney General for Queensland [1979] AC 411, 425, the doctrine ought only to be applied when the facts are such as to amount to an abuse: otherwise there is a danger of a party being shut out from bringing forward a genuine subject of litigation. From these authorities it is clear that for the court to uphold a plea of abuse of process as a bar to a claim or a defence it must be satisfied that the party in question is misusing or abusing the process of the court by oppressing the other party by repeated challenges relating to the same subject matter. It is not sufficient to establish abuse of process for a party to show that a challenge could have been raised in a prior litigation or at an earlier stage in the same proceedings. It must be shown both that the challenge should have been raised on that earlier occasion and that the later raising of the challenge is abusive. Applying that test to the circumstances of this appeal, we are not persuaded that it is an abuse of process for the Revenue to challenge the decisions of the House of Lords in Kleinwort Benson and Deutsche Morgan Grenfell at this stage of the GLO proceedings. We have reached this view for the following four reasons. First, the FII Group Litigation has involved novel and developing legal claims raising legal issues of unparalleled complexity, causing the claimants and the Revenue to amend their pleadings in the light of developments of both EU law and domestic law. Henderson J in FII (HC) 2 [2015] STC 1471, para 468) correctly spoke of a complex and evolving legal landscape. The claims were and are located at the interface of two developing systems of law: see paras 9 15 above. In English law the right to claim restitution for money paid under a mistake of law was first recognised only in 1998 and the courts, including this court, have been dealing with the ramifications of that decision since then. This is the second occasion on which the FII claims have reached this court and the claims have been materially affected by the judgment of the House of Lords in Sempra Metals [2008] 1 AC 561 and more recently by the judgments of this court in Littlewoods [2018] AC 869 and Prudential [2019] AC 929. On the European plane, the Court of Justice first recognised the incompatibility of the UK corporation tax legislation with EU law in the ACT Group Litigation in Hoechst in 2001, and the FII claims have since then generated no less than three judgments in references to the Court of Justice in 2006, 2012 and 2013. The claimants in the FII Group Litigation, in the ACT Group litigation, and in similar actions seeking the recovery of tax paid under a mistake of law, have been pursuing their claims at the frontier of legal developments. This in part explains the complexity of the legal proceedings, and why legal questions which are of central importance to those claims have only recently been decided or have not yet been determined. The question whether there has been an abuse of process involves a broad merits based judgment against this very unusual background. Secondly, the FII Group Litigation has been the subject of case management by the court, which has determined the order in which the questions of legal principle which the parties had identified have been addressed. In the first phase of the litigation 20 issues were sent to trial for determination by Henderson J. As Mr Margolin QC forcefully submitted, it was intended at that stage of the litigation that the first trial before Henderson J would determine all GLO issues relating to the test claims, including liability for restitution, except in so far as the issues concerned causation or quantification of the claims. It is also clear that at that stage the Revenue did not dispute that section 32(1)(c) would have applied to the mistake of law claims but for Parliaments intervention by enacting section 320 of the FA 2004 and section 107 of the FA 2007 to exclude the operation of that section in relation to mistake claims relating to Inland Revenue taxation matters. But Issue P (From what date does the limitation period commence?) was not determined in the first phase of the litigation, because, as the parties then presented their cases, it made no difference to the outcome of the BAT claims. The question raised by Issue P remained to be addressed in a later phase of the litigation. Thirdly, it is readily understandable why in the first phase of the litigation the Revenue focused on the statutory provisions which Parliament had enacted, namely section 320 of the FA 2004 and section 107 of the FA 2007. Those provisions would have established in domestic law the Revenues limitation defence that all claims accruing more than six years before the date of issue of the relevant claim forms were barred by the 1980 Act, but the provisions were held to be incompatible with EU law in so far as they had retrospective effect. Had the Revenue succeeded in establishing the legal enforceability of those statutory responses to the legal developments, they would not have needed to mount a challenge to Kleinwort Benson and Deutsche Morgan Grenfell. In the context of these actions in a developing area of law, we are satisfied that the Revenues failure to raise the wider questions relating to section 32(1)(c), while unfortunate, involved no culpability. Fourthly, it is not disputed that until the first phase of the FII Group Litigation reached this court in 2012, the Revenue could not have raised a challenge to the decisions in Kleinwort Benson and Deutsche Morgan Grenfell as only this court could review those judgments. The Revenue did not do so. Indeed, in response to a question from this court at that hearing, their counsel disavowed any intention to do so in those proceedings. But, at that time, the Revenues defence based on the statutory provisions enacted in 2004 and 2007 was still a live issue and Issue P had not been addressed. With the benefit of hindsight, it would have been better if the issue which the Revenue seek to raise in this hearing had been raised before this court in 2012, not least because the BAT claimants estimate that the limitation defence, if successful, would exclude a very large proportion of the value of their claims. But we do not think that it can be said that in the circumstances which prevailed in 2012 the Revenue should have raised the wider issue then. In the context of a very complex group litigation raising many novel questions of law in which the court had left Issue P for a later phase, the Revenue did not act abusively in not mounting the wider challenge then. There is therefore no bar arising from an estoppel, lack of jurisdiction or the doctrine of abuse of process which prevents this court from considering the Revenues challenge to Kleinwort Benson and Deutsche Morgan Grenfell. There remains the difficult question of the exercise of this courts discretion in deciding whether to allow the Revenue to advance the arguments which they now seek to deploy. The claimants argue with no little force that the Revenue in the second phase of the FII Group Litigation never stated that they wished to reserve the right to mount a broader attack in their limitation defence, which included a challenge to the Kleinwort Benson and Deutsche Morgan Grenfell decisions. On the contrary, the Revenue admitted in the pleadings in the BAT test case that BATs mistake claims were not time barred: para 44 above. Issue 28 in the second phase, which we have set out in para 45 above, is sufficiently broad to support one of the arguments which the Revenue have advanced in this court, namely that a taxpayer could with reasonable diligence have discovered a mistake of law at the date when the tax was mistakenly paid. But in the context of the Revenues admissions, which are reflected in Henderson Js statement of the common position of the parties in Declaration 24B (para 50 above), the agreed focus of that issue was on the Revenues argument that 8 March 2001, which is the date on which the CJEU handed down the Hoechst judgment ([2001] Ch 620), was the relevant date under section 32(1)(c), as Henderson J held in Declaration 24A. The claimants also argue that they have suffered very serious unfair prejudice by the emergence of the challenge to the Kleinwort Benson and Deutsche Morgan Grenfell decisions so late in these proceedings. We discuss this in paras 91 100 below. These are matters which the court must consider in the exercise of its discretion, as the Revenues broader challenge involves not only the withdrawal of a concession and a pleaded admission as against the BAT claimants, but also the raising of a new point of law on appeal. Several cases illustrate the established approach of the courts to the exercise of this discretion. In Pittalis v Grant [1989] QB 605 the Court of Appeal addressed an application by the landlord appellants to withdraw a legal concession made at first instance and to amend their grounds of appeal to argue for a different interpretation of a provision in the Rent Act 1977 from that which had been argued at first instance. The Court of Appeal allowed the application. Nourse LJ, who delivered the judgment of the court, stated the rule of procedure which operates as a norm, by quoting from the judgment of Sir George Jessel MR in Ex p Firth, In re Cowburn (1882) 19 Ch D 419, 429: the rule is that, if a point was not taken before the tribunal which hears the evidence, and evidence could have been adduced which by any possibility would prevent the point from succeeding, it cannot be taken afterwards. You are bound to take the point in the first instance, so as to enable the other party to give evidence. Nourse LJ stated that although the court has a discretion to refuse an application to raise on appeal a pure question of law which had not been raised at first instance, the normal practice was to allow the legal point to be taken where the court could be confident that the other party (i) had had an opportunity of meeting it, (ii) had not acted to his detriment by reason of the earlier omission to take the point and (iii) could be adequately compensated in costs: p 611C F per Nourse LJ. In Jones v MBNA International Bank (30 June 2000) [2000] EWCA Civ 514; [2000] Lexis citation 3292, Peter Gibson LJ (para 38) summarised the practice of the Court of Appeal in these terms: It is not in dispute that to withdraw a concession or take a point not argued in the lower court requires the leave of this court. In general the court expects each party to advance his whole case at the trial. In the interests of fairness to the other party this court should be slow to allow new points, which were available to be taken at the trial but were not taken, to be advanced for the first time in this court. That consideration is the weightier if further evidence might have been adduced at the trial, had the point been taken then, or if the decision on the point requires an evaluation of all the evidence and could be affected by the impression which the trial judge receives from seeing and hearing the witnesses. Indeed it is hard to see how, if those circumstances obtained, this court, having regard to the overriding objective of dealing with cases justly, could allow that new point to be taken. That summary, and particularly the reference to the difficulty of allowing a new point to be taken if further evidence would have been adduced at the trial, reflects longstanding practice: see, for example, The Tasmania (1890) 15 App Cas 223, 225 per Lord Herschell; Ex p Firth, In re Cowburn (above) per Sir George Jessel MR. As May LJ also made clear in his concurring judgment in Jones (para 52), the court has established a general procedural principle in the interests of efficiency, expediency and cost and in the interest of substantial justice in the particular case. There is no absolute bar against the raising of a new point of law even if a ruling on a new point of law necessitates the leading of further evidence, but, as the case law reveals, the court will act with great caution. In Grobelaar v News Group Newspapers Ltd [2002] UKHL 40; [2002] 1 WLR 3024, the House of Lords had to interpret the verdict of a jury, and addressed an application by the claimants counsel to withdraw a concession which he had made in the Court of Appeal as to the inferences of fact to be taken from the jurys award of damages for libel in favour of his client. He was allowed to do so for reasons which are not material to this appeal, but in a passage on which the test claimants rely, Lord Bingham stated (para 21): Only rarely, and with extreme caution, will the House permit counsel to withdraw from a concession which has formed the basis of argument and judgment in the Court of Appeal. A similar note of appellate caution was sounded in Singh v Dass [2019] EWCA Civ 360 in which a claimant sought to raise a new argument under the 1980 Act which he had not advanced at first instance. Haddon Cave LJ, who gave the judgment of the court, summarised the relevant principles in these terms: 16. First, an appellate court will be cautious about allowing a new point to be raised on appeal that was not raised before the first instance court. 17. Second, an appellate court will not, generally, permit a new point to be raised on appeal if that point is such that either (a) it would necessitate new evidence or (b) had it been run below, it would have resulted in the trial being conducted differently with regards to the evidence at the trial (Mullarkey v Broad [2009] EWCA Civ 2, paras 30 and 49). 18. Third, even where the point might be considered a pure point of law, the appellate court will only allow it to be raised if three criteria are satisfied: (a) the other party has had adequate time to deal with the point; (b) the other party has not acted to his detriment on the faith of the earlier omission to raise it; and (c) the other party can be adequately protected in costs (R (Humphreys) v Parking and Traffic Appeals Service [2017] EWCA Civ 24; [2017] PTR 22, para 29). Haddon Cave LJs second principle reflects the judgment of the Court of Appeal in Jones (above), paras 38 and 52, and his third principle is a paraphrase of what Nourse LJ stated in Pittalis v Grant (above) p 611. In Notting Hill Finance Ltd v Sheikh [2019] EWCA Civ 1337; [2019] 4 WLR 146 the Court of Appeal, in a judgment delivered by Snowden J, stated that an appellate court has a general discretion whether to allow a new point to be taken on appeal (para 21) and considered and analysed the practice set out in Pittalis and Singh: 26. These authorities show that there is no general rule that a case needs to be exceptional before a new point will be allowed to be taken on appeal. Whilst an appellate court will always be cautious before allowing a new point to be taken, the decision whether it is just to permit the new point will depend upon an analysis of all the relevant factors. These will include, in particular, the nature of the proceedings which have taken place in the lower court, the nature of the new point, and any prejudice that would be caused to the opposing party if the new point is allowed to be taken. The court then spoke of a spectrum of cases. At one end, where there had been a full trial involving live evidence and the new point might have changed the course of the evidence or required further factual enquiry, there was likely to be significant prejudice to the opposing party and the policy arguments in favour of finality would be likely to carry great weight. At the other end, where the point to be taken was a pure point of law which could be argued on the facts as found by the judge, the appeal court was far more likely to permit the point to be taken, provided that the other party had had time to meet the new argument and had not suffered any irremediable prejudice in the meantime (paras 27 and 28). The challenge which the Revenue seek to advance has the potential to affect the quantification of the claims very significantly, and it is raised at a late stage in a complex group litigation. It involves this court making a ruling on a question of law. But the claimants argue that they have acted to their detriment and will suffer serious prejudice if the Revenue were to be allowed to widen Issue 28 into a challenge to the authority of Kleinwort Benson and Deutsche Morgan Grenfell and were to succeed in that challenge. Such an outcome would, as we discuss below, require the parties to amend their pleadings and conduct a further trial on the quantification of the test claimants claim. Counsel argues that if the BAT claimants had known that the Revenue might seek to withdraw their admission that the claims which pre dated 8 March 2007 were not time barred, they would not have appealed Henderson Js Declaration 24A (para 50 above) on behalf of the eight claimants who were adversely affected by the decision that the relevant date for the calculation of the limitation period was 8 March 2001. Secondly, they submit that there was a clear demarcation in the phases between liability and quantification and the question of limitation properly belonged to the first phase. Thirdly, the claimants would suffer enormous prejudice if the Revenues new case on limitation were to succeed, because the test claimants had expended very substantial resources in the past six years in litigating legal issues relating to the quantification of their claims in the second phase of the Group Litigation and also in challenging the windfall tax imposed by the F(No 2)A 2015. Counsel estimated that the claimants had incurred costs of about 9.8m, net of recovery through awards of costs, on the FII Group Litigation and the windfall tax challenge. Fourthly, if the Revenue were to succeed, this might necessitate a retrial of questions of quantification. The test claimants also assert that they have been prejudiced because this court in its judgments in Littlewoods [2018] AC 869 and Prudential [2019] AC 929, which have a materially adverse effect on the quantification of their claims by excluding compound interest on those claims, was influenced by the disruption to public finances which the application of section 32(1)(c) to claims for the repayment of tax would entail. We consider this challenge to be the most difficult to determine of the claimants preliminary challenges to the scope of this appeal. With hindsight, there is no doubt that it would have been better if the Revenue at the start of the second phase of the FII Group Litigation had reserved their right to mount the challenge which they seek to make in this court. It is important that there be discipline in the conduct of actions which are the subject of Group Litigation Orders and it is important that there be finality in the determination of issues raised in such actions. An appellate court, in the interests of justice, will normally seek strenuously to avoid an outcome which results in the parties, who have already gone to trial on the quantification of a claim, having to amend their pleadings and to adduce further evidence to apply its ruling on a new issue of law to the facts of their case. In a normal litigation, the need for a re trial would be a strong and normally determinative pointer against allowing a party to withdraw a concession which had influenced the way in which a litigation had been conducted. There are nonetheless several factors which point in the other direction which make it appropriate not to apply the normal rule. The court is being asked to exercise a discretion not in an individual case but in the context of a group litigation order, a procedural phenomenon which did not exist when Lord Herschell wrote his speech in The Tasmania (1890) 15 App Cas 223. One must also have regard to the nature and subject matter of this group litigation and the manner in which it has been conducted. It is not suggested that the BAT claimants have not had time to deal with the legal challenge. We do not accept that, as the FII Group Litigation progressed, there was a complete demarcation between liability and quantum in the first and second phases: the BAT claimants accept that in the second phase, 19 of the 29 issues related to quantification. The others did not. Issue P, which became Issue 28, remained to be resolved and Issue 17 (namely whether the tax credits given to shareholders for ACT prevented the Revenue from being enriched) raised an issue of principle which could have had a material effect on the quantification of the claims. Because Kleinwort Benson and Deutsche Morgan Grenfell were rulings by the House of Lords, the Revenue could not have mounted the challenge in the courts below in the second phase; the Revenue could only have given notice that such a challenge might be made. If such notice had been given, how far would the BAT claimants have acted differently? We are persuaded that Henderson Js Declaration 24A would have been appealed. In the context of the FII Group Litigation, the starting date of the six year limitation period was of material importance to the claimants who were prejudiced by Henderson Js determination. Any one of those claimants could have applied for permission to appeal that declaration under CPR Part 19, rule 19.12(2). It is important to bear in mind the context of this litigation in which this court is asked to make rulings on issues of legal principle which will affect directly or indirectly other claimants besides the BAT claimants, both within and outside the particular GLO. In that context, the loss of the opportunity for the BAT claimants to secure a procedural advantage to close off the issue so far as it related to their claims and those of the other 18 claimants who were not prejudiced by Henderson Js determination by not appealing against Declaration 24A is a consideration which carries only limited weight. It is possible that the BAT claimants approach to the sequencing of the issues in Phase 2 of the litigation, and in particular the quantification of their claims, would have been different. They might have wished the challenge to Kleinwort Benson and Deutsche Morgan Grenfell to be resolved before they expended time and money on quantification. But the claimants in the FII GLO would still have substantial claims, which the Revenue estimate to be between 80m and 130m, if the limitation challenge which the Revenue now seek to pursue were to succeed; and they needed to complete the litigation to establish those claims. Further, the BAT claimants and the other claimants were prepared to incur the costs in relation to quantification when there was no final determination of issues such as Issue 17 and when the question whether there was an entitlement to compound interest, which was determined adversely to their interest by this court in Littlewoods and Prudential, had yet to be conclusively resolved. It is therefore mere speculation on the information before this court for us to say what the claimants might have done if the Revenue had reserved their position on Kleinwort Benson and Deutsche Morgan Grenfell. Insofar as the BAT claimants are able to persuade the court that they have suffered prejudice by incurring costs which they would not have incurred but for the admission that there was no time bar defence in relation to the BAT claimants and (by implication) the 18 other claimants who commenced proceedings before 8 March 2007, it may be possible to provide a remedy by revising the orders for costs which have been made in the proceedings or by making a further order for costs. We do not consider that the costs which the claimants have incurred in their challenge to the windfall tax in the F(No 2)A 2015 are a relevant consideration as that is a separate litigation relating to different statutory provisions. That legislation was enacted before several decisions which have materially affected the value of the claimants claims had been determined. It predated this courts judgments in Littlewoods and Prudential, which excluded claims for compound interest as a component of a claim for restitution. We cannot know whether Parliament would have acted differently in 2015 if the Revenue had reserved a right to challenge the Kleinwort Benson and Deutsche Morgan Grenfell decisions before this court at a future date. We also consider that the points which we have made in para 78 above in relation to the abuse of process claim are both relevant and of great weight when considering the exercise of this discretion. The nature of the claims, depending as they do on a developing area of law, means that it is important that this court address the legal questions which the Revenue wish to raise. The size of the claims and their impact on the public purse are also relevant considerations, as it would be wrong to uphold such claims if they are based on an incorrect understanding of the law. As we have said, even if the Revenues challenge to the application of section 32(1)(c) succeeds, the claimants will have claims of substantial value. The legal question is also of great importance to other claimants outside the FII Group Litigation, including claimants in the litigations to which we have referred in paras 5 6 above, who also have claims of high value. In the end, the task for the court is to make an evaluation of what justice requires in the circumstances of this group litigation. We are persuaded for the reasons set out above that we should allow the Revenue to withdraw their concession and to amend their pleadings to remove the admission on which the test claimants found. The final preliminary matter which we must consider is the test claimants application that, in the event that the court allows the Revenue to withdraw their concession and mount the challenge, the court should decline to entertain the appeal in relation to the 19 claimants whose claims were issued within six years after 8 March 2001 or, by analogy with CPR rule 19.12, order that any judgment or order which it makes shall not be binding on those claims. For the reasons which we have set out in paras 94 100 above (other than the effect of the determination on claimants outside the FII Group Litigation) and in particular that, if we were to hold that either Kleinwort Benson or Deutsche Morgan Grenfell was wrongly decided in relation to the interpretation of section 32(1)(c) of the 1980 Act, those claims would to that extent be based on an incorrect understanding of the law, we are not persuaded that the interests of justice require this court to make such orders. The background to section 32(1)(c) of the Limitation Act 1980 The 1980 Act is a consolidation statute, designed to consolidate the 1939 Act and a number of subsequent enactments. Section 32(1), in particular, is a re enactment of section 26(b) of the Limitation Act 1939 (the 1939 Act), subject to a minor amendment which appears in section 32(1)(b). Nevertheless, as its interpretation raises questions of substantial difficulty, it is both permissible (Farrell v Alexander [1977] AC 59, 72 73) and necessary to consider the previous law in some detail, as the House of Lords did in Kleinwort Benson and as this court did in FII (SC) 1 [2012] 2 AC 33. The law prior to the Limitation Act 1939 The common law When considering the state of the law prior to the 1939 Act, in so far as it related to action[s] for relief from the consequences of a mistake, and the limitation period applicable to such actions, it is necessary to distinguish between actions at law and claims for equitable relief. So far as common law actions are concerned, there were a number of types of action which might be described as action[s] for relief from the consequences of a mistake. But the mistake was invariably one of fact, rather than law. In particular, it had been established for almost 200 years that no claim lay at common law for the recovery of money paid under a mistake of law: see, for example, Bilbie v Lumley (1802) 2 East 469. That was settled law in 1939, and continued to be so until the decision in Kleinwort Benson. As Atkinson J pointed out in Anglo Scottish Beet Sugar Corpn Ltd v Spalding Urban District Council [1937] 2 KB 607, 615 616, in most cases of payment by mistake the person paying has paid because of a mistake as to his legal right or obligation, and whether the payment can be recovered or not depends upon whether that mistake as to legal right is due to a mistake of fact or a mistake of law. The distinction between these alternatives gave rise to disputes in borderline cases, and was considered in a multitude of authorities, in which fine distinctions were sometimes drawn. There were a number of statutes concerned with limitation in relation to common law actions. The most important for present purposes was the Limitation Act 1623 (21 Jac 1, c 16), as amended by the Administration of Justice Act 1705 (4 & 5 Anne c 16) and the Mercantile Law Amendment Act 1856 (19 & 20 Vict, c 97) (the 1623 Act). It imposed time limits of 20 years on the bringing of real actions and six years, running from the accrual of the cause of action, on the bringing of certain personal actions, including trespass, trover, replevin, actions of account, action on the case and actions of debt. It is apparent from the names of the forms of action to which the statute applied, and from the fact that they were referred to as actions, that the only proceedings barred were actions at law. Actions on the case included actions of indebitatus assumpsit on a count for money had and received, which was the relevant form of action for restitution of money paid under a mistake. In such cases, the cause of action accrued on the date of the payment: Baker v Courage & Co Ltd [1910] 1 KB 56. The limitation period therefore began to run on that date. Equity The position in equity is more complex. As Lord Walker observed in FII (SC) 1 [2012] 2 AC 337, para 62, the authorities are rather short on clear exposition of the relevant principles of equity. It is also necessary to bear in mind that cases which involved a mistake also often involved other factors which formed the justification for equitable relief, such as fraud, misrepresentation or abuse of a fiduciary position. For present purposes, in the light of the decision in FII (SC) 1, it is also necessary to distinguish between cases where mistake was an essential element of the claim for relief, and cases where it was not. The law as it was understood in the 1930s is broadly summarised in Snells Equity, 21st ed (1934), p 428: Mistake may be on a matter either of law or of fact, and it is generally said that whereas relief can be obtained against mistake of fact, no relief can be given against mistake of law. Neither part of this proposition can, however, be accepted without considerable qualification, for not every mistake of fact is the subject of relief, and, on the other hand, relief is sometimes granted even against mistakes of law. Snell listed four kinds of case in which equitable relief could be given from the consequences of a mistake. First, mistake was accepted as being a ground in some circumstances for refusing specific performance of a contract. Secondly, mistake could in some circumstances justify the exercise of an equitable jurisdiction to grant rescission of a contract (it is unnecessary to consider in this appeal whether such a jurisdiction survived the decision in Bell v Lever Bros Ltd [1932] AC 161: a question considered in Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd [2002] EWCA Civ 1407; [2003] QB 679). It is relevant to note that in a leading case of common mistake where equity intervened, a distinction was drawn between ignorance of the general law, which could not justify rescission, and a mistake as to private rights of ownership, which could, but was categorised as a mistake of fact: Cooper v Phibbs (1867) LR 2 HL 149, 170 (where the plaintiff contracted to purchase property from the defendant which, unknown to either of them, the plaintiff already owned in equity). Thirdly, equity could provide relief where a written contract failed to express correctly the parties antecedent agreement, by providing the remedy of rectification. Fourthly, although it was a general rule in equity, as at common law, that money paid under a mistake of law could not be recovered, there were said to be certain exceptions. The general rule was stated in Snells discussion of mistake at pp 439 440: money paid under a mistake of law cannot be recovered, this being perhaps the only type of relief where it can be regarded as absolutely clearly established by way of general rule that ignorantia legis non excusat. The authorities cited in support of that statement included Rogers v Ingham (1876) 3 Ch D 351, which was a case of alleged overpayment by an executor of one legatee at the expense of the other, as the result of an error in the construction of a will. The allegedly underpaid legatee sought to recover the money from the recipient. As is explained at para 116 below, such cases generally fall within the scope of a principle relating to the administration of estates which enables recovery to be obtained, regardless of whether there has been a mistake or not. However, the case fell outside the scope of that principle, because the payment in question had been authorised by the legatee who later sought to challenge it. Consequently, the only basis for recovery was that the payment had been made under a mistake of law. It was held that no claim lay either in equity or in law for recovery on that basis. James LJ, whose every word on a question of equitable principle is weighty (Ministry of Justice v Simpson [1951] AC 251, 272), stated at pp 355 356: I have no doubt that there are some cases which have been relied on, in which this court has not adhered strictly to the rule that a mistake in law is not always incapable of being remedied in this court; but relief has never been given in the case of a simple money demand by one person against another, there being between those two persons no fiduciary relation whatever, and no equity to supervene by reason of the conduct of either of the parties. Snell mentioned a number of supposed exceptions to the general rule. As Snell noted at p 440, the first supposed exception, where the mistake was as to foreign law, was merely apparent, since foreign law was treated as a matter of fact. The second supposed exception was where money was paid to an officer of the court, such as a trustee in bankruptcy, under a mistake of law. It was held that the court could prevent its officer from taking advantage of the mistake: see, for example, Ex p James, In re Condon (1874) LR 9 Ch App 609 and Ex p Simmonds, In re Carnac (1885) 16 QBD 308. In these cases, however, the grant of relief was not based on mistake, but on the courts jurisdiction to enforce high ethical standards on the part of its officers. Vaughan Williams LJ explained this in In re Tyler, Ex p The Official Receiver [1907] 1 KB 865. Referring to Ex p James, he said at p 869: In that case the money had been paid under such a mistake of law that it could not be recovered by any judicial process whatsoever whether in law or equity. When James LJ says [in Ex p James at p 614] that the trustee [in bankruptcy] has in his hands money which in equity belongs to somebody else, he is not referring to an equity which is capable of forensic enforcement in a suit or action, but he is referring to a moral principle which he describes when he says that the Court of Bankruptcy ought to be as honest as other people. In Ex p Simmonds Lord Esher states exactly the same principle [at p 312]. Buckley LJ said at p 873 that James LJ had referred to equity in Ex p James in a popular sense, and not in the sense of money which in a court of equity would belong to someone else. More recent authorities are to the same effect: see, for example, Lehman Bros Australia Ltd v MacNamara [2020] EWCA Civ 321; [2020] 3 WLR 147. The third supposed exception was where the mistake was induced by fraud or by the breach of a fiduciary duty. The authorities cited by Snell (British Workmans and General Insurance Co v Cunliffe (1902) 18 TLR 425, Harse v Pearl Life Assurance Co [1904] 1 KB 558 and Phillips v Royal London Mutual Assurance Co (1911) 105 LT 136) were concerned with claims for the return of premiums, brought by persons who had entered into contracts of insurance which were illegal and void (for want of an insurable interest) as a result of misrepresentations made by or on behalf of the insurance company. Where the misrepresentation was innocent, the money was irrecoverable. Where the misrepresentations were fraudulent, relief was granted, but on the basis of fraud, not mistake: see Harse v Pearl Life Assurance Co at p 563, where Sir Richard Collins MR indicated that relief might also be granted in cases of duress or oppression, or where the defendant stood in a fiduciary relationship towards the plaintiff. Accordingly, the authorities provide examples of equitable relief being given where there had been mistakes of law as well as mistakes of fact. However, Snell provides no example of a money claim for relief from the consequences of a mistake of law, where the occurrence of the mistake was an essential element of the claim. The judgments in cases such as Rogers v Ingham and In re Tyler, Ex p The Official Receiver indicate that a money claim could not be brought on that basis. As was mentioned earlier, it is necessary in the light of FII (SC) 1 to distinguish between cases where mistake is an essential ingredient of the cause of action, and cases where there may have been a mistake but the claim has another legal basis. There were by the 1930s a number of established types of claim in equity which fell into the latter category, in addition to those already mentioned. One was a claim for an account, based on a duty to account arising from the relationship between the parties, but where the claim might have been prompted by the discovery of a mistake. Another example, although not a claim at all, was the correction of errors of account between trustees and beneficiaries: the courts would allow a trustee or personal representative to deduct sums overpaid under a mistake of law from future instalments due to the overpaid beneficiary. On the other hand, there does not appear to be any reported case where a trustee or personal representative recovered money paid under a mistake of law from the recipient, and there are dicta to the effect that such a claim must fail because of the general rule barring such recovery. Another example of a claim which might be brought where a mistake had occurred, but where the mistake was not the justification for the grant of relief, was a claim brought where an executor administering the estate of a deceased person paid out funds to someone other than the person to whom they were properly due, and that person then sought to recover them from the recipient. The remedy available to the person to whom the money was legally due lay in the first instance against the executor, but he could also recover from the recipient any amount which he was unable to recover from the executor. Such a claim was not, however based on mistake: it was, as the Court of Appeal said in In re Diplock [1948] Ch 465 (In re Diplock), p 502, an equitable claim independent of a mistake of fact or of any mistake. It was based, rather, on the fact that the payment had been made by the executor to a person who was not entitled to it, in breach of the rights of the person to whom it was legally due, as Lord Davey explained in Harrison v Kirk [1904] AC 1, 7. So far as limitation is concerned, there was not before 1833 any statute which explicitly barred any suit in equity. In so far as the Court of Chancery applied statutes of limitation, it did so by analogy, as explained below. From 1833 onwards, however, a number of statutes were enacted which imposed limitation periods on the bringing of particular types of suit in equity. For example, the Real Property Limitation Acts of 1833 and 1874 introduced limitation periods in respect of equitable proceedings to recover interests in land, and the Trustee Act 1888 established a limitation period for certain claims against trustees. Many types of equitable proceedings remained subject to no limitation period: for example, there was no provision imposing a time limit on proceedings to rescind transactions induced by undue influence or innocent misrepresentation, and no time limit within which proceedings for rectification must be brought. The statutes did not modify the equitable doctrines of laches and acquiescence. Where equity provided a remedy corresponding to a remedy at law, and the latter was subject to a limitation period, the courts of equity (or after the Judicature Acts, courts asked to give equitable relief) applied the statutes of limitation by analogy, as Lord Westbury explained in Knox v Gye (1872) LR 5 HL 656, 674 675: Where a Court of Equity frames its remedy upon the basis of the Common Law, and supplements the Common Law by extending the remedy to parties who cannot have an action at Common Law, there the Court of Equity acts in analogy to the statute; that is, it adopts the statute as the rule of procedure regulating the remedy it affords. The common law courts were bound to apply the statutes according to their terms, but the Court of Chancery, when it applied them by analogy, developed a principle that a defendant whose unconscionable conduct had denied the plaintiff the opportunity to sue in time should not in conscience be permitted to plead the statute to defeat the plaintiffs claim, provided the claim was brought timeously once the plaintiff discovered or should have discovered the basis of his claim. Accordingly, where the plaintiffs claim in equity was founded on the fraud of the defendant, time did not begin to run against the plaintiff until he discovered the fraud or had a reasonable opportunity of discovering it. This equitable rule received partial recognition in section 26 of the Real Property Limitation Act 1833 (the lineal ancestor of section 26 of the 1939 Act and section 32 of the 1980 Act), under which the right to bring a suit in equity for the recovery of land or rent of which the claimant or his predecessors were deprived by concealed fraud was deemed to have accrued at and not before the time at which such fraud shall or with reasonable diligence might have been first known or discovered. In cases where the claim for equitable relief arose in circumstances where the claimant had been unaware of the matter in question as the result of a mistake, and where equity applied the statutes of limitation by analogy, allowance was similarly made for the period before the mistake was or could with reasonable diligence have been discovered. The point is illustrated by the judgment of Alderson B in Denys v Shuckburgh (1840) 4 Y & C Ex 42, where the profits of a mine had for many years been distributed between the parties under a mistake as to their respective shares. When the mistake was discovered, the plaintiff filed a bill for an account, and the question arose whether more than six years profits could be recovered in equity. The plaintiff relied on Alderson Bs earlier judgment in Brooksbank v Smith (1836) 2 Y & C Ex 58, where the court applied the 1623 Act by analogy but held that time did not run until the mistake was discovered, since it was only then that laches commenced. In Denys v Shuckburgh, on the other hand, Alderson B explained at p 53 that the position was different where the mistake could reasonably have been discovered earlier than it was: But here, it seems to me that the plaintiff had the means, with proper diligence, of removing the misapprehension of fact under which I think he did labour and a court of equity, unless the mistake be clear, and the party be without blame or neglect in not having discovered it earlier, ought, in the exercise of a sound discretion, to adopt the rule given by the statute law as its guide. In this context, a distinction was drawn between a mistake as to the facts supporting a claim for equitable relief, and ignorance that known facts gave rise to a claim. Knight Bruce LJ observed in Stafford v Stafford (1857) 1 De G & J 193, 202 that [g]enerally, when the facts are known from which a right arises, the right is presumed to be known. Similar observations were made by Sir Richard Collins MR in Molloy v Mutual Reserve Life Insurance Co (1906) 94 LT 756, 761, in a judgment which is discussed at paras 204 208 below. The Report of the Law Revision Committee In 1934 the Law Revision Committee was invited to consider various aspects of the law of limitation, including the scope of the rules on concealed fraud. The Committee reported in 1936 (Fifth Interim Report, on Statutes of Limitation, Cmd 5334), and its Report formed the background to the 1939 Act. The passages in the Report which are relevant for present purposes begin with the Committees explanation of the limitation of claims for equitable remedies, at paragraph 13: Equitable claims are in some cases directly governed by a statute of limitations, such as claims to land or rent charges. In other cases, such as specific performance or rescission of contracts on the ground of innocent misrepresentation, or setting aside gifts on the ground of undue influence, no period applies, but the plaintiff must act promptly and may be disqualified by laches. In other cases, where a remedy in equity corresponds to a similar remedy in law, equity follows the analogy of the statute which applies to the corresponding common law remedy (Knox v Gye (1872) LR 5 HL 656), except that in applying equitable remedies to cases of fraud or mistake, the period of limitation is not reckoned until the fraud or mistake is or could, with reasonable diligence, have been discovered. The concluding words in that passage described what the Committee later referred to as the equitable rule. As will be explained, it was the Committees recommendation to extend that rule to common law claims which resulted in the enactment of section 26 of the 1939 Act, effectively re enacted as section 32 of the 1980 Act. In relation to cases of fraud, the Committee noted at paragraph 22 the problem that [a]s a general rule it is no answer to a plea of the Statutes of Limitation to say that the plaintiff was unaware of the existence of his cause of action until after the expiry of the statutory period. Exceptions to that general rule included section 26 of the Real Property Limitation Act 1833, and the equitable doctrine that a plaintiff is not to be affected by the lapse of time where his ignorance is due to the fraud of the defendant, and he has had no reasonable opportunity of discovering such fraud before bringing his action. It also noted that, following the Judicature Act 1873, there were inconsistent decisions as to whether the equitable doctrine applied to actions in which a court of law would previously have had exclusive jurisdiction. The Committee considered that the position should be clarified so as to prevent defendants from relying on a lapse of time which was due to their fraudulent conduct. It also considered that exception created by the equitable rule should be extended so as to apply not only where a cause of action was founded on a concealed fraud, but also where a cause of action unconnected with fraud was fraudulently concealed from the plaintiff or someone through whom he claimed. The Committee then turned to cases of mistake, and stated at paragraph 23: A somewhat similar position arises in cases where relief is sought from the consequences of mistake, eg, when money is paid on property transferred under a mistake. The equitable rule is that the time should only run under the Statutes of Limitation from the time at which the mistake was, or could with reasonable diligence have been, discovered. At present this rule does not apply in cases which formerly fell within the exclusive cognisance of a court of law (Baker v Courage [1910] 1 KB 56). It only applies to cases which were formerly only actionable in a court of equity, or were within the concurrent jurisdiction of the two systems (In re Mason [1928] Ch 385, and [1929] 1 Ch 1; In re Blake [1932] 1 Ch, para 54). It was held in Baker v Courage (supra) that the Judicature Acts had not altered the common law rule. This position appears to us as unsatisfactory as the position with regard to the effect of concealed fraud, and accordingly we recommend that in all cases when relief is sought from the consequences of a mistake, the equitable rule should prevail and time should only run from the moment when the mistake was discovered, or could with reasonable diligence have been discovered. We desire to make it clear, however, that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time. Our recommendation only extends to cases when there is a right to relief from the consequences of a mistake. In such cases it appears to us to be wrong that the right should be defeated by the operation of the Statutes of Limitation. When, in that passage, the Committee stated that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time, it did not have in mind a situation in which a mistake of law gave rise to a cause of action falling within the scope of statutory limitation, directly or by analogy: as we have explained, no such cause of action existed at that time, and therefore the possibility of such a situation did not arise. It was, as we understand it, reaffirming the principle stated in Stafford v Stafford and Molloy v Mutual Reserve Life Insurance Co (para 122 above) that, whereas allowance could be made for a mistake where it formed one of the ingredients of a cause of action, allowance could not be made, where the ingredients of a cause of action were known, for ignorance that those circumstances gave rise to a cause of action. Accordingly, in relation to cases involving fraud or mistake, the Committee recommended at paragraph 37: (18) that in all cases where a cause of action is founded on fraud committed by the defendant or his agent, or where a cause of action is fraudulently concealed by him or his agent, time should only run against the plaintiff from the time when he discovered the fraud or could with reasonable diligence have discovered it (para 22); (19) that in actions for relief in respect of mistake time should only run from the date when the mistake was, or could with reasonable diligence have been, discovered (para 23). It is to be noted that the recommendations in respect of fraud addressed two situations: (a) where the cause of action was founded on fraud, and (b) where a cause of action not founded on fraud was fraudulently concealed. The recommendation in respect of mistake addressed only one situation: where there was an action for relief in respect of mistake. In the light of the authorities as they stood at the time of the Report, this court concluded in FII (SC) 1 [2012] 2 AC 33 that, as Lord Walker stated at para 59, in the cases where the period was or might have been extended the mistake seems to have been an essential ingredient in the cause of action. The Limitation Act 1939 The 1939 Act gave effect to those recommendations, and also made other changes to the law. Part I laid down periods of limitation for different classes of action, subject under section 1 to the provisions of Part II, which provide for the extension of the periods of limitation in the case of disability, acknowledgment, part payment, fraud and mistake. Section 2(1) laid down a six year limitation period, running from the date on which the cause of action accrued, for a number of categories of action, including (a) actions founded on simple contract or on tort. Section 2(7) provided: This section shall not apply to any claim for specific performance of a contract or for an injunction or for other equitable relief, except in so far as any provision thereof may be applied by the court by analogy in like manner as the corresponding enactment repealed by this Act has heretofore been applied. Other provisions of Part I laid down limitation periods for other types of action, including actions in respect of a claim to the personal estate of a deceased person, which were made subject to a 12 year limitation period (section 20). In Part II, section 26 provided, so far as material: Where, in the case of any action for which a period of limitation is prescribed by this Act, either the action is based upon the fraud of the (a) defendant or his agent or of any person through whom he claims or his agent, or (b) any such person as aforesaid, or (c) a mistake, the action is for relief from the consequences of the right of action is concealed by the fraud of the period of limitation shall not begin to run until the plaintiff has discovered the fraud or the mistake, as the case may be, or could with reasonable diligence have discovered it. Part III contained general provisions. Section 29 preserved the equitable jurisdiction to refuse relief on the ground of acquiescence or otherwise. Section 34 repealed all relevant subsisting statutory provisions for limitation. The effect of section 26 of the Limitation Act 1939 It is apparent from the opening words of section 26 of the 1939 Act that it was concerned only with actions for which a period of limitation was prescribed by the Act. Section 26(c), which applied where the action is for relief from the consequences of a mistake, was therefore confined to actions meeting that description for which a period of limitation was prescribed by the Act. It had to be construed in the light of section 2(7), and therefore extended to claims for equitable relief for which a period prescribed in section 2 applied by analogy, in the same way as the earlier statutes of limitation (repealed by section 34) were previously applied. It follows that section 26(c) applied to claims for the recovery of money paid under a mistake of fact. Actions at law of that kind had previously fallen within the ambit of section 3 of the 1623 Act, and were intended by Parliament to fall within the scope of section 2(1) of the 1939 Act, as the Court of Appeal held in In re Diplock at p 514. Equivalent claims in equity (eg where the plaintiff was not the person who made the payment under a mistake) fell within the ambit of section 2(7). However, section 26(c) was not understood to apply to actions for the recovery of money on the ground that it had been paid under a mistake of law, since no action of that description, whether in law or in equity, was recognised until long after the 1939 Act had been repealed. The 1939 Act was considered in two cases which are relevant in the present context. The first was In re Diplock. The proceedings were brought after executors distributed the residue of an estate in accordance with a provision in the will directing them to hold it in trust and divide it between such charitable or benevolent objects as they might think fit, without further specification. The next of kin challenged the validity of the trust, and it was held by the House of Lords to be void for uncertainty. More than six years (but less than 12 years) after the distributions had been made, the next of kin sought a declaration that the recipients of the money were liable to refund it to them. The claims were made on two bases. The first was a claim in personam based on the right of an unpaid beneficiary to recover money wrongly paid to a stranger to the estate. The second was a claim in rem, based on tracing the trust assets into the hands of the defendants. It is unnecessary to consider the latter aspect. At first instance, the judge failed to recognise that the personal claims fell within the ambit of the principle relating to the wrongful distribution of estates, and instead treated them as claims for money had and received. On that basis, he held that no claim was available, either at law or in equity, since the mistake was one of law: In re Diplock [1947] Ch 716. The judges decision on that point was reversed on appeal: [1948] Ch 465. The Court of Appeal correctly held that an equitable claim lay against a recipient who was paid more than he was entitled to receive under a will, regardless of whether the overpayment was made under a mistake, either of fact or of law. As discussed in para 116 above, the court explained that the basis of equitable relief was not mistake, but the receipt of a share or interest in the estate to which the recipient was not entitled, at the expense of the person entitled to it. The primary claim lay however against the executors, and the equitable cause of action was therefore for recoupment of such amounts as were irrecoverable from them. The Court of Appeal further held that limitation was governed in such a case by section 20 of the 1939 Act, and not by section 2(1) or (7). Since section 20 laid down a 12 year period, it followed that the claims were not time barred. However, the court went on to consider, obiter, the position if, contrary to their view, the claims fell within the scope of section 2(7). On that hypothesis, the court considered that section 26(c) would be relevant, on the basis that the claims sought relief from the consequences of a mistake. This obiter dictum preceded the line of authority, culminating in the decision in FII (SC) 1, which entailed that a claim such as that in In re Diplock, for which a mistake was not an essential ingredient of the cause of action, did not fall within the scope of section 26(c) of the 1939 Act or section 32(1)(c) of the 1980 Act. The Court of Appeals decision was affirmed by the House of Lords: Ministry of Health v Simpson [1951] AC 251. In a speech with which the other members of the Appellate Committee expressed agreement, Lord Simonds emphasised at p 265 that the particular branch of the jurisdiction of the Court of Chancery with which we are concerned relates to the administration of assets of a deceased person. Lord Simonds next cited the dictum of Lord Davey in Harrison v Kirk which was mentioned in para 116 above, and stated at p 266: The importance of this statement is manifold. It explains the basis of the jurisdiction, the evil to be avoided and its remedy: its clear implication is that no such remedy existed at common law: it does not suggest that it is relevant whether the wrong payment was made under error of law or of fact: it is immaterial whether those who have been wrongly paid are beneficiaries under the will or next of kin, it is sufficient that they derive title from the deceased. (Emphasis added) The argument that this jurisdiction was limited to payments made under a mistake of fact, rather than law, was rejected by Lord Simonds at pp 269 270, on the basis that the equitable doctrine was not based on the existence of a mistake at all, but on the making of a wrongful payment. As he said at p 270, a legatee does not plead his own mistake or his own ignorance but, having exhausted his remedy against the executor who has made the wrongful payment, seeks to recover money from him who has been wrongfully paid. In relation to limitation, Lord Simonds agreed with the Court of Appeal that the claims were governed by section 20 of the 1939 Act. He added at p 277 that it was unnecessary to say anything about section 26 by way of approval or disapproval of what fell from the Court of Appeal. He observed that it was a section which presented many problems. The other case from this period which should be noted is Phillips Higgins v Harper [1954] 1 QB 411, a decision of Pearson J. The plaintiff brought a claim for an account and payment of money due under a contract over a period of 13 years. The defendant argued that as more than six years had passed since the initial payments were due, it followed that the claim was to that extent time barred, under section 2(2)(a) and (7) of the 1939 Act. In response, the plaintiff relied on section 26(c), arguing that she had not known that the money that had been paid to her was less than was due under the contract, and was therefore seeking relief from the consequences of a mistake. That argument was rejected by the judge. As he noted, section 26 dealt differently with fraud and mistake. In relation to fraud, provision was made for two situations: first, where (a) the action is based upon fraud, and secondly, where (b) the right of action is concealed by fraud. It followed that, in cases falling within (b), the action need not be based upon fraud. In relation to mistake, on the other hand, provision was made for only one situation: where (c) the action is for relief from the consequences of a mistake. In the judges view, that wording was carefully chosen to indicate a class of action where a mistake has been made which has had certain consequences and the plaintiff seeks to be relieved from those consequences (p 418). No provision was made for the situation where the right of action was concealed by a mistake. In the instant case, the plaintiffs claim was to recover money due to her under a contract. The fact that she had been unaware of the right of action by reason of a mistake was insufficient to bring her within the ambit of section 26(c). The judge expressed the opinion at p 419 that [p]robably provision (c) applies only where the mistake is an essential ingredient of the cause of action. He added (ibid) that it was no doubt intended to be a narrow provision, because any wider provision would have opened too wide a door of escape from the general principle of limitation. That reasoning, subsequently approved in FII (SC) 1, entailed that section 26(c) could not apply to a claim of the kind considered in In re Diplock, since such a claim was not based on mistake, as explained in paras 116 and 137 138 above. The Limitation Act 1980 As previously mentioned, the 1980 Act is a consolidation statute, designed to consolidate the 1939 Act and a number of subsequent enactments. Section 5 lays down a six year limitation period for actions founded on simple contract. Like section 2 of the 1939 Act, it has been held to apply to claims for the recovery of money on the ground that it was paid under a mistake: Westdeutsche Landesbank Girozentrale v Islington London Borough Council [1994] 4 All ER 890, 942 943; Aspect Contracts (Asbestos) Ltd v Higgins Construction plc [2015] UKSC 38; [2015] 1 WLR 2961, para 25. Section 32(1) of the 1980 Act corresponds to section 26 of the 1939 Act, subject to the deletion (originally effected by the section 7 of the Limitation Amendment Act 1980) of the reference to concealment by fraud and the substitution in section 32(1)(b) of the concept of deliberate concealment of relevant facts. It provides (so far as material): the action is based upon the fraud of the (1) Subject to subsection (3) below, where in the case of any action for which a period of limitation is prescribed by this Act, either (a) defendant; or (b) any fact relevant to the plaintiffs right of action has been deliberately concealed from him by the defendant; or (c) a mistake; the action is for relief from the consequences of the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. In relation to equitable claims, section 36 corresponds to sections 2(7) and 29 of the 1939 Act (paras 129 and 131 above). Kleinwort Benson The case of Kleinwort Benson [1999] 2 AC 349 concerned claims by a bank for the recovery of sums which it had paid to local authorities under interest rate swap agreements which it had believed to be valid, but which were subsequently held, initially by the Divisional Court and subsequently by the House of Lords, to be ultra vires and therefore void: Hazell v Hammersmith and Fulham London Borough Council [1992] 2 AC 1. The bank then recovered, in a first set of proceedings, such sums as had been paid within the six years preceding the issue of its writ, on the ground that there had been a failure of consideration. In a second set of proceedings, the bank sought to recover the sums which had been paid more than six years previously, by relying on section 32(1)(c) of the 1980 Act to postpone the commencement of the limitation period. A preliminary issue arose as to (1) whether the bank had a cause of action based on mistake, and (2) if so, whether the bank could rely on section 32(1)(c). There was no reasoned judgment at first instance, the judge concluding on issue (1) that he was compelled by authority to deny liability. For the same reason, the leapfrog procedure was employed to bypass the Court of Appeal. Before the House of Lords, the bank sought first to establish that there was a cause of action to recover money paid under a mistake of law, and that its claim could be brought on that basis, on the footing that the payments had been made under the mistaken belief that the contracts were legally valid. In response, the local authorities did not attempt to defend the rule that money paid under a mistake of law was irrecoverable, but argued that recovery should not lie where a payment was made in accordance with a settled understanding of the law which was later changed by a judicial decision. The better course, it was argued, was to leave the law to be altered by Parliament, particularly in view of the problems arising in relation to the law of limitation. Since the Government had accepted the Law Commissions recommendations on the issue, it would be wrong for the courts to pre empt legislative reform. In reply, the bank accepted (as was noted at pp 362 and 391) that a payment made on the basis of a settled understanding of the law would not be made under a mistake, even if the law was later changed by a judicial decision, but argued that the law on the issue in question had not been settled prior to the House of Lords decision in Hazell. By a majority of three to two, the Appellate Committee accepted the banks argument, and went beyond it by holding that the right to recover payments made under a mistake of law applied whether or not the basis on which the payment was made was in accordance with settled law. Lord Goff, in his final speech before his retirement, focused on the retrospective effect of judicial decisions. He accepted that the question whether a payment was made under a mistake was determined as at the time when the payment was made (Baker v Courage at p 66), and observed that when the judges state what the law is, their decisions have a retrospective effect (p 378). It was because of that retrospective effect, he asserted, that it was plain (p 379) that a previous understanding of the law which was overturned by a judicial decision was mistaken as at the time when the payment was made. The cause of action for the recovery of money paid under such a mistake of law therefore accrued on the date when the payment was made (p 386). That was so even though Lord Goff disavowed the declaratory theory of judicial decision making, with the consequence that the previous understanding might be regarded as having been correct as the law stood at the time of the payment: a situation which Lord Hoffmann described as a deemed mistake. It is unnecessary for present purposes to consider the merits of that reasoning. It was disputed by Lord Browne Wilkinson and Lord Lloyd of Berwick, and has been criticised by a number of academic commentators (and approved by others), but is not challenged in these proceedings. On that basis, Lord Goff and the other members of the majority rejected the argument that cases where the court departed from a previous decision, or from a settled practice, should be distinguished from cases where the court determined the law for the first time. In each of those events, the courts decision had a retrospective effect: that was an inevitable attribute of judicial decision making (p 379). In each event, the effect of the courts decision was to falsify the belief or assumption which had caused the claimant to make the payment, and that was sufficient to create a restitutionary claim based on mistake. The next step in the banks argument was to establish that the cause of action for the recovery of money paid under a mistake of law fell within the scope of section 32(1)(c) of the 1980 Act. In that regard, counsel for the bank relied on the obiter dicta of the Court of Appeal in In re Diplock, discussed at paras 136 138 above, and argued that, even if such a claim would not have been recognised at the time when the provision was enacted, it should be construed in accordance with the always speaking principle of statutory interpretation (referring to R v Ireland [1998] AC 147). On that basis, counsel argued that section 32(1)(c) extended to mistakes of law once the law recognised such mistakes as giving rise to a right of action. In response, counsel for the local authorities argued that section 32(1) should be construed as at the moment of its enactment, when it could only have applied to mistakes of fact. Furthermore, the language of section 32(1) was not apt to apply to mistakes of law, since the law could rarely be said to be objectively ascertainable, so as to be capable of being discovered with reasonable diligence. The majority of the Appellate Committee decided this issue in favour of the bank, and the minority concurred, on the hypothesis (contrary to their opinion) that there was an actionable mistake. The reasons the majority gave for reaching that conclusion were brief and rested principally on what appears to us, with respect, to have been an inaccurate understanding of the pre 1939 law. The statutory concept of discoverability was not discussed. The proceedings had not reached the stage at which it was necessary to determine when the mistake of law was discovered, or could with reasonable diligence have been discovered, and only the two judges in the minority considered the question. Lord Goff did not refer to the banks argument based on the always speaking principle, but briefly addressed the local authorities argument concerning the language of section 32(1), stating at pp 388 389: In my opinion, however, this verbal argument founders on the fact that the pre existing equitable rule applied to all mistakes, whether they were mistakes of fact or mistakes of law: see eg Earl Beauchamp v Winn (1873) LR 6 HL 223, 232 235 and the dicta from In re Diplock to which I have already referred [ie at pp 515 516]. By the pre existing equitable rule, Lord Goff meant the rule stated in paragraph 23 of the Report of the Law Reform Commission, which he had mentioned in his speech at p 388. Paragraph 23 was cited at para 126 above. As was explained at paras 118 124 above, the rule was of limited scope, and applied where a remedy in equity corresponded to a similar remedy in law, and the statutes of limitation were applied by analogy. Contrary to Lord Goffs observation, the rule did not apply to all mistakes, whether of fact or law. In particular, it did not apply to claims for the recovery of money on the ground that it had been paid under a mistake of law, since no such claim appears to have been recognised in equity any more than at law: see paras 110 116 above. The first of the authorities which Lord Goff cited, Earl Beauchamp v Winn (1873) LR 6 HL 223, was a similar case to Cooper v Phibbs, mentioned in para 109 above. It concerned a bill seeking the equitable rescission of a contract for the exchange of property, on the ground of common mistake as to the parties respective rights to the properties in question. The principal issues were whether there had been a common mistake, and if so, whether relief was barred either by the impossibility of restitutio in integrum or on the ground that the appellant could readily have discovered the true position before entering into the agreement, having the relevant title deeds in his possession but having failed to read them. The passage in the speech of Lord Chelmsford which Lord Goff cited was concerned with three matters. The first, as Lord Chelmsford put it at p 233, was the principle that where a party is put upon inquiry, and by reasonable diligence he might have obtained knowledge of a fact of which he remained in ignorance, Equity would not relieve him. The second, as it was put at p 234, was the objection, that the mistake (if any) was one of law, and that the rule Ignorantia juris neminem excusat applies. In that regard, Lord Chelmsford followed Cooper v Phibbs in distinguishing between ignorance of a well known rule of law and ignorance of the true construction of a deed. The third issue was the equitable doctrine of acquiescence. In the event, after these objections had been considered and rejected, there was held to have been no mistake. There was no discussion of the statutes of limitation, or of the equitable rule mentioned by the Law Reform Committee, or of the question whether it might have any application to mistakes of law. Lord Goff also cited the obiter dictum of the Court of Appeal in In re Diplock. As was explained in para 136 above, that dictum proceeded on the hypothesis that personal claims against the wrongful recipient of property during the administration of an estate fell within the scope of section 2(7) of the 1939 Act rather than section 20. The Court of Appeal had already rejected that hypothesis, and the House of Lords also rejected it, on appeal, in Ministry of Health v Simpson, as explained at para 138 above. Furthermore, since the right of action with which In re Diplock was concerned was not based on a mistake, as explained in paras 116 and 137 138 above, it followed from the decision in Phillips Higgins v Harper [1954] 1 QB 411, later endorsed in FII (SC) 1 [2012] 2 AC 33, that it could not fall within the ambit of section 26(c) of the 1939 Act, or section 32(1)(c) of the 1980 Act: see paras 41 and 140 above. Lord Goff did not discuss the local authorities argument that the law could rarely be said to be objectively ascertainable, so as to be capable of being discovered with reasonable diligence. As the decision in Kleinwort v Benson itself illustrates, points of law present a problem for a test of discoverability, if discovery requires the ascertainment of the truth. On the assumption that it did, the local authorities argued in Kleinwort Benson that the test of discoverability could not be applied to mistakes of law, and that they therefore fell outside the scope of section 32(1). As will appear, the House of Lords, proceeding on the same assumption, decided in Deutsche Morgan Grenfell that the truth could not be discovered until it had been established by an authoritative judicial decision, and that time could not therefore begin to run under section 32(1) until such a decision had been taken. It will be necessary to consider at a later point whether the underlying assumption, that the test of discoverability requires the ascertainment of the truth, is well founded. Before summarising his conclusions, Lord Goff stated at p 389: I recognise that the effect of section 32(1)(c) is that the cause of action in a case such as the present may be extended for an indefinite period of time. I realise that this consequence may not have been fully appreciated at the time when this provision was enacted, and further that the recognition of the right at common law to recover money on the ground that it was paid under a mistake of law may call for legislative reform to provide for some time limit to the right of recovery in such cases. The Law Commission may think it desirable, as a result of the decision in the present case, to give consideration to this question; indeed they may think it wise to do so as a matter of some urgency. With great respect to an eminent judge, that statement suggests that some important matters were insufficiently considered. The fundamental purpose of limitation statutes is to set a time limit for the bringing of claims. As the Law Reform Committee stated at paragraph 7 of its Report, the purpose of the statutes [of limitation] goes further than the prevention of dilatoriness; they aim at putting a certain end to litigation and at preventing the resurrection of old claims, whether there has been delay or not. Lord Goffs statement accepts that the result of the majoritys decision as to the effect of section 32(1)(c) is that the cause of action in a case such as the present may be extended for an indefinite period of time. That is also a possibility in the case of mistakes of fact, but it may be argued that the risk is potentially higher, and the consequences potentially more serious, in the case of a mistake of law arising retrospectively as a result of a judicial decision. Lord Goffs statement that this consequence may not have been fully appreciated at the time when this provision was enacted lays the responsibility at Parliaments door. But the question which the Appellate Committee should itself have considered was whether the result of its decision would be consistent with Parliaments intention in enacting the 1980 Act. It is the duty of the court, in accordance with ordinary principles of statutory construction, to favour an interpretation of legislation which gives effect to its purpose rather than defeating it. Lord Goff did not, however, undertake any analysis of section 32(1), and made no attempt to give it a purposive interpretation. It will be necessary to return to this issue, after section 32(1) has been examined in the light of the decision in Deutsche Morgan Grenfell [2007] 1 AC 558. Turning to the other majority judgments, Lord Hoffmann, like Lord Goff, rejected the possibility of distinguishing in the law of restitution between cases where a judicial decision changed a settled view of the law, or settled what was previously an unsettled view, on the one hand, and cases where the mistake of law lacked any retrospective element, on the other hand. In Lord Hoffmanns view, there was no basis in principle for drawing such a distinction. In relation to limitation, Lord Hoffmann stated at p 401: I accept that allowing recovery for mistake of law without qualification, even taking into account the defence of change of position, may be thought to tilt the balance too far against the public interest in the security of transactions. The most obvious problem is the Limitation Act, which as presently drafted is inadequate to deal with the problem of retrospective changes in law by judicial decision. But I think that any measures to redress the balance must be a matter for the legislature. This may suggest that your Lordships should leave the whole question of the abrogation of the mistake of law rule to the legislature, so that the change in the law and the necessary qualifications can be introduced at the same time. There is obviously a strong argument for doing so, but I do not think that it should prevail over the desirability of giving in this case what your Lordships consider to be a just and principled decision. Like Lord Goff, Lord Hoffmann therefore construed section 32(1) as applying to claims for the recovery of money paid under a mistake of law, despite considering that the Act was inadequate to deal with the resulting problems. If that was indeed the position, then the correct conclusion to draw, consistently with the Appellate Committees constitutional duty to give effect to Acts of Parliament, purposively construed, was that section 32(1) did not apply to such claims. As Lord Hoffmann himself observed in Johnson v Unisys Ltd [2001] UKHL 13; [2003] AC 518, para 37: [J]udges, in developing the law, must have regard to the policies expressed by Parliament in legislation The development of the common law by the judges plays a subsidiary role. Their traditional function is to adapt and modernise the common law. But such developments must be consistent with legislative policy as expressed in statutes. The courts may proceed in harmony with Parliament but there should be no discord. Lord Hope of Craighead also rejected the possibility of distinguishing between different kinds of mistake of law for the purposes of the law of restitution, because of the difficulty of establishing a clear and principled approach. He identified a number of situations in which there might be said to be a mistake of law. The mistake might be caused by a failure to take advice, by omitting to examine the available information, or by misunderstanding the information which had been obtained. Or it might be due to a failure to predict correctly how the court would determine issues which were unresolved at the time of the payment, or to foresee that there was an issue which would have to be resolved by the court. Within the latter categories, there might be cases where the court overturned an established line of authority, and cases where there was no previous decision on the point. He concluded, at p 411, that it was preferable to avoid being drawn into a discussion as to whether a particular decision changed the law or was merely declaratory, since [i]t would not be possible to lay down any hard and fast rules on this point. In relation to limitation, Lord Hope observed at p 417 that the word mistake appeared in section 32(1) without qualification, and that there was nothing in the words used which restricted the application of the subsection to mistakes of fact. More questionably, he added that the origin of the section, in paragraph 23 of the Report of the Law Revision Committee, suggested that the absence of restriction was intentional. No other member of the Appellate Committee supported that reading of the Report, and we can find no indication of such an intention in paragraph 23 or elsewhere: see in particular para 126 above. Lord Hope also noted that in In re Diplock the Court of Appeal had said that section 26(c) of the 1939 Act would operate to postpone the running of time in the case of an action to recover money paid under a mistake of fact. He continued, at p 417: But the distinction between mistake of fact and mistake of law as a ground for recovery is not absolute. Relief is available where the mistake of law relates to private rights: Earl Beauchamp v Winn, LR 6 HL 223. Private agreements made under a mistake of law may be set aside, and relief will be given in respect of payments made under such agreements. Other examples may be given where a cause of action for relief will be available although the mistake was one of law. In R v Tower Hamlets London Borough Council, Ex p Chetnik Developments Ltd [1988] AC 858, 874H 877C Lord Bridge of Harwich referred to a substantial line of authority showing circumstances in which the court would not permit the mistake of law rule to be invoked. These include payments made under an error of law to or by a trustee in bankruptcy as an officer of the court: Ex p James, In re Condon (1874) LR 9 Ch App 609. It is hard to see why in those cases the equitable rule which allows for the postponement of the limitation period should not apply, to the effect that time will not run until the claimant knew of the mistake or ought with reasonable diligence to have known of it. If the postponement can apply in these examples of mistake of law, I think that it ought to apply to mistakes of law generally. The authorities cited in that passage might be regarded as illustrating the fine distinctions sometimes drawn between mistakes of fact and of law, but they did not dissolve the distinction. They were not, in particular, concerned with claims for the recovery of money on the basis that it had been paid under a mistake of law. Nor were they concerned with limitation. For the reasons explained at paras 150 151 above, Earl Beauchamp v Winn does not in our opinion offer any guidance in relation to the application of section 32(1)(c) of the 1980 Act to claims of the kind with which Kleinwort Benson was concerned. Cases concerned with the recovery of payments made under an error of law to a trustee in bankruptcy as an officer of the court, such as Ex p James, also appear to us to have no bearing on the point. As was explained in paras 111 112 above, claims to recovery in cases of that kind were not based on mistake, and did not question that both the legal and the equitable title had passed. The case of R v Tower Hamlets London Borough Council, Ex p Chetnik Developments Ltd [1988] AC 858 also appears to us to offer no assistance, except in explaining the principle underlying the line of authority including Ex p James. It was a case in public law, concerned with the exercise of a statutory discretion to repay rates which had been paid in the absence of any liability to pay. In relation to the risk that the decision of the majority would result in serious problems, Lord Hope stated at p 417: The objection may be made that time may run on for a very long time before a mistake of law could have been discovered with reasonable diligence, especially where a judicial decision is needed to establish the mistake. It may also be said that in some cases a mistake of law may have affected a very large number of transactions, and that the potential for uncertainty is very great. But I do not think that any concerns which may exist on this ground provide a sound reason for declining to give effect to the section according to its terms. The defence of change of position will be available, and difficulties of proof are likely to increase with the passage of time. I think that the risk of widespread injustice remains to be demonstrated. to the Governments willingness It will be necessary to return to the points made in that passage. Like Lord Goff, Lord Hope considered (p 418) that any need for further restriction of the limitation period was best considered by the Law Commission, evincing a level of optimism about implement Law Commission recommendations which has not been borne out by experience. By contrast, Lord Browne Wilkinson considered that, if the law recognised claims for the recovery of money paid under a mistake of law, including claims arising retrospectively as the result of a judicial decision, then the disruption of legal certainty resulting from the application of section 32(1)(c) would be so great that the Appellate Committee ought not to develop the law so as to recognise such claims. He observed at p 364 that [o]n every occasion in which a higher court changed the law by judicial decision, all those who had made payments on the basis that the old law was correct (however long ago such payments were made) would have six years in which to bring a claim to recover money paid under a mistake of law. Since all the members of the Appellate Committee accepted that this position could not be cured save by primary legislation altering the relevant limitation period, he concluded that the correct course would be for the House to indicate that an alteration in the law is desirable but leave it to the Law Commission and Parliament to produce a satisfactory statutory change in the law which, at one and the same time, both introduces the new cause of action and also properly regulates the limitation period applicable to it. Similar views were expressed by Lord Lloyd of Berwick (p 398). The decision in Kleinwort Benson in relation to section 32(1) does not stand or fall on the persuasiveness of the speeches. It will be necessary to return at a later point in this judgment to the question as to whether, on a proper understanding of section 32(1), the decision was correct. First, however, it is necessary to consider the construction of section 32(1), which was one of the matters examined in Deutsche Morgan Grenfell. Deutsche Morgan Grenfell The case of Deutsche Morgan Grenfell concerned legislation under which, where a company paid a dividend, it was liable to pay ACT, calculated as a proportion of the dividend, which could later be set off against its liability to pay mainstream corporation tax on its profits. The Revenue thereby obtained early payment of the tax and, in cases where the ACT exceeded the mainstream corporation tax, the payment of tax which would not otherwise have been due. Where, however, the dividend was paid to a parent company, and both the company paying the dividend and its parent were resident in the UK, a group income election could be made. The result of such an election was that the subsidiary did not pay ACT, but instead paid the appropriate amount of mainstream corporation tax when it became due. Deutsche Morgan Grenfell (DMG) was a UK subsidiary of a German parent and was therefore unable to make an election. As a result, it paid tax, in the form of ACT, earlier than it would have done if an election had been possible. In Hoechst [2001] Ch 620, the Court of Justice held that the legislation was incompatible with EU law in so far as it denied to the subsidiaries of non UK resident parents the ability to make a group income election. That decision endorsed the opinion of the Advocate General, promulgated six months earlier. A month after the Advocate Generals opinion was promulgated, and five months before the decision of the Court of Justice, DMG began proceedings to recover compensation for its early payment of the tax. Its claim was based on the proposition that it paid the tax when it did under a mistake of law, and was therefore entitled to restitution in accordance with the principle established in Kleinwort Benson: a principle which, it argued, applied to payments of tax as it did to other payments, notwithstanding the availability of a right to recover undue tax under the Woolwich principle. On the other hand, the Revenue argued that the reasoning in Kleinwort Benson did not apply to payments of tax, and that the only common law cause of action to recover tax was that based on the decision in Woolwich [1993] AC 70. It is unnecessary for us to consider the Appellate Committees decision on those questions, which is not in issue in the present appeal. DMG also argued that the mistake was not discoverable until the decision in Hoechst (although it had begun its action before then), and that section 32(1) of the 1980 Act postponed the commencement of the limitation period until then. In reply, the Revenue argued that the mistake was discovered when DMG learned in 1995, six years before the decision in Hoechst, that the relevant provisions were the subject of serious legal challenge in the Hoechst proceedings and might not be lawful. DMGs arguments on that question were accepted by the House of Lords ([2007] 1 AC 558), by a majority of three to two. In considering the application of section 32(1)(c), Lord Hoffmann stated at para 31 that the reasonable diligence proviso depended upon the true state of affairs being there to be discovered: In this case, however, the true state of affairs was not discoverable until the Court of Justice pronounced its judgment. One might make guesses or predictions, especially after the opinion of the Advocate General. This gave DMG sufficient confidence to issue proceedings. But they could not have discovered the truth because the truth did not yet exist. In my opinion, therefore, the mistake was not reasonably discoverable until after the judgment had been delivered. This statement is based on a number of premises. One is that a mistake of law is a mistake within the meaning of section 32(1)(c), as had been held in Kleinwort Benson, and therefore falls within the ambit of the discoverability test. It will be necessary to return to that point. Lord Hoffmanns statement also assumes that discovery, within the meaning of section 32(1), means the ascertainment of the truth, and that, as a consequence of the abandonment of the declaratory theory, judicial decisions which establish a point of law thereby bring the truth into existence for the first time. It will be necessary to examine those assumptions in the context of the dissenting speech of Lord Brown of Eaton under Heywood. Lord Hope emphasised at para 71 that DMGs claim was disputed by the Revenue until the matter was finally decided in DMGs favour by the Court of Justice: It is plain, as the judge recognised, that if DMG had submitted a claim for group income relief under section 247(1) the revenue would have pointed to the clear terms of the statute and rejected it. It has never been suggested that they would have conceded in a question with DMG the point which they were resisting so strongly in their litigation with Hoechst The issue, which was one of law, was not capable of being resolved except by litigation. Until the determination was made the mistake could not have been discovered in the sense referred to in section 32(1) of the 1980 Act. Although DMG had learned of Hoechsts challenge to the ACT regime in 1995, six years before the Court of Justice delivered its judgment, it was not then obvious that the payments might not be due. Lord Walker concurred, stating at para 144 that it was the judgment of the Court of Justice in Hoechst that first turned recognition of the possibility of a mistake into knowledge that there had indeed been a mistake. Like Lord Hope, he emphasised that, until that judgment, the Revenue denied that DMG had a cause of action: Perusal of the report in that case suggests that the United Kingdom Government tenaciously defended the ACT regime on every available ground. At no time before the judgment did the Government concede that the ACT regime was (in discriminating between national and multi national groups) contrary to EU law and unlawful. It was the judgment that first turned recognition of the possibility of a mistake into knowledge that there had indeed been a mistake. Lord Walker added, however (ibid) that there may be cases where a party may be held to have discovered a mistake without there being an authoritative pronouncement directly on point on the facts of that case by a court, let alone an appellate court. Lord Brown dissented, on the view that DMG discovered the mistake, within the meaning of section 32, when it first became aware of the Hoechst proceedings. It will be necessary to return to Lord Browns speech. Lord Scott of Foscote also dissented, on the view that DMGs cause of action properly lay in tort, and therefore fell outside the ambit of section 32(1)(c) of the 1980 Act. Discussion of Deutsche Morgan Grenfell We shall begin our discussion of the two decisions placed in question in the present appeal by considering Deutsche Morgan Grenfell, on the hypothesis that the decision in Kleinwort Benson, that mistakes of law fall within the ambit of section 32(1)(c), was correct. We shall then consider Kleinwort Benson [1999] 2 AC 349. We approach the decisions in that order because it was only in Deutsche Morgan Grenfell [2007] 1 AC 558 that the Appellate Committee considered how section 32(1) operated in practice, in relation to discoverability, if mistakes of law fell within its scope. It is best to consider that issue, in the light of the contrasting views of the majority and of Lord Brown, before attempting to answer the question whether such mistakes do fall within the scope of the provision, purposively construed. A logical paradox A paradox results from the approach adopted in Deutsche Morgan Grenfell, most clearly articulated by Lord Hoffmann: a claimant can be unable to discover the existence of his cause of action even after he has brought his claim: he cannot discover it until his claim succeeds. The paradox is well illustrated by the Court of Appeals decision in FII (CA) 2 [2017] STC 696, based on the application of Deutsche Morgan Grenfell. As was explained in para 54 above, the court held that the decision in Deutsche Morgan Grenfell established that in the case of a point of law which is being actively disputed in current litigation the true position is only discoverable, for the purpose of section 32(1)(c) of the 1980 Act, when the point has been authoritatively determined by a final court. On that basis, the court concluded that time began to run for the test claimants only on the date when judgment was delivered in FII (CJEU) 1, three and a half years after they had issued their claims. The paradox is particularly striking because the test claimants were successful before the Court of Justice. Its decision confirmed that they had been correct when they issued their claim form in 2003, asserting that they had paid tax under a mistake of law. It was the Revenue who were mistaken. That result illustrates the illogicality inherent in the reasoning in Deutsche Morgan Grenfell: the test claimants were able to identify correctly a mistake of law for the purpose of pleading a cause of action, while supposedly being unable to discover it for the purpose of the limitation period applicable to that cause of action. That illogicality results from a specific difference between Lord Hoffmanns approach to the accrual of a cause of action based on mistake, on the one hand, and his approach to the limitation period applicable to that cause of action, on the other hand. Where a payment has been made at time T1 on the basis of the law as it stood at that time, and the law is subsequently changed (as Lord Hoffmann would describe it) by a judicial decision taken at time T2, Lord Hoffmann says that the effect of the decision at T2 is that the law at T1 retrospectively becomes what it was decided to be at T2. The consequence is that the payment at T1 is retrospectively deemed to have been made under a mistake. A cause of action is therefore retrospectively deemed to have accrued at T1. However, when it comes to limitation, a different approach is adopted. The change in the law which is said to have been brought about by the decision at T2 is treated as occurring at T2, and therefore as being discoverable only at that time. Thus the mistake of law which, for the purpose of the accrual of a cause of action, is deemed to have occurred at T1, is simultaneously deemed not to have occurred at TI, but at T2, for the purpose of the law governing the discoverability of the mistake. It is because T2 occurs after the claim has been brought, and at the point when it is finally decided, that the paradox arises, that the mistake which forms the basis of the claim is not discoverable unless and until the claim succeeds. It is for the same reason that there arises the equally paradoxical result, that a limitation period applicable to the commencement of proceedings cannot begin to run until the proceedings have been completed. Paradoxical is indeed a generous term. One might say more candidly that this approach has consequences which are illogical and which frustrate the purpose of the legislation. One possible response, arguably consistent with the abandonment of the declaratory theory, would be to argue that a deemed mistake is in reality no mistake at all. That is not, however, being argued in the present case. In any event, any attempt to draw a clear and principled distinction between deemed and actual mistakes faces real difficulties. As Lord Hope, in particular, indicated in his speech in Kleinwort Benson [1999] 2 AC 349, determining whether a particular decision changed the law or was merely declaratory would be a difficult exercise, not merely evidentially, but at a much deeper level. For example, when the House of Lords held in Murphy v Brentwood District Council [1991] 1 AC 398 that the case of Anns v Merton London Borough Council [1978] AC 728 had been wrongly decided (per Lord Keith of Kinkel at p 472), was the law changed, or was there a non fictional sense in which the law at the time of Anns was other than the House of Lords had then declared it to be? Ultimately, the drawing of a line between deemed and actual mistakes, and even the question whether such a distinction can be drawn, depends on a theory of the nature of judicial decision making, and indeed of the nature of law. The resultant scope for argument as to where the line should be drawn in any particular case would undermine one of the basic objectives of limitation statutes, namely to produce certainty as to the time limit for the bringing of a claim. In any event, the issue raised by Lord Hoffmanns reasoning is not confined to deemed mistakes, or conditional on his rejection of the declaratory theory. Judges cannot avoid having to decide at T2 what the law was at T1, and if their decision does not reflect how the law was understood by the claimant at T1, then it will ordinarily be uncontroversial to say that the claimant was mistaken at T1. The consequence, following the decision on the law of restitution in Kleinwort Benson, is that a cause of action accrued at T1 if a payment was made then on the basis of the mistaken understanding, regardless of the date of T2. On the limitation side of the analysis, on the other hand, the concept of discoverability is designed to protect claimants who could not reasonably be expected to know of the existence of the circumstances giving rise to their cause of action until sometime after it accrued. It must therefore be concerned with discoverability in reality, at a date which may be later than T1. It does not, however, follow that the discoverability of a mistake of law, within the meaning of section 32(1), must necessarily be tied to the date of a judicial decision, ie T2. The problems identified in para 174 above suggest that tying discoverability to the date of a judicial decision is a mistake. It will be necessary to return to that point in the context of Lord Browns dissenting speech in Deutsche Morgan Grenfell [2007] 1 AC 558. 2. Judicial decisions and the development of the law That thought is reinforced by other considerations. Section 32(1) applies where the claimant does not know and cannot reasonably be expected to discover a mistake which forms an essential ingredient of his cause of action. Its effect is that the limitation period commences not on the date when the cause of action accrues, but on the date when the claimant discovers, or could with reasonable diligence discover, the mistake in question. The result of that postponement of the commencement date of the limitation period is to postpone the deadline for the bringing of a claim, so that the time during which the claimant was disadvantaged by the mistake does not count against him. Lord Hoffmanns approach, whereby the limitation period does not begin until the truth has been established by a final judicial decision, does not merely extend the limitation period to the extent necessary to overcome the disadvantage arising from the mistake, but has the remarkable consequence of excusing the claimant from the necessity of bringing a claim until he can be certain that it will succeed: indeed, until it has in fact succeeded. This places the claimant in a case based on a mistake of law in a uniquely privileged position, since other claimants are required to bring their claims at a time when they have no such guarantee: the limitation period runs alike for claims which fail as for claims which succeed. If the limitation period can begin to run at a time when a claim is uncertain of success, then, in addition to the logical problem discussed earlier, there is also a lack of realism in treating the date of a judicial decision authoritatively establishing the true state of the law as the earliest date when the claimant discovers, or could with reasonable diligence discover, the mistake in question. In the first place, the courts do not act on their own initiative, but only when their jurisdiction is invoked: normally, by the issuing of a claim. A point of law could often have been decided earlier, if a claim had been brought at an earlier time. Secondly, thinking about the law evolves over time. Developments in judicial thinking, in particular, do not take place in a vacuum. Judgments are the culmination of an evolution of opinion within a wider legal community, to which practitioners, universities, legal journals and the judiciary all contribute. And it is not only judges who are influenced by that evolving body of opinion. Claimants and their advisers respond to the same developments in their understanding of the state of the law, and their decisions as to whether or not worthwhile claims may exist. It is therefore possible to investigate how legal thinking on a particular question (for example, in the present case, whether the UK tax treatment of dividends received by UK resident companies from non resident subsidiaries was compatible with EU law) developed over time, and to ascertain, by means of evidence, the time by which a reasonably diligent person in the position of the claimant (such as, in the present case, a UK based multi national company) could have known of a previous mistake of law, to the extent of knowing that there was a real possibility that such a mistake had been made, and that a worthwhile claim could therefore be made on that basis. This line of thought suggests that the focus of attention under section 32(1) of the 1980 Act should not be on judicial decisions, but on the claimants ability to discover that he had a worthwhile claim. Giving effect to the intention of Parliament Finally, in relation to Lord Hoffmanns reasoning, it is also, with great respect, susceptible to the criticism that it pays insufficient regard to the principle of statutory construction that legislation should be given a purposive interpretation. If section 32(1) is interpreted in accordance with Kleinwort Benson as applying to mistakes of law, and if those mistakes of law are not considered to be discoverable within the meaning of the provision until after a final judgment has been delivered, as was held in Deutsche Morgan Grenfell [2007] 1 AC 558, then the object of the limitation statute is defeated. That object is to set a time limit for the bringing of claims. That object is frustrated if the limitation period does not begin to run until the proceedings have been completed. It is true that the limitation period so set will not be completely pointless in a situation where other people have identical claims which are not being pursued in the same proceedings, since time will begin to run for the bringing of those other claims. But in more usual situations, where an individual claim is brought, or where multiple claims are brought together in a group litigation (as in Deutsche Morgan Grenfell itself, which was a test case in the ACT Group Litigation), this approach to limitation defeats Parliaments purpose in enacting limitation periods. It is therefore a result which Parliament cannot have intended when it enacted the 1980 Act. 4. Consistency with the treatment of fraud under section 32(1) As we have explained, Lord Brown dissented in Deutsche Morgan Grenfell [2007] 1 AC 558 on the view that DMG discovered the mistake, within the meaning of section 32, when it first became aware of the Hoechst proceedings and recognised that there was a serious challenge to the legality of the ACT regime under EU law. He stated at para 165: I would hold that as soon as a paying party recognises that a worthwhile claim arises that he should not after all have made the payment and accordingly is entitled to recover it (or, as here, to compensation for the loss of its use), he has discovered the mistake within the meaning of section 32; and, by the same token, I would hold that if he makes any further payments thereafter, they are not to be regarded as payments made under a mistake of law. Lord Brown thus challenged the fundamental assumption underlying the approach adopted by the majority in Deutsche Morgan Grenfell: that discovery, within the meaning of section 32(1), means the ascertainment of the truth, and that a mistake of law is therefore only discoverable when the point of law in question has been authoritatively decided by a final court. On the approach which he adopted, a mistake is discovered when the claimant recognises that a worthwhile claim arises. Lord Brown noted that DMG had continued to make payments of ACT after July 1995, when they learned that Hoechst had issued proceedings, and that they had issued their own claim five months prior to the decision of the Court of Justice in Hoechst [2001] Ch 620. Referring to Lord Hopes statement that, when DMG paid the ACT, it was not then obvious that the payments might not be due, Lord Brown commented at para 172 that he had some difficulty with that conclusion: Surely, when DMG learned in July 1995 that there was a serious legal challenge to the legality of the ACT regime, it must then have been obvious to them that these payments might not after all be due. Of course they could not be sure and of course nothing short of a final judgment from the European Court of Justice would have persuaded the revenue to accept any claim by DMG here for group income relief. But it does not seem to me to follow that DMG paid under a mistake of law. In support of his views, Lord Brown pointed first, at para 167, to the parallel treatment in section 32 of fraud, deliberate concealment and mistake: Once a plaintiff recognises that he has a worthwhile case on the facts to pursue a claim in fraud or to extend the limitation period for a particular claim because of the defendants deliberate concealment of a fact relevant to his cause of action, time surely then starts to run against him under section 32: he could not successfully argue that time starts running only when the court eventually comes to reject the defendants denial of wrongdoing and to find fraud (or, as the case may be, deliberate concealment) established. The view expressed in that passage is supported by a number of authorities concerned with the application of section 32(1) in cases of fraud. The first which might be mentioned is the judgment of Arden LJ, with which Aldous and Robert Walker LJJ agreed, in Biggs v Sottnicks [2002] EWCA Civ 272. In deciding when the appellants could with reasonable diligence have discovered a fraud, for the purposes of section 32(1) of the 1980 Act, her Ladyship treated the relevant date as the correct date when the appellants solicitors had sufficient information in their hands for the purposes of this deceit claim (para 62), that is to say, the date when the appellants were in a position to plead their own case (para 64). A similar approach was adopted in Law Society v Sephton & Co [2004] EWHC 544 (Ch); [2004] PNLR 27, para 44, where the court proceeded on the basis of the parties agreement that a claimant did not discover a fraud until he had material sufficient to enable him properly to plead it. Reference should also be made to the judgment of Lord Hoffmann NPJ, with which the other members of the Hong Kong Court of Final Appeal agreed, in Peconic Industrial Development Ltd v Lau Kwok Fai [2009] HKCFA 16; [2009] WTLR 999. The case raised the question, under a legislative provision in the same terms as section 32(1) of the 1980 Act, whether the claimants could with reasonable diligence have discovered a fraud committed more than six years before proceedings were issued. Lord Hoffmann stated at para 56: In any case, it is not necessary that [the claimants] should have known facts which put [the fraudsters] participation in the fraud beyond all reasonable doubt. The purpose of the inquiry into whether [the claimants] could with reasonable diligence have discovered his fraud is to establish when they could reasonably have been expected to commence proceedings. For that purpose, they needed only to know facts which amounted to a prima facie case. The approach adopted in those cases differs from that proposed by Lord Brown only in its focus on the date when the claimant (or his lawyers) had sufficient material properly to plead a claim in fraud. Lord Brown put the matter differently in paras 165 and 167 of his judgment in Deutsche Morgan Grenfell [2007] 1 AC 558, when he treated the mistake as being discovered as soon as the claimant recognises that a worthwhile claim arises, or that he has a worthwhile case to pursue a claim. It will be necessary to return to this point. As will be explained, Lord Browns approach is consistent with that adopted authoritatively in analogous contexts where fraud was not in issue, and is also in accordance with principle. What is more important for present purposes, however, is that the approach adopted in these cases of fraud, like that proposed by Lord Brown for cases of mistake, treats the relevant date, for the purposes of the commencement of the limitation period, not as the date when the claimant knows or can establish the truth, but as the date when he can recognise that a worthwhile claim arises, in Lord Browns formulation, or can plead a statement of claim, in the formulation preferred in the fraud cases. 5. Consistency with other analogous provisions of the 1980 Act Lord Brown also found support for his position in Deutsche Morgan Grenfell in authorities concerned with the interpretation of other provisions of the 1980 Act which postpone the commencement of the limitation period until the claimant knows or could reasonably have known the facts forming the basis of his cause of action. That approach is applied, for example, to actions for damages in respect of torts causing personal injuries, by section 11 of the 1980 Act. Under section 11(4), read together with section 14(1), the limitation period generally runs from the date on which the cause of action accrued, or, if later, the date on which the person injured had knowledge that the injury was significant and was attributable to the act or omission relied on, and knowledge of the identity of the defendant. For these purposes, knowledge is defined as including knowledge which he might reasonably have been expected to acquire (section 14(3)). The language of these provisions differs from section 32(1) in that they refer to having knowledge, rather than discovering. But that is on its face an insubstantial difference, since discovery ordinarily refers to the acquisition of knowledge. And sections 11, 14 and 32 have the same rationale, namely that the limitation period should only run from the time when the claimant knows or could reasonably have known of the existence of his cause of action. Sections 11 and 14 are explicitly concerned with knowledge of the facts forming the cause of action, and not with their legal consequences. But the same is true of section 32(1), even in its application to mistakes of law. As is explained below, the relevant fact that has to be discovered, in that context, is the fact that the claimant made a mistake, that being an essential ingredient of his cause of action. A claimants ignorance of the legal consequences of the facts forming his cause of action is not something with which section 32(1) is concerned, as Lord Walker made clear in FII (SC) 1 [2012] 2 AC 33, para 63 (para 41 above). That is consistent with the intention of the Law Revision Committee, as was explained at para 127 above. Sections 11 and 14 were considered by this court in AB v Ministry of Defence [2012] UKSC 9; [2013] 1 AC 78, where proceedings were begun by the claimants at a time when they believed that their injuries had been caused by their exposure to radiation by the defendant, but had no objective basis for their belief. Their contention that they did not then have knowledge of the facts forming the basis of their cause of action was rejected. The court held, by a majority, that knowledge did not mean knowing for certain and beyond possibility of contradiction, but that mere suspicion was not enough; that in order to amount to knowledge a belief had to be held with sufficient confidence to justify embarking on the preliminaries to issuing proceedings; and that it was, therefore, a legal impossibility for a claimant to lack knowledge for the purposes of section 14(1) at a time after he had issued his claim. In relation to the last of those points, Lord Wilson, Lord Walker, Lord Brown and Lord Mance all made it clear that, in deciding whether a claim was statute barred, the court had to assume that, when the claimant issued his claim, he had knowledge of the facts necessary to support his pleaded cause of action. Lord Wilson stated at para 6 that it was heretical that a claimant could escape the requirement to assert his cause of action for personal injuries within three years of its accrual by establishing that, even after his claim was brought, he remained in a state of ignorance entirely inconsistent with it. Lord Walker said at para 67 that he did not see how a claimant who had issued a claim form could be heard to suggest that he did not, when it was issued, have the requisite knowledge for the purposes of the 1980 Act. Lord Brown said at para 71 that once a claimant issues his claim, it is no longer open to him to say that he still lacks the knowledge necessary to set time running. Lord Mance agreed, observing at para 84 that a claimant bringing proceedings necessarily asserts that he or she has a properly arguable claim. Considering more precisely the point in time at which a claimant acquires knowledge for the purposes of sections 11(4) and 14(1) of the 1980 Act, the majority of the court in AB v Ministry of Defence endorsed the test earlier approved by the House of Lords in relation to claims falling under section 14A (inserted by the Latent Damage Act 1977), which applies to actions for damages for negligence, other than those involving personal injuries. In Haward v Fawcetts [2006] UKHL 9; [2006] 1 WLR 682, para 9, Lord Nicholls of Birkenhead stated: Lord Donaldson of Lymington MR gave valuable guidance in Halford v Brookes [1991] 1 WLR 428, 443. He noted that knowledge does not mean knowing for certain and beyond the possibility of contradiction. It means knowing with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence: Suspicion, particularly if it is vague and unsupported, will indeed not be enough, but reasonable belief will normally suffice. In other words, the claimant must know enough for it to be reasonable to begin to investigate further. The formulation adopted in Halford v Brookes [1991] 1 WLR 428, Haward v Fawcetts and AB v Ministry of Defence places the commencement of the limitation period slightly earlier than the fraud cases discussed earlier. The relevant time is when the claimant knows with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, rather than the point in time when he could plead a statement of claim. This is not the occasion on which to review the formulation used in the fraud cases, which reflects the special standards applicable to the pleading of fraud. The formulation used in Halford v Brookes, Haward v Fawcetts and AB v Ministry of Defence is, however, consistent with the way in which the point was expressed by Lord Brown in Deutsche Morgan Grenfell (para 180 above) and by Lord Walker in FII (SC) 1 [2012] 2 AC 33 (para 48 above). It is also consistent with principle. The limitation period normally begins to run on the date when the cause of action accrues. It is not postponed until the claimant has consulted a solicitor, carried out investigations, and is in a position to plead a statement of claim. For example, a pedestrian who is knocked down and injured by a car while using a zebra crossing has a cause of action against the driver, which accrues on the date of the accident. It will take time before he can issue a claim: he will need to consult solicitors, and counsel may have to be instructed to draft the claim. There may be many matters which have to be investigated, and that may take time. And it may be that his claim will fail in the end, if, for example, it is found that he suddenly ran into the path of the car, or that the driver had a heart attack and lost control of the vehicle. Nevertheless, the limitation period begins to run on the date of the accident. It is not postponed until he has completed his investigations, or until he knows that his claim is guaranteed to succeed. The purpose of the postponement effected by section 32(1) is to ensure that a claimant is not disadvantaged, so far as limitation is concerned, by reason of being unaware of the circumstances giving rise to his cause of action as a result of fraud, concealment or mistake. That purpose is achieved, where the ingredients of the cause of action include his having made a mistake of law, if time runs from the point in time when he knows, or could with reasonable diligence know, that he made such a mistake with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence; or, as Lord Brown put it in Deutsche Morgan Grenfell [2007] 1 AC 558, he discovers or could with reasonable diligence discover his mistake in the sense of recognising that a worthwhile claim arises. We do not believe that there is any difference of substance between these formulations, each of which is helpful and casts light on the other. It is true that Haward v Fawcetts [2006] 1 WLR 682 and AB v Ministry of Defence [2013] 1 AC 78 were not concerned with section 32, but with other provisions of the 1980 Act, expressed in different language: sections 14(3) and 14A(10) are concerned with knowledge which [the claimant] might reasonably have been expected to acquire, whereas section 32(1) is concerned with what he could with reasonable diligence have discovered. It is also true that sections 14 and 14A explicitly provide that knowledge that any acts or omissions did or did not, as a matter of law, involve negligence, is irrelevant. They are, however, concerned with the same problem as section 32(1), namely that a cause of action can accrue before the claimant comes to know of it, and they address that problem in a similar way, by postponing the commencement of the limitation period until the claimant knew, actually or constructively, the facts on which the cause of action is based. The close connection between sections 11, 14, 14A and 32 of the 1980 Act was made clear by Lord Walkers reasoning in FII (SC) 1, para 63 (para 41 above). In those circumstances, it appears to us to be impossible to reconcile the reasoning in Haward v Fawcetts and AB v Ministry of Defence with that in Deutsche Morgan Grenfell and the cases which have followed it. The former line of authority proceeds on the basis that the commencement of the limitation period is postponed until the claimant knows, actually or constructively, the essential facts on which the cause of action is based, with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence. The dissenting judgment of Lord Brown in Deutsche Morgan Grenfell is consistent with that approach: time does not begin to run until the claimant knows, actually or constructively, that he made a mistake (that being an essential ingredient of the cause of action), to the standard that a worthwhile claim arises. The latter line of authority, on the other hand, proceeds on the basis that the limitation period does not run until a court has authoritatively established that the claimants assertion that he made a mistake of law is true. Mistakes of law are thus treated differently from mistakes of fact, and the difficult and much criticised distinction between the two remains of crucial importance. Furthermore, only the former line of authority is consistent with the rationale of limitation periods. It is in the nature of litigation that facts and law are commonly disputed. It is the function of courts to resolve those disputes. Until the court has done so, the parties can, at best, have only a reasonable belief that their assertions are correct. If a limitation period is to serve its purpose, in fixing a time within which claims must be brought, it can therefore only be concerned with beliefs, and not with the truth established by judicial decisions, whether in the proceedings in question, or in other proceedings. That is reflected in Lord Donaldsons statement in Halford v Brookes [1991] 1 WLR 428, endorsed by Lord Nicholls in Haward v Fawcetts [2006] 1 WLR 682 (para 190 above) and by Lord Wilson in AB v Ministry of Defence [2013] 1 AC 78, para 11, that reasonable belief will normally suffice. 6. Consistency with discovery in another statutory context Returning to Deutsche Morgan Grenfell [2007] 1 AC 558, Lord Brown found further support for his argument in an authority concerned with the meaning of discover in the context of tax legislation. The Income Tax Act 1918 (and later tax statutes) contained a provision enabling additional assessments to be issued where it was discovered that profits chargeable to tax had been omitted from an initial assessment. In Earl Beatty v Inland Revenue Comrs [1953] 1 WLR 1090, the assessments under appeal were made under that provision, at a time when the Commissioners had a strong suspicion that there had been an undeclared transfer of assets by the appellant or his wife. It subsequently transpired that there had indeed been undeclared transfers, not by the appellant or his wife, but by his brother acting on his behalf. The assessments were challenged on the ground that they were not based on a discovery within the meaning of the legislation, since a suspicion, especially if inaccurate, did not amount to a discovery. The argument was rejected, the judge observing at p 1095: I think that the discovery need not be a complete and detailed or accurate discovery and that when the Commissioners find out, or think that they have found out, the existence of an omission or other error it is not necessary for them to have probed the matter to its depths or to define precisely the ground upon which they have made the assessments. Like a claim form, an assessment is not a statement of established verities. It is a formal statement of a claim made by the Commissioners and forms the basis of an inquiry into the facts in the event that it is challenged. In those circumstances, the test of discovery could not sensibly require that the truth had already been established. The same is true in the present context. Discovery and ascertainment of the truth 7. The approach adopted in the fraud cases discussed in paras 180 186 above, and in the cases concerned with analogous provisions of the 1980 Act, discussed in paras 187 196 above, is consistent with the nature of a plea of limitation: it is legally distinct from the merits of the claim in question, and is often conveniently dealt with as a preliminary issue. The 1980 Act proceeds on the basis that a cause of action has accrued, without concerning itself with the question whether or not the action is well founded. Section 32(1)(a) applies where the action is based upon the fraud of the defendant, and section 32(1)(c) applies where the action is for relief from the consequences of a mistake. If the action runs its full course, it may transpire that there was no fraud or mistake, indeed no cause of action at all. But where, at the stage of an inquiry into the defendants plea that the action is time barred, the claimant relies on section 32(1)(a) or (c), the question is not whether there was in reality any fraud or mistake: that will not be established unless and until the court issues a judgment on the merits of the case. The question under section 32(1)(a) and (c) of the 1980 Act is whether, upon the assumption that there was fraud or mistake, as identified by the claimant in the way in which he pleads his case, it was discovered or could with reasonable diligence have been discovered at such a time as would render the claim time barred. One might compare the approach adopted to the issue of laches in Earl Beauchamp v Winn (1873) LR 6 HL 223, where Lord Chelmsford stated at p 233 that in considering this part of the case it has been assumed, for the purpose of the argument, that the late Earl was under a mistake as to his interest Mr Winn, upon this assumption, was also under a mistake The case must be dealt with, therefore, as one of mutual mistake. Once the issue of laches had been disposed of on that basis, the House of Lords went on to hold that there had in fact been no mistake. Hence the situation which may seem paradoxical, but sometimes arises in practice (as, for example, in Law Society v Sephton & Co [2004] EWHC 544 (Ch); [2004] PNLR 27), where in a trial on limitation the defendant disputes the claimants assertion that he could not have known or discovered a fact which, in relation to the merits of the claim, the defendant denies is a fact at all. There is in reality no paradox, because at the stage of an inquiry into limitation the existence of the cause of action, and therefore the truth of the facts relied on by the claimant to establish it, is not the relevant issue. Put in general terms, the question is not whether the claimant could have established his cause of action more than six years (or whatever other limitation period might be relevant) before he issued his claim, but whether he could have commenced proceedings more than six years before he issued his claim. The existence of the constituents of the cause of action such as fraud or mistake as verified facts is not the issue. That point emerges clearly from the majority judgments in AB v Ministry of Defence [2013] 1 AC 78. Lord Wilson, for example, stated at para 2, in relation to section 11(4) of the 1980 Act: The subsection refers, at (a), to the cause of action notwithstanding that, if the action is to continue, it may well transpire that the claimant has no cause of action. When the subsection turns, at (b), to the date of knowledge (if later) and so requires the court to appraise the claimants knowledge of the four facts specified in section 14(1), which relate to, although do not comprise all elements of, his cause of action, the assumption that indeed he has a cause of action remains In the decision of the Court of Appeal in Halford v Brookes [1991] 1 WLR 428 the trial judge, Schiemann J, is quoted, at p 442H, as having referred to the bizarre situation when a defendant asserts that the plaintiff had knowledge of a fact which the plaintiff asserts as a fact but which the defendant denies is a fact. The situation may indeed seem bizarre until one remembers that, at the stage of an inquiry under section 11, the exercise requires the existence of the fact to be assumed. Were the action to continue, the defendant might well deny it; but he does not do so at that stage. It is for that reason that, contrary to the views seemingly held by Lord Hope and Lord Walker in Deutsche Morgan Grenfell [2007] 1 AC 558 (paras 169 and 170 above), the fact that the defendant disputes an element of the cause of action does not mean that the commencement of the limitation period is postponed until that dispute has been resolved. 8. Reasonable diligence That approach is also consistent with the well established test for determining whether, for the purposes of section 32(1), the claimant could with reasonable diligence have discovered a fraud. Authoritative guidance on that topic was given by Millett LJ in Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400, 418: The question is not whether the plaintiffs should have discovered the fraud sooner; but whether they could with reasonable diligence have done so. The burden of proof is on them. They must establish that they could not have discovered the fraud without exceptional measures which they could not reasonably have been expected to take. In this context the length of the applicable period of limitation is irrelevant. In the course of argument May LJ observed that reasonable diligence must be measured against some standard, but that the six year limitation period did not provide the relevant standard. He suggested that the test was how a person carrying on a business of the relevant kind would act if he had adequate but not unlimited staff and resources and were motivated by a reasonable but not excessive sense of urgency. I respectfully agree. Neuberger LJ added in Law Society v Sephton & Co [2004] EWCA Civ 1627; [2005] QB 1013, para 116, that it is inherent in section 32(1) that there must be an assumption that the claimant desires to discover whether or not there has been a fraud: Not making any such assumption would rob the effect of the word could, as emphasised by Millett LJ, of much of its significance. Further, the concept of reasonable diligence carries with it the notion of a desire to know, and, indeed, to investigate. The test explained in those dicta has nothing to do with judicial decisions establishing disputed truths after trial. It is concerned with the steps which a person in the position of the claimant could reasonably have been expected to take before issuing a claim. 9. The pre 1939 equitable rule The foregoing approach is also supported by the pre 1939 principle of equity on which section 26 of the 1939 Act and section 32(1) of the 1980 Act were modelled. In that regard, the decision of the Court of Appeal in Molloy v Mutual Reserve Life Insurance Co (1906) 94 LT 756 is particularly helpful. The plaintiff took out a life assurance policy after being told by the insurers agent that, under the policy, the premiums would remain at a fixed rate. When the insurer later increased the premiums, the plaintiff brought proceedings in the County Court to recover the overpayments. The County Court held, however, that the insurer was entitled under the policy to charge the increased premiums. Several years later, another policy holder brought similar proceedings in the High Court, in which he succeeded. That decision was overturned on appeal, but the Court of Appeal, and ultimately the House of Lords, held that the contract should be rescinded, and the premiums returned, on the ground of fraudulent misrepresentation. The plaintiff (in the Molloy case) was by then out of time to bring a common law claim for the return of his premiums, but instead brought proceedings in equity for rescission, an account of the premiums paid (as a consequence of the setting aside of the contract), and payment of the amount found due on the account. Since the claim to an account was subject by analogy to the statutory limitation period, the plaintiff sought to rely on the equitable principle allowing for its extension in a case of fraud, and argued that he had been unable to discover that he had a cause of action prior to the decision of the House of Lords. That argument was accepted by Swinfen Eady J, who considered that time did not begin to run while the plaintiff waited to be fully informed as to what his legal rights were, and [until] the position was definitely and finally ascertained: (1906) 94 LT 756, 759. The Court of Appeal (Sir Richard Collins MR, Romer and Cozens Hardy LJJ) disagreed. The Master of the Rolls gave several reasons at p 761 for rejecting the argument. First, he pointed out that the plaintiff had known the facts which were essential to his cause of action long before the House of Lords gave its decision. The limitation period ran from the time when the plaintiff discovered the facts essential to his cause of action. It was immaterial that he did not understand their legal significance, or that it was only the decision of the House of Lords as to the construction of the policy that put that element of the cause of action beyond dispute: First of all, it rather assumes that the point of time at which the Statute of Limitations is to run is not the time at which the plaintiff ascertains the facts, but the time when he put the true legal construction upon them. Now, I dispute that. I do not think that the policy of the Statute of Limitations is that it is not to begin to run until a person has satisfied himself as to the exact legal inferences to be drawn from a number of facts which he has perfectly ascertained. The policy of the Statute of Limitations is based on the old maxim, Expedit reipublica ut sit finis litium. Therefore the object of it was really to put an end to actions after a lapse of time. [T]he plaintiff knew the facts, and, even although he was not able from his education and attainments to draw the proper legal inferences from them, the Statute of Limitations was not prevented from running That is equally true in a situation where one of the facts essential to the cause of action is that the claimant has made a mistake, whether of fact or of law. The fact that he has made a mistake needs to be discoverable (in the relevant sense) with reasonable diligence, but he does not need to know that he is consequently entitled to bring a claim. As the Law Revision Committee stated, the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time (para 126 above). That is why, on the facts of Kleinwort Benson [1999] 2 AC 349, the relevant matter which needed to be discoverable was that the swaps contracts were ultra vires, as had been established in Hazell, and not that a cause of action lay for payments made under a mistake of law, as was established in Kleinwort Benson itself. For the same reason, Henderson J was in error in FII (HC) 2 [2015] STC 1471, in favouring the view (para 47 above) that it was only when the House of Lords gave judgment in Deutsche Morgan Grenfell [2007] 1 AC 558 that time began to run against the BAT claimants, since that was the first time an appellate court had held that a restitutionary claim lay for the recovery of tax on the ground that it had been paid under a mistake of law. The relevant fact was that the belief that the tax was payable had been mistaken; not that there was a right to restitution. The second reason given by the Master of the Rolls for rejecting the plaintiffs argument is also relevant to these proceedings: On that argument it would follow logically that the Statute of Limitations had not begun to run until such time within six years as anybody might, in any proceedings raising the same question, get a decision from the House of Lords on the matter [H]e gives himself the right of beginning to count the running of the Statute of Limitations from the time when he ascertains not by the result of anything done by himself at all, but by some chance proceedings taken by somebody else, aliunde what his true position is in point of law. Then, and not until then, according to his contention, the Statute of Limitations begins to run. I think that it would be quite against the policy of the Statute of Limitations altogether to allow such considerations to come in. One might contrast that reasoning with the decision of the majority in Deutsche Morgan Grenfell, according to which time did not begin to run for DMG until Hoechst [2001] Ch 620 had established the same point of law in a final decision in other proceedings. The practicality of the suggested approach It remains to consider whether the test of discoverability suggested at para 193 above, taken together with the standard of reasonable diligence discussed at para 203, provides an approach to the application of section 32(1) to mistakes of law which is likely to be reasonably practical and certain in its operation. To recap: (1) As was explained, the suggested test of discoverability is that a mistake of law is discoverable when the claimant knows, or could with reasonable diligence know, that he made such a mistake with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence; or, as Lord Brown put it in Deutsche Morgan Grenfell, he discovers or could with reasonable diligence discover his mistake in the sense of recognising that a worthwhile claim arises. We do not believe that there is any difference of substance between these formulations, each of which is helpful and casts light on the other. (2) The standard of reasonable diligence is how a person carrying on a business of the relevant kind would act, on the assumption that he desired to know whether or not he had made a mistake, if he had adequate but not unlimited staff and resources and was motivated by a reasonable but not excessive sense of urgency. The question is not whether the claimant should have discovered the mistake sooner, but whether he could with reasonable diligence have done so. The burden of proof is on the claimant. He must establish on the balance of probabilities that he could not have discovered the mistake without exceptional measures which he could not reasonably have been expected to take. In practice, the application of that approach will depend on the circumstances of the case. For example, in cases where the claimant has made a payment on the basis of a mistaken understanding of the law which has resulted from ignorance, the mistake will normally have been discoverable immediately, by seeking legal advice. Section 32(1) only has effect where a mistake could not have been discovered at the time of the payment with the exercise of reasonable diligence. On the other hand, where the payment was made in reliance on a precedent that was subsequently overruled, or an understanding of the law that was later altered by a judicial decision, the question will be whether the claim was brought within the prescribed period beginning on the date when it was discoverable by the exercise of reasonable diligence that the basis of the payment was legally questionable, so as to give rise to a worthwhile claim to restitution. Depending on the circumstances, it may be difficult to identify a specific date, but doubtful cases can be resolved by bearing in mind that the burden of proof lies on the claimant to prove that his claim was brought within the prescribed limitation period. Clearly, where a payment was made in accordance with the law as it was then understood to be, the point in time at which the claimant could, with reasonable diligence, have discovered that the basis of the payment was legally questionable, so as to give rise to a worthwhile claim to restitution, will have to be established by evidence. The focus of that evidence is likely to be upon developments in legal understanding within the relevant category of claimants and their advisers, as explained in para 178 above. Thus, in the circumstances of the present case, Lord Walker referred in FII (SC) 1 [2012] 2 AC 33 (para 48 above) to there being a reasonable prospect that the limitation period could be deferred until the time when a well advised multi national group based in the UK would have had good grounds for supposing that it had a valid claim to recover ACT levied contrary to EU law. This point is considered in greater detail in para 255 below. Evidence in relation to matters of this kind may well include expert evidence concerning the state of understanding of the law within the relevant categories of professional advisers during the relevant period. It is true that this approach involves a more nuanced inquiry than a mechanical test based on the date on which an authoritative appellate judgment determined the point in issue. But it would be unduly pessimistic to conclude at this stage that it will prove to be unworkable in practice, or too uncertain in its operation to be acceptable. Deutsche Morgan Grenfell: Summary Taking stock of the discussion so far, the position can be summarised as follows: (1) Limitation periods set a time limit for issuing a claim, which normally begins to run when the cause of action accrues. They apply whether the substance of the claim is disputed or not. They apply to claims regardless of whether there is in truth a well founded cause of action. (2) Section 32(1) of the 1980 Act postpones the running of time beyond the date when the cause of action accrues, in cases where the claimant cannot reasonably be expected to know at that time the circumstances giving rise to the cause of action, by reason of fraud, concealment or mistake. Its effect is that the limitation period commences not on the date when the cause of action accrues, but on the date when the claimant discovers, or could with reasonable diligence discover, the fraud, concealment or mistake. (3) Consistently with (1) above, section 32(1) cannot be intended to postpone the commencement of the limitation period until the claimant discovers, or could discover, that his claim is certain to succeed. (4) Consistently with (1) above, section 32(1) cannot be intended to postpone the commencement of the limitation period until the proceedings have been completed. (5) In tying the date of discoverability of a mistake of law in section 32(1) to the date when the truth as to whether the claimant has a well founded cause of action is established by a judicial decision, the decision in Deutsche Morgan Grenfell [2007] 1 AC 558 contravenes (3) above, and is therefore inconsistent also with (1) above. (6) In tying the date of discoverability to the date of a judicial decision, with the consequence that the limitation period for issuing a claim may not begin to run until the proceedings have been completed, the decision in Deutsche Morgan Grenfell also contravenes (4) above, and is for that reason also inconsistent with (1) above. (7) Tying the date of discoverability to the date of a decision by a court of final jurisdiction, as the House of Lords appear to have done in Deutsche Morgan Grenfell, and as the Court of Appeal held in FII (CA) 2, compounds the mistake (para 54 above). (8) In tying the date of the discoverability of a mistake of law to the date of a judicial decision which establishes that a mistake was made, the decision in Deutsche Morgan Grenfell also has the illogical consequence that mistakes are not discoverable by a claimant until after he has issued a claim on the basis of the mistake: (paras 173 174 above). (9) The decision in Deutsche Morgan Grenfell therefore frustrates Parliaments intention in enacting section 32(1) (para 179 above). (10) The decision in Deutsche Morgan Grenfell is also inconsistent with authorities concerned with section 32(1) in relation to fraud (paras 180 186 above). (11) The decision in Deutsche Morgan Grenfell is also inconsistent with authorities at the highest level concerned with analogous provisions of the 1980 Act (paras 187 196 above). (12) The decision in Deutsche Morgan Grenfell is also inconsistent with the meaning given by the courts to discovery in another statutory context (paras 197 198 above). (13) The purpose of the postponement effected by section 32(1) is to ensure that the claimant is not disadvantaged, so far as limitation is concerned, by reason of being unaware of the circumstances giving rise to his cause of action as a result of fraud, concealment or mistake. That purpose is achieved, where the ingredients of the cause of action include his having made a mistake of law, if time runs from the point in time when he knows, or could with reasonable diligence know, that he made such a mistake with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence; or, as Lord Brown put it in Deutsche Morgan Grenfell, he discovers or could with reasonable diligence discover his mistake in the sense of recognising that a worthwhile claim arises (paras 193 and 209). (14) By tying the concept of discovery to the ascertainment of the truth, the decision in Deutsche Morgan Grenfell contradicts the principle that limitation periods apply to claims regardless of whether they are ill or well founded. The claimant cannot be required to have ascertained the truth, in order for a limitation period to apply. Consistently with authorities concerned with analogous provisions of the 1980 Act, a reasonable belief will normally suffice (para 196). (15) Tying the concept of discovery to the ascertainment of the truth is also inconsistent with the nature of a plea of limitation. The question under section 32(1) is not whether there was in reality any fraud, concealment or mistake as the claimant has pleaded, but whether, upon the assumption that there was, it was discovered, or could with reasonable diligence have been discovered, at such a time as would render the proceedings time barred. The existence of a mistake as a verified fact is not the issue (paras 199 202). (16) Authorities concerned with the meaning of reasonable diligence in section 32(1) also indicate that it is concerned with the steps which a person could reasonably be expected to take before issuing a claim (para 203 above). The standard of reasonable diligence is how a person carrying on a business of the relevant kind would act, on the assumption that he desired to know whether or not he had made a mistake, if he had adequate but not unlimited staff and resources and was motivated by a reasonable but not excessive sense of urgency. The question is not whether the claimant should have discovered the mistake sooner, but whether he could with reasonable diligence have done so. The burden of proof is on the claimant. He must establish on the balance of probabilities that he could not have discovered the mistake without exceptional measures which he could not reasonably have been expected to take (para 209). (17) Authorities concerned with the pre 1939 equitable rule on which section 32(1) is based also support the view that the limitation period runs from the time when the claimant discovers the facts essential to his cause of action, and not from the date of a judicial decision supportive of his claim (paras 204 208 above). (18) In adopting a different approach to the discoverability of mistakes of law from that which applies to mistakes of fact, the decision in Deutsche Morgan Grenfell perpetuates the problem of distinguishing between the two, contrary to the intended effect of the decision in Kleinwort Benson (para 195 above). It follows, for all these reasons, that even if it is accepted that Kleinwort Benson was correctly decided, Deutsche Morgan Grenfell [2007] 1 AC 558, so far as it concerned limitation, was not. Discussion of Kleinwort Benson We have not yet considered a more fundamental issue: the argument that an action for the recovery of money paid under a mistake of law, unlike an action for the recovery of money paid under a mistake of fact, is not an action for relief from the consequences of a mistake within the meaning of section 32(1)(c), and therefore falls outside the ambit of the discoverability test. This argument challenges the correctness of the decision in Kleinwort Benson [1999] 2 AC 349, so far as it related to limitation. As we have explained, at the time when section 26(c) of the 1939 Act was enacted, and equally at the time when section 32(1)(c) of the 1980 Act was enacted, the only recognised actions for which a period of limitation was prescribed, and which fitted the description of an action for relief from the consequences of a mistake, were common law actions based on mistakes of fact, such as actions for the recovery of money paid under a mistake of fact, and analogous equitable claims also based on mistakes of fact. In our opinion, that is the effect of the pre 1939 authorities, notwithstanding the contrary views expressed in Kleinwort v Benson and discussed at paras 149 152 and 159 161 above. Although there were some recognised forms of equitable relief from the consequences of mistakes of law, such as rectification, they were not subject to statutory limitation either directly or by analogy prior to 1939; and that position was preserved by the 1939 and 1980 Acts: see paras 117 118, 123, 129, 131 and 142 above. When the House of Lords recognised in Kleinwort Benson [1999] 2 AC 349 the existence of an action for the recovery of money paid under a mistake of law, it recognised another action which fitted the description of an action for relief from the consequences of a mistake, if those words are construed according to their ordinary meaning. The question nevertheless arises whether that construction is in accordance with the purpose of the provision. It is debatable, but ultimately does not matter, whether this question should be approached by focusing specifically on the always speaking principle, as counsel for the bank did in Kleinwort Benson. That somewhat vague expression is commonly used in connection with statutory terms which change in their connotations over time, such as family (Fitzpatrick v Sterling Housing Association Ltd [2001] 1 AC 27). The case of R v Ireland [1998] AC 147, cited by counsel in Kleinwort Benson, was of a similar kind. The question was whether the words bodily harm, in the Offences Against the Person Act 1861, should be interpreted in the light of contemporary knowledge as applying to psychiatric injury. The always speaking principle is also invoked where the question arises whether a statutory expression should be interpreted as including a novel invention or activity which does not naturally fall within its meaning, and was not envisaged at the time of its enactment, but which may nevertheless fall within the scope of its original intention. Examples of the latter kind of case include Victor Chandler International Ltd v Customs and Excise Comrs [2000] 1 WLR 1296, which concerned the question whether a teletext fell within the scope of the statutory term document, and R (Quintavalle) v Secretary of State for Health [2003] UKHL 13; [2003] 2 AC 687, which concerned the question whether an embryo created by the novel technique of cloning, rather than by the traditional method of fertilisation, fell within the scope of the statutory expression embryo where fertilisation is complete. Another well known example is the case of Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, where the question was whether the statutory expression a pregnancy terminated by a registered medical practitioner should be interpreted as including a novel technique of termination which was carried out by a nurse acting on the instructions of a medical practitioner. The question in the present case is not of precisely the same kind. The cause of action recognised in Kleinwort Benson undoubtedly falls within the scope of the language used in section 32(1)(c), if that language is given its ordinary meaning. A mistake of law was understood to be a mistake in 1939, and in 1980, just as much as it is today. Nevertheless, the decision taken in Kleinwort Benson to recognise a cause of action for the recovery of money paid under a mistake of law could not have been foreseen in 1939 or 1980. The question therefore arises whether section 32(1)(c) applies to those unforeseen circumstances: a question which ultimately boils down to the same issue as arises when considering the always speaking principle, and indeed in all cases concerned with statutory interpretation: what is the construction of the provision which best gives effect to the policy of the statute as enacted? A number of points can be made in support of a construction which would accommodate mistakes of law. First, and most importantly, the purpose of section 32(1)(c) is to postpone the commencement of the limitation period in respect of a claim for relief from the consequences of a mistake where, as a result of the mistake, the claimant could not reasonably have known of the circumstances giving rise to his cause of action at the time when it accrued. The effect of section 32(1)(c) is that the time when the claimant could not reasonably have known about those circumstances does not count towards the limitation period. Those were also the rationale and effect of the equitable rule applicable prior to 1939, and of the recommendation made in the Report of the Law Reform Committee. The equitable rule did not apply where the claimant had been aware of all the relevant circumstances at the time when his cause of action accrued and had merely been ignorant that those circumstances gave rise to a cause of action: see para 122 above. That aspect was also reflected in the Committees Report: see paras 126 and 127 above. As we have explained, when section 32(1) was enacted, it could only have applied to claims in respect of mistakes of fact, since those were the only mistakes which gave rise to an action for relief from the consequences of a mistake. However, the law subsequently developed in Kleinwort Benson so as to allow claims to be brought for relief from the consequences of mistakes of law. That development has to be addressed in the law of limitation in a way which is consistent with the legislative policy of the 1980 Act and avoids discord in the law, as Lord Hoffmann explained in Johnson v Unisys [2003] AC 518 (para 157 above). In principle, it is consistent with the purpose of section 32(1)(c) for it to apply to claims brought on that basis. The rationale of section 32(1) to postpone the commencement of the limitation period in respect of a claim for relief from the consequences of a mistake where, as a result of the mistake, the claimant could not reasonably have known of the circumstances giving rise to his cause of action at the time when it accrued applies with equal force to a mistake of law as to a mistake of fact. To construe the provision in a sense which excluded such claims would not be consistent with Parliaments intention to relieve claimants from the necessity of complying with the time bar which would apply in the absence of section 32(1), at a time when they could not reasonably be expected to do so. Nor would such a construction reflect the ordinary meaning of the language which Parliament used: a mistake of law is, and always was, a mistake in the ordinary sense of the word. For similar reasons, it would not be consistent with the intention of Parliament to exclude deemed mistakes from the ambit of section 32(1)(c), even assuming (contrary to the conclusion reached at paras 175 176 above) that a principled and workable distinction could be drawn between deemed and actual mistakes. There would, in the first place, be no warrant in the language of the provision for drawing such a distinction; and the court cannot effectively amend the legislation under the guise of interpretation. Furthermore, to draw such a distinction would undermine the purpose of the provision: a provision which, as explained earlier, has its origins in equity. The person who has made a deemed mistake is no less deserving of an extension of the time permitted for bringing a claim, until he could have discovered his mistake, than a person who has made a mistake in circumstances where, on any view, the law has remained unchanged. In the latter situation, the person could at least have discovered his mistake at the time if he had consulted a lawyer. It is also relevant to note that there is some authority in other jurisdictions accepting that provisions equivalent to section 32(1)(c) apply to restitutionary claims based on mistakes of law. The question arose in an Australian case in relation to section 27(c) of the Limitation of Actions Act (Vic), which is materially identical to section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act. In the case of Paciocco v Australia and New Zealand Banking Group Ltd [2014] FCA 35; (2014) 309 ALR 249, Gordon J held at para 365 that the concept of a mistake, within the meaning of section 27(c), included a mistake of law. On appeal, the Full Court expressed their agreement with that conclusion, obiter: [2015] FCAFC 50; (2015) 236 FCR 199, paras 192, 396 and 398. In particular, Besanko J considered the question whether the provision should be construed as what is sometimes termed a fixed time provision, which must be construed in the sense in which it would have been applied at the time of its enactment, or as a provision which is always speaking and can be given an ambulatory construction. He concluded that the latter view was to be preferred. On a further appeal to the High Court of Australia, only Nettle J considered the point, again obiter, and agreed with the views expressed in the courts below: [2016] HCA 28; (2016) 90 ALJR 835, para 374. Although the point does not appear to have been specifically considered elsewhere, that conclusion is consistent with the application, in a number of other jurisdictions, of provisions materially identical to section 32(1)(c) of the 1980 Act to claims based on a mistake of law. That can be seen, for example, in the Hong Kong case of Ho Kin Man v Comr of Police [2012] HKCFI 1064; [2013] 1 HKC 13, and in a number of decisions of the Supreme Court of India, including Assistant Engineer (D1) Ajmer Vidyut Vitran Nigam Ltd v Rahamatullah Khan Alias Rahamjulla [2020] INSC 188. Nevertheless, it is necessary to consider whether construing section 32(1)(c) in that way would have other consequences which would be contrary to Parliaments intention. As we have explained, the reasoning in Deutsche Morgan Grenfell would indeed have that effect, since the mistake of law was, according to that reasoning, undiscoverable until it had been established by an authoritative judicial decision, which might not occur until the proceedings in question had been completed: a result which defeats the object of limitation. That is not, however, the effect of section 32(1)(c) if it is construed in accordance with the test proposed in Deutsche Morgan Grenfell [2007] 1 AC 558 by Lord Brown, and consistently with the approach established in Haward v Fawcetts [2006] 1 WLR 682, AB v Ministry of Defence [2013] 1 AC 78 and Paragon Finance plc v DB Thakerar & Co. Even so, there are a number of arguments which need to be considered: notably, that to construe section 32(1)(c) as applying to mistakes of law would be destructive of legal certainty, and therefore contrary to the policy of Parliament; that previous decisions have indicated that section 32(1) should be restrictively construed; and that to treat mistakes of law as falling within the scope of section 32(1)(c) would undermine this courts ability to reverse decisions of the Court of Appeal and to depart from its own decisions in accordance with the 1966 Practice Statement (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234). In relation to legal certainty, Lord Goff was correct in stating in Kleinwort Benson [1999] 2 AC 349 at p 389 that the cause of action in a case such as the present may be extended for an indefinite period of time; and Lord Hope was right to acknowledge at p 417 that [t]he objection may be made that time may run on for a very long time before a mistake of law could have been discovered, and that [i]t may also be said that in some cases a mistake of law may have affected a very large number of transactions, and that the potential for uncertainty is very great. In that regard, it is relevant to note that mistakes of law differ from mistakes of fact in that the facts are fixed at the relevant point in time, even if they may remain undiscovered until much later, whereas the law can be altered from time to time by judicial decisions. For these reasons, it can be argued with force that to apply section 32(1)(c) to mistakes of law undermines the basic purpose of limitation statutes, namely putting a certain end to litigation and preventing the resurrection of old claims, as the Law Reform Committee stated at paragraph 7 of its Report. A number of points can be made in response. First, section 32(1)(c), like the equitable rule which preceded it, necessarily qualifies the certainty otherwise provided by limitation periods. It means that the 1980 Act does not pursue an unqualified goal of barring stale claims: its pursuit of that objective is tempered by an acceptance that it would be unfair for time to run against a claimant before he could reasonably be aware of the circumstances giving rise to his right of action. Even as it applies to mistakes of fact, section 32(1)(c) (like sections 14 and 14A) has the consequence that the cause of action may be extended for an indefinite period of time. The point can be illustrated by the facts of In re Baronetcy of Pringle of Stichill [2016] UKPC 16; [2016] 1 WLR 2870, where DNA evidence established in 2016 that a person born in 1903 had wrongly succeeded to a title in 1919, with the effect of impugning the title inherited by successive generations of his descendants. The position would have been the same if he had been born centuries earlier. Secondly, the uncertainty which is liable to result from the application of section 32(1)(c) to mistakes of law should not be exaggerated. In most cases where a mistake of law is made, the application of section 32(1)(c) will not produce disruptive consequences. That is because the mistake will normally have been discoverable at the time of the transaction in question by the exercise of reasonable diligence, by obtaining legal advice. The commencement of the limitation period will not, therefore, be postponed. Cases where advice as to the correct state of the law was not reasonably available at the time of the transaction, and where a right to restitution might in principle be available, are likely to be unusual. One example is the class of cases where the mistake of law is the retrospective result of a judicial decision which upsets an established rule of law on the basis of which payments have been made: what Lord Hoffmann described as a deemed mistake. Cases of that kind should, however, be highly unusual, as courts do not often overturn established rules of law, and in considering whether to do so they attach particular importance to the security of settled transactions. The present proceedings, and the other proceedings mentioned in paras 5 and 6 above, are not however concerned with deemed mistakes but with actual mistakes arising from a unique set of circumstances: the UKs entry into the EU, with supranational laws which had to be given priority over domestic statutes, resulting in the gradual application of the EU principles of freedom of establishment and free movement of capital in the field of taxation, and the eventual realisation that UK tax legislation might be incompatible with those principles. Such circumstances are of a wholly exceptional nature. Thirdly, to the extent that this objection to the result of Kleinwort Benson is based on policies attributed to Parliament, we would refer to the discussion of the intention of Parliament at paras 219 222 above. Furthermore, it is reasonable, 22 years after the decision in Kleinwort Benson [1999] 2 AC 349, to note that Parliament has evinced no concern about its consequences, except in relation to tax. Recommendations for reform were made by the Law Commission in a Report published almost 20 years ago (Limitation of Actions (2001) (Law Com No 270), HC 23), and were accepted in principle by the Government in 2002 (Hansard, HL Deb, 16 July 2002, col 127 WA), but in 2009 the Government announced that reform of the law of limitation would not after all be taken forward (Hansard, HC Deb, 19 November 2009, col 13 WS). In relation to tax, the legislative measures introduced in section 320 of the FA 2004 have succeeded in protecting public revenues prospectively with effect from 8 September 2003. In relation to tax levied before that date, Parliament acted to mitigate the impact on public revenues in the F(No 2)A 2015 (para 56 above). That impact was further reduced, dramatically, by the decision in Prudential [2019] AC 929, and will be reduced further if this court departs from Deutsche Morgan Grenfell and adopts instead the interpretation of section 32(1) which was explained in para 209 above. With the exception of claims in relation to tax that was unlawful under EU law, there has been no noticeable surge of claims for restitution of money paid under mistakes of law. Were such claims to be made after a long lapse of time, the defence of change of position might well be available, as it has been held to be in the present proceedings (FII (CA) 1 [2010] STC 1251), albeit not made out on the facts because of the absence of a clear relationship between tax receipts and public expenditure (FII (CA) 2 [2017] STC 696). Another argument for holding that section 32(1) should not be interpreted as applying to mistakes of law is that the courts have made clear the risks involved in giving the provision a broad interpretation, in Phillips Higgins [1954] 1 QB 411 and FII (SC) 1 [2012] 2 AC 33: see paras 41 and 139 above. In those cases, however, what was being rejected was an attempt to extend section 32(1)(c) to cases where mistake was not an essential ingredient of the cause of action, but where the claimant had merely been ignorant that he had a cause of action: an extension which is not being suggested in this judgment, and which would be inconsistent with the Law Reform Committees intention that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time (para 126 above). That is not, however, a reason for excluding from the scope of section 32(1) cases where a mistake of law is an essential ingredient of the cause of action. That is because, in such cases, ignorance that he made a mistake renders the claimant unaware of one of the facts giving rise to his cause of action, just as a claimant who is ignorant that he made a mistake of fact is unaware of one of the facts giving rise to a cause of action based on a mistake of fact. In neither case is the limitation period postponed merely because the claimant is ignorant of his rights. Were matters otherwise, FII (SC) 1 could hardly have been decided as it was, since the claim based on Kleinwort Benson would then have been struck at just as much as the claim based on Woolwich [1993] AC 70. A closely related argument is that discoverability is concerned with the facts which are essential to a cause of action, and not with their legal consequences. The principle is well illustrated by Knight Bruce LJs statement in Stafford v Stafford (1857) 1 De G & J 193, 202 that [g]enerally, when the facts are known from which a right arises, the right is presumed to be known, and by Sir Richard Collins MRs judgment in Molloy 94 LT 756 (para 206 above). As we have explained, the reforms recommended by the Law Revision Committee were not intended to impinge upon that principle. The principle is reflected in the terms of sections 14(1)(d) and 14A(9) of the 1980 Act, which specifically provide that knowledge that the relevant acts or omissions involved negligence or other breaches of duty is irrelevant. Although Parliament did not set out a corresponding provision in section 32(1), the same principle nevertheless permeates section 32(1) just as much as it does the remainder of the 1980 Act. It might be argued, on that basis, that mistakes of law fall outside the ambit of section 32(1)(c). The cause of action created by Kleinwort Benson depends on the claimant having had a mistaken understanding of the law at the time when the payment was made, and on a causal relationship between that mistaken understanding and the making of the payment. Those are the relevant facts, as discussed in para 207 above. Once those facts are or could with reasonable diligence be discovered, the limitation period begins to run. It is not postponed because the claimant, with actual or constructive knowledge of those facts, is ignorant that they give rise to an entitlement to restitution. In those circumstances, to treat the cause of action recognised in Kleinwort Benson as falling within the scope of section 32(1) involves no breach of the general principle that when the facts are known from which a right arises, the right is presumed to be known. Nor, recalling Sir Richard Collins MRs judgment in Molloy, is there any inconsistency with his statement that: I do not think that the policy of the Statute of Limitations is that it is not to begin to run until a person has satisfied himself as to the exact legal inferences to be drawn from a number of facts which he has perfectly ascertained. Nor is there any contradiction of the Law Revision Committees statement that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time. The limitation period is not postponed until the claimant has discovered his rights. It is postponed until he has discovered (or could with reasonable diligence have discovered) that he made a payment at some point in the past because of a mistaken understanding of the law as it then stood. A further argument is that to treat mistakes of law as falling within the scope of section 32(1)(c) would undermine this courts ability to reverse decisions of the Court of Appeal or to depart from its own decisions in accordance with the 1966 Practice Statement, since to do so might trigger widespread liabilities under the law of restitution. The first point to be made in response is that Parliament cannot have had the Practice Statement in mind in 1939. Nor can it bear on the interpretation of a 1939 provision which is re enacted in a consolidation statute in 1980, since no change in meaning is taken to have been intended. The Practice Statement has to be operated within a framework established by statute, including the 1939 and 1980 Acts, rather than the Practice Statement affording guidance as to how those statutes should be interpreted. Secondly, as we have indicated, courts, including this court, do not often overturn settled rules of law, and in considering whether to do so they attach particular importance to the security of settled transactions. The decisions in Kleinwort Benson and Sempra Metals [2008] 1 AC 561 were exceptional in their readiness to overturn centuries of authority, as the House of Lords enthusiastically adopted the theory of unjust enrichment. Those decisions were criticised by this court in Prudential [2019] AC 929 at para 63 because of their disregard of the need for judicial development of the law to be justifiable by reference to existing legal principles. Normally, as was stated in a recent judgment of this court, [i]n order to preserve legal certainty, judicial developments of the common law must be based on established principles, building on them incrementally rather than making the more dramatic changes which are the prerogative of the legislature: R (Elgizouli) v Secretary of State for the Home Department [2020] UKSC 10; [2020] 2 WLR 857, para 170. Considering the Practice Statement in particular, it states specifically that the court will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property, and fiscal arrangements have been entered into. This court, like the House of Lords before it, has followed that practice. Thirdly, the potential problem which concerned the minority in Kleinwort Benson is significantly alleviated if the approach to discoverability which was adopted in Deutsche Morgan Grenfell is departed from, as suggested above. For example, Lord Browne Wilkinson posited at p 358 a case where the law was established by a decision of the Court of Appeal in 1930. In 1990 the claimant made a payment which was only due if the Court of Appeal decision was good law. In 1997 the House of Lords overruled the decision of the Court of Appeal. Lord Browne Wilkinson commented at p 359: [A]t that date [the date of the payment] there could be no question of any mistake. It would not have been possible to issue a writ claiming restitution on the grounds of mistake of law until the 1997 decision had overruled the 1930 Court of Appeal decision. Therefore a payment which, when made, and for several years thereafter, was entirely valid and irrecoverable would subsequently become recoverable. This result would be subversive of the great public interest in the security of receipts and the closure of transactions. Applying the approach to discoverability discussed above, however, it does not follow from the fact that the Court of Appeal decision was overruled in 1997 that it was only then that a writ could have been issued claiming restitution. The proceedings before the House of Lords, in which the decision of the Court of Appeal was challenged, must themselves have been commenced by issuing a writ some years earlier. Why could Lord Browne Wilkinsons hypothetical claimant not have done the same? It does not follow from the fact that the House of Lords reached its decision in 1997 that the hypothetical claimant could not have discovered his mistake before then. Furthermore, as was explained at para 232 above, in considering whether the overturning of a precedent might result in restitutionary claims going back for long periods of time, it is necessary to bear in mind the defence of change of position. The circumstances which led to the rejection of that defence in the present case the absence of any demonstrable connection between the tax paid and public expenditure were unusual. In the event, such claims have not been a notable feature of the period since Kleinwort Benson was decided. Kleinwort Benson: Summary Taking stock of the discussion of Kleinwort Benson [1999] 2 AC 349, the position can be summarised as follows: (1) The decision in Kleinwort Benson, that claims for the restitution of money paid under a mistake of law fall within the ambit of section 32(1)(c) of the 1980 Act, was not supported by convincing reasoning (paras 148 161 above). (2) When section 32(1)(c) was enacted, it was not contemplated that it might extend to actions for the restitution of money paid under a mistake of law: no such action was recognised at that time. (3) Nevertheless, giving the words used in section 32(1)(c) their ordinary meaning, they include such actions. That is not, however, conclusive. The provision has to be construed consistently with its purpose. (4) The purpose of section 32(1)(c) is to postpone the commencement of the limitation period in respect of a claim for relief from the consequences of a mistake where, as a result of the mistake, the claimant could not reasonably have known of the circumstances giving rise to his cause of action at the time when it accrued (para 220 above). (5) If, after the enactment of section 32(1)(c), the law developed so as to allow actions to be brought for relief from the consequences of a mistake of law, then in principle it would be consistent with that purpose for section 32(1)(c) to apply to such claims. To construe the provision in a sense which excluded such claims would not be consistent with Parliaments intention to relieve claimants from the necessity of complying with the time bar which would apply in the absence of section 32(1), at a time when they could not reasonably be expected to do so (para 221 above). (6) That argument applies equally to deemed mistakes of law as to actual mistakes, even assuming that a principled and workable distinction can be drawn between the two (para 222 above). (7) The construction of section 32(1)(c) as applying to mistakes of law as well as of fact also gains some support from the case law of other jurisdictions (paras 223 224 above). (8) On the other hand, it can be argued that such a construction of section 32(1)(c) undermines the primary policy of the 1980 Act as a whole, namely to put a certain end to litigation (para 227 above). (9) A number of points can be made in answer to that argument: (i) Section 32(1)(c) necessarily qualifies the certainty otherwise provided by limitation periods, in recognition of the unfairness of allowing time to run against a claimant before he could reasonably be aware of the circumstances giving rise to his right of action (para 228 above). (ii) Nevertheless, in most cases where a mistake of law is made, the application of section 32(1)(c) will not produce disruptive consequences. The correct state of the law is normally ascertainable at the time of a transaction. Cases where it is not, and where a right to restitution might in principle be available, are likely to be unusual. In particular, cases where the courts upset an established rule of law with retrospective effect, so as to affect settled transactions, should be highly unusual. The present proceedings arise from a unique set of circumstances (para 229 above). (iii) The policy consequences have not prompted legislation, except in relation to tax. On the contrary, the Government has declined to implement reforms recommended by the Law Commission (para 230 above). (iv) In relation to tax, the consequences of Kleinwort Benson have been addressed by Parliament, and have also been mitigated by subsequent judicial decisions. They will be mitigated further if this court departs from Deutsche Morgan Grenfell (para 231 above). (v) Other than in relation to tax, the decision in Kleinwort Benson has not resulted in a surge of stale claims. Were such claims to be made, a defence of change of position might well be available (para 232 above). (10) It can also be argued that section 32(1)(c) should be restrictively construed, consistently with dicta in Phillips Higgins and FII (SC) 1. However, those cases were concerned with attempts to extend section 32(1)(c) to cases where mistake was not an essential ingredient of the cause of action, but where the claimant had merely been ignorant that he had a cause of action. Claims for the restitution of money paid under a mistake of law do not fall into that category. On the contrary, such a claim was regarded as unobjectionable in FII (SC) 1 (para 233 234 above). (11) It can also be argued that to apply section 32(1)(c) to claims for restitution of money paid under a mistake of law contravenes the principle that ignorance of the law is not a ground for the extension of the limitation period. However, that is a mistaken view. The commencement of the limitation period is postponed while the claimant is unaware of the fact that he had a defective understanding of the law at the time when he made the payment. It is not postponed because he is ignorant that, in those circumstances, he has a right to restitution (paras 234 237 above). (12) It can also be argued that to treat mistakes of law as falling within the scope of section 32(1)(c) would undermine this courts ability to reverse decisions of the Court of Appeal or to depart from its own decisions. The force of that argument appears to us to be diminished, however, when regard is had (a) to the importance which this court attaches in any event to legal certainty and to the security of settled transactions, (b) to the significance of adopting the approach to discoverability discussed above, and (c) to the importance of the defence of change of position (paras 239 241 above). (13) The claimant seeking restitution of money paid under a mistake of law does not, therefore, come within the scope of section 32(1) because he is unaware of his rights. He comes within it where, and during the period that, he is unaware that his understanding of the law at some point in the past was defective (the mistake in question being one which forms an essential element of a cause of action). He ceases to come within it at the point when he knows, or could with reasonable diligence know, that he made such a mistake with sufficient confidence to justify embarking on the preliminaries to the issue of a writ, such as submitting a claim to the proposed defendant, taking advice and collecting evidence; or, as Lord Brown put it in Deutsche Morgan Grenfell, he discovers or could with reasonable diligence discover his mistake in the sense of recognising that a worthwhile claim arises. For these reasons, although there is undeniable force in the argument that section 32(1)(c) should be construed as being confined to mistakes of fact, the balance of the arguments in our view favours giving the language of section 32(1)(c) its ordinary meaning, so that it is applicable also to actions for relief from the consequences of a mistake of law. That approach to the construction of the provision best gives effect to Parliaments intention to relieve claimants from the necessity of complying with a time limit at a time when they cannot reasonably be expected to do so, and does not have unacceptable consequences for the legal certainty which the 1980 Act is primarily designed to protect. That is only so, however, if the court departs from the reasoning in Deutsche Morgan Grenfell [2007] 1 AC 558, since that reasoning would defeat Parliaments intention. On that basis, we consider that this court should adhere to the decision in Kleinwort Benson, so far as relating to limitation. The Practice Statement of 26 July 1966 We must also give due weight to the importance of maintaining legal certainty by the preservation of precedent. The use of precedent, as the 1966 Practice Statement acknowledges, is an indispensable foundation upon which judges decide what the law is and apply the law in individual cases. It is, in Lord Goffs words in Kleinwort Benson (p 379), the cement of legal principle providing stability to the common law. As is well known, this court has held that the Practice Statement has effect as much as it did before the Appellate Committee in the House of Lords: Austin v Southwark London Borough Council [2010] UKSC 28; [2011] 1 AC 355, para 25 per Lord Hope. It is necessary therefore to consider with care whether it is appropriate for this court to depart from prior decisions of the House of Lords. It is unquestionable that there is a general public interest in certainty in the law. It is not a sufficient basis for this court to reverse a previous decision which it or the House of Lords has made that this court considers that a previous decision was wrong. As Lord Reid stated in R v Knuller (Publishing, Printing and Promotions) Ltd [1973] AC 435, 455, In the general interest of certainty in the law we must be sure that there is some very good reason before we so act. Lord Reid explained his understanding of the rationale of the Practice Statement in R v National Insurance Comr, Ex p Hudson [1972] AC 944, 966 when he stated that there were a number of reported decisions which were impeding the proper development of the law or which led to results which were unjust or contrary to public policy. Some situations, such as a fundamental change in circumstances, or where a decision has resulted in unforeseen serious injustice, have been recognised as permitting a departure from precedent: Rees v Darlington Memorial NHS Trust [2003] UKHL 52; [2004] 1 AC 309, para 31 per Lord Steyn. In Horton v Sadler [2006] UKHL 27; [2007] 1 AC 307, para 29, Lord Bingham considered that too rigid adherence to precedent might cause injustice in a particular case and unduly restrict the development of the law. But, in the same paragraph, he acknowledged that the power had been exercised rarely and sparingly. In view of this well established approach to precedent, would it be right for this court to depart from Kleinwort Benson or Deutsche Morgan Grenfell in relation to the law of limitation on this appeal? Kleinwort Benson effected a radical change in the law of restitution by opening up claims for the recovery of money paid under a mistake of law. By applying section 32(1)(c) of the 1980 Act to such claims it created the potential that a cause of action may be extended for an indefinite period of time and thereby undermine security of transactions, as each of the majority, Lord Goff, Lord Hoffmann and Lord Hope, expressly recognised (paras 154, 157 and 162 above). The minority, Lord Browne Wilkinson and Lord Lloyd, saw this potential as a basis for leaving the proposed change of law to Parliament (para 163 above). But there has been little evidence of any surge of claims for restitution of money paid under mistakes of law. The most significant claims have been in the field of taxation, such as the various group litigations which we have mentioned in paras 5 and 6 above. Those challenges have exposed the Exchequer to claims which go back many years and involve very large sums of money. But Parliament has intervened, as we have explained, by enacting section 320 of the FA 2004 which, while ineffective to undermine claims under EU law retrospectively, has protected public revenues prospectively with effect from 8 September 2003 (paras 10 and 14 above). There is therefore no apparent danger of similarly large claims arising in future in the field of taxation which have the potential to disrupt the fiscal planning of the executive. In paras 242 and 243 above, we have summarised our position in relation to Kleinwort Benson. The considerations stated there and those in para 248 above suggest to us that preserving the authority of Kleinwort Benson would not be contrary to principle or give rise to serious uncertainty in the law. Upholding Kleinwort Benson would be unlikely to give rise to serious injustice in individual cases in the future, and it would not impede the proper development of the law. On the other hand, from our discussion which we have summarised in para 213 above, it is clear that the decision in Deutsche Morgan Grenfell [2007] 1 AC 558 on the question of discoverability in section 32(1)(c) has very unfortunate consequences. Several matters are of particular relevance to the application of the Practice Statement. The decision defeats the purpose of limitation, and in so doing appears to be contrary to the intention of Parliament in enacting the 1939 and 1980 Acts. It creates incoherence in interpretation both within section 32(1) and between that section and analogous provisions of the 1980 Act. It creates the legal paradox to which we have referred (paras 173 174 above). It also perpetuates the problem of distinguishing between matters of fact and matters of law, a result which, as we have discussed, is contrary to the intended effect of Kleinwort Benson [1999] 2 AC 349. In so doing, it impedes the coherent development of the law. It is necessary to balance against those considerations the possibility that a departure from Deutsche Morgan Grenfell, in relation to discoverability, will itself result in some claims to restitution. Such claims may be made on the basis that payments have been made under a mistake of law, because the claims for restitution, which that decision supported and which led to those payments, were, on a proper understanding of the law, already subject to a limitation defence on the interpretation of section 32(1)(c) which we favour. That would be unfortunate. But we would not expect the number of claims to be significant for two reasons. First, there has not been a surge of claims for restitution of money paid under mistakes of law, following the Kleinwort Benson decision, outside the tax litigation to which we have referred. Secondly, the recipients of such payments made in restitution may have a defence of change of position if the payer, such as the Revenue, were to seek to recover them. We are not persuaded that the possibility of such claims should deter us from departing from Deutsche Morgan Grenfell in relation to discoverability if that is the only way in which to promote coherence in the law of limitation. When the Appellate Committee determined the appeal in Deutsche Morgan Grenfell [2007] 1 AC 558 in 2006, Lord Hope (para 68) suggested that the legislature could intervene to stop time running indefinitely in all mistake cases, if there was a problem. There was then some prospect that Parliament would consider a reform of the law of limitation of actions. As we have explained (para 230 above), the Government initially accepted the Law Commissions recommendations to reform the law of limitation and proposed to legislate, but by 2009 it had announced that it would not take forward those reforms. There is therefore now no prospect that Parliament will enact a legislative solution to remove the anomalies which the Deutsche Morgan Grenfell judgment has created. In these circumstances, we are persuaded that this is an appropriate case in which to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability in section 32(1)(c) of the 1980 Act. Application to the present proceedings This appeal is brought against the decision of the Court of Appeal in FII (CA) 2 [2017] STC 696, and this judgment is concerned with the appeal only in so far as it relates to Issue 28: the issue of limitation. As was explained at para 54 above, the decision of the Court of Appeal on Issue 28 was based on the application of the approach established in Deutsche Morgan Grenfell. For the reasons we have explained, that approach cannot be upheld, and the appeal on Issue 28 must therefore be allowed. This court cannot, however, determine in the abstract the point in time when the test claimants could with reasonable diligence have discovered, to the standard of knowing that they had a worthwhile claim, that they had paid tax under a mistaken understanding that they were liable to do so. That depends on an examination of the evidence. As we have explained, EU law, in relation to tax regimes which discriminated between companies based in one member state and companies based in another, developed through a series of judgments of the Court of Justice, including Verkooijen [2000] ECR I 4071 (2000), Lenz [2004] ECR I 7063 (2004) and Manninen [2005] Ch 236 (2004), discussed at paras 24 and 33 34 above, Hoechst [2001] Ch 620 (2006) and FII (CJEU) 1 [2012] 2 AC 436 (2006). Each of those judgments was itself the result of a claim made some years earlier. In Hoechst, for example, the claim was filed in 1995, 11 years before the judgment of the Court of Justice. DMG was aware of the claim almost immediately, and it was for that reason that, in Deutsche Morgan Grenfell, Lord Brown considered that time began running for DMG in July 1995. But the date when the claimant became aware of another claim, and appreciated its potential implications for its own situation, is not conclusive, if a claimant acting with reasonable diligence could have discovered that it had a worthwhile claim at an earlier time. Equally, the answer to the question arising under section 32(1) does not depend upon the characteristics of the particular claimant: whether, for example, it was inclined to await further developments, and to allow other taxpayers to make the running. The standard is could, as Millett LJ emphasised in Paragon Finance (para 203 above). And the test is objective, as Millett LJ explained in the same passage of his judgment, and as Lord Walker made clear in FII (SC) 1 [2012] 2 AC 33, when he referred (para 48 above) to the time when a well advised multi national group based in the UK would have had good grounds for supposing that it had a valid claim to recover ACT levied contrary to EU law. In the circumstances of the present proceedings, if the date of commencement of the limitation period requires to be judicially determined, that matter will have to be decided by the High Court, after the parties have had an opportunity to amend their pleadings. Conclusion We would allow the appeal on Issue 28 and would make an order remitting that issue to the High Court to allow the parties to amend their pleadings on discoverability of the mistake and to determine the date of commencement of the limitation period. LORD BRIGGS AND LORD SALES: (dissenting) (with whom Lord Carnwath agrees) In large measure we agree with the judgment of Lord Reed and Lord Hodge, which sets out the issues and explains this litigation and the course of the previous litigation in this area with such admirable clarity. The issue on which we find ourselves in respectful disagreement is whether this court should overrule Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 as regards the interpretation of section 32(1)(c) of the Limitation Act 1980 and hold that it does not apply in relation to payments made on the basis of a mistake of law. In our view, we should do so. In outline, we have reached that view for three main reasons. First, we are convinced that the House of Lords was plainly wrong in Kleinwort Benson to interpret section 32(1)(c) as extending to mistakes of law. Secondly, we do not consider that the large inroads upon the overall purpose of the Limitation Act in undermining legal certainty in relation to settled transactions, recognised by all their lordships in that case, are sufficiently addressed by the limited departure from Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49; [2007] 1 AC 558 which the majority propose. The outcome will, we fear, place a serious brake upon judicial modernisation of the common law which we are sure Parliament cannot have intended. This issue has to be confronted in this court, because the hopes of their lordships in Kleinwort Benson that Parliament would legislate to deal with the problem have not been fulfilled. Thirdly, we have serious reservations about whether the test proposed by the majority, based upon Lord Browns dissenting speech in Deutsche Morgan Grenfell, will prove to be workable in practice. It is not in our view plausible to infer that Parliament intended that section 32(1)(c) should be read as being subject to such a test. Although the 1980 Act is a consolidation statute, in construing section 32(1)(c) the House of Lords in Kleinwort Benson and this court in Test Claimants in the FII Group Litigation v Revenue and Customs Comrs (formerly Inland Revenue Comrs) [2012] UKSC 19; [2012] 2 AC 337 (FII (SC) 1) found it necessary to look at the background and intended effect of the predecessor provision in the Limitation Act 1939, section 26(c). As was made clear in Farrell v Alexander [1977] AC 59, where there is significant doubt about the meaning and effect of a provision in a consolidation statute it is appropriate to investigate the meaning and effect of the earlier legislation from which it is derived. Lord Reed and Lord Hodge set out the law as regards limitation of actions as it stood prior to 1939 at paras 103 to 122 above. In summary, statute set out periods of limitation for claims arising at common law while generally equity applied the doctrines of laches (which included reference to statutory limitation periods in relation to equitable claims which were analogous to claims at law) and acquiescence. For the purposes of those doctrines, in certain circumstances time did not run where a claimant was labouring under a mistake until the mistake was discovered, or could with reasonable diligence have been discovered. A claim would arise at common law where money was paid to another by reason of a mistake of fact by way of an action for money had and received, which had historically been vindicated using the old form of action known as indebitatus assumpsit. The time limit for bringing such a claim was six years from the date of the payment: Baker v Courage & Co Ltd [1910] 1 KB 56. It had been established by the case of Bilbie v Lumley (1802) 2 East 469 that this form of action was not available, and hence this type of claim did not arise, to claim back money paid under a mistake of law. By 1939 this was a well established rule of law. On the other hand, equity never provided relief in relation to money paid away by reason of a simple mistake, whether of law or fact, without more. Equity granted relief to vindicate certain underlying property rights, or rights arising under a trust or in relation to the execution of a will. Mistake, including in some cases a mistake of law, was just a relevant factor to be taken into account in deciding whether equity would intervene to vindicate those rights in a particular case. As Lord Reed and Lord Hodge observe (para 119), in cases of fraud the equitable rule was that time would not run by analogy with statute until the claimant could with reasonable diligence have discovered the fraud, since it would be unconscionable for a defendant in such a case to rely on the statute to defeat the claim. Clearly, that reasoning does not apply in a case where a claimant labours under a mistake which the defendant has done nothing to induce. But in Brooksbank v Smith (1836) 2 Y & C Ex 58 Alderson B expressed the view that the rule in cases of fraud should apply in cases of mistake as well, without explaining why. In 1936 the Law Revision Committee (the LR Committee) produced its Fifth Interim Report on the law of limitation: see paras 123 128 above. Its recommendations were enacted in the 1939 Act. The LR Committee rejected the idea of a general power of extension of limitation periods, on the grounds that it might be impossible to predict how such a power would be exercised, in which case the fundamental benefit conferred by statutes of limitation, namely the elimination of uncertainty, would be prejudiced (para 7). At paragraph 13 the LR Committee recommended leaving the equitable doctrines of laches and acquiescence in place. At paragraphs 22 and 23 the LR Committee examined the merits of applying equitable principles to common law claims; in doing so, it discussed fraud claims and mistake claims separately. The inference from the way in which the LR Committee separated its discussion of fraud and mistake for common law claims is that it recognised that the equities between the parties and the policy issues arising in the two cases are very different. In FII (SC) 1 Lord Walker (para 63) and Lord Sumption (paras 183 185) explain the contrasting policy issues and the risks of uncertainty attendant on an over broad extension of limitation periods in cases of mistake as distinct from fraud. At paragraph 22 the LR Committee recommended adopting the equitable rule regarding extension of time for the purposes of common law claims based on fraud. It identified two ways in which fraud might have an impact (Either the cause of action may spring from the fraud of the defendant or else the existence of a cause of action untainted in its origin by fraud may have been concealed from the plaintiff by the fraudulent conduct of the defendant) and observed, [i]t is obviously unjust that a defendant should be permitted to rely upon a lapse of time created by his own misconduct. Its recommendation was that time should not start to run in either case until the fraud was or could with reasonable diligence be discovered. This recommendation was followed in section 26(a) and (b) of the 1939 Act (re enacted as section 32(1)(a) and (b) of the 1980 Act), reflecting the two ways in which fraud could operate, respectively: see FII (SC) 1, paras 179 180 (Lord Sumption). The equities are, of course, entirely different in cases of ordinary mistake where the defendant has done nothing unconscionable to create the delay before the claimant seeks to litigate. At para 23 the LR Committee recommended adopting the equitable rule regarding extension of time in relation to the common law action for relief from the consequences of a mistake. This recommendation was carried into the 1939 Act at section 26(c). As explained in FII (SC) 1, at paras 42 63 (Lord Walker) and paras 177 185 (Lord Sumption), the LR Committees recommendation was limited to cases where the mistake itself gave rise to a cause of action. Given the established state of the law in 1936, this meant that the recommendation was confined to cases where a payment was made by reason of a mistake of fact. As Pearson J said in the leading case on the ambit of section 26(c), No doubt it was intended to be a narrow provision, because any wider provision would have opened too wide a door of escape from the general principle of limitation (Phillips Higgins v Harper [1954] 1 QB 411, 419, cited with approval by Lord Sumption in FII (SC) 1, para 183). The LR Committee did not recommend any change in the substantive law regarding claims at common law based on mistake and did not make any recommendation which addressed the very different policy issues which would arise in respect of a claim to recover a payment based on a mistake of law. That such a claim might be recognised was something entirely outside its contemplation. Further, the LR Committee was at pains to state that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time. Our recommendation only extends to cases when there is a right to relief from the consequences of a mistake. A mistake of law occurs where a claimant is ignorant of his rights. The only right to relief from the consequences of a mistake which was in the contemplation of the LR Committee was where there was a mistake of fact. It was fundamental to the approach of the LR Committee that it regarded the need to protect past payments from claims for repayment many years later by persons alleging ignorance of their rights as being satisfied by the absence of any cause of action, either in law or in equity, for repayment on the ground of mistake of law. In terms of the policy issues which arise, we consider that no sensible distinction can realistically be drawn between ignorance of the right to restitution on the ground of mistake of law and ignorance of the underlying rights which constitutes the mistake of law on which that right depends: cf para 220 above. Accordingly, with respect, we do not agree that cases of mistake of fact and cases of mistake of law can be equiparated (see para 236 above) so far as concerns the policy and effect of either the equitable rule or the recommendation of the LR Committee. It follows that, where, implementing the recommendation of the LR Committee, section 26(c) was enacted referring to an action for relief from the consequences of a mistake, Parliament meant by that phrase an action for relief from the consequences of a mistake of fact: see para 133 above. In neither the 1939 Act nor the 1980 Act, when section 26(c) was re enacted as section 32(1)(c), did Parliament attempt to address the distinct policy issues regarding limitation which arise when a claim is recognised for recovery of money paid under a mistake of law, as happened in Kleinwort Benson [1999] 2 AC 349. With that change in the law, the question arose for the first time whether the phrase action for relief from the consequences of a mistake in section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act covered not only claims for recovery based on mistake of fact but also claims based on mistake of law. The Appellate Committee in Kleinwort Benson held that it did, but proceeded on a mistaken understanding as to the state of the law prior to the enactment of the 1939 Act: paras 148 163 above. The only substantive reasoning in support of construing section 32(1)(c) as extending to claims for recovery of money paid under a mistake of law was by Lord Goff and Lord Hope. It is a remarkable feature of the case that the reasoning of all members of the Appellate Committee implicitly recognised that the effect of reading section 32(1)(c) as including claims for recovery based on mistake of law as well as mistake of fact would dramatically undermine the intention of Parliament in the 1939 Act and the 1980 Act to set out clear and readily applicable periods of limitation. We consider that the House of Lords erred in Kleinwort Benson in giving section 32(1)(c) this interpretation. Lord Reed and Lord Hodge question whether it is appropriate to consider this issue through the prism of the doctrine that statutes are to be taken to be always speaking. We think that it is helpful and appropriate to do so but, as they observe, nothing really turns on this. The guidance regarding the ambit of the always speaking doctrine is in fact concerned with the fundamental underlying issue of whether Parliament can be taken to have intended by a statutory provision passed at one point in time, using language directed to the circumstances at that time, to cover a new set of circumstances which has come into existence since then. As we understand it, Lord Reed and Lord Hodge agree that this is the fundamental issue raised by the decision in Kleinwort Benson regarding the application of section 32(1)(c): see paras 155 and 157 above. The issue of how broadly one should construe the language of the statutory provision to cover new matters arising after its enactment necessarily involves consideration of what inferences can be drawn from the language used and the circumstances of the enactment as to Parliaments policy intention in promulgating the provision. If the inference can be drawn that Parliaments policy intention was broad and the new matters are aligned with that broad intention and are covered by it, a court will be justified in concluding that the provision applies; conversely, if there is not sufficient congruence between the policy issues raised by the new matters and Parliaments intention as expressed when it enacted the provision, the provision does not apply. Since the case law on the always speaking doctrine addresses this question, we will make reference to it. In our view, the question to be posed is whether the phrase using the term mistake in section 26(c) of the 1939 Act (and re enacted in section 32(1)(c) of the 1980 Act), where in the legal context in 1939 and 1980 the word could only refer to a mistake of fact, should in the light of the change in legal doctrine made in Kleinwort Benson now be taken to include also a mistake of law. The ambit of the always speaking doctrine was explained by Lord Wilberforce in Royal College of Nursing of the United Kingdom v Department of Health and Social Security [1981] AC 800, 822: In interpreting an Act of Parliament it is proper, and indeed necessary, to have regard to the state of affairs existing, and known by Parliament to be existing, at the time. It is a fair presumption that Parliaments policy or intention is directed to that state of affairs. Leaving aside cases of omission by inadvertence, this being not such a case, when a new state of affairs, or a fresh set of facts bearing on policy, comes into existence, the courts have to consider whether they fall within the Parliamentary intention. They may be held to do so, if they fall within the same genus of facts as those to which the expressed policy has been formulated. They may also be held to do so if there can be detected a clear purpose in the legislation which can only be fulfilled if the extension is made. How liberally these principles may be applied must depend upon the nature of the enactment, and the strictness or otherwise of the words in which it has been expressed. The courts should be less willing to extend expressed meanings if it is clear that the Act in question was designed to be restrictive or circumscribed in its operation rather than liberal or permissive. They will be much less willing to do so where the subject matter is different in kind or dimension from that for which the legislation was passed. In any event there is one course which the courts cannot take, under the law of this country; they cannot fill gaps; they cannot by asking the question What would Parliament have done in this current case not being one in contemplation if the facts had been before it? attempt themselves to supply the answer, if the answer is not to be found in the terms of the Act itself. See also R (Quintavalle) v Secretary of State for Health [2003] 2 AC 687. In certain contexts it may be improper to give an extended interpretation to a word or phrase to treat it as applying to something outside Parliaments contemplation at the time of enactment. As Lord Steyn pointed out in R v Ireland [1998] AC 147, 158 with reference to The Longford (1889) 14 PD 34, [s]tatutes dealing with a particular grievance or problem may sometimes require to be historically interpreted. As read in light of the LR Committees Report on limitation periods on which the 1939 Act was based, the Act had two features which are relevant for present purposes. First, as a matter of general policy, in the interests of predictability, certainty and security of transactions, it re enacted the previous six year time limit for actions at common law for the recovery of money paid under a mistake. This was a continuation of the established policy of the Statute of Limitations of 1623 to promote finality, certainty and security of receipt of money, as emphasised by Sir Richard Collins MR in Molloy v Mutual Reserve Life Insurance Co (1906) 94 LT 756, 761 (see para 206 above). It also represents the principal policy to which effect was given in the 1939 Act, in light of which any derogation falls to be interpreted on a restrictive basis: see paras 263 266 above. It was in line with the general policy of the 1939 Act to enact and regulate limitation periods on a comprehensive and coherent basis. This policy objective was recognised in In re Diplock [1948] Ch 465, 514, where the Court of Appeal noted that the wording of section 2(1)(a) of the 1939 Act, which enacts a six year limitation period for claims in contract, was not entirely apt to cover claims in quasi contract to recover money paid under a mistake (or in unjust enrichment, as it would be categorised today), but nonetheless concluded that it should be so interpreted. In other words, the court considered that the policy of the 1939 Act to introduce certainty in relation to limitation was so strong that such claims were to be treated as falling within the scope of this provision. Secondly, section 26(c) of the 1939 Act was directed to addressing a very specific issue, ie modifying the ruling in Baker v Courage & Co Ltd regarding the time limit for an action at law to claim recovery of money paid under a mistake of fact, but on a narrow basis. The restriction of that common law action to recovery of money paid under a mistake of fact was well established in 1939; there was no equivalent claim in equity; and there was no call at the time for the ambit of the common law action to be expanded to cover recovery of money paid under a mistake of law. Even in equity, the courts were at pains to emphasise the difference between the sort of error of law which might be relevant to a claim for equitable relief (ie error of law as to private rights, where the analogy with mistake of fact was very close: see Cooper v Phibbs (1867) LR 2 HL 149, 170 per Lord Westbury; Earl Beauchamp v Winn (1873) LR 6 HL 223, 234 per Lord Chelmsford; and Ministry of Health v Simpson [1951] AC 251, 268 270), and error regarding general law. At paragraph 23 of its Report, the LR Committee made it clear that it was not recommending that limitation should be extended where a party had made a mistake about his rights. Therefore, it was not in Parliaments contemplation that the common law could be changed in the direction taken in Kleinwort Benson [1999] 2 AC 349. Moreover, the policy issues which would arise in relation to limitation if section 26(c) applied in respect of recovery of money paid under a mistake of law are of a wholly different scale and character from those which were confronted and debated by the LR Committee in its Report, focused as it was on the existing common law claim for recovery of money paid under a mistake of fact. The speeches in Kleinwort Benson itself make the difference plain. It flows from the process by which the common law develops and changes over time while at the same time adhering to a declaratory theory of the law according to which decisions have retrospective effect (see in particular [1999] 2 AC 349, 377 379 and 381 382 per Lord Goff). In our view, the House of Lords in Kleinwort Benson [1999] 2 AC 349, by changing the law to bring a new type of legal claim into existence, created a new state of affairs which did not fall within the intention or purpose of Parliament in enacting section 26(c) of the 1939 Act: (i) The new state of affairs did not fall within the same genus of facts as those by reference to which the expressed policy had been formulated. Mistake of law is something very different from mistake of fact. Mistake of law is a concept liable to change over time as the common law develops and changes, and to do so with retrospective effect, thereby wholly undermining the central policy of the 1939 Act and other Limitation Acts of achieving certainty after a fixed period of time. By contrast, mistake of fact is something fixed in time by reference to the facts which really were in existence at the time when the cause of action arose. As Lord Lloyd put it in Kleinwort Benson [1999] 2 AC 349 (p 393), [f]acts are immutable, law is not. The scale of disruption to the central policy of the Limitation Acts is completely different in the two cases; It is not possible to detect a clear purpose in the legislation which can (ii) only be fulfilled if the extension is made. On the contrary, interpreting mistake in the phrase the action is for relief from the consequences of a mistake as it applies to the common law action for recovery of money paid under a mistake to cover a mistake of law as well as a mistake of fact would defeat the clear primary purpose of the legislation, to produce certain time limits within which claims may be brought. It would also undermine the policy intention expressed in paragraph 23 of the LR Committees Report that time should not be extended in cases of ignorance of rights; (iii) The nature of the 1939 Act, to produce a comprehensive and effective limitation regime, as its principal policy, and the narrow and precise phraseology employed in section 26(c) (see paras 265 266 above), are both strong indications that the word mistake cannot, on a purposive construction, be construed to apply to a common law claim for recovery of money paid under a mistake of law. It is clear that this particular provision was designed to be restrictive and circumscribed in its operation rather than liberal or permissive, and much more circumscribed than the equitable doctrine of laches, which did not depend upon the claim in equity being founded upon mistake, in the sense of it being an integral part of the cause of action. Further, the language in section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act of a mistake being discovered, or discovered with reasonable diligence, in the context of a common law claim, is not apt to cover a mistake of law of a general kind, to which the common law claim now extends, pursuant to Kleinwort Benson. That is also true in relation to mistake of law in equity, where the emphasis was always on the analogy between mistake as to private rights and mistake of fact. Contrary to the observation of Lord Goff in Kleinwort Benson [1999] 2 AC 349, 388H 389A, the pre existing equitable rule did not apply to all mistakes, whether of fact or law. Equity was more nuanced than that, and it did not include a claim for simple recovery of money paid under a mistake of law: see Rogers v Ingham (1876) 3 Ch D 351, 355 per James LJ; (iv) The subject matter, an action at common law for money paid under a mistake of law, is different in kind and in the dimension of its implications from that for which the legislative provision was passed, to cover an action at common law for money paid under a mistake of fact. The debate regarding the merits of a change in the substantive law to allow recovery for mistake of law, reviewed in Kleinwort Benson, itself reveals the different issues of principle which arise in the two cases: see [1999] 2 AC 349, 371E 372A per Lord Goff ( as the majority judgments in Brisbane v Dacres [5 Taunt 143] show, the rule [in Bilbie v Lumley] was perceived, after due deliberation, to rest on sound legal policy the difficulties now faced in formulating satisfactory limits to a right to recover money paid under a mistake of law reveal that there was more sense in the rule than its more strident critics have been prepared to admit). Lord Reed and Lord Hodge have explained how Lord Goff and Lord Hope misunderstood the legal position as it existed when Parliament legislated in 1939. This had the effect that their reasoning in Kleinwort Benson regarding the interpretation of section 26(c) in relation to the new claim to recover money paid under a mistake of law was flawed, because they did not properly understand the limited object which Parliament sought to achieve in 1939 in enacting that provision: see para 272 above. Kleinwort Benson provides no other basis for applying section 26(c) of the 1939 Act and then section 32(1)(c) of the 1980 Act to mistakes of law. This flaw was compounded by their failure to appreciate that the major degree of uncertainty in the law which would be introduced by interpreting section 32(1)(c) of the 1980 Act and its predecessor section 26(c) of the 1939 Act as covering the new type of claim, which all members of the Appellate Committee identified would be the consequence, showed that such an interpretation was completely at odds with the policy and intent of both statutes. This latter point deserves emphasis. In Kleinwort Benson [1999] 2 AC 349, Lord Browne Wilkinson considered (p 364) that, on the footing that Lord Goff was correct in holding that section 32(1)(c) of the 1980 Act applies to actions for recovery of money paid under a mistake of law, the disruption to settled entitlements every time the law was changed or developed by judicial decision would be so great that the House of Lords ought not to make the change to the substantive law which the majority decided upon, to allow recovery of money paid under a mistake of law. He took that view even though he thought that would be a desirable reform of substantive law. As he said, the consequence would be that [o]n every occasion in which a higher court changed the law by judicial decision, all those who had made payments on the basis that the old law was correct (however long ago such payments were made) would have six years in which to bring a claim to recover money paid under a mistake of law; as a result, in his judgment the correct course would be for the House to indicate that an alteration in the law is desirable but leave it to the Law Commission and Parliament to produce a satisfactory statutory change in the law which, at one and the same time, both introduces the new cause of action and also properly regulates the limitation period applicable to it. In other words, Lord Browne Wilkinson recognised that the change in the substantive law, if the limitation position was as stated by Lord Goff, would be massively disruptive of settled transactions and would unduly undermine security of receipt of money on a very wide scale. Lord Lloyd of Berwick agreed with him. He emphasised the intense uncertainty which would follow from the conclusion of the majority in the case to change the substantive law, with transactions unsettled and liable to be reopened, a consequence which he viewed with alarm: [1999] 2 AC 349, 397 398. In our view, however, the logical conclusion should have been that the change in the substantive law was of such a character as fell outside the policy and intent of the 1939 Act and the 1980 Act and outside the meaning of section 26(c) and section 32(1)(c) respectively, on a purposive, always speaking, construction. Lord Reed and Lord Hodge challenge Lord Browne Wilkinsons reasoning on this point, on the footing that if their view that section 32(1)(c) is subject to a test of the discoverability of a mistake of law is accepted, the extent of disruption contemplated by him is reduced: para 240 above. But if, as we think, that test cannot plausibly be said to be part of the meaning which Parliament intended section 32(1)(c) to have, we fear that their challenge is misplaced. Indeed, it is in our view revealing that such an interpretation of section 32(1)(c) did not occur to any member of the Appellate Committee, who were addressing the meaning of the provision for the first time and without any preconceptions. In any event, it does not seem to us that their proposed reading of section 32(1)(c) does adequately deal with the points made by Lord Browne Wilkinson and Lord Lloyd. Clearly, there may be many cases where there is a long period of time, far exceeding the usual six year limitation period, between a payment being made on the basis of some settled common law rule and some later development in legal opinion which calls that rule into question to the threshold standard of discoverability which Lord Reed and Lord Hodge endorse. We consider that Lord Browne Wilkinsons point remains a good one. In our view, to apply section 32(1)(c) to payments made under mistake of law would give rise to levels of uncertainty which conflict with the policy objective stated by the LR Committee (see paragraph 7 of its Report) and the underlying policy of the 1939 Act and the 1980 Act as limitation statutes, and could not have been regarded by Parliament as acceptable. Lord Goff made the statement set out at para 154 above in which he recognised that great uncertainty in the law would arise from the application of section 32(1)(c) to claims for recovery of money paid under a mistake of law. We agree with the criticism of this passage by Lord Reed and Lord Hodge at para 155. With respect to Lord Goff, he omitted to consider the question of the application of section 32(1)(c) in terms of the object of the 1980 Act and to adopt a purposive construction in the light of that. In our view, if that had been done, he would have been constrained to accept that the points he himself made showed that to treat that provision as applicable would clearly undermine the policy of the 1980 Act, with the result that section 32(1)(c) could not bear the interpretation he sought to place on it. As he said, the dramatic consequences produced by a combination of the recognition of the new cause of action in Kleinwort Benson and an extended interpretation of section 32(1)(c) had not been appreciated at the time of the enactment (indeed, they were completely outside what was in Parliaments contemplation when it passed both the 1939 Act and the 1980 Act), and were of such a profound character as to call for legislative reform to provide for some time limit, as opposed to (in practice) a wholly indefinite limit. But this serves only to emphasise that his proposed reading of that provision was contrary to the policy of the enactments. Lord Hoffmann made similar points at p 401, in the passage set out at para 157 above. He noted that the combination of the change in substantive law to allow claims for recovery of payments made under a mistake of law and the application of section 32(1)(c) might be said to go too far in undermining security of transactions, and observed in that regard that [t]he most obvious problem is the Limitation Act, which as presently drafted is inadequate to deal with the problem of retrospective changes in law by judicial decision. We agree with the comment about this by Lord Reed and Lord Hodge at para 157. Thus, faced with the same dilemma as Lord Browne Wilkinson, Lord Hoffmann favoured changing the law on recovery of payments made under a mistake of law, notwithstanding that he recognised that the Limitation Act was inadequate to deal with retrospective changes of the law by judicial decision. But in our view this was a false dilemma. The proper conclusion to be drawn from this assessment was that section 32(1)(c) should not be construed to cover the new form of claim. It clearly fell outside the policy of the Act in relation to that provision, which was addressed specifically to claims for recovery of payments made under mistake of fact. Construing the provision as referring only to such claims, and not claims for recovery of money paid under mistake of law, would serve to maintain a proper balance of the public interest in the security of transactions, which would be assured after a limitation period of six years from the date of payment. Lord Hope indicated (p 417) that he thought the LR Committee intended the word mistake to extend to all mistakes of law, but this is not correct: see para 159 above. A proper reading of the Report leads to the opposite conclusion. Later in his speech (pp 417 418) he made the statement set out at para 162 above. Although he accepted that time may run on for a very long time before a mistake of law could have been discovered with reasonable diligence and there was potential for uncertainty, in his view this was a problem for the legislature to resolve. He observed that the problem did not arise under the statutory limitation regime for Scotland, since the relevant prescriptive period of five years could be extended only where the creditor was induced to refrain from making a claim by fraud or error induced by the debtors words or conduct or was under a legal disability. Similar points may be made about this part of Lord Hopes reasoning as in relation to Lord Goffs speech. In our view, Lord Hopes own account indicates why his interpretation of section 32(1)(c) is contrary to the policy of the 1980 Act, read as a whole and also specifically in relation to the provision itself. As he acknowledged, his interpretation of the provision creates very long periods before limitation could apply (and, of course, since there will be new judicial decisions in future, any of which might effect a relevant change in the law, any limitation period which appears to be closed could always be reopened to run again). The potential for uncertainty thereby created was indeed very great. The conclusion from this ought to be that mistake of law as a ground of recovery of money paid, in an action at common law, was never contemplated by Parliament to be capable of falling within section 32(1)(c) and that a purposive interpretation of that provision, in its statutory context, means that it cannot be construed in that way. The comparison with the position in Scotland underlines this point, for it is difficult to see why Parliament would have wished to produce such a radical difference of limitation outcome in the two jurisdictions in relation to a cause of action of a character which is equally viable and capable of vindication on both sides of the border (unlike purely equitable claims in English law). Moreover, in our view, when the context of the 1939 Act and the 1980 Act as limitation statutes designed to produce reasonably determinate limits for the bringing of claims and the specific purpose of section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act are brought into account, the argument based on the language of those provisions and the use of the word discovered, although dismissed by Lord Goff, acquires particular force as indicating that the provisions were not intended to apply to cases of payment under mistake of law. It can readily be seen that the language of discovery is apt in the context of a limitation statute when speaking of discovery of a mistake of fact. It is far more difficult to square it with a deemed mistake of law produced by the retrospective effect of a later judicial decision. This is indeed what led to the conundrums debated in Deutsche Morgan Grenfell [2007] 1 AC 558 and then again in the judgment of Lord Reed and Lord Hodge. In our judgment, therefore, there was a clear misstep by the House of Lords in Kleinwort Benson [1999] 2 AC 349 when it construed section 32(1)(c) as it did. In our view, the decision that section 32(1)(c) applies to common law claims based upon mistake of law was wrong, as a matter of construction of the provision. This is where, with respect, we part company with Lord Reed and Lord Hodge. In the next part of their judgment (paras 165 and following) they consider the decision of the House of Lords in Deutsche Morgan Grenfell [2007] 1 AC 558. Since no one in that case raised the issue of whether the House of Lords in Kleinwort Benson was right to construe section 32(1)(c) as applying to payments under a mistake of law, the members of the Appellate Committee all proceeded on the footing that it did so apply. The question therefore was when such a mistake, as produced by the retrospective effect of a court decision delivered after the payment was made, could be regarded as being capable of discovery for the purposes of the section. The majority view in Deutsche Morgan Grenfell was that the mistake could only be discovered when the later court decision was made. Lord Brown dissented, saying that the possibility of a mistake (ie the possibility of the reversal of the rule of law on the basis of which the claimant made a payment) would be capable of being identified before the reversal by the later court decision actually occurred and it was from when it could be discovered that the prospect of this occurring was sufficiently developed that the limitation period would run. Upon reconsideration of this point, Lord Reed and Lord Hodge prefer the solution proposed by Lord Brown. They conclude that this reflects the proper interpretation of section 32(1)(c) on a purposive approach in line with Parliaments intention in enacting section 26(c) of the 1939 Act. That is to say, section 32(1)(c) does apply to claims for recovery of payments made under a mistake of law, but on the basis that where the mistake arises from the retrospective effect of a later court decision the mistake is to be taken to have been capable of discovery when the prospect that the law would be changed was sufficiently well developed. In this way, Lord Reed and Lord Hodge seek to develop a new argument, not set out in Kleinwort Benson, why the word mistake in the critical phrase in section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act should be interpreted to cover claims based on mistake of law as well those based on mistake of fact, albeit that was the only type of claim to which these provisions were directed when enacted. We do not agree that this is the correct interpretation of section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act. Ingenious though the reasoning is to square the concept of discoverability of a mistake with the effect produced by the retrospective effect of a change in the law, in our opinion it still produces a result which is seriously at odds with the policy and intent of those provisions. Further, it seems to us, with respect, that the argument presented in support of this interpretation (see para 236(3) above) is excessively linguistic. The ordinary meaning of words, to which Lord Reed and Lord Hodge make appeal, is an inadequate tool for this process of construction, when the words in question cannot possibly have had the meaning now contended for when enacted. Instead, as set out above, the focus should be on purposive construction of the provision, arrived at in light of consideration of the policy of the limitation statutes in which it appeared and the object Parliament sought to pursue in enacting the particular provision in that context. Although in Kleinwort Benson [1999] 2 AC 349 the House of Lords decided that for the purposes of the law of unjust enrichment there was no sufficient difference between mistake of fact and mistake of law to justify distinguishing them as the basis for recovery of money paid, that was a matter of judicial policy in the development of the common law. It did not reflect any legislative policy adopted by or attributable to Parliament relating to the Limitation Acts. When Parliament enacted section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act it addressed the law as it stood at the time, in which the only cases in which recovery was possible was where the payment had been made on the basis of a mistake of fact. Parliament has never addressed the distinct and difficult policy issues which arise in the context of these provisions when one moves from recovery in the case of mistake of fact to recovery in the case of mistake of law, and in our view it is not possible to assume that its policy in enacting those provisions covered the latter type of case. There are three striking features of the latter class of case to which, in our view, Lord Reed and Lord Hodge do not give sufficient weight. First, any application of section 32(1)(c) to mistakes of law which include judicial rewriting of the law is bound to risk opening up very old claims indeed. This was not possible prior to Kleinwort Benson, because the claim would have had to have been based on mistake of fact. Although section 32(1)(c) involves some departure from a clear and certain limitation cut off of six years in that sort of case, this is a very modest extension the potential for application of which is likely to narrow considerably as time goes by and the underlying true facts come to light. The opposite is true in the case of mistakes of law identified by retrospective application of later judicial decisions which change the law. Particularly in the field of the common law, the scope for the law to be changed by judicial decision increases as time goes by and the law is perceived as no longer reflecting social values or legal policy, a gradual head of steam builds up among judges and commentators calling for it to be changed and then the courts eventually respond. No purposive interpretation of section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act or application of the always speaking doctrine could lead to the conclusion that Parliament intended, by a new provision in a Limitation Act, to open up such stale claims. One example serves to illustrate the point. In 2018, in Rock Advertising Ltd v MWB Business Exchange Centres Ltd [2018] UKSC 24; [2019] AC 119, this court was asked to depart from the much criticised decision of the House of Lords in Foakes v Beer (1884) 9 App Cas 605. The doctrine from which the court was asked to depart had only reluctantly been affirmed out of loyalty to the Court of Appeal in Pinnels case (1602) 5 Co Rep 117a. If the court had departed from Foakes v Beer, this would have undermined settled payments made for over 130 years, or 416 years if Pinnels case had also been overruled. But claimants for repayment (or their estates if individuals) would have had until 2024 to bring their claims, with no limitation defence to impede them. In Kleinwort Benson [1999] 2 AC 349 Lord Lloyd gave a number of other examples (p 393). The decision in that case to depart from the rule of law laid down in 1802 in Bilbie v Lumley is itself a further example. Lord Reed and Lord Hodge seek to meet this point by saying that mistakes of fact might emerge after a long period of time, and give the example (at para 228) of In re Baronetcy of Pringle of Stichill [2016] UKPC 16; [2016] 1 WLR 2870. It was not a case about a common law claim in mistake nor about the interpretation of section 32(1)(c). We would make three points about this example. (i) The case arose in unusual circumstances and is one of the most extreme forms of mistake of fact case one can imagine. The more usual type of mistake of fact case is one where the mistake is liable to emerge after a much shorter period, by contrast with what happens in relation to mistake of law: para 290 above. (ii) It seems to us that the reasoning of Lord Hodge for the Board of the Privy Council in this case tends to demonstrate that Parliament cannot have intended section 32(1)(c) to apply in the case of mistakes of law. It involved a very late challenge to entitlement to the honour of a baronetcy in which the modern discovery of DNA and the use of DNA testing to determine parentage had the effect of unsettling the operation of various rules of law which previously would have made such a challenge very difficult indeed after the baronetcy had been held by an individual for a very long period. The particular form of claim was not one to which any limitation period had been enacted by Parliament, either in English law (para 39) or Scots law (paras 50 61). The policy concern at potential disruption of property transactions in other cases was so obvious that the Board felt that it should call attention to the lacuna in the limitation statutes (para 85). Yet the reasoning of Lord Reed and Lord Hodge in the present case would have the effect of exacerbating this problem by extending the application of section 32(1)(c) to cover mistakes of law. (iii) Most importantly, if one imagined a relevant common law claim arising from facts similar to those in the Stichill Baronetcy case, although it would be an unusual case it would fall squarely within the meaning which Parliament intended section 32(1)(c) to have, as involving a mistake of fact. But the question in the current case is different. It is whether a mistake of law, which has arisen only because of a change in the law long after a relevant payment was made, falls within the intention of Parliament in the legislation it enacted, even though Parliament could never have contemplated that it did. In our view, for the reasons we have given, it is not possible to draw such an inference. The unusual circumstances of the Stichill Baronetcy case were such as to unsettle only one transaction, the inheritance of the baronetcy, and one small set of people were interested in that question. But the extension of section 32(1)(c) to cover payments made under mistake of law will tend to unsettle whole classes of transactions, such as were governed by rules of law of general application. Secondly, the phenomenon of judicial decisions changing the law occurs across a wide range of cases. As was pointed out by Lord Browne Wilkinson and Lord Lloyd in Kleinwort Benson [1999] 2 AC 349 (at pp 363 364 and 393 394, respectively), it extends from situations in which rules of the common law are derived from practice and the understanding of lawyers skilled in the field, through decisions of lower courts being overturned by superior courts (a very common feature of the legal system), to this court deciding in comparatively rare cases to re open and overturn previous decisions of itself or the House of Lords. The law is often settled by a decision of the Court of Appeal, or even at first instance, as was thought to have happened in relation to floating charges in Siebe Gorman & Co Ltd v Barclays Bank Ltd [1979] 2 Lloyds Rep 142: see In re Spectrum Plus Ltd (in liquidation) [2005] 2 AC 680, paras 1 17 per Lord Nicholls. If this court (or the Court of Appeal, in the case of a first instance decision) concludes that the earlier decision is wrong, then it will overrule it, and with retrospective effect, with little scope for considering the risks to the security of settled transactions. In Kleinwort Benson the House of Lords departed from law which had been settled by a lower court in Bilbie v Lumley. Again, it seems to us that neither a purposive interpretation of the relevant provisions nor the application of the always speaking doctrine could lead to the conclusion that Parliament intended that such uncertainty and potential for undermining the security of transactions should be introduced into the law across such a wide range of cases, least of all in a Limitation Act, the general object of which is to achieve the opposite effect: see para 271 above. The extent of the contradiction between the uncertainty created by alterations in the law made by the courts and the policy of the Limitation Acts was already great in 1939, since common law rules established by professional practice or decisions of courts up to and including the Court of Appeal could always be changed. The extent of the contradiction has been greatly increased with the 1966 Practice Statement (Practice Statement (Judicial Precedent) [1966] 1 WLR 1234), which has the effect that even rules established by the House of Lords or the Supreme Court can now be changed with retrospective effect. Therefore, in our view, the reasons why section 26(c) of the 1939 Act and section 32(1)(c) of the 1980 Act cannot be construed as applying to mistakes of law have become even stronger than they were in 1939. Lord Reed and Lord Hodge say that the 1966 Practice Statement was not in the mind of Parliament in 1939 and suggest that reference to it is therefore inapposite: para 238. We respectfully doubt that. The court has to infer what should be regarded as the true intention of Parliament in enacting section 26(c) of the 1939 Act (and then re enacting that provision in section 32(1)(c) of the 1980 Act) as to whether it should apply in new circumstances which Parliament did not have in its contemplation in 1939. To do that, the court has to take account of the entire impact of the new circumstances on the policy underlying Parliaments choice to enact section 26(c) in the terms it did. It seems to us that the major transformation of the legal landscape produced by the 1966 Practice Statement and the major change in doctrine in Kleinwort Benson both have to be brought into consideration to address that question. We note that Lord Reed and Lord Hodge at para 241 refer in similar fashion (correctly in our view, as a matter of principle) to the change of position defence, which also developed after 1939. So far as that defence is concerned, we do not consider that it provides an adequate answer to the policy objections to treating section 32(1)(c) as covering mistake of law. We cannot see how the merits of an alleged change of position could be examined over intervening decades or centuries. Moreover, many public authority defendants, including the Revenue, may be unlikely in practice to be able to rely on it. The majority in Kleinwort Benson likewise referred to the new defence of change of position as a possible answer to, or at least amelioration of, the problems of injustice and uncertainty to which their interpretation of section 32(1)(c) gave rise. However, experience, including claims in the field of tax as affected by EU law for recovery of payments made under mistakes of law dating back to 1973, has shown that this hope has not been realised. Thirdly, as is clear from the LR Committees Report, section 26(c) of the 1939 Act (and now section 32(1)(c) of the 1980 Act) enacts what was previously largely an equitable principle, namely that relief should be available in the occasional case where the particular circumstances of the claimant would otherwise render the rigid application of the law unconscionable. Thus it would be unconscionable for claimants to have time running against them when, either because they were labouring under a fraud or, because of a mistake as to the facts, they were unaware of their cause of action. The occasional claimant thus disadvantaged could rely upon the exceptional extension of the running of time. But if section 32 is applied to extend time where there has been a retrospective judicial change in the law, then every potential claimant is benefitted by the exception. By definition every potential claimant was suffering from the same deemed mistake when making the relevant payment. In the make believe world view necessitated by the need to give retrospective effect to judicial law making, no one knew what the law then really was on the point in issue. It seems to us that to extend the application of these provisions to this class of case goes well beyond the narrow equitable principle which was intended to apply. As we have noted, the equitable principle grew from the idea of the unconscionability of a defendant relying on his own fraud and was given a modest extension to cover individual cases of mistake of fact. By contrast, a claim based on a deemed mistake which has arisen only because of a retrospective change in the law and which affects all cases within the purview of the rule of law which is overruled lies very far indeed from any concept which could be grounded in the equitable principle which the LR Committee identified and which Parliament intended to apply to common law claims. In our view, the approach of Lord Brown in Deutsche Morgan Grenfell [2007] 1 AC 558, which Lord Reed and Lord Hodge endorse, does not provide an answer to these objections. Plainly, there may be a very long period when a rule of law is taken to be established by professional practice or judicial decisions before the threshold of discoverability proposed by Lord Brown to suggest it might be wrong is crossed. Accordingly, even though Lord Browns approach ameliorates to some degree the conflict between section 32(1)(c) and the basic object of the Limitation Acts which arises when that provision is taken to apply to mistakes of law, it does so only to a very limited and inadequate extent. There are several additional reasons which reinforce our view that it is not plausible to identify Lord Browns interpretation of section 32(1)(c) as representing the intention of Parliament in any genuine sense, including the extended sense to which the always speaking doctrine refers: (i) The meaning which Parliament intended section 26(c) of the 1939 Act and then section 32(1)(c) of the 1980 Act to bear is clear from consideration of the context in which they were enacted. Having identified that the House of Lords in Kleinwort Benson [1999] 2 AC 349 erred in departing from that meaning, it seems to us that the proper course is to correct the error by reinstating the meaning Parliament intended. In our opinion it is not appropriate for this court to devise a half way house position which falls short of fidelity to Parliaments intention, and which only nibbles at the edge of the problems of unlocking very stale claims to which the mistaken interpretation gives rise; (ii) Section 32(1)(c) is an exception to the general object of the Limitation Act, and as such should be given a restrictive construction; (iii) The test of discoverability proposed by Lord Brown is itself very uncertain, in a way that the test for discoverability of whether there has been a mistake as a matter of fact is not. The identification of a point in time, earlier than when the relevant claim was actually launched, when such a claim became worth pursuing requires a deeply speculative process of hypothetical fact finding. It is not plausible to suppose that Parliament intended to adopt this as the criterion to be applied in a Limitation Act, ie in a statute which has the object of producing certainty by application of simple rules which also offer the prospect of resolution of disputes without the need for litigation. In any given case it may be very difficult to say whether Lord Browns threshold of discoverability has been crossed or not. The application of his test will often require a wide ranging investigation at trial of something as inherently vague and intangible as the state of professional opinion as it changes year by year over what may be a very long period. It is unclear whether expert evidence would be of much assistance for such a speculative investigation into legal history. Moreover, the more one focuses on what was reasonable to expect of one claimant or particular type of claimant, as distinct from the general understanding of the legal profession, the greater the range of cases in which the court will have to produce speculative and uncertain judgments as to whether the relevant threshold of discoverability has been passed. Again, therefore, this tends to undermine the principle of certainty which Parliament and the LR Committee intended should be upheld; (iv) As the discussions in Kleinwort Benson, Deutsche Morgan Grenfell and FII (SC) 1 demonstrate, the concept of discoverability becomes very strained when applied in relation to mistake of law produced by the retrospective application of a later judicial decision which changes the law. It has to be taken to a very rarefied and abstract level to adapt it to apply in such a case. It is an odd kind of discoverability when the thing being discovered, or revealing the supposed mistake, has not yet happened when the relevant payment is made. It is not plausible to suppose that Parliament intended the Limitation Act to operate on this basis. The analogy with mistake of fact is not at all persuasive: see para 274(i) above. In the case of an alleged mistake of fact, the fact either has or has not occurred; its occurrence does not depend upon retrospective effects of judicial acts in the future; (v) It is no comfort that in those cases where the law has not changed section 32(1)(c) is unlikely to cause limitation difficulties, because the true law will usually have been reasonably discoverable by taking legal advice. This just indicates that the reality is that there is only practical scope for section 32(1)(c) to have an effect when the law is changed retrospectively by judicial decision, so Parliaments intention as to its meaning and effect should properly be tested by reference to that class of case; (vi) The interpretation of section 32(1)(c) proposed by Lord Brown produces arbitrary and unfair distinctions which we do not consider Parliament can have intended to be drawn. Claimants who are by a retrospective change in the law enabled for the first time to make a claim in contract or in tort get no benefit at all from the provision. They must bring their claim within the primary limitation period running from the date when they first had a cause of action. This is because their claim will not be based upon mistake of law, as an essential element in the cause of action, which is all that section 32(1)(c) applies to. Nonetheless a deemed mistake of law occurring in this way may well be the reason why they did not claim sooner. Our conclusion regarding the proper interpretation of section 32(1)(c) would open the door to a departure from Kleinwort Benson [1999] 2 AC 349 on that issue under the 1966 Practice Statement. In our view, it would be appropriate for the Practice Statement to be applied to restore the proper interpretation of section 32(1)(c) which we consider Parliament intended, as set out above. We express our views shortly, as we are in a minority so far as concerns reversing Kleinwort Benson by construing mistake in section 32(1)(c) to mean only a mistake of fact, in accordance with the law as it stood in 1939 and 1980. In our judgment, for the reasons we have set out, the decision in Kleinwort Benson that section 32(1)(c) applies to mistakes of law was wrong for reasons of much greater solidity and significance than a mere intellectual difference of opinion. The reasoning in Kleinwort Benson is in our respectful view gravely undermined by an underlying view of the equitable antecedents to what is now section 32(1) which cannot be squared with previous authority and by an apparent failure to weigh in the balance how serious a departure from the overall policy of the 1980 Act is involved in a conclusion that section 32(1)(c) does apply to claims based upon a mistake of law. Furthermore the readiness of the House of Lords in both Kleinwort Benson and Deutsche Morgan Grenfell to acknowledge common law claims based on mistake of law where settled law had been changed with retrospective effect, and that section 32(1)(c) applied to such claims, was heavily based upon a hope that Parliament would remedy the unsatisfactory consequences, a hope which has now clearly been shown to have been misplaced, save to a limited degree in relation to tax. An important consideration underlying the Practice Statement is that where possible past transactions should not be rendered uncertain or insecure. As the Practice Statement says, in deciding whether it is right to depart from a previous decision of the House of Lords (or, now, this court) the court will bear in mind the danger of disturbing retrospectively the basis on which contracts, settlements of property and fiscal arrangements have been entered into . The greater the degree of such disruption, the less will it be regarded as acceptable for the court to change the law for the future. It is possible that some past transactions might be unsettled by changing the interpretation of section 32(1)(c) adopted in Kleinwort Benson; however, for the reasons we have explained, the application of section 32(1)(c) to cases of mistake of law will unsettle past transactions and will generate such uncertainty to a very much greater degree. Changes in the law produced by higher courts reversing decisions of lower courts or correcting professional practice are commonplace. The period of time before such a decision is produced, and in which parties will have entered transactions on the basis of the previous understanding of the law, may be very long. Further, this open ended prospect of unravelling past transactions without limit of time is likely to act as a very serious and chilling constraint upon any departure from an earlier decision by the House of Lords or this court under the 1966 Practice Statement. The older the decision from which departure is being considered, the greater the peril to settled transactions, and the greater the difficulty which this court will face in assessing whether that peril is sufficient to prohibit an otherwise worthwhile change. The speeches of Lord Browne Wilkinson and Lord Lloyd in Kleinwort Benson [1999] 2 AC 349 illustrate this point. Absent their concerns about the absence of an effective limitation cut off, they would both have wished to support the substantive change in the law of unjust enrichment produced by the majority. The new circumstances in which the proper interpretation of section 32(1)(c) falls to be assessed as a statutory provision which is always speaking include not just the change in the law in Kleinwort Benson but the change in the practice of the House of Lords effected by the 1966 Practice Statement. Parliament cannot have intended that section 32(1)(c) should have the practical effect of acting as a serious impediment to desirable judicial modernisation of the common law pursuant to the 1966 Practice Statement. Accordingly, it is our view that correction of the wrong turn taken in Kleinwort Benson regarding the true interpretation of section 32(1)(c) is justified pursuant to the Practice Statement. It would tend to reduce, rather than promote, insecurity of transactions across time. It would also secure the ability of this court to review and amend substantive legal doctrine in the interests of promoting doctrinal coherence and keeping the law broadly in line with changing social expectations and values. Finally, since our view regarding the proper interpretation of section 32(1)(c) is not accepted by Lord Reed and Lord Hodge and the majority in the court, we address the position which arises under the Practice Statement if their interpretation of section 32(1)(c) prevails, as it does. On their interpretation, there is still considerable scope for uncertainty in the law to arise and unsettle transactions dating far back in time. Their interpretation, following Lord Browns approach in Deutsche Morgan Grenfell [2007] 1 AC 558, is also productive of a degree of uncertainty because of the test of discoverability of a mistake which they say should apply. To that extent, therefore, it seems to us that the argument for applying the Practice Statement in relation to both Kleinwort Benson and Deutsche Morgan Grenfell is weakened. Nonetheless, we consider that their interpretative approach better reflects the legislative purpose in the context of the Limitation Act of securing a degree of certainty in relation to past transactions than does that of the majority in Deutsche Morgan Grenfell [2007] 1 AC 558 and the approach which the Appellate Committee in Kleinwort Benson assumed would apply. Therefore, on the footing that the interpretation of section 32(1)(c) preferred by Lord Reed and Lord Hodge must be accepted, we agree that it is appropriate to apply the Practice Statement in relation to those decisions and in favour of now adopting their interpretation.

This appeal arises in the course of long running proceedings known as the Franked Investment Income (FII) Group Litigation. The FII Group Litigation brings together many claims concerning the way in which advance corporation tax and corporation tax used to be charged on dividends received by UK resident companies from non resident subsidiaries. The Respondents to this appeal are claimants within the FII Group Litigation whose cases have been selected to proceed as test claims on certain common issues (the Test Claimants). These issues are being determined in phases, with the courts decisions affecting not just the other claims within the FII Group Litigation, but potentially also a number of other sets of proceedings brought by corporate taxpayers against the Commissioners for Her Majestys Revenue and Customs (HMRC). The Test Claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached the EU Treaty provisions which guarantee freedom of establishment and free movement of capital. They seek repayment by HMRC of the tax wrongly paid, together with interest, dating back to the UKs entry to the EU in 1973. Restitutionary claims for the recovery of money must normally be brought within six years from the date on which the money was paid. As an exception to that general rule, section 32(1)(c) of the Limitation Act 1980 provides that, in respect of an action for relief from the consequences of a mistake, the limitation period only begins to run when the claimant has discovered the mistake or could with reasonable diligence have discovered it. Before the Court of Appeal, the Test Claimants argued that, where a claimant is seeking to recover money paid under a mistake of law, the effect of section 32(1)(c) is to postpone the commencement of the limitation period until such time as the true state of the law is established by a judicial decision from which there lies no right of appeal. In their cases, the Test Claimants said that this was when, in 2006, the Court of Justice of the European Union decided that relevant aspects of the UK tax regime were incompatible with EU law. HMRC argued that time instead began to run in 2001, when the Court of Justice decided that other aspects of the UK tax regime breached EU law. The Court of Appeal found in favour of the Test Claimants on this issue. On appeal to the Supreme Court, HMRC argued that section 32(1)(c) of the Limitation Act 1980 applies only to mistakes of fact and not to mistakes of law, or alternatively that the Test Claimants could reasonably have discovered their mistake more than six years before they issued their claims in 2003. On either approach, a proportion of the claims would be time barred. The Supreme Court unanimously allows the appeal, but for differing reasons. The majority (Lord Reed, Lord Hodge, Lord Lloyd Jones and Lord Hamblen) hold that section 32(1)(c) of the Limitation Act 1980 applies to claims for the restitution of money paid under a mistake of law, with time beginning to run when the claimant discovers or could with reasonable diligence have discovered their mistake in the sense of recognising that they have a worthwhile claim. It leaves the application of that test to the facts of this case for the High Court, after the parties have had an opportunity to amend their pleadings. The minority (Lord Carnwath, Lord Briggs and Lord Sales) would have held that section 32(1)(c) has no application to mistakes of law. Lord Reed and Lord Hodge give the main judgment, with which Lord Lloyd Jones and Lord Hamblen agree. Lord Briggs and Lord Sales give a partially dissenting judgment, with which Lord Carnwath agrees. Should HMRC be allowed to argue that section 32(1)(c) does not apply to mistakes of law? The Court rejects the Test Claimants various objections to HMRC arguing at this stage of the proceedings that section 32(1)(c) of the Limitation Act 1980 does not apply to mistakes of law. Cause of action estoppel is a legal doctrine which stops a party from raising points which might have been but were not raised and decided in earlier proceedings [61] [62]. As it operates only to prevent the raising of points which were essential to the existence or non existence of a cause of action, and the effect of limitation instead is to render an otherwise valid claim unenforceable, this doctrine does not prevent HMRC from making their current challenge [63]. Issue estoppel is a related legal doctrine which stops a party from raising points which were not raised in earlier proceedings or were raised unsuccessfully [64] [68]. As the question of when the limitation period commenced was not argued or determined in the first phase of the FII Group Litigation, and as it would not have been possible for HMRC to make their current limitation challenge before the lower courts, this doctrine does not prevent HMRC from making that challenge now [69]. Further, HMRCs challenge does not amount to an abuse of process, when seen in the context of group litigation which raises novel issues of unparalleled complexity, and which was the subject of case management decisions as to the order in which these issues were to be addressed [78] [79]. It is readily understandable why in the first phase of the litigation HMRC focused on arguments which, if successful, would have made it unnecessary to mount this wider challenge [80]. On the basis of those factors, as well as the substantial value of the claims, the importance of the issue to other claimants both within and outside the FII Group Litigation, and the potential to remedy any prejudice through an order for costs, the Supreme Court allows HMRC to withdraw their concession that section 32(1)(c) applies to mistakes of law, and now to make the contrary case [94] [100]. That case places in question two of the most important decisions on the law of limitation of recent times: Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2006] UKHL 49 (Deutsche Morgan Grenfell) and Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (Kleinwort Benson) [1], [172]. What is the test for the discoverability of a mistake under section 32(1)(c)? In Deutsche Morgan Grenfell, the House of Lords tied the date of discoverability of a mistake of law to the date when the truth as to whether the claimant has a well founded cause of action is established by a decision of a court of final jurisdiction [167] [170], [213]. Section 32(1)(c) cannot be intended to have that effect, as limitation periods apply regardless of whether the substance of the claim is disputed, and regardless of whether there is in truth a well founded cause of action [177] [179], [199] [202], [213]. Such an approach also has the illogical consequence that mistakes are not discoverable by a claimant until after he has issued a claim on the basis of the mistake [173] [174], and perpetuates the problems associated with distinguishing between matters of fact and matters of law [195], [213], [250]. Given those very unfortunate consequences, for which there is currently no prospect of Parliament enacting a legislative solution, it is appropriate for the Supreme Court to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [250] [253]. The correct approach is that time begins to run under section 32(1)(c) when the claimant discovers, or could with reasonable diligence discover, his mistake in the sense of recognising that a worthwhile claim arises [193], [209]. That approach brings section 32(1)(c) into line with section 32(1)(a), and with other analogous provisions of the 1980 Act [180] [196], [213]. Does section 32(1)(c) apply to mistakes of law? Section 32(1)(c) applies to mistakes of law, as the House of Lords decided in Kleinwort Benson. Although that decision was not supported by convincing reasoning [148] [161], and although when section 32(1)(c) was enacted it was not contemplated that it might extend to actions for the restitution of money paid under a mistake of law, the ordinary meaning of the words of that provision include such actions [220] [221], [242] [243]. Excluding claims based on a mistake of law would frustrate the purpose of section 32(1)(c), which is to relieve claimants from the necessity of complying with a time limit at a time when they cannot reasonably be expected to do so [220] [221], [242] [243]. Including such claims does not have unacceptable consequences for legal certainty, particularly now that the approach to discoverability in Deutsche Morgan Grenfell is departed from [225] [229], [242] [243]. How should the test for discoverability of a mistake under section 32(1)(c) be applied to the facts of this case? The Court of Appeal applied the approach to discoverability wrongly established in Deutsche Morgan Grenfell, such that HMRCs appeal must be allowed [254]. The Supreme Court cannot, however, determine in the abstract the point in time when the Test Claimants could with reasonable diligence have discovered their mistake. That question is left for the High Court to determine, after the parties have had an opportunity to amend their pleadings [255]. Dissenting judgment In their partially dissenting judgment, Lord Briggs and Lord Sales conclude that section 32(1)(c) does not apply to payments made on the basis of a mistake of law [258]. They consider that the House of Lords was wrong to decide otherwise in Kleinwort Benson [274] [285] and that the proper course now is to overrule that decision [298], [303]. Any application of section 32(1)(c) to mistakes of law which include judicial rewriting of the law is bound to risk opening up very old claims [289] across a wide range of cases [293], going well beyond the narrow equitable principle which was intended to apply [296]. This introduces large inroads into the overall purpose of the legislation by undermining legal certainty [259]. The approach taken by the majority to the issue of discoverability does not provide an adequate answer to these objections [278], [297] and could prove unfair and unworkable in practice [259], [298]. On the footing that the majoritys interpretation of section 32(1)(c) has prevailed, however, Lord Briggs and Lord Sales agree that it is appropriate to depart from the decision in Deutsche Morgan Grenfell in relation to discoverability [304].

long

On 2 December 2010 the Swedish Prosecution Authority (the Prosecutor), who is the respondent to this appeal, issued a European Arrest Warrant (EAW) signed by Marianne Ny, a prosecutor, requesting the arrest and surrender of Mr Assange, the appellant. Mr Assange was, at the time, in England, as he still is. The offences of which he is accused and in respect of which his surrender is sought are alleged to have been committed in Stockholm against two women in August 2010. They include sexual molestation and, in one case, rape. At the extradition hearing before the Senior District Judge, and subsequently on appeal to the Divisional Court, he unsuccessfully challenged the validity of the EAW on a number of grounds. This appeal relates to only one of these. Section 2(2) in Part 1 of the Extradition Act 2003 (the 2003 Act) requires an EAW to be issued by a judicial authority. Mr Assange contends that the Prosecutor does not fall within the meaning of that phrase and that, accordingly, the EAW is invalid. This point of law is of general importance, for in the case of quite a number of Member States EAWs are issued by public prosecutors. Its resolution does not turn on the facts of Mr Assanges case. I shall, accordingly, say no more about them at this stage, although I shall revert briefly to them towards the end of this judgment. Part 1 of the 2003 Act was passed to give effect to the Council of the European Union Framework Decision on the European arrest warrant and surrender procedures between Member States of the European Union 2002/584/JHA (the Framework Decision). I annexe a copy of the English version of the Framework Decision to this judgment. As can be seen, the phrase judicial authority is used in a number of places in the Framework Decision. In particular it is used in article 6, which provides: 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. It is Mr Assanges primary case, as presented by Miss Dinah Rose QC, that judicial authority bears the same meaning in the Framework Decision as it bears in the 2003 Act, so that the Prosecutor does not fall within the definition of issuing judicial authority within article 6 of the Framework Decision. Alternatively Miss Rose submits that, if judicial authority in article 6 of the Framework Decision has a meaning wide enough to embrace the Prosecutor, it has a different and narrower meaning in the 2003 Act. She seeks to support that meaning by reference to parliamentary material. The issue Miss Rose contends that a judicial authority must be a person who is competent to exercise judicial authority and that such competence requires impartiality and independence of both the executive and the parties. As, in Sweden, the Prosecutor is and will remain a party in the criminal process against Mr Assange, she cannot qualify as a judicial authority. In effect, Miss Roses submission is that a judicial authority must be some kind of court or judge. Miss Clare Montgomery QC for the Prosecutor contends that the phrase judicial authority, in the context of the Framework Decision, and other European instruments, bears a broad and autonomous meaning. It describes any person or body authorised to play a part in the judicial process. The term embraces a variety of bodies, some of which have the qualities of impartiality and independence on which Miss Rose relies, and some of which do not. In some parts of the Framework Decision the term judicial authority describes one type, in other parts another. A prosecutor properly falls within the description judicial authority and is capable of being the judicial authority competent to issue an EAW under article 6 if the law of the State so provides. Judicial authority must be given the same meaning in the 2003 Act as it bears in the Framework Decision. The approach to the interpretation of Part 1 of the 2003 Act Part 1 of the 2003 Act has unfortunately spawned more than its share of issues of law that have reached the highest level. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67; [2006] 2 AC 1 Lord Bingham of Cornhill remarked at para 8 that interpretation of Part 1 of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Hope of Craighead at para 24 adopted what might appear to be a conflicting approach. He expressed the view that the task of interpreting Part 1 so as to give effect to the Framework Decision should be approached on the assumption that, where there were differences, these were regarded by Parliament as a necessary protection against an unlawful infringement on the right to liberty. Both Lord Bingham and Lord Hope in Dabas v High Court of Justice in Madrid, Spain [2007] 2 AC 31 returned to this topic after the Grand Chamber of the European Court of Justice had commented on it when giving a preliminary ruling in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, to which I shall shortly refer. The House was concerned with the effect of section 64(2)(b) of the 2003 Act, which on its face appears to require an EAW to be accompanied by a separate certificate that the conduct in respect of which surrender is sought falls within the Framework list. The issue was whether it was sufficient that the warrant itself so certified. In holding, in agreement with the rest of the House, that it was, Lord Hope, after citing from Pupino, referred with approval to Lord Binghams statement in Cando Armas and remarked that the imposition of additional formalities not found in the Framework Decision by one member state to suit its own purposes would tend to frustrate the objectives of the Decision. Article 34.2(b) of the EU Treaty provides: Framework decisions shall be binding upon the Member States as to the result to be achieved but shall leave to the national authorities the choice of form and methods. They shall not entail direct effect. In Pupino the European Court of Justice held at para 43: When applying the national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. In a well reasoned written joint intervention Mr Gerard Batten MEP and Mr Vladimir Bukovsky comment on the uncertainty of the scope of the phrases result to be achieved, purpose of the framework directive and result which it pursues. They argue that these should be treated as referring to the specific objectives of the particular Framework Decision and not the wider objectives of the EU Treaty that the specific objectives may be designed to serve. I have concluded that their interesting discussion does not bear on the issue that this Court has to resolve. What is in issue in respect of the construction of the 2003 Act is not a suggestion that the English Court ought, when interpreting the 2003 Act, to follow some general objective that the Framework Decision is designed to advance. It is the narrow issue of whether the words judicial authority in section 2(2) of the 2003 Act should, if possible, be accorded the same meaning as those two words bear in the parallel requirement in article 6 of the Framework Decision. I have read with admiration Lord Mances analysis of the effect of the decision in Pupino and I accept, for the reasons that he gives, that it does not bind this Court to interpret Part 1 of the 2003 Act, in so far as this is possible, in a manner that accords with the Framework Decision. I consider, none the less that it is plain that the Court should do so. This is not merely because of the presumption that our domestic law will accord with our international obligations. As Lord Mance himself acknowledges at para 201 of his judgment Part 1 of the 2003 Act was enacted in order to give effect to the Framework Decision. The immediate objective of that Decision is to create a single uniform system for the surrender of those accused or convicted of the more serious criminal offences. That objective will only be achieved if each of the Member States gives the same meaning to judicial authority. If different Member States give different meaning to those two words, that uniformity will be destroyed. In these circumstances it is hard to conceive that Parliament, in breach of the international obligations of this country, set out to pass legislation that was at odds with the Framework Decision. It is even more difficult to conceive that Parliament took such a course without making it plain that it was doing so. For this reason it is logical to approach the interpretation of the words judicial authority on the presumption that Parliament intended that they should bear the same meaning in Part 1 of the 2003 Act as they do in the Framework Decision. Parliamentary material Counsel for both parties placed before us a substantial volume of parliamentary material without any close analysis as to whether this was admissible as an aid to interpretation of the 2003 Act under the doctrine of Pepper v Hart [1993] AC 593 or for any other reason. I add those last words because some of this material related to proceedings of the House of Commons European Scrutiny Committee and the House of Lords Select Committee on European Union which predated both the final Framework Decision and, of course, the Extradition Bill which became the 2003 Act. While this material may provide some insight into the approach of the United Kingdom in negotiations that preceded the Framework Decision and into the understanding of Members of Parliament as to the effect of that Decision, I do not see how it can be directly admissible under Pepper v Hart, save to the extent that it was referred to in parliamentary debate on the Bill. More generally it is open to question whether there is room for the application of Pepper v Hart having regard to the requirement to give the words judicial authority the same meaning in the Act as they bear in the Framework Decision. That requirement should resolve any ambiguity in the language of the statute. Having said this I shall summarise shortly the effect of the parliamentary material. It evidences a general understanding and intention that the words judicial authority would and should bear the same meaning in the Act as they bore in the Framework Decision. As to that meaning there are statements in debate in the House of Lords, on the part of both members and a minister, that appear to reflect an understanding that the judicial authority would be a court or judge. The clearest ministerial statement is, however, that of the Under Secretary of State, Mr Ainsworth, on 9 January 2003 to Standing Committee D (Hansard, col 48), referred to by the Divisional Court at para 26: We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. If the parliamentary material to which I have referred were admissible, I would find it inconclusive. For the reasons that I have given I approach the interpretation of the words judicial authority in Part 1 of the 2003 Act on the basis that they must, if possible, be given the same meaning as they bear in the Framework Decision. I turn to consider that meaning. The meaning of judicial authority in the Framework Decision It is necessary at the outset to decide how the task of interpreting the Framework Decision should be approached. Craies on Legislation, 9th ed (2008), remarks at para 31.1.21 that the text of much European legislation is arrived at more through a process of political compromise, so that individual words may be chosen less for their legal certainty than for their political acceptability. That comment may be particularly pertinent in the present context in that, as we shall see, an earlier draft of the Framework Decision left no doubt as to the meaning of judicial authority but a subsequent draft expunged the definition that made this clear. The reason for and effect of this change lies at the heart of the problem of interpretation raised by this appeal. How does one set about deciding on these matters? The approach to interpretation must be one that would be acceptable to all the Member States who have to strive to identify a uniform meaning of the Decision. Craies rightly comments at para 32.5.1 that one cannot simply apply the canons for construction or even the principles that apply to interpreting domestic legislation. In the next paragraph Craies identifies the approach of the European Court of Justice to interpreting European legislation as involving the following stages, to be followed sequentially in so far as the meaning has not become clear. Start with the terms of the instrument in question, including its preamble; Turn to preparatory documents; Consider the usual meaning of expressions used and [compare] different language texts of the instrument; Consider the purpose and general scheme of the instrument to be construed. While I shall consider these matters I propose to adopt a different order. The natural meaning As we are here concerned with the meaning of only two words, I propose at the outset to consider the natural meaning of those words. It is necessary to do this in respect of both the English words judicial authority and the equivalent words in the French text. Those words are autorit judiciaire. In the final version of the Framework Decision the same weight has to be applied to the English and the French versions. It is, however, a fact that the French draft was prepared before the English and that, in draft, in the event of conflict, the meaning of the English version had to give way to the meaning of the French. The critical phrase does not bear the same range of meanings in the English language as in the French and, as I shall show, the different contexts in which the phrase is used more happily accommodate the French rather than the English meanings. The first series of meanings of judicial given in the Oxford English Dictionary is: Of or belonging to judgment in a court of law, or to a judge in relation to this function; pertaining to the administration of justice; proper to a court of law or a legal tribunal; resulting from or fixed by a judgment in court. In the context of a judicial authority the more appropriate meanings are: having the function of judgment; invested with authority to judge causes; a public prosecutor would not happily fall within this meaning. Judiciaire is capable of bearing a wide or a narrow meaning. Vocabulaire Juridique (6th ed, 1996) states that it can be used (dans un sens vague). Qui appartient la justice, par opp legislative et administrative, or (dans un sens prcis). Qui concerne la justice rendue par les tribunaux judiciaires. A computer dictionary search discloses a number of examples of its use in the sens vague, for instance affaire judiciaire/legal case; aide judiciaire/legal aid; annonce judiciaire/legal notice; poursuite judiciaire/ legal proceedings and last but not least, autorit judiciaire/legal authority. Having regard to the range of meanings that autorit judiciaire is capable of embracing, it is no cause for surprise that the phrase often receives some additional definition. Examples of particular relevance in the present context are found in the Rapport explicatif of the 1957 European Convention on Extradition see para 26 below and in the definition of autorit judiciaire in article 3 of the first draft of the Framework Decision itself see para 46 below. Another example is found in article 18.7 of the 1990 European Convention on money laundering: soit autorise par un juge, soit par une autre autorit judiciaire, y compris le ministre public (my emphasis). Miss Rose in her written case referred to a further example, in the English version, in the definition of an issuing authority in respect of a European Evidence Warrant under article 2(c) of the relevant Framework Decision (2008/978/JHA), namely : (i) a judge, a court, an investigating magistrate, a public prosecutor; or (ii) any other judicial authority as defined by the issuing State and, in the specific case, acting in its capacity as an investigating authority in criminal proceedings (my emphasis) These definitions demonstrate the width of meaning that autorit judiciaire is capable of bearing and the fact that the ambit of the phrase can vary according to its context. Article 5.1(c) of the European Convention on Human Rights, in the English version, provides that deprivation of liberty may be lawful where it results from the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence The French version of legal authority is autorit judiciaire. Miss Rose submitted that a line of Strasbourg authority on the meaning of that phrase in the context of article 5 provided the key to its meaning in the context of the Framework Decision. That submission calls for a comparison of the functions of the autorit judiciaire in the two different contexts. I shall postpone that exercise to later in this judgment. First I propose to consider the purpose and the general scheme of the Framework Decision and then the preparatory documents and their genesis. The purpose of the Framework Decision The purpose of the Framework Decision is stated in recital (5) of its preamble: The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final judicial decisions, within an area of freedom, security and justice. What were the present extradition procedures that gave rise to complexity and potential for delay? They were those provided for by the European Convention on Extradition 1957. This was a Convention between members of the Council of Europe. As in the case of other post war European Conventions the United Kingdom played a major role in its negotiation. The general scheme under this Convention was one whereby, after an antecedent process to which I shall return at a later stage, the executive of a requesting State would make a request for extradition to the executive of the requested State. The Convention laid down the criteria that had to be satisfied if the requested State was to be obliged to comply with the request. As to the procedure for considering whether or not to comply with a request, which I shall call the process of execution, the Convention provided by article 22 that this should be governed solely by the law of the requested State. The complexities and potential for delay that the Framework Decision sought to avoid were those that arose out of the involvement of the executive in the extradition process. I do not believe that this had much relevance in this jurisdiction, for although the process of extradition had great potential for delay, this was seldom attributable to the fact that the decision to extradite was ultimately political. A hint of the delays that were endemic on the Continent is given by a comment in the Explanatory Memorandum dated 25 September 2001 that accompanied the first draft of the Framework Decision, at 4.5.4: The political phase inherent in the extradition procedure is abolished. Accordingly, the administrative redress phase following the political decision is also abolished. The removal of these two procedural levels should considerably improve the effectiveness and speed of the mechanism. Thus the Framework Decision did not set out to build a new extradition structure from top to bottom, but rather to remove from it the diplomatic or political procedures that were encumbering it. The objective was that the extradition process should involve direct co operation between those authorities responsible on the ground for what I have described as the antecedent process and those authorities responsible on the ground for the execution process. It is important for the purposes of this appeal, to consider the manner in which extradition used to work under the 1957 Convention and, in particular, to identify those who, under the operation of that Convention, were responsible for the antecedent process. The 1957 Convention Article 1 of the 1957 Convention provided that the contracting parties undertook to surrender to each other, subject to the provisions of the Convention, all persons against whom the competent authorities of the requesting party were proceeding for an offence or who were wanted by the said authorities for the carrying out of a sentence or detention order. I shall refer to such persons as fugitives. The Council of Europe Explanatory Report commented: Le terme competent authorities contenu dans le texte anglais correspond aux mots autorits judiciaires contenus dans le texte francais. Ces expressions visent les autorits judiciaires proprement dites et le Parquet lexclusion des autorits de police. Article 12.2 provided that a request for extradition should be supported by (a) the original or an authenticated copy of the conviction and sentence or detention order immediately enforceable or of the warrant of arrest or other order having the same effect and issued in accordance with the procedure laid down in the law of the requesting Party; (b) a statement of the offences for which extradition is requested. The time and place of their commission, their legal descriptions and a reference to the relevant legal provisions shall be set out as accurately as possible; and (c) a copy of the relevant enactments or, where this is not possible, a statement of the relevant law and as accurate a description as possible of the person claimed, together with any other information which will help to establish his identity and nationality. Thus, where the fugitive was someone accused of a crime, the Convention required that there should have been an antecedent process that resulted in a warrant of arrest or other order having the same effect. This had to be issued in accordance with the law of the requesting State. The Convention itself did not impose any specific requirement as to the status of the authority responsible for the warrant of arrest or other order. As to this, the Council of Europe Explanatory Report commented: Some of the experts thought that the warrant of arrest or any other order having the same effect should be issued by an authority of a judicial nature. This point arises from article 1, in which the Parties undertake to extradite persons against whom the competent authorities of the requesting Party are proceeding or who are wanted by them. During the discussion of article 12 it was found that most of the States represented on the Committee of Experts do not extradite a person claimed until after a decision by a judicial authority. It is noteworthy that there was no requirement under the 1957 Convention for a requesting State to adduce any evidence to support the allegation that the fugitive had committed the crime in respect of which he was accused. This had never been a requirement that European States imposed, perhaps because they were not prepared to countenance the extradition of their own nationals. In contrast, when concluding bilateral extradition treaties, this country had always insisted on evidence being produced that would have been sufficient to lead to a defendant within the jurisdiction being committed for trial. According to Jones on Extradition and Mutual Assistance, 2nd ed (2001) at 10 004 the lack of any evidence requirement in the Convention was one of the reasons why the United Kingdom allowed over 30 years to pass between signing the 1957 Convention and embodying its provisions in our domestic law. The 1957 Convention contained provisions for provisional arrest, which had always been a feature of English extradition law. This important procedure enabled a fugitive to be apprehended and detained before the diplomatic formalities of inter State extradition were implemented. Thus article 16 provided: 1. In case of urgency the competent authorities of the requesting Party may request the provisional arrest of the person sought. The competent authorities of the requested Party shall decide the matter in accordance with its law. 2. The request for provisional arrest shall state that one of the documents mentioned in article 12, paragraph 2(a), exists and that it is intended to send a request for extradition. It shall also state for what offence extradition will be requested and when and where such offence was committed and shall so far as possible give a description of the person sought. 3. A request for provisional arrest shall be sent to the competent authorities of the requested Party either through the diplomatic channel or direct by post or telegraph or through the International Criminal Police Organisation (Interpol) or by any other means affording evidence in writing or accepted by the requested Party. The requesting authority shall be informed without delay of the result of its request. In contrast to article 1, the French version of competent authorities was autorits comptentes. The United Kingdom acceded to the 1957 Convention in 1991. By the European Convention on Extradition Order 2001 (SI 2001/962), passed pursuant to section 3(2) of the Extradition Act 1989, it was incorporated into domestic law. Para 3 of this Order removed the requirement to produce evidence of the commission of the offence in respect of which extradition was sought. By way of reservation the United Kingdom required foreign documents supplied pursuant to article 12 to be authenticated by being signed by a judge, magistrate or officer of the State where they were issued and certified by being sealed by a Minister of State. Thus, when negotiations began in relation to the terms of the Framework Decision, the United Kingdom had given effect to a European Convention that required it to surrender fugitives on proof of an antecedent process, namely that there had been issued in the requesting State a warrant of arrest or other order having the same effect, notwithstanding that, at least in 1957 when the Convention was negotiated, this might not have resulted from a judicial process and where the authority initiating the request might be a court or a public prosecutor. It is worth pausing at this point to consider the nature of the antecedent process. In this country the liberty of the subject has long been recognised as a fundamental right, as demonstrated by the remedy of habeas corpus. Save in the limited circumstances where arrest without warrant is lawful, arrest of a person suspected of a criminal offence has required a warrant of arrest issued by a magistrate. After arrest the suspect has had to be brought before a court. Detention before charge is only permitted for a very short period and remand in custody after charge will be pursuant to a court order. These protections of the liberty of the subject did not exist in all Continental States and notably had not existed in those that were, or fell, under the domination of Germany before and during the Second World War. Article 5 of the European Convention of Human Rights was designed to make universal protections that already existed in this country. Article 5.1(c) permits the lawful arrest or detention of a person for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence. Lawful arrest or detention is not defined. What this involves in other Member States was not explored in argument before us, but we were provided with Evaluation Reports in respect of the working of the EAW in 15 Member States prepared by the Commission pursuant to the requirement of article 34.4 of the Framework Decision. In the case of most of these the issue by a court of a domestic arrest warrant or a similar order, such as an order for detention in absentia, was a precondition to the issue of an EAW. It seems likely that these domestic procedures were in place when the Framework Decision was negotiated and that in the case of the majority of Member States, the power to arrest was subject to judicial safeguards similar to, or even more stringent than, our own. As I have shown above, in 1957 a minority of the parties to the European Convention on Extradition had no judicial involvement in the issue of an arrest warrant. It may well be that, as a consequence of the ECHR and the series of Strasbourg decisions to which I refer below, this minority had reduced by the time that the Framework Decision was negotiated. Public prosecutors As the issue on this appeal is whether a public prosecutor constitutes a judicial authority under Part 1 of the 2003 Act, it is appropriate to consider the nature of that office. Public prosecutors as their name suggests are public bodies that carry out functions relating to the prosecution of criminal offenders. On 8 December 2009 the Consultative Council of European Judges and the Consultative Council of European Prosecutors published for the attention of the Committee of Ministers a joint Opinion (2009) that consisted of a Declaration, called the Bordeaux Declaration together with an Explanatory Note. This comments at para 6 on the diversity of national legal systems, contrasting the common law systems with the Continental law systems. Under the latter the prosecutors may or may not be part of the judicial corps. Equally the public prosecutors autonomy from the executive may be complete or limited. Para 23 of the Note observes: The function of judging implies the responsibility for making binding decisions for the persons concerned and for deciding litigation on the basis of the law. Both are the prerogative of the judge, a judicial authority independent from the other state powers. This is, in general, not the mission of public prosecutors, who are responsible for bringing or continuing criminal proceedings. A recurrent theme of both the Declaration and the Note is the importance of the independence of the public prosecutors in the performance of their duties. Para 3 of the Declaration states that judges and public prosecutors must both enjoy independence in respect of their functions and also be and appear to be independent of each other. Para 6 states: The enforcement of the law and, where applicable, the discretionary powers by the prosecution at the pre trial stage require that the status of public prosecutors be guaranteed by law, at the highest possible level, in a manner similar to that of judges. They shall be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially. The Note comments at paras 33 and 34 that public prosecutors must act at all times honestly, objectively and impartially. Judges and public prosecutors have, at all times, to respect the integrity of suspects. The independence of the judge and the prosecutor is inseparable from the rule of law. Later the Note deals with the roles and functions of judges and public prosecutors in the pre criminal procedures: 48 At the pre trial stage the judge independently or sometimes together with the prosecutor, supervises the legality of the investigative actions, especially when they affect fundamental rights (decisions on arrest, custody, seizure, implementation of special investigative techniques, etc). Both the function and the independence of the prosecutor must be borne in mind when considering whether, under the Framework Decision, the term judicial authority can sensibly embrace a public prosecutor. The more recent genesis of the Framework Decision Stepping stones towards the Framework Decision were the Convention of 10 March 1995 on a simplified extradition procedure between Member States of the EU and the Convention of 27 September 1996 relating to extradition between the Member States. Of more relevance in the present context was the integration into the European Union under the Amsterdam Treaty of 1997 of the Schengen Agreement of 1985. Title 1V of the 1990 Convention implementing the Schengen Agreement established the Schengen Information System (SIS). Article 95 provided for the judicial authority of a Member State to issue an alert requesting the arrest of a person for extradition purposes. This had to be accompanied by, inter alia, information as to whether there was an arrest warrant or other document having the same legal effect. Article 98 made provision for the competent judicial authorities to request information for the purpose of discovering the place of residence or domicile of witnesses or defendants involved in criminal proceedings. Article 64 provided that an alert under article 95 should have the same force as a request for provisional arrest under article 16 of the 1957 Convention. We were not provided with any information as to the nature of the judicial authorities who sought provisional arrest under article 95. We were, however, provided with a Report dated 13 October 2009 of the Schengen Joint Supervisory Authority on an inspection of the use of article 98 alerts. This provided the following answer to the question which competent authorities may decide on an article 98 alert? While public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts. It seems certain that public prosecutors must, in some Member States, have been responsible for initiating an article 95 alert and not unlikely that some of the other authorities competent to decide on an article 98 alert may have done so. On 15 and 16 October 1999 the European Council met at Tampere. Proposals made at this meeting under the heading of Mutual recognition of judicial decisions included that consideration should be given to fast track expedition procedures, without prejudice to the principle of fair trial. This led to the Commission submitting to the Council on 19 September 2001 a proposal for a Framework Decision. I shall call this the September draft. I propose to consider this in conjunction with the Explanatory Memorandum which accompanied it. The Preamble stated that the EAW aimed to replace the traditional extradition arrangements and had to have the same scope of application as the system of extradition built on the 1957 Convention (recital 5). The EAW was based on the principle of mutual recognition. If a judicial authority requested a person for the purpose of prosecution for an offence carrying a sentence of at least twelve months detention, the authorities of other Member States should comply with the request (recital 7). The decision on the execution of the EAW required sufficient controls and had, in consequence, to be taken by a judicial authority (recital 8). The role of central authorities was limited to practical and administrative assistance (recital 9). Article 1 of the September draft provided: The purpose of this Framework Decision is to establish the rules under which a Member State shall execute in its territory a European arrest warrant issued by a judicial authority in another Member State. Article 2 provided: A European arrest warrant may be issued for: (a) final judgments in criminal proceedings, and judgments in absentia, which involve deprivation of liberty or a detention order of at least four months in the issuing Member State; in criminal judicial decisions (b) other enforceable proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months in the issuing Member State. Thus, so far as a fugitive from prosecution was concerned, this article envisaged that before the issue of the EAW there would be an enforceable judicial decision involving deprivation of liberty. The issue of an arrest warrant is an obvious example of such a decision. Article 3 of the September draft included the following important definitions: (a) European arrest warrant means a request, issued by a judicial authority of a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2; (b) issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a European arrest warrant; (c) executing judicial authority means the judge or the public prosecutor of a Member State in whose territory the requested person sojourns, who decides upon the execution of a European arrest warrant. In dealing with this article the Explanatory Memorandum made the following summary of the effect of the scheme (a) The European arrest warrant is a warrant for search, arrest, detention and surrender to the judicial authority of the issuing country. In the previous system, under the 1957 Convention as implemented by the Schengen Convention, the provisional arrest warrant and the extradition request were two separate phases of the procedure. Pursuant to the principle of mutual recognition of court judgments, it is no longer necessary to distinguish the two phases. The arrest warrant thus operates not only as a conventional arrest warrant (search, arrest and detention) but also as a request for surrender to the authorities of the issuing State. This provides an important insight as to the manner in which it was envisaged that the Framework Decision would alter the extradition process. The judicial authorities who were responsible for the article 95 alert requesting provisional arrest were those who might be expected to be responsible for the issue of the new EAW. As I have suggested above, it is not unlikely that in some Member States these included the police or other authorities who were responsible for article 98 alerts. If so, the definition of issuing judicial authority in article 3 of the September draft made it clear that this was not acceptable. As to this, the Explanatory Memorandum commented: The procedure of the European arrest warrant is based on the principle of mutual recognition of court judgments. State to State relations are therefore substantially replaced by court to court relations between judicial authorities. The term judicial authority corresponds, as in the 1957 Conventionto the judicial authorities as such and the prosecution services, but not to the authorities of police force. The issuing judicial authority will be the judicial authority which has authority to issue the European arrest warrant in the procedural system of the Member State. So far as the process of execution of the EAW was concerned, the Explanatory Memorandum made it plain that the nature of the judicial authority concerned would depend upon whether or not the fugitive was challenging extradition. If he was, the challenge would have to be resolved by a judge. If he was not, the judicial authority responsible for executing the warrant might be the prosecution service. Article 4 of the September draft provided: Each Member State shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant The Explanatory Memorandum commented: The judicial authority having the power to issue a European arrest warrant is designated in accordance with the national legislation of the Member States. They will be able to entrust the decision either to the same authority as gave the judgment or the judgment referred to in article 2 or to another authority. The position in respect of the issue of an EAW can be summarised as follows. Before the EAW was issued there would be an antecedent process that would result in an enforceable judicial decision involving deprivation of liberty. In most, but not necessarily all, Member States this would involve a judge. The Swedish process in the present case, which I shall consider in due course, provides a good example of this. The subsequent issue of the EAW would have to be done by a judicial authority, but that term embraced both a judge and a public prosecutor. The judicial authority in question might or might not be that responsible for the antecedent process. Article 6 of the September draft dealt with the contents of the EAW. These included whether there is a final judgment or any other enforceable judicial decision, within the scope of article 2. The provisions of the September draft in relation to issue provided a degree of safeguard that the EAW would only be issued in a proper case, but further safeguards were provided in relation to the execution of the EAW. It was, of course, at that stage that the process would result in deprivation of liberty. The Preamble to the September draft provided: The decision on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the person has been arrested will take the decision whether to execute the warrant. Articles 10 to 23 of the September draft dealt with execution of the EAW. As the Explanatory Memorandum explained when commenting on article 4 and repeated when dealing with the various articles in section 3, the nature of the judicial authority involved in the execution of the EAW could depend upon whether or not the fugitive was challenging surrender. In some cases it might be the prosecuting authority, in others it would be a court. Thus article 18 provided: A court in the executing Member State shall decide on whether the European arrest warrant shall be executed after a hearing, held in accordance with the national rules of criminal procedure. (a) (b) if the requested person does not consent to his or her surrender; in cases referred to in articles 17(2) and (3). The issuing Member State may be represented or submit its observations before the court. In summary, under the September draft it was beyond doubt that judicial authority was a term that embraced both a court and a public prosecutor. It was a precondition to the issue of a valid EAW that there should have been an antecedent process leading to an enforceable judicial decision which would involve deprivation of liberty. The subsequent decision to issue the EAW might be taken by the same judicial authority responsible for the antecedent decision, or another. There was nothing to indicate that this could not be a public prosecutor. The scheme had much in common with the 1957 Convention, as implemented under Schengen, stripped of political involvement. Had the final Framework Decision followed the September draft, the issue that has led to this appeal could never have arisen. Article 3 expressly provided that the issuing judicial authority might be a public prosecutor. Elsewhere the judicial authority might or might not be a public prosecutor depending upon the function being performed. The September draft was, however, amended in a manner that obfuscated the position. The relevant changes appear to have been made in the course of discussion in the Council of Ministers. On 6 December the Presidency noted that fourteen delegations agreed on the new draft (the December draft), noting parliamentary scrutiny reservations from, inter alia, the United Kingdom. The December draft formed the basis of the final Framework Decision approved by the Council. I turn to consider the manner in which the Framework Decision differs from the September draft. Article 1 of the Framework Decision begins by stating that the EAW is a judicial decision issued by a Member State. The English version of the December draft read a court decision issued by a Member State. The words that I have emphasised were both translations of the French judiciaire in the original text. The French version was the original and is to be preferred. Thus I do not consider that the use of the word court in the English version of the December draft is of any assistance in determining the meaning of judiciaire. Most significantly, for present purposes, the definitions of issuing judicial authority and executing judicial authority in the final version no longer define these as being a judge or public prosecutor. The new definitions, now in article 6, are as follows: 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. With the exception of article 19.1, the articles dealing with execution make no reference to a hearing before a court. The phrase judicial authority is used throughout. Article 19.3 does, however, give a hint that more than one type of judicial authority may be involved. The article provides: The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this article and of the conditions laid down. It is to be noted that article 19.1 refers to requesting court. The French version of the word court is juridiction. The two versions replicate the words used in the French and English versions of the equivalent provision of the December draft. The French draft was the original and it is hard to see any justification for translating juridiction as court. In these circumstances, while the use of the phrase requesting court in the final version lend some support to Mr Assanges case on the meaning of issuing judicial authority it would not be safe to place much weight on that support. The overall scheme of the EAW did not change from that proposed in the September draft. In particular there remained a requirement for an antecedent process before the issue of the EAW. Article 2, under the heading Scope of the European arrest warrant set out the offences in respect of which an EAW could be issued. Article 8 specified the content of the warrant, which included (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2. This simplified the description of the antecedent process in articles 2 and 6 of the September draft. It adopted the description of the antecedent process in the 1957 Convention. The critical question The critical question is whether the changes made to the draft Framework Decision between September and December altered the meaning of judicial authority so as to exclude a public prosecutor from its ambit. There would seem to be two possible reasons for removing the precise definition of judicial authority that had been included in article 3 of the September draft. The first was to restrict the meaning by excluding from its ambit the public prosecutor. The second was to broaden the meaning so that it was not restricted to a judge or a public prosecutor. For a number of reasons I have reached the firm conclusion that the second explanation is the more probable. In the first place, had the intention been to restrict the power to issue an EAW or to participate in its execution to a judge, I would expect this to have been expressly stated. The change would have been radical, and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. In the second place it is hard to see why the majority of Member States would have wished to restrict the ambit of the issuing judicial authority in this way. The significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. If there had been concern to ensure the involvement of a judge in relation to the issue of an EAW, the obvious focus should have been on this process. The function of the issuing authority was of less significance. That fact is underlined by the only case outside the United Kingdom to which we have been referred where a challenge was made to the issue of an EAW by a public prosecutor. In Piaggio (Germany) (14 February 2007, Court of Cassation Sez 6 (Italy)) the appellant challenged the issue by the Hamburg Public Prosecutors Office of an EAW on the ground that it should have been issued and signed by a judge. The Court rejected this contention for the following reasons: The claim alleging breach of article 1(3) of Law no 69 of 2005 on the ground that the EAW was not signed by a judge is completely unfounded. The provision allegedly requiring signature by a judge does not refer to the EAW, as the appellant mistakenly claims, but to the precautionary measure on the basis of which the warrant was issued: in the present case, it is in fact the arrest warrant issued by the Hamburg District Magistrates Court on 24 August 2005, regularly signed by Judge Reinke. The guarantee specified in the aforesaid article1(3) does not relate to the act requesting the Member State to grant extradition but is directly connected with the custodial measure, that is to say it is a substantial guarantee concerned with the basic conditions underlying the EAW, which must be subject to jurisdiction. In this procedure, the true guarantee of personal freedom is not the fact that the EAW is issued by a judicial authority but the fact that the warrant is based on a judicial measure. Moreover, article 6 of the framework decision leaves to the individual Member State the task of determining the judicial authority responsible for issuing (or executing) a European Arrest Warrant, and the Italian implementing law, with regard to the active extradition procedure, provides for certain cases in which the Public Prosecutors office is to be responsible for issuing the EAW (article 28 of Law no 69/2005). Essentially, the alleged breach of the law in respect of the fact that the EWA was signed by the Hamburg Public Prosecutors Office, must be excluded. On 23 February 2009 this decision was acknowledged with approval in the Experts Evaluation Report on Italys procedures in relation to the EAW (5832/2/09 REV 2) The final comment made at 7.3.2.6 is of particular significance: Under article 1(3) of the Italian implementing law, Italy shall implement the EAW as long as the preventative remedy on the basis of which the warrant has been issued has been signed by a Judge and is adequately motivated. The expert team notes that this provision gave rise to at least two difficulties: the requirement that the domestic arrest warrant (a) must be signed by a judge could wrongly be interpreted in the sense that the Italian executing authority should refuse the execution of an EAW if the domestic arrest warrant on which it was based is issued by a judicial authority other than a judge, in particular by a prosecutor; the requirement that the domestic arrest warrant (b) must be adequately motivated could be interpreted in the sense that the Italian executing authority should proceed to a factual verification of the case it is not supposed to do. On this point, the requirement seems in contradiction with the principle of mutual recognition on which the Framework Decision is based. However, the Court of Cassation has given an interpretation of this provision in line with the Framework Decision (my emphasis). Miss Rose suggested that the issuing judicial authority had a role to play in ensuring that it was proportionate to issue the EAW. Since the EAW was introduced there has been concern that some EAWs are being issued in respect of trivial offences. The Council, in a note dated 28 May 2010 (8436/2/10 REV 2) commented on the need for Member States to conduct a proportionality check before issuing an EAW. It stated, however It is clear that the Framework Decision on the EAW does not include any obligation for an issuing Member State to conduct a proportionality check In the light of this statement it would not be right to infer that when the EAW was being negotiated Member States agreed to restrict its issue to a judge in order to ensure that proportionality received proper judicial consideration. In the third place I find it likely that the removal of the definition of judicial authority as being a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or a public prosecutor. Member States had existing procedures for initiating an extradition request and for requesting provisional arrest in another Member State which involved their domestic arrest procedures. They also had existing procedures for giving effect to extradition requests. The authorities involved in these procedures were not restricted to judges and prosecutors. It seems to me likely that the removal of a precise definition of judicial authority was intended to leave the phrase bearing its sens vague so as to accommodate a wider range of authorities. In the fourth place aspects of the December draft suggest that the meaning of judicial authority was not restricted to a court or judge. The requirement that became article 6.3 of the final version to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there was a range of possible judicial authorities. And, as I have pointed out in para 58 above, article 19.3 of the final version suggests the co operation of different types of judicial authority in the execution process. In the fifth place the manner in which not merely the Member States but also the Commission and the Council acted after the Framework Direction took effect was in stark conflict with a definition of judicial authority that restricted its meaning to a judge. Article 31.3(b) of the 1969 Vienna Convention on the Law of Treaties permits recourse, as an aid to interpretation, to any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. The EAW processes of the Member States were subject to Reports by the Commission and Evaluation Reports on the working of the EAW were prepared by experts and submitted to the Council (see below). The practices of the Member States in relation to those they appointed as issuing and executing judicial authorities coupled with the comments of the Commission and the Council in relation to these, provide I believe a legitimate guide to the meaning of those two words in the Framework Decision. Implementation of the Framework Decision by the Member States Had the omission of the definition of judicial authority in the final version of the Framework Decision reflected an intention on the part of the Member States that negotiated it that only a judge or court could act as an issuing or executing authority, I would have expected the Member States to have implemented that intention when giving effect to the Framework Decision. I would equally have expected Reports published by the Commission and the Experts Evaluation Reports for the Council to have commented critically on any failure by a Member State to appoint a court or judge as the issuing and executing judicial authority. This was far from the case. 11 Member States designated a prosecutor as the issuing judicial authority in relation to fugitives sought for prosecution and 10, not in every case the same, designated a prosecutor as the issuing judicial authority in respect of fugitives who had been sentenced. 10 Member States designated a prosecutor as the executing judicial authority. Some of these had designated a judge or court as the issuing judicial authority. A handful of Member States had designated the Ministry of Justice as the issuing or executing judicial authority Article 34 of the Framework Decision required the Commission to submit a report to the European Parliament and to the Council on the operation of the Framework Decision. We have been provided with two such reports, the First Report dated 24 January 2006 and the Second Report dated 11 July 2007. These Reports commented adversely on the appointment by a small minority of Member States of executive bodies as judicial authorities but made no adverse comment on the use of public prosecutors as judicial authorities. Mutual Evaluation Reports into the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States were made to the Council by experts nominated by Member States. We have been provided with 15 Reports from the fourth round of these mutual evaluations. Once again, while the Reports contain adverse comment on the use of Ministries of Justice as issuing or executing judicial authorities, there is no adverse comment on the use of prosecutors in this role. Indeed, as I have pointed out in para.63 above, in the case of Italy the report commended this practice. On 28 May 2009 the Council published a Final Report on the fourth round of mutual evaluations. Its Conclusions included, in para 3.1, comments on the role of the judicial authorities. These commented that in some Member States non judicial central authorities continued to play a role in cardinal aspects of the surrender procedure. This was criticised as difficult to reconcile with the letter and the spirit of the Framework Decision. No criticism was made of the use of prosecutors as judicial authorities. The Council went on to call on Member States to provide judges, prosecutors and judicial staff with appropriate training on the EAW. There is once again a clear inference, this time in relation to the Council, that there was no objection to prosecutors performing the role of issuing judicial authorities. Conclusions on the Framework Decision I turn now to Miss Roses reliance on the meaning of autorit judiciaire (legal authority) in the context of article 5, to which I referred at para 21. I there set out article 5.1(c). Article 5.3 provides: Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time Miss Rose referred us to a series of 17 decisions of the Strasbourg Court which establish that the competent legal authority referred to in article 5.1(c) is shorthand for the judge or other officer authorised by law to exercise judicial power in article 5.3. These start with Schiesser v Switzerland (1979) 2 EHRR 417 and finish with Medvedyev v France (2010) 51 EHRR 899. They are, for the most part, cases where prosecutors or those subject to their control, authorised the detention of suspects during pre trial investigations on the basis that they were competent legal authorities within the meaning of that phrase in article 5.1(c). The Strasbourg Court made it plain that those involved in the prosecution of a defendant lacked the necessary independence to qualify as competent legal authorities. In Medvedyev the Grand Chamber held at paras 123 124: Since article 5.1(c) forms a whole with article 5.3, competent legal authority in para 1 (c) is a synonym, of abbreviated form, for judge or other officer authorised by law to exercise judicial power in para 3. The judicial officer must offer the requisite guarantees of independence from the executive and the parties, which precludes his subsequent intervention in criminal proceedings on behalf of the prosecuting authority, and he or she must have the power to order release, after hearing the individual and reviewing the lawfulness of, and justification for, the arrest and detention. Miss Rose submitted that this line of authority conclusively established the meaning of judicial authority in the Framework Decision. This was coupled with the submission that those two words had to be given the same meaning wherever they appeared in the Decision. I consider that both submissions are unsound. The article 5 authorities apply to the stage of pre trial proceedings at which the suspect has to be afforded the opportunity to challenge his detention. They have direct application to the stage of the execution of an EAW for which articles 14, 15 and 19 of the Framework Decision make provision. At this stage the competent judicial authority must have the characteristics identified in the Strasbourg decisions relied upon. Those decisions do not, however, apply to the stage at which a request is made by the issuing State for the surrender, or as the English statute incorrectly describes it, the extradition, of the fugitive. That is not a stage at which there is any adversarial process between the parties. It is a stage at which one of the parties takes an essentially administrative step in the process. That is a step that it is appropriate for a prosecutor to take. When considering the meaning of a word or phrase that is used more than once in the same instrument one starts with a presumption that it bears the same meaning wherever it appears. That is not, however, an irrebuttable presumption. It depends upon the nature of the word or phrase in question and the contexts in which it appears in the instrument. In the Framework Decision the same phrase is used to describe different authorities performing different functions at different stages of the overall process. The phrase is capable of applying to a variety of different authorities. The contexts in which it is used in the Framework Decision do not require that all the authorities have the same characteristics. On the contrary the contexts permit the issuing judicial authority to have different characteristics from the executing judicial authority and, indeed, for the phrase judicial authority to bear different meanings at the stage of execution of the EAW dependent upon the function being performed. The purpose of the Framework Decision, its general scheme, the previous European extradition arrangements, the existing procedures of the Member States at the time that the Framework Decision was negotiated, the preparatory documents and the variety of meanings that the French version of the phrase in issue naturally bears, the manner in which the Framework Decision has been implemented and the attitude of the Commission and the Council to its implementation all lead to the conclusion that the issuing judicial authority bears the wide meaning for which Miss Montgomery contends and embraces the Prosecutor in the present case. All that weighs the other way is the narrower meaning that the English phrase naturally bears. That does not begin to tilt the scales in favour of Miss Roses submission. For this reason I conclude that the Prosecutor in this case fell within the meaning of issuing judicial authority in the Framework Decision. The 2003 Act It is necessary, if possible, to give judicial authority the same meaning in the 2003 Act as it bears in the Framework Decision. Is it possible? The manner in which the Act sets out to give effect to the Framework Decision has been vigorously criticised by Professor John Spencer in Implementing the European Arrest Warrant: A Tale of How Not to Do it (2009) 30(3) Statute Law Review 184. This appeal will afford him additional grounds of attack. The Act does not make clear the overall nature of the EAW scheme for which the Framework Decision provides. It does not make clear the vital part that the antecedent process plays in the scheme. The scheme is founded on the mutual recognition of the decision that is taken in that process. Article 8 of the Framework Decision provides that the EAW must contain evidence of an enforceable judgment, an arrest warrant or other enforceable judicial decision having the same effect. Section 2 of the 2003 Act requires the arrest warrant to give particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence (my emphasis). I am not surprised that this provision has given rise to some judicial confusion, as evidenced by the series of decisions that culminated in the decision of the House of Lords in Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Only in that case was it appreciated that the provision referred to any domestic warrant on which the European warrant is based per Lord Mance at para 15. Because the 2003 Act does not make clear the importance of the antecedent decision, it can give the impression that the decision to issue the EAW is the step in the procedure at which are considered all the matters that will be taken into account in the course of the antecedent process. This, in its turn, can lead to the conclusion that the decision to issue the EAW is of such importance that Parliament must have intended it to be taken by a judge, and that judicial authority must be interpreted as meaning a judge. As I have sought to demonstrate this reasoning is unsound. Under the scheme of the Framework Decision the safeguard against the inappropriate issue of an EAW lies in the process antecedent to the issue of the EAW. I have drawn attention to the uncertainty on the material before us as to whether a court is involved in that process in all Member States, though this material indicates that it is in at least most States. No material has been put before us that suggests that EAWs are being issued on the basis of an antecedent process that is unsatisfactory for want of judicial involvement. The scheme does not provide for a second judicial process at the stage of the issue of the EAW. To interpret issuing judicial authority as meaning a court or judge would result in a large proportion of EAWs being held to be ineffective in this country, notwithstanding their foundation on an antecedent judicial process. For these reasons I can see no impediment to according to judicial authority in Part 1 of the 2003 Act the same meaning as it bears in the Framework Decision. On the contrary there is good reason to accord it such meaning. I have concluded that the Prosecutor who issued the EAW in this case was a judicial authority within the meaning of that phrase in section 2 of the 2003 Act and that Mr Assanges challenge to the validity of the EAW fails. The Lord Advocates intervention The Lord Advocate for Scotland, in a written intervention, submitted that the 2003 Act did not permit the Court to look behind a designation of a judicial authority made by a Member State under article 6.3 of the Framework Decision and accepted by the certificate of the designated authority under section 2 of the 2003 Act. This submission challenged the finding of the Divisional Court in this case that neither the designation by Sweden of its issuing judicial authority nor the issue of a certificate under section 2 barred Mr Assange from contending that his EAW had not been issued by a judicial authority. This did not discourage Miss Montgomery from aligning herself with the Lord Advocates submission at the ninth hour. Miss Rose made written submissions after the hearing supporting the reasoning of the Divisional Court. While I found this reasoning persuasive, I was none the less impressed by the opposite view expressed in Sir Scott Bakers Report, to which I refer below. In the circumstances I think that it would be better not to express a final opinion on the point, leaving it open for oral argument on a future occasion. The facts of this case The point on the meaning of judicial authority taken in this case has been technical, in as much as there has been no lack of judicial consideration of whether there is a case that justifies the prosecution of Mr Assange for the offences in respect of which his extradition is sought. I shall give a bare outline of events in Sweden. The proceedings against Mr Assange are founded on complaints made by two women on 20 August 2010. A Preliminary Investigation conducted by the Chief Officer, in which Mr Assange co operated, concluded that there was no case against him in respect of the alleged rape. The complainants appealed against this decision to the Prosecutor, who re opened the full Preliminary Investigation. Mr Assange instructed counsel to represent him. He then left the country, which he was free to do. On 18 November the Prosecutor applied to the Stockholm District Court for a domestic detention order in absentia. The Stockholm District Court granted the order. The following day Mr Assange, by his counsel, appealed to the Svea Court of Appeal against the order on the grounds that the domestic arrest was not proportionate and was not based on sufficient evidence to give rise to probable cause. The Prosecutor informed the Court of Appeal that she intended to issue an EAW. The Court of Appeal dismissed Mr Assanges appeal on the papers and without an oral hearing on 24 November. On 26 November the Prosecutor issued an EAW. This was submitted to SOCA and rejected because it failed to specify the potential sentences in respect of the offences alleged. A replacement EAW was issued on 2 December 2010 and this was certified by SOCA under section 2(7) and (8) of the 2003 Act on 6 December 2010. Under Swedish law the issue of a domestic detention order in absentia was a precondition to the issue of an EAW. That order was issued by a court which, it seems, had to be satisfied that there was sufficient evidence giving rise to probable cause and that domestic arrest was proportionate. The only possible additional area of discretion so far as the issue of the EAW was concerned would seem to be whether this was proportionate. There does not appear to have been a requirement that this should receive judicial consideration. Proportionality On 30 September 2011 a Committee chaired by the Rt Hon Sir Scott Baker presented a report to the Home Secretary that reviewed the United Kingdoms extradition arrangements. At paras 5.106 to 5.119 the Report considers a criticism that it is possible for an EAW to be issued by non judicial authorities, most often by public prosecutors. It makes the following comment: The rationale which underpins both article 6 and section 2(7) is the obvious need for an internationalist or cosmopolitan approach to the interpretation of the term judicial authority: it is for the domestic law of each Member State to decide which body or authority is responsible for issuing warrants and it is not for other Member States to question the competence of the body in question, or the institutional arrangements for the issuing of warrants. The Report gave a number of reasons for concluding that this position was satisfactory, not least of which was the statement that the panel was not aware of any cases in which EAWs issued by designated prosecuting authorities had led to oppression or injustice. The Report went on, in considerably greater detail, to consider the importance of proportionality. This had been considered in the Councils Report to which I have referred at para 71 above. The 9th recommendation of this Report was that there should be continued discussion on the institution of a proportionality requirement for the issue of any EAW with a view to reaching a coherent solution at European Union level. The Scott Baker Report agreed that proportionality should be considered at the stage of issuing an EAW. It did not recommend that the question of proportionality should be reviewed as part of the process of execution. There are three principal areas of judgment that may be involved in issuing and executing an accusation EAW. The first involves consideration of whether there are reasonable grounds for arresting the fugitive for the purpose of prosecuting him. Under the scheme consideration of this question should form part of the antecedent process. It should not be repeated at the stage of execution. The second involves consideration of whether surrender of the fugitive will involve an infringement of his human rights. This issue will not often arise, and when it does it is likely to involve considering proportionality. Under the scheme of the EAW, consideration of any human rights issue should take place at the extradition hearing, which will necessarily involve a judge. The third area of judgment involves consideration of whether, quite apart from any discrete human rights issues, the alleged offence is sufficiently serious to justify the draconian measure of removing the fugitive from the country in which he is living to the country where he is alleged to have offended. The Framework Decision dealt with this to a degree in as much as it provides that an accusation EAW can only be issued where the offence for which the fugitive is to be prosecuted must carry a maximum sentence of at least 12 months. It has become clear that this is insufficient to prevent the issue of an EAW in respect of an offence that is too trivial to justify the process. It seems that EAWs are being issued in some cases for offences as trivial as stealing a chicken. This reflects the fact that in some States such as Poland, under a constitutional principle of legality, the prosecutor has an obligation to prosecute a person who is reasonably suspected of having committed a criminal offence, however trivial the offence. The scheme of the EAW needs to be reconsidered in order to make express provision for consideration of proportionality. It makes sense for that question to be considered as part of the process of issue of the EAW. To permit proportionality to be raised at the stage of execution would result in delay that would run counter to the scheme. It does not necessarily follow that an offence that justifies the issue of a domestic warrant of arrest will justify the issue of an EAW. For this reason the antecedent process will not necessarily consider the proportionality of issuing an EAW. There is a case for making proportionality an express precondition of the issue of an EAW. Should this be done, it may be appropriate to define issuing judicial authority in such a way as to ensure that proportionality receives consideration by a judge. At present there is no justification for such a course. For the reasons that I have given I would dismiss this appeal. 32002F0584 2002/584/JHA: Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States Statements made by certain Member States on the adoption of the Framework Decision Official Journal L 190 , 18/07/2002 P. 0001 0020 on the European arrest warrant and the surrender procedures between Council Framework Decision of 13 June 2002 Member States (2002/584/JHA) THE COUNCIL OF THE EUROPEAN UNION, Having regard to the Treaty on European Union, and in particular Article 31(a) and (b) and Article 34(2)(b) thereof, Having regard to the proposal from the Commission(1), Having regard to the opinion of the European Parliament(2), Whereas: (1) According to the Conclusions of the Tampere European Council of 15 and 16 October 1999, and in particular point 35 thereof, the formal extradition procedure should be abolished among the Member States in respect of persons who are fleeing from justice after having been finally sentenced and extradition procedures should be speeded up in respect of persons suspected of having committed an offence. (2) The programme of measures to implement the principle of mutual recognition of criminal decisions envisaged in point 37 of the Tampere European Council Conclusions and adopted by the Council on 30 November 2000(3), addresses the matter of mutual enforcement of arrest warrants. (3) All or some Member States are parties to a number of conventions in the field of extradition, including the European Convention on extradition of 13 December 1957 and the European Convention on the suppression of terrorism of 27 January 1977. The Nordic States have extradition laws with identical wording. (4) In addition, the following three Conventions dealing in whole or in part with extradition have been agreed upon among Member States and form part of the Union acquis: the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at their common borders(4) (regarding relations between the Member States which are parties to that Convention), the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union(5) and the Convention of 27 September 1996 relating to extradition between the Member States of the European Union(6). (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the "cornerstone" of judicial cooperation. (7) Since the aim of replacing the system of multilateral extradition built upon the European Convention on Extradition of 13 December 1957 cannot be sufficiently achieved by the Member States acting unilaterally and can therefore, by reason of its scale and effects, be better achieved at Union level, the Council may adopt measures in accordance with the principle of subsidiarity as referred to in Article 2 of the Treaty on European Union and Article 5 of the Treaty establishing the European Community. In accordance with the principle of proportionality, as set out in the latter Article, this Framework Decision does not go beyond what is necessary in order to achieve that objective. (8) Decisions on the execution of the European arrest warrant must be subject to sufficient controls, which means that a judicial authority of the Member State where the requested person has been arrested will have to take the decision on his or her surrender. (9) The role of central authorities in the execution of a European arrest warrant must be limited to practical and administrative assistance. (10) The mechanism of the European arrest warrant is based on a high level of confidence between Member States. Its implementation may be suspended only in the event of a serious and persistent breach by one of the Member States of the principles set out in Article 6(1) of the Treaty on European Union, determined by the Council pursuant to Article 7(1) of the said Treaty with the consequences set out in Article 7(2) thereof. (11) In relations between Member States, the European arrest warrant should replace all the previous instruments concerning extradition, including the provisions of Title III of the Convention implementing the Schengen Agreement which concern extradition. (12) This Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union(7), in particular Chapter VI thereof. Nothing in this Framework Decision may be interpreted as prohibiting refusal to surrender a person for whom a European arrest warrant has been issued when there are reasons to believe, on the basis of objective elements, that the said arrest warrant has been issued for the purpose of prosecuting or punishing a person on the grounds of his or her sex, race, religion, ethnic origin, nationality, language, political opinions or sexual orientation, or that that person's position may be prejudiced for any of these reasons. This Framework Decision does not prevent a Member State from applying its constitutional rules relating to due process, freedom of association, freedom of the press and freedom of expression in other media. (13) No person should be removed, expelled or extradited to a State where there is a serious risk that he or she would be subjected to the death penalty, torture or other inhuman or degrading treatment or punishment. (14) Since all Member States have ratified the Council of Europe Convention of 28 January 1981 for the protection of individuals with regard to automatic processing of personal data, the personal data processed in the context of the implementation of this Framework Decision should be protected in accordance with the principles of the said Convention, HAS ADOPTED THIS FRAMEWORK DECISION: CHAPTER 1 GENERAL PRINCIPLES Article 1 Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in Article 6 of the Treaty on European Union. Article 2 Scope of the European arrest warrant 1. A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. 2. The following offences, if they are punishable in the issuing Member State by a custodial sentence or a detention order for a maximum period of at least three years and as they are defined by the law of the issuing Member State, shall, under the terms of this Framework Decision and without verification of the double criminality of the act, give rise to surrender pursuant to a European arrest warrant: participation in a criminal organisation, terrorism, trafficking in human beings, sexual exploitation of children and child pornography, illicit trafficking in narcotic drugs and psychotropic substances, illicit trafficking in weapons, munitions and explosives, corruption, fraud, including that affecting the financial interests of the European Communities within the meaning of the Convention of 26 July 1995 on the protection of the European Communities' financial interests, laundering of the proceeds of crime, counterfeiting currency, including of the euro, computer related crime, environmental crime, including illicit trafficking in endangered animal species and in endangered plant species and varieties, facilitation of unauthorised entry and residence, murder, grievous bodily injury, illicit trade in human organs and tissue, kidnapping, illegal restraint and hostage taking, racism and xenophobia, organised or armed robbery, illicit trafficking in cultural goods, including antiques and works of art, swindling, racketeering and extortion, counterfeiting and piracy of products, forgery of administrative documents and trafficking therein, forgery of means of payment, illicit trafficking in hormonal substances and other growth promoters, illicit trafficking in nuclear or radioactive materials, trafficking in stolen vehicles, rape, arson, crimes within the jurisdiction of the International Criminal Court, unlawful seizure of aircraft/ships, sabotage. 3. The Council may decide at any time, acting unanimously after consultation of the European Parliament under the conditions laid down in Article 39(1) of the Treaty on European Union (TEU), to add other categories of offence to the list contained in paragraph 2. The Council shall examine, in the light of the report submitted by the Commission pursuant to Article 34(3), whether the list should be extended or amended. 4. For offences other than those covered by paragraph 2, surrender may be subject to the condition that the acts for which the European arrest warrant has been issued constitute an offence under the law of the executing Member State, whatever the constituent elements or however it is described. Article 3 Grounds for mandatory non execution of the European arrest warrant The judicial authority of the Member State of execution (hereinafter "executing judicial authority") shall refuse to execute the European arrest warrant in the following cases: 1. if the offence on which the arrest warrant is based is covered by amnesty in the executing Member State, where that State had jurisdiction to prosecute the offence under its own criminal law; 2. if the executing judicial authority is informed that the requested person has been finally judged by a Member State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing Member State; 3. if the person who is the subject of the European arrest warrant may not, owing to his age, be held criminally responsible for the acts on which the arrest warrant is based under the law of the executing State. Article 4 Grounds for optional non execution of the European arrest warrant The executing judicial authority may refuse to execute the European arrest warrant: 1. if, in one of the cases referred to in Article 2(4), the act on which the European arrest warrant is based does not constitute an offence under the law of the executing Member State; however, in relation to taxes or duties, customs and exchange, execution of the European arrest warrant shall not be refused on the ground that the law of the executing Member State does not impose the same kind of tax or duty or does not contain the same type of rules as regards taxes, duties and customs and exchange regulations as the law of the issuing Member State; 2. where the person who is the subject of the European arrest warrant is being prosecuted in the executing Member State for the same act as that on which the European arrest warrant is based; 3. where the judicial authorities of the executing Member State have decided either not to prosecute for the offence on which the European arrest warrant is based or to halt proceedings, or where a final judgment has been passed upon the requested person in a Member State, in respect of the same acts, which prevents further proceedings; 4. where the criminal prosecution or punishment of the requested person is statute barred according to the law of the executing Member State and the acts fall within the jurisdiction of that Member State under its own criminal law; 5. if the executing judicial authority is informed that the requested person has been finally judged by a third State in respect of the same acts provided that, where there has been sentence, the sentence has been served or is currently being served or may no longer be executed under the law of the sentencing country; 6. if the European arrest warrant has been issued for the purposes of execution of a custodial sentence or detention order, where the requested person is staying in, or is a national or a resident of the executing Member State and that State undertakes to execute the sentence or detention order in accordance with its domestic law; 7. where the European arrest warrant relates to offences which: (a) are regarded by the law of the executing Member State as having been committed in whole or in part in the territory of the executing Member State or in a place treated as such; or (b) have been committed outside the territory of the issuing Member State and the law of the executing Member State does not allow prosecution for the same offences when committed outside its territory. Article 5 Guarantees to be given by the issuing Member State in particular cases The execution of the European arrest warrant by the executing judicial authority may, by the law of the executing Member State, be subject to the following conditions: 1. where the European arrest warrant has been issued for the purposes of executing a sentence or a detention order imposed by a decision rendered in absentia and if the person concerned has not been summoned in person or otherwise informed of the date and place of the hearing which led to the decision rendered in absentia, surrender may be subject to the condition that the issuing judicial authority gives an assurance deemed adequate to guarantee the person who is the subject of the European arrest warrant that he or she will have an opportunity to apply for a retrial of the case in the issuing Member State and to be present at the judgment; 2. if the offence on the basis of which the European arrest warrant has been issued is punishable by custodial life sentence or life time detention order, the execution of the said arrest warrant may be subject to the condition that the issuing Member State has provisions in its legal system for a review of the penalty or measure imposed, on request or at the latest after 20 years, or for the application of measures of clemency to which the person is entitled to apply for under the law or practice of the issuing Member State, aiming at a non execution of such penalty or measure; 3. where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the executing Member State, surrender may be subject to the condition that the person, after being heard, is returned to the executing Member State in order to serve there the custodial sentence or detention order passed against him in the issuing Member State. Article 6 Determination of the competent judicial authorities 1. The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. Article 7 Recourse to the central authority 1. Each Member State may designate a central authority or, when its legal system so provides, more than one central authority to assist the competent judicial authorities. 2. A Member State may, if it is necessary as a result of the organisation of its internal judicial system, make its central authority(ies) responsible for the administrative transmission and reception of European arrest warrants as well as for all other official correspondence relating thereto. Member State wishing to make use of the possibilities referred to in this Article shall communicate to the General Secretariat of the Council information relating to the designated central authority or central authorities. These indications shall be binding upon all the authorities of the issuing Member State. Article 8 Content and form of the European arrest warrant 1. The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; (b) the name, address, telephone and fax numbers and e mail address of the issuing judicial authority; (c) evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; (d) the nature and legal classification of the offence, particularly in respect of Article 2; (e) a description of the circumstances in which the offence was committed, including the time, place and degree of participation in the offence by the requested person; (f) the penalty imposed, if there is a final judgment, or the prescribed scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. 2. The European arrest warrant must be translated into the official language or one of the official languages of the executing Member State. Any Member State may, when this Framework Decision is adopted or at a later date, state in a declaration deposited with the General Secretariat of the Council that it will accept a translation in one or more other official languages of the Institutions of the European Communities. CHAPTER 2 SURRENDER PROCEDURE Article 9 Transmission of a European arrest warrant 1. When the location of the requested person is known, the issuing judicial authority may transmit the European arrest warrant directly to the executing judicial authority. 2. The issuing judicial authority may, in any event, decide to issue an alert for the requested person in the Schengen Information System (SIS). 3. Such an alert shall be effected in accordance with the provisions of Article 95 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of controls at common borders. An alert in the Schengen Information System shall be equivalent to a European arrest warrant accompanied by the information set out in Article 8(1). For a transitional period, until the SIS is capable of transmitting all the information described in Article 8, the alert shall be equivalent to a European arrest warrant pending the receipt of the original in due and proper form by the executing judicial authority. Article 10 Detailed procedures for transmitting a European arrest warrant 1. If the issuing judicial authority does not know the competent executing judicial authority, it shall make the requisite enquiries, including through the contact points of the European Judicial Network(8), in order to obtain that information from the executing Member State. 2. If the issuing judicial authority so wishes, transmission may be effected via the secure telecommunications system of the European Judicial Network. 3. If it is not possible to call on the services of the SIS, the issuing judicial authority may call on Interpol to transmit a European arrest warrant. 4. The issuing judicial authority may forward the European arrest warrant by any secure means capable of producing written records under conditions allowing the executing Member State to establish its authenticity. 5. All difficulties concerning the transmission or the authenticity of any document needed for the execution of the European arrest warrant shall be dealt with by direct contacts between the judicial authorities involved, or, where appropriate, with the involvement of the central authorities of the Member States. 6. If the authority which receives a European arrest warrant is not competent to act upon it, it shall automatically forward the European arrest warrant to the competent authority in its Member State and shall inform the issuing judicial authority accordingly. Article 11 Rights of a requested person 1. When a requested person is arrested, the executing competent judicial authority shall, in accordance with its national law, inform that person of the European arrest warrant and of its contents, and also of the possibility of consenting to surrender to the issuing judicial authority. 2. A requested person who is arrested for the purpose of the execution of a European arrest warrant shall have a right to be assisted by a legal counsel and by an interpreter in accordance with the national law of the executing Member State. Article 12 Keeping the person in detention When a person is arrested on the basis of a European arrest warrant, the executing judicial authority shall take a decision on whether the requested person should remain in detention, in accordance with the law of the executing Member State. The person may be released provisionally at any time in conformity with the domestic law of the executing Member State, provided that the competent authority of the said Member State takes all the measures it deems necessary to prevent the person absconding. Article 13 Consent to surrender 1. If the arrested person indicates that he or she consents to surrender, that consent and, if appropriate, express renunciation of entitlement to the "speciality rule", referred to in Article 27(2), shall be given before the executing judicial authority, in accordance with the domestic law of the executing Member State. 2. Each Member State shall adopt the measures necessary to ensure that consent and, where appropriate, renunciation, as referred to in paragraph 1, are established in such a way as to show that the person concerned has expressed them voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel. 3. The consent and, where appropriate, renunciation, as referred to in paragraph 1, shall be formally recorded in accordance with the procedure laid down by the domestic law of the executing Member State. 4. In principle, consent may not be revoked. Each Member State may provide that consent and, if appropriate, renunciation may be revoked, in accordance with the rules applicable under its domestic law. In this case, the period between the date of consent and that of its revocation shall not be taken into consideration in establishing the time limits laid down in Article 17. A Member State which wishes to have recourse to this possibility shall inform the General Secretariat of the Council accordingly when this Framework Decision is adopted and shall specify the procedures whereby revocation of consent shall be possible and any amendment to them. Article 14 Hearing of the requested person Where the arrested person does not consent to his or her surrender as referred to in Article 13, he or she shall be entitled to be heard by the executing judicial authority, in accordance with the law of the executing Member State. Article 15 Surrender decision 1. The executing judicial authority shall decide, within the time limits and under the conditions defined in this Framework Decision, whether the person is to be surrendered. 2. If the executing judicial authority finds the information communicated by the issuing Member State to be insufficient to allow it to decide on surrender, it shall request that the necessary supplementary information, in particular with respect to Articles 3 to 5 and Article 8, be furnished as a matter of urgency and may fix a time limit for the receipt thereof, taking into account the need to observe the time limits set in Article 17. 3. The issuing judicial authority may at any time forward any additional useful information to the executing judicial authority. Article 16 Decision in the event of multiple requests 1. If two or more Member States have issued European arrest warrants for the same person, the decision on which of the European arrest warrants shall be executed shall be taken by the executing judicial authority with due consideration of all the circumstances and especially the relative seriousness and place of the offences, the respective dates of the European arrest warrants and whether the warrant has been issued for the purposes of prosecution or for execution of a custodial sentence or detention order. 2. The executing judicial authority may seek the advice of Eurojust(9) when making the choice referred to in paragraph 1. 3. In the event of a conflict between a European arrest warrant and a request for extradition presented by a third country, the decision on whether the European arrest warrant or the extradition request takes precedence shall be taken by the competent authority of the executing Member State with due consideration of all the circumstances, in particular those referred to in paragraph 1 and those mentioned in the applicable convention. 4. This Article shall be without prejudice to Member States' obligations under the Statute of the International Criminal Court. Article 17 Time limits and procedures for the decision to execute the European arrest warrant 1. A European arrest warrant shall be dealt with and executed as a matter of urgency. 2. In cases where the requested person consents to his surrender, the final decision on the execution of the European arrest warrant should be taken within a period of 10 days after consent has been given. 3. In other cases, the final decision on the execution of the European arrest warrant should be taken within a period of 60 days after the arrest of the requested person. 4. Where in specific cases the European arrest warrant cannot be executed within the time limits laid down in paragraphs 2 or 3, the executing judicial authority shall immediately inform the issuing judicial authority thereof, giving the reasons for the delay. In such case, the time limits may be extended by a further 30 days. 5. As long as the executing judicial authority has not taken a final decision on the European arrest warrant, it shall ensure that the material conditions necessary for effective surrender of the person remain fulfilled. 6. Reasons must be given for any refusal to execute a European arrest warrant. 7. Where in exceptional circumstances a Member State cannot observe the time limits provided for in this Article, it shall inform Eurojust, giving the reasons for the delay. In addition, a Member State which has experienced repeated delays on the part of another Member State in the execution of European arrest warrants shall inform the Council with a view to evaluating the implementation of this Framework Decision at Member State level. Article 18 Situation pending the decision 1. Where the European arrest warrant has been issued for the purpose of conducting a criminal prosecution, the executing judicial authority must: (a) either agree that the requested person should be heard according to Article 19; (b) or agree to the temporary transfer of the requested person. 2. The conditions and the duration of the temporary transfer shall be determined by mutual agreement between the issuing and executing judicial authorities. 3. In the case of temporary transfer, the person must be able to return to the executing Member State to attend hearings concerning him or her as part of the surrender procedure. Article 19 Hearing the person pending the decision 1. The requested person shall be heard by a judicial authority, assisted by another person designated in accordance with the law of the Member State of the requesting court. 2. The requested person shall be heard in accordance with the law of the executing Member State and with the conditions determined by mutual agreement between the issuing and executing judicial authorities. 3. The competent executing judicial authority may assign another judicial authority of its Member State to take part in the hearing of the requested person in order to ensure the proper application of this Article and of the conditions laid down. Article 20 Privileges and immunities 1. Where the requested person enjoys a privilege or immunity regarding jurisdiction or execution in the executing Member State, the time limits referred to in Article 17 shall not start running unless, and counting from the day when, the executing judicial authority is informed of the fact that the privilege or immunity has been waived. The executing Member State shall ensure that the material conditions necessary for effective surrender are fulfilled when the person no longer enjoys such privilege or immunity. 2. Where power to waive the privilege or immunity lies with an authority of the executing Member State, the executing judicial authority shall request it to exercise that power forthwith. Where power to waive the privilege or immunity lies with an authority of another State or international organisation, it shall be for the issuing judicial authority to request it to exercise that power. Article 21 Competing international obligations This Framework Decision shall not prejudice the obligations of the executing Member State where the requested person has been extradited to that Member State from a third State and where that person is protected by provisions of the arrangement under which he or she was extradited concerning speciality. The executing Member State shall take all necessary measures for requesting forthwith the consent of the State from which the requested person was extradited so that he or she can be surrendered to the Member State which issued the European arrest warrant. The time limits referred to in Article 17 shall not start running until the day on which these speciality rules cease to apply. Pending the decision of the State from which the requested person was extradited, the executing Member State will ensure that the material conditions necessary for effective surrender remain fulfilled. Article 22 Notification of the decision The executing judicial authority shall notify the issuing judicial authority immediately of Article 23 Time limits for surrender of the person 1. The person requested shall be surrendered as soon as possible on a date agreed between the authorities concerned. 2. He or she shall be surrendered no later than 10 days after the final decision on the execution of the European arrest warrant. 3. If the surrender of the requested person within the period laid down in paragraph 2 is prevented by circumstances beyond the control of any of the Member States, the executing and issuing judicial authorities shall immediately contact each other and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. the decision on the action to be taken on the European arrest warrant. 4. The surrender may exceptionally be temporarily postponed for serious humanitarian reasons, for example if there are substantial grounds for believing that it would manifestly endanger the requested person's life or health. The execution of the European arrest warrant shall take place as soon as these grounds have ceased to exist. The executing judicial authority shall immediately inform the issuing judicial authority and agree on a new surrender date. In that event, the surrender shall take place within 10 days of the new date thus agreed. 5. Upon expiry of the time limits referred to in paragraphs 2 to 4, if the person is still being held in custody he shall be released. Article 24 Postponed or conditional surrender 1. The executing judicial authority may, after deciding to execute the European arrest warrant, postpone the surrender of the requested person so that he or she may be prosecuted in the executing Member State or, if he or she has already been sentenced, so that he or she may serve, in its territory, a sentence passed for an act other than that referred to in the European arrest warrant. 2. Instead of postponing the surrender, the executing judicial authority may temporarily surrender the requested person to the issuing Member State under conditions to be determined by mutual agreement between the executing and the issuing judicial authorities. The agreement shall be made in writing and the conditions shall be binding on all the authorities in the issuing Member State. Article 25 Transit 1. Each Member State shall, except when it avails itself of the possibility of refusal when the transit of a national or a resident is requested for the purpose of the execution of a custodial sentence or detention order, permit the transit through its territory of a requested person who is being surrendered provided that it has been given information on: (a) the identity and nationality of the person subject to the European arrest warrant; (b) the existence of a European arrest warrant; (c) the nature and legal classification of the offence; (d) the description of the circumstances of the offence, including the date and place. Where a person who is the subject of a European arrest warrant for the purposes of prosecution is a national or resident of the Member State of transit, transit may be subject to the condition that the person, after being heard, is returned to the transit Member State to serve the custodial sentence or detention order passed against him in the issuing Member State. 2. Each Member State shall designate an authority responsible for receiving transit requests and the necessary documents, as well as any other official correspondence relating to transit requests. Member States shall communicate this designation to the General Secretariat of the Council. 3. The transit request and the information set out in paragraph 1 may be addressed to the authority designated pursuant to paragraph 2 by any means capable of producing a written record. The Member State of transit shall notify its decision by the same procedure. 4. This Framework Decision does not apply in the case of transport by air without a scheduled stopover. However, if an unscheduled landing occurs, the issuing Member State shall provide the authority designated pursuant to paragraph 2 with the information provided for in paragraph 1. 5. Where a transit concerns a person who is to be extradited from a third State to a Member State this Article will apply mutatis mutandis. In particular the expression "European arrest warrant" shall be deemed to be replaced by "extradition request". CHAPTER 3 EFFECTS OF THE SURRENDER Article 26 Deduction of the period of detention served in the executing Member State 1. The issuing Member State shall deduct all periods of detention arising from the execution of a European arrest warrant from the total period of detention to be served in the issuing Member State as a result of a custodial sentence or detention order being passed. 2. To that end, all information concerning the duration of the detention of the requested person on the basis of the European arrest warrant shall be transmitted by the executing judicial authority or the central authority designated under Article 7 to the issuing judicial authority at the time of the surrender. Article 27 Possible prosecution for other offences 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States that have given the same notification, consent is presumed to have been given for the prosecution, sentencing or detention with a view to the carrying out of a custodial sentence or detention order for an offence committed prior to his or her surrender, other than that for which he or she was surrendered, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. Except in the cases referred to in paragraphs 1 and 3, a person surrendered may not be prosecuted, sentenced or otherwise deprived of his or her liberty for an offence committed prior to his or her surrender other than that for which he or she was surrendered. 3. Paragraph 2 does not apply in the following cases: (a) when the person having had an opportunity to leave the territory of the Member State to which he or she has been surrendered has not done so within 45 days of his or her final discharge, or has returned to that territory after leaving it; (b) the offence is not punishable by a custodial sentence or detention order; (c) the criminal proceedings do not give rise to the application of a measure restricting personal liberty; (d) when the person could be liable to a penalty or a measure not involving the deprivation of liberty, in particular a financial penalty or a measure in lieu thereof, even if the penalty or measure may give rise to a restriction of his or her personal liberty; (e) when the person consented to be surrendered, where appropriate at the same time as he or she renounced the speciality rule, in accordance with Article 13; (f) when the person, after his/her surrender, has expressly renounced entitlement to the speciality rule with regard to specific offences preceding his/her surrender. Renunciation shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's domestic law. The renunciation shall be drawn up in such a way as to make clear that the person has given it voluntarily and in full awareness of the consequences. To that end, the person shall have the right to legal counsel; (g) where the executing judicial authority which surrendered the person gives its consent in accordance with paragraph 4. 4. A request for consent shall be submitted to the executing judicial authority, accompanied by the information mentioned in Article 8(1) and a translation as referred to in Article 8(2). Consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision. Consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. The decision shall be taken no later than 30 days after receipt of the request. For the situations mentioned in Article 5 the issuing Member State must give the guarantees provided for therein. Article 28 Surrender or subsequent extradition 1. Each Member State may notify the General Secretariat of the Council that, in its relations with other Member States which have given the same notification, the consent for the surrender of a person to a Member State other than the executing Member State pursuant to a European arrest warrant issued for an offence committed prior to his or her surrender is presumed to have been given, unless in a particular case the executing judicial authority states otherwise in its decision on surrender. 2. In any case, a person who has been surrendered to the issuing Member State pursuant to a European arrest warrant may, without the consent of the executing Member State, be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant issued for any offence committed prior to his or her surrender in the following cases: (a) where the requested person, having had an opportunity to leave the territory of the Member State to which he or she has been surrendered, has not done so within 45 days of his final discharge, or has returned to that territory after leaving it; (b) where the requested person consents to be surrendered to a Member State other than the executing Member State pursuant to a European arrest warrant. Consent shall be given before the competent judicial authorities of the issuing Member State and shall be recorded in accordance with that State's national law. It shall be drawn up in such a way as to make clear that the person concerned has given it voluntarily and in full awareness of the consequences. To that end, the requested person shall have the right to legal counsel; (c) where the requested person is not subject to the speciality rule, in accordance with Article 27(3)(a), (e), (f) and (g). 3. The executing judicial authority consents to the surrender to another Member State according to the following rules: (a) the request for consent shall be submitted in accordance with Article 9, accompanied by the information mentioned in Article 8(1) and a translation as stated in Article 8(2); (b) consent shall be given when the offence for which it is requested is itself subject to surrender in accordance with the provisions of this Framework Decision; (c) the decision shall be taken no later than 30 days after receipt of the request; (d) consent shall be refused on the grounds referred to in Article 3 and otherwise may be refused only on the grounds referred to in Article 4. For the situations referred to in Article 5, the issuing Member State must give the guarantees provided for therein. 4. Notwithstanding paragraph 1, a person who has been surrendered pursuant to a European arrest warrant shall not be extradited to a third State without the consent of the competent authority of the Member State which surrendered the person. Such consent shall be given in accordance with the Conventions by which that Member State is bound, as well as with its domestic law. Article 29 Handing over of property 1. At the request of the issuing judicial authority or on its own initiative, the executing judicial authority shall, in accordance with its national law, seize and hand over property which: (a) may be required as evidence, or (b) has been acquired by the requested person as a result of the offence. 2. The property referred to in paragraph 1 shall be handed over even if the European arrest warrant cannot be carried out owing to the death or escape of the requested person. 3. If the property referred to in paragraph 1 is liable to seizure or confiscation in the territory of the executing Member State, the latter may, if the property is needed in connection with pending criminal proceedings, temporarily retain it or hand it over to the issuing Member State, on condition that it is returned. 4. Any rights which the executing Member State or third parties may have acquired in the property referred to in paragraph 1 shall be preserved. Where such rights exist, the issuing Member State shall return the property without charge to the executing Member State as soon as the criminal proceedings have been terminated. Article 30 Expenses 1. Expenses incurred in the territory of the executing Member State for the execution of a European arrest warrant shall be borne by that Member State. 2. All other expenses shall be borne by the issuing Member State. CHAPTER 4 GENERAL AND FINAL PROVISIONS Article 31 Relation to other legal instruments 1. Without prejudice to their application in relations between Member States and third States, this Framework Decision shall, from 1 January 2004, replace the corresponding provisions of the following conventions applicable in the field of extradition in relations between the Member States: (a) the European Convention on Extradition of 13 December 1957, its additional protocol of 15 October 1975, its second additional protocol of 17 March 1978, and the European Convention on the suppression of terrorism of 27 January 1977 as far as extradition is concerned; (b) the Agreement between the 12 Member States of the European Communities on the simplification and modernisation of methods of transmitting extradition requests of 26 May 1989; (c) the Convention of 10 March 1995 on simplified extradition procedure between the Member States of the European Union; (d) the Convention of 27 September 1996 relating to extradition between the Member States of the European Union; (e) Title III, Chapter 4 of the Convention of 19 June 1990 implementing the Schengen Agreement of 14 June 1985 on the gradual abolition of checks at common borders. 2. Member States may continue to apply bilateral or multilateral agreements or arrangements in force when this Framework Decision is adopted in so far as such agreements or arrangements allow the objectives of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants. Member States may conclude bilateral or multilateral agreements or arrangements after this Framework Decision has come into force in so far as such agreements or arrangements allow the prescriptions of this Framework Decision to be extended or enlarged and help to simplify or facilitate further the procedures for surrender of persons who are the subject of European arrest warrants, in particular by fixing time limits shorter than those fixed in Article 17, by extending the list of offences laid down in Article 2(2), by further limiting the grounds for refusal set out in Articles 3 and 4, or by lowering the threshold provided for in Article 2(1) or (2). The agreements and arrangements referred to in the second subparagraph may in no case affect relations with Member States which are not parties to them. Member States shall, within three months from the entry into force of this Framework Decision, notify the Council and the Commission of the existing agreements and arrangements referred to in the first subparagraph which they wish to continue applying. Member States shall also notify the Council and the Commission of any new agreement or arrangement as referred to in the second subparagraph, within three months of signing it. 3. Where the conventions or agreements referred to in paragraph 1 apply to the territories of Member States or to territories for whose external relations a Member State is responsible to which this Framework Decision does not apply, these instruments shall continue to govern the relations existing between those territories and the other Members States. Article 32 Transitional provision 1. Extradition requests received before 1 January 2004 will continue to be governed by existing instruments relating to extradition. Requests received after that date will be governed by the rules adopted by Member States pursuant to this Framework Decision. However, any Member State may, at the time of the adoption of this Framework Decision by the Council, make a statement indicating that as executing Member State it will continue to deal with requests relating to acts committed before a date which it specifies in accordance with the extradition system applicable before 1 January 2004. The date in question may not be later than 7 August 2002. The said statement will be published in the Official Journal of the European Communities. It may be withdrawn at any time. Article 33 Provisions concerning Austria and Gibraltar 1. As long as Austria has not modified Article 12(1) of the "Auslieferungs und Rechtshilfegesetz" and, at the latest, until 31 December 2008, it may allow its executing judicial authorities to refuse the enforcement of a European arrest warrant if the requested person is an Austrian citizen and if the act for which the European arrest warrant has been issued is not punishable under Austrian law. 2. This Framework Decision shall apply to Gibraltar. Article 34 Implementation 1. Member States shall take the necessary measures to comply with the provisions of this Framework Decision by 31 December 2003. 2. Member States shall transmit to the General Secretariat of the Council and to the Commission the text of the provisions transposing into their national law the obligations imposed on them under this Framework Decision. When doing so, each Member State may indicate that it will apply immediately this Framework Decision in its relations with those Member States which have given the same notification. The General Secretariat of the Council shall communicate to the Member States and to the Commission the information received pursuant to Article 7(2), Article 8(2), Article 13(4) and Article 25(2). It shall also have the information published in the Official Journal of the European Communities. 3. On the basis of the information communicated by the General Secretariat of the Council, the Commission shall, by 31 December 2004 at the latest, submit a report to the European Parliament and to the Council on the operation of this Framework Decision, accompanied, where necessary, by legislative proposals. 4. The Council shall in the second half of 2003 conduct a review, in particular of the practical application, of the provisions of this Framework Decision by the Member States as well as the functioning of the Schengen Information System. publication in the Official Journal of the European Communities. Article 35 Entry into force This Framework Decision shall enter into force on the twentieth day following that of its Done at Luxembourg, 13 June 2002. For the Council The President M. Rajoy Brey LORD WALKER In agreement with Lord Phillips, Lord Brown, Lord Kerr and Lord Dyson, I would dismiss this appeal. The reasoning of the majority that I find most compelling is that on the application of the Vienna Convention (Lord Phillips paras 67 to 76; Lord Brown para 95; Lord Kerr paras 106 to 109; Lord Dyson paras 127 to 141) and on the non application of the principle in Pepper v Hart [1993] AC 593 (Lord Phillips paras 11 to 13; Lord Brown paras 96 to 98; Lord Kerr paras 114, 115, 118 and 119; Lord Dyson paras 160 to 170). The parliamentary material, as set out in paras 247 to 264 of Lord Mances powerful judgment, is certainly disturbing. But I consider that it would be at least one step too far, in constitutional terms, for this court to treat it as determinative. If the parliamentary material is disregarded, as I think it must be, the Vienna Convention point is to my mind determinative. It would serve no useful purpose for me to express my opinion on other points on which different members of the majority may take rather different views. LORD BROWN I too conclude, in common with the great majority of the Court, that the term judicial authority within the meaning of the Framework Decision is properly to be understood as including public prosecutors. Although, like some others, I am inclined to base this conclusion principally upon the fifth of Lord Phillips reasons (paras 67 71 of his judgment), I would certainly not discount entirely the various other strands of reasoning on which he relies. On this first (and, to my mind ultimately critical) issue in the appeal there is nothing more I wish to say. I do, however, wish to address Lord Mances judgment, in favour of allowing the appeal, on the second issue, the true construction of the Extradition Act 2003, much of the reasoning underlying which I confess that at one time I too found attractive. It rests above all on a close analysis of the parliamentary material surrounding the enactment of the 2003 Act and Lord Mances conclusion based on this material a conclusion with which I entirely agree firstly, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate, and did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors and, secondly, that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice (Lord Mance, paras 261, 262). Whereas, however, it is Lord Mances judgment that by operation of the rule in Pepper v Hart [1993] AC 593, this conclusion requires the uncertainty [and] ambiguity about what Parliament meant (Lord Mance, para 246) by the term judicial authority in the 2003 Act to be given a more restricted meaning than the majority of the Court (including in this instance Lord Mance himself) would give the term in the Framework Decision, I for my part have arrived clearly at the opposite conclusion. To my mind, once one recognises that a judicial authority within the meaning of the Framework Decision is properly capable of encompassing a public prosecutor, this Court, the parliamentary material notwithstanding, is inexorably bound to construe the identical term in the 2003 Act no less widely. Certainly the term in the 2003 Act can be regarded as uncertain and ambiguous. But the interpretative guide here is not, in the context of legislation implementing a Framework Decision, Pepper v Hart; rather it is Criminal proceedings against Pupino (Case 105/03) [2006] QB 83, a decision of the Court of Justice consistently applied in a series of later House of Lords decisions to construe the 2003 Act so as to attain the ends sought by the Framework Decision. Indeed, even were the Pupino imperative not in play (which now appears may well be the correct view), the general presumption that the United Kingdom legislates in compliance with its international obligations would produce the same result. True it is that on the Second Reading of the Bill on 1 May 2003 Lord Filkin confirmed that Parliament is indeed sovereign and so can if it wishes legislate inconsistently with the United Kingdoms treaty obligations (see para 204 of Lord Mances judgment). But it is not as if in the various exchanges relied upon by the appellant here ministers were saying to Parliament: whatever may be the true meaning of judicial authority in the Framework Decision, we are assuring you that in the 2003 Act it is to be confined to courts, judges and magistrates. There was here no hint of a suggestion by ministers that, in so construing the term judicial authority in the 2003 Act, the United Kingdom might not be fully implementing its obligations under the Framework Decision. The plain (and, if the Bill of Rights permits the Court to say so, regrettable) fact is that the ministers were mistaken about the true scope of the term in the Framework Decision (just as they were as to the practice which had operated throughout the earlier extradition regime). Where, as here, Parliament uses the very same term as appears in the Framework Decision, in my judgment that term could only legitimately be given a different and narrower meaning than it bears in the Framework Decision if it were absolutely plain that Parliament had intended to legislate inconsistently with the United Kingdoms international obligations. All that is plain here is that certain members of the respective Houses were at various times unintentionally misled as to just what those obligations were. I too would dismiss this appeal. LORD KERR The expression judicial authority, if removed from the extradition (or, more properly, surrender) context, would not be construed so as to include someone who was a party to the proceedings in which the term fell to be considered. A judicial authority must, in its ordinary meaning and in the contexts in which the expression is encountered in this jurisdiction other than that of surrender, be an authority whose function is to make judicial decisions. The essence of a judicial decision (in the normal use of that term) is that it should have the attributes of independence and impartiality. If one were approaching the question free from the terms of the Framework Decision and without the background that many civil law systems regard prosecutors as part of the judicial cadre (which must have been in the contemplation of those who drafted the Framework Decision), the question whether judicial authority meant someone who was neutral and disinterested in the outcome of the dispute would scarcely need to be asked. The central issues on this appeal are, therefore, 1. whether the Framework Decision in its use of the term must be taken to have intended that those who decided whether a European Arrest Warrant should be issued did not require to have the attributes of independence and impartiality; and 2. whether the 2003 Act can and must be read so as to reflect that intention. As Lord Phillips has pointed out, had the Framework Decision been made in the terms of the September 2001 draft, there could have been no debate as to whether public prosecutors came within the rubric, judicial authority. How is the removal of the definition from the final draft to be approached? Lord Phillips has concluded that the more probable explanation is that the removal of the definition was prompted by a desire to broaden the possible embrace of the expression so as to extend it beyond judges and prosecutors. If it were otherwise, it would have been, he has said, a radical change and would have prevented public prosecutors from carrying out functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. Lord Dyson has suggested that the fundamental change in the system of extradition that had been introduced by the Framework Decision makes it difficult to reach any conclusion as to whether it was intended that the role for prosecutors of issuing extradition arrest warrants should be preserved or abandoned. Lord Mance felt that the Court of Justice of the European Union would be hesitant about speculating as to the reasons for the differences between the Commissions original proposal and the 10 December 2001 text. On that account, Lord Mance suggests, it is at least as likely that the removal of the definition reflected a lack of consensus and that it was intended to leave the matter open for subsequent decision by the Court of Justice. For the reasons given by Lord Mance, a decision by the Court of Justice as to the significance of the omission cannot be obtained at present and this court must therefore confront that question directly. I can see force in all three views as to the importance (or lack of it) to be attached to possible reasons for the alteration of the September draft. But the inescapable fact is that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition for many years. This was a firmly embedded practice in many jurisdictions. To bring that practice to an end would indeed have wrought a radical change. A substantial adjustment to administrative practices in many countries would have been required. It may well be, as Lord Mance has suggested, that agreement on this intensely controversial subject could not be reached. But the consequence of that must surely be that there was no accord as to the removal of prosecutors from that role. Lord Mance has said that the Court of Justice would (in these circumstances) focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law (para 233). I respectfully agree but would add that the court would surely not ignore what had gone before or the major modification of the hitherto well entrenched arrangements in many jurisdictions that would be required to bring about an end to the issue of arrest warrants by prosecutors. If it had been intended that those arrangements were to be swept away, one would have expected that this would have been more explicitly stated. I accept, of course, that the absence of such an explicit statement does not finally determine the question but it would be incongruous that it be left to member states under article 6 of the Framework Decision to determine which body or person should constitute a judicial authority within its legal system for the purpose of issuing a European arrest warrant. I agree with Lord Mance that the object of this provision is to require member states to identify which judicial authority is competent, rather than to confer on them the power to assign judicial status to persons or bodies that would not otherwise possess it. But if the effect of the Framework Decision were to be that only persons or bodies possessed of the attributes of impartiality and independence were to be considered as eligible judicial authorities, the need for the article 6 power is not easy to find. If only an independent and impartial body or person could fulfil that role, the purpose in allowing member states to identify such a person or body seems otiose. It seems to me likely, therefore, that the Court of Justice would find that the role of prosecutors in issuing arrest warrants for those whose extradition was sought, traditional in many member states before the introduction of the Framework Decision, was not extinguished by its provisions. That preliminary conclusion is strongly fortified by the consideration that a significant number of member states have nominated public prosecutors as issuing judicial authorities since the Framework Decision has come into force. Once again I agree with Lord Mance that, alone, this is not a conclusive factor. Article 31.3(b) of the Vienna Convention on the Law of Treaties requires that subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation (emphasis supplied) is to be taken into account. In the passage from Villiger in Commentary on the 1969 Vienna Convention on the Law of Treaties, (Leiden, 2009) quoted by Lord Dyson at para 130 of his judgment, it is suggested that what is required to establish the agreement of the parties is that there should be active practice on the part of at least some of the parties to the treaty; that this should not be haphazard; and it must have been acquiesced in or at least not objected to by the other parties. Lord Dyson considered that the practice of appointing prosecutors as judicial authorities was sufficiently widespread and free from objection to meet these criteria and, in so far as this conclusion relates to judicial authorities who issue European Arrest Warrants, I agree. Lord Mance has suggested, however, that the appointment by some member states of prosecutors to the role of executing judicial authorities is suspect and that therefore the requirements of article 31.3(b) had not been fulfilled so far as those appointments are concerned. It is, I think, unnecessary for the purposes of this appeal to decide whether the nomination of prosecutors as competent to perform some of the functions of the executing judicial authorities is capable of prompting the invocation of article 31.3(b). I certainly agree with Lord Mance that some of those functions could only be discharged by a judicial figure or body such as a judge or a court. The appointment of a prosecutor as the exclusive executing judicial authority is, therefore, of dubious validity. That does not mean (or, at least, does not necessarily mean) that the fact that some member states have included prosecutors among the judicial authorities that could discharge some of the executing functions is irrelevant to the possible use of article 31.3(b) in relation to those functions which need not be carried out by a judge or court. But that does not need to be decided now. The critical question in the present appeal is whether there is a sufficiently widespread and uncontroversial practice in relation to issuing authorities to allow that provision to come into play in the case of prosecutors who issue European Arrest Warrants. As I understand it, Lord Dysons conclusion that there is has been accepted by Lord Mance and I agree with both. Even if I had been of the view that the necessary pre conditions for the activation of article 31.3(b) were not present, the possible relevance of such practice as exists would not have ended there. As Lord Mance has pointed out, Brownlie in Principles of Public International Law, 7th ed (2008), suggests that subsequent practice by individual parties, falling short of showing that there has been universal agreement as to the propriety of the nomination of judicial authorities, is nevertheless of some probative value. The continuing widespread use of prosecutors as issuing judicial authorities, without demur from the European Commission, and with apparent acceptance by member states who have nominated only judges or courts as their own issuing judicial authorities must, on any showing, indicate strongly that the Framework Decision does not exclude prosecutors from the category of issuing judicial authorities. Lord Mance has concluded that the European legal answer is obscure. The legal answer in this context is, presumably, that to be given to the question, may a prosecutor be an issuing judicial authority for the purposes of the Framework Decision. While I am prepared to accept that the answer to that question is not immediately obvious, I would certainly not be disposed to agree that the answer is obscure, if by that term it is meant that its meaning is uncertain or doubtful. In my view there really can be no doubt that the Framework Decision permits prosecutors to be issuing judicial authorities for European Arrest Warrants and must therefore be taken as having intended that prosecutors should fulfil that role. That being the case, must the Extradition Act 2003 be interpreted in a way that will accord with that intention? In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less. Lord Mance has identified a possible tension between this approach and that of Lord Hope in the same case where the latter said, at paras 20, 24, that the introduction of the European arrest warrant system was highly controversial and that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, because the liberty of the subject was at stake. These considerations led Lord Hope to the view that where there were differences between the Framework Decision and the 2003 Act, it was to be assumed that Parliament had introduced those differences in order to protect against unlawful interference with the right to liberty. It had been assumed that the decision of the Court of Justice of the European Union in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 would require national courts, in applying national law which purported to give effect to the Framework Decision, to do so in a manner that will attain the result which it pursues (para 43), Lord Mance has now authoritatively demonstrated that this is not the case. But of the proposition that the 2003 Act was enacted in order to give effect to the Framework Decision there can be no doubt. The domestic law presumption that Parliament did not intend to legislate contrary to the United Kingdoms international obligations under the Framework Decision may not be as strong in terms of injunctive force as the Pupino prescription but it is nevertheless a factor of considerable potency in determining the proper interpretation to be given to the 2003 Act. This is particularly so in light of the scheme of surrender that the Framework Decision introduced. As Lord Dyson has pointed out, the twin assumptions referred to by Lord Bingham in Cando Armas did not depend on the Pupino principle. Importantly, Lord Bingham considered it clear that Parliament must be taken to have intended that the 2003 Act would provide a measure of co operation by the United Kingdom which at least matched that provided for in the Framework Decision. To give the expression judicial authority a different meaning and scope for the purpose of the 2003 Act from that in the Framework Decision would reduce significantly the level of co operation by the United Kingdom from that intended by the Framework Decision. This would, at a stroke, prevent extradition to the significant number of member states who have nominated public prosecutors as issuing judicial authorities. Lord Mance has painstakingly analysed much of the legislative history of the 2003 Act and has concluded that ministers gave repeated assurances or allowed assumptions to be made that an issuing judicial authority would have to be a court, judge or magistrate before a surrender warrant could be executed in the United Kingdom. I agree with Lord Dyson that the various utterances and statements made by ministers do not partake of the clear and unequivocal character that would permit a confident view to be performed that it was Parliaments intention (as opposed to an individual ministers aspiration) that an issuing judicial authority must be a court. Quite apart from this, however, there are compelling reasons for concluding that, whatever may have exercised individual ministers or members during the passage of the Bill which became the 2003 Act, Parliament cannot be taken as having intended to legislate in a way that confined judicial authority to the scope of application for which the appellant contends. For this to be the parliamentary intention, rather than the hope and expectation of some Members of Parliament or even ministers, an unambiguous intent would have had to be formed that the new surrender scheme would be severely curtailed in terms of its operation in the United Kingdom. It would be surprising, not to say astonishing, if it was considered that such a radical circumscription of the operation of the new scheme could be achieved by using the same term as was employed in the Framework Decision, judicial authority. This would involve giving the term a significantly more restricted meaning than that it enjoyed in the Framework Decision context. Why would precisely the same expression be used by Parliament if it was meant to have a markedly different connotation? If it was intended that judicial authority should mean a court, why should that not be made unmistakably clear? Finally, Parliaments intention to depart from the Framework Decisions meaning of the term judicial authority would involve a rebuttal of the strong presumption that it would legislate in a way that would fulfil its international obligations. It cannot have been lost on legislators here that, if the United Kingdom was prepared only to execute warrants from judicial authorities that were courts or the like, there was at least a distinct possibility that warrants from a significant number of countries would not be executed. I cannot believe that Parliament could have intended to espouse an interpretation which would effectively debar extradition from a number of the subscribing states to the Framework Decision. Returning to the theme of the possible tension between the views of Lord Bingham and Lord Hope on the possible significance in differences between the 2003 Act and the Framework Decision, it is true , as Lord Mance has pointed out in para 205 of his judgment, that Lord Hope repeated what he had said in Cando Armas in para 35 of his speech in Dabas but this must be viewed in light of the subsequent case of Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724 in which Lord Hope expressed unqualified agreement with the opinion of Lord Bingham. At para 23 of Lord Binghams speech he said: Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. Such was the case in In re Coppin LR 2 Ch App 47, where Lord Chelmsford LC considered a form of judgment unknown in this country, and in R v Governor of Brixton Prison, Ex p Caborn Waterfield [1960] 2 QB 498, where the court examined and contrasted the legal effect, in France, of on the one hand a jugement par dfaut and an arrt de contumace and on the other a jugement itratif dfaut: the latter was final, the former were not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. It would be destructive of the international co operation between states to interpret the 2003 Act in a way that prevented prosecutors from being recognised as legitimate issuing judicial authorities for European Arrest Warrants, simply because of the well entrenched principle in British law that to be judicial is to be impartial. Lord Mance has suggested that Parliament had correctly identified that the Framework Decision was not conclusive. This was a reference to general observations by the minister, Lord Filkin, during the passage of the Bill through the House of Lords, to the effect that Parliament had the power to amend laws, notwithstanding the expectation that, where the government had been a party to a framework agreement, it would give effect to this in national law. Lord Filkins comments do not provide the basis for a conclusion that the meaning of the Framework Decision is obscure or that there is any ambiguity as to the meaning of judicial authority in this instrument and the 2003 Act. If, as I consider it to be, the purpose of the Framework Decision is to sanction the issue of European Arrest Warrants by persons who did not possess the attributes of impartiality and independence by recognising that they may qualify as judicial authorities, there is no difficulty as a matter of textual analysis in ascribing the same meaning to section 2(2). As Lord Filkin said, Parliament is sovereign. As a matter of constitutional theory, it could decide to restrict the meaning of judicial authority to a narrower compass than that intended by the Framework Decision. In my view, there is no reason to conclude that it did so. I would therefore dismiss the appeal. LORD DYSON Introduction On 27 September 2010, the Swedish Prosecution Authority ordered the arrest of Mr Assange in respect of complaints by two women of rape and sexual molestation. The lawfulness of the order was challenged Mr Assange in the Svea Court of Appeal in Sweden. The Court of Appeal upheld the arrest warrant and on 2 December 2010 a European Arrest Warrant (EAW) was issued by Marianne Ny, a Director of Public Prosecutions with the Swedish Prosecution Authority, seeking the arrest and surrender of Mr Assange who was in England at the time. The EAW described four offences of rape and sexual assault alleged to have been committed by him. The issue that arises in these proceedings is whether an EAW issued by a public prosecutor is a valid warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003 (the EA). The Divisional Court (Sir John Thomas P and Ouseley J) held that it was. The aim and objective of the Framework Decision It is common ground that the EA was enacted in order to give effect to the Framework Decision on the European Arrest Warrant 2002/584/JHA (the Framework Decision). I agree with Lord Mance that, for the reasons that he gives at paras 207 217 below, the duty of conforming interpretation under European law, which the European Court of Justice held in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 to exist in the context of framework decisions, does not apply in relation to the Framework Decision. But there is no doubt that there is a strong presumption in favour of interpreting an English statute in a way which does not place the United Kingdom in breach of its international obligations: see, for example, per Lord Hoffmann in R v Lyons [2003] 1 AC 976, para 27. It is worth repeating what Lord Bingham said in Office of the Kings Prosecutor, Brussels v Cando Armas [2006] 2 AC 1 at para 8, because his comments about the correct approach to the interpretation of the EA do not seem to have been influenced by the Pupino principle. He said: Part 1 of the 2003 Act did not effect a simple or straightforward transposition, and it did not on the whole use the language of the Framework Decision. But its interpretation must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of cooperation by the United Kingdom than the Decision required, it did not intend to provide for less. I would approach the correct interpretation of the EA in the same way. But before I reach the EA, I need to consider the meaning of the issuing judicial authority in article 6.1 of the Framework Decision. It is important to start with the background to the Framework Decision which Lord Phillips has set out at paras 26 to 35 and 39 to 42. Its object was to replace the existing political state to state process of extradition with a simplified system of surrender involving judicial authorities. The new scheme was based on the principle that the Member States had mutual trust and confidence in the integrity of their legal and judicial systems and would therefore respect and recognise each others judicial decisions. The preamble to the Framework Decision makes this clear: (5) The objective set for the Union to become an area of freedom, security and justice leads to abolishing extradition between Member States and replacing it by a system of surrender between judicial authorities. Further, the introduction of a new simplified system of surrender of sentenced or suspected persons for the purposes of execution or prosecution of criminal sentences makes it possible to remove the complexity and potential for delay inherent in the present extradition procedures. Traditional cooperation relations which have prevailed up till now between Member States should be replaced by a system of free movement of judicial decisions in criminal matters, covering both pre sentence and final decisions, within an area of freedom, security and justice. (6) The European arrest warrant provided for in this Framework Decision is the first concrete measure in the field of criminal law implementing the principle of mutual recognition which the European Council referred to as the cornerstone of judicial cooperation. The nature of the change was described well by Adv Gen Ruiz Jarabo Colomer in his opinion in Advocaten voor de Wereld VZW v Leden van de Ministeraad (Case C 303/05) [2007] ECR I 3633, 3651 3652: 41. The move from extradition to the European arrest warrant constitutes a complete change of direction. It is clear that both concepts [extradition and surrender under an EAW] serve the same purpose of surrendering an individual who has been accused or convicted of an offence to the authorities of another State so that he may be prosecuted or serve his sentence there. However, that is where the similarities end. 42. In the case of extradition, contact is initiated between two sovereign States, the requester and the requested, each of which acts from an independent position. One state asks for the cooperation of the other State which decides whether to provide that cooperation on a case by case basis, having regard to grounds which exceed the purely legal sphere and enter into the scope of international relations, where the principle of opportuneness plays an important role. Accordingly, the intervention of politicians and criteria such as reciprocity and double criminality are justified because they have their origins in different spheres. 43. The nature of the situation changes when assistance is requested and provided in the context of a supranational, harmonised legal system where, by partially renouncing their sovereignty, States devolve power to independent authorities with law making powers. The meaning of judicial authority in article 6.1 With this introduction, I can turn to the question of interpretation: what does the phrase judicial authority in article 6.1 of the Framework Decision mean? Clearly, it includes a judge. But is it limited to a judge? In answering these questions, it is necessary to bear in mind that the Framework Decision is a European instrument which was agreed by states which have different legal systems and traditions. As the Divisional Court pointed out, we should be careful not to be overly influenced by the legal systems and traditions of the United Kingdom with its long established and deeply rooted common law ideas of the essential characteristics of a judicial authority. The language of the text is the correct starting point. But one immediately runs into the problem that the phrase judicial authority in the French version is autorit judiciaire and that judiciaire is capable of bearing a narrow meaning (which would coincide with the English common law idea of judicial) and a wider meaning (pertaining to law or the legal system): see para 18 above. It follows that the use of the phrase judicial authority does not of itself provide the answer to the question of interpretation. It is necessary to look elsewhere. Article 3(b) of the September 2001 draft Framework Decision provided that an issuing judicial authority means the judge or the public prosecutor of a Member State, who has issued a[n EAW]. Lord Phillips suggests that there are two possible explanations for the decision to exclude the definition from the final version of the Framework Decision. The first is that it was to restrict the meaning of the phrase by removing the public prosecutor from the definition. The second is that it was to enlarge its meaning so as not to restrict it to a judge or public prosecutor. We have seen no material which explicitly shows why the Member States agreed to make the change. Lord Phillips has given a number of inferential reasons for concluding that the second explanation is the more probable. Rather than seeking to infer the reason why the Member States changed the definition, I prefer to concentrate on how the relevant part of the Framework Decision has been applied and viewed in practice. I agree with Lord Phillips that the manner in which the Member States, the Commission and the Council acted after the Framework Decision took effect was in stark conflict with a judicial authority being restricted to a judge. The statistics are that in relation to accusation EAWs, in 11 Member States the issuing authority is a public prosecutor, in 17 it is a judge and in 2 it is the Ministry of Justice. In relation to conviction EAWs, in 10 Member States the issuing authority is a public prosecutor, in 14 it is a judge and in 6 it is the Ministry of Justice or National Police Board. Article 31.3 of the Vienna Convention on the Law of Treaties provides that, in interpreting a treaty, there shall be taken into account, together with the context:. (b) any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. In his Commentary on the 1969 Vienna Convention on the Law of Treaties,(Leiden, 2009) Villiger states of article 31.3(b): it requires active practice of some parties to the treaty. The active practice should be consistent rather than haphazard and it should have occurred with a certain frequency. However, the subsequent practice must establish the agreement of the parties regarding its interpretation. Thus, it will have been acquiesced in by the other parties; and no other party will have raised an objection. The fact that it is only in the majority (and not all) of the Member States that the issuing judicial authority is a judge is not inconsistent with the existence of an agreement established by subsequent practice that a public prosecutor may be a judicial authority within the meaning of the Framework Decision. There is nothing to suggest that Member States which do not have public prosecutors as their issuing judicial authorities criticise those that do. More particularly, we have been shown no evidence that, until the present case, any executing state objected to surrendering a person on the grounds that the EAW was issued by a public prosecutor. In my view, this is powerful evidence that even those Member States whose issuing judicial authorities are judges acquiesce in EAWs being issued in other Member States by public prosecutors. That is a sufficient practice to establish agreement by the Member States. As regards the Council, article 34.4 of the Framework Decision requires it to conduct a review of the practical application of the provisions of the Framework Decision by the Member States. The fourth round of mutual evaluations was assigned to the practical application of the European Arrest Warrant and corresponding surrender procedures between Member States. The evaluation process was conducted between March 2006 and April 2009. It is a striking feature of the evaluation reports that they contain no criticism of those states that have designated prosecutors as competent to issue EAWs; and the article 34 reports dated 24 January 2006 and 11 July 2007 contain no criticism of the use of public prosecutors as judicial authorities either. They do, however, find regrettable the fact that an executive body has been appointed as the competent judicial authority by a number of Member States. This is clearly a reference to the designation of their Ministry of Justice by those states. The Councils Final Report on the fourth round of mutual evaluations dated 28 May 2009 contains a complaint that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decison. This is clearly a reference to those states where the role of the judicial authority is assigned to the Minister of Justice or some emanation of the police. But I agree with Lord Phillips that there is no indication in this report either that it was objectionable for a public prosecutor to issue an EAW. Denmark, Estonia, Finland, Germany and Lithuania all designated their Ministry of Justice as the issuing judicial authority. The evaluation reports on Denmark, Germany and Lithuania criticised these designations, although the reports did not criticise the Estonian or Finnish designations. Miss Rose QC submits that these omissions suggest that caution should be exercised in attaching too much significance to what is not stated in evaluation reports. The reports cover a great deal of ground and their main concern is to see what problems are occurring in relation to the application of the EAW system as a whole. It can also be said that these reports contain little criticism of those states that have designated prosecutors to execute EAWs either. And yet, as was recognised by the Divisional Court and as is common ground, only a judge is a judicial authority for the purpose of executing an EAW. I would, therefore, accept that the evaluation reports and the article 34 reports should be treated with some caution. They do not purport to be authoritative rulings on the implementation of the Framework Decision. But they do contain some criticisms of the practice of the Member States. It is striking that there is no criticism of the use of public prosecutors as judicial authorities. In my view, they provide support for the view that a public prosecutor can be an issuing judicial authority within the meaning of article 6.1 of the Framework Decision. A further point made by Miss Montgomery QC is that in Criminal proceedings against Leymann and Pustovarov (Case C 388/08) [2008] ECR I 8983, the ECJ made no adverse comment on the fact that the case concerned proceedings in Finland resulting from the issue of an EAW by the Helsinki District Public Prosecutor. But in my view, it would be wrong to make too much of this point, since it is not discussed in the judgment of the court. Apart from the way in which the relevant provision of the Framework Decision has been applied in practice by the Member States and viewed by the Council and the Commission, there is further support for the view that the Member States considered that a public prosecutor could be an issuing judicial authority. First, as we have seen, an issuing judicial authority was defined in the September 2001 draft as meaning the judge or the public prosecutor of a Member State. Miss Rose submits that the withdrawal of this definition shows that the Member States decided that a public prosecutor would not be included in the definition of an issuing judicial authority. As I have said, there is no evidence as to why they decided to abandon this definition. But more important for present purposes is the fact that, at one stage in the negotiations, the Member States were willing to countenance the idea that an issuing judicial authority should include a public prosecutor. If they had been of the view that a judicial authority could not in any circumstances be a public prosecutor, it is remarkable that they were willing to include a public prosecutor in the definition at any stage of the negotiations. In my view, the inclusion of a public prosecutor in the definition of a judicial authority in the September 2001 draft shows that the Member States did not regard it as objectionable in principle to treat a public prosecutor as a judicial authority. Secondly, it is instructive to consider other instances where the term judicial authority has been adopted in other analogous EU instruments which (like the Framework Decision) seek to further a system of free movement of judicial decisions within an area of freedom, security and justice: see recital 5 of the preamble to the Framework Decision. Among the other Framework Decisions based on the Tampere Proposals (to which Lord Phillips refers at para 42 above) is the Council Framework Decision 2008/978/JHA of 18 December 2008 on the European Evidence Warrant (EEW) for the purpose of obtaining objects, documents and data for use in proceedings in criminal matters. Recital 8 of the preamble sets out the meaning of judicial authority in these terms: The principle of mutual recognition is based on a high level of confidence between Member States. In order to promote this confidence, this Framework Decision should contain important safeguards to protect fundamental rights. The EEW should therefore be issued only by judges, courts, investigating magistrates, public prosecutors and certain other judicial authorities as defined by Member States in accordance with this Framework Decision. It goes on to provide at article 2: (c) issuing authority shall mean: (i) a judge, a court, an investigating magistrate, a public prosecutor or (ii) any other judicial authority The Explanatory Memorandum to the proposal for the EEW Framework Decision explained at para 47: In the issuing State, the issuing judicial authority is limited to judges, investigating magistrates or prosecutors. Similarly, the Council Framework Decision 2006/960/JHA of 18 December 2006 on simplifying the exchange of information and intelligence between law enforcement agencies of the Member States in defining a criminal investigation refers to a procedural stage within which measures are taken by competent law enforcement or judicial authorities, including public prosecutors. There are other examples to similar effect, but it is unnecessary to refer to any more. Miss Rose submits that these examples show that, where an EU mutual recognition instrument intends to empower a public prosecutor to exercise functions that are to be mutually recognised, it says so. By way of contrast, she points to other Framework Decisions where the term judicial authority is not defined, for example, the Framework Decision on the execution in the European Union of orders freezing property or evidence, 22 July 2003 (2003/577/JHA) and the Framework Decision on the application of the principle of mutual recognition to confiscation orders, 6 October 2006 (2006/783/JHA). She submits that the scheme of these instruments (and others like the Framework Decision), where the judicial authority is not defined, is that Member States may select from within their pool of judicial authorities, as defined by human rights norms and jurisprudence, the subset which are competent to perform the allotted task. But the important point for present purposes is that it can be seen that there are EU instruments, whose aim is to promote co operation and mutual recognition by Member States in criminal matters within the EU area, which define a judicial authority as including a public prosecutor. This is further evidence that there is a common understanding among the Member States that, at any rate in the context of instruments whose purpose is to promote such an aim, a public prosecutor may be a judicial authority. In my view, the material that I have set out at paras 129 to 140 above provides formidable support for the respondents case. The principal argument that Miss Rose advances the other way is that, since there is no definition of judicial authority in the Framework Decision, the expression should be construed in accordance with established EU law norms. She argues as follows. All EU Member States are High Contracting Parties to the European Convention on Human Rights (ECHR) and it is a fundamental norm of EU law that EU measures should not be construed in a manner which is inconsistent with the ECHR: see, for example, Elliniki Radiophonia Tileorassi AE v Dimotiki Etairia Pliroforasiss (Case C 260/89) [1991] ECR I 2925. Article 6 of the Treaty on European Union (TEU) provides: (1) The Union recognises the rights, freedoms and principles set out in the Charter of Fundamental Rights of the European Union of 7 December 2000, as adapted at Strasbourg on 12 December 2007, which shall have the same legal value as the Treaties. (2) The Union shall accede to the European Convention for the Protection of Human Rights and Fundamental Freedoms. (3) Fundamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States, shall constitute general principles of the Unions law. I accept that the EAW system was always intended to comply with the ECHR. Thus recital 12 to the preamble to the Framework Decision provides that This Framework Decision respects fundamental rights and observes the principles recognised by article 6 of the [TEU] and reflected in the Charter of Fundamental Rights of the European Union. . Article 1.3 of the Framework Decision states: This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the [TEU]. The importance of upholding fundamental rights has been repeatedly emphasised by the Commission. It is sufficient to refer to its Green Paper on Strengthening mutual trust in the European judicial area (2011) COM/2011/ 0327 which confirms at para 3.1: While the EAW has proved to be a very useful tool to ensure that criminals cannot use borders to evade justice, particularly in relation to serious and organised crime with a cross border dimension, its implementation, including the core principle of mutual recognition on which it is based, must respect fundamental rights. Moving from the general to the particular, Miss Rose relies on the jurisprudence of the European Court of Human Rights (the ECtHR) to support the proposition that public prosecutors cannot be officer[s] authorised by law to exercise judicial power within the meaning of article 5(3) of the ECHR. There is no doubt that this proposition is correct. The leading authority is Schiesser v Switzerland (1979) 2 EHRR 417. An officer authorised by law to exercise judicial power must be independent of the executive and of the parties. This principle was applied in Skoogstrm v Sweden (1983) 6 EHRR 77 where it was held that a Swedish prosecutor could not be a judge or other officer authorised by law to exercise judicial power. This was not because the prosecutor was part of the executive. That fact alone did not mean that the public prosecutor was not independent for the purposes of article 5.3, because the public prosecutor enjoyed a personal independence. But the court held that the Swedish public prosecutor did not satisfy the requirements of article 5.3 because he or she was not independent of the parties. Miss Rose places particular reliance on Skoogstrm because it is a decision about the Swedish public prosecutor. In short, therefore, she submits that a construction of judicial authority in the Framework Decision which conforms to ECHR principles must lead to the conclusion that a public prosecutor does not satisfy the definition. The decisions of the ECtHR on article 5.3 are determinative. I cannot accept this argument. As we have seen, the Framework Decision respects fundamental rights and shall not have the effect of modifying the obligation to respect fundamental rights. But as Miss Montgomery points out, there is no principle of ECHR law which requires decisions to arrest to be made by an impartial judge. Arrests may be ordered and effected by persons (such as police officers) who are not judges and who are not impartial. The lawful arrest or detention of a person effected for the purpose of bringing him before a competent legal authority on reasonable suspicion of having committed an offence is specifically authorised by article 5.1(c) of the ECHR. There is no requirement that the person authorising the arrest should be a judge or be impartial. The protection provided by article 5 is that the individual arrested is brought promptly before a judge or other officer authorised by law to exercise judicial power and that he is able to take proceedings by which the lawfulness of his detention is decided quickly by a court and his release ordered if the detention is not lawful. It can, therefore, be seen that the premise on which the appellants argument is based, namely that article 5.3 of the ECHR applies to the issue of an EAW, is without foundation. Article 5.3 of the ECHR cannot be used as a basis for the argument that judicial authority in article 6 of the Framework Decision should be interpreted as limited to a judge. That is not to say that the rights protected by the ECHR are irrelevant to the Framework Decision. That would be quite wrong: see para 144 above. It is unnecessary to explore the reach of the ECHR as regards the implementation of the Framework Directive. It is sufficient to say that article 5.3 sheds no light on the meaning of judicial authority. The other argument advanced by Miss Rose is that judicial authority in article 6.1 must be given the same meaning as it bears in article 6.2 and that, since in article 6.2 it is limited to a judge, it must similarly be limited in article 6.1. I would reject this argument for the reasons given by Lord Phillips at para 75 above. I would, therefore, dismiss this appeal. To interpret an issuing judicial authority as including a public prosecutor gives a meaning to that phrase which (i) accords with the interpretation repeatedly applied and acquiesced in by the Member States and approved by the Council and the Commission, (ii) is supported by other analogous texts and (iii) promotes rather than frustrates the principle of mutual recognition and trust which underpins the Framework Decision. On the other hand, the only arguments advanced by Miss Rose in support of the contrary interpretation are, for the reasons that I have given, without foundation. There was some discussion before us as to the essential characteristics of an issuing judicial authority. Miss Montgomery suggested that it is sufficient that the person or body is authorised to perform some function in the judicial process. But that is too wide. Without descending to the absurdity of including court ushers and other similar court officials, it seems to me that this definition would certainly be wide enough to include the police and officials employed by a Ministry of Justice. And yet it seems to be accepted (at any rate as revealed by the Council reports) that neither the police nor a Ministry of Justice official can be an issuing judicial authority, although, so far as I am aware, the reasons for this have not been articulated. The Divisional Court said at para 47 of its judgment that a warrant issued by a Ministry of Justice which the Member State had designated as an authority under article 6 would not be a valid EAW. Such a warrant would self evidently not have been issued by a body which, on principles universally accepted in Europe, was judicial. They did not, however, explain what these principles are or why, notwithstanding that in a number of Member States the Ministry of Justice has been designated as their judicial authority, these designations are of no effect. I think that the Divisional Court were wise not to attempt a comprehensive definition. I am inclined to think that the essential characteristics of an issuing judicial authority are that it should be functionally (but not necessarily institutionally) independent of the executive. As we have seen, the fundamental objective of the Framework Decision was to replace a political process with a non political process. This could only be achieved if the new judicialised system was operated by persons who de facto operated independently of the executive. But it is not necessary to explore this question further, since, for the reasons that I have given, I am satisfied that a public prosecutor is an issuing judicial authority within the meaning of article 6.1. The reasons that I have given coincide with the fifth reason given by Lord Phillips (paras 67 to 71). I would, however, like to comment on the other reasons given by Lord Phillips for dismissing the appeal. Lord Phillipss other reasons Lord Phillipss first reason (para 61) is that, if it had been intended to restrict the power to issue an EAW to a judge, he would have expected this to be expressly stated. It would have been a radical change and would have prevented public prosecutors from performing functions that they had been performing in relation to the issue of provisional arrest warrants since 1957. As we have seen, the Framework Decision ushered in a fundamentally different regime from its predecessor. Under the European Convention on Extradition 1957 (the ECE), the act of extradition was an inter governmental act. The judicialisation of the extradition process was accompanied by a number of substantive changes whereby the circumstances in which surrender could take place were expanded. Thus, for example, a substantial number of serious offences (defined in article 2 of the Framework Decision) would give rise to surrender pursuant to an EAW without verification of the double criminality of the act. This was an important relaxation of the conditions for surrender. I acknowledge that article 16.1 of the ECE provided that in case of urgency, the competent authorities of the requesting Party may request the provisional arrest of the person sought and that the term competent authorities included public prosecutors (see para 26 above). But I doubt whether much can be made of this. The point can also be made that in some Schengen States, the police, security police, tax and customs authorities are competent to decide on article 98 alerts (see para 40 above). And yet nobody suggests that this means that these authorities may be judicial authorities within the meaning of the Framework Decision. In my view, the fact that the two regimes were so different means that the arrangements that were made pursuant to the ECE cast little light on the proper interpretation of the Framework Decision. I do not consider that there is any real significance in the fact that the Framework Decision did not explicitly state that only a judge had the power to issue an EAW. Lord Phillipss second reason (paras 62 to 64) is that there was no need to restrict the ambit of the issuing judicial authority. This is because the significant safeguard against the improper or inappropriate issue of an EAW lay in the antecedent process which formed the basis of the EAW. The EAW was of less significance than the enforceable judgment, arrest warrant or other enforceable judgment having the same effect on which the EAW is based: see article 8.1(c) of the Framework Decision. But an EAW is defined by article 1.1 as a judicial decision and article 8.1(c) requires evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, coming within the scope of articles 1 and 2 (emphasis added). As Miss Rose pointed out in her reply, if an EAW is a judicial decision which may be issued by a public prosecutor, then so may an arrest warrant or other enforceable judicial decision be issued or made by a public prosecutor. It is impossible to give the phrase judicial decision different meanings in article 1.1 and article 8.1(c). In any event, even if the antecedent warrant or other judicial decision is issued or made by a judge, I would not agree that the subsequent issue of an EAW is or should be regarded as an essentially administrative step in the process (para 74 above). Of course, the issue of a domestic arrest warrant is a serious matter. But a person who is arrested will often be able to apply for bail so that the consequences for him of the arrest may be limited. He may be able to continue in his employment and to live in his home. The implications of an EAW are likely to be more serious. Unless he can rely on the limited grounds for resisting surrender in the executing state, he will be removed to a different state, possibly many hundreds of miles away. In short, I do not think that the nature of the antecedent process provides support for the view that a public prosecutor is an issuing judicial authority. The third reason given by Lord Phillips (para 65) is that the removal of the definition of a judge or public prosecutor was not because Member States wished to narrow its meaning to a judge, but because they were not content that its meaning should be restricted to a judge or public prosecutor. There is nothing in the considerable documentation that has been placed before us which indicates that the Member States decided to enlarge the scope of an issuing judicial authority or why they should have wished to do so. We know that the definition of an executing judicial authority in the Framework Decision (ie limited to a judge) was narrower than that contained in the September 2001 draft. But our knowledge of that fact is based solely on an examination of the wording of the two documents. We do not know why the Member States made this change either. In my view, there is no secure basis for reaching any conclusion as to the reasons why the definition of issuing and executing judicial authorities was changed. The fourth reason given by Lord Phillips (para 66) is that the requirement in article 6.3 of the Framework Decision to inform the General Secretariat of the Council of the competent judicial authority under its law makes more sense if there is a range of possible judicial authorities. I agree that article 6.3 envisages the possibility of a range of different judicial authorities. But I do not see how this sheds light on whether a public prosecutor may be one of them. A Member State may choose to give the power to issue an EAW to a particular judge or a judge of a particular court. It makes perfectly good sense for it to be known by the executing state which judge or which court is authorised to issue an EAW. In short, I consider that article 6.3 is consistent with either of the two competing interpretations. The meaning of issuing judicial authority in the EA The strong presumption to which I have referred at para 122 above suggests that the phrase judicial authority should bear the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision. In my view, the presumption is all the stronger where (as here) the language of the implementing national law is the same as that of the corresponding provision of the international instrument to which it gives effect. There is nothing in the language of the EA itself which indicates that Parliament intended that an issuing judicial authority in section 2(2) should bear a different meaning from the counterpart phrase in article 6.1. Lord Mance appears to accept this. But he has subjected certain ministerial pre enactment statements to close scrutiny and has concluded that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate (para 261) and that these assurances should control [the] meaning [of the phrase judicial authority] (para 264). I would not go so far as to say that it is impossible to invoke the doctrine of Pepper v Hart [1993] AC 593 in a context such as this. But at first sight, it seems extraordinary to do so if the consequence is that a phrase in an implementing national law bears a different meaning from the same phrase in the international instrument to which it gives effect. The suggestion that the phrase in the implementing law bears a different meaning invites the obvious comment that, if the same meaning had not been intended, surely different language would have been used. I accept that there are some passages in the parliamentary exchanges in relation to what was to become the EA in which ministerial assurances were given that an issuing judicial authority would be a court. But some of the statements were by no means entirely clear. On 10 December 2001, Mr Ainsworth, when pressed by Mrs Dunwoody, said that the only people who would be allowed to issue an arrest warrant would be a judicial authority as recognised normally within either the issuing or the executing state. . In [countries other than this country], there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant (emphasis added). As I have already said, in a substantial number of these other countries, public prosecutors had been issuing provisional arrest warrants since 1957. On 9 January 2002, Mr Ainsworth said that the issuing authority will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European state, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests. (emphasis added). Later, he said that a warrant shall be a court decision and it cannot be a police authority, but it must be a court, a judicial authority. Later still, he said: there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Two points emerge from these statements: (i) a police authority was not a judicial authority, but some European systems were different from ours and it was not for the United Kingdom to say what was a court in other countries (although an authority that was clearly not a court was not a judicial authority); and (ii) the judicial authorities who issued warrants under the existing system would issue European arrest warrants under the new one. On 9 January 2003, Mr Ainsworth made the important statement which is set out by Lord Mance at para 253 of his judgment. The minister said We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. The Bill is drafted in such a way as to include all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear argument that says that we should change that. He went on to say that extradition requests come from a variety of sources and that there would be no change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. On 9 June 2003, Lord Wedderburn said that he understood that the Government did not intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued and, if that was so, this should be made clear in the Bill. The ministers response was that he could not see what this would add, since, as he had already explained, all warrants will have to be issued by a judicial authority. A little later, Lord Bassam said that he expected the judicial process in other countries to be very similar to ours and as robust as ours (Hansard (HL Debates) (GC) cols 34 37). What is one to make of all these exchanges? In my view, the assurances that an issuing judicial authority would be a court did not clearly rule out the possibility that a judicial authority could include a public prosecutor. First (and crucially), the minister stated several times that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing system and that it was not intended to change that. I cannot agree with Lord Mance (para 262) that this does not undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the EA. The statements that European arrest warrants would be issued by the same authorities as issued arrest warrants under the existing regime were inconsistent with an assurance that they could not be issued by public prosecutors. I do not see how these statements can be swept aside as Lord Mance seeks to do. Secondly and in any event, it is not at all clear precisely what Mr Ainsworth meant by a court in his statement on 9 January 2002, except that it did not include a police authority. He said nothing about public prosecutors. But he did say that there were different European court systems and it was not for the United Kingdom to say what a court was; and that it would not be possible for any authority that was clearly not a court (in the eyes of the relevant European state) to be a judicial authority. It is at least uncertain whether a public prosecutor was a court in the eyes of some European states. At the very least, I find it impossible to spell out of what was said by Mr Ainsworth in the passages to which I have referred at paras 161 to 163 a clear assurance that an issuing judicial authority could only be a court (as we understand that word), judge or magistrate. Was this changed by what was said on 9 June 2003 and the subsequent amendments to which Lord Mance refers? It is clear that Lord Wedderburn was of the view that an issuing judicial authority should not include a public prosecutor and asked for it to be clarified in the Bill that a public prosecutor could not insist that a judicial authority issue an arrest warrant. I have referred to the ministers response which was merely that all warrants wild have to be issued by a judicial authority. In the light of all the exchanges during the preceding 18 months, I do not consider that this answer (or the subsequent amendments to which Lord Mance has referred) amounted to a clear assurance that, even if a public prosecutor was an issuing judicial authority within the meaning of the Framework Decision, it was not an issuing judicial authority in the corresponding provision in the EA. I would, therefore, hold that the strong presumption that the phrase judicial authority bears the same meaning in section 2(2) of the EA as it does in article 6.1 of the Framework Decision was not rebutted by any assurances given by the minister during the progress of the Bill through Parliament. Taken as a whole, the ministers statements did not amount to assurances that were sufficiently clear to justify the conclusion reached by Lord Mance. Conclusion It follows that, for the reasons that I have given earlier (which coincide with Lord Phillipss fifth reason), I would dismiss this appeal. DISSENTING JUDGMENTS LADY HALE I would allow this appeal for the reasons given by Lord Mance. My reasons for preferring his view to that of the majority can be briefly stated. We are construing an Act of the United Kingdom Parliament. It is that Act which gives the courts the power to order the arrest, remand, and eventual extradition of an individual named in a European Arrest Warrant (EAW). Without the authority of an Act of Parliament it would not be possible to employ the coercive power of the state to deprive an individual of his liberty in this way. We are not here concerned with the reverse situation, where European law may have direct effect, irrespective of United Kingdom law, to confer rights against the state upon individuals or entities. Direct effect is expressly precluded by article 34.2(b) of the Treaty on European Union. But community law goes further than that. It imposes an obligation on member states to interpret legislation in conformity with community law, even if on ordinary principles of statutory interpretation, this would not be possible. In Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83, the Court of Justice made it clear that the principle of interpretation in conformity with Community law applies to the interpretation of framework decisions adopted under Title VI of the Treaty on European Union (para 43). But this obligation is limited by general principles of law (para 44). These include the principle that criminal liability cannot be determined or aggravated on the basis of a framework decision, independently of an implementing law (para 45). Further, the obligation ceases when national law cannot be applied compatibly with the result envisaged by the framework decision. In other words, the principle cannot serve as the basis for an interpretation of national law contra legem (para 47). As Paul Craig puts it, the domestic court is not required to give the legislation an interpretation it cannot bear (Craig and De Burca, EU Law: Text, Cases and Materials, 5th ed (2011), p 203). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31 and Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, it was assumed without argument that Pupino applied to the construction of the provisions of the Extradition Act 2003 implementing the Framework Decision on the European Arrest Warrant in United Kingdom law. However, as Lord Mance has convincingly shown, the source of that obligation in United Kingdom law lies in section 2(1) of the European Communities Act 1972. This refers to obligations created or arising by or under the Treaties as defined in section 1 of the 1972 Act and it is now common ground between the parties that the Framework Decision falls outside this definition for the reasons explained by Lord Mance. Nor can section 3 of the 1972 Act affect the matter, again for the reasons given by Lord Mance. Section 3 is about the way in which the rule established in section 2 is to be put into effect, not about the extent of that rule. It follows that the Framework Decision and the Courts decision in Pupino are not part of United Kingdom law. The principle of conforming interpretation does not apply. The Framework Decision is, of course, an obligation undertaken by the United Kingdom in international law. There is a long standing presumption in common law that Parliament intends to give effect to the United Kingdoms obligations in international law. It has also been said that extradition treaties, and extradition statutes, ought . to be accorded a broad and generous construction so far as the texts permit it: In re Ismail [1999] 1 AC 320, 327, per Lord Steyn. But that is only one among many canons of statutory construction. As Lord Hope pointed out in Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, para 24, the liberty of the subject is at stake here, and generosity must be balanced against the rights of the persons who are sought to be removed under these procedures. This is not, as he explained, an easy task, as the wording of Part I of the Extradition Act 2003 does not match that of the Framework Decision in every respect. He had earlier pointed out that the language of extradition is inappropriate to what is, in reality, a system of backing of warrants (para 22). But he concluded that the task has to be approached on the assumption that, where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In this case, we have a situation where Parliament did use the same wording as the Framework Decision (judicial authority). But we also have a situation where the words in the Act of Parliament have (at least in my view) a clear meaning in United Kingdom law, while the words of the Framework Decision do not (at least in my view) have a clear meaning in Community law. Are we to disregard the clear meaning of the United Kingdom statute in order to conform to some unclear meaning of a European instrument which is only part of United Kingdom law to the extent that the 2003 Act makes it so? Given that we are concerned with a serious interference with the right to liberty, I take the view that we should apply the clear intention of the United Kingdom legislature. I regard the point at issue in this case very differently from the points at issue in some of the other cases under this legislation. If a foreign judicial authority has faithfully followed the wording of the European Arrest Warrant annexed to the Framework Decision, we should do our utmost to hold that it complies with our legislation. That authority cannot reasonably be expected to know what our legislation says. Furthermore, it is issuing a warrant which might be executed anywhere within the territories of the member states, so it cannot pander to the peculiar demands of one of those states. But the question of who is to issue a warrant which we are bound to execute is in a different category. This goes to the heart of the protection given to the individual against unwarranted interference with his right to liberty. There is no authoritative interpretation of judicial decision or judicial authority in Community law. The United Kingdom has not accepted the jurisdiction of the Court of Justice in relation to the Framework Decision on the European Arrest Warrant so we cannot refer the question to the Court. Nor can the Commission take enforcement proceedings against the UK in respect of a perceived failure to implement it. The Court of Justice would not give much weight to the travaux prparatoires (non papers). In any event they are inconclusive. As Lord Mance points out, dropping the proposed definition of a judicial authority which included public prosecutors is consistent with (a) narrowing it so as to exclude prosecutors, (b) widening it so as to include others, or (c) a lack of consensus thus leaving it to the ECJ to interpret as a matter of principle. As a matter of principle, it is apparent that prosecutors do enjoy a special status in many European countries. In particular they are expected to take their decisions independently of the executive. However, even in countries where they do enjoy such status, a principled distinction could be drawn between a prosecutor who is independent of the prosecution in the particular case and a prosecutor who is in fact a party to the case in question. The Framework Decision defines a European Arrest Warrant as a judicial decision and by no stretch of language could a decision taken by a party to the case be termed judicial. There are also several good reasons to conclude that it was not intended that judicial authority should bear the much wider meaning contended for by Miss Montgomery on behalf of the prosecutor in this case. First, objection has been taken both by the Commission and the Council to the police and the Ministry of Justice being designated as competent judicial authorities. But if it is permissible to go beyond a court, tribunal, judge or magistrate, on what principled basis does one stop at prosecutors rather than any other public official who is in some way associated with the administration of justice? Would it include prosecutors in this country, where they do not enjoy the special status of prosecutors in some (but by no means all) European countries, or would it depend upon their particular status in the country in question? If so, what would the characteristics of that status be? Second, it is clear that many of the functions of an executing authority are only appropriate to a court, yet article 6.1 and 6.2 use the same phrase judicial authority in relation to both. It does contemplate different authorities being designated as competent in relation to the different functions, but both must be a judicial authority. Are we to take it that a different definition of judicial is appropriate to the choice of issuing authority than is appropriate to the choice of executing authority? Why should the meaning of judicial be different in each case? Thirdly, in the initial draft it was possible to see the issue of an EAW as an administrative step following an earlier court decision. There had to be a prior judgment or enforceable judicial decision, after which a request for assistance was issued by a judicial authority in one member state and addressed to any other member state. The structure is different in the eventual Framework Decision. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person (article 1.1). The warrant has to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect (article 8.1(c)). Thus the underlying process has been widened and cannot be read as requiring greater independence or affording greater protection than the judicial decision to issue the European arrest warrant. In those circumstances it is difficult to predict what the Court of Justice would decide if the point were to be raised with them. It may be right that they would recognise some prosecutors as judicial authorities but if so it is not clear on what basis they would distinguish between those prosecutors and others or between prosecutors and other bodies. Nor is it clear whether they would distinguish between a prosecutor with conduct of the case and a prosecutor who is independent of it. It is difficult, therefore, to know how we are to interpret the Act consistently with Community law when it is not clear and under the present arrangements cannot be made clear to us what Community law is on this point. Lord Phillips gives five reasons for concluding that the changed draft Framework Decision was intended to broaden the meaning from judge or prosecutor (para 60). Lord Dyson (with whom Lord Walker agrees) disagrees with four of them. First, Lord Phillips would have expected the restriction to a judge to be expressly stated because it was a radical change from the position under the European Convention on Extradition, where prosecutors had been able to issue provisional arrest warrants (para 61). Lord Dyson rejects this reason as the two regimes are so different and the European arrest warrant regime is notably wider in scope than the earlier Convention (doing away with double criminality for framework offences and, I would add, requiring states to extradite their own nationals) (para 155). Furthermore it does little to support the suggestion that it was intended to go further than prosecutors. I agree. Second, why would they wish to limit the issue of the European arrest warrant when the significant safeguard against improper issue lies in the antecedent process (paras 62 to 64)? Lord Dyson rejects this as article 8.1(c) refers to an enforceable judgment, an arrest warrant or any other enforceable judicial decision and judicial decision cannot mean something different in articles 1.1 and 8.1(c) (paras 156 157). I agree with that, but observe that both are happy to give judicial authority a different meaning in article 6.1 and 6.2. Third, it was likely that they removed the definition because they were not content to limit it to judges and prosecutors (para 65). That is not a reason independent of his conclusion. Lord Dyson rejects it because we do not know why the change was made (para 158). Furthermore, it is difficult to reconcile the even broader meaning with the objections taken to other authorities being designated competent authorities. Again, I agree. Fourth, the requirement to notify the Council which are the competent judicial authorities under the law of the member state makes more sense if there is a range (para 66). But as Lord Dyson points out (para 159) it also makes perfect sense if a member state wishes to designate a particular court as the competent authority. For England and Wales, of course, the competent judicial authority is a district judge sitting in the Westminster Magistrates Court. The executing state will need to be able to check whether the issuing authority is competent to issue. It says nothing about the nature of that authority. Again, I agree. However, Lord Dyson does agree with Lord Phillips fifth reason: that the manner in which member states, the Commission and the Council acted after the Framework Decision took effect is in stark conflict with restricting a judicial authority to a judge (para 67). What this amounts to is that some member states have designated prosecutors and sometimes other bodies for the purpose of article 6.1 and/or 6.2. No objection has been taken by the Council or the Commission to designating prosecutors but objection has been taken to designating the police or the Ministry of Justice. This is an odd reason to conclude that the change was intended to broaden the scope of judicial authority beyond prosecutors. It is more plausibly a reason for concluding that no change was intended. The real relevance, as Lord Kerr and Lord Dyson see it, is as evidence of subsequent state practice. Article 31.3(b) of the Vienna Convention on the Law of Treaties provides that there shall be taken into account, along with the context, any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation. While the practice need not be that of all the parties to the treaty (as in this case it obviously is not) the practice has to be such as to establish the agreement of all the parties as to its interpretation. Given the lack of common or concordant practice between the parties, is the failure to date of those countries which do not authorise prosecutors and other bodies to object to those who do sufficient to establish their agreement? Nobody in this country seems to have addressed their mind to the issue until it arose in this case. Failure to address minds to an issue is not the same as acquiescence in a particular state of affairs. Subsequent practice does not give support to the respondents extreme position and there has been no consideration of the principles which might distinguish some prosecutors from others. This seems to me to be a rather flimsy basis on which to hold that we are obliged to construe a United Kingdom statute contrary both to its natural meaning and to the clear evidence of what Parliament thought that it was doing at the time. We have to interpret the Act of Parliament. Even without reference to the parliamentary materials, it seems clear that the term judicial authority is restricted to a court, tribunal, judge or magistrate. First, that is the natural meaning of judicial in United Kingdom law. We may talk about the legal system or the justice system when we mean, not only the courts, but those involved in the administration of justice. But when we use the word judicial we mean a court, tribunal, judge or magistrate. Second, the Act uses the same term in relation to both the issuing and executing judicial authority. The executing judicial authority undoubtedly has to be a court. There is a strong presumption that the same words in the same statute especially in the same place mean the same thing. Third, the point about the European Convention on Human Rights is not that article 5.3 applies to the issue of a European arrest warrant. It clearly does not. The point is that it uses the word judicial (other officer authorised by law to exercise judicial power) in a sense which is clearly only compatible with a court, tribunal, judge or magistrate who is independent of the parties to the case. It could not include the prosecutor who is conducting the case. This indicates a European understanding of the word judicial which coincides with ours. It is also quite clear from the parliamentary history detailed by Lord Mance that judicial was deliberately inserted into the Bill in order to limit the authorities who could issue European arrest warrants to bodies which we would recognise as judicial. In this respect, I would place more weight on the parliamentary history in terms of the changes made to the Bill during its passage through Parliament than on the assurances given by ministers. Why make the amendments eventually made unless to make the matter clear? As Lord Filkin said to the House of Lords (Hansard (HL Debates), 1 May 2003, col 858), Parliament is sovereign. This is not a case where Parliament has told us that we must disregard or interpret away the intention of the legislation. I would therefore have allowed this appeal. LORD MANCE Introduction The appellant, Mr Assange, is wanted in Sweden on allegations of sexual molestation and rape being pursued against him by the respondent, the Swedish Prosecution Authority. Mr Assange is in England. On 18 November 2010 Marianne Ny, the prosecutor handling the case against Mr Assange, obtained from the Stockholm District Court a domestic detention order against Mr Assange in absentia, and on 24 November 2010 this was upheld by the Svea Court of Appeal, following written argument as to whether it was proportionate and based on sufficient evidence. On 2 December 2010 Mrs Ny herself then issued on the respondents behalf a warrant seeking Mr Assanges surrender pursuant to the arrangements put in place under the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between Member States (2002/584/JHA). In the United Kingdom, these arrangements are found in Part 1 of the Extradition Act 2003. Under section 2(2) of that Act: A Part 1 warrant is an arrest warrant which is issued by a judicial authority of a category 1 territory . Sweden and other Member States are all category 1 territories. Section 2(7) to (9) further provide that a designated authority (in England, SOCA, the Serious Organised Crime Agency) may, if it believes that the authority which issued the Part 1 warrant has the function of issuing arrest warrants in the category 1 territory issue a certificate that that authority has that function. SOCA issued a corresponding certificate in respect of the respondent. Under Swedish law the respondent is the only authority authorised to issue a European arrest warrant seeking surrender for trial. Under section 3 of the 2003 Act, the issue of a (valid) certificate under section 2 brings the remaining machinery of Part 1 into play. The issue which the Administrative Court rightly identified as being of general public importance for the purposes of an appeal to the Supreme Court is whether a warrant of this nature issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of sections 2(2) and 66 of the Extradition Act 2003. On appeal, a preliminary issue has also been raised, whether it is open to Mr Assange to question the warrants validity having regard to section 2(7) to (9) and SOCAs certificate. The status of the Framework Decision The Framework Decision on the European arrest warrant was a third pillar measure agreed under Title VI of the Treaty on European Union (TEU) in the form that Treaty took before the Treaty of Lisbon. Third pillar measures in the criminal area required unanimity, and article 34.2(b) of the Treaty on European Union provided that they were binding as to the result to be achieved but shall leave to the national authorities the choice of form and methods and that [t]hey shall not entail direct effect. Member States were not obliged to accept the jurisdiction of the European Court of Justice or the preliminary ruling system in regard to them, and the United Kingdom did not do so. The European Commission had and has no power to take enforcement measures against Member States in respect of any perceived failure to implement domestically the requirements of a Title VI measure. Under Protocol No 36 to the Treaty of Lisbon this position continues. The relevant text of this protocol is, for convenience, set out in an annex to this judgment. Article 9 provides that the legal effects of agreements concluded between Member States on the basis of the TEU prior to the entry into force of the Treaty of Lisbon shall be preserved until such agreements are repealed, annulled or amended in implementation of the Treaties. Article 10 provides that, as a transitional measure and with respect to acts of the Union in the field of police co operation and judicial co operation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the Commission and Court of Justice remain the same, unless and until the relevant Title VI measure is by agreement repealed, annulled or amended or a period of five years has elapsed after the date of entry into force of the Treaty of Lisbon (ie until 1 December 2014). This transitional provision was designed to give the opportunity for any textual, institutional and procedural adjustments necessary at a European and/or national level, on moving from an inter governmental framework to a harmonised and enforceable European system. The present appeal highlights points that could deserve attention in that context. When the House of Lords European Union Committee wrote its 10th Report of Session 2007 2008 entitled The Treaty of Lisbon: an impact assessment, the expectation was that the European Commission would introduce measures to convert some of the more significant Title VI instruments, such as the European Arrest Warrant, soon after the Treaty of Lisbon enters into force (para 6.323). This has evidently not occurred, at least so far, in relation to the Framework Decision on the European arrest warrant. Failing their repeal, annulment or amendment, the position in respect of Title VI measures remaining in force unamended at the end of the five year period is that the United Kingdom has, under article 10.3 to 10.5 of Protocol No 36, an option to notify a blanket opt out as from 1 December 2014, with an accompanying right to apply to opt back in selectively to individual measures. If the United Kingdom decides not to notify the blanket opt out or if, having notified one, it applies successfully to opt back in to the Framework Decision on the European arrest warrant, it must accept the jurisdiction of the Court of Justice and the Commissions right of enforcement. The proper interpretative approach and the status of Pupino The issues on the present appeal thus involve consideration of the interface between the European Framework Decision operating at an inter government level and the United Kingdoms domestic legislation in the form of the Extradition Act 2003. The Act was introduced to give effect to the Framework Decision. There are two different bases upon which this may be relevant. The first basis is the common law presumption that the Act gave effect to the United Kingdoms international obligations fully and consistently (see Bennions Statutory Interpretation, 5th ed (2008), sections 182 and 221). However, the Act was and is in noticeably different terms, and it is not axiomatic that it did so in every respect. The presumption is a canon of construction which must yield to contrary parliamentary intent and does not exclude other canons or admissible aids. As Lord Bridge of Harwich said in R v Secretary of State for the Home Department, Ex p Brind [1991] 1 AC 696, 748B C: When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. The second basis upon which the Framework Decision may be relevant is the duty of conforming interpretation, which the Court of Justice in Criminal proceedings against Pupino (Case C 105/03) [2006] QB 83 held to be incumbent on domestic courts in the context of framework decisions. It did so in these terms: 43 In the light of all the above considerations, the court concludes that the principle of interpretation in conformity with Community law is binding in relation to framework decisions adopted in the context of Title VI of the Treaty on European Union. When applying national law, the national court that is called on to interpret it must do so as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34.2(b) EU. 47 The obligation on the national court to refer to the content of a framework decision when interpreting the relevant rules of its national law ceases when the latter cannot receive an application which would lead to a result compatible with that envisaged by that framework decision. In other words, the principle of interpretation in conformity with Community law cannot serve as the basis for an interpretation of national law contra legem. In relation to European Treaty law falling within the scope of the European Communities Act 1972, the European legal duty of conforming interpretation has been understood by United Kingdom courts as requiring domestic courts where necessary to depart from a number of well established rules of construction: Pickstone v Freemans plc [1989] AC 66, 126B, per Lord Oliver of Aylmerton; and to go beyond what could be done by way of statutory interpretation where no question of Community law or human rights is involved: Test Claimants in the FII Group Litigation v Revenue and Customs Comrs [2010] EWCA Civ 103, [2010] STC 1251, paras 97 and 260, per Arden LJ. See also Litster v Forth Dry Dock Co Ltd [1990] 1 AC 546, 576H 577A, per Lord Oliver; R ( IDT Card Services Ireland Ltd) v Customs and Excise Comrs [2006] EWCA Civ 29, [2006] STC 1252, paras 67 92, per Arden LJ. An analogy has been drawn between the positions under the European Communities Act 1972 and under section 3 of the Human Rights Act 1998: see the IDT Card Services case, paras 85 90, per Arden LJ and Vodafone 2 v Revenue and Customs Comrs [2009] EWCA Civ 446; [2010] Ch 77; [2009] STC 1480, paras 37 38, per Sir Andrew Morritt C. Pursuant to the resulting duty, domestic courts may depart from the precise words used, eg by reading words in or out. The main constraint is that the result must go with the grain or be consistent with the underlying thrust of the legislation being construed, that is, not be inconsistent with some fundamental or cardinal feature of the legislation: Vodafone 2, para 38, per The Chancellor and Test Claimants in the FII Group Litigation, para 97, per Arden LJ, in each case citing Ghaidan v Godin Mendoza [2004] 2 AC 557. In this light, considerable significance may attach to whether the European legal duty of conforming interpretation applies or whether the case is subject only to the common law presumption that Parliament intends to give effect to the United Kingdoms international obligations. The force of the common law presumption in the context of the Extradition Act 2003 has itself been addressed with differing emphases. In Office of the Kings Prosecutor, Brussels v Cando Armas [2005] UKHL 67, [2006] 2 AC 1, Lord Bingham said that the interpretation of the 2003 Act must be approached on the twin assumptions that Parliament did not intend the provisions of Part 1 [of the Act] to be inconsistent with the Framework Decision and that, while Parliament might properly provide for a greater measure of co operation by the United Kingdom than the Decision required, it did not intend to provide for less (para 8). In contrast, Lord Hope, recognising that the introduction of the European arrest warrant system was highly controversial (para 20), noted that there were limits to the principle that extradition treaties and statutes should receive a broad and generous construction, in so far as the liberty of the subject is at stake here, and said that the task of giving effect to Part 1 of the 2003 Act in the light of the Framework Decision had to be approached on the assumption that where there are differences, these were regarded by Parliament as a necessary protection against an unlawful infringement of the right to liberty (para 24). In Dabas v High Court of Justice in Madrid, Spain [2007] UKHL 6, [2007] 2 AC 31, Lord Hope, with whose speech the three other members of the majority agreed, repeated at para 35 what he had said in para 24 in Cando Armas. However, in common with the majority he found on examination that the defendants argument in that case (that the Act required a separate certificate as to the category of offence involved) was much more about form than it was about substance, and rejected it. More recently still, in Caldarelli v Judge for Preliminary Investigations of the Court of Naples, Italy [2008] UKHL 51, [2008] 1 WLR 1724, Lord Bingham, with whose speech Lord Hope, Lady Hale and Lord Carswell all agreed, noted, at para 23, that Providing as they do for international co operation between states with differing procedural regimes, the Framework Decision and the 2003 Act cannot be interpreted on the assumption that procedures which obtain in this country obtain elsewhere. The evidence may show that they do not. The need for a broad internationalist approach signalled by Lord Steyn in In re Ismail [1999] 1 AC 320, 326 327 is reinforced by the need to pay close attention to whatever evidence there is of the legal procedure in the requesting state. While the common law presumption will therefore readily overcome apparent formal or procedural inconsistencies, it does not exclude the possibility that Parliament may deliberately have intended a result differing from that inherent in the United Kingdoms international obligations. Lord Hoffmann described the legal position as follows in R v Lyons [2002] UKHL 44; [2003] 1 AC 976, para 27: Parliament may pass a law which mirrors the terms of the treaty and in that sense incorporates the treaty into English law. But even then, the metaphor of incorporation may be misleading. It is not the treaty but the statute which forms part of English law. And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. Returning to the duty of conforming interpretation under European law, the Court of Justices decision in Pupino was not cited in Cando Armas, although Cando Armas was decided some five months after Pupino. But Pupino was extensively relied upon in Dabas and Caldarelli. It was assumed without argument in each case that Pupino was directly applicable and binding under domestic law in the United Kingdom: see in particular Dabas, para 5 per Lord Bingham, paras 38 40 per Lord Hope, para 69 per Lord Scott, para 75 79 per Lord Brown (referring to it as of considerable importance and as the decision on which the respondent authority principally relied on that appeal) and para 81 per Lord Mance (agreeing with the other speeches), and Caldarelli, para 22 per Lord Bingham, with whose reasoning Lord Hope, Lady Hale and Lord Carswell agreed. Whether the assumption made in Dabas and Caldarelli was correct has, however, been examined at the Supreme Courts instance in submissions invited and received after the hearing of the present appeal. This involves considering the history of the European Treaties, and the extent to which they and instruments under them have been incorporated or referred to in domestic law under the European Communities Act 1972 and the European Union (Amendment) Act 2008. Title VI measures in the field of criminal law were introduced under the third pillar of the Treaty of Maastricht 1992. Amendments to the scope and terms of the third pillar were made by articles 1 of, successively, the Treaty of Amsterdam 1997 and the Treaty of Nice 2001. Section 2 of the 1972 Act provides that: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly, and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies. Section 1 of the 1972 Act defines the Treaties for present purposes as including in relation to the Treaty of Maastricht 1992 only Titles II, III and IV, and in relation to the Treaties of Amsterdam 1997 and Nice 2001 various articles other than article 1. The definition also includes the Treaty of Lisbon 2007 together with its Annex and Protocols with a presently immaterial exception relating to the Common Foreign and Security Policy. Having regard to this, and to article 9 of Protocol No 36 to the Treaty of Lisbon, the Framework Decision on the European Arrest Warrant remains to be regarded as a Title VI measure and as falling outside the definition of the Treaties or the Community Treaties contained in section 1 of the European Communities Act 1972, and so outside the scope of section 2 of that Act. This is now, rightly, common ground between all parties to the present appeal. It is a constitutional point (see Thomas v Baptiste [2000] 2 AC 1, 23A C) and it has been overlooked in the previous case law. Although Title VI measures in the criminal law field are outside the scope of the the Treaties for the purposes of the 1972 Act, the respondent submits that instruments under them have become part of domestic law under section 3 of the 1972 Act. Since 1 December 2009, section 3 reads: Decisions on, and proof of, Treaties and EU instruments etc. (1) For the purposes of all legal proceedings any question as to the meaning or effect of any of the Treaties, or as to the validity, meaning or effect of any EU instrument, shall be treated as a question of law (and, if not referred to the European Court, be for determination as such in accordance with the principles laid down by and any relevant decision of the European Court. (2) Judicial notice shall be taken of the Treaties, of the Official Journal of the European Union and of any decision of, or expression of opinion by, the European Court on any such question as aforesaid; and the Official Journal shall be admissible as evidence of any instrument or other act thereby communicated of the EU or of any EU institution . (3) Evidence of any instrument issued by a EU institution, including any judgment or order of the European Court , or of any document in the custody of a EU institution, or any entry in or extract from such a document, may be given in any legal proceedings by production of a copy certified as a true copy by an official of that institution; and any document purporting to be such a copy shall be received in evidence without proof of the official position or handwriting of the person signing the certificate. (4) Evidence of any EU instrument may also be given in any legal proceedings (a) by production of a copy purporting to be printed by the Queens Printer; (b) where the instrument is in the custody of a government department (including a department of the Government of Northern Ireland), by production of a copy certified on behalf of the department to be a true copy by an officer of the department generally or specially authorised so to do; and any document purporting to be such a copy as is mentioned in paragraph (b) above of an instrument in the custody of a department shall be received in evidence without proof of the official position or handwriting of the person signing the certificate, or of his authority to do so, or of the document being in the custody of the department. (5) In any legal proceedings in Scotland evidence of any matter given in a manner authorised by this section shall be sufficient evidence of it. The respondent submits that, although Title VI framework decisions continue to fall outside the Treaties, United Kingdom courts are under section 3 bound, since 1 December 2009, by Court of Justice decisions on their validity, meaning or effect. The submission is in my judgment incorrect for several reasons. First, it is section 2, read with section 1, that defines the extent to which European law has domestic effect. Section 3, as its heading and text indicate, regulates the manner in which and principles by which European law is to be given effect, not the extent to which European law applies. Secondly, although section 3 refers since 1 December 2009 to any EU instrument or EU institution, before that date it referred to any Community instrument or Community institution. It had therefore no relevance to decisions on or proof of framework decisions, which were not European Community instruments. The reference to any EU instrument or institution as from 1 December 2009 was to give effect to the unified terminology introduced by the Treaty of Lisbon, amalgamating for the future the previously separate pillars. However, article 9 of Protocol No 36, which is part of domestic law under section 1 of the 1972 Act, provides that for the time being the legal effects of measures adopted on the basis of the old TEU shall be preserved. Title VI measures such as the framework decision remain therefore for the time being Title VI measures and not EU instruments within section 3. Thirdly and more generally, it would be inconsistent with the carefully limited scope of sections 1 and 2 of the 1972 Act and with the whole thrust of Protocol No 36 to treat Title VI measures or Court of Justice decisions in respect of them as acquiring with effect from 1 December 2009 a domestic force which they never had before. It would bizarre to provide that Title VI should not be domestically binding, but that instruments enacted under it should be. It would be equally bizarre to provide for United Kingdom courts to be bound by principles established and any decision reached by the Court of Justice in cases which happened to be referred by courts of other member states, but to have no power to refer themselves: see article 10 of the Protocol. (Indeed, the reference in section 3 to questions of law if not referred to the European Court being for determination in accordance with such principles and any such relevant decision is itself another indication that section 3 was not conceived with the intention of covering Title VI measures which could not be so referred.) The respondent submits, further or alternatively, that the principle of conforming interpretation established in Pupino finds domestic force through the duty of sincere co operation found in article 10 of the former Treaty on the European Community (TEC). Article 10 TEC was mentioned by Lord Hope in Dabas, para 38. But it is a duty on the United Kingdom as a state, not on its courts, and in any event it can have had no application, prior to 1 December 2009, to Title VI measures agreed under the former TEU, rather than under the European Community Treaty. Post Lisbon, the duty of co operation is found in article 4(3) TEU. But again it is not a principle of domestic interpretation, and again it would be contrary to Protocol No 36 to treat Title VI measures as being in a different position now to that in which they were before 1 December 2009. Finally, the respondent notes that, unless United Kingdom courts interpret domestic legislation to match precisely the true European legal interpretation of any relevant Title VI measure, there will exist a discrepancy which would involve the United Kingdom in breach of its international obligations. That is so. But it is a position which even the Court of Justice in Pupino accepted could in some circumstances occur. The risk is one which, even on the respondents case, must always have existed prior to 1 December 2009. In preserving the existing legal effect of Title VI measures by article 9 of Protocol No 36, the United Kingdom preserved that possibility, if and when it had any reality. In fact, the risk of infraction proceedings by the Commission under article 258 TFEU (ex article 226 TEC) to which the respondent refers is effectively non existent, since under article 10 of Protocol No 36 the Commission continues for the time being to have no power to bring any such proceedings. The framework decision, the Court of Justices decision in Pupino and the European legal principle of conforming interpretation are not therefore part of United Kingdom law under the 1972 Act. The only domestically relevant legal principle is the common law presumption that the Extradition Act 2003 was intended to be read consistently with the United Kingdoms international obligations under the framework decision on the European arrest warrant. But this presumption is subject always to the will of Parliament as expressed in the language of the Act read in the light of such other interpretative canons and material as may be relevant and admissible. In this light, it is also relevant to record the basis upon which the British Government promoted the Bill leading to the Extradition Act. Asked by Lord Lamont on its second reading on 1 May 2003 to confirm that it was open to the House to amend the provisions of the Bill and arrest warrant, the minister, Lord Filkin, replied (Hansard (HL Debates), col 858): My Lords, the constitutional position is clear. On framework agreements to which the Government have been a party and have signed with other member states, there is an expectation that member states will put them into effective law in their own countries. However, as I am sure the noble Lord, Lord Lamont, knows, the position is that Parliament is sovereign and Parliament can do what it wishes in this respect. Clearly, if there were to be a discontinuity between our treaty obligations and our own law, that is another issue that goes further. But Parliament is sovereign. That also reflects my view of the domestic legal position. The Framework Decision and its interpretation under European law On this basis, I turn to the Framework Decision. Article 1 provides: Definition of the European arrest warrant and obligation to execute it 1. The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. 2. Member States shall execute any European arrest warrant on the basis of the principle of mutual recognition and in accordance with the provisions of this Framework Decision. 3. This Framework Decision shall not have the effect of modifying the obligation to respect fundamental rights and fundamental legal principles as enshrined in article 6 of the Treaty on European Union. Article 6 provides: Determination of the competent judicial authorities 1.The issuing judicial authority shall be the judicial authority of the issuing Member State which is competent to issue a European arrest warrant by virtue of the law of that State. 2. The executing judicial authority shall be the judicial authority of the executing Member State which is competent to execute the European arrest warrant by virtue of the law of that State. 3. Each Member State shall inform the General Secretariat of the Council of the competent judicial authority under its law. Both the Framework Decision and the 2003 Act provide that a European arrest warrant is to be issued by a judicial authority. Under both, the question arises what is meant by a judicial authority. For Mr Assange, Ms Dinah Rose QC submits that the phrase refers under both to an authority which is not only vested with responsibility for issuing such a warrant, but is independent of the executive and of the parties and impartial in the same sense as the competent legal authority or the court referred to in article 5.1(c) and 5.4 of the European Convention on Human Rights. For the Swedish Prosecution Authority, Miss Clare Montgomery QC submits that it means no more than an authority which is vested with responsibility for issuing such a warrant and which the issuing Member State has notified to the General Secretariat of the Council of Ministers under article 6 of the Framework Decision as competent to do this under its own domestic law. A second point is that, on Ms Roses case, it is for the courts of the executing state to determine whether the criteria of independence which she advances have been met. On Miss Montgomerys case, the courts of the executing state have no role to play, save, under sections 2 and 3 of the United Kingdoms 2003 Act, to check that SOCA has in fact issued a certificate in the terms required by section 2(8); the only possible qualification, again under domestic law, is that a defendant might be able to seek judicial review of SOCAs conduct in issuing a certificate, if it could be shown that SOCA had no rational basis for believing that the issuing authority had the function of issuing warrants in the issuing state. Each interpretation faces problems. Ms Roses interpretation of the phrase judicial authority has the merit, noted by Lord Phillips at para 76, that it corresponds naturally to expectations derived from the English text. But the position may be cloudier if one looks behind the language of the English statute and the English version of the framework decision to other language texts of the framework decision, particularly the French (autorit judiciaire) and German (Justizbehrde). The parallel that Ms Rose draws with article 5.1(c) and 5.4 of the Convention on Human Rights also faces a difficulty. It is well established that the competent legal authority and court there mentioned must have the qualities on which Ms Rose relies: see eg Schiesser v Switzerland (1979) 2 EHRR 417, Skoogstrm v Sweden (1983) 6 EHRR 77 and Medvedyev v France (2010) 51 EHRR 899. In Skoogstrm v Sweden the court was, as in the present case, concerned with the position of a Swedish prosecutor. The court noted, at paras 77, 78, that there was in Sweden no question of a distinction between investigating and prosecuting authority, and that the organisation of the prosecuting functions was hierarchical; the public prosecutor was responsible for investigating a matter, for deciding whether to institute a prosecution, for drawing up an indictment and for pursuing the prosecution in the courts and was not independent of the parties. But the cases on article 5.1(c) and 5.4 concern the competent legal authority and court before which a person must be brought after arrest, not the authorities by which an arrest may be authorised. In the present context, their most natural analogues are the magistrates court responsible for executing the warrant in England, before which Mr Assange has been brought, and/or the Swedish court, before which Mr Assange would have to be brought following any surrender to Sweden. A domestic arrest, for the purpose of bringing a defendant before such a court, is commonly made at the instance of the police or a prosecution service not possessing the full qualities of independence and impartiality which Ms Rose invokes. Despite this and despite the principle of mutual recognition which underpins the Framework Decision, Ms Rose is correct to question whether there is a complete equation between domestic arrest and international surrender. A European arrest warrant seeking the surrender of a defendant by one state to another to face charges is a generally speaking more intrusive measure than a domestic warrant. In many cases (though not the present) surrender between European Union member states will uproot a defendant from his or her familiar and personal environment. It may therefore engage human rights issues, eg under article 8 of the European Convention on Human Rights (as indeed section 21 of the 2003 Act recognises from the point of view of the United Kingdom as an executing state). If (again, unlike Mr Assange) the defendant is a national of the executing state, then such a warrant may also deprive him or her of the customary international right to remain within the jurisdiction of that state. Lord Hopes statement in Cando Armas that the liberty of the subject is at stake here (para 204 above) reflects such considerations. The Framework Decisions insistence in articles 1 and 6 that a European arrest warrant should be a judicial decision taken by an issuing judicial authority can only have been intentional, designed to allay fears that the measure might be excessively or inappropriately deployed. But there is as yet no authority, in Strasbourg or in Luxembourg, as to the precise nature of the judicial decision and judicial authority to which these articles refer. Miss Montgomerys submission that these words refer to no more than an authority which is, and which a state notifies to the Council as being, vested with responsibility for issuing such a warrant is also open to objection. It means that any member state could notify any body or person to the Council as the authority responsible for issuing an European arrest warrant, and thereby clothe that body or person with the mantle of a judicial authority making a judicial decision. Miss Montgomery does not shrink from this conclusion: she submits that judicial means no more than appertaining to the administration of justice, and that the mere assignation to an authority of the role of issuing a European arrest warrant makes that authority judicial. Accordingly, it was and is, she submits, perfectly permissible for countries to assign as their relevant judicial authority their Ministry of Justice or their police. A number of states have indeed taken this view: eg in relation to the issue of both accusation and conviction warrants, Denmark where the Ministry of Justice is the only relevant authority and Germany where the Ministry is a relevant authority alongside the State prosecution service (Staatsanwaltschaft) and courts and in relation to the issue of conviction warrants, Estonia, Finland and Lithuania, where the Ministry is the only relevant authority and Sweden, where the National Police Board is the only relevant authority. The background to the proposal for the Framework Decision can be shortly stated. Under the European Convention on Extradition 1957 (to which the United Kingdom adhered on 14 May 1991 and to which effect was given domestically in the Extradition Act 1989), extradition was effected by and between states in respect of persons against whom the competent authorities of the requesting state were proceeding or who they wanted for the carrying out of a sentence or detention order. There was a requirement of double criminality and states had the right to refuse extradition of their nationals. The 1957 Convention was supplemented by a Council Act of 27 September 1996 (96C 313/02). This retained the requirement of double criminality with modifications (articles 2 and 3), and it provided for the extradition of nationals, but at the same time it gave states the right not to extradite their own nationals by successive five year reservations (article 7). States were also given the right to provide on a mutual basis for requests for supplementary information to be handled directly between judicial authorities or other competent authorities which they authorised and specified for that purpose (article 14). Various authorities, including prosecutors, the Ministry of Justice and police, were specified for this limited purpose by some countries. The third instrument requiring mention is the Schengen Convention of 19 June 1990, which implemented the Schengen Agreement of 14 June 1985 between the Benelux countries, Germany and France and to some parts of which, including article 95, the United Kingdom later acceded by 2003. Articles 39 and 53 of the Schengen Convention distinguish between on the one hand the police and Ministries of Justice and on the other judicial authorities in the context of mutual assistance. Article 95 provides for data on persons wanted for arrest for extradition purposes to be entered at the request of the judicial authority of the requesting state, and for such alert to be sent by the quickest means possible to the requested state with information as to the authority issuing the request for arrest, as to whether there is an arrest warrant or other document having the same legal effect, or an enforceable judgment and as to the nature, circumstances and consequences of the offence. Unless the requested state refused on exceptional grounds, or because the person wanted was one of its nationals, article 95 alerts would lead to arrest of the wanted person in the requested state, to enable extradition proceedings to take place. Otherwise, they would be treated as a request for information as to that persons place of residence (article 95(5)). Article 98 also addressed the provision at the request of the competent judicial authorities of information as to place of residence of a wanted person. A report dated 13 October 2009 by the Joint Supervisory Authority of Schengen states that: [w]hile public prosecutors and judicial authorities obviously play a major role in the decision leading to article 98 alerts, in some Schengen States the police, security police, tax and customs authorities, border guard authorities and other authorities competent for criminal investigations are also competent to decide on article 98 alerts (para V.I.A.1). If the same applied or applies to the more coercive article 95 alerts, that, as will appear, was certainly not what Parliament understood when it passed the Extradition Act 2003, incorporating section 212 (see para 258 below). The Framework Decision was designed to introduce a new era. First, the surrender of requested persons between member states was to become entirely or basically judicial. So the Commission wrote in a first report on the Framework Decision, although noting that certain states including Sweden had designated an executive body as the relevant authority for all or some aspects. Second, the requirement of double criminality was to go. Third, the surrender of nationals was now to be required a major innovation as the Commission described it in its report. The correct interpretation of the Framework Decision is a matter of European Union law. The Court of Justice may one day have to adjudicate upon it, either at the instance of a member state which has already accepted the courts jurisdiction in respect of third pillar instruments or, after 1 December 2014, at the instance of a state remaining party to the Framework Decision. The Court of Justices general interpretational approach has been described by Professor Anthony Arnull of the University of Birmingham, as teleological and contextual: The European Union and its Court of Justice, 2nd ed (2006), pp 612 and 621; Professor Arnull goes on to note that the recourse to travaux prparatoires contemplated as a secondary source of assistance in other international contexts under article 32 of the Vienna Convention on the Law of Treaties is not a method which has in the past commended itself to the Court in cases concerning the interpretation of the Treaties themselves: p 614. This is for a good reason, which applies in the present context. Such travaux (or, in the European jargon, non papers) relating to matters decided in preparatory working groups, are not made generally available (although a facility to seek access to them under certain conditions is available in Council Regulation (EC) No 1049/2001). This is relevant because of the striking differences between the original Commission proposal of 25 September 2001 (COM(2001) 522 final/2) and the redraft which was agreed by the Council of Ministers at a meeting of 6 7 December 2001, recorded on 10 December 2001 as Council document 14867/1/01 Rev 1 and agreed by the European Parliament on 6 February 2002. Article 3 of the original Commission proposal defined a European arrest warrant as a request, issued by a judicial authority in a Member State, and addressed to any other Member State, for assistance in searching, arresting, detaining and obtaining the surrender of a person, who has been subject to a judgment or a judicial decision, as provided for in article 2. It defined issuing judicial authority as the judge or the public prosecutor of a Member State, who has issued a European arrest warrant and executing judicial authority as the judge or the public prosecutor of a Member State who decides upon the execution of a European arrest warrant. Article 4 provided that each member state shall designate according to its national law the judicial authorities that are competent to (a) issue a European arrest warrant and (b) take decisions under the provisions dealing with execution of such a warrant. Article 2 provided that a European arrest warrant may be issued for (a) final judgements in criminal proceedings, and judgements in absentia which involve deprivation of liberty or a detention order of at least four months or (b) other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence punishable by a sentence or detention order of at least twelve months. Any European arrest warrant had under article 6 to contain information as to whether there is a final judgement or any other enforceable judicial decision, within the scope of article 2. Under this scheme, there would have been no doubt that a member state could designate either a court or a public prosecutor as competent to issue a European arrest warrant. But it would have been open to doubt in accusation cases what sort of enforceable judicial decision taken by whom would have had to precede the issue of such a warrant. And enforceable judicial decision in that context might or might not have been limited to a court decision. The Council redraft of 10 December 2001 elevated to article 1 the description of a European arrest warrant as (in the original French text) une dcision judiciaire mise par un tat membre en vue de larrestation et de la remise par un autre tat membre dune personne recherche pour lexercice de poursuites pnales ou pour lexcution dune peine ou dune mesure de surt privatives de libert. The English and German versions, described as liable to revision in the light of the French original, spoke of a court decision and (the German text being in this respect consistent with the English) eine gerichtliche Entscheidung. Article 2(1) followed the same scheme as article 2 of the September draft, but article 2(2) introduced a long list of offences punishable by sentences of at least three years which were to give rise to surrender without verification of double criminality. Article 6 was in substantially the terms that became article 6 of the Framework Decision, but the Council redraft did not attempt to define judicial authority. Article 9 required the European arrest warrant to contain evidence of an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect, within the scope of articles 1 and 2. This redraft left unclear both what was meant by judicial authority and whether the prior domestic arrest warrant or any other enforceable judicial decision on which a European arrest warrant was to be based had to involve a court decision. The Framework Decision recites the Commission proposal and the European Parliaments opinion, but is closely based on the Council redraft. The Council redraft must, in the ordinary course, have followed the circulation, under the aegis of the Belgian presidency of the Council, of non papers which could, if available, shed light on the drafting history. The United Kingdom government made a preliminary presidency text of this nature available to the House of Lords European Union Committee: see Lord Brabazon of Taras letter to the minister at Appendix 3 to the committees 6th Report of Session 2001 02. Lord Brabazons letter records that the preliminary presidency text included an article 24 (left blank in the version of 10 December 2001) enabling a member state to suspend the application of the Framework Decision in relation to states not complying with article 6.1 TEU, that the minister had also stated that it was implicit that national authorities would apply the European Convention on Human Rights, and that the committee inferred but wished to have expressly stated that an executing authority could refuse execution in the case of a request which came from a judicial authority not possessing the degree of independence needed to satisfy article 5 ECHR. That latter thought, that a judicial authority should have that independence, is reflected in Ms Roses current submissions. For present purposes, the content and thinking of any non papers remain (in the absence of any request to see them under Regulation (EC) No 1049/2001 of 30 May 2001) unknown. Even if they were now known, it seems unlikely that the Court of Justice would attach any weight to them. Equally, the Court would I think be hesitant about speculating in their absence as to the reasons for the differences between the Commissions original proposal, on the one hand, and the 10 December 2001 text and the final Framework Decision, on the other. Lord Phillips suggests two possible reasons for the absence from the Council redraft of any definition of judicial authority: one, to restrict the meaning to a judicial authority in the strict court sense; the other, to broaden it beyond judge or prosecutor. He favours the latter (paras 60 and 65). But it is also possible that there was no consensus, and that the removal of any definition left the matter open, in effect for whatever the Court of Justice might decide. In any event, I doubt whether the Court of Justice would speculate in this area either. Rather, it would focus on the final Framework Decision and seek to make sense of its text in the light of its purpose, the principles underlying it and general principles of European law. Under article 6.3 of the Treaty on European Union in its current form, these include [f]undamental rights, as guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms and as they result from the constitutional traditions common to the Member States. In this connection, it is notable that the Framework Decision draws no explicit distinction between the qualities which must be possessed by an issuing and an executing judicial authority. Nor in fact did either the Commission proposal or the Council redraft draw any such distinction the former contemplated that a judge or a prosecutor could fulfil either role, the latter is silent as to the qualities required. Yet it seems clear that executing authorities have adjudicative responsibilities which can only be fulfilled by a judicial authority in the strict court sense in other words, complying with the requirements laid down by the Strasbourg court in the cases cited in para 223 above. Adjudicative responsibilities of this nature can arise for example under each of articles 11, 12, 13 (where the words before the executing judicial authority underline the point), 14, 15, 16, 17, 18 and 19 of the Framework Decision. One very possible reason for the removal from the Council redraft of any definition is that it was appreciated that the Commission definition was, at least in this respect, inappropriately wide. That does not necessarily mean that the meaning of judicial authority in the Council redraft was itself narrowed it may simply have been left to member states, pursuant to article 1.3, to comply with their Convention obligations by nominating appropriately independent and impartial courts as executing authorities. But it does mean that it is unsafe to approach the present appeal on the basis that the absence of a definition of judicial authority was intended to broaden or relax, rather than tighten, the meaning of a judicial authority (compare Lord Phillips, para 60). What is striking is in my view the emphasis placed in article 1 of the Framework Decision on a European arrest warrant being a judicial decision. Returning to the Commission proposal and Council redraft, it was the Council redraft that insisted on a judicial decision by the issuing judicial authority to issue such a warrant. The Commission proposal had spoken simply of a request issued by a judicial authority for assistance in respect of a person subject to a domestic sentence or other enforceable judicial decisions in criminal proceedings which involve deprivation of liberty and relate to an offence, which is punishable by deprivation of liberty or a detention order for a maximum period of at least twelve months. Under the Commission proposal a European arrest warrant could be requested without more, once there was a domestic sentence or judicial decision of this nature. Under the Council redraft and the Framework Decision, there are two separate stages, and the focus is on the first, the judicial decision involved in the issue of the European arrest warrant. The prior stage, at which there must exist an enforceable judgment, an arrest warrant or any other enforceable judicial decision on which the European arrest warrant is based is no more than additional information to be mentioned in the European arrest warrant: see article 8 of and Annex (b) to the Framework Decision and Louca v Public Prosecutor, Bielefeld, Germany [2009] UKSC 4; [2009] 1 WLR 2550. Lord Phillips describes the second stage as involving an essentially administrative step in the process and the first stage as the significant safeguard against the improper or inappropriate issue of an EAW (paras 62, 74 and 79). To my mind, this considerably downplays the significance which must have been attached to the introduction of the requirement of a judicial decision by an issuing judicial authority to issue a European arrest warrant. Further, in so far as it is implicit in his description and Miss Montgomerys case that there must have been a judicial decision by a court at the first stage, there is no basis for this assumption in the Framework Decision, or in practice. As Lord Phillips acknowledges in para 32, under prior practice followed in relation to the European Convention on Extradition 1957, states were able to issue requests for extradition based on domestic arrest warrants that might not have resulted from any judicial (in the sense of court) process. Nothing in the Framework Decision expressly requires any prior arrest warrant to be the result of a court process, nor do the to consider judicial authority ought evaluation reports attach importance to this being so, or establish that it is so, in practice in relation to a number of member states. The argument that the words in article 8.1(c) an enforceable judgment, an arrest warrant or any other enforceable judicial decision having the same effect imply that any such domestic arrest warrant will have been issued by a court would, if correct, support Ms Roses submission that judicial in articles 1 and 6 also means by a court. The parties are also at issue with regard to the nature of the judicial decision to be taken by a judicial authority issuing a European arrest warrant. On any view, the phrase must have been introduced with a protective purpose: see para 224 above. The issuing judicial authority must have been seen as a body or person applying an open and objective mind to the question whether circumstances existed justifying the issue of such a warrant. It is also clear, and the word may in article 2(1) of the Framework Decision confirms, that no duty is imposed on any state to issue a European arrest warrant. The Framework Decision confers a power. In these circumstances, Ms Rose submits that, before issuing such a warrant, an issuing the appropriateness (or proportionality) of doing so. Miss Montgomery submits that there is no such requirement. The evaluation reports on the implementation of the Framework Decision show that, while a number of states undertake such an exercise, the issue of a European arrest warrant is currently obligatory under the domestic law of several other states. The Council has urged states to change their domestic law to ensure that a proportionality check is undertaken in all before the issue of any European arrest warrant: para 3 of its European Handbook on how to issue a European Arrest Warrant (set out in 8216/2/08 Rev 2 COPEN 70 EJN 26 EUROJUST 31). However, the Council takes the same view of the current legal situation as Miss Montgomery, stating in its Handbook, para 3, that It is clear that the Framework Decision does not include any obligation for an issuing Member State to conduct a proportionality check. It will be the legislation and judicial practice of the Member States that will ultimately decide this question. Notwithstanding the respect due to the Councils legal service which may have endorsed this passage, it does not follow that the Court of Justice would necessarily take the same view. It seems to me quite possible that the Court would hold that it was inherent in the creation of the discretionary power conferred by article 2, to be exercised under articles 1 and 6 by judicial decision taken by an issuing judicial authority, that some consideration should be paid to the appropriateness in all the circumstances of the issue of a European arrest warrant. Whether this would be so or not, the protective emphasis in the Framework Decision on a judicial decision by a judicial authority lends some impetus to Ms Roses case that a body independent of the parties should undertake this role. If and when it had to address the present issues, the Court of Justice would have to address at the outset Miss Montgomerys submission that article 6 leaves it to each member state to determine which body, bodies or person(s) constitute judicial authorities within its legal system for the purpose of issuing a European arrest warrant, with the effect that any decision by such a body or person constitutes a judicial decision within article 1. This submission deprives the words judicial authority of any autonomous or objective meaning. It makes states their master. Alice would have been right to question whether you can make words mean so many different things (Through the Looking Glass). The alternative and to my mind more natural way of reading article 6 is that it requires each member state to identify which judicial authority is competent, but does not authorise a member state to assign judicial status to take judicial decisions to bodies which or persons who obviously do not possess it. In my view, the Court of Justice would be likely to conclude that the concepts of a judicial decision by a judicial authority cannot be stripped of all objective or autonomous content in the manner that Miss Montgomerys submission suggests. However this conclusion leaves open the question whether a judicial decision by a judicial authority must under the Framework Decision be taken by a body possessing all the characteristics of independence of the executive and the parties for which Ms Rose submits. It is at this point that I have greater difficulty in accepting the case she advances on European law. I do not accept much of the reasoning involved in the five points made by Lord Phillips in his paras 60 to 67, and I am in substantial agreement with all Lord Dysons comments in paras 155 to 159 on the first four of those points. I do however see force in the general point Lord Phillips makes in paras 16 to 20 of his judgment. The words judicial authority, and all the more so their homologues autorit judiciaire and Justizbehrde, have a degree of flexibility about them that a reference to a court or judge would not have had. To this, one may add the knowledge that in some civil law countries (France, Greece, for example), public prosecutors (le parquet) are described as an arm of the judiciary. F H Bridges French English Legal Dictionary published by the Council of Europe in 1994 defines autorit judiciaire as court; judicial authorities; judiciary; (occasionally) legal authorities and fonction judiciaire as judicial office; legal office; legal functions. (The term includes the office of prosecutor as well as that of judge in certain contexts). In Sweden the public prosecutor is not regarded as part of the judiciary. Nevertheless, it is recognised throughout Europe that public prosecutors have a special status in the administration of justice, which requires them to be independent and autonomous in their decision making and carry out their functions fairly, objectively and impartially: para 6 of the Bordeaux Declaration Judges and Prosecutors in a Democratic Society, issued jointly by the Consultative Council of European Judges and Consultative Council of European Prosecutors as part of their Opinions numbered respectively 12 (2009) and 4 (2009). It is right, however, to add that para 7 of the same Declaration goes on to add, after reference to the case law to which mention has already been made in para 223 above, that: Any attribution of judicial functions to prosecutors should be restricted to cases involving in particular minor sanctions, should not be exercised in conjunction with the power to prosecute in the same case and should not prejudice the defendants right to a decision on such cases by an independent and impartial authority exercising judicial functions. That passage favours Ms Roses case, because, even on a broad view of judicial, it means that a public prosecutor should not be taking judicial decisions in a case which she or he is prosecuting. In support of his view that the phrase judicial authority must have been used without definition in order to open the concept still wider than the Commission proposed in September 2001, Lord Phillips refers to subsequent state practice, already touched on in para 225 above. In fact, the practice of nominating a Ministry of Justice or the police has been criticised, though it appears without avail, both by the Commission, eg in its first report on the Framework Decision (COM (2006)8 final of 24 January 2006, and in various Council evaluation reports on the operation of the Framework Decision, as summarised in the Councils overall Final report on the fourth round of mutual evaluations The practical application of the European Arrest Warrant and corresponding surrender procedures between Member States (8302/4/09 REV 4CRIMORG55 COPEN 68 EJN24 EUROJUST20): The findings of the evaluation demonstrate, however, that in some Member States non judicial central authorities continue to play a role in cardinal aspects of the surrender procedure far beyond the administrative tasks assigned in the Framework Decision. As a matter of principle, this situation seems difficult to reconcile with the letter and the spirit of the Framework Decision, irrespective of how understandable it may be in view of the specificities of the national system or associated practical advantages. Recommendation 1: The Council calls on those Member States that have not done so to consider restricting the mandate of non judicial authorities, or to put equivalent measures in place so as to ensure compliance with the Framework Decision with regard to the powers of judicial authorities. For subsequent practice in the application of the parties to be relevant to be taken into account in the interpretation of the Framework Decision, it must under article 31.3 be practice which establishes the agreement of the parties regarding its interpretation. It must be practice which clearly establishes the understanding of all the parties regarding its interpretation, although subsequent practice by individual parties also has some probative value: Brownlie, Principles of Public International Law, 7th ed (2008) pp 633 634. Evidently suspect practice consisting of the use and nomination of executive authorities by a few states cannot come near establishing the agreement of the parties regarding [the] interpretation of the Framework Decision within the meaning of article 31.3 of the Vienna Convention on the Law of Treaties. On this I disagree with Lord Phillips in paras 60 and 67. However, a greater number of the member states of the European Union have nominated public prosecutors as issuing judicial authorities (eleven, it appears in relation to accusation warrants and ten in relation to post conviction warrants) without this receiving the same disapproval, and this is at least a factor to be taken into account in attempting to understand the parameters at a European level of the concept of judicial authority. A countervailing factor is, however, that ten states have nominated public prosecutors as an executing judicial authority, in the case of three of them as the only executing judicial authority, in circumstances where it is clear that only a court could properly fulfil a large number of the duties of such an authority: see para 234 above. Another factor mentioned in argument is the existence of other third pillar measures, containing various different references to judicial authorities such as those cited by Lord Phillips in para 19. I find these of little assistance, except to show that words can mean whatever they are defined to mean. Further, there is no reason to regard the 1990 European Convention on money laundering as background to the Framework Decision, and the European Arrest Warrant 2008/978/JHA cannot support an argument of state practice under the Framework Decision. My examination of the Framework Decision leads to a conclusion that it is far from easy to predict what the attitude of the Court of Justice might be on the question whether a public prosecutor can qualify as an issuing judicial authority for the purposes of reaching a judicial decision to issue a European arrest warrant in a case in which he or she is conducting the criminal prosecution. There are strong arguments each way. However, if a prediction has to be made as to what would be likely now to be held by the Court of Justice to be the legal position under the Framework Decision, I would come down on balance on the same side as Lord Phillips, though for somewhat different reasons. I would be prepared to accept, in the light of the special role and responsibilities to the fair administration of justice of a public prosecutor and in the light of the subsequent use, without apparent criticism, by a not inconsiderable number of states, of public prosecutors as an issuing judicial authority (and despite the highly questionable designation of public prosecutors as an executing authority), that a public prosecutor may, even in relation to a case which he or she is prosecuting, constitute a judicial authority taking a judicial decision to issue a European arrest warrant. I would not however accept that either the police or a Ministry of Justice could or would properly be regarded as constituting such an authority under the Framework Decision. The Extradition Act 2003 and its interpretation under domestic law I turn in this light to consider whether it follows from this conclusion that the Extradition Act 2003 recognises and gives effect to the concept of a judicial decision by a judicial authority in the same sense as that in which I am prepared to accept that the Court of Justice probably would. For the reasons given in paras 204 to 206 and 217 above, and especially because both the Framework Decision and the Act use the phrase judicial authority, there is a strong presumption that it does, but this does not follow automatically. A question arises here as to the proper starting point. The natural meaning of the English phrase judicial authority favours Ms Roses case. But Lord Phillips (para 10) takes the view, as I read him, that once one has determined what the Court of Justice is likely now to regard as the proper European legal meaning, that dictates the proper meaning of the domestic Act. Lord Phillips postulates that Parliament can only have intended a different meaning if it set out deliberately to breach this countrys European obligations, and that it would in that event also have made it plain that it was doing this, and Lord Kerr at para 115 and Lord Dyson at para 161 make similar comments. I do not regard this reasoning as sustainable. It pre supposes that the correct European legal answer has always been clear in the sense now considered correct or probable by the Supreme Court, so that Parliament can only have differed from it deliberately. On no view is that the case. Even looking at the matter now, after a long hearing, in my view the European legal answer remains obscure in part as a result of a deliberate choice by the Council to exclude any definition of a judicial authority. Further, to the extent that there is any clarity about the current European legal position, it arises in part from subsequent state practice, whereas the primary focus in construing the 2003 Act must be on the parliamentary intention in 2003. As I see it, the natural assumption is either that Parliament meant the phrase judicial authority in its ordinary English meaning, or, in the light of the uncertainty at all times about the position under European law, there is at lowest ambiguity about what Parliament meant. The Framework Decision is an important potential source of guidance, but it is obscure. The Supreme Court is concerned with the construction of a British statute, and our role is to elicit the true parliamentary intention in passing it. Parliament in 2003 may well have thought that the concept of a judicial authority (taking a judicial decision) in the Framework Decision meant the same as its natural English meaning. If so, we should give effect to Parliaments intention. The parliamentary history and material as an aid to interpretation In these circumstances, it is appropriate to consider whether any guidance is properly to be obtained from parliamentary material. Under the rule in Pepper v Hart [1993] AC 593 reference is permissible to parliamentary material as an aid to statutory construction where (a) legislation is ambiguous or obscure or leads to absurdity, (b) the material relied upon consists of one or more statements by a minister or other promoter of the relevant Bill together if necessary with such other parliamentary material as necessary to understand such statements and their effect and (c) the statements relied upon are clear. It may also be necessary or relevant to consider whether any such statements were made against the interest of the executive. From the very outset the Commissions proposal for a European arrest warrant and the Councils redraft were the subject of close parliamentary scrutiny. In relation to the Commission proposal and presidency redraft, concern was expressed by the House of Lords European Union Committee in its 6th report dated 12 November 2001. On 10 December 2001 the responsible minister was also being pressed by European Standing Committee B of the House of Commons and gave assurances as the following exchange shows (Hansard (HC Debates), cols 25 52): Mrs Dunwoody: What does judicial authority mean to Her Majesty's Government? Mr Ainsworth: I tried to give my hon Friend that assurance last week. The only people who will be allowed to issue or execute an arrest warrant will be a judicial authority as recognised normally within either the issuing or the executing state. Mrs Dunwoody: With respect, I ask again, what is the definition of judicial authority? An answer in any language that I can vaguely understand will do, and I speak five. Mr Ainsworth: The definition of a judicial authority is exactly that. In this country, it is the Bow Street magistrates court. In other countries, there are various different authorities such as magistrates and judges who normally issue extradition warrants. Those are the people who will execute a European arrest warrant. In the course of what Mr David Cameron described as a knock about finish, Mr Ainsworth ended the debate by saying: [Mrs Dunwoody] asked me for a definition of a judicial authority. Having listened to the comments of Opposition Members, I imagine that they must be advising their friends and relatives not to travel abroad. I would not want to go to any of the countries that the hon Member for Surrey Heath describes, where he says that we are likely to be locked up on trumped up charges by corrupt and politically motivated judiciaries. Where are those countries? Does the hon Gentleman go back to his constituency and advise his constituents not to travel abroad? I feel guilty now, because during the short time in which I have had the privilege of holding my current position I have been responsible for signing extradition warrants to send people back to these dreadful places. I have sent people back to the examining magistrate in Liege, to the magistrate at the public prosecutor's office in Amsterdam, to the court of Brescia, to the county tribunal of Bobigny, to Judge Weber of Saarbrucken, and to magistrate Judge Maria Teresa Palacios Criado of central trial court No 3 in Madrid. That is in southern Europe; what on earth have I done? God knows what happened to the person concerned, or whether they are even still alive. It is clear that the only people who the minister had in mind as making requests under the existing system were courts, judges or magistrates, of one sort or another. Subsequently, an English language version of the Council redraft became available, containing in article 1 a reference to a court decision. This led to the following further exchange with the minister, Mr Ainsworth, on 9 January 2002, recorded by the House of Commons European Scrutiny Committee in its 17th Report (Session 2001 2002): 5. The minister was asked on 9 January if it followed from article 1 that the courts of this country would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. In reply, the minister said that: The judicial authority will be designated by the issuing State, but it will have to be that, a judicial authority and a court, so it will not be for the British authorities to say what is and what is not a court in another European State, but it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European arrest warrants as they will not be recognised. 6. When asked if this matter would be made clear in the Extradition Bill, the minister replied that it would need to be spelt out in the Bill, but that he was not certain that any further clarification was needed, since article 1 stated that the European arrest warrant was to be a court decision. The Minister later confirmed that judicial authorities in the United Kingdom: will not only have the ability but will certainly not execute a European arrest warrant that comes from anything other than a judicial authority in another European State. The Committee continued: 7. We think it regrettable that the term judicial authority is not defined, given its central importance to the scheme of mutual recognition and enforcement established by the Framework Decision. However, we welcome the ministers acceptance of the principle that a warrant which is not a court decision within the meaning of article 1 will not be recognised in this country. It is also worth quoting more fully the words following the ministers assurance that the position would have to be spelt out in the Bill. He went on: I think that it is now clear within the Framework Decision where you will see in later articles that it says that the requirement is between the judicial authority in the issuing State to the judicial authority in the executing State and quite rightly article 1 says that the European arrest warrant shall be a court decision. I am not certain there is any further clarification and I am happy to try and understand concerns that there may be remaining, but it appears to me that it is very clear that this cannot be a police authority, but it must be a court, a judicial authority, At a later point, the minister said: Yes, there are different legal systems that apply in different parts of the European Union, but there are clear judicial authorities who apply for extradition and who will be the authorities that have the power to apply for a European arrest warrant. Those judicial authorities will be reported under the Framework Agreement, they are the judicial authorities that will have that power and it is clearly stated in the Framework Decision that it will be a court decision. The minister may not have been accurately informed about the nature of the foreign authorities at whose behest states had up to 2002 been acting when requesting extradition. All these statements show the importance attached on all sides to any European arrest warrant being issued by a court. The Framework Decision was agreed on 13 June 2002. As set out more fully in paras 219 to 220 above, articles 2 and 6 used the terminology of judicial decision (dcision judiciaire or justizielle Entscheidung) and judicial authority (autorit judiciaire or Justizbehrde). In contrast, the Extradition Bill introduced on 14 November 2002 was phrased simply to apply if the designated authority (in the event SOCA) receives a Part 1 warrant in respect of a person (clause 2(1)) stating, in summary, that the person was either accused of and wanted for trial on an offence or was unlawfully at large after conviction. Clause 2(5) to (7) were in similar form to those which ultimately became section 2(7) to (9) (see para 196 above). Not surprisingly, these provisions attracted immediate parliamentary criticism. In its 1st report (Session 2002 2003) dated 5 December 2002 the House of Commons Home Affairs Committee recited the parliamentary history to that date as follows: 59. At the time at which the European Scrutiny Committee first considered the draft framework decision, the draft provided for the European Arrest Warrant to be issued and executed by a judicial authority. The Committee was concerned that, without an agreed definition of judicial authority, it was not possible to ensure that orders made by police forces, with no recognisably judicial involvement in the making or approval of such orders, would be excluded from recognition and enforcement under the framework decision. Article 1 of the draft framework decision was subsequently amended to refer to the European Arrest Warrant as being a court decision issued by a member state. The Committee inferred from this reference that the judicial authority would have to exercise recognisably judicial functions in an independent manner. 60. The European Scrutiny Committee asked the Parliamentary Under Secretary if it followed from article 1 that the UK courts would not be obliged to recognise and enforce a warrant if it came from a body which they did not recognise as a court. He responded that it will not be possible for authorities that clearly are not courts, that are not judicial authorities to issue requests for European Arrest Warrants as they will not be recognised, although he pointed out that it will be for each member state to designate a judicial authority competent to issue such warrants. He later confirmed that, under the Extradition Bill, the UK judicial authority will not only have the ability but will certainly not execute a European Arrest Warrant that comes from anything other than a judicial authority in another European state. The Parliamentary Under Secretary also stated that the whole thing will need to be spelt out within the Bill. He gave similar assurances to European Standing Committee B. The Committee concluded: 63. We agree with the European Scrutiny Committee that the European Arrest Warrant should be able to be issued only by a judicial authority exercising recognisably judicial functions in an independent manner. We consider that this requirement should apply to all Part 1 warrants. We therefore recommend that clause 2(5) be amended to provide that the UK judicial authority may not issue a clause 2 certificate unless it believes that the Part 1 warrant was issued by such a judicial authority. The Bill was considered in Standing Committee in the House of Commons on 9 January 2003, when the shadow minister took up the same points, referring back once again to the assurances given in January 2002. Amendments were proposed and (at that stage) lost. One was to add judicial into the requirement that an arrest warrant be issued by an authority of a category 1 territory (Hansard (HC Debates), cols 42 45). As will appear, an amendment to this effect was ultimately accepted on 22 October 2003. Another was that only European arrest warrants issued abroad by the equivalent of a High Court judge should be recognised in the United Kingdom. The minister, Mr Ainsworth, said in debate in response, at col 47, that: There is no attempt to renege on any commitments that were given in previous Committees. The framework document could not be clearer. We sought safeguards during the negotiation of the document to ensure that we protected rights in the way the hon Gentleman suggests we should. Mr. Maples interposed: A British court dealing with an application for the extradition of someone under Part 1 would read the Bill, not the framework document. If the Government took the trouble to get judicial inserted into the framework document, why cannot they simply put it in the Bill? Subsection (5) is ambiguous. It says that the authority has the function of issuing arrest warrants in the category 1 territory. A police officer may well be one of the people or organisations that have a function of issuing arrest warrants in another territory. If the arrest warrant is acted on under this legislation, it should be issued by a judicial authority. The question of the presumption of innocence is different, but the insertion of judicial in these two places could solve the problem. I am not sure why the minister resists it. Mr Ainsworth replied, at col 48: Let us discuss how we deal with extradition warrants currently and how we expect them to be dealt with under the European arrest warrant framework. If hon. Members are still not satisfied at the end of the debate they can make their views known. We expect that European arrest warrants will be issued in future by exactly the same authorities as issue warrants under the current arrest procedures. We intend to do that in the United Kingdom. There is no reason to suppose that our intentions are different from those of any other European country. The Bill is drafted in such a way as to inc1ude all those authorities that currently issue arrest warrants, as issuing authorities. I have yet to hear an argument that says that we should change that. The Committee is well aware that we have enjoyed extradition arrangements with all EU member states for many years. Extradition requests come from a variety of sources. Any Member who read the proceedings of European Standing Committee B would be aware of the wide variety of sources for current extradition requests the examining magistrate in Liege, the magistrate at the public prosecutors office in Amsterdam, the Court of Brescia, the county tribunal of Bobigny or even the magistrate judge Maria Teresa Palacios Criado in Madrid. That gives an idea of the span of arrangements used by our European partners and the sort of people who make arrest warrants today. We do not believe that that will or can change: the framework document insists on no widening outwith the judicial authorities in the Part 1 countries. We receive extradition requests from a variety of sources throughout the UK and, we should recognise that other EU countries do not have exactly the same structure of criminal justice system as our own. As the hon Member for Orkney and Shetland rightly pointed out, our system is structured in two different ways .The current system works well and has not given rise to any problems in the recent past stemming from an inappropriate request from a European partner for extradition. I see no reason to change the system. The Government responded formally on 12 February 2003 to the House of Commons Home Affairs Committees Report of 5 December 2002 (para 252 above), the response being published in by a further first special report on 3 March 2003. In response to para 63 of the Report of 5 December 2002 the Government recognised that there is very real concern about this point and said that it therefore intended to bring forward further amendments to make clear that any incoming European arrest warrant must have been issued by a judicial authority, but to disapply this requirement to requests for arrest already in the pipeline under the Schengen information system prior to 1 January 2004 (the date when the European arrest warrant was due to come into force), since it was appreciated that Schengen requests could be entered into the system at the request of police officers. The Bill had its third reading in the Commons on 25 March 2003, when the minister introduced amendments Nos 35 and 36 to insert into clauses 2(7) and (8) (the differently worded precursors of the eventual section 2(7) and (8)) a requirement that the designated authority should only certify if it believes that the authority which issued the Part 1 warrant (a) is a judicial authority of the category 1 territory and (b) has the function of issuing arrest warrants in the category 1 territory. The minister explained that these amendments: . respond to a point raised by representatives of both parties in Committee. members of the Select Committee on Home Affairs should also welcome them because they raised the same concern. The amendments will make a European arrest warrant acceptable only if it is issued by a judicial authority in a requesting state. If the warrant came from any other source, the UK designated authority would be unable to certify it and no further action could be taken on it. The stipulation that the warrant must be issued by a judicial authority is already in the framework document, so the amendments will make little difference in practice. Nevertheless, we thought it right to respond to the wishes of those who raised the issue and to make the guarantee explicit in the Bill. (Hansard (HC Debates), cols 166 167). On 1 May 2003 the Bill had its second reading in the House of Lords, where the minister, Lord Filkin, explained the constitutional position, in the passage I have set out in para 218 above. The Bill was referred to a Grand Committee, where three main areas of concern was raised on 9 June 2003, by the speakers on both sides of the House, particularly Baroness Anelay and Lord Wedderburn. First, they proposed an amendment to insert judicial in the first line of clause 2, to make clear, as Lord Wedderburn put it: that, right from the outset there should be absolutely no doubt that a judicial authority I believe a ministerial statement once indicated that that means a court must be the source of the Warrant (Hansard (HL Debates)(GC) col 11). The ministers response, at col 13, was to agree to consider this: Lord Filkin: As ever, I shall reflect on what my noble friend says. If, on reflection, there are better ways of dealing with the issue, we shall not be churlish or obdurate for the sake of it in resisting such amendment. But clause 2 is quite clear as it stands. A warrant is valid only if it is certified by the UK certifying authority. The UK authority can certify the warrant only if it comes from a judicial authority, as set out in subsections (7) and (8) of clause 2. Lord Stoddart of Swindon: Then why not say so!? Lord Filkin: That stipulation could hardly be closer to the beginning of the Bill. Nevertheless, I shall not be churlish, 1 shall consider and reflect. I do not believe that there is any issue of principle here. We are absolutely clear about that, and I have been happy to respond positively to the request of the Official Opposition in this respect. Second, Lord Wedderburn, at col 28, proposed an amendment to omit from clause 2(7) (in its form set out in para 255 above) the words it believes that. Lord Bassam, now speaking for the government, acknowledged, at col 32, that the Bill was for many . a controversial piece of legislation and agreed to consider this amendment also. Finally, Lord Wedderburn moved an amendment to insert into clause 2(7)(b) after the words the phrase the function of issuing arrest warrants the phrase after a judicial decision. He said, at cols 33 34: As we understand it, a judicial authority must, if it is a court, act judicially. If it were found that a particular court had acceded to requests without a judicial examination of the case, I suggest that the court's action would not fall within the spirit of what we intend. Therefore, we should make it clearas it is in article 1 of the framework decision that it is not just a matter of a judicial authority, but of a judicial authority exercising a procedure which amounts to a judicial decision. A case in point might be that a body which was a judicial authority acted as a matter of courseas a matter of formalityon the request of a public prosecutor. If that could be shownat least beyond reasonable doubtI apprehend that such procedure would fall outwith the spirit of what the Government intend. The Government do not, as I understand it, intend that a public prosecutor should just be able to demand of someone who is on the list of designated judicial authorities that an arrest warrant be issued. If that is so, perhaps we should make that understanding clear in the Bill . The ministers response was that he could not see what that would add, that, as he had already explained, all warrants will have to be issued by a judicial authority, and that I think that it is reasonable to argue that any decision taken on a matter of law or procedure by a person holding judicial office such as a judge or magistrate is a judicial decision (col 36). He then expressed concern that the amendment was aimed at requiring that the decision to issue a warrant should be taken in court with some kind of official procedure or hearing. After Baroness Anelay and Lord Stoddart had intervened to assure him of the seriousness with which she and other magistrates took the issue of any warrant, the minister said, at col 37: That is exactly what we expect to happen outwith our own jurisdiction. However, we see no need to impose requirements on foreign judicial authorities that we do not impose on our own judicial authorities. We expect that the process will be similar to that in the United Kingdom and that it will be of similar veracity [sic]. After further concern had been expressed that it might be an administrative, rather than a judicial process, the minister responded: It is absolutely correct, that, regardless of the location . , we expect the judicial process to be very similar to ours and as robust as ours. It should be considered in exactly the same way. The debate on this amendment concluded with Lord Wedderburn saying, at cols 38 39, that it must be a judicial authority and urging the government to think again. On 22 October 2003 Lord Bassam moved an amendment to introduce into the first line of clause 2(2) a requirement that a Part 1 warrant is an arrest warrant which is issued by a judicial authority . (Hansard (HL Debates), col 1657). He thereby accepted Baroness Anelays first proposed amendment and the second and third amendments of 9 June 2003 became otiose. The minister explained that the governments change of stance arose from strongly put points raised in Grand Committee (ie on 9 June 2003) by Lord Stoddart and Lord Wedderburn and by the principal spokespersons from the Liberal Democrats and Conservatives. It seems clear from the number and identity of the speakers he named that he was referring compendiously to the debate on all three associated amendments on 9 June 2003. Clauses 2(7) and (8) were thereafter consequentially amended to delete the previously introduced requirements of belief and a certificate on the part of the designated authority that the issuing authority was a judicial authority. That point was now covered more directly by the amendment to the first line of clause 2(2). Meanwhile on 10 September 2003 the minister had introduced a new clause, which became section 212 of the Act. The reason for it, he explained, was that while requests on the SIS (Schengen information system) require there to be a previous judicially issued domestic warrant, they may, on rare occasions, be placed on the SIS at the instigation of police officers (Hansard (HL Debates) (GC), col 34. His purpose in introducing section 212 was thus, he said, to forestall any argument that any such requests might not be regarded as coming from a judicial source. In consequence, in the Act as finally passed, section 2(2) was qualified by section 212 as regards Schengen alerts issued before 1 January 2004, so that the reference in section 2(2) to an arrest warrant issued by a judicial authority was to be read in that context as if it were a reference to the alert issued at the request of the authority. Section 212 was a temporary measure. It was clearly understood that the police officer would only be acting at the request of a true judicial source and that, under Part 1 of the Bill, any European arrest warrant would in future have itself to come from such a source. Conclusions What if any admissible guidance does one gain from this parliamentary history? I have already concluded that the concept of judicial authority in the Framework Decision should be seen as having autonomous limits in European law. It would follow, on any view, that the concept in section 2(2) must also have objective limits, rather than depend for example upon the grant of a certificate by SOCA. But even if the Framework Decision were not to be understood in this sense, I regard the clear language of section 2(2) of the Act, read with the limited requirement of certification in section 2(7) and (8), as pointing towards an objective domestic conception of judicial authority in section 2(2). At the very least, the position under the Act would be ambiguous. If that is so, then consideration of the parliamentary history makes it inconceivable that the 2003 Act can or should be construed domestically as leaving it to each state to define what is a judicial authority. The only sensible interpretation of section 2(2) in its final form and in the light of the parliamentary history is that it constitutes a self standing independent requirement, which British courts have to be satisfied is met. It would be circular and undermine the parliamentary process and clear intention if all that it meant was that British courts had to be satisfied that the issuing authority had the function of issuing a European arrest warrant under its domestic law and that the relevant state had notified the issuing authority to the Council as having that function. That might have been the effect of clauses 2(2) and (7) to (9) before they were amended as a result of the proceedings on 9 June and 22 October 2003. It cannot have been their effect after such amendment, or the amendment would achieve nothing. The second question is whether there is any sufficiently clear ministerial statement, read in context, to determine whether or not a public prosecutor can under the 2003 Act constitute a judicial authority. This question is relevant on the assumption that a public prosecutor can under European law constitute a judicial authority for the purposes of the Framework Decision. If a public prosecutor cannot be a judicial authority under European law, then she or he certainly cannot be under the 2003 Act. The direct answer to the second question is, in the light of the material which I have set out extensively, that ministers repeatedly gave assurances or endorsed assumptions that an issuing judicial authority would have to be a court, judge or magistrate. They did so moreover in contexts where a judicial authority was being contrasted by other speakers with the police and prosecutors: see the course of events set out and the passages quoted in paras 248 to 259 above, especially those relating to the parliamentary proceedings on 10 December 2001, 9 January 2002, 9 January, 9 June, 10 September and 22 October 2003. It is true that ministers also gave these assurances with the understanding that the implementation of the Framework Decision by the 2003 Act would not in this respect lead to any change by comparison with previous practice. But, even though it be the case that bodies and persons other than courts, judges or magistrates were involved in decisions by states to request extradition under the arrangements in place prior to the Framework Decision, this cannot, in my view, undermine the force of the assurances given in relation to the new and more radical procedures being introduced by the Extradition Act 2003, to the effect that the new Act would require the intervention of an issuing judicial authority in the sense of a court, judge or magistrate. Third, I do not consider that the answer given to the second question can be diluted by reference to subsequent state practice. I accept the potential relevance of subsequent state practice to the interpretation of the Framework Decision (paras 242 and 244 above and see Lord Phillipss judgment, para 67, Lord Dysons judgment, paras 127 to 140 and 152 and Lord Walkers judgment). But this cannot affect the guidance as to Parliaments actual intention in 2003 which is to be gained from the course of the parliamentary debates and amendments in 2003. To treat Parliament as having intended that the words issuing judicial authority should bear whatever meaning subsequent state practice might attach to them, would undervalue the significance of the parliamentary process and the seriousness of the concerns expressed, the assurances delivered and the amendments made during that process. Fourth, I consider that the force and quality of the assurances given must outweigh any conclusion as to what may or would be likely to be the European legal position, if that could or were to be established now with any certainty. The Bill was seen, rightly, as affecting liberty and freedom to reside or remain within the jurisdiction of persons who might very well be citizens of the United Kingdom, although Mr Assange is not. It was controversial, and ministers assurances as to the scope of the phrase judicial authority should control its meaning in circumstances where the power of the state is now sought to be deployed to extradite a person at the instance of a public prosecutor. The assurances were in that respect and should bind the executive interest, including that of the respondent which is seeking the assistance of the British state to extradite Mr Assange. Lord Brown takes a contrary view, because, in effect, there cannot be found in the parliamentary exchanges any ministerial statement that the assurances were only given so long as they complied with whatever was (or might prove to be) the European legal position. But that puts the cart before the horse. First, such clarity as now exists about the likely European position only really results from subsequent state practice. But secondly and more importantly, Lord Browns approach reads into clear parliamentary assurances about the meaning of the Act an unstated qualification that such assurances should not bind if the minister should prove mistaken (Lord Browns word) about the true scope of the Framework Decision. Both Parliament and the courts can and should, in my opinion, take ministers at their word as to the meaning of the Act they were promoting, and not question unqualified assurances which they have given. Finally, if this means that there can now be seen to be a possible or likely discrepancy between the United Kingdoms international obligations and the domestic legal system or between the meaning of the phrase judicial authority in the framework decision and in the Extradition Act 2003, that is in no way impossible: see per Lord Hoffmann in R v Lyons, cited in para 206 above. It is the consequence of the United Kingdoms dualist system, of parliamentary sovereignty and of the clear limitations on the domestic implementation of European law which Parliament intended, for the time being, by the European Communities Act 1972 and the European Union (Amendment) Act 2008, read with Protocol No 36 of the Treaty of Lisbon. As a domestic court, and in the absence of any European Treaty or instrument falling within section 2 of the European Communities Act 1972, our loyalty must be to Parliaments intention in enacting the Extradition Act 2003. The implications of this in the present context are in my view clear. the effect of the Extradition Act 2003 was to restrict the recognition by British courts of incoming European arrest warrants to those issued by a judicial authority in the strict sense of a court, judge or magistrate. It would follow from my conclusions that the arrest warrant issued by the Swedish Prosecution Authority is incapable of recognition in the United Kingdom under section 2(2) of the 2003 Act. Parliament could change the law in this respect and provide for wider recognition if it wished, but that would of course be for it to debate and decide. I would therefore allow this appeal, and set aside the order for Mr Assanges extradition to Sweden. Annex to judgment of Lord Mance (para 199) Relevant text of Protocol No 36 to the Treaty of Lisbon TRANSITIONAL PROVISIONS CONCERNING ACTS ADOPTED ON THE BASIS OF TITLES V AND VI OF THE TREATY ON EUROPEAN UNION PRIOR TO THE ENTRY INTO FORCE OF THE TREATY OF LISBON Article 9 The legal effects of the acts of the institutions, bodies, offices and agencies of the Union adopted on the basis of the Treaty on European Union prior to the entry into force of the Treaty of Lisbon shall be preserved until those acts are repealed, annulled or amended in implementation of the Treaties. The same shall apply to agreements concluded between Member States on the basis of the Treaty on European Union. Article 10 1. As a transitional measure, and with respect to acts of the Union in the field of police cooperation and judicial cooperation in criminal matters which have been adopted before the entry into force of the Treaty of Lisbon, the powers of the institutions shall be the following at the date of entry into force of that Treaty: the powers of the Commission under Article 258 of the Treaty on the Functioning of the European Union shall not be applicable and the powers of the Court of Justice of the European Union under Title VI of the Treaty on European Union, in the version in force before the entry into force of the Treaty of Lisbon, shall remain the same, including where they have been accepted under Article 35(2) of the said Treaty on European Union. 2. The amendment of an act referred to in paragraph 1 shall entail the applicability of the powers of the institutions referred to in that paragraph as set out in the Treaties with respect to the amended act for those Member States to which that amended act shall apply. 3. In any case, the transitional measure mentioned in paragraph 1 shall cease to have effect five years after the date of entry into force of the Treaty of Lisbon. 4. At the latest six months before the expiry of the transitional period referred to in paragraph 3, the United Kingdom may notify to the Council that it does not accept, with respect to the acts referred to in paragraph 1, the powers of the institutions referred to in paragraph 1 as set out in the Treaties. In case the United Kingdom has made that notification, all acts referred to in paragraph 1 shall cease to apply to it as from the date of expiry of the transitional period referred to in paragraph 3. This subparagraph shall not apply with respect to the amended acts which are applicable to the United Kingdom as referred to in paragraph 2. The Council, acting by a qualified majority on a proposal from the Commission, shall determine the necessary consequential and transitional arrangements. The United Kingdom shall not participate in the adoption of this decision. A qualified majority of the Council shall be defined in accordance with Article 238(3)(a) of the Treaty on the Functioning of the European Union. The Council, acting by a qualified majority on a proposal from the Commission, may also adopt a decision determining that the United Kingdom shall bear the direct financial consequences, if any, necessarily and unavoidably incurred as a result of the cessation of its participation in those acts. 5. The United Kingdom may, at any time afterwards, notify the Council of its wish to participate in acts which have ceased to apply to it pursuant to paragraph 4, first subparagraph. In that case, the relevant provisions of the Protocol on the Schengen acquis integrated into the framework of the European Union or of the Protocol on the position of the United Kingdom and Ireland in respect of the area of freedom, security and justice, as the case may be, shall apply. The powers of the institutions with regard to those acts shall be those set out in the Treaties. When acting under the relevant Protocols, the Union institutions and the United Kingdom shall seek to re establish the widest possible measure of participation of the United Kingdom in the acquis of the Union in the area of freedom, security and justice without seriously affecting the practical operability of the various parts thereof, while respecting their coherence. NOTE The appellants application to reopen this judgment was refused for the following reasons: Mr Assange applies to set aside the judgment that has been given against 1. him and to re open the appeal. The grounds of the application are that the majority of the Court decided the appeal on a ground that Miss Rose QC, Mr Assanges counsel, had not been given a fair opportunity to address. That ground was that article 31(3)(b) of the Vienna Convention on the Law of Treaties (the Convention) and the principle of public international law expressed in that article rendered admissible State practice as an aid to the interpretation of the Framework Decision. At the outset of her address to the Court Miss Rose gave five headings 2. for the submissions that she proposed to make. The third of these was the relevance of subsequent events, other EU Instruments and the practice of EU States. A considerable volume of documentary material that had been placed before the Court related to these matters. In the course of her submissions under her third heading, as she has 3. accepted, Lord Brown expressly put to her that the Convention applied to the interpretation of the Framework Decision. That Convention, as Miss Rose has recognised, sets out rules of customary international law. Had Miss Rose been minded to challenge the applicability of the Convention, or the applicability of State practice as an aid to the construction of the Framework Decision, or the relevance and admissibility of the material relating to State practice, she had the opportunity to do so. She made no such challenge. Her submissions were to the effect that caution should be exercised when considering the effect of State practice. 4. merit and it is dismissed. For these reasons the Court considers that this application is without In the result, I conclude that, whatever may be the meaning of the Framework Decision as a matter of European law, the intention of Parliament and

The appellant, Mr Assange, is the subject of a request for extradition by the Swedish Prosecuting Authority for the purposes of an investigation into alleged offences of sexual molestation and rape. Mr Assange is in England. A domestic detention order was made by the Stockholm District Court in Mr Assanges absence, and was upheld by the Svea Court of Appeal. A prosecutor in Sweden thereafter issued a European Arrest Warrant (EAW) on 2 December 2010 pursuant to the arrangements put in place by the Council of the European Union in the Framework Decision of 13 June 2002 on the EAW and the surrender procedures between Member States (2002/584/JHA)(the Framework Decision), which were given effect in the United Kingdom in Part 1 of the Extradition Act 2003 (the 2003 Act). Mr Assange challenged the validity of the EAW on the ground (amongst others) that it had been issued by a public prosecutor who was not a judicial authority as required by article 6 of the Framework Decision and by sections 2(2) and 66 of the 2003 Act. Sweden had designated prosecutors as the sole competent authority authorised to issue EAWs in accordance with article 6(3) of the Framework Decision. Mr Assange contended that a judicial authority must be impartial and independent both of the executive and of the parties. Prosecutors were parties in the criminal process and could not therefore fall within the meaning of the term. If, contrary to this argument, prosecutors could issue EAWs under the Framework Decision, then he still submitted that they fell outside the definition in the 2003 Act, as it was clear that Parliament had intended to restrict the power to issue EAWs to a judge or court. His challenge failed before the Senior District Judge at the extradition hearing and on appeal before the Divisional Court. The Supreme Court granted permission to bring an appeal on this ground as the issue was one of general public importance. The Supreme Court by a majority of 5 to 2 (Lady Hale and Lord Mance dissenting) dismisses the appeal and holds that an EAW issued by a public prosecutor is a valid Part 1 warrant issued by a judicial authority within the meaning of section 2(2) and 66 of the 2003 Act. Article 34 (2)(b) of the Treaty on European Union provides that framework decisions are binding on member states as to the result to be achieved but that national authorities may choose the form and method of achieving this. For the reasons given by Lord Mance in his judgment [208 217] the Supreme Court is not bound as a matter of European law to interpret Part 1 of the 2003 Act in a manner which accords with the Framework Decision, but the majority held that the court should do so in this case. The immediate objective of the Framework Decision was to create a single system for achieving the surrender of those accused or convicted of serious criminal offences and this required a uniform interpretation of the phrase judicial authority [10][113]. There was a strong domestic presumption in favour of interpreting a statute in a way which did not place the United Kingdom in breach of its international obligations [122] An earlier draft of the Framework Decision would have put the question in this appeal beyond doubt, because it stated expressly that a prosecutor was a judicial authority. That statement had been removed in the final version. In considering the background to this change, the majority concluded that the intention had not been to restrict the meaning of judicial authority to a judge. They relied, as an aid to interpretation, on the subsequent practice in the application of the treaty which established the agreement of the parties. Some 11 member states had designated public prosecutors as the competent judicial authority authorised to issue EAWs. Subsequent reviews of the working of the EAW submitted to the European Council reported on the issue of the EAWs by prosecutors without adverse comment and on occasion with express approval [70] [92][95][114 119][160 170]. Lord Phillips felt that this conclusion was supported by a number of additional reasons: (1) that the intention to make a radical change to restrict the power to issue EAWs to a judge would have been made express [61], (2) that the significant safeguard against the improper use of EAWs lay in the preceding process of the issue of the domestic warrant which formed the basis for the EAW [62], (3) that the reason for the change was rather to widen the scope to cover some existing procedures in member states which did not involve judges or prosecutors [65] and that the draft referred to competent judicial authority which envisaged different types of judicial authority involved in the process of executing the warrant [66]. Lord Dyson preferred not to infer the reasons for the change [128] and did not find the additional reasons persuasive [155 159]. Lord Walker and Lord Brown also found these reasons less compelling [92][95]. Lord Kerr relied on the fact that public prosecutors in many of the member states had traditionally issued arrest warrants to secure extradition and a substantial adjustment to administrative practices would have been required [104]. Parliamentary material relating to the debates before the enactment of the 2003 Act were held by the majority to be inadmissible as an aid to construction under the rule in Pepper v Hart [1993] AC 593, given the need to ensure that the phrase judicial authority had the same meaning as it had in the Framework Decision [12] [92][98]. Lord Kerr remarked that that it would be astonishing if Parliament had intended radically to limit the new arrangements (thereby debarring extradition from a number of member states) by use of precisely the same term as that employed in the Framework Decision [115][161]. Lord Mance, dissenting, held that the common law presumption that Parliament intends to give effect to the UKs international obligations was always subject to the will of Parliament as expressed in the language of the statute [217]. In this case, the correct interpretation of judicial authority in the Framework Decision, a question of EU law, was far from certain [244]. Thus if Parliament had intended to restrict the power to issue EAWs to judges or courts, that would not have required a deliberate intention to legislate inconsistently with the Framework Decision. As the words in the statute were ambiguous, it was appropriate to have regard to ministerial statements, and those statements showed that repeated assurances were given that an issuing judicial authority would have to be a court, judge or magistrate [261]. Lady Hale agreed with Lord Mance that the meaning of the Framework Decision was unclear and that the Supreme Court should not construe a UK statute contrary both to its natural meaning and to the evidence of what Parliament thought it was doing at the time [191].

long

This judgment is concerned with two connected questions: (i) (ii) Is it possible in principle for the Supreme Court to adopt a closed material procedure on an appeal? If so, Is it appropriate to adopt a closed material procedure on this particular appeal? A closed material procedure involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing (ie a hearing at which the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present), and to contemplate giving a partly closed judgment (ie a judgment part of which will not be seen by one of the parties). Open justice and natural justice The idea of a court hearing evidence or argument in private is contrary to the principle of open justice, which is fundamental to the dispensation of justice in a modern, democratic society. However, it has long been accepted that, in rare cases, a court has inherent power to receive evidence and argument in a hearing from which the public and the press are excluded, and that it can even give a judgment which is only available to the parties. Such a course may only be taken (i) if it is strictly necessary to have a private hearing in order to achieve justice between the parties, and, (ii) if the degree of privacy is kept to an absolute minimum see, for instance A v Independent News & Media Ltd [2010] EWCA Civ 343, [2010] 1 WLR 2262, and JIH v News Group Newspapers Ltd [2011] EWCA Civ 42, [2011] 1 WLR 1645. Examples of such cases include litigation where children are involved, where threatened breaches of privacy are being alleged, and where commercially valuable secret information is in issue. Even more fundamental to any justice system in a modern, democratic society is the principle of natural justice, whose most important aspect is that every party has a right to know the full case against him, and the right to test and challenge that case fully. A closed hearing is therefore even more offensive to fundamental principle than a private hearing. At least a private hearing cannot be said, of itself, to give rise to inequality or even unfairness as between the parties. But that cannot be said of an arrangement where the court can look at evidence or hear arguments on behalf of one party without the other party (the excluded party) knowing, or being able to test, the contents of that evidence and those arguments (the closed material), or even being able to see all the reasons why the court reached its conclusions. In Al Rawi v Security Service [2012] 1 AC 531, Lord Dyson made it clear that, although the open justice principle may be abrogated if justice cannot otherwise be achieved (para 27), the common law would in no circumstances permit a closed material procedure. As he went on to say at [2012] 1 AC 531, para 35, having explained that, in this connection, there was no difference between civil and criminal proceedings: [T]he right to be confronted by ones accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The effect of the Strasbourg Courts decisions in Chahal v United Kingdom (1996) 23 EHRR 413 and A and others v United Kingdom [2009] ECHR 301 is that Article 6 of the European Convention on Human Rights (Article 6, which confers the right of access to the courts) is not infringed by a closed material procedure, provided that appropriate conditions are met. Those conditions, in very summary terms, would normally include the court being satisfied that (i) for weighty reasons, such as national security, the material has to be kept secret from the excluded party as well as the public, (ii) a hearing to determine the issues between the parties could not fairly go ahead without the material being shown to the judge, (iii) a summary, which is both sufficiently informative and as full as the circumstances permit, of all the closed material has been made available to the excluded party, and (iv) an independent advocate, who has seen all the material, is able to challenge the need for the procedure, and, if there is a closed hearing, is present throughout to test the accuracy and relevance of the material and to make submissions about it. The importance of the requirement that a proper summary, or gist, of the closed material be provided is apparent from the decision of the House of Lords in Secretary of State for the Home Department v AF (No 3) [2009] UKHL 28, [2010] 2 AC 269. At para 59, Lord Phillips said that an excluded party must be given sufficient information about the allegations against him to enable him to give effective instructions in relation to those allegations, and that this need not include the detail or the sources of the evidence forming the basis of the allegations. As he went on to explain: Where, however, the open material consists purely of general assertions and the case against the [excluded party] is based solely or to a decisive degree on closed materials the requirements of a fair trial will not be satisfied, however cogent the case based on the closed materials may be. The nature and functions of a special advocate are discussed in Al Rawi [2012] 1 AC 531, by Lord Dyson, paras 36 37, and by Lord Kerr, para 94. As Lord Dyson said, the use of special advocates has limitations, despite the fact that the rule makers and the judges have done their best to ensure that they are given all the facilities that they need, and despite the fact that the Treasury Solicitor has ensured (to the credit of the Government) that they are of consistently high quality. In a number of statutes, Parliament has stipulated that, in certain limited and specified circumstances, a closed material procedure may, indeed must, be adopted by the courts. Of course, it is open to any party affected by such legislation to contend that, in one respect or another, its provisions, or the ways in which they are being applied, infringe Article 6. However, subject to that, and save maybe in an extreme case, the courts are obliged to apply the law in this area, as in any other area, as laid down in statute by Parliament. The statutory and factual background to this appeal The statute in question in this case is the Counter Terrorism Act 2008 (the 2008 Act), which, as its name suggests, is concerned with enabling steps to be taken to prevent terrorist financing and the proliferation of nuclear weapons, and thereby to improve the security of citizens of the United Kingdom. The particular provisions which apply in the present case are in Parts 5 and 6 of the 2008 Act. The first relevant provision is section 62, which is in Part 5 and confer[s] powers on the Treasury to act against terrorist financing, money laundering and certain other activities in accordance with Schedule 7. Paragraphs 1(4), 3(1) and 4(1) of Schedule 7 to the 2008 Act permit the Treasury to give a direction to any credit or financial institution, if the Treasury reasonably believes that the development or production of nuclear . weapons in [a] country poses a significant risk to the national interests of the United Kingdom. According to paras 9 and 13 of the schedule, such a direction may require the person on whom it is served not to enter into or to continue to participate in a specified description of transactions or business relationships with a designated person. Paragraph 14 requires any such direction to be approved by affirmative resolution of Parliament. Pursuant to these provisions, on 9 October 2009, the Treasury made the order the subject of these proceedings, the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which, three days later, was laid before Parliament, where it was approved. The 2009 Order, which was in force for a year, directed all persons operating in the financial sector not to enter into, or continue to participate in, any transaction or business relationship with two companies, one of which was Bank Mellat (the Bank), or any branch of either of those two companies. The Bank is a large Iranian bank, with some 1800 branches and nearly 20 million customers, mostly in Iran, but also in other countries, including the United Kingdom. In 2009, prior to the 2009 Order, it was issuing letters of credit in an aggregate sum of over US$11bn, of which around 25% arose out of business transacted in this country. It has a 60% owned subsidiary bank incorporated and carrying on business here, which was at all material times regulated by the Financial Services Authority. The Order effectively shut down the United Kingdom operations of the Bank and its subsidiary, and it is said to have damaged the Banks reputation and goodwill both in this country and abroad. The first section of Part 6 of the 2008 Act is section 63, of which subsection (2) gives any person affected by a direction the right to apply to the High Court (or the Court of Session) to set it aside, and any such application is defined by section 65 as financial restrictions proceedings. The Bank issued such proceedings to set aside the Order on 20 November 2009. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a closed material procedure. Accordingly, he gave appropriate directions as to how the hearing should proceed. The two day hearing before him was partly in open court and partly a closed hearing. The open hearing involved all evidence and arguments (save the closed material) being produced at a public hearing, with both parties, the Bank and the Treasury, seeing the evidence and addressing the court through their respective counsel, in the normal way. The closed hearing was conducted in private, in the absence of the Bank, its counsel, and the public, and involved the Treasury producing the closed material and making submissions on it through counsel. The interests of the Bank were protected, at least to an extent, by (i) the Treasury providing the Bank with a document which gave the gist of the closed material, and (ii) the presence at the closed hearing of special advocates, who had been cleared to see the material, and who made such submissions as they could on behalf of the Bank about the closed material. Following the two day hearing, Mitting J handed down two judgments on 11 June 2010. The first judgment was an open judgment, in which the Judge dismissed the Banks application for the reasons which he explained [2010] EWHC 1332 (QB). The second judgment was a closed judgment, which was seen by the Treasury, but not by the Bank, and is, of course, not publicly available. The closed judgment was much shorter than the open judgment, although it should be added that the open judgment is not particularly long. In his open judgment, Mitting J referred to his closed judgment in two passages. At [2010] EWHC 1332 (QB), para 16, the Judge considered, inter alia, the activities of one of the Banks former customers, Novin. Having referred to the fact that Novin had been designated by the [UN] Security Council as a company which operates within and has transferred funds on behalf of the Atomic Energy Organisation of Iran (AEOI), he said that [b]y reason of the designation and for reasons set out in the closed judgment I accept that Novin was an AEOI financial conduit and did facilitate Irans nuclear weapons programme. At [2010] EWHC 1332 (QB), para 18, the Judge considered the activities of another of the Banks former customers, Doostan International and its managing director, Mr Shabani. He said that [f]or reasons which are set out in the closed judgment, I am not satisfied that Mr Shabani has made a full disclosure and am satisfied that he and Doostan have played a part in the Iranian nuclear weapons programme. The Bank appealed, and the appeal was heard by the Court of Appeal largely by way of an ordinary, open, hearing. However, there was a short closed hearing at which they considered the closed judgment of Mitting J, and at which the special advocates, but not representatives of the Bank, were present. The Banks appeal was dismissed by the Court of Appeal (Maurice Kay and Pitchford LJJ, Elias LJ dissenting in part) in an open judgment, which was handed down on 13 January 2011 [2011] EWCA Civ 1. In the last paragraph of his judgment, [2011] EWCA Civ 1, para 83, Maurice Kay LJ said that although the Court held a brief closed hearing in the course of the appeal, he did not find it necessary to refer to it or to the closed judgment of Mitting J. The Bank then appealed to this Court. Before the hearing of the appeal, it was clear that the Treasury would ask this Court to look at the closed judgment of Mitting J. Therefore, it was agreed between the parties that the first day of the three day appeal should be given over to the question of whether the Supreme Court could conduct a closed hearing. At the end of that days argument, we announced that, by a majority, we had decided that we could do so and that we would give our reasons later. The second day and most of the third day of the hearing were given over to submissions made in open court by counsel for the Bank (and counsel for certain interested parties, shareholders in the Bank) in support of the appeal, and to submissions in reply on behalf of the Treasury. We were then asked by counsel for the Treasury to go into closed session in order to consider the closed judgment of Mitting J. This was opposed by counsel for the Bank and by the special advocates. While we were openly sceptical about the necessity of acceding to the application, by a bare majority we decided to do so. Accordingly, the Court had a closed hearing which lasted about 20 minutes, at which we heard brief submissions on behalf of the Treasury and counter submissions from the special advocates. We then resumed the open hearing for the purpose of counsel for the Bank making his closing submissions. Contemporaneously with this judgment, we are giving our judgment on the substantive issue, namely whether the 2009 Order should be quashed. The purpose of this judgment is (i) to explain why we decided that we had power to have a closed material hearing, and (ii) to consider the closed material procedure we adopted on this appeal, and to give some guidance for the future in relation to the closed material hearing procedure on appeals. The closed material procedure in the courts of England and Wales The practice and procedure of the civil courts of England and Wales (the County Court, the High Court and the Court of Appeal) are governed by the Civil Procedure Act 1997 (the 1997 Act). Section 1(1) of the 1997 Act provides for the practice and procedure to be set out in the Civil Procedure Rules (CPR), and states that they are to be made, and modified, by the negative statutory instrument procedure. Section 1(3) of the 1997 Act states that the power to make the CPR is to be exercised with a view to securing that the civil justice system is accessible, fair and efficient. The underlying purpose of the CPR is enshrined in the so called overriding objective in CPR 1(1), which requires every case to be dealt with justly. By CPR 1(2), this expression is stipulated to include so far as is practicable ensuring that the parties are on an equal footing [and] ensuring that [every case] is dealt with fairly. The CPR contain detailed rules with regard to procedures before, during and after trial, which seek to ensure that all civil proceedings are conducted in a way which is fair and effective, and, in particular for present purposes, in a way which achieves, as far as is possible in this imperfect, complex and unequal world, openness and equality of treatment as between the parties. In a series of provisions in Part 6 of the 2008 Act, Parliament has recognised that financial restrictions proceedings may require the rules of general application in the CPR to be changed or adapted if a closed material procedure is to be permitted. The first of those provisions is section 66(1), which explains that: The following provisions apply to rules of court relating to (a) financial restrictions proceedings, or (b) proceedings on an appeal relating to financial restrictions proceedings. Section 66(2) requires the rules of court to have regard to the need to secure that both (a) directions made under schedule 7 to the 2008 Act are properly reviewed, and (b) that information is not disclosed when [it] would be contrary to the public interest. Section 66(3) of the 2008 Act states that rules of court may make provision for various aspects of financial restrictions proceedings, including (a) the mode of proof and about evidence and (c) about legal representation. Section 66(4) states that [r]ules of court may (a) enable the proceedings to take place without full particulars of the [direction] being given to a party , (b) enable the court to conduct proceedings in the absence of any person, including a party , (c) deal with the functions of a special advocate, (d) empower the court to give [an excluded] party a summary of evidence taken in the partys absence. Section 67 of the 2008 Act is concerned with rules about disclosure in cases covered by section 66(1). Section 67(2) provides that, subject to the ensuing subsections, [r]ules of court must secure that the Treasury give disclosure on the normal principles ie that they must disclose material which (i) they rely on, (ii) adversely affects their case, and (iii) supports the case of another party. Section 67(3) states that [r]ules of court must secure that (a) the Treasury can apply not to disclose material, (b) they can do so under a closed material procedure, with a special advocate present, and (c) the court should accede to the application if it considers that the disclosure of the material would be contrary to the public interest, in which case (d) the court must consider requiring the Treasury to provide a summary of the material to every party, provided that (e) the summary should not include material the disclosure of which would be contrary to the public interest. Section 67(6) emphasises that nothing in the section should require the court to act in such a way as to contravene Article 6. Section 68 of the 2008 Act is concerned with the appointment of special advocates for the purpose of financial restrictions proceedings. Section 72 of the 2008 Act enabled the Lord Chancellor to make the original rules referred to in the preceding sections. Section 72(4) provides that (a) any such rules should be laid before both Houses of Parliament, and (b) if they are not approved within forty days, any such rules will cease to have effect. The final provision in Part 6 of the 2008 Act is section 73, the interpretation section, which states that, for the purposes of Part 6 of the 2008 Act: rules of court means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. Pursuant to sections 66 and 67 of the 2008 Act, the Civil Procedure (Amendment No 2) Rules (SI 2008/3085) were made by the Lord Chancellor on 2 December 2008, laid before Parliament the next day, and came into force on 4 December 2008. As a result, the CPR now include a new rule 79, which applies to Proceedings under the Counter Terrorism Act 2008. CPR 79.2 (1) modifies the overriding objective and so far as relevant any other rule, to accommodate (2) the courts duty to ensure that information is not disclosed contrary to the public interest. CPR 79 then goes on to modify, disapply or replace many of the generally applicable provisions of the CPR in relation to proceedings under the 2008 Act. Most of these variations arise from the provision for a closed material procedure in some such proceedings. Thus, the CPR are amended to take into account the potential need for (i) involvement of special advocates (in e.g. CPR 79.8, CPR 79.18 21), (ii) an application for a closed material procedure (dealt with in CPR 79.11 and CPR 79.25), (iii) directions if such a procedure is ordered (in CPR 79.26), (iv) modification of the rules in relation to evidence and disclosure, including disapplication of CPR 31 relating to public interest immunity (in CPR 79.22), and (v) the possibility of a closed judgment (in CPR 79.28). The statutory provisions and procedural rules of the Supreme Court The Supreme Court was created by the Constitutional Reform Act 2005 (the 2005 Act). Section 40(2) of the 2005 Act states that [a]n appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. The effect of section 40(3) is that the right of appeal to the Supreme Court from any Scottish court remains the same as it was in relation to appeals to the House of Lords. Section 40(5) states that the Supreme Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. Section 40(6) provides that [a]n appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court . Section 45(1) of the 2005 Act provides that the President of the Supreme Court may make rules (to be known as Supreme Court Rules) governing the practice and procedure to be followed in the Court. Section 45(3) states that this power must be exercised so as to ensure that (a) the Court is accessible, fair and efficient, and (b) the rules are both simple and simply expressed. Section 46 of the 2005 Act states that these rules (1) must be submitted to the Lord Chancellor by the President of the Supreme Court (or, in the case of the initial rules, the senior Lord of Appeal in Ordinary), and then (2) must be laid before Parliament by the Lord Chancellor, and (3) are then subject to the negative resolution procedure. Pursuant to sections 45 and 46 of the 2005 Act, the Supreme Court Rules 2009 (SI 2009/1603) were duly made and laid before Parliament, and came into force on 1 October 2009, the day on which the Supreme Court opened. These rules (SCR) now govern the procedure of this Court. They are far simpler than the CPR (unsurprisingly, as they are only concerned with appeals, indeed appeals which are almost always second, or even third, appeals). SCR 2 is headed Scope and objective, and SCR 2(2) states that the overriding objective of the SCR is to secure that the Court is accessible, fair and efficient. The SCR contain no provisions which enable public interest immunity to be avoided, and no express provisions for closed procedures other than SCR 27(2), as set out in the next paragraph. Thus, SCR 22(1)(b) provides for the service by the appellant of an appendix of the essential documents which were in evidence before, or which record the proceedings in, the courts below, and SCR 28 states that a Supreme Court judgment may be delivered in open court; or promulgated by the Registrar. However, it is to be noted that SCR 29(1) begins by stating that In relation to an appeal , the Supreme Court has all the powers of the court below. SCR 27 is headed Hearing in open court, and it provides: (1) Every contested appeal shall be heard in open court except where it is necessary in the interests of justice or in the public interest to sit in private for part of an appeal hearing. (2) Where the Court considers it necessary for a party to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, the Court must conduct the hearing, or that part of it from which the party [is] excluded, in private but the Court may exclude a party only if a person who has been appointed as a special advocate to represent the interests of that party is present when the party [is] excluded. (3) Where the Court decides it is necessary for the Court to sit in private, it shall announce its reasons for so doing publicly before the hearing begins. Can the Supreme Court conduct a closed material procedure: introductory If a closed material procedure was lawfully conducted at the first instance hearing, it would seem a little surprising if an appellate court was precluded from adopting such a procedure on an appeal from the first instance judgment. As the advocate to the Court said in the course of his full and balanced argument, one would normally expect an appeal court to be entitled to have access to all the material available to the court below and to see all the reasoning of the court below. Otherwise, it is hard to see how an appeal process could be conducted fairly or even sensibly. And, if that involves the appellate court seeing and considering closed material, it would seem to follow that that court would have to adopt a closed material procedure. However, particularly in the light of the fundamental principle established in Al Rawi [2012] 1 AC 531, the question needs to be looked at with great care. In particular, it is necessary to enquire whether statute requires the Supreme Court to adopt a closed material procedure, at least in some circumstances, on an appeal from the Court of Appeal upholding (or reversing) a first instance decision on an application under section 63(2) of the 2008 Act. As was said by counsel for Liberty (interveners on this appeal), supported by counsel for the Bank, any contention that a closed material procedure in a particular court in particular circumstances is sanctioned by a statute must be closely and critically scrutinised. The case for saying that this Court can conduct a closed material procedure The contention that this court has the power to have a closed material procedure is based on section 40(2) of the 2005 Act, supported by section 40(5). The argument proceeds as follows. (i) Section 40(2) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal; (ii) that must extend to a judgment which is wholly or partially closed; (iii) in order for an appeal against a wholly or partially closed judgment to be effective, the hearing would have to involve, normally only in part, a closed material procedure; (iv) such a conclusion is reinforced by the power accorded to the Court by section 40(5) to determine any question necessary for the purposes of doing justice, as justice will not be able to be done in some such cases if the appellate court cannot consider the closed material. The strength of this argument is reinforced when one considers the possible outcomes if the Supreme Court cannot consider a closed judgment (or the closed part of the judgment) under a closed material procedure. If that were the case, then, as I see it, there would be five possible consequences. The first possibility would be that the appeal could not be entertained: that cannot be right, because it would conflict with section 40(2), which simply and unambiguously confers on the Supreme Court the power to hear appeals from any judgment of the Court of Appeal. The Supreme Court frequently refuses permission to bring an appeal from the Court of Appeal, but that is covered by section 40(6) of the 2005 Act, which expressly provides for such permission. It is one thing to cut down section 40(2) by providing that permission to appeal can be refused on a case by case basis expressly catered for in section 40(6); it is quite another to suggest that a whole class of appeals is impliedly excluded from the wide and general words of section 40(2). The second possibility would be that the Supreme Court could consider the whole judgment, with the closed part being considered in open court. While it can be said that such a course would not involve a breach of any specific provision of Part 6 of the 2008 Act, if construed on a strictly semantic basis, it would wholly undermine its purpose, and the procedural structure it has set up. Unsurprisingly, this second possibility was not canvassed in argument. The third possibility would be that the appeal could be entertained, but only on the basis that the Supreme Court could not look at the closed material. In an extreme case, where the whole judgment of the Court of Appeal was closed, this would be impossible, and would run into the same difficulty under section 40(2) as identified in para 39 above. Even in a case where the Court of Appeal judgment was only closed in part, such a course would be self evidently unsatisfactory and would seriously risk injustice, and in some cases it would be absurd. The fourth possibility would be that the Court was bound to allow the appeal; the fifth possibility would be that, conversely, the Court was bound to dismiss the appeal. There are clearly theoretical arguments in favour of either course, but it is unnecessary to consider them, because each of those courses is self evidently equally unsatisfactory. If either of them was correct, it would mean that, when exercising its power to give permission under section 40(6) of the 2005 Act, the Supreme Court would effectively be deciding the appeal, and, indeed, would be doing so without seeing the whole of the judgment below, and without hearing oral argument. In my view, subject to any arguments to the contrary, this analysis establishes that the Supreme Court can conduct a closed material procedure where it is satisfied that it may be necessary to do so in order to dispose of an appeal. This conclusion is reinforced by section 40(5) of the 2005 Act. An appeal under section 40(2) is an appeal under any enactment. Accordingly, where an appeal is brought against a decision under the 2008 Act, the Supreme Court has power to determine any question necessary to be determined for the purposes of doing justice in such an appeal. On any appeal where the judgment is wholly or partly closed, it seems to me that this court could not do justice, or at least would run a very serious risk of not doing justice, if it could not consider the closed material, and it could only do that if it adopted a closed material procedure. It might, I suppose, be said that adopting a closed material procedure on any appeal would involve the antithesis of doing justice in that appeal. In a case where Parliament and the CPR have lawfully provided for a closed material procedure at first instance and in the Court of Appeal, I am of the view that, on the contrary, for this Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal or in the sense of being seen fairly to determine the appeal, notwithstanding that the material will be considered in a closed hearing. The view that the Supreme Court can conduct a closed material procedure also derives some support from the provisions of SCR 27(2), and from SCR 29(1). However, if the Supreme Court would not otherwise have the power to conduct a closed material procedure, it could not, in my view, derive such a power solely from its rules. Accordingly those two rules can fairly be said to do no more than to give comfort to my conclusion. It is right to mention that on this appeal, we are not being invited to consider a closed judgment of the Court of Appeal, as they did not find it necessary to give a closed judgment or even to include a closed paragraph in their open judgment. However, the trial judge gave a closed judgment, and, if it is open to this Court to consider, in a closed material procedure, a closed Court of Appeal judgment for the reasons just discussed, it must follow that we can consider, in a closed material procedure, a closed judgment given by the trial judge. Accordingly, I conclude that, unless there are stronger arguments to the contrary, the Supreme Court has power to entertain a closed material procedure on appeals against decisions of the courts of England and Wales on applications brought under section 63(2) of the 2008 Act. The arguments that we cannot conduct a closed material procedure Having reached this provisional conclusion, it is right to acknowledge and consider the contrary arguments. Those arguments are: i. A closed material procedure is such a serious inroad into natural justice that it can only be justified by clear and unambiguous statutory words, such as are found in Part 6 of the 2008 Act, but not in the 2005 Act; ii. Parliament has plainly limited the closed material procedure under the 2008 Act to the High Court, the Court of Appeal and the Court of Session; iii. It is appropriate to exclude the Supreme Court from the courts which can have a closed material procedure, given its role as a constitutional court and ultimate guardian of the common law; iv. A closed material procedure requires a set of rules such as CPR 79 which are detailed and appropriately modify the generally applicable rules, and there is no such set of rules for the Supreme Court. None of these points meets the basic argument which persuades me that it is open to the Supreme Court to undertake a closed material procedure, but they nonetheless merit careful attention. Before discussing them, however, it is right to address Libertys understandable reliance on the fact that, in Al Rawi [2012] 1 AC 531, this Court uncompromisingly set its face against introducing a closed material procedure. The stand taken by this Court in Al Rawi [2012] 1 AC 531 remains unquestioned, but it does not amount to any sort of indication that there could be no circumstances in which those concerned with the administration of justice could reasonably introduce a closed material procedure. Indeed, at the end of the short passage quoted in para 4 above from Lord Dysons judgment, he acknowledged that Parliament can do so. Having said that, any judge, indeed anybody concerned about the dispensation of justice, must regard the prospect of a closed material procedure, whenever it is mooted and however understandable the reasons it is proposed, with distaste and concern. However, such distaste and concern do not dictate the outcome in a case where a statute provides for such a procedure; rather, they serve to emphasise the care with which the courts must consider the ambit and effect of the statute in question. At a relatively high level, in terms of constitutional principle and governmental functions, it seems to me that the following propositions apply. (i) The executive has a duty to maintain national security, which includes both stopping the financing of terrorism and nuclear proliferation and ensuring that some of the information relating to the financing of terrorism remains confidential; (ii) the rule of law requires that any steps aimed at preventing financing of terrorism which damage a person should be reviewable by the courts, and, as far as possible in open court and in accordance with natural justice; (iii) given that such reviews will often involve the executive relying on confidential material, it is for the legislature to decide and to prescribe in general how the tension between the need for natural justice and the need to maintain confidentiality is to be resolved in the national interest; (iv) in the absence of a written constitution, it is the European Convention, through Article 6, as signed up to by the executive and interpreted by the courts, which operates as a principled control mechanism on what the legislature can prescribe in this connection; (v) it is for the courts to decide, within the parameters laid down by the legislature, how the tension between the two needs of natural justice and confidentiality is to be resolved in any particular case. In the more specific context of the issues with which the 2008 Act is concerned, it would be unreasonable not to accept that (i) the Acts aims of fighting the spread of terrorist activity and nuclear proliferation, and improving the security of UK citizens, are important aspects of the most fundamental duties of the executive, and (ii) those aims would be at real risk of being severely hampered if the courts hearing financial restrictions proceedings could not adopt a closed material procedure. Point (i) is self evident: the two most fundamental functions of the executive are the maintenance of the defence of the realm and of the rule of law, and the 2008 Act appears to me to be within the scope of both those functions. In relation to point (ii), if there can be no closed material procedure, either (a) sensitive material would be seen by a person who may be supporting terrorism or nuclear proliferation, which might advance the very activities which the 2008 Act is designed to deter, or (b) such material would not be put in evidence, in which case a direction under that Act, which was appropriate and in the public interest, may be discharged for lack of evidential support. The legislature has laid down in Part 6 of the 2008 Act, as expanded by CPR 79, how challenges to a direction under schedule 7 to the 2008 Act should be dealt with by the courts, and this includes a closed material procedure, which aims to strike a balance between two competing public interests, and it is a balance which has been held by the Strasbourg Court to be compatible in principle with Article 6. Whether or not one agrees with it, the justification for the way in which the balance has been struck by the legislature in Part 6 of the 2008 Act is clear, lawful and rational. It is against that background that the issue of principle raised on this appeal must be judged. Turning now to the four arguments raised by the intervener and the Bank, there is a basic principle that fundamental rights cannot be taken away by a generally or ambiguously expressed provision in a statute see eg per Lord Hoffmann in R v Secretary of State, Ex p Simms [2000] 2 AC 115, 132. There is also a basic principle that fundamental rights can only be overridden by a statutory provision through express words or by necessary implication, not merely by reasonable implication see eg per Lord Hobhouse in R (Morgan Grenfell) v Special Commissioners [2003] 1 AC 563, para 45. While these two basic principles are of fundamental importance, they should not be applied without regard to the purpose and context of the statutory provision in issue. Section 40(2) is plainly intended to render every decision of the Court of Appeal to be capable of being appealed to the Supreme Court (unless specifically precluded by another statute), and, as explained, where it is necessary for this court to consider closed material in order to dispose of the appeal justly, this would only be achievable if a closed material procedure could be adopted. In any event, I am unconvinced that the wording of section 40(2) of the 2005 Act could be fairly described as general in the sense that that word is used in Simms [2000] 2 AC 115, 132: it would be more accurate to describe it as being broad, indeed as broad as possible, in its intended application. Further, if section 40(2) is to be given its full natural meaning, then, for the reasons discussed in the preceding section of this judgment, it necessarily means that the Supreme Court can adopt a closed material procedure. It is true that section 67, read together with section 73, of the 2008 Act only extends to the rules of the Court of Appeal, High Court and Court of Session, but there were no Supreme Court Rules when that Act was passed. Indeed, there was no Supreme Court at that time: the Judicial Committee of the House of Lords, the Law Lords, were still in place, although they had a very short life expectancy (as an institution). They sat as a committee of the House of Lords, and could have been expected to look after their own procedure. It is true that the 2005 Act had been enacted by the time that the Bill which became the 2008 Act was being considered, but those drafting and debating the Bill would have known that the 2005 Act contained sections 40(2) and (5); they would also have known that the SCR had yet to be promulgated, and could have assumed that they would provide for a closed material procedure as indeed they do in SCR 27(2), and, indirectly, in SCR 29(1). In any event, rules governing what should be done before and during a trial have to be far more detailed than those governing what should be done before and during an appeal. Given that there were to be very detailed procedures prescribed for a closed material procedure at first instance (and on the first appeal), Parliament could fairly have assumed that there would be no need for very detailed provisions for a closed material procedure in this Court: again, in the light of SCR 27(2) and 29(1), such a view would have been prescient. It is true that sections 66 73 of the 2008 Act apply to the Court of Appeal as well as to the High Court, but that is because the CPR apply to both courts. I am unimpressed by the argument that the Supreme Court was intentionally excluded from the ambit of closed material procedures in sections 66 73 of the 2008 Act, because of the Courts status. If that was the legislative intention, one would have expected it not only to have been spelt out, but to have been catered for, especially in the light of section 40(2) of the 2005 Act. It seems most unlikely that Parliament would have left section 40(2) unamended, while intending the Supreme Court to be unable to adopt a closed material procedure. If it had had such an intention, Parliament would, in my view, have provided that, in relation to cases where the courts below had adopted a closed material procedure, appeals to the Supreme Court were excluded, or could only proceed on a certain specified procedural basis. Otherwise, on this hypothesis, Parliament would have intended to leave this Court with the series of unsatisfactory options considered in paras 39 42 above. The notion that the Supreme Courts constitutional role is so important that it cannot conduct a closed material procedure has a certain appeal (particularly perhaps to a Supreme Court Justice), but I am unimpressed by it. The Supreme Court is not a special constitutional court, but it generally limits the appeals it considers to those that raise points of general public importance. If the Supreme Court were to adopt a closed material procedure on an appeal, it would be most unlikely to result in a judgment which contained any statements of general public importance, or even of general significance, which were in closed form. Almost by definition, the closed evidence will be factual (including, possibly, expert) in nature, and it will normally be specific to the particular case. It is hard to believe that there could be circumstances in which it would be impossible for the Court to provide an open judgment which dealt clearly and comprehensively with all the points of any general legal significance in the appeal, even if some of the discussion of the details of the evidence and arguments has to remain closed. And if such circumstances did arise, then the problem would be a measure of the extraordinary sensitivity of the material concerned, which would make it all the more important that it remained closed. Having read in draft the judgment of Lord Hope, I would like to record my agreement with what he says in paras 98 100 in connection with this Court giving a closed judgment. We were taken to other statutes which provide for a closed material procedure, but all that they establish, in my view, is that there is more than one drafting technique available to prescribe for such procedures. All in all, therefore, I am unpersuaded by the various arguments raised against my provisional view that it is open to this Court to adopt a closed material procedure in an appeal under the 2008 Act if justice requires it. The decision to have a closed material procedure on this appeal At the end of their open submissions in defence of the decision of the Court of Appeal that the 2009 Order should be discharged, counsel for the Treasury asked us to adopt a closed material procedure in order to consider the closed judgment of Mitting J. We were sceptical about the need to do so, for three reasons. First, the proposal was opposed on the ground that it was unnecessary, by the special advocates (who had seen the closed judgment) and by counsel on behalf of the Bank (who had not seen the closed judgment). Secondly, the Judge had referred in his open judgment to the closed judgment on two occasions; on each occasion, it was to draw support for a conclusion which was not challenged before us, and we thought it unlikely that he would have relied to any significant extent on any other part of his closed judgment without saying so in his open judgment. Thirdly, the Court of Appeal had found it unnecessary to refer to any part of the closed judgment. Nonetheless, on instructions from his clients, counsel for the Treasury told us that a closed session could make a difference to the outcome of this appeal. By a bare majority, with those in the majority (which included me) all having real misgivings, the Court decided that it should accede to the proposal to have a closed material procedure. Although we strongly suspected that nothing in the closed judgment would have any effect on the outcome of the appeal, we could not be sure in the absence of seeing the closed judgment and listening to submissions on it. And, as we all appreciated that there was a real possibility that we were going to allow the appeal, and therefore to disagree with Mitting J (who gave the closed judgment) and the Court of Appeal (who had seen the closed judgment), we felt that there would be a real risk of justice not being seen to be done, and an outside possibility of justice actually not being done, to the Treasury if we did not proceed to hold a closed hearing, as the Treasury requested. In anticipation that we might take that course, we had required counsel for the Treasury to supply the special advocates with a note summarising the Treasurys case on the closed judgment. Having decided to have a closed hearing, we proceeded to read the closed judgment and heard argument on it in a closed hearing from counsel for the Treasury, from the special advocate, and from counsel to the court (who, like us, saw the closed judgment for the first time just before the closed hearing). In my opinion, there was no point in our seeing the closed judgment. There was nothing in it which could have affected our reasoning in relation to the substantive appeal, let alone which could have influenced the outcome of that appeal. So far as it was said to have included relevant findings, the most that could be said of the closed judgment is that it put some evidential flesh on some fairly bare bones embodying some of the conclusions of fact reached in the open judgment. It is fair to say that, in two respects, Mitting J made findings in his closed judgment, which supported views he had expressed in his open judgment, over and above the two passages referred to in para 16 above. However, as with the views expressed in those two passages, the views were not ones which were challenged on this appeal. Applications for closed material hearings on appeal I draw certain conclusions from this experience. First, where a judge gives an open judgment and a closed judgment, it is highly desirable that, in the open judgment, the judge (i) identifies every conclusion in that judgment which has been reached in whole or in part in the light of points made or evidence referred to in the closed judgment, and (ii) that the judge says that this is what he or she has done. This was a point made by Carnwath LJ, in a judgment given after Mitting Js judgments in this case, in AT v Secretary of State for the Home Department [2012] EWCA Civ 42, para 51. Secondly, a judge who has relied on closed material in a closed judgment, should say in the open judgment as much as can properly be said about the closed material which he has relied on. Any party who has been excluded from the closed hearing should know as much as possible about the courts reasoning, and the evidence and arguments it received. Further, the more the judge can say about the closed material in the open judgment, the less likely it is that a closed hearing will be asked for or accorded on an appeal. In cases where judges have to give a closed judgment, they should say in their open judgment, as far as they properly can, what the closed material has contributed to the overall assessment they have reached in their open judgment. On an appeal against an open and closed judgment, an appellate court should, of course, only be asked to conduct a closed hearing if it is strictly necessary for fairly determining the appeal. So my third point is that any party who is proposing to invite the appellate court to take such a course should consider very carefully whether it really is necessary to go outside the open material in order for the appeal to be fairly heard. If the advocate for one of the parties invites an appellate court to look at the closed judgment on the ground that it may be relevant to the appeal, it is very difficult for the court to reject the application, at least without looking at the closed judgment, which involves the initiation of a closed material procedure, which should be avoided if at all possible. This puts an important onus on the legal representatives of the party asking an appeal court to look at closed material. An advocate acting for a party who wants a closed hearing should carefully consider whether the request is one which should, or even can properly, be made and advise the client whether such a course is necessary or appropriate. Advocates, perhaps particularly when acting for the executive, have a duty to the court as well as a duty to their clients, and the court itself is under a duty to avoid a closed material procedure if that can be achieved. Fourthly, if the appellate court decides that it should look at closed material, careful consideration should be given by the advocates, and indeed by the court, to the question whether it would nonetheless be possible to avoid a closed substantive hearing. It is quite feasible for a court to consider, and be addressed on, confidential material in open court. If such a course is taken, the advocates and the court must obviously take care in how they refer to the contents of the closed material, and sometimes a brief closed hearing will be necessary to set the ground rules. Sometimes, the closed material will be so sensitive or so difficult to refer to elliptically, that such a course will be impracticable. However, it should always be considered, as it is plainly less objectionable to have a brief closed procedural hearing to discuss the possibility than to have a closed hearing which considers substantive issues. I should add that, if such a course is taken, the court should order that, despite it being referred to and looked at in open court, the documents in issue cannot be shown to anyone and their contents cannot be referred to out of court. Fifthly, if the court decides that a closed material procedure appears to be necessary, the parties should try and agree a way of avoiding, or minimising the extent of, a closed hearing. This would also involve the legal representatives to the parties to any such appeal advising their clients accordingly, and, if a closed hearing is needed, doing their best to agree a gist of any relevant closed document (including any closed judgment below). Sixthly, if there is a closed hearing, the lawyers representing the party who is relying on the closed material, as well as that party itself, should ensure that, well in advance of the hearing of the appeal, (i) the excluded party is given as much information as possible about any closed documents (including any closed judgment) relied on, and (ii) the special advocates are given as full information as possible as to the nature of the passages relied on in such closed documents and the arguments which will be advanced in relation thereto. Finally, appellate courts should be robust about acceding to applications to go into closed session or even to look at closed material. Given that the issues will have already been debated and adjudicated upon, there must be very few appeals where any sort of closed material procedure is likely to be necessary. And, in those few cases where it may be necessary, it is hard to believe that an advocate seeking to rely on closed material or seeking a closed hearing, could be unable to articulate convincing reasons in open court for taking such a course. As already mentioned, the closed material procedure on this appeal added nothing. Had counsel for the Secretary of State had the benefit of the guidance set out above, and in particular in paras 70 and 71, I very much doubt that he would have felt able to contend that we should have a closed material procedure. For the future, any party or appellate court considering whether to adopt such a procedure would do well to bear in mind what Lord Hope says in paras 89 97 of his judgment, with which I agree. LORD HOPE (dissenting) This case raises some fundamental issues about the effect of provisions in Parts 5 and 6 of the Counter Terrorism Act 2008. Part 5 of the Act, which gives effect to Schedule 7, confers far reaching powers on the Treasury to deal with terrorist financing and money laundering. Part 6 creates a scheme for appeals against financial restrictions decisions by the Treasury. In a nutshell these issues can be summarised in a single sentence: how much attention should this court pay to what Parliament has, or has not, actually said as to how financial restriction proceedings are to be conducted in the courts? Parliament has set out in Part 6 of the 2008 Act provisions for the use in appeals against financial restrictions decisions of the Treasury of material that the Treasury refuse to disclose to appellants or their legal representatives, commonly referred to as closed material. Chapter 2 of Part 6 is closely modelled on the Schedule to the Prevention of Terrorism Act 2005. Section 67(3), which appears in that Chapter, requires that rules of court must provide the Treasury with the opportunity to apply to the court for permission not to disclose material otherwise than to the court and to any person appointed as a special advocate. Section 73 provides that in that Chapter the expression rules of court means rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. But no mention is made here, or anywhere else in the 2008 Act, of the use of closed material in the court of last resort in the United Kingdom the appellate committee of the House of Lords as it then was, or the Supreme Court of the United Kingdom as it was to become. The 2008 Act received the Royal Assent on 26 November 2008. The bulk of Part 3 of the Constitutional Reform Act 2005, which made provision for the Supreme Court, was not brought into force until 1 October 2009: Constitutional Reform Act 2005 (Commencement No 11) Order 2009 (SI 2009/1604). But sections 45 and 46, which provide for the making of the Rules of the Supreme Court, were brought into force on 27 February 2006: Constitutional Reform Act 2005 (Commencement No 4) Order (SI 2006/228). These rules were already in draft and had been circulated to consultees for their comments by 28 November 2008. Yet the Treasury, by which the legislation in Parts 5 and 6 of the 2008 Act was being promoted, did not seek the views of Parliament as to whether the Rules of the Supreme Court should, like those of the other courts mentioned in section 73, make provision for the use of closed material in proceedings brought under Part 6 of the 2008 Act. In the light of this background, which leaves the issue for decision by this court uninstructed by Parliament, I am unable, with respect, to agree with the conclusions reached on it by the majority. Closed material The issue as to the use of closed material, as I see it, raises three distinct questions, although they are all interconnected. The first is an issue of principle: when, if ever, will it be open to the Supreme Court to adopt a closed material procedure? The second is whether it is necessary, in the interests of justice or in the public interest, for the closed material to be seen and considered by the court in this case. The third is whether, having done so, the court should issue a closed judgment, bearing in mind that the effect of doing this will be that the party to whom the material has not been disclosed will be unable to see the courts reasons for the conclusions that it has reached on a consideration of that material. (a) the issue of principle The issue of principle as to the use of closed material was examined by Lord Dyson in Al Rawi v Security Service [2011] UKSC 43, [2012] 1 AC 531. He concluded that a closed material procedure should only be introduced in ordinary civil procedure if Parliament saw fit to do so. I said that I agreed with the reasons that he gave, as did Lord Kerr. But we both added some further reasons of our own. It is worth noting too the width of the issue to which the argument both in the Court of Appeal and in this court was addressed: see para 71. I thought that the view which we took would resolve the issue in a case of this kind too. The crucial points that we all made can be summarised, quite briefly, in this way. The right to know and effectively challenge the opposing partys case is a fundamental feature of the judicial process. The right to a fair trial includes the right to be confronted by ones accusers and the right to know the reasons for the outcome. It is fundamental to our system of justice that, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. There may come a point where a line must be drawn when procedural choices of one kind or another have to be made. A distinction may be drawn between choices which do not raise issues of principle and choices that affect the very substance of a fair trial. There is no room for compromise where the choices are of the latter kind. The court cannot abrogate the fundamental common law right by the exercise of any inherent power. Any weakening of the laws defences would be bound to lead to state of uncertainty and, sooner or later, to attempts to widen the breach still further. The court has for centuries been the guardian of these fundamental principles. The rule of law depends on its continuing to fulfil that role. Acknowledging that closed material procedures and the use of special advocates were controversial, Lord Dyson said in para 47 of his judgment in Al Rawi that it was not for the courts to extend the procedure beyond the boundaries which had been drawn for its use by Parliament. I said in para 74 of my judgment that fundamental issues as to where the balance lay between the principles of open justice and of fairness and the demands of national security were best left for determination through the democratic process by Parliament. Lord Brown and Lord Kerr were doubtful whether it would be possible as a matter of principle for the court to be invested with jurisdiction in this way: paras 86, 99. para 48 of Al Rawi, where he said: I would, for my part, be content to agree with the way Lord Dyson put it in The common law principles to which I have referred are extremely important and should not be eroded unless there is a compelling case for doing so. If this is to be done at all, it is better done by Parliament after full consultation and proper consideration of the sensitive issues involved. It is not surprising that Parliament has seen fit to make provision for a closed material procedure in certain carefully defined situations and has required the making of detailed procedural rules to give effect to the legislation. In para 69 he agreed with the Court of Appeal that the issues of principle raised by the closed material procedure were so fundamental that a closed material procedure should only be introduced in ordinary civil litigation if Parliament saw fit to do so. He then added these words: No doubt, if Parliament did decide on such a course, it would do so in a carefully defined way and would require detailed procedural rules to be made (such as CPR Pts 76and 79) to regulate the procedure. The answer which I would give to the first of the three questions which I have identified in para 79, above, is that it will be open to the Supreme Court to adopt a closed material procedure if, but only if and only to the extent that, the use of that procedure has been expressly sanctioned by Parliament. The fact that this procedure has been sanctioned for use in the lower courts does not meet Lord Dysons point that the procedure nevertheless erodes fundamental common law principles. And the fact that it has been used in the lower courts leaves open the question whether it would be consistent with fundamental principle for it to be used in the court of last resort. It leaves open the question whether it can ever be right for the Supreme Court, of all courts, without the sanction of Parliament to hear argument on points of which one of the parties has had no notice and is unable to address in argument, and whether it can ever be right for it to have to give its reasons, in whole or in part, in a closed judgment. The word fundamental, which appears so often in Lord Dysons judgment in Al Rawi, and appears again in my own judgment in paras 72 74 and Lord Kerrs judgment in para 94, serves to emphasise the enormity of the issues that are at stake if the objections to such a procedure are to be overcome. If the procedure is to be used in this court, the issues of principle require that its use should always be carefully provided for and defined by Parliament and never be left to implication. Only then can one be confident that Parliament really has squarely confronted what it is doing. Otherwise, as Lord Hoffmann said in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 132, there is too great a risk that the full implications may have passed unnoticed in the democratic process. The absence of a direction in Part 6 of the 2008 Act that the provisions about rules of court relating to proceedings on an appeal relating to financial restrictions proceedings extend to the Supreme Court is, therefore, especially significant. This makes it plain that Parliament was not asked to address its mind to this issue at all. Nor was the Supreme Court, for its part, put on notice that the President when making the Supreme Court Rules, the provisions about which were already in force (see para 77, above), was to have regard to the matters set out in sections 63(2) (4) of the Act. The fact that rule 27(2) of the Supreme Court Rules contemplates that the court might consider it necessary for a party and that partys representative to be excluded from a hearing in order to secure that information is not disclosed contrary to the public interest does not answer this point. It was, no doubt, a wise precaution to make provision for a variety of situations of that kind that might arise. But it does not address directly the use of a closed material procedure with all the consequences that might then follow, including the possibility of having to issue a closed judgment. The question whether the Supreme Court had power to adopt such a procedure had not yet been tested in argument when the rules were made, and it was not open to the President in the exercise of his rule making function to confer on the court a power that it did not have. The argument that the provisions of sections 40(2) and (5) of the 2005 Act show that this court can conduct such a procedure to dispose of an appeal where the judgment appealed against was wholly or partly closed does not meet my point that the issue is so fundamental that it must be left to an express and carefully defined provision by Parliament. I do not think that a point of such fundamental importance can be left to implication. It is plain that the issue was not brought before Parliament when it enacted Part 3 of the 2005 Act. There is nothing in the express language of section 40 which shows that the statute must have given authority to the Supreme Court for the use of this procedure: see R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, para 45 per Lord Hobhouse. For these reasons I was of the opinion at the end of the hearing on the first days argument that it was not open to the Supreme Court to adopt a closed material procedure in this case, as it had not been expressly authorised by Parliament. I remain of that opinion. The effect of the decision of the majority, however, is that there is now no way back on this issue. The Rubicon has been crossed. (b) should the closed material be seen and considered in this case? As the majority view was in favour of the view that it was open in principle to the court to resort to the closed material procedure, I gave careful thought to the question whether it should be resorted to in this case. It seemed to me that the onus was on the Treasury to show that this was necessary. It was not just a question of asserting, without reasons, that there was material in Mitting Js closed judgment at [2010] EWHC 1332 (QB) that was relevant to the issues in the appeal. I do not think that it would be inconsistent with the majoritys decision on the issue of principle for the court to set a high standard on the issue of necessity. Convincing reasons must be given as to why the closed material should be looked at. The Treasury submitted that the court would have to have regard to the judgment if it was to be in a position properly and fairly to exercise its jurisdiction in the appeal, unless it was prepared to dismiss the Banks case. This was because the closed reasons formed part of Mitting Js findings on the Treasurys evidence and of his conclusions as to its case. So it might be impossible for the appeal to be fairly determined if the court was not willing to have regard to them. But there are various reasons why, as it seemed to me, the Treasurys approach fell far short of what was needed to show that it was necessary for this procedure to be resorted to. First, there is the fact that the Court of Appeal, which did see and consider Mitting Js closed judgment and held a brief closed hearing in the course of the appeal to that court, did not find it necessary to refer to the closed judgment in more detail than the judge himself did: [2011] EWCA Civ 1, [2012] QB 101, para 83. That, in itself, would not be a conclusive reason for not resorting to the procedure in this court if it was necessary to do justice on the appeal. But it does point to the need for the Treasury to give convincing reasons as to why this should be done. Mitting J referred to his closed judgment in para 16 of his judgment, where he said that he accepted that Novin Energy Company was a conduit for the Atomic Energy Organisation of Iran and that it did facilitate Irans nuclear weapons programme. He referred to it again in para 18, where he said that for the reasons set out in the closed judgment, he was satisfied that Doostan International had played a part in the Iranian nuclear programme. The Court of Appeal had the opportunity to say if those findings were not justified. It did not do so, and it was not submitted for the Bank that the reasons that the judge gave for those findings should be reviewed again by this court. Second, there are the views of the special advocates to which close attention should always be paid. Mr Chamberlain drew attention to the fact that there was no closed ground of appeal in this case, and that neither of the two findings which were based on material in the closed judgment was in issue. This was because the Banks case was that those findings were not enough to justify the order made by the Treasury. His advice was that the court did not need to consider closed material in order to determine that issue. Third, there are the reasons that were set out in a note that was provided to the special advocate at the courts request by the Treasury and which the special advocates had seen when Mr Chamberlain gave the advice referred to in the previous paragraph. It was to the contents of this note that much of the discussion as to whether it was necessary for the court to see the closed judgment was directed. The first three paragraphs of the note refer to various passages in the closed judgment which, as was stated in the fourth paragraph, demonstrated the weight to be attached to the judges conclusion that the Bank had the capacity to assist proliferators, that such assistance could be afforded to a range of companies involved in proliferation and that the assistance provided was material. It did not seem to me that it was necessary to look at the closed material to reinforce this point, as its importance was already apparent from points made by Mitting J in his open judgment. In the last sentence of para 16, having described the Banks relationship with Novin, the judge said that he accepted the conclusion of the Treasurys witness Mr Robertson that Irans banking system provides many of the financial services which underpin procurement of the raw materials and components needed for its nuclear and ballistic missile programmes. The fifth paragraph of the note was in these terms: See further, the last sentence of para 5 of the closed judgment. This point is important in its own right in demonstrating the existence of the rational/proportionate connection. Mr Eicke QC for the Treasury was asked repeatedly to say what the point was to which this paragraph refers. It was made clear that the court was looking not for the details which supported whatever was said in that sentence, but simply for an indication of its subject matter. Mr Eicke declined, no doubt on instruction, to provide this information. He declined also to say what the point was to which para 6(3) was directed, where it was said that, to the extent that it was necessary to do so, the Banks case at para 60 was contradicted by the point at para 2 of the closed judgment. In para 60 of its case the Bank states that there is nothing in the judges findings to suggest that the Bank had done anything to materially increase the risk that the United Kingdom financial sector would be embroiled in proliferation related transactions. It seemed reasonable to ask how looking at the closed judgment would assist on this point, but the court was provided with no answer as to how it might do so. I was not impressed by Mr Eickes inability to answer these questions. The guiding principles seem to me to be these. Resort to the closed material procedure will result in every case in an inequality of arms between the State, which will always be the party who invokes the procedure and will always have access to that material, and the other party against whom the State has taken action and to whom access to that material is always denied. Regard must, of course, be had to the national interest which requires that some sensitive material must be kept secret. But the court must be astute not to allow the system to be over used by those in charge of that material. The need for care in this respect increases as the issues are refined at the stage of an appeal. In a case of this kind, where the judge has told the appellate courts in his open judgment how he has used the closed material and the Court of Appeal has found nothing in the closed judgment that required comment, resort to it for further information could only be justified if there was a point of real substance in it that had, in fairness to the State, to be taken into account at the stage of the appeal. The Treasurys refusal to come out of its closet and provide even the merest hint as to what these points were was as unattractive as it was unconvincing. I would therefore, if left to myself, have declined to look at the closed judgment. It seemed to me that the judge had said enough in his judgment to explain the significance of the points to which the Treasury had regard when they decided to make the Order. Any points to which emphasis had to be attached could be made sufficiently in open court in the course of the oral argument. (c) should the court issue a closed judgment? The most obnoxious feature of the closed material procedure at the stage of an appeal is the possibility that the appellate court may have to give the whole or part of its reasons for the disposal of the appeal in a judgment to which the State only, and not the other party to the appeal or anyone else, has access. As was stressed several times by Lord Dyson and those who agreed with him in Al Rawi, fundamental principles of the right to a fair trial include the right to know the reasons for the outcome: see, for example, [2012] 1 AC 531, para 45. This point loses none of its force at the stage of an appeal. And it has even more force at the stage of a final appeal, as once the Supreme Court has given its reasons in a judgment of that kind there will be no opportunity for any further review of the closed material by a special advocate or by anyone else. Secret justice at this level is really not justice at all. I very much hope that the Supreme Court will never find itself in a position when it has to resort to the giving of a closed judgment in the disposal of an appeal. A stern and steadfast resistance to the use of that procedure would go some way to redressing the unwelcome departure from the principle of open justice that the decision that the Supreme Court may in principle adopt a closed material procedure will inevitably give rise to. In itself, merely looking at a closed judgment to see whether there is anything in it that might be of significance may be thought not give rise to any unfairness to the party who does not have access to that material. A check of that kind may not seem a large step to take. It is an entirely different matter if it leads to the issuing of even more material in the form of a closed judgment that the other party cannot see. As it happened, it was not necessary to answer this question. It became clear in this case, when the judges closed judgment had been seen and considered, that there was nothing in it which required any such judgment to be issued by this court. The fact this was so reinforces my suspicion that the Treasury were being over cautious in their refusal to offer any assistance as to what the points were to which reference was made in their note to the Special Advocates and that they were over using the procedure. I am not to be taken as suggesting that it was wrong for the Treasury to make use of closed material in the lower courts, where its use has been expressly authorised by Parliament. But the attitude which they have adopted in this appeal was a misuse of the procedure, because they invited the court to look at the closed judgment when there was nothing in it that could not have been gathered equally well from a careful scrutiny of the open judgment. This experience should serve as a warning that the State will need to be much more forthcoming if an invitation to this court to look at closed material were to be repeated in the future. LORD KERR (dissenting) Two principles of absolute clarity govern the law in relation to the manner in which trials should be conducted. The first is that a party to proceedings should be informed of the case against him and should have full opportunity to answer that case in open court. The second principle is that the first principle may not be derogated from except by clear parliamentary authority. These principles received emphatic endorsement by the Supreme Court in Al Rawi v Security Service [2012] 1 AC 531. In delivering the leading judgment, Lord Dyson said this: 10. There are certain features of a common law trial which are fundamental to our system of justice (both criminal and civil). First, subject to certain established and limited exceptions, trials should be conducted and judgments given in public. The importance of the open justice principle has been emphasised many times: see, for example, R v Sussex Justices, Ex p McCarthy [1924] r KB 256, 259, per Lord Hewart CJ, Attorney General v Leveller Magazine Ltd [1979] AC 440, 449H 450B, per Lord Diplock, and recently R (Mohamed) v Secretary of State for Foreign and Commonwealth Affairs (No 2) (Guardian News and Media Ltd intervening) QB 218, paras 38 39, per Lord Judge CJ. 11. The open justice principle is not a mere procedural rule. It is a fundamental common law principle. In Scott v Scott [1913] AC 417, Lord Shaw of Dunfermline (p 476) criticised the decision of the lower court to hold a hearing in camera as constituting a violation of that publicity in the administration of justice which is one of the surest guarantees of our liberties, and an attack upon the very foundations of public and private security. Viscount Haldane LC (p 438) said that any judge faced with a demand to depart from the general rule must treat the question as one of principle, and as turning, not on convenience, but on necessity. 12. Secondly, trials are conducted on the basis of the principle of natural justice. There are a number of strands to this. A party has a right to know the case against him and the evidence on which it is based. He is entitled to have the opportunity to respond to any such evidence and to any submissions made by the other side. The other side may not advance contentions or adduce evidence of which he is kept in ignorance. The Privy Council said in the civil case of Kanda v Government of Malaya [1962] AC 322,337: If the right to be heard is to be a real right which is worth anything, it must carry with it a right in the accused man to know the case which is made against him. He must know what evidence has been given and what statements have been made affecting him: and then he must be given a fair opportunity to correct or contradict them. 13. Another aspect of the principle of natural justice is that the parties should be given an opportunity to call their own witnesses and to cross examine the opposing witnesses. As was said by the High Court of Australia in Lee v The Queen (I998) I95 CLR 594, para 32: Confrontation and the opportunity for cross examination is of central significance to the common law adversarial system of trial. The essential ratio of Al Rawi, so far as concerns the present appeal, was neatly expressed by Lord Dyson in para 35 where he said, the right to be confronted by one's accusers is such a fundamental element of the common law right to a fair trial that the court cannot abrogate it in the exercise of its inherent power. Only Parliament can do that. The simple question which lies at the heart of this appeal is whether Parliament has done that for hearings before the Supreme Court. It was suggested that the decision in Al Rawi can be distinguished or that it has no application to the present appeal because it was concerned with a trial and not with an appeal from a decision in proceedings where there was statutory authority to conduct a closed hearing. I do not accept this argument. The principle recognised in Al Rawi is both fundamental and general. Its effect is straightforward. Courts do not have power to authorise a closed material procedure unless they has been given that power by Parliament. If Parliament has not conferred the power on this court, it matters not that those courts from which an appeal lies to this court have been empowered to conduct such a hearing. Representing as it does such a radical departure from the conventional mode of trial and, more importantly, such a drastic infringement on a centuries old right, it is to be expected that a closed materials procedure would be provided for in the most unambiguous and forthright terms or by unmistakably necessary implication. On that basis alone, section 40(5) of the Constitutional Reform Act is hardly a promising candidate. But before looking more closely at that provision, I should say something about the relevant provisions in the Counter Terrorism Act 2008, principally to examine how Parliament has in fact set about making explicit provision for closed material procedures in other courts and to point up the contrast with the route that the respondent in this case would have us take to arrive at the same destination. The first and most obvious thing to say about the Counter Terrorism Act is, of course, that it was enacted three years after the Constitutional Reform Act. We now know (not least by reason of Al Rawi) that the High Court and the Court of Appeal could not have ordered a closed material procedure in a case such as the present by recourse to an inherent power. This required the authorisation of the 2008 Act. It appears to me, therefore, that an argument that the Supreme Court did have power to hold such a hearing before 2008, when the High Court and the Court of Appeal did not, would be utterly implausible. But if section 40(5) did not empower the Supreme Court before 2008 to hold a closed material procedure hearing, how can it be said to have done so after the enactment of the Counter Terrorism Act and Rules made I thereunder, all of which conspicuously make no reference whatever to this court? shall return to this question briefly below. Bank Mellats proceedings before the High Court were brought under section 63 of the 2008 Act. Section 63(2) gives a person affected by a decision taken by the Treasury in connection with a range of asset freezing and other financial powers the right to apply to the High Court to have that decision set aside. These are known as financial restrictions proceedings section 65. Provisions as to how they are to be conducted are made in sections 66 to 72. Section 66 contains general provisions about rules of court to be made in relation to financial restrictions proceedings. Subsection (2) enjoins the person making the rules to have regard to (a) the need to secure that the decisions that are the subject of the proceedings are properly reviewed; and (b) the need to secure that disclosures of information are not made where they would be contrary to the public interest. Subsection (3) states that rules of court may make provision (a) about the mode of proof and about evidence in the proceedings; (b) enabling or requiring the proceedings to be determined without a hearing; and (c) about legal representation in the proceedings. Section 66(4) is an important provision which foreshadows rules of court authorising significant differences from the conventional mode of trial in the way that financial restrictions proceedings may be conducted. It provides: Rules of court may make provision (a) enabling the proceedings to take place without full particulars of the reasons for the decisions to which the proceedings relate being given to a party to the proceedings (or to any legal representative of that party); (b) enabling the court to conduct proceedings in the absence of any person, including a party to the proceedings (or any legal representative of that party); (c) about the functions of a person appointed as a special advocate; (d) enabling the court to give a party to the proceedings a summary of evidence taken in the party's absence. Section 67(2) provides that rules of court must secure that the Treasury is required to disclose material on which they rely; material which adversely affects its case; and material which supports the case of a party to the proceedings. This subsection is made subject to the succeeding provisions of the section, however. These include subsection (3) which introduces significant qualifications on the duties imposed in subsection (2). It provides: (3) Rules of court must secure (a) that the Treasury have the opportunity to make an application to the court for permission not to disclose material otherwise than to (i) the court, and (ii) any person appointed as a special advocate; (b) that such an application is always considered in the absence of every party to the proceedings (and every party's legal representative); (c) that the court is required to give permission for material not to be disclosed if it considers that the disclosure of the material would be contrary to the public interest; (d) that, if permission is given by the court not to disclose material, it must consider requiring the Treasury to provide a summary of the material to every party to the proceedings (and every party's legal representative); (e) that the court is required to ensure that such a summary does not contain material the disclosure of which would be contrary to the public interest. As the interveners, Liberty, have pointed out, section 67(3) heralded the effective disapplication of the law relating to public interest immunity. Simply stated, that law required a court, faced with a request by a party to authorise the withholding of relevant evidence, to balance the public interest which the application was said to protect against those public interests which favoured its production, including the fair administration of justice. No such weighing of competing interests could take place after the enactment of the rules which section 67(3) stipulated should secure, among other things, that the court must give permission for material not to be disclosed if it considered that its disclosure would be contrary to the public interest. That outcome was inevitable as soon as the conclusion that revelation of the material was contrary to the public interest. Countervailing interests such as the due and fair administration of justice were to be of no consequence. The effective abolition of public interest immunity in financial restrictions proceedings and the requirement that applications be entertained for evidence to be withheld from all except the court and special advocates clearly called for the protection, in some other guise, of the interests of the litigant who had been denied access to the withheld material. This was provided for in section 68. Subsection (1) of that section provides: (1) The relevant law officer may appoint a person to represent the interests of a party to (a) financial restrictions proceedings, or b) proceedings on an appeal, or further appeal, relating to financial restrictions proceedings, in any of those proceedings from which the party (and any legal representative of the party) is excluded. This is referred to in this Chapter as appointment as a special advocate. The 2008 Act had therefore set up a reasonably elaborate structure for the making of rules which would authorise, in financial restrictions proceedings, a significant departure from the system of trial that would normally obtain in most other forms of civil disputes. But section 73 of the Act made it clear that this system of trial was intended only for the High Court, the Court of Appeal and the Court of Session for it provided that rules of court, where that expression had been used in the legislation, meant rules for regulating the practice and procedure to be followed in the High Court or the Court of Appeal or in the Court of Session. The principal rules in the Civil Procedure Rules are made pursuant to section 1 of the Civil Procedure Act 1997. Section 1(3) of this Act provides that the power to make Civil Procedure Rules shall be exercised with a view to securing that the civil justice system is accessible fair and efficient. Part 79 of the Civil Procedure Rules (which was designed to implement the rules which Part 6 of the 2008 Act, dealing with financial restrictions proceedings, contemplated) was inserted in the Civil Procedure Rules by the Civil Procedure (Amendment No 2) Rules 2008/308517. As well as making detailed rules to fulfil the provisions of sections 66 and 67, Parts 79.2 and 79.13 modified the overriding objective which otherwise applies to proceedings in both the High Court and the Court of Appeal. That objective is stated in CPR Part 1.1, to be to deal with cases justly. Rule 1.1 (2) (a) provides that dealing with cases justly includes, so far as is practicable, ensuring that parties are on an equal footing. But by Parts 79.2 and 79.13 this overall objective (in so far as it related to financial restrictions proceedings) was to be read and given effect to compatibly with the court's statutory duty (in section 66(2) of the 2008 Act) to ensure that information was not disclosed contrary to the public interest. Part 79.22 disapplied in its entirety Part 31 of the CPR which had contained the procedural rules relating to public interest immunity. Again it can be seen that, in relation to financial restrictions proceedings a fairly radical re ordering of the rules that governed most forms of civil litigation was introduced. All of this is in stark contrast to the position as regards the Supreme Court. Section 40(5) of the Constitutional Reform Act 2005 provides: (5) The Court has power to determine any question necessary to be determined for the purposes of doing justice in an appeal to it under any enactment. As I have said, there cannot be any plausible argument that this provision gave the Supreme Court power to conduct a closed procedures hearing before the enactment of the Counter Terrorism Act in November 2008. Is it possible that the power of the court to conduct such a hearing has been animated by the 2008 Act? One can recognise a theoretical argument that in order to determine any question in an appeal against a finding made by a lower court in a closed material procedures hearing, it is necessary for the Supreme Court to be able to conduct such a hearing. That argument must, however, immediately confront the fact that nothing in the 2008 Act refers to the Supreme Court. Notwithstanding the elaborate structure that has been put in place to govern the conduct of such a hearing in the High Court, the Court of Appeal and the Court of Session, no provision has been made as to how a closed material procedure hearing in the Supreme Court might take place. For my part, I find it inconceivable that it was intended that the Supreme Court should have power to carry out a closed materials procedure while leaving it bereft of the structure and safeguards which were deemed essential for the other courts in which such a hearing is expressly permitted. Moreover, the use of a closed materials procedure involves the suspension of the law relating to public interest immunity. Thus, for the Supreme Court to recognise that it has power to conduct a closed materials procedure hearing necessarily involves an acceptance that its power to conduct an inquiry into whether public interest immunity requires the withholding of the material is no longer available. That this should be the effect of section 40(5) would be surprising enough. But that it should have that effect for the first time three years after the Constitutional Reform Act 2005 was passed is surely wholly improbable. Section 40(5) gives the Supreme Court power to determine questions which need to be determined for the purposes of doing justice in an appeal. But the conferring of that power should not be confused with authorising the use of a wholly different procedure for the manner in which those questions are to be determined. This is particularly so when that different procedure was not in contemplation at the time the section was enacted. It is significant that the subsection confers the power for the express purpose of doing justice in an appeal. The doing of justice is conventionally understood to mean that all parties to litigation will have equal access to material which is liable to influence the outcome of the dispute. This is echoed in section 45 of the Constitutional Reform Act the provision which deals with rule making powers. Section 45(1) invests the President of the Court with the power to make rules governing the practice and the procedure to be followed in the court. Subsection (3)(a) requires that the President must exercise that power with a view to securing that the court is accessible, fair and efficient. This mirrors section 1(3) of the Civil Procedure Act 1997. And Rule 2 of the Supreme Court Rules 2009 sets out the overriding objective as being to secure that the court is accessible, fair and efficient, terms which are not dissimilar to the overall objective in CPR 1.1. There has been no modification of this overall objective such as was introduced by Part 79 of the CPR, however. Indeed, nothing in the 2009 Rules intimates an intention to accommodate a closed material procedure in any way. Rule 27(1) states that every contested appeal shall be heard in open court except where it is necessary in the interests of justice or the public interest to sit in private for part of an appeal hearing. Rule 27(2) provides: (2) Where the Court considers it necessary for a party and that party's representative to be excluded from a hearing or part of a hearing in order to secure that information is not disclosed contrary to the public interest, the Court must conduct the hearing, or that part of it from which the party and the representative are excluded, in private but the Court may exclude a party and any representative only if a person who has been appointed as a special advocate to represent the interests of that party is present when the party and the representative are excluded. In my view, it is clear that this rule was made to allow an ex parte application to be made for the withholding of material as part of a public interest immunity exercise. To suggest that it was designed to cover the holding of a closed material procedure would be farfetched, given that there is no mention in any other part of the rules of such a procedure. Indeed, the very next rule, rule 28 states that a judgment of the court may be delivered in open court or, if the court directs, be promulgated by the Registrar. But for the circumstance that the 2008 Act introduced a closed material procedure for the High Court, the Court of Appeal and the Court of Session and that appeals lie from those courts to the Supreme Court, there would be no argument that the Constitutional Reform Act and the Supreme Court rules even address, much less contemplate, the possibility of such a hearing taking place before this court. It is only by a process of ex post facto rationalisation that section 40(5) is said to permit a closed materials procedure in the Supreme Court. That cannot be said to have been its original purpose. In my view, the revised and expanded purpose which the respondent seeks to ascribe to it cannot be accepted. The contended for modification of the courts powers and procedures involves simply too important, not to say too fundamental, a transformation to be countenanced. It can be submitted that a steadfast refusal to allow some softening of the Al Rawi line in relation to appeals is unrealistic; that the failure to admit closed material in an appeal before the Supreme Court when the same material had been before the courts against whose decisions the appeal is brought creates an asymmetrical anomaly. And indeed, it has been suggested by the advocate to the court, Mr Tam QC, that advantages in recognising at least the power of the Supreme Court to receive closed material can be detected. The primary advantage he identified was the assistance which such an exercise provided in enabling the court to arrive at the correct result. For the reasons that I gave in Al Rawi and the associated case of Tariq v Home Office [2012] 1 AC 452, I consider that the assumption that a court, presented with all of what is claimed to be relevant material, will be in a better position to arrive at the right conclusion when some of that material is untested is, at least, misplaced and may prove in some cases to be palpably wrong. But I do not consider it profitable to renew the debate on that particular topic in the present case. For the sake of examining the claim that this court should recognise a power to examine closed material, let us assume that there is force in the argument that a court is, as a matter of principle and common experience, better placed to reach a more correct result if it receives all the material which one of the parties says is relevant to its decision, even though the other party is denied knowledge of its content. Does that circumstance warrant recognition of the power? In my view it does not. Pragmatic considerations can and, where appropriate, should play their part in influencing the correct interpretation to be placed on a particular statutory provision. But pragmatism has its limits in this context and we do well to recognise them. As a driver for the interpretation of section 40(5) for which the respondent contends, pragmatism might seem, at first blush, to have much to commend it. After all, this is an appeal from courts where closed material procedures took place. How, it is asked, can justice be done to an appeal if the court hearing the appeal does not have equal access to a closed material procedure as was available to the courts whose decision is under challenge? And if one proceeds on the premise that the court will be more fully informed and better placed to make a more reliable decision, why should the Supreme Court not give a purposive interpretation to section 40(5)? The answer to this deceptively attractive presentation is that this was never the purpose of section 40(5). It was not even a possible, theoretical purpose at the time that it was enacted. It was never considered that it would be put to this use. The plain fact is that Parliament introduced a closed material procedure for the High Court, the Court of Session and the Court of Appeal and did not introduce such a procedure for the Supreme Court. This court has said in Al Rawi that it does not have the inherent power to introduce a closed material procedure. Only Parliament could do that. Parliament has not done that. And to attempt to graft on to a statutory provision a purpose which Parliament plainly never had in order to achieve what is considered to be a satisfactory pragmatic outcome is as objectionable as expanding the concept of inherent power beyond its proper limits. A majority of this court has held that it does have power to hold a closed material procedure, however, and it is therefore necessary for me to address the question of whether it was right to hold a closed material procedure on this appeal. It was not in dispute between the parties, the interveners and the advocate to the court that, as Mr Chamberlain on behalf of the special advocates put it, if section 40(5) confers on the court power to consider closed material, it does so only if, and to the extent that, closed material is relevant to a question whose determination is necessary for the purposes of doing justice in the appeal. Equally, it was not disputed that the obligation to show that the closed material was relevant and the extent to which it was relevant rested with the party so asserting, in this instance the respondent. But the circumstances of this case immediately exemplified the inherent difficulty in applying that principle. In seeking to persuade the court that it was necessary to look at the closed judgment, the respondent felt unable to state what the closed judgment contained. This is, of course, a problem which will beset every application for a closed material procedure. And, ultimately, counsel for the respondent was driven to utter warnings couched in the most general terms of the danger of this court reaching a conclusion on the appeal in the appellants favour when it might have been influenced to a different view had it seen the closed material. If the principle that the closed material procedure has to be shown to be necessary is to be something more than an empty aspiration, then the party asking for a closed material procedure must surely do more than merely assert that this is necessary. Here, however, the respondent did not even do that. The Treasurys final position was that, in a certain eventuality (the appellants appeal succeeding), the material might cause the court to take a different view. That seems to me to be an impossibly far cry from showing that it was necessary that we should look at the closed judgment. The difficulty is enhanced where, as here, article 6 of the European Convention on Human Rights and Fundamental Freedoms governed the proceedings. Where that is the case, nothing in the closed material, or the judges conclusion on it, may be determinative of the outcome unless the gist of the material has been relayed to the appellant. So one must start the examination of whether it is necessary to examine the closed judgment on the basis that nothing in that judgment can have been determinative of the case against the bank. The examination of whether the necessity test has been satisfied then must include acknowledgment of Mitting Js single reference to his closed judgment in para 16 of his open judgment to the effect that there were closed reasons as well as those expressed in his open judgment for his finding that one of the banks customers, Novin Energy Company, had imported materials which could be used to produce or facilitate the production of nuclear weapons. In the first place, the fact that open reasons for that finding had been given certainly does not help the case that it was necessary to look at the closed judgment. But that case was weakened further by the judges statement that this was common ground between the parties and, in my view, it was demolished by the fact that this finding was not challenged by Bank Mellat before this court. In truth, this courts decision to look at the closed judgment depended on nothing more than the plea of counsel for the Treasury that, against the possibility that we might be inclined to find for the appellant, we should look at the closed material just in case it might persuade us to a different view. That, in my opinion, comes nowhere near to showing that it was necessary to look at the closed judgment and sadly, but all too predictably, when the closed judgment was considered in the course of a closed material procedure, it became abundantly clear that it was quite unnecessary for us to have done so. LORD REED (dissenting) This appeal has raised several points of constitutional importance. The present judgment is concerned with the questions whether this court can adopt a closed material procedure in a case of this nature, and, if so, whether it ought to do so in this particular case. I agree with the judgments` of Lord Hope and Kerr, and add some observations only in view of the importance of these issues and the division in the court. The issue of principle The first question raised is whether this court has the power, when hearing an appeal relating to financial restrictions proceedings under Part 6 of the Counter Terrorism Act 2008 (the 2008 Act), to exclude from the hearing the party challenging the Treasurys exercise of its powers, to consider a closed judgment which has not been disclosed to that party, and to give a closed judgment, containing part or all of the reasons for its decision, which is not disclosed to that party or to the public. I was of the opinion, when the issue arose at the end of the first day of the hearing, that the court has no such power. I remain of that opinion. It is a fundamental principle of justice under the common law that a party is entitled to the disclosure of all materials which may be taken into account by the court when reaching a decision adverse to that party (see for example In re D (Minors) (Adoption Reports: Confidentiality) [1996] AC 593, 615 per Lord Mustill, and the other authorities cited in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738, para 16 per Lord Bingham of Cornhill). That principle can only be qualified or overridden by statute. It is also a basic principle of justice that a party is entitled to be present during the hearing of his case by the court (subject to a number of established exceptions, none of which is germane to the present case), and to know the reasons for the courts decision. Section 66 of the 2008 Act, read with section 73, makes special provision for rules of court regulating the practice and procedure to be followed in appeals relating to financial restrictions proceedings in the High Court, the Court of Appeal and the Court of Session. Section 66(4) permits such rules of court to make provision for a closed material procedure. Section 67 imposes specific duties in relation to disclosure upon persons making rules of court in respect of those courts alone. The law relating to public interest immunity is by implication disapplied. It is plain beyond argument that Parliament did not apply those provisions to the court of last resort. If Parliament had intended the same procedures to be applied in this court, it would surely have said so. The general powers conferred upon this court by the Constitutional Reform Act 2005 (the 2005 Act) are silent on the matter. It is argued that they are to be construed as conferring the necessary powers, since the court cannot decide an appeal in a case where a closed judgment has been issued without knowing, and hearing argument upon, all the reasons for the decisions of the courts below, and must therefore hear argument upon the closed judgment, necessarily in a hearing from which the party challenging the Treasurys exercise of its powers is excluded. There is however a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights. It will be understood as doing so only if it does so expressly or by necessary implication (R v Secretary of State for the Home Department, Ex p Pierson [1998] AC 539, 574 per Lord Browne Wilkinson; R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131 per Lord Hoffmann). The common law rights of a party to an appeal to be present throughout the hearing of the appeal, to see the material before the court, and to know the reasons for the courts decision of the appeal, are undoubtedly fundamental rights to which that principle applies. The argument advanced on behalf of the Treasury is directly contrary to that principle: reliance is placed upon general words to override a fundamental right. I find it particularly difficult to accept the argument against the background of the specific provision made by Parliament in respect of other courts in the 2008 Act. In so far as the argument seeks to rely upon the Supreme Court Rules made under the 2005 Act, it begs the anterior question as to the effect of the 2005 Act itself. I accept of course, as a general proposition, that it is desirable that an appellate court should be able to consider all the reasoning of the courts below, and all the material which was before them. This court has not however in the past found it either necessary or appropriate to consider closed judgments of the courts below: RB (Algeria) v Secretary of State for the Home Department [2009] UKHL 10; [2010] 2 AC 110, para 3. I do not in any event regard these pragmatic considerations as conclusive. It has to be borne in mind in the first place that it is a matter of great importance that proceedings in the highest court in the land should be conducted in accordance with the highest standards of justice: in particular, that the court should sit in public, and that all parties should be equally able to participate in the hearing. There is to my mind a very serious question whether secret justice at this level is acceptable. It also has to be borne in mind that there are other possible means of protecting national security in court proceedings besides the adoption of a closed material procedure, and that some of those means enable the court to sit in public and the parties to attend the whole of the hearing. One possibility, where a closed judgment has been issued by a lower court, is to determine the appeal on the basis of the material which that court, exercising its judgment, has set out in its open judgment. That was the procedure followed in RB (Algeria). Another is to apply the law relating to public interest immunity, as the House of Lords did in the past. Another is to follow the approach adopted in a number of European courts, such as the German courts, where the court can examine the material for itself, without its being canvassed during the hearing. A comparative analysis might disclose other possibilities. That is not to say that the alternatives to closed material procedure are necessarily preferable: they may cause equal or greater concern for other reasons. The point of these considerations, however, is that there are choices to be made. Those choices are appropriately made by Parliament after full consideration and debate. They are too important to be left to judges. The most serious difficulty with the Treasurys argument, however, is that for the court to conduct a closed hearing is contrary to a fundamental principle of the common law, and therefore requires clear statutory authority. Even interpreted as generously as possible, the 2005 Act cannot in my opinion be said to provide clear authority. Whether this court should have adopted a closed material procedure in the present The second question raised is whether, given the view of the majority of the court that it did possess such a power, that power should have been exercised in the circumstances of the present case. I am emphatically of the opinion that it should not. The Treasurys argument, which I have already summarised, was one which would apply in every case in which a closed judgment had been given. In the present case, however, Mitting J had properly indicated in his open judgment ([2010] EWHC 1332, paras 16 and 18) the two specific findings that he had made for which his reasoning was set out in the closed judgment. Neither of those findings was challenged before this court. Counsel for the Treasurys assertion that it was nevertheless necessary for this court to hear submissions on the closed judgment, and for that purpose to sit in a closed session, was unsupported by any specific reasons why such an exceptional course should be adopted. No indication was given of the nature of the closed material, contrary to the requirement that a summary should be provided (Secretary of State for the Home Department v AF [2009] UKHL 28; [2010] 2 AC 269). The plea that, if there was any possibility that the court might otherwise allow the appeal, it ought to consider the closed judgment just in case anything in it might alter the courts view, falls far short of demonstrating that a departure from the fundamental principle of open justice was truly necessary. When closed material procedure was first introduced in 1997, in proceedings before the Special Immigration Appeals Commission, it was said to be an exceptional measure justified by national security concerns. Having gained a foothold in the legal system, the procedure has spread progressively, initially to other specialist tribunals, and then to the courts. It has been used even where issues of national security are not involved (as, for example, in R (Roberts) v Parole Board [2005] UKHL 45; [2005] 2 AC 738). Now that its use has been extended to proceedings before this court, it is of great importance, if a degradation of standards of justice at the highest level is to be avoided, that it should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice. LORD DYSON (dissenting in part) I agree with Lord Neuberger that, for the reasons that he has given, this court has the power to adopt a closed material procedure in an appeal under the Counter Terrorism Act 2008. For the reasons given by Lords Hope, Kerr and Reed, I did not favour exercising the power in this case. In my view, the power should only be exercised where it has been convincingly demonstrated that it is necessary to do so in the interests of justice. I agree with what Lord Neuberger says about this at para 69 of his judgment. The present case illustrates the danger of the court acceding too readily to an assertion by a party that a closed session could make a difference to the outcome of an appeal. That is what counsel for the Treasury asserted on instructions in the present case. He was unable to say more. As Lord Neuberger says at para 64, the court strongly suspected that nothing in the closed judgment would affect the outcome of the appeal, but we could not be sure in the absence of seeing the closed judgment and hearing submissions on it. Our strong suspicions were amply borne out. The closed judgment contained nothing that it could reasonably have been thought would or might affect the outcome of the appeal. In my view, if the court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing. I remain of the view that the power should not have been exercised in the present case. A bare plea for a closed hearing should not suffice. I agree with Lord Hope that convincing reasons should be given as to why closed material should be looked at. Anything less is likely to lead to closed hearings becoming routine. In my view, they should be exceptional. Trinity Term [2013] UKSC 39 On appeal from: [2011] EWCA Civ 1 Bank Mellat (Appellant) v Her Majesty's Treasury (Respondent) (no. 2) Lord Neuberger, President Lord Hope, Deputy President JUDGMENT before Lady Hale Lord Kerr Lord Clarke Lord Dyson Lord Sumption Lord Reed Lord Carnwath 19 June 2013 JUDGMENT GIVEN ON Heard on 19, 20 and 21 March 2013 Appellant Michael Brindle QC Amy Rogers Dr Gunnar Beck (Instructed by Zaiwalla and Co) Special Advocates Martin Chamberlain QC Melanie Plimmer (Instructed by Special Advocates Support Office) Intervener Nicholas Vineall QC (Instructed by Zaiwalla and Co) Respondent Jonathan Swift QC Tim Eicke QC Robert Wastell (Instructed by Treasury Solicitors) Advocate to the Court Robin Tam QC (Instructed by Treasury Solicitors) LORD SUMPTION (with whom Lady Hale, Lord Kerr, and Lord Clarke agree in whole; Lord Neuberger and Lord Dyson agree only on the procedural grounds, Lord Carnwath only on the substantive grounds) Introduction 1. This appeal is about measures taken by H.M. Treasury to restrict access to the United Kingdoms financial markets by a major Iranian commercial bank, Bank Mellat, on the account of its alleged connection with Irans nuclear weapons and ballistic missile programmes. 2. The proliferation of nuclear weapons is an international issue of great importance to the security of the United Kingdom and the international community. For a number of years, Iran has had a major industrial programme which the United Kingdom, along with the rest of the international community, believes to be directed to the development of the technical capability to produce nuclear weapons and to the improvement of its ballistic missile capabilities. Between 2006 and 2008 the United Nations Security Council adopted a number of resolutions under Article 41 of the United Nations Charter, which deals with threats to international peace and security. Security Council Resolution 1737 (2006) called on Iran to suspend various proliferation sensitive nuclear activities, and called on states to take measures to control the trade in certain critical materials, components, equipment and services. Paragraph 12 of this Resolution also required states to freeze the assets in their national territory of a number of persons or organisations identified in Annex I as being involved in Irans nuclear and ballistic missile programmes. Resolution 1747 (2007) extended these provisions to a number of additional persons and organisations identified in Annex I to the new resolution. These included entities providing ancillary services to Irans nuclear and armaments industries, among them two banks. Security Council Resolution 1803 (2008) strengthened the measures required by Resolutions 1737 and 1747. In relation to the provision of banking and other financial services to support Irans weapons programmes, the new resolution called upon all states to exercise vigilance over the activities of financial institutions in their territories with all banks domiciled in Iran, in particular with Bank Melli and Bank Saderat, and their branches and subsidiaries abroad, in order to avoid such activities contributing to the proliferation sensitive nuclear activities, or to the development of nuclear weapon delivery systems. 3. There are two principal legislative instruments available to the United Kingdom government for the purpose of restricting the operations in the United Kingdom of Iranian financial institutions associated with the countrys nuclear and ballistic missiles programmes. The first, which is not directly in point in these proceedings but is an important part of the background, is the Iran (Financial Sanctions) Order 2007 SI 2007/281. This is an Order in Council made under section 1 of the United Nations Act 1946, which gives effect to the asset freeze provisions of Security Council Resolutions 1737 and 1747. Article 6 of the Order freezes the assets in the United Kingdom of the entities identified in Annex I of those resolutions. 4. The second, which is the instrument directly relevant to the present appeal, is Section 62 of the Counter Terrorism Act 2008, which gives effect to Schedule 7. Schedule 7 is not exclusively concerned with Iran or with nuclear proliferation. It empowers the Treasury to make a direction by statutory instrument in situations specified in paragraph 1, involving three categories of risk associated with a foreign country outside the European Economic Area. The relevant categories of risk are those arising from terrorist financing, money laundering and nuclear proliferation. The risk of nuclear proliferation is dealt with in paragraph 1(4), which imposes a statutory condition that . the Treasury reasonably believe that (4) the development or production of nuclear, radiological, biological or chemical weapons in the country, or the doing in the country of anything that facilitates the development or production of any such weapons, poses a significant risk to the national interests of the United Kingdom. 5. If the conditions in paragraph 1 as to the existence of a relevant risk are satisfied, the Treasury may give a direction to one or more persons operating in the financial sector (essentially credit and financial institutions) regulating their dealings with any designated person. A designated person includes any person carrying on business in or resident or incorporated in the foreign country in question: see paragraph 9(1). The direction may require the financial institutions to whom it is addressed to exercise an enhanced customer due diligence so as to obtain information about the designated person and those of its activities which contribute to the risk (paragraph 10). It may require enhanced monitoring (paragraph 11) or systematic reporting (paragraph 12) to the same end. But the most draconian provision is paragraph 13, which provides that the direction may require those to whom it is addressed not to enter into or continue to participate in. any transaction or business relationship with a designated person. Under paragraph 16(4), any direction made in the exercise of these powers expires a year after it is made. A direction made under Schedule 7 must be contained in an order: see paragraph 14(1). By section 96, any order under the Act must be made by statutory instrument. 6. It will be apparent that for designated persons with a substantial business in the United Kingdom, especially if they are banks, the exercise of the power conferred by paragraph 13 will have extremely serious and possibly irreversible consequences. The Act provides three relevant safeguards against the unwarranted use of this power. First, under Schedule 7, paragraph 14(2), if the direction contains requirements of a kind mentioned in paragraph 13 of Schedule 7 (limiting or ceasing business with a designated person) it must be laid before Parliament after being made and unless approved by affirmative resolution within 28 days will cease to have effect at the end of that period. Second, Schedule 7, paragraph 9(6) provides that the requirements imposed by a direction must be proportionate having regard, in the case within paragraph 1(4) to the risk referred to in that paragraph. This means the risk to the national interests of the United Kingdom presented by the development of nuclear weapons, radiological, biological or chemical weapons in the foreign country. Third, section 63 of the Act provides a special procedure by which a person affected by any decision of the Treasury, including a decision under Schedule 7, may apply to the High Court to set it aside, applying the principles applicable on an application for judicial review. 7. On 9 October 2009 the Treasury made an order, the Financial Restrictions (Iran) Order 2009 SI 2009/2725, which came into force three days later on 12 October. It was made under Schedule 7, paragraph 13 of the Act and required all persons operating in the financial sector not to enter into or to continue to participate in any transaction or business relationship with Bank Mellat or any of its branches or with a shipping line called IRISL. The direction was laid before Parliament on 12 October 2009. It was approved by the Delegated Legislation Committee of the House of Commons on 28 October and by the Grand Committee of the House of Lords on 2 November. 8. Under Schedule 7, paragraph 16(4), the direction expired automatically after a year, on 8 October 2010. By that time it had been effectively superseded by the extension to Bank Mellat of a general asset freeze under EU legislation, which occurred on 26 July 2010. On 29 January 2013, however, the application of the EU measures to Bank Mellat was annulled by the General Court, primarily on the ground of the insufficiency of the stated reasons for it. This decision is currently under appeal to the Court of Justice of the European Union and is suspended pending that appeal. Subject to that, there are no restrictions on Bank Mellats business currently in force. 9. The object of the direction, as the Treasury acknowledges, was to shut the Bank out of the UK financial sector, and that has been its effect. Before the direction, the Bank had a substantial international business, much of it international trade finance transacted through London. In the year to March 2009, it issued letters of credit with an aggregate value of about US$11 billion, of which about a quarter represents letters of credit in respect of business transacted through the United Kingdom. The Banks own estimate of its revenue losses is about US$25 million a year. In addition, the Bank has been prevented from drawing on 183 million euros of call and time deposits with its part owned subsidiary in London. Important banking relationships have been lost to other banks. The judge found that since the direction, the bank has been unable to make profitable use of the goodwill which it had established in the United Kingdom, which was a possession for the purpose of article 1 of the First Protocol to the European Convention on Human Rights. He held that on any view the effect has been substantial, and suffices to require all of the Banks challenges to the Order to be addressed and determined. This much is not in dispute. The present proceedings 10. On 20 November 2009, Bank Mellat applied in the High Court under section 63 of the Counter Terrorism Act 2008 to have the direction set aside on grounds which fall under two heads. In the courts below, these were called the procedural and the substantive grounds. The procedural ground is that the Treasury failed to give the bank an opportunity to make representations before making the order. The Bank had no express statutory right to such an opportunity, but it contends that such an opportunity was required at common law and by article 6 and article 1, Protocol 1 of the European Convention on Human Rights. The substantive grounds are that the decision was irrational, disproportionate and discriminatory, that the Treasury failed to give adequate reasons for making it, and that their reasons were vitiated by irrelevant considerations or mistakes of fact. In the High Court, Mitting J dismissed the banks application under both heads. The Court of Appeal (Maurice Kay, Elias and Pitchford L.JJ) dismissed the appeal, unanimously in the case of the substantive grounds, by a majority (Elias LJ dissenting) in the case of the procedural ground. The Treasurys reasons 11. Bank Mellat is the only Iranian bank to have been designated under Schedule 7 of the Act. It is, however, only part of the Iranian banking sector. According to a staff report of the International Monetary Fund put before us by the Treasury, Iran has a comparatively large banking sector. It comprises 26 banks, including eight large general commercial banks, four of which are publicly owned and the other four (among them Bank Mellat) relatively recently privatised. The Treasurys evidence is that it is difficult for Iranian banks to access the United Kingdoms financial markets directly, because few banks in the United Kingdom are willing to deal with them or hold correspondent accounts for them in view of the risks involved. It is easier for Iranian banks to do business in the United Kingdom through UK incorporated subsidiaries, which do not present the same risks for their counterparties. Five of the eight general commercial banks in Iran have wholly or partly owned subsidiaries in the United Kingdom. They are Bank Mellat, Bank Melli, Bank Sepah, Bank Saderat and Bank Tejarat. Of these, Bank Melli, Bank Sepah and Bank Saderat had wholly owned banking subsidiaries in the United Kingdom. Bank Mellat and Bank Tejarat had a jointly owned banking subsidiary, Persia International Bank Plc (PIB), through which they transacted most if not all of their United Kingdom business. At the time of the Treasury direction, some of the Iranian banks with banking subsidiaries in the United Kingdom were restricted under other legislation. Bank Sepah and its UK subsidiary Bank Sepah International Plc were included in Annex I to Security Council Resolution 1747, and were accordingly covered by the asset freeze imposed under the Iran (Financial Sanctions) Order 2007. Bank Melli and its UK subsidiary Bank Melli Plc were subject to a similar asset freeze under EU legislation. On 27 July 2010, some time after the direction relating to Bank Mellat was made, the EU asset freeze was extended to Bank Mellat and PIB as well as to Bank Saderat and its UK subsidiary Bank Saderat Plc which had previously been subject to reporting obligations only. At the same time the EU asset freeze was extended to three other Iranian banks which did not have UK branches or subsidiaries. That left, among banks with a UK presence, only Bank Tejarat, which was finally brought within the EU asset freeze on 24 January 2012. 12. It is abundantly clear from statements made to Parliament when the direction was laid before it that the reason for singling out Bank Mellat from other Iranian banks was that it had been identified as having assisted Irans weapons programmes by providing banking and financial services to entities involved with them. The explanatory memorandum which accompanied the direction explained it as follows: These restrictions are being imposed in respect of these entities because of their provision of services for Iran's ballistic missile and nuclear programmes. It is considered that a direction to cease business with these entities will contribute to addressing the risk to the UK national interests posed by Irans proliferation activities. This was expanded in a written ministerial statement. After explaining why the Treasury considered that the Iranian nuclear programme posed significant risks for the national interests of the United Kingdom, the document continued: We cannot and will not ignore specific activities undertaken by Iranian companies which we know to be facilitating activity identified by the UN as being of concern, particularly where such activities have the potential to affect the UK' s interests. Of the particular entities in question . Bank Mellat has provided banking services to a UN listed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic missile programme. The direction to cease business will therefore reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Iran's proliferation sensitive activities. In response to a request from the Banks solicitors for further information about the contents of this statement, the Treasury wrote on 27 October 2009: Iran's nuclear and ballistic missile programmes clearly require financing mechanisms to underpin them, and access to the international banking system remains essential for transactions with foreign suppliers. As set out in the Written Ministerial Statement Bank Mellat has provided banking services to a UN listed organisation connected to Iran's proliferation sensitive activities, and been involved in transactions related to financing Iran's nuclear and ballistic missile programme. The direction prevents Bank Mellat from conducting transactions or business relationships with persons operating in the UK financial sector and therefore restricts the financing mechanisms available to entities involved in lrans nuclear programme and its missile programme. It also protects the UK financial sector from being unknowingly implicated in financing Iran's nuclear programme through transactions with Bank Mellat. Finally, on 17 December 2009, the Exchequer Secretary to the Treasury answered a number of questions relating to the order in the House of Commons. She said: The first question was on how the Government assess the impact on Iran's proliferation activities. International finance services underpin the actions of Bank Mellat and IRISL. Restricting their access to UK financial services will lock them out of a key financial centre, which will make their contribution to Iran's nuclear programme more difficult. Obviously, our action applies to the UK. The Hon Member for Fareham used the word sanction, but the order is not a sanction on Iran, but a direction for financial institutions in the UK. And later in the same debate: The restriction targets Bank Mellat and IRISL transactions. Other Iranian banks are not subject to the restrictions. As long as all financial sanctions and relevant risk warnings are complied with, alternative banks may be used, otherwise an application for a licence of exemption may be made to the Treasury. 13. In response to Bank Mellats proceedings, Mr James Robertson, a senior civil servant at the Treasury, made a witness statement which in its original form was dated 18 December 2009. His statement was subsequently re served with additional material, after Mitting J had required the Treasury to disclose certain material which they had initially sought to rely on as closed material. In his statement, Mr Robertson provided some of the detail behind the general allegations in the written ministerial statement about Bank Mellats dealings with a UN listed organisation connected to Iran's proliferation sensitive activities, and the transactions related to financing Iran's nuclear and ballistic missile programme. It came down to three points: (1) The UN listed organisation was Novin Energy Company, which had been identified in Annex I of Resolution 1747 as a company which operates within AEOI and has transferred funds on behalf of AEOI to entities associated with Irans nuclear programme. AEOI is the Atomic Energy Organisation of Iran. It is an umbrella organisation concerned with the coordination of the programme. It is listed in Annex I of Resolution 1737. Mr Robertsons evidence was that Bank Mellat had serviced and maintained AEOI accounts mainly through AEOIs financial conduit Novin Energy. (2) Bank Mellat was said to have provided banking services to senior officials of Irans Aerospace Industries Organisation (or AIO), including a Mr Taghizadeh and a Mr Esbati. AIO is not an organisation listed in the Annexes to the Security Council resolutions, but it is the parent of four entities which are listed. Mr Robertson alleged that senior AIO officials concerned with Irans ballistic missile programme, by inference including Mr Taghizadeh and Mr Esbati, had in 2007 and 2008 used Bank Mellat services to conduct business with companies associated with Iranian procurement attempts. (3) Between autumn 2007 and spring 2009 the Bank had a banking relationship with a company called Doostan International, which was said to be an intermediary company that had in the past been used by subsidiary organisations of AIO listed in the Security Council resolutions, and which was linked to Irans nuclear programme. In addition, Mr. Robertson said that the Treasury had been influenced by 14. two wider considerations not directly related to Bank Mellats alleged role in providing banking services to entities involved in Irans weapons programmes. One was that it might encourage the United Kingdom financial sector to wind down business with Iran more generally. The other was that it would increase pressure on the Iranian government to comply with its international obligations, by restricting the financial services available to it for procuring material required for its weapons programmes. In this context, Mr Robertson said that it was important to note that although Bank Mellat had been privatised, the government of Iran still directly controlled 20% of its shares and indirectly controlled another 60%. 15. In his open judgment Mitting J made the following findings, which represent at best a very partial acceptance of the Treasurys case on the facts: (1) Bank Mellat has in place a mechanism, which it operates conscientiously, to ensure that it does not provide banking services to Security Council designated entities and individuals. This finding reflected the Banks evidence, which described its due diligence procedures. (2) Novin Energy Company was a financial conduit for AEOI and did facilitate Irans nuclear weapons programme. But once it was designated in Security Council Resolution 1747, the Bank ran down and eventually terminated its relationship with it. (3) Doostan International had played a part in the Iranian nuclear weapons programme. The Bank holds accounts for Doostan and for its managing director Mr Shabani, but the Bank had investigated the position in good faith and found nothing unusual or suspicious. Mitting J considered that the position with regard to Doostan does not greatly matter. (4) Mitting J was not satisfied on the information available to him that the Bank had provided banking services to the two individuals said to be senior officials of the AIO. Their names are very common in Iran and it had not proved possible to identify them in the Banks records. (5) Bank Mellat is not controlled by the Iranian government, which exercises voting rights only in respect of the 20% of the shares which it owns. Nonetheless some pressure would be brought to bear on the Iranian government by the direction. In substance, therefore, Mitting J found that while the Bank had provided 16. banking services to two entities, Novin and Doostan, which were involved in the Iranian nuclear weapons and ballistic missiles programmes, this had happened without their knowledge and in spite of their conscientiously operated procedures to avoid doing so. The judge nevertheless dismissed the Banks substantive grounds of application because these very facts demonstrated the risk that is in any event obvious, that however careful the bank may be, the banks facilities are open to use by entities participating in Irans nuclear weapons programme. The judge put the point in this way at para 16: The Treasury's case is not that the bank has knowingly assisted Security Council designated entities after designation, or even that it has knowingly assisted entities liable to be designated, but which have not yet been, by providing banking facilities to them, but that it has the capacity to do so, has in one instance done so and is likely to do so in the future. The fundamental justification for the Order is that, even as an unknowing and unwilling actor, the bank is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance. Concealment of the true nature of imported goods paid for by a letter of credit is straight forward: all that an issuing bank sees are documents. On presentation of compliant documents describing innocent goods, the bank must pay, whatever the nature of the goods in fact imported. Access to the international financial system is, as the Financial Action Task Force reported on 18 June 2008, essential for what it describes as "proliferators". I accept Mr Robertson's conclusion, in paragraph 57 of his statement, that Iran's banking system provides many of the financial services which underpin procurement of the raw materials and components needed for its nuclear and ballistic missile programmes. In addition to his open judgment, Mitting J delivered a closed judgment, 17. which we have read. It contains nothing which alters or supplements the findings in his open judgment in any respect relevant to the present appeal. 18. The judges findings of fact were not challenged before the Court of Appeal, which endorsed his conclusions about them. The Banks substantive grounds 19. The bank now accepts, at least for the purpose of this litigation, that the statutory prerequisites in Schedule 1, paragraph 1 of the Act for the making of the direction were satisfied. In other words, the Treasury reasonably believed that Irans nuclear and ballistic missiles programmes posed a significant risk to the national interests of the United Kingdom. But that is not enough to justify the order. This is because unlike the Iran (Financial Sanctions) Order 2007, a Schedule 7 direction is not a sanctions regime. Its purpose is directly to restrict the availability of financial services which contribute to the relevant risk. Directions made under it are essentially preventative and remedial rather than punitive or deterrent. Thus Schedule 7 applies in the same way to the risk of terrorist financing and money laundering associated with a foreign country as it does to the risk of nuclear proliferation. All of the specific directions for which Schedule 7 provides are addressed to the particular risks whose existence has given rise to the direction. They require things to be done by the financial institutions to whom they are addressed with a view to directly restricting the contribution which the designated person may make to that risk, whether it be by gathering or reporting of information relating to its activities or, as in the present case, by wholly ceasing business dealings with him. Critically, paragraph 9(6) of Schedule 7 posits a functional relationship between the conduct which may be required by the direction and the particular risk which justified the making of it in the first place. It follows that the essential question raised by the Banks substantive objections to the direction is whether the interruption of commercial dealings with Bank Mellat in the United Kingdoms financial markets bore some rational and proportionate relationship to the statutory purpose of hindering the pursuit by Iran of its weapons programmes. 20. The requirements of rationality and proportionality, as applied to decisions engaging the human rights of applicants, inevitably overlap. The classic formulation of the test is to be found in the advice of the Privy Council, delivered by Lord Clyde, in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69 at 80. But this decision, although it was a milestone in the development of the law, is now more important for the way in which it has been adapted and applied in the subsequent case law, notably R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532 (in particular the speech of Lord Steyn), R v Shayler [2003] 1 AC 247 at paras 57 59 (Lord Hope of Craighead), Huang v Secretary of State for the Home Department [2007] 2 AC 167 at para 19 (Lord Bingham of Cornhill) and R (Quila) v Secretary of State for the Home Department [2012] 1 AC 621 at para 45. Their effect can be sufficiently summarised for present purposes by saying that the question depends on an exacting analysis of the factual case advanced in defence of the measure, in order to determine (i) whether its objective is sufficiently important to justify the limitation of a fundamental right; (ii) whether it is rationally connected to the objective; (iii) whether a less intrusive measure could have been used; and (iv) whether, having regard to these matters and to the severity of the consequences, a fair balance has been struck between the rights of the individual and the interests of the community. These four requirements are logically separate, but in practice they inevitably overlap because the same facts are likely to be relevant to more than one of them. Before us, the only issue about them concerned (iii), since it was suggested that a measure would be disproportionate if any more limited measure was capable of achieving the objective. For my part, I agree with the view expressed in this case by Maurice Kay LJ that this debate is sterile in the normal case where the effectiveness of the measure and the degree of interference are not absolute values but questions of degree, inversely related to each other. The question is whether a less intrusive measure could have been used without unacceptably compromising the objective. Lord Reed, whose judgment I have had the advantage of seeing in draft, takes a different view on the application of the test, but there is nothing in his formulation of the concept of proportionality (see his paras 68 76) which I would disagree with. 21. None of this means that the court is to take over the function of the decision maker, least of all in a case like this one. As Maurice Kay LJ observed in the Court of Appeal, this case lies in the area of foreign policy and national security which would once have been regarded as unsuitable for judicial scrutiny. The measures have been opened up to judicial scrutiny by the express terms of the Act because they may engage the rights of designated persons or others under the European Human Rights Convention. Even so, any assessment of the rationality and proportionality of a Schedule 7 direction must recognise that the nature of the issue requires the Treasury to be allowed a large margin of judgment. It is difficult to think of a public interest as important as nuclear non proliferation. The potential consequences of nuclear proliferation are quite serious enough to justify a precautionary approach. In addition, the question whether some measure is apt to limit the risk posed for the national interest by nuclear proliferation in a foreign country, depends on an experienced judgment of the international implications of a wide range of information, some of which may be secret. This is pre eminently a matter for the executive. For my part, I wholly endorse the view of Lord Reed that the making of government and legislative policy cannot be turned into a judicial process. 22. Nonetheless there are, as it seems to me, two serious difficulties about the conclusion which both Mitting J and the Court of Appeal reached in the present case. The first is that it does not explain, let alone justify, the singling out of Bank Mellat, if as both courts below agreed the problem is a general problem of international banking. The second is that the justification for the direction which they have found was not the one which ministers advanced when laying the direction before Parliament, and was in some respects inconsistent with it. 23. As I have pointed out, by reference to the various statements of Treasury ministers, the justification for the measure which was given to Parliament was that there was a particular problem about Bank Mellat which did not apply to the generality of Iranian banks. As the Exchequer Secretary pointed out on 17 December 2009, the direction was a targeted measure which did not apply to transactions with other banks. That must mean, and would certainly have conveyed to Parliament, either (i) that Bank Mellat was knowingly collaborating in transactions related to the Iranian programmes, or at least turning a blind eye to them, or else (ii) that Bank Mellat, even on the footing that it was acting in good faith had unacceptably low standards of customer due diligence, which made it especially liable to let through such transactions. The existence of special problems at Bank Mellat was also a substantial part of the justification put forward in the more detailed explanation given in Mr Robertson in his witness statement. Unfortunately, it was the part which the judge did not accept. The judge has found that Bank Mellat had a conscientiously applied policy of not providing banking facilities and banking services to entities identified in the United Nations list as being connected to the Iranian weapons programmes. He has found that it wound down and then terminated its relationship with Novin once it had been added to the list, and that an investigation into Doostan had thrown up nothing unusual or suspicious. When (after the hearing before Mitting J) Doostan was added to the list of entities connected with the Iranian weapons programmes by the United Nations Security Council, the relationship with them was terminated as it had been in Novins case. The judge made no finding about the inadequacy of Bank Mellats controls. Neither the Treasury ministers when justifying the measure to Parliament nor Mr Robertson when explaining it to the court suggested that they were particularly lax. Mr Robertson did say that in general Iranian standards of due diligence were low. This, he said, made them vulnerable to being used to channel illicit finance, and meant that UK financial institutions dealing with them could not assume that they would necessarily have procedures in place to screen out transactions of concern. Mr Robertson did not, however, suggest that Bank Mellat was especially deficient in this respect and the judges finding about their procedures suggests that they were satisfactory, at any rate in relation to the weapons programmes. Against this background, the emphasis of the Treasurys argument underwent a radical shift after the order was challenged towards a justification based on the risk that Bank Mellat might be the unwitting and unwilling channel by which the entities directly involved in the Iranian weapons programmes financed their importation of materials, services and equipment. 24. Mitting J and the Court of Appeal accepted this argument. They considered that the justification for the direction was to be found not in any problem specific to Bank Mellat but in the general problem for the banking industry of preventing their facilities from being used for purposes connected with the Iranian weapons programmes. As the judge pointed out, concealment of the true nature of the imported goods paid for by letters of credit is straightforward. However careful a bank may be, he said, the banks facilities are open to use by entities participating in Irans nuclear weapons programme. For this reason, he thought that the direction represented the only reasonably practicable means of ensuring reliably that the facilities of an Iranian bank with international reach will not be used for the purpose of facilitating the development of nuclear weapons by Iran. However, the direction made no attempt to prevent every Iranian bank with an international reach from facilitating Irans weapons programmes, but only one of them. Indeed, by emphasising that it remained open to international traders to use other banks, the Exchequer Secretary apparently invited them to use instead channels of trade finance many, perhaps all of which would be affected by precisely the same inherent problems as Bank Mellat. 25. A measure may respond to a real problem but nevertheless be irrational or disproportionate by reason of its being discriminatory in some respect that is incapable of objective justification. The classic illustration is A v Secretary of State for the Home Department [2005] 2 AC 68, another case in which the executive was entitled to a wide margin of judgment for reasons very similar to those which I have acknowledged apply in the present case. The House of Lords was concerned with a derogation from the Convention permitting the detention of non nationals whose presence in the United Kingdom was considered by the Home Secretary to be a risk to national security and who could not be deported. The House held that this was not a proportionate response to the terrorist threat which provoked it: see in particular paras 31, 43 44 (Lord Bingham of Cornhill), 132 (Lord Hope of Craighead), and 228 (Baroness Hale of Richmond). No one disputed that the executive had been entitled to regard the applicants as a threat to national security. Plainly, therefore, the legislation in question contributed something to the statutory purpose of protecting the United Kingdom against terrorism, if only by keeping some potential terrorists in prison. It was nevertheless disproportionate, principally because it applied only to foreign nationals. That was relevant for two reasons. One was that the distinction was arbitrary, because the threat posed by comparable UK nationals, to whom the legislation did not apply, was qualitatively similar, although quantitatively smaller. The other was that it substantially reduced the contribution which the legislation could make to the control of terrorism, and made it difficult to suggest that the measure was necessary. This was because if (as the Committee assumed) the threat from UK nationals could be adequately addressed without depriving them of their liberty, no reason was shown why the same should not be true of foreign nationals. As Lord Hope put it at para 132, the distinction raises an issue of discrimination, . but as the distinction is irrational, it goes to the heart of the issue about proportionality also. 26. Every case turns on its own facts, and analogies with other decided cases can be misleading. The suppression of terrorism and the prevention of nuclear proliferation are comparable public interests, but the individual right to liberty engaged in A v Secretary of State for the Home Department can fairly be regarded as the most fundamental of all human rights other than the right to life and limb. The right to the peaceful enjoyment of business assets protected by article 1 of the First Protocol, is not in the same category of human values. But the principle is not fundamentally different. 27. I would not go so far as to say that the Schedule 7 direction in this case had no rational connection with the objective of frustrating as far as possible Irans weapons programmes. On the footing that a precautionary approach is justified, the elimination of any Iranian bank from the United Kingdoms financial markets may well have added something to Irans practical problem in financing transactions associated with those programmes, just as the incarceration of some potential terrorists under Part IV of the Crime and Security Act 2001 may have made some difference to the reduction of terrorism. But I think that the distinction between Bank Mellat and other Iranian banks which was at the heart of the case put to Parliament by ministers was an arbitrary and irrational distinction and that the measure as a whole was disproportionate. This is because once it is found that the problem is not specific to Bank Mellat but an inherent risk of banking, the risk posed by Bank Mellats access to those markets is no different from that posed by the access which comparable banks continued to enjoy. Moreover, the discriminatory character of the direction must drastically reduce its effectiveness as a means of impeding the Iranian weapons programmes. As the Exchequer Secretary herself pointed out, as long as all financial sanctions and relevant risk warnings are complied with, alternative banks may be used. Nothing in the Treasurys case explains why we should accept that it is necessary to eliminate Bank Mellats business in London in order to achieve the objective of the statute, if the same objective can be sufficiently achieved in the case of comparable banks by requiring them to observe financial sanctions and relevant risk warnings. It may well be that other Iranian banks have not been found to number among their clients entities involved in Irans nuclear and ballistic missile programmes. But it follows from the fact that this is a problem inherent in the conduct of international banking business that they are as likely to do so as Bank Mellat. The direction was irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective. I conclude that that it was unlawful. The Banks procedural grounds 28. I also consider that the Bank is entitled to succeed on the ground that it received no notice of the Treasurys intention to make the direction, and therefore had no opportunity to make representations. 29. The duty to give advance notice and an opportunity to be heard to a person against whom a draconian statutory power is to be exercised is one of the oldest principles of what would now be called public law. In Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180, the Defendant local authority exercised without warning a statutory power to demolish any building erected without complying with certain preconditions laid down by the Act. I apprehend, said Willes J at 190, that a tribunal which is by law invested with power to affect the property of one Her Majestys subjects is bound to give such subject an opportunity of being heard before it proceeds, and that rule is of universal application an founded upon the plainest principles of justice. In R v Secretary of State for the Home Department Ex p Doody [1994] 1 30. AC 531, 560, Lord Mustill, with the agreement of the rest of the Committee of the House of Lords, summarised the case law as follows: My Lords, I think it unnecessary to refer by name or to quote from, any of the often cited authorities in which the courts have explained what is essentially an intuitive judgment. They are far too well known. From them, I derive that (1) where an Act of Parliament confers an administrative power there is a presumption that it will be exercised in a manner which is fair in all the circumstances. (2) The standards of fairness are not immutable. They may change with the passage of time, both in the general and in their application to decisions of a particular type. (3) The principles of fairness are not to be applied by rote identically in every situation. What fairness demands is dependent on the context of the decision, and this is to be taken into account in all its aspects. (4) An essential feature of the context is the statute which creates the discretion, as regards both its language and the shape of the legal and administrative system within which the decision is taken. (5) Fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations on his own behalf either before the decision is taken with a view to producing a favourable result; or after it is taken, with a view to procuring its modification; or both. (6) Since the person affected usually cannot make worthwhile representations without knowing what factors may weigh against his interests fairness will very often require that he is informed of the gist of the case which he has to answer. It follows that, unless the statute deals with the point, the question whether 31. there is a duty of prior consultation cannot be answered in wholly general terms. It depends on the particular circumstances in which each direction is made. Some directions that might be made under Schedule 7 of the Act could not reasonably give rise to an obligation on the Treasurys part to consult the targeted entity, for example because there was a real problem about the implicit or explicit disclosure of secret intelligence or because prior consultation might frustrate the object of the direction by enabling the targeted entity to evade its operation, notably in a case involving money laundering or terrorism. In this case, the Treasury has raised only two practical difficulties about consulting the Bank in advance of the direction. The first was the difficulty raised by Mr Robertson that it would not have been appropriate to have notified Bank Mellat of the Treasury's intention to make the direction contained in the 2009 Order before 12 October 2009, because this would have provided it with the opportunity to rearrange business relationships or transactions with the UK financial sector to ensure (for example) that they were indirect and so not caught by the prohibitions. The judge rejected this, pointing out that the Bank could just as easily do that after the direction as before. That conclusion, which seems inescapable, has not been challenged on appeal. The second practical difficulty was raised by way of submission in the Court of Appeal and dealt with in the judgment of Maurice Kay LJ, who thought that it had some force. This was the supposed practical difficulty of permitting representations in a situation where there is closed material. I have to say that for my part I am not impressed by this difficulty. In justifying the direction in the course of these proceedings, the Treasury disclosed the gist of the closed material including the provision of banking facilities to Novin and Doostan and their alleged provision to Mr Taghizadeh and Mr Esbati. I cannot see why they should have had any greater difficulty in disclosing before the making of the direction the material that they were quite properly required to disclose afterwards. In my opinion, unless the Act expressly or impliedly excluded any relevant 32. duty of consultation, it is obvious that fairness in this case required that Bank Mellat should have had an opportunity to make representations before the direction was made. In the first place, although in point of form directed to other financial institutions in the United Kingdom, this was in fact a targeted measure directed at two specific companies, Bank Mellat and IRISL. It deprived Bank Mellat of the effective use of the goodwill of their English business and of the free disposal of substantial deposits in London. It had, and was intended to have, a serious effect on their business, which might well be irreversible at any rate for a considerable period of time. Secondly, it came into effect almost immediately. The direction was made on a Friday and came into force at 10.30 a.m. on the following Monday. It had effect for up to 28 days before being approved by Parliament. Third, for the reasons which I have given, there were no practical difficulties in the way of an effective consultation exercise. While the courts will not usually require decision makers to consult substantial categories of people liable to be affected by a proposed measure, the number of people to be consulted in this case was just one, Bank Mellat, and possibly also IRISL depending on the circumstances of their case. I cannot agree with the view of Maurice Kay LJ that it might have been difficult to deny the same advance consultation to the generality of financial institutions in the United Kingdom, who were required to cease dealings with Bank Mellat. They were the addressees of the direction, but not its targets. Their interests were not engaged in the same way or to the same extent as Bank Mellats. Fourth, the direction was not based on general policy considerations, but on specific factual allegations of a kind plainly capable of being refuted, being for the most part within the special knowledge of the Bank. For these reasons, I think that consultation was required as a matter of fairness. But the principle which required it is more than a principle of fairness. It is also a principle of good administration. The Treasury made some significant factual mistakes in the course of deciding whether to make the direction, and subsequently in justifying it to Parliament. They believed that Bank Mellat was controlled by the Iranian state, which it was not. They were aware of a number of cases in which Bank Mellat had provided banking services to entities involved in the Iranian weapons programmes, but did not know the circumstances, which became apparent only when the Bank began these proceedings and served their evidence. The quality of the decision making processes at every stage would have been higher if the Treasury had had the opportunity before making the direction to consider the facts which Mitting J ultimately found. In these circumstances, the only ground on which it could be said that the 33. Treasury was not obliged to consult Bank Mellat in advance, was that such a duty, although it would otherwise have arisen at common law in the particular circumstances of this case, was excluded by the Act in cases such as the present one. It was certainly not expressly excluded. But the submission is that it was impliedly excluded on two overlapping grounds: (i) that the statutory right of recourse to the courts after the making of the direction, which is provided by section 63 of the Act, is enough to satisfy any duty of fairness, or at least must have been intended by Parliament to be enough; and (ii) that consultation is not in law required before the making of subordinate legislation, especially when it is subject to the affirmative resolution procedure. Mitting J and the majority of the Court of Appeal rejected the Banks procedural case on both grounds. 34. the courts. 35. The duty of fairness governing the exercise of a statutory power is a limitation on the discretion of the decision maker which is implied into the statute. But the fact that the statute makes some provision for the procedure to be followed before or after the exercise of a statutory power does not of itself impliedly exclude either the duty of fairness in general or the duty of prior consultation in particular, where they would otherwise arise. As Byles J observed in Cooper v Board of Works for the Wandsworth District (1863) 14 CB(NS) 190, 194, the justice of the common law will supply the omission of the legislature. In Lloyd v McMahon 1987] 1 AC 625, 702 3, Lord Bridge of Harwich regarded it as I shall deal first with the implications of the statutory right of recourse to well established that when a statute has conferred on any body the power to make decisions affecting individuals, the courts will not only require the procedure prescribed by the statute to be followed, but will readily imply so much and no more to be introduced by way of additional procedural safeguards as will ensure the attainment of fairness. Like Lord Bingham in R (West) v Parole Board [2005] 1 WLR 350 at para 29, I find it hard to envisage cases in which the maximum expressio unius exclusio alterius could suffice to exclude so basic a right as that of fairness. 36. It does not of course follow that a duty of prior consultation will arise in every case. The basic principle was stated by Lord Reid forty years ago in Wiseman v Borneman [1971] AC 297, 308, in terms which are consistent with the ordinary rules for the construction of statutes and remain good law: Natural justice requires that the procedure before any tribunal which is acting judicially shall be fair in all the circumstances, and I would be sorry to see this fundamental general principle degenerate into a series of hard and fast rules. For a long time the courts have, without objection from Parliament, supplemented procedure laid down in legislation where they have found that to be necessary for this purpose. But before this unusual kind of power is exercised it must be clear that the statutory procedure is insufficient to achieve justice and that to require additional steps would not frustrate the apparent purpose of the legislation. Cf. Lord Morris of Borth y Gest at 309B C. 37. Leaving aside, for a moment, the fact that the direction was required to be made by statutory instrument subject to Parliamentary approval, it is not in my view implicit in section 63 that the right of recourse to the courts is the sole guarantee of fairness. Nor is it implicit that what the common law would otherwise require to achieve fairness is excluded. I say this for three reasons. The first is that section 63 largely reproduces the rights which a person affected by the direction would have anyway. It confers on him the right to apply to the High Court for an adjudication based on the principles of judicial review, and on the court such powers as could be made on judicial review. The only difference which section 63 makes is that permission is not required for such an application. The express provision of a right of recourse to the courts is essentially a peg on which to hang the various procedural provisions in sections 66 72. It would I think be surprising if the mere fact that the right of persons affected to apply for judicial review had been superseded by a statutory application with substantially the same ambit, were to make all the difference to the content of the Treasurys common law duty of fairness. Whatever else Parliament may have intended by enacting section 63, it cannot in my view have intended to reduce the procedural rights of those affected by the Treasurys orders. Second, the statutory right of recourse will not be sufficient to achieve fairness in every case and is certainly not enough to achieve it in cases like this one, falling under Schedule 7, paragraph 13. This is because a direction may take effect, as it did in this case, immediately or almost immediately and, subject to Parliamentary scrutiny, will remain in effect unless and until it is set aside by the Court. An application under section 63 is likely to require evidence on both sides. With the best will in the world it is unlikely to be determined in less than three months and may take considerably longer even without allowing for appeals. In this case, some seven months elapsed before Mitting J gave judgment. This may not matter much in the case of a direction to exercise heightened customer due diligence or to monitor or report. But it matters a great deal when the direction is in the draconian terms permitted by paragraph 13. A direction to financial institutions to cease business with a designated person is apt to achieve serious and immediate damage while it remains in effect, extending well beyond transactions related to nuclear proliferation. Even if it is set aside, the impact on the designated persons goodwill may be substantial and in some cases irreversible. In some cases, where the decision impugned infringed the applicants Convention rights, damages will be recoverable after the event. Claims for damages are, however, far from straightforward, and loss can be difficult to prove to the standard which the courts have traditionally required. Third, the recognition of a duty of prior consultation would not frustrate the purpose of the statutory scheme, nor would it cut across its practical operation. Schedule 7 directions made in circumstances like these are not the kind of directions whose effectiveness depends on the ability to strike without warning. As the judge pointed out, the kind of avoiding action which a designated person might be minded to take could equally be taken after the direction had been made. 38. to be made in subordinate legislation, subject to Parliamentary approval. 39. The Treasury submit that the legislative form of a Schedule 7 direction takes it out of the area in which the courts can imply a duty of fairness or prior consultation. This is self evident in the case of primary legislation. There is not yet a statute into which such a duty of consultation can be implied. Parliament is not in any event required to be fair. Even if a legitimate expectation has been created, the courts cannot, consistently with the constitutional function of Parliament, control the right of a minister, in his capacity as a member of Parliament, to introduce a bill in either house: R (on the application of Wheeler) v Office of the Prime Minister [2008] EWHC 1409 (Admin.) at para 49; R (on the application of UNISON) v Secretary of State for Health [2010] EWHC 2655 (Admin). I turn, therefore, to the implications of the fact that the direction is required 40. The position in relation to secondary legislation is necessarily different, because a statutory instrument is made under powers conferred by statute. These powers are accordingly subject to whatever express or implied limitations or conditions can be derived from the parent Act as a matter of construction. In R v Electricity Commissioners Ex p London Electricity Joint Committee Company (1920) Limited [1924] 1 KB 171, 208, Lord Atkin observed at a very early stage in the development of public law that he knew of no authority which compels me to hold that a proceeding cannot be a judicial proceeding subject to prohibition or certiorari because it is subject to confirmation or approval, even where the approval has to be that of the Houses of Parliament. It has sometimes been suggested that this applies only where the ground of objection to a statutory instrument is that it is wholly outside the power conferred by the Act. This was the view expressed by Lord Jauncey and affirmed by the Inner House in City of Edinburgh District Council v Secretary of State for Scotland 1985 SC 261. He considered that where Parliament had reserved the right to consider the merits (as opposed to the vires) of a statutory instrument, it was not open to the courts to review their rationality or their procedural fairness. 41. I do not think that this distinction is sustainable. In F. Hoffman La Roche and Co v Secretary of State for Trade and Industry [1975] AC 295, the applicants objected to a statutory instrument under the Monopolies and Mergers Act 1965 regulating the prices of their medicines, which had been approved by Parliament under the affirmative resolution procedure. The relevant power was to make orders giving effect to a report of the Monopolies Commission, which the applicants alleged was vitiated by a failure to observe the rules of natural justice. The issue was about the availability of an injunction enforcing the order in circumstances where the Secretary of State was not prepared to give an undertaking in damages. Moreover, it is fair to say that the applicants case was that the Commissions report was invalid for procedural reasons, and therefore that there was no report on which the Secretary of State could found any power to make the order. But Lord Diplock considered the status of the order generally, at 365: In constitutional law a clear distinction can be drawn between an Act of Parliament and subordinate legislation, even though the latter is contained in an order made by statutory instrument approved by resolutions of both Houses of Parliament. Despite this indication that the majority of members of both Houses of the contemporary Parliament regard the order as being for the common weal, I entertain no doubt that the courts have jurisdiction to declare it to be invalid if they are satisfied that in making it the Minister who did so acted outwith the legislative powers conferred upon him by the previous Act of Parliament under which the order is ultra vires by reason of its contents (patent defects) or by reason of defects in the procedure followed prior to its being made (latent defects). 42. In R (Asif Javed) v Secretary of State for the Home Department [2002] QB 129, the Court of Appeal held that it was entitled to review the rationality of a ministers exercise of a statutory power to designate Pakistan by order as a country in which there was in general no serious risk of persecution, notwithstanding that the order had been laid before Parliament in draft under the affirmative resolution procedure and the position in Pakistan to some extent discussed. Lord Phillips of Worth Matravers MR, echoing the language of Atkin LJ, said at para 51 that there was no principle of law that circumscribes the extent to which the court can review an order that has been approved by both Houses of Parliament under the affirmative resolution procedure. The order was declared to be unlawful. 43. These statements seem to me to be correct in principle. If a statutory power to make delegated legislation is subject to limitations, the question whether those limitations have been observed goes to the lawfulness of the exercise of the power. It is therefore reviewable by the courts. In principle, this applies as much to an implied limitation as to an express one, and as much to a limitation on the manner in which the power may be exercised as it does to a limitation on the matters which are within the scope of the power. The reason why this does not intrude upon the constitutional primacy of Parliament is not simply that delegated legislation, however approved, does not have the status of primary legislation. It is that a statutory instrument is the instrument of the minister (or other decision maker) who is empowered by the enabling Act to make it. The fact that it requires the approval of Parliament does not alter that. The focus of the court is therefore on his decision to make it, and not on Parliaments decision to approve it. If that is true (as I think it is) as a matter of general principle, it is particularly true of the statutory judicial review for which section 63 of the Counter Terrorism Act provides. Under section 63(2) the application is to set aside a decision of the Treasury. The relevant decision of the Treasury is the decision under Schedule 7, paragraph 1 to give a direction. If the court sets aside that decision, it is then required by section 63(4) to quash the resulting order. 44. Where the courts have declined to review the procedural fairness of statutory orders on the ground that they have been subject to Parliamentary scrutiny, they have not generally done so on the ground that Parliamentary scrutiny excludes the duty of fairness in general or the duty of prior consultation in particular. These decisions have generally been justified by reference to three closely related concepts which for my part I would not wish to challenge or undermine in any way. First, when a statutory instrument has been reviewed by Parliament, respect for Parliaments constitutional function calls for considerable caution before the courts will hold it to be unlawful on some ground (such as irrationality) which is within the ambit of Parliaments review. This applies with special force to legislative instruments founded on considerations of general policy. Second, there is a very significant difference between statutory instruments which alter or supplement the operation of the Act generally, and those which are targeted at particular persons. The courts originally developed the implied duty to consult those affected by the exercise of statutory powers and receive their representations as a tool for limiting the arbitrary exercise of statutory powers for oppressive objects, normally involving the invasion of the property or personal rights of identifiable persons. Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180 was a case of this kind, and when Willes J (at 190) described the duty to give the subject an opportunity to be heard as a rule of universal application, he was clearly thinking of this kind of case. Otherwise the proposition would be far too wide. While the principle is not necessarily confined to such cases, they remain the core of it. By comparison, the courts have been reluctant to impose a duty of fairness or consultation on general legislative orders which impact on the population at large or substantial parts of it, in the absence of a legitimate expectation, generally based on a promise or established practice. Third, a court may conclude in the case of some statutory powers that Parliamentary review was enough to satisfy the requirement of fairness, or that in the circumstances Parliament must have intended that it should be. It is particularly likely to take this view where the measure impugned is a general legislative measure. The reason is that when we speak of a duty of fairness, we are speaking not of the substantive fairness of the measure itself but of the fairness of the procedure by which it was adopted. Parliamentary scrutiny of general legislative measures made by ministers under statutory powers will often be enough to satisfy any requirement of procedural fairness. The same does not necessarily apply to targeted measures against individuals. 45. These considerations lie behind the judgments in the Court of Appeal in R on the application of BAPIO Action Limited v Secretary of State for the Home Department [2007] EWCA Civ. 1139, which both Mitting J and Maurice Kay LJ in the Court of Appeal placed at the forefront of their reasoning. BAPIO was a judicial review of the decision of the Home Secretary to amend the Immigration Rules without prior consultation so as to abolish permit free training for doctors without a right of abode in the United Kingdom. There were transitional provisions for those who had already begun their training under the old rules, which protected almost all those who might have claimed to have a legitimate expectation based on the old rules. Sedley LJ, who delivered the leading judgment, began by referring to a dictum of Lord Scarman in Nottinghamshire County Council v Secretary of State for the Environment [1986] AC 240. This was a judicial review of the Secretary of States assessment of the proper level of expenditure by a local authority. It was a classic issue of general policy, involving decisions about the use of resources and the level of taxation, potentially affecting every householder in Britain, and quite obviously exceptionally difficult to challenge on rationality grounds. Lord Scarman said, at 250, in a passage that is not always quoted in full: To sum it up, the levels of public expenditure and the incidence and distribution of taxation are matters for Parliament, and, within Parliament, especially for the House of Commons. If a statute, as in this case, requires the House of Commons to approve a ministers decision before he can lawfully enforce it, and if the action proposed complies with the terms of the statute. , it is not for the judges to say that the action has such unreasonable consequences that the guidance upon which the action is based and of which the House of Commons had notice was perverse and must be set aside. For that is a question of policy for the minister and the Commons, unless there has been bad faith or misconduct by the minister. Where Parliament has legislated that the action to be taken by the Secretary of State must, before it is taken, be approved by the House of Commons, it is no part of the judges' role to declare that the action proposed is unfair, unless it constitutes an abuse of power in the sense which I have explained. Sedley LJ rightly pointed out in BAPIO that this reasoning was predicated on the inapt nature of the subject matter public finance for judicial scrutiny, not upon a quasi immunity from judicial review of delegated legislation or rules which have been laid before Parliament. He pointed out that there was no such immunity, and that the Immigration Rules would be reviewable for want of power to make them or for irrationality. Turning to the question whether they were reviewable for procedural unfairness he said this: The real obstacle which I think stands in the appellants' way is the difficulty of propounding a principle which reconciles fairness to an adversely affected class with the principles of public administration that are also part of the common law. These are not based on administrative convenience or potential embarrassment. They arise from the separation of powers and the entitlement of executive government to formulate and reformulate policy, albeit subject to such constraints as the law places upon the process and the product. One set of such constraints in modern public law are the doctrines of legitimate expectation, both procedural and substantive. I agree with this in the cases to which Sedley LJ was referring, namely those in which delegated legislation was an expression of legislative policy. I think that it represents a more nuanced and accurate statement of the law than the more hard edged formulations of Maurice Kay LJ and Rimer LJ in the same case. 46. The present case, however, is entirely different. In point of form, a statutory instrument embodying a Schedule 7 direction is legislation. But, as Megarry J observed in Bates v Lord Hailsham of St. Marylebone [1972] 1 WLR 1373, the fact that an order takes the form of a statutory instrument is not decisive: what is important is not its form but its nature, which is plainly legislative (page 1378). The Treasury direction designating Bank Mellat under Schedule 7, paragraph 13, was not legislative in nature. There is a difference between the sovereigns legislation and his commands. The one speaks generally and impersonally, the other specifically and to nominate persons. As David Hume pointed out in his Treatise of Human Nature (Book III, Part ii, sec 2 6), all civil laws are general, and regard alone some essential circumstances of the case, without taking into consideration the characters, situations and connexions of the person concerned. The Treasury direction in this case was a command. The relevant legislation and the whole legislative policy on which it was based, were contained in the Act itself. The direction, although made by statutory instrument, involved the application of a discretionary legislative power to Bank Mellat and IRISL and nothing else. It was as good an example as one could find of a measure targeted against identifiable individuals. Moreover, as I have pointed out in dealing with the Banks substantive complaints, it singled out Bank Mellat from other Iranian banks on account of the Banks conduct or, in Humes words, its characteristics, situations and connexions. It directly affected the Banks property and business assets. If the direction had not been required to be made by statutory instrument, there would have been every reason in the absence of any practical difficulties to say that the Treasury had a duty to give prior notice to the Bank and to hear what they had to say. In a case like this, is the position any different because a statutory instrument was involved? I think not. That was simply the form which the specific application of this particular legislation was required to take. 47. With a measure such as this one, targeted against designated persons, it is not possible to say that procedural fairness is sufficiently guaranteed by Parliamentary scrutiny or to suppose that Parliament in enacting the Counter Terrorism Act ever thought it was. The justification for the direction depends on the particular character and conduct of the designated person, about which Parliament cannot have the same plenitude of information as it is assumed to have about matters of general legislative policy. Many of the essential facts about the particular target will be peculiarly within the designated persons knowledge, and even those known to the Treasury will not necessarily be publicly disclosed. 48. In some cases, the procedure might be regarded as fair even in the case of a targeted measure, and even if the target did not have an opportunity to be heard before the order was made, if he was in a position to make effective representations in the course of the passage of the affirmative resolutions through Parliament. But this was hardly a realistic alternative to prior consultation in the present case. In the first place, the Bank was not in a position to defend itself against the Treasurys allegation that they had had dealings with entities involved in the Iranian weapons programmes until the Treasury identified the entities that they were referring to. They did not identify them in the course of justifying the order in Parliament. They were first identified in correspondence with the Banks solicitors on 3 December 2009, after the present proceedings had been begun and a month after the Parliamentary processes were complete. Second, unlike other statutory instruments made under the Counter Terrorism Act, an order giving effect to a Schedule 7 direction is not laid before Parliament in draft before taking effect. It may and in this case did take effect upon being made and was capable of continuing in effect for up to 28 days in advance of an affirmative resolution. This is quite long enough to achieve substantial damage to the interests of the designated person. Third, Schedule 7, paragraph 14(5), expressly excludes the application of the hybrid instrument procedure to such an order. The hybrid instrument procedure is a procedure under the standing orders of the House of Lords which applies to certain instruments directly affecting private or local interests in a manner different from other persons or interests in the same category. Its effect is to allow the House to receive petitions from parties affected. The result is to exclude any right which a designated person might otherwise have had to make representations by petition as part of the formal Parliamentary process. In my view, these factors underline the value and the importance in the interests of fairness of the Treasury giving the Bank an opportunity to be heard before the order was made. 49. I conclude that the Treasurys direction designating Bank Mellat was unlawful for want of prior notice to them or any procedure enabling them to be heard in advance of the order being made. This makes it unnecessary to consider the more difficult question whether a duty of prior consultation arose by virtue of Article 6 of the European Convention on Human Rights or Article 1 of the First Protocol. Conclusion I would allow the appeal, set aside the decision of the Treasury to make the 50. direction and quash the order giving effect to it. LORD REED (dissenting) Introduction 51. These proceedings are brought by Bank Mellat under section 63(2) of the Counter Terrorism Act 2008 (the 2008 Act). In terms of section 63(1)(c), the section applies to any decision of the Treasury in connection with the exercise of any of their functions under Schedule 7 to the 2008 Act. Section 63(3) provides that in determining whether the decision should be set aside the court is to apply the principles applicable on an application for judicial review. In terms of section 63(5), if the court sets aside the decision of the Treasury to make an order under Schedule 7, it must quash the order. 52. Bank Mellat seeks to have a decision of the Treasury to make an order under Schedule 7 set aside, and the order quashed. Bank Mellat relies on a number of common law grounds of judicial review, including procedural unfairness and unreasonableness, and maintains that the order is also ultra vires since it fails to comply with paragraph 9(6) of Schedule 7, which stipulates that the requirements imposed by a direction under that schedule must be proportionate. Bank Mellat further contends that the making of the order was in any event unlawful by virtue of section 6 of the Human Rights Act 1998. The latter contention is based on the argument that there has been a breach of the procedural standards imposed by article 6 of the Convention and article 1 of Protocol No 1 (A1P1), and in addition that the order constitutes a disproportionate interference with Bank Mellats enjoyment of its possessions, contrary to A1P1. Procedural fairness 53. In relation to the issues of procedural fairness arising under the common law, there is much in Lord Sumptions judgment with which I respectfully agree. In particular, I agree that the fact that the decision challenged in these proceedings concerned the giving of a direction in the form of a statutory instrument, which had to be approved by Parliament within 28 days in order to remain in force, does not in itself necessarily exclude the application of common law standards of procedural fairness. I also agree that there is no fundamental distinction in principle between the jurisdiction of the court to review the legality of a statutory instrument on procedural and other grounds: see in particular F Hoffmann La Roche & Co AG v Secretary of State for Trade and Industry [1975] AC 295, 365 per Lord Diplock. 54. I also agree with Lord Sumption that the reason why a statutory instrument lies within the scope of the courts supervisory jurisdiction, whereas an Act of Parliament does not, is that the making of a statutory instrument is an act of the executive, exercising limited powers. This point was explained by Sir John Donaldson MR in R v Her Majestys Treasury, Ex p Smedley [1985] 1 QB 657, 666 667: Furthermore, whilst Parliament is entirely independent of the courts in its freedom to enact whatever legislation it sees fit, legislation by Order in Council, statutory instrument or other subordinate means is in a quite different category, not being Parliamentary legislation. This subordinate legislation is subject to some degree of judicial control in the sense that it is within the province and authority of the courts to hold that particular examples are not authorised by statute, or, as the case may be by the common law, and so are without legal force or effect. A similar explanation was given by Lord Phillips of Worth Matravers MR in R (Asif Javed) v Secretary of State for the Home Department [2001] EWCA Civ 789; [2002] QB 129, para 33. Since the executive is acting under powers conferred by Parliament when it makes a statutory instrument, it can only act within the scope of those powers as determined by the courts. The subject matter of the courts supervision is the lawfulness of the decision taken by the executive: there is no question of judicial supervision of the exercise by Parliament of its power to approve the instrument or to withhold its approval. That distinction is reflected in section 63 of the 2008 Act, which, as I have mentioned, permits an application to be made to set aside the decision of the Treasury. If the court sets aside that decision, it then quashes the resulting order, but it does not review anything done by Parliament. 55. Where I part company with Lord Sumption and the majority of the court is in relation to the application of the common law principles of procedural fairness in the context of Schedule 7 to the 2008 Act. In relation to that matter, I agree with the judgment of Lord Hope, and wish to make only a few additional observations in view of the implications of the contrary approach. I also agree with Lord Hopes judgment in relation to the issues of procedural fairness arising under the Human Rights Act. 56. Lord Hope has described the provisions of Part 4 of Schedule 7 to the 2008 Act. Parliament has laid down in those provisions a detailed scheme for the making of orders such as the order with which this appeal is concerned. That scheme contains no provision entitling the person designated in the order to be given a hearing before the order is made by the Treasury or approved by Parliament. The absence of such provision does not in itself automatically entail that Parliament intended that there should be no such entitlement, but in the context of such detailed procedural provisions it is a pointer towards such an intention: if Parliament had intended that there should be consultation prior to the making of an order, one would expect that also to have been specified in the provisions. The inference that Parliament did not intend that there should be such an entitlement derives support from a number of other considerations. 57. First, it is readily understandable that no such entitlement should be provided, given the subject matter and the context in which the decision making function is exercised. Part 1 of Schedule 7 lays down in paragraph 1 the conditions which must be met in relation to a country before the Treasury may give a direction under that schedule. Put shortly, they are that the Financial Action Task Force (FATF: an inter governmental body founded by the G7 countries which sets standards for controls to prevent money laundering and the financing of terrorism) has advised that measures should be taken in relation to the country because of the risk of terrorist financing or money laundering activities being carried on there or by its government or persons resident or incorporated there (paragraph 1(2)), or the Treasury reasonably believe that there is such a risk (paragraph 1(3)), or the Treasury reasonably believe that the development or production of nuclear, radiological, biological or chemical weapons in the country poses a significant risk to the national interests of the United Kingdom (paragraph 1(4)). In the present case, it is paragraph 1(4) which is relevant. Given the nature of those conditions, prior consultation with the persons who may be affected by a direction, including for example the persons believed to be involved in terrorism, is liable to be inappropriate or impossible: it may, for example, be excluded by a need for action to be taken urgently in the national interest. That factor is reflected in the provision for the order to have effect in advance of Parliamentary approval: paragraph 14(2)(b). 58. The scope for meaningful representations by the designated person is also liable to be limited by the impossibility of disclosing, other than in broad outline, the basis upon which the conditions laid down in paragraphs 1(3) or (4) are considered to be satisfied. That factor is reflected in the provisions of sections 66 to 68 in respect of proceedings under section 63, which allow for closed material procedure. Parliament has made no provision for any analogous procedure before the order has been made or approved. In some circumstances, prior consultation could in addition reduce the 59. practical effectiveness of the requirements imposed under paragraph 13 of Schedule 7, by affording the designated person an opportunity to take avoidance action. This risk is discounted by Lord Sumption, as it was by Mitting J, but I am less confident that it can be entirely disregarded. Part of Bank Mellats complaint in the present case, for example, is that the effect of the order was to freeze accounts held by it with its UK subsidiary, in which assets of 183m were deposited. Court orders which have the effect of freezing assets are generally granted on an ex parte basis, precisely because they are liable to be ineffective if prior notice is given. 60. Lord Sumptions response to these points is that whether there is a duty of consultation depends on the particular circumstances in which a direction is made. I can see, in principle, that since the requirements of fairness vary from case to case, the need for a particular procedural step can in principle be assessed on a case by case basis. The problem with applying that approach to a statutory scheme however is that it can make it difficult in practice for decision makers (and individuals affected by decisions) to predict what is required by way of procedure in particular cases. In a context in which vital national interests are engaged, such as that in which the powers under Schedule 7 have to be exercised, it is of great importance that the Treasury should be in no doubt as to what is required. Lord Sumption addresses that point by distinguishing between targeted and other measures. That distinction draws attention to a factor of undoubted importance, but it is not the only factor relevant to an assessment of what fairness requires: as Lord Sumption acknowledges, other matters, such as the risk of disclosing intelligence material or jeopardising the effectiveness of the measure, are also relevant. I do not consider that Parliament is likely to have intended that the Treasury should have to undertake such an uncertain assessment of what fairness might require in each individual case before they could act, particularly when it would do so at the risk of judicial review (prior to the making of the order) if their conclusion, for example as to the extent of necessary disclosure, were to be challenged. In practice, that approach would leave the Treasury in an impossible position. As Taylor LJ observed in R v Birmingham City Council, Ex p Ferrero Ltd [1993] 1 All ER 530, 542, when rejecting a similar argument in relation to consumer protection legislation, if the supposed duty to consult were to depend upon the facts and urgency of each case, enforcement authorities would be faced with a serious dilemma. 61. The direction in paragraph 14(5) that the order is not to proceed in Parliament as a hybrid instrument seems to me, in agreement with Lord Hope, to be a further indication of Parliaments intention, since, as Lord Hope has explained, the practical effect of that direction is to exclude the potential application of procedures under which the designated person can participate in the Parliamentary proceedings. I appreciate that the Parliamentary procedure is distinct from the antecedent procedure under which the order is made. It nevertheless appears to me to have some bearing on the point in issue, in that, if it was intended that the designated person should be entitled to participate in the procedure leading to the making of the order, it would make little sense to enact a provision specifically preventing him from participating in the procedure leading to its approval by Parliament. 62. Finally, the provisions of sections 63 and 65 to 68 create a statutory procedure under which any person affected by a decision taken by the Treasury under Schedule 7 is entitled as of right to apply to the courts to have that decision set aside. Those provisions give such persons greater rights than those enjoyed by the ordinary applicant for judicial review (except in Scotland), insofar as the ordinary applicant has to apply for permission to make such an application. The provisions indicate that Parliament intended to ensure judicial protection of the interests of such persons after the decision had been made. In these circumstances, it appears to me that Parliament has by implication 63. excluded any duty to consult the designated person or to allow an opportunity for representations to be submitted before the order is made. There is therefore no room for the application of common law requirements of procedural fairness. No doubt, as Lord Sumption points out, a procedure involving consultation could contribute to good administration by making additional information available to the Treasury. It is however apparent that Parliament has given priority to other competing considerations. It is not the function of the courts to re write the scheme intended by Parliament. The substantive grounds of challenge I also have the misfortune to differ from the majority of the court in relation 64. to the substantive grounds on which the decision is challenged. I set out the reasons for my dissent more fully than I might otherwise have done in view of the importance of the issues, and the fact that my conclusion on this aspect of the case was also reached by all the judges of the lower courts. The relevant legal principles I am largely in agreement with Lord Sumption as to the relevant legal 65. principles: other than in relation to the ratio of A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68, and the issue discussed in paras 123 124, we differ only in relation to the application of the law to the facts. I wish first however to consider two issues which appear to me to be important and which affect the structure of the analysis to be carried out. 66. The first issue, which caused difficulty in the courts below and remains in dispute before this court, is what the principle of proportionality involves: in particular, whether it is aptly expressed in the well known dictum of Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Land and Housing [1999] 1 AC 69, 80. It is evident from the difficulties experienced by the lower courts in the present case, and from the differing approaches which they adopted, that some clarification is desirable. 67. The second issue concerns the meaning of paragraph 9(6) of Schedule 7 to the 2008 Act. This issue also caused difficulty in the courts below and was in dispute before this court. The provision stipulates that the requirements imposed by a direction under Schedule 7 must be proportionate having regard to the advice received from the FATF under paragraph 1(2) of Schedule 7 or, as the case may be, the risk mentioned in paragraph 1(3) or (4) to the national interests of the United Kingdom. The question is whether the requirement imposed by paragraph 9(6) is the same as the principle of proportionality as understood in the context of Convention rights. The latter principle is of course relevant to the question whether the decision of the Treasury was incompatible with A1P1 and therefore unlawful by virtue of section 6(1) of the Human Rights Act. The concept of proportionality 68. The idea that proportionality is an aspect of justice can be traced back via Aquinas to the Nicomachean Ethics and beyond. The development of the concept in modern times as a standard in public law derives from the Enlightenment, when the relationship between citizens and their rulers came to be considered in a new way, reflected in the concepts of the social contract and of natural rights. As Blackstone wrote in his Commentaries on the Laws of England, 9th ed (1783), Vol 1, p 125, the concept of civil liberty comprises natural liberty so far restrained by human laws (and not farther) as is necessary and expedient for the general advantage of the public. The idea that the state should limit natural rights only to the minimum extent necessary developed in Germany into a public law standard known as Verhltnismigkeit, or proportionality. From its origins in German administrative law, where it forms the basis of a rigorously structured analysis of the validity of legislative and administrative acts, the concept of proportionality came to be adopted in the case law of the European Court of Justice and the European Court of Human Rights. From the latter, it migrated to Canada, where it has received a particularly careful and influential analysis, and from Canada it spread to a number of other common law jurisdictions. 69. Proportionality has become one of the general principles of EU law, and appears in article 5(4) of the Treaty on European Union (TEU). The test is expressed in more compressed and general terms than in German or Canadian law, and the relevant jurisprudence is not always clear, at least to a reader from a common law tradition. In R v Ministry of Agriculture, Fisheries and Food, ex p Fedesa and others (Case C 331/88) [1990] ECR I 4023, the European Court of Justice stated (para 13): The Court has consistently held that the principle of proportionality is one of the general principles of Community law. By virtue of that principle, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures are appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question; when there is a choice between several appropriate measures recourse must be had to the least onerous, and the disadvantages caused must not be disproportionate to the aims pursued. The intensity with which the test is applied that is to say, the degree of weight or respect given to the assessment of the primary decision maker depends upon the context. 70. As I have mentioned, proportionality is also a concept applied by the European Court of Human Rights. As the court has often stated, inherent in the whole of the Convention is a search for a fair balance between the demands of the general interest of the community and the requirements of the protection of the individuals fundamental rights (see eg Sporrong and Lnnroth v Sweden (1982) 5 EHRR 35, para 69). The court has described its approach to striking such a balance in different ways in different contexts, and in practice often approaches the matter in a relatively broad brush way. In cases concerned with A1P1, for example, the court has often asked whether the person concerned had to bear an individual and excessive burden (see eg James v United Kingdom (1986) 8 EHRR 123, para 50). The intensity of review varies considerably according to the right in issue and the context in which the question arises. Unsurprisingly, given that it is an international court, its approach to proportionality does not correspond precisely to the various approaches adopted in contracting states. 71. An assessment of proportionality inevitably involves a value judgment at the stage at which a balance has to be struck between the importance of the objective pursued and the value of the right intruded upon. The principle does not however entitle the courts simply to substitute their own assessment for that of the decision maker. As I have noted, the intensity of review under EU law and the Convention varies according to the nature of the right at stake and the context in which the interference occurs. Those are not however the only relevant factors. One important factor in relation to the Convention is that the Strasbourg court recognises that it may be less well placed than a national court to decide whether an appropriate balance has been struck in the particular national context. For that reason, in the Convention case law the principle of proportionality is indissolubly linked to the concept of the margin of appreciation. That concept does not apply in the same way at the national level, where the degree of restraint practised by courts in applying the principle of proportionality, and the extent to which they will respect the judgment of the primary decision maker, will depend upon the context, and will in part reflect national traditions and institutional culture. For these reasons, the approach adopted to proportionality at the national level cannot simply mirror that of the Strasbourg court. 72. The approach to proportionality adopted in our domestic case law under the Human Rights Act has not generally mirrored that of the Strasbourg court. In accordance with the analytical approach to legal reasoning characteristic of the common law, a more clearly structured approach has generally been adopted, derived from case law under Commonwealth constitutions and Bills of Rights, including in particular the Canadian Charter of Fundamental Rights and Freedoms of 1982. The three limb test set out by Lord Clyde in De Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing [1999] 1 AC 69, 80 has been influential: whether: (i) the legislative objective is sufficiently important to justify limiting a fundamental right; (ii) the measures designed to meet the legislative objective are rationally connected to it; and (iii) the means used to impair the right or freedom are no more than is necessary to accomplish the objective. De Freitas was a Privy Council case concerned with fundamental rights under the constitution of Antigua and Barbuda, and the dictum drew on South African, Canadian and Zimbabwean authority. The three criteria have however an affinity to those formulated by the Strasbourg court in cases concerned with the requirement under articles 8 to 11 that an interference with the protected right should be necessary in a democratic society (eg Jersild v Denmark (1994) Publications of the ECtHR Series A No 298, para 31), provided the third limb of the test is understood as permitting the primary decision maker an area within which its judgment will be respected. 73. The De Freitas formulation has been applied by the House of Lords and the Supreme Court as a test of proportionality in a number of cases under the Human Rights Act. It was however observed in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 19 that the formulation was derived from the judgment of Dickson CJ in R v Oakes [1986] 1 SCR 103, and that a further element mentioned in that judgment was the need to balance the interests of society with those of individuals and groups. That, it was said, was an aspect which should never be overlooked or discounted. That this aspect constituted a fourth criterion was noted by Lord Wilson, with whom Lord Phillips and Lord Clarke agreed, in R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45. 74. The judgment of Dickson CJ in Oakes provides the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. Its attraction as a heuristic tool is that, by breaking down an assessment of proportionality into distinct elements, it can clarify different aspects of such an assessment, and make value judgments more explicit. The approach adopted in Oakes can be summarised by saying that it is necessary to determine (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right, (2) whether the measure is rationally connected to the objective, (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (4) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter. The first three of these are the criteria listed by Lord Clyde in De Freitas, and the fourth reflects the additional observation made in Huang. I have formulated the fourth criterion in greater detail than Lord Sumption, but there is no difference of substance. In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure. 75. In relation to the third of these criteria, Dickson CJ made clear in R v Edwards Books and Art Ltd [1986] 2 SCR 713, 781 782 that the limitation of the protected right must be one that it was reasonable for the legislature to impose, and that the courts were not called upon to substitute judicial opinions for legislative ones as to the place at which to draw a precise line. This approach is unavoidable, if there is to be any real prospect of a limitation on rights being justified: as Blackmun J once observed, a judge would be unimaginative indeed if he could not come up with something a little less drastic or a little less restrictive in almost any situation, and thereby enable himself to vote to strike legislation down (Illinois Elections Bd v Socialist Workers Party (1979) 440 US 173, 188 189); especially, one might add, if he is unaware of the relevant practicalities and indifferent to considerations of cost. To allow the legislature a margin of appreciation is also essential if a federal system such as that of Canada, or a devolved system such as that of the United Kingdom, is to work, since a strict application of a least restrictive means test would allow only one legislative response to an objective that involved limiting a protected right. In relation to the fourth criterion, there is a meaningful distinction to be 76. drawn (as was explained by McLachlin CJ in Alberta v Hutterian Brethren of Wilson Colony [2009] 2 SCR 567, para 76) between the question whether a particular objective is in principle sufficiently important to justify limiting a particular right (step one), and the question whether, having determined that no less drastic means of achieving the objective are available, the impact of the rights infringement is disproportionate to the likely benefits of the impugned measure (step four). Paragraph 9(6) of Schedule 7 77. A direction under Schedule 7 may only be given to a credit or financial institution that is a United Kingdom person or is acting in the course of a business carried on by it in the United Kingdom: paragraphs 3 and 4. The effect of the direction is to impose requirements upon such an institution or institutions. Under paragraph 9(1), the requirements may apply in relation to transactions or business relationships with (a) a person carrying on business in the country [in respect of which the conditions mentioned in paragraph 1 are satisfied]; (b) the government of the country; (c) a person resident or incorporated in the country. Under paragraph 9(2), the requirements may be imposed in relation to (a) a particular person within sub paragraph (1) [known as a designated person: paragraph 9(3)], (b) any description of persons within that sub paragraph, or (c) all persons within that sub paragraph. Under paragraph 9(4), different types of requirement may be imposed upon the institution or institutions: enhanced customer due diligence in relation to transactions or business relationships with a designated person, ongoing monitoring of such relationships, systematic reporting in respect of such transactions or relationships, or limiting or ceasing such transactions or relationships. Under paragraph 9(5), a direction may make different provision in relation to different descriptions of designated person and in relation to different descriptions of transaction or relationship. It is in that context that paragraph 9(6) provides: The requirements imposed by a direction must be proportionate having regard to the advice mentioned in paragraph 1(2) or, as the case may be, the risk mentioned in paragraph 1(3) or (4) to the national interests of the United Kingdom. In the present case, Mitting J proceeded on the basis that the word 78. proportionate was used in paragraph 9(6) in the sense in which it is used in Strasbourg and Luxembourg. He formed that view on the basis that proportionality had been introduced into English law mainly via Luxembourg and Strasbourg, and the 2008 Act would have been intended to be compliant with Convention rights. The Court of Appeal proceeded on the same basis. Lord Sumption proceeds, as I understand his judgment, on the basis that paragraph 9(6) requires there to be a relationship between the requirements imposed by the direction and the risk which justifies the making of the direction which is rational and proportionate, the latter term importing the test of proportionality set out in De Freitas, as subsequently developed in Huang. I agree with that interpretation, but think it worth spending a moment to explain why. 79. Paragraph 9(6) does not appear to me to be concerned with either EU law or the Convention. There is no necessity for Parliament to have replicated the requirements of EU law in so far as they might be relevant, bearing in mind that the power to give a direction is not exercisable in relation to an EEA state: paragraph 1(5). To the extent that the requirements of a direction might interfere with the exercise of a freedom protected by EU law, the EU rights of the person affected would in any event be directly effective. Nor is there any reason for Parliament to have singled out and replicated the proportionality element of the test of compatibility with Convention rights. That element would in any event apply along with the other elements of the test, in the event that a direction interfered with Convention rights, by virtue of the Human Rights Act. 80. As Lord Sumption has explained, paragraph 9(6) appears from its terms to be concerned with the relationship between the requirements imposed by a direction, on the one hand, and the risk to the national interests of the United Kingdom, on the other hand. The issue is whether the requirements are proportionate to the risk. That is consistent with the context in which the provision appears: the remainder of paragraph 9 sets out the various types of requirement which can be imposed upon the person to whom a direction is given, some more onerous than others. The focus of paragraph 9(6) is therefore not upon the relationship between the requirements and their effect upon the designated persons Convention rights. So, in the present case, the central question arising under paragraph 9(6) is whether the requirements imposed on the United Kingdom financial sector are proportionate having regard to the risk posed to the United Kingdoms national interests by nuclear proliferation in Iran. 81. If there were otherwise any doubt about the problem which paragraph 9(6) was intended to address, the Parliamentary history appears to me to resolve it. When the provisions in Schedule 7 were introduced, at Report Stage in the House of Lords, there was no provision in the form of paragraph 9(6). Concern was expressed about the financial cost of compliance with requirements which would be incurred by United Kingdom businesses to which directions were given (Hansard (HL Debates), 11 November 2008, col 585). The Financial Secretary to the Treasury responded to that concern at the end of the debate by stating that Ministers would seek to balance the need to take effective action against the potential impact on United Kingdom business, and gave an undertaking that the Government would table an amendment at Third Reading to include a provision giving effect to that approach (col 593). Paragraph 9(6) was subsequently tabled in accordance with that undertaking (Hansard (HL Debates), 17 November 2008, col 933). The potential problem that paragraph 9(6) was intended to guard against therefore had nothing to do with European law. 82. In stipulating that the requirements must be proportionate having regard to the risk, paragraph 9(6) reflects a principle which has roots in the common law: there are a number of cases where administrative acts of an oppressive or penal character have been quashed as being disproportionate, a well known example being R v Barnsley Metropolitan Borough Council, Ex p Hook [1976] 1 WLR 1052. In the context of legislation enacted in 2008, however, it seems to me that Parliament can be taken to have been aware of the development of a more structured approach to proportionality by United Kingdom courts, in particular following De Freitas, and to have intended that that approach should be applied. I would therefore interpret paragraph 9(6) as stipulating that the requirements must be proportionate to the risk in the sense that they meet the second, third and fourth criteria listed in para 74 (it being implicit in the legislation itself that the first criterion is met). Applying the proportionality test 83. There is no doubt that the objective of the order to reduce access by entities involved in Irans nuclear weapons programme to the UK financial sector, and thereby inhibit the development of nuclear weapons by Iran and the consequent risk to the national interests of this country is sufficiently important to justify an interference with Bank Mellats enjoyment of its possessions. The question under paragraph 9(6) of Schedule 7, and under the Human Rights Act, is whether the remaining three criteria of proportionality are satisfied. Lord Sumption identifies the central issue as being whether the singling out of Bank Mellat has been justified, and considers that issue in the context of the second and, more briefly, the third and fourth criteria: whether the measure is rationally connected to its objective, whether a less intrusive measure would have been equally effective, and whether the measure is proportionate having regard to its effects upon Bank Mellats rights. I shall proceed on the same basis. Before considering these issues, it may however be helpful to recall some aspects of the relevant background. The background 84. On 23 December 2006 the UN Security Council adopted Resolution 1737, which imposed a range of sanctions targeted at Irans nuclear and ballistic missile programmes. These included, in paragraph 12, a requirement that all States should freeze the funds owned or controlled by designated persons and entities and of other persons and entities subsequently designated as being involved in Irans nuclear or ballistic missile activities, and ensure that funds and financial assets were prevented from being made available by persons or entities within their territories to or for the benefit of those persons or entities. The UK gave effect to the resolution by the Iran (Financial Sanctions) Order 2007 (SI 2007/281) and directions made under that order. 85. On 24 March 2007 the Security Council adopted Resolution 1747, which designated Novin Energy Company (Novin), Bank Sepah and its subsidiary Bank Sepah International plc as such entities. The resolution stated in particular that Novin operated within the Atomic Energy Organisation of Iran (AEOI) and had transferred funds on its behalf to entities associated with Irans nuclear programme. Bank Sepah and Bank Sepah International were said to provide support for Irans Aerospace Industries Organisation (AIO) and its subordinates, two of which had been designated under Resolution 1737. 86. On 19 April 2007 the EC Council adopted Regulation 423/2007/EC (OJ L 103/1) concerning restrictive measures against Iran. Article 7(1) required all funds and economic resources held or controlled by persons designated under Resolution 1737 to be frozen. Those persons were listed in Annex IV. Article 7(2) imposed a similar requirement in respect of persons listed in Annex V to the regulation. The regulation was amended the following day, by Regulation 441/2007/EC (OJ L 104/28) to add a number of entities, including Novin, Bank Sepah and Bank Sepah International, to those listed in Annex IV. 87. On 25 October 2007 the assets of Bank Mellat and its subsidiaries in the United States were frozen, and US persons were prohibited from engaging in transactions with them, as the result of a designation by the US Treasury Departments Office of Foreign Assets Control. The designation was made on the basis that Bank Mellat provided banking services in support of Irans nuclear programme. 88. On 3 March 2008 the Security Council adopted Resolution 1803, paragraph 10 of which called upon all states to exercise vigilance over the activities of financial institutions in their territories with banks domiciled in Iran, and in particular with Bank Melli and Bank Saderat and their subsidiaries. 89. On 23 June 2008 the EC Council adopted Decision 2008/475/EC (OJ L 163/29), which added a number of persons to those listed in Annex V of Regulation 423/2007. They included Bank Melli and its subsidiaries, including Melli Bank plc. The reason given was that these entities had been providing or attempting to provide financial support for companies which were involved in, or procured goods for, Irans nuclear and missile programmes, including Novin. In particular, Bank Melli was said to have provided a range of financial services to such companies, including opening letters of credit and maintaining accounts. 90. On 10 November 2008 the EC Council adopted Regulation 1110/2008/EC (OJ L 300/1), which imposed obligations, including requirements of vigilance and reporting requirements, upon financial institutions in the EC in relation to their activities with financial institutions domiciled in Iran, and in particular with Bank Saderat. Similar obligations, backed by criminal penalties, were also imposed upon Bank Saderat branches and subsidiaries in the EC. 91. The provisions of the 2008 Act concerned with financial restrictions, including Schedule 7, were introduced during the passage of the Bill following a statement issued by the FATF on 16 October 2008, which called on its members, and urged all jurisdictions, to strengthen preventive measures to protect their financial sectors from risks posed by Iran, as a result of its failure to introduce measures to address the risk of terrorist financing. As I have explained, Regulation 1110/2008/EC was adopted at about the same time. Rational connection 92. 291 Wilson J observed: In Lavigne v Ontario Public Service Employees Union [1991] 2 SCR 211, The Oakes inquiry into rational connection between objectives and means to attain them requires nothing more than showing that the legitimate and important goals of the legislature are logically furthered by the means government has chosen to adopt. The words furthered by point towards a causal test: a measure is rationally connected to its objective if its implementation can reasonably be expected to contribute towards the achievement of that objective. The manner in which the courts should determine whether that test is satisfied requires careful consideration. 93. Legislation may be based on an evaluation of complex facts, or considerations (for example, of economic or social policy, or national security) which are contestable and may be controversial. In such situations, the court has to allow room for the exercise of judgment by the executive and legislative branches of government, which bear democratic responsibility for these decisions. The making of government and legislative policy cannot be turned into a judicial process. In the Canadian case of RJR MacDonald Inc v Canada [1995] 3 SCR 199, for example, concerned with a legislative ban on tobacco advertising, expert evidence was led at a lengthy trial, following which the trial judge concluded that there was no reliable evidence to support the policy of banning advertising, and that there was therefore no rational connection between the ban and its objective. That conclusion was however overturned by the Supreme Court. McLachlin J, giving the judgment of the majority, stated (at para 153) that in order to establish a rational connection, the government must show a causal connection between the infringement and the benefit sought on the basis of reason or logic. She added (at para 154) that, where legislation was directed at changing human behaviour, the court had been prepared to find a causal connection on the basis of reason or logic, without insisting on proof of a relationship between the infringing measure and the legislative objective. La Forest J, giving the other principal judgment, considered that a common sense connection was sufficient to satisfy the requirement that there be a rational connection (para 86). 94. These observations found an echo, in a not dissimilar context, in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437; [2012] QB 394, concerned with a ban on the sale of tobacco from vending machines. It was argued, in the context of the proportionality of the restriction on the free movement of goods under EU law, that the ban was not suitable to achieve the objective of reducing tobacco consumption, since tobacco products could still be bought over the counter. All the members of the Court of Appeal emphasised the responsibility of elected government for the protection of public health, and the consequent need to allow a broad margin of appreciation to the decision maker. Lord Neuberger of Abbotsbury MR observed that, in considering whether the aim of the ban was achieved, at least arguably and to some extent, the court should be careful to avoid substituting itself for the decision maker or being over particular about the reasoning or evidence relied on by the decision maker (paras 232 233). He commented that the evidence and analysis in the explanatory memorandum and impact assessment which had been laid before Parliament with the draft regulations were neither very convincing nor very telling, not least because of the absence of any evidence to suggest that the ban would have any effect (para 236). Nevertheless, the Secretary of States assessment or belief that the ban would lead to some reduction in smoking did not seem unreasonable: The unsatisfactory basis for the figures and analysis in the [impact assessment] does not, in the absence of any other factor, justify concluding that the ban is disproportionate, given the wide margin of appreciation to be accorded. If one takes away one source of cigarettes, particularly one that involves no control over the identity of the purchaser, it is scarcely unreasonable to conclude that it will reduce consumption of cigarettes to some extent, although that conclusion is not one which necessarily follows ineluctably. Like La Forest and McLachlin JJ in the RJR MacDonald case, Lord Neuberger MR treated common sense and logic (paras 238, 242 and 244) as a sufficient basis for finding that the ban was rational. In the parallel litigation in the Court of Session, the court also referred to common sense as a basis for concluding that the legislation was apt to achieve its objective (Sinclair Collis Ltd v Lord Advocate 2013 SLT 100, para 62). 95. A more problematical case is that of A v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68: a case which is particularly relevant to the decision of the majority in the present case, as appears from Lord Sumptions judgment. The issue was whether a derogation from article 5(1) of the Convention, so as to permit legislation providing for the indefinite detention without trial of foreign terrorist suspects, was strictly required by the public emergency represented by the threat of terrorist attacks in the United Kingdom. A majority of the House of Lords found that the derogation was not strictly required, since the legislation was disproportionate and was in addition discriminatory, contrary to article 14 of the Convention. The latter finding need not be considered in the present context, but the finding in relation to proportionality is of importance. 96. Lord Bingham of Cornhill identified the central problem (at para 43) as being: that the choice of an immigration measure to address a security problem had the inevitable result of failing adequately to address that problem (by allowing non UK suspected terrorists to leave the country with impunity and leaving British suspected terrorists at large) while imposing the severe penalty of indefinite detention on persons who, even if reasonably suspected of having links with Al Qaeda, may harbour no hostile intentions towards the United Kingdom. Lord Bingham did not explicitly apply the three De Freitas criteria or the fuller Oakes analysis (to which he referred at para 30), but in the passage cited appears to balance the severity of the effects on the rights of the persons detained against the importance of the objective: that is to say, step four in the analysis. Lord Hope of Craighead focused on the question whether there was some other way of dealing with the emergency which would not be incompatible with the Convention rights (para 124): in other words, a test of necessity. Lord Scott of Foscote also considered that the legislation failed to meet the necessity test, since it had not been shown that monitoring arrangements or movement restrictions would not suffice (para 155). That was also the approach adopted by Lord Rodger of Earlsferry, who stated that, proceeding on the same basis as the Government and Parliament, that detention of the British suspects was not strictly required to meet the threat that they posed to the life of the nation, the detention of the foreign suspects could not be strictly required either to meet the comparable threat that they posed (para 189). Baroness Hale of Richmond also focused on the question of necessity, observing that if it was not necessary to lock up the nationals it could not be necessary to lock up the foreigners (para 231). Lord Carswell agreed with Lord Bingham. 97. I have spent some time considering the basis of the decision in A v Secretary of State for the Home Department in order to clarify what the case did not decide. First, it did not decide that the legislation lacked a rational connection to its objective because it would be only partially effective. As in Sinclair Collis, the legislation would have made a contribution to the achievement of its objective. Secondly, the case did not decide that the legislation lacked a rational connection to its objective because it was discriminatory. The difference in treatment of British and foreign suspects was relevant to proportionality because it bore on the question whether the interference with the rights of the foreign suspects had been shown to be necessary. 98. In the present case, it is apparent that any judicial assessment of the rationality of a direction under Schedule 7 must recognise the need to allow the Treasury a wide margin of appreciation, for the reasons explained by Lord Sumption at para 21. 99. Lord Sumption identifies two flaws in the reasoning which led the courts below to conclude that the requirements imposed by the direction were rational and proportionate: first, their conclusion did not explain, let alone justify, the singling out of Bank Mellat; and secondly, the justification which they found was not the one which Ministers advanced before Parliament, and was in some respects inconsistent with it. The justification for making the order 100. Subject to one qualification, Mitting J accepted the Treasurys explanation of why the order had been made, as set out in paras 73 to 75 of a witness statement made by Mr James Robertson, who had been since December 2008 the head of the Financial Crime Team in the International Finance Directorate of the Treasury. 101. In his statement, Mr Robertson explained that, in exercising their functions under Schedule 7 of the 2008 Act, the Treasury worked in close collaboration with a number of government departments and agencies, including in particular those concerned with intelligence. He explained the serious risk to UK national interests which would result from Irans development of nuclear weapons: the consequent destabilising effect upon a region where the UK has personnel and installations, the potential disruption of global oil and gas supplies, the economic consequences of such disruption, the possibility of an attack on Iran, and the potential implications of such an attack. 102. Mr Robertson also explained that it was considered that Irans banking system provided many of the financial services which underpinned its nuclear and ballistic missile programmes. Irans banking system lacked the controls which existed in most other countries to prevent money laundering and the financing of terrorism, and which would also serve to identify transactions related to Irans nuclear and ballistic missile programmes. As a consequence, Iranian financial institutions were vulnerable to being used to channel illicit finance. This had been highlighted in several reports by the FATF. As a result, UK financial institutions dealing with Iranian entities could not rely on such checks having taken place in Iran. This problem was reflected in the targeting of Iranian banks in the Security Council resolutions and in the EU legislation. 103. In relation to the decision to make the order in question, Mr Robertson explained that, following the coming into force of the 2008 Act, the Treasury commissioned work on the role of Iranian banks in financing Irans nuclear and ballistic missile programmes. That work highlighted concerns about the role of Bank Mellat, and identified three particular areas of concern. First, it had provided banking services to Novin, and had maintained accounts for the AEOI, mainly through Novin, since 2003. It had managed accounts and facilitated money transfers for Novin after Novin had been designated under Resolution 1747. Secondly, senior officials of the AIO, the parent of entities which were involved in Irans ballistic missile sector and designated under Security Council Resolution 1737, had used Bank Mellats services during 2007 and 2008 to conduct business connected with Irans ballistic missile programme. Thirdly, between 2007 and 2009 Bank Mellat had provided banking services for Doostan International (Doostan), a company linked to the ballistic missile programme. 104. Mr Robertson summarised the case for making the order as follows (para 73): The Treasury was satisfied that Bank Mellat has provided financial services to companies engaged in Iran's nuclear and ballistic missile programmes. A direction to cease business with Bank Mellat would restrict the financial services available to entities involved in Iran's nuclear and ballistic missile programmes by denying them access to the UK financial sector through Bank Mellat. This would have the maximum possible adverse impact on the nuclear and ballistic missile programmes of the measures available under Schedule 7 in relation to Bank Mellat. If Bank Mellat wished to continue its activities in support of those programmes it would need to seek other sources of financial services, assuming such alternatives were actually available to it. There was also the possibility that as a bank subject to restrictions in the United Kingdom, Bank Mellat would not be in a position to access the global financial system as effectively in order to seek substitute arrangements for those no longer available to it in the UK. At the very least, this would impede the Iranian nuclear and ballistic missile programmes by imposing additional costs and delays on the programmes. 105. Mr Robertson explained at para 74 that it had been recognised that entities connected with the nuclear and missile programmes which wished to route transactions through the UK could do so by using another Iranian bank. A potential effect of the order was however that the UK financial sector would decide to wind down business with Iran more generally, which would reduce the risk of business being routed through another Iranian bank. Even if that did not occur, the order would make transactions involving the UK more difficult. Iranian banks generally experienced difficulties in dealing with UK banks as a result of the international sanctions. A small number of Iranian banks had access to the UK via their British subsidiaries. The action taken against Bank Mellat, which had a British subsidiary, narrowed access to the UK financial sector and further restricted the options available to Iranian banks. 106. Finally, Mr Robertson said at para 75 that the order would also increase pressure on the Iranian Government to comply with its international obligations. Applying such a restriction to one of Irans largest banks would reduce the financial services available to the Iranian Government. In relation to that aspect, Mr Robertson stated that the Iranian Government still controlled a significant amount of the shares in Bank Mellat, following its privatisation in February 2009: 20% of the shares were officially owned by the Government, another 20% were held by Government social security organisations for the benefit of their employees, and a further 40% were allocated to low income shareholders whose voting rights were exercised by the Government. 107. Mitting J accepted the Treasurys reasons for making the order as stated at paras 73 75 of Mr Robertsons statement. The only qualification was that, in relation to para 75, Mitting J accepted evidence that the Iranian Government only exercised voting rights over its 20% shareholding in Bank Mellat. That qualification was not considered to be of any materiality. 108. Lord Sumption states that Mitting J did not accept the part of Mr Robertsons statement which described the problems relating to Bank Mellat, which I have summarised at para 103. It appears to me however that what was said in that connection by Mr Robertson was substantially accepted, other than the allegation relating to senior officials of AIO, which Bank Mellat said it was unable to investigate without additional information. Mitting J stated that it was common ground that Bank Mellat had provided trade finance or banking facilities for an importer of materials used in the production of nuclear weapons, namely Novin. He accepted that Novin was an AEOI financial conduit and had facilitated Irans nuclear programme. He also accepted that Bank Mellat had provided banking facilities to Doostan and its managing director, Mr Shabani, who had each played a part in Irans nuclear weapons programme. 109. It is true that Mitting J accepted that, once Novin had been designated by the Security Council under Resolution 1747, Bank Mellat ran down and eventually ceased its relationship with Novin, and that it had in place a mechanism, which it operated conscientiously, to ensure that it did not provide banking facilities to entities or persons designated by the Security Council. Mitting J also accepted that Bank Mellat had investigated the accounts held by Doostan and Mr Shabani, in response to the Treasurys allegations in these proceedings, and had found nothing unusual or suspicious. Mitting J nevertheless found that Doostan and Mr Shabani had played a part in Irans nuclear programme, and rejected Mr Shabanis evidence to the contrary. 110. Lord Sumptions statement that Mitting J found that Bank Mellats provision of banking services to entities involved in the Iranian nuclear weapons and ballistic missile programmes, namely Novin and Doostan, had happened in spite of their conscientiously operated procedures to avoid doing so, appears to me, with respect, to convey a different impression from Mitting Js judgment. It was no answer to the Treasurys concerns in relation to Novin that procedures were initiated after it had been designated by the Security Council: procedures triggered by a Security Council Resolution did not sufficiently address the risk, since they operated long after objectionable banking activities had already taken place. In relation to Doostan, it was only in the course of the proceedings that Bank Mellat carried out the investigations referred to. The value of those investigations can be judged from the fact that on 9 June 2010, after the hearing before Mitting J, Doostan was designated by Security Council Resolution 1929 as an entity involved in Iranian ballistic missile activities, and was subjected to the asset freezing regime established by Resolution 1737. It was only following that designation that Bank Mellats procedures would have been applicable. In the circumstances, I am unable to agree with Lord Sumptions statement that Mitting Js finding about Bank Mellats procedures suggests that they were satisfactory, at any rate in relation to the weapons programmes. 111. Far from regarding the foregoing matters as undermining the Treasurys case, Mitting J treated them as being essentially beside the point: The Treasurys case is not that the bank has knowingly assisted Security Council designated entities after designation, or even that it has knowingly assisted entities liable to be designated, but which have not yet been, by providing banking facilities to them, but that it has the capacity to do so, has in one instance done so and is likely to do so in the future. The fundamental justification for the order is that, even as an unknowing and unwilling actor, the bank is, by reason of its international reach, well placed to assist entities to facilitate the development of nuclear weapons, by providing them with banking facilities, in particular trade finance. It was on that basis that Mitting J commented that Bank Mellats dealings with Doostan and Mr Shabani did not greatly matter. 112. Lord Sumptions criticism of the rationality of the connection between the direction and its objective is that the direction made no attempt to prevent every Iranian bank with an international reach from facilitating Irans weapons programme, but only one of them. It is said that the distinction [drawn] between Bank Mellat and other Iranian banks was an arbitrary and irrational distinction. 113. I am unable to agree with this criticism. It is true that the problems in relation to the lack of adequate controls within Irans banking system, identified by the FATF and mentioned by Mr Robertson in his statement, were not unique to Bank Mellat. It followed that UK financial institutions were at risk when dealing with Iranian entities in general, as Mr Robertson explained. The response of the UN Security Council and the EC Council had not however been to impose restrictions in respect of all Iranian banks, but in respect of particular banks where there was evidence of their involvement in the financing of Irans nuclear weapons programme: notably Bank Sepah, Bank Sepah International, Bank Melli, Bank Saderat and their subsidiaries. The Treasury followed the same approach when it obtained evidence of Bank Mellats involvement. 114. Lord Sumption states that other Iranian banks were as likely as Bank Mellat to number entities involved in Irans nuclear and ballistic missile programmes amongst their clients. As I have explained, Mr Robertson acknowledged at para 74 of his statement that entities involved in Irans nuclear weapons programme could in principle use other Iranian banks. He pointed out however that the order might lead the UK banking sector to wind down business with Iran generally, and that the order would in any event make transactions involving the UK more difficult. That was because it was difficult for Iranian banks to access UK financial markets directly, since UK banks were reluctant to deal with them. The exceptions were the small number of Iranian banks which had UK subsidiaries. Those were Bank Melli, Bank Sepah, Bank Saderat and Bank Mellat. As I have explained, the UK subsidiaries of Bank Melli and Bank Sepah were already subject to asset freezing orders. The order under challenge applied to Persia International Bank plc (PIB), which was the UK subsidiary of Bank Mellat. The UK subsidiary of the remaining Iranian bank with such a subsidiary, Bank Saderat, was subject at the time to systematic reporting requirements under Regulation 1110/2008, as I have explained. Subsequent to the making of the order under challenge, it was subjected to an asset freeze. 115. In these circumstances, an order directed specifically against Bank Mellat and its UK subsidiary was far from being pointless or arbitrary. One effect of the order was to prevent the only UK subsidiary of an Iranian bank which was not already subject to controls, namely PIB, from dealing with its parent, Bank Mellat. Lord Sumption notes that PIB was not prevented from dealing with its minority shareholder, Bank Tejarat. There is however nothing to indicate that Bank Tejarat had any involvement with entities involved in the Iranian nuclear weapons programme. If information indicating such involvement were to emerge, no doubt action would be taken. In the event, PIBs assets were subsequently frozen by Council Regulation (EU) 668/2010, made on 26 July 2010. Although Iranian banks, or Iranian entities involved in the nuclear weapons programme, could in principle seek to use non Iranian international banks, those could be expected to have compliance mechanisms in place: it was only in relation to Iran that the absence of such mechanisms had caused the FATF to call for preventive measures. 116. It is of course true that the direction would not of itself prevent the development of nuclear weapons in Iran. It could however reasonably be expected to realise the objective of hindering their development at least to some extent (to adopt the phrase used by Lord Neuberger MR in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437; [2012] QB 394). That is sufficient to establish a rational connection between the direction and its objective. 117. In the light of the foregoing, Mitting J was entitled to accept that there was a rational connection between the requirements imposed by the order and its objective, on the basis that, as he found, a direction to cease business with Bank Mellat would restrict the financial services available to entities involved in [Irans nuclear and ballistic missile] programme by denying them access to the UK financial sector through the bank; suspect entities would find it difficult to replace existing arrangements through the bank; and some pressure would be brought to bear on the Iranian Government to comply with its international obligations. Mitting J was therefore entitled to hold that he was satisfied that the requirements imposed by the order are rationally connected to the objective of inhibiting the development of nuclear weapons in Iran and, so, the risk to the national interests of the United Kingdom. Those findings were affirmed by the Court of Appeal, which commented that a contrary conclusion would resonate with navet. A different justification from that given to Parliament 118. A separate point made by Lord Sumption is that the justification for the making of the order which was accepted by Mitting J was not the one which Ministers advanced when laying the order before Parliament, and was in some respects inconsistent with it: indeed, it is said that the Treasurys argument underwent a radical shift. 119. This point does not appear to me to be well founded in fact. It does not in any event appear to me to affect the question whether the requirements imposed by the order were rationally connected to its objective. 120. Considering first the factual position, a written Ministerial statement was made on 12 October 2009, three days after the order had been made. It stated: Iran continues to pursue its proliferation sensitive nuclear and ballistic missile activities in defiance of five UN Security Council Resolutions. We cannot and will not ignore specific activities undertaken by Iranian companies which we know to be facilitating activity identified by the UN as being of concern, particularly where such activities have the potential to affect the UKs interests. On the particular entities in question, vessels of the Islamic Republic of Iran Shipping Lines (IRISL) have transported goods for both Irans ballistic missile and nuclear programmes. Similarly, Bank Mellat has provided banking services to a UN listed organisation connected to Irans proliferation sensitive activities, and been involved in transactions related to financing Irans nuclear and ballistic missile programme. The direction to cease business will therefore reduce the risk of the UK financial sector being used, knowingly or otherwise, to facilitate Irans nuclear proliferation sensitive activities. 121. An explanatory memorandum to the order was also laid before Parliament the same day. Under the heading What is being done and why, the memorandum stated: These restrictions are being imposed in respect of these two entities because of their provision of services for Irans ballistic missile and nuclear programmes. It is considered that a direction to cease business with these entities will contribute to addressing the risk to the UK national interests posed by Irans nuclear proliferation sensitive activities. Similar explanations of the thinking behind the order were also provided by Ministers during the Parliamentary proceedings leading to the approval of the order. 122. The Treasury did not in these documents and statements accuse Bank Mellat of being knowingly involved in Irans nuclear and ballistic missile programme: what was said was that it had provided banking services to a UN listed organisation, and that it had been involved in transactions related to financing that programme. Those were statements of objective fact. The objective of the order was explained as being to reduce the risk of the UK financial sector being used, unknowingly or otherwise, to facilitate Irans proliferation sensitive activities. That explanation appears to me to be consistent with the more detailed account of the Treasurys reasoning provided by Mr Robertson. As Mitting J found, the statements made to Parliament gave an adequate summary. 123. Proceeding however on the hypothesis that the reasons given to Parliament were inconsistent with the reasons put forward by Mr Robertson in his statement, that difference has no evident bearing on the answer to the question whether the measure is rationally connected to its objective. As I have explained at paras 92 94, that question poses an objective test concerned with the capacity of the measure to realise its objective, based on common sense or logic. If Parliament approved the measure on the basis of a given justification, that might affect the credibility of evidence subsequently putting forward a different justification; but that is not an issue which arises on this appeal. It could also affect the weight which the court might give to Parliamentary approval of the measure when considering its proportionality; but that is not a factor which has been taken into account in considering the question of rational connection. 124. This objective approach to the criterion of rational connection is consistent with what was said, in relation to proportionality more generally, in Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 11: The task on an appeal on a Convention ground against a decision of the primary decision maker is to decide whether the challenged decision is unlawful as incompatible with a Convention right or compatible and so lawful. It is not a secondary, reviewing, function dependent on establishing that the primary decision maker misdirected himself or acted irrationally or was guilty of procedural impropriety. To similar effect, Lord Hoffmann noted in R (SB) v Governors of Denbigh High School [2006] UKHL 15; [2007] 1 AC 100, para 68: Article 9 of the Convention is concerned with substance, not procedure. It confers no right to have the decision made in any particular way. What matters is the result. In this respect, there is no difference between article 9 and other Convention rights. Less intrusive means 125. Lord Sumption concludes that the direction also fails the proportionality test at the third stage of the analysis, on the basis that it cannot be necessary to require UK financial institutions to cease dealing with Bank Mellat if less drastic measures are considered to provide sufficient protection in relation to other Iranian banks. For the reasons I have given, I do not consider that the Iranian banks in question (that is to say, the smaller banks without UK subsidiaries) are truly in a comparable position to Bank Mellat. Like the Court of Appeal, I attach importance to the evidence of Mr Robertson that the Treasury considered but rejected less intrusive measures, for reasons which he explained. In a matter of this kind, great weight must be given to the considered judgment of the Treasury. Against that background, I accept Mitting Js conclusion that there is no other reasonably practicable means of ensuring that the facilities of an Iranian bank with international reach will not be used in the UK for the purpose of facilitating the development of nuclear weapons by Iran. Proportionate effect 126. If, as I would hold, (1) the Governments objective was sufficiently important to justify limiting the rights of Bank Mellat, (2) the requirements imposed by the direction were rationally connected to that objective and (3) no less intrusive measure would have been equally effective in achieving the objective, the question remains whether (4) having regard to the severity of its effect on Bank Mellats rights, the direction was justified by the importance of the objective. Lord Sumption concludes that it was not, given that, in his view, the direction would make little if any contribution to the achievement of its objective. For the reasons I have explained, I do not agree with that assessment. On the basis that the direction would make a worthwhile contribution to the achievement of the Governments objective, I agree with Mitting J that its impact upon the rights of Bank Mellat is proportionate. 127. In that connection, I would make three observations. The first is that the effects upon Bank Mellats business cannot in my opinion be considered disproportionate to a significant reduction in the risk of very great harm to the UKs vital national interests. The Bank claims that it has suffered a revenue loss of US$25m a year, that it was prevented for the duration of the order from drawing on deposits of 183m, and that its reputation and goodwill have been damaged. The severity of those effects has however to be considered in the context of the very substantial scale of the business conducted by the Bank, illustrated by its evidence that it holds some 33 million accounts for over 19 million customers, has almost 2000 branches, and issued letters of credit in 2009 to the value of $11bn. If the contribution made by the direction towards the achievement of the Governments objective was limited, the impact upon the Bank was also limited. 128. The second is that the right in issue, under A1P1, is not of the most sensitive character; the person affected, a major international bank, does not fall into a vulnerable or marginalised category; and the order is temporary in nature. 129. The third is that the court does not possess expertise or experience in international relations, national security or financial regulation. The risks to our national interests, if the wrong judgment is made in relation to nuclear proliferation, could hardly be more serious. Democratic responsibility and accountability for protecting the citizens of this country from those risks rest upon the Government, not upon the courts. In a complex situation of this kind, where the stakes are so high, the court has to attach considerable weight to the Governments assessment that the requirements are necessary and proportionate to the risk. Conclusion 130. For these reasons, and those given by Lord Hope in relation to procedural fairness, I would dismiss the appeal. LORD HOPE (DISSENTING) 131. I find myself unable, with respect, to agree with the conclusions that the majority have reached on both the substantive and the procedural issues in this case. I, for my part, would dismiss the appeal. The substantive issues 132. I agree with Lord Reed and Lord Sumption about the formulation of the test that should be applied to the question raised by Bank Mellats objections to the direction. The more difficult issue is as to the result when that test is applied to the facts. I was inclined at the end of the argument to think that the making of the Financial Restrictions (Iran) Order 2009 (SI 2009/2725) (the Order) was disproportionate because the Bank had been singled out for special treatment, and because the distinction that was drawn between it and other Iranian banks in that respect appeared to be arbitrary and irrational. There seemed to me to be force in the arguments that Lord Sumption has given for thinking that the effect of the Order on the commercial dealings of the Bank was out of proportion to any contribution that the directions were likely to make to the statutory purpose that it was designed to serve. 133. I have however been persuaded by Lord Reeds careful analysis of the explanation that was given on the Treasurys behalf by Mr Robertson that the reasons that Mitting J and the Court of Appeal gave for coming to the contrary conclusion were sound. In matters of this kind a wide margin of appreciation must be given to the Treasury, and I am satisfied that sufficient grounds were shown for finding that an order directed only against the Bank and its UK subsidiary was rationally connected to the objective of inhibiting the development of nuclear weapons in Iran and that it was proportionate. There were good reasons for not involving all the other Iranian banks, and the facts as a whole show that the choice that was made was not arbitrary. The problem that the Order was designed to address was restricted to a small number of Iranian banks with UK subsidiaries, and the Bank was not being singled out in the pejorative sense that those words convey. I also agree with Lord Reed that the question whether the directions in the Order were rationally connected to its purpose does not depend on whether the justification that the courts below found established was the same as that which was given in the statement when the Order was laid before Parliament. Like him I would hold that the objective was sufficiently important to justify restricting the Banks activities, that the requirements imposed by the direction were rationally connected to that objective and that Mitting J was entitled to hold that there were no other reasonably practicable means of achieving it. The procedural issues 134. The question to which these issues are directed is whether there was a duty to consult the Bank before the Order was made under section 62 of the Counter Terrorism Act 2008. The powers conferred on the Treasury for the making of such a direction are set out in Schedule 7 to the Act. The procedures that are to be followed are in Part 4 of that Schedule. Paragraphs 14(1) and (2) provide that a direction is to be contained in an order made by the Treasury, that the order must be laid before Parliament after being made and that it ceases to have effect if not approved by a resolution of both Houses of Parliament within 28 days. Paragraph 14(5) states that, if apart from that sub paragraph an order under paragraph 14 would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. Hybrid instruments are subject to a special procedure in the House of Lords which gives those who are specially and directly affected by the instrument to present their arguments to a select committee for consideration on their merits before the instrument can be approved by either House. 135. Paragraph 15 of Schedule 7 provides that, where a direction is given to a particular person, the Treasury must give notice of the direction to that person. The direction in this case was given not to the Bank or to any other particular person, but to a description of persons operating in the financial sector in the United Kingdom: see paragraph 14(1)(a). They were directed by the Order not to enter into, or to continue to participate in, any transaction or business relationship with the Bank. The sequence in which these paragraphs appear in Part 4, as in the case of paragraph 16 which deals with publication, indicates that the direction will have already have been made by the time when notice is given under paragraph 15. Its purpose is to alert the person concerned so that steps can be taken at once to comply with the direction. 136. Here, then, is a provision which excludes the procedure which allows those directly affected to ask for an examination of the direction on its merits before the instrument is approved under paragraph 14(2). And there is another provision which provides for notice to be given, but only to a particular person to whom the direction is given and only after the making of the direction. Is it nevertheless open to the court to require the Treasury to consult with a body which will be affected by a direction which is to be given to others before the order is made, as the Bank maintains? This is a step which finds no place in the procedure which has been provided for by Parliament. Is a procedure for delegated legislation which has been approved by Parliament open to scrutiny by the courts with a view to the imposition of additional procedural safeguards? 137. The Bank submits that the Treasury were required both by domestic law and by the procedural requirements of article 6(1) of the European Convention on Human Rights and article 1 of the First Protocol to give the Bank an opportunity to make representations before they made the direction. It points to the fact that the direction imposed the most extreme form of sanction that was available to the Treasury in the exercise of these powers. It bound the entirety of the United Kingdoms financial sector and the Bank, and all its branches were designated persons with whom the financial sector was directed to cease doing business. Yet the procedure in the 2008 Act under which the Order which contained the direction was made gave no opportunity for affected persons to make representations before it was made and then laid before Parliament. 138. This challenge was dismissed by Mitting J. He said that it was readily understandable why no provision was made for affected persons to be given such an opportunity: [2010] EWHC 1332 (QB), para 5. Although in this case I am only concerned with a direction made in the circumstances set out in paragraph 1(4) of Schedule 7 in respect of a bank, there are many other circumstances in which directions could be made when Parliament cannot have intended that there should be an opportunity for affected persons to make representations. They include individuals engaged in terrorist financing or money laundering activities (paragraphs 1(3)(c) and 9(1)(c)); and governments reasonably believed to be engaged in the development or production of nuclear etc weapons (paragraphs 1(4)(a) and 9(1)(b); and the manifold persons in the UK financial sector to whom the direction is given (paragraph 3(1)). He also pointed out that a duty to permit prior representations where there was no reason to believe that avoiding action would be taken by an affected person would be judge made. Where Parliament had conferred a rule making power on the executive subject to Parliamentary control, it was not generally for the courts to superimpose additional procedural safeguards: R (Bapio) v Secretary of State for the Home Department [2007] EWCA Civ 1139. 139. In paras 6 8 the judge rejected the challenge under A1P1 on the ground that section 63 was the means by which the Bank was afforded a reasonable opportunity of effectively challenging the measures contained in the Order: Jokela v Finland (2002) 37 EHRR 581, para 45. He also rejected the challenge under article 6(1) on the ground that there was no dispute over a civil right at the time when the Order was made: Micallef v Malta (2009) 50 EHRR 920, para 74. In any event a hybrid procedure, consisting of an executive decision affirmed by Parliament which was subject to a later challenge before a court, was compatible with the article. He added that there was no claim for a declaration of incompatibility under section 4 of the Human Rights Act 1998. 140. In the Court of Appeal Maurice Kay and Pitchford LJJ rejected the Banks procedural challenge on similar grounds: [2011] EWCA Civ 1. But Elias LJ held that the Treasury had failed to comply with the common law principles of fairness and that it was also in breach of A1P1 and article 6(1). He said that the Order was of a qualitatively different character to that with which the court was concerned in the Bapio case. It was not laying down rules which affected a broad and amorphous class or classes of person. It was specifically directed at the Bank and the Treasury knew that the action of implementing the Order would damage its rights, as was its purpose. He was not persuaded that Parliament in formulating the procedures in Schedule 7 must have intended to exclude any rights to natural justice. The judges analysis of the challenge under article 6(1) that there was no dispute when the Order was made was inconsistent with the decision in R (Wright) v Secretary of State for Health [2009] 1 AC 739. As the Treasury had conceded that there was insufficient urgency to justify a failure to allow the Bank to seek to answer the allegations against it before the Order was made, the only proper conclusion was that the failure to give a hearing infringed article 6(1). It followed that the subsequent procedure was not sufficient to comply with A1P1. (a) the common law challenge 141. The Order which the Treasury made under Schedule 7 to the 2008 Act was a statutory instrument within the meaning of section 1(1) of the Statutory Instruments Act 1946. It was made in the exercise of a power to make a direction under paragraph 1(1) of the Schedule which was required by paragraph 14(1) to be given by means of an order that was to be laid before Parliament. Section 96(1) of the 2008 Act provides that orders under the Act must be made by statutory instrument. For the purposes of the definition in section 1 of the 1946 Act, a power to make, confirm or approve orders that is conferred on the Treasury is deemed to be conferred on the Minister of the Crown in charge of that department: 1946 Act, section 11(1). 142. The procedure that is laid down for Parliamentary approval of an order under Part 4 of Schedule 7 which contains a direction of the kind that was given in this case provides that the order is to be laid before Parliament before it is made, and that it ceases to have effect if not approved by a resolution of each House within 28 days: paragraph 14(2). Erskine May, Treatise on the Law, Privileges, Proceedings and Usages of Parliament (24th ed, 2011) states at p 676 that this type of affirmative procedure is frequently resorted to when delegated legislation must come into force immediately on being made without any prior consultation. It appears from that comment that it is standard practice for orders to be made under this procedure without prior consultation with those who are likely to be affected by them. Paragraph 14(5) states that, if apart from that sub paragraph it would be treated for the purposes of the standing orders of either House as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. 143. Under the hybrid instrument procedure the instrument is subject to a procedure which enables those who are affected by the instrument to present arguments against it to a select committee which reports on its merits and recommends whether or not it should be approved: Erskine May, p 684. The disapplication of this procedure by an express provision of this kind is said to be relatively common in recent times: Craies on Legislation (10th ed, 2012), para 6.2.2.3. Nevertheless it is feature of the procedure under Part 4 of the Schedule that it has expressly excluded the possibility of consultation before the order is made. It excludes the possibility of presenting arguments against the order prior to its receiving approval in either House. 144. Part 4 of Schedule 7 must be read together with sections 63 and 65 68 of the Act. These sections provide for the making of an application to set aside any decision of the Treasury in connection with the exercise of their functions under Schedule 7 to the Act, with the same relief as may be made or given in proceedings for judicial review. Permission is not required for the making of an application under section 63, and there is no time limit. Provisions of the kind that appear in this group of sections are unusual. They must be taken to have been included in the Act as a counterweight to the absence of any procedure for prior consultation with affected persons or the making of representations by them at any earlier stage. The provision for a closed material procedure indicates that Parliament was aware that some at least of the reasoning for the making of a direction would be likely to require to be withheld from affected persons. 145. These provisions reinforce the impression conveyed by the provisions of paragraph 14 of Schedule 7 that Parliament cannot have intended that there should be an opportunity for representations before the decision was made or as part of the Parliamentary process. A ministerial statement was issued on the making of the order on 12 October 2012 in accordance with a prior commitment to do so by the Minister when the Bill was passing through Parliament. By this means the Treasurys reasons for making the Order were placed before each House before it was approved. The question then is whether the Bank had a common law right to be consulted before the making of the decision contained in the Order that was laid before Parliament. I readily acknowledge that the duty to give advance notice before a statutory power that may affect the subject adversely is exercised, whether by statutory instrument or otherwise, is deeply rooted in the common law. But, as Lord Sumption says in para 31 above, whether there is such a duty where the enabling statute does not deal with the point expressly must depend on the circumstances. The Bank accepts there is no authority that is on all fours with this case. Cases such as R v Secretary of State for Health, Ex p United States Tobacco International Inc [1992] QB 353, where it was held that the Secretary of State had a duty to give the applicants an opportunity to make representations on the expert advice he had received before making regulations banning oral snuff in view of the history of his dealings with them as well as the effect on their business, are far removed from the facts of this case. The closest analogy is the Bapio case, where the provisions in question were alterations by the Home Secretary to the Immigration Rules and advice given to NHS employers by the Department of Health. Elias LJ was right to draw attention to the fact that the Order in this case was of a different character as it was specifically directed at the Bank. But the reasons given by the Court of Appeal for rejecting the proposition that there was duty to consult in that case seems to me to be capable of being applied more widely and to be just as much in point here as in Bapio. First, there is the point made by Sedley LJ in para 44 that, if the Bank is right, its argument raises serious and very troublesome questions as to its implications. What limits, if any are to be placed on those to whom the duty is owed? As Mitting J pointed out in para 5 of his judgment, the conditions for the making of a direction in paragraph 1 of Schedule 7 and the requirements that may be imposed under paragraph 9 include various circumstances in which Parliament cannot have intended that there should be an opportunity to make prior representations. They include, for example, cases falling within the second condition described in paragraph 1(3) of Schedule 7, which applies where terrorist financing or money laundering activities are being carried on by persons resident or incorporated in the country which pose a significant risk to the national interests of the United Kingdom. Is the duty to notify the persons affected to apply in those cases too? The urgency that the Treasury saw in the Banks case was not as extreme as it might be in that situation, but its case must not be considered in isolation. A decision in its favour on this point will have far reaching consequences for the application of Schedule 7 generally. It will also call into question the practice referred to by Erskine May for the affirmative resolution procedure to be resorted to when delegated legislation must come into force immediately on being made without any prior consultation: see para 140. Are the majority to be understood as saying that this must never happen? If an opportunity to make prior representations is to be given, how is the exercise to be carried out, and under what conditions and subject what safeguards to ensure that any responses are properly taken into account? What information must be given to the affected party to ensure that its representations are effective? How is material that it would not be in the public interest to disclose to the affected party to be dealt with? There is also the possibility that the affected party may seek a judicial review of the way the process is being conducted before the direction is given: see R v Secretary of State for the Environment, Ex p Brent London Borough Council [1982] QB 593. This too would raise issues about the disclosure of material that in the public interest ought not to be disclosed. It could also significantly delay the whole process if, as Lord Sumption acknowledges in para 37 above, an application of the kind envisaged by section 63 would be unlikely to be determined within three months. I do not think that these questions can be ignored or left unanswered. Clear and precise guidance is needed if the procedure that the majority say must be implied into Schedule 7 is to be workable. I do not know where that guidance is to be found. Then there are the points made by Maurice Kay LJ in para 58, with whose reasons Pitchford LJ agreed in para 65. He doubted whether, as a matter of principle, a duty to consult can generally be superimposed on a statutory rule making procedure which required the intended rules to be laid before Parliament and subjected to the negative resolution procedure. And he attached some significance to the fact that the primary legislation had not provided an express duty of prior consultation as it had on many other occasions. Those points have added force in this case in view of the point made by Erskine May at p 676, as the paragraph 14 procedure requires the order to be made before it is laid and that it be approved by an affirmative resolution of each House of Parliament. The disapplication of the hybrid instrument procedure is a further factor, as is the provision in paragraph 15 for the giving of notice of the direction to a particular person after the order has been laid and the opportunity that sections 63 and 65 68 give for an application to be made to set it aside, subject to rules designed to secure that disclosures of information are not made when they would be contrary to the public interest. The structure of the legislation, the scope for its application and the sensitive nature of the information on which decisions in this area of activity are likely to have been based all point in the same direction. They indicate that there was here a deliberate decision by Parliament not to subject the Treasury to a duty to consult before making the direction. This is readily understandable, in view of the nature of the risks to the national interest that the legislation was intended to deal with. I would hold therefore that the Bank did not have a common law right to be consulted before the direction was given. Elias LJ said in para 97 that in his judgment the preconditions for supplementing the procedure to secure a right to natural justice that were identified by Lord Reid in Wiseman v Borneman [1971] AC 297, 308 were met in this case, as the statutory procedure was insufficient to achieve justice and it was not contended that complying with the basic elements of natural justice would frustrate the purpose of the legislation. But Lord Reid did not go so far as to say that the court must always intervene whenever those preconditions were satisfied. Whether it would be right for the court to do this must always depend on the circumstances. I would, for my part, respect the evident intention of Parliament that the Treasury should have power to make orders of the kind contemplated by paragraphs 1 and 9 of Schedule 7 without prior consultation, and that the basic elements of natural justice were to be met in the manner prescribed by sections 63 and 65 68. For the court to insist upon a prior duty to consult at common law would be inconsistent with the purpose of the legislation, which is to protect the national interests of the United Kingdom in circumstances where there is a significant risk to those interests, and it would contradict what I would understand to have been the will of Parliament. I do not think that it is open to this court to take that course. I would reject the challenge that is made at common law. (b) the Convention rights challenge The gravamen of this challenge is that, as the making of the direction was incompatible with the Convention rights on which the Bank founds, it was unlawful for the Treasury to make the direction: Human Rights Act 1998, section 6(1). Counsel for the Treasury did not seek to argue that this was a case to which section 6(1) did not apply because the primary legislation could not be read or given effect in a way which was compatible with the Convention rights and it was acting so as to give effect to those provisions: section 6(2)(b). It is convenient to examine the argument that was directed to article 6(1) first, as the A1P1 argument too is about the absence of a procedural protection for the Banks rights. In Jokela v Finland (2002) 37 EHRR 581, para 45 the Strasbourg court said that, in considering whether a person was afforded a reasonable opportunity of putting his case to the responsible authorities for the purposes of A1P1, a comprehensive view must be taken of the applicable procedures. The procedural challenge in both cases rests on essentially the same grounds. The Bank submitted that the Treasurys decision to make the Order was a determination of the Banks civil rights within the meaning of article 6(1), and that their failure to allow the Bank any opportunity to make representations was a plain breach of that article. It was also submitted that its case is indistinguishable from R (Wright) v Secretary of State for Health [2009] UKHL 3, [2009] AC 739, where the provisional listing of persons considered to be unsuitable to work with vulnerable adults was held to be unlawful because the workers were denied an opportunity to answer the allegations that were made against them before they were listed. As Baroness Hale of Richmond said in Wright at para 19, the article 6(1) issue raises two questions. The first is whether the case is concerned with a civil right at all. The second is whether the making of the direction amounted to a determination of a civil right. The first question is easily answered. It is not disputed that the Banks right to carry on its business was a civil right and that the effect of the direction was greatly to impede the exercise of that right. The difficult issue is whether the making of a direction amounted to a determination of the Banks civil right, given that an opportunity for the determination by an independent and impartial tribunal of its right to carry on its business unimpeded by the direction was afforded by the right to make an application to the court under section 63 after the direction was made. It is well established that decisions which determine civil rights and obligations may be made by the administrative authorities, provided that there is then access to an independent and impartial tribunal which is in a position to exercise full jurisdiction as to the issues involved: Bryan v United Kingdom (1995) 21 EHRR 342; Wright, para 23. For the provisions of article 6(1) about the determination of a civil right to be applicable there must be a dispute over a civil right which can be said, at least on arguable grounds, to be recognised under domestic law: Micallef v Malta (2010) 50 EHRR 37, para 74. The Strasbourg court also concluded that for article 6(1) to apply the result of the proceedings must be directly decisive for the right in question. As Baroness Hale said in Wright, para 21: It is one thing temporarily to freeze a persons assets, so that he cannot divest himself of them before an issue is tried; it is another thing to deprive someone of their employment by operation of law. The Order in this case was not simply an asset freezing order, but I agree with Maurice Kay LJ, para 76, that there are similarities. It can be seen, as Pitchford LJ said in para 126, as an interim preventive measure taken in a situation which, on the Treasurys view of the matter, was of some urgency. At the stage when the decision was taken there was, in my view, no directly decisive determination of the Banks civil rights. The Treasury were in no position to carry out an article 6(1) compliant determination at that stage, and they could not do so anyway as they were not an independent or impartial tribunal. But the procedure for the making of an application under section 63 was available as soon as the person could claim to be affected by the decision: section 63(2). There was then an issue about the Banks civil rights which could be determined in a manner that was compatible with article 6(1). It was, no doubt, for this purpose, that section 63 was enacted. As there was then an opportunity for the Order to be set aside without delay on an application of judicial review principles, I think that it was unnecessary for an opportunity to be provided for the Bank to be consulted before the Order was made in order to satisfy the requirements of the article. For these reasons, together with the further reasons given by Lord Reed, I would reject the Banks contention that the way in which the Order was made was incompatible with article 6(1) because it was not given an opportunity to make representations. On a comprehensive view of the applicable procedures, I would for the same reasons reject the Banks challenge to the making of the Order under A1P1. LORD NEUBERGER (dissenting in part) Introductory Bank Mellat seeks to challenge the Financial Restrictions (Iran) Order 2009, SI 2009/2725 (the Order) on two grounds. The first is substantive, namely that the reasons for which Her Majestys Treasury (the Treasury) decided to give the direction (the Direction), which resulted in the Order, were fundamentally flawed. The second ground of challenge is procedural, namely that, before giving the Direction, the Treasury should have given the Bank an opportunity to make representations. I have reached the conclusion that (i) in agreement with Lord Reed, the substantive challenge fails, but (ii) in agreement with Lord Sumption, the procedural challenge succeeds. The substantive ground of challenge The prevention of nuclear proliferation (proliferation), including impairing its funding, is an issue which is not just very important. It is an issue which has diplomatic, national security, and financial market dimensions, and which presents the executive with enormous technical and practical difficulties. Further, any attempts to prevent proliferation will almost inevitably have substantial repercussions for third parties, innocent as well as guilty. It should therefore cause no surprise that decisions and actions which are aimed by the executive at preventing proliferation throw into sharp focus the delicacy of the balance between the courts duty to uphold the rule of law and the courts duty not to trespass into areas which are properly left to the executive. Judges have no more important function than that of protecting individuals and organisations from abuse or misuse by the executive of its considerable and extensive powers even, as is almost always the case, when such abuse or misuse does not involve bad faith. The substantial adverse financial consequences for Bank Mellat of the giving of the Direction in this case provide a good example of the importance of this function. On the other hand, the judiciarys power to review decisions of the executive must be exercised bearing in mind that responsibility for the decision lies with the executive, not the judiciary, and judges do not have the relevant expertise or experience of those responsible for the decision. In the present case, the importance and relevance of expertise and experience in international relations, national security and financial regulation, is self evident. Accordingly, while the court has to apply well established legal principles when deciding whether the Direction can be substantively justified, I agree with Lord Sumption when he says in para 21 that the Treasury must be allowed a large margin of judgment, or, as Lord Reed puts it in para 92, a wide margin of appreciation, when taking steps to prevent proliferation internationally, through the means of giving a direction under Schedule 7 to the Counter Terrorism Act 2008 (the 2008 Act). Indeed, there is very little between Lord Sumption and Lord Reed as to the principles to be applied when addressing a challenge to such a direction, or to an order made pursuant to it. I agree with Lord Reeds general and far ranging observations about proportionality in his paras 69 78, and what he says in paras 79 84 about the word proportionate in para 9(6) of Schedule 7 to the 2008 Act (Schedule 7). I also agree with his observations about rational connection in paras 86 90. As Lord Reed implies in para 65, there is very little difference between what he says in those 21 paragraphs and what Lord Sumption says in paras 20, 21, 25 and 26. The only real difference arises from their interpretation of the grounds upon which the House of Lords decided A v Secretary of State for the Home Department [2005] 2 AC 68. On that issue, while there are passages in some of the opinions which support the rather wider ratio suggested by Lord Sumption in para 25, I agree with what Lord Reed says in para 95 97. The explanation for the fact that Lord Sumption and Lord Reed have reached opposing conclusions on Bank Mellats substantive challenge to the Direction largely lies in the difference between their respective analyses of the facts. Essentially, Lord Sumption concludes that the Treasurys decision to make the Direction was legally flawed for two main reasons, which he summarises in para 22. First, that there was no reason to single out Bank Mellat, as the problem [which the Treasury relies on] is a general problem of international banking; secondly, that the ground now advanced by the Treasury for the Direction is different from that advanced by Government ministers when the Order was placed before Parliament. I have concluded that, while those two points each have some force in a qualified form, neither of them amounts to a sufficiently justified criticism of the Direction to justify quashing the Order. I agree with Lord Reeds analysis in relation to the first point in paras 105 117, and, in relation to the second point, paras 119 124. However, because the issue is finely balanced, as evidenced by the division of opinion in this Court, I will briefly summarise my reasons. As to the first point, it seems to me that the Treasury considered that it was appropriate to make a direction under Schedule 7 against Bank Mellat for a combination of grounds. In summary, those grounds were (i) Bank Mellat was an Iranian bank, and Irans banking system lacked the controls to prevent the funding of proliferation, which most other countries had, (ii) Bank Mellat had, as a matter of fact, provided banking services to businesses connected with Irans nuclear weapons programme (the programme), (iii) other Iranian banks with branches or subsidiaries in London, who had helped finance the programme, were subject to asset freezing orders or to a systematic reporting requirement, and (iv) although other Iranian banks could be used for the purpose, the Order would represent a severe constraint on Irans ability to obtain banking services for the purpose of funding the programme. Ground (iii) and, to some extent, ground (iv) are defensive rather than inherently justificatory. Ground (i) is, I accept, weakened by the fact that it is very difficult for any bank or national banking system to identify the ultimate purpose for which facilities are being provided, especially where the customer wishes to conceal that purpose. Nonetheless, that does not wholly undermine ground (i), especially in relation to an Iranian bank which has supported entities connected with the programme. As to ground (ii), it is true that Bank Mellat conscientiously took steps to sever its relationship with the entities which had been involved with the programme, but that was only after UN Security Council resolution 1747 in 2007, and, even then, facilities were being provided to one such entity even after these proceedings had been initiated. Despite ground (iii), there may have been some Iranian banks which had access to the London market, but they were few and small, and there was no evidence that they were funding entities which supported the programme. Ground (iv) on its own would not be impressive, but it is, in my view, a reasonable additional factor which helps underpin the decision to give the Direction. I do not find it easy to resolve the question of whether Bank Mellats substantive challenge to the Direction should succeed. As the brief summary in the preceding two paragraphs suggests, and as is also apparent from the much fuller analysis proffered by Lord Reed, the arguments raised by the Treasury to justify the Direction are not particularly strong, and the financial consequences of the Direction and subsequent Order against the Bank, which is not suggested to have intentionally supported the programme, are very grave. The Treasurys case is further weakened by the fact that, when it gave the Direction and promulgated the Order, it believed that the great majority of the shares in Bank Mellat were owned by the Iranian government, which is, and at all material times, was not the case. It is not a major point, but it does have a little traction, given that the grounds for the Direction are not particularly strong, and that this mistake does have some bearing on the Treasurys ground (iv) in para 10. All in all, while the four grounds summarised in para 170 above, even when taken together, are not overwhelming, I have reached the conclusion that they are strong enough to justify the Treasurys contention that, despite the very serious financial consequences for Bank Mellat, the Direction was given on grounds which were unassailable as a matter of law. The Direction was in an area, and related to an issue, in respect of which the courts should accord the executive a wide margin of appreciation, and, while the grounds advanced by the Treasury for giving the Direction do not appear very strong on examination, they are rational and they have some force. In those circumstances, were it not for the grave effect of the Direction on the Bank, I would fairly readily have concluded that the Treasury had acted lawfully in giving it. However, I entertain real doubt as to whether the Direction was justifiable once one weighs the benefits it was likely to achieve, in the light of the relative weakness of the grounds, against the inevitable and substantial harm it would cause to Bank Mellat. However, in the end, I am not persuaded that a court can properly conclude that the benefit of the Direction must have been so slight that the Treasury could not reasonably have concluded that it was right to give it, notwithstanding the harm the Bank would thereby suffer. On my view of the facts on the second reason identified in para 168 above, it is unnecessary to decide the further question of principle which divides Lord Sumption and Lord Reed, which the latter discusses in paras 123 124. I prefer to leave that question open. If the Treasurys justification for giving the Direction, and Ministers explanation for it to Parliament, had been that Bank Mellat knew that it was funding entities which supported the programme, which the Treasury now accepts would not have been right, a not unfamiliar question would arise. That question is the extent to which the court should uphold a decision of the executive which was justified by one reason when it was made, but when the matter comes to court, the reason is abandoned and the decision is sought to be justified by a different reason. It is an issue on which there are a number of judicial observations in a domestic judicial review context, most famously perhaps that of Megarry J in an oft quoted passage in John v Rees [1970] Ch 345, at p 402, cited with qualified approval on a number of occasions, eg in Secretary of State for the Home Department v AF [2010] 2 AC 269, paras 61 2 and 73. I would have thought that there was room for argument as to how such a question should be approached in the present context, following the introduction of the European Convention on Human Rights into UK law, especially as this is a case where the Convention is engaged (through Article 1 of the First Protocol), where proportionality is referred to in the empowering statute, and where the decision has been put before, and approved by, Parliament. The procedural ground of challenge As Lord Sumption says in paras 29 30, where the executive intends to exercise a statutory power to a persons substantial detriment, it is well established that, in the absence of special facts, the common law imposes a duty on the executive to give notice to that person of its intention, and to give that person an opportunity to be heard before the power is so exercised. While this has been described as a rule of universal application founded upon the plainest principles of justice (per Willes J in Cooper v Board of Works for the Wandsworth District (1863) 14 CB (NS) 180, 190), it has more recently been expressed in somewhat more measured terms. In R v Secretary of State for the Home Department Ex p Doody [1994] 1 AC 531, 560, Lord Mustill said that fairness will very often require that a person who may be adversely affected by the decision will have an opportunity to make representations either before the decision is taken ; or after it is taken, with a view to procuring its modification. In my view, the rule is that, before a statutory power is exercised, any person who foreseeably would be significantly detrimentally affected by the exercise should be given the opportunity to make representations in advance, unless (i) the statutory provisions concerned expressly or impliedly provide otherwise or (ii) the circumstances in which the power is to be exercised would render it impossible, impractical or pointless to afford such an opportunity. I would add that any argument advanced in support of impossibility, impracticality or pointlessness should be very closely examined, as a court will be slow to hold that there is no obligation to give the opportunity, when such an obligation is not dispensed with in the relevant statute. For the reasons given by Lord Sumption in paras 28 49, I consider that the Direction in this case was invalid owing to the failure of the Treasury to afford Bank Mellat the opportunity of making representations prior to its being made. Because of the division of opinion on this issue, I will attempt to summarise my reasons On the face of it at least, this was a paradigm case for the giving of prior notice. (i) The Direction was targeted at just two entities, one of which was the Bank; (ii) the consequences of giving the Direction and the making of the Order would clearly be drastic so far as the Bank was concerned; (iii) there was no need for secrecy or great haste in giving the Direction; (iv) the Direction would come into effect virtually at once; (v) the reasons for the Direction and Order were all based on the Banks dealings and ownership, so there could have been little doubt but that the Bank would have had relevant things to say about the proposed direction. On this last point, the Banks knowledge of its customers activities, the Banks ability to deal with the problem of unknowingly assisting the programme, and the ownership of the Bank are all points on which the Bank would have made strong and relevant representations if it had been given the chance to do so. Despite this, Bank Mellat was given no notice of the Treasurys intention to give the Direction against it or to put the Order before Parliament, and therefore it had no opportunity to put its case as to why such a direction should not be made. The Treasury raised a number of arguments as to why it was entitled not to give notice to the Bank of its intention to give the Direction. Some of those arguments were based on provisions of the 2008 Act; others were based on impracticality. I have no hesitation in rejecting the arguments based on impracticality, namely that (i) notice would have given the Bank the opportunity to re arrange its relationships, (ii) notice would have been ineffective or difficult because of the Treasurys reliance on secret material, (iii) notice would have to have been given to all those who dealt with the Bank, which would not have been realistic. As to those arguments, I have nothing to add to what Lord Sumption says at paras 31 32. I turn then to the Treasurys arguments based on the terms of the 2008 Act. There is nothing in the express terms of the statute which assists the Treasury, and it therefore has to rely on implication. In that connection, two arguments are raised as to why no consultation was required, namely (i) the fact that the Order had to be approved by affirmative resolution in both Houses of Parliament, and (ii) section 63 of the 2008 Act (section 63) entitled Bank Mellat to challenge any direction, and thus any consequential order, after it was made, and, when taken together with other provisions of Schedule 7, it is clear that there was no duty to have prior consultation. I would reject the contention that the fact that the Direction is enshrined in, or approved by, the Order means that its validity cannot be considered by the court. I agree with what is said by Lord Sumption in paras 40 45 and by Lord Reed in para 54. The fact that the Order in the present case was confirmed by Parliament does not detract from the applicability of the rule, in so far as it applies to the actions of the executive, i.e. the Treasury decision to make the Direction, as opposed to the legislative decision to confirm the consequent Order. Consequently, if the administrative decision to make the Direction was legally flawed for failure to consult the Bank, then the consequential Order should be quashed. There is no question of such a decision of this court in any way impinging on the sovereignty of Parliament. Lord Reed, however, relies in para 61 on para 14(5) of Schedule 7, which provides that if an order under Schedule 7 would be treated for the purposes of the standing orders of either House of Parliament as a hybrid instrument, it is to proceed in that House as if it were not such an instrument. In my view, the provision takes the matter no further, as it relates to the characterisation of, and Parliamentary processes relating to the making of, an order. I do not, with respect, see how it can impinge on the lawfulness of the Treasurys processes when deciding to make the antecedent direction. If anything, the exclusion of Bank Mellat from the Parliamentary process, as illuminatingly explained by Lord Hope, seems to me to support the argument that the Bank ought to have been consulted earlier. As to the Treasurys second argument, it may be that, in some cases, the fact that the statute granting the power in question gives a specific right of challenge subsequent to its exercise can be enough to dispense with any prior obligation to consult. However, in my view, it is by no means a sufficient answer in many cases. As a matter of logic, the two rights are a long way away from being mutually inconsistent or even duplicative. Indeed, if it were otherwise, the right to be consulted would be very rare, because, as Lord Sumption points out in para 37, there is almost always a right to challenge a decision of the executive as a matter of public law. A right to be consulted before a power is exercised is very different in its nature and in its potential effect from a right to challenge it after it has been exercised. The former involves representations to the intending exerciser of the power in relatively informal and flexible circumstances with a variety of possible outcomes, whereas the latter involves arguing against the exerciser in a formal, forensic context, where the courts powers are relatively constrained. In an era where mediation is increasingly supported, not least by the executive, the desirability of prior consultation, even where subsequent challenge through the courts is possible, is at least as great as it ever was. As between the two rights, the present case provides a very good demonstration of the difference between them in terms of their effect. The right to challenge a direction under Schedule 7 has many drawbacks compared with a right to be consulted before the direction is given. Particularly as the Direction has virtually immediate effect, the time it may take to challenge any subsequent order, coupled with the uncertainty while such challenge is under way, and the costs involved in such a challenge, mean that a subsequent right of challenge would be much less valuable than a right to make representations in advance. Further, there must be a real risk of a significant adverse effect on a banks reputation if a direction is made, even if it is subsequently quashed. Ignoring the subsequent appeals, well over seven months elapsed between the giving of the Direction in this case and Mitting Js decision as to its validity. Seven months is a very long time from the Banks perspective, and, even viewed objectively, it is a long time given that the Direction was only to last for twelve months. I am unimpressed by the Treasurys reliance on section 63. It purports to grant little, if anything, more than a specific statutory right to persons against whom a direction is made than they would be accorded by public law. That is clear from subsection (3) which provides that, on any challenge to a direction the court shall apply the principles applicable on an application for judicial review. Unlike Lord Reed in para 62, I do not see section 63 as giving greater rights to a person against whom a direction is made than they would enjoy under public law; nor do I consider that sections 65 68 of the 2008 Act suggest otherwise. Those sections were included, in my view, to deal with the need to protect confidential material in any proceedings under section 63. Indeed, I suspect that section 63 was included in the Act because it was more sensible in drafting terms to link those procedures to proceedings specified in the 2008 Act. Lord Reed identifies a number of other factors in paras 58 62 of his judgment which, when taken together with sections 63, and 65 8, of the 2008 Act, persuade him that the normal duty to consult has been abrogated. I do not agree. At a high level, I consider that, while the right to be consulted in advance about the exercise of a statutory power which will cause significant harm can be abrogated by implication in the statute, the right is so important that the implication must be very clear. More specifically, I am unimpressed with the various other factors which weigh with Lord Reed. The difficulty of consulting because of the need for confidentiality does not impress me for the reason given by Lord Sumption in para 31. It may be that, where the Treasury was proposing to make a direction against another bank or banks in different circumstances, it may not be practicable to give it or them to give an opportunity to comment, but such a point must be assessed on a case by case basis and in this case it fails for the reasons given by Lord Sumption in paras 31 33. As already explained, I do not consider that para 14(5) of Schedule 7 assists. Nor do I find para 15 of Schedule 7 of much help. The 2008 Act clearly had to specify the date from which a direction took effect, and where the direction concerned a specific person, as in this case, it was obviously sensible to provide that it took effect on the date on which it was served on that person. I find it impossible to think of any other way of ensuring both clarity and fairness. Conclusion In my view, therefore, Bank Mellats appeal should be allowed, the direction made by the Treasury should be set aside, and the Order quashed. I end by pointing out that the two grounds of challenge to the Direction in this case are not entirely unrelated either in principle or in fact. The uniting principle which applies both to the Banks substantive challenge and to its procedural challenge is the fundamental public law rule that the executive must exercise a statutorily conferred power fairly. When it comes to giving a direction under Schedule 7 which will foreseeably and substantially harm an entity, fairness requires the Treasury to have good enough reasons for giving the direction. It equally requires the Treasury to give the entity notice of the intention to give the direction, so that the entity can make representations about it in advance. So far as the facts are concerned, I have explained in paras 170 174 above why there is in my view considerable force in the Banks substantive challenge to the giving of the Direction, The fact that the justification for the Direction was not very strong, coupled with the more specific facts that the Treasury was wrong about the ownership of Bank Mellat and could usefully have discovered what steps the Bank was taking to avoid inadvertently supporting the programme, provide specific and practical support for the conclusion that the Bank should have been given an opportunity to make representations before the Direction was given. LORD DYSON (dissenting in part) I agree, for the reasons given by Lord Sumption, that the appeal should be allowed on the procedural issue. I was at first persuaded by Lord Sumptions judgment that the appeal should also be allowed on the substantive issue. But, like Lord Hope and Lord Neuberger, I find Lord Reeds analysis at paras 102 to 117 and 118 to 122 more convincing. Like Lord Neuberger, I express no view on paras 123 and 124 of Lord Reeds judgment. The Treasury has explained why Bank Mellat was singled out. The explanation is summarised at paras 103 to 106 and 113 of Lord Reeds judgment. Lord Sumption accepts (para 27) that the Schedule 7 direction may well have added something to Irans practical problem in financing transactions associated with its weapons programmes. But he concludes that the direction was irrational in its incidence and disproportionate to any contribution which it could rationally be expected to make to its objective. This conclusion is based on (i) making an assessment of what effect the direction would have on Irans ability to finance the weapons programme and (ii) conducting a proportionality exercise by balancing that effect against the undoubtedly grave consequences that the direction would have for Bank Mellat. As Lord Sumption acknowledges at para 21, any assessment of the rationality and proportionality of the direction must recognise that the nature of the issue requires that the Treasury be allowed a large area of judgment or margin of appreciation. The court is in a poor position to weigh the effectiveness of a measure whose object is to reduce (if not eliminate) Irans ability to fund its weapons programmes. This is not an area in which the court has any expertise. Accordingly, it should only hold that such a measure is irrational or disproportionate if it is confident that this has been clearly demonstrated. For the reasons given by Lord Reed, I am not confident that this has been done in the present case. I would therefore dismiss the appeal on the substantive issue. LORD CARNWATH (dissenting in part) judgments in support, I do not propose to add anything of my own. It seems better that Lord Sumptions reasoning should stand as the single majority judgment on this crucial issue. On the procedural point, by contrast, I find myself clearly on the side of the minority, agreeing wholly with the reasoning of Lord Hope on what I regard as a point of considerable general importance (paras 134 159). Like the other partial dissentients my views on the substantive issue have wavered. In the end however I am persuaded by Lord Sumption that the appeal should succeed on that issue for the reasons he gives (his paras 19 27). Notwithstanding the force of Lord Reeds alternative analysis, and the other

This appeal concerns the use of a closed material procedure (CMP) in the Supreme Court. A CMP involves the production of material which is so confidential and sensitive that it requires the court not only to sit in private, but to sit in a closed hearing. At a closed hearing, the court considers the material and hears submissions about it without one of the parties to the appeal seeing the material or being present, although that partys interests are protected, at least to an extent, by the presence of special advocates who make such submissions as they can on behalf of that party. A CMP also involves the court at least contemplating giving a judgment, part of which will be closed and not be seen by one of the parties or the public. Pursuant to various provisions of the Counter Terrorism Act 2008 (the 2008 Act), the Treasury made the Financial Restrictions (Iran) Order 2009 (the 2009 Order), which Parliament subsequently approved. The 2009 Order effectively shut down the United Kingdom operations of Bank Mellat (the Bank) and its subsidiary. Section 63 of the 2008 Act gives any party affected by such an order the right to apply to the High Court to set it aside. The Bank made such an application. The Government took the view that some of the evidence relied on by the Treasury to justify the 2009 Order was of such sensitivity that it could not be shown to the Bank or its representatives. In the High Court, Mitting J accepted the Governments case that justice required that the evidence in question be put before the court and that it had to be dealt with by a CMP. The hearing before him was partly in open court and partly at a closed hearing. Mitting J handed down an open judgment, in which he dismissed the Banks application, and a shorter closed judgment, which was seen by the Treasury, but not by the Bank, and is not publicly available. In the Court of Appeal, the appeal was heard largely by way of an open hearing. However, there was a short closed hearing at which the closed judgment of Mitting J was considered. The Court of Appeal dismissed the Banks appeal in an open judgment, and while it referred in general terms to the closed material in that open judgment, the Court of Appeal found it unnecessary to give a closed judgment. Before the Supreme Court, the Banks appeal was divided into two issues. The first issue concerned the use of a CMP in the Supreme Court. The second issue concerned the Banks appeal against the Court of Appeals decision to approve Mitting Js upholding of the 2009 Order. This judgment is on the first issue. A second judgment is given on the second issue: see Bank Mellat v Her Majestys Treasury (no. 2) [2013] UKSC 39. The Supreme Court decides (i) by a majority of six to three (Lord Hope, Lord Kerr and Lord Reed dissenting), that it is possible for the Supreme Court to adopt a CMP on an appeal, (ii) by a majority of five to four (Lord Hope, Lord Kerr, Lord Dyson, and Lord Reed dissenting), that it was appropriate to adopt a CMP in this appeal. Lord Neuberger gives the judgment of the majority on both (i) and (ii). Closed material procedures in the Supreme Court Section 40(2) of the Constitutional Reform Act 2005 (the 2005 Act) provides that an appeal lies to the Supreme Court against any judgment of the Court of Appeal. That must extend to a judgment which is wholly or partially closed. It would appear to be implicit in the notion that an appeal can be brought against a closed judgment that the appellate court can consider the closed judgment, and, at least at first sight, that could only be done at a closed hearing. That view is reinforced once one considers the other alternative courses of action, all of which are patently unsatisfactory [38] [42]. The notion that the Supreme Court has power to take such a course is reinforced by section 40(5) of the 2005 Act, which gives the Court the power to determine any question necessary for the purposes of doing justice [37]. Therefore, the Supreme Court can conduct a CMP where it is satisfied that it may be necessary to do so in order to dispose of an appeal [43]. It follows that the Supreme Court has the power to entertain a CMP on appeals against decisions of the courts of England and Wales on applications brought under section 63 of the 2008 Act [47]. Where a CMP has been adopted at first instance and in the Court of Appeal, for the Supreme Court to entertain an appeal without considering the closed material would, at least in many cases, not be doing justice, either in the sense of fairly determining the appeal, or in the sense of being seen fairly to determine the appeal [44]. The minority consider that Parliament has not conferred the power to conduct a CMP on the Supreme Court [78],[134]. For the Supreme Court to conduct a CMP would be contrary to the fundamental principle of the common law right to a fair trial [103],[138]. There is a strong presumption that Parliament does not intend to interfere with the exercise of fundamental rights, and it will be understood as doing so only if it does so expressly or by necessary implication [105],[135]. In the 2008 Act, Parliament introduced a CMP for the High Court, the Court of Session, and the Court of Appeal, but did not introduce such a procedure for the Supreme Court [125]. It is inconceivable that it was intended that the Supreme Court should have the power to carry out a CMP while leaving it bereft of the structure and safeguards which were deemed essential for those courts in which such a hearing is expressly permitted [116]. There are alternatives to CMPs in the Supreme Court, and choices to be made in relation to them, which are appropriately made by Parliament after full consideration [137]. Closed material procedure in this appeal Despite strong suspicions that nothing in Mitting Js closed judgment would have any effect on the outcome of the appeal, the majority decided to grant the Treasurys request to hold a CMP to consider it. This was because they could not be sure, without seeing the closed judgment and listening to submissions on it, whether the closed judgment would have any effect on the outcome of the appeal, and there seemed to be a real risk of justice not being seen to be done to the Treasury if the Supreme Court did not proceed to hold a closed hearing [64]. Having held a closed hearing, it turned out that there had been no point in the Supreme Court seeing the closed judgment, because there was nothing in it which could have affected the Supreme Courts reasoning in relation to the substantive appeal on the 2009 Order [65] [66]. Several conclusions can be drawn from this experience, which should be considered by any appellate court considering whether to adopt a CMP and by any advocate considering inviting an appellate court to take such a course [67] [74],[89] [97]. The minority consider that the Treasury fell far short of what was needed to show that a CMP was necessary in this case [90],[130],[139],[145]. This was because (i) the Court of Appeal did not find it necessary to refer to the closed judgment in any detail [91], (ii) there was no closed ground of appeal in this case [92], and (iii) the Treasury failed to indicate how looking at the closed judgment would assist in the disposal of the appeal [93] [96]. A CMP should be resorted to only where it has been convincingly demonstrated to be genuinely necessary in the interests of justice [128],[140]. If the Court strongly suspects that nothing in the closed material is likely to affect the outcome of the appeal, it should not order a closed hearing [144].

long

Where an international commercial contract contains an agreement to resolve disputes by arbitration, at least three systems of national law are engaged when a dispute occurs. They are: the law governing the substance of the dispute; the law governing the agreement to arbitrate; and the law governing the arbitration process. The law governing the substance of the dispute is generally the law applicable to the contract from which the dispute has arisen. The law governing the arbitration process (sometimes referred to as the curial law) is generally the law of the seat of the arbitration, which is usually the place chosen for the arbitration in the arbitration agreement. These two systems of law may differ from each other. Each may also differ from the law which governs the validity and scope of the arbitration agreement. The central issue on this appeal concerns which system of national law governs the validity and scope of the arbitration agreement when the law applicable to the contract containing it differs from the law of the seat of the arbitration. This is an issue which has long divided courts and commentators, both in this country and internationally. On one side there are those who say that the law that governs a contract should generally also govern an arbitration agreement which, though separable, forms part of that contract. On the other side there are those who say that the law of the chosen seat of the arbitration should also generally govern the arbitration agreement. There have been Court of Appeal decisions falling on either side of this divide: Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102 and C v D [2007] EWCA Civ 1282; [2008] Bus LR 843. In its judgment in the present case [2020] EWCA Civ 574, the Court of Appeal considered that the time has come to seek to impose some order and clarity on this area of the law (para 89) and held that, unless there has been an express choice of the law that is to govern the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice, subject only to any particular features of the case demonstrating powerful reasons to the contrary (para 91). On this appeal the appellant argues that this conclusion is heterodox and wrong and that the correct approach is that, in the absence of strong indications to the contrary, a choice of law for the contract is a choice of that law to govern the arbitration agreement. The appellant contends that in the present case the parties have chosen Russian law to govern the construction contract between them and that the implication that they intended the arbitration agreement included in that contract to be governed by Russian law is not displaced by their choice of London as the seat of arbitration. If that issue is decided in its favour, the appellant goes on to argue that the Court of Appeal was wrong to grant an injunction to restrain it from pursuing proceedings in Russia in alleged breach of the arbitration agreement. The appellants case is that, because the arbitration agreement is governed by Russian law, the Russian courts are best placed to decide whether or not the arbitration agreement applies to the claim which the appellant has brought against the respondent in Russia and that, as a matter of comity or discretion, the English courts ought not to interfere with those proceedings by granting an anti suit injunction. II. Factual background (i) The construction contract On 1 February 2016 a power plant situated at Berezovskaya in Russia was severely damaged by fire. The appellant (Chubb Russia) is a Russian insurance company which had insured the owner of the power plant, a company now named PJSC Unipro (Unipro), against such damage. Chubb Russia is part of the Chubb Group, which is the worlds largest publicly traded property and casualty insurer. The company responsible for the design and construction of the power plant under a contract made with Unipro in May 2011 was a Russian company called CJSC Energoproekt. The respondent (Enka) was engaged by Energoproekt as one of many sub contractors involved in the construction project. Enka is a global engineering and construction company incorporated and based in Turkey with a substantial presence and history of operations in Russia, amongst other countries. The contract between Energoproekt and Enka dated 27 June 2012 (the construction contract) is a substantial document running to 97 pages, with around 400 pages of attachments. It was executed in parallel Russian and English versions (though it provides that the Russian language version has precedence). The construction contract contains, in article 50, a dispute resolution clause in these terms: Resolution of disputes 50.1. The Parties undertake to make in good faith every reasonable effort to resolve any dispute or disagreement arising from or in connection with this Agreement (including disputes regarding validity of this agreement and the fact of its conclusion (hereinafter Dispute) by means of negotiations between themselves. In the event of the failure to resolve any Dispute pursuant to this article within 10 (ten) days from the date that either Party sends a Notification to the opposite Party containing an indication of the given Dispute (the given period may be extended by mutual consent of the Parties) any Party may, by giving written notice, cause the matter to be referred to a meeting between the senior managements of the Contractor and Customer (in the case of the Contractor senior management shall be understood as a member of the executive board or above, in the case of Customer, senior management shall be understood as general directors of their respective companies). The parties may invite the End Customer to such Senior Management Meeting. Such meeting shall be held within fourteen (14) calendar days following the giving of a notice. If the matter is not resolved within twenty (20) calendar days after the date of the notice referring the matter to appropriate higher management or such later date as may be unanimously agreed upon, the Dispute shall be referred to international arbitration as follows: the Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, appointed in accordance with these Rules, language, and the Dispute shall be settled by three arbitrators the arbitration shall be conducted in the English the place of arbitration shall be London, England. in 50.2. Unless otherwise explicitly stipulated this Agreement, the existence of any Dispute shall not give the Contractor the right to suspend Work. 50.3. Not used. 50.4. Not used. 50.5. All other documentation such as financial documentation and cover documents for it must be presented in Russian. On 21 May 2014 Energoproekt transferred its rights and obligations under the construction contract to Unipro pursuant to an assignment agreement made between Energoproekt, Unipro and Enka. By clause 7.5 of that agreement, the parties agreed that disputes between Unipro and Enka were to be finally and exclusively resolved by arbitration in accordance with the provisions of article 50.1 of the construction contract. After the fire in February 2016 Chubb Russia paid 26.1 billion roubles (approximately US$400m) to Unipro under its property insurance policy and thereby became subrogated to any rights of Unipro to claim compensation from third parties for the damage caused by the fire. (ii) The Russian proceedings On 25 May 2019 Chubb Russia filed a claim in the Moscow Arbitrazh (ie commercial) Court against Enka and ten other defendants whom it claimed were jointly liable for the damage caused by the fire. Chubb Russia was required by the Moscow court to provide further details of its claims, following which the claims were accepted by the court on 3 September 2019. On 17 September 2019 Enka filed a motion in the Russian proceedings to have Chubb Russias claim against it dismissed (or left without consideration) pursuant to article 148(5) of the Arbitrazh Procedure Code, which is intended to give effect to Russias obligations under article II(3) of the Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958 (the New York Convention) to refer to arbitration parties who have agreed to submit to arbitration a dispute of which a court of a contracting state is seized. Enka argued that the claim against it fell within the scope of the arbitration agreement contained in article 50.1 of the construction contract and ought therefore to be resolved, not by the Russian courts, but by an arbitration conducted in accordance with that provision in London. The Moscow court decided to deal with Enkas motion at the same time as the merits of Chubb Russias claims at a hearing fixed for 22 January 2020. Following that hearing, which continued on two later dates, on 18 March 2020 the judge in the Russian proceedings announced her decisions (a) not to grant Enkas motion to refer the claim against it to arbitration and (b) to dismiss Chubb Russias claims against all the defendants on the merits. The reasons for those decisions were given in a written judgment handed down on 6 May 2020. Chubb Russia and Enka have both filed appeals in the Russian proceedings (in relation to the decision on the merits and the decision to refuse Enkas application, respectively). (iii) The English proceedings Meanwhile, Enka had on 16 September 2019 brought an arbitration claim in the Commercial Court in London seeking an anti suit injunction to restrain Chubb Russia from further pursuing the Russian proceedings against Enka on the ground that this was a breach of the arbitration agreement in article 50.1 of the construction contract. Enka also sought injunctions against other members of the Chubb Group said to be caught up in Chubb Russias breach of the arbitration agreement, namely Chubb UK Ltd, Chubb European Group SE (Chubb Europe) and the ultimate parent company of the Chubb Group which is incorporated in Switzerland. On 15 October 2019 Carr J declined to grant an interim anti suit injunction but gave directions for an expedited trial. The trial took place on 11 and 12 December 2019 before Andrew Baker J. He gave judgment on 20 December 2019, dismissing Enkas claims against all the defendants. His primary reason for doing so was that he considered the appropriate forum to decide whether Chubb Russias claim against Enka falls within the arbitration agreement to be the Moscow Arbitrazh Court and not the English Commercial Court. Enka applied to the Court of Appeal for permission to appeal from this decision as it applied to Chubb Russia (alone). The application was granted on 6 February 2020 and the appeal was heard on 7 and 8 April 2020. On 29 April 2020 the Court of Appeal (Flaux, Males and Popplewell LJJ) allowed Enkas appeal and issued an anti suit injunction restraining Chubb Russia from continuing the Russian proceedings. (iv) The arbitration proceedings On 10 January 2020 Enka gave notice to Chubb Russia and Chubb Europe of a Dispute under article 50 of the construction contract. This was followed on 11 March 2020 by a request for arbitration filed with the International Chamber of Commerce (ICC) in which Enka sought a declaration that Chubb Russias claims in the Russian court fall within the scope of the arbitration agreement and damages. On 22 May 2020 Chubb Russia and Chubb Europe filed their answer to the request for arbitration in which they challenged the jurisdiction of the arbitrators and denied that Enka is entitled to any of the relief claimed. On 12 June 2020 the ICC notified the parties of the appointment of Mr Michael Brindle QC as president of the arbitral tribunal. The other members of the tribunal are Lord Hoffmann, nominated by Enka, and Lord Mance, nominated by Chubb Russia and Chubb Europe (without prejudice to their objections to the jurisdiction of the tribunal). (v) This appeal On 26 May 2020 Chubb Russia applied to the Supreme Court for permission to appeal from the decision of the Court of Appeal. On 5 June 2020 this court granted permission to appeal and also stayed the anti suit injunction upon Chubb Russia giving suitable undertakings to protect Enkas position pending the outcome of the appeal. The appeal was expedited and heard over two days on 27 and 28 July 2020. It is a striking feature of the English proceedings that the trial, the appeal to the Court of Appeal and the appeal to the Supreme Court have all been heard in just over seven months. This is a vivid demonstration of the speed with which the English courts can act when the urgency of a matter requires it. III. The English conflict of laws rules (i) The Rome I Regulation Where a court of England and Wales has to decide which system of national law governs a contract, the court must normally apply the provisions of the Rome I Regulation (a shorthand for Regulation (EC) No 593/2008 of the European Parliament and of the Council of 17 June 2008 on the law applicable to contractual obligations). By article 1(1), the Rome I Regulation applies, in situations involving a conflict of laws, to contractual obligations in civil and commercial matters. Article 1(2)(e), however, excludes from its scope arbitration agreements and agreements on the choice of court. Pursuant to article 3, a contract to which the Rome I Regulation applies is governed by the law chosen by the parties, where the choice is made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. In determining whether the parties have made a choice of law, the court should adopt a broad Regulation based approach, not constrained by national rules of contractual interpretation: see eg Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 32 048. Article 4 contains rules for determining the law applicable to the contract to the extent that no such choice has been made. Article 4(1) sets out presumptions or prima facie rules that apply in relation to particular types of contract. However, where it is clear from the circumstances of the case that the contract is manifestly more closely connected with another country, or where none of the prima facie rules applies, articles 4(3) and 4(4) respectively provide for the contract to be governed by the law of the country with which it is most closely connected. (ii) The common law rules Because the Rome I Regulation does not apply to arbitration agreements, an English court which has to decide which system of law governs the validity, scope or interpretation of an arbitration agreement must apply the rules developed by the common law for determining the law governing contractual obligations. Those rules are that a contract (or relevant part of it) is governed by: (i) the law expressly or impliedly chosen by the parties; or (ii) in the absence of such choice, the law with which it is most closely connected: see eg Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), rule 64(1). In view of the similarity between the common law rules and the rules provided by the Rome I Regulation, cases in which the two regimes would yield different results are likely to be rare. But in principle, where an English court has to determine which law governs an arbitration agreement incorporated in a contract, it is the common law rules alone which because of the exclusion of arbitration agreements from the scope of the Rome I Regulation by article 1(2)(e) the court must apply. (iii) Party choice The starting point at common law (as under the Rome I Regulation) is that contracting parties are free to choose the system of law which is to govern their contract, provided only that their choice is not contrary to public policy. The court must therefore construe the contract to see whether the parties have agreed on a choice of law to govern it. As Lord Diplock explained in Cie Tunisienne de Navigation SA v Cie dArmement Maritime SA [1971] AC 572, 603: The first stage, therefore, when any question arises between parties to a contract as to the proper law applicable to it, is to determine whether the parties intended by their contract to exercise any choice at all and, if they did, to determine what was the system of law which they selected. In determining this the English court applies the ordinary rules of English law relating to the construction of contracts. The exclusion of arbitration agreements from the scope of the Rome I Regulation by article 1(2)(e) does not prevent an arbitration clause from being taken into consideration for the purposes of article 3 in determining whether there has been a choice of the law applicable to other parts of the contract, as noted in Giuliano and Lagarde, Council Report on the Convention on the law applicable to contractual obligations (OJ EU No C 282 1) at p 12. By the same token, the fact that other parts of the contract are within the scope of the Rome I Regulation does not prevent them from being taken into consideration in determining in accordance with the English common law rules of construction whether the parties have agreed on a choice of law to govern the arbitration clause. Like any question of contractual interpretation, this is a unitary exercise which requires the court to construe the contract, including the arbitration clause, as a whole. (iv) Law of the forum Where an English court has to decide whether a contract which is said to be governed by a foreign system of law is valid, the court applies the putative applicable law, in other words the law which would govern the contract if it were validly concluded. At the prior stage, however, of determining what is the applicable law or putative applicable law of the contract, all the leading authorities proceed on the basis that it is English rules of law which apply, as stated by Lord Diplock in the passage quoted above. In the Tunisienne case, for example, a contract for the transport of oil in several shipments contained a provision (clause 13) that the contract shall be governed by the laws of the flag of the vessels carrying the goods . The first question which the House of Lords had to decide was whether, in the circumstances of the case which included the fact that vessels flying different flags were used to ship the oil, this clause conveyed a choice of French law to govern the contract, as the shipowners argued. To answer that question the House did not apply the rules of French law governing the interpretation of contracts, but (only) those of English law. The same approach was adopted in Whitworth Street Estates (Manchester) Ltd v James Miller & Partners Ltd [1970] AC 583, where the House of Lords held that subsequent conduct of the parties could not be looked at to construe a contract in order to decide whether it was intended to be governed by English (rather than Scottish) law. The exclusion of subsequent conduct as an aid to interpretation is a consequence of the objective principle of interpretation in English law, which searches not for what the parties subjectively thought or intended the effect of their contract to be but for what reasonable people in their position would be understood to have meant by the language used. Although in the Whitworth Street Estates case English law was one putative applicable law of the contract, there is no suggestion in the speeches that this was the basis for applying English principles of contractual interpretation. In our view, it is both consistent with authority and sound in principle to apply English law as the law of the forum to ascertain whether the parties have agreed on the law which is to govern their contract (and, if not, what law governs it in the absence of agreement). To apply any other law for this purpose would introduce an additional layer of complexity into the conflict of laws analysis without any clear justification and could produce odd or inconsistent results. As the authors of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) observe, at para 32 036, by reference to a case in which subsequent conduct was taken into account to construe a contract found to be governed by Chilean law because it was admissible under that law: But it would be very odd if when a question arose as to whether a contract was governed by English law or Chilean law, subsequent conduct would not be taken into account in determining whether a choice of English law could be inferred, but it could be taken into account in determining whether Chilean law applied. The Court of Appeal in the present case asserted (although without explanation) that, in construing the contract to determine whether a choice of governing law applies to an arbitration agreement within it, the court should apply the principles of construction of the main contract law if different from English law (see paras 90 and 105(2) of the judgment). We do not consider this to be correct. As we have indicated, the proper approach in determining whether there has been a choice of law is to apply English law as the law of the forum. Where the question is whether there has been a choice of the law applicable to an arbitration clause, the relevant English law rules are the common law rules which require the court to interpret the contract as a whole applying the ordinary English rules of contractual interpretation. The main contract law, if different, has no part to play in the analysis. (v) Express or implied choice Many of the cases applying the common law rules distinguish between a choice of law which is express or implied. Article 3 of the Rome I Regulation draws a similar distinction in referring to a choice which is made expressly or clearly demonstrated. The terminology is useful in reflecting the fact that an agreement on a choice of law to govern a contract, like any contractual term, may be explicitly articulated or may be a matter of necessary implication or inference from other terms of the contract and the surrounding circumstances. The distinction, however, is not a sharp one: language may be more or less explicit and the extent to which a contractual term is spelt out in so many words or requires a process of inference to identify it is a matter of degree. Determining whether the parties have agreed on a choice of law to govern their contract is in every case a question of interpretation. It is also important to keep in mind that whether a choice is described as express or implied is not a distinction on which any legal consequence turns. An implied choice is still a choice which is just as effective as a choice made expressly. (vi) The default rule Where a choice of law cannot be identified by interpreting the contract, the approach of the common law was at one time to presume that the parties must nevertheless have intended their contract to be governed by some particular system of national law and to impute a relevant intention to them. This is reflected, for example, in the first edition of Diceys treatise on the conflict of laws, which defined the law governing a contract as the law or laws to which the parties intended, or may fairly be presumed to have intended, to submit themselves: Dicey, A Digest on the Law of England with reference to the Conflict of Laws, 1st ed (1896), rule 143. In the second half of the 20th century, however, the test of presumed intention came gradually to be superseded by an acknowledgement that at this stage of the analysis the court is no longer concerned with intention at all and is applying a positive rule of law, with the rule being that the contract is governed by the system of law with which it has its closest and most real connection: see Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), paras 32 006 32 007; Hellenic Steel Co v Svolamar Shipping Co Ltd (The Komninos S) [1991] 1 Lloyds Rep 370, 374 (Bingham LJ). Lord Diplock stated the modern position clearly in the Tunisienne case, at pp 603 604: If, applying these rules [sc the ordinary rules of English law relating to the construction of contracts], the court reaches the conclusion that the parties did not intend to exercise any choice of proper law, or is unable to identify what their choice was, it becomes necessary for the court to proceed to the second stage, of determining itself what is the proper law applicable. In doing so, the court applies the English rule of the conflict of laws that the proper law is that system of law with which the transaction has its closest and most real connection: Bonython v Commonwealth of Australia [1951] AC 201, 219. My Lords, this is applied as a positive rule of English law. It is applied not because it is the choice of the parties themselves but because they never intended to exercise their liberty to make a choice or, if they did, they have failed to make their choice clear. Whether the parties have agreed on a choice of law is a matter which inevitably may sometimes give rise to differences of opinion. In the Tunisienne case three members of the House of Lords appellate committee (Lord Morris of Borth y Gest, Viscount Dilhorne and Lord Diplock) held that clause 13 (quoted earlier) was in its context to be construed as an agreement that French law was to govern the contract. The other two members of the committee (Lord Reid and Lord Wilberforce) did not consider that the clause could be so construed but still concluded at the second stage of the analysis that French law was the governing law. In Amin Rasheed Shipping Corpn v Kuwait Insurance Co (The Al Wahab) [1984] AC 50, Lord Diplock (with whose speech three of the other law lords agreed) applied the principles he had identified in the Tunisienne case to determine whether an insurance contract was governed by English law or the law of Kuwait. He concluded (at p 62) that on their proper construction the provisions of the contract, taken as a whole, by necessary implication point ineluctably to the conclusion that the intention of the parties was that their mutual rights and obligations under it should be determined in accordance with the English law of marine insurance. Lord Wilberforce reached the same result on the basis that English law was the system of law with which the contract had the closest and most real connection. (vii) Splitting the contract English common law (along with other legal systems) recognises the possibility that different parts of a contract may be governed by different laws a concept known in conflict of laws theory as dpeage. This is also expressly provided for in the Rome I Regulation. Article 3(1) includes the statement: By their choice the parties can select the law applicable to the whole or to part only of the contract. There are many English cases in which courts have contemplated that different obligations in the same contract may be governed by different laws. The earliest such case to which we were referred was the decision of the Court of Appeal in Jacobs, Marcus & Co v Crdit Lyonnais (1884) 12 QBD 589. There appear to be few cases, however, in which such a situation has been found to exist (although one such case is Libyan Arab Foreign Bank v Bankers Trust [1989] QB 728, 746 747). No doubt this is because, as Lord MacDermott said in Kahler v Midland Bank Ltd [1950] AC 24 at 42, the courts of this country will not split the contract in this sense readily or without good reason. It is generally reasonable to assume that parties would intend or expect their contract to be governed by a single system of law. To apply different systems of law to different parts of a contract has the potential to give rise to inconsistency and uncertainty. This is particularly so where questions about the validity or enforceability of contractual obligations arise. As observed in Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) at para 32 026: Even if different parts of a contract are said to be governed by different laws, it would be highly inconvenient and contrary to principle for such issues as whether the contract is discharged by frustration, or whether the innocent party may terminate or withhold performance on account of the other partys breach, not to be governed by a single law. The assumption that, unless there is good reason to conclude otherwise, all the terms of a contract are governed by the same law applies to an arbitration clause, as it does to any other clause of a contract. As Mustill J said in Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1981] 2 Lloyds Rep 446, 456: In the ordinary way, this [sc the law of the arbitration agreement] would be likely to follow the law of the substantive contract. An arbitration clause may, however, more readily than other clauses be governed by a different law. One reason for this is that an arbitration clause has a different subject matter and purpose from the rest of the contract. It is concerned not with establishing substantive rights and obligations of the parties but with providing a mechanism by which a dispute about such rights and obligations will be resolved. A second reason flows from the principle of separability of the arbitration agreement. This is a cardinal principle of arbitration law, codified in section 7 of the Arbitration Act 1996. Section 7 provides that, unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement shall not be regarded as invalid, non existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement. As counsel for Chubb Russia emphasised, the principle of separability is not a principle that an arbitration agreement is to be treated as a distinct agreement for all purposes but only that it is to be so treated for the purpose of determining its validity or enforceability. That is clear from the words for that purpose in section 7 of the 1996 Act. Thus, the separability principle does not require that an arbitration agreement should be treated as a separate agreement for the purpose of determining its governing law. Nevertheless, the principle is relevant to the conflict of laws analysis because it alleviates the difficulty identified by Dicey, Morris & Collins in the passage quoted at para 39 above in treating different parts of a contract as governed by different laws. Where the separability principle is recognised by the putative applicable law of the arbitration agreement, no inconsistency will arise from treating issues such as whether the contract is discharged by frustration, or whether the innocent party may terminate or withhold performance on account of the other partys breach, or whether the contract has been rescinded for misrepresentation, as governed by a different law from the law of the arbitration agreement, as the resolution of those issues will not affect the validity or enforceability of the arbitration agreement. The possibility that an arbitration agreement may be governed by a different system of law from the contract of which it forms part is also implicitly recognised by the exclusion of arbitration agreements from the scope of the Rome I Regulation, with the consequence that the law applicable to an arbitration agreement and the law applicable to the rest of the contract must be determined independently by different conflict of laws regimes. IV. Choice of law for the whole contract Significance of a governing law clause (i) It is rare for the law governing an arbitration clause to be specifically identified (either in the arbitration clause itself or elsewhere in the contract). It is common, however, in a contract which has connections with more than one country (or territory with its own legal system) to find a clause specifying the law which is to govern the contract. A typical clause of this kind states: This Agreement shall be governed by and construed in accordance with the laws of [name of legal system]. Where the contract also contains an arbitration clause, it is natural to interpret such a governing law clause, in the absence of good reason to the contrary, as applying to the arbitration clause for the simple reason that the arbitration clause is part of the contract which the parties have agreed is to be governed by the specified system of law. As stated in Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015) at para 3.12: Since the arbitration clause is only one of many clauses in a contract, it might seem reasonable to assume that the law chosen by the parties to govern the contract will also govern the arbitration clause. If the parties expressly choose a particular law to govern their agreement, why should some other law which the parties have not chosen be applied to only one of the clauses in the agreement, simply because it happens to be the arbitration clause? This approach is supported by other leading commentaries. For example, Merkin on Arbitration Law, Issue 84 (2020), para 7.12, states that: even if there is no express contractual statement to that effect, a choice of law clause for the entire agreement is likely to be construed as extending to the arbitration clause. There are numerous decisions to this effect However, that presumption may be ousted in appropriate circumstances See also Dicey, Morris & Collins on The Conflicts of Laws, 15th ed (2012) at para 16 017: If there is an express choice of law to govern the contract as a whole, the arbitration agreement may also be governed by that law. (ii) Domestic case law There is a considerable body of English case law which proceeds on the assumption that a choice of law for the contract will normally apply to an arbitration clause in the contract. The approach was summarised by Colman J in Sonatrach Petroleum Corpn (BVI) v Ferrell International Ltd [2002] 1 All ER (Comm) 627 at para 32: Where the substantive contract contains an express choice of law, but the agreement to arbitrate contains no separate express choice of law, the latter agreement will normally be governed by the body of law expressly chosen to govern the substantive contract. It has not generally been considered to make any difference in this regard that the arbitration clause provides for arbitration to take place in a different country from the country whose law has been chosen to govern the contract. Examples of decisions in which a choice of law clause in the contract has been treated as applying to the arbitration agreement despite the seat of arbitration being in a different jurisdiction include: Cia Maritima Zorroza SA v Sesostris SAE (The Marques De Bolarque) [1984] 1 Lloyds Rep 652, 653; Union of India v McDonnell Douglas Corpn [1993] 2 Lloyds Rep 48, 49 50; Sumitomo Heavy Industries Ltd v Oil and Natural Gas Commission [1994] 1 Lloyds Rep 45, 57; Deutz AG v General Electric Co (Thomas J, 14 April 2000) at p 17; Peterson Farms Inc v C&M Farming Ltd [2004] EWHC 121 (Comm); [2004] 1 Lloyds Rep 603, paras 43 46; Leibinger v Stryker Trauma GmbH [2005] EWHC 690 (Comm), para 38; and Svenska Petroleum Exploration AB v Government of the Republic of Lithuania [2005] EWHC 2437 (Comm); [2006] 1 All ER (Comm) 731, paras 76 77. A different view was expressed in XL Insurance Ltd v Owens Corning [2001] 1 All ER (Comm) 530, a case concerning a policy of insurance on Bermuda form terms which provide for New York law to govern the policy but for disputes to be determined by arbitration in London. The English court granted an injunction to restrain the insured from pursuing a claim against the insurers in the courts of Delaware. The insured argued that the choice of New York law to govern the policy included the arbitration agreement and that this agreement was invalid under the Federal Arbitration Act which formed part of New York law. Toulson J rejected that argument and concluded that, by stipulating for arbitration in London under the provisions of the 1996 Act, the parties had impliedly chosen English law to govern the arbitration agreement (see p 543b). We will consider his reasoning later in this judgment. In C v D [2007] EWCA Civ 1282; [2008] Bus LR 843, another case concerning a Bermuda form insurance policy, the Court of Appeal likewise expressed the view (obiter) that the arbitration agreement was governed by English law. In C v D, however, Longmore LJ (with whom the other members of the court agreed) reached this conclusion, not on the basis of implied choice, but on the basis that there was no choice of law for the arbitration agreement so that it was necessary to identify the law with which it was most closely connected. He considered this to be the law of the place where the parties had chosen to arbitrate rather than the law of the insurance contract (paras 25 26). Many commentaries and authorities, including XL Insurance and C v D, were considered by the Court of Appeal in Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102. In a judgment with which the other members of the court agreed, Moore Bick LJ said (at para 11): It is common for parties to make an express choice of law to govern their contract, but unusual for them to make an express choice of the law to govern any arbitration agreement contained within it; and where they have not done so, the natural inference is that they intended the proper law chosen to govern the substantive contract also to govern the agreement to arbitrate. Moore Bick LJ expressed reservations about the dicta of Longmore LJ in C v D, noting that the court in that case did not have the benefit of full citation of authority and that a rule that an arbitration agreement is governed by the law of the seat even where there is a choice of law clause in the contract cannot easily be reconciled with the earlier authorities or with the established principles for determining the proper law (para 24). His conclusion (at para 26) was in the following terms: In the absence of any indication to the contrary, an express choice of law governing the substantive contract is a strong indication of the parties intention in relation to the agreement to arbitrate. A search for an implied choice of proper law to govern the arbitration agreement is therefore likely (as the dicta in the earlier cases indicate) to lead to the conclusion that the parties intended the arbitration agreement to be governed by the same system of law as the substantive contract, unless there are other factors present which point to a different conclusion. These may include the terms of the arbitration agreement itself or the consequences for its effectiveness of choosing the proper law of the substantive contract This approach was followed in Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm); [2013] 2 All ER (Comm) 1. In that case a contract contained clauses providing that it was to be governed by the laws of India and that disputes were to be settled by arbitration in London. It was held that, as a matter of construction, the parties had chosen Indian law to govern the arbitration agreement. Recently, in Kabab Ji SAL (Lebanon) v Kout Food Group (Kuwait) [2020] EWCA Civ 6; [2020] 1 Lloyds Rep 269 the Court of Appeal similarly construed a clause in a contract which stated This Agreement shall be governed by and construed in accordance with the laws of England as meaning that all the terms of the contract were governed by English law including an arbitration clause which provided for arbitration in France. This conclusion was reinforced by the fact that the contract included a clause which stated that This Agreement consists of the terms of agreement set forth herein below . (iii) Considerations of principle A number of further considerations confirm the reasonableness of, as a general rule, construing a choice of law to govern the contract as applying to an arbitration agreement set out in a clause of the contract, even where the law chosen to govern the contract differs from that of the place chosen as the seat of the arbitration: i) This approach provides a degree of certainty. The parties can be assured that an agreement as to the governing law will generally be an effective choice in relation to all of their contractual rights and obligations and to all of their disputes. ii) It achieves consistency. The same system of law governs all the parties rights and obligations. It can be unsatisfactory for potentially closely related issues such as the identity of the contracting parties or the proper approach to the interpretation of their bargain to be governed by different systems of law, depending on whether it relates to the main contract or the arbitration agreement. iii) It avoids complexities and uncertainties. As soon as the relationship between the parties is subject to two systems of law, problems can arise as to where and how to draw the boundaries between them. This is exemplified by the increasing prevalence of multi tier dispute resolution clauses. If the arbitration agreement is governed by a different system of law from the main body of the contract, provisions that require negotiation and/or mediation and/or expert determination in advance of arbitration raise potentially difficult questions as to whether they are governed by the law applicable to the arbitration agreement or by the law generally applicable to the contract, and indeed as to whether those questions should be answered by applying the common law rules or the Rome I Regulation. Article 50.1 of the construction contract is an example of such a clause. Although we explain later how these difficulties may be addressed, if there is only one system of law then no such difficulties arise. iv) It avoids artificiality. The principle that an arbitration agreement is separable from the contract containing it is an important part of arbitration law but it is a legal doctrine and one which is likely to be much better known to arbitration lawyers than to commercial parties. For them a contract is a contract; not a contract with an ancillary or collateral or interior arbitration agreement. They would therefore reasonably expect a choice of law to apply to the whole of that contract. v) It ensures coherence. It is consistent with the treatment of other types of clauses whose validity is also insulated from challenges to the contract, such as choice of law or choice of court clauses. Such clauses are generally presumed to be governed by the law of the contract of which they form part: see Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012) at paras 12 103 and 12 109. As a matter of principle and authority there are therefore strong reasons why an agreement on a choice of law to govern a contract should generally be construed as applying to an arbitration agreement set out or otherwise incorporated in the contract. (iv) The international perspective As to the international perspective, although there is no uniformity, there are many commentators on international arbitration who support such an approach, at least where there is an express choice of governing law for the contract. Examples to which we were referred include: Bantekas, The Proper Law of the Arbitration Clause: A Challenge to the Prevailing Orthodoxy (2010) 27 Journal of International Arbitration 1, 1 2; Born, International Commercial Arbitration, 2nd ed (2014), p 592; Grover, Dilemma of the Proper Law of the Arbitration Agreement: An Approach Towards Unification of Applicable Laws (2014) 32 Sing L Rev 227, 255; Choi, Choice of Law Rules Applicable for International Arbitration Agreements (2015) 11 Asian International Arbitration Journal 105, 108 109; Khatchadourian, Fortifying the Arbitration Clause in Ziad (ed), Festschrift Ahmed Sadek El Kosheri (2015), pp 53 56; and Miles and Goh, A Principled Approach Towards the Law Governing Arbitration Agreements in Kaplan and Moser (eds), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles (2018) Chapter 24, p 393. This is also said to be the approach generally adopted by ICC arbitrators (see Lew, The Law Applicable to the Form and Substance of the Arbitration Clause: 40 Years of Application of the New York Convention in van den Berg (ed), Improving the Efficiency of Arbitration Agreements and Awards, (1998) ICCA Congress Series Vol 9, pp 143 144). It would appear that the same approach has been adopted in a number of common law and civil law jurisdictions. These include Singapore, India, Pakistan, Germany and Austria. According to Chubb Russia they also include Hong Kong, Australia and Switzerland, although this was questioned by Enka. Singapore provides an instructive example. In FirstLink Investments Corpn Ltd v GT Payment Pte Ltd [2014] SGHCR 12 it was held that the law of the seat should generally apply to the arbitration agreement. In BCY v BCZ [2016] SGHC 249; [2016] 2 Lloyds Rep 583 Steven Chong J disagreed and held that the approach in Sulamrica should be followed as it is supported by the weight of authority and is, in any event, preferable as a matter of principle (para 49). Having set out detailed reasons why that was so, he concluded that, as the arbitration agreement in that case was contained in a contract expressly governed by New York law, the presumption was that New York law governed the arbitration agreement and this presumption was not displaced by the choice of Singapore as the seat of arbitration. BCY v BCZ has been approved by the Singapore Court of Appeal see BNA v BNB [2020] 1 Lloyds Rep 55, para 44, where it was accepted by both parties as a correct statement of the law. The approach of the Court of Appeal (i) The Court of Appeals judgment The Court of Appeal reached a contrary conclusion in the present case. Leaving aside cases in which, exceptionally, a choice of the law governing the arbitration agreement is specified in the arbitration agreement itself, Popplewell LJ (with whom Flaux and Males LJJ agreed) was prepared to accept that an express choice of the law applicable to the contract containing the arbitration agreement may sometimes, as a matter of construction, amount to an express choice of the law applicable to the arbitration agreement (para 90). But he considered that this conclusion would follow only in a minority of cases and that in all other cases there is a strong presumption that the parties have impliedly chosen the law of the seat of the arbitration to govern the arbitration agreement. This was said to be the general rule, subject only to any particular features of the case demonstrating powerful reasons to the contrary (para 91). (ii) Separability Our first difficulty with this proposed general rule is that we do not agree that it is only in a minority of cases that an express choice of law to govern the contract should properly be construed as being a choice of law to govern an arbitration agreement included in the contract. As we have discussed, a clause such as This Agreement is to be governed by and construed in accordance with the laws of [a named country] is naturally and sensibly understood to mean that the law of that country should govern and determine the meaning and effect of all the clauses in the contract which the parties signed including the arbitration clause. It is unclear to us why more should be needed or what more on the Court of Appeals approach is required to make it clear that a phrase such as This Agreement means the whole agreement and not just part of it. The Court of Appeal justified its approach on the ground that a choice of law to govern the contract has little if anything to say about the [arbitration agreement] law choice because it is directed to a different and separate agreement (para 92). This was said to follow from the doctrine that an arbitration agreement is separable from the rest of the contract. In our view, this puts the principle of separability of the arbitration agreement too high. For reasons given earlier, the requirement that an arbitration clause is to be treated as a distinct agreement for the purpose of determining its validity, existence and effectiveness makes it more amenable than other parts of a contract to the application of a different law. The rationale underlying the separability principle is also relevant, as we will mention later, in cases where applying the governing law of the contract to the arbitration clause would render the arbitration agreement invalid or ineffective. But it does not follow from the separability principle that an arbitration agreement is generally to be regarded as a different and separate agreement from the rest of the contract or that a choice of governing law for the contract should not generally be interpreted as applying to an arbitration clause. Descriptions of an arbitration clause as, for example, collateral to the main contract in which it is incorporated (Paal Wilson & Co A/S v Partenreederei Hannah Blumenthal (The Hannah Blumenthal) [1983] 1 AC 854, 917, per Lord Diplock) or a separate contract, ancillary to the main contract (Bremer Vulkan Schiffbau und Maschinenfabrik v South India Shipping Corpn Ltd [1981] AC 909, 998, per Lord Scarman) need to be seen in their context as ways of expressing the doctrine that the discharge by frustration (or for other reasons) of the substantive obligations created by the contract will not discharge the parties agreement to arbitrate. The arbitration clause is nonetheless part of the bundle of rights and obligations recorded in the contractual document. So, for example, an assignment of the contract will include an arbitration clause without the need for any separate or additional assignment: see Schiffahrtsgesellschaft Detlev von Appen GmbH v Voest Alpine Intertrading GmbH (The Jay Bola) [1997] 2 Lloyds Rep 279, 285; Shayler v Woolf [1946] Ch 320; and Cockett Marine Oil DMCC v ING Bank NV (The M/V Ziemia Ciesznska) [2019] EWHC 1533 (Comm); [2019] 2 Lloyds Rep 541. As Colman J put it in construing the words any clause of this Agreement as including an arbitration clause in JSC Zestafoni G Nikoladze Ferroalloy Plant v Ronly Holdings Ltd [2004] EWHC 245 (Comm); [2004] 2 Lloyds Rep 335, para 31: There is nothing in the intrinsic character of an arbitration agreement as having an attribute of separability which prevents it from being included in that phrase. Moore Bick LJ summed up the position clearly when he said in the Sulamrica case at para 26: The concept of separability itself, however, simply reflects the parties presumed intention that their agreed procedure for resolving disputes should remain effective in circumstances that would render the substantive contract ineffective. Its purpose is to give legal effect to that intention, not to insulate the arbitration agreement from the substantive contract for all purposes. In his lead judgment in the Court of Appeal Popplewell LJ quoted this passage (at para 93) and appeared there to recognise that it is wrong to characterise an arbitration clause generally as a separate agreement. He went on, however, to make a more specific point that one of the purposes for which an arbitration agreement is treated as separate and severable is that of applying the curial law which, where the parties have chosen a different arbitration seat and hence curial law from the law applicable to their contract, is distinct from the latter system of law. The rhetorical question was posed, at para 94: Why then should [the law applicable to the contract] have anything to say about the closely related aspect of the very same arbitration agreement, namely the [law which governs it] (absent express language to that effect so as to give rise to an express choice of [the arbitration agreement] law)? Leaving aside what should count as express language in this regard, this argument rests on the premise that the curial law which governs the arbitration process is so closely related to the law governing the arbitration agreement that a choice of law to govern the contract should generally be presumed not to apply to an arbitration clause when the parties have chosen a different curial law. It is to this argument, which was central to the Court of Appeals reasoning, that we therefore turn. (iii) The overlap argument This argument, which we will call the overlap argument, seems to have made its first appearance in XL Insurance Ltd v Owens Corning [2001] 1 All ER (Comm) 530, mentioned earlier, where Toulson J considered that, by stipulating for arbitration in London under the provisions of the Arbitration Act 1996, the parties had impliedly chosen English law to govern the validity of the arbitration agreement despite the choice of New York law as the governing law of the policy (see p 543b). His essential reasoning (at p 541e) was that the substance and process of arbitration are closely intertwined and that the 1996 Act contains various provisions which could not readily be separated into boxes labelled substantive arbitration law or procedural law, because that would be an artificial division. The Court of Appeal in the present case endorsed and elaborated on this reasoning, concluding that the overlap between the scope of the curial law and that of the [arbitration agreement] law strongly suggests that they should be the same (para 96). They further considered that, given this overlap and the fact that the curial law which regulates the arbitration process is a matter of choice which comes with an express choice of seat, it seems natural to regard a choice of seat as an implied choice of the law applicable to the arbitration agreement (para 101). On this basis they held that there is a strong presumption that a choice of seat is an implied choice of the law which is to govern the arbitration agreement (para 105(3)). (iv) Choice of curial law On this appeal Chubb Russia disputed the initial premise that a choice of seat for an arbitration involves any choice of law at all, procedural or substantive. Counsel for Chubb Russia submitted that the application of the curial law of the seat is something that follows automatically from a choice of place of arbitration rather than being itself a matter of choice. They cited as an analogy a hypothetical case postulated by Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015), para 3.63, of an English motorist who takes her car to France. Redfern and Hunter comment that: it would be an odd use of language to say that this notional motorist had opted for French traffic law; rather, she has chosen to go to France and the applicability of French law then follows automatically. It is not a matter of choice. We agree that it would be inapt to describe the tourist in this example as having made a choice to be regulated by French traffic law. But as Mr Dicker QC for Enka submitted, it is difficult to conceive that a persons decision to visit France might be informed by a desire to be governed by French traffic law. By contrast, the nature and scope of the jurisdiction exercised by the courts of a country over an arbitration which has its seat there is a highly material consideration in choosing a seat for the arbitration. That is reinforced by the fact that the seat of an arbitration is a legal concept rather than a physical one. A choice of place as the seat does not dictate that hearings must be held, or that any award must actually be issued, in that place. As the Court of Appeal observed (at para 46), it is perfectly possible to conduct an arbitration with an English seat at any convenient location, anywhere in the world. Furthermore, under section 53 of the Arbitration Act 1996, unless otherwise agreed by the parties, where the seat of an arbitration is in England and Wales, any award in the proceedings shall be treated as made there, regardless of where it was signed, despatched or delivered to any of the parties (see also article 31(3) of the UNCITRAL Model Law on International Commercial Arbitration adopted by the United Nations Commission on International Trade Law on 21 June 1985). The point of agreeing a seat is to agree that the law and courts of a particular country will exercise control over an arbitration which has its seat in that country to the extent provided for by that countrys law. A choice of seat can in these circumstances aptly be regarded as a choice of the curial law. As noted at the beginning of this judgment, however, the curial law which applies to the arbitration process is conceptually distinct from the law which governs the validity and scope of the arbitration agreement. Whether a choice of the curial law carries any implication that the parties intended the same system of law to govern the arbitration agreement and, if so, the strength of any such implication must depend on the content of the relevant curial law. (v) Relationship between curial law and arbitration agreement law In Carpatsky Petroleum Corpn v PJSC Ukrnafta [2020] EWHC 769 (Comm); [2020] Bus LR 1284, the claimant applied to enforce in England and Wales an arbitration award made in Sweden. Enforcement was resisted on the ground (among others) that there was no valid arbitration agreement in the contract between the parties. This argument depended on the assumption that the validity of the arbitration agreement was governed by the law of Ukraine. The contract provided for the law of substance of Ukraine to apply on examination of disputes. Butcher J held (at paras 67 71) that this was not a choice of Ukrainian law to govern the arbitration agreement and that, in the circumstances, the choice of Stockholm as the seat for any arbitration demonstrated an implied choice that the validity and interpretation of the arbitration agreement should be governed by Swedish law. His reasons were that: (1) it was reasonable to infer that the parties had deliberately chosen a neutral forum to resolve their disputes and hence intended the law of that jurisdiction to determine issues as to the validity and ambit of that choice; and (2) by choosing Sweden as the seat for the arbitration, the parties agreed to the application of the Swedish Arbitration Act, including section 48 which provides that, in the absence of agreement on a choice of law to govern an arbitration agreement with an international connection, the arbitration agreement shall be governed by the law of the country in which, by virtue of that agreement, the arbitration proceedings have taken place or will take place. It follows that, by providing for a Swedish seat, the parties were impliedly agreeing that Swedish law should govern the arbitration agreement. A similar inference could also be drawn where a contract contains an agreement for arbitration in Scotland. Section 6 of the Arbitration (Scotland) Act 2010 provides: Where (a) the parties to an arbitration agreement agree that an arbitration under that agreement is to be seated in Scotland, but (b) law which is to govern it, the arbitration agreement does not specify the then, unless the parties otherwise agree, the arbitration agreement is to be governed by Scots law. There is, however, no similar provision in the Arbitration Act 1996. The argument made by Enka, and accepted by the Court of Appeal, is that the 1996 Act contains provisions which are substantive as well as provisions which are procedural in nature, and that there is no clear division between the two. In these circumstances it is argued that, by choosing an English seat in the knowledge that the Arbitration Act 1996 will apply where the seat of the arbitration is in England, the parties are by implication choosing English law to govern at least some aspects of their substantive rights under the arbitration agreement. Furthermore, as suggested by Toulson J in the XL Insurance case, the provisions which affect substantive rights are intertwined with, and cannot readily be separated from, procedural provisions of the Act. The natural inference is said to be that the parties intended all their rights under the arbitration agreement to be governed by English law. (vi) Section 4(5) of the 1996 Act We agree that there is a close relationship between provisions of the Arbitration Act concerned with the arbitration agreement and provisions of the Act concerned with the arbitration process and that the distinction between them is not always clear or easy to draw. But we do not accept that this justifies the conclusion that a choice of an English seat of arbitration is an implied choice that the arbitration agreement will be governed by English law. In our view, a conclusive answer to that argument lies in a point raised by Chubb Russia on this appeal which was not fully developed in the Court of Appeal. The point in short is that almost all the provisions of the 1996 Act relied on to support the overlap argument are non mandatory and, where the arbitration agreement is governed a foreign law, by reason of section 4(5) the non mandatory provisions of the Act which concern arbitration agreements do not apply to it. As the legislation contemplates and specifically provides for a situation in which the arbitration agreement will be governed by a foreign law even though English law governs the arbitration process, no necessary inference can be drawn that, by choosing an English seat and with it English law as the curial law, parties are also impliedly choosing English law to govern their arbitration agreement. Section 4(5) of the 1996 Act states: The choice of a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter provided for by a non mandatory provision of this Part is equivalent to an agreement making provision about that matter. For this purpose an applicable law determined in accordance with the parties agreement, or which is objectively determined in the absence of any express or implied choice, shall be treated as chosen by the parties. The clear meaning and effect of this provision is that, where a foreign law is applicable to an arbitration agreement (whether by choice or as determined in the absence of choice by the closest connection test), that fact alone is enough to disapply any non mandatory provision of the Act in so far as it would otherwise affect a matter governed by the law applicable to the arbitration agreement. This is because the applicability of a foreign law is treated as equivalent to an agreement to make contrary provision about a matter. It is not necessary to inquire whether or not the foreign law does in fact make such contrary provision. Even if there were otherwise considered to be any ambiguity in the meaning of section 4(5), it is dispelled by the Supplementary Report on the Arbitration Act 1996, dated January 1997, produced by the Departmental Advisory Committee on Arbitration (the DAC), which explains the genesis of the provision. As originally drafted, clause 2 of the Bill provided: (1) The provisions of this Part apply where the law of England and Wales or Northern Ireland is applicable, or the powers of the court are exercisable, in accordance with the rules of the conflict of laws. (2) They apply, in particular (a) to matters relating to or governed by the arbitration agreement, where the applicable law is the law of England and Wales or Northern Ireland; and (b) to matters governed by the law applicable to the arbitral proceedings, where the seat of the arbitration is in England and Wales or Northern Ireland. The DAC Supplementary Report, at para 7(ii), observed that the purpose of clause 2(2) was to avoid the danger that all the provisions of Part I of the Act would be imported if English law was found to govern one particular aspect of an arbitration. For example: an arbitration may have a French seat, with French law governing the procedure, but English law governing the arbitration agreement. In such a situation, only those provisions of the Act which concern arbitration agreements should apply. It would be quite wrong to apply provisions of the Act which concern arbitral procedure, as this would be governed by French law. Plainly, this reasoning applies equally in reverse to an arbitration with an English seat and English law governing the procedure, but French law governing the arbitration agreement. In such a situation, only those provisions of the Act which concern arbitral procedure should apply and not those which concern the arbitration agreement, as this would be governed by French law. The clause as drafted, however, was considered unworkable in practice (although sound in principle) one reason being that, to apply clause 2(2), it would have been necessary individually to characterise and separate all those provisions of the Act which concerned the arbitration agreement, as distinct from all those that concerned the arbitral procedure (see para 9(ii) of the DAC Supplementary Report). It was noted that the attempt to do this had proved an extremely difficult and complex exercise. Furthermore: Many provisions concern both arbitration agreements and arbitral procedure, and there appeared to be a divergence of view with respect to many others. In the light of these difficulties, the DAC decided to recommend recasting the whole provision so as to establish in section 2(1) the basic rule that Part I of the Act applies to arbitrations which have their seat in England and Wales or Northern Ireland (see paras 10 11 of the DAC Supplementary Report). In such a case, however, as explained in para 12: If a foreign law has been chosen to govern any particular aspect of the arbitration, such as the arbitral procedure or the arbitration agreement, or is otherwise applicable to any such aspect, this is catered for by section 4(5). Therefore, reference may be made to this Act in the first instance, and then back to another law with respect to a specific issue. Whilst a process of characterisation may still have to be done, the combination of section 2 and section 4(5) avoids the dangers that: a choice of English law with respect to one part of an arbitration will import other parts of the Act that concern other aspects of the arbitration; a choice of England as the seat of the arbitration will necessarily entail the imposition of every provision of the Act. We observe that the recasting carried out on the recommendation of the DAC did not remove the need individually to characterise the provisions of the Act as substantive or procedural (or partly substantive and partly procedural) whenever the applicable law is in issue an exercise described by the DAC as extremely difficult and complex. Nevertheless, the legislative history confirms that sections 2 and 4(5) of the 1996 Act as enacted were intended to have the effect that, where England is chosen as the seat of an arbitration but the arbitration agreement is governed by a foreign law, the non mandatory provisions of the Act do not apply to any matter concerning the parties substantive rights and obligations under the arbitration agreement. The fact that the Act contains some provisions which are substantive, or partly substantive, cannot therefore where those provisions are non mandatory support an inference that, by choosing an English seat of arbitration, parties must be taken to have contemplated and intended that the validity and scope of their arbitration agreement should be governed by English law. The only mandatory provisions of the 1996 Act are sections 12, 13 and 66 to 68. Section 12 gives the court power to extend time for beginning an arbitration where there is a contractual time limit. This could only have any bearing on the law applicable to the arbitration agreement if the arbitration agreement includes a contractual time limit (which the relevant clause in this case does not). Section 13 applies the Limitation Acts to arbitrations. As these Acts include the Foreign Limitation Periods Act 1984, which applies foreign limitation law to any substantive obligation governed by foreign law, this cannot support an inference that the arbitration agreement is governed by English law. Sections 66 to 68 are concerned with enforcement of the award and applications to the court to challenge an award. They are procedural in nature and cannot be said to determine the law applicable to the arbitration agreement. The provisions of the Arbitration Act 1996 therefore do not justify any general inference that parties who choose an English seat of arbitration thereby intend their arbitration agreement to be governed by English law. (vii) Enkas case on section 4(5) Enka put forward three responses to this reasoning, none of which we have found persuasive. First, counsel for Enka submitted that section 4(5) is concerned only with a choice of foreign law as the curial law for the arbitration process, and not with a choice of foreign law to govern the arbitration agreement. This, however, is not a tenable reading of section 4(5), which is manifestly not limited in this way and expressly applies whenever a foreign law is applicable in respect of a matter provided for by a non mandatory provision of the Act. As emphasised on Enkas own case, the matters provided for by non mandatory provisions of the Act include some matters which concern the substance of the arbitration agreement as well as matters of procedure. Nor does section 4(4) support a different interpretation, as suggested in Enkas written case. Section 4(4) provides that it is immaterial whether or not the law applicable to the parties agreement is the law of England and Wales . This makes it clear that, if the parties have made arrangements by agreement in place of any non mandatory provision of the Act, it is irrelevant whether or not that agreement is governed by English law. There is no inconsistency between that provision and the rule established by section 4(5) that a choice of foreign law in respect of a matter is equivalent to an agreement making provision about that matter. The second argument advanced by Enka is that, if as we think clear section 4(5) is not confined to a choice of curial law and also covers cases where a foreign law is applicable to the arbitration agreement, section 4(5) nevertheless applies only where the arbitration agreement makes specific reference to the matter provided for by a non mandatory provision of the Act. As authority for this restrictive interpretation, Enka relied on a dictum of Lord Steyn in Lesotho Highlands Development Authority v Impregilo SpA [2005] UKHL 43; [2006] 1 AC 221. That case involved an attempted challenge under section 68 of the 1996 Act to a decision by an arbitral tribunal to award interest under section 49(3) on principal sums awarded. The challenge failed because the House of Lords held that substantial injustice had not been established, as required to invoke section 68. However, Lord Steyn, who gave the leading speech, went on to point out that the challenge had also faced other formidable difficulties. In particular, the power under section 49(3) to award interest was prima facie available: the only question was whether there had been an agreement to the contrary for the purpose of section 49(2). In that context Lord Steyn noted (at para 37) that the judge at first instance had appeared to take the view that the law of Lesotho, as the law applicable to the construction contract under which the claim arose, might be relevant presumably on the basis that it constituted an agreement to the contrary. In relation to this, Lord Steyn remarked: Ignoring for the moment the fact that one does not know what the law of Lesotho is, this view comes up against the difficulty that only an agreement in writing as defined in the Act can qualify as an agreement to the contrary under section 49: section 5(1). The law of Lesotho is not an agreement to the contrary in writing. Lord Steyn made no mention of section 4(5) of the Act: the point that he made was based on section 5(1), which states that an agreement between the parties as to any matter is effective for the purposes of this Part only if in writing. Nevertheless, in C v D, at para 19, Longmore LJ treated Lord Steyns dictum as supporting the view that section 4(5) requires a choice of law with regard to the specific provision of the [1996] Act which the parties agree is not to apply. This statement was in turn relied on by Burton J in National Iranian Oil Co v Crescent Petroleum Co International Ltd [2016] EWHC 510 (Comm); [2016] 2 Lloyds Rep 146, paras 12 17, to conclude that a choice of Iranian law to govern an arbitration agreement was not sufficient to disapply section 7 of the 1996 Act, which codifies the principle of separability of the arbitration agreement, and that nothing less than an agreement expressly disapplying section 7 or the English law governing separability would have sufficed for that purpose. The notion that section 4(5) applies only where parties have specifically excluded a non mandatory provision of the Act by the terms of their arbitration agreement cannot, in our view, be accepted. It is not consistent with the language of section 4(5). The words in respect of a matter provided for by a non mandatory provision require only that the matter governed by the foreign law should be a matter provided for by a non mandatory provision of the Act. They cannot reasonably be read as requiring the parties specific agreement that the foreign law and not the non mandatory provision will govern the matter. Apart from anything else, the second paragraph of section 4(5) makes it explicitly clear that no choice or agreement of the parties at all is required for section 4(5) to apply. The interpretation contended for by Enka is also inconsistent with the legislative intent, as explained in the DAC Supplementary Report. Furthermore, as the late Mr VV Veeder QC observed, if correct, it would make a practical nonsense of the 1996 Act by requiring parties choosing a foreign law to govern an agreement for arbitration in England to analyse and identify individually in their agreement each of the 35 or so non mandatory provisions of the 1996 Act which they wish to disapply. We agree with Mr Veeders comment that the absurd consequences of such an interpretation speak for themselves: see Kaplan and Moser (eds), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles (2018), Chapter 23, p 382. We do not think it credible that Lord Steyn in the Lesotho case intended to endorse such an interpretation of section 4(5), and to do so without giving any reasons or even mentioning that provision of the Act at all. The likely reason why no reference was made to section 4(5) is that it was not relevant to the power to award interest. The Court of Appeal in the Lesotho case characterised the power to award interest under section 49(3) of the 1996 Act as discretionary and procedural a characterisation which Lord Steyn seems to have endorsed when referring to the reasoning of the Court of Appeal in para 38 of his speech. The fact that section 49(3) was treated by both the Court of Appeal and the House of Lords in the Lesotho case as procedural in nature was later relied on by the Court of Appeal in Maher v Groupama Grand Est [2009] EWCA Civ 1191; [2010] 1 WLR 1564, para 38, to support a similar characterisation of the power of a court to award interest under section 35A of the Senior Courts Act 1981. Because section 49(3) is procedural, the choice of the law of Lesotho to govern substantive contractual rights was not in respect of a matter provided for by section 49(3) and therefore did not engage section 4(5). As it was not in doubt that the curial law governing the arbitration process was English law, to disapply section 49(3) would accordingly have required a specific agreement (in writing), as Lord Steyn observed. Whether or not Lesotho law contained any equivalent procedural power was in these circumstances not relevant. Even if it did, the law of Lesotho concerning that matter could not amount to an agreement to the contrary. This is, we think, how Lord Steyns dictum should be understood. But whether this was what was meant or not, we are satisfied that section 4(5) does not require a specific agreement to disapply a non mandatory provision of the Act. It follows that Longmore LJs statement to that effect in C v D was erroneous and that the National Iranian Oil Co case was wrongly decided on this point. The third response of Enka was to contend that the consequences of giving section 4(5) what we consider to be its unambiguous meaning would be as far reaching as they are surprising because it would cause numerous non mandatory provisions, which parties to a London arbitration are unlikely to have intended to exclude, nonetheless to be excluded. To support this contention, Enka relied as examples on sections 5, 7, 30 and 58 of the 1996 Act. Of these provisions, only section 7 which codifies the principle of separability concerns the validity or scope of the arbitration agreement. Section 5, which states that Part I of the Act applies only where the arbitration agreement is in writing, is not concerned with the validity or scope of the arbitration agreement but with the circumstances in which the provisions of the Act will apply. If the requirement of writing is not met, Part I of the Act will not apply to the arbitration agreement but it will be regulated by, and will still be valid at, common law (see section 81). Section 30, which empowers the arbitral tribunal to rule on its own jurisdiction, is procedural. It does not deal with the parties substantive rights under the arbitration agreement but with the competence of the tribunal to determine the validity and scope of those rights. Section 58, which provides for the finality of an arbitral award, is also procedural in nature. (For that reason, the insurers argument in C v D that, as a result of section 4(5), section 58 was disapplied by a choice of New York law to govern the arbitration agreement was misconceived.) These and other procedural non mandatory provisions will only be excluded in the unusual event that the parties have chosen a foreign procedural law for an English seated arbitration: see Dubai Islamic Bank PJSC v Paymentech Merchant Services Inc [2001] 1 All ER (Comm) 514, para 31; C v D [2007] EWHC 1541 (Comm); [2007] 2 All ER (Comm) 557, paras 25 26 (Cooke J); Sterling v Rand [2019] EWHC 2560 (Ch); [2019] 2 Lloyds Rep 577, para 58. As observed in the DAC Supplementary Report, para 7(ii) (quoted at para 77 above), in such a case it would be wrong to apply non mandatory provisions of the Act which concern arbitral procedure, as this would be governed by foreign law. We accept that characterising individual provisions of that Act as procedural or substantive can, as recognised by the DAC, be a difficult and complex exercise. But we are satisfied that giving section 4(5) its plain meaning does not lead to surprising or untoward consequences and is inconsistent with the contention that choosing English law as the curial law of an arbitration involves an implied choice of English law as the law applicable to the arbitration agreement. For these reasons, we do not consider the overlap argument as accepted by the Court of Appeal to be well founded. While a choice of seat and curial law is capable in some cases (based on the content of the relevant curial law) of supporting an inference that the parties were choosing the law of that place to govern the arbitration agreement, the content of the Arbitration Act 1996 does not support such a general inference where the arbitration has its seat in England and Wales. VI. Avoiding invalidity (i) The validation principle It is a well established principle of contractual interpretation in English law, which dates back at least to the time of Sir Edward Coke (see Coke upon Littleton (1628) 42a), that an interpretation which upholds the validity of a transaction is to be preferred to one which would render it invalid or ineffective. In the days when Latin was commonly used in the courts, it was expressed by the maxim verba ita sunt intelligenda ut res magis valeat quam pereat translated by Staughton LJ in Lancashire County Council v Municipal Mutual Insurance Ltd [1997] QB 897, 910, as the contract should be interpreted so that it is valid rather than ineffective. This principle may apply if, in determining whether the parties have agreed on a choice of governing law, a putative governing law would render all or a part of the contract ineffective. For example, in In re Missouri Steamship Co (1889) 42 Ch D 321 a contract for the carriage of cattle by sea from Boston to England contained a clause that the carrier should not be liable for the negligence of the master or crew of the ship. The clause was valid under English law but void under the law of Massachusetts as being against public policy. The cattle were lost by the negligence of the master and crew, and the shipper claimed against the carrier for the loss. In concluding that the parties intended the contract to be governed by English law, the judge and the Court of Appeal placed reliance on the presumption that, in the words of Fry LJ at p 341, the law which would make the contract valid in all particulars was the law [intended] to regulate the conduct of the parties. In that case the potential invalidity of a significant clause in a contract was relied on as indicating the law intended to govern the entire contract. Where the clause in question is an arbitration clause, because of its severable character its putative invalidity may support an inference that it was intended to be governed by a different law from the other provisions of the contract or may at least negate an inference that the law generally applicable to the contract was intended to apply to the arbitration clause. (ii) Hamlyn v Talisker An early but authoritative instance of such reasoning is the decision of the House of Lords in Hamlyn & Co v Talisker Distillery [1894] AC 202. A contract between an English company and a Scottish company, to be performed in Scotland, contained the following provision: Should any dispute arise out of this contract, the same to be settled by arbitration by two members of the London Corn Exchange, or their umpire, in the usual way. It was common ground that this arbitration clause was valid according to English law but invalid according to the law of Scotland because the arbitrators were not named. The Court of Session held that the contract was governed by Scottish law as the law of the place of performance of the contract and that, in consequence, the arbitration clause was invalid. The House of Lords unanimously reversed that decision. As Lord Wilberforce subsequently noted in the Tunisienne case (at p 596), the only question decided by the House of Lords was whether the arbitration clause was governed by Scottish law or by English law. The members of the appellate committee were careful to limit their opinions to that question and to express no view on which law governed the other provisions of the contract. Two reasons were given for concluding that the arbitration clause was governed by English law. One reason, most fully expressed by Lord Watson (at pp 212 213), was that the language of the arbitration clause showed that the parties were contracting with reference to English law, as the clause required the arbitrators to be members of a commercial body in London and to decide disputes in the usual way in other words, in the manner customary in London. This reasoning did not, however, as it seems to us, justify treating the arbitration clause itself as governed by English law irrespective of which law governed the rest of the contract. It was a reason for inferring that the parties intended the arbitrators to apply English law in deciding any dispute under the contract and therefore for regarding the parties substantive contractual obligations as governed by English law. The question whether the arbitration clause was valid determined whether the arbitrators had jurisdiction, which was not at that time a matter that the arbitrators themselves were seen as competent to decide. This reasoning is therefore an early example of an approach we will consider shortly which treats a choice of seat of arbitration as an implied choice of law to govern the contract as a whole. The principal enduring significance of Hamlyn v Talisker lies in the second reason given for the decision, which was clearly articulated by Lord Herschell LC and Lord Ashbourne. It was this reason which justified treating the arbitration clause as potentially governed by a different law from rest of the contract. In Lord Herschells words (at p 208): the contract with reference to arbitration would have been absolutely null and void if it were to be governed by the law of Scotland. That cannot have been the intention of the parties; it is not reasonable to attribute that intention to them if the contract may be otherwise construed; Lord Ashbourne made the same point, stating graphically (at p 215) that the arbitration clause becomes mere waste paper if it is held that the parties were contracting on the basis of the application of the law of Scotland, which would at once refuse to acknowledge the full efficacy of a clause so framed. He continued: It is more reasonable to hold that the parties contracted with the common intention of giving entire effect to every clause, rather than of mutilating or destroying one of the most important provisions. (iii) The decision in Sulamrica It was this reasoning which led the Court of Appeal in the Sulamrica case to conclude that the arbitration clause in that case was governed by English law despite, as discussed earlier, starting from the position that an express choice of law to govern the contract is normally intended to apply to the arbitration clause. In the Sulamrica case claims were made by Brazilian companies involved in a construction project in Brazil under two insurance policies. Each policy contained an express choice of Brazilian law to govern the policy and a clause conferring exclusive jurisdiction on the courts of Brazil, but also mediation and arbitration clauses. These provided that any dispute should be referred to mediation and that, if the parties failed to agree the amount to be paid under the policy through mediation, the dispute should then be referred to arbitration in London. The insurers commenced arbitration proceedings in London and applied successfully to the English court for an interim injunction to restrain the insured from pursuing proceedings in the courts of Brazil. An appeal by the insured was dismissed by the Court of Appeal. The insureds case was that the contract, including the arbitration agreement, was governed by Brazilian law and that under Brazilian law the arbitration agreement was not enforceable against them without their consent. As noted earlier, Moore Bick LJ (with whom Hallett LJ and Lord Neuberger MR agreed) accepted that the choice of Brazilian law to govern the contract was a strong indication that the parties intended that system of law to govern the arbitration agreement. However, Moore Bick LJ identified two factors pointing the other way. The first was the overlap argument which we have just discussed: that by choosing London as the seat of arbitration, the parties must have foreseen and intended that the provisions of the Arbitration Act 1996 should apply to any arbitration, including those provisions which are more substantive than procedural in nature (para 29). For the reasons already given, we do not think that this argument is sound, as it overlooks the fact that, if the arbitration agreement was governed by Brazilian law, the non mandatory substantive provisions of the Act would be excluded by section 4(5). It was the second factor, however, which the Court of Appeal regarded as decisive. This was the possible existence of a rule of Brazilian law which would render the arbitration agreement enforceable only with the insureds consent (para 30). Moore Bick LJ reasoned that, given the terms of the mediation and arbitration clauses, the parties could not have intended to choose a system of law that either would, or might well, have that effect (para 31). As he also put it, Brazilian law could not have been intended to govern the arbitration agreement when there is at least a serious risk that a choice of Brazilian law would significantly undermine that agreement. In these circumstances it was necessary to identify the system of law with which the arbitration agreement was most closely connected. On this point Moore Bick LJ said (at para 32) that: an agreement to resolve disputes by arbitration in London, and therefore in accordance with English arbitral law, does not have a close juridical connection with the system of law governing the policy of insurance, whose purpose is unrelated to that of dispute resolution; rather, it has its closest and most real connection with the law of the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective. On this basis he concluded that the arbitration agreement was governed by English law. Although reasoning of this kind was not relied on in the XL Insurance case where, as discussed earlier, Toulson J relied on the overlap argument it provides in our view a better justification for the result reached in that case. The fact that the arbitration clause would arguably have been invalid under New York law was itself a strong reason for interpreting the choice of New York law to govern the insurance policy as not extending to the arbitration agreement. (iv) Commercial purpose of an arbitration clause The principle that contracting parties could not reasonably have intended a significant clause in their contract, such as an arbitration clause, to be invalid is a form of purposive interpretation, which seeks to interpret the language of the contract, so far as possible, in a way which will give effect to rather than defeat an aim or purpose which the parties can be taken to have had in view. The strength of the inference that an interpretation of the contract would defeat an aim of the parties is, however, a matter of degree. An interpretation which would without doubt mean that an arbitration clause is void and of no legal effect at all gives rise to a very powerful inference that such a meaning could not rationally have been intended. That was the position in Hamlyn v Talisker, where it was common ground that, if the arbitration clause were governed by Scottish law, it would have been (in Lord Herschells words [1894] AC 202, 208) absolutely null and void. In the Sulamrica case the inference was weaker. There was a serious risk but not a certainty that, if Brazilian law applied to the arbitration clause, it would render the agreement to arbitrate enforceable only with the insureds consent. That would not have meant that the arbitration clause was of no effect at all. As Moore Bick LJ acknowledged, although most arbitration agreements permit either party to refer disputes to arbitration, some provide for arbitration only at the option of one or other party. He did not think it reasonable, however, to attribute to the parties in that case an intention to enter into a one sided arrangement of that kind (para 30). In Fiona Trust & Holding Corpn v Privalov [2007] UKHL 40; [2007] Bus LR 1719, the House of Lords affirmed the principle that the construction of an arbitration clause should start from the assumption that the parties, as rational businessmen, are likely to have intended any dispute arising out of the relationship into which they have entered or purported to enter to be decided by the same tribunal (see para 13, per Lord Hoffmann). Contrary to a submission made on behalf of Chubb Russia, this is not a parochial approach but one which, as the House of Lords noted in the Fiona Trust case, has been recognised by (amongst other foreign courts) the German Federal Supreme Court (Bundesgerichtshof), the Federal Court of Australia and the United States Supreme Court and, as stated by Lord Hope at para 31, is now firmly embedded as part of the law of international commerce. In his monumental work on International Commercial Arbitration, 2nd ed (2014), p 1403 Gary Born summarises the position as follows: In a substantial majority of all jurisdictions, national law provides that international arbitration agreements should be interpreted in light of a pro arbitration presumption. Derived from the policies of leading international arbitration conventions and national arbitration legislation, and from the parties likely objectives, this type of presumption provides that a valid arbitration clause should generally be interpreted expansively and, in cases of doubt, extended to encompass disputed claims. That is particularly true where an arbitration clause encompasses some of the parties disputes and the question is whether it also applies to related disputes, so that all such controversies can be resolved in a single proceeding (rather than in multiple proceedings in different forums). To the extent that a putative applicable law fails to recognise this presumption that arbitration has been chosen as a one stop method of dispute resolution, it is inherently less likely that reasonable commercial parties would have intended that law to determine the validity and scope of their agreement to arbitrate (rather than litigate) disputes. What degree of impairment to the commercial purpose of an arbitration agreement will be enough to negate the assumption that a choice of law to govern the contract is intended to apply to the arbitration agreement is not a question which can be answered in the abstract. As with any question of construction, it will be necessary to have regard to the particular words used in the contract and the surrounding circumstances, as well as the nature and extent of the risk that the purpose of the arbitration agreement would be undermined if its validity and scope were governed by the relevant system of law. We cannot improve on the formulation of Moore Bick LJ in the Sulamrica case, para 31, that commercial parties are generally unlikely to have intended a choice of governing law for the contract to apply to an arbitration agreement if there is at least a serious risk that a choice of that law would significantly undermine that agreement. Relevance of the arbitration seat to the main contract law During the 20th century a line of authority developed which treated a choice of place of arbitration, where there was no express choice of governing law clause in the contract, as a strong indication that the parties intended the contract to be governed by the law of that place. This inference hardened into a rule of law and reached its high water mark in Tzortzis v Monark Line A/B [1968] 1 WLR 406, where the Court of Appeal held that a London arbitration clause gave rise to an implication that the parties intended English law to govern their contract which could only be rebutted by an express provision to the contrary. In the Tunisienne case the House of Lords held that this put the strength of the implication too high and that the implication stemming from a choice of arbitral forum could be overridden by contrary indications derived from the express provisions of the contract or relevant surrounding circumstances. Nevertheless, Lord Wilberforce (at p 596B) described the inference that the parties intended the law of the place of arbitration to govern their contract as a sound general rule. Lord Diplock went further and said (at p 609E) that he did not wish to throw any doubt upon the proposition that an arbitration clause is generally intended by the parties to operate as a choice of the proper law of the contract as well as the curial law and should be so construed unless there are compelling indications to the contrary . As is apparent from, for example, the submissions of Robert Goff QC in defence of this approach in the Tunisienne case (at p 579D), its rationale was that contracting parties, by agreeing to arbitration in a particular place, must normally be taken to have expected the arbitrators to be resident in that place and to apply the law with which they are familiar. Lord Wilberforce expressed some reservation about this reasoning, observing (at p 596C): I venture to think that in commercial matters, at the present time, this may give insufficient recognition to the international character of the City of London as a commercial centre the reason, rather than any preference for English rules, for which arbitration in London is selected. In the half century since the Tunisienne case was decided international arbitration has undergone major evolution and exponential growth. This has been accompanied by the development of international arbitral institutions such as the ICCs International Court of Arbitration, the International Centre for Dispute Resolution established by the American Arbitration Association and the London Court of International Arbitration. The primary reason for selecting London as a place of arbitration is no longer the international character of London as a commercial centre but its attractiveness specifically as a forum in which to arbitrate international disputes. In some cases where the parties have chosen English law as the governing law of their contract, the ready availability of expert English lawyers may be a relevant factor in choosing London as the arbitration venue. But even in the kinds of arbitration where the members of the arbitral tribunal are chosen for their legal expertise (rather than solely or mainly for their commercial experience), there is nothing to prevent the appointment of lawyers qualified in other jurisdictions to act as arbitrators in a London seated arbitration, or English lawyers to act as arbitrators in a foreign seated arbitration, and such appointments are frequently made. Furthermore, experienced international arbitrators qualified as lawyers in England and Wales or in other jurisdictions are perfectly familiar with applying systems of law other than their own. There can in these circumstances be no general implication that a choice of London (or any other major arbitration centre) as the seat of arbitration demonstrates an intention that the parties contractual obligations will be governed by the law of that place. This is equally so whether the question of implied choice is governed by article 3 of the Rome I Regulation (in relation to the main body of the contract) or the common law conflict rules (in relation to the arbitration agreement). There are still cases in which an arbitration clause providing for arbitration in London by, for example, English maritime arbitrators, or by London brokers, or by a local association or exchange, may in combination with other factors be regarded as conveying an implied choice of law. An example is Egon Oldendorff v Libera Corpn (No 2) [1996] 1 Lloyds Rep 380, where an arbitration clause in a charterparty made between Japanese owners and German charterers provided for arbitration in London by arbitrators appointed by the London Maritime Arbitrators Association. Also relevant to Clarke Js decision that the parties intended English law to govern the charterparty were: (1) the fact that it was made on a well known standard form containing clauses with well known meanings in English law; and (2) that having agreed a neutral forum, the parties intended that forum to apply a neutral law, namely English law and not German or Japanese law. In such cases that implied choice of law will equally apply to the arbitration agreement: see Habas Sinai Ve Tibbi Gazlar Istihsal v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyds Rep 479, para 102. Such a situation may be contrasted with one in which the arbitration clause, although it specifies a place of arbitration, does not provide for a method of identifying the arbitrators except through appointment by an international arbitral body such as the ICC. As Andrew Baker J observed in his judgment in this case (at para 62), the ICC is a quintessentially and deliberately supranational institution, with its own internal, and so again supranational, supervisory apparatus of the International Court of Arbitration and its Secretary General and Secretariat. In a case of this kind the parties could not reasonably assume that the selection of London as the seat of arbitration, even where it is a neutral forum, points ineluctably by necessary implication to a choice of English law to govern the contract so as to make the express designation of a governing law unnecessary. Enka did not seek to argue on this appeal that the choice of London as the seat of arbitration in this case implies that the parties intended the construction contract as a whole to be governed by English law. But counsel for Enka submitted that, even though such an inference cannot be drawn in relation to the law intended to govern the parties substantive contractual obligations, it can nevertheless be drawn in relation to the arbitration agreement itself. We do not accept this. Where there is insufficient reason to infer that the parties chose London as the seat of arbitration because they wanted the arbitrators to be versed in English law, that applies as much to any issues concerning the validity or scope of the arbitration agreement which the arbitrators might be asked to decide as it does to the substance of any dispute. Nor can any necessary implication be drawn from the possibility that issues concerning the validity or scope of the arbitration agreement might have to be decided by the English courts in the exercise of their supervisory jurisdiction. Questions of foreign law are dealt with in the English Commercial Court on a daily basis the trial of the present case being an example and, as Steyn LJ said in Star Shipping AS v China Shipping Foreign Trade Transportation Corpn (The Star Texas) [1993] 2 Lloyds Rep 445, 451 452, even an express choice of jurisdiction does not by itself give rise to an implied choice of law. We therefore do not consider that a choice of the seat of arbitration can by itself be construed as an implied choice of the law applicable to the arbitration agreement. VIII Applying the closest connection test So far we have been considering the question whether the parties to a contract have chosen the law applicable to the arbitration agreement, either specifically or by choosing a system of law to govern the contract as a whole including the arbitration agreement. We now turn to the situation in which no such choice has been made. As discussed earlier (see para 36 above), the court must in these circumstances determine, objectively and irrespective of the parties intention, with which system of law the arbitration agreement has its closest connection. This exercise is different in nature from the attempt to identify a choice (whether express or implied), as it involves the application of a rule of law and not a process of contractual interpretation. Even where the parties have not agreed what law is to govern their contract, it is reasonable to start from an assumption for reasons given earlier that all the terms of the contract, including an arbitration clause, are governed by the same system of law. Where, however, the parties have selected a place for the arbitration of disputes, there is authority for, as a general rule, regarding the law with which the arbitration agreement is most closely connected as the law of the seat of arbitration. As we have seen, this was the approach adopted by the Court of Appeal in the Sulamrica case (see para 104 above). It was also endorsed by the Court of Appeal in C v D (see para 48 above), albeit that in that case insufficient reason was given, in our opinion, for rejecting the inference that the law chosen to govern the insurance contract was intended to apply to the arbitration clause. Among commentators, this rule notably has the support of Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), rule 64(1)(b) and para 16 016; see also Russell on Arbitration, 24th ed, (2015) at para 2 121. There are a number of reasons of principle and policy which in our opinion justify as a general rule regarding the law of the place chosen as the seat of arbitration as the law most closely connected with the arbitration agreement which in the absence of choice will apply by default. (i) The place of performance The starting point is that the seat of arbitration is the place where (legally, even if not physically) the arbitration agreement is to be performed. In identifying the system of law with which a contract (or relevant part of it) has its closest and most real connection, the place where the transaction is to be performed is the connecting factor to which the common law has long attached the greatest weight (since the place where the contract was concluded ceased to be seen as significant): see eg Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 32 073. This is justified by the fact that states have an interest in regulating transactions taking place within their territory and by the consequent natural assumption that the law of the territory in which a transaction is taking place will govern it in the absence of a contrary indication. By agreeing to a seat of arbitration the parties submit themselves to the jurisdiction of the courts of that place and to its law and coercive powers for the purposes of deciding any issue relating to the validity or enforceability of their arbitration agreement. Thus, as we discuss later in this judgment (see Part XI below), the courts of the seat have jurisdiction to grant an injunction to restrain proceedings brought in breach of the agreement to arbitrate. The parties also by their choice of seat impliedly agree to bring any claim for a remedy relating to the existence or scope of the arbitrators jurisdiction (including any issue as to the validity or scope or the arbitration agreement), and any challenge to an arbitral award, in the courts of that place: see C v D [2007] EWHC 1541 (Comm); [2007] 2 All ER (Comm) 557, paras 29 34 (Cooke J); C v D [2007] EWCA Civ 1282; [2008] Bus LR 843, para 17 (CA); Minister of Finance (Inc) v International Petroleum Investment Co [2019] EWCA Civ 2080; [2020] Bus LR 45, paras 36 49; Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 16 036. The seat of arbitration is in these circumstances the place to whose system of law the arbitration agreement is most closely attached. By contrast, there is no reason to regard the place of performance of the substantive obligations created by the contract as a significant connection for the purpose of determining the law applicable to the arbitration agreement (as opposed to for the purpose of determining what law the arbitrators should apply in deciding a dispute). This is because (as noted at para 40 above) the subject matter and purpose of an arbitration agreement are different from those of the contract in which it is incorporated. The irrelevance of the place of performance of the main contract is illustrated by the fact that seats of arbitration are frequently chosen which have no connection with where the parties substantive obligations are to be performed (or otherwise with the contract) and sometimes precisely because they have no such connection. Other factors connecting the main contract to a country or its laws are equally irrelevant in regard to the arbitration agreement. For example, article 4 of the Rome I Regulation adopts a presumption that the contract is most closely connected with the country where the party required to effect the characteristic performance of the contract has his habitual residence. There is no reason to regard this as a factor which should have any bearing on the law applicable to the arbitration agreement. We therefore agree with the view of Moore Bick LJ in the Sulamrica case quoted at para 104 above and also with statement of Longmore LJ in C v D [2007] EWCA Civ 1282; [2008] Bus LR 843, para 26, that: an agreement to arbitrate will normally have a closer and more real connection with the place where the parties have chosen to arbitrate than with the place of the law of the underlying contract in cases where the parties have deliberately chosen to arbitrate in one place disputes which have arisen under a contract governed by the law of another place. We do not consider that the importance of the connection between the law governing the arbitration agreement and the law of the seat is undermined by the fact that some national laws, such as the Arbitration Act 1996 in England and Wales, allow the parties a wide degree of freedom to make their own arrangements, either by choosing another system of law to govern their arbitration agreement or arbitral procedure (see section 4(5) of the 1996 Act, discussed earlier) or by agreeing to the application of institutional rules made by an arbitral body such as the ICC (see section 4(3) of the 1996 Act). The extent to which the parties are free to make such arrangements is itself a matter for the law of the seat. Furthermore, any national law is likely to include mandatory provisions, described in section 1(b) of the 1996 Act as such safeguards as are necessary in the public interest, which have effect notwithstanding any agreement to the contrary. As noted earlier, in the 1996 Act these include sections 66 to 68, which govern any challenge to an award made in England including any challenge to the substantive jurisdiction of the arbitrators on grounds that the arbitration agreement is invalid or unenforceable or does not cover the dispute referred to arbitration. Such provisions of themselves establish a close nexus between the law determining the validity and scope of the arbitration agreement and the law of the seat of arbitration. (ii) Consistency with international law and legislative policy A second, and in our view compelling, reason for treating an arbitration agreement as governed by the law of the seat of arbitration in the absence of choice is that such a rule accords with international law as embodied in the 1958 New York Convention and other international instruments, as well as with the national law which gives effect to the New York Convention in England and Wales. The New York Convention, to which the United Kingdom became a party in 1975 and which more than 160 states have now signed, has been described as the single most important pillar on which the edifice of international arbitration rests, and as perhaps the most effective instance of international legislation in the entire history of commercial law: see Redfern and Hunter: Law and Practice of International Commercial Arbitration, 6th ed (2015), para 2.11, quoting Wetter, The present status of the International Court of Arbitration of the ICC: An appraisal (1990) 1 Am Rev Intl Arb 91, p 93, and Mustill, Arbitration: History and background (1989) 6 J Intl Arb 43, p 49. The essential aim of the Convention was to establish a single uniform set of international legal standards for the recognition and enforcement of arbitration agreements and awards. Its success is reflected in the fact that, according to Born, International Commercial Arbitration, 2nd ed (2014), p 113, the New York Convention has been implemented through national legislation in virtually all contracting states. Article V(1)(a) of the Convention specifies, among the limited circumstances in which recognition or enforcement by the courts of a Convention state of an award made in another Convention state may be refused, proof that the arbitration agreement is not valid under the law to which the parties have subjected it or, failing any indication thereon, under the law of the country where the award was made. As stated in Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 16 014: In the light of the pervasive reach of the New York Convention in modern times, this rule, although not itself prescribing a choice of law rule of general application, nevertheless provides a strong indication of one Article V(1)(a) enacted into English law by section 103(2)(b) of the Arbitration Act 1996 has two limbs, which are intended to be treated as uniform international conflict of laws rules: see Dallah Real Estate and Tourism Holding Co v Ministry of Religious Affairs of the Government of Pakistan [2008] EWHC 1901 (Comm); [2009] 1 All ER (Comm) 505, para 78 (Aikens J); and [2010] UKSC 46; [2011] 1 AC 763, para 123 (Lord Collins). The first, and primary, rule is that the validity of the arbitration agreement is governed by the law to which the parties [have] subjected it in other words the law chosen by the parties. The second, default rule, which applies where no choice has been indicated is that the applicable law is that of the country where the award was made. Where the parties have chosen the seat of arbitration, this will be (or be deemed to be) the law of the seat. In English law this is expressly provided by section 100(2)(b) of the 1996 Act. There is a division of opinion among commentators over whether the first limb of article V(1)(a) applies only where there is an express choice of law to govern the arbitration agreement or whether it also encompasses a choice that is implied for example from a choice of law to govern the contract in general: compare van den Berg, The New York Arbitration Convention of 1958 (1981), p 293 and Born, International Commercial Arbitration, 2nd ed (2014), pp 564 565. We think the latter is the better view. As discussed earlier, a choice of law for the arbitration agreement may be clearly indicated by a choice of law for the contract of which it forms part and a choice conveyed impliedly is just as much a choice entitled to respect in accordance with the principle of party autonomy as a choice stated expressly. Furthermore, the broader interpretation is supported by the language of article V(1)(a), which applies the default rule only failing any indication of the law to which the parties have subjected the arbitration agreement. Where proceedings are brought in a court of a contracting state in respect of a matter covered by an arbitration agreement to which the New York Convention applies, article II(3) of the Convention requires the court, at the request of one of the parties, to refer the parties to arbitration, unless the agreement is null and void, inoperative or incapable of being performed. Article II does not itself specify rules for identifying the law by which the validity of the arbitration agreement is to be determined. There is, however, a strong and widely accepted argument that the Convention is to be interpreted as requiring the same conflict rules to be applied in relation to article II(3) as are specifically required at the stage of enforcement by article V(1)(a). Thus, Professor van den Berg, a leading authority on the New York Convention, has written: A systematic interpretation of the Convention, in principle, permits the application by analogy of the conflict rules of article V(1)(a) to the enforcement of the agreement. It would appear inconsistent at the time of the enforcement of the award to apply the Conventions uniform conflict rules and at the time of the enforcement of the agreement to apply possibly different conflict rules of the forum. It could lead to the undesirable situation of the same arbitration agreement being held to be governed by two different laws: one law determined according to the conflict rules of the forum at the time of the enforcement of the agreement, and the other determined according to article V(1)(a) at the time of enforcement of the award. van den Berg, The New York Arbitration Convention of 1958 (1981), p 126 7; and see Born, International Commercial Arbitration, 2nd ed (2014), pp 494, 495 499; Lew & Mistelis, Comparative International Commercial Arbitration (2003), para 6 55; Schramm, Geisinger & Pinsolle, Article II in Kronke, Nacimiento et al (eds), Recognition and Enforcement of Foreign Arbitral Awards: A Global Commentary on the New York Convention (2010), p 55. This approach is also supported by other international instruments. The 1961 European Convention on International Commercial Arbitration adopts the conflict rules set out in article V(1)(a) of the New York Convention and, by article VI(2), provides for those rules to be applied at any stage when a court of a contracting state is required to rule on the existence or validity of an arbitration agreement in other words, whether the question arises pre or post award. Article 36 of the Model Law adopted by the United Nations Commission on International Trade Law (UNCITRAL) on 21 June 1985 parallels article V of the New York Convention in its list of grounds (set out in article 36) on which recognition or enforcement of an arbitral award may be refused. The Model Law takes this a step further in article 34 by restricting any challenge to an arbitral award to an application brought in the state in which the award was made and by limiting the grounds on which an award may be set aside to those on which recognition or enforcement of a foreign award may be refused. The primary reason for the exclusion of arbitration agreements from the Rome I Regulation was that such agreements were already adequately regulated by international conventions: see McParland, The Rome I Regulation on the Law Applicable to Contractual Obligations (2015), paras 7 126 7 127. The exclusion can accordingly be seen as a recognition of the fact that arbitration agreements are already subject to international uniform conflict rules derived, in particular, from the 1958 New York Convention and the 1961 European Convention. Although the United Kingdom has not signed the 1961 European Convention and has not in all respects adopted the UNCITRAL Model Law, the rules laid down in article V of the New York Convention (and article 36 of the Model Law) relating to the recognition or enforcement of awards have been directly incorporated into English law by section 103 of the 1996 Act. Thus, under section 103(2)(b) the grounds on which recognition or enforcement of an award made in another Convention state may be refused include proof that: the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; While this provision only applies directly in proceedings brought to enforce an award made in another Convention state, it would be illogical to apply different conflict rules to determine which law governs the validity of the arbitration agreement where the arbitration is seated (and the award therefore treated as made) in England. Thus, in cases where the parties have not chosen the law of the arbitration agreement but have chosen the seat of arbitration, it would be illogical if the English courts were to treat the validity of the arbitration agreement as governed by the law of the seat if the parties have chosen a foreign seat but by the law of the main contract if they have been chosen an English seat of arbitration. Such an approach would be all the more incoherent given that, if proceedings were brought in another Convention state to enforce an award made in England, the foreign court would apply the law of the seat (and not the law of the main contract, if different) to determine the validity of the award as required by article V(1)(a) of the Convention. As pointed out by Professor van den Berg in the passage quoted at para 130 above, it would be equally illogical if the law governing the validity of the arbitration agreement were to differ depending on whether the question of validity is raised before or after an award has been made. To ensure consistency and coherence in the law, the same law should be applied to answer the question in either case. Again, the incoherence that would result if English common law were to adopt a different conflict rule from the New York Conventions uniform rule would be compounded when the international perspective is considered. As one commentator has observed: It is fair to say that today, the conflict rule contained in article V(1)(a) New York Convention has developed into a truly transnational conflict rule for the determination of the law governing the substantive validity of the arbitration agreement. This rule has been applied in numerous international arbitral awards, is favoured by international arbitral doctrine and has been accepted by domestic courts. See Berger, Re examining the Arbitration Agreement: Applicable Law Consensus or Confusion?, in Van den Berg (ed), (2006) ICCA Congress Series Vol 13, 301, pp 316 317. It is not desirable that, when a question about the enforceability of the same arbitration agreement arises in different national courts, different conflict rules should be applied to determine the governing law. This point is well made by Gary Born in his work on International Commercial Arbitration, 2nd ed (2014), p 498: The international arbitral process aspires towards a maximally uniform approach by national courts presented with disputes about the substantive validity of a particular international arbitration agreement. A lack of uniformity on this issue would result in some courts referring parties to arbitration, and others refusing to do so, under the same arbitration agreement; that makes no sense and results in unnecessary litigation, forum shopping and uncertainty. Rather, insofar as possible, it is much more desirable for all national courts to reach the same conclusion as to the validity (or invalidity) of a particular arbitration agreement. Exactly the same points apply to the approach taken by national courts to the scope of an international arbitration agreement. As with questions of validity, issues about whether a dispute falls within the scope of the arbitration agreement may arise at any stage from when a party wishes to refer a dispute to arbitration to the stage of seeking to enforce an award. Article V(1)(c) of New York Convention provides that recognition and enforcement may be refused if [t]he award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration, or it contains decisions on matters beyond the scope of the submission to arbitration . Section 103(2)(d) of the 1996 Act contains an almost identical provision, as does article 36(i)(a)(iii) of the UNCITRAL Model Law and article IX(1)(c) of the European Convention. The general approach in the conflict of laws, adopted by both the common law and the Rome I Regulation, is to treat the validity and scope of a contract (as well as other issues such as the consequences of breach and ways of extinguishing obligations) as governed by the same applicable law. This makes good sense, not least because the boundary between issues of validity and scope is not always clear. Thus, it is logical to apply the law identified by the conflict rules prescribed by article V(1)(a) of the New York Convention and section 103(2)(b) of the 1996 Act to questions about the scope or interpretation of the arbitration agreement as well as disputes about its validity. This also accords with the approach taken by the American Law Institute in the final draft of the Restatement (Third) of the US Law of International Commercial and Investor State Arbitration (24 April 2019). Section 2.14 of the draft Restatement recommends a rule that a court should determine whether an international arbitration agreement is null and void in accordance with: (1) the law to which the parties have subjected the arbitration agreement; or (2) in the absence of such a choice of law, the law of the seat of arbitration. This approach is consistent with article V(1)(a) of the New York Convention. The comment on the applicable law explains: On balance, the present section favors ensuring symmetry between pre arbitration and post award standards for determining the validity of an arbitration agreement. There is no reason in principle why a court should answer that question differently depending on the stage of the proceedings, and doing so would inject unnecessary uncertainty and complexity into the analysis. Section 2.15 of the draft Restatement adopts the same rule for the purpose of determining whether a matter falls within the scope of an arbitration agreement, taking the position that the law applicable to determining the scope of an agreement to arbitrate should parallel the law applicable to determining whether the agreement is valid. Accordingly, whatever merit there might be, if one were designing a system of law from scratch, in a conflicts rule which treated the law of the main contract as applicable to the arbitration agreement in the absence of choice, it would in our view be wrong for the English common law to adopt a rule out of step with both the legislative policy of the 1996 Act and the underlying uniform rule established by the New York Convention. The court should apply the same conflict rules to identify the governing law irrespective of whether the arbitration has a domestic or foreign seat and irrespective of the stage at which an issue about the validity or scope of the arbitration agreement is raised. Internal coherence of English law, as well as harmony with international law and practice, is achieved by treating the applicable law in all cases, in the absence of a choice by the parties, as the law of the seat of arbitration. (iii) Giving effect to commercial purpose A third reason for applying the law of the seat as a default rule is that it is likely to uphold the reasonable expectations of contracting parties who have chosen to settle their disputes by arbitration in a specified place but made no choice of law for their contract. This is particularly so where, as is often the case in contracts made between parties of different nationalities, a popular seat of international arbitration has been chosen as a neutral forum with which neither party is connected. In such circumstances, if the parties had been required to make a common choice of law to govern their arbitration agreement at the time of contracting, it is inherently unlikely that they would have agreed on either of their national systems of law and much more likely that they would have settled on the law of the place which they had chosen as the seat of arbitration. Not only does this provide a neutral choice of law but it is already the law of that place which in countries which have implemented the Model Law or are parties to the New York Convention will determine the validity of an award if an application is made to set it aside or if its enforcement in the other partys home state is resisted. Countries frequently chosen as neutral seats of arbitration can also be expected to have legal regimes which are supportive of arbitration and which seek to give effect to the parties intention that they do not wish to have their disputes decided by a court. That is the case for all the most preferred seats of international arbitration which, according to the most recent 2018 international arbitration survey conducted by the School of International Arbitration at Queen Mary University of London, are London, Paris, Singapore, Hong Kong and Geneva. As discussed earlier, it is reasonable to assume that parties who have chosen to settle their disputes by international arbitration want an arbitration that resolves all (and not only some) disputes through an award that is binding and enforceable and which is immune from collateral attacks, particularly in the home country of one of the parties. As a general rule, applying the law of the chosen seat of arbitration is calculated to achieve that purpose. (iv) Legal certainty Finally, there is merit is recognising a clear default rule in the interests of legal certainty. Applying a general rule that, in the absence of choice, an arbitration agreement is governed by the law of the seat of arbitration (where a seat has been designated) enables the parties to predict easily and with little room for argument which law the court will apply by default. The benefits of certainty are further enhanced if the same law is applied irrespective of the country in which the proceedings are brought and whether the question of the validity or scope of the arbitration agreement is raised before or after an award has been made. Certainty might not be a sufficient reason to recognise a clear and uniform rule if the rule interfered with party choice. But here there is no risk of such interference because we are concerned with the situation in which the parties have not exercised their freedom to choose the law to be applied so that the court must make the selection for them. It is desirable that parties should be able to know with certainty what law a court will apply in this situation. If they do not like the default option, they can always choose a system of law that they prefer. (v) Conclusion on the default rule Chubb Russia did not argue against the contention that the law most closely connected with the arbitration agreement, which in the absence of choice will apply by default, will in general be the law of the seat of the arbitration. Indeed, leading counsel for Chubb Russia at one point in oral argument volunteered the suggestion that an appropriate default rule would be that the arbitration agreement is governed by the law of the seat. He noted that such a rule would have the advantages of certainty and consistency with article V(1)(a) of the New York Convention. Counsel later withdrew that suggestion and in reaching our conclusion on this issue we have placed no reliance on the fact it was made. But it was in our view no more than a realistic acknowledgement of the overwhelming case for recognising such a general rule. A case can be made for recognising an exception to the ordinary default rule where the arbitration agreement would be invalid under the law of the seat but not under the law governing the rest of the contract: see eg Merkin & Flannery on The Arbitration Act 1996, 6th ed (2019), para 46.10.5 and Born, International Commercial Arbitration, 2nd ed (2014), pp 542 549; for a contrary view, see Glick and Venkatesan, Choosing the Law Governing the Arbitration Agreement in Kaplan and Moser (eds), Jurisdiction, Admissibility and Choice of Law in International Arbitration: Liber Amicorum Michael Pryles (2018), Chapter 9, pp 148 149. Since the issue does not arise in the present case, it is not necessary to decide whether such an exception should be recognised. Even if there be no such exception, where the law of the seat is English law an arbitration agreement will only be invalid in limited circumstances and for good reason. Where the law of the seat is not English law, an award made under an arbitration agreement invalid under that law is liable in any event to be set aside by the courts of the seat, whose decision would normally be followed by the English courts: see the discussion by Lord Mance in Arbitration a law unto itself? (2016) 32 Arbitration International 223. There can also be cases where no seat has been designated, where it may be appropriate to apply the law applicable to the rest of the contract. But such exceptional cases apart, we consider that the law of the seat will apply by default. IX The law applicable to the arbitration agreement in article 50.1 Applying the principles discussed above to the present case, it is common ground that the parties have not chosen a system of law specifically to govern the arbitration agreement contained in article 50.1 of the construction contract. Chubb Russia, however, contends that the parties have chosen Russian law to govern the contract as a whole including the arbitration agreement. Enka disputes this. Enka accepts that the main body of the construction contract is governed by Russian law but maintains that this is so only because of the connections between the construction contract and the law of Russia and not as a matter of choice. (i) No choice of law The first thing to note is that the construction contract does not contain a choice of governing law clause. Amongst almost 100 pages of primary text and another 400 pages of appendices, there is no provision which says that the contract shall be governed by or interpreted in accordance with a specified system of law. In a detailed and professionally drafted commercial contract made between substantial organisations based in different countries, such a clause is an entirely standard clause, almost invariably included along with a clause specifying the forum in which any dispute is to be resolved. It is difficult to conceive that the omission of such a clause in this case despite the inclusion of a detailed provision dealing with the resolution of disputes was accidental. We agree with counsel for Enka that an obvious explanation for its absence is that the parties were not able to agree on a choice of the governing law. Chubb Russia contends that a choice of Russian law can nonetheless be discerned from the use in the construction contract of the term Applicable Law, taken together with the definition of that term in Attachment 17 as: Law of the Russian Federation, including legislation of the Russian Federation, all regulatory legal acts of the State Authority Federal Bodies, State Authorities of the constituent entities of the Russian Federation, legislation of the constituent entities of the Russian Federation, regulatory legal acts by Local Authorities and any other applicable regulatory legal acts. There are numerous references throughout the body of the contract to the Applicable Law, as well as other references to the law or laws of the Russian Federation. Counsel for Chubb Russia submitted that, read as a whole, the language of the construction contract makes it clear that the parties were contracting by reference to Russian law and chose Russian law as the law applicable to their agreement. Had it been the parties choice, however, that the construction contract should be governed by the Applicable Law as defined in Attachment 17, it would have been simple to say so. Yet, as noted, there is no clause which states this. Rather, the term Applicable Law is used in specific provisions of the contract which impose obligations on the contractor to comply with laws and regulations applicable in the country where the construction work was to take place. As the Court of Appeal observed (at para 107), it is a common technique in international construction contracts to define such an applicable law or laws and to impose an obligation to comply with them separately from any choice of the law that is to govern the validity and interpretation of the parties contractual rights and obligations. As evidence of this practice, the Court of Appeal cited a leading text on the widely used standard forms of international construction contract issued by the International Federation of Consulting Engineers (FIDIC): see Baker Mellors Chalmers and Lavers on FIDIC Contracts: Law and Practice, 5th ed (2009), paras 2.126, 2.140 and 2.145. Counsel for Chubb Russia pointed out that the contract in this case was not made on a FIDIC standard form and, unlike contracts made on FIDIC forms, does not contain a governing law clause. They observed that the technique employed in drafting FIDIC contracts is to select a governing law and then to apply a different law (usually the local law) expressly to certain provisions in such a way that the contractor will be obliged to comply with that law. That was not done here, where the only law specified was the Applicable Law. The drafting technique to which the Court of Appeal referred is not, however, peculiar to FIDIC standard forms. Authoritative texts cited by counsel for Enka confirm that other standard forms of international construction contract also typically include provisions which require the contractor to comply with applicable laws or with laws of the country where the works are carried out: see Huse, Understanding and Negotiating Turnkey and EPC Contracts, 4th ed (2020), paras 4 110 4 112; Bailey, Construction Law, 2nd ed (2016), para 18.11. The clear purpose of such provisions is to protect the employer against the risk of incurring liability through failure by the contractor to comply with local laws such as building regulations, health and safety and environmental laws, tax laws and other applicable regulatory requirements. The rationale for including such provisions is not affected by the presence or absence of a governing law clause in the contract. There is no necessary inference that the validity and interpretation of a contractual obligation requiring compliance with a law or laws of a particular country is itself to be determined by applying the contract law of that country. This is underlined by the point which Chubb Russia itself makes that the law chosen to govern a contract made on a FIDIC standard form (or, we would add, other forms of international construction contract) may and often does differ from the applicable law with which the contractor is required to comply in performing the contract. In any case the contractual obligations of Enka were not limited to compliance with the Applicable Law. Article 4.1 of the construction contract provides: The Contractor shall ensure performance of the Work in accordance with: a) The requirements of this Agreement (including references to the non mandatory rules of Applicable Law but to the extent the provisions of the Agreement are not at variance with mandatory rules of Applicable Law); b) Applicable Law (including the Mandatory Technical Rules constituting a part of such Applicable Law); c) An Implied Covenant of Good Faith and Fair Dealing. The definition in Attachment 17 of the phrase Implied Covenant of Good Faith and Fair Dealing imports standards applied by experienced international contractor organisations engaged in similar projects. As well as such standards, the construction contract and its attachments set out many specific requirements for the work which do not form part of the Applicable Law. Quite apart from this, there are numerous rights and obligations established by the construction contract which make no reference to the Applicable Law (or to laws of the Russian Federation). Examples are clauses dealing with the consequences of delay (article 26), force majeure (article 31), payment of the price (article 33) and termination (article 43). In these circumstances, it cannot be said that the parties have in the construction contract expressly selected a system of law to govern the validity and interpretation of their contractual obligations nor that the terms of the contract construed in their context point ineluctably to the conclusion that the parties intended Russian law to apply. To the contrary, the obvious inference from the fact that the parties have not anywhere in the contract stated what system of law is to govern any of their contractual obligations as opposed to creating obligations to comply with applicable laws is that they have not agreed (for whatever reason) on a choice of governing law. This inference applies to the arbitration agreement as much as to the rest of the contract. (ii) Closest connection In the absence of any choice of the law that is to govern the arbitration agreement, it is necessary to fall back on the default rule and identify the system of law with which the arbitration agreement is most closely connected. In accordance with our earlier analysis, this will generally be the law of the seat chosen by the parties, which in this case is London. As already mentioned, Chubb Russia did not actively oppose this conclusion if it is necessary to identify the law with which the arbitration agreement is most closely connected. Chubb Russias case has been put solely on the basis that the parties chose Russian law as the law governing the contract including the arbitration agreement. No alternative argument has been advanced that, if this is wrong, Russian law nevertheless applies as the law most closely connected with the arbitration agreement. Chubb Russia has put forward an argument, however, about the proper interpretation of particular terms of the construction contract which it remains relevant to consider. This argument is that the agreement to arbitrate disputes is embedded in a clause of the contract (article 50) dealing with dispute resolution which contains other obligations in addition to the obligation to arbitrate and which itself is, as Mr Bailey QC put it, buried deep inside the contract and inextricably connected to other provisions of it. It is said that in these circumstances the parties must have intended all the obligations in article 50, including the arbitration agreement, to be governed by the same system of law as each other and as the rest of the contract. For the purpose of this argument, it is necessary to determine the law applicable to the main body of the construction contract. As discussed earlier, for that purpose the court must apply the Rome I Regulation. (iii) The law applicable to the main contract Although it would be a mistake to interpret the Rome I Regulation through the prism of the common law, there does not appear to be any substantial difference (save possibly in relation to the admissibility of subsequent conduct) between the approach of the common law to determining whether there has been an express or implied choice of law and the approach to be followed in deciding whether a choice has been made expressly or clearly demonstrated for the purpose of article 3 of the Rome I Regulation. Thus, in Lawlor v Sandvik Mining and Construction Mobile Crushers and Screens Ltd [2013] EWCA Civ 365; [2013] 2 Lloyds Rep 98, para 33, the Court of Appeal held that the test of whether a choice has been clearly demonstrated is objective and is equivalent to Lord Diplocks formulation of the common law test, requiring the court to be satisfied that the only reasonable conclusion to be drawn from the circumstances is that the parties should be taken to have intended the putative law to apply. For the reasons already given when considering the position at common law, the parties have not in this case expressly made or clearly demonstrated a choice of law to govern the construction contract but are, as it seems to us, reasonably to be understood as having not agreed on a choice of law. The governing law is therefore to be determined by applying article 4 of the Rome I Regulation. Under the construction contract Enka was engaged to install a boiler and auxiliary equipment, with the equipment and materials (except for consumable materials) to be supplied by Energoproekt as customer. The contract was therefore, at least predominantly, a contract for the provision of services by Enka. Article 4(1)(b) of the Rome I Regulation establishes a prima facie rule that, to the extent that the law applicable to it has not been chosen in accordance with article 3, a contract for the provision of services shall be governed by the law of the country where service provider has his habitual residence. This rule points towards the law of Turkey as the country where the contractor, Enka, had its place of central administration and therefore habitual residence (see article 19(1)). However, the other party to the contract, Energoproekt, was a Russian company, as was the End Customer, Unipro. The contract was for the performance of construction work in Russia and required compliance with Russian laws and regulations. It is written in the Russian language (as the authoritative version); notifications under it were likewise required to be written in Russian and English but with the Russian version taking precedence and, when sent to the contractor, were to be sent to its Moscow office. The price for the work, although calculated in US dollars, was to be paid in roubles to a Russian bank account. The fact that the dispute resolution clause provides for arbitration in London is not a sufficient connection to indicate that English law should govern the contractual obligations of the parties. It is clear from all the circumstances of the case that the main body of the construction contract is manifestly more closely connected with Russia than with any other country. Pursuant to article 4(3) of the Rome I Regulation, it is therefore governed by Russian law. (iv) The dispute resolution clause Chubb Russias argument that the arbitration agreement cannot reasonably be detached from the rest of the contract in terms of its governing law has two aspects. The first is that article 50.1, which contains the arbitration agreement, must be governed by a single law. The second is that it makes no sense for that law to differ from the law applicable to the rest of the construction contract. Article 50.1 sets outs a series of procedures of increasing formality which the parties have agreed to follow for resolving any dispute, with arbitration being the last resort. Thus, where a Dispute as defined in the first sentence of article 50.1 arises, the parties are first of all obliged to make in good faith every reasonable effort to resolve it by negotiations. If the Dispute is not resolved within ten days of either party sending a Notification (a term defined in article 51.2 of the contract) to the opposite party containing an indication of the Dispute, either party may then give a written notice causing it to be referred to a meeting between the parties senior managements. It is only if the matter is not resolved within a further 20 calendar days that the obligation arises to refer the Dispute to international arbitration. Enka accepts that article 50.1 can only reasonably be interpreted as governed by a single system of law, as it is clearly intended to establish a single, staged dispute resolution process and it would make no sense for the meaning or scope of a Dispute as defined in the earlier part the clause to be determined by applying a different system of law from the law governing the validity and scope of the obligation to arbitrate. But it is Enkas case that the implication in terms of governing law flows in the opposite direction from that contended for by Chubb Russia, and that it follows from the identification of English law as the law which (on Enkas case) governs the arbitration agreement that English law applies to the whole of article 50.1. That conclusion should be reached, Enka contends, either by applying the common law rules to the whole of article 50.1 on the basis that the whole of that clause constitutes an arbitration agreement within the meaning of article 1(2)(e) of the Rome I Regulation or by applying the principle of dpeage and treating article 50.1 as a severable part of the contract for the purpose of the Rome I Regulation. Mr Bailey QC for Chubb Russia drew attention to connections between article 50.1 and other parts of the contract: in particular the use of capitalised terms such as Notification which are defined elsewhere. He also pointed out that article 42.2 of the contract includes provision for referring disputes arising out of the operation of the change control procedure to arbitration pursuant to article 50. He submitted that the dispute resolution clause is not hermetically sealed from the rest of the contract but is inextricably bound up with it, and that this points strongly to the conclusion that the arbitration agreement and the other obligations contained within the contract must all be governed by the same system of law. This contention could be formulated on the basis of implied choice or by reference to the closest connection test. As to the former, no doubt parties could in principle agree that the whole of their contract, including an arbitration agreement within it, should be governed by a single system of law even though they have not agreed on what that law should be. But this does not seem to us an inherently likely agreement for contracting parties to make. To establish such an agreement a clearer demonstration of intent would be necessary than the mere fact that the arbitration agreement forms part of a wider dispute resolution clause which is referred to elsewhere and uses terms defined elsewhere in the contract. In terms of connections, we agree with both parties that article 50.1 makes sense only as an integrated whole governed by one system of law. But we do not regard the connections to which Chubb Russia drew attention between article 50.1 and the rest of the contract as particularly strong or sufficient to require the application of the same law in circumstances where no choice of law has been made by the parties. There is no difficulty in principle in using within a contract or clause of a contract governed by a particular system of law a term defined in another part of the contract or in a separate instrument governed by a different system of law. In such a case the term will carry its defined meaning by agreement. The reference in article 50.1 to a Notification can readily operate in this way. Likewise, the cross reference in article 42.2 of the construction contract to the dispute resolution clause does not require both clauses to be governed by the same system of law. It has become increasingly common for commercial parties to include in their contracts provisions which require other forms of dispute resolution, such as good faith negotiation or mediation, to be undertaken without success before a dispute is referred to arbitration. We find it difficult to see how, as a matter of principle or policy, the fact that such an approach is adopted can justify the application of a different law to determine the validity or scope of the arbitration agreement. All the reasons that we have identified for, as a general rule, regarding the law governing the arbitration agreement in the absence of choice as the law of the seat of arbitration apply equally and with equal force where the arbitration agreement is contained in a wider dispute resolution clause (or integrated set of clauses) as where it is self contained. We do not think that reasonable commercial parties would expect the law applied to determine the validity and scope of their arbitration agreement to depend on which form of dispute resolution procedure is chosen. Rather, it is reasonable to expect that, where a multi tiered procedure is chosen, the law which determines the validity and scope of the arbitration agreement will determine the validity and scope of the whole dispute resolution agreement. The fact that two conflict of laws regimes are potentially in play complicates the analysis but provides no reason to alter the result. Where, as in this case, an obligation to arbitrate disputes is embedded in a single dispute resolution agreement which provides for other steps to be undertaken before the obligation to arbitrate arises, we do not think it unreasonable to regard the whole dispute resolution agreement as an arbitration agreement for the purpose of article 1(2)(e) of the Rome I Regulation. On this basis, applying the common law conflict of laws rules, article 50.1 of the construction contract is governed by English law. X Conclusions on applicable law It may be useful to summarise the principles which in our judgment govern the determination of the law applicable to the arbitration agreement in cases of this kind: i) Where a contract contains an agreement to resolve disputes arising from it by arbitration, the law applicable to the arbitration agreement may not be the same as the law applicable to the other parts of the contract and is to be determined by applying English common law rules for resolving conflicts of laws rather than the provisions of the Rome I Regulation. ii) According to these rules, the law applicable to the arbitration agreement will be (a) the law chosen by the parties to govern it or (b) in the absence of such a choice, the system of law with which the arbitration agreement is most closely connected. iii) Whether the parties have agreed on a choice of law to govern the arbitration agreement is ascertained by construing the arbitration agreement and the contract containing it, as a whole, applying the rules of contractual interpretation of English law as the law of the forum. iv) Where the law applicable to the arbitration agreement is not specified, a choice of governing law for the contract will generally apply to an arbitration agreement which forms part of the contract. v) The choice of a different country as the seat of the arbitration is not, without more, sufficient to negate an inference that a choice of law to govern the contract was intended to apply to the arbitration agreement. vi) Additional factors which may, however, negate such an inference and may in some cases imply that the arbitration agreement was intended to be governed by the law of the seat are: (a) any provision of the law of the seat which indicates that, where an arbitration is subject to that law, the arbitration will also be treated as governed by that countrys law; or (b) the existence of a serious risk that, if governed by the same law as the main contract, the arbitration agreement would be ineffective. Either factor may be reinforced by circumstances indicating that the seat was deliberately chosen as a neutral forum for the arbitration. vii) Where there is no express choice of law to govern the contract, a clause providing for arbitration in a particular place will not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of that place. viii) In the absence of any choice of law to govern the arbitration agreement, the arbitration agreement is governed by the law with which it is most closely connected. Where the parties have chosen a seat of arbitration, this will generally be the law of the seat, even if this differs from the law applicable to the parties substantive contractual obligations. ix) The fact that the contract requires the parties to attempt to resolve a dispute through good faith negotiation, mediation or any other procedure before referring it to arbitration will not generally provide a reason to displace the law of the seat of arbitration as the law applicable to the arbitration agreement by default in the absence of a choice of law to govern it. Applying these principles, we have concluded that the contract from which a dispute has arisen in this case contains no choice of the law that is intended to govern the contract or the arbitration agreement within it. In these circumstances the validity and scope of the arbitration agreement (and in our opinion the rest of the dispute resolution clause containing that agreement) is governed by the law of the chosen seat of arbitration, as the law with which the dispute resolution clause is most closely connected. We would therefore affirm albeit for different reasons the Court of Appeals conclusion that the law applicable to the arbitration agreement is English law. We have not found it necessary to consider arguments made by Enka that, if the arbitration agreement were governed by the law of Russia as the place of performance of the construction project and country with which the parties substantive contractual obligations have their closest connection, there would be a serious risk that the parties intention of having their disputes finally settled by arbitration in a neutral forum would be defeated. This was disputed by Chubb Russia, but in the light of the conclusion we have reached there is no need to resolve this further issue. XI The anti suit injunction If, as we have held, the arbitration agreement is governed by English law, Chubb Russia does not dispute that it was legitimate for the Court of Appeal to exercise its discretion whether to grant an anti suit injunction afresh and does not contend that it erred in so doing. Its challenge to the order made by the Court of Appeal rests on the assumption that the arbitration agreement is governed by Russian law. Chubb Russia contends that the English courts ought in these circumstances to defer to the decision of the Russian courts on whether their dispute must be referred to arbitration or may be resolved by litigation in the Russian courts. On Chubb Russias case the English courts approach to the grant of anti suit injunctions should differ according to whether the arbitration agreement is governed by English law or a foreign law. As we have held that the arbitration agreement is governed by English and not Russian law, it is not necessary to address this further ground of appeal. Nevertheless, given that it has been fully argued and the importance of the issues raised, we shall briefly address it. As already noted, by choosing a seat of arbitration the parties are choosing to submit themselves to the supervisory and supporting jurisdiction of the courts of that seat over the arbitration. A well established and well recognised feature of the supervisory and supporting jurisdiction of the English courts is the grant of injunctive relief to restrain a party from breaching its obligations under the arbitration agreement by bringing claims which fall within that agreement in court proceedings rather than, as agreed, in arbitration. A promise to arbitrate is also a promise not to litigate. As explained by Lord Hoffmann in West Tankers Inc v RAS Riunione Adriatica di Sicurt SpA (The Front Comor) [2007] UKHL 4; [2007] 1 Lloyds Rep 391, at paras 20 22: 20. Of course arbitration cannot be self sustaining. It needs the support of the courts Different national systems give support in different ways and an important aspect of the autonomy of the parties is the right to choose the governing law and seat of the arbitration according to what they consider will best serve their interests. 21. The Courts of the United Kingdom have for many years exercised the jurisdiction to restrain foreign court proceedings as Colman J did in this case: see Pena Copper Mines Ltd v Rio Tinto Co Ltd (1911) 105 LT 846. It is generally regarded as an important and valuable weapon in the hands of a court exercising supervisory jurisdiction over the arbitration. It promotes legal certainty and reduces the possibility of conflict between the arbitration award and the judgment of a national court. it saves a party to an arbitration agreement from having to keep a watchful eye upon parallel court proceedings in another jurisdiction, trying to steer a course between so much involvement as will amount to a submission to the jurisdiction and so little as to lead to a default judgment. That is just the kind of thing that the parties meant to avoid by having an arbitration agreement. 22. Whether the parties should submit themselves to such a jurisdiction by choosing this country as the seat of their arbitration is, in my opinion, entirely a matter for them. The courts are there to serve the business community rather than the other way round. No one is obliged to choose London. The existence of the jurisdiction to restrain proceedings in breach of an arbitration agreement clearly does not deter parties to commercial agreements. On the contrary, it may be regarded as one of the advantages which the chosen seat of arbitration has to offer. In the same case Lord Mance stated at paras 31 32: The purpose of arbitration (enshrined in most modern arbitration legislation) is that disputes should be resolved by a consensual mechanism outside any court structure, subject to no more than limited supervision by the courts of the place of arbitration. Experience as a commercial judge shows that, once a dispute has arisen within the scope of an arbitration clause, it is not uncommon for persons bound by the clause to seek to avoid its application. Anti suit injunctions issued by the courts of the place of arbitration represent a carefully developed and, I would emphasise, carefully applied tool which has proved a highly efficient means to give speedy effect to clearly applicable arbitration agreements. 32. It is in practice no or little comfort or use for a person entitled to the benefit of a London arbitration clause to be told that (where a binding arbitration clause is being however clearly disregarded) the only remedy is to become engaged in the foreign litigation pursued in disregard of the clause. Engagement in the foreign litigation is precisely what the person pursuing such litigation wishes to draw the other party into, but is precisely what the latter party aimed and bargained to avoid. In granting an anti suit injunction the English courts are seeking to uphold and enforce the parties contractual bargain as set out in the arbitration agreement. In principle it should make no difference whether that agreement is governed by English law or by a foreign law. In both cases the enquiry is whether there has been a breach of the arbitration agreement and whether it is just and convenient to restrain that breach by the grant of an anti suit injunction. The detail of the enquiry may differ, but its nature is the same. Chubb Russia contends that as a matter of discretion the considerations to be taken into account are different where the arbitration agreement is governed by foreign law. It submits that issues of scope and breach of the arbitration agreement are generally best left to the foreign court which has the requisite expertise in the applicable foreign law. The judges view was that different considerations arise where the arbitration agreement is governed by foreign law by reason of the doctrine of forum conveniens. We agree with the Court of Appeal that forum conveniens, which is a matter that goes to the courts jurisdiction, is not relevant. By agreeing to arbitrate in London the parties were agreeing to submit to the supervisory and supporting jurisdiction of the English courts, including its jurisdiction to grant anti suit injunctions. Chubb Russias principal argument is that considerations of comity nevertheless make it appropriate to defer to the foreign court as a matter of discretion. Comity, however, has little if any role to play where anti suit injunctive relief is sought on the grounds of breach of contract. As Millett LJ stated in Aggeliki Charis Cia Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyds Rep 87, 96: in my judgment there is no good reason for diffidence in granting an injunction to restrain foreign proceedings on the clear and simple ground that the defendant has promised not to bring them. The courts in countries party to the New York Convention, are accustomed to the concept that they may be under a duty to decline jurisdiction in a particular case because of the existence of an arbitration clause. I cannot accept the proposition that any court would be offended by the grant of an injunction to restrain a party from invoking a jurisdiction which he had promised not to invoke and which it was its own duty to decline. Although The Angelic Grace concerned an arbitration agreement governed by English law, that was not material to the reasoning of the Court of Appeal. The rationale for the courts approach was the fact of the promise made, not the law by which it was governed. That accords with principle. Nor does article II(3) of the New York Convention make any difference. As noted earlier, under this article a court of a Convention state is required to refer the parties to arbitration when it is seized of a matter which the parties have agreed to arbitrate (unless the arbitration agreement is null and void, inoperative or incapable of being performed). The New York Convention is concerned with recognition and enforcement of arbitration agreements and awards, not jurisdiction see, for example, Shashoua v Sharma [2009] EWHC 957 (Comm); [2009] 2 All ER (Comm) 477, paras 36 38. If a court is seized of jurisdiction under its own law or rules, article II(3) obliges it to exercise that jurisdiction to enforce arbitration agreements. It does not purport to nor does it confer any primacy over the jurisdiction of the courts of the seat. The grant of an anti suit injunction is always a matter of discretion. There may be circumstances in which it would be appropriate to await a decision of a foreign court. If, for example, the scope of the arbitration agreement was about to be determined by the highest court in the country of the governing law in unrelated proceedings, then it might be sensible for the English court to await that decision. Where, however, the issue arises in proceedings brought in alleged breach of the arbitration agreement, deference to the foreign court should generally give way to the importance of upholding the parties bargain and restraining a party to an arbitration agreement from doing something it has promised not to do. We therefore agree with the Court of Appeal that the principles governing the grant of an anti suit injunction in support of an arbitration agreement with an English seat do not differ according to whether the arbitration agreement is governed by English law or foreign law. Forum conveniens considerations are irrelevant and comity has little if any role to play. The courts concern will be to uphold the parties bargain, absent strong reason to the contrary, and the courts readiness to do so is itself an important reason for choosing an English seat of arbitration. It follows that if the agreement to arbitrate disputes contained in article 50.1 of the construction contract had been governed by Russian law, it would have been necessary for the English court to determine whether under the law of Russia the agreement is valid and the claim which Chubb Russia is seeking to pursue in Russia falls within its scope. If those questions were answered in the affirmative, it would in any event have been appropriate to grant an anti suit injunction. XII Overall conclusion Although our approach to the determination of the law applicable to the arbitration agreement differs from that taken by the Court of Appeal, we have similarly concluded that the arbitration agreement in this case is governed by English law. It is common ground that in these circumstances the arbitration agreement is valid, the dispute between the parties falls within it and that the injunction granted by the Court of Appeal to restrain Chubb Russia from proceeding against Enka in Russia was properly granted. It follows that we would dismiss the appeal. Introduction LORD BURROWS: (dissenting) (with whom Lord Sales agrees) 1. In this case, we are presented with an intriguing question of law which courts and commentators have been grappling with for many years. What is the proper law (in the English common law conflicts of law) of an arbitration agreement where there is no express choice of law clause in the arbitration agreement? In particular, should the proper law of the arbitration agreement be the law of the main contract in which the arbitration agreement is contained or should it be the law of the seat of arbitration? In shorthand, should one determine the proper law of the arbitration agreement by the main contract approach or the seat approach? In this case, the seat of the arbitration is England but the proper law of the main construction contract, in which the arbitration agreement is contained, is Russian law (although there is a dispute as to the precise reason for that). Although the ultimate question for this court is whether to issue an anti suit injunction to stop proceedings in Russia it is first helpful, and arguably essential, to determine the proper law of the arbitration agreement. That proper law issue is of wide public importance and this (dissenting) judgment is almost entirely devoted to it. A bare outline of the facts will here be sufficient. The claimant and respondent to this appeal (Enka) is a Turkish engineering company that had been engaged as a subcontractor in construction work at a power plant in Russia. The head contractor (CJSC Energoproekt) assigned its rights against Enka to the owner and developer (PJSC Unipro). There was an arbitration agreement (in article 50.1) in the construction contract (the main contract) between Enka and the head contractor that disputes would be determined by way of International Chamber of Commerce (ICC) arbitration with London seat. Following a massive fire at the power plant, the Russian first defendant insurer and the appellant in this appeal, OOO Insurance Company Chubb (which I shall refer to throughout as Chubb Russia), paid an insurance claim made by the owner and was subrogated to any rights the owner had against Enka. Chubb Russia brought a claim against Enka (and others) in Russia. Enka contended that those proceedings were in breach of the arbitration agreement and applied to the Russian court to dismiss Chubb Russias claim. It also brought a claim in England for an anti suit injunction against the defendants, all members of the Chubb group of companies. At first instance, Andrew Baker J declined to reach a decision on the proper law of the arbitration agreement but dismissed Enkas claim for an anti suit injunction on the ground of forum non conveniens: [2019] EWHC 3568 (Comm). Subsequently Enkas claim in Russia to dismiss the Russian proceedings, as being in breach of the arbitration agreement, failed although Chubb Russias claim on the merits against Enka also failed. Both Enka and Chubb Russia are appealing that decision to the Russian appeal court (and the appeal is set for late October 2020). Meanwhile the Court of Appeal here (Flaux, Males and Popplewell LJJ) ([2020] EWCA Civ 574) allowed Enkas appeal against Andrew Baker Js decision. It held that the proper law of the arbitration agreement was English and granted Enka an anti suit injunction to stop any Russian appeal going ahead as being in breach of the arbitration agreement. Chubb Russia applied to the Supreme Court for permission to appeal from the decision of the Court of Appeal. This court granted permission to appeal and also stayed the anti suit injunction upon Chubb Russia giving suitable undertakings to protect Enkas position pending the outcome of this expedited appeal. It will be helpful to set out immediately the arbitration agreement. This appears within article 50.1 of the main construction contract in the following terms: Resolution of disputes 50.1. The Parties undertake to make in good faith every reasonable effort to resolve any dispute or disagreement arising from or in connection with this Agreement (including disputes regarding validity of this agreement and the fact of its conclusion (hereinafter Dispute) by means of negotiations between themselves. In the event of the failure to resolve any Dispute pursuant to this article within 10 (ten) days from the date that either Party sends a Notification to the opposite Party containing an indication of the given Dispute (the given period may be extended by mutual consent of the Parties) any Party may, by giving written notice, cause the matter to be referred to a meeting between the senior managements of the Contractor and Customer (in the case of the Contractor senior management shall be understood as a member of the executive board or above, in the case of Customer, senior management shall be understood as general directors of their respective companies). The parties may invite the End Customer to such Senior Management Meeting. Such meeting shall be held within fourteen (14) calendar days following the giving of a notice. If the matter is not resolved within twenty (20) calendar days after the date of the notice referring the matter to appropriate higher management or such later date as may be unanimously agreed upon, the Dispute shall be referred to international arbitration as follows: the Dispute shall be settled by three arbitrators the Dispute shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce, appointed in accordance with these Rules, language, and the arbitration shall be conducted in the English in the place of arbitration shall be London, England. 50.2. Unless otherwise explicitly stipulated this Agreement, the existence of any Dispute shall not give the Contractor the right to suspend Work. 50.3. Not used. 50.4. Not used. financial 50.5. All other documentation such as documentation and cover documents for it must be presented in Russian. This judgment builds up to answering the question as to the proper law of the arbitration agreement by initially clearing the ground in three sections. The first sets out some clear or undisputed points of law, the second explains that the issue in this case concerns interpretation not invalidity, and the third clarifies why the proper law of the main contract is Russian. There is then an overview of the case law on the proper law of the arbitration agreement before I come to the central sections of the judgment on determining the proper law of the arbitration agreement in this case and generally. The analysis enables me to provide a statement of the common law on the proper law of an arbitration agreement that is principled, straightforward, clear and easy to apply. Clear or undisputed points of law A number of important matters of law relevant to deciding the proper law of the arbitration agreement are not in dispute (or are clear) and are worth setting out immediately. They are: (i) The seat of the arbitration is England as set out in article 50.1. (ii) The proper (or applicable) law of the main construction contract, which is determined by applying the Rome I Regulation (EC) No 593/2008 (laying down the EU and therefore English conflict of law rules to determine the proper law for contractual obligations), is Russian law. But there is a dispute as to how that conclusion is reached. The relevant provisions of the Rome I Regulation are as follows: Article 3 Freedom of choice 1. A contract shall be governed by the law chosen by the parties. The choice shall be made expressly or clearly demonstrated by the terms of the contract or the circumstances of the case. By their choice the parties can select the law applicable to the whole or to part only of the contract. Article 4 Applicable law in the absence of choice 1. To the extent that the law applicable to the contract has not been chosen in accordance with article 3 , the law governing the contract shall be determined as follows: (b) a contract for the provision of services shall be governed by the law of the country where the service provider has his habitual residence; 2. Where the contract is not covered by paragraph 1 or where the elements of the contract would be covered by more than one of points (a) to (h) of paragraph 1, the contract shall be governed by the law of the country where the party required to effect the characteristic performance of the contract has his habitual residence. 3. Where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with a country other than that indicated in paragraphs 1 or 2, the law of that other country shall apply. 4. Where the law applicable cannot be determined pursuant to paragraphs 1 or 2, the contract shall be governed by the law of the country with which it is most closely connected. David Bailey QC, for Chubb Russia, submitted that the proper law of the main contract is Russian because, applying article 3(1) of Rome I, the choice of Russian law has been made expressly or clearly demonstrated. Robin Dicker QC, for Enka, denied that there has been an express or implied (ie clearly demonstrated) choice of Russian law. Mr Dicker accepted that Russian law is the proper law by reason of article 4 of Rome I but he did not pinpoint why that was so (but because Enka, as the service provider, is Turkish this must presumably be because Russia is the country with which the contract is manifestly more closely connected than Turkey). (iii) Although there is no bar to having different proper laws applying to different clauses of the same contract (the so called concept of dpeage), the general position taken at common law (not least on grounds of practical convenience) is that a contract has a single proper law. See, for example, Kahler v Midland Bank [1950] AC 24, 42 (per Lord MacDermott); Libyan Arab Foreign Bank v Bankers Trust Co [1989] QB 728, 747 (per Staughton J); Dicey, Morris & Collins, The Conflict of Laws, 15th ed (2012), para 32 026. It is worth stressing that the arbitration agreement here is contained in the main contract. We are not concerned with a free standing arbitration agreement (see para 230 below). (iv) The Rome I Regulation does not apply (directly) to an arbitration agreement because of an exclusion from the Regulation of arbitration agreements and agreements on the choice of court in article 1(2)(e) of the Regulation. The proper law of the arbitration agreement must therefore (in an English court) be determined by applying English common law conflict of laws rules. They require a court to look for (applying English law) an express choice, an implied choice or, if neither of those applies, the system of law with which the arbitration agreement has its closest and most real connection: Bonython v Commonwealth of Australia [1951] AC 201, 219; Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102, paras 9 and 25. The first two of those stages are both concerned with ascertaining the parties objective intentions. One can regard the exercise as being one of interpretation of the main contract and the arbitration agreement. There is no express choice of law clause in the arbitration agreement in this case, ie there is no mention of choice of law in article 50.1 of the contract. (v) Mr Bailey at one stage in oral argument appeared to concede that, if the proper law of the arbitration agreement was not Russian by reason of an express or implied choice, it must be English because, as the seat of the arbitration was England, one could not decide that the arbitration agreement had its closest and most real connection to Russia. But he later withdrew that concession. I consider that he was correct to do so (I return to this in para 256 below). (vi) What is commonly referred to as the curial law is, according to Mustill and Boyd, Commercial Arbitration, 2nd ed (1989), pp 60 62, 64 68, the law dealing with the manner in which the parties and the arbitrator are required to conduct the reference of a particular dispute (p 60) and includes the procedural powers and duties of the arbitrator (p 62). The curial law is (almost) invariably the law of the seat of the arbitration. As the law of the seat is England, the curial law here is English. Inextricably linked to this is what may be referred to as the curial or supervisory jurisdiction of the courts. This is concerned with the courts jurisdiction to support and enforce the arbitration. It includes, for example, the power to remove or replace an arbitrator, to enforce or set aside an arbitral award, and to grant injunctions to support the arbitration including anti suit injunctions. Like the curial law, the curial or supervisory jurisdiction of the courts is (almost) invariably determined by the seat of the arbitration. Here, therefore, it is not in doubt that the English courts have curial or supervisory jurisdiction in relation to the arbitration and this includes the jurisdiction to grant an anti suit injunction in this case to restrain the Russian proceedings. In summary, as Popplewell LJ expressed it in the Court of Appeal at para 46, The significance of the choice of a seat is a legal one as to the curial law and the curial court. (vii) If the proper law of the arbitration agreement is determined to be English, the anti suit injunction ordered by the Court of Appeal is appropriate. This was conceded by Mr Bailey. The dispute as to whether an anti suit injunction should be ordered therefore arises only if the proper law of the arbitration agreement is determined to be Russian. 3. A preliminary important point: the dispute concerns the interpretation (or scope) of the arbitration agreement not its validity The reason why the parties respectively favour Russian or English law as the proper law of the arbitration agreement is because English law may take a wider interpretation of the arbitration agreement in this case than Russian law. The precise basis for this is not entirely clear. The most obvious basis is that English law regards tort as well as contractual claims between the parties to be included within the scope of the disputes covered by the arbitration agreement (see Aggeliki Charis Cia Maritima SA v Pagnan SpA (The Angelic Grace) [1995] 1 Lloyds Rep 87), whereas Russian law may interpret disputes as applying only to contractual disputes between the parties. However, it may be that the true basis is slightly more complex than that and involves Russian law tending to interpret the arbitration agreement as not covering joint tortious liability whereas English law appears to include that. Whatever the precise basis for respectively favouring Russian or English law, the important point is that the issue between the parties is as to the scope or interpretation of the arbitration agreement. It is not about the validity of the arbitration agreement. Andrew Baker J recognised this in his judgment at paras 11 12 (and also at para 88). He said: 11. [I]t is common ground that there exists between Enka and Chubb Russia a valid and binding arbitration agreement. That is so even though Chubb Russia is suing in Moscow, and is therefore sued here, as subrogated insurer of Enkas original contractual counterparty. Whether Russian law or English law governs that question, it is common ground that such an insurer is bound by its insureds applicable arbitration agreement. The dispute between the parties, then, again as it was in The Angelic Grace, is whether the claim being pursued in the target proceedings is a claim in tort that falls outside the scope of the agreement to arbitrate. 12. The detail is more complex than it was in The Angelic Grace, however, because in that case there was no dispute but that the claim as brought in Italy was a claim in tort, and it was common ground that the question whether it fell within the scope of the arbitration agreement was governed by English law. Here the law applicable to the question of the scope of the arbitration agreement is disputed; and it is also contentious between the parties whether the claim as brought under Russian law in the Moscow Claim is a claim in tort, or, more strictly, whether it is viable as such. Furthermore, it is effectively common ground that if the question of the scope of the arbitration agreement is governed by English law, then that claim, however it is to be characterised under Russian law, is within that scope. The defendants argument that the claim, if rightly characterised as a claim in tort, falls outwith the scope of the arbitration agreement, only arises at all if they are right that scope is a matter of Russian law. That interpretation or scope, not validity, is in issue is borne out by the decision of the Russian court on 6 May 2020 which decided a preliminary question as to whether, applying Russian law, the court proceedings should go ahead despite the arbitration clause. The Russian court made clear that the issue was as to the interpretation or scope of the arbitration agreement and not the validity of the arbitration agreement. The Courts short judgment on this preliminary question was as follows: So it is article 965 of the Russian Federation Civil Code that establishes the right of the claimant to file against the persons liable for the losses, regardless of what served as the grounds for their occurrence. Therefore, the arbitration clause to which Enka refers does not encompass this dispute and does not extend to it, as the participants are not Enka alone, but also the other ten co defendants who did not enter into an arbitration clause, and the subject of the dispute is the general obligation of all 11 co defendants to indemnify the losses caused. On the basis of the above, the arbitral clause set out in point 50.1 of the contract is not applicable and because of this the motion declared by defendant 11 that the claim should be left on file should not be granted. (Emphasis added) However, Mr Dicker has now submitted that there is also an issue about the validity of the arbitration agreement under Russian law that does not arise under English law. He referred to a Russian decision on 8 February 2018 (in an unrelated matter) on enforcement of an arbitral award under this type of arbitration agreement. The decision was that the arbitration agreement was too uncertain to be enforceable under Russian law apparently because of uncertainty about whether there should have been a reference in the arbitration agreement to the International Court of Arbitration. It was submitted by Mr Bailey in Chubb Russias written case (at para 22) that there is no question of the arbitration agreement being invalid under Russian law; and, as we have seen in the last paragraph, such an argument about invalidity played no part in the reasoning of the Russian court in the 6 May 2020 decision. In any event, our attention was drawn to a note on the website of Debevoise & Plimpton LLP, dated 7 January 2019, indicating that the February 2018 decision in Russia is inconsistent with the usual approach of the Russian Supreme Court and is not a binding authority. Although Mr Dicker submitted that, in the light of that case, there is a serious risk (to use the language in Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102, para 31: see below para 217) that the arbitration agreement would be struck down as invalid under Russian law, that is not a submission that I can accept without having been provided with proper evidence as to the Russian law on the point. One can accept that there may be a triable issue as to whether there is a serious risk of invalidity in this case by reason of that 2018 case. However, we must decide the issue before us as to the proper law of the arbitration agreement on the evidence presented and on the matters pleaded (which do not include this invalidity point). In any event, the arbitration agreement in question in this case was entered into in 2012 and it would seem that, for the purpose of determining the proper law of the arbitration agreement, we must assess the parties intentions and all other relevant factors as at that point in time unaffected by subsequent legal developments in 2018. Why is it an important point that the dispute concerns the interpretation or scope of the arbitration agreement not its validity? There are two linked reasons. First, it is a general principle within the English conflict of laws that, as between two possible proper laws, the courts should favour the proper law that would uphold the validity of an agreement rather than one that would invalidate it (see, for example, In re Missouri Steamship Co (1889) 42 Ch D 321, 341; South African Breweries Ltd v King [1899] 2 Ch 173, 181; Coast Lines Ltd v Hudig and Veder Chartering NV [1972] 2 QB 34, 44 (per Lord Denning MR), 48 (per Megaw LJ); Chitty on Contracts, 33rd ed (2018), para 30 12). Mr Bailey referred to this (in reliance on the work of Gary Born, International Commercial Arbitration, 2nd ed (2014), pp 542 549, and Robert Merkin and Louis Flannery, The Arbitration Act 1996, 6th ed (2019), para 46.10.5) as the validation principle. It rests on the rational assumption that parties would prefer to have an agreement upheld than not. But if it is correct that there is no dispute about the validity of the arbitration agreement in this case, the validation principle is not a reason here for favouring English law over Russian law as the proper law of the arbitration agreement. Secondly, Mr Dicker submitted that, even if the dispute goes to the interpretation of the arbitration agreement and not its validity, the rational assumption is that parties would prefer to have all their disputes referred to arbitration rather than just some ie that rational businessmen are likely to have intended (using Lord Hoffmanns words in Fiona Trust & Holding Corpn v Privalov [2007] UKHL 40; [2007] Bus LR 1719, para 13) that a wider rather than a narrower interpretation of disputes which should be arbitrated was intended. However, there is an important difference between, on the one hand, upholding as valid an undisputed agreement which the parties have reached and, on the other hand, determining the correct interpretation or scope of the agreement where the very question at issue is what is it that the parties have agreed. Without empirical evidence about what rational businessmen, one Russian and one Turkish, concluding a contract for work to be carried out in Russia, would be likely to have intended, I am reluctant to place weight on the idea that these parties would have intended a wider rather than a narrower interpretation of their arbitration agreement. The rational assumption is that the parties intended their agreement to be interpreted in such a way that matches what they agreed. Rationally they do not want to be held to have agreed something which is outside their agreement. And one cannot say that, just because English law may adopt a wider rather than a narrower approach to interpretation of an arbitration agreement than Russian law, that will ensure the correct interpretation of the arbitration agreement. I therefore agree with Mr Baileys written submission on this point where he said: [T]here is no suggestion of invalidity in this case, so as to engage the validation principle. The argument is simply that English law should be taken to apply because it construes AAs [ie arbitration agreements] more liberally. That point only has to be articulated to reveal its parochialism. It is impossible to say that just because Russian law takes a narrower view of AAs than English law does that the parties must have intended English law to apply. That is results based reasoning that ignores the fact that there are legitimate reasons for adopting a narrower approach (such as, in this very case, that a broad interpretation of AAs can lead to an undesirable fragmentation of disputes and proceedings where many different parties are involved). 4. Why is the proper law of the main contract Russian? As I have explained in para 193(ii), while it is not in dispute that the proper law of the main construction contract is Russian, the route to that conclusion through the Rome I Regulation is disputed. This matter is of central importance because it has a significant impact on determining the proper law of the arbitration agreement. As we have seen in para 193(ii), the Rome I Regulation provides in article 3.1 that the governing law is that chosen by the parties where a choice is made expressly or is clearly demonstrated by the terms of the contract or the circumstances of the case. In the absence of such choice article 4 provides that in a contract for the provision of services the governing law is prima facie that of the habitual residence of the service provider but that the law of another country applies where it is clear from all the circumstances of the case that the contract is manifestly more closely connected with [that] country. Mr Bailey submitted that Russian law had been expressly chosen as the proper law. He relied on the definition of Applicable Law in Attachment 17 to the contract which reads: Law of the Russian Federation, including legislation of the Russian Federation, all regulatory legal acts of the State Authority Federal Bodies, State Authorities of the constituent entities of the Russian Federation, legislation of the constituent entities of the Russian Federation, regulatory legal acts by Local Authorities and any other applicable regulatory legal acts. Although this was not a classic choice of law clause of the type This Agreement is governed by Russian law Mr Bailey submitted that it had the same effect. I am not persuaded by that. The applicable law article (Attachment 17) does not say This Agreement is governed by the Applicable law. Rather article 1 of the contract provides that The terms used in this Agreement shall have the definitions set forth in Attachment No 17 to this Agreement. Admittedly, the term Applicable Law is used in a large number of specific provisions. But Mr Dicker submitted that one is here talking about an incorporation by reference of relevant legislative provisions and that that is how the phrase Applicable law is used in international construction contracts (and he here referred us to a major practitioner work on standard contracts issued by the International Federation of Consulting Engineers (FIDIC): Baker Mellors Chalmers and Lavers on FIDIC Contracts, Law and Practice at paras 2.126, 2.140, 2.145). Mr Dicker took as a typical article in the main contract, article 4.1(b) which provides that Enka shall ensure performance of the work in accordance with the Applicable Law. This ensures that, incorporated into the contract, are local laws and regulations, such as those governing planning, health and safety, labour laws, taxes and customs. Admittedly the main contract was not a FIDIC contract. And it may be thought odd to incorporate, where specified, all the relevant law of the Russian Federation (as the first phrase of Attachment 17 requires) including presumably the Russian law of contract in the Russian Civil Code, if all one is concerned with are particular mandatory regulations. My view is that, although there is some ambiguity about the role of the Applicable Law definition, Mr Dicker is correct that Attachment 17 does not constitute an express choice of law clause. However, Attachment 17 is not alone. There are many other additional references to Russian law in the contract. So, for example, at article 24.2 there is reference to the provisions of the Russian Civil Code, there is reference to RF law in article 4.15, and there are numerous references (eg at articles 4.5, 4.26, 19.2 and 36.1) to law which, in the context, are clearly references to Russian law. It is helpful here to refer to Title II, article 3, para 3 of the Giuliano Lagarde Report on the Convention on the law applicable to contractual obligations which was the report that lay behind the Rome Convention which was the predecessor of the Rome I Regulation (and had the same wording as article 3.1 except that the formulation was The choice must be expressed or demonstrated with reasonable certainty rather than The choice shall be made expressly or clearly demonstrated): The choice of law by the parties will often be express but the Convention recognizes the possibility that the court may, in the light of all the facts, find that the parties have made a real choice of law although this is not expressly stated in the contract. For example . references in a contract to specific articles of the French Civil Code may leave the court in no doubt that the parties have deliberately chosen French law, although there is no expressly stated choice of law. (OJ C282/17) One can add to those express words in the contract, several other circumstances. The head contractor in the contract with Enka was Energoproekt, a Russian company and the owner and end customer, Unipro, was also Russian. The place of performance was Russian. The effects of any breach would be suffered in Russia. The primary language of the contract was Russian. And the price for the work was to be paid in Russian currency to a Russian bank account. Indeed, the only non Russian elements of the contract are that Enka is a Turkish company and that the seat of the arbitration is England. My conclusion, therefore, is that, applying article 3.1 of the Rome I Regulation, Russian law is the proper law of the main contract chosen by the parties because, even though not expressly chosen, that choice has been clearly demonstrated by the terms of the contract or the circumstances of the case. The most powerful argument to the contrary is that the parties could easily have inserted a choice of law clause into the contract and yet failed to do so. Mr Dicker submitted that, in the context of a professionally drafted, detailed, and long contract, the most obvious explanation for that was that the parties could not agree on which law should be the governing law. But we have seen no evidence as to the circumstances in which this contract was drawn up and it seems to me more plausible as an objective interpretation of the parties intentions that, given that there was some ambiguity over the role of the Applicable Law definition, the parties thought it was clear, and did not need to be further stated, that Russian law was the proper law. Although there may be marginal differences as between article 3.1 of the Rome I Regulation and the first two stages (express or implied choice) of the common law test for the proper law, they are very closely aligned: see Lawlor v Sandvik Mining and Construction Mobile Crushers and Screens Ltd [2013] EWCA Civ 365; [2013] 2 Lloyds Rep 98. In my view, English common law, which I here refer to by analogy, would in this case regard there as having been an implied choice of Russian law. Even though there was no express term to that effect, the correct objective interpretation of the contract is that Russian law has been chosen by the parties. I should stress that the lower courts did not decide this question as to why Russian law was the proper law of the main contract. Andrew Baker J, at paras 91 93, simply said that whether there was a choice of Russian law as the proper law is far from clear in Enkas favour (ie it was not clear that no choice had been made). The Court of Appeal decided that there was no express choice of proper law but appeared to leave open whether there had nevertheless been a clearly demonstrated choice under article 3(1) of the Rome I Regulation. The case law on the proper law of the arbitration agreement In the Court of Appeal in this case, Popplewell LJ said, at para 89, In my view the time has come to seek to impose some order and clarity on this area of the law, in particular as to the relative significance to be attached to the main contract law on the one hand, and the curial law of the arbitration agreement on the other, in seeking to determine the AA law. The current state of the authorities does no credit to English commercial law which seeks to serve the business community by providing certainty. As this passage suggests, the English cases on this question, which appear to have been proliferating in recent years, do not speak with one voice. Certainly in seeking to provide the clarity which Popplewell LJ was rightly seeking, one cannot simply examine the relevant cases and hope to find in them a definitive answer to our question. With reasoning and decisions going both ways, the major purpose of looking at past cases is rather to put the task facing us in context and to ensure that all relevant considerations have been borne in mind. But ultimately, and without any authority binding this court, the way forward rests on a re examination of principle. It also follows that no attempt is here being made to cover all relevant cases. Rather I shall focus on the most important cases to which we were referred by counsel. The earliest case we were referred to was the House of Lords decision in Hamlyn & Co v Talisker Distillery [1894] AC 202. This concerned a contract between an English and Scots firm, made in London but to be performed in Scotland, with an arbitration clause for arbitration by two members of the London Corn Exchange, or their umpire, in the usual way. It was held that the interpretation of the arbitration clause was governed by English law (ie in modern terminology, the proper law of the arbitration agreement was English). But in determining the respective weights of the proper law of the main contract and the proper law of the seat of the arbitration, the case does not take one very far for two reasons. First, the proper law of the main contract was not clarified and indeed it seemed to be assumed that the proper law of the arbitration agreement would also be the proper law of the main contract. In the words of Lord Herschell LC, at p 209: I see no difficulty whatever in construing the language used as an indication that the contract, or that term of it [ie the arbitration agreement], was to be governed and regulated by the law of England. Secondly, it was regarded as an important consideration that the arbitration clause was invalid in Scotland because the arbitrators were not named but valid in England. It was for this reason that Mr Bailey submitted that this case was an example of the application of the validation principle. In Cie Tunisienne de Navigation SA v Cie dArmement Maritime SA [1971] AC 572, the House of Lords was deciding on the proper law of the main contract (a contract for the carriage of goods by sea) in a context where that proper law was specified as being governed by the laws of the flag of the vessel carrying the goods. There was an arbitration clause with London as the seat. It was held that the proper law of the main contract was French. The majority (Lords Morris, Dilhorne and Diplock) reasoned that this was because there was a choice of French law as the proper law (because, on the true construction of the choice of law clause, the relevant flag was French). Lords Reid and Wilberforce reasoned that, although there was no operative choice of law clause (because the dispute could not be related to a specific vessel or shipment), the rest of the contract and the relevant surrounding facts meant that the contract had the closest connection with France (the majority preferred to treat this as an alternative reason for their decision). Their Lordships placed considerable weight on the seat of the arbitration as a strong indication of the proper law of the main contract (and implicitly the proper law of the arbitration agreement) but held that that strong indication was here negatived by the choice of law clause (per the majority) or by the other factors linking the contract most closely to French law (per Lords Reid and Wilberforce). Lord Diplocks analysis of the curial law is particularly helpful. He said the following at p 604: My Lords, it is possible for parties to a contract to choose one system of law as the proper law of their contract and a different system of law as the curial law. Although they may want their mutual rights and obligations under the contract to be ascertained by reference to the system of law of a country with which the transaction has some close and real connection, they may nonetheless consider that the arbitral procedure adopted in some other country, or the high reputation and commercial expertise of arbitrators available there, make the curial law of that country preferable to the curial law of the country whose system of law they have chosen as the proper law. It is not now open to question that if parties to a commercial contract have agreed expressly upon the system of law of one country as the proper law of their contract and have selected a different curial law by providing expressly that disputes under the contract shall be submitted to arbitration in another country, the arbitrators must apply as the proper law of the contract that system of law upon which the parties have expressly agreed. But the cases which have given rise to difficulty are those where the parties have made a choice of curial law by a clause of their contract expressly agreeing to arbitration in a particular country but have made no express provision as to the proper law applicable to the contract. We were then referred to two judgments of Lord Mustill, who was the co author, with Stewart Boyd QC, of Commercial Arbitration (the first edition of which appeared in 1982 with a second edition in 1989). In Black Clawson International Ltd v Papierwerke Waldhof Aschaffenburg AG [1981] 2 Lloyds Rep 446 Mustill J as he then was said, at p 455: Where the laws diverge at all, one will find in most instances that the law governing the continuous agreement [sc the arbitration agreement] is the same as the substantive law of the contract in which it is embodied And at p 456: In the ordinary way, this [sc the proper law of the arbitration agreement] would be likely to follow the law of the substantive contract. These statements offer support to the proper law of the arbitration agreement being the same law as the main contract rather than being the law of the seat. This is consistent with the approach favoured in Mustill and Boyd, Commercial Arbitration, 2nd ed (1989), at p 63: The starting point is to determine the proper law of the contract in which the arbitration is embodied. As a general rule the arbitration agreement will be governed by the same law, since it is part of the substance of the underlying contract. However, in the Black Clawson case itself, the force of Mustill Js support for the main contract approach is somewhat diminished because he went on to treat the parties choice of Zurich as the place of arbitration as indicating an intention that the law governing the arbitration agreement should be the law of Zurich. Subsequently, we see Lord Mustill favouring the main contract approach in the House of Lords in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334. At p 357, Lord Mustill said: It is by now firmly established that more than one national system of law may bear upon an international arbitration. Thus, there is the proper law which regulates the substantive rights and duties of the parties to the contract from which the dispute has arisen. Exceptionally, this may differ from the national law governing the interpretation of the agreement to submit the dispute to arbitration. Less exceptionally it may also differ from the national law which the parties have expressly or by implication selected to govern the relationship between themselves and the arbitrator in the conduct of the arbitration: the curial law of the arbitration, as it is often called. (Emphasis added) In XL Insurance Ltd v Owens Corning [2001] 1 All ER (Comm) 530 Toulson J was concerned with an insurance policy which (to simplify slightly) had a New York governing law clause and an arbitration clause with a London seat which included reference to the Arbitration Act 1996. It was alleged that the arbitration agreement was unenforceable because it was not in the correct written form under New York law. It was held, inter alia, that the enforceability of the arbitration agreement should be governed by English law as the law of the seat. Although Toulson Js reasoning is open to various possible interpretations and certainly his reasoning lends support to hiving off arbitration from the rest of the main contract as dealing with a particular method of resolving disputes (at 541e) one interpretation is that, as he was satisfied that the parties had made an arbitration agreement, the validation principle was being applied so as to ensure that that arbitration agreement was upheld. The primary importance of C v D [2007] EWCA Civ 1282; [2008] Bus LR 843 is obiter dicta of Longmore LJ supporting the seat approach. The case dealt with an insurance contract governed by New York law with an English arbitration clause (ie an English seat). The question was which law, New York or English, governed challenges to the arbitral award. It was held that English law applied to determine that question. That seems straightforward because that question was one of curial law and curial jurisdiction and the seat of arbitration (here England) almost invariably determines that law. The proper law of the arbitration agreement and the proper law of main contract were irrelevant in this case. However, Longmore LJ went on, in obiter dicta, to look at the proper law of the arbitration agreement and said this, at para 22: The question then arises whether, if there is no express law of the arbitration agreement, the law with which that agreement has its closest and most real connection is the law of the underlying contract or the law of the seat of arbitration. It seems to me that if (contrary to what I have said above) this is a relevant question, the answer is more likely to be the law of the seat of arbitration than the law of the underlying contract. It is worth interjecting here that, in line with Longmore LJs obiter dicta, the 15th edition of Dicey, Morris & Collins, The Conflict of Laws, published in 2012 has the following main rule (rule 64(1)): the law expressly or impliedly chosen by the The material validity, scope and interpretation of an arbitration agreement are governed by its applicable law, namely: (a) parties; or, (b) in the absence of such choice, the law which is most closely connected with the arbitration agreement, which will in general be the law of the seat of the arbitration. We then come to what can probably be regarded as the leading case: Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102. Moore Bick LJs leading judgment (with which Hallett LJ and Lord Neuberger MR agreed) was cited by both Mr Bailey and Mr Dicker in support of their submissions. Claims were brought by Brazilian companies under two insurance policies covering construction work in Brazil. The insurers denied liability on the basis of an exclusion clause and material non disclosure. There was an express choice of Brazilian law as the governing law in the insurance contracts and an exclusive jurisdiction clause in favour of Brazilian courts. However, the arbitration clause specified England as the seat. In the insurers application for an anti suit injunction, the central question was what was the proper law of the arbitration agreement. Under Brazilian law, there was a serious risk (per Moore Bick LJ at para 31) that the insured was not bound by the arbitration clause as the insured may not have specifically consented to its enforcement. The Court of Appeal held that English law was the proper law of the arbitration agreement. But it is not easy to determine whether Moore Bick LJs judgment supports the main contract or seat approach. The following passage, at para 26, supports the main contract approach provided there is an express choice of law clause in the main contract: where the arbitration agreement forms part of a substantive contract an express choice of proper law to govern that contract is an important factor to be taken into account. In the absence of any indication to the contrary, an express choice of law governing the substantive contract is a strong indication of the parties intention in relation to the agreement to arbitrate. A search for an implied choice of proper law to govern the arbitration agreement is therefore likely to lead to the conclusion that the parties intended the arbitration agreement to be governed by the same system of law as the substantive contract, unless there are other factors present which point to a different conclusion. These may include the terms of the arbitration agreement itself or the consequences for its effectiveness of choosing the proper law of the substantive contract. Moore Bick LJ went on to decide that there were two conflicting indications (para 31) that meant that the parties had not impliedly chosen Brazilian law as the proper law of the arbitration agreement. The first was that England was the seat, which inevitably imported English law, and hence the provisions of the Arbitration Act 1996, relating to the conduct and supervision of the arbitration (ie the curial law was English and the English courts had supervisory jurisdiction). The second was the serious risk that the arbitration agreement might not be binding, as against the insured, under Brazilian law. He then turned to the third stage of the common law approach and, in a passage which supports the seat approach he said this at para 32: One then has to consider with what system of law the agreement has the closest and most real connection. Although [counsel for the appellant] submitted that the agreement has a close and real connection with the law of Brazil, being the law governing the substantive contract in which the arbitration agreement itself is embedded, I think his argument fails adequately to distinguish between the substantive contract and the system of law by which it is governed. No doubt the arbitration agreement has a close and real connection with the contract of which it forms part, but its nature and purpose are very different. In my view an agreement to resolve disputes by arbitration in London, and therefore in accordance with English arbitral law, does not have a close juridical connection with the system of law governing the policy of insurance, whose purpose is unrelated to that of dispute resolution; rather, it has its closest and most real connection with the law of the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective. Its closest and most real connection is with English law. I therefore agree with the judge that the arbitration agreement is governed by English law. Subsequent to Sulamrica, there have been two significant first instance decisions. In Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2012] EWHC 3702 (Comm); [2013] 2 All ER (Comm) 1, Andrew Smith J was faced with an express choice of Indian law in the main contract and an arbitration agreement with a London seat. Distinguishing Sulamrica, because there were no indications conflicting with the express choice of law, he held that the proper law of the arbitration agreement was Indian law. Then we come to the valiant attempt by Hamblen J (as he then was) in Habas Sinai Ve Tibbi Gazlar Istihsal Endustrisi AS v VSC Steel Co Ltd [2013] EWHC 4071 (Comm); [2014] 1 Lloyds Rep 479, to set out, as clearly as possible, the relevant principles to be derived from the cases in this tangled area. In relation to the question of the proper law of the arbitration agreement it was assumed that there was no choice of law in the main contract but that it was governed by Turkish law as the law with which it was most closely connected. The parties had agreed (as found by Hamblen J) a London arbitration clause. It was held that the proper law of the arbitration agreement was English. At para 101, Hamblen J said: 101. The leading authority is the recent Court of Appeal decision in Sul Amrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] 1 Lloyds Rep 671. Moore Bick LJ (with whom Hallett LJ and Lord Neuberger MR agreed), summarised the test for determining the law applicable to arbitration agreements at paras 26 32. The Court of Appeals decision was considered but distinguished by Andrew Smith J in Arsanovia Ltd v Cruz City 1 Mauritius Holdings [2013] 1 Lloyds Rep 235. The guidance provided by these authorities may be summarised as follows: (1) Even if an arbitration agreement forms part of a matrix contract (as is commonly the case), its proper law may not be the same as that of the matrix contract. (2) The proper law is to be determined by undertaking a three stage enquiry into: (i) express choice; (ii) implied choice; and (iii) the system of law with which the arbitration agreement has the closest and most real connection. (3) Where the matrix contract does not contain an express governing law clause, the significance of the choice of seat of the arbitration is likely to be overwhelming. That is because the system of law of the country seat will usually be that with which the arbitration agreement has its closest and most real connection. (4) Where the matrix contract contains an express choice of law, this is a strong indication or pointer in relation to the parties intention as to the governing law of the agreement to arbitrate, in the absence of any indication to the contrary. (5) The choice of a different country for the seat of the arbitration is a factor pointing the other way. However, it may not in itself be sufficient to displace the indication of choice implicit in the express choice of law to govern the matrix contract. (6) Where there are sufficient factors pointing the other way to negate the implied choice derived from the express choice of law in the matrix contract the arbitration agreement will be governed by the law with which it has the closest and most real connection. That is likely to be the law of the country of seat, being the place where the arbitration is to be held and which will exercise the supporting and supervisory jurisdiction necessary to ensure that the procedure is effective. 102. In relation to point (3), I would add that the terms of the arbitration clause may themselves connote an implied choice of law. It is recognised that they may operate as an implied choice of law for the matrix contract itself see, for example, Cie Tunisienne de Navigation SA v Cie dArmement Maritime SA [1971] AC 572, Lord Wilberforce at p 596 and Lord Diplock at pp 604 605; In such cases they must surely equally operate as an implied choice of law for the arbitration agreement. 103. The present case is one where there is no express choice of law in the matrix contract. In such a case the Sul Amrica decision is clear authority that the applicable law will be that of the country of seat. This was acknowledged by Habas who reserved the right to challenge the decision should this case go further. The reference to overwhelming in point (3) appears to refer to the words of Moore Bick LJ in the Sulamrica case, at para 26, but it should be noted that Moore Bick LJ was using that description in the context of a free standing agreement to arbitrate not an arbitration agreement contained in a main contract. Hamblen Js summary represents clear support for the seat approach: unless there is an express choice of law clause in the main contract, the seat will very likely determine the proper law of the arbitration agreement; and even where there is such an express choice of law clause, there may be sufficient factors pointing towards the seat determining the arbitration agreements proper law. I interject at this point that there was a careful analysis of these issues by Steven Chong J (as he then was) in BCY v BCZ [2016] SGHC 249; [2016] 2 Lloyds Rep 583 in the High Court of Singapore. In a judgment which favoured the main contract approach, he said at para 65: where the arbitration agreement is part of the main contract, I would hold, adopting Sul Amrica, that the governing law of the main contract is a strong indicator of the governing law of the arbitration agreement unless there are indications to the contrary. The choice of a seat different from the law of the governing contract would not in itself be sufficient to displace that starting point. The approach in the BCY case was subsequently assumed to be the correct law in Singapore by the Singaporean Court of Appeal (Sundaresh Menon CJ, Judith Prakash JA, and Steven Chong JA), and by the parties, in BNA v BNB [2019] SGCA 84; [2020] 1 Lloyds Rep 55, paras 44 95. Popplewell LJs approach in the Court of Appeal in the present case may be regarded as somewhat similar to that of Hamblen Js in the Habas case. At para 91, Popplewell LJ said that, subject to an express choice of law in the main contract, the general rule should be that the arbitration agreement law is the curial law, as a matter of implied choice, subject only to any particular features of the case demonstrating powerful reasons to the contrary. And at para 105, he said the following: I would therefore summarise the principles applicable to determining the proper law of an arbitration agreement, what I have called the AA law, when found in an agreement governed by a different system of law, as follows: (1) The AA law is to be determined by applying the three stage test required by English common law conflict of laws rules, namely (i) is there an express choice of law? (ii) if not, is there an implied choice of law? (iii) if not, with what system of law does the arbitration agreement have its closest and most real connection? (2) Where there is an express choice of law in the main contract it may amount to an express choice of the AA law. Whether it does so will be a matter of construction of the whole contract, including the arbitration agreement (3) In all other cases there is a strong presumption that the parties have impliedly chosen the curial law as the AA law. This is the general rule, but may yield to another system of law governing the arbitration agreement where there are powerful countervailing factors in the relationship between the parties or the circumstances of the case. 6. What is the proper law of the arbitration agreement? (1) The proper law of the arbitration agreement is Russian law by reason of an implied choice We are now in a position to decide what is the proper law of the arbitration agreement. As I have said at para 193(iv) above, this is to be resolved by the common law choice of law rules ie one is looking for an express choice, an implied choice or, if neither of those applies, the system of law with which the arbitration agreement has its closest and most real connection. In this case, the three most important factors in deciding this issue are: (i) There is no express choice of law clause in the arbitration agreement here ie there is no mention of choice of law in article 50.1 of the main construction contract. (ii) The seat of the arbitration, as laid down in the arbitration agreement, is England. (iii) The proper law of the main construction contract, as we have established at paras 200 208 above, is Russian law by reason of the implied choice of the parties. It is my view that that combination of factors leads to the conclusion that, under English common law, the proper law of the arbitration agreement is, by reason of an implied choice, Russian law. As the parties have impliedly chosen Russian law for the main contract it is natural, rational and realistic to regard that choice for the main contract as encompassing, or carrying across to, the arbitration agreement. That implied choice is simply the correct objective interpretation of the parties main contract and arbitration agreement. Although the decision as to the proper law of the arbitration agreement turns on the interpretation of the main contract and the arbitration agreement, there are a number of general reasons (ie reasons that do not turn on the interpretation of these particular contracts) which support the view that, absent an express choice of law in the arbitration agreement, there is a presumption (or general rule) that the proper law of the main contract is also the proper law of the arbitration agreement; and there is no such presumption (or general rule) that the law of the seat is the proper law of the arbitration agreement. In short, these are reasons for favouring the main contract rather than the seat approach. I should make clear at the outset that, everything that is here said, relates to an arbitration agreement that is contained in a main contract. While a free standing arbitration agreement entered into at the same time would not be treated differently, a free standing arbitration agreement entered into at a different time and under different circumstances would require a different analysis. (2) Reasons why, absent an express choice of law in the arbitration agreement, there is a presumption (or general rule) that the proper law of the main contract is also the proper law of the arbitration agreement (i) Dpeage is the exception not the rule If one were to treat the arbitration agreement in the same way as all the other clauses in the main contract, the general rule would be that the same proper law would apply throughout. Dpeage is the exception not the rule. See para 193(iii) above. (ii) The rationale of the separability doctrine Under the separability doctrine, an arbitration agreement is viewed for certain purposes, both at common law and under section 7 of the Arbitration Act 1996, as a separate contract from the main contract. The reason for that is in order to ensure that the arbitration agreement is effective despite the non existence, invalidity, termination or rescission of the main contract. In other words, it stops the argument that the parties have not agreed to arbitration to deal with disputes about the non existence, invalidity or initial ineffectiveness of the main contract; and it also stops the argument that the arbitration agreement cannot deal with disputes once the main contract has been terminated or rescinded. This explains the wording of section 7 of the Arbitration Act 1996: Separability of arbitration agreement Unless otherwise agreed by the parties, an arbitration agreement which forms or was intended to form part of another agreement (whether or not in writing) shall not be regarded as invalid, non existent or ineffective because that other agreement is invalid, or did not come into existence or has become ineffective, and it shall for that purpose be treated as a distinct agreement. (Emphasis added) This statutory wording makes clear that the separability doctrine has been devised for a particular purpose. For that purpose, it treats (one might say somewhat fictionally) the arbitration agreement as a separate agreement when, in reality, it is not a free standing agreement but is merely part of the main contract. However, that purpose does not extend to working out the conflict of laws rules applicable to an arbitration agreement. It follows that in deciding on the proper law of the arbitration agreement, the arbitration agreement should be regarded as part of the main contract. I therefore agree with the characteristically clear and helpful exposition by Adrian Briggs, Private International Law in English Courts (2014), paras 14.37 14.38: If the agreement to arbitrate is a term of a larger contract, the law which governs the contract as a whole will generally determine the scope of the terms of that contract. For even though the arbitration agreement is for some important purposes notionally severable from the substantive contract, those purposes do not include the need for its governing law to be separate or different from that of the substantive contract in which the arbitration agreement is contained. It would be perverse to deduce from the principle of severability a rule that the law governing the agreement to arbitrate should be identified without reference to the substantive contract in which the parties included it as a term. The autonomy of the arbitration agreement is one thing; its hermetic isolation would be quite another. To put the point yet another way: the agreement to arbitrate is severable, but that does not mean it is separate. Prior to any severance it will have been governed by the law which governs the contract; after severance, it must remain governed by the same law, for otherwise it is not being severed; something else is instead being created. The result is that if the law which governs the substantive contract is identified by the Rome I Regulation, that law is very likely to govern the agreement to arbitrate, and will therefore also be used by the court to determine the validity, meaning and scope of the arbitration agreement. The fact that the Rome I Regulation makes no claim to identify the applicable law for arbitration agreements does not prevent the common law rules of private international law applying their own solution to the question, which is that the agreement to arbitrate is generally governed by the law of the contract of which it is a term if it is a term of a substantive contract. (footnotes omitted) (iii) Dividing the arbitration agreement from the rest of the contract be problematic There may sometimes be practical problems in drawing the line for proper law purposes between the arbitration agreement and the rest of the main contract. This case provides an excellent example. This is because the arbitration agreement is itself part of a wider dispute resolution clause, ie article 50.1 (set out at para 191 above) includes an obligation to resolve the dispute in good faith and for there to be a meeting of senior management and only after that should the dispute, if still unresolved, be referred to international arbitration. It would be very odd and inconvenient to apply one proper law to interpret the earlier sentences in article 50.1 and a different proper law to interpret the later sentences. Moreover, the terms notification and written notice are used in article 50.1 and therefore impact on the time when the matter can be referred to arbitration and the meaning of those terms is set out in article 51.4 of the main contract. It might be said that the whole of article 50.1 should be separated off from the main contract for the purposes of deciding the proper law. But while that would avoid the difficulty of different proper laws applying within the same dispute resolution clause, it creates the problem of how to ensure consistency with other terms of the main contract, such as article 51.4 (or another example, article 51.2 which is an entire agreement clause). To have a different proper law applying to the definitional article 51.4 than applies to article 50.1 would be problematic. All these difficulties would be avoided if the proper law of the arbitration agreement were the same as the proper law of the main contract. Let us further assume that, instead of putting the arbitration agreement in a dispute resolution clause, the contract, as is often the case, had two separate clauses: a dispute resolution clause operative prior to arbitration and an arbitration agreement. Surely using two clauses instead of one cannot make all the difference to the proper law issue. Yet on the face of it that is what the seat approach would require. One can envisage other examples of the difficulties that this division of the proper law would cause. Take, for example, the English law rule of interpretation that pre contractual negotiations are not to be taken into account. Let us assume (as appears to be the case) that that is different from the law on interpretation in New York. Then, let us assume, that there is a main contract governed by New York law which includes an arbitration agreement with London as the seat. There may be pre contractual negotiations that are relevant to understanding the contract including the arbitration agreement. It would be most odd to take those negotiations into account in interpreting the main contract (governed by New York law) but to exclude them when interpreting the arbitration agreement (governed by English law). Again that problem is avoided if the same proper law applies across the board. Another problematic example arises because of different possible approaches to a no oral modification clause. Such a clause is effective to prevent subsequent oral variations of a contract in English law (as laid down in MWB Business Exchange Centres Ltd v Rock Advertising Ltd [2018] UKSC 24; [2019] AC 119). Let us assume, as appears to be the case, that the contrary position is taken under New York law. Let us then assume that there is a contract containing a no oral modification clause and an arbitration agreement. The main contract is governed by New York law but London is the seat of the arbitration. If one applies different proper laws to the main contract and to the arbitration agreement, that would appear to produce the odd result that a subsequent oral variation, which might affect the arbitration agreement, would be effective in relation to the main contract but would be ineffective in relation to the arbitration agreement. Again there would be no such problem if the proper law that applied to the main contract applied also to the arbitration agreement. No doubt one can envisage many other such practical problems arising from the division required by the seat approach. They indicate the underlying truth that, in contrast to the main contract approach, the seat approach cuts across a principled way forward. (iv) arbitration In past cases excessive weight has been given to the seat of It is not easy to pinpoint why, in several past cases (as we have seen in paras 209 226 above) the seat of arbitration has been thought to be of such major importance in determining the proper law of the arbitration agreement. True it is that the seat of arbitration (almost) invariably carries with it the curial law and the courts curial or supervisory jurisdiction (see para 193(vi) above). So in this case it is not in dispute that the curial law of the arbitration agreement here is England and that the English courts have curial or supervisory jurisdiction. It may be, therefore, that in the past there has sometimes been a failure to distinguish between, on the one hand, the curial law and the curial/supervisory jurisdiction of the courts which are (almost) invariably determined by the law of the seat and, on the other hand, the proper law of the arbitration agreement. As Adrian Briggs has written in Private International Law in English Courts (2014), para 14.41: [T]he identification of the seat is a reliable indicator of the law which was intended or expected by the parties to apply to the proceedings before the arbitral tribunal, to their support, supervision, and control, but it is not a statement of the law which will govern the initial validity and scope of the agreement to arbitrate. The parties may say that they wish to have arbitration in London, and it may well be true that they expect the Arbitration Act 1996 to provide the template for the procedure which will be followed once the arbitration is underway. But it does not follow, or does not need to follow, that the validity of the contract by means of which that agreement was or [was] not made must also be understood to be governed by English law, for that is another question entirely. Another possible explanation for the weight given to the seat in older cases is that this has rested on the now outdated assumption (given the way modern international arbitration works) that arbitrators at the seat would only be comfortable applying their own law. In Cie Tunisienne de Navigation SA v Cie dArmement Maritime SA [1971] AC 572, the House of Lords reasoned that the choice of seat in an arbitration clause was an indicator as to the proper law of the main contract. A submission put forward in support of that was that a reason for choosing an English seat was because English arbitrators would be most familiar with English law. Lord Wilberforce rejected that submission. He said, at 596, I venture to think that in commercial matters, at the present time, this may give insufficient recognition to the international character of the City of London as a commercial centre the reason, rather than any preference for English rules, for which arbitration in London is selected. In this case the arbitrators had no difficulty in finding for French law and I do not suppose they would find ascertainment of the French law as to damages any more difficult than the English law of anticipatory breach. And as Popplewell LJ said in the Court of Appeal in this case, at para 72: I doubt that [that submission] would now be accorded significant weight in the context of most international arbitration in England, in which English arbitrators are often asked to decide questions under a foreign governing law and are regarded as equipped to do so. A fortiori it is inapplicable to a case such as the present involving arbitration under the ICC Rules which commonly involves appointment of foreign arbitrators from different legal traditions and disciplines notwithstanding that the seat of the arbitration is in London. Mr Dicker submitted that the seat might often be chosen to ensure neutrality. However, the desire for neutrality is surely normally concerned with the quality and integrity of the decision makers and rarely has anything to do with the proper law to be applied (ie the relevant neutrality is referring to the decision maker not the proper law to be applied by that decision maker). There may have been an implication in Mr Dickers submission that the parties in this case precisely chose England as the seat because they did not trust the Russian courts. Certainly one can readily accept that neutrality away from home courts may be a reason why parties choose international arbitration, and that the curial or supervisory jurisdiction of the courts at the seat may be significant. But the desire for neutrality does not explain why the parties would choose the law of the seat rather than the law of the main contract as the proper law of the arbitration agreement. Moreover, in this case if the parties really did not trust the Russian courts, one would have expected there to have been an exclusive jurisdiction clause (requiring any litigation to come before the English courts) in the main contract. In any event, we were supplied with no evidence to support any suggestion that the parties in the present case did not trust the Russian courts. Clearly they preferred to resolve the matter by arbitration rather than litigation but that is a different point. In past cases insufficient weight has traditionally been given to the (v) implied choice of the parties Although it is very difficult to rationalise all past cases, the apparent rationalisation given by the Court of Appeal in this case (mirroring other judicial attempts), in seeking to put the law on a sound footing, with respect places insufficient weight on the implied choice of the parties. That approach was to say that, in general, the proper law of the arbitration agreement was dictated by the seat chosen for the arbitration unless there was an express choice of proper law in the main contract (see Popplewell LJs judgment at paras 90 91 and 105 and above para 226). But why should only an express choice of proper law in the main contract have this effect? As Mr Bailey persuasively submitted, in his written case, it is the fact that the parties have made a choice which matters, not the way in which that choice was manifested. In other words, it makes no rational sense to place heavy weight on an express choice in the main contract while placing little weight on an implied choice in the main contract. (vi) The curial law and curial jurisdiction can be separated out from the proper law of the arbitration agreement A central submission of Mr Dicker, in line with the views of Popplewell LJ in the Court of Appeal at paras 96 to 99, is that one cannot properly separate out the curial law of the arbitration from the proper law of the arbitration agreement. They are intertwined. It follows, so the submission goes, that the parties are unlikely to have intended the proper law of the arbitration agreement to be different from the curial law (and we know that the latter is English by reason of the choice of seat). While in general terms, the curial law may be said to be dealing with arbitral procedure, and the proper law of the arbitration agreement with the substance of the parties arbitration agreement (its existence, validity and scope), one cannot in this context neatly divide procedure and substance. This is illustrated, so the submission goes, by the provisions of the Arbitration Act 1996. If the seat is England, the provisions of that Act apply whatever the proper law of the arbitration agreement; and many of these provisions (for example, sections 5, 7, 12, 28(1), 58, 60, 71(4), 79 and 82(2)) are substantive not procedural. Looked at in the overall context of the English rules on the conflict of laws, this may be thought a surprising submission. This is because it has long been recognised that, while there may be issues at the margins in drawing the distinction, there is an important difference between matters of procedure that are governed by the law of the forum and matters of substance that are governed by the particular proper law; and in modern times it would not be suggested that the forum chosen, governing procedure, would be a decisive, or even an important, factor in deciding on the proper law determining the substantive rights of the parties. It should also be noted that one would face the same issue of separating out the curial law from the proper law of the arbitration agreement if there were an express choice of law clause in the main contract specifying a different proper law than the curial law. Yet there is wide acceptance that an express choice of law clause in the main contract would override the choice of seat in determining the proper law of the arbitration agreement. Moreover, as regards the Arbitration Act 1996, I accept the submissions of Chubb Russia, put forward so persuasively on this matter by Toby Landau QC, that Mr Dickers submissions (and the reasoning of Popplewell LJ on this) are incorrect for the following two reasons: (i) Almost all the provisions of the Arbitration Act 1996 being referred to as substantive not procedural are non mandatory. And in relation to such non mandatory provisions, section 4(5) of the 1996 Act lays down (as one would expect in any event) that a foreign proper law for the arbitration agreement means that the non mandatory provisions of the 1996 Act do not apply. This provision was not relied on by Chubb Russia in the Court of Appeal and was not mentioned in the Court of Appeals judgment. Section 4 reads as follows: Mandatory and non mandatory provisions (1) The mandatory provisions of this Part are listed in Schedule 1 and have effect notwithstanding any agreement to the contrary. (2) The other provisions of this Part (the non mandatory provisions) allow the parties to make their own arrangements by agreement but provide rules which apply in the absence of such agreement. (3) The parties may make such arrangements by agreeing to the application of institutional rules or providing any other means by which a matter may be decided. (5) The choice of a law other than the law of England and Wales or Northern Ireland as the applicable law in respect of a matter provided for by a non mandatory provision of this Part is equivalent to an agreement making provision about that matter. For this purpose an applicable law determined in accordance with the parties agreement, or which is objectively determined in the absence of any express or implied choice, shall be treated as chosen by the parties. As the Supplemental Report of the Departments Advisory Committee on Arbitration Law (DAC) said, at para 12, section 4(5) avoids the dangers that a choice of England as the seat of the arbitration will necessarily entail the imposition of every provision of the Act. (ii) The remaining provisions of the 1996 Act relied on by Mr Dicker (sections 12 13 and 66 68) appear to be procedural not substantive (they are concerned with extending time limits for beginning arbitration proceedings, limitation periods, and the enforcement and setting aside of an award). But even if one regards them as substantive (see Popplewell LJ at para 96) it is clear that, in themselves, they cannot be regarded as having any bearing on the proper law of the arbitration agreement. (vii) Section 103(2)(b) of the Arbitration Act 1996 (codifying article V(1)(a) of the 1958 New York Convention) is neutral Mr Dicker sought to pray in aid article V(1)(a) of the 1958 New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards, which has been codified in what is now section 103(2)(b) of the Arbitration Act 1996. This statutory provision (which is materially identical to article V(1)(a) of the 1958 New York Convention) reads as follows: 103. Refusal of recognition or enforcement. (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; that the arbitration agreement was not valid under (b) the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; This statutory provision therefore deals with the refusal of recognition or enforcement of a non domestic arbitral award (ie an award made in a territory outside the UK in a state which is a party to the New York Convention: Arbitration Act 1996 section 100(1)) where an arbitration agreement is invalid under the law to which the parties subjected it or, failing any indication thereon, under the law of the seat. True it is that that constitutes legislative acceptance of the relevance of the law of the seat. But this provision is only directly concerned with the enforcement or recognition of arbitral awards. It is not directly concerned with the validity of an arbitration agreement prior to any question as to its enforcement or recognition although Mr Dicker submitted (relying on Albert van den Berg, The New York Convention of 1958 (1981), pp 126 128) that what is relevant at the end should also be relevant at the start. Mr Baileys response was that, even if one were to regard this provision as having relevance at the pre enforcement stage, the provision tended to support his case because the relevance of the law of the seat is only at the default level: where the parties have chosen the proper law of the arbitration agreement, including impliedly, the law of the seat does not apply. In other words, his submission was that this statutory provision was simply irrelevant where there has been an implied choice (as on the facts of this case). I agree with that. However, it is important to add that the statutory provision is irrelevant to this case for a wider reason: as I have made clear at paras 194 199 above, this case is concerned with the interpretation of an arbitration agreement and not with its validity. It should also be stressed that the award in this case, because the seat is England, would be a domestic award to which section 103(2)(b) does not apply. Nevertheless, I am here concerned to articulate reasons that apply generally to favour the main contract as opposed to seat approach. On the face of it, the statutory provision (and article V(1)(a) of the New York Convention) does offer support in relation to the validity of the arbitration agreement and, at least at the enforcement and recognition stage, for applying the law of the seat where there has been no choice of law, express or implied, made by the parties. One may say that it represents a legislative policy, and a policy of international arbitration, which the common law should respect. However, in so far as one might apply this provision so as to make a practical difference to the determination of the proper law of the arbitration agreement (ie where one would be applying, as the proper law of the arbitration agreement, at the pre enforcement stage, the law of the seat rather than the law of the main contract) there is a difficulty with reconciling that provision with the validation principle. We have explained in para 198 above that that principle is the general principle whereby the courts favour the proper law that would uphold an arbitration agreement rather than one that would invalidate it; and this can be seen to rest on the assumption that rational parties would prefer to have an agreement upheld than not. It follows that, unless one is to accept the unfortunate conclusion that the legislative provision may (sometimes) override the validation principle (of course sometimes it will be consistent with it), one will need to interpret the provision in such a way that, where the arbitration agreement would be invalid under the law of the seat but valid under the law of the main contract, the law of the seat will give way to the law of the main contract. The most obvious way of achieving this is to recognise that the provision confers a discretion. The relevant statutory words are that recognition or enforcement of the award may be refused. Assuming there is such a discretion, it should be exercised to accommodate the validation principle. The consequence would be that any practical difference, as to validity, between the proper law of the seat and the proper law of the main contract would be nullified. Ardavan Arzandeh and Jonathan Hill, Ascertaining the Proper Law of an Arbitration Clause under English Law (2009) Journal of Private International Law 425, 442, stress, correctly in my view, that, while superficially attractive, it is problematic to decide the proper law of the arbitration agreement by reading across from article V(1)(a) of the New York Convention (and hence from section 103(2)(b) of the 1996 Act): Although international harmonisation of choice of law rules on the basis of the rules enshrined in article V(1)(a) of the New York Convention is superficially attractive, it is not wholly unproblematical. If a national court may, in the exercise of discretion, order enforcement of an award notwithstanding the fact that the underlying arbitration clause is invalid according to the law specified by article V(l)(a), it is legitimate to question whether it would be logical or sensible to treat the choice of law rules endorsed by article V(l)(a), as interpreted by van den Berg, as being automatically applicable in contexts other than the enforcement of arbitral awards, contexts in which the element of discretion is absent. The overall position, therefore, is that not only does section 103(2)(b) have no direct relevance to the facts of this case (because we are concerned with interpretation not validity and the award would be a domestic award), it also has no direct relevance to our general enquiry because we are not concerned with the enforcement or recognition of an award. This is in line with the view of Robert Merkin, Arbitration Law (Issue 84, 2020) para 7.15 that the provision has a more limited effect than may at first sight appear. In any event, it would appear that the provisions support for the seat approach can, and should, be limited so as to adhere to the validation principle (thereby nullifying any practical difference, as to validity, between the proper law of the seat and the proper law of the main contract). For all these reasons, it seems reasonable to regard section 103(2)(b) of the Arbitration Act 1996 as an essentially neutral consideration that should not be regarded as inconsistent with, or as standing in the way of, a principled solution. (viii) The analogy to an exclusive jurisdiction clause In deciding on a principled approach to the proper law of an arbitration agreement, it is helpful to think of the analogy between an arbitration agreement and an exclusive jurisdiction clause. Say one has a contract governed by Russian law but with a jurisdiction clause giving the English courts exclusive jurisdiction. What is the proper law of the exclusive jurisdiction agreement? Although Mr Dicker submitted that that clause would be governed (presumptively) by English law as the courts (and place) chosen by the parties he was not able to support that submission with any convincing references. It would be surprising if, at least normally, the proper law of the jurisdiction clause is anything other than the same as the proper law of the main contract. Certainly that is the position favoured by Dicey, Morris & Collins, The Conflict of Laws, 15th ed (2012), para 12.103: [A]s a matter of common law, normally a jurisdiction agreement (like arbitration agreements, which are also excluded by article 1(2)(e) from the application of the Rome I Regulation) is governed by the law applicable to the contract of which it forms a part. Accordingly, and as a matter of the common law principles of the conflict of laws, the law which governs the contract will also generally govern the jurisdiction agreement. This means that this law governs the construction and interpretation of the agreement (ix) Conclusion Taken together, these reasons provide a convincing case for favouring the main contract as opposed to seat approach to determining the proper law of the arbitration agreement. They should be viewed as supporting a presumption (or general rule) that the proper law of the main contract is also the proper law of the arbitration agreement. In this case, they support the conclusion that the proper law of the arbitration agreement is Russian law by reason of an implied choice. (3) The proper law of the arbitration agreement is Russian law even if there has been no implied choice I would arrive at the same conclusion that the proper law of the arbitration agreement is Russian law for the reasons that have been set out in paras 231 255 above, even if the proper law of the main contract was Russian under article 4, rather than under article 3(1), of Rome I Regulation at least if the reason for that was that Russia is the country with which the contract is most closely connected. That would then carry across to the third stage of the common law approach and would mean that, despite the seat for the arbitration being England, the arbitration agreement also has the closest and most real connection with Russia. That one arrives at the same result at common law whether applying the implied choice or the default rule is unsurprising. It has long been recognised that there is a thin distinction between those two stages: they represent the distinction between implied and imputed intention. In Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50 the majority, led by Lord Diplock, decided that English law was the proper law by necessary implication whereas Lord Wilberforce came to the same conclusion applying the closest and most real connection test while recognising, at p 69, that the two merge into each other. But although, in general terms, it is important to recognise that one would arrive at the same conclusion if one applied the third stage of the common law approach, this case can be decided without going beyond the choice of the parties. The proper law of the arbitration agreement is Russian because that is the law which they have impliedly chosen. (4) Stating the common law on the proper law of an arbitration agreement The reasoning above enables me to state the common law on the proper law of an arbitration agreement (contained in a main contract) in the following straightforward and principled way which (had this view found favour) would have been easy to apply and would have been one way of providing the clarity that Popplewell LJ was rightly seeking: (i) The proper law of the arbitration agreement is to be determined by applying the three stage common law test. Is there an express choice of law? If not, is there an implied choice of law? If not, with what system of law does the arbitration agreement have its closest and most real connection? (ii) Where there is an express proper law clause in the arbitration agreement (which is rare) that will be determinative. (iii) Where there is no such clause, there is a presumption or general rule that the proper law of the main contract is also the proper law of the arbitration agreement. That presumption or general rule can assist the enquiry at any of the three stages of the common law approach. (It is most appropriate to use the language of a presumption where one is considering the parties choice at the first two stages of the enquiry ie it is a presumption of the parties intentions and to use the language of a general rule where one is considering the third stage of the closest and most real connection.) (iv) That presumption may most obviously be rebutted, or there is an exception to that general rule, where the standard validation principle (of the English conflict of laws) applies ie where the law of the seat (or another relevant jurisdiction) would treat the arbitration agreement as valid whereas the proper law of the main contract would treat the arbitration agreement as invalid (or, as in the Sulamrica case, not binding on one of the parties). In very rare cases that presumption would also be rebutted where it is clear that the parties have chosen the law of the seat as the proper law of the arbitration agreement even though there is no express proper law clause in the arbitration agreement. The above statement of the common law on the proper law of an arbitration agreement does not undermine the well established and uncontroversial position that the curial law and curial jurisdiction are (almost) invariably determined by the seat chosen for the arbitration. Concluding remarks on the proper law of an arbitration agreement We were referred to the writings of many commentators on this issue. Several (for example, Gary Born, International Commercial Arbitration, 2nd ed (2014), Chapter 4; and Julian Lew, The Law Applicable to the Form and Substance of the Arbitration Clause in Albert van den Berg (ed) Improving the Efficiency of Arbitration Agreements and Awards: 40 Years of Application of the New York Convention, (1998) ICCA Congress Series Vol 9, 114, 114 145) refer to the international context and I have been very conscious throughout that it would be inappropriate to lay down an approach for the English common law that would be inconsistent with accepted principles of international arbitration law. Although the commentators, as with the judges, do not speak with one voice on the issue facing us, I have found illuminating most of the writings to which we were referred. I have derived particular help from the work I have earlier mentioned of Lord Mustill and Stewart Boyd, Gary Born, Robert Merkin and Louis Flannery, Albert van den Berg, Adrian Briggs, and Ardavan Arzandeh and Jonathan Hill. In addition, I have been helped by an excellent case note on the Court of Appeal decision in this case by Edwin Peel, The Proper Law of an Arbitration Agreement (2020) 136 LQR 534. It will be clear from all that I have said above that, while there are large measures of agreement between us (for example, that (at least in general) an express or implied choice of the proper law for the main contract carries across to be the proper law of the arbitration agreement, irrespective of the specified seat of arbitration) I cannot agree, with great respect, with the overall approach or conclusion in this case of my colleagues, Lords Hamblen and Leggatt (with whom Lord Kerr agrees). In their view, the proper law of the arbitration agreement is here English law because there has been no choice of law for the arbitration agreement, express or implied, and the arbitration agreement has the closest and most real connection to England as the seat of the arbitration. Their decision would have been different had the proper law of the main contract been Russian law by reason of an express or implied choice. But because the proper law of the main contract is, in their view, Russian law, only because it has the closest and most real connection to Russia, that means that the proper law of the arbitration agreement is English law. That is to rest crucially different consequences on a divide between the choice and default stages of the Rome I Regulation and between the second and third stages of the common law approach in a way that, with respect, I do not believe to be justified in principle. I also consider that that approach produces undesirable practical and unprincipled consequences (especially by forcing a division of the proper laws) such as those set out in paras 235 239 above. I also have misgivings about the idea that the English common law should depart from a principled solution on the basis of a supposed but in my view unproven consensus as to international arbitration policy favouring the seat approach (in the absence of choice). My view is that the proper law of the arbitration agreement is Russian. That is because the proper law of the main contract is Russian by implied choice and that implied choice encompasses, or carries across to constitute, an implied choice of Russian law for the arbitration agreement. Even if my reasoning on the proper law of the main contract is wrong and the proper law of the main contract is Russian by reason of Russia having the closest and most real connection rather than by implied choice I would still regard the proper law of the arbitration agreement as being Russian law by reason of the arbitration agreement having the closest and most real connection with Russian law. This is to apply the general rule, to which there is here no exception, that the proper law of the main contract is also the proper law of the arbitration agreement. The anti suit injunction Had my conclusion on the proper law of the arbitration agreement prevailed that the proper law of the arbitration agreement is Russian the following question would have arisen. Should this matter be remitted to the English Commercial Court to decide if an anti suit injunction should be granted or, as Mr Bailey submitted, should the matter be left to the Russian courts by refusing an anti suit injunction (overturning the Court of Appeal)? It is not in dispute that the English courts, because England is the seat of the arbitration, have curial or supervisory jurisdiction to support and enforce the arbitration agreement (see para 193(vi) above). It is also clear that the English Commercial Court has the means and experience, relying on expert evidence on Russian law, to decide on the correct interpretation of the arbitration agreement applying Russian law. I consider that, in these circumstances, had my view on the proper law of the arbitration agreement been the majority view, the appropriate course would have been for the question as to whether an anti suit injunction should be ordered to be remitted to the English Commercial Court which would have been required to determine whether, applying Russian law to interpret the arbitration agreement, the proceedings in Russia constituted a breach of the arbitration agreement. That court would also have been required to determine, if Enka had been given permission to plead the point, whether, applying Russian law, there was a serious risk of the arbitration agreement being held invalid under Russian law as at the time this arbitration agreement was entered into (see para 197 above). Had my view on the proper law prevailed, the stay of execution of the anti suit injunction would not therefore have been lifted and the undertakings given by the parties, pending the outcome of this appeal, would have had to be extended to protect Enkas position. 9. Conclusion Contrary to the joint judgment of Lord Hamblen and Lord Leggatt (with whom Lord Kerr agrees), it is therefore my view that, on the main issue in the case, Chubb Russia is correct that the proper law of the arbitration agreement is Russian, not English, law; and, on that basis, I would have remitted the question, whether an anti suit injunction should be ordered, to the English Commercial Court. LORD SALES: I agree with the judgment of Lord Burrows. In relation to determining the proper law of an arbitration agreement contained in a main contract my view is that the main contract approach should be preferred to the seat approach. I add a short judgment of my own to explain my position in relation to the points on which there is a difference of view within the court and to indicate the areas where I am in agreement with the judgment of Lord Hamblen and Lord Leggatt. The court is taking this opportunity to clarify the position regarding the approach to determining the proper law of an arbitration agreement which is a provision within a main contract. The main contract may or may not contain a provision stating the proper law of the contract. Where the main contract contains such a provision, it is not usual for the parties also to include a distinct term to state the proper law of the arbitration agreement embedded in the main contract. According to English conflict of laws rules, the proper law of the main contract will usually be determined by application of the Rome I Regulation, but that does not apply in relation to the arbitration agreement. In relation to the arbitration agreement, the proper law is determined by reference to the conflict of laws rules of the common law: the proper law is that chosen by the parties (i) expressly or (ii) by implication, according to the terms of any agreement between them, and (iii) in the absence of such choice is the law of the jurisdiction with which the arbitration agreement has the closest and most real connection. Choice of the parties Where the main contract includes a provision stating the proper law of that contract, I agree with Lord Hamblen and Lord Leggatt that the ordinary effect of the provision is that this indicates that the parties have chosen the same proper law for the arbitration agreement. I further agree with Lord Hamblen and Lord Leggatt that for these purposes there is not necessarily a sharp division between an express choice of law and an implied choice of law. The point can be illustrated by the decision in Sulamrica Cia Nacional de Seguros SA v Enesa Engenharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102 (Sulamrica). That case concerned an arbitration agreement contained in a main contract which included a term stating that the proper law of the contract was Brazilian. In his judgment, Moore Bick LJ assumed that what was in issue was whether the parties had thereby made an implied choice of law in relation to the arbitration agreement, and held that by virtue of the application of the validation principle the choice of law term could not be interpreted as having that effect: paras 25 26 and 31. However, one might analyse the effect of the proper law provision in the main contract by asking whether on the true construction of its express terms the statement that the proper law of the contract was Brazilian law extended to cover the arbitration agreement which was part of that contract. Again, application of the validation principle would indicate that in the particular circumstances of the case the parties did not intend that statement to extend so far. Stages (i) and (ii) of the common law rule are aligned with the test in article 3(1) of the Rome I Regulation. The first main point of difference between the judgment of Lord Burrows and the judgment of Lord Hamblen and Lord Leggatt is whether in the circumstances of the present case the parties impliedly chose Russian law as the law governing the main contract, including the arbitration agreement. On that question, I agree with Lord Burrows that they did. Although the parties did not include an express choice of law statement in the main contract, they included many references in the main contract to make it clear that they intended that Russian law should govern their relationship. In the circumstances of the case, and given the nature of the task to be performed by Enka, it would have been bizarre for them to assume that any other law was to apply. The guidance in the report by Giuliano and Lagarde on the Rome Convention which later became the Rome I Regulation (para 203 above) is strong support for this view. Unlike in Sulamrica, there was no good countervailing reason to indicate that the parties intended that the choice of law they had made for their contract should not extend to the arbitration agreement which was part of it. Where the parties to a main contract include an arbitration agreement as part of that contract, then in general terms there are strong grounds to infer that they intend their choice of the law to govern that contract to cover the arbitration agreement as well, as Lord Hamblen and Lord Leggatt point out: para 53 above. There is a presumption that in ordinary circumstances a contract has a single proper law since otherwise a serious element of uncertainty would be introduced into mercantile agreements: Jacobs, Marcus & Co v Credit Lyonnais (1884) 12 QBD 589, 602 603 per Bowen LJ; see also Kahler v Midland Bank [1950] AC 24, 42 (Lord MacDermott). A contract contains a unified package of rights and obligations, created in the same set of circumstances, so the usual and natural inference is that the parties intend, on an objective basis, that the same proper law should apply in relation to it. An arbitration agreement contained in the main contract imposes an obligation to take disputes to arbitration in certain circumstances, as part of the package of rights and obligations created by and set out in the main contract. In usual circumstances, I can see no good reason to infer that the parties to the main contract intended the interpretation of the obligation to arbitrate to be governed by any different system of law than the system of law which governs the interpretation of all the other obligations in their contract. Applying the same system of law to govern the construction of the whole of the contract the parties have made ensures simplicity and coherence in its interpretation. It avoids the uncertainty associated with subjecting different parts of the contract to interpretation according to different systems of law. Any national system of law may be expected to have internal coherence, which will not be the case when two national systems of law are set side by side or are overlaid. Each will have an internal logic and in dealing with particular matters which is at variance from the internal logic of the other. Each may have different solutions to practical problems which are coherent within that system, but are opposed to the solutions given by the other system according to what is coherent within that other system. The presumption that a contract has a single proper law thus reflects the usual expectations of the parties to a contract, since it is a reasonable inference that they prefer certainty, coherence and simplicity in working out the practical implications of their agreement. In my view, these points underlie the observation by Lord Mustill in Channel Tunnel Group Ltd v Balfour Beatty Construction Ltd [1993] AC 334, 357 358, that it would be exceptional for the proper law of the arbitration agreement to be different from the proper law of the main contract. Lord Mustills opinion in this area carries great weight. He also pointed out that it is less unusual for the curial law in relation to an arbitration to be different from the proper law of the main contract (and the proper law of an arbitration agreement contained in the main contract). The explanation for this is that the curial law follows the choice of seat. When the parties choose a particular seat, their reasons for doing so include the relationship stipulated by the law of the jurisdiction of the seat as to the grounds on which the courts of that jurisdiction may interfere with the arbitral process or its outcome and the extent to which those courts may take action positively to support the arbitral process and uphold the agreement to arbitrate, including by the grant of injunctive relief. These reasons apply whatever the proper law of the main contract or the arbitration agreement may be. Hence I do not consider that ordinarily the choice of the seat provides any sound basis to infer what the parties intended or might have expected the proper law of the main contract or the arbitration agreement to be. Two comments may be made about this. First, many decades ago it was understood that when the parties stipulated that the seat for their arbitration would be in a particular jurisdiction their intention was that the arbitrators would be local lawyers chosen for their expertise in the law of that jurisdiction, so that the inference could be drawn that the parties intended that they would apply that law in determining issues in dispute, including as to the proper interpretation of the arbitration agreement and the main contract. But changes in the way international arbitration was conducted meant that such an inference was already suspect by 1970, as Lord Wilberforce explained in Cie Tunisienne de Navigation SA v Cie dArmement Maritime SA [1971] AC 572, 596. Under modern conditions of international arbitration, in which arbitrators may be drawn from different jurisdictions and are regularly expected to receive evidence about and to apply foreign law, it is now no longer a plausible inference. Secondly, parties may sometimes choose arbitration for resolution of their disputes with a seat in a neutral jurisdiction because one or other of them does not have complete trust in the impartiality of the courts of the state of the other. But a preference for a neutral seat does not support any inference as to the parties intentions as to the law which the arbitrators should apply when interpreting the main contract or the arbitration agreement. Arbitrators can be expected to apply any relevant law, of whichever legal system is appropriate, in an impartial way and the courts of the neutral jurisdiction will be impartial in applying the curial law. If an inference is sought to be drawn as to the proper law of the main contract or the arbitration agreement, something more is required: an indication that the parties wished the law to be applied to govern the interpretation of their contract to be neutral in the sense that it is not aligned with the home jurisdiction of either of them. Exceptionally, the circumstances may support such an inference: see eg Egon Oldendorff v Libera Corpn [1995] 2 Lloyds Law Rep 64, 69 and see para 114 above. However, the circumstances of the present case show that no such inference can be drawn here. The parties have stipulated that Enkas obligations under the main contract should incorporate norms of Russian law. Accordingly, it is my view that Lord Hamblen and Lord Leggatt overstate the significance of the choice of the seat in this case. The choice of curial law associated with the choice of the seat is directed to a different subject matter (regulation of the relationship between the courts of place of the seat and the arbitral process) than the rules directed to determining the proper law of a contract for the purpose of interpreting it, so it is not appropriate to use the former as a basis for establishing what the latter should be. The inference that the parties who made the contract in the present case intended that the interpretation of the whole of it should be governed by Russian law is especially strong, since the arbitration agreement is contained in a complex main contract with many interacting parts which have to live together in a coherent relationship. In particular, the parties intention, judged objectively, is that the obligation to arbitrate set out in the arbitration agreement contained in article 50.1 of the main contract should be interpreted in a way which makes it coherent with the other obligations in the same provision to seek to negotiate in good faith to find a resolution for disputes. I can see no reason why the interpretation of the latter set of obligations is not governed by Russian law, like all the other obligations in the main contract. The obligation to arbitrate in article 50.1 is likewise just another obligation set out in the main contract and it is so closely related to the other dispute resolution obligations in the main contract that the obvious inference is that the parties intended the interpretation of the whole of the provision to be governed by the same law, ie Russian law. The separability principle which exists in relation to an arbitration agreement contained within a main contract does not alter this analysis. That principle has limited significance. As reflected in section 7 of the Arbitration Act 1996, it allows for the survival of an arbitration agreement contained in a main contract if the validity, existence or effectiveness of the main contract is called in question, so that the arbitrators can rule on such matters. This tells one nothing about the legal system which the parties intended or might reasonably have expected to govern the interpretation of the arbitration agreement as part of the main contract. By contrast, the validation principle, as illustrated by Hamlyn & Co v Talisker Distillery [1894] AC 202 and Sulamrica, does allow one to draw an inference as to the system of law which the parties intended should govern the interpretation of the arbitration agreement. The principle can provide a basis for distinguishing the proper law of the arbitration agreement from that of the main contract or, where the proper law of the main contract is uncertain, it may provide a basis for an inference also to be drawn that the proper law of the main contract is intended to follow the choice of proper law for the arbitration agreement (in Hamlyn v Talisker Lord Herschell LC referred to this possibility at p 209). In my view, the validation principle is an aspect of the general objective approach to determining the intention of the parties to a contract ut res magis valeat quam pereat (so that the main object of the agreement is upheld and not destroyed). Where the main contract contains an arbitration agreement, it will be clear that the parties intend that the obligation to arbitrate as set out in the arbitration agreement should be valid and effective. The parties are presumed to know the state of the law at the time they contract. If it appears that according to the law which governs the main contract the arbitration agreement would be invalid, then it can be inferred that the parties intended that a different law should govern the arbitration agreement in order to uphold its validity and effect. The same is true if it appears that according to the law which governs the main contract the arbitration agreement would be subject to a serious risk of being found to be invalid or that its binding force would be destroyed (as in Sulamrica), since the inference is that the parties would choose certainty rather than uncertainty in upholding the effectiveness of this part of their contract. Usually, since the legal system which governs the main contract is ruled out by this reasoning, the obvious conclusion is that the parties intended the law of the jurisdiction of the seat which they have stipulated to apply instead. The terms of the arbitration agreement, set against the background of the state of the law in the two candidate jurisdictions, show that the parties intended the law of the jurisdiction of the seat to apply in this sort of case. This reasoning does not apply where what is in issue is the choice of the proper law to determine the scope of the arbitration agreement rather than whether it would be invalid or would not impose a binding obligation to go to arbitration if one system of law were applied rather than another. In Sulamrica, Moore Bick LJ rightly held that the validation principle applied so as to negative any choice of Brazilian law as the proper law of the arbitration agreement. He seems to have drawn the conclusion that this meant that the parties had formed no intention regarding what was to be the proper law of the arbitration agreement (see para 31) and so proceeded to analyse the position by reference to the common law default rule at stage (iii), in order to conclude that English rather than Brazilian law governed the arbitration agreement contained in the main contract. However, in my opinion, following the reasoning above, the better view is that the validation principle showed that the parties intended that English law should govern the arbitration agreement. This conclusion should have been reached at stage (i)/stage (ii) of the common law analysis. In the present case, subject to one argument introduced by Enka for the first time on the appeal to this court (see para 197 above), the validation principle has no application. Up to the hearing in this court, it has been common ground that under Russian law the arbitration agreement in article 50.1 is valid and binding in its effect; the issue that has divided the parties is the effect that application of Russian law would have regarding the interpretation of its scope. As to Enkas new argument that the validation principle does in fact apply, I agree with Lord Burrows that if our view regarding the proper law of the arbitration agreement had prevailed the case should have been remitted to the Commercial Court and that it would have been for that court to consider whether the new argument could be introduced and, if it were, then to rule upon it alongside the other issue of Russian law which is in dispute between the parties, namely whether the interpretation of article 50.1 according to Russian law would be narrower or the same as that given by English law. The second main area of disagreement appearing from the judgment of Lord Burrows and the judgment of Lord Hamblen and Lord Leggatt relates to the operation of the common law default rule at stage (iii), if the parties have made no choice at stage (i) or stage (ii). On the analysis of Lord Burrows, with which I agree, the parties to the main contract impliedly intended that the interpretation of the AA in that contract should be governed by Russian law, at stage (ii). If that were right, stage (iii) would not be reached. However, the majority do not agree about this. On their analysis it is necessary to consider the position on the footing that the parties have made no choice at stage (i) or stage (ii). The default rule In the early formulation of the common law rule by Dicey in 1896 (para 36 above), the difference between stage (i)/stage (ii) and stage (iii) was described as one between what the parties (actually) intended and what they may fairly be presumed to have intended. Obviously, imputed choice is something different from actual choice. Later, the common law default rule at stage (iii) was formulated in terms of the system of law with which the contract has its closest and most real connection. But this does not mark a radical change. Rather, focusing on the closest and most real connection serves the same underlying policy, which is to seek to reflect the likely expectations of the parties as businesspeople, by producing an outcome which is reasonable and coherent in its own terms and does not place excessive emphasis on the boundary between stage (ii) and stage (iii). If, on analysis, the parties have not made a choice of proper law themselves perhaps because they did not think about it or they chose to leave matters unclear in the interests of arriving at an agreement without having to argue about it and in the hope that a dispute might never arise which required a determination of the issue the policy of the common law, as expressed in the default rule at stage (iii), is to produce the answer which it is plausible to think businesspeople in the position of the parties, acting reasonably, would have been likely to have chosen for themselves if they had to confront the issue. Many of the factors relevant to an argument that an implied choice of proper law can be identified at stage (ii) will also be relevant to the alternative argument based on the default rule at stage (iii). In broad terms, businesspeople would expect them to be likely to produce similar outcomes. That has certainly been the judicial approach until fairly recently, as illustrated by the decision of the House of Lords in Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50. In that case, the majority of the Appellate Committee determined the proper law of the contract by reference to stage (ii), while Lord Wilberforce reached the same conclusion by reference to the test at stage (iii), for closely similar reasons. Similarly, in the Cie Tunisienne case all members of the Appellate Committee arrived at the same conclusion regarding the proper law of the contract, but they did so by different routes; some found that the parties had made a choice, others that the default rule in stage (iii) applied. In the leading authorities referred to in the Cie Tunisienne case, Bonython v Commonwealth of Australia [1951] AC 201, and In re United Railways of Havana and Regla Warehouses Ltd [1961] AC 1007, the test applied to determine the proper law of the contract was that stated by Lord Simonds in Bonython, at p 219: the system of law by reference to which the contract was made or that with which the transaction has its closest and most real connexion, which elides the question of party choice and the default rule, and deliberately so. The close alignment of the approach under stage (ii) and that under stage (iii) was traced by Toulson LJ in Lawlor v Sandvik Mining and Construction Mobile Crushers and Screens Ltd [2013] 2 Lloyds Law Rep 98, paras 20 27. Since the boundary between stage (ii) and stage (iii) is by no means crystal clear and there is scope for eminent judges to reach different views about which stage of the common law analysis supplies the answer in any given case, it would risk the appearance of arbitrariness to adopt a default rule at stage (iii) which was radically at variance in the results it produced by comparison with stage (i) and stage (ii). Further, if the common law adopted a radically divergent default rule, so that significant differences in outcome turned on this, that would be an incentive for parties to litigate the question of whether a case was to be analysed as falling within stage (i)/ stage (ii) or within stage (iii). This would be contrary to the interest of businesspeople to avoid expensive litigation to resolve disputes, so far as possible. If the parties appreciate that all roads lead to Rome, so to speak, the need for litigation to decide which road should be taken is avoided. This analysis prompts a further comment on Sulamrica. Having held (contrary to my view at para 278 above) that the application of the validation principle meant that the parties had made no choice as to the proper law of the arbitration agreement within the main contract, Moore Bick LJ proceeded to apply the default rule at stage (iii) (para 32). However, in doing so he took the view that the arbitration agreement had its closest and most real connection with the law of the place of the seat (England); and this despite the fact that, subject to the application of the validation principle, he thought that at stage (ii) the parties impliedly intended that the proper law of the main contract (Brazilian law) would also apply to the arbitration agreement (paras 26 27). I think it is evident that Moore Bick LJs analysis at both stage (ii) and stage (iii) was rightly designed to give effect to the validation principle and to uphold the effective binding force of the arbitration agreement in that case in line with the parties intention. But unfortunately in doing so he proposed a solution which, if taken at face value and generalised, would give rise to the kind of radical divergence of outcome between stage (i)/stage (ii) and stage (iii) which the common law default rule in fact seeks to avoid, and which does not reflect the previous authorities referred to above. The court in Sulamrica did not need to take the step of saying that the arbitration agreement had its closest and most real connection with the law of the place of the seat in order to produce the appropriate result, which was to uphold the binding effect of the arbitration agreement in line with the parties intention by application of the validation principle: see para 278 above. One might also say that the validation principle is capable of operating at stage (iii) as well as at stage (i)/stage (ii), as an aspect of the common law default rule, as an expression of the policy of the common law to uphold the validity and binding effect of an arbitration agreement which the parties have chosen to enter into. But again, that would mean that the law of the place of the seat (England) was applicable as the proper law of the arbitration agreement as the only remaining candidate once Brazilian law had been eliminated as a candidate by application of the validation principle. At the end of this process of analysis, it could be said that the arbitration agreement had its closest and most real connection with the law of the place of the seat; but that is only in the very limited sense that this was the only system of law with which the arbitration agreement could be said to have any connection, if the validation principle was to be given effect. However, the way in which Moore Bick LJ explains his reasoning at para 32 makes it sound as though the general starting point, if the analysis at stage (i)/stage (ii) does not give a result, is always that the arbitration agreement contained in the main contract has as its proper law the law of the place of the seat rather than generally following the proper law of the main contract. In my respectful opinion, that approach is erroneous and contrary to principle and authority. In my view, the powerful points which Lord Hamblen and Lord Leggatt make at para 53 of their judgment regarding the expectations of businesspeople to the effect that their contractual arrangements should have internal coherence (so that if the parties have chosen the proper law of the main contract they would ordinarily expect the same proper law to apply in relation to an arbitration agreement contained within it) also apply in relation to the operation of the default rule at stage (iii) where the circumstances mean that it is clear what the proper law of the main contract is, even when that is not as a result of the exercise of choice within the meaning of article 3(1) of the Rome I Regulation. The main contract carries with it the legal system which governs its interpretation and application. Accordingly, the need for and expectation that there will be coherence between the main contract and the arbitration agreement contained within it means that the arbitration agreement has its closest and most real connection with the legal system which constitutes the proper law of the main contract in which it is contained. By contrast, it is my opinion that the argument for a connection between the arbitration agreement and the law of the place of the seat is much weaker. The parties obtain the benefits of the curial law of the place of the seat in any event, whatever the proper law of the arbitration agreement: see para 271 above. Therefore the choice of seat does not point to any particular connection with the arbitration agreement in terms of providing guidance as to its proper law. To the extent that the courts of the place of the seat exercise a supervisory function in relation to the arbitration, for example to ensure that the arbitrators act within the scope of the arbitration agreement according to its true construction, they can readily do that by reference to evidence about any foreign law which is identified as the proper law of the arbitration agreement. In the present case, Enka disputes that there has been a choice of proper law within article 3(1) of the Rome I Regulation for the main contract but accepts that article 4, as the default rule set out in the Regulation, has the effect that the proper law of the main contract is Russian. This concession must be based on an acceptance that it is clear from all the circumstances that the main contract is manifestly more connected with Russia than with any other country (including the country where Enka is habitually resident, Turkey): see article 4(3). The assessment under article 4(3) involves inquiring into the country with which the contract taken as a whole has its closest connection. Where, in this case, following this path of analysis, the main contract taken as a whole manifestly has its closest connection with Russia so that Russian law is taken to be its proper law, it seems to me that the reasoning above indicates that the arbitration agreement contained in the main contract similarly has its closest and most real connection with Russian law. There is no good reason to conclude that the law of the seat is more closely connected or provides a better guide for the purposes of application of a rule designed to identify the law which is to govern the interpretation of the arbitration agreement. In their judgment, in relation to stage (iii) of the common law rule Lord Hamblen and Lord Leggatt rely on article V(1)(a) of the New York Convention and section 103(2)(b) of the Arbitration Act 1996 in support of their view that at that stage the arbitration agreement in the main contract has its closest and most real connection with the law of the seat (England) rather than with the law which governs the main contract. In my opinion, this is to give those provisions excessive weight in analysing the application of the common law rule. As I have sought to show, the policy of the common law as reflected in the default rule at stage (iii) is to align that rule with the likely result the parties would have wished to achieve to produce reasonable coherence across their whole contractual relationship. Application of article V(1)(a) would defeat that policy, because it would produce a radical divergence between the effect of stage (i)/stage (ii) and stage (iii) of the common law rule. Another way of putting this is to say that the points made by Lord Hamblen and Lord Leggatt at para 53 of their judgment do not drop out of the analysis for the purposes of the common law at stage (iii), but continue to have validity and force at that stage as well. By contrast, when one is applying article V(1)(a) those points do drop out of the picture and have no force, precisely because the New York Convention legislates for a rule which excludes them from being relevant. Moreover, article V(1)(a) does not provide a good guide as to the application of the common law rule. Article V(1)(a) sets out a default rule within the scheme of the Convention which is different from the default rule under the common law and which, if applied, would undermine the validation principle when it is applied by the common law as an aspect of stage (iii) (see para 285 above). The provision states that, in the absence of a choice by the parties, recognition of an arbitral award may be refused if the arbitration agreement is not valid under the law of the country where the award was made. That seems to say that recognition may be refused if the arbitration agreement is invalid according to the law of the place of the seat; but under the common law in such a case the validation principle would apply and the court would identify another system of law as the proper law of the arbitration agreement in order to uphold and give effect to the arbitration agreement. Article V(1)(a) thus sets out what can fairly be described as a very simple and inflexible default rule for the purposes of the Convention regime which is different from the more flexible and nuanced common law default rule of closest and most real connection and should not be taken to displace that rule. Within the Convention regime, the rationale for the choice of a simple test is not difficult to understand. It is a clear rule by reference to which it is reasonably easy to judge whether the actions of states party to the Convention comply with it or not. By contrast, the common law default rule has been established for a very long period of time, well before international policy arguably came to crystallise in line with article V(1)(a) of the New York Convention, and it reflects different policy objectives, as set out above. So far as choice of proper law for an arbitration agreement is concerned (as distinct from regulation of the recognition of foreign arbitral awards, which is governed by section 103(2)(b) of the 1996 Act), article V(1)(a) of the New York Convention is part of an unincorporated treaty and it is unclear by what process of legal reasoning it could be taken to have displaced the well established common law default rule. None of the leading common law authorities give any weight to article V(1)(a) in the formulation or application of the common law rule. For present purposes, it is not necessary to determine the position where it is not article 4(3) but one of the other more mechanical rules in article 4 which determines the proper law of the main contract. It suffices to say that I think there is force in the argument that the analysis above tends to indicate that also in that sort of case the proper law of the main contract will usually provide the best indication of the proper law of an arbitration agreement contained within it, at stage (iii) of the common law rule. Again, the points made by Lord Hamblen and Lord Leggatt at para 53 of their judgment should not drop out of the picture here. This approach would reflect how the parties are likely to have approached matters themselves, by starting with their agreement on the substantive aspects of the main contract and then adding the arbitration agreement into that framework, with the general intention and expectation that the main contract and the arbitration agreement would form a coherent whole. It would also have the merit of making the analysis in any case as simple and clear as possible. One would start by identifying the proper law of the main contract according to the choice of the parties pursuant to article 3 of the Rome I Regulation and, in default of any choice, by reference to the rules in article 4 of the Regulation, and then the presumption would be that the proper law of the arbitration agreement is the same. The anti suit injunction Finally, if the interpretation of article 50.1 were governed by Russian law, as Lord Burrows and I think it is, and a Russian court is about to pronounce on the interpretation of that provision according to Russian law in the parallel proceedings between the parties in Russia, the question arises whether this makes it inappropriate for the English court to issue an anti suit injunction in favour of Enka, whether on grounds of forum non conveniens, comity or otherwise. On that issue, I agree with section IX of the judgment of Lord Hamblen and Lord Leggatt, which is in line with Lord Burrows judgment. The English court, as the court of the place of the seat of the arbitration chosen by the parties, has a particular responsibility to ensure that the arbitration agreement is upheld and applied in accordance with its terms. On the basis of expert evidence of foreign law adduced in the usual way, the English court could determine the meaning of article 50.1 according to Russian law. If article 50.1, so construed, imposes an obligation on Chubb Russia to proceed by way of arbitration rather than by litigation, the English court could and should enforce that obligation by way of an anti suit injunction.

The central issue on this appeal is how the governing law of an arbitration agreement is to be determined when the law applicable to the contract containing it differs from the law of the seat of the arbitration, the place chosen for the arbitration in the arbitration agreement. On 1 February 2016, a power plant in Russia was severely damaged by fire. The appellant Russian company (Chubb Russia) had insured the owner of the power plant (the owner) against such damage. The owner had entered into a contract with another company (the head contractor), in relation to construction work to be carried out at the plant. In turn, the head contractor engaged the respondent (Enka), a Turkish engineering company, as a sub contractor in the construction project. The contract made between the head contractor and Enka included an agreement that disputes would be determined through arbitration proceedings in London. In May 2014, the head contractor transferred its rights and obligations under the contract to the owner. After the fire in February 2016, Chubb Russia paid an insurance claim by the owner and, by doing so, assumed any rights of the owner to claim compensation from third parties, including Enka, for damage caused be the fire. In May 2019, Chubb Russia brought a claim against Enka in Russia. In response, in September 2019 Enka brought an arbitration claim in the High Court in London arguing that, by proceeding in the Russian court, Chubb Russia was in breach of the arbitration agreement and seeking an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. At first instance, the High Court dismissed Enkas claim on the primary ground that the appropriate forum to determine to scope of the arbitration agreement was the Russian court. On appeal, the Court of Appeal overturned the judges decision. It held that, unless there has been an express choice of the law that is to govern the arbitration agreement, the general rule should be that the arbitration agreement is governed by the law of the seat, as a matter of implied choice; that there was no express choice of law in this case and that the arbitration agreement was therefore governed by English law; and that it was appropriate to grant an anti suit injunction to restrain Chubb Russia from pursuing the Russian claim. Chubb Russia appeals to the Supreme Court. By a majority the Supreme Court dismisses the appeal. The judgment is given by Lord Hamblen and Lord Leggatt with whom Lord Kerr agrees. Lord Burrows delivers a dissenting judgment, with which Lord Sales agrees. Lord Sales also gives his own judgment. Where an English court must decide which system of law governs an arbitration agreement, it should apply the English common law rules for resolving conflicts of laws rather that the provisions of the Rome I Regulation, as the latter excludes arbitration agreements from its scope [25] [28]. According to the common law rules, the law applicable to the arbitration agreement will be: (i) the law expressly or impliedly chosen by the parties; or (ii) in the absence of such choice, the system of law most closely connected to the arbitration agreement [27]. In determining whether the parties have made a choice of law, the court should construe the arbitration agreement and the contract containing it by applying rules of contractual interpretation of English law as the law of the forum [29] [34]. Where the parties have not specified the law applicable to the arbitration agreement, but they have chosen the law to govern the contract containing the arbitration agreement, this choice will generally apply to the arbitration agreement [43] [52]. This general rule encourages legal certainty, consistency and coherence while avoiding complexity and artificiality [53]. The Court of Appeal was wrong to find that there is a strong presumption that the parties have, by implication, chosen the law of the seat of the arbitration to govern the arbitration agreement [59] [64]. Any overlap between the law of the seat and that of the arbitration does not justify such a presumption [64] [94]. While a choice of seat can lead to such an inference in some cases, the content of the Arbitration Act 1996, particularly section 4(5), does not support such a general inference [73] [82]. Where there is no express choice of law to govern the contract, a choice of the seat of the arbitration does not by itself justify an inference that the contract (or the arbitration agreement) is intended to be governed by the law of the seat [110] [117]. Where the parties have made no choice of law to govern the arbitration agreement, either specifically or by choosing the law which is to govern the contract as a whole, the court must determine the law with which the arbitration agreement is most closely connected. In general, the arbitration agreement will be most closely connected with the law of the seat of arbitration. [118] [119]. This default rule is supported by the following considerations: (i) the seat is where the arbitration is to be performed (legally, if not physically) [121] [124]; (ii) this approach maintains consistency with international law and legislative policy [125] [141]; (iii) this rule is likely to uphold the reasonable expectations of contracting parties who specify a location for the arbitration without choosing the law to govern the contract [142] [143]; and (iv) this approach provides legal certainty, allowing parties to predict easily which law the court will apply in the absence of choice [144]. The majority holds that the contract in this case contains no choice of the law that is intended to govern the contract or the arbitration agreement within it. In these circumstances the validity and scope of the arbitration agreement is governed by the law of the chosen seat of arbitration, as the law with which the dispute resolution clause is most closely connected [171]. The seat of the arbitration is London. Therefore, the majority upholds the Court of Appeals conclusion that English law governs the arbitration agreement, albeit for different reasons [171]. Chubb Russia does not dispute that, if the arbitration agreement is governed by English law, it was legitimate for the Court of Appeal to grant an anti suit injunction in this case. [173]. The Supreme Court, however, affirms the Court of Appeals decision that, in principle, it makes no difference whether the arbitration agreement is governed by English or foreign law, as the inquiry in both cases remains the same: whether there been a breach of the agreement and, if so, whether it is just and convenient to grant an injunction to restrain that breach [178] [182]. While there may be circumstances in which it would be appropriate to await a decision of a foreign court before granting an injunction, deference to foreign courts should generally give way to upholding the importance of the parties bargain [183]. Lord Burrows and Lord Sales agree with the majority that, if the parties have expressly or impliedly chosen the law of the contract, this choice applies to the arbitration agreement [266]. They dissent on what the default position should be in the absence of such choice. They consider that it should be that the law with which the main contract is most closely connected governs the arbitration agreement, as this is the law with which in their view the arbitration agreement is also most closely connected [257]. They also dissent on whether the parties have in this case chosen the law that is to govern the contract. In their view, the parties impliedly chose Russian law to govern the construction contract and also, therefore, the arbitration agreement [228]. They agree with the majority that whether it is appropriate to grant an anti suit injunction does not depend on what law governs the arbitration agreement but only on whether pursuing the foreign proceedings is a breach of that agreement. As they conclude that Russian law governs the arbitration agreement, they would remit the question of whether there has been a breach of the arbitration agreement so as to justify the grant of an anti suit injunction to the Commercial Court.

long

Very substantial judgments have been prepared in this case by Lord Walker, Lord Reed and Lord Sumption, to each of which I pay tribute. I wish in this short introduction to do two things. First, I shall say a bit about the background, to assist the reader in understanding at the outset what the issues are and to provide a guide to the passages in those judgments where they are dealt with. Second, I shall indicate briefly what my opinion is on each of them. I will however have to say a bit more about the one issue on which the court is divided: the DMG remedy/section 320 issue: see para 11, below. As it raises a question of EU law and the division of opinion shows that the answer to it is not acte clair, it is plain that it will need to be the subject of a reference to the Court of Justice for a preliminary ruling under article 267 TFEU. The proceedings As Henderson J explained at the outset of his judgment [2008] EWHC 2893 (Ch), [2009] STC 254, para 1, the Franked Investment Income (FII) Group Litigation with which these proceedings are concerned was established by a group litigation order on 8 October 2003. The test claimants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. In the broadest terms, the purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends paid and received within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (the ICTA) (the DV provisions). The relevant provisions of the ICTA have since been amended, ACT was abolished for distributions made on or after 5 April 1999 and the DV provisions were repealed for dividend income received on or after 1 April 2009. But the problems created by their existence in the past have not gone away. The test claimants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty (now articles 49 and 63 of the Treaty on the Functioning of the European Union) and their predecessor articles, and that these breaches have caused them loss dating back, at least in some cases, to the accession of the UK to the European Economic Community signed at Brussels on 22 January 1972 and the introduction of ACT in April 1973. Their arguments are directed in part to issues of domestic law. But they are also directed to the extensive case law resulting from the application by the Court of Justice of the European Communities and, since the coming into force of the Lisbon Treaty, the Court of Justice of the European Union of principles of Community law to domestic tax systems, including an earlier reference in this case: Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326. They raise difficult issues, and very large amounts of money are at stake. Henderson J was told that the maximum amount of the claims advanced in the FII Group Litigation was of the order of 5 billion. The issues with which Henderson J had to deal were grouped by him under four headings: see [2009] STC 254, para 7. These were (1) the lawfulness of the UK rules imposing corporation tax on dividends received by UK parent companies from subsidiaries resident in other EU member states and, in some contexts, from subsidiaries in third countries, (2) the lawfulness of UK rules charging ACT on the onward distribution by UK resident companies of dividend income received from such subsidiaries, (3) the lawfulness of rules applicable to dividends payable out of distributable foreign profits which permitted an election to be made to treat such income as foreign income dividends (FIDs) and (4) a number of fundamental questions relating to remedies. He held that it followed from the judgment of the ECJ under the earlier reference that the UK rules on corporation tax on overseas dividends were not compatible with Community law as regards dividends from subsidiaries resident in other member states, and that the UK legislative scheme as regards FIDs also breached Community law. A further reference was however required in relation to two of the issues relating to liability: paras 138, 197. As for the issues relating to remedies, it was common ground that two types of restitutionary remedies are available in domestic law: a claim for restitution of tax unlawfully demanded under the principle established in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 (Woolwich), and the claim for tax wrongly paid under a mistake which was recognised in Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2006] UKHL 49, [2007] 1 AC 558 (DMG). Henderson J held that, under the principle laid down in Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595 (San Giorgio), EU law required there to be an effective remedy for monies paid in respect of the tax that was unlawfully charged. The test claims were properly to be classified in English law as claims in restitution based on a mistake of law. The Woolwich cause of action (which is now time barred), for which mistake was not a necessary ingredient, was likely to play a subsidiary role in such cases: para 260. It was not open to the Revenue to rely on section 320 of the Finance Act 2004 (Section 320 FA 2004) or section 107 of the Finance Act 2007 (Section 107 FA 2007) to exclude DMG mistake claims, as these provisions purported to curtail the extended limitation period under section 32(1)(c) of the Limitation Act 1980 without notice and without providing any transitional arrangements to protect the right under Community law. But the test claimants had failed to establish any sufficiently serious breach to entitle them to damages. The case then proceeded to the Court of Appeal (Arden, Stanley Burnton and Etherton LJJ): [2010] EWCA Civ 103, [2010] STC 1251. The various issues were made the subject of an agreed list which the court amended and to which it gave numbers. They were identified in an index at the beginning of the judgment, to which reference may be made. Issues 1 to 10 related to liability. Issues 11 to 23 were concerned with remedy. The Court of Appeal was divided as to the meaning of para 54 of the judgment of the ECJ with respect to one of the test claimants submissions on liability, so it held that a reference should be made on that issue. On all but one of the other issues relating to liability it agreed with the judge. On four issues relating to remedy the appeal by the Revenue was allowed. Differing from the judge, it held that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must also be a remedy based on mistake (issue 12); that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 FA 2004 and 107 FA 2007 (issues 20 and 21); and that section 33(2A) of the Taxes Management Act 1970 (TMA) (issue 23), which excludes relief under that section where Case V corporation tax has been paid under a mistake, applied to an assessment based on a provision that infringed Community law as a conforming interpretation could be given to it. Issue 22, as to whether section 32(1)(c) of the Limitation Act 1980 applied to a Woolwich claim, was not argued before the judge. But it was argued before the Court of Appeal, which held that it could not be given that wider meaning. Applications for permission to appeal to the Supreme Court were lodged by both parties. On 8 November 2010 the panel refused permission on the issue as to which the Court of Appeal decided that there should be a reference, and it remitted another issue relating to liability to the management judge to frame a reference on that point also. The time limit for making an application for permission on a number of other issues, including issue 22, was extended until the references had been determined by the ECJ and its rulings applied by the Court of Appeal. But permission to appeal was given on four issues relating to remedy: issues 12, 20, 21 and 23. Shortly before the hearing of the appeal permission was given to the claimants for issue 22 to be argued also. The issues The parties are agreed that the issues in the appeal are best expressed as follows: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law (Court of Appeal issue 12)? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law (Court of Appeal issues 20 and 21)? (2) Are the restitution and damages remedies sought by the test claimants in respect of corporation tax paid under section 18 (Schedule D, Case V) of the ICTA 1988 excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970 (Court of Appeal issue 23)? To that there must be added the following: (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy (Court of Appeal issue 22)? As Lord Walker explains in para 35 below, a further issue became apparent as the parties submissions on issues 12, 20 and 21 have developed which can be expressed as follows: (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? In the judgments that follow: a. Issue (4), above, the question whether a Woolwich claim arises only where a demand has been made by the Revenue, is dealt with by Lord Walker in paras 64 83 and by Lord Sumption in paras 171 174. b. Issue (3), above (Court of Appeal issue 22), as to whether section 32(1)(c) of the Limitation Act 1980 should be widely construed so as to give a Woolwich restitution remedy the benefit of the extended limitation period, is dealt with by Lord Walker in paras 42 63 and by Lord Sumption in paras 177 185. c. Issue (2), above (Court of Appeal issue 23), as to whether section 33 of the TMA is incompatible with EU law because it excludes the test claimants right of action at common law, is dealt with by Lord Walker in paras 116 119 and by Lord Sumption in paras 204 205. I agree, for all the reasons they give, that each of these three distinct issues should be answered in the negative. I would uphold the judgment of the Court of Appeal on issues (3) and (4) and, because it should not be read as excluding rights of action for the recovery of tax charged contrary to EU law, I would allow the appeal on issue (2) as to the meaning of section 33 of the TMA. The DMG remedy/section 320 issue The remaining issue (issue (1), above) is an issue of EU law. The background is provided by the ruling of the Grand Chamber that it is for the domestic legal systems of each member state to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, and that the national courts and tribunals before which claims are brought are obliged to ensure that individuals should have an effective legal remedy enabling them to obtain reimbursement of the tax unlawfully levied by a member state or withheld by it directly against that tax: Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326, paras 202 203. It follows from the answers given to issues (3) and (4) that this issue must be approached on the basis that a Woolwich claim would have been available had it been brought in time. But it has been excluded by the expiry of the limitation period. The test claimants are left therefore with their DMG mistake claim. It has the benefit of the extended limitation period, but the Revenue say that it has been excluded by section 320 FA 2004 and section 107 FA 2007. As Lord Walker explains in para 38, the question is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation. The position in domestic law is not now in doubt. In DMG it was held that the taxpayer was entitled to take advantage of the remedy which was most advantageous to him. The fact that a Woolwich claim was not available because it was subject to a shorter limitation period did not prevent him from pursuing his mistake claim if his interests were best suited by doing so. This issue can be broken down into three questions: (1) would Woolwich on its own provide a remedy for the test claimants San Giorgio claims which satisfies the requirements of the EU principles of effectiveness and equivalence? (2) were those principles, and the principle which protects legitimate expectations, infringed by section 320 FA 2004, which curtailed without notice the extended limitation period for mistake claims? (3) were these principles infringed by the retrospective cancellation of such claims by section 107 FA 2007 in respect of the extended period? Lord Walker and Lord Sumption are agreed that section 107 FA 2007 was contrary to EU law, although they do not reach that conclusion by the same route. This is because they disagree on the primary issue as to whether Woolwich on its own was sufficient to meet the requirements of effectiveness and equivalence. Having reached the view that it was not, Lord Walker holds that section 320 FA 2004 was not compatible with EU law as it infringed those principles and maybe that it infringed the principle of legitimate expectations too: para 114 115. Lord Sumption disagrees. He holds that the Woolwich remedy on its own with a normal limitation period was an effective way of asserting the test claimants EU right, that there was no obligation on the UK to maintain a concurrent right and that, for this reason and because the test claimants could not have had a legitimate expectation that they would have the benefit of the extended limitation period, section 320 FA 2004 was lawful: paras 198 202. But, because the circumstances had changed and they had acquired a legitimate expectation by 2006, it was contrary to that principle for that expectation to be defeated by section 107 FA 2007. Like Lord Walker (see para 115), I agree with Lord Sumptions reasoning in para 203 as to section 107 FA 2007. On the primary issue however, like Lord Reed, I agree with Lord Walker. I would take as my starting point the fact that in domestic law two types of restitutionary remedies are available and that the taxpayer is entitled to take advantage of the remedy that is most advantageous to him: a claim for restitution of tax unlawfully demanded under the principle established in Woolwich, and the claim for tax paid under a mistake of law which was recognised in DMG. It is, of course, true that DMG had not yet reached the House of Lords when section 320 FA 2004 was enacted. But the common law rule that money which had been paid under a mistake of law was not recoverable had already been rejected. It was rejected in Scotland in Morgan Guaranty Trust Co of New York v Lothian Regional Council 1995 SC 151, for reasons that were special to Scots law, and in South Africa in Willis Faber Enthoven (Pty) Ltd v Receiver of Revenue 1992 (4) SA 202. But it had also been rejected by the common law in Canada: see the dissenting opinion of Dickson J, with which Laskin CJ agreed, in Hydro Electric Commission of Township of Nepean v Ontario Hydro [1982] 1 SCR 347, 357 370. Dickson Js opinion was adopted by La Forest J, with whom Lamer, Wilson and LHeureux Dub agreed on this point, in Air Canada v British Columbia [1989] SCR 1161. The same result was reached in Australia in David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353. Then in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 the House of Lords held that the rule could no longer be maintained, and that it should be recognised that there was a general right to recover money paid under a mistake, whether of fact or law. It was contended for the Inland Revenue Commissioners in DMG that the general right of recovery did not apply in the case of payments made under a mistake of law to the revenue. But this topic had already been the subject of comment by one of the most distinguished and influential scholars on the law of restitution, the late Professor Peter Birks. He declared that, unless displaced by statute, causes of action good against private citizens are no less good against public bodies: see his essay (in the volume Essays on Restitution (1990), edited by Professor P D Finn) entitled Restitution from the Executive: a Tercentenary Footnote to the Bill of Rights, at p 174. He also made the point that, if in Woolwich the building society had made a mistake of fact, it would undoubtedly have entitled the society to restitution of the money it paid to the revenue in consequence of its mistake, just as it plainly would have been had the transaction been with a private citizen. The decision of Park J at first instance in DMG [2003] 4 All ER 645, [2003] STC 1017, in which he upheld the taxpayers claim for repayment of tax wrongly paid under a mistake of law with an extended limitation period, should be seen against this background. As Henderson J observed in para 406 of his judgment, it was not possible to predict with any confidence what the outcome would be of the appeals in DMG that were to follow. But I think that it would be going too far to say that Park Js judgment was bound ultimately to be set aside. The fact that on 8 September 2003, less than two months after Park Js judgment was delivered on 18 July 2003, the Paymaster General announced the introduction of what was to become section 320 FA 2004, and said that it was to affect proceedings issued on or after that date, suggests that the revenue had at least some expectation that it would not be successful in achieving that result. Like Lord Walker (see para 108), I think that the suggestion that the Court of Appeals decision was just a bump in the road understates the strength of the arguments in support of its appeal. But I cannot agree with Lord Sumption (see paras 200 201) that it was unrealistic for there to have been a reasonable expectation by that date that the right of recovery on the ground of mistake with an extended limitation period would be upheld. My own view lies between these two extremes. I share Lord Walkers view that it would have been helpful to have had the view of the judge on this issue: para 112. But I also think that in para 243 Lord Reed has identified the right way to look at it, which does not require anything more than we already know. One must ask oneself what the test claimants were entitled to expect when they made their claims based on mistake. There was no certainty at that time when section 320 FA 2004 was enacted that their claims based on mistake would succeed. But those claims were undoubtedly arguable, as the subsequent ruling by the House of Lords in DMG [2007] 1 AC 558 made clear. They were entitled to expect that the question whether their claims based on mistake were well founded would be decided by the courts, as there was a real issue to be tried. They were also entitled to expect, according to the principle of legal certainty, that this entitlement would not be removed from them by the state by the introduction without notice of a limitation period that was not fixed in advance: see ACF Chemiefarma v Commission of the European Communities (Case 41/69) [1970] ECR 661, para 19; Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866, para 39. The crucial question, however, is whether the retrospective application of that limitation period to claims based on mistake was in conformity with the principles of equivalence and effectiveness, as explained by the Grand Chamber in its judgment in these proceedings: Case C 446/04 [2007] STC 404, para 203. I accept, of course, that the Woolwich remedy on its own was an effective way of vindicating the San Giorgio right. But what about the principle of equivalence which, as Lord Reed points out in para 218, is a complementary requirement? The Woolwich remedy was not the only remedy in domestic law, as it was held in DMG that a taxpayer who wrongly paid tax under a mistake of law is entitled to a restitutionary remedy against the revenue. The theory is that judicial decisions must be taken to declare the law that applies to the case with retrospective effect, whenever the events that gave rise to the claim occurred. So, in the events that have happened, the DMG remedy must be taken to have been always available. It is not just a mirror image of the remedy that is afforded under Woolwich. Both remedies lead to the same result. But they are different remedies founded upon different principles and they are subject to different limitation periods. There may be other differences, depending on the facts and circumstances of each case. There is no obvious way of deciding which of these two remedies must be adopted if only one can be allowed. Is it to be held the claimant is under an obligation, if both are available, to select the remedy which best suits his opponent? This would be an odd result, as I said in DMG [2007] 1 AC 558, para 51. For the reasons which I gave in that paragraph, I think that domestic law must reject this idea because it has no basis in principle. In fairness, the claimant ought to be free to choose the remedy that best suits his case. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. So it seems to me that it must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available. Conclusion For these reasons, and those given more fully by Lord Reed, I agree with Lord Walkers analysis. I would hold that Parliament could not lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action by section 320 FA 2004. I agree with both Lord Walker and Lord Sumption that it could not cancel claims made using that cause of action for the extended period by section 107 FA 2007. The question whether there was a legitimate expectation of bringing an action of the kind that was excluded by that section does not raise any issue of EU law. So I do not think that there are grounds for seeking a reference on that point. I recognise however that, as there is a division of opinion among us as to whether EU law requires that both remedies should be available to the test claimants so that they can choose the remedy that best suits their case for reimbursement, the answer to that question cannot be regarded as acte clair. I would therefore invite the parties to prepare in draft the question or questions on which they suggest a preliminary ruling should be sought from the CJEU, and a brief note of the submissions that each party would wish to be included in the reference. I would also invite their views as to whether this reference should be combined with the references that are to be made on the other issues, or whether it should be submitted separately. LORD WALKER Introduction This appeal is a further stage, but by no means the last stage, in complex and protracted group litigation, designated as Test Claimants in the FII [franked investment income] group litigation. In this group litigation, and other parallel group litigation proceedings, numerous issues have been raised as to whether features of the UK corporation tax regime infringe EU law, and as to the remedies available to companies which claim to have been financially disadvantaged in various ways by such infringements. These proceedings have already resulted in two references to the Court of Justice. Since the Court of Justices judgment on the first reference ((Case C 446/04) [2007] STC 326), all the issues as to infringement have been considered by Henderson J [2008] EWHC 2893 (Ch), [2009] STC 254 and by the Court of Appeal [2010] EWCA Civ 103, [2010] STC 1251. Some have been decided and are no longer in dispute. In particular, it is now common ground that corporation tax measures relating to advance corporation tax (ACT) and foreign income dividends (FIDs) infringed former article 43 (freedom of establishment) and former article 56 (free movement of capital) of the EC Treaty, now articles 49 and 63 of the Treaty on the Functioning of the European Union. Other points have been made the subject of a second reference to the Court of Justice. On yet further points this court has extended time for an application for permission to appeal. One of these is the concurrent finding of the courts below that the infringements which have been established did not amount to grave and manifest breaches of EU law so as to give rise to a claim for damages on the principles in Brasserie du Pecheur SA v Federal Republic of Germany (Joined Cases C 46/93 and C 48/93) [1996] QB 404. It is now clear that, apart from any possible claim for damages, the claims to be met by HM Revenue and Customs (HMRC, so as to include its predecessors) are restitutionary in nature. Some are straightforward claims for recovery of tax which the claimants paid when it was not due. Other claims are for less direct losses which the claimants say they sustained in consequence of the non compliance of the corporation tax system with EU law. In relation to restitutionary relief for both the direct and the indirect losses there are important differences between the parties as to the characterisation of the remedies available to the claimants as a matter of English law. There are also important differences as to how far EU law requires the full range of domestic remedies to be made available for the recovery of unduly paid tax, despite parliamentary intervention (in the form of section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007) to curtail those remedies drastically and with retroactive effect. Those two provisions (the statutory cut off provisions) are challenged as infringing EU law. That is a brief sketchy overview of the significance of this appeal in the context of the larger campaign of the FII group litigation. Except in relation to the statutory cut off provisions the Supreme Court does not on this appeal have to revisit any issue as to infringement of EU law. But it is appropriate to give a brief explanation of the ACT system, now abolished, that gave rise to the substantive infringements. A much fuller explanation can be found in the first instance judgment of Henderson J [2009] STC 254, paras 12 to 28. This draws on the first order for reference to the Court of Justice made by Park J on 13 October 1994. Since his retirement Sir Andrew Park has himself given an objective account of the progress of several of the associated sets of group litigation in A Judges Tale: Corporation Tax and Community Law [2006] BTR 322. The ACT system Corporation tax was introduced in the UK in 1965. At first the system was a classical system, with full double taxation of company profits and non corporate shareholders dividends. In 1973 the system changed to one of partial imputation. When a UK resident company paid a dividend it was required (by way of self assessment) to pay an amount of ACT equal to the mainstream corporation tax (MCT) payable on the part of its profits distributed as dividend. A non corporate shareholder became entitled to a tax credit equal to the ACT paid in respect of his dividend. A UK resident corporate shareholder receiving a dividend from another UK resident company received it as franked investment income (FII), and if it both received and paid dividends, ACT was payable only on the excess of its outgoing franked payments over its FII. The position was different if a UK resident company received a dividend from a non resident company in which it was a shareholder. That was so whether or not the two companies were part of a group, but this group litigation, and the parallel ACT group litigation, have both been concerned with groups of companies. Most of the test claimants in this litigation are members of the British American Tobacco (BAT) group. In para 2 of his judgment Henderson J gave a concise explanation of this group litigation as compared with the ACT group litigation: Whereas the focus of the ACT Group Litigation was on the UK domestic legislation which prevented UK resident subsidiaries of foreign parents from making group income elections, thereby obliging them to pay ACT when paying dividends to their foreign parents, the focus of the FII Group Litigation has been on UK parented groups with foreign subsidiaries, and on the tax treatment of dividends coming into the UK from abroad. At the simplest level, therefore, the present litigation is concerned with factual situations which are the opposite of those which gave rise to the questions considered in Hoechst [Metallgesellschaft Ltd v Inland Revenue Comrs, (Joined Cases C 397/98 and C 410/98) [2001] Ch 620] and the ACT Group Litigation. Since 1973 the BAT group has gone through various structural changes (summarised in paras 1.8 to 1.21 of an agreed statement of facts set out in para 29 of the judges judgment) but it has always had as its ultimate holding company a UK resident company whose shares are listed and whose thousands of shareholders expect to receive regular dividends. After 1973 the BAT group (in common with many large multinational groups) faced a difficulty in that when it received dividends from overseas subsidiaries it did not receive a tax credit that could be used to eliminate or reduce ACT payable in respect of its dividends to its shareholders. The overseas dividends were not FII. Although the UK resident company was entitled to double taxation relief against MCT (in the form of a credit against foreign taxes paid by the subsidiary), it still had to pay ACT. If relatively little MCT was payable (because of double taxation relief) the ACT became surplus and of little or no utility to the holding company. A UK resident company with overseas subsidiaries (whether resident within or outside the EU) was therefore at a disadvantage, and articles 43 and 56 of the Treaty were infringed. The other test claimants are members of the Aegis group, another multinational group whose holding company is based in the UK. These claimants have been included because they are (and claimants in the BAT group are not) affected by section 320 of the Finance Act 2004. The ACT regime was in force from 1973 to 1999. Its disadvantages for multinational groups were to some extent mitigated by provisions as to foreign income dividends (FIDs) which were in force from 1994 to 1999. A UK resident company receiving dividends from non resident companies could elect that dividends paid to its shareholders should be treated as FIDs. The effect was that ACT was still payable, but would in some circumstances be repaid after an interval, normally of a duration of between eight and a half months and seventeen and a half months. There is a fuller explanation of the law in paras 23 to 25 of the judges judgment, and of the facts as to FID enhancements in paras 277 to 302. The principal statutory provision giving a tax credit on qualifying distributions between UK resident companies was section 231 of the Income and Corporation Taxes Act 1988 (TA 1988). Issue 6 before the Court of Appeal was whether section 231 could be interpreted, under the Marleasing principle (Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C 106/89) [1990] ECR I 4135) so as to be compatible with EU law. The Court of Appeal held that it could be interpreted in that way. That is however an issue on which this court has deferred a decision on permitting a further appeal. The uncertainty as to section 231 is a further complication in clarifying the issues that are before the court on this appeal. The issues The Supreme Court gave permission to appeal on four of the 23 issues identified by the Court of Appeal (and set out in the index to its judgment, [2010] STC 1251). This permission was later extended to cover a fifth issue, numbered 22 in the Court of Appeals judgment, that is the correct construction and scope of section 32(1)(c) of the Limitation Act 1980. The other four issues covered by the formal order granting permission to appeal are wholly or largely questions of EU law, and the impact of EU law on domestic rights and remedies: that is (issue 12) remedies in English law; (issues 20 and 21) the compatibility with EU law of the statutory cut off provisions; and (issue 23) whether section 33 of the Taxes Management Act 1970 (as amended) provides an exclusive code for recovery of tax mistakenly paid under an assessment, and the impact on that section of EU law. However, as the parties written and oral submissions have developed it has become apparent that there is another wholly domestic issue of central importance to the appeal. The Court of Appeal differed from Henderson J as to whether the principle in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 (Woolwich) applies only to tax that is demanded by revenue authorities (and if so, what amounts to a demand). For the appellants Mr Aaronson QC took the lead in making submissions on issues of EU law, followed by Mr Rabinowitz QC on issues of English law. This sequence of argument may have been unavoidable, but it produced the result that the court heard submissions about the attitude of EU law towards national procedures and remedieswhich is an important part of this appealbefore hearing submissions about the English remedies themselves. It is more helpful to start with the issues of English law, and then assess the impact that EU law has on them. So this judgment proceeds to consider (i) the scope of section 32(1)(c) of the Limitation Act 1980 and (ii) the scope of the decision in Woolwich, before addressing the effect of EU law. It may not be immediately apparent why these two domestic issues have assumed such significance, so a brief explanation is called for. The reason is certainly not the disinterested and scholarly interest of the parties, or either of them, in the development and clarification of English private law. That is apparent from another of the group litigation proceedings, NEC Semi Conductors Ltd and Other Test Claimants v Inland Revenue Comrs [2006] EWCA Civ 25, [2006] STC 606 (NEC), in which (at paras 140 to 147) the claimant companies and HMRC (through counsel, most of whom have appeared on this appeal) made submissions on the Woolwich issue to the contrary effect, in each case, to those they have made on this appeal. These tactical shifts have occurred because, naturally enough, each side wants to win, by any proper line of argument, because of the very large sums of money at stake. The main issue of EU law to be decided can be put, in a very simplified (but not, it is to be hoped, tendentious) form, as follows. When in any member state tax has been paid which was not due because the national taxing measure infringed the Treaty, must the member state make available to its aggrieved taxpayer (i) an adequate remedy which meets the principles of effectiveness and equivalence; or (ii) every available national remedy, including any that offers the taxpayer special advantages as regards limitation of actions? At first glance the Woolwich principle provides an adequate remedy, subject to a six year limitation period unaffected by the statutory cut off provisions. Similarly at first glance mistake of law, following the decision of the House of Lords in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG), provides a specially advantageous basis of claim because of the possibility of an extended limitation period under section 32(1)(c) of the Limitation Act 1980, but subject to the statutory cut off provisions (if and so far as valid under EU law). But if the test claimants have no Woolwich claim, because as a matter of law such a claim requires an unlawful demand, and there was no such demand, mistake of law would be promoted, as it were, to being the only remedy available under national law, and so to being more surely entitled to protection under EU law. So it is expedient for the test claimants in this appeal to reverse the stance taken by the test claimants in NEC and argue that the Woolwich principle does not extend to self assessed taxes, for which there is no official demand. The issue on section 32(1)(c) of the Limitation Act 1980 is part of an alternative line of argument by which the test claimants seek to promote the mistake of law claim and so ensure its protection under EU law. They submit that section 32(1)(c) should be widely construed, contrary to the authority of Phillips Higgins v Harper [1954] 1 QB 411, a first instance decision which has however stood and been followed for over half a century. They submit that section 32(1)(c) is applicable, regardless of the cause of action, wherever there is a causally relevant mistake. In the words of Mr Rabinowitz (day 2, page 80), The mistake element does not have to be a necessary part of the cause of action, so long as the mistake is materially causal or causally material in producing the circumstances from which relief is sought. So this is an alternative method by which the test claimants seek to saw off the apparent support of the Woolwich branch in order to rely on mistake of law alone. It seems very doubtful, even if their argument on section 32(1)(c) is sound, whether the claimants aim would be achieved. In other, more mainstream parts of their argument they rely heavily on the principle (reasserted in this context by the House of Lords in DMG [2007] 1 AC 558) that English law permits litigants to choose, as between concurrent causes of action, the cause or causes of action most advantageous to their interests. The test claimants have done so. In the amended particulars of claim of the BAT group, paras 15 and 15A, they have clearly and distinctly relied on two separate causes of action in unjust enrichment, that is (para 15) payment of tax unduly levied and (para 15A) payment under a mistake. Section 32(1)(c) is relied on in relation to mistake claims only (paras 18, 18A and 18B). The position is the same on the Aegis groups pleadings. The statutory cut off provisions (the essential text of which is set out at paras 107 and 109 below) do contain (in section 320(6) and section 107(2)) wide language extending the scope of the sections to actions not expressed to be brought on the grounds of mistake. So the apparently self inflicted injury which the test claimants invite would seem to require an amendment to the pleadings, and even then (if the section 32(1)(c) argument succeeds) the Woolwich claim would remain with a six year limitation period, which is what it has always been assumed to have. Nevertheless, the section 32(1)(c) point is an important point of law that has been fully argued, and so it should be addressed. Section 32(1)(c) Section 32(1) of the Limitation Act 1980 provides: Subject to [provisions not now material], where in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiffs right of action has been deliberately concealed from him by the defendant; or the action is for relief from the consequences of a mistake; (c) the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the defendant include references to the defendants agent and to any person through whom the defendant claims and his agent. It replaces (with a minor amendment to section 32(1)(b)) provisions first enacted in section 26 of the Limitation Act 1939, in which section 26(c) was in the same terms as section 32(1)(c). The change in the law made in 1939 was recommended by the Law Review Committee (chaired by Lord Wright MR) in its Fifth Interim Report, (Statutes of Limitation) (1936) (Cmd 5334). Indeed the expression relief from the consequences of a mistake appears three times in para 23 of the report, dealing with this topic. The recommendation was that in such cases the equitable rule (that time should run only from when the mistake was, or could with reasonable diligence have been, discovered) should apply to claims which were formerly within the exclusive jurisdiction of common law courts (as opposed to being within equitable or concurrent jurisdiction). The previous state of the law was established by the decision of Hamilton J (later Lord Sumner) in Baker v Courage & Co [1910] 1 KB 56. The facts were that the plaintiff was the former owner of a public house who had in 1896 been mistakenly overpaid by 1,000 on the sale of his leasehold public house to the defendants, who were brewers. The plaintiff then deposited 9,000 at interest with the defendants. In 1909 he wished to withdraw the last of the deposit (standing, as it happens, at 1,000) but the defendants, on reviewing the position, discovered their mistake and refused to return the money. When sued they pleaded set off and made a counterclaim, both of which were opposed as statute barred. Hamilton J referred (at p 62) to the purely equitable claim made in Brooksbank v Smith (1836) 2 Y & C Ex 58, a decision of Alderson B sitting in the equity side of the Court of Exchequer. Hamilton J said that Brooksbank v Smith was a case to which the Statute of Limitations did not apply; and the rule which was there laid down was one which in my opinion cannot be transferred to cases like the present, to which the statute does directly apply. In dealing with the latter class of cases, Courts of Equity were just as much bound by the statute as were Courts of Common Law. In any event, he went on, the brewers had had the means of knowing the truth throughout, if they had chosen to look at the sale contract and examine their books of account. He also rejected a second contention that time did not start to run until notice of the mistake (that is, the overpayment of 1,000 in 1896) had been given to the plaintiff and a demand had been made. It is common ground that section 26(c) of the Limitation Act 1939 was intended to reverse the first point of principle (though not, on the facts, the result) in Baker v Courage & Co. The issue is how much further the change in the law was meant to go. The leading case on that point is the decision of Pearson J in Phillips Higgins v Harper [1954] 1 QB 411. It was fully argued, and the argument is fully reported. Professor Andrew Burrows has noted that there was an unsuccessful appeal on the facts by the defendant, briefly reported at p 420, but no cross appeal on the limitation point. The decision of Pearson J has been followed by the Court of Appeal, apparently with little or no oral argument on the point, in Malkin v Birmingham City Council (unreported) 12 January 2000, a claim for breach of statutory duty. The judgment of the Court of Appeal in this case recorded [2010] STC 1251, para 242 that Mr Ewart (for HMRC) very generously did not submit that the Court of Appeal was bound by Malkin. In any event the Court of Appeal, after full argument, accepted Phillips Higgins and Malkin as correct. It did so after considering the history and language of section 32(1)(c), and the reasoning in the judgment of Pearson J (a long passage from which is set out at para 240). But for the general importance of the point, it might be sufficient to say that the Court of Appeal was right, and for the right reasons. Phillips Higgins v Harper was an action by a woman solicitor who had been employed as an assistant by a sole practitioner, Mr Harper, between 1938 and 1950, when she became a salaried partner. Her employment was, on her case, at a basic salary supplemented by an annual sum to bring her total remuneration up to one third of the net profits of Mr Harpers practice. Mr Harper contended that (until 1948) the bargain was to supplement her remuneration to one quarter of the net profits as determined by his accountant, and he pleaded the Limitation Act 1939. The judgment is reported verbatim only on this point, but it is recorded (at p 413) that Pearson J found: (1) that the original fraction of the relevant profit figure to which the plaintiff was entitled was one third, and that that fraction had been reduced to one quarter by the defendant by private instructions to his accountant and that the plaintiff did not know and did not consent to the reduction; (2) that the plaintiffs contention as to the relevant profit figure was correct; and (3) that there had been no intention on the part of the plaintiff to agree the accounts over the material period and that therefore they had not been agreed and settled. Mr Harpers position was therefore deeply unattractive. But the plaintiff was not mistaken about the bargain; her mistake was in believing that Mr Harper and his accountant were giving proper effect to it. As the judge hinted at p 418, the plaintiff might possibly have done better to rely on section 26(b), since although at that time it required fraudulent concealment, that expression was interpreted fairly broadly. For present purposes the crucial passage is earlier on p 418. It is part of the passage quoted by the Court of Appeal, but it bears repetition: What, then, is the meaning of provision (c)? The right of action is for relief from the consequences of a mistake. It seems to me that this wording is carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences and the plaintiff seeks to be relieved from those consequences. Familiar examples are, first, money paid in consequence of a mistake: in such a case the mistake is made, in consequence of the mistake the money is paid, and the action is to recover that money back. Secondly, there may be a contract entered into in consequence of a mistake, and the action is to obtain the rescission or, in some cases, the rectification of such a contract. Thirdly, there may be an account settled in consequence of mistakes; if the mistakes are sufficiently serious there can be a reopening of the account. All these are examples of relief which removes or mitigates the adverse consequences to the claimant of the mistake, while respecting the position of the defendant where justice so requires (for instance by the defence of change of position where money has been paid under a mistake, or the requirement for restitutio in integrum where rescission is granted). It is an important but still relatively narrow category of causes of action, and much narrower than that for which Mr Rabinowitz has contended. Mr Rabinowitz was critical of the decision of the Court of Appeal as having paid insufficient attention to the statutory language and the traditional equitable rules, and too much attention to the report of the Law Revision Committee. In his reply (day 5, page 136) he invited the court to read the first sentence of para 23 of the report as if it had contained a parenthesis, saying: Where mistake is not an essential part of the claim because we know thats what the equitable rule is. In support of this he relied on Brooksbank v Smith (1836) 2 Y & C Ex 58 and Denys v Shuckburgh (1840) 4 Y & C Ex 42, another decision of Alderson B sitting in the equity side of the Court of Exchequer. As to the statutory language, the criticism is in my view misplaced. The Court of Appeal cited and agreed with Pearson Js view that the wording is carefully chosen to indicate a category of actions with particular characteristics. As to the report of the Law Revision Committee, it showed (as would be expected of its distinguished membership) a full awareness of the historical background. The parenthesis suggested as a gloss by Mr Rabinowitz is not borne out by the example that comes at the end of the first sentence of para 23, that is money or property transferred under a mistake, where the mistake is an essential part of the claim, and would have to be pleaded with some particularity. The authorities cited by Mr Rabinowitz do not support the wide equitable jurisdiction for which he contended. Brooksbank v Smith 2 Y & C Ex 58 was about a will trust. The testatrix died in 1818 leaving a fund in trust, subject to a life interest, for her children in equal shares, with substitutional gifts if any child predeceased her leaving issue. Her daughter Elizabeth did predecease her by two months, but on the death of the life tenant in 1827 the trustees were given incorrect information about the date of Elizabeths death and her share (1,000 nominal of stock) was transferred to her widower instead of to her children. When the mistake was discovered in 1833 the trustees claimed 100 stock (which was all that remained unsold) from Elizabeths widower. The bill was issued within six years of discovery of the mistake. Alderson B held that the claim was not statute barred. He treated it as a proprietary claim based on a mistake of fact. Denys v Shuckburgh 4 Y & C Ex 42 was similar, though the facts were more complicated. Under a marriage settlement made in 1793 Earl Pomfret settled two quarter shares in some lead mines in Yorkshire on trusts under which he had both an immediate life interest and an ultimate reversion (with intermediate trusts that in due course failed). In 1813 the Earl (whose marriage was childless and ended in judicial separation) sub settled (but only during his own lifetime) one quarter share on his sister, Lady Caroline, and another on her son William. Lady Caroline owned another quarter share of the mines in her own right. In 1826 the Earl assigned the whole of his reversionary interest to William. On the Earls death in 1830 no one adverted to the fact that the 1813 sub settlement then came to an end, and the right to income from one quarter share of the mines passed from Lady Caroline to her son William. He went abroad in 1832 and Lady Caroline died in 1835. The mistake was not discovered until 1839, when William brought a bill against his mothers estate to recover arrears of income. Alderson B stated the principle at, p 53: The plaintiff contends, that he has established that this receipt has been by mistake of fact, and that this is on the same footing as fraud, and prevents the operation, if made out, of the Statute of Limitations; which in equity is adopted as a guide, but is not at law binding on the court. I agree in that conclusion, if the circumstances of the case warrant it. But here, it seems to me, that the plaintiff had the means, with proper diligence, of removing the misapprehension of fact under which I think he did labour. He had in his power the deed on which the question turns; and, although it is perhaps rather obscurely worded, still I think he has allowed too much time to elapse not to be fairly considered as guilty of some negligence; and a Court of Equity, unless the mistake be clear, and the party be without blame or neglect in not having discovered it earlier, ought, in the exercise of a sound discretion, to adopt the rule given by the statute law as its guide. He also referred, during counsels argument, to the position at common law. As it happened part of the misapplied income was represented by identifiable lead ore stored at Richmond. When counsel for the plaintiff argued that Lady Caroline became liable to an action for money had and received only when she sold the lead, Alderson B commented, at p 48: If she sold the lead and received the produce, you might have waived the tort, and brought an action for money had and received. But then the Statute of Limitations runs from the conversion, and not from the time of receiving the money. These authorities were cited to Warrington J in In Re Robinson [1911] 1 Ch 502. There the mistake was on a fairly arcane point of law, that an entail created by royal grant as a reward for services cannot be barred: Robinson v Giffard [1903] 1 Ch 865. That decision showed that deeds executed over 40 years before and intended to bar an annuity granted in tail by King Charles II were ineffective. The claim was to recover arrears of the annuity. Warrington J identified, at p 513 three types of case where there is no time bar for recovery of mistaken payments by trustees: (1) when an estate is being administered by the court; (2) proprietary claims to recover identifiable trust assets or their traceable proceeds; and (3) claims against third parties in knowing receipt of trust property. By contrast the claim before him: is in substance a mere money demand to which a Court of Equity, acting by analogy to the statute, would apply the same period of limitation. I think, therefore, that the plaintiffs claim is barred by the statute, and that the action fails. The analysis in In Re Robinson was followed by Romer J in In Re Mason [1928] Ch 385 and approved by the Court of Appeal on appeal in that case [1929] 1 Ch 1. That was a claim, brought after a very long lapse of time, to recover an estate that had been taken by the Crown as bona vacantia. In the Court of Appeal Lord Hanworth MR distinguished, at p 9, between the discovery of a mistake which was a cause of action and discovery of the evidence needed to prove the cause of action. He said: It is suggested by Miss Mason that it is only when she found proof of the marriage of Maria LEpines parents that she was entitled to bring this claim. A confusion seems to have arisen between the power to prove a claim and the right to bring it. The cause of action on which this claim is founded arose so far back as one of the three dates I have mentioned, 1798, 1801 or 1831, and the last of these dates is nearly 100 years ago. The fact that the useful evidence did not turn up until 1921 does not affect the date when the cause of action arose. In re Blake [1932] 1 Ch 54 was another bona vacantia case, though the interest had been assigned by the Crown to third parties. Maugham J stated, p 60: An action in the Chancery Division brought by the next of kin against a person to whom the administrator had wrongly paid part of the personal estate of the intestate under a mistake of fact (not joining the administrator and seeking administration) would be in the nature of a common law action for money had and received, and the Court acting on the analogy of the Statute of James I (21 Jac 1, c 16) would hold the claim to be barred after the lapse of six years from the date of payment: see In Re Robinson [1911] 1 Ch 502, where the law is elaborately explained by Warrington J, and In Re Mason [1928] Ch 385; [1929] 1 Ch 1. A common law action of the same character, assuming that such an action would lie, would also be barred by the same statute after the expiration of six years from the date of payment: Baker v Courage & Co [1910] 1 KB 56, 63. On the other hand there is no doubt that in a proper case the next of kin might bring an action in the Chancery Division to follow the trust property if the defendant to whom the administrator had paid it were still in possession of it. The last relevant authority is an obiter passage in the monumental judgment of the Court of Appeal in In Re Diplock [1948] Ch 465. It was concerned with both personal and proprietary claims against numerous charities. The claims arose in consequence of the executors calamitous distribution of the testators valuable residuary estate in the mistaken belief that it was held on a valid charitable trust. The executors had by then compromised claims against them personally. In relation to a point which was not determinative Lord Greene MR, delivering the judgment of the court, observed at pp 515 516: If [the respondent charities] seek to bring the case, for the purposes of the defence of limitation, within section 2 of the [Limitation Act 1939] and to rely upon the reasoning in In Re Blake [1932] 1 Ch 54, they must do so by averring that the cause of action is analogous to the common law action for money had and received. And if they assert the analogy, they must take it with its attributes and consequences. Beyond doubt, it would appear that in the case of an action at common law to recover money paid under a mistake of fact, section 26 would now operate to postpone the running of time. It is true that no such action would lie where the mistake is one of law: but for reasons which we have already given we do not accept the respondents contention that the analogous claim in equity will also lie only where the mistake was one of fact. In our judgment, therefore, assuming the analogy (as it must be assumed if section 2 is to apply at all) the action is one for the recovery of money paid away by mistake albeit by the mistake of other persons and by a mistake of law and in our judgment, on this assumption, is an action for relief from the consequences of mistake no less than would be an action at common law to recover money paid away under a mistake of fact. The analogy with the common law action for money paid under a mistake is a recurring feature of these authorities. Indeed, the analogy goes right back to the great case of Moses v Macferlan (1760) 2 Burr 1005, the fountain head of the English law of unjust enrichment. This has been explained in a recent article by the Hon Justice W M C Gummow of the High Court of Australia, Moses v Macferlan 250 Years On (2010) 84 Austl LJ 756, (2011) 68 Washington and Lee Law Review 881, 882 888, citing Moses v Macferlan at 97 E R 676, 679 680 and Clark v Shee and Johnson (1774) 1 Cowp 197, 199 200 for the proposition that the action for money had and received was a liberal action in the nature of a bill in equity. In the old authorities the matter is sometimes treated simply as a case of mistake, without further analysis. But in the cases where the period was or might have been extended the mistake seems to have been an essential ingredient in the cause of action. Dr James Edelman, in Limitation Periods and the Theory of Unjust Enrichment (2005) 68 MLR 848, reads Denys v Shuckburgh differently. In this he follows Franks, whose monograph on Limitation of Actions (1959) suggests, at p 206 that the decision in Phillips Higgins v Harper was too narrow: In particular it seems clear that a beneficiary under a will or trust who claims directly against a person to whom trust property has been wrongfully transferred can rely upon the mistake of the personal representative or trustee to postpone the running of time; although his cause of action rests upon his own title and the defendants lack of title to the property and the action would be just the same if the property had been transferred purposely, ie, with knowledge that the recipient was not entitled. But Franks goes on to comment that if Pearson Js view is rejected the scope of section 26 might be dangerously expanded. that mistake is not an essential allegation and adds: In a footnote to the passage about title to trust property Franks comments Indeed it may be doubted whether even in a common law action to recover money paid by mistake (ie money had and received to the use of the plaintiff) the mistake is an essential allegation though it would of course in practice be pleaded: see Bullen & Leake, 3rd ed, 45, 50; 10th ed, 227 228. This footnote may be thought to anticipate modern controversies about absence of basis in unjust enrichment. In a case like Denys v Shuckburgh 4 Y & C Ex 42 the claimants cause of action rests both on his antecedent title and on his mistake. If Lady Carolines son had known the true position throughout, but had expressly or impliedly authorised the mine manager to continue paying income to his mother, he would have had difficulty recovering the payments even within the limitation period. Doubts about Phillips Higgins v Harper have been expressed not only by Franks and Edelman but also (in a rather more muted way) in Chitty on Contracts, 30th ed (2008) para 28 088; Goff and Jones, The Law of Restitution, 7th ed (2007) paras 43 004 to 43 006, and (renamed The Law of Unjust Enrichment) 8th ed (2011) paras 31 33 to 33 36; H M McLean, Limitation of Actions in Restitution [1989] CLJ 472, 493 495. Professor Burrows in a note on DMG in the Court of Appeal is generally supportive of Phillips Higgins v Harper: (2005) 121 LQR 540, 544. In DMG in the House of Lords Lord Hoffmann and I expressed some doubts, but Lord Scott of Foscote supported Phillips Higgins v Harper: [2007] 1 AC 558, paras 22, 91, 147. Lord Hoffmann observed (para 22): The Kleinwort Benson case [1999] 2 AC 349 is recent authority for the proposition that an action for restitution of money paid under a void contract can fall within this description [for relief from the consequences of a mistake]. That does not seem to me inconsistent with the existence of the mistake not being essential to the cause of action but merely one example of a case which falls within a more general principle, just as one could have (say, for the purposes of limitation) a category called clinical negligence without implying that it is a cause of action different in nature from other kinds of negligence. That is a reminder (and in view of current debates about absence of basis a timely reminder) that cause of action can bear different meanings, depending on the context. Having considered the matter with the benefit of much fuller argument than in DMG I have reached the clear conclusion that Phillips Higgins v Harper was rightly decided, and that we should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake. My reasons are essentially the same as the Court of Appeals. In summary, as to the statutory language, I agree with Pearson Js view that the words have been carefully chosen, and are more precise than some formula such as based or founded on a mistake. That is an imprecise formula, and legal scholars seem to take different views as to whether it would provide a wider or a narrower test than the words of the statute. As to history, the authorities are rather short on clear exposition of the relevant principles of equity, but on the whole they provide little support for Mr Rabinowitzs thesis. Their clearest message is the close analogy between the equitable jurisdiction and the common law action to recover money paid under a mistake. As to policy, departure from Pearson Js relatively narrow interpretation would bring a real risk (as Franks put it, at pp 206 207) that the scope of [section 32(1)(c)] might be expanded dangerously close to the basic rule of common law limitation that ignorance of the existence of a cause of action does not prevent time from running. It would be difficult to find any principled stopping place for the expansion. The leading case of Cartledge v E Jopling & Sons Ltd [1963] AC 758 (in which this point was not even faintly argued) would be seen to have missed the point. The limits (and indeed the rationale) of sections 11 and 14A of the Limitation Act 1980 would have to be revisited. Further complications would be introduced into claims for pure economic loss for breaches of professional duties of care. Any such developments are a matter for the Law Commission and for Parliament, not for this court. Must there be a demand? At first instance, Henderson J referred to the Woolwich principle in para 245 of his judgment and directed himself in these terms: Conversely, a Woolwich claim must involve, at least in some sense, the making of a demand by the Revenue, whereas there is no need for a demand in cases of [payment under a mistake]. Later in his discussion of the point he referred to the decision of the Court of Appeal in NEC [2006] STC 606, which was decided in the period between the decisions of the Court of Appeal and the House of Lords in DMG. In NEC the Court of Appeal held that since the companies in question had not made a group income election, ACT was lawfully payable, and there had been no unlawful demand (see especially the judgment of Mummery LJ at paras 152 to 162). In the present case the Court of Appeal addressed this issue at paras 152 to 174 of the judgment of the court delivered by Arden LJ. The court differed from Henderson J. It accorded great respect to the judgment of Mummery LJ in NEC but did not accept that it was a binding precedent. It also pointed out, at para 169, that Mummery LJs conclusion (in para 162 of his judgment) tended to elide two distinct issues, that is whether ACT was lawfully due and whether it was demanded. The Court of Appeal went on to reach a different conclusion. The heart of its reasoning is at paras 157 and 158: In our judgment, the judge was wrong to reject the Revenues submission that Woolwich alone provides a sufficient United Kingdom remedy for the San Giorgio claims of the claimants [Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595 San Giorgio]. He did so because he considered that he was bound by authority to hold that it is an essential ingredient of the Woolwich cause of action that the tax was paid pursuant to a demand. We consider that authority does not require a demand, and that it is sufficient that the state has exacted tax, which was not lawfully due, by voluntary compliance by the taxpayer with the legislative imposition of the tax. 158. As a matter of principle, we do not see why a demand should be a requirement of a Woolwich claim. The underlying principle is that the Revenue should repay tax that has been exacted without legal justification. We can see no reason why the cause of action should be confined to those taxes that are payable on demand as against those, such as VAT, that are payable without a demand. Moreover, it is impossible to see why the citizen who duly accounts for and pays, by way of example, VAT, without waiting for a demand, on the assumption that the applicable legislation is valid, should be disadvantaged as against the taxpayer who refuses to account or to pay until a peremptory demand is received. Mr Rabinowitz criticised the Court of Appeals reasoning and conclusion on the following grounds (in very brief summary): first, that it was contrary to binding authority, that is the decisions of the House of Lords in Woolwich and DMG; second, that it was contrary to what he described as the conventional understanding of Woolwich; third, that it would create uncertainty, both as to the boundaries of any extended Woolwich principle and in the general development of the law of unjust enrichment. Mr Rabinowitz also had a further, separate argument based on the Court of Appeals conforming interpretation of section 231 of TA 1988 (mentioned in para 33 above). This summary does not do justice to Mr Rabinowitzs powerful written and oral submissions but it indicates their general scope. As the matter is now before the Supreme Court, sitting in a constitution of seven, it is unnecessary to embark on a lengthy consideration of the question of precedent. It is clear from paras 108 to 112 of his judgment in NEC [2006] STC 606 that Mummery LJ carefully considered whether it was appropriate for him to express opinions on issues of law that were not necessary to the decision. He reached the conclusion that, in the exceptional circumstances of the group litigation, he should take a course which he would not normally have taken, even though it resulted in judgment being reserved for a longer period. Mummery LJs views (with which Sedley and Lloyd LJJ agreed) do not bind this court, but they are entitled to great respect. Mr Rabinowitzs strongest point is the frequent and consistent use of the expression demand, not only in the speech of Lord Goff in Woolwich, but in the speeches of the other members of the House of Lords majority in that case, and in the speeches of the House of Lords in DMG. Occasional variant uses of exaction carry no weight, since the two words have much the same meaning (indeed, arguably exaction sounds rather more coercive). Mr Rabinowitz is also right in submitting that most legal scholars have understood Woolwich and DMG as laying down that an official demand is an essential prerequisite for the principle to apply. However legal scholars have also been unanimous, or almost unanimous, in expressing the view that an official demand ought not to be a prerequisite for the application of the principle. The Law Commission in its report, Restitution: Mistakes of Law and Ultra Vires Public Authority Receipts and Payments (1994) (Law Com No 227) took the view that a demand was not necessary (paras 6.41 to 6.42): Lord Goffs reasons for the new restitutionary right, described above, also sustain these inferences, as they are based on the special position of the state and other public bodies. They do not focus on the particular requirements of a demand or a tax; but on the manifest injustice of allowing monies unlawfully extracted from the subject by a public authority to be retained by it. 6.42. Therefore, we believe that the principle may well be held to apply to all taxes, levies, assessments, tolls or charges, whether for the provision of services or not, collected by any person or body under a statutory provision which is the sole source of the authority to charge. We do not think that the Woolwich right is limited to payment of tax or to governmental or quasi governmental exactions, or to payments made in accordance with a demand. We believe the crucial element is that the payment is collected by any person or body which is operating outside its statutory authority, that is, it is acting ultra vires. The editors of Goff and Jones, The Law of Unjust Enrichment 8th ed [2011], para 22 15 comment, after referring to the Court of Appeals judgment in NEC: However, provided that a claimants money has been paid as tax ie to discharge a supposed tax liability it should make no difference in principle whether HMRC demanded the payment. After all, the Woolwich case itself was expressly fought and decided on the basis that the building societys payment was not made in response to illegitimate pressure exerted by the Revenue, and as Bastarache J has observed in the Supreme Court of Canada The right of [a claimant] to obtain restitution for taxes paid under ultra vires legislation does not depend on the behaviour of each party but on the objective consideration of whether the tax was exacted without proper legal authority. [Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, para 53]. Professor Jack Beatson (as he then was) expressed similar views in an article (written after the Law Commissions Consultation Paper No 120 on Restitution of payments Made Under a Mistake of Law (1991), para 3.90 3.91 but before its Report), Restitution of Taxes, Levies and other Imposts: Defining the Extent of the Woolwich Principle (1993) 109 LQR 401, 405: So, the formulation of the principle indicates that only two of the four features present in the Woolwich case the demand and its ultra vires nature may be necessary prerequisites. In the case of the demand even this is questionable in view of Lord Goff and Lord Slynns view that a payment of tax made under a mistake of law would be recoverable. The Law Commissions Consultation Paper provisionally recommended that nothing should turn on the existence or otherwise of an actual demand for payment. Quite apart from the difficulties of distinguishing payments made in response to an implied demand or an expectation of payment generated by the authority (including its literature), which were mentioned, this requirement is wholly inappropriate and may pose difficulties in the context of a system based on self assessment of tax (and other levies) such as that under consideration by the Revenue at present. Similar views have been expressed by Professor Charles Mitchell (English Private Law, ed Burrows, 2nd ed (2007) para 18 157); Rebecca Williams, Unjust Enrichment in Public Law (2010) pp 40 41; and Professor Burrows, The Law of Restitution 3rd ed (2011) pp 507 508. This is a formidable volume of distinguished academic opinion. One of the main themes in the reasoning is the high constitutional importance of the principle that there should be no taxation without Parliament. As Professor Mitchell put it (English Private Law, 2nd ed para 18.156): One policy justification for the Woolwich entitlement mentioned by Lord Goff is that a general right to recover payments of tax levied without the authority of Parliament is needed to give full effect to the constitutional principle enshrined in article 4 of the Bill of Rights 1689, that the Crown and its ministers may not impose direct or indirect taxes without Parliamentary sanction. Another, latent in their Lordships speeches, is the related but wider public law principle of legality, that bodies invested with power by the state must respect the rule of law, and adhere to the limits of the jurisdictions conferred upon them. An earlier footnote refers to two influential articles on the same theme: Professor W R Cornish, Colour of Office: Restitutionary Redress Against Public Authority (1987) 14 J Mal & Comp L 41, and Professor Peter Birks, Restitution from the Executive: a Tercentenary Footnote to the Bill of Rights in Finn (ed), Essays on Restitution (1990) 164. These were referred to by Lord Goff in Woolwich [1993] AC 70, 166. These high principles should not depend on the details of the procedure adopted for the levying and payment of any particular tax, especially in an age when (for reasons of economy and efficiency) the trend is towards self assessment of as many taxes as possible. ACT was self assessed, as already noted, and so was the tax which HMRC sought to charge under the ultra vires Income Tax (Building Societies) Regulations 1986 in Woolwich. It is helpful to see how the arguments developed as Woolwich proceeded through the courts. The building society was successful in judicial review proceedings decided by Nolan J on 31 July 1987. The building society had anticipated that decision by issuing a writ on 15 July 1987. Nolan J gave judgment in the action on 12 July 1988, [1989] 1 WLR 137. He felt bound by authority to dismiss the action so far as it claimed interest, holding that there was an implied agreement for repayment of any ultra vires exaction, but without interest. In his judgment Nolan J made detailed findings of fact (at pp 141 142), concluding that the requirements of the Regulations as amplified in communications from the revenue amounted on their face to lawful demands from the Crown. The Court of Appeal [1993] AC 70, 76 142 allowed the building societys appeal by a majority. The majority (Glidewell and Butler Sloss LJJ) based their decision on an ultra vires demand and a payment which was not intended to close the transaction. Ralph Gibson LJ, dissenting, held that the payment should be classified as voluntary, with an implied agreement for repayment (without interest) if tax was not due. All three members of the Court of Appeal seem to have accepted, without much discussion, Nolan Js finding that there had been a demand. The differences between them turned on whether the building societys response to the demand should be regarded as a voluntary payment. The matter came before the House of Lords, therefore, on the unchallenged factual basis that there had been a demand. The House was split three two, with Lord Keith of Kinkel and Lord Jauncey of Tullichettle basing their dissents on the absence of any improper pressure or duress: [1993] AC 70, 160 161, 192 194. There was no difference between the majority and the minority as to the significance of a demand. In these circumstances it is in my view open to this court (whether or not it was strictly open to the Court of Appeal) to state clearly that where tax is purportedly charged without lawful parliamentary authority, a claim for repayment arises regardless of any official demand (unless the payment was, on the facts, made in order to close the transaction). The same effect would be produced by saying that the statutory text is itself a sufficient demand, but the simpler and more direct course is to put the matter in terms of a perceived obligation to pay, rather than an implicit demand. That is how it was put by Wilson J in her well known dissent in Air Canada v British Columbia (1989) 59 DLR (4th) 161, 169: It is, however, my view that payments made under unconstitutional legislation are not voluntary in a sense which should prejudice the taxpayer. The taxpayer, assuming the validity of the statute as I believe it is entitled to do, considers itself obligated to pay. Citizens are expected to be law abiding. They are expected to pay their taxes. Pay first and object later is the general rule. The payments are made pursuant to a perceived obligation to pay which results from the combined presumption of constitutional validity of duly enacted legislation and the holding out of such validity by the legislature. In such circumstances I consider it quite unrealistic to expect the taxpayer to make its payments under protest. Any taxpayer paying taxes exigible under a statute which it has no reason to believe or suspect is other than valid should be viewed as having paid pursuant to the statutory obligation to do so. Lord Goff stated in Woolwich that he found this reasoning most attractive. The Supreme Court of Canada has in recent years, in a judgment of the Court delivered by Bastarache J, unanimously approved this passage from her dissenting speech: Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, para 55. In my view English law should follow the same course. We should restate the Woolwich principle so as to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due. Mr Rabinowitz argued that to follow that course would introduce uncertainty as to what amounts to a tax. The expression should in my view be generously construed, but there are bound to be borderline cases (the Foreign and Commonwealth Office is said to be engaged in a constant dialogue with foreign embassies in London as to whether the congestion charge is a tax). Borderline cases of that sort will arise whether or not a demand is needed. They would be likely to cause very much less difficulty than deciding, across the whole range of taxes of different sorts, what amounts to an official demand. Mr Rabinowitz suggested that there would also be uncertainty in the general development of the English law of unjust enrichment. There is vigorous debate among legal scholars on this topic at present, and uncertainty as to the outcome. But to decide that an official demand is not a prerequisite to a claim for the recovery of tax paid when not due ought not to add appreciably to the uncertainty. It would not be a decisive step towards a general absence of basis principle in place of the unjust factors approach that has prevailed in the past. It would merely be creating, in Mr Rabinowitzs metaphor, a rather larger island of recovery in respect of undue tax. Finally, under this head, there is the argument based on the Court of Appeals conforming interpretation of section 231 of TA 1998. This was the Court of Appeals issue 6, addressed at paras 97 to 109 of its judgment. The test claimants argument is that section 231, on the interpretation adopted by the Court of Appeal, resulted in dividends from non resident subsidiaries of a UK resident company being treated as FII, so that a credit was available in the same way as for dividends received from UK resident subsidiaries. Therefore, the argument goes, ACT was not unlawfully levied. The appropriate claim was a mistake claim, not a Woolwich claim. This is an ingenious variation on the approach described at para 39 above. The argument looks like another bit of self inflicted harm for the test claimants, but they seek to turn it to their advantage. The tactical argument is ingenious but (even if the Court of Appeal was right in its conforming interpretation, a point which may still be revisited if permission is given for a further appeal to this court) it is in my view unsound. It seeks to rewrite history. HMRC stoutly defended its position before the Court of Justice until the judgment of the Grand Chamber at the end of 2006. Until then it consistently contended that there was nothing unlawful about the ACT/FII/FIDs regime, and it performed its statutory functions on that basis. Any suggestion that section 231 of TA 1988 did not mean what it plainly appeared to mean would have been met with incomprehension and disbelief. In short, it did not administer the taxation of UK resident companies in accordance with any conforming interpretation. The unlawful levying of tax may depend either on the text of the statute (which was on its face discriminatory and contrary to EU law) or on how the tax is administered in practice. In this case HMRC were at fault on at least one, and possibly both of these counts. The central issues revisited For the reasons given in paras 42 to 82 above I consider that the Court of Appeal was correct in its conclusions (i) on section 32(1)(c) of the Limitation Act 1980 and (ii) on an official demand for tax not being a prerequisite of a Woolwich claim. The last 40 paragraphs can therefore be seen as no more than a laborious detour which ultimately leads back to the central issues in the appeal, outlined in paras 38 and 39 above: is a Woolwich claim (on its own) an adequate remedy meeting the principles of effectiveness and equivalence? Or are the test claimants also entitled to regard a claim based on mistake as one which EU law will protect against summary removal by national legislation (with the consequence that the statutory cut off provisions infringe EU law)? The Court of Appeal answered the first of these questions in the affirmative, and the second in the negative. The relevant part of the judgment is paras 217 to 229. The courts reasoning is quite compressed, the heart of it being in para 225: We have held, in respect of issues 11 and 12, that a demand is not an essential ingredient of the Woolwich cause of action, and that that cause of action provides an effective remedy for all the Claimants San Giorgio claims. Thus the cause of action for repayment of monies paid under a mistake is not a cause of action required by Community law. The cause of action for repayment of monies paid under a mistake is a domestic remedy of wide application, which Community law does not require the member states to provide, attended by a limitation period (ie section 32(1)(c) of the Limitation Act 1980) that goes beyond the requirements of Community law: see Marks & Spencer at paragraph [2003] QB 866, para 35, in which the court considered a three year limitation period to be reasonable. Community law restricts the effectiveness of domestic legislation curtailing a limitation period applicable to a domestic cause of action that protects the Community right. That domestic cause of action is the Woolwich claim, and it is unaffected by sections 320 and 107. Mr Aaronson has criticised this reasoning as seriously flawed. The test claimants written case sets out an elaborate framework of five reasons, the first and second of which have been the subject of the detour at paras 42 to 82 above. The third, fourth and fifth reasons are considered in the following sections of this judgment. Reemtsma Mr Aaronson relied on the decision of the Court of Justice in Reemtsma Cigarettenfabriken Gmbh v Ministero delle Finanze (Case 35/05) [2007] ECR I 2425 as authority for the general proposition that EU law requires repayment of tax paid under a mistake (and not unlawfully exacted). In that case an Italian advertising agency had supplied services to a German client and the services were to be treated as supplied in Germany. The Italian supplier erroneously invoiced the client and paid VAT to the Italian tax authorities. Having failed to obtain a refund from the supplier, the German company brought proceedings against the Italian tax authorities. The Court of Justice held that it was not reimbursable under the provisions of the Eighth Directive and should normally be claimed from the supplier. However, (para 42) where reimbursement of the VAT would become impossible or excessively difficult, the member states must provide for the instruments necessary to enable that recipient [of the relevant services] to recover the unduly invoiced tax in order to respect the principle of effectiveness. Mr Aaronson submitted that this principle was of general application, and not limited to VAT (as a specifically EU tax). He submitted that this was a mistaken payment which was within the wide San Giorgio principle but not within the Woolwich principle, however much it might be extended. In support of his submission that it was not limited to VAT Mr Aaronson referred to Danfoss AS v Skattministeriet (Case C 94/10), 20 October 2011. Denmark imposed an indirect tax on lubricants and hydraulic oils which failed to give effect to exemptions required by article 8 of Council Directive 92/81 EEC. Danfoss purchased these products in large quantities and the suppliers passed on to Danfoss the amount of unlawfully exacted tax which they had paid. Following the judgment of the Court of Justice in Braathens Sverige AB v Riksskatteverket (Case C 346/97) [1999] ECR I 3419 Danfoss claimed reimbursement direct from the Danish authorities. The Court of Justice referred to the general San Giorgio principle by which a member state is in principle required to pay charges levied in breach of EU law. This is subject to an exception if the wrongly levied charge has been passed on. Where the tax has been passed on the ultimate consumer should normally be able to recover from his supplier, but if that is impossible or unduly difficult there must be a remedy in the form of a direct claim against the tax authorities. Reemtsma was referred to as an authority for this proposition. Lord Sumption regards this principle as limited to harmonised EU taxes, and I am inclined to agree with that. But in any event it applies to a different and relatively unusual situation, in which it is a third party, and not the original taxpayer, who is seeking to recover tax from the authorities. It does not assist the test claimants in this appeal. EU laws requirements as to national remedies (especially limitation periods) There is no doubt as to the general principles regulating what EU law requires of national remedies for infringements of EU law. The principles were stated by the Grand Chamber in its judgment on the first reference in these proceedings, Case C 446/04, paras 201 to 203, in terms identical, or almost identical, to those which have been stated many times before by the Court of Justice: It must be stated that it is not for the court to assign a legal classification to the actions brought before the national court by the claimants in the main proceedings. In the circumstances, it is for the latter to specify the nature and basis of their actions (whether they are actions for repayment or actions for compensation for damage), subject the national court (see [Metallgesellschaft (Joined Cases C 397/98 and C 410/98) [2001] ECR I 1727], para 18. the supervision of to 202. However, the fact remains that, according to established case law, the right to a refund of charges levied in a member state in breach of rules of Community law is the consequence and complement of the rights conferred on individuals by Community provisions as interpreted by the court (see, inter alia San Giorgio (Case C 199/82) [1983] ECR 3595, para 12, and Metallgesellschaft, para 84). The member state is therefore required in principle to repay charges levied in breach of Community law Comateb (Joined Cases C 192/95 to C 218/95) [1997] ECR I 165, para 20, and Metallgesellschaft, para 84). 203. In the absence of Community rules on the refund of national charges levied though not due, it is for the domestic legal system of each member state to designate the courts and tribunals having jurisdiction and to lay down the detailed procedural rules governing actions for safeguarding rights which individuals derive from Community law, provided, first, that such rules are not less favourable than those governing similar domestic actions (principle of equivalence) and, secondly, that they do not render virtually impossible or excessively difficult the exercise of rights conferred by Community law (principle of effectiveness) (see, inter alia, Rewe (Case C 33/76) [1976] ECR 1989, para 5, and Comet (Case C 45/76) [1976] ECR 2043, paras 13 and 16; and, more recently, Edis (Case C 231/96) [1998] ECR I 4951, paras 19 and 34; Dilexport (Case C 343/96) [1999] ECR I 579, para 25; and Metallgesellschaft, para 85). This brings us to the fourth and fifth reasons in the test claimants written case, which go to the heart of this appeal. They contend that in using the mistake cause of action to vindicate their EU rights they were unquestionably entitled to the protection of EU law. They criticise the Court of Appeal for having asked the wrong question: that is for having asked which domestic remedies give effect to the San Giorgio principle, rather than considering, as they should have done, all national remedies as available for the purpose. It is not necessary to multiply references to the general principles, which are not in dispute. It is however necessary to look more closely at the attitude of EU law towards limitation of actions under the legal systems of different member states, and towards legislative measures taken by member states to curtail limitation periods, so far as they affect national remedies for breaches of EU law. It is well established that EU law has no general objection to limitation periods being provided for in the legal systems of member states. On the contrary, limitation periods are one manifestation of the principle of legal certainty. As long ago as Rewe I (Rewe Zentralfinanz eG v Landwirtschaftskammer fur das Saarland (Case C 33/76) [1976] ECR 1989, para 5, the Court of Justice (after referring to the general principle of national courts acting in accordance with national rules) observed: The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. This is not the case where reasonable periods of limitation of actions are fixed. The laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the taxpayer and the administration concerned. There is a similar statement, again expressly linked to fiscal proceedings, in Comet BV v Produktschap voor Siergewassen (Case C 45/76) [1967] ECR 2043, para 18. Limitation periods must be reasonable, but the Court of Justice recognises that national systems vary a good deal, and accepts different approaches so long as there is no infringement of the principles of effectiveness and equivalence, and no disappointment of legitimate expectations. This is made clear in Amministrazione delle Finanze dello Stato v Sas MIRECO (Case C 826/79) [1980] ECR 2559, paras 11 to 13, and other cases of the same vintage involving the Italian tax authorities, including Amministrazione delle Finanze dello Stato v Denkavit Italiana Srl (Case C 61/79) [1980] ECR 1205, paras 23 and 24, and Amministrazione delle Finanze dello Stato v Ariete SpA (Case C 811/79) [1980] ECR 2545, paras 10 and 11. In line with that approach, in Haahr Petroleum v Abenr Havn (Case C 90/94) [1997] ECR I 4085, a five year period was accepted as reasonable for reimbursement of an unlawful goods duty. Emmott v Minister for Social Welfare (Case C 208/90) [1993] ICR 8 was distinguished ([1997] ECR I 4085, para 52) because in that case the relevant directive had not been properly transposed, and until its proper transposition time was not to start to run. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 23/1996) [1998] ECR I 4951 a three year period was accepted for recovery of company registration charges levied in breach of article 10 of Council Directive 69/335/EEC despite the fact that the normal limitation period for restitution, under article 2946 of the Italian Civil Code, was ten years. The principles of effectiveness, equivalence and legitimate expectation also apply if a national legislature enacts a measure to curtail an existing limitation period, especially if the measure appears to be directed at a particular ruling of the Court of Justice. The leading authority is the first judgment of the Court of Justice in Marks & Spencer Plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 (M&S). That litigation was complicated and protracted, involving as it did two distinct claims for repayment of VAT (one concerning gift vouchers, and the other concerning chocolate covered marshmallow teacakes) which were linked together as a matter of case management. There were two references to the Court of Justice, the first of which attracted criticism from the court because of its restricted scope. The final chapter in the saga is reported at [2009] UKHL 8, [2009] STC 452. For present purposes, however, it is sufficient to note that section 47 of the Finance Act 1997 curtailed the period for a claim for repayment of VAT from six to three years, with retrospective effect, and without any period of grace. Some of the claimants claims for VAT on teacakes (which were properly treated as zero rated) went back to 1973. The Advocate General (Geelhoed) referred to a summary ([2003] QB 866, para 54) of the EU jurisprudence in Roquette Frres SA v Direction des Services Fiscaux du Pas de Calais (Case C 88/99) [2000] ECR I 10465, para 20. He also cited at para 57, Dilexport (Case C 343/96) [1999] ECR I 579, para 43: Community law does not preclude the adoption by a Member State, following judgments of the Court declaring duties or charges to be contrary to Community law, of provisions which render the conditions for repayment applicable to those duties and charges less favourable than those which would otherwise have been applied, provided that the duties and charges in question are not specifically targeted by that amendment and the new provisions do not make it impossible or excessively difficult to exercise the right to repayment. The Advocate General pointed out (para 58) that the retrospective alterations to the Value Added Tax Act 1994 affected not only taxable persons who expected under the existing rules to have ample time to make their claims but even taxable persons who before the date on which the announcement of a change in the law was made (18 July 1996) or prior to the date on which it was enacted (19 March 1997) had made claims for repayment of unduly levied tax. The issue of specific targeting was raised at first instance, but in view of the conclusions which he had already reached Henderson J preferred to express no view on it ([2009] STC 254, paras 428 to 431). His reasons included the difficulty of the constitutional issues which would arise in inquiring into the legislative intention behind the amending legislation. The point was not raised in the Court of Appeal or in this court. The Court of Justice reached conclusions similar to those of the Advocate General [2003] QB 866, paras 36 to 38: Moreover, it is clear from Aprile [2001] 1 WLR 126, para 28 and Dilexport [1999] ECR I 579 paras 41 and 42 that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the Court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the court has held that legislation which is not in fact retrospective in scope complies with that condition. 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. The Court of Justice held the amending legislation incompatible with the principle of effectiveness. It also (paras 45 and 46) held that it was precluded by the principle of the protection of legitimate expectations. Legitimate expectations The principle of protection of legitimate expectations is closely linked to the principle of legality. But in the opinion of the Advocate General (Cosmas) in Duff v Minister for Agriculture and Food, Ireland and Attorney General (Case C 63/93) [1996] ECR I 569, para 23, the two are not interchangeable. The Advocate Generals opinion contains (at paras 24 and 25) a passage about timing which is of particular interest (his emphasis): 24. Particularly for the individual the principle of legality would in many ways lose its significance as a guarantee of a sphere of freedom, if the temporal succession of legal provisions concerning him was not governed by an elementary consistency and coherence sufficient to enable him to discern the consequences (legal and financial) of his activities. 25. Thus the principle of legal certainty calls for clarity and accuracy in framing the rules of law, and the individual provisions giving effect to them, which at a given moment in time constitute the legal framework within which the competences of the institutions are exercised and the activities of individuals are carried on. The principle of the protection of legitimate expectations requires the Community legislature and the other Community organs (or the national authorities operating under provisions of Community law) to exercise their powers over a period of time in such a way that situations and relationships lawfully created under Community law are not affected in a manner which could not have been foreseen by a diligent person. This approach was not in terms adopted by the Court of Justice, but para 20 of its judgment appears to be in line with it. I have quoted this passage at some length because it seems to me to touch on what is, if I may respectfully say so, one of the crucial points in Lord Sumptions judgment. Lord Sumption ultimately bases his conclusions, on the central issue, on the principle of protection of legitimate expectations (paras 198 to 202). He observes (para 196) that the right of the test claimants to choose from a range of causes of action is a right derived solely from English procedural law and (echoing the Court of Appeal, para 226) that it exists only to the extent that English law so provides. I have considerable difficulty in reconciling that with the principles stated by the Advocate General and the Court of Justice in M&S [2003] QB 866. But before addressing that difficulty I should recapitulate the sequence of events in which the statutory cut off provisions were announced and enacted. The enactment of the statutory cut off provisions Mr Aaronson provided a useful summary of the key dates. The first two are the decisions of the House of Lords in Woolwich (20 July 1992) and Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349 (29 October 1998). After 1998 English lawyers knew that the recovery of money paid under a mistake of law (perhaps including a mistake of tax law, subject to arguments on exclusive remedies) had become a real possibility, although it was by no means a firmly established cause of action. But until the decision of the Court of Justice in Metallgesellschaft (Joined Cases C 397/98 and C 410/98) [2001] Ch 620 on 8 March 2001 there was no general appreciation that the UK corporation tax regime was seriously open to challenge as infringing the Treaty. Henderson J did not make any detailed findings about this, since the principle of legitimate expectations does not seem to have been argued as a separate issue before him. But he did (para 267) make a general finding of fact about mistake: The unlawful payments of ACT made from 1973 to 1999, and the unlawful payments of ACT made under the FID regime from 1994 to 1999, were in my view plainly made under a mistake about the lawfulness of the tax regimes under which they were paid. I am satisfied from the evidence, both written and oral, that this was not obvious to anybody within the BAT group at the time, since everybody proceeded on the footing that the tax in question was lawfully due and payable. After 8 March 2001 a well advised multinational group based in the UK would have had good grounds for supposing that it had a valid claim to recover ACT levied contrary to EU law, with at least a reasonable prospect that the running of time could be postponed until then (but not subsequently) by the operation of section 32(1)(c) of the Limitation Act 1980. During 2002 the opinion of the Advocate General and the judgment of the Court of Justice in M&S, while possibly not adding much to the earlier jurisprudence, spelled out very clearly, for UK companies and lawyers, both the capacity and the limits of national legislation in curtailing limitation periods in proceedings for recovery of tax levied in breach of EU law. The next important date was 18 July 2003, when Park J gave his first instance judgment in DMG. This was the first judicial decision which positively upheld a claim for repayment of unduly levied tax with an extended limitation period under section 32(1)(c). But appeals to the Court of Appeal and the House of Lords were to follow and (as Henderson J observed, para 406), the outcome of those appeals was, at the time, impossible to predict with any confidence. The BAT group started its proceedings on 18 June 2003, a month before Park Js judgment in DMG. On 8 September 2003 the Paymaster General announced the introduction of retrospective legislation affecting proceedings to recover tax on the ground of mistake if the proceedings were issued on or after that day (the scope of the proposed legislation was later extended to include amendment of existing proceedings). The Aegis group issued its proceedings on that very day, 8 September 2003, and so was one of the very first claimants to be affected by the legislation. Section 320 of the Finance Act 2004 was enacted on 24 June 2004. Its essential provisions were set out by Henderson J (para 408): Exclusion of extended limitation period in England, Wales and Northern Ireland (1) Section 32(1)(c) of the Limitation Act 1980 . (extended period for bringing an action in case of mistake) does not apply in relation to a mistake of law relating to a taxation matter under the care and management of the Commissioners of Inland Revenue. This subsection has effect in relation to actions brought on or after 8 September 2003. (2) For the purposes of (a) section 35(5)(a) of the Limitation Act 1980 . (circumstances in which time barred claim may be brought in course of existing action), and (b) rules of court . having effect for the purposes of those provisions, as they apply to claims in respect of mistakes of the kind mentioned in subsection (1), a new claim shall not be regarded as arising out of the same facts, or substantially the same facts, if it is brought in respect of a different payment, transaction period or other matter. This subsection has effect in relation to claims made on or after 20 November 2003. (6) The provisions of this section apply to any action or claim for relief from the consequences of a mistake of law, whether expressed to be brought on the ground of mistake or on some other ground (such as unlawful demand or ultra vires act). (7) This section shall be construed as one with the Limitation Act 1980 . The Court of Appeal gave judgment in DMG, reversing Park J, on 4 February 2005: [2006] Ch 243. Mr Aaronson described the Court of Appeals decision as a bump in the road, suggesting that it was unforeseen and soon forgotten, but that seems an inappropriate description, even with hindsight. Reference to the judgments (running to nearly 300 paragraphs in all) shows that numerous issues were fiercely contested, including the date of the mistakes discovery (which occurred, on HMRCs argument, in 1995). The Court of Appeals decision was reversed by the House of Lords on 25 October 2006: [2007] 1 AC 558. Shortly afterwards the UK government applied to the Court of Justice for the reopening of the hearing of the first reference in these proceedings so that the United Kingdom could argue for a temporal restriction to the judgment of the Court of Justice. That application was rejected on 6 December 2006, and on the same day HMRC announced the introduction of further retrospective legislation. This was enacted on 19 July 2007 as section 107 of the Finance Act 2007. The essential terms of the section were set out by Henderson J (para 412): Limitation period in old actions for mistake of law relating to direct tax (1) Section 32(1)(c) of the Limitation Act 1980 . (extended period for bringing action in case of mistake) does not apply in relation to any action brought before 8 September 2003 for relief from the consequences of a mistake of law relating to a taxation matter under the care and management of the Commissioners of Inland Revenue. (2) Subsection (1) has effect regardless of how the grounds on which the action was brought were expressed and of whether it was also brought otherwise than for such relief. (3) But subsection (1) does not have effect in relation to an action, or so much of an action as relates to a cause of action, if (a) the action, or cause of action, has been the subject of a judgment of the House of Lords given before 6 December 2006 as to the application of section 32(1)(c) in relation to such relief, or (b) the parties to the action are, in accordance with a group litigation order, bound in relation to the action, or cause of action, by a judgment of the House of Lords in another action given before that date as to the application of section 32(1)(c) in relation to such relief. (4) If the judgment of any court was given on or after 6 December 2006 but before the day on which this Act is passed the judgment is to be taken to have been what it would have been had subsections (1) to (3) been in force at all times since the action was brought (and any defence of limitation which would have been available had been raised). (6) In this section group litigation order means an order of a court providing for the case management of actions which give rise to common or related issues of fact or law . On 30 September 2010 the European Commission announced that it had made a formal request to the UK to change section 107 of the Finance Act 2007. On 26 January 2012 there was a further announcement that the European Commission has referred the UK to the Court of Justice because of the absence of proper transitional rules in section 107. Discussion of the statutory cut off provisions These provisions were challenged in the lower courts primarily on the ground that they infringed the principle of effectiveness. There was little discussion of legitimate expectations. Lord Sumption holds (para 199) that reasonable persons in the position of the test claimants would not, until Park Js judgment in DMG on 18 July 2003, have counted on being able to recover tax on the ground of mistake of law; and that even after that decision the existence of such a claim was being challenged on serious grounds. He concludes from that proposition that no one in the position of the test claimants could have had a reasonable and realistic expectation of recovering tax on the ground of mistake. I cannot disagree with that conclusion. The issue of legitimate expectations was not raised before the judge, and he made no findings on it. The issue of reasonable expectations must of course be decided objectively, but it would have been helpful to have had the view of the judge who very carefully considered the whole case. But in any case I do have great difficulty in applying the same reasoning to upholding the validity of section 320 against attack under the principle of effectiveness, in the light of M&S. The judgment of the Court of Justice in that case lays down a clear requirement for transitional provisions, and that requirement is derived at least as much from the principle of effectiveness and the principle of legality as from the more limited principle of protection of legitimate expectations (as Advocate General Cosmas said in Duff (Case C 63/93) [1996] ECR I 569, para 23, they are not interchangeable). If one asks what the test claimants were entitled to, and what they could expect to continue to be entitled to, in the way of national remedies to recover tax levied and paid contrary to EU law, the answer is plainly not that they were entitled to the indefinite continuation of a range of alternative remedies. The passage from Rewe II on which the test claimants rely (Rewe Handelsgellschaft Nord mbH v Haupzollamt Kiel (Case C 158/80) [1981] ECR 1805, para 44) is, as Lord Sumption demonstrates, an example of the operation of the principle of equivalence. It is not applicable in this case because both of the statutory cut off provisions applied to all claims for repayment of direct tax, whether or not the repayment was claimed because of an infringement of EU law. Nor were the test claimants entitled to a remedy arrived at by some precise formula furnished by EU law. That would be contrary to the basic principles laid down in Rewe I (Case C 33/76) [1976] ECR 1989, and repeated in countless cases since then. What they were entitled to was that national law should provide an effective remedy which met the requirements of EU principles of effectiveness and equivalence; and that any curtailment of any relevant limitation period should comply with those principles, as well as with the principle of legitimate expectations. The fact that they could not have complained, in another parallel universe in which section 32 (1)(c) had never existed, is not decisive on the issue of effectiveness. I would therefore hold that section 320 was contrary to EU law as infringing the principle of effectiveness as explained in M&S, and that section 107 was contrary to EU law both on that ground and (in agreement with Lord Sumption) under the principle of protecting legitimate expectations. Examples can be tendentious, but the drastic way in which section 320 could operate can be illustrated by the example of a UK resident holding company, part of a multinational group, which paid ACT from 1973 to 1996, building up an ever increasing surplus of unused ACT, and then (three years before the repeal of ACT) decided that enough was enough, and disposed of its overseas subsidiaries. In 2001 it would have learned of the possibility of a claim for repayment of tax, and taken advice as to the wisdom of incurring costs by making a claim, which was still doubtful, at some time during the next six years. In 2002 M & S (Case C 62/00) [2003] QB 866 seemed to confirm that the law would not be changed retrospectively and without reasonable notice. But if the company did not act before 8 September 2003 it would have been deprived, retrospectively and without any notice, of the entirety of its claims for over 20 years tax. Section 33 of the Taxes Management Act 1970 The last substantive point to be considered is section 33 of the Taxes Management Act 1970, which provided a statutory right to repayment of tax paid by mistake, subject to a number of restrictive conditions. It replaced provisions originally introduced by the Finance Act 1923. It has since been replaced by two different sets of provisions, one applicable to individuals and the other to companies. In the form in which it was in force at the relevant time the conditions were (1) it applied only to excessive tax charged by an assessment (which meant, Lord Goff stated in Woolwich [1993] AC 70, 169, a valid assessment) as a result of an error or mistake in a return; (2) there was a six year time limit; (3) there was to be no repayment if the erroneous or mistaken return was in accordance with practice generally prevailing at the time; and (4) the repayment was to be such as the Board of Inland Revenue (subject to a possible appeal to the Special Commissioners) considered reasonable and just. The flexibility of the last condition was explained by Mr Ewart by the example of a taxpayer who had paid too much tax six years before, but who ought to have paid more tax on the same income seven or more years before. The issue on section 33 is whether it is an obstacle to the test claimants and if so, whether it can be given a conforming interpretation under the Marleasing principle ((Case C 106/89) [1990] ECR I 4135). In terms of the amount of tax at stake, this issue is relatively minor in the context of the litigation as a whole, as it extends only to tax charged under Schedule D, Case V, pursuant to section 18 of TA 1988. But it is still a point of some general importance. Before Henderson J HMRC argued, but only it seems quite briefly, that the decision of the Court of Appeal in Monro v Revenue and Customs Comrs [2009] Ch 69 established that section 33 was an exclusive remedy which left no room for any common law claim in unjust enrichment. The judge [2009] STC 254, paras 438 439 rejected that on two grounds: first that section 33 did not extend to tax levied otherwise than by an assessment; secondly that in any event the national legislation must, in a San Giorgio claim, yield to the principle of effectiveness. It now seems to be common ground that the first of these reasons does not hold good for tax under Schedule D Case V. The Court of Appeal took a different approach. It concluded ([2010] STC 1251, paras 261 and 264) that a conforming interpretation was possible, and did sufficiently go with the grain of the legislation (the expression used in relation to section 3(1) of the Human Rights Act 1998 by Lord Rodger of Earlsferry in Ghaidan v Godin Mendoza [2004] 2 AC 557, para 121, also adopted by Lord Nicholls of Birkenhead at para 33). The conforming interpretation adopted was (para 261) that the restrictive condition about prevailing practice in section 33(2A) is to be read as subject to the limitation that it applies only if and to the extent that the United Kingdom can consistently with its Treaty obligations impose such a restriction. I have grave doubts as to whether that interpretation does not go against the grain of the legislation, since the practice generally prevailing condition is of long standing and has always been regarded as an important safeguard for the public revenue. I am inclined to think that Mr Aaronson was right (Day 2, pp 25 26) to call it a cardinal feature of the legislation. In my view the Marleasing principle can be applied in a simpler and more natural way by not construing section 33 as impliedly setting itself up as an exclusive provision (which it did not do expressly, unlike section 80 of the Value Added Tax Act 1994). The test claimants submit that the application of Marleasing cannot rework section 33 in a way that serves any relevant purpose. But to read it as non exclusive does not go against its grain. It would merely exclude an implication which is itself no more than a process of statutory construction. In practical terms the effect is the same as that which Henderson J reached by the second limb of his reasoning. I would therefore allow the appeal on this point (although it may not, in the end, make much practical difference). In summary, therefore, my provisional view is that we should (1) uphold the Court of Appeal as to (i) the scope of section 32(1)(c) of the Limitation Act 1980 and (ii) the scope of the Woolwich principle; (2) (3) allow the appeal on section 320 and section 107; and allow the appeal on section 33 of the Taxes Management Act 1970. But in view of the difference of opinion in the court I consider (in common with Lord Hope, Lord Dyson and Lord Reed) that it is necessary for the court to make a further reference to the Court of Justice of the European Union in accordance with directions in para 23 of Lord Hopes judgment. LORD BROWN I have had the great advantage of reading in draft the judgments of Lord Walker and Lord Sumption and am in full agreement with them both on the several issues upon which they each agree. What, then, of the single issue upon which they disagree: was section 320 of the Finance Act 2004 contrary to EU law as infringing the principle of effectiveness as explained by the Court of Justice in Marks & Spencer Plc v Customs & Excise Comrs (Case C 62/00) [2003] QB 866? During the hearing I confess to having found difficulty in recognising any principled basis for distinguishing between on the one hand section 47(1) of the Finance Act 1997 which (with effect from when government had earlier announced its intention so to legislate: section 47(2)), besides reducing the basic limitation period for tax repayment claims from six to three years, in addition eliminated the special advantage for claims in mistake previously introduced by section 24(5) of the Finance Act 1989, delaying the commencement of the limitation period for such claims until the claimants had actually or constructively discovered the mistake this being the provision held ineffective by the Court of Justice in Marks & Spencer; and, on the other hand, section 320 with which this court is now concerned which (similarly with effect from when government first announced its intention so to legislate) similarly eliminates with regard to tax repayment claims based on a mistake of law the similar special provision enlarging the limitation period to be found in section 32(1)(c) of the Limitation Act 1980. Now, however, I am inclined to accept Lord Sumptions view that, by the same token that, on the facts of this case, the appellants can establish no legitimate expectation at any time prior to 8 September 2003 (when government announced its intention to introduce section 320) that the limitation period for mistake of law tax repayment claims would not be attenuated by legislation, nor can they make good their argument that section 320 infringes the EU principle of effectiveness. The self same considerations essentially of fairness and legal certainty which underlie the doctrine of legitimate expectation (both domestically and under EU law) to my mind also inform the principle of effectiveness. If, as seems to me plainly to be so, the situation even after Park Js first instance decision in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2003] 4 All ER 645 (DMG) was one of complete uncertainty as to whether tax could be re claimed on the basis of a mistake of law there being at least as much room for a mistake of law as to this as for the mistake of law which the majority of the House of Lords in DMG [2007] 1 AC 558 held the taxpayers to remain under until the Court of Justices final authoritative decision in the Hoechst case (Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620) there was to my mind neither unfairness nor any denial of a legitimate expectation from Parliament stepping in to legislate with immediate effect to clarify the situation (albeit to the taxpayers obvious disadvantage given that the common law was finally to be developed in their favour). In short, whereas the position as to limitation with regard to tax recovery claims was crystal clear under section 24 of the 1989 Act and could not therefore fairly and legitimately be altered without due notice and appropriate transitional provisions it was entirely unclear under the developing common law when Parliament chose to intervene by the enactment of section 320. And it is that which provides the principled basis for distinguishing this case from Marks & Spencer. Section 107, by contrast, is not merely overtly retrospective (eliminating pre existing claims explicitly preserved by section 320), but was introduced after the House of Lords decision in DMG finally resolved the uncertainty in the law and proclaimed (albeit subject always to lawful legislative change) that mistake of law claims with their extended limitation periods were indeed available to those seeking recoupment of overpaid (or prematurely paid) tax. Small wonder that it is section 107 that the Commission selected for attack. LORD CLARKE In para 9 above Lord Hope has conveniently identified four issues for determination in this appeal. Issues (3) and (4), which raise a question of construction of section 32(1)(c) of the Limitation Act 1980 and the ingredients of the common law Woolwich claim respectively, raise no issue of EC law. I agree with the other members of the court that, for the reasons they give, the decisions of the Court of Appeal on both questions should be upheld and that both questions should be answered no. At the end of the argument I was inclined to the view that section 32(1)(c) should be given the wider meaning contended for by the Test Claimants, but I have been persuaded by the reasoning of Lord Walker and Lord Sumption that it should not. I also agree with the other members of the court that the restitution and damages remedies sought by the Test Claimants are not excluded by section 33 of the Taxes Management Act 1970 and that it follows that question (2) must be answered no and that the Test Claimants appeal on this issue must succeed. This seems to me to be essentially a matter of construction of section 33. In so far as it involves an issue of EU law, I would hold that it is acte clair, and would not refer it to the Court of Justice. By contrast, the questions posed by issue (1) raise difficult questions of EU law. This is evident from the differences of opinion between members of the court. A comparison between the judgments in this case shows that the members of the court are divided, not only as to the question whether EU law protects the mistake claims and, in particular, whether section 320 of the Finance Act 2004 infringes the EU law principles of effectiveness, legal certainty and legitimate expectation, but also as to the correct reasoning for the conclusions reached. I too would refer the section 320 issues to the Court of Justice. If there is to be a reference, any further analysis of the position by me will be largely, if not entirely, redundant, since all will depend upon the conclusions ultimately reached by the Court of Justice. I will therefore only add this. I agree that section 107 infringes EC law for the reasons given by Lord Sumption. As to section 320, in agreement with Lord Hope, Lord Walker, Lord Dyson, and Lord Reed my provisional view is that the appeal should be allowed. The problem (or potential problem) facing the Test Claimants is that English law provides two remedies for their claim that tax has been exacted from them contrary to EU law. If the only available remedy were the mistake claim, the position would be clear. It would fall within the principle in Marks & Spencer Plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 (M&S), which is discussed in some detail by Lord Walker at paras 96 to 99. The principle is summarised both by the Advocate General and by the Court of Justice at paras 36 to 38 (quoted at para 99 above). It applies in respect of national legislation curtailing the period within which recovery may be sought of sums charged in breach of EU law and may be summarised as follows: (1) such legislation must not be intended specifically to limit the consequences of a judgment of the Court of Justice to the effect that national legislation concerning a specific tax is incompatible with EU law; (2) the time set for its application must be sufficient to ensure that the right to repayment is effective; and (3) where a new limitation period limits the previously permitted period, the new period must be reasonable and the new legislation must include transitional arrangements allowing an adequate period for lodging claims which were available under the previous legislation. As Lord Walker explains at para 104, after 8 March 2001, when the Court of Justice decided Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620, the Test Claimants would have had good grounds for supposing that they had a good claim to recover ACT levied contrary to EU law, with at least a reasonable prospect that the running of time could be postponed until then by section 32(1)(c) of the Limitation Act 1980. In so far as proceedings had not been issued, their claims were therefore in time as at 8 September 2003 when HMRC announced the introduction of what became section 320 of the Finance Act 2004. The effect of section 320, which is set out at para 107 above and was enacted on 24 June 2004, was to deprive those Test Claimants of rights which were available to them by reason of section 32(1)(c) without any transitional provisions to allow them to issue proceedings within a reasonable time. But for the availability of the Woolwich claim, section 320 would therefore be contrary to the principles clearly set out in M&S. It made it impossible for those Test Claimants to proceed with their mistake claim because of the absence of the introduction of a reasonable period of limitation as from then and because of the complete absence of transitional provisions. The facts are very similar to those relating to the chocolate covered marshmallow teacakes in M&S. Does the existence of the Woolwich remedy make all the difference? I agree with Lord Hope, Lord Walker, Lord Reed and Lord Dyson that it does not. To my mind it would be remarkable if it did. In this regard, I agree in particular with the reasoning of Lord Hope at paras 16 to 19 above. As Lord Hope shows, the Test Claimants had every prospect of success. It is plain from the fact that section 320 was enacted that HMRC shared that view, since (at any rate as it seems to me) the whole point of the section was to ensure that such a claim would not succeed. In any event, in the period before section 320 came into force the Test Claimants were entitled to have their mistake claim adjudicated upon by the English courts. In my opinion they had a legitimate expectation that, as Lord Hope puts it at para 19 and Lord Reed puts it at para 243, that entitlement would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. Before the decision in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG) the Test Claimants knew that there was a reasonable prospect that they had a good mistake of law claim against the Revenue. I agree with Lord Sumption (at para 201) that it must be relevant to ask on what basis the Test Claimants must be taken to have made their plans and that the issue is whether there is an assumption reasonably to be attributed to them about how long they had to bring their claims, which was then retrospectively falsified by Parliament. It seems to me that they can reasonably be taken to have made their plans on the basis of an expectation that the State would not remove their rights without warning or transitional provisions. That expectation was then retrospectively falsified by section 320. In all these circumstances, I prefer the reasoning of Lord Hope and Lord Reed to that of Lord Sumption. It follows that in my opinion section 320 infringes their rights under EC law on the ground that it infringes the principle of legitimate expectation. In addition I agree with Lord Hope, Lord Walker, Lord Dyson and Lord Reed that an application of the principle of effectiveness also leads to the conclusion that section 320 infringes their rights under EC law. This part of the case has been analysed in some detail by Lord Hope, Lord Walker and Lord Reed. In particular, Lord Reeds analysis is considerably more extensive than that of Lord Walker. As I read Lord Reeds judgment, a critical part of his reasoning is his reliance upon his view of the principles of equivalence, which he then deploys in reaching his conclusion that section 320 infringes the principle of effectiveness. His reasoning is to my mind convincing and, for the reasons he gives, I too would so hold. I have a slight concern that so to hold is to determine the issue on a basis which was not advanced in argument on behalf of the Test Claimants, which (to put it no higher) is surprising given the many years they have been considering these issues. However, if the Court of Justice were to prefer the approach to equivalence adopted by Lord Sumption to that adopted by Lord Reed, I would nevertheless hold that section 320 infringes the principle of effectiveness. Although there is, so far as I am aware, no decision of the Court of Justice which directly addresses the point, this conclusion seems to me to receive some support from the opinion of Advocate General Sharpston in Unibet (London) Ltd v Justitiekanslern (Case C 432/05) [2008] All ER (EC) 453, where she said this at para 32 of her opinion: The starting point to my mind must be the principle, first laid down in Rewe I [(Case 33/76) [1976] ECR 1989, para 5], that it is for the domestic legal system of each member state to determine the procedural conditions governing actions at law intended to ensure the protection of Community law rights, provided that those conditions are not less favourable than those relating to similar actions of a domestic nature (principle of equivalence) and do not make it impossible in practice to exercise those rights (principle of effectiveness). That approach was confirmed in Rewe II [(Case 158/80] [1981] ECR 1805, para 44], where the court stated that the Treaty was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law and that the system of legal protection established by the Treaty implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect. (Original emphasis) I recognise that, as Lord Sumption observes at para 194, Rewe Handelsgellschaft Nord mbH v Haupzollamt Kiel [1981] ECR 1805 was an equivalence case and that the Court of Justice did not expressly comment upon this passage, but it nevertheless seems to me that in her para 32 the Advocate General was putting the point more generally in the context of effectiveness and that, in that context it provides some support for the Test Claimants case. I appreciate that the views that I (and others) have expressed on the section 320 point can only be provisional and that it will ultimately be resolved in the light of the answers to the questions referred to the Court of Justice. I nevertheless hope that these views will be of some assistance in the formulation of those questions. LORD DYSON I too agree with the judgments of Lord Walker and Lord Sumption on all the issues on which they agree. Like Lord Hope and Lord Reed, I agree with Lord Walker on the DMG/section 320 issue. Nevertheless, I acknowledge the force of Lord Sumptions reasoning on this issue. For that reason I have concluded that the question cannot be regarded as acte clair and that a reference to the European Court of Justice is necessary. LORD SUMPTION Introduction It is not in dispute that under EU Law, the United Kingdom is bound to provide an effective means under its national law of recovering tax charged contrary to the EU Treaty. It is common ground that it is open to member states to impose reasonable periods of limitation, even on actions to enforce directly effective EU law rights. It is also common ground that six years is a reasonable period of limitation for an action to recover tax charged contrary to EU law, and that if English law had always provided for the period to run from the date of payment in cases of mistake, then that too would have been reasonable. Broadly stated, the issue on this appeal is whether the United Kingdom was entitled to change the law relating to the running of the limitation period, without notice or transitional provisions for actions which were pending or in the pipeline. The commissioners say that the change related only to actions to recover tax paid under a mistake of law and that there are other causes of action unaffected by the change which satisfy the United Kingdoms obligation to provide an effective means of recovering the tax. The Test Claimants say, in bald summary, (i) that every cause of action available to them for common law restitution is, on analysis, an action for relief against the consequences of a mistake and therefore affected by the change, (ii) that so far as there are other causes of action available to them which are not affected by the change, they are subject to legal limitations which make it impossible to regard them as an effective means of recovery, and (iii) that irrespective of the fate of points (i) and (ii) the United Kingdom was not entitled to curtail, without notice or transitional provisions, the availability of any cause of action which might serve their purpose. In my judgment, the Test Claimants and other companies in their position have an effective means of recovering the overpaid tax under the principle stated by the House of Lords in the landmark decision in Woolwich Equitable Building Society v Inland Revenue Commrs [1993] AC 70. The availability of that cause of action entirely satisfies the obligations of the United Kingdom under the EU Treaty, notwithstanding that it is subject to a limitation period which runs from the date of payment. Neither section 320 of the Finance Act 2004 nor section 107 of the Finance Act 2007 had any impact on a claim made on that basis, because both enactments were concerned only with actions for the recovery of tax paid under a mistake of law. Mistake of law is a more limited cause of action, which is neither necessary nor sufficient to satisfy the obligations of the United Kingdom under the EU Treaty. In those circumstances, I consider that the validity of those enactments depends entirely on whether they defeated the legitimate expectations of taxpayers as that concept is understood in EU law. I do not think that section 320 of the Finance Act 2004 can be criticised on that ground. Its effect was that the limitation period for an action to recover tax paid under a mistake of law was to run from the date of payment in the same way as the limitation period for an action to recover tax on any other ground. It was announced almost as soon as the existence of a right to recover tax paid under a mistake of law had been judicially recognised. It follows that taxpayers in the position of these claimants cannot at the relevant time have had any reasonable expectation that a cause of action to recover tax paid under a mistake of law would be available to them. For that reason, I think that they would suffer no injustice if section 320 of the 2004 Act were to be given effect according to its terms, whereas a significant injustice would be suffered by the general body of taxpayers if it were not. Different considerations apply to section 107 of the 2007 Act, which was retrospective in an altogether more radical and objectionable sense. It does not surprise me that the European Commission has referred the enactment of 2007 to the European Court of Justice, but has taken no comparable step in the case of the enactment of 2004. I propose in this judgment to deal first with the general principles of EU law which are relevant, and on which I believe that there is substantial agreement among the members of the court. I shall then address the argument that a claim to recover overpaid corporation tax on the principle in Woolwich Equitable is not enough to satisfy those principles. I shall then, finally, return to EU law to consider the main question which has divided this court, namely whether, even if English law did not need to make available a right to recover the tax on the footing of mistake, having done so it could lawfully curtail the limitation period for that right retrospectively and without warning or transitional provisions. EU law Unlike Value Added Tax and certain other taxes and duties which are required and directly regulated by EU law, corporation tax is a creature of the domestic law of the United Kingdom. Apart from the limited requirements of Directive 90/435/EEC relating to withholding tax and double taxation relief, it is not subject to any EU scheme of harmonisation. Like other national tax systems, however, corporation tax is affected by EU law because it must be assessed and collected on a basis consistent with the Treaty. In particular, it must comply with the requirements of the single market, including the freedom of establishment and the free movement of capital guaranteed by what are now articles 49 and 63 of the Treaty: Commission v France (Case C 270/83) [1986] ECR 273; Staatssecretaris van Financien v Verkooijen (Case C 35/98) [2000] ECR I 7321. The internal market is a domain in which competence is shared between the institutions of the EU and those of member states under article 4 of the Treaty. It follows that even in cases where EU law confers direct rights on private parties, it is for national courts applying national law to determine what rights of action are available against member states to vindicate those rights, and subject to what v eG conditions. procedural or other Landwirtschaftskammer fur das Saarland Case 33/76 [1976] ECR 1989 (Rewe I), the principle was stated at para. 5 in terms which have been repeated or paraphrased in many cases decided since: In Rewe Zentralfinanz it is the national courts which are entrusted with ensuring the legal protection which citizens derive from the direct effect of the provisions of Community law. Accordingly, in the absence of Community rules on this subject, it is for the domestic legal system of each member state to designate the courts having jurisdiction and to determine the procedural conditions governing actions at law intended to ensure the protection of the rights which citizens have from the direct effect of Community law, it being understood that such conditions cannot be less favourable than those relating to similar actions of a domestic nature. Where necessary, articles 100 to 102 and 235 of the Treaty enable appropriate measures to be taken to remedy differences between the provisions laid down by law, regulation or administrative action in member states if they are likely to distort or harm the functioning of the Common Market. In the absence of such measures of harmonization the right conferred by Community law must be exercised before the national courts in accordance with the conditions laid down by national rules. The position would be different only if the conditions and time limits made it impossible in practice to exercise the rights which the national courts are obliged to protect. One consequence of this, as the court pointed out in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C397/98 and C410/98) [2001] Ch 620, para 81, is that the nature, basis and legal classification of rights of action available for this purpose in the national court is a matter for national courts: It must be stressed that it is not for the court to assign a legal classification to the actions brought by the plaintiffs before the national court. In the circumstances, it is for the claimants [Metallgesellschaft Ltd. and others and Hoechst AG] to specify the nature and basis of their actions (whether they are actions for restitution or actions for compensation for damage), subject to the supervision of the national court. This is, however, subject to the overriding requirement derived from the Treaty and referred to in the passage which I have quoted from Rewe I, that national legal systems should provide a minimum standard of protection for EU law rights. In the case law of the Court of Justice, the standard of protection required is embodied in two principles which are restated in almost every decision on the point. First, the substantive and procedural provisions of national law must be effective to protect EU law rights (the principle of effectiveness). Their enforcement in national law must not be subject to onerous collateral conditions or disproportionate procedural requirements. They must not render virtually impossible or excessively difficult the exercise of rights conferred by EU law. Secondly, the relevant provisions of national law must not discriminate between the rules and procedures applying to the enforcement of EU law rights, and those applying to the enforcement of comparable national law rights (the principle of equivalence). There is a third principle which features less prominently in the case law on this subject but is of considerable importance because it informs the approach of the Court of Justice to the first two. This is the principle of legal certainty, which lies at the heart of the EU legal order and entails (among other things) that those subject to EU law should be able clearly to ascertain their rights and obligations. One aspect of that principle is that within limits EU law will protect within its own domain legitimate expectations adversely affected by a change in the law. The leading case on the principle of effectiveness is Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595. This concerned charges levied for frontier health inspections of imported animals or animal products under Italian legislation but contrary to EU law. Italian law provided for the recovery of the charges on conditions that were in themselves perfectly acceptable, but which were in practice almost impossible to satisfy because of the exacting rules of evidence applicable to such claims. The court held (para 12): In that connection it must be pointed out in the first place that entitlement to the repayment of charges levied by a member state contrary to the rules of Community law is a consequence of, and an adjunct to, the rights conferred on individuals by the Community provisions prohibiting charges having an effect equivalent to customs duties or, as the case may be, the discriminatory application of internal taxes. Whilst it is true that repayment may be sought only within the framework of the conditions as to both substance and form, laid down by the various national laws applicable thereto, the fact nevertheless remains, as the court has consistently held, that those conditions may not be less favourable than those relating to similar claims regarding national charges and they may not be so framed as to render virtually impossible the exercise of rights conferred by Community law. These principles were restated in the judgments of the European Court of Justice in Metallgesellschaft [2001] Ch 620, paras 84 86 and in the first reference in this litigation: FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2007] STC 326, paras 201 208. It follows that a member state is in principle required to repay charges levied in breach of Community law: Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192/95 to 218/95) [1997] ECR I165, para 20. Subsequent case law has emphasized the absolute character of this obligation. The only exception which has been recognized to date is the case where the charge has been passed on by the party who paid it, with the result that he would be unjustly enriched were he to recover it for his own benefit: see Webers Wine World Handels GmbH v Abgabenberufenskommission Wien (Case C 147/01) [2003] ECR I 11365, para 94. So, although national courts and legislatures are the masters of their own law and procedure, in so far as the legal system of a member state fails to give adequate effect to directly effective EU law rights, it is incumbent on national courts to give effect to those rights by filling the gap between existing causes of action or if necessary to create a new one: see Unibet (London) Ltd v Justitiekanslern (Case C432/05) [2008] All ER (EC) 453, paras 40 1. The combined effect of (i) the requirement of EU law that there must be an effective right of recovery of tax charged contrary to that law and (ii) the primacy of national law as the source of that right, is that EU law does not, indeed cannot, require that national law should recognise or create any particular cause of action or any particular remedy. It simply requires that whatever causes of action or remedies exist in national law must, taken as a whole, be effective and non discriminatory. The implications of these principles for the operation of rules of limitation in national systems of law is the subject of a considerable body of case law in the Court of Justice. Not only is limitation a feature of every national legal system of the EU, but the recognition of national rules of limitation as both necessary and desirable is treated as part of the principle of legal certainty in EU law. In Rewe I [1976] ECR 1989, one of the first cases to come before the Court of Justice about the application of limitation periods to claims to enforce directly effective rights in the area of tax, the court observed (para 5) that the laying down of such time limits with regard to actions of a fiscal nature is an application of the fundamental principle of legal certainty protecting both the tax payer and the administration concerned. This is so, notwithstanding that the effect of that rule is to prevent in whole or in part the repayment of those charges: Haahr Petroleum Ltd v benr Havn (Case C 90/94) [1997] ECR I 4085, para 45. Subject to the overriding principles of effectiveness and equivalence, EU law recognizes the public interest in orderly national budgeting and equity between generations of taxpayers, which will generally require rules for establishing clear limits beyond which tax accounts may not be reopened. In the present appeals it has not been argued that section 320 of the Finance Act 2004 or section 107 of the Finance Act 2007 are inconsistent with the principle of equivalence. I do not find that surprising. The two enactments with which we are concerned apply in precisely the same way to claims to recover taxes charged contrary to domestic and EU law. So far as they create practical limitations on a claimants choice of legal route to recovery, they have precisely the same effect whether the charging of the tax was contrary to EU or domestic law. It is not suggested in these appeals that either enactment offended against the principle in Deville v Administration des Impts (Case 240/87) [1988] ECR 3513 on the ground that they were specifically targeted at the assertion of rights under EU law. We are therefore concerned on these appeals only with the principle of effectiveness and the principle of the protection of legitimate expectations. The fundamental requirement of the principle of effectiveness is that limitation periods should be reasonable, ie not so short as to make recovery by action impossible or excessively difficult: see Rewe I, [1976] ECR 1989, and Comet v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043, paras 16 18. But the assessment of what is reasonable allows for considerable variation between different national systems. There is abundant case law concerning limitation periods much shorter than six years, which have been held to be reasonable. Moreover, it is not inconsistent with the principle of effectiveness that under national law the limitation period for the recovery of unlawful charges should run from the time of payment: see Edilizia Industriale Siderurgica Srl (Edis) v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951, para 35, Ministero delle Finanze v SPAC (Case C 260/96) [1998] ECR I 4997, para 32. Nor is there any rule of EU law requiring the running of a limitation period to be deferred until the existence of a right to recover the payment has been judicially established. It is not uncommon for a claim to repayment to have become time barred in national law while proceedings are still in progress to determine whether the member state was in breach of EU law. This was, for example, the position in Rewe I. It was also the position in many of the decisions about the retrospective curtailment of limitation periods, which I shall consider next. The curtailment of an existing limitation period gives rise to special considerations. There are two objections that might in principle be taken to it. First, even if the change applies only to future claims, it is likely to operate retrospectively to some extent. It will usually extinguish the possibility of enforcing existing rights to recover sums which have already been paid and could in due course have been reclaimed and recovered under the previous law, but are time barred under the new one. This necessarily engages the principle of effectiveness. Of course, the legislation may also be retrospective in the more radical sense of abrogating claims that have already been properly made under the old law. The second potential objection is that to the extent that the change is retrospective, it may offend against the principle of legal certainty. People must be taken to appreciate that the law may be changed. But until it is, they are entitled to organise their affairs on the basis of the law as it stands and to assume a sufficient measure of predictability in its future development to enable them to exercise their EU law rights. This means that if they have already paid money which is in principle recoverable, they are entitled to be guided by the existing law when deciding how long they have left in which to claim. This objection is commonly analysed as depending on the principle of the protection of legitimate expectations. But this is not really a distinct principle. It has been described as the corollary of the principle of legal certainty, which requires that legal rules be clear and precise, and aims to ensure that situations and legal relationships governed by Community law remain foreseeable: Duff v Minister of Agriculture, Ireland (Case C 63/93) [1996] ECR I 569, para 20. It is one manifestation of the broader principle that those subject to the law should be able to ascertain their rights and obligations at the time that they are called on to decide what to do about them. EU law might have taken an absolute line on national legislation retrospectively extinguishing the possibility of enforcing existing rights to recover money charged contrary to EU law. In fact, it has taken a more flexible and nuanced position. It follows from the liberty given to member states to devise their own domestic law means of giving effect to EU rights, that national legislatures are in principle entitled to change their laws. Because they are not obliged to provide more than the minimum level of protection for EU rights necessary to make them effective, the changes may adversely affect claims to assert EU rights, provided that the new law still provides an effective means of doing so. The compromise which EU law has adopted between these conflicting considerations is to allow the retrospective curtailment of limitation periods within limits set by the principle of the protection of legitimate expectations. Legislation curtailing limitation periods is in principle consistent with the principle of effectiveness provided that a period of grace, which may be quite short, is allowed, either by giving sufficient advance notice of the change or by including transitional provisions in the legislation. These propositions are derived from the four leading decisions of the Court of Justice on this question, namely Aprile Srl v Amministrazione delle Finanze dello Stato (Case C 228/96) [2000] 1 WLR 126 (Aprile II), Dilexport Srl v Amministrazione delle Finanze dello Stato (Case C 343/96) [1999] ECR I 579, [2000] All ER (EC) 600, Grundig Italiana SpA v Ministero delle Finanze (Case C 255/00) [2003] All ER (EC) 176, and Marks & Spencer v Customs & Excise Comrs (Case C 62/00) [2003] QB 866. The first two cases had a similar legal background. Italy had unlawfully levied charges equivalent to customs duties, which the claimant sought to recover under Italian law. Italian law conferred a general right to recover payments made without legal basis (pagamento non dovuto) under article 2033 of the Civil Code, which was subject to the general limitation period of ten years provided for by the article 2946 of the Code. In addition, there was a specific right to a refund under the Consolidated Customs Code in cases of calculation errors in the assessment or the application of a duty other than that laid down in the tariff, which was subject to its own limitation period of five years. The latter right had no application to a claim for a refund of tax charged contrary to Community law. These provisions were amended by legislation so that the limitation period in the Customs Code applied to actions under article 2033 whenever the claim was for a refund of sums paid in connection with customs operations. In other words, the limitation period for the only relevant right of recovery, under article 2033, was reduced from ten years to five. It is clear that the decisive considerations which led the Court of Justice to conclude that the amendment was consistent with the EU law were (i) that the reduced limitation period was still long enough to satisfy the principle of effectiveness and (ii) that the Italian courts had treated the amending legislation as allowing claimants a period of grace of three years from the time the amending legislation came into force, which meant that the legislation cannot be regarded as having retrospective effect; see Aprile II, para 28 and Dilexport, para 42. This was not enough to help the claimants, for the period of grace had already expired by the time that they succeeded in obtaining a judicial decision that the charges were unlawful. But it was held to be enough to satisfy the principle of effectiveness. In Grundig Italiana [2003] All ER (EC) 176, the Court of Justice had to consider the minimum transitional period which would enable a retrospective curtailment of the limitation period to satisfy EU law. The case concerned the same amending legislation which had featured in Aprile II and Dilexport, but a different aspect of it, namely the reduction of the special limitation period from five years to three, which took effect ninety days after the legislation came into force. This transitional period was held to be too short. The court considered that a period of grace must be sufficient to allow taxpayers who initially thought that the old period for bringing proceedings was available to them a reasonable period of time to assert their right of recovery in the event that under the new rules they would already be out of time (para 38). In the context of an original limitation period of five years, six months was the least that should have been allowed (para 42). It is accordingly clear that a reasonable period of grace may be considerably shorter than the amount by which the limitation period has been abridged. It is a period long enough to allow potential claimants to consider their position, not a period long enough to save every existing right of recovery. In none of the Italian cases was separate consideration given by the Court of Justice to the principle of the protection of legitimate expectations. But that principle must necessarily have informed the courts analysis of what was required by the principle of effectiveness. The point was made in terms by Advocate General Ruiz Jarabo in his opinion in Grundig Italiana, where he observed that a retrospective reduction in the limitation period without a period of grace would be contrary to the principle of effectiveness on the grounds that the reduction is unexpected and contrary to the principle of the protection of legitimate expectations and to the principle of legal certainty (para 30). The court must have agreed with that. It was critical to its view that legislation retrospectively curtailing an existing limitation period so as to bar some existing rights, would nevertheless be consistent with the principle of effectiveness if it allowed a sufficient period of grace for taxpayers to adjust their plans to the new order of things. In Marks & Spencer [2003] QB 866, the facts were more complex. It was a reference from the Court of Appeal in England about a claim to recover VAT unlawfully charged by the Commissioners of Customs and Excise. By statute, the only right to obtain a refund from the Commissioners was by way of a claim under section 24 of the Finance Act 1989 (subsequently section 80 of the Value Added Tax Act 1994). Subsections (4) and (5) of section 24 provided for a six year limitation period, which was to run from the date of payment save in cases of mistake, when it was to run from the time when the mistake was or could with reasonable diligence have been discovered. On 18 July 1996, the government announced its intention of introducing what later became section 47(1) of the Finance Act 1997. The effect of this enactment was to reduce the limitation period for the statutory claim from six years to three, and to provide that it was to run in all cases from the time of payment. Section 47(2) provided that subsection (1) should be deemed to have come into effect on 18 July 1996 and should apply to all claims unsatisfied at that date whether made before or afterwards. There were no relevant transitional provisions. The reference was concerned with a claim to recover VAT overpaid on sales of gift vouchers. This claim was affected by the reduction of the limitation period to three years. It was not affected by the removal of the extended period of limitation in cases of mistake, because the relevant payments had all occurred within six years before the claim was made. But the facts are complicated by the existence of another claim, to recover VAT paid in respect of sales of teacakes going back to 1973, which was significantly affected by the removal of the extended limitation period. The teacakes claim was not part of the reference: see the Advocate General at para 27. But before us a submission was based on it by Mr Aaronson QC (for the Test Claimants) because of the analogy with the removal of the extended period of limitation in the present case. It is therefore right to point out that it arose only in the context of a preliminary observation of the Advocate General about the way in which the Court of Appeal had framed the reference. The Court of Appeal had limited it to (i) the gift vouchers claim, (ii) the reduction of the limitation period from six years to three, and (iii) the period before August 1996 when the Sixth VAT Directive 77/388/EEC had been in force but not properly transposed into the law of the United Kingdom. The Advocate General, while acknowledging that the court was bound by the terms of the reference, pointed out that it had been framed on the assumption that the Directive had no further relevance as a source of rights once it had been properly transposed into English law in August 1996. This assumption was in his opinion wrong: paras 32 34. He thought that the Court of Appeals error about the period in which the Directive was relevant had led it to treat the whole of the teacakes claim and the later part of the gift vouchers claim as depending only on national law: see paras 30 and 44, and his citations from the judgments of the High Court and the Court of Appeal at para 32. None of this had anything to do with the compatibility of section 47 of the Finance Act 1997 with EU law. The Court of Justice, in its judgment, agreed that the Court of Appeals assumption about the Directive was mistaken (paras 22 28), but dealt only with the application of the 1997 Act to the gift vouchers claim: see para 13. The Court of Justice had no difficulty in concluding that section 47 was contrary to the principle of effectiveness. There was only one means allowed by English law of recovering overpaid VAT, and the effect of the amendment was to extinguish without notice any possibility of using that method to recover overpayments between three and six years old. Indeed, it extinguished it even when there was already a pending claim at the date of the announcement. The court took the opportunity to restate the effect of previous case law in the following terms: 35. As regards the latter principle, the court has held that in the interests of legal certainty, which protects both the taxpayer and the administration, it is compatible with Community law to lay down reasonable time limits for bringing proceedings: Aprile, paragraph 19, and the case law cited therein). Such time limits are not liable to render virtually impossible or excessively difficult the exercise of the rights conferred by Community law. In that context, a national limitation period of three years which runs from the date of the contested payment appears to be reasonable (see, in particular, Aprile, paragraph 19, and Dilexport, paragraph 26). 36. Moreover, it is clear from the judgments in Aprile [2000] 1 WLR 126, para 28, and Dilexport [1999] ECR I 579, paras 41 and 42, that national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law is, subject to certain conditions, compatible with Community law. First, it must not be intended specifically to limit the consequences of a judgment of the court to the effect that national legislation concerning a specific tax is incompatible with Community law. Secondly, the time set for its application must be sufficient to ensure that the right to repayment is effective. In that connection, the court has held that legislation which is not in fact retrospective in scope complies with that condition. 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. The decision is also notable as being the one case in this area in which the court has given separate and explicit consideration to the principle of the protection of legitimate expectations. It did so because it was expressly invited to deal with both effectiveness and legitimate expectations by the terms of the Court of Appeals reference. But it dealt with the point under both heads. In dealing with the principle of effectiveness, it observed (para 38) that the principle of effectiveness required that potential claimants should be given time to assert existing rights under the old law. This was because (para 39) the right of member states to impose reasonable limitation periods was an exception to the rule that member states must repay taxes charged in breach of Community law, and that exception was founded on the principle of legal certainty. However, in order to serve their purpose in ensuring legal certainty, limitation periods must be fixed in advance. In other words, the curtailment of limitation periods is consistent with the principle of effectiveness if it is subject to provisions protecting legitimate expectations. As the Advocate General had pointed out in his opinion (para 68), the principle of protecting legitimate expectations is based on the need for legal certainty. Addressing the same point, the court held: 44. In that connection, the court has consistently held that the principle of the protection of legitimate expectations forms part of the Community legal order and must be observed by the member states when they exercise the powers conferred on them by Community directives: see, to that effect, Krcken (Case 316/86) [1988] ECR 2213, para 22, Alois Lageder SpA v Amministrazione delle Finanze dello Stato (Joined Cases C 31 to C 44/91) [1993] ECR I 1761, para 33, Belgocodex v Belgian State (Case C 381/97) [1998] ECR I 8153, para 26, and Grundstckgemeinschaft Schlossstrasse GbR v Finanzamt Paderborn (Case C 396/98) [2000] ECR I 4279, para 44). 45. The court has held, in particular, that a legislative amendment retroactively depriving a taxable person of a right to deduction he has derived from the Sixth Directive is incompatible with the principle of the protection of legitimate expectations (Schlossstrasse, cited above, paragraph 47). 46. Likewise, in a situation such as that in the main proceedings, the principle of the protection of legitimate expectations applies so as to preclude a national legislative amendment which retroactively deprives a taxable person of the right enjoyed prior to that amendment to obtain repayment of taxes collected in breach of provisions of the Sixth Directive with direct effect. Whether it is put on the basis of the principle of effectiveness or the protection of legitimate expectations or on a combination of the two, the rule of EU law which requires a reasonable period of grace before a retrospective curtailment of the limitation period can be lawful, assumes that claimants generally can legitimately count on having the whole of the old limitation period in which to bring whatever claims may be available to them as a matter of domestic law, unless they have a reasonable warning that the position is about to change. Thus far, I do not think that there is any fundamental difference in principle between my views and those of other members of the court. The assumption that a claimant can legitimately count on having the whole of the old limitation period in which to bring whatever claims are available to him is one which would normally be made as a matter of course. But this is not an ordinary case. The position is complicated by the highly unusual way in which the right to recover unlawfully charged tax has developed in England over the last two decades. It is a problem which could only have arisen in a common law country such as England, where the law of restitution has been the piecemeal creation of judges while limitation is exclusively the creature of statute. To these peculiarly English developments, I now turn. Rights of recovery in English law Until surprisingly recently, English law afforded only very limited possibilities of recovering overpaid tax. As Lord Goff of Chieveley observed in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70, 172, English law had not recognised a condictio indebiti allowing an action for the recovery of payments on the simple ground that they were not due. It has still not done so. It is necessary, as the law presently stands, to bring the facts within one of the categories of case in which the law recognises that the recipients retention of the money would be unjust. The relevant categories as they had stood for a considerable time up to 1992 were described by Lord Goff in his speech in Woolwich Equitable at pp 164 166. Money was recoverable if it was paid under a mistake of fact, but not if it was paid under a mistake of law (as it generally would be if taxes were paid which were not duly authorised by law). It was recoverable if it was exacted by actual or threatened duress to the person or to the persons goods, but not on a mere threat to assert a claim by a method provided for by law (for example, by legal proceedings). It was recoverable if it was demanded by a public official or a person charged with a statutory duty as a condition of his performing his duty. None of these situations was likely to cover the case where a taxpayer paid money which was not in fact due under the relevant legislation, because it had been misconstrued or was contrary to EU law, or because (being secondary legislation) it was ultra vires the enabling Act. A limited statutory right to claim repayment from the Commissioners had been introduced in 1923 by section 24 of the Finance Act of that year. Substantially the same provision has remained in force in successive statutory iterations ever since. It is currently to be found in section 33 of the Taxes Management Act 1970. In that form, its effect is that overpaid tax may be reclaimed if (i) it was charged by an assessment, (ii) the assessment was excessive because of a mistake in the taxpayers return, (iii) in the case of a mistake about the basis on which the taxpayers liability should be computed, the return was not in the relevant respect made in accordance with the practice generally prevailing at the time, and (iv) having examined all the relevant circumstances of the case, the Board of Inland Revenue or the Special Commissioners on appeal from them considered that repayment would be reasonable and just. It will be apparent that if tax was paid under invalid or unlawful legislation the claim will almost inevitably fail on the ground that the return having been made in accordance with the statute it accorded with the practice generally prevailing at the time. Even if the taxpayer can demonstrate that his return was not in accordance with that practice, the fate of his claim will depend on the exercise of a discretion by the Commissioners. His only right is to have his claim fairly considered in the light of all relevant circumstances. As Lord Goff pointed out in Woolwich Equitable (at p 170B), historically this provision presupposed that there was no right of recovery at common law. The first major change in this state of affairs occurred with the judgment of the House of Lords in the Woolwich Equitable case, which was delivered on 20 July 1992. The Woolwich Equitable Building Society paid the composite rate tax charged on building societies under statutory regulations which it considered to be ultra vires the enabling primary legislation, and which it then successfully challenged in proceedings for judicial review. It took this course because it was concerned about the reputational damage that it might suffer if it was seen to withhold tax which other building societies were paying, at a time when there had been no definitive decision on the status of the regulations. The Commissioners, having failed to justify the charge in the judicial review proceedings, repaid the tax, but declined to recognise that they were bound to do so and therefore felt entitled to reject a claim to interest. The question at issue was whether the Commissioners had been bound to repay the principal and were therefore amenable to an order for the payment of interest as well. Woolwich was unable to bring itself within any of the established categories of restitution. In particular, it could not claim repayment on the ground of mistake, because it had not been mistaken. It had always believed that the regulations were void. Nor could it claim under section 33 of the Taxes Management Act 1970, because there had been no assessment. It had pre empted an assessment by paying. It followed that under the law as it had previously stood, the claim for interest was bound to fail. The question, as Lord Goff put it at p 171, was whether the House in its judicial capacity should reformulate the law so as to establish that the subject who makes a payment in response to an unlawful demand of tax acquires forthwith a prima facie right in restitution to the repayment of the money. The claim failed in the High Court, but it succeeded, by a majority, first in the Court of Appeal and then, on somewhat different grounds, in the House of Lords. In summary, the House of Lords fashioned a cause of action which was (i) acknowledged to be new, (ii) specific to the case of money charged by a public authority in the absence of a valid statutory power to do so, and (iii) available irrespective of whether the payer was mistaken or whether, if he was mistaken, his mistake was one of fact or law. It was not necessary in Woolwich Equitable to consider the rule that money paid under a mistake of law was irrecoverable. That question came before the House of Lords in 1998 in Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349, one of the last cases to be decided in the great tide of litigation arising out of ultra vires interest rate swap agreements with local authorities. Kleinwort Benson had made net payments to the local authorities under the terms of these agreements, which they claimed had been made under a mistake of law, namely that they were valid. In the High Court, Langley J dismissed the claims on the ground that the law did not recognise a right to recover in these circumstances. The case was leapfrogged to the House of Lords on the ground that the Court of Appeal would be bound by authority to reach the same conclusion. In the House of Lords, the bank acknowledged that the existing law did not allow the recovery of money paid under a mistake of law. For their part, the local authorities made no attempt to defend that state of the law in principle, in the face of sustained criticism by academic writers and the Law Commission, its total or partial abandonment in many common law jurisdictions, and the recognition of a wider basis of recovery, independent of mistake, in major civil law systems, notably those of Germany, France and Italy. The fundamental issue before the appellate committee was whether the law should be changed by judicial decision, or the task left to Parliament. The House allowed the appeal and recognised a right in principle to recover money paid under a mistake of law, while acknowledging that this represented a departure, even a major departure, from what has previously been considered to be established principle: see Lord Goff at p 378. For a number of years it remained uncertain whether the new cause of action to recover money paid under a mistake of law extended to mistaken payments of tax. Kleinwort Benson was a case about private law transactions. In his speech Lord Goff (with whom on this point the rest of the appellate committee agreed) expressed the view at pp 381 382 that there was a distinction between claims to recover payments made in private law transactions and claims to recover payments of taxes and other charges levied by public authorities. In the latter category, payments were recoverable as of right under the principle laid down in Woolwich Equitable without the need to invoke a mistake of law, or under section 33 of the Taxes Management Act in cases of mistake to which that provision applied. Lord Goff continued at p. 382: Two observations may be made about the present situation The first observation is that, in our law of restitution, we now find two separate and distinct regimes in respect of the repayment of money paid under a mistake of law. These are (1) cases concerned with repayment of taxes and other similar charges which, when exacted ultra vires, are recoverable as of right at common law on the principle in Woolwich, and otherwise are the subject of statutory regimes regulating recovery; and (2) other cases, which may broadly be described as concerned with repayment of money paid under private transactions, and which are governed by the common law. The second observation is that in cases concerned with overpaid taxes, a case can be made in favour of a principle that payments made in accordance with a prevailing practice, or indeed under a settled understanding of the law, should be irrecoverable. If such a situation should arise with regard to overpayment of tax, it is possible that a large number of taxpayers may be affected; there is an element of public interest which may militate against repayment of tax paid in such circumstances; and, since ex hypothesi all citizens will have been treated alike, exclusion of recovery on public policy grounds may be more readily justifiable. The Commissioners, relying mainly on this passage, subsequently contended that tax was subject to a special legal regime, and that the only cause of action at common law for the recovery of overpaid tax was a cause of action on the principle stated in Woolwich Equitable. The recognition of this basis of claim, it was said, impliedly excluded all other bases of claim apart from the statutory procedure under section 33 of the Taxes Management Act 1970. This proposition was tested in Deutsche Morgan Grenfell Group Plc v Inland Revenue Comrs [2007] 1 AC 558. The case foreshadowed some of the issues on the present appeals, and was the genesis of section 320 of the Finance Act 2004. It concerned claims for the recovery of interest on corporation tax which the European Court of Justice had held to have been prematurely charged in Hoechst/Metallgesellschaft. The taxpayer company wanted to claim interest for the period when it was out of pocket, on the footing that the tax itself had been paid under a mistake of law. It took this course because a claim on that basis would benefit from the extended limitation period under section 32(1)(c) of the Limitation Act 1980, whereas claims based on Woolwich Equitable or section 33 of the Taxes Management Act ran from the time of payment and would have been time barred. There were three main issues: (i) whether, in a case covered by the principle in Woolwich Equitable, a common law claim based on mistake was also available to the taxpayer; (ii) if so, what was the mistake, bearing in mind that the tax had been paid in accordance with the correct construction of the taxing Acts, which was only later shown to be inconsistent with EU law by the decision of the Court of Justice in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and 410/98) [2001] Ch 620; and (iii) at what stage, for the purpose of section 32(1)(c) of the Limitation Act 1980, could it be said that the taxpayer discovered or could with reasonable diligence have discovered that mistake, so as to start the limitation period running. Park J gave judgment on 18 July 2003. He decided all three questions in favour of the taxpayer, and held that accordingly a claim on the basis of mistake was available to it. In February 2005, the Court of Appeal unanimously overruled him and held that it was not. The House of Lords restored the judgment of Park J on 25 October 2006. On the first issue, the House held that the claimant could choose between concurrent causes of action on the principle in Woolwich Equitable and on the basis of mistake of law. On the second issue, there were some differences of reasoning within the majority of the appellate committee, but all of them agreed that by virtue of the theory that judicial decisions are deemed to declare the existing law, the taxpayer company had made a retrospective or deemed mistake. The mistake consisted in its failing to appreciate that it was entitled to make a group income election and defer the payment of tax, notwithstanding that the statute said that it did not have this right. On the third issue, the House of Lords held that under section 32(1)(c) of the Limitation Act 1980 the limitation period for a claim in respect of that mistake did not start to run simply because the claimant was aware of a worthwhile claim or of doubts about the lawfulness of the legislation. It started to run only when the Court of Justice definitively held that the relevant features of the United Kingdom corporation tax regime were contrary to EU law. The combined effect of the decisions on these three points was in one respect extremely remarkable. If tax was overpaid under a mistake of law, then provided that a claim to recover it was brought before six years had elapsed from the judgment establishing the correct legal position, there was no limit upon how far back the claim could go. In the present cases, it goes back to the accession of the United Kingdom to the Common Market in 1973. If it had arisen from a mistake of purely domestic law, it might have gone back to the inception of corporation tax in 1965. In other cases where the unlawfulness of the charge depended wholly on English law, it could in principle go back indefinitely. It has been suggested in argument before us that once the House of Lords in Kleinwort Benson [1999] 2 AC 349 had accepted the right to recover money paid under a mistake of law, the Commissioners case in Deutsche Morgan Grenfell was never likely to be accepted. Its acceptance by the Court of Appeal was an aberration, a bump in the road to borrow Mr Aaronsons arresting phrase. Such arguments often sound plausible in hindsight, after the highest court has laid down the law, and ultimately of course the Commissioners argument was not accepted. But it was nevertheless a formidable argument, to which the observations of Lord Goff appeared to lend substantial support. In Kingstreet Investments v New Brunswick (Finance) [2007] 1 SCR 3, considerations rather similar to those raised by Lord Goff had led the Supreme Court of Canada to treat claims to recover unlawfully charged tax as governed by a distinct body of constitutional principle relating to tax charged without legislative authority, and not by the general law of unjust enrichment. At least part of the Canadian courts reasoning was that the concurrent availability of both causes of action was liable to have unacceptable collateral consequences: see paras 32 42 (Bastarache J). Indeed, the decision of the House of Lords in Deutsche Morgan Grenfell is even now not beyond academic controversy. The decision on issue (ii) is criticised by the current editors of Goff & Jones, The Law of Unjust Enrichment, 8th ed (2011), paras 22.29 22.31 on grounds closely related to the observations which I have quoted from Lord Goff in Kleinwort Benson. I do not intend by making these points to reopen a debate which has been settled for more than five years. My point is more straightforward: no reasonable and well advised person could have counted on the decision in Deutsche Morgan Grenfell going the way it did on all three points, until the House of Lords delivered its judgment. Section 320 of the Finance Act 2004 was a direct response to the decision of Park J in Deutsche Morgan Grenfell. It altered not the limitation period itself but the statutory rule postponing its commencement in cases of mistake until the taxpayer had discovered or could with reasonable diligence have discovered the mistake. It had the effect of barring older claims for repayment of tax paid under a mistake which might otherwise have succeeded. But the mischief to which section 320 was addressed was not the existence of a right to repayment, whether arising from EU or domestic law, but the problem created by Park Js decision that section 32(1)(c) of the Limitation Act 1980 might now enable past tax accounts to be reopened without limit of time. Is the right to bring a claim based on Woolwich Equitable an effective remedy? Logically, the first question to be decided is whether a cause of action based on the Woolwich Equitable principle is an effective means of asserting the right to repayment required by EU law. The Test Claimants say that it is not. Therefore, the argument runs, their only effective means of recovery was by way of an action to recover on the ground of mistake, and their right to bring such an action has been unlawfully curtailed by section 320 of the Finance Act 2004. They make three points. First, they say that a claim based on Woolwich Equitable requires an unlawful demand by a public authority and is not therefore available to recover taxes such as advance corporation tax which are paid with the return, not upon an assessment or other demand by the Commissioners. Second, the Court of Appeal has held, applying the principle in Marleasing SA v La Comercial Internacional de Alimentacin SA (Case C106/89) [1990] ECR I 4135 that section 231 of the Income and Corporation Taxes Act 1988 (which provides for a tax credit in respect of distributions paid by UK resident companies) can be given a construction which, however strained, applies it to distributions by companies resident anywhere in the EU. It follows, they say, that there is nothing unlawful about section 231 which can engage the principle in Woolwich Equitable. If either of these points is right, then a claim based on Woolwich Equitable is not an effective remedy in this case. Third, the Test Claimants submit that section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007 curtail the limitation period for a claim based on Woolwich Equitable, because although such a claim does not legally depend on mistake, they were in fact mistaken. Their action is therefore an action for relief from the consequences of a mistake for the purposes of section 32(1)(c) of the Limitation Act 1980. If this point is right, then Parliament has without warning curtailed the limitation period for all available methods of obtaining restitution, apart from a claim under section 33 of the Taxes Management Act for a small part of the overpayment and a somewhat problematical claim for damages founded on the principle of state liability stated by the European Court of Justice in Francovich v Italian Republic (Joined Cases C 6/90 and 9/90) [1999] ICR 722, [1991] ECR I 5357. The Test Claimants need only be right on one of these three points, but in my view they are wrong on all of them. The demand point In spite of the importance attached to this point in argument, it can I think be dealt with quite shortly. The speeches of the majority in Woolwich Equitable [1993] AC 70 are full of expressions which, read literally and out of their analytical context, might support the suggestion that the cause of action recognised in that case was dependent on the making of an unlawful demand: see Lord Goff at 171F G, 172B C, 174C D, 177F, Lord Browne Wilkinson at 196G H, 197C H, 198B C, G H, and Lord Slynn of Hadley at 199B D, 200B C, 201D E, 202G 203A, 204F H, 205A B. None of the majority in Woolwich Equitable discusses what they meant by a demand. But both the facts of the case and the reasoning of the majority show that they cannot have had in mind a formal demand by the Inland Revenue triggering a payment or an apparent obligation to pay. The facts, which are succinctly set out by Ralph Gibson LJ in the Court of Appeal (pp 104 105) show that Woolwich Equitable did not pay the composite rate tax in response to a formal demand. The inspector had simply invited it to agree figures and the collector had sent it a return form. The society sent in a return computed according to the Regulations, under cover of a letter informing them that they proposed to challenge their validity in legal proceedings. They then paid without prejudice to the outcome. As Lord Goff pointed out (at p 169) no assessment was ever made, because Woolwich pre empted it by paying. It is fair to look for the reasoning of the House of Lords mainly in the classic analysis of Lord Goff, although similar points were made by Lord Browne Wilkinson, who agreed with Lord Goff in terms and by Lord Slynn, who agreed with him in substance. It is apparent that the mischief which justified in Lord Goffs eyes a special rule for unlawful charges by public authorities was (i) that no tax should be collected without Parliamentary authority, and (ii) that citizens did not deal on equal terms with the state, and could not be expected to withhold payment when faced with the coercive powers of the Revenue, whether those powers were actually exercised or merely held in reserve: see pp. 172. At pp. 175 176, Lord Goff adopted the dissenting judgment of Wilson J in the Supreme Court of Canada in Air Canada v British Columbia (1989) 59 DLR (4th) 161. In her judgment, Wilson J had expressed the view that there was a general right to recover money paid under unconstitutional legislation, and deprecated any suggestion that it must have been paid under protest. The reason, as she pointed out at p 169, was that the legislature holds out its legislation as valid and that any loss resulting from payment under it should not fall on the totally innocent taxpayer whose only fault is that it paid what the legislature improperly said was due. The emphasis in this reasoning was on the unlawful character of the legislation, with which in practice the citizen was bound to comply even if it might subsequently be shown to be void. This approach has subsequently been adopted by the Supreme Court of Canada in Kingstreet Investments Ltd v New Brunswick (Finance) [2007] 1 SCR 3, to which I have already referred in another context. Lord Goff not only found the reasoning of Wilson J most attractive (p 176D), but expressed his own conclusions in very similar terms. In the end, he said (p 173), logic appears to demand that the right of recovery should require neither mistake nor compulsion, and that the simple fact that the tax was exacted unlawfully should prima facie be enough to require its repayment. The exaction of which he is speaking here is not confined to demands by any particular administrative agency of the state. It includes exaction by the state by enacting void legislation, which taxpayers are likely to pay because they know that the state will act on the footing that it is valid. It is not a condition of the taxpayers right of recovery that it should have put the matter to the test by waiting until the Inland Revenue insisted. In a passage at p 177 which strikingly foreshadows some of the issues in the present appeals, Lord Goff assimilated the rule of English law as he had formulated it to the absolute right of recovery recognized by the European Court of Justice in San Giorgio (Case 199/82) [1983] ECR 3595 in cases where tax was charged contrary to EU law. Although the majority of the appellate committee stopped well short of adopting a concept of absence of legal basis as a general ground of recovery even in cases of taxation without lawful authority, Lord Browne Wilkinsons analysis of the legal basis of recovery in such cases was also very similar to that of the case law of the Court of Justice. Money unlawfully demanded was recoverable because it was paid for no consideration: see p 198. The word demand as it was used in the speeches in Woolwich Equitable referred in my view simply to a situation in which payment was being required of the taxpayer without lawful authority. Nothing in the principle underlying the decision turned on the mechanism by which that requirement was communicated to the taxpayer. It is therefore a matter of supreme indifference whether it was communicated by assessment, or by some other formal mode of demand, or by proceedings for enforcement, or by the terms of the legislation itself coupled with the knowledge that the Inland Revenue would be likely to enforce it in accordance with those terms. The Marleasing point The Court of Appeal [2010] STC 1251, para 107 held that on the principle of conforming construction stated in Marleasing, section 231 of the Income and Corporation Taxes Act 1988 should be construed so as to remove the discriminatory features of the United Kingdoms advance corporation tax regime. For present purposes we must assume that they were right about this. An appeal on that issue is not before us. The right to apply for permission to appeal on it has been deferred pending the outcome of the second reference to the Court of Justice and its application by the courts below. The argument of the Test Claimants is that on the assumption that the Court of Appeals construction is correct the legislation conformed to EU law. Therefore, it is said, the principle in Woolwich Equitable is not engaged. Marleasing (Case C 106/89) [1990] ECR I 4135, at any rate as it has been applied in England, is authority for a highly muscular approach to the construction of national legislation so as to bring it into conformity with the directly effective Treaty obligations of the United Kingdom. It is no doubt correct that, however strained a conforming construction may be, and however unlikely it is to have occurred to a reasonable person reading the statute at the time, a later judicial decision to adopt a conforming construction will be deemed to declare the law retrospectively in the same way as any other judicial decision. But it does not follow that there was not, at the time, an unlawful requirement to pay the tax. It simply means that the unlawfulness consists in the exaction of the tax by the Inland Revenue, in accordance with a non conforming interpretation of what must (on this hypothesis) be deemed to be a conforming statute. This is so, notwithstanding that the tax may have been paid without anything in the nature of a formal demand by the Inland Revenue. The rule as the House of Lords formulated it in Woolwich Equitable is in large measure a response to realities of the relationship between the state and the citizen in the area of tax. The fact that as a matter of strict legal doctrine a statute turns out always to have meant something different from what it appeared to say is irrelevant to the realities of power if it was plain at the relevant time that the tax authorities would enforce the law as it then appeared to be. Strictly speaking, in Woolwich Equitable itself there were no unlawful regulations, because, being ultra vires the enabling Act, they were and always had been a nullity. But that did not stop the Woolwich from recovering. The section 32(1)(c) point Section 32(1) is (so far as relevant) in the following terms: Postponement of limitation period in case of fraud, concealment or mistake (1) where in the case of any action for which a period of limitation is prescribed by this Act, either (a) the action is based upon the fraud of the defendant; or (b) any fact relevant to the plaintiff's right of action has been deliberately concealed from him by the defendant; or (c) the action is for relief from the consequences of a mistake; the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. The argument for the Test Claimants on these appeals is that in section 32(1)(c) actions for relief from the consequences of a mistake are not confined to actions where the mistake is part of the legal foundation of the claim. They extend to at least some actions where it was merely part of the history. Mr Rabinowitz QC (who argued this point for the Test Claimants) accepted some limitations of the range of relevant mistakes. He said that there had to be a sufficient causal nexus between the mistake and the claim, in the sense that the facts constituting the cause of action have come to pass because of the mistake. It followed that although the Woolwich Equitable cause of action was available to claimants in the position of his clients regardless of whether they were mistaken or not, those who were in fact mistaken in some historically relevant respect would have benefitted from the extended limitation period until the law was changed by section 320 of the Finance Act 2004. They have been deprived without notice of that right. Section 320(6) removes any doubt about this by providing that it applies to any action or c1aim for relief from the consequences of a mistake of law, whether expressed to be brought on the ground of mistake or on some other ground (such as unlawful demand or ultra vires act). Section 32(1) of the Limitation Act 1980 substantially re enacts section 26 of the Limitation Act 1939, with one minor change to paragraph (b) (from concealment by fraud to deliberate concealment). The Act of 1939 was a notable monument of law reform, replacing an incoherent series of statutes and equitable rules by a coherent statutory scheme. It was enacted on the recommendation of the Law Revision Committee in its Fifth Interim Report (Cmd 5334), which was prepared in 1936 under the auspices of Lord Wright, then Master of the Rolls. Section 26 substantially followed the language of the report. It is clear from paragraphs 22 and 23 of the Committees report that the intention was to replicate certain features of the rules applied by courts of equity in the absence of any statutory limitation period. The equitable rules on this subject had originally been developed in the context of cases involving fraud. The doctrine of laches was applied by analogy with statutory limitation at law, save that in cases of fraud time ran from the point when the fraud was discovered or could with reasonable diligence have been discovered, and not from the accrual of the right as it did at law. It is clear that fraud was relevant in equity in two circumstances, (i) that the right to equitable relief was itself based on fraud, in the sense that fraud was a legally essential element of it, and (ii) that whether or not the right to relief was based on fraud, its existence had been concealed from the plaintiff by the fraud of the defendant. The Law Revision Committee summarised the position at paragraph 22 of their report as follows: Either the cause of action may spring from the fraud of the defendant or else the existence of a cause of action untainted in its origin by fraud may have been concealed from the plaintiff by the fraudulent conduct of the defendant. In 1936, when the Committee was considering these matters, there was inconsistent authority on the question whether since the fusion of law and equity the equitable rule about the running of time in cases of fraud applied to causes of action at law. They recommended that it should. The result was section 26(a) and (b) of the 1939 Act, corresponding to section 32(1)(a) and (b) of the 1980 Act. These two paragraphs dealt with the two circumstances in which fraud was relevant to postpone the running of time in equity, as summarised in the Committees report. As applied to fraud neither paragraph admits of the construction now proposed by the Test Claimants. Paragraph (a) is concerned with cases where the action is based upon fraud, ie where it is part of the legal foundation of the claim. Paragraph (b) is concerned with cases where fraud by the defendant is not necessarily part of the legal basis of the claim, but it has concealed the relevant facts from the claimant and thereby delayed his taking action to enforce his right. The fact that fraud, although no part of the legal basis of the claim, may have brought about the factual situation which is the legal basis of the claim, does not engage either paragraph. The reason for enacting section 26(c) of the Limitation Act 1939 (now section 32(1)(c) of the Act of 1980) was that courts of equity had previously applied the equitable rule relating to fraud by analogy to cases of mistake. As Baron Alderson put it in Brooksbank v Smith (1836) 2 Y & C Ex 58, mistake is within the same rule as fraud. The Law Revision Committee considered that in this respect the rule for mistake should be the same at law, and at paragraph 23 of their report they recommended the statutory reversal of the decision in Baker v Courage [1910] 1 KB 56, which had held that it was not. Section 26(c) of the 1939 Act was the result. On the face of it, therefore, the intention behind paragraph (c) was to replicate the rule of equity by providing that mistake should give rise to an extended limitation period in the same circumstances in which fraud had that effect under paragraph (a), namely where it was the legal basis of the claim. The use of a different phraseology in (a) and (c) (an action for relief from. instead of based upon) simply reflects the phraseology used in the Committees discussion, which was lifted verbatim from the report by the Parliamentary draftsman. There is no indication in the report itself that the difference was thought to be significant. It is fair to say that there are cases decided in equity before the Limitation Act 1939 where the court does not seem to have asked itself whether the mistake was the foundation of the cause of action. Brooksbank v Smith itself was one of them. Denys v Shuckburgh (1840) 4 Y& CEx 42, also decided by Baron Alderson, was another. In both cases, the reason for this appears to have been that Baron Alderson was trying to apply the equitable rule about fraudulent concealment (corresponding to section 31(1)(b)) by analogy to cases of mistake, by holding that a mistake on the part of the plaintiff which concealed from him his right was equivalent to the dishonest or deliberate concealment of his right by the defendant. If so, the idea was still born. Lord Wrights committee may well have had these cases in mind when it went out of its way in paragraph 23 of its report to say that they desire[d] to make it clear, however, that the mere fact that a plaintiff is ignorant of his rights is not to be a ground for the extension of time. Our recommendation only extends to cases when there is a right to relief from the consequences, of a mistake. This reservation was adopted by the draftsman of section 26 of the Limitation Act 1939 and the corresponding provision of the 1980 Act, both of which exclude from the ambit of paragraph (b) cases where the claimant was mistaken about the existence of his right. There are clearly obscurities about how the old rule in equity operated before statute intervened, attributable at least in part to the absence of analysis in the few reported cases. But there is, as it seems to me, no difficulty in ascertaining what rule the Law Revision Committee thought that it was proposing to Parliament. Nor, in my view, is there any real difficulty in understanding what Parliament must have intended by accepting that proposal when it enacted section 26(c) of the 1939 Act. The point has been directly considered only once, by Pearson J in Phillips Higgins v Harper [1954] 1 QB 411. That was an action by an assistant solicitor to enforce a term of her contract of employment which entitled her to a share of the profits of the firm for which she worked. She claimed to have been underpaid under the profits agreement for the whole 13 years of her employment. In response to a plea of limitation in respect of the early years, she contended that she had been mistaken in failing to realise that she was being underpaid, and relied on section 26(c) of the Limitation Act 1939. Pearson J rejected her argument. In his view the wording of the provision was carefully chosen to indicate a class of actions where a mistake has been made which has had certain consequences, and the plaintiff seeks to be relieved from those consequences (p 418). He gave as examples an action for the restitution of money paid in consequence of a mistake; or for the rescission or rectification of a contract on the grounds of mistake; or an action to reopen accounts settled in consequence of a mistake. Mrs. Phillips Higginss alleged mistake had no consequences relevant to her cause of action. Its only consequence was that because she was unaware that she had a cause of action she missed the limitation period. But that is not sufficient, said Pearson J; Probably provision (c) applies only where the mistake is an essential ingredient of the cause of action, so that the statement of claim sets out, or should set out the mistake and its consequences and pray for relief from those consequences (p 419). It is fair to say about this reasoning that Mrs. Phillips Higgins would have failed even on Mr Rabinowitzs construction of the Act, because the mistake that she alleged was not the cause of the factual situation which she relied on for her claim. It only explained why she had allowed so long to pass before bringing her action. But what matters for present purposes is that her argument failed because her action was an action for relief from a breach of contract, to which the fact that she was mistaken was legally irrelevant. As Pearson J went on to point out, No doubt it was intended to be a narrow provision, because any wider provision would have opened too wide a door of escape from the general principle of limitation. I think that it is difficult to fault Pearson Js succinct and principled analysis of the point. Section 32(1)(c) refers to a type of action and a type of relief. They are assumed to be organically related to the relevant mistake. But if the Test Claimants are right, there is no organic connection, but only an adventitious one. The result would be a state of the law that would operate quite arbitrarily. Some Woolwich Equitable claims would benefit from the extended limitation period while others would not, depending on whether the underlying facts arose from a mistake. I can see no principled ground for making such a distinction in a context where the mistake has no bearing on the nature of the action or the relief claimed. It has been suggested by academic commentators that this result may be anomalous, in that the extended period of limitation applies to a claim to recover a mistaken overpayment of a debt but not to a claim to recover a mistaken underpayment. Pearson J himself drew attention to this in his judgment in Phillips Higgins at p 419. But for my part, I do not see the anomaly. The difference simply arises from the fact that if the claimant is underpaid and sues for the balance, he is enforcing the obligation that gave rise to the debt, whereas if he is overpaid then that obligation will have been discharged, so that he needs some other legal basis for getting it back. By comparison, there are far graver anomalies associated with the wider construction proposed by the Test Claimants. Once one departs from a construction of the subsection which requires the cause of action to be founded on the mistake, it is difficult to discern any principled limit to the reach of this provision. Mr Rabinovitz distinguishes between cases where the mistake, albeit legally irrelevant, was an effective cause of the facts giving rise to the claim and cases where it was merely a background fact. I find this distinction conceptually difficult to grasp and almost impossible to apply. Questions of causation are notoriously difficult and highly sensitive to the legal context in which they fall to be answered. Where parties have fallen out, there is very likely to be mistake on the part of the claimant somewhere in the chain of events that led to his losing money or property. If at some stage he could have done something to save himself from loss, in what circumstances is that to be a sufficient causal nexus between the legally irrelevant mistake and the legally relevant facts which give rise to the claim? The question will often be incapable of a clear answer. Moreover, if the test is not to depend on whether the claimant is asserting one of the established grounds of relief from the consequences of his mistake, and depends on the mere fact that a mistake has brought about the situation in which he has a claim, then there is nothing in the language or purpose of the provision which would limit it to his own mistakes. It could be the defendants mistake against whose consequences the plaintiff is seeking to be relieved, for example by an action for damages. This would mean that section 26(c) of the Limitation Act 1939 unwittingly covered at least part of the ground which Parliament later covered by providing an extended limitation period for actions for damages for negligence or in respect of personal injuries and certain categories of property damage: see sections 11 to 14B of the Limitation Act 1980. Mr Rabinowitz disclaimed any suggestion that the extended limitation period would apply to a claim for damages, with the possible exception of damages for misrepresentation or negligent mis statement. This was no doubt tactically wise. But it is hard to see how such a restriction can be justified if his basic submission is accepted. The difficulties associated with the claimants construction of section 32(1)(c) persuade me that Lord Wright is unlikely to have proposed such an indefinite rule without any discussion of these problems, and that Parliament is unlikely to have intended to enact it. In an ideal world, all rules of law would be clear, but there are few areas where clarity is as important as it is in the law of limitation, whose whole object is to foreclose argument on what ought to be well defined categories of ancient dispute. Mistake It follows that the principle in Woolwich Equitable applies generally in all cases where tax has been charged unlawfully, whether by the legislature or by the tax authorities, whether by overt threats or demands or simply by the taxpayers appreciation of the consequences of not paying, and whether the taxpayer was mistaken or not. By comparison, an action for restitution on the ground of mistake is a more limited remedy, for the obvious reason that it is necessary to prove the mistake. That will not always be easy, as the facts of Woolwich Equitable itself demonstrate. On the face of it, the only case where the Woolwich Equitable cause of action is probably not available and where a claimant may therefore need a right of restitution for mistake, is the case where there is no unlawful exaction of tax but the taxpayer has simply paid in error: e.g. he has miscalculated his liability under a self assessed tax or accidentally paid twice. But that has no bearing on the position of the present claimants. Does this mean that that the existence of the Woolwich Equitable cause of action in English law is enough to satisfy the obligations of the United Kingdom in EU law? The Test Claimants submit that it does not. Their case is that notwithstanding the sufficiency of a Woolwich Equitable claim as a means of recovering unlawfully charged tax, at least in the circumstances of the present case, EU law requires that English law should also maintain a fully effective cause of action to recover tax paid by mistake. Two quite different arguments are advanced in support of this proposition. The first is that EU law specifically requires that national legal systems should provide for the recovery of overpaid taxes in all cases where they were not due, including the one case where the principle in Woolwich Equitable probably has no application, viz where there is no breach of EU law by the state but the taxpayer has simply overpaid by mistake. I shall call this the absence of basis point. The second argument is that even if EU law does not specifically require national law to confer a right to recover taxes overpaid on the ground of mistake, if national law allows a choice between two causes of action to recover the tax, each of them must be independently effective. I shall call this the choice of remedies point. The absence of basis point The Test Claimants argument is that the obligation of a member state to provide an effective means of recovering overpaid taxes is not limited to cases where the state was in breach of EU law. It also applies in cases where the national law entirely conformed with EU law but the claimant paid more than the law required of him. This, they submitted, reflected the principle of restitution applied in EU law and in most civil law jurisdictions (but not England) that a payment is recoverable merely on account of the absence of a legal basis for making it: see Masdar (UK) Ltd v Commission of the European Communities (Case C 47/07) [2008] ECR I 9761, paras 44 46, 49. In Reemtsma Cigarettenfabriken GmbH v Ministero delle Finanze (Case C35/05) [2007] ECR I 2425 a German company purchased services from an Italian advertising agency and paid VAT to them which was not due. There was nothing wrong with the relevant provisions of Italian law for charging and collecting the tax, which in the relevant respects entirely conformed with the Directives. The Italian tax authorities had charged no tax unlawfully. All that happened was that the German purchaser received an invoice from the Italian supplier for the VAT and paid it, not appreciating that the relevant services were by law deemed to have been supplied in Germany. The supplier then accounted for the tax to the Italian tax administration. There was no provision of the two relevant VAT Directives requiring a refund to be made in these circumstances, but it was held that the principle of effectiveness required Italy to make available an effective means of recovering sums paid but not due, either from the Italian supplier or from the state. Mr Aaronson QC argued that the juridical basis for the obligation to repay overpaid tax in these circumstances was the mere absence of a legal basis for the original payment. I think that he may well be right about that. But the reason for the decision was that VAT is an EU tax whose incidence and administration is governed by mandatory requirements of EU law. The purpose of the VAT Directives is to produce a harmonized system operating according to uniform rules across the EU. The payment of VAT otherwise than in accordance with that scheme distorts its uniform operation. The point was made in Danfoss AS and Sauer Danfoss ApS v Skatteministeriet (Case C 94/10), 20 October 2011, where a similar result was arrived at in the context of the common EU scheme for taxing mineral oils. In its judgment in that case, the court observed (para 23) that the purpose of a right of recovery in a harmonized tax scheme is not only compensatory but economic. The right to the recovery of sums unduly paid helps to offset the consequences of the duty's incompatibility with EU law by neutralising the economic burden which that duty has unduly imposed on the operator who, in the final analysis, has actually borne it. In those circumstances, a right of action to recover money paid but not due is required so that the economic burden of the duty unduly paid can be neutralised (para 25). If this issue were to arise in England in the context of an EU tax, the case would be classified in English law as one of mistake and recovery could probably be had on no other basis. But where the relevant tax is wholly a creature of national law, and no tax has been charged in breach of EU law, EU law is not engaged at all. The choice of remedies point This point is at the heart of the division of opinion within this court. The Test Claimants argue, and the majority agrees, that the principle of effectiveness in EU law requires that all remedies which are available to recover the tax should be independently effective for that purpose. Therefore, so the argument goes, it was not open to the United Kingdom to compromise the effectiveness of the right to recover on the ground of mistake by curtailing the limitation period for that right without a period of grace. In argument, this point was founded mainly on the decision of the European Court of Justice in Rewe Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (Case 158/80) [1982] 1 CMLR 449 (Rewe II). This was another case about VAT and excise duty chargeable under the terms of a Directive. It concerned not an unlawful charging of tax, but an unlawful exemption from tax. The claimants were companies operating supermarkets in German coastal towns, who were adversely affected by tax free sales made in international waters during shopping cruises in the Baltic which began and ended in Germany. Under the terms of the Directives, a limited exemption was allowed for goods coming from member states in the personal luggage of travellers, but German law allowed an exemption of its own which was in some respects wider. The Court of Justice held that the exemption in the Directive was not available for sales made on shopping cruises beginning and ending in the same member state, that the tax ought to have been charged, that the incidence of VAT and excise duty was an occupied field governed exclusively by Community law, and that Germany had accordingly had no power to grant further exemptions of its own. The relevant question for present purposes concerned the remedies available to rival traders against the cruise operators. German law allowed a right of action to those adversely affected by breaches of national laws regulating economic activity. At para 40 of its judgment, the Court of Justice referred to this German right of action and then summarised the question at issue as follows: Placed in that context, the questions raised by the national court are intended in substance to establish whether that right of action may be exercised in similar conditions within the framework of the Community legal system in particular in the sense that if the economic interests of a person to whom Community law applies are adversely affected by the non application of a Community provision to a third party, either through the action of a member state or of the Community authorities, that person may institute proceedings before the courts of a member state in order to compel the national authorities to apply the provisions in question or to refrain from infringing them. The courts answer to that question appears at para 44 of the judgment: it must be remarked first of all that, although the Treaty has made it possible in a number of instances for private persons to bring a direct action, where appropriate, before the Court of Justice, it was not intended to create new remedies in the national courts to ensure the observance of Community law other than those already laid down by national law. On the other hand, the system of legal protection established by the Treaty, as set out in article 177 in particular, implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect, on the same conditions concerning the admissibility and procedure as would apply were it a question of ensuring observance of national law. In their printed case (paragraph 67) the Test Claimants rely on this statement of principle, and in particular the passage which I have italicised, as authority for the proposition that EU law requires a right to choose from the range of national remedies. Of course the Test Claimants do have a right to choose either or both of a Woolwich Equitable claim or a claim based on mistake. Neither of the Acts of 2004 and 2007 took it away from them. Their real complaint is not that the right to claim on the basis of mistake of law has been withdrawn, but that the law has been changed to make it subject to a period of limitation running from the date of payment in the same way as the limitation period for a Woolwich Equitable claim. The argument, as it was developed at the hearing, was that even on the footing that a Woolwich Equitable cause of action was enough and that the United Kingdom was not obliged to confer an additional right to recover tax paid by mistake subject to an extended limitation period, since it has chosen to do so, the principle of effectiveness requires that that right with its extended limitation period should remain available for the purpose of recovering tax charged contrary to EU law. This submission is accepted by the majority on the present appeal. I regret that I am unable to accept it for three reasons. First, the argument is not supported by either the decision or the reasoning in Rewe II, nor by the many subsequent cases in which the relevant statement has been cited. Rewe II was concerned with the principle of equivalence, as the language and the legal context show. The issue was whether Germany was bound to make a right of action derived from economic regulation under its national law available to litigants who wanted to enforce comparable rights derived from economic regulation under Community law. What the court was saying was that any cause of action available to enforce a national law right must be equally available to enforce a corresponding Community law right. Provided that there remains an effective remedy, it does not follow from this that national law is bound to maintain that cause of action subject to unchanged incidents or conditions. Nothing was said in Rewe II about protecting the choice of litigants between concurrent national law rights or remedies. The question did not arise because the Court of Justice was considering the only German law remedy which appeared to exist. Second, the Test Claimants submission is inconsistent with the established case law of the Court of Justice. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951 and Ministero delle Finanze v SPAC (Case C 260/96) [1998] ECR I 4997, para 32, the facts were that in breach of a Directive which prohibited taxes on the raising of capital, Italy had charged fees for registering companies. The general limitation period under the Civil Code was ten years, but the decree law authorizing the registration fees provided (and always had provided) for their repayment within three years if they had been wrongly charged. The Italian courts had held that as a matter of domestic law, the effect of the creation of a specific right to repayment within three years under the decree law was to displace the general right conferred by the Civil Code to claim restitution on the ground of absence of basis within ten years. One of the questions referred was whether Italy was bound to make available the cause of action with the more generous limitation period for the purpose of giving effect to EU law rights. The court held that it was not. Provided that the right of action carrying the more restrictive limitation period was effective and applied without discrimination whether the claim to repayment was based on EU or national law, there was no obligation to provide in addition a right of action under the Civil Code with a more generous limitation period. In Edilizia Industriale Siderurgica Srl v Ministero delle Finanze, the court said: 36. Observance of the principle of equivalence implies, for its part, that the procedural rule at issue applies without distinction to actions alleging infringements of Community law and to those alleging infringements of national law, with respect to the same kind of charges or dues (see, to that effect, Amministrazione delle Finanze dello Stato v Salumi (Joined Cases 66/79, 127/79 and 128/79) [1980] ECR 1237, para 21. That principle cannot, however, be interpreted as obliging a member state to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied in breach of Community law. 37. Thus, Community law does not preclude the legislation of a member state from laying down, alongside a limitation period applicable under the ordinary law to actions between private individuals for the recovery of sums paid but not due, special detailed rules, which are less favourable, governing claims and legal proceedings to challenge the imposition of charges and other levies. The position would be different only if those detailed rules applied solely to actions based on Community law for the repayment of such charges or levies. The same observations were made in Ministero delle Finanze v SPAC SpA, at paras 20 and 21. They were later repeated and applied in Aprile II and Dilexport, where the facts were very similar (see paras 151 152 above) but the question arose from a change in the law. Third, the Test Claimants argument is contrary to principle. The starting point for any analysis of the law in this area is that, subject to the principles of effectiveness and equivalence, it is for national law to determine what remedies are available to enforce a directly effective EU right and on what procedural or other conditions. I have made this point already: see paragraph 145 above. The right of the claimants to choose from the range of causes of action recognised by English law is a right derived solely from English procedural law and it exists only to the extent that English law so provides. So long as the principles of effectiveness and equivalence are respected, a choice between concurrent national law remedies need not exist, and in some member states does not exist, at any rate to the same extent. Thus English law allows a claimant to choose between concurrent rights of action in contract and tort, a principle which was applied by analogy in Deutsche Morgan Grenfell [2007] 1 AC 558 to allow a choice between concurrent rights to recover under the Woolwich Equitable principle and on the ground of mistake. French law, by comparison, is more prescriptive. The principle of non cumul des responsabilits, which excludes delictual claims which fall naturally within the scope of a contract is generally thought to reflect a more general juristic preference for keeping legal categories distinct and allowing claims to be brought in the category to which their subject matter is appropriate. The same approach appears to lie behind the restriction of claims under the general doctrine of unjust enrichment (enrichissmement sans cause lgitime) to cases where no other action is available: Flour, Aubert et Savaux, Droit civil, Les obligations, 2 Le fait juridique, 11th ed. (2011), 57 64. I can see no principled reason why EU law should wish to control these divergent features of national legal systems, provided that the choice which the relevant law mandates and the conditions on which it does so are non discriminatory and effective to vindicate EU rights. The protection of legitimate expectations: Finance Act 2004, section 320 I have already analysed the case law of the Court of Justice on the retrospective curtailment of limitation periods for the exercise of directly effective EU law rights. It establishes, first, that the retrospective curtailment of a limitation period is not necessarily inconsistent with the principle of effectiveness; and, secondly, that the combined effect of the principle of effectiveness and the principle of the protection of legitimate expectations is to preclude national legislatures from retrospectively curtailing the limitation period applicable to the recovery of overcharged tax, unless there is a sufficient period of grace to enable actual and potential claimants to safeguard their existing rights. However, it is important to note that in every case in which these principles have been considered by the Court of Justice, the amending legislation curtailed the limitation period for the only right available in national law for recovering the tax. In none of them was there an effective right of recovery on another legal basis, unaffected by the amendment. The observations of the Advocate General and the court, especially those made in Marks & Spencer must be read in that light. The primary case put forward on behalf of the Commissioners is that because (i) English law would be compatible with EU law if the only means of recovering the overpaid tax was a claim on a Woolwich Equitable basis, and (ii) the Finance Act 2004 did not affect a claim on that basis, it follows that the principles of effectiveness and the protection of legitimate expectations are not engaged at all. In common with every other member of the court, I reject that submission. The reason is that if, as I have sought to demonstrate (i) a right to claim on the principle in Woolwich Equitable with a normal limitation period is an effective means of asserting the Test Claimants EU law right, and (ii) there is no obligation on the United Kingdom in EU law to maintain a concurrent right to claim on the basis of mistake with an extended limitation period, then logically there still remains one complaint that might arguably be made about section 320 of the Finance Act 2004. That complaint is that before the intention to legislate was announced potential claimants were entitled to make their plans on the assumption that they could recover the overpaid tax on the ground of mistake with the benefit of an extended limitation period, but their right to do so was then curtailed without notice or transitional provisions. I think that this complaint depends on the principle of the protection of legitimate expectations, whereas Lord Walker and Lord Reed consider that it can be justified on the basis of the principle of effectiveness alone. I doubt whether this difference matters. In either case, the force of the complaint depends entirely on the proposition that reasonable persons in their position could have made their plans on that assumption. Could they? I think not. If English law had never recognised a right to recover tax on the ground of mistake of law, but only on the basis of the principle in Woolwich Equitable, it is not disputed that that state of affairs would have satisfied the requirements of EU law. If Parliament had retrospectively created a concurrent right to recover tax on the ground of mistake of law, but in the same enactment made it subject it to a limitation period of six years to run from the time of payment, it is not disputed that that state of affairs would also have satisfied the requirements of EU law. The question whether the right to recover money paid under a mistake of law extended to mistaken payments of tax was a difficult question. There were powerful voices raised in favour, such as that of Professor Birks, but also strong and principled arguments against. I have dealt with this matter at paragraphs 166 168 above. Before Park J gave judgment in Deutsche Morgan Grenfell [2003] 4 All ER 645 on 18 July 2003, no one could reasonably have counted on being able to recover tax on the ground of mistake of law. They might have thought that there were strong arguments to that effect, but I do not believe that they could reasonably have assumed when deciding how long they had in which to bring their claims that those arguments would prevail. Even after Park Js judgment, the right to recover tax on the ground of mistake of law was being challenged on appeal on serious grounds. The existence of such a right was rejected by the Court of Appeal [2006] Ch 243 and was not definitively established until the judgment of the House of Lords [2007] 1 AC 558 on 25 October 2006. In a common law system, it is open to the courts to create new causes of action, but limitation is necessarily a matter for the legislature. On 8 September 2003, just seven weeks after the decision of Park J, the government announced its intention to introduce what became section 320 of the Finance Act 2004, with its provision that the limitation period for the newly recognised claim to recover tax on the ground of mistake of law should run from the date of payment and not from the date of discovery. I find it impossible to regard that sequence of events as any different in substance from the situation that would have existed if Parliament had simultaneously created a right to recover tax for mistake of law and subjected it to a limitation period running from the date of payment. If potential claimants in the position of the present appellants claim to have been entitled to count on being able to recover on the ground of mistake of law with an extended limitation period, then the highest that they can put their case is that they were entitled to do so in the seven week interval between 18 July and 8 September 2003. Bearing in mind the brevity of the interval, the virtual certainty of an appeal and the uncertainty about its outcome, the argument that they had a legitimate expectation of the kind suggested seems to me to be unrealistic. In my judgment, section 320 of the Finance Act 2004 was not inconsistent with the protection of legitimate expectations. All that Parliament did was to provide for the limitation period applicable to a cause of action which English law had only just recognised. This was a lawful exercise by Parliament of the discretion allowed to member states as to the conditions regarding limitation on which any national law right is be available. The contrary view of the majority depends on the declaratory theory of judgments. It proceeds upon the basis that when Park J and then the House of Lords held in Deutsche Morgan Grenfell that there was a right to recover tax on the basis of mistake, they were declaring the law as it had always been. At a purely formal level, this proposition is undoubtedly correct. Judgments of the courts about the common law are deemed to be declaratory and not legislative. But we are, I think, in danger of allowing the form to overlay the substance. In Deutsche Morgan Grenfell, at p 570, Lord Hoffmann distinguished between two questions raised by the declaratory theory of judgments: One is whether judges change the law or merely declare what it has always been. The answer to this question is clear enough. To say that they never change the law is a fiction and to base any practical decision upon such a fiction would indeed be abstract juridical correctitude. But the other question is whether a judicial decision changes the law retrospectively and here the answer is equally clear. It does. It has the immediate practical consequence that the unsuccessful party loses, notwithstanding that, in the nature of things, the relevant events occurred before the court had changed the law: see In re Spectrum Plus Ltd [2005] 2 AC 680. There is nothing abstract about this rule. In my judgment, it is the first of Lord Hoffmanns propositions which is relevant for present purposes. The question is not whether the law must be treated as always having been as Park J and the House of Lords declared it to be. It is whether before those judgments were delivered a litigant could reasonably count on being able to recover the overpaid tax on the ground of mistake (with an extended period of limitation), as opposed to being limited to the already established remedy under the Woolwich Equitable principle (with a normal period of limitation). The question must in my judgment be put in this way, because the issue is whether there is an assumption reasonably to be imputed to litigants about how long they had in which to bring their claim, which was then retrospectively falsified by Parliament. The answer to the question cannot depend on any legal fiction. It must depend on the position as it appeared to stand, before those judgments were given. This must in particular be true when one is seeking to apply to the relevant English law principles of EU law which have always depended on substance rather than form. The reality is that the Test Claimants never were in a position to make their plans on the footing that they had a right of action for mistake until at the very earliest the judgment of Park J, but more realistically until the matter was definitively settled by the House of Lords in 2006. It is right to point out that this is substantially the same principle as that on which the Test Claimants themselves rely when they say (with the support of the House of Lords in Deutsche Morgan Grenfell) that they cannot be taken to have discovered their mistake about the lawfulness of the United Kingdoms corporation tax regime until the European Court of Justice definitively decided the point. By the same token, the Test Claimants cannot be taken to have assumed that they had a right to recover the tax on the ground of mistake at a stage when they had arguments and hopes but no definitive decision. The protection of legitimate expectations: Finance Act 2007, section 107 As I have already indicated, I regard this provision as more problematic. It was announced on 6 December 2006, more than three years after the announcement which preceded section 320 of the Act of 2004. It went a great deal further than the earlier enactment, since it applied retrospectively without limit of time to any action brought before the first announcement had been made on 8 September 2003. It might be said that the announcement of 2006 was a response to the decision of the House of Lords in Deutsche Morgan Grenfell and that the interval between judgment and announcement was no greater than it had been in 2003. But the circumstances were different. Companies in the position of the British American Tobacco group who had already brought their actions before the announcement of 8 September 2003 had been expressly excluded from the operation of the legislation proposed on that date. That exclusion was duly contained in section 320 of the Finance Act 2004. The British American Tobacco group and other companies in the same position had been pursuing their claims through the English courts and the Court of Justice on that basis since 2003, when their right to the fruits of those proceedings was removed in 2006. In my view, while they had had no legitimate expectation of being able to bring an action to recover on the ground of mistake of law in 2003, they had acquired such an expectation by 2006, not least as a result of the terms of the announcement of September 2003 and the 2004 Act. It was therefore contrary to the principle of the protection of legitimate expectations, for that expectation to be defeated without notice of transitional provisions. Section 33 of the Taxes Management Act 1970 This provision applies only to assessed taxes, and therefore only to a very small part of the present claims. It confers a right subject to highly restrictive conditions to invoke what is essentially a discretionary power of the Commissioners to grant a refund of overpaid tax. No one suggests on this appeal that such a limited remedy could possibly be enough in itself to satisfy the virtually unqualified obligation of the United Kingdom to provide an effective means of recovering tax overcharged contrary to EU law. This does not of course matter if it is an additional remedy as opposed to an exclusive one. There is certainly nothing in the provision which expressly excludes the availability of other causes of action at common law. If that is its effect, it must be by implication. In the ordinary way, such an exclusion might be implied, on the ground that where Parliament confers a restricted right of recovery, that must impliedly displace a corresponding right at common law which would be unrestricted. However, it is axiomatic that the courts cannot imply an exclusion of unrestricted rights of action at common law where that would be inconsistent with an overriding rule of EU law that an unrestricted right must be available. Section 33 cannot therefore be an exclusive right to recover tax overcharged contrary to EU law. Whether it is an exclusive right in other circumstances, is not a point which needs to be considered on this appeal. The Court of Appeal held that section 33 did impliedly exclude a right of action at common law, even in relation to claims for tax overcharged contrary to EU law. They then dealt with the resulting inconsistency with EU law by reinterpreting the section so as remove the offending restrictions and the element of discretion. I think that this was wrong in principle. I very much doubt whether such radical surgery can be justified even under the extended principles of construction authorised in Marleasing. Its effect would be fundamentally to alter the scheme of the provision. But, however that may be, it seems, with respect, eccentric to imply an ambit for section 33 which is inconsistent with EU law and then to torture the express provisions so as to deal with anomalies that but for the implication would never have arisen. The damages claims In addition to their claims in restitution, the claimants have claims against the Commissioners in damages on the principle of state liability adopted by the European Court of Justice in Francovich v Italian Republic (Cases C 6 and 9/90) [1995] ICR 722. This cause of action is subject to a number of conditions, one of which is that the breach should be sufficiently serious, ie should involve a grave and manifest disregard of the limits of the member states discretion: see Brasserie du Pecheur SA v Federal Republic of Germany (Joined Cases C 46/93 and C 48/93) [1996] QB 404. Both courts below have dismissed the claim for damages on the ground that that condition is not satisfied. That may explain why, although the issues before us were formulated so as to cover their implications for the damages claim also, the argument focused exclusively on the claim for restitution. In fact, the damages claims do not call for separate consideration because neither section 320 of the Finance Act 2004 nor section 107 of the Finance Act 2007 applied to those claims unless they fall within section 32(1)(c) of the Limitation Act 1980. It follows from the construction that I would give to that provision that they do not fall within it. It is not suggested that section 33 of the Taxes Management Act 1970 has any bearing on a claim for damages on the principle of state liability. Conclusion In the result, I would (1) affirm the decision of the Court of Appeal on the requirements of the cause of action based on Woolwich Equitable and the absence of any requirement for an additional remedy in mistake (Issue 12 in their numbering); (2) affirm their decision on the effect of section 32(1)(c) of the Limitation Act 1980) (Issue 22); (3) allow the appeal on section 107 of the Finance Act 2007 (Issues 20 (4) allow the appeal on section 33 of the Taxes Management Act 1970 and 21); and (Issue 23). The question whether section 320 of the Finance Act 2004 is compatible with EU law cannot be decided without a reference to the Court of Justice. It is plain from the novelty of the circumstances in which it arises, and from the differences of opinion within the court that it is not acte clair. I would, however, limit the reference to section 320 of the 2004 Act. LORD REED Lord Walker and Lord Sumption have expressed different views about the way in which EU law applies to the grounds of action available to the test claimants for the recovery of taxes which were levied contrary to EU law, and in particular about the way in which EU law applies to legislation which shortened, retroactively and without transitional provisions, the limitation period applicable to one of those grounds of action. In my opinion, Lord Walkers analysis of the compatibility of section 320 of the Finance Act 2004 and section 107 of the Finance Act 2007 with the principle of effectiveness, and of the compatibility of the latter provision with the principle of the protection of legitimate expectations, is consistent with the relevant case law of the Court of Justice of the European Union. I agree with his reasoning and conclusions in relation to those issues, as well as in relation to the issues of domestic law before the court. For my part, in agreement with Lord Hope and Lord Clarke, I am inclined to the view that section 320 of the 2004 Act also infringes the principle of the protection of legitimate expectations. I add some observations of my own in relation to the issues of EU law only because of the importance of those issues and the division of opinion in the court. It is perhaps unusual to discuss EU law in such detail when the matter is to be referred to the Court of Justice, but in the present case the issues of EU law and domestic law are closely inter related. The difficulties in this case arise partly from the fact that the relevant principles of English law have been in the course of development during much of the relevant period of time. The principal milestones along the road are three decisions of the House of Lords. First, in 1992 the House of Lords held that a taxpayer was entitled to recover taxes paid in response to an unlawful demand: Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70. Secondly, in 1998 the House of Lords held that money paid under a mistake of law was recoverable: Kleinwort Benson Ltd v Lincoln City Council [1999] 2 AC 349. Thirdly, in 2006 the House of Lords held that the latter principle applied to taxes paid under a mistake of law, including taxes paid in ignorance of the fact that the legislation under which they were levied was incompatible with EU law: Deutsche Morgan Grenfell Group plc v Inland Revenue Comrs [2007] 1 AC 558 (DMG). Two other important matters were also decided in that case. The first concerned the limitation period applicable to the claim. In terms of section 32(1)(c) of the Limitation Act 1980, that period would not begin to run until the mistake was discovered, or could with reasonable diligence have been discovered. The House of Lords held that, in the circumstances of the case, the mistake could not be discovered until the incompatibility of the tax with EU law had been established by a judgment of the Court of Justice. The second matter was that the fact that the taxpayer might have a concurrent ground of action under the Woolwich principle, which was subject to a limitation period running from the date of the payment, did not prevent it from pursuing its claim on the ground of mistake if the extended limitation period best suited its interests. Finally, in its present decision this court has held that a taxpayer who pays taxes in compliance with legislation which is incompatible with EU law has a ground of action under the Woolwich principle, in addition to any ground of action which may be available on the basis of mistake. The legislative provisions with which we are now concerned alter the limitation period applicable to claims for the repayment of taxes on the ground of mistake, so that it runs from the date when the payment was made, rather than the date when the mistake was discovered or could reasonably have been discovered. The first provision with which we are concerned, section 320 of the Finance Act 2004, applies to claims which were made on or after 8 September 2003. The second provision, section 107 of the Finance Act 2007, applies to claims made before that date. The claims with which we are concerned were made on 18 June 2003, in the case of the BAT group claimants, and on 8 September 2003, in the case of the Aegis group claimants. They were based on both grounds of action. The principal issue we have to determine is whether the application of the legislation to the claims is compatible with EU law. In considering that issue, there appear to me to be three central questions, which can at this stage be broadly stated as follows. The first is whether the ground of action enabling taxes levied in breach of EU law to be recovered on the basis of mistake falls within the ambit of the EU principle of effectiveness. It is argued that it does not, since the ground of action based on an unlawful demand in itself fully satisfies the requirement of EU law that there should be an effective remedy. Since no additional remedy is required by the principle of effectiveness, it follows, so the argument runs, that the additional ground of action which English law provides, based on mistake, falls outside the scope of that principle. I disagree. As I shall explain, it appears to me that the EU principle of equivalence, which is the complement of the principle of effectiveness, applies to the grounds of action available for the recovery of taxes in domestic law. Where an action for the recovery of taxes under domestic law can be based either on the ground of mistake or on the ground of unlawful demand (or, as in the present case, on both grounds), it follows from the principle of equivalence that both grounds of action should also be available in similar circumstances to enforce an analogous right under EU law. So long as they must both be available, they must also both be effective. The principle of effectiveness therefore applies to both grounds of action. The second question, which arises only if the first question is answered in the affirmative, is whether the application of section 320 of the 2004 Act to the Aegis claims, and of section 107 of the 2007 Act to the BAT claims, is compatible with the principle of effectiveness. As I shall explain, I consider that it is not compatible in either case, since the retroactive curtailment of the limitation period and the absence of any transitional provisions rendered impossible in practice the exercise of rights derived from EU law. If that is correct, it follows that the legislation cannot be relied upon against the claimants, whatever the answer to the third question may be. The third question is whether the application of the legislation to these claims is compatible with the EU principle of the protection of legitimate expectations. That is a question which arises even if the first question is answered in the negative, since the procedural rules laid down by domestic law for the enforcement of rights derived from EU law must be in conformity with the general principles of EU law, including the general principle requiring the protection of legitimate expectations. The answer to the third question is however of no practical significance if the first two questions are answered as I would answer them. In the event, we are all agreed that the application of section 107 of the 2007 Act to the BAT claims is incompatible with the protection of the BAT claimants legitimate expectations. In agreement with Lord Hope and Lord Clarke, I have also reached the same provisional conclusion in respect of the application of section 320 of the 2004 Act to the Aegis claims, for reasons which I shall explain. It might be argued that a fourth question also arises on the facts of these cases: namely, whether the application of the legislation in issue to these claims would be compatible with the rights recognised in the Charter of Fundamental Rights of the European Union (OJ 2000 C 364, p 1) (notably in article 47), to which effect is given by article 6(1) of the Treaty on European Union (TEU), or with the fundamental rights recognised by article 6(3) TEU, including in particular the right of access to a court, guaranteed by article 6(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and the right to the peaceful enjoyment of possessions, guaranteed by Article 1 of the First Protocol to the Convention. That question however goes beyond the ambit of the dispute as defined by the parties, and it raises issues on which the court has not been addressed. In those circumstances it would not be appropriate for the court to consider that question of its own motion. My answers to the first three questions in any event produce a result which is not incompatible with the fundamental rights just mentioned. I turn now to consider in greater detail the three questions which I have identified. The mistake ground of action and the principles of equivalence and effectiveness Under the principle of cooperation laid down in article 4(3) TEU, it is for the member states to ensure the effective judicial protection of an individuals rights under EU law: see, for example, Unibet (London) Ltd v Justitiekanslern (Case C 432/05) [2008] All ER (EC) 453, paras 37 44. In particular, in the absence of EU rules governing the matter, it is for the domestic legal system of each member state to lay down the procedural rules governing actions for safeguarding rights which individuals derive from EU law. In a case such as the present, it may seem idiosyncratic to describe the grounds of action available under domestic law as procedural rules, but that description reflects the distinction drawn in the case law of the Court of Justice between the right derived from EU law and the national law by means of which effect is given to that right, which may govern such matters as the procedure to be followed, the period within which claims must be made, and the proof of such claims. That general approach applies to the right to recover the taxes in issue in the present case, to the extent that they were levied in breach of EU law: see the judgment of the Grand Chamber on the first reference in these proceedings, Test Claimants in the FII Group Litigation v Inland Revenue Comrs (Case C 446/04) [2006] ECR I 11814, para 203. As the Grand Chamber stated, the procedural rules laid down by domestic law must comply with two conditions. First, they must not be less favourable than those governing similar domestic actions. That is the principle of equivalence. Secondly, they must not render virtually impossible or excessively difficult the exercise of rights conferred by EU law. That is the principle of effectiveness. Equivalence and effectiveness are complementary requirements. For the purpose of applying the principle of equivalence, a claim for the recovery of taxes levied by a member state in breach of EU law is similar to a claim for the restitution of taxes unlawfully levied under domestic law. In England and Wales, the rules laid down by domestic law governing such claims are in large part rules of common law. The procedure laid down by section 33 of the Taxes Management Act 1970 is an exception. For the reasons given by Lord Walker and Lord Sumption, however, that statutory procedure is not applicable in the circumstances of this case. The relevant rules of common law include those laid down by the House of Lords in the three cases which I have mentioned Woolwich, Kleinwort Benson and DMG and by this court in the present case. In particular, as I have explained, it was held in the DMG case that a person who had mistakenly paid taxes which had been levied in breach of EU law had a ground of action based upon the fact that the payment had been made under a mistake: that is to say, the ground of action whose general nature was established in Kleinwort Benson. The present decision holds that such a person also has a ground of action based upon the fact that the payment was made in compliance with legislation which was incompatible with EU law: that is to say, the ground of action whose general nature was established in Woolwich. The two grounds of action are in some respects subject to different rules, and in consequence one or the other may be more suitable to a claimant, depending upon the circumstances. For example, apart from the legislation in issue in the present case, the two grounds of action are subject to different limitation periods. There may be other differences. In the present case, as I have explained, the claims are based upon both the mistake ground of action and the unlawful demand ground of action. Where both these grounds of action are available for the recovery of taxes which have been levied in breach of domestic law, and a person seeking to recover such taxes can choose to base his claim upon whichever ground of action best suits his interests, it follows from the principle of equivalence that the same grounds of action, and the same freedom of choice, must equally be available in analogous circumstances to a person seeking to recover taxes which have been levied in breach of EU law: otherwise, claims based on EU law would be less favourably treated than similar claims based on domestic law. As the Court of Justice stated in Rewe Handelsgesellschaft Nord mbH v Hauptzollamt Kiel (Case 158/80) [1981] ECR 1805, para 44, the system of legal protection established by the Treaties implies that it must be possible for every type of action provided for by national law to be available for the purpose of ensuring observance of Community provisions having direct effect (emphasis added). It might however be argued that a complication arises from the fact that it had not been definitively decided at the time when the claims were made, or at the time when the legislation was enacted, that those grounds of action were available for the bringing of claims such as those with which the present proceedings are concerned. Does that make a difference to the way in which the principle of equivalence applies? In my view it does not. The decision of the House of Lords in DMG, confirming the soundness of a claim to the repayment of unlawfully levied tax on the basis of a mistake in law, was in no sense prospective only. The decision of this court in the present case, confirming that claims to the repayment of unlawfully levied tax can be made on the basis of the Woolwich principle even in the absence of a formal demand, has similarly determined what the law was at the time when the claims were made. Although each of those decisions determined a question of law which was previously contestable, and can therefore be said to have involved a development of the law, they cannot be equiparated to legislation: such decisions actually, and not merely formally, declare the law that is applicable to the case before the court and all other comparable cases. As Lord Goff of Chieveley explained in Kleinwort Benson at pp 378 379, the declaratory theory of judicial decision is not an aberration of the common law, but reflects the nature of judicial decision making (an aspect which is also reflected in the temporal effects of the judgment of the Grand Chamber on the first reference in these proceedings). It follows that these claims, although made in proceedings which commenced prior to the decisions of the House of Lords in DMG and of this court in the present case, are based on grounds of action which were available under English law at the time when the claims were made, as a means of recovering taxes which had been unlawfully levied, even if that could not have been known with certainty until the matter had been finally determined by the highest courts. It accordingly appears to me that the grounds of action based on mistake and on an unlawful demand were both available at all material times, in the circumstances laid down in the relevant case law, for the recovery of taxes which had been levied contrary to domestic law. It follows from the principle of equivalence that both grounds of action must also have been available in analogous circumstances for the recovery of taxes levied contrary to EU law. That is not, of course, to say that English law was bound to maintain both grounds of action subject to unchanged incidents or conditions; but any changes would have to comply with the requirements of EU law, including the requirement of effective judicial protection. That conclusion is challenged on the basis that the mistake ground of action is neither necessary nor sufficient to meet the requirements of EU law, as laid down in such cases as Amministrazione delle Finanze dello Stato v SpA San Giorgio (Case 199/82) [1983] ECR 3595: it is not necessary, since the unlawful demand ground of action is in itself adequate; and it is not sufficient, since it requires the presence of an additional element besides the levying of the taxes in breach of EU law, namely that they must have been paid under a mistake as to the lawfulness of the domestic legislation. The first of these contentions appears to me to be off the point. The fact that the ground of action based on an unlawful demand satisfies the San Giorgio principle does not exclude the possibility that the ground of action based on mistake also satisfies that principle. Indeed, the ground of action based on mistake is of considerable practical importance as a means of enforcing rights to repayment derived from EU law, as the present case demonstrates, since it enables claims relating to taxes levied in breach of EU law to be brought outside the six year limitation period, reckoned from the date of the payment, which applies to claims based upon the Woolwich principle: a period which may have expired before the mistake as to the validity of the tax legislation is discovered. Admittedly, if English law had evolved differently, and the ground of action based on mistake had not been available, then the ground of action based on an unlawful demand might well have met the requirements of EU law. The fact of the matter, however, is that English law provides two grounds of action which are capable of satisfying the San Giorgio principle, and the principle of equivalence therefore requires that both grounds of action should be available for the enforcement of rights derived from EU law. The second contention also appears to me to be mistaken. The two grounds of action are not identical: in particular, subject to the legislation at issue in the present case, they are subject to different limitation periods. The mistake ground of action admittedly includes an additional element, namely that the taxes were paid under a mistake; but it is the presence of that additional element which enables the claimant to benefit from an extended limitation period which begins when the mistake is discovered or could with reasonable diligence have been discovered, rather than beginning when the payment was made. The mistake ground of action is therefore a valuable remedy for the recovery of taxes levied contrary to EU law. If it were not available for that purpose, then the person who had paid taxes levied contrary to EU law would be in a less favourable position than the person who had a similar claim under domestic law. The principle of equivalence does not of course oblige a member state to extend its most favourable rules governing recovery under national law to all actions for repayment of charges or dues levied contrary to EU law (Edilizia Industriale Siderurgica Srl v Ministero delle Finanze (Case C 231/96) [1998] ECR I 4951, para 36 (Edis)). It was therefore open to the United Kingdom to curtail the limitation period applicable to the ground of action based on mistake without offending against the principle of equivalence, so long as it did so not only for claims based on a breach of EU law but also for similar claims based on a breach of domestic law. That had not however been done by the time the present actions were commenced. Whether the retroactive manner in which the limitation period was subsequently curtailed was compatible with EU law raises issues not in relation to the principle of equivalence but in relation to the principle of effectiveness. If, then, the principle of equivalence required that the mistake ground of action should be available to the claimants at the time when they made their claims, then it follows under EU law that the principle of effectiveness also applied to that ground of action, and continues to apply until the claims are determined. The question which arises, and to which I turn next, is whether the application of section 320 of the 2004 Act to the Aegis claims, and of section 107 of the 2007 Act to the BAT claims, would be compatible with that principle. The application of the principle of effectiveness The principle of effectiveness requires that the national procedural rules required by the principle of equivalence must provide effective judicial protection in conformity with EU law. Taken in conjunction with the principle of equivalence, it is a principle which has far reaching implications for domestic law. The principle of effectiveness may in particular impinge upon domestic laws relating to limitation periods. There is of course no objection in principle to limitation periods under EU law: on the contrary, it is recognised that reasonable periods of limitation are necessary in the interests of legal certainty (Rewe Zentralfinanz eG v Landwirtschaftskammer fr das Saarland (Case 33/76) [1976] ECR 1989, para 5 and Comet BV v Produktschap voor Siergewassen (Case 45/76) [1976] ECR 2043, paras 17 18). Equally, there is no requirement that rights derived from EU law should be subject to the most favourable limitation period available under domestic law, provided the principle of equivalence is respected (Edis). National legislation curtailing the period within which recovery may be sought of sums which have been levied in breach of EU law is not in principle incompatible with EU law. The Court of Justice has however laid down certain requirements with which such legislation must comply. It must for example not be intended specifically to limit the consequences of a judgment of the Court of Justice (see eg Deville v Administration des Impts (Case 240/87) [1988] ECR 3513). In that regard, I note that the Government announced its intention to introduce the provision which became section 107 of the Finance Act 2007 on 6 December 2006, which was the day on which the Court of Justice had rejected the Governments application to re open the hearing in the first reference in this case so as to allow it to seek a temporal restriction to the effect of the judgment. The effect of section 107 is not however confined to the taxes with which the courts judgment was concerned, and it is not contended that the provision offended against the Deville requirement. In the circumstances, I proceed on that basis. A further requirement of legislation curtailing a limitation period is that the arrangements for its entry into force must be consistent with effective judicial protection of the rights derived from EU law. In particular, such legislation must ensure that it remains possible in practice to enforce the right to repayment derived from EU law. In order to understand how that principle applies in the present case, it is helpful to consider some of the judgments of the Court of Justice. First, Aprile v Amministrazione delle Finanze dello Stato (No 2) (Case C 228/96) [2000] 1 WLR 126 concerned a claim for repayment of charges wrongfully levied in 1990, when such claims were subject to the general limitation period of ten years. On 27 January 1991 legislation was enacted which brought such claims within the scope of a shorter limitation period prescribed by customs legislation, which was then a period of five years, and in addition reduced that limitation period to three years as from 27 April 1991. The action was begun on 30 March 1994. It was accepted by the national authorities that the legislation could not be applied to claims which had been lodged prior to 27 April 1991. In that regard, the Advocate General observed at para 41 of his opinion that the legislation would be clearly incompatible with Community law if it applied to claims which had been lodged before that date: the Community principle of legal certainty did not allow such claims to be affected by a later provision not existing at the time of lodgement which detracted from the legal situation of the claimants. The issue concerned claims lodged after 27 April 1991 in respect of payments which had been made at a time when the longer limitation period applied. As the Court of Justice noted, the national courts interpreted the legislation as not having any retroactive effect: it was construed as meaning that persons whose claims had arisen before the date when the legislation came into force had three years from that date within which to commence proceedings: a period which was sufficient to guarantee the effectiveness of the right to reimbursement (para 28). On that basis, the legislation was compatible with Community law. The same conclusion was also reached, on similar facts, in Dilexport Srl v Amministrazione delle Finanze dello Stato (Case C 343/96) [2000] All ER (EC) 600. Secondly, Marks & Spencer plc v Customs and Excise Comrs (Case C 62/00) [2003] QB 866 concerned a claim for repayment of VAT unduly paid between May 1991 and August 1996, when the relevant limitation period was six years. On 19 March 1997 legislation was enacted which reduced the limitation period to three years. The legislation was deemed to have come into force on 18 July 1996. The action was begun on 15 April 1997. The Court of Justice considered the legislation both in relation to the principle of effectiveness and in relation to the principle of the protection of legitimate expectations. I shall consider the second of those aspects below. In relation to the principle of effectiveness, the court derived from its judgments in Aprile and Dilexport the proposition that, in order for national legislation curtailing the period within which recovery may be sought of sums charged in breach of Community law to be compatible with Community law, the time set for its application must be sufficient to ensure that the right to repayment is effective (para 36). The Court continued: 37. It is plain, however, that that condition is not satisfied by national legislation such as that at issue in the main proceedings which reduces from six to three years the period within which repayment may be sought of VAT wrongly paid, by providing that the new time limit is to apply immediately to all claims made after the date of enactment of that legislation and to claims made between that date and an earlier date, being that of the entry into force of the legislation, as well as to claims for repayment made before the date of entry into force which are still pending on that date. 38. Whilst national legislation reducing the period within which repayment of sums collected in breach of Community law may be sought is not incompatible with the principle of effectiveness, it is subject to the condition not only that the new limitation period is reasonable but also that the new legislation includes transitional arrangements allowing an adequate period after the enactment of the legislation for lodging the claims for repayment which persons were entitled to submit under the original legislation. Such transitional arrangements are necessary where the immediate application to those claims of a limitation period shorter than that which was previously in force would have the effect of retroactively depriving some individuals of their right to repayment, or of allowing them too short a period for asserting that right. 39. In that connection it should be noted that member states are required as a matter of principle to repay taxes collected in breach of Community law (Socit Comateb v Directeur Gnral des Douanes et Droits Indirects (Joined Cases C 192 to 218/95) [1997] ECR I 165, para 20, and Dilexport [1999] ECR I 579, 610 611, para 23), and whilst the court has acknowledged that, by way of exception to that principle, fixing a reasonable period for claiming repayment is compatible with Community law, that is in the interests of legal certainty, as was noted in paragraph 35 hereof. However, in order to serve their purpose of ensuring legal certainty limitation periods must be fixed in advance (ACF Chemiefarma v Commission of the European Communities (Case 41/69) [1970] ECR 661, para 19). As the court made clear at para 38, the legislation in issue in Marks & Spencer was objectionable not only because it applied retroactively to persons who had already made claims for repayment which were within the limitation period then in force, but also because it precluded claims by persons who could otherwise have made claims within that period, without any transitional provisions to protect the rights of such persons. A similar conclusion was also reached in Grundig Italiana SpA v Ministero delle Finanze (Case C 255/00) [2003] All ER (EC) 176, where a limitation period of five years was replaced by one of three years, and a transitional period of 90 days was held to be insufficient to ensure that the right of recovery was not rendered excessively difficult. It follows from cases such as Aprile, Dilexport, Marks & Spencer and Grundig that a taxpayer who has paid taxes levied contrary to EU law is not vested with a right to repayment in accordance with the domestic provisions which were in force at the time when the payment was made. It is permissible to alter the applicable rules of domestic law, including rules as to limitation, provided the legislation effecting the alteration does not in practice deprive the persons affected of their right to seek reimbursement. In order for that proviso to be met, however, the legislation must not apply the new limitation period retroactively so as to bar claims which were made timeously according to the law then in force, and the arrangements for its entry into force must also allow persons who have not yet made claims an adequate period of time to ensure that their right to repayment remains effective. In the present case, the claims are for the repayment of taxes unduly paid between 1973 and 1999, when the relevant limitation period was six years. That period generally ran from the date of the payment, but in an action for relief from the consequences of a mistake the period was extended: it did not begin to run until the claimant discovered the mistake or could with reasonable diligence have discovered it (section 32(1)(c) of the Limitation Act 1980, re enacting a provision previously contained in section 12 of the Limitation Act 1939). As Lord Walker has explained at paras 103 104, it has been established in this case that the payments were made under a mistake about the lawfulness of the tax regimes under which they were paid; and it was only after the Court of Justice issued its judgment in Metallgesellschaft Ltd v Inland Revenue Comrs (Joined Cases C 397/98 and C 410/98) [2001] Ch 620 that it was generally appreciated that the UK corporation tax regime was open to challenge as infringing Community law. A well advised company in the position of the claimants would then have had grounds for considering that it was entitled to the repayment of tax which had been levied contrary to Community law, and that there was at least a reasonable prospect that it could rely upon the extended limitation period provided by section 32(1)(c) of the 1980 Act in order to recover any taxes paid more than six years before the proceedings were begun. In order to do so, it would of course have to base its claim upon the mistake ground of action. The BAT action was begun in June 2003, and the Aegis action on 8 September 2003. In each action, the claim was based upon the mistake ground of action (as well as the unlawful demand ground of action), and reliance was placed on section 32(1)(c). Section 320 of the 2004 Act, enacted in July 2004, excluded the application of section 32(1)(c) of the 1980 Act in relation to taxation matters where the action was brought on or after 8 September 2003. Section 107 of the 2007 Act, enacted in July 2007, excluded the application of section 32(1)(c) where the action was brought prior to 8 September 2003. It is apparent from that summary that the claims, so far as they relate to payments made more than six years before the proceedings were commenced, have always been dependent on the application of section 32(1)(c) of the 1980 Act. The effect of the legislation of 2004 and 2007 is thus to deprive the claimants, retrospectively, of the ability to pursue their claims so far as they relate to those payments. Since the legislation was retroactive in its effect, there was nothing the claimants could do to avoid its operation: that, of course, was the point of making the legislation retroactive. Since the legislation retroactively restricts the possibility of repayment to claimants who brought an action within six years of the date of the payment, rather than six years of the date when their mistake was discovered or could with reasonable diligence have been discovered, it deprives persons who do not satisfy that condition of any possibility of exercising the right to repayment derived from EU law, which they previously enjoyed. In the circumstances of this case, it retroactively renders the taxes unduly paid by the BAT group prior to June 1997, and by the Aegis group prior to September 1997, irrecoverable: taxes whose reimbursement had been timeously sought under the law then in force. It therefore renders impossible in practice the exercise of rights derived from the EU treaties which national courts are bound to protect. That is the first reason why I have reached the provisional conclusion that it is contrary to EU law and cannot be relied on in these proceedings. That conclusion does not appear to me to be affected by the argument that the legislation serves the legitimate purpose of avoiding the disruption of public finances which the present claims, and other similar claims, would otherwise cause. As the Court of Justice observed in its Marks & Spencer judgment at para 39, member states are required as a matter of principle to repay taxes collected in breach of EU law. Legal certainty, which protects both taxpayers and the administration, can justify fixing reasonable limitation periods for bringing claims for repayment, but it cannot in my view justify applying them in such a way that the rights conferred by EU law are no longer safeguarded. Nor in my view can the present case be distinguished from such cases as Marks & Spencer on the ground that those cases concerned situations where there was only one basis on which repayment could be sought, whereas the present case concerns a situation where two grounds of action exist, with differently calculated limitation periods, and the effect of the legislation in issue is merely to apply the same method of calculating the limitation period to both grounds of action. I accept that the present case differs in that respect from the cases which have come before the Court of Justice, but the difference is in my view of no consequence. Since both grounds of action are available as means of enforcing EU rights in accordance with the principle of equivalence, it follows that the principle of effectiveness must also be respected in relation to both. The vice of the legislation in issue is not that it seeks to apply a common limitation period to the two grounds of action, but that it does so retroactively and without transitional provisions, and so fails to conform to the principle of effective judicial protection. The principle of the protection of legitimate expectations A further reason for my provisional conclusion that the legislation is incompatible with EU law is that it is in my view incompatible with the principle of the protection of legitimate expectations. As a general principle of EU law, this principle binds member states when implementing EU law at national level. In particular, it applies to national rules governing the protection of EU rights in national courts. The point is illustrated by Marks & Spencer (Case C 62/00) [2003] QB 866, where the Court of Justice rejected the Governments contention that the procedural rules governing the recovery of overpayments of VAT were entirely a matter of domestic law, subject only to the Community principles of equivalence and effectiveness. As the Court held (para 44), the principle of the protection of legitimate expectations forms part of the Community legal order; and, on the facts of that case, legislation retroactively curtailing the period within which repayment might be sought of taxes collected in breach of Community law was incompatible with that principle. It is in my opinion an even clearer breach of that principle for legislation which has the effect of reducing the limitation period applicable to actions for the enforcement of rights derived from EU law to be applied to actions which were already pending before the courts when the legislation was enacted. Although persons cannot legitimately expect that the legal rules applicable to them will not be altered, they may legitimately expect that rights which they possess will not be retroactively abridged. They are therefore entitled to expect that a claim which was not time barred when it was made will not subsequently become time barred as a result of retroactive legislation. My conclusion on this point does not depend on an assumption that the claimants knew, at the time when they commenced proceedings, that their claims could validly be based upon the mistake ground of action, and could therefore benefit from the extended limitation period provided by section 32(1)(c) of the 1980 Act. Although the validity of claims to the repayment of unlawfully levied tax on the basis of mistake was strongly arguable at that time, and was of course ultimately established, I accept that it was only some years later that the point was definitively resolved by the decision of the House of Lords in DMG [2007] 1 AC 558. Although there was therefore an arguable question in 2003 as to whether the claims which they had submitted to the court were time barred, the claimants could legitimately expect that that question would be decided by the court in accordance with a proper understanding of the law in force at the time when the claims were made. They could legitimately expect that the courts decision of that question would not be pre empted by retroactive legislation subsequently enacted by Parliament. Nor does it appear to me to be material that the legislation in issue left untouched the limitation period which applied to the ground of action based on an unlawful demand. The claimants had based their claims upon both grounds of action, as they were entitled to do. The fact that their claims in respect of payments made during the six years prior to the commencement of the proceedings, so far as based on the unlawful demand ground of action, were not affected by the legislation in issue does not diminish the significance of the fact that their right to pursue claims in respect of earlier periods, on the basis of mistake, was taken away from them after proceedings relying upon that right had been commenced. The protection of legitimate expectations is not of course an absolute principle, and even retroactive measures interfering with the administration of justice may sometimes be justified by compelling considerations relating to the public interest; and, in any assessment of whether such a justification existed, a lack of certainty as to the law at the material time might be a relevant consideration. In the present case, however, for the reasons explained in para 239, there appear to me to be no other considerations capable of outweighing the breach of legitimate expectations which resulted from the legislation in issue. Conclusion In view of the division of opinion on the court in relation to the compatibility of section 320 of the 2004 Act with EU law, I agree that that issue will require to be the subject of a reference to the Court of Justice in accordance with the directions proposed by Lord Hope. The other issues should in my view be dealt with as proposed by Lord Walker.

The Appellants are all companies which belong to groups which have UK resident parents and also have foreign subsidiaries, both in the European Union and elsewhere. The purpose of the litigation was to determine various questions of law arising from the tax treatment of dividends received by UK resident companies from non resident subsidiaries, as compared with the treatment of dividends received from subsidiaries within wholly UK resident groups of companies. The provisions giving rise to these questions related to the system of advance corporation tax (ACT) and to the taxation of dividend income from non resident sources under section 18 (Schedule D, Case V) of the Income and Corporation Taxes Act 1988 (ICTA). The relevant provisions have since been amended or repealed, but the problems created by their existence in the past have not gone away. The Appellants case is that the differences between their tax treatment and that of wholly UK resident groups of companies breached article 43 (freedom of establishment) and article 56 (free movement of capital) of the EC Treaty, and that these breaches have caused them considerable loss. A previous reference to the Court of Justice of the European Union (CJEU) held that those principles had, at least in some respects, been breached. The issues in this appeal to the Supreme Court relate to the requirements under both EU and domestic law as to the availability of remedies for such breaches of EU law. It is common ground that two types of restitutionary remedies are available in domestic law in this situation: a claim for restitution of tax unlawfully demanded (under the Woolwich principle), and a claim for tax wrongly paid under a mistake (a DMG claim). EU law requires there to be an effective remedy for monies paid in respect of tax that has been unlawfully charged. In the present case, the Woolwich cause of action was now time barred. The limitation period for DMG mistake claims had been extended by section 32(1)(c) of the Limitation Act 1980 (LA). However, in June 2004, s320 of the Finance Act 2004 was enacted, retrospectively excluding the application of s32(1)(c) in relation to claims based on a mistake of law relating to a taxation matter, where the action was brought on or after 8 September 2003. In July 2007, s107 of the Finance Act 2007 came into force. It excluded the application of s32(1)(c) to any DMG claims brought before 8 September 2003. The Court of Appeal held: that the Woolwich restitution remedy was a sufficient remedy as EU law does not require that there must always be a remedy based on mistake; that the Woolwich restitution remedy met the requirements of EU law and was not affected by sections 320 and 107; that the restitution and damages remedies sought by the Appellants in respect of one part of the claim were excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970; and that section 32(1)(c) of the Limitation Act 1980 could be given a wider meaning so as to apply to a Woolwich claim. The Appeal raises the following specific issues: (1) Could Parliament lawfully curtail without notice the extended limitation period under section 32(1)(c) of the Limitation Act 1980 for the mistake cause of action (section 320 FA 2004) and cancel claims made using that cause of action for the extended period (section 107 FA 2007)? In particular: (a) Would a Woolwich restitution remedy be a sufficient remedy for the repayment claims brought on the basis of EU law? (b) Whether or not a Woolwich restitution remedy would be a sufficient remedy, does EU law protect the claims which were made in mistake; and, specifically, did the curtailment without notice of the extended limitation period for mistake claims (section 320 FA 2004) and the cancellation of such claims in respect of the extended period (section 107 FA 2007) infringe the EU law principles of effectiveness, legal certainty, legitimate expectations and rule of law? (2) Are the restitution and damages remedies sought by the Appellants in respect of corporation tax paid under section 18 of the ICTA excluded by virtue of the statutory provisions for recovery of overpaid tax in section 33 of the Taxes Management Act 1970? (3) Does section 32(1)(c) of the Limitation Act 1980 apply to a claim for a Woolwich restitution remedy? (4) Does the Woolwich restitution remedy apply only to tax that is demanded by the Revenue, and not to tax such as ACT which is payable on a return; and, if so, what amounts to a demand? The Supreme Court unanimously dismisses the appeal on issues (3) and (4), and allows the appeal on issue (2). On issue (1), a reference is made to the CJEU for a preliminary ruling under article 267 Treaty on the Functioning of the European Union. Leading judgments are given by Lord Hope, Lord Walker, Lord Sumption and Lord Reed, with shorter judgments by Lord Brown, Lord Clarke and Lord Dyson. Issue (1) The central question in the appeal is whether EU law requires only that the member state must make available an adequate remedy which meets the principles of effectiveness and equivalence, or whether it requires every remedy recognised in domestic law to be available so that the taxpayer may obtain the benefit of any special advantages that this may offer on the question of limitation [13, 38]. The majority of the Court (Lord Sumption and Lord Brown dissenting [123 & 142]) holds that the Woolwich remedy on its own was not sufficient to meet the requirements of effectiveness and equivalence; an effective remedy was also required in the DMG mistake cause of action. The principle of equivalence requires that the rules regulating the right to recover taxes levied in breach of EU law must be no less favourable than those governing similar domestic actions. It must follow, if the means of recovering of taxes levied contrary to EU law are to match those in domestic law, that both remedies should be available [21, 212]. The retrospective application of the section 320 FA 2004 limitation period was therefore not compatible with EU law as it infringed the principles of equivalence and effectiveness, and possibly also the principle of legitimate expectations [15, 22, 115, 135 136, 140, 209, 241]. In relation to s107 FA 2007, the Court unanimously holds that, by 2006, the Appellants had acquired a legitimate expectation that their entitlement to have their DMG claims decided by a court would not be removed from them by the introduction without notice of a limitation period that was not fixed in advance. So it was not lawful for Parliament to cancel claims made using the mistake cause of action for the extended period [15, 22, 115, 125, 129, 140, 203, 209, LR 34 35, ]. Since the Court is divided on the question as to whether EU law requires that both remedies should be available to the Appellants so that they can choose the remedy that best suits their case for reimbursement, the matter is not acte clair. A reference to the CJEU is necessary [23]. Issue (2) The question is answered in the negative. Section 33 can be given an interpretation in conformity with EU law by not construing it as impliedly setting itself up as an exclusive provision. The common law claim in unjust enrichment remains available [119, 205]. The appeal on this issue is allowed. Issue (3) The question is answered in the negative. The extension to the limitation period under section 32(1)(c) should not be read widely so as to apply to Woolwich claims. The Court should not seek to develop the law by broadening the interpretation of an action for relief from the consequences of a mistake [62, 186]. The appeal on this issue is dismissed. Issue (4) The question is answered in the negative. The Woolwich restitution remedy is not limited to tax that is demanded by the Revenue, but is available to cover all sums paid to a public authority in response to (and sufficiently causally connected with) an apparent statutory requirement to pay tax which (in fact and in law) is not lawfully due [79, 174]. The appeal on this issue also is dismissed.

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On 11 September 2014, the Cleveland Meat Company Ltd (CMC) bought a live bull at the Darlington Farmers Auction Mart for 1,361.20. The bull was passed fit for slaughter by the Official Veterinarian (OV) stationed at CMCs slaughterhouse. It was assigned a kill number of 77 and slaughtered. A post mortem inspection of both carcass and offal was carried out by a Meat Hygiene Inspector (MHI), who identified three abscesses in the offal. The offal was not retained. Later that day, the OV inspected the carcass and, after discussion with the MHI, declared the meat unfit for human consumption, because pyaemia was suspected. Accordingly, the carcass did not acquire a health mark certifying that it was fit for human consumption. The consequence of this was that it would have been a criminal offence for CMC to seek to sell the carcass (under regulation 19 of the Food Safety and Hygiene (England) Regulations 2013 (the Food Hygiene Regulations)). CMC took the advice of another veterinary surgeon and challenged the OVs opinion. It claimed that, in the event of a dispute and its refusal to surrender the carcass voluntarily, the OV would have to seize the carcass under section 9 of the Food Safety Act 1990 (the 1990 Act) and take it before a Justice of the Peace to determine whether or not it ought to be condemned. The Food Standards Agency (FSA) replied that there was no need for it to use such a procedure. Having been declared unfit for human consumption by the OV, the carcass should be disposed of as an animal by product. On 23 September 2014, the OV, acting for the FSA, served on CMC a notice for the disposal of the carcass as an animal by product (the disposal notice) (under regulation 25(2)(a) of the Animal By Products (Enforcement) (England) Regulations 2013 (the Animal By Products Regulations) and Regulation (EC) No 1069/2009). The disposal notice informed CMC that failure to comply with the notice could result in the Authorised Person under the Regulations arranging for compliance with it at CMCs expense and that it was an offence to obstruct an Authorised Person in carrying out the requirements of the notice. The disposal notice also stated: You may have a right of appeal against my decision by way of judicial review. An application for such an appeal should be made promptly and, in any event, generally within three months from the date when the ground for the application first arose. If you wish to appeal you are advised to consult a solicitor immediately. These judicial review proceedings are brought by the Association of Independent Meat Suppliers, a trade association acting on behalf of some 150 slaughterhouses, and CMC (the claimant appellants) to challenge the FSAs assertion that it was unnecessary for it to use the procedure set out in section 9 of the 1990 Act and to claim in the alternative that it is incumbent on the United Kingdom to provide some means for challenging the decisions of an OV in such cases. They failed in the High Court and Court of Appeal and now appeal to this Court. There are three main issues in the proceedings. The issues in the case The first revolves around an issue of domestic law. Is the procedure contained in section 9 of the 1990 Act available in these circumstances and does it have to be used by the OV or the FSA, if the carcass owner refuses to surrender the carcass voluntarily, so as to afford the carcass owner a means of challenging decisions of the OV with which it disagrees? The Food Hygiene Regulations provide that section 9 is to apply for the purpose of those Regulations. Under section 9, if it appears to an authorised officer of an enforcement authority such as the FSA that food intended for human consumption fails to comply with food safety requirements, he may seize the food and remove it in order to have it dealt with by a Justice of the Peace (who may be either a lay magistrate or a legally qualified District Judge, but who will be local to the slaughterhouse and readily accessible at all hours). If it appears to the Justice of the Peace, on the basis of such evidence as he considers appropriate, that the food fails to comply with food safety requirements, he shall condemn it and order it to be destroyed at the owners expense. If he refuses to condemn it, the relevant enforcement authority must compensate the owner for any depreciation in its value resulting from the officers action. Under section 8(2), food fails to comply with food safety requirements if it is unsafe within the meaning of article 14 of Regulation (EC) No 178/2002: ie injurious to health or unfit for human consumption (see para 12 below). The procedure in section 9 of the 1990 Act is not framed in terms of an appeal from the OVs decision. It sets out a procedure whereby an officer of a food authority or an enforcement authority can refer the question of destruction of a carcass to a Justice of the Peace for decision. Normally, we are told, the owner accepts the OVs decision that an animal is not fit for human consumption and voluntarily surrenders it. But if the owner does not, the claimant appellants say that this procedure provides both (i) a way in which the OV or the FSA can take enforcement action consequent upon the OVs decision and (ii) a means whereby the owner can subject that decision to judicial scrutiny and ask the Justice of the Peace to decide whether or not the carcass did in fact comply with the food safety requirements. They accept that the Justice of the Peace cannot order the OV to apply a health mark. However, they argue that the OV can be expected to respect the decision and apply a health mark accordingly. Further, compensation may be payable under the 1990 Act if the Justice of the Peace refuses to condemn the carcass. In the claimant appellants view, this procedure has been part of the United Kingdoms food safety regime since the 19th century, and continues to operate under the European Unions food safety regime contained in the suite of Regulations coming into force in 2006. The FSA agrees that the procedure under section 9 of the 1990 Act would be available to it as one possible means of enforcement if the operator of a slaughterhouse attempted to introduce into the food chain an animal carcass which had not been given a health mark by an OV. However, it does not accept that this procedure would be suitable, still less obligatory, to resolve a dispute as to whether the carcass is or is not fit for human consumption. A Justice of the Peace has no power to order an OV to apply a health mark and, moreover, the FSA says that he would have no power under section 9 to do anything other than condemn for disposal a carcass bearing no such mark. Although not raised by the FSA in argument, the Court observes that it would be open to the operator of a slaughterhouse such as CMS to bring judicial review proceedings in the High Court to challenge the OVs decision that the meat of a carcass was unfit for human consumption, and thus to deny a health mark, or to quash a disposal notice. The High Court may quash a decision of an OV on any ground which makes the decision unlawful, including if he acts for an improper purpose, fails to apply the correct legal test or if he reaches a decision which is irrational or has no sufficient evidential basis. The High Court does occasionally hear oral evidence and make mandatory orders, and has power to award compensation for breaches of the rights under the European Convention on Human Rights (ECHR). However, contrary to what was said in the notice quoted in para 3 above, judicial review is not an appeal on the merits of the decision. The main reason advanced by the FSA why the section 9 procedure is not also applicable is that such a procedure, operated in the way the claimant appellants say that it can be operated, in effect as an appeal against the merits of the OVs decision, would be incompatible with the regime contained in the suite of EU food safety Regulations which came into force in the United Kingdom in 2006. Hence, the second issue is whether use of the procedure in section 9 of the 1990 Act is compatible with the food safety regime laid down by European Union law, specifically by Regulation (EC) No 852/2004 on the hygiene of foodstuffs; Regulation (EC) No 853/2004 laying down specific hygiene rules for food of animal origin; Regulation (EC) No 854/2004 laying down specific rules for the organisation of official controls on products of animal origin intended for human consumption; Regulation (EC) No 882/2004 on official controls performed to ensure the verification of compliance with feed and food law, animal health and animal welfare rules; and Regulation (EC) No 1069/2009 on health rules as regards animal by products. Also relevant is the prior Regulation (EC) No 178/2002 laying down the general principles and requirements of food law. The third issue is whether Regulation (EC) No 882/2004 mandates an appeal procedure and if so whether such an appeal should be capable of challenging the OVs decision on the full factual merits or whether the more limited scope of challenge involved in judicial review of the OVs decision and of a disposal notice as referred to above is sufficient to comply with the requirements of Regulation (EC) No 882/2004. Relevant European Union Law Under article 2 of Regulation (EC) No 178/2002, food means any substance or product intended to be, or reasonably expected to be ingested by humans. It is common ground between the parties that carcass 77 was food when it was slaughtered and remained so after the OV formed the opinion that it was unfit for human consumption and declared it as such. Article 14 of Regulation (EC) No 178/2002 provides that food shall not be placed on the market if it is unsafe. Food is deemed unsafe if it is considered to be (a) injurious to health, (b) unfit for human consumption. Article 5.1 of Regulation (EC) No 853/2004 provides that food business operators (FBOs) such as slaughterhouses shall not place on the market a product of animal origin unless it has a health mark applied in accordance with Regulation (EC) No 854/2004 (or an identification mark if a health mark is not required by the latter Regulation). Regulation (EC) No 854/2004 lays down specific rules for the organisation of official controls on products of animal origin (article 1.1). The application of the official controls which it requires is without prejudice to the primary legal responsibility of FBOs to ensure food safety under Regulation (EC) No 178/2002 (article 1.3). The controls are of several types. Article 4, for example, deals with official controls to verify an FBOs general compliance with the Regulations, including detailed audits of good hygiene practices. Article 5 requires member states to ensure that official controls with respect to fresh meat take place in accordance with Annex I. Under article 5.1, the OV is to carry out inspection tasks in, inter alia, slaughterhouses in accordance with the general requirements of section I, Chapter II of Annex I and the specific requirements of section IV. Under article 5.2, the health marking of domestic ungulates, such as cattle, is to be carried out in slaughterhouses in accordance with section I, Chapter III of Annex I; the criterion for applying health marks is stated thus: Health marks shall be applied by, or under the responsibility of, the official veterinarian when official controls have not identified any deficiencies that would make the meat unfit for human consumption. Annex I lays down detailed rules about ante mortem and post mortem inspections, how they are to be done and by whom, the application of health marks and the communication of results. Chapter IV of section III lays down detailed requirements for the qualifications and skills of Official Veterinarians and their auxiliaries (such as MHIs). Regulation (EC) No 854/2004 does not define official controls nor does it lay down any specific enforcement measures or sanctions for non compliance with the controls which it mandates. Article 1.1a provides that it applies in addition to Regulation (EC) No 882/2004 and article 2.2(b)(a) provides that the definitions in Regulation (EC) No 882/2004 shall apply as appropriate. Regulation (EC) No 882/2004 lays down general rules for the performance of official controls for a variety of purposes, including preventing risks to humans and animals and protecting consumer interests in the feed and food trade (article 1.1). It is without prejudice to specific Community provisions concerning official controls (article 1.3). Official control means any form of control that the competent authority or the Community performs for the verification of compliance with feed and food law, animal health and animal welfare rules (article 2.1). Non compliance means non compliance with feed or food law, and with the rules for the protection of animal health and welfare (article 2.10). Recitals (41) and (42) to Regulation (EC) No 882/2004 state, inter alia, that breaches of food law may constitute a threat to human health and therefore should be subject to effective, dissuasive and proportionate measures at national level, including administrative action by competent authorities in the member states. Recital (43) states: Operators should have a right to appeal against the decisions taken by the competent authority as a result of the official controls, and be informed of such a right. The Court notes that in the French language version of the Regulation the relevant phrase used is Les exploitants devraient avoir un droit de recours and in the German language version Unternehmer sollten Rechtsmittel einlegen knnen . Title VII of Regulation (EC) No 882/2004 deals with enforcement measures and Chapter I is concerned with national enforcement measures. Article 54.1 requires the competent authority, when it identifies non compliance, to take action to ensure that the operator remedies the situation. In deciding what action to take it shall take account of the nature of the non compliance and that operators past record with regard to non compliance. Article 54.2 gives a non exhaustive list of the measures which must be available where appropriate. These include (b) the restriction or prohibition of the placing on the market of food; (c) if necessary, ordering the recall, withdrawal and/or destruction of food; and (h) any other measure the competent authority deems appropriate. Article 54.3 requires the competent authority to provide the operator concerned with written notification of its decision and the reasons for it and information on rights of appeal against such decisions and on the applicable procedure and time limits. The Court notes that in the French language version this text appears as des informations sur ses droits de recours contre de telles decisions, ainsi que sur la procedure et les dlais applicables and in the German language version the phrase sein Widerspruchsrecht is used. Article 55 requires member states to lay down the rules on sanctions applicable to infringements of feed and food law and to take all measures necessary to ensure that they are implemented. The sanctions provided for must be effective, proportionate and dissuasive. The parties arguments The claimant appellants argue that the procedure in section 9 of the 1990 Act is applicable in cases such as this and is not incompatible with the regime laid down by the EU Regulations; indeed it or something like it is contemplated by the terms of article 54 of Regulation (EC) No 882/2004. In summary, they assert that: (1) The section 9 procedure was applied during the very similar regime adopted pursuant to the EU Directives before the coming into force of the suite of Regulations referred to above. There is no evidence that this caused any practical difficulties. If it was not thought inconsistent with that regime, there is no reason to think it inconsistent with the current regime. Indeed, in 2006, when the Regulations came into force, the Meat Hygiene Service Manual of Official Controls stated (and continued to state until shortly before these proceedings began) that where the OV was not satisfied that the meat was fit for human consumption and voluntary surrender was not forthcoming, the OV must seize the food under section 9 and take it before a Justice of the Peace for it to be condemned. At the very least, this is an indication of past practice under the very similar regime which preceded the current EU Regulations and of what the FSA, as competent authority, initially thought the position to be under the Regulations. (2) The official controls in Regulation (EC) No 854/2004 are in addition to the more general provisions in Regulation (EC) No 882/2004. They are specific to food of animal origin. But they contain nothing about enforcement and sanctions. Thus it is not surprising that they do not provide for a right of appeal against the decisions of the OV and competent authority. Enforcement and sanctions are provided for in Regulation (EC) No 882/2004. Regulation (EC) No 854/2004 is intended to work in combination with Regulation (EC) No 882/2004. Recital (43) to Regulation (EC) No 882/2004 indicates that a right of appeal is required in a case such as this. Articles 54 and 55 are applicable to all kinds of non compliance with Regulation (EC) No 854/2004, including non compliance with article 5 in individual cases as well as the more general non compliance dealt with by article 4. The references to prohibiting placing on the market and ordering destruction in article 54.2 are clearly apt to deal with non compliance under article 5. Article 54.3 should apply to action to deal with all kinds of non compliance. These articles, read together with recital (43) mandate a right of appeal against the OVs decision. (3) There is nothing in any of the Regulations to prohibit a procedure such as that laid down in section 9. This not only provides a means whereby the competent authority can enforce the requirements of Regulation (EC) No 854/2004 in relation to non compliance but also provides the operator with a means of challenging the decision of the OV that a carcass is not fit for human consumption on its merits. The Justice of the Peace can (and should) hear expert evidence to determine the matter. While only the OV can apply the health mark, on the claimant appellants interpretation of section 9 the Justice of the Peace can make a ruling which may result in an award of compensation if the mark is wrongly withheld. (4) At the point when the OV inspects the meat and forms the opinion that it is unfit for human consumption and declares it as such, the carcass is still food within the meaning of the above Regulations. It has not become an animal by product within the meaning of Regulation (EC) No 1069/2009, laying down health rules as regards animal by products. Animal by products are defined as entire bodies or parts of animals, products of animal origin or other products obtained from animals, which are not intended for human consumption (article 3.1). Until the process of condemnation is complete, the FBO still intends the carcass for human consumption. (5) Providing a mechanism for judicial oversight of the process of condemnation is required by article 17 of the Charter of Fundamental Rights of the European Union (CFR) (equivalent to article 1 of the First Protocol to the ECHR) which protects the right to property, read with article 47, which requires an effective judicial remedy for everyone whose rights and freedoms guaranteed by community law are violated. It would be a violation if an FBO were deprived of the property in the carcass or required to dispose of the carcass in such a way as to render it valueless without proper justification or compensation. Judicial review does not constitute an appeal which satisfies the (6) requirement in Regulation (EC) No 882/2004 that there be a right of appeal. Regulation (EC) No 882/2004 requires that there be a right of appeal against the decision of an OV on the merits going beyond what is possible in judicial review. Against this, the competent authority, the FSA, argues that it would be incompatible with the regime established by the Regulations if resort were made to the procedure under section 9 of the 1990 Act in order to challenge the decision of the OV under article 5 of Regulation (EC) No 854/2004 on its merits. The FSA accepts that the lawfulness of the decision can be challenged in judicial review proceedings as set out above. In summary, the FSA asserts that: (1) The requirements of Regulation (EC) No 854/2004 are a lex specialis in relation to products of animal origin. Regulation (EC) No 882/2004 is without prejudice to specific Community provisions regarding official controls (article 1.3). Regulation (EC) No 854/2004 therefore takes precedence over Regulation (EC) No 882/2004 where it is necessary to do so. (2) There is a distinction between the roles undertaken by the OV under article 4 of Regulation (EC) No 854/2004 and those undertaken under article 5. The former concerns the audit of an FBOs general practices and compliance with food hygiene requirements. It is accepted that article 54 of Regulation (EC) No 882/2004 is capable of being applied to that role. However, it should be noted that, despite the wording of recital (43), article 54.3 stops short of positively requiring that there be a right of appeal. (3) The role of inspecting and health marking individual carcasses under article 5 is quite different from the audit role under article 4. The OV alone (with the assistance permitted under the Regulation) has responsibility for deciding whether or not to apply a health mark, which is a necessary prerequisite to placing the meat on the market. Nobody other than the OV can perform this task. This can only be done when official controls have not identified any deficiencies that would make the meat unfit for human consumption. That weighted double negative test is consistent with the overall aim laid down in article 1.1 of Regulation (EC) No 178/2002, of the assurance of a high level of protection of human health and consumers interest in relation to food. It may be that the meat remains food even after the OV has decided not to apply a health mark, but it cannot thereafter be lawfully intended for human consumption. (4) The qualifications and experience of the OV are carefully specified so as to ensure that he or she is properly qualified to undertake that decision making role (with the assistance permitted under the Regulations). It would be incompatible with the requirements of Regulation (EC) No 854/2004 for a person or body other than the OV as referred to in article 5.2 and which does not have those qualifications and experience, such as a Justice of the Peace acting pursuant to section 9 of the 1990 Act, to decide whether a carcass should have had a health mark applied to it, even if adjudicating with the benefit of expert evidence presented by each side. (5) Article 17 of the CFR (and article 1 of the First Protocol to the ECHR) permit control of the use of property if this is a proportionate means of achieving a legitimate aim (reference is made to Booker Aquaculture Ltd (trading as Marine Harvest McConnell) v Scottish Ministers (Joined Cases C 20/00 and C 64/00) [2003] ECR I 7411). The above aim is undoubtedly legitimate and the means chosen proportionate. Article 17 does not mandate a right of challenge to the imposition of such controls. (6) If there is a requirement that there be a right of appeal in relation to the decision of an OV under article 5.2 of Regulation (EC) No 854/2004, it is satisfied by the availability of judicial review as set out above. Judicial review also satisfies any requirement under article 17 of the CFR (or article 1 of the First Protocol to the ECHR) of a possibility of judicial control of the actions of an OV. Conclusion (1) Do Regulations (EC) Nos 854/2004 and 882/2004 preclude a procedure whereby pursuant to section 9 of the 1990 Act a Justice of the Peace decides on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements? (2) Does Regulation (EC) No 882/2004 mandate a right of appeal in relation to a decision of an OV under article 5.2 of Regulation (EC) No 854/2004 that the meat of a carcass was unfit for human consumption and, if it does, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal in such a case? For the purposes of this reference, the Court of Justice of the European Union is asked to assume that the claimant appellants interpretation of section 9 of the 1990 Act is correct, and that a Justice of the Peace has power to give a ruling which may result in an award of compensation if he considers that a health mark ought to have been applied to a carcass. In order to determine this appeal, this Court refers the following questions to the Court of Justice of the European Union:

Cleveland Meat Company Ltd (CMC) bought a bull at auction. It was passed fit for slaughter by the Official Veterinarian (OV) stationed at its slaughterhouse. After a post mortem inspection of the carcass, and discussion with a Meat Hygiene Inspector, the OV declared the meat unfit for human consumption. It did not therefore acquire a health mark. CMC took the advice of another veterinarian surgeon and challenged the OVs opinion. It contended that in the event of a dispute, and of its refusal to surrender the carcass voluntarily, the OV would have to seize it under s 9 of the Food Safety Act 1990 (the 1990 Act) and take it before a Justice of the Peace to determine whether or not it should be condemned. The respondent (the FSA) did not accept that it needed to use this procedure. It maintained that the carcass should be disposed of as an animal by product and served a notice for such disposal. CMC, together with Association of Independent Meat Suppliers, issued a claim for judicial review to challenge the FSAs assertion that it did not have to use the s 9 procedure. They claimed in the alternative that it was incumbent on the UK to provide some means for challenging the decisions of an OV in such cases. The claim failed in the High Court and Court of Appeal. Before the Supreme Court there were three main issues. The first was a matter of domestic law: whether the s 9 procedure was available or mandatory in these circumstances. The second issue was whether the use of the s 9 procedure was compatible with the food safety regime laid down by European Union law, specifically Regulations (EC) 178/2002, 852/2004, 853/2004, 854/2004, 882/2004, and 1069/2009. The third issue was whether Regulation 882/2004 mandates an appeal procedure and, if so, whether such an appeal should allow a challenge to the full factual merits of the OVs decision or whether the limited scope of challenge in a judicial review claim is sufficient to comply with the regulations requirements. The Supreme Court decides to refer two questions to the Court of Justice of the European Union. The terms of the reference are set out by Lady Hale and Lord Sales in their joint judgment, with whom Lord Hodge, Lady Black and Lord Lloyd Jones agree. For the purposes of this reference, the Court of Justice of the European Union is asked to assume that the claimant appellants interpretation of section 9 of the 1990 Act is correct, and that a Justice of the Peace has power to give a ruling which may result in an award of compensation if he considers that a health mark ought to have been applied to a carcass. In order to determine this appeal, this Court refers the following questions to the Court of Justice of the European Union [22]: (1) Do Regulations (EC) Nos 854 and 882 preclude a procedure whereby pursuant to section 9 of the 1990 Act a Justice of the Peace decides on the merits of the case and on the basis of the evidence of experts called by each side whether a carcass fails to comply with food safety requirements? (2) Does Regulation (EC) No 882 mandate a right of appeal in relation to a decision of an OV under article 5.2 of Regulation (EC) No 854 that the meat of a carcass was unfit for human consumption and, if it does, what approach should be applied in reviewing the merits of the decision taken by the OV on an appeal in such a case?

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When is it lawful for a local housing authority to accommodate a homeless person a long way away from the authoritys own area where the homeless person was previously living? There is no doubt that, for a variety of reasons, such out of borough placements have become increasingly common in recent years. The latest national statistics show that in September 2014 a quarter of all temporary accommodation for homeless people was provided in a different council area, an increase from 21% in September 2013. The great majority of these were from London Boroughs (Department for Communities and Local Government, Statutory Homelessness: July to September Quarter, England, National Statistics, Housing, Statistical Release, 11 December 2014). However, local authorities have a statutory duty to provide accommodation in their own area so far as reasonably practicable: Housing Act 1996 (the 1996 Act), section 208(1). And if that is not practicable, statutory guidance requires them where possible, to try to secure accommodation as close as possible to where the applicant was previously living. This case is about the import of those duties for individual households who are offered an out of borough placement. The facts The appellant is a 51 year old single mother of five children, aged between eight and 14. She has many long standing health problems: she is HIV positive, and suffers from Type II diabetes, hypertension, diabetic retinopathy and perhaps depression. She has lived in London since at least January 2000. From December 2008 to November 2012, the family lived in a privately rented four bedroomed house in Westminster. Her rent of 1,150 per week was covered by housing benefit. In 2012, however, a cap (known as the local housing allowance) was placed on the amount of housing benefit payable for privately rented properties according to their size and locality (known as the local housing allowance). Her maximum housing benefit was dramatically reduced. This meant that she was no longer able to afford the rent. The landlord was not prepared to reduce it and so she was evicted from her home in November 2012. She applied to Westminster City Council under the homelessness provisions in Part 7 of the 1996 Act and the family were temporarily housed in two rooms in a hotel in the Royal Borough of Kensington and Chelsea on a bed and breakfast basis. This was near enough for the children to continue in their schools. On 17 January 2013, she was notified that Westminster had decided that she was homeless, eligible for assistance, in priority need, not intentionally homeless, and that they should not refer her case to another local authority where she was more closely connected. Hence they accepted that they owed her what is usually termed the main homelessness duty under section 193(2) of the 1996 Act, as they put it a duty to ensure that you have somewhere suitable in which to live. Their temporary lettings team would be contacting her shortly with an offer of self contained temporary accommodation in discharge of that duty. On Thursday 24 January, the authority wrote offering her temporary accommodation in a five bedroomed house in Bletchley, near Milton Keynes. They had arranged for her to view the property at 12 pm on Monday 28 January. The letter explained: There is a severe shortage of accommodation in Westminster and it is not reasonably practicable for us to offer a Westminster home for everyone who applies for one. That is why we have had to offer you accommodation in Milton Keynes. Although it is outside Westminster, having considered your circumstances, we believe this accommodation is suitable for you. The appellant rejected this offer because it was too far away. It was too far from people helping her with her children. There would be nobody there she knew. She had high blood pressure and wanted to stay with her GP. It would mean changing the childrens schools. She had lived in Westminster for a long time. The authoritys immediate response, by letter of Friday 25 January, was that none of the children was of GSCE age, so it was suitable for them to move schools. The average journey time from the Bletchley property to Westminster was around one hour and 15 minutes. The property was of a suitable size for the family and based on your circumstances theres no reason for us to place you within the borough of Westminster. Because she had refused the offer, their duty under section 193 had ended and they were no longer required to provide her with accommodation. The letter was headed Notice that our housing duty has come to an end. This was no doubt because the duty under section 193(2) does not come to an end automatically when the applicant refuses to accept an offer of accommodation which the authority are satisfied is suitable; under section 193(5), the authority must serve notice that the duty has come to an end. The appellant sought a review of the authoritys decision under section 202 of the 1996 Act. She was interviewed for the purpose of the review, where she repeated her concerns and gave some more details of the help she received from her friends. Three of her friends were also interviewed. Two medical certificates were obtained which confirmed that her chronic conditions [were] incurable and likely to worsen with further complications and that she needed safe accommodation to be able to take medication and stay well; but a medical assessment could not find anything medical to preclude residing in Milton Keynes. The review was completed on 27 May 2013 and the reviewing officer confirmed the decision that the property in Bletchley was suitable and the duty towards her discharged. The decision letter dealt in detail with the familys personal circumstances. As to these, the officers conclusions were: I am not satisfied that the accommodation was unsuitable on the grounds that your medical and support needs are such that you have to live in Westminster; the length of time she had lived in Westminster was not a particularly long time and does not mean that you cannot live anywhere else; none of her children were currently sitting national exams and could move schools without their education suffering; and the accommodation offered was suitable and affordable. The letter then refers to the duty in section 208 of the 1996 Act and states: As you are aware Westminster is currently suffering from a severe shortage of both temporary and permanent accommodation. It is therefore not reasonably practicable to offer temporary accommodation in the borough for everyone who applies for it and therefore we have to offer some people temporary accommodation located outside Westminster. The Councils Temporary Lettings team carefully assesses each application based on the individual circumstances of each household member and decides what type of accommodation would be suitable for the household. Given the shortage of housing in Westminster and all of your circumstances, including those above, I believe that it was reasonable for the Council to offer your household this accommodation outside the Westminster area. This appears to be a standard paragraph which has appeared in a number of other decision letters emanating from the City of Westminster. The authority have produced no evidence of their policy in relation to the procurement of accommodation in order to fulfil their obligations under the 1996 Act, nor of the location of that accommodation, nor of the instructions given to the temporary lettings team as to how they are to decide which properties are offered to which applicants. The appellant then appealed to the county court under section 204 of the 1996 Act. The appeal was heard in October 2013. The authority adduced evidence that at that date 52% of Westminsters temporary accommodation units were in borough and 48% out of borough. Also produced was a report dated May 2012, from the Strategic Director of Housing, Regeneration and Property, produced for the relevant Cabinet Members approval. This reviewed the demand for and supply of social rented housing and low cost home ownership for the previous year and made supply and demand projections for the coming year. It revealed that in the nine months to the end of 2011 there had been 1072 homelessness applications and 394 acceptances; there was a total of 1783 households in temporary accommodation, of which 478 were stage 2 (that is, after the main homelessness duty had been accepted); the housing benefit cap was leading to an increase in homelessness resulting from the loss of a private sector tenancy; at the same time it was becoming increasingly difficult to source self contained temporary accommodation from the private sector, particularly in high rent areas; but at that time around 70% of their temporary accommodation was in borough, with the majority of the non Westminster stock in East London; it would continue to be secured in borough so far as reasonably practicable but would also be sourced out of borough in areas where it was available. The appeal was unsuccessful. HHJ Hornby commented that: I appreciate that there appears to be no reference in particular to the fact that consideration was given to the particular area within Westminster or those areas nearer than Milton Keynes, but it seems to me almost inevitable that the team must have had regard to all the stock that there was and allocated what was the most suitable property available to them for that particular person. The authority had been continuing to provide interim accommodation for the appellant and her children during the review and appeal process. But they refused to do so pending her application for permission to appeal to the Court of Appeal. After she was refused permission for a judicial review of that decision, the authority ceased to provide that accommodation. The childrens services department refused to accommodate the whole family and so on 24 February 2014, the appellant asked the childrens services department to provide accommodation for her children under the Children Act 1989. The children were separated between three different foster families and care proceedings were begun. The appellant was granted permission to appeal to the Court of Appeal, but that appeal was also unsuccessful, for reasons which were essentially the same as those of Judge Hornby: [2014] EWCA Civ 1383, [2015] PTSR 211 (see paras 33 and 34 below). The 1996 Act and Guidance Sections 206 and 208 of the 1996 Act impose distinct but related requirements upon the local authority. Section 206(1) provides that the authority may discharge their housing functions only by securing suitable accommodation, albeit by a variety of routes. Section 208(1) provides that: So far as reasonably practicable a local housing authority shall in discharging their housing functions under this Part secure that accommodation is available for the occupation of the applicant in their district. By virtue of section 205(1) of the 1996 Act, their housing functions refers to their functions under Part 7 to secure that accommodation is available for a persons occupation. It is clear, therefore, that these are duties owed to the individual person to whom the main homelessness duty is owed. The accommodation offered has to be suitable to the needs of the particular homeless person and each member of her household and the location of that accommodation can be relevant to its suitability: see R (Sacupima) v Newham London Borough Council [2001] 1 WLR 563, CA. This has since been fleshed out in statutory guidance. Under section 182(1) of the 1996 Act, local housing authorities are required to have regard to such guidance as may from time to time be given by the Secretary of State. The current general guidance is contained in the Homelessness Code of Guidance for Local Authorities (Department for Communities and Local Government, 2006). As to the duty in section 208(1), this provides: 16.7. Section 208(1) requires housing authorities to secure accommodation within their district, in so far as is reasonably practicable. Housing authorities should, therefore, aim to secure accommodation within their own district wherever possible, except where there are clear benefits for the applicant of being accommodated outside of the district. This could occur, for example, where the applicant, and/or a member of his or her household, would be at risk of domestic or other violence in the district and need to be accommodated elsewhere to reduce the risk of further contact with the perpetrator(s) or where ex offenders or drug/alcohol users would benefit from being accommodated outside the district to help break links with previous contracts which could exert a negative influence. As to suitability, the Code says this about the location of the accommodation: 17.41. The location of the accommodation will be relevant to suitability and the suitability of the location for all the members of the household will have to be considered. Where, for example, applicants are in paid employment account will need to be taken of their need to reach their normal workplace from the accommodation secured. The Secretary of State recommends that local authorities take into account the need to minimise disruption to the education of young people, particularly at critical points in time such as close to taking GCSE examinations. Housing authorities should avoid placing applicants in isolated accommodation away from public transport, shops and other facilities, and, wherever possible, secure accommodation that is as close as possible to where they were previously living, so they can retain established links with schools, doctors, social workers and other key services and support essential to the well being of the household. This has since been expanded upon. Under section 210(2), the Secretary of State may by order specify (a) the circumstances in which accommodation is or is not to be regarded as suitable, and (b) the matters to be taken into account or disregarded in determining whether accommodation is suitable for a person. During the passage of the Localism Act 2011, the Government undertook to remain vigilant to any issues that arose around suitability of location. It had come to light that some local authorities were seeking accommodation for households owed the main homelessness duty far outside their own district. The Government was therefore willing to explore whether protections around location of accommodation need to be strengthened and how this might be done (Department for Communities and Local Government, Homelessness (Suitability of Accommodation) (England) Order 2012 Consultation, May 2012, para 38). A full consultation exercise showed widespread support for strengthening that protection (Department for Communities and Local Government, Homelessness (Suitability of Accommodation)(England) Order 2012 Governments Response to Consultation, November 2012): Government has made it clear that it is neither acceptable nor fair for local authorities to place households many miles away from their previous home where it is avoidable. Given the vulnerability of this group it is essential that local authorities take into account the potential disruption such a move could have on the household. The method chosen was to make it a matter of statutory obligation to take the location of the accommodation into account when determining whether accommodation is suitable. Hence, in October 2012, shortly before the decisions were taken in this case, the Secretary of State made the Homelessness (Suitability of Accommodation) (England) Order 2012 (SI 2012/2601). Article 2 provides: In determining whether accommodation is suitable for a person, the local housing authority must take into account the location of the accommodation, including (a) where the accommodation is situated outside the district of the local housing authority, the distance of the accommodation from the district of the authority; (b) the significance of any disruption which would be caused by the location of the accommodation to the employment, caring responsibilities or education of the person or members of the persons household; (c) the proximity and accessibility of the accommodation to medical facilities and other support which (i) are currently used by or provided to the person or members of the persons household; and (ii) are essential to the well being of the person or members of the persons household; and (d) the proximity and accessibility of the accommodation to local services, amenities and transport. The Governments response to consultation had emphasised that the Order does not prevent or prohibit out of borough placements where they are unavoidable nor where they are the choice of the applicant. However, the Department also issued Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 (November 2012), which strengthened the obligation to secure accommodation as close as possible to where the household had previously been living: 48. Where it is not possible to secure accommodation within district and an authority has secured accommodation outside their district, the authority is required to take into account the distance of that accommodation from the district of the authority. Where accommodation which is otherwise suitable and affordable is available nearer to the authoritys district than the accommodation which it has secured, the accommodation which it has secured is not likely to be suitable unless the authority has a justifiable reason or the applicant has specified a preference. 49. Generally, where possible, authorities should try to secure accommodation that is as close as possible to where an applicant was previously living. Securing accommodation for an applicant in a different location can cause difficulties for some applicants. Local authorities are required to take into account the significance of any disruption with specific regard to employment, caring responsibilities or education of the applicant or members of their household. Where possible the authority should seek to retain established links with schools, doctors, social workers and other key services and support. (Emphasis supplied) The guidance goes on to deal with employment, caring responsibilities, education, medical facilities and other support, and also with cases where there may be advantages in the household being accommodated somewhere outside the local authoritys district, including employment opportunities there. The effect, therefore, is that local authorities have a statutory duty to accommodate within their area so far as this is reasonably practicable. Reasonable practicability imports a stronger duty than simply being reasonable. But if it is not reasonably practicable to accommodate in borough, they must generally, and where possible, try to place the household as close as possible to where they were previously living. There will be some cases where this does not apply, for example where there are clear benefits in placing the applicant outside the district, because of domestic violence or to break links with negative influences within the district, and others where the applicant does not mind where she goes or actively wants to move out of the area. The combined effect of the 2012 Order and the Supplementary Guidance changes, and was meant to change, the legal landscape as it was when previous cases dealing with an out of borough placement policy, such as R (Yumsak) v Enfield London Borough Council [2002] EWHC 280 (Admin), [2003] HLR 1, and R (Calgin) v Enfield London Borough Council [2005] EWHC 1716 (Admin), [2006] HLR 58, were decided. An applicant who is dissatisfied with any of the local authoritys decisions listed in section 202(1) of the Act can request a review of that decision. The decisions listed do not in terms include a decision to place out of borough despite section 208(1). But they do include, at (f), any decision of a local housing authority as to the suitability of accommodation offered in discharge of their duty under, inter alia, section 193(2). They also include, at (b), any decision as to what duty (if any) is owed, inter alia, under section 193(2). It is common ground that (b) includes a decision that the duty is no longer owed because it has been discharged. Under section 204, an applicant who has requested a review under section 202 and is dissatisfied with the decision may appeal to a county court on any point of law arising from the decision (alternatively, if the review decision has not been notified within the prescribed time, arising from the original decision). The childrens welfare Shelter Childrens Legal Service have helpfully intervened to remind the court that the exercise of the local authoritys functions under the 1996 Act is covered by section 11(2) of the Children Act 2004. This requires each person or body to whom the section applies (which includes a local housing authority) to make arrangements for ensuring that: (a) their functions are discharged having regard to the need to safeguard and promote the welfare of children; and (b) any services provided by another person pursuant to arrangements made by the person or body in the discharge of their functions are provided having regard to that need. Section 11 does not define welfare, but section 10 provides a statutory framework for co operation between the local authority and relevant agencies with a view to improving the well being of children in the area. Well being for this purpose is defined as (a) physical, mental and emotional well being; (b) protection from harm and neglect; (c) education, training and recreation; (d) the contribution made by children to society; and (e) social and economic well being (section 10(2)). The welfare of the child has long been given a broad meaning in family proceedings, encompassing physical, psychological, social, educational and economic welfare. It has been held that section 11 applies, not only to the formulation of general policies and practices, but also to their application in an individual case. As Pitchford LJ put it, in R (Castle) v Metropolitan Police Commissioner [2011] EWHC 2317 (Admin), [2014] 1 All ER 953, para 51: The chief officers statutory obligation is not confined to training and dissemination of information. It is to ensure that decisions affecting children have regard to the need to safeguard them and to promote their welfare. However, he went to point out that: This does not mean that the duties and functions of the police have been re defined by section 11 the guidance accurately states the obligation of chief officers of police to carry out their existing functions in a way which takes into account the need to safeguard and promote the welfare of children. In the homelessness context, there is a distinction between the factual decisions which the authority have to make and an exercise of discretion or evaluation. Thus it has been held that section 11 has no part to play in the decision as to whether a persons actions are deliberate for the purpose of deciding whether she is intentionally homeless. As Moses LJ pointed out in Huzrat v Hounslow London Borough Council [2013] EWCA Civ 1865, para 26: The statutory questions are clear; was the action or omission in question deliberate? The answer to that question cannot differ [according to] whether the local authority takes into account the duty under section 11 of the Childrens [sic] Act or not. Some statutory questions do leave room for the consideration of the childs welfare. Where the question relates to the eligibility of a third country national for homelessness assistance under the Regulations implementing the decision of the Court of Justice of the European Union in Ruiz Zambrano v Office national de lemploi (Case C 34/09) [2012] QB 265, the test is whether the EU citizen child of that third country national would be unable to reside in the UK or another EEA state if the third country national were obliged to leave. It was held in Hines v Lambeth London Borough Council [2014] EWCA Civ 660, [2014] 1 WLR 4112, that the childs welfare had obviously to be taken into account, but it could not be the paramount consideration as this would be inconsistent with the statutory language. The question of whether the accommodation offered is suitable for the applicant and each member of her household clearly requires the local authority to have regard to the need to safeguard and promote the welfare of any children in her household. Its suitability to meet their needs is a key component in its suitability generally. In my view, it is not enough for the decision maker simply to ask whether any of the children are approaching GCSE or other externally assessed examinations. Disruption to their education and other support networks may be actively harmful to their social and educational development, but the authority also have to have regard to the need to promote, as well as to safeguard, their welfare. The decision maker should identify the principal needs of the children, both individually and collectively, and have regard to the need to safeguard and promote them when making the decision. However, section 11 does not in terms require that the childrens welfare should be the paramount or even a primary consideration. As the Joint Committee on Human Rights pointed out (19th Report of Session 2003 2004, Children Bill, HL Paper 161, paras 69 to 77), it does not in terms reproduce the wording of article 3(1) of the United Nations Convention on the Rights of the Child (UNCRC): In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration. Where Convention Rights under the Human Rights Act 1998 are engaged, it is well established that they have to be interpreted and applied consistently with international human right standards, including the UNCRC: see ZH (Tanzania) v Secretary of State for the Home Department [2011] UKSC 4, [2011] 2 AC 166, H(H) v Deputy Prosecutor of the Italian Republic Genoa (Official Solicitor intervening), [2012] UKSC 25, [2013] 1 AC 338, Stevens v Secretary of State for Communities and Local Government [2013] EWHC 792 (Admin), [2013] JPL 1383, approved in Collins v Secretary of State for Communities and Local Government [2013] EWCA Civ 1193, [2013] PTSR 1594. It is not suggested in this case that any of the Convention rights are engaged: compare Yumsak (para 19 above), where it was conceded that placing the mother and her children in Birmingham interfered with their rights under article 8 of the Convention. We have not heard argument on the interesting question of whether, even where no Convention right is involved, section 11 should nevertheless be construed consistently with the international obligations of the United Kingdom under article 3 of the UNCRC. That must be a question for another day. It is also the case that there will almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed. Such households must, by definition, be in priority need, and most households are in priority need because they include minor children. The local authority may have the invidious task of choosing which household with children is to be offered a particular unit of accommodation. This does not absolve the authority from having regard to the need to safeguard and promote the welfare of each individual child in each individual household, but it does point towards the need to explain the choices made, preferably by reference to published policies setting out how this will be done (as to which see further below). Evidencing and explaining the authoritys decisions The Secretary of State for Communities and Local Government has also intervened in this case, in order to emphasise that when making decisions about where to accommodate homeless persons, local authorities have a number of duties to evidence and explain their decisions. They are required to take the Code and Supplementary Guidance into account. If they decide to depart from them they must have clear reasons for doing so: see R (Khatun) v Newham London Borough Council [2004] EWCA Civ, [2005] QB 37, para 47. Very good reasons are required to depart from a policy formulated after public consultation: Royal Mail Group plc v Postal Services Commission [2007] EWHC 1205 (Admin), para 33. This is especially so where the Code is designed to protect vulnerable people: R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58, [2006] 2 AC 148. By definition, any homeless household in priority need will be vulnerable in this sense. The authority must also have a proper evidential basis for their decision: R (Calgin) v Enfield London Borough Council [2005] EWHC 1716 (Admin), [2006] HLR 58, para 32. It must be clear from the decision that proper consideration has been given to the relevant matters required by the Act and the Code. While the court should not adopt an overly technical or nit picking approach to the reasons given in the decision, these do have to be adequate to fulfil their basic function. It has long been established that an obligation to give reasons for a decision is imposed so that the persons affected by the decision may know why they have won or lost and, in particular, may be able to judge whether the decision is valid and therefore unchallengeable or invalid and therefore open to challenge: see R v City of Westminster, Ex p Ermakov (1996) 28 HLR 819, at 826 827. Nor, without a proper explanation, can the court know whether the authority have properly fulfilled their statutory obligations. The Secretary of State is concerned that the Court of Appeal was too ready to assume that the authority had properly complied with their statutory obligations. Thus, at para 21, it was said that the reviewing officer must be taken to have been aware of the resources available to the council and the pressures on them. It is not necessary in a decision letter of this kind for the reviewing officer to describe in detail what those resources and pressures are. If, as I think, Westminster was entitled to take a broad range of factors into account in deciding whether it was reasonably practicable to provide accommodation to [the applicant] within its own district, it was sufficient for the reviewing officer to describe the circumstances which led her to that conclusion in general terms. I am therefore not persuaded that her decision was irrational in the sense that it lacked an evidential base. Then, at para 25, when it came to providing accommodation as close as possible to the home district: The guidance produced by the Secretary of State is lengthy and detailed in my view there is no basis for inferring that [the reviewing officer] did not have it in mind or that she was unaware of the desirability of accommodating [the applicant] as close to Westminster as was reasonably practicable. It was not necessary for her to explain in detail what other accommodation was available to Westminster outside its own district and why it had not been offered to [her]. The Secretary of State complains that the effect of this approach would be to encourage courts to infer, on no other basis than the assumed experience and knowledge of a local authority, that the authority knew of the Code and Guidance and had taken it into account; that the authority had considered and rejected the possibility of providing closer accommodation than that offered; and that the authority had good reasons for their decision in this particular case. If the courts are prepared to assume all this in the authoritys favour, this would immunise from judicial scrutiny the automatic decisions to house people far from their home district, which was just what the 2012 Order and Supplementary Guidance were designed to prevent. This case The Secretary of State has, of course, made no submissions as to the effect of these criticisms in this particular case. Mr Peacock, on behalf of the Local Authority, does not dispute the applicable principles but has valiantly tried to defend the decision letter. But it is apparent that this decision suffers from all of those defects and more. There is little to suggest that serious consideration was given to the authoritys obligations before the decision was taken to offer the property in Bletchley. At that stage, the temporary lettings team knew little more than what was on the homelessness application form. This did not ask any questions aimed at assessing how practicable it would be for the family to move out of the area. Nor were any inquiries made to see whether school places would be available in Bletchley and what the appellants particular medical conditions required. Those inquiries were only made after the decision had been taken. The review decision is based on the premise that, because of the general shortage of available housing in the borough, the authority could offer accommodation anywhere else, unless the applicant could show that it was necessary for her and her family to remain in Westminster. There was no indication of the accommodation available in Westminster and why that had not been offered to her. There was no indication of the accommodation available near to Westminster, or even in the whole of Greater London, and why that had not been offered to her. There was, indeed, no indication that the reviewing officer had recognised that, if it was not reasonably practicable to offer accommodation in Westminster, there was an obligation to offer it as close by as possible. It follows that the authority cannot show that their offer of the property in Bletchley was sufficient to discharge their legal obligations towards the appellant under the 1996 Act. Moreover, their notification to the appellant that their duty towards her had come to an end was purportedly given in circumstances where she did not know, and had no means of knowing, what, if any, consideration had been given to providing accommodation in or nearer to the borough, apart from the general standard paragraph in the letter offering her the Bletchley accommodation the previous day. I would add that they also cannot show that they have properly discharged their obligation under section 11 of the Children Act 2004. The appeal must be allowed and the decision that their duty to secure that accommodation was made available to her had come to an end must be quashed. Guidance But how, it may be asked, are local authorities to go about explaining their decisions as to the location of properties offered? It is common ground that they are entitled to take account of the resources available to them, the difficulties of procuring sufficient units of temporary accommodation at affordable prices in their area, and the practicalities of procuring accommodation in nearby authorities. It may also be acceptable to retain a few units, if it can be predicted that applicants with a particularly pressing need to remain in the borough will come forward in the relatively near future. On the other hand, if they procure accommodation outside their own area, that will place pressures on the accommodation, education and other public services available in those other local authority areas, pressures over which the receiving local authority will have no control. The placing authority are bound to have made predictions as to the likely demand for temporary accommodation under the 1996 Act and to have made arrangements to procure it. The decision in any individual case will depend upon the policies which the authority has adopted both for the procurement of temporary accommodation, together with any policies for its allocation. Ideally, each local authority should have, and keep up to date, a policy for procuring sufficient units of temporary accommodation to meet the anticipated demand during the coming year. That policy should, of course, reflect the authoritys statutory obligations under both the 1996 Act and the Children Act 2004. It should be approved by the democratically accountable members of the council and, ideally, it should be made publicly available. Secondly, each local authority should have, and keep up to date, a policy for allocating those units to individual homeless households. Where there was an anticipated shortfall of in borough units, that policy would explain the factors which would be taken into account in offering households those units, the factors which would be taken into account in offering units close to home, and if there was a shortage of such units, the factors which would make it suitable to accommodate a household further away. That policy too should be made publicly available. This approach would have many advantages. It would enable homeless people, and the local agencies which advise them, to understand what to expect and what factors will be relevant to the decision. It would enable temporary letting teams to know how they should go about their business. It would enable reviewing officers to review the decisions made in individual cases by reference to those published policies and how they were applied in the particular case. It would enable reviewing officers to explain whether or not the individual decision met the authorities obligations. It would enable applicants to challenge, not only the lawfulness of the individual decision, but also the lawfulness of the policies themselves. Indeed, it would also enable a general challenge to those policies to be brought by way of judicial review. In some ways this might be preferable to a challenge by way of an individual appeal to a county court. But it may not always be practicable to mount a judicial review of an authoritys policy, and an individual must be able to rely upon any point of law arising from the decision under appeal, including the legality of the policy which has been applied in her case. No doubt there are other ways in which an authority could ensure that their decisions are properly evidenced and properly explained. But a standard paragraph of the sort that was used in this case is not one of them.

The question arising in this appeal is whether it is lawful for a local housing authority to accommodate a homeless person a long way away from the authoritys own area where the homeless person was previously living. Local authorities have a statutory duty to provide accommodation in their own area so far as reasonably practicable under section 208(1) Housing Act 1996 (the 1996 Act). The accommodation must be suitable to the needs of the homeless person and each member of the household, and the location can be relevant to its suitability. Regard must be given to any guidance given by the Secretary of State for Communities and Local Government. While out of borough placements are not prohibited, the Homelessness (Suitability of Accommodation) (England) Order 2012 (the 2012 Order) requires authorities to take into account the distance of the accommodation being offered from its district and the disruption to caring responsibilities or the education of any member of the household. The obligation to secure accommodation as close as possible to where the household had previously been living was strengthened by Supplementary Guidance on the homelessness changes in the Localism Act 2011 and on the Homelessness (Suitability of Accommodation) (England) Order 2012 (the Supplementary Guidance), including the need to seek to retain established links with schools, doctors, social workers and other key services and support. The appellant is a single mother of five children aged between 8 and 14. She has serious health problems. In 2012 she was evicted from her privately rented home, in which she had been living since 2008, following the introduction of a cap on housing benefit, which left her unable to pay the rent. The respondent housing authority (Westminster) accepted that she was unintentionally homeless and that it owed a duty to provide her with suitable accommodation. It offered her temporary accommodation in a house in Bletchley, near Milton Keynes, with a brief explanation that due to a severe shortage of accommodation it was not reasonably practicable to offer her a home in Westminster, but that this house was suitable in view of her circumstances. The children were not of GCSE age so Westminster considered it suitable for them to move schools. The appellant refused the accommodation and Westminster served notice that its duty to house her had come to an end. Her application for a review of the decision was unsuccessful. Her appeals to the County Court and Court of Appeal were also dismissed. The Supreme Court unanimously allows the appeal and quashes Westminsters decision that it had discharged its duty to house the appellant because she had refused suitable accommodation. Lady Hale gives the only judgment. The 1996 Act and Guidance Local authorities have a statutory duty to accommodate persons within their area so far as this is reasonably practicable. Reasonable practicability imports a stronger duty than simply being reasonable. Where it is not reasonably practicable to accommodate in borough they must generally try to place the household as close as possible to where they were previously living. The combined effect of the 2012 Order and the Supplementary Guidance has changed the legal landscape when dealing with out of borough placement policies [19]. As an aspect of the suitability of the accommodation being offered, a decision to place an applicant out of borough falls within the grounds on which a review can be sought under section 202 of the 1996 Act [20]. The childrens welfare The exercise of the local authoritys functions under the 1996 Act is subject to section 11(2) of the Children Act 2004, which requires it to have regard to the need to safeguard and promote the welfare of children. Welfare encompasses physical, psychological, social, educational and economic welfare [23] and the duty applies both to the formulation of general policies and practices and to their application in an individual case [24]. The duty is clearly relevant to the question of the suitability of the accommodation being offered [27]. It does not, however, require that the childrens welfare should be the paramount or even a primary consideration [28]. There will almost always be children affected by decisions about where to accommodate households to which the main homelessness duty is owed, and invidious choices between them must sometimes be made, but this points towards the need to explain the choices made, preferably by reference to published policies [30]. Evidencing and explaining the authoritys decisions The Secretary of State intervened in the case to emphasise the duties on local authorities to evidence and explain their decisions [31]. It must be clear from the decision that proper consideration has been given to the relevant matters required by the 1996 Act and accompanying Code. The courts below were too ready to assume that Westminster had properly complied with its statutory obligations, which had the effect of immunising from judicial scrutiny automatic decisions to house people far from their home district [35]. This case The decision made in the appellants case suffers from these defects and more. No enquiries were made to assess the practicability of moving the family to Bletchley or as to the childrens needs, and no consideration seems to have been given to the duty to offer accommodation as close by as possible or explanation given [36]. It follows that Westminster still owes the appellant a duty to secure suitable accommodation. Guidance Ideally each local authority should have an up to date publically available policy for securing sufficient units of temporary accommodation to meet the anticipated demand for the coming year, reflecting its obligations under the 1996 Act and the Children Act 2004. It should also have a policy for the allocation of those units to individual homeless households, to which reference would be made in explaining any decisions to accommodate a household out of the area [39]. This way decisions will be properly evidenced and explained, and can be challenged if required [41].

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This case is about the employment status of district judges, but it could apply to the holder of any judicial office. The issue is whether a district judge qualifies as a worker or a person in Crown employment for the purpose of the protection given to whistle blowers under Part IVA of the Employment Rights Act 1996 (the 1996 Act). If a district judge does not on the face of it qualify for whistle blower protection, the further question is whether this is discrimination against her in the enjoyment of her right to freedom of expression under the European Convention on Human Rights. And if it is, what is the remedy? In section 230(3) of the 1996 Act, a worker is defined as an individual who has entered into or works under (or where the employment has ceased, worked under) (a) a contract of employment, or (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. The appellant does not claim that a judge works under a contract of employment within limb (a) of that definition, but contends that she does fall within limb (b) of the definition. The history of the case The appellant was appointed a district judge by the then Lord Chancellor, Lord Falconer of Thoroton, with effect from 6 February 2006. Under section 6 of the County Courts Act 1984, as it then stood, district judges were appointed by the Lord Chancellor. As it now stands, they are appointed by Her Majesty the Queen on the recommendation of the Lord Chancellor. In October 2005, the appellant had been sent a letter offering her appointment which talked in terms of her accepting that offer. The letter itself contained several stipulations as to the duration of her appointment, her salary, her pension on retirement, and other matters. Enclosed with the letter was a memorandum entitled District Judges Memorandum on conditions of employment and terms of service. This was a detailed document, which included terms as to sitting days, sick pay, maternity, paternity and adoption leave, training, the prohibition of legal practice, relations with the press and media, outside activities, and much more. The memorandum made it clear that the salary was taxed under Schedule E to the Income Tax Act and that the judge was an employed earner for the purpose of national insurance contributions. Although described as a life time appointment, a judge is required to vacate office on her 70th birthday (unless extended) and can resign before that date. The appellants Instrument of Appointment, signed by the Lord Chancellor on 27 January 2006, simply talked in terms of his approving her to sit at each of the county courts on the Wales and Chester circuit. In fact, she first sat at the Crewe County Court and in 2009 transferred to the Warrington County Court. In 2010, the Cheshire courts were transferred to the Northern Circuit and major cost cutting reforms were announced. In 2011, the Runcorn County Court was closed and the business transferred to Warrington, as were some tribunal sittings. The appellant raised a number of concerns relating to the cuts, in particular about the lack of appropriate and secure court room accommodation, the severely increased workload placed upon the district judges, and administrative failures. She raised these with the local leadership judges and senior managers in Her Majestys Courts and Tribunals Service and eventually in a formal grievance. She claims that her complaints fell within the definition of qualifying disclosures under section 43B of the 1996 Act, in particular as tending to show a failure to comply with legal obligations, that miscarriages of justice were likely, or that the health and safety of any individual had been, is being or is likely to be endangered. The disclosures were made to an employer or other responsible person within the meaning of section 43C of the 1996 Act and thus they were protected disclosures within the meaning of section 43A. Under section 47B(1) of the 1996 Act, a worker has the right not to be subjected to any detriment by any act, or any deliberate failure to act, by his employer done on the ground that the worker has made a protected disclosure. The appellant claims that she was subjected to a number of detriments as a result of her complaints: a significant delay in investigating her grievance; being seriously bullied, ignored and undermined by her fellow judges and court staff; being informed that her workload and concerns were simply a personal working style choice; and inadequate steps to support her in returning to work; she also claims that a severe degradation in her health, resulting in psychiatric injury and a disability under the Equality Act 2010, was such a detriment. The appellant was signed off work due to stress from the end of January 2013 but has recently returned. In February 2015 the appellant made a two part claim in the Employment Tribunal. Both parts of her claim depended upon her being a worker within the meaning of section 230(3) of the 1996 Act (or having the same protection as such a worker). One part of her claim was for disability discrimination under the Equality Act 2010, as a result of failure to make reasonable adjustments to cater for her disability. This claim is derived from European Union law. It is therefore accepted that, as a result of the decision of this court in OBrien v Ministry of Justice (formerly Department for Constitutional Affairs) [2013] UKSC 6; [2013] 1 WLR 522, in the light of the guidance given by the Court of Justice of the European Union in ((Case C 393/10) [2012] ICR 955), a judge is a worker for the purpose of European Union law and national law has to be interpreted in conformity with that. That case concerned discrimination against part time workers, but the same result was reached by the Court of Appeal for Northern Ireland in Perceval Price v Department of Economic Development [2000] IRLR 380, that tribunal judges were workers for the purpose of discrimination on grounds of sex. Hence the disability discrimination claim will continue in any event. The other part of her claim was under the whistle blowing provisions in Part IVA of the 1996 Act, inserted by the Public Interest Disclosure Act 1998. These provisions are not derived from European Union law and accordingly the definition of worker does not have to be read so as to conform to the requirements of EU law. This means that a judge may have a different status in employment law, depending upon whether or not the employment right in question is derived from EU law. In relation to the whistle blowing claim, the Ministry of Justice objected that the appellant was not a worker as defined by section 230(3)(b) of the 1996 Act. At a preliminary hearing, the Employment Tribunal judge held that she was not a worker, that accordingly she had no protection against infringement of her right to freedom of expression under article 10 of the ECHR, but that it was not possible to read or give effect to section 230(3)(b) so as to give her that protection. The Employment Appeal Tribunal also held that she was not a worker, but found that there were adequate safeguards in place to protect freedom of speech for judges and there was therefore no need to read section 230(3)(b) so as to bring a judge within it, but that in any event it was not possible to do so: [2017] ICR 404. The Court of Appeal also held that the appellant was not a worker. The appellant was permitted also to raise for the first time the argument that denying her whistle blowing protection was discrimination in the enjoyment of her right to freedom of expression and thus contrary to article 14 of the ECHR read with article 10. But she failed in that too: [2018] ICR 827. On appeal to this court, the appellant continues to argue that she is a worker within the meaning of section 230(3)(b) of the 1996 Act. She also raises for the first time a new argument, that she is in Crown employment within the meaning of section 191 of the 1996 Act. If she fails in each of those, she continues to argue that her exclusion from whistle blowing protection is a breach, either of her rights under article 10 or under article 14 read with article 10 of the ECHR and that either section 230(3)(b) or section 191 of the 1996 Act should be read and given effect so as to bring her within that protection. Is a judge a worker? It is not in dispute that a judge undertakes personally to perform work or services and that the recipient of that work or services is not a client or customer of the judge. The issue is whether that work or services is performed pursuant to a contract with the recipient of that work or services or pursuant to some different legal arrangement. Nor is it in dispute that judges hold a statutory office. In broad terms, an office has been defined (by Lord Atkin in McMillan v Guest [1942] AC 561, 564) as a subsisting, permanent, substantive position which had an existence independent of the person who filled it, and which went on and was filled in succession by successive holders. Office holders do not necessarily hold office pursuant to any kind of contract. As Lord Hoffmann explained in Percy v Board of National Mission of the Church of Scotland [2005] UKHL 75; [2006] 2 AC 28, para 54: The distinction in law between an employee, who enters into a contract with an employer, and an office holder, who has no employer but holds his position subject to rules dealing with such matters as his duties, the terms of his office, the circumstances in which he may be removed and his entitlement to remuneration, is well established and understood. One of the oldest offices known to law is that of constable. It is notorious that a constable has no employer. It required special provision in [section 17 of the Sex Discrimination Act 1975] to bring the office of constable within the terms of the Act and to deem the chief constable to be his employer. But there are many other examples of offices; public, ecclesiastical and private. However, it is also well established that an office holder may hold that office under a contract with the person or body for whom he undertakes to perform work or services. The obvious example is a director of a company, who may hold that office concurrently with a service contract. Percy itself was another example. Ms Percy was an ordained minister of the Church of Scotland who was appointed associate minister to a particular parish. This was undoubtedly an ecclesiastical office, but the House of Lords held, by a majority, that she also had a contract personally to execute work, thus enabling her to bring a claim for sex discrimination against the Board of Mission which had appointed her. It might be thought that there is a distinction between private or ecclesiastical offices, on the one hand, and public or statutory offices, on the other, and that the former may be held concurrently with a contract whereas the latter may not. After all, before the introduction of modern protection from unfair dismissal, public and statutory office holders might be better protected than others, under the line of cases beginning with Ridge v Baldwin [1964] AC 40. However, in Miles v Wakefield Metropolitan District Council [1987] AC 539, which concerned the statutory office of superintendent registrar of births, deaths and marriages, Lord Oliver of Aylmerton, at p 567, questioned whether the mere fact that the plaintiff was appointed to his office under the provisions of the [Registration Service Act 1953] necessarily precludes the existence of a parallel contract between him and the council for the carrying out of his statutory duties. As this court held in Preston (formerly Moore) v President of the Methodist Conference [2013] 2 AC 163, whether an office holder holds office under a legally binding contract depends upon the intentions of the parties: The mere fact that the arrangement includes the payment of a stipend, the provision of accommodation and recognised duties to be performed by the minister, does not without more resolve the issue. The question is whether the parties intended these benefits and burdens of the ministry to be the subject of a legally binding agreement between them (Lord Sumption, para 26). Earlier, when commenting on the Percy case, he had explained that The primary considerations are the manner in which the minister was engaged, and the character of the rules governing his or her service. But, as with all exercises in contractual construction, these documents and any other admissible evidence of the parties intentions fall to be construed against their factual background (para 10). Part of the background in that case was the spiritual purpose of the functions of a minister of religion, although it had been established in Percy that there was no presumption against the contractual character of their service. In Preston, there was no difference between the majority, led by Lord Sumption, and me, the sole dissenter, as to the nature of the exercise upon which we were engaged: we differed only in our interpretation of the facts. It is clear, therefore, what the question is: did the parties intend to enter into a contractual relationship, defined at least in part by their agreement, or some other legal relationship, defined by the terms of the statutory office of district judge? In answering this question, it is necessary to look at the manner in which the judge was engaged, the source and character of the rules governing her service, and the overall context, but this is not an exhaustive list. In looking at the manner in which the judge was engaged, it could be said that there was classic offer and acceptance: there was a letter offering appointment, upon the terms and conditions set out in the letter and accompanying memorandum, which the appellant was invited to accept and did accept. However, the manner of appointment is laid down in statute: under section 6 of the County Courts Act 1984, district judges are now appointed by Her Majesty on the recommendation of the Lord Chancellor; but under the Constitutional Reform Act 2005, the whole process of selection is in the hands of the Judicial Appointments Commission, applying the criteria laid down in that Act. Furthermore, there was nothing in the letter offering appointment or in the accompanying memorandum which was expressed in contractual terms: indeed, some provisions were expressed in terms of what the Lord Chancellor expected or regarded as essential rather than as contractually binding obligations. In looking at the content of the relationship, it could be said that the terms and conditions contained some provisions, for example, those relating to maternity and paternity and adoption leave, which are not derived from statute. It could also be said that deployment decisions, as in any other employment, may be the subject of some negotiation between the individual judge and the leadership judges in her area; but ultimately the Lord Chief Justice is responsible for the deployment of judges. The essential components of the relationship are derived from statute and are not a matter of choice or negotiation between the parties. Under section 6(5) of the 1984 Act, a district judge is to be paid such salary as the Lord Chancellor may determine with the concurrence of the Treasury, but this cannot later be reduced; nor, of course, can it be increased by individual negotiation, as opposed to later determination of what the remuneration for that office is to be. Judicial pensions are also governed by statute and are not a matter of individual negotiation. Under section 11 of the 1984 Act, district judges must leave office on reaching the age of 70 (with the possibility of extension thereafter); otherwise they hold office during good behaviour and may only be removed for misbehaviour or inability to perform the duties of the office by the Lord Chancellor with the concurrence of the Lord Chief Justice; disciplinary proceedings against them are governed by the Judicial Discipline (Prescribed Procedures) Regulations 2014 (SI 2014/1919). It is also noteworthy that the appellant had difficulty in identifying her employer. These proceedings were brought against the Ministry of Justice. However, the appellant was in fact appointed by the then Lord Chancellor, while later district judges are appointed by Her Majesty the Queen. Responsibility for the judiciary is in fact divided between the Lord Chancellor, as a Minister of the Crown, and the Lord Chief Justice, as Head of the Judiciary. Many of the matters of which the appellant complained related to deployment and workload and many of her complaints were directed towards the local leadership judges, although some were directed to senior officials in Her Majestys Courts and Tribunals Service. This fragmentation of responsibility has both statutory and constitutional foundations and highlights how different is the position of a judge from that of a worker employed under a contract with a particular employer. Finally, and related to that, there is the constitutional context. Fundamental to the constitution of the United Kingdom is the separation of powers: the judiciary is a branch of government separate from and independent of both Parliament and the executive. While by itself this would not preclude the formation of a contract between a Minister of the Crown and a member of the judiciary, it is a factor which tells against the contention that either of them intended to enter into a contractual relationship. Taken together, all of these factors point against the existence of a contractual relationship between a judge and the executive or any member of it. Still less do they suggest a contractual relationship between the judge and the Lord Chief Justice. Crown employment Section 191(1) of the 1996 Act provides that Subject to section 192 and 193, the provisions of this Act to which this section applies shall have effect in relation to Crown employment and persons in Crown employment as they have effect in relation to other employment and other employees or workers. Included among the provisions to which the section applies, in section 191(2)(aa), is Part IVA. There is a debate about whether including judges within Crown employment would bring with it all the listed protections given to employees and workers or only those given to limb (b) workers. Fortunately, it is not necessary for us to resolve that debate in order to decide this case. Section 191(3) provides that In this Act, Crown employment means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by a statutory provision. Clearly, employment in this section cannot mean employment under a contract because it would then add nothing to the definition in section 230(3). The predecessor to section 191 was inserted into the Industrial Relations Act 1971 because historically Crown servants had not been seen to be employed under contracts of service and had not been able to complain of wrongful dismissal. The object was to enable them to complain of unfair dismissal and enjoy the other employment rights listed in section 191(2). Thus, argues the appellant, section 191 is apt to give her the protection of Part IVA even if she is not employed under a contract. The definition in section 191(3) has two limbs: employment under or for the purposes of a government department; and employment under or for the purposes of an officer or body exercising on behalf of the Crown functions conferred by a statutory provision. For the reasons given earlier, it is impossible to regard the judiciary as employed under or for the purposes of the Ministry of Justice. They are not civil servants or the equivalent of civil servants. They do not work for the ministry. It is slightly more plausible to regard them as working under or for the purposes of the Lord Chief Justice, who since the 2005 Act has had statutory responsibilities in relation to the judiciary: under section 7 of that Act, he is responsible for the maintenance of appropriate arrangements for the welfare, training and guidance of the judiciary of England and Wales (within the resources provided by the Lord Chancellor) and for their deployment and the allocation of work within the courts. As already noted, he also shares some responsibility for appointments, discipline and removal with the Lord Chancellor. But it is difficult to think that, by conferring these functions upon the Lord Chief Justice, the 2005 Act brought about such a fundamental change in the application of section 191. Judges do not work under and for the purposes of those functions of the Lord Chief Justice but for the administration of justice in the courts of England and Wales in accordance with their oaths of office. Mutatis mutandis, the same reasoning would apply to the identical definition of crown employment in article 236(3) of the Employment Rights (Northern Ireland) Order 1996. It is perhaps worth noting that section 83(2) and (9) of the Equality Act 2010, passed since the 2005 Act, defines employment as covering Crown employment as defined in section 191 of the 1996 Act. But it also makes express provision, in sections 50 and 51, prohibiting discrimination in relation to, among other things, appointment to public offices. These are defined to include officers appointed by or on the recommendation of a member of the executive (such as the Lord Chancellor) or by the Lord Chief Justice or Senior President of Tribunals. Thus judicial office holders are clearly protected by these provisions, which would have been quite unnecessary had they already been protected as persons in Crown employment. Sections 50 and 51 do not apply in Northern Ireland, but this does not affect the force of this point. Human rights The appellant first argued that the failure to extend the 1996 Acts protection against whistle blowing to judicial officers was a violation of her right to freedom of expression under article 10 of the ECHR. It is indeed possible to see that imposing certain detriments upon her as a result of her public interest disclosures would be an interference with her freedom of expression. It is not enough to say that judges are well protected against dismissal and other disciplinary action if they speak their minds. They are not so well protected against the sort of detriments which are complained about in this case bullying, victimisation and failure to take seriously the complaints which she was making. Be that as it may, however, there is a remedy for breach of the Convention rights, by way of an action under section 7(1) of the Human Rights Act 1998, which can result in an award of damages, if this is necessary to afford just satisfaction for the wrong done. But this would not have the effect of extending the specific protection of Part IVA of the 1996 Act to judicial or indeed other non contractual office holders. It would not enable the appellant to pursue the claim which she has made in the Employment Tribunal. The appellant also complains that the failure to extend the protection of Part IVA to judicial office holders is a violation of her rights under article 14 of the ECHR read with article 10. Article 14, it will be recalled, reads: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. This gives rise to four well known questions: (i) do the facts fall within the ambit of one of the Convention rights; (ii) has the applicant been treated less favourably than others in an analogous situation; (iii) is the reason for that less favourable treatment one of the listed grounds or some other status; and (iv) is that difference without reasonable justification put the other way round, is it a proportionate means of achieving a legitimate aim? The answer to question (i) is clearly yes. Indeed, not only do the facts fall within the ambit of the right to freedom of expression protected by article 10; unusually there may well have been a breach of that article in this case; but that is not required. The answer to question (ii) is also clearly yes. The applicant, and others like her, have been denied the protection which is available to other employees and workers who make responsible public interest disclosures within the requirements of Part IVA of the 1996 Act. She is denied protection from any detriment, which is much wider than protection from dismissal or other disciplinary sanctions. She is denied the possibility of bringing proceedings before the Employment Tribunal, with all the advantages those have for applicants. She is denied the right to seek compensation for injury to feelings as well as injury to her health. This is undoubtedly less favourable treatment than that afforded to others in the workplace employees and limb (b) workers who wish to make responsible public interest disclosures. It is no answer to this to say that, by definition, judicial office holders are not in an analogous situation to employees and limb (b) workers. That is to confuse the difference in treatment with the ground or reason for it. What matters is that the judicial office holder has been treated less favourably than others in relation to the exercise or enjoyment of the Convention right in question, the right to freedom of expression. She is not as well protected in the exercise of that right as are others who wish to exercise it. The answer to question (iii) is also clearly yes. An occupational classification is clearly capable of being a status within the meaning of article 14. Indeed, it is the very classification of the judge as a non contractual office holder that takes her out of the whistle blowing protection which is enjoyed by employees and those who have contracted personally to execute work under limb (b) of section 230(3). The constitutional position of a judge reinforces the view that this is indeed a recognisable status. The answer to question (iv) is also, in my view, clearly yes. The respondent argues that this is a case in which the courts should allow a broad margin of discretion to the choices made by Parliament, for two main reasons: first because this is an area of social policy in which the courts should respect the decisions of the democratically elected legislature unless they are manifestly without reasonable foundation; and second, because the status in question is not one of the particularly suspect grounds of discrimination, such as race or sex or sexual orientation, and the less favourable treatment is correspondingly easier to justify. There are several problems with this argument. The first is that, while it is well established that the courts will not hold a difference in treatment in the field of socio economic policy unjustifiable unless it is manifestly without reasonable foundation, the cases in which that test or something like it has been applied are all cases relating to the welfare benefits system: see R (RJM) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2008] UKHL 63; [2009] 1 AC 311 (income support disability premium); Humphreys v Revenue and Customs Comrs [2012] UKSC 18; [2012] 1 WLR 1545 (child tax credit); R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] UKSC 16; [2015] 1 WLR 1449 (benefit cap); Mathieson v Secretary of State for Work and Pensions [2015] UKSC 47; [2015] 1 WLR 3250 (child disability living allowance); R (MA) v Secretary of State for Work and Pensions (Equality and Human Rights Commission intervening) [2016] UKSC 58; [2016] 1 WLR 4550 (bedroom tax); R (HC) v Secretary of State for Work and Pensions (AIRE Centre intervening) [2017] UKSC 73; [2017] 3 WLR 1486 (benefits for children of Zambrano carers); R (DA) v Secretary of State for Work and Pensions (Shelter Childrens Legal Services and others intervening) [2019] UKSC 21; [2019] 1 WLR 3289 (revised benefit cap). It is also in that context that the test has been articulated by the European Court of Human Rights: see Stec v United Kingdom (2006) 43 EHRR 47. This case is not in that category, but rather in the category of social or employment policy, where the courts have not always adopted that test: see, for example, In re G (A Child) (Adoption: Unmarried Couple) [2008] UKHL 38; [2009] 1 AC 173. The courts will always, of course, recognise that sometimes difficult choices have to be made between the rights of the individual and the needs of society and that they may have to defer to the considered opinion of the elected decision maker: see R v Director of Public Prosecutions, Ex p Kebilene [2000] 2 AC 326, 381. But the second problem is that in this case there is no evidence at all that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA. While there is evidence of consideration given to whether certain excluded groups should be included (such as police officers), there is no evidence that the position of judges has ever been considered. There is no considered opinion to which to defer. That leads on to the third problem, which is that no legitimate aim has been put forward for this exclusion. It has not been explained, for example, how denying the judiciary this protection could enhance judicial independence. Of course, members of the judiciary must take care, in making any public pronouncements, to guard against being seen to descend into the political arena. But responsible public interest disclosures of the sort which are protected under Part IVA do not run that risk. Indeed, the object of the protection was to give workers the confidence to raise malpractice within their organisation rather than placing them in a position where they feel driven to raise concerns externally. It is just as important that members of the judiciary have that confidence. They are just as vulnerable to certain types of detriment as are others in the workplace. To give the judiciary such protection might be thought to enhance their independence by reducing the risk that they might be tempted to go public with their concerns, because of the fear that there was no other avenue available to them, and thus unwillingly be drawn into what might be seen as a political debate. As no legitimate aim has been put forward, it is not possible to judge whether the exclusion is a proportionate means of achieving that aim, whatever the test by which proportionality has to be judged. I conclude, therefore, that the exclusion of judges from the whistle blowing protection in Part IVA of the 1996 Act is in breach of their rights under article 14 read with article 10 of the ECHR. Remedy The most difficult question in this case, therefore, is how to remedy the incompatibility of the exclusion of the judiciary from the protection of Part IVA of the 1996 Act with article 14 of the ECHR. In Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, the House of Lords held that the interpretive duty in section 3 of the Human Rights Act 1998 was the primary remedy. Section 3(1) reads: So far as it is possible to do so, primary legislation must be read and given effect in a way which is compatible with the Convention rights. In Ghaidan v Godin Mendoza it was also established that what is possible goes well beyond the normal canons of literal and purposive statutory construction. Philip Sales QC, for the Government, argued (at p 563) that section 3(1) required a similar approach to the duty to interpret domestic legislation compliantly with EU law, so far as possible, citing Litster v Forth Dry Dock Engineering Co Ltd [1990] 1 AC 546. Both Lord Steyn (paras 45 and 48) and Lord Rodger (paras 118 and 121) agreed that what was possible by way of interpretation under EU law was a pointer to what was possible under section 3(1), citing Litster as well as Pickstone v Freemans Plc [1989] AC 66. Lord Nicholls referred to the unusual and far reaching character of the obligation (para 30). He also emphasised that it did not depend critically on the particular form of words used, as opposed to the concept (para 31). Lord Rodger, too, said that to attach decisive importance to the precise adjustments required to the language of the particular provision would reduce the exercise to a game (para 123). The limits were that it was not possible to go against the grain of the legislation in question (para 121) or to interpret it inconsistently with some fundamental feature of the legislation (Lord Nicholls, at para 33, echoing In re S (Minors) (Care Order: Implementation of Care Plan) [2002] UKHL 10; [2002] 2 AC 291). There are two provisions which might be candidates for such interpretation. Most obvious is section 230(3)(b), which, it will be recalled, relevantly defines a worker as: an individual who has entered into or works under (or where the employment has ceased, worked under) (b) any other contract, whether express or implied and (if it is express) whether oral or in writing, whereby the individual undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business undertaking carried on by the individual. Not surprisingly, the appellant points out that the courts have found it possible to interpret this definition so as to include judicial office holders when required to do so by European Union law. In OBrien v Ministry of Justice (formerly Department for Constitutional Affairs), [2013] UKSC 6; [2013] 1 WLR 522, the question was whether part time judges were entitled to the protection against discrimination given to part time workers by the Part Time Workers Directive (Council Directive 97/81/EC) transposed into UK law by the Part Time Workers (Prevention of Less Favourable Treatment) Regulations 2000 (SI 2000/1551). The definition of worker in regulation 1(2) was identical to that in section 230(3) of the 1996 Act. Having determined that judges were workers for the purpose of European Union law, this court had no difficulty in holding that the Regulations applied to them. The respondent argues that to do this would cut across a fundamental feature or go against the grain of the 1996 Act. But it is hard to see why that should be so. To interpret section 230(3)(b) so as to include judicial office holders would not afford them all the rights afforded to workers under the 1996 Act, but only those rights afforded to limb (b) workers, most of which are inapplicable to judges. But in any event, the interpretation in this case would only relate to an exclusion which is incompatible with the Convention rights otherwise the section 3(1) power and duty does not apply. And the inclusion of judicial office holders within the Equality Act 2010, as well as within EU derived employment rights, shows that affording judges some of the rights of other workers does not offend against any fundamental constitutional principle. It is noteworthy that the Court of Appeal, in para 90, was inclined to think that: having regard to the strength of the interpretative obligation under section 3 of the 1998 Act it would be possible to read section 230(3) down so that it extended to an employment relationship of the kind found to exist in OBrien. It does not seem that the definition of a worker by reference to the existence of a contract, so as to exclude a mere office holder, is a fundamental feature of the legislation. I agree. It would not be difficult to include within limb (b) an individual who works or worked by virtue of appointment to an office whereby the office holder undertakes to do or perform personally any work or services otherwise than for persons who are clients or customers of a profession or business carried on by the office holder. The legislation contemplates disclosure to an employer or others responsible for the conduct in question, which in this case would be the leadership judges or the HMCTS or the Ministry of Justice, depending upon the nature of the conduct. It also prohibits both the employer and fellow employees from subjecting the whistle blower to any detriment, which again would have to embrace fellow judges and those in a position to inflict such detriments. None of this would go against the grain of the legislation. When considering whether the disclosures had been made in the public interest, it would of course be relevant to consider whether there were other more appropriate ways of trying to resolve the situation. This would include the judicial grievance procedures policies (currently, policy no 1 relates to grievances between judicial office holders and policy no 3 relates to grievances between judicial officer holders and HMCTS staff); however, the appellant did invoke the grievance procedure and the investigating judge, Tomlinson LJ, commented that it was not a suitable means of dealing with the sort of systemic failures which were being alleged. Bearing in mind, therefore, the parallel seen in Ghaidan v Godin Mendoza between section 3(1) and conforming interpretation in EU law, its strictures against attaching decisive importance to the precise adjustment needed to the language of the provisions, and the ease with which this court interpreted identical language to include judges as limb (b) workers in OBrien, I can reach no other conclusion than that the Employment Rights Act should be read and given effect so as to extend its whistle blowing protection to the holders of judicial office. The relevant provisions of the Employment Rights Act extend to both England and Wales and Scotland (section 244) but not Northern Ireland. However, the equivalent provisions of the Employment Rights (Northern Ireland) Order 1996 (as amended by the Public Interest Disclosure (Northern Ireland) Order 1998) are to the same effect: article 3(3) defines worker in the same times as section 230(3); articles 67A, 67B, 67C define protected disclosures, qualifying disclosures and those to whom such disclosures may be made in the same way as in Part IVA of the 1996 Act; and articles 70B and 71(1A) provide that a maker of a protected disclosure shall not be subjected to any detriment for doing so and for complaints to an employment tribunal. Those provisions, too, should be read and given effect so as to extend the protection given to whistle blowers to the holders of judicial office. I would therefore allow this appeal and remit the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act.

The issue in the appeal is whether a District Judge qualifies as a worker or a person in Crown employment for the purpose of the protection given to whistle blowers under Part IVA of the Employment Rights Act 1996 (the 1996 Act). If not, is this discrimination against her in the enjoyment of her right to freedom of expression, protected by article 14 taken with article 10 of the European Convention on Human Rights (ECHR)? The appellant was appointed a District Judge by the Lord Chancellor with effect from 6 February 2006. The letter offering her appointment specified the duration, salary, pension and conditions of employment, including as to sitting days, sick pay, maternity leave and conduct. By an Instrument of Appointment the Lord Chancellor approved her to sit at county courts on the Wales and Chester circuit. Major cost cutting reforms took place after 2010. The appellant raised a number of concerns relating to the cuts, in particular the lack of appropriate and secure court room accommodation, her severely increased workload and administrative failures, initially with the local leadership judges and senior court managers, and eventually in a formal grievance. She claims that the handling of her complaints led to a severe degradation in her health, resulting in psychiatric injury and disability. In February 2015 she made a two part claim in the Employment Tribunal, both of which depended on her being a worker within the meaning of s 230(3) of the 1996 Act. Her claim for disability discrimination under the Equality Act 2010 is proceeding, as it is accepted that she is a worker for the purpose of European Union law, from which this claim is derived. Her claim under Part IVA of the 1996 Act is not so derived, and the Employment Tribunal determined as a preliminary issue that she was not a worker under domestic law for the purpose of the whistle blowing provisions. It accepted that she therefore had no protection against the infringement of her right to freedom of expression under article 10 ECHR, but that it was not possible to give effect to s 230(3) so as to give her that protection. Her appeals to the Employment Appeal Tribunal and to the Court of Appeal were dismissed. The Supreme Court unanimously allows the appeal and remits the case to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act. Lady Hale gives the judgment. Worker under domestic law The appellant argued that she is a limb (b) worker under the definition in s 230(3) of the 1996 Act: namely that she works under a contract whereby she undertakes to do or perform personally any work or services for another party to the contract whose status is not by virtue of the contract that of a client or customer of any profession or business she is undertaking [2 3]. The issue is whether the appellants work is performed pursuant to a contract with the recipient of that work or services, or pursuant to some different legal arrangement. Judges hold a statutory office, and office holders do not necessarily hold office pursuant to a contract [12]. It depends on the intention of the parties, which is reflected in the manner of engagement, the source and character of the rules governing service and the overall context [16]. In the appellants case, the essential components of the relationship are derived from statute and not a matter for negotiation; it is difficult to identify her employer; and the separation of powers is a factor against a contract between a Minister of the Crown and a member of the judiciary. Taken together, these factors do not suggest a contractual relationship [17 21]. Nor are judges in Crown employment. They are not civil servants or the equivalent of civil servants. They do not work under or for the purposes of the functions of the Lord Chief Justice, but for the administration of justice in accordance with their oaths of office [22 25]. Human rights The imposition of detriments, such as the bullying, victimisation and failure to take complaints seriously which the appellant alleges, would be an interference with her right to freedom of speech under article 10 ECHR [26]. A claim under the Human Rights Act 1998 (the HRA) would not enable the appellant to seek the wider relief that a worker could under Part IVA of the 1996 Act [27, 30]. The failure to extend the Part IVA protections to judicial office holders is a violation of the appellants right under article 14 not to be discriminated against in her enjoyment of the rights under the ECHR: (i) the facts of her case are within the ambit of article 10; (ii) she has been treated less favourably than other employees and workers who make responsible public interest disclosures; (iii) her occupational classification is clearly a status within the meaning of article 14; and (iv) exclusion of judges is not a proportionate means of achieving a legitimate aim. There is no evidence that either the executive or Parliament addressed their minds to the exclusion of the judiciary from the protection of Part IVA and no legitimate aim has been put forward [28 37]. The remedy for the incompatibility of the exclusion of the judiciary from the protection of Part IVA of the 1996 Act with the rights under the ECHR is found in the obligation on the courts in s 3 of the HRA to read and give effect to primary legislation in a way which is compatible with those rights. It has been established that it is possible to interpret the definition of a limb (b) worker to include judicial office holders when required to do so by EU law, and it would not go against the grain of the 1996 Act to do so in respect of the protections of Part IVA. This interpretation should also apply to the equivalent provisions in the Employment Rights (Northern Ireland) Order 1996 [39 45]. Accordingly the appeal is allowed and the case is remitted to the Employment Tribunal on the basis that the appellant is entitled to claim the protection of Part IVA of the 1996 Act [46].

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This appeal raises a well formulated issue as to the construction of section 21 of the Limitation Act 1980, and a rather more diffuse question as to the meaning and application of section 32 of the Act, in both cases in relation to what is assumed to have been (although this is hotly contested in the proceedings) an unlawful distribution in specie by the Claimant company of its shareholding in a trading subsidiary by the directors of the Claimant (including the two defendants), six years and three days before the issue of the claim form in these proceedings. The Defendants sought summary judgment dismissing the claim on the ground that it was statute barred, and succeeded at first instance, before HHJ Hodge QC, sitting as a judge of the High Court. The Court of Appeal (Arden, Tomlinson and David Richards LJJ) held, first, that time did not run against the Claimant company because of section 21(1)(b) of the Act and that, in any event, there was a triable issue as to whether, within the meaning of section 32 of the Act, there had been deliberate concealment of the facts involved in the breach of duty constituted by the unlawful distribution. Whatever the conclusion of this court as to the construction of sections 21 and 32, there could not now be summary judgment for the Defendant directors. This is because the Claimant has since amended its claim to include the allegation that the claimed unlawful distribution amounted to a fraudulent breach of trust to which the Defendants were party, within the meaning of section 21(1)(a). Nonetheless the issue as to the meaning of section 21(1)(b) is of sufficient importance to have made it appropriate for this appeal (for which permission had been sought prior to the amendment pleading fraud) to proceed. The Assumed Facts At all material times before October 2007, the Claimant was a holding company with a number of trading subsidiaries. The subsidiaries operated in two business areas, the supply and construction of conservatories and a combined heat and power business. Two trading subsidiaries in the conservatory business are referred to in the particulars of claim, K2 Conservatory Systems Ltd (K2) and Cestrum Conservatories Ltd (Cestcon). The combined heat and power business was carried on by Vital Energi Utilities Ltd (Vital). The directors of the Claimant were at all material times the Defendants, Mr and Mrs Fielding, and three other executive directors, Mr Beckett, Mr Whitelock and Mr Kavanagh. The issued share capital of the Claimant comprised three classes of shares: 50,000 A ordinary shares, 50,000 B ordinary shares, and 50,000 D ordinary shares. The A and B ordinary shares were held by Mr and Mrs Fielding in equal parts, while the D ordinary shares were held by Mr Beckett, Mr Whitelock and The Burnden Group Trustee Limited (TBGT), the trustee of an employee share scheme. The controlling shareholders were Mr and Mrs Fielding. In or about July 2007, Scottish & Southern Energy plc (SSE) offered to purchase a 30% shareholding in Vital for 6m, subject to a significant number of conditions including, in particular, the complete separation of Vital from the conservatory business. In October 2007, the following pre arranged transactions were carried out: a. On 4 October 2007, the shareholders of the Claimant exchanged their shares for shares in a new holding company for the group, BHU Holdings Ltd (BHUH), with the shareholdings in that company precisely mirroring the former shareholdings in the Claimant. b. On 12 October 2007, a distribution in specie of the Claimants shareholding in Vital was approved by a unanimous resolution of the directors of the Claimant and by a resolution in writing of BHUH as the sole member of the Claimant. The distribution was effected on 12 October 2007, with the transfer of the only issued share in Vital from the Claimant to BHUH being registered in the register of members of Vital on that day. Although it is pleaded in the particulars of claim that Vital was a subsidiary of the Claimant until 15 October 2007, it is accepted by the Claimant for present purposes that the share in Vital was distributed in specie on 12 October 2007. c. On 15 October 2007, BHUH went into members voluntary liquidation. A special resolution to that effect was passed on that day by the members of BHUH, and the directors of BHUH made a statutory declaration as to its solvency. Also on 15 October 2007, pursuant to reconstruction agreements made on that day under section 110 of the Insolvency Act 1986, the liquidator of BHUH transferred the share in Vital to a new company, Vital Holdings Limited (VHL) and the shares in the Claimant to a new company, Burnden Group Holdings Limited (BGHL). The two new holding companies issued shares to the former shareholders in BHUH, again precisely mirroring their shareholdings in BHUH and, previously, in the Claimant. d. On 19 October 2007, Mrs Fielding sold a 30% shareholding in VHL to SSE for 6m. Of that sum, 3m was lent to the Claimant and the balance was, according to the Claimants case, put towards the purchase of a property for 8.3m by Mr and Mrs Fielding in May 2008. Subsequently, on 2 October 2008, the Claimant, K2 and Cestcon all went into administration. In December 2009, the Claimant went into liquidation and the present liquidator was appointed in December 2012. It is alleged by the Claimant that the distribution in specie of the Claimants shareholding in Vital to BHUH was unlawful, and it is claimed that the Defendants breached their duties to the Claimant in making the distribution. The basis of the claim that the distribution was unlawful, at least when the matter was before the Court of Appeal, was that the Claimant company did not have sufficient accumulated, realised profits to enable the distribution of its shareholding in Vital to be lawfully made. The detailed basis of that allegation has changed over time and has, throughout, been firmly challenged by the Defendants. The detail is irrelevant to the limitation issues before this court. It is simply to be assumed that the distribution was unlawful, that the Defendants participation in it amounted to a breach of their fiduciary duties to the Claimant and that, because the distribution was made to a company, BHUH, in which they were majority shareholders and directors, the distribution was one from which they derived a substantial benefit. Section 21 Section 21 of the Limitation Act 1980 provides, so far as is relevant, as follows: 21. Time limit for actions in respect of trust property. (1) No period of limitation prescribed by this Act shall apply to an action by a beneficiary under a trust, being an action in respect of any fraud or fraudulent (a) breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. (2) Where a trustee who is also a beneficiary under the trust receives or retains trust property or its proceeds as his share on a distribution of trust property under the trust, his liability in any action brought by virtue of subsection (1)(b) above to recover that property or its proceeds after the expiration of the period of limitation prescribed by this Act for bringing an action to recover trust property shall be limited to the excess over his proper share. This subsection only applies if the trustee acted honestly and reasonably in making the distribution. (3) Subject to the preceding provisions of this section, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this Act, shall not be brought after the expiration of six years from the date on which the right of action accrued. For the purposes of this subsection, the right of action shall not be treated as having accrued to any beneficiary entitled to a future interest in the trust property until the interest fell into possession. It is common ground (and clear beyond argument) that, as directors of an English company who are assumed to have participated in a misappropriation of an asset of the company, the Defendants are to be regarded for all purposes connected with section 21 as trustees. This is because they are entrusted with the stewardship of the companys property and owe fiduciary duties to the company in respect of that stewardship: see Paragon Finance plc v DB Thakerar & Co [1999] 1 All ER 400; JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, in particular per Chadwick LJ at paras 25 29; Williams v Central Bank of Nigeria [2014] AC 1189, per Lord Sumption at para 28 and, most recently, First Subsea Ltd (formerly BSW Ltd) v Balltec Ltd [2018] Ch 25, per Patten LJ at para 50. By the same token, the company is the beneficiary of the trust for all purposes connected with section 21. Complications have arisen where, although a director, the Defendants breach of duty did not involve the misapplication of company property: see for example Gwembe Valley Development Co Ltd v Koshy (No 3) [2004] 1 BCLC 131, but those difficulties (if indeed they survive the decision of the Court of Appeal in the First Subsea case) do not arise on this appeal. It is also now common ground that, unless section 21(1) applies, the Defendants have the benefit of the six year period of limitation laid down by section 21(3), because the relevant breach of duty arising from the distribution of the shareholding in Vital occurred on 12 October 2007, and these proceedings were issued more than six years later. At the time of the hearing before the Court of Appeal there was no relevant allegation of fraud: see para 32 of the judgment of David Richards LJ [2017] 1 WLR 39. Although such an allegation has since been pleaded, this appeal has been argued upon the basis that the only question to be decided is whether the Defendants ability to rely upon a six year period of limitation under section 21(3) is denied to them by reason of section 21(1)(b). Section 21(1)(b) is about actions to recover from the trustee trust property or the proceeds of trust property A preliminary objection was taken in the Court of Appeal by Mr David Chivers QC (who appears also on this appeal for the Defendants) that a claim such as the present, for an account of profits or alternatively equitable compensation, did not fall within section 21(1)(b) at all. This was rejected by the Court of Appeal (at para 38), upon the basis that a claim for equitable compensation, in a case where the trustees indirect interest in the trust asset had been converted to the use of the trustee, was an appropriate remedy to seek in an action falling within section 21(1)(b). That analysis of David Richards LJ has not been challenged on this appeal. Rather, Mr Chivers focus has been on the remaining part of section 21(1)(b), by way of submissions that the relevant trust property (namely the shareholding in Vital) was never in the possession of the Defendants, or previously received by them and converted to their use. The gist of his submission, both here and below, was that from start to finish the shareholding in Vital had been in the legal and beneficial ownership and therefore possession of a succession of corporate entities, namely the Claimant company, then BHUH, to which the shareholding was unlawfully distributed, and later VHL, to which the shareholding was later transferred as part of the corporate reconstruction which led to these proceedings, and where it ultimately remained. Although the Defendants were from time to time shareholders and directors in all those corporate entities, the shareholding in Vital was never in their possession, nor previously received by them and converted to their use. To hold otherwise would, he submitted, involve the lifting of one or more corporate veils, or ignoring the separate legal personality of the companies concerned, all of which are prohibited, save in circumstances which do not apply to this case, by the reasoning of this court in Prest v Petrodel Resources Ltd [2013] 2 AC 415. In the Court of Appeal, David Richards LJ acknowledged (at para 35) that this submission responded well to a literal reading of section 21(1)(b) but that such an interpretation would be a recipe for avoidance by trustees because, in the modern world, it is commonplace for companies to be used to hold assets, where the beneficial ownership is vested in the company but the entire economic benefit is available for the shareholders. Relying upon and approving the analysis of Mr Richard Field QC in In re Pantone 485 Ltd; Miller v Bain [2002] 1 BCLC 266, David Richards LJ concluded that, in order to achieve its purpose, section 21(1)(b) had to be construed so as to include within its terms a transfer (in breach of trust) to a company directly or indirectly controlled by the defaulting trustee. which may be summarised as follows: In this court, Mr Chivers made a detailed and thorough attack on that analysis, i) There was no need to be concerned with anti avoidance when construing section 21(1)(b). If trustees deliberately inserted a company between them and the misappropriated assets this would be a recognised ground for lifting the corporate veil: see the Prest case, at paras 34 35. It would be an abuse of corporate legal personality. ii) In any event, the deliberate use of a corporate vehicle to insulate trustees from liability, after six years, for breach of trust would in most cases give rise to a claim in fraud within section 21(1)(a). iii) It was wrong in principle to equate control of a company with possession of its assets save, perhaps, where the company was a pure nominee. For that purpose, he relied upon the analysis of possession for the purposes of section 8 of the Trustee Act 1888 (the distant predecessor of section 21) by Lindley LJ in Thorne v Heard [1894] 1 Ch 599, at 605 606. In practical terms, he submitted that majority shareholders had much less than absolute control over a companys property, because of the requirement to have regard to the interests of other stakeholders, such as minority shareholders and creditors. iv) As to the Pantone case, he submitted that the deputy judges analysis had been based upon the Harrison case (cited above), in which Chadwick LJs conclusion was grounded on facts which included the acquisition (in breach of duty) by a director of the company by a purchase at an undervalue, followed by an on sale of it to a third party. In that type of case, Mr Chivers submitted, the companys property had indeed been previously received by the director/trustee before being converted to his use by its on sale. v) In response to a question from the court as to whether an unlawful distribution in specie could itself be said to be a conversion of trust property Mr Chivers submitted that a distribution, even if unlawful, affirmed rather than denied the companys title to that which was distributed. vi) Finally, in response to the question whether a director could not be said to have previously received company property by virtue of his office as director, in advance of any misapplication of it in breach of trust, Mr Chivers submitted that this would render the requirement of previous receipt otiose, since it would apply in every case. These carefully constructed submissions were of real force, to the extent that they demonstrated that there was no need to have regard to anti avoidance in construing section 21(1)(b). The deliberate use of a corporate vehicle to distance a defaulting trustee from the receipt or possession of misappropriated trust property might justify lifting the corporate veil. In any event it would in most cases justify a finding of fraud, within the meaning of section 21(1)(a). Furthermore, the submission that control of a company afforded by being a majority shareholder and director is not so absolute as to confer de facto possession of its property is persuasive: see eg Lonrho Ltd v Shell Petroleum Co Ltd [1980] 1 WLR 627. But taken as a whole, Mr Chivers submissions do not lead to the conclusion that section 21(1)(b) is inapplicable to the assumed facts with which this appeal is concerned, merely because the misappropriated property has remained legally and beneficially owned by corporate vehicles throughout, rather than becoming vested in law or in equity in the defaulting directors. The starting point in the construction of section 21(1)(b) is to pay due regard to its purpose. This was laid down, in relation to its predecessor, in In re Timmis, Nixon v Smith [1902] 1 Ch 176 at 186 by Kekewich J as follows: The intention of the statute was to give a trustee the benefit of the lapse of time when, although he had done something legally or technically wrong, he had done nothing morally wrong or dishonest, but it was not intended to protect him where, if he pleaded the statute, he would come off with something he ought not to have, ie, money of the trust received by him and converted to his own use. That this is the purpose of what is now section 21 was confirmed by Chadwick LJ in the Harrison case at para 40. Mr Chivers did not, when it was put to him, challenge it in any way. It is necessary to bear in mind that section 21 is primarily aimed at express trustees, and applicable to company directors by what may fairly be described as a process of analogy. An express trustee, such as a trustee of a strict settlement, might or might not from time to time, or indeed at all, be in possession or receipt of the trust property. The property might consist of land in the possession of a tenant for life. By contrast, in the context of company property, directors are to be treated as being in possession of the trust property from the outset. It is precisely because, under the typical constitution of an English company, the directors are the fiduciary stewards of the companys property, that they are trustees within the meaning of section 21 at all. Of course, if they have misappropriated the property before action is brought by the company (the beneficiary for this purpose) to recover it they may or may not by that time still be in possession of it. But if their misappropriation of the companys property amounts to a conversion of it to their own use, they will still necessarily have previously received it, by virtue of being the fiduciary stewards of it as directors. It may well be that, in relation to trustees who are company directors, the requirement in section 21(1)(b) that the property be previously received by them before its conversion adds little or nothing to the conditions for the disapplication of any limitation period which would otherwise have operated in their favour. But that requirement is not otiose in relation to trustees generally, for the reason already given. Thus, for example, the trustee of a strict settlement who had, without dishonesty, committed a breach of trust by neglecting to exercise available powers to prevent dissipation of the trust property by the tenant for life, would not be deprived of the benefit of the trustees six year limitation period by virtue of section 21(1)(b). He would neither be in possession of the trust property, nor would he ever have received it nor, incidentally, would he have converted it to his own use. There is nothing in Mr Chivers objection that to treat individual directors as being in possession, or in previous receipt, of company property by virtue of their office would unfairly assume a level of control over it which they might in practice lack, for example by being in a minority on the Board. Trustees of an express trust in whom the trust property is vested in law are each treated as being in possession or receipt of the trust property, notwithstanding that they hold title to it jointly with all the other trustees. In the present case, (of course only on the assumed facts), the Defendant directors converted the companys shareholding in Vital when they procured or participated in the unlawful distribution of it to BHUH. It was a conversion because, if the distribution was unlawful, it was a taking of the companys property in defiance of the companys rights of ownership of it. It was a conversion of the shareholding to their own use because of the economic benefit which they stood to derive from being the majority shareholders in the company to which the distribution was made. By the time of that conversion the Defendants had previously received the property because, as directors of the Claimant company, they had been its fiduciary stewards from the outset. For those reasons, although they differ to some extent from the Court of Appeals analysis, I would dismiss this appeal so far as it relates to section 21. Section 32 Section 32 of the Limitation Act 1980, as amended by section 6(6) of, and paragraph 5 of Schedule 1 to, the Consumer Protection Act 1987, provides, so far as relevant for present purposes, as follows: 32. Postponement of limitation period in case of fraud, concealment or mistake. (1) Subject to subsections (3) and (4A) below, where in the case of any action for which a period of limitation is prescribed by this Act, either the action is based upon the fraud of the (a) Defendant; or (b) any fact relevant to the plaintiffs right of action has been deliberately concealed from him by the Defendant; or (c) consequences of a mistake; the action is for relief from the the period of limitation shall not begin to run until the plaintiff has discovered the fraud, concealment or mistake (as the case may be) or could with reasonable diligence have discovered it. References in this subsection to the Defendant include references to the Defendants agent and to any person through whom the Defendant claims and his agent. (2) For the purposes of subsection (1) above, deliberate commission of a breach of duty in circumstances in which it is unlikely to be discovered for some time amounts to deliberate concealment of the facts involved in that breach of duty. The Court of Appeal reversed the judges order by way of Defendants summary judgment in relation to section 32, mainly because they regarded the issues as to its applicability as being too fact sensitive to be suitable for summary judgment: see per David Richards LJ at paras 51 and 55. On the way to that conclusion David Richards LJ adopted an interpretation of section 32(2) which has, on this appeal, been subjected to significant, albeit commendably brief, criticism by Mr Chivers, both orally and in writing, centred around issues as to the meaning of the phrase some time in subsection (2), and the interpretation placed upon it by Lewison J in JD Wetherspoon plc v Van de Berg & Co Ltd [2007] EWHC 1044 (Ch); [2007] PNLR 28, at para 40. The in depth analysis of this difficult question would take the court into a potential minefield of difficulties which surround section 32 and, in this corporate context, would also involve a consideration of questions of attribution. There cannot be summary judgment in favour of the Defendants in this case, both because of the recent plea of fraud and because of this courts decision about the meaning of section 21. Whatever the correct interpretation of section 32(2), there would still be fact intensive issues calling for a trial. In view of the relatively summary way in which this issue has been addressed by counsel (about which I express no criticism at all), I have not therefore considered it appropriate to reach any final view about it. It is sufficient for present purposes for me to conclude that the appeal in relation to section 32 should be dismissed because the issue is unsuitable for summary judgment. I express no view one way or the other on the correctness or otherwise of the interpretation of section 32(2) adopted en passant by the Court of Appeal.

Prior to 4 October 2007, Mr and Mrs Fielding, (the Defendants) were directors and controlling shareholders of Burnden Holdings (UK) Limited (the Claimant). The Claimant was the holding company of a number of trading subsidiaries, including Vital Energi Utilities Ltd (Vital). On 4 October 2007, the shareholders of the Claimant exchanged their shares for shares in a new holding company for the group, BHU Holdings Ltd (BHUH). On 12 October 20071, in an approved transaction, the Claimant effected a distribution in specie of its shareholding in Vital to BHUH. Subsequently, the shareholding in Vital was transferred to another new holding company (VHL). Mrs Fielding later sold her shareholding in VHL, and the Claimant went into liquidation. On 15 October 2013, more than six years after the 12 October 2007 distribution, the Claimant, by its liquidator, issued proceedings against the Defendants for the unlawful distribution in specie of the Claimants shareholding in Vital. This was outside of the six year limitation period set out in section 21(3) of the Limitation Act 1980 in respect of an action by a beneficiary for breach of trust. The Defendants applied to the High Court for summary judgment on the basis that the claim was time barred. For the purposes of the present appeal, it is assumed that the distribution was unlawful, because this appeal concerns only the limitation issues; however, the unlawfulness of the distribution is contested by the Defendants in the main proceedings. The High Court granted summary judgment in favour of the Defendants on the ground that the claim was time barred. The Court of Appeal set aside the judges order for summary judgment on the basis that the limitation period did not run against the Claimant, because section 21(1)(b) of the Limitation Act 1980 (section 21(1)(b)) provides that no limitation period applies to an action by a beneficiary under a trust to recover from the trustee trust property or the proceeds of trust property in the possession of the trustee, or previously received by the trustee and converted to his use. The Court of Appeal further held that, in any event, there was a triable issue as to whether section 32 of the Limitation Act 1980 (section 32) applied. Section 32 provides that where any relevant fact has been deliberately concealed by the Defendant, the period of limitation does not begin to run until the plaintiff has, or could have, discovered the concealment. The Defendants appealed to the Supreme Court on the proper construction of section 21(1)(b) (in particular whether company directors are in possession of or have previously received trust property within the meaning of that section), and section 32.2 1 The date of this transaction is in issue in the main proceedings, but for the purposes of this appeal, 12 October 2007 is accepted as the relevant date. 2 Since the Court of Appeal judgment, the Claimant has amended its claim to include an allegation of fraud. Under section 21(1)(a) of the Limitation Act, this means there could not now be summary judgment for the Defendants. Nonetheless the issue as to the meaning of section 21(1)(b) is of sufficient importance to have made it appropriate for this appeal (for which permission had been obtained prior to the amendment pleading fraud) to proceed. The Supreme Court unanimously dismisses the appeal, finding that section 21(1)(b) applies to trustees who are company directors, who are to be treated as being in possession of the trust property from the outset. The Court declines to express a final view on section 32. Lord Briggs gives the judgment, with which the rest of the Court agrees. Section 21 For the purposes of section 21, the Defendants are regarded as trustees, because they are entrusted with the stewardship of the companys property and owe fiduciary duties to the company in respect of that stewardship. The company is regarded as the beneficiary of the trust under section 21 [11]. Contrary to the Defendants submissions, section 21(1)(b) does not become inapplicable merely because the misappropriated property has remained legally and beneficially owned by corporate vehicles, rather than having become vested in law or in equity in the defaulting directors [16]. The purpose of section 21(1)(b), as laid down in In re Timmis, Nixon v Smith [1902] 1 Ch 176 and JJ Harrison (Properties) Ltd v Harrison [2002] 1 BCLC 162, is to give a trustee the benefit of the lapse of time when, although he had done something legally or technically wrong, he had done nothing morally wrong or dishonest. It is not intended to protect him where, if he pleaded the statute, he would come off with something he ought not to have [17]. Section 21 is primarily aimed at express trustees and is applicable to company directors by a process of analogy. An express trustee might or might not from time to time be in possession or receipt of the trust property [18]. By contrast, in the context of company property, directors are to be treated as being in possession of the trust property from the outset. It is precisely because, under the typical constitution of an English company, the directors are the fiduciary stewards of the companys property, that they are trustees within the meaning of section 21. If their misappropriation of the companys property amounts to a conversion of it to their own use, they will necessarily have previously received it, by virtue of being the fiduciary stewards of it as directors [19]. In relation to trustees who are company directors, it may be that the requirement in section 21(1)(b) that the property be previously received by them adds little or nothing to the other conditions for the disapplication of the limitation period. However, that requirement is not redundant in relation to trustees generally [20]. On the assumed facts of the present case, the Defendants converted the companys shareholding in Vital when they procured or participated in the unlawful distribution of it to BHUH. By the time of that conversion the defendants had previously received the property because, as directors of the Claimant, they had been its fiduciary stewards from the outset [22]. Section 32 In depth analysis of the section 32 issue would take the court into a minefield of difficulties. It is not necessary to decide this point because of the recent plea of fraud, and because of this courts decision about the meaning of section 21, which mean the issue is unsuitable for summary judgment. Accordingly the court expresses no view on the correctness of the Court of Appeals approach to section 32(2) [26].

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On 21 March 2016, this court gave a father permission to appeal against the decision of the Court of Appeal that a custody order which he had obtained in Romania should not be enforced in this country under the Brussels II (Revised) Regulation (BIIR), because it had been given without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure in this country. In the view of the panel giving permission to appeal, the judgment of the Court of Appeal raised an arguable point of law of general public importance, as to the precise extent to which it is a fundamental principle of the procedure relating to all cases about children in the courts of England and Wales that the child should be given an opportunity to be heard. This is a question of importance in all childrens cases, not just those where the court here is asked to enforce a judgment given in another member state of the European Union. However, it has now become clear that under BIIR this court has no jurisdiction to entertain such an appeal. This point was not raised by the respondent mother in her notice of objection to the application for permission to appeal. No doubt, had she done so, the court would have listed it for oral argument before deciding whether or not to give permission. In the event, once it was raised, we were able to arrange a hearing at short notice, in advance of the date set for the substantive appeal. As a point of jurisdiction, it could not be ignored, however inconveniently late in the day it was raised. We are grateful to the parties for the speed with which they have prepared their written and oral arguments and, in particular, to the Ministry of Justice, whom we asked to intervene in order to give us an account of the relevant history. The history of the case The circumstances in which this question arises are deeply unfortunate, not least because of the delays there have been, not only in Romania but also in this country, but they are largely irrelevant to the question of law which we have to decide. The child in question, DD, was born in Romania on 8 November 2006 and so is now aged nine and a half. His parents are both Romanian but met while working in this country. They returned briefly to Romania, where they got married and the child was born, but by January 2007 both parents had returned to live in this country with the child. They separated in November 2007. DD has continued to live here with his mother, his main carer, ever since. The father returned to live in Romania in 2009, but has kept a second home here and for most of the intervening years (with a long gap from November 2012 until March 2014) has shared the care of DD with the mother. He has a significant relationship with his son. Although DD is undoubtedly habitually resident in this country, the parties chose to litigate about his future in Romania. The father issued divorce and custody proceedings there in November 2007. The couple were divorced in April 2008. The father was awarded custody of DD, but the mother successfully appealed. At the retrial, the father was again awarded custody, but first the mother and then the father successfully appealed. At a further retrial in a different court, in December 2011, the court awarded joint parental authority to both parents, while finding that DDs domicile and residence were at the mothers address in England. Both parties appealed, but their appeals were dismissed in March 2013, on the basis that joint custody is the norm and sole custody the exception. Nevertheless, the child should remain living with his mother in England, as it was not in his best interests to change his living arrangements. The father launched a further appeal, to the Bucharest Court of Appeal. Its final decision, in November 2013, was that the child should live with the father, on the basis that he could provide the best moral and material conditions. In February 2014, the father applied for the recognition and enforcement of this order by the English court. The result was the re establishment of contact between father and son and a High Court ordered arrangement that the parents share his care in this country while the fathers application proceeded. On 1 May 2014, Peter Jackson J ordered that DD be made a party to the enforcement proceedings: see the summary of the history in In re D (Recognition and Enforcement of Romanian Order) [2014] EWHC 2756 (Fam), [2015] 1 FLR 1272. He quotes, in para 33, the reasons given in his earlier judgment. This was not so as to make inquiries as to his welfare, which would be inappropriate in enforcement proceedings, but because Ds rights as an individual child are engaged in his fathers application and whatever has happened in this case he bears no responsibility for it (para 15). His interest was not being represented (para 16) and the facts were egregious (para 10) neither the judge, nor counsel, nor the Childrens Guardian had experienced a case in which enforcement is being sought with regard to a child who has attained the age of seven and has never lived in the country from which the relevant order emanates (para 11). The registration of an order under BIIR is essentially administrative, although it requires a judicial act: see In re S (Foreign Contact Order) [2009] EWCA Civ 993, [2010] 1 FLR 982, para 12. Judicial consideration of any dispute occurs at the first appeal stage. This came before Peter Jackson J who determined it in July 2014 (reference above). Article 23 lays down seven grounds for non recognition. The judge rejected the mothers case on article 23(a), that recognition was manifestly contrary to the public policy of the member state in which recognition is sought taking into account the best interests of the child. This ground is to be narrowly construed and the Bucharest decision was not so extreme as to require recognition to be withheld on this ground (para 74). However, he did refuse recognition under article 23(b), which provides that a judgment shall not be recognised if it was given, except in case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition is sought. The Bucharest Court of Appeals conclusion about DDs wishes and feelings, namely that he constantly craves for [the fathers] permanent presence, had not arisen from any direct or indirect enquiry involving the child himself (para 83). It had a report from a Cafcass officer in earlier enforcement proceedings when DD was two years old. It had a report from a social worker when he was five and a half, in response to the fathers concerns about the mothers care. At the first tier appeal in February 2013, the father had asked the court to hear the child, but the mother had opposed this (interestingly, given her current stance), and the court had deemed it not useful given the age of the minor. Peter Jackson J disagreed: The childs entitlement to a voice is a fundamental procedural principle in our system. If he is old enough, it will be his voice and his words. An adult voice will convey the younger childs point of view. Younger children are less able to articulate their wishes, but their feelings may be more vivid than those of older children and of adults, whose views we canvass without a second thought. (para 96) A report from a court social worker, containing the childs perspective, would be fundamental to the decision of any English court, faced with a striking application of this kind (peremptory change of lifelong carer, country and language) (para 103). He therefore allowed the mothers appeal on this ground. He also allowed her appeal on the grounds contained in article 23(c) (lack of service) and (d) (not giving the mother an opportunity of being heard). The Court of Appeal dismissed the mothers cross appeal on article 23(a), allowed the fathers appeal on article 23(c) and (d), but dismissed the fathers appeal on article 23(b): [2016] EWCA Civ 12, [2016] 1 WLR 2469. The question of whether and how the childs voice was to be heard in the proceedings was a separate question from the weight to be given to his wishes and feelings: the rule of law in England and Wales includes the right of the child to participate in the process that is about him or her. That is the fundamental principle that is reflected in our legislation, our rules and practice directions and jurisprudence. At its most basic level it involves asking at an early stage in family proceedings whether and how that child is going to be given the opportunity to be heard. The qualification in section 1(3)(a) [of the Children Act 1989] like that in article 12(1) [of the United Nations Convention on the Rights of the Child 1989] relates to the weight to be put upon a childs wishes and feelings, not their participation. (para 44) This court is not concerned with whether the decisions reached by the trial judge and Court of Appeal in this particular case were right or wrong. They may very well have been right. Nor is it concerned with the extent to which the childs right to be heard is a fundamental principle of the procedure in the courts of England and Wales in cases relating to the future of children. That is a very large question and views may differ as to precisely what the effect is of the Court of Appeals judgment. This court is solely concerned with whether we have any jurisdiction to entertain an appeal against the decision of the Court of Appeal that the Romanian order should not be registered and enforced in this country. The jurisdiction question The jurisdiction of the Supreme Court of the United Kingdom is governed by section 40 of the Constitutional Reform Act 2005. So far as material, this provides: (2) An appeal lies to the Court from any order or judgment of the Court of Appeal in England and Wales in civil proceedings. (6) An appeal under subsection (2) lies only with the permission of the Court of Appeal or the Supreme Court; but this is subject to provision under any other enactment restricting such an appeal. The question, therefore, is whether the provisions of BIIR constitute an enactment restricting such an appeal from the Court of Appeal or otherwise override the provisions of the 2005 Act. This encompasses two questions: first, what is the meaning and effect of the provisions of BIIR in European Union law; and second, what is their effect upon the provisions of an Act of the United Kingdom Parliament? The Brussels II Revised Regulation By article 28 of BIIR, a judgment on parental responsibility which is enforceable in the member state where it was given shall be enforced in another member state when it has been declared enforceable there. (In the United Kingdom, this means the part of the United Kingdom where it has been registered.) By article 29, the application for such a declaration shall be submitted to the court appearing in the list notified by each member state to the Commission pursuant to article 68. The High Court of Justice Principal Registry of the Family Division has been notified for this purpose. Rule 31.4 of the Family Procedure Rules 2010 provides that applications should be made to a district judge (as had previously been indicated should be the case by Thorpe LJ in In re S, above, at para 16). By article 31, the court applied to must give its decision without delay and neither the person against whom enforcement is sought nor the child is entitled to make any submissions about it. Although the application may be refused for one of the reasons set out in articles 22, 23 and 24, under no circumstances may a judgment be reviewed as to its substance (article 31.3). In essence, therefore, this is intended to be a speedy ex parte (and essentially administrative) process. The first opportunity for inter partes debate comes with the first appeal under article 33. Under article 33.1, either party may appeal the decision on the application for a declaration. Once again it is to be lodged with the court notified under article 68 (article 33.2). The High Court of Justice Principal Registry of the Family Division has again been notified for this purpose, but rule 31.15(1) of the Family Procedure Rules provides that the appeal must be made to a judge of the High Court (again as advised by Thorpe LJ in In re S). The appeal must be lodged within one month of service of the declaration, or two months if the person against whom enforcement is sought is habitually resident in a member state other than that where the declaration was given (article 33.5). Once again, the need for speed is emphasised. Then comes article 34, the provision which is crucial to this case: The judgment given on appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. Article 68 provides that member states shall notify to the Commission the lists of courts and redress procedures referred to (relevantly) in articles 29, 33 and 34 and any amendments thereto. The Commission is to keep the information up to date and to make it publicly available. The reference to the United Kingdom in its consolidated list of notifications reads as follows: The appeals provided for in article 34 may be brought only: in the United Kingdom, by a single further appeal on a point of law: (a) in England and Wales, to the Court of Appeal. On the face of it, therefore, the position under BIIR is quite clear. There is to be a largely formal first stage when (no doubt usually) the judgment is declared enforceable; there is to be a first appeal when the enforceability decision can be contested; and the decision on that appeal can only be contested by the notified proceedings. It follows that if there were no notification under articles 34 and 68, as is the case with Cyprus and Malta, there would be no appeal possible under article 34. The UKs notification expressly limits the proceedings to a single further appeal on a point of law which must be made, in England and Wales, to the Court of Appeal. No mention is made of a further appeal to the Supreme Court of the United Kingdom. This too accords with the understanding of Thorpe LJ in In re section The United Kingdom notification may be contrasted with the notification given by Ireland under articles 33 and 71 of Council Regulation (EC) No 4/2009 on jurisdiction, applicable law, recognition and enforcement of decisions and cooperation in matters relating to maintenance obligations (the Maintenance Regulation). Article 33 provides that the decision given on appeal may be contested only by the procedure notified by the member state concerned to the Commission in accordance with article 71. Article 71 requires member states to communicate to the Commission the redress procedures referred to in article 33. Irelands notification says this: An appeal on a point of law to the Court of Appeal (it should be noted, however, that in accordance with the provisions of the Irish Constitution, the Supreme Court shall have appellate jurisdiction from a decision of the High Court if it is satisfied that there are exceptional circumstances warranting a direct appeal to it. The Supreme Court shall also have appellate jurisdiction from a decision of the Court of Appeal if it is satisfied that certain conditions laid down in the Constitution are satisfied. It would appear, therefore, that at least one member state considers it possible to provide for two tiers of appeal from the first appeal. It is not for this court to say whether that is consistent with either article 34 of BIIR or article 33 of the Maintenance Regulation. Whether or not the United Kingdom could have provided for a further appeal to the Supreme Court, which some might think necessary if only to resolve inconsistent decisions in different parts of the United Kingdom concerning a Regulation which applies throughout, the fact remains that it did not do so. Furthermore, the approach adopted by the United Kingdom in all previous European instruments concerned with the free movement of judgments and judicial cooperation within the European Union has been to provide for only one tier of further appeal. The first of these was the Brussels Convention on Jurisdiction and the Enforcement of Judgments in Civil and Commercial Matters (the 1968 Convention), concluded by the original six member states of the European Economic Community in 1968, later amended to include the United Kingdom. The courts and methods of appeal are specified in article 37 of the Convention itself, in England and Wales the first appeal going to the High Court (or in the case of a maintenance judgment, to the magistrates court), and that decision being contested only by a single further appeal on a point of law. As the official Explanatory Report comments, the object of the Convention was to ensure that the judgment given on the appeal may be contested only by an appeal in cassation and not by any other form of appeal or review (OJ 1979 C 59, pp 1, 51 52). This was because An excessive number of avenues of appeal might be used by the losing party purely as delaying tactics, and this would constitute an obstacle to the free movement of judgments which is the object of the Convention. Of course, this rationale only really applies to attempts by the person against whom enforcement is sought, such as the mother in this case, to resist enforcement, but what is sauce for the goose must also be sauce for the gander. The 1968 Convention (along with its 1971 Protocol and the 1978 Convention on the accession of Denmark, Ireland and the United Kingdom to them both) was given effect in United Kingdom law by the Civil Jurisdiction and Judgments Act 1982. Interestingly, section 6(1) specifies that the single further appeal on a point of law lies in England and Wales either to the Court of Appeal or to the Supreme Court (formerly to the House of Lords) under the leap frog procedure provided for in the Administration of Justice Act 1969. Council Regulation (EC) 44/2001 on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters (the Brussels I Regulation) was designed to replace the 1968 Convention with directly applicable Community legislation. The approach to avenues of challenge was the same, save that instead of containing each countrys permitted avenues in the text of the relevant articles, these referred to lists contained in Annexes to the Regulation. Thus article 43.2 provided that the first appeal should be lodged with the court indicated in Annex III, which for England and Wales was the High Court of Justice (except for maintenance judgments); and article 44 provided that the judgment given on appeal might be contested only by the appeal referred to in Annex IV, which was once again a single further appeal on a point of law. The Civil Jurisdiction and Judgments Order 2001 (SI 2001/3929) specified, once again, that in England and Wales this would lie either to the Court of Appeal or on a leap frog appeal to the House of Lords (article 4). In 1998, the Council approved a Convention extending the scope of the Brussels regime to matrimonial matters. This took the same approach to the methods of challenging enforcement applications as had the 1968 Convention. The 1998 Convention never became applicable but was the source of the 2000 Council Regulation (EC) 1347/2000 on jurisdiction and the recognition and enforcement of judgments in matrimonial matters and in matters of parental responsibility for children of both spouses (the Brussels II Regulation), which was the immediate predecessor to the BIIR Regulation. This adopted the same method as the Brussels I Regulation was to adopt some seven months later. Article 26.2 provided that the first appeal should be lodged with the court listed in Annex II, which for England and Wales was the High Court of Justice. Article 27 provided that the judgment given on appeal might be contested only by the proceedings listed in Annex III, which for the UK was by a single further appeal on a point of law. However, the European Communities (Matrimonial Jurisdiction and Judgments) Regulations 2001 (SI 2001/310), unlike the 2001 Order relating to the Brussels I Regulation, did not specify what was meant by a single further appeal on a point of law, nor did the new Chapter 5 of the Family Proceedings Rules 1991, introduced by article 29 of the Family Proceedings (Amendment) Rules 2001 (SI 2001/821) to cater for the Brussels II Regulation. However, BIIR, which replaced the Brussels II Regulation, adopts a slightly different technique. Instead of describing the appeal processes in the text, or in Annexes, it provides for each member state to communicate the avenues of first appeal and further contestation to the Commission thus enabling member states to change the processes without the need to revise the Regulation. Unlike both the Brussels II and the Brussels I Regulations, BIIR does not contain either in its main text or in Annexes a reference to a single further appeal on a point of law. There is no express limit in article 34 to the number of proceedings whereby the judgment on the first appeal may be contested (although article 35 refers to the appeal under article 34 rather than an appeal). This more flexible approach is also taken in the 2009 Maintenance Regulation (which removed maintenance obligations from the scope of the Brussels I Regulation). While article 33 provides that the decision given on first appeal may be contested only by the procedure notified in accordance with article 71, article 71 requires member states to communicate the redress procedures referred to in article 33. For what it is worth, the recast version of the Brussels I Regulation, Regulation (EU) 1215/2012 of the European Parliament and of the Council, on jurisdiction and the recognition and enforcement of judgments in civil and commercial matters, also adopts this more flexible technique. Article 50 provides that the judgment given on the first appeal can only be contested by an appeal where the courts with which any further appeal is to be lodged have been communicated to the Commission under article 75(c), which also refers to courts. The United Kingdom has retained the previous reference (for England and Wales) to an appeal either to the Court of Appeal or under the leap frog procedure to the Supreme Court. The purpose of all these instruments is that, save in very narrowly defined circumstances, member states should recognise and enforce one anothers judgments. The recitals to BIIR are typical: The European Community has set the objective of creating an area of freedom, security and justice, in which the free movement of persons is ensured (Recital 1). The recognition and enforcement of judgments given in a member state should be based on the principle of mutual trust and the grounds for non recognition should be kept to the minimum required (Recital 21). From the very outset, in 1968, member states were anxious that there should not be too many avenues and methods of challenging enforcement decisions, hence the restriction to cassation type further appeals. It may well be, as Mr Richard Harrison QC has argued very ably on behalf of the father, that the strict approach taken in the earlier instruments has had to give way to the more flexible approach taken more recently. It may well be that it would be open to the United Kingdom to do as Ireland has done and notify the possibility, not only of leap frog appeals from the High Court to the Supreme Court, but also of appeals from the Courts of Appeal in each part of the United Kingdom to the Supreme Court. The fact remains that it has not done so. It is also true to say that the policy of the United Kingdom has not been entirely consistent. In relation to civil and commercial judgments, the 1968 Convention, the Brussels I Regulation and the recast Brussels I Regulation provide for the possibility of either an appeal to the Court of Appeal or a leap frog appeal to the House of Lords or Supreme Court (thus, it would appear, giving the Supreme Court jurisdiction where the Court of Appeal has gone wrong in law in an earlier case, but not if it does so in the current case). It has not been possible to discover why a different approach, excluding the House of Lords or Supreme Court altogether, was taken in relation to family matters in the Brussels II Regulation and BIIR. It is known that the President of the Family Division, the Solicitors Family Law Association, The Law Society, the Family Law Bar Association, Reunite, Pact, and the Child Abduction Unit in the Office of the Official Solicitor were consulted on the Commissions revised draft text of BIIR and that the Lord Chancellors Department continued to consult the President of the Family Division, Thorpe LJ (Chairman of the Presidents International Committee), senior practitioners and Reunite during the negotiations. But it is not known precisely how and why the decision was taken to adopt the new approach in article 34 or how and why the United Kingdom government chose to make the notification which it did. The Minutes of the International Family Law Committee of the Family Justice Council held on 8 November 2004, at which the proposed BIIR was discussed, do not record any discussion of these matters. But it is not surprising that the notification was to the same effect as Annex III to the Brussels II Regulation, nor is it unlikely that limiting the scope for multiple appeals was seen as an important consideration. The fact remains that the United Kingdom did make the notification in question. The question, therefore, is whether BIIR, combined with that notification, is effective to restrict what would otherwise be the jurisdiction of the Supreme Court under section 40 of the 2005 Act. The effect of BIIR in United Kingdom law Mr Harrison faces the serious difficulty that article 34 clearly states that the decision on appeal may only be contested by the notified proceedings. On the face of it, therefore, as Mr Hugh Mercer QC submits on behalf of the Ministry of Justice, if there were no relevant notification, there would be no possibility of further challenge (as is apparently the case with Cyprus and Malta). Mr Harrison seeks to avoid this problem in two ways. First, he argues that the notification, being an act of the executive without any Parliamentary scrutiny or approval, cannot be an enactment for the purpose of section 40(6). He is of course quite correct that the executive has no power to amend or qualify primary or delegated legislation unless Parliament has given it the power to do so. An example is the power given by the United Nations Act 1946 to make Orders in Council without Parliamentary scrutiny where necessary to comply with the United Kingdoms obligations under the United Nations Charter. Express language would be required for such a power to permit the executive to abrogate fundamental rights such as the right of access to a court: see A v HM Treasury (JUSTICE intervening) [2010] UKSC 2; [2010] 2 AC 534. In fact, such delegated legislative powers are far more frequently exercised by statutory instrument which has to be laid before, and in some cases positively approved by, Parliament. It is also correct that the power to amend primary legislation and otherwise to legislate for the purpose of complying with the United Kingdoms obligations in European Union law, conferred by section 2(2) of the European Communities Act 1972, has to be exercised by Order in Council or by orders, rules, regulations or schemes. The notification was none of these things. By itself, therefore, it could not be effective to amend or qualify section 40(2) of the Constitutional Reform Act 2005. However, we are concerned, not with the notification alone, but with the combined effect of article 34 of BIIR and the notification. It is trite law that European Regulations are directly applicable in all member states without the need for further legislative implementation there: Treaty on the Functioning of the European Union, article 288. It was, of course, necessary for the United Kingdom to legislate to make this treaty provision the law in the United Kingdom. This it did by section 2(1) of the European Communities Act 1972: (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; Furthermore, by section 2(4): (4) any enactment passed or to be passed shall be construed and have effect subject to the foregoing provisions of this section Thus, Parliament has decreed that its own legislation is to have effect subject to the requirements of directly applicable European Union law. This includes section 40(2) of the 2005 Act. Mr Harrison is therefore driven to argue that articles 34 and 68 of BIIR are not, in fact, directly applicable. This is because they require measures of application to be adopted by member states in order to be implemented. He relies, in particular, on the cases of Azienda Agricola Monte Arcosu Srl v Regione Autonoma Della Sardegna and Others (Case C 403/98) [2001] ECR I 103; [2002] 2 CMLR 14 and OBB Personenverkehr AG v Schienen Control Kommission (Case C 509/11) [2014] 1 CMLR 51. His best example is the OBB case, which concerned a Regulation (1371/2007) providing for rail passengers to be compensated for delay. Under article 30, each member state was to designate a body responsible for enforcing the Regulation. But the Regulation did not define the specific measures which that body had to be able to adopt to secure compliance. The relevant body in Austria, the Kommission, required the railway company, OBB, to alter the terms and conditions of its tickets so as to comply with the compensation requirements of article 17 of the Regulation. But under Austrian law the Kommission did not have the power to do so. The Court held that article 30 by itself did not give it the power to impose terms on the railway company. (I note that it would be a completely separate question whether the passenger could rely on the direct effect of the Regulation in order to claim the compensation which it prescribed.) The Azienda case concerned Regulation No 797/85, which provided for certain payments to farmers practising farming as [their] main occupation. Member states were required to define what that meant, both for natural and non natural persons. The relevant Italian law defined it for individuals and certain other entities, such as farming co operatives, but did not provide for limited companies at all. The Court held that, as the Regulation required a definition before it could be operated, a limited company conducting farming operations could not make claims under the Regulation. The principle was stated thus: 26. In this respect, although, by virtue of the very nature of regulations and of their function in the system of sources of Community law, the provisions of those regulations generally have immediate effect in the national legal systems without its being necessary for the national authorities to adopt measures of application, some of their provisions may nonetheless necessitate, for their implementation, the adoption of measures of application by the member states. Thus, says Mr Harrison, as articles 34 and 68 of BIIR required further measures of implementation in the form of notifications by the member states, they cannot be directly applicable. The simple answer to this argument is that articles 34 and 68 are not comparable with the articles under consideration in these two cases. Article 34 does not depend for its implementation upon the member states choice of avenue of appeal. If the member state fails to notify any such avenue of appeal, then none will exist. But in any event, the member state in question did make a relevant notification. There is nothing in these cases to suggest that, if the required measures of implementation are adopted in a member state, the Regulation is not directly applicable there (and indeed effective to create individual rights). The farmers who were covered by the Italian definition would no doubt have been able to claim their rights under the Regulation. Mr Harrisons final argument is that the notification cannot be effective if it does not give an accurate picture of the appellate rights under United Kingdom law. Article 68 requires member states to supply information as to the position in their country; it does not permit them to change the position as it would otherwise be. However, so to interpret article 68 would run counter to the purpose of the provisions relating to routes of challenge which date back to the 1968 Convention and continue through all the European instruments discussed earlier. This is to limit the avenues and methods of appeal so as to avoid delays and manoeuvrings which will defeat the object of effective enforcement of one anothers orders. This object may have become slightly diluted in the more recent instruments, but the Regulation clearly contemplates the possibility that Member States will make notifications which cut down the routes of appeal which would otherwise be available. Conclusion I am therefore satisfied that the Supreme Court of the United Kingdom has no jurisdiction to entertain an appeal in this case. The appeal which has been lodged should therefore be struck out.

These proceedings concern a child, called DD in the judgment, who was born in 2006 in Romania, to Romanian parents who met while working in England. The family returned to England after the birth. The parents separated in 2007 and DD has lived in England since then in the care of his mother. The father returned to Romania in 2009 but has maintained a significant relationship with his son. He commenced divorce and custody proceedings in Romania in 2007 which, after long delays, culminated in a decision of the Bucharest Court of Appeal in November 2013 that DD should live with his father. The father applied for the recognition and enforcement of this custody order by the English court in February 2014. These proceedings are governed by the Brussels II (Revised) Regulation (BIIR). DD was made a party. In July 2014 a High Court judge refused the fathers application, applying article 23(b) BIIR which provides that a judgment should not be recognised if it was given, except in a case of urgency, without the child having been given an opportunity to be heard, in violation of fundamental principles of procedure of the member state in which recognition was sought. The Romanian court had not made direct or indirect enquiry of DD regarding his wishes and feelings. The Court of Appeal upheld the judges order. The father sought to pursue a further appeal to the Supreme Court. The Supreme Court considered as a preliminary issue whether it had jurisdiction to hear an appeal against an order for the enforcement of a custody order in proceedings governed by BIIR. The Supreme Court unanimously rules that it does not have jurisdiction to hear the fathers appeal, which must therefore be struck out. Lady Hale gives the only substantive judgment. Under s 40 of the Constitutional Reform Act 2005, appeals to the Supreme Court are subject to provision under any other enactment restricting such an appeal. The question therefore is whether the provisions of BIIR constitute such an enactment or otherwise override the jurisdiction granted to the Supreme Court by s 40 [12]. The application to register a judgment governed by BIIR is intended to be a speedy and essentially administrative process. Either party may appeal the decision under article 33, which is subject to the provision in article 34 that the judgment given on such an appeal may be contested only by the proceedings referred to in the list notified by each member state to the Commission pursuant to article 68. The UK has provided in its list of notifications under article 68 that appeals in England and Wales under article 34 may be brought only by a single further appeal on a point of law to the Court of Appeal [16]. It has been the practice of the UK in several previous European instruments concerned with the free movement of judgments and judicial cooperation to provide for only one tier of further appeal. The purpose of this restriction is to further the intention of these instruments that member states should recognise and enforce each others judgments without too many avenues for challenge [26]. The provisions of BIIR and the notification under article 68 are directly applicable in the UK. Article 34 does not depend for its implementation upon the member states choice of avenue of appeal and in any event the UK did make a notification [37]. It is not necessary for the notification to reflect all appellate rights under UK law: to further the objective of BIIR, article 68 permits member states to make notifications which cut down the routes of appeal which would otherwise be available [38]. It follows that the Supreme Court has no jurisdiction to entertain an appeal in this case and the appeal is struck out.

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From time to time over many years the Secretary of State for the Home Department has been concerned to deport a foreign national on the grounds of national security. Sometimes, indeed with increasing frequency, those facing such deportation decisions have wished to contest them, either by challenging that they present a national security risk, or by invoking the European Convention on Human Rights and contending that they would be at risk of article 3 ill treatment if returned to their home country. To enable such cases to be properly heard, Parliament, by the Special Immigration Appeals Commission Act 1997 (the 1997 Act) established SIAC and, as will be very familiar to all with any interest in this area of the law, provided for an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. All this has been rehearsed time and again in a succession of judgments not least, indeed, in paras 4 15 of the judgment below and no useful purpose would be served by my repeating it all here. Put very shortly, if the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the appellant, SIACs rules and procedures provide for this to be done just how satisfactorily being a matter of continuing debate into which, happily, there is on this appeal no need to enter. The difficulty raised by the present case is a very different one and, it should be recognised at once, one that faces the court with what can only be regarded as the most unpalatable of choices. It is lesser evils which the court is searching for here, not perfect solutions. The difficulty and dilemma now before us can most easily be illustrated by my immediately sketching out a notional set of facts. Suppose that an appellant before SIAC (A) is a suspected terrorist whom it is proposed to return to Algeria. Such, indeed, is the position of each of the appellants now before us. Suppose this, too, is no mere supposition; it has been common ground before SIAC in a number of cases that Algeria is a country where torture is systematically practised by the DRS (Information and Security Department) and that no DRS officer has ever been prosecuted for it; and that: in the absence of [certain assurances from the Algerian Government] there would be a real risk that on his return to Algeria A (and persons in a similar position) would be tortured or subject to other ill treatment (SIACs judgment of 8 February 2007 in G v Secretary of State for the Home Department: Appeal No SC/02/05 G being one of the appellants now before us). Suppose that the Algerian authorities are hostile to any independent scrutiny of their actions in the human rights sphere: human rights organisations such as Amnesty and Human Rights Watch are not permitted to operate there; even the International Red Cross is denied access to DRS facilities. And suppose, as is also here the case, that the Secretary of State obtains assurances from the Algerian Government that As rights will be respected on return, the value of these assurances being the principal question at issue on As SIAC appeal. Suppose, then, that A wishes to adduce evidence from someone with inside knowledge of the position in Algeria asserting that, notwithstanding the Algerian Governments official assurances, those in As position on return to Algeria are in fact likely to be subject to torture or other article 3 ill treatment. Perhaps this prospective witness (W) was himself ill treated on return. Perhaps W is a whistleblower working within the Algerian prison service: an official or an interrogator or a medical practitioner. Perhaps he is a journalist or other outsider who has obtained particular information as to the fate of those like A on their return. Suppose that W (whether or not himself still in Algeria) is in a vulnerable position: he fears future torture or ill treatment either of himself or of someone near and dear to him. Perhaps at an earlier stage he had raised his concerns internally and been threatened that if ever he voiced them abroad his wife or children would suffer for it. Suppose finally that, such being the circumstances, W is not prepared to give evidence in As appeal to SIAC save only on one unalterable condition, namely that his identity and evidence will forever remain confidential to SIAC and the parties to the appeal (A and the Secretary of State). He is concerned in particular that the Secretary of State might seek to communicate something at least of his evidence to the Algerian authorities (or indeed to others in such a way as may bring him to the attention of the Algerian authorities) if only to seek to assess its veracity and reliability, and that her doing so might place him or his family in peril, something he is simply not prepared to risk. W, therefore, requires an absolute and irreversible guarantee of total confidentiality before he will permit his identity and evidence to be disclosed to the Secretary of State. Is it open to SIAC to make an order providing for such a guarantee? That, as will shortly appear, is the central question now before us. It is not, I should make clear at this stage, the appellants case that, SIAC having made an absolute and irreversible order giving W the guarantee he seeks, Ws evidence will necessarily then have to be regarded by SIAC as properly before them when finally it comes to their determining the disputed issue as to As safety on return. Rather the appellants propose an intermediate, inter partes hearing, by which time the Secretary of State must have been provided with full information as to Ws identity and intended evidence, and at which she will be able to contend that, for whatever reason, it would be wrong for SIAC to admit Ws evidence on the substantive appeal. She may suggest that in reality W has advanced no coherent case for saying that he is at risk of reprisals. Or she may say that Ws proposed evidence is inherently implausible and that, without her being afforded the least opportunity to check its authenticity or credibility or reliability it would simply not be right to afford it any weight whatever. Or she may have other arguments to advance. If, having heard them, SIAC then chooses to shut the evidence out, so be it. If, however, SIAC admits the evidence, then, reluctant though doubtless they will be to give it the weight it might have been expected to carry had the Secretary of State been permitted to check it, at least it will be before them (when ex hypothesi it would otherwise not have been) and in the result SIAC will have the benefit of the fullest possible picture on a critically important issue in the appeal: the question of As safety on return. It is on this basis and in this context that the question now arises: in such circumstances can SIAC ever properly make an absolute and irreversible order (necessarily on an ex parte application by A without the Secretary of State having an opportunity to resist it), prohibiting the Secretary of State from ever disclosing to anyone anything of Ws identity or evidence? This question the Court of Appeal on 29 July 2010 answered in the negative: [2010] EWCA Civ 898. Giving the only reasoned judgment (with which Jacob and Sullivan LJJ simply agreed), Sir David Keene (at para 27) concluded that: [I]t is not open to SIAC to make an order giving the absolute and irrevocable guarantee which is sought by the appellants. This may create a difficulty for the appellants, because of the reluctance of their potential witnesses, but it is inescapable. The adverse effect on them can be mitigated by such steps as anonymity orders and hearings in private, but irrevocable orders preventing the Secretary of State from disclosing material to a foreign state in any circumstances cannot properly be made by SIAC in advance of the Secretary of State seeing that material. As counsel for the Secretary of State said at the SIAC hearing, such a proposal is unworkable and in my view falls outside the scope of SIACs powers to give directions, broad though those powers are. Before turning to the Secretary of States objections I should observe that, although Sir David there spoke of the appellants proposals fall[ing] outside the scope of SIACs powers, he had earlier, at para 20, recorded that: Mr Tam QC, on behalf of the Secretary of State, accepts that SIAC could give directions under the Procedure Rules preventing the Secretary of State from disclosing such material to any other person, including the Algerian authorities. He acknowledges that SIACs power under rule 39 (1) to give directions relating to the conduct of any proceedings is expressed in wide and unlimited terms and could be used in conjunction with the rule 43(2) power to conduct a hearing in private for any good reason so as to prevent disclosure to other persons, including the authorities of the appellants country of origin. And that, indeed, I understand to remain the Secretary of States position. It is not for want of jurisdiction that SIAC should never make an order of the sort here contended for; rather it is because, so the Secretary of State submits, such an order could never properly be made; it can never be appropriate. Such being the case, I shall not burden this judgment with an exposition and analysis of all the various rules which arguably bear upon SIACs powers but instead shall turn at once to the Secretary of States principal reasons for saying that no order of the kind here sought should ever be made, notwithstanding that, for want of it, evidence directly going to the issue of As safety on return will on occasion not be available to SIAC when otherwise it would have been. Essentially, it seems clear, the Secretary of States fundamental objection to an order of the sort proposed is this: such an order having been made, the Secretary of State may then find herself in possession of information which (whether or not appreciated by SIAC, A or even W himself) might in one way or another suggest the existence of a terrorist threat abroad or some other risk to national security. Viewed in the context of myriad other pieces of information, it may be seen to form part of a jigsaw or mosaic (one is well familiar with the concept) whereby such risks come to be recognised. Because, however, of SIACs order, the Secretary of State will be unable to alert the foreign state to the risk, thereby gravely imperilling future diplomatic relations. True, but for the order, the Secretary of State would never have been put in possession of the information in the first place. But, runs the argument, the Secretary of State is in fact worse off with it than without it. Without it she cannot be criticised. But with it, yet bound by SIACs order to keep it to herself, she may become deeply embarrassed if the risk were then to eventuate. The court below, at paras 24 and 25 of Sir David Keenes judgment, accepted this argument: SIAC cannot, it seems to me, tie its hands in advance and say that, whatever the fresh slant on the material provided by the Secretary of State, it will in no circumstances allow disclosure to the authorities of a foreign state. How could it? It might be that the appellants material, innocuous when seen in isolation, becomes of vital diplomatic importance once combined with material in the possession of the Secretary of State. As was explored in argument, it might reveal a potential terrorist risk within the foreign state. It might indicate that, instead of the appellant having been the perpetrator of a terrorist outrage, as suspected hitherto, the true culprit remains at large in a foreign state and presents a real and immediate threat to that state. It is no answer for Mr Fordham to argue that, without the cast iron and irrevocable guarantee of non disclosure, the British Government would not even come into possession of the information. That is true, but the consequences for the United Kingdoms diplomatic relations differ radically between the two scenarios. If this countrys government is in possession of information indicating the existence of a risk of a terrorist outrage in a foreign state with which we have friendly relations and it does not warn that state, the potential impact on the United Kingdoms diplomatic relations with that state could be very serious indeed if it ever became known that our government knew of the risk. If, however, the government does not possess such information, then while the terrorist risk to the foreign state may remain the same, this country could not be accused of withholding vital information, and our diplomatic relations would not be affected. I confess to finding the argument a good deal less persuasive than did the Court of Appeal. Nor to my mind was it made good by a post hearing note submitted by the Secretary of State at our invitation giving five examples of prospective scenarios (understandably at a high level of generality) suggested to illustrate the problem. In all five examples, as it happens, the Home Secretarys stated concern is at her inability to communicate not with the country to which she proposes deporting A (here Algeria) but rather with some other foreign country (country C) to which, let us suppose, W, a known terrorist mastermind who trains suicide operatives, now says that he has moved (following torture on his return to Algeria), something about which the Secretary of State would wish to inform country C (an example in fact suggested by Lord Kerr during the hearing). Even, however, were such a scenario to play out and culminate in a terrorist atrocity in country C and it were later to emerge that the Secretary of State had known, but failed to warn country C, about Ws move there, it must surely be a substantial defence to any diplomatic complaint by country C that the Secretary of State was subject to a final and absolute court order prohibiting her from acting differently. After all, as the appellants point out, a number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context see, for example, article 13 of the UN Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; Principle 3(b) of Annex I to the Istanbul Protocol Principles on the Effective Investigation and Documentation of Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment; paras 3, 7, 12, 13 and 20 of the 28 July 2010 Report of the United Nations High Commissioner for Human Rights on the Right to the truth; and para 3.2.8 (under the heading, Handling reluctant Sources) of the November 2010 EU common guidelines on (Joint) Fact Finding Missions. In short, I regard the Secretary of States concerns at learning more than she is permitted to divulge as an insufficient ground on which to deny A and SIAC the possible benefits of Ws evidence. That said, I do not overlook the radical nature of orders of the sort proposed here, nor, indeed, the kinds of difficulty they may bring in their wake. In the first place, such orders could be thought to come perilously close to offending against basic principles of open justice. There is nothing novel, of course, in the making of ex parte orders. But it is difficult to think of any other situation in which a respondent would be unable to seek release from a permanent injunction in this case, not to communicate his knowledge to others. The respondent can, as indicated, object at the inter partes hearing to the material being used at the eventual substantive hearing. But that is by no means the same thing as seeking to overturn the original order. There is, moreover, as the respondent points out, the further difficulty that, even though theoretically it will be open to SIAC at the inter partes hearing to rule out Ws evidence, it may be difficult for them to ignore it entirely. SIAC are, after all, required by section 5(6)(a) of the 1997 Act and by rule 4(3) of their 2003 Rules to ensure that on the material before them they can properly determine the proceedings. And there could hardly be a more important issue in those proceedings than that of As safety on return. It is that consideration, indeed, which weighs so very heavily in As favour in justifying the making of these proposed orders in the first place, given that without them SIAC will by definition never see the material. There is the obvious further problem with regard to evidence adduced on the basis proposed that the Secretary of State will be largely unable to investigate it and will find it difficult, therefore, to explain or refute it. Accordingly, the very making of the initial order must to a degree undermine the likely weight of the evidence and devalue its overall worth. In the last analysis, however, none of these considerations to my mind outweighs the imperative need to maximise SIACs chances of arriving at the correct decision on the article 3 issue before them and their need, therefore, to obtain all such evidence as may contribute to this task. I would rule, therefore, that it is open to SIAC to make such absolute and irreversible ex parte orders as are here contended for and that on occasion it may be appropriate to do so. This is, I conclude, the least worst option open to us the lesser of two evils as I put it at the outset. But at the same time I should make plain that I am far from enthusiastic about such orders and would certainly not expect a rash of them. Rather it would seem to me that the power to make them should be most sparingly used. There is, of course, the risk that the very availability of such orders may be exploited by the unscrupulous in the hope that SIAC may thereby be induced to receive untruthful evidence which, had it in the ordinary way been subject to full investigation, would have been exposed as such. I would advocate that before making one of these proposed ex parte orders, SIAC should require the very fullest disclosure from A of (a) Ws proposed evidence (namely a detailed final statement or proof of evidence depending upon whether it is proposed to adduce the evidence orally or in writing, and if the latter why in writing), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage him to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in these circumstances, namely by anonymity orders and hearings in private. If, moreover, one of these orders is made and it does then come to appear to the Secretary of State that the information disclosed may indeed be of some importance with regard to national security concerns, whether here or abroad, it should be open to the Secretary of State to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information to enable these national security concerns to be met or, if such waiver, unreasonably in SIACs view despite their recognition of Ws fears, proves unobtainable, to shut out (or regard with additional scepticism) the evidence submitted. This power, in other words, should be exercised sensibly as well as sensitively, there being ample room for flexibility in its operation notwithstanding the absolute and irreversible nature of whatever order may initially be made. I should perhaps add this. In striking the balance in this way, I am in no way influenced by the consideration that, as earlier stated, there are circumstances in which the Secretary of State for her part is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. I do not see the scope for orders of the sort contended for here as, so to speak, levelling the playing field or providing equality of arms between the parties. The plain fact is that the Secretary of State is acting in these cases in the wider public interest, not as an interested party. She is, for example, obliged (now under the rules) to search for and disclose material, both open and closed, which may possibly assist As case. (He, of course, is under no corresponding duty towards the Secretary of State.) And the special advocate will to the best of his ability serve As interests, procuring on occasion rulings which may preclude the Secretary of State from relying on material however apparently damning to As cause. As Sir David Keene observed below (at para 26): The reality is that the position of an appellant and the position of the Secretary of State are not comparable, because of the public responsibilities of the latter. Since completing this judgment I have seen in draft the judgment of Lord Dyson and agree with him also. I would accordingly allow these appeals to the extent indicated. It must, of course, now be for SIAC to consider what, if any, impact our decision has upon the outcome of these appellants individual appeals: whether there is a need now to reopen them and what, if any, orders should now be made. It is to be hoped that no further order (save as to costs as to which the parties may have 28 days for written submissions) is required from this court. LORD DYSON National security issues continue to present difficult challenges to the courts. Lord Brown has explained the problem that is raised by the facts of the present case. The appellants are all Algerian nationals whom the Secretary of State for the Home Department decided under section 3(5)(a) of the Immigration Act 1971 to deport to Algeria on the basis that their presence in the United Kingdom is not conducive to the public good on grounds of national security. They appealed to the Special Immigration Appeals Commission (SIAC) who held that they posed a risk to national security and that the decisions to deport them were lawful and compatible with the European Convention on Human Rights (the Convention). Their appeals were dismissed by the Court of Appeal. The issue in all these cases is whether, if returned to Algeria, there is a real risk that the appellants would be subjected to ill treatment at the hands of the Algerian Authorities (AAs) contrary to article 3 of the Convention. One of the appellants (Z) was in a position to put forward material from a source or sources in Algeria which was relevant to safety on return. But the source(s) feared reprisals in Algeria if there were to be any disclosure of their identity to the AAs. They were willing to tell their story to SIAC (and indeed to the Secretary of State), but only on an absolute and irrevocable assurance that there would be no onward disclosure to the AAs. Rule 4(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003 (SI 2003/1034) (the SIAC Rules) provides that, when exercising its functions, SIAC shall secure that information is not disclosed in any other circumstances where disclosure is likely to harm the public interest. Rule 39(1) confers on SIAC the power to give directions relating to the conduct of any proceedings. Subrule (2) provides that the power to give directions is to be exercised subject to the obligation in rule 4(1); and subrule (5) provides that directions under rule 39(1) may in particular (e) relate to any matter concerning the preparation for a hearing. Rule 43(2) enables SIAC to conduct a hearing or part of a hearing in private for any good reason (in addition to the reason identified in rule 43(1) which is not material to the appeal). It is common ground that these rules are wide enough to give SIAC the jurisdiction to make an absolute and irrevocable order prohibiting the Secretary of State from disclosing material to any person and to do so at or after a hearing from which the Secretary of State is excluded. The question is in what circumstances (if any) it may be appropriate to make such an order (which I shall refer to as an irrevocable non disclosure order). For the appellants, Mr Fordham QC submits that SIAC has the power to make such an order although it has not received informed representations from the Secretary of State as to whether the order should be made. It is able subsequently to hear informed representations from the Secretary of State as to the admission of the material in evidence. For the Secretary of State, Mr Tam QC accepts that there may be cases where an appellant is found to have good reasons for wishing to keep certain material confidential and this might provide a sound basis for SIAC to exercise its power to hold a private hearing under rule 43 and make an irrevocable non disclosure order. But he submits that it is never appropriate to make such an order on the basis of a hearing from which the Secretary of State is excluded and she should always be given the opportunity to apply subsequently to vary or discharge the order. In testing these submissions, it should be borne in mind that, as is illustrated by the circumstances of the present appeals, two conflicting considerations are in play here. On the one hand, the appellants say that, unless the order that they seek is made, they will be unable to place material before SIAC which may be crucial to their case that, if returned to Algeria, they face a real risk of ill treatment by the AAs contrary to article 3 of the Convention. If they are able to persuade SIAC of this risk, their appeals will succeed. Thus, the appellants say that it is essential to their case that they are able to place this evidence before SIAC: the stakes could hardly be higher for them (short of a risk to life itself). They also rely on rule 4(3) of the SIAC Rules which provides that subject to paragraphs (1) and (2), SIAC must satisfy itself that the material available to it enables it properly to determine proceedings. In other words, it has a duty to ascertain all relevant facts. On the other hand, it is said on behalf of the Secretary of State that there are important countervailing considerations both in relation to the conduct of the appeals and more generally. So far as the conduct of the appeals is concerned, the ability of the Secretary of State to participate in them effectively may be seriously undermined by an irrevocable non disclosure order. There are two aspects to consider. First, the cogency and validity of the reasons asserted by the source(s) in support of the claimed need for confidentiality may be open to question, but the Secretary of State will be denied the ability to test the reasons or to obtain information and/or adduce evidence from or with the assistance of the AAs to demonstrate that the asserted reasons for the claim to confidentiality are groundless. Secondly (and of perhaps even greater importance) is the fact that the Secretary of State may be seriously disadvantaged in her ability to test and challenge the substance of the evidence of the witness(es). The effect of the order may be to deprive the Secretary of State of the ability to place before SIAC relevant evidence which it should properly consider in deciding the substantive issues arising in the appeals. This would occur, for example, if the AAs were able to provide information bearing on the issue of safety on return of the appellants, but could not do so unless the identity of the witness(es) and what they have to say are disclosed to them. Once the authorities know the identity of the witness(es) and the substance of their evidence, the authorities might be able to demonstrate that what is said about the risk to the appellants on return to Algeria is false. I should add that the SIAC Rules do not make provision for the appointment of special advocates to represent the interests of the Secretary of State and it is (rightly) not suggested that SIAC could appoint special advocates under any of the powers conferred by the general rules. It follows that the difficulties to which the Secretary of State draws attention cannot be overcome or even mitigated by the appointment of a special advocate. In addition to the problems that are likely to be suffered by the Secretary of State in relation to the appeals, she says that irrevocable non disclosure orders may also cause collateral prejudice. It became clear during the course of the argument that this prejudice is the potential risk of harm to future diplomatic relations with a friendly foreign state. This is a factor which carried considerable weight with the Court of Appeal and which Lord Brown deals with at paras 11 to 15. In weighing these competing considerations, I have no doubt that the scales come down in favour of making an irrevocable non disclosure order where SIAC is satisfied that such an order is necessary in the interests of justice. I agree entirely with what Lord Brown says at paras 19 to 21 as to how the power to make an order should be exercised. SIAC should be astute to guard against the danger of abuse and should scrutinise with great care and test rigorously the claimed need for an order. But if SIAC (i) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (ii) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals in Algeria if his identity and the evidence that he is willing to give were disclosed to the AAs, then in my view an irrevocable non disclosure order should be made. I accept that to make such an order is a striking step for any court to take and is contrary to the instincts of any common lawyer. It is inimical to the fundamental principles which we rightly cherish of open justice and, above all, procedural fairness. To make an order without giving the Secretary of State an opportunity to be heard is a clear breach of the principles of natural justice. Any such order requires compelling justification. Regrettably, however, the circumstances of a case sometimes call for unusual and undesirable remedies. Ultimately, the court has to decide what is demanded by the interests of justice. In weighing the prejudice that the Secretary of State may suffer in the appeal process as a result of an irrevocable non disclosure order, it should not be overlooked that the appeals themselves will be conducted entirely inter partes. In particular, no material that is placed before SIAC by the appellants will be withheld from the Secretary of State. She may be able to demonstrate that the claimed need for confidentiality is without foundation and to persuade SIAC to give the evidence little or no weight for that reason alone. She may also be able to test the evidence of the witness(es) effectively even though she has been unable to discuss it with the AAs. For example, she may be able to show on the basis of objective general material about the conditions in Algeria that the evidence of the witness is unlikely to be true; and even where the evidence is more specific, she may be able to obtain information from the AAs which will enable her to rebut the evidence without divulging the name or identity of the witness or saying anything which might lead to his or her identification. It will, of course, depend on the nature of the evidence to be given by the witness. I do not wish to suggest that the effect of an irrevocable non disclosure order may not inhibit the ability of the Secretary of State to resist the appeals. In some cases, such an order will undoubtedly have that effect. But it cannot safely be said that it is bound to do so in every case. As regards the collateral prejudice claimed by the Secretary of State, like Lord Brown I consider that this has relatively little weight for the reasons that he gives. In my view, if SIAC concludes that the two conditions to which I have referred at para 34 above are satisfied, then the countervailing considerations relied on by the Secretary of State should not outweigh the need to ensure that the appellants are able to deploy any material which might show that, on return to Algeria, they would face a real risk of treatment contrary to article 3 of the Convention. The same considerations and the same result would follow if the case raised a question under article 2 of the Convention. But if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the Convention, the balance will almost certainly be struck the other way. For example, in many appeals against orders for deportation, the ground of appeal is that to deport the appellant would involve a breach of his or her article 8 rights. I find it difficult to conceive of a case in which it would be appropriate to make an order in order to protect the wish for confidentiality of a witness in those circumstances. For these reasons as well as those given by Lord Brown (with which I am in entire agreement), these appeals should be allowed to the extent indicated. LORD PHILLIPS, LORD KERR AND LORD WILSON We agree with both the judgments of Lord Brown and Lord Dyson.

The appellants, all Algerian nationals, were suspected terrorists whom the Secretary of State proposed to deport to Algeria. It was common ground that Algeria was a country where torture was systematically practised by state officials and no state official had ever been prosecuted for it. The Secretary of State obtained assurances from the Algerian Government that the appellants rights not to be tortured or subjected to other ill treatment would be respected on return to Algeria. The Special Immigration Appeals Commission Act 1997 established an appeal system which allows where necessary for closed material procedures and the appointment of special advocates. If the Secretary of State wishes to adduce evidence which, for reasons of national security or other sufficient public interest reasons, cannot safely be communicated to the other party, SIACs rules and procedures provide for this to be done. In this case, however, it was one of the appellants who wished to adduce evidence from a witness (W), who had inside knowledge of the position in Algeria and asserted that, notwithstanding the Algerian Governments official assurances, those in the appellants positions were in fact likely to be subjected on return to torture or other ill treatment. W was prepared to give evidence in the appellants appeals to SIAC only on one unalterable condition: that his identity and evidence would by order remain absolutely and irrevocably confidential to SIAC and the parties to the appeals. W was concerned that the Secretary of State might otherwise seek to communicate his evidence to the Algerian authorities, if only to assess its veracity and reliability, and that her doing so would place him and/or his family in peril. The Secretary of State had two main objections to such an order being made. First, she would be unable to participate effectively in the conduct of the appeals before SIAC, being unable to test either the validity of the reasons asserted by W in support of his claimed need for confidentiality or the substance of Ws evidence itself. Secondly, the Secretary of State may find herself in possession of information pointing to the existence of a terrorist threat abroad or some other risk to national security, yet, bound by SIACs order, unable to alert the foreign state to the risk. This could gravely imperil future diplomatic relations with foreign states. The question in the appeals therefore was whether it was open to SIAC to make an order for an absolute and irreversible guarantee of total confidentiality in respect of Ws identity and evidence before the same were disclosed to the Secretary of State (in circumstances where it would nevertheless remain open to the Secretary of State to challenge the admissibility or weight of that evidence before SIAC in its determination of the substantive appeals). The Supreme Court unanimously allows the appeals. Lord Brown gives the leading judgment of the Court; Lord Dyson gives a concurring judgment. The fundamental objection of the Secretary of State to the proposed order, based on her concerns about being obliged to withhold vital information relating to national security from a foreign state, thereby imperilling future diplomatic relations, is unpersuasive [11] [13]. It must surely be a substantial defence to any diplomatic complaint by a foreign state that the Secretary of State is subject to a final and absolute court order prohibiting her from acting differently [14]. A number of recent international instruments are replete with statements urging states to ensure that witnesses are protected against ill treatment or intimidation, particularly in a human rights context [15]. The imperative need here is to maximise SIACs chances of arriving at the correct decision on the issue before them concerning the safety of the appellants on return to Algeria and, therefore, for SIAC to obtain all such evidence as may contribute to this task [18]. Accordingly, it is open to SIAC to make absolute and irreversible ex parte orders of the kind sought in this case and on occasion it may be appropriate to do so [19]. The power to make such orders should however be used most sparingly [19]. Before making one of the proposed ex parte orders, SIAC should require the very fullest disclosure from the applicant (A) of (a) the proposed evidence from As proposed witness (W), (b) the particular circumstances in which W claims to fear reprisals, and (c) how A and his legal advisers came to hear about Ws proposed evidence and what if any steps they have taken to encourage W to give that evidence in the usual way subject to the usual steps generally taken to safeguard witnesses in such circumstances (e.g. anonymity orders and hearings in private) [20]. SIAC should only then, in the interests of justice, grant such an order if it (1) is satisfied that a witness can give evidence which appears to be capable of belief and which could be decisive or at least highly material on the issue of safety of return and (2) has no reason to doubt that the witness genuinely and reasonably fears that he and/or others close to him would face reprisals if his identity and the evidence that he is willing to give were disclosed to the relevant foreign state [34]. Notwithstanding the absolute and irreversible nature of the order, it should in addition be open to the Secretary of State, upon such order being made, to try to persuade SIAC either to seek from A and W a sufficient waiver of the ex parte order forbidding any further communication of the information, or, if such waiver proves unobtainable, to exclude or regard with additional scepticism the evidence submitted [21]. The Court, in permitting the making of such ex parte orders in the circumstances of this case, has in no way been influenced by the circumstances in which the Secretary of State is on occasion entitled to adduce evidence in closed proceedings divulged only to a special advocate and not to A. The scope of the orders sought here should not be regarded as levelling the playing field between the parties: the Secretary of State in cases before SIAC acts in the wider public interest and not as an interested party [22]. The same considerations and the same result would follow if the case engaging as it does here the rights of the appellants under article 3 of the ECHR raised a question under article 2 of the same. However, if the ground on which an appellant is resisting deportation is an alleged risk of breach of some other article of the ECHR (e.g. article 8), the balance will almost certainly be struck the other way. In those circumstances it would be inappropriate to make an ex parte order to protect the confidentiality of a witness [38].

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I have had the advantage of reading in draft the opinion which has been prepared by Lord Mance, and I agree with it. For the reasons he gives, I would dismiss the appeal. LORD RODGER I too have had the advantage of considering in draft the opinion prepared by Lord Mance. I agree with it and, for the reasons which he gives, I would dismiss the appeal. LORD MANCE The appellant, Mr Louca, is a Cypriot national whose arrest in England and surrender to the Federal Republic of Germany for trial of six alleged offences of tax evasion is sought by the Office of the Public Prosecutor of Bielefeld pursuant to a European Arrest Warrant dated 14 July 2008. The warrant was on that date certified by the Serious Organised Crime Agency (SOCA) pursuant to s.2(7) of the Extradition Act 2003. Mr Louca challenges its validity on the ground that it contains no reference to two previous European arrest warrants (likewise certified by SOCA), but refers only to a domestic German arrest warrant. A reference to any previous European arrest warrants, was, he submits, essential under s.2(2)(a) and (4)(b) of the 2003 Act, which, read together, require a warrant to contain particulars of any other warrant issued in the category 1 territory for the persons arrest in respect of the offence. Senior District Judge Workman rejected Mr Loucas challenge on 11 September 2008, and the Divisional Court, in a judgment given by Dyson LJ, dismissed his appeal on 27 November 2008. The two previous European arrest warrants were issued and in turn superseded in a manner that appears not uncommon in relation to requests by overseas authorities for the arrest of suspects in England. The first warrant was dated 14 September 2006 and led to Mr Loucas arrest on 9 April 2008. Shortly thereafter it was withdrawn, Mr Louca was discharged from further proceedings on it, and a second warrant dated 23 April 2008 was issued on which Mr Louca was again arrested on 25 April 2008. That warrant amplified the description of Mr Loucas alleged involvement in the offences and contained other minor changes. It was in turn withdrawn, Mr Louca was again discharged from any proceedings on it, and it was replaced by the subsisting warrant dated 14 July 2008, upon which Mr Louca was again arrested and which is now before the Supreme Court. The wording of the subsisting warrant differs from that of the second warrant only in the insertion of the words which I have italicised in the time frame and places of commission given for the alleged offences: From a few days before the 23rd April 2003, till the 8th of April 2004 and Minden, Seckenhausen and other places in the Federal Republic of Germany, including the borders of Germany. Part I of the 2003 Act, in which s.2 appears, falls to be read in the context of the Council Framework Decision of 13 June 2002 on the European arrest warrant and the surrender procedures between member states of the European Union (2002/584/JHA; OJ 2002 L190, pl). This is a ground breaking measure intended to simplify and expedite procedures for the surrender, between member states, of those accused of crime committed in other member states or required to be sentenced or serve sentences for such crimes following conviction in other member states: Dabas v High Court of Justice of Madrid, Spain [2007] UKHL 6; [2007] 2 AC 31, para. 4, per Lord Bingham of Cornhill. Although article 34(2)(b) of the Treaty on European Union makes framework decisions binding upon member states as to the result to be achieved but [leaves] to national authorities the choice of form and methods, a national court must interpret a national law as far as possible in the light of the wording and purpose of the framework decision in order to attain the result which it pursues and thus comply with article 34(2)(b): para. 5, per Lord Bingham citing Criminal Proceedings against Pupino (Case C 105/03); [2006] QB 83, paras. 43 and 47. The Framework Decision provides inter alia: Article 1(1): The European arrest warrant is a judicial decision issued by a Member State with a view to the arrest and surrender by another Member State of a requested person, for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order. Article 2(1): A European arrest warrant may be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months. Article 8(1): The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: (a) the identity and nationality of the requested person; the name, address, telephone and fax numbers and e mail address (b) of the issuing judicial authority; evidence of an enforceable judgment, an arrest warrant or any other (c) enforceable judicial decision having the same effect, coming within the scope of Articles 1 and 2; the nature and legal classification of the offence, particularly in (d) respect of Article 2; a description of the circumstances in which the offence was (e) committed, including the time, place and degree of participation in the offence by the requested person; the penalty imposed, if there is a final judgment, or the prescribed (f) scale of penalties for the offence under the law of the issuing Member State; (g) if possible, other consequences of the offence. The annexed form contains boxes for completion, including: (b) Decision on which warrant is based: 1. Arrest warrant or judicial decision having the same effect: . Type: . 2. Enforceable judgement: . Reference: . and (f) Other circumstances relevant to the case (optional information): (NB This could cover remarks on extraterritoriality, interruption of periods of time limitation and other consequences of the offence) In the present case, box (b) of the form was completed in the European arrest warrant (as in the two withdrawn warrants) with a reference to a domestic warrant issued by the Bielefeld County Court reference 9Gs 2740/06 dated 27 July 2006 for Mr Loucas imprisonment on remand. In Ruiz v Central Criminal Court of Criminal Proceedings No 5 of the National Court, Madrid [2007] EWHC 2983 (Admin); [2008] 1 WLR 2798, Dyson LJ in an obiter dictum rejected a prosecution submission that the enforceable judgment, etc. [referred to in article 8(1)(c) of the Framework Decision] is the domestic warrant on which the index EAW is based (para. 26). The words in article 8(1)(c) coming within the scope of Articles 1 and 2 in his view precluded that submission, on the basis that Articles 1 and 2 were only concerned with European arrest warrants. The actual decision was that article 8(1)(c) and s.2(4)(b) were only concerned with currently enforceable warrants. However, Dyson LJs view that they were also only concerned with European arrest warrants was adopted in Zakowski v Regional Court in Szczecin Poland [2008] EWHC 1389 (Admin). That was a case on s.2(6)(c) of the 2003 Act, which mirrors the language of s.2(4) in relation to the situation of a person unlawfully at large after conviction. Maurice Kay LJ, with whom Penry Davey J agreed, held that s.6(2)(c) should be construed as referring only to other EAWs issued in respect of the offence (paras. 25 26). In his judgment in the present case, Dyson LJ reconsidered the position and concluded that the interpretation of ss.2(4)(b) and 2(6)(c) proposed in Ruiz and adopted in Zakowski was wrong. His reasoning covered five points: (i) the Framework Decision does not in article 8(1)(c) use the phrase European arrest warrant, as it does consistently elsewhere when referring to such a warrant; (ii) the concepts of an enforceable judgment, an arrest warrant or any other enforceable judicial decision cannot easily be understood as limited to an European arrest warrant; (iii) the phrase coming within the scope of Articles 1 and 2 can and should simply be understood as meaning that the enforceable judgment, arrest warrant or other enforceable judicial decision must be for the purposes of conducting a criminal prosecution or executing a custodial sentence or detention order and be issued for acts punishable by the law of the issuing Member State by a custodial sentence or a detention order for a maximum period of at least 12 months or, where a sentence has been passed or a detention order has been made, for sentences of at least four months; (iv) one European arrest warrant is most unlikely to be based on another, and (v) there is no point in requiring such a warrant to contain information about an earlier European arrest warrant on which it is not based, and on which reliance is no longer placed. On this basis, the present Divisional Court held that article 8(1)(c) and ss.2(4)(b) and 2(6)(c) are concerned with domestic judgments, arrest warrants or other decisions, and not with any other European arrest warrant issued in respect of the alleged offending, still less one which has been withdrawn. Before the House in July 2009, Mr Conor Quigley QC had to accept the first part of this conclusion inevitably so, in my view, in the light of the first four reasons given by Dyson LJ and also having regard to article 8(1)(c) of and box (b) in the form annexed to the Framework Decision. It is entirely understandable that the Framework Decision should require a European arrest warrant to set out its jurisdictional basis in the domestic law of the issuing state. Mr Quigley submitted, nonetheless, that the latter part of the Divisional Courts decision does not follow, and challenged Dyson LJs fifth reason. There is a purpose, he argued, in also requiring evidence of any other European arrest warrant, even if withdrawn, because this could constitute the basis of, or be relevant to, a decision by the executing court to set aside or consider whether to set aside the subsisting European arrest warrant as an abuse of process. He relied upon the statement by Bingham LJ, as he was, in R vs Liverpool Stipendiary Magistrates ex p. Ellison [1990] RTR 220, 227 that: If any criminal court at any time has cause to suspect that a prosecutor may be manipulating or using the procedures of the court in order to oppress or unfairly to prejudice a defendant before the court, I have no doubt that it is the duty of the court to inquire into the situation and ensure that its procedure is not being so abused. Usually no doubt such inquiry will be prompted by a complaint on the part of the defendant. But the duty of the court in my view exists even in the absence of a complaint. In support of these submissions, Mr Quigley pointed to various recitals in the Framework Decision. Under recital (8), the execution of the European arrest warrant must be subject to sufficient controls; under recital (10), its mechanism is based on a high level of confidence between Member States. and under recital (12), the Framework Decision respects fundamental rights and observes the principles recognised by Article 6 of the Treaty on European Union and reflected in the Charter of Fundamental Rights of the European Union and does not prevent a Member State from applying its constitutional rules relating to due process. Mr Quigley noted that, under Article 8(1), The European arrest warrant shall contain the following information set out in accordance with the form contained in the Annex: . (g) if possible, other consequences of the offence. He suggested that, in order to give effect to all these provisions, ss.2(4)(b) and 2(6)(c) must be understood as embracing not only domestic judgments, warrants or decisions, but also prior European arrest warrants, even if withdrawn. Otherwise, mutual confidence would not be promoted and the executing court would not be able to inquire into whether there had been any abuse of process. In my opinion, this is to seek to make bricks without straw. The words if possible, other consequences of the offence and box (f) in the annexed form Other circumstances relevant to the case (optional information) do not carry the obligatory connotation for which Mr Quigley argues; the note to box (f) lends no support to Mr Quigleys case; and there is no reason to read ss.2(4)(b) and 2(6)(c) in the 2003 Act as intended to require the executing court to be informed by the European arrest warrant of one (and only one) point the existence of another European arrest warrant which might, in some conceivable case, be of some conceivable relevance to an argument of abuse of process. The duty which a criminal court may have, if prosecution authorities appear to be committing an abuse of process, is no basis for reading either the Framework Decision or the 2003 Act as requiring the inclusion in a European arrest warrant of that or any other information on which a defendant wishing to raise an argument of abuse of process might conceivably wish to rely. Ss.2(4)(b) and 2(6)(c) are designed on their face simply to give effect to article 8(1)(c) and box (b) in the annexed form. Other due process factors are comprehensively covered by ss.11 to 20, dealing with double jeopardy, extraneous considerations, passage of time, age, hostage taking considerations, speciality, earlier extradition to the United Kingdom and trial in absentia, as well as by the general safeguard in s.21 that the judge must decide whether surrender would be compatible with the European Human Rights Convention rights. The unreal consequences of the appellants argument in this particular case also need no stressing. Mr Louca was arrested under the previous European arrest warrants, and he and his advisers were fully aware at every stage of their issue and withdrawal. Their withdrawal and the changes made in successive warrants lend no support to any suggestion of abuse of process. (Arguments based on oppression due to passage of time and interference with the right to family life were mounted, unavailingly, in the courts below.) Mr Quigley was nevertheless compelled by his argument to submit that, however obvious it might be that the reason for the withdrawal of a previous European arrest warrant was technical or irrelevant to any question of abuse of process, a new European arrest warrant would be invalid unless it gave particulars of the previous warrant. The question certified by the Divisional Court is: Whether the reference to any other warrant in ss.2(4)(b) and 2(6)(c) of the Extradition Act 2003 properly construed is a reference to any other domestic warrant on which the European arrest warrant is based. For the reasons given above and those given by the Divisional Court, the answer is that the reference is to any domestic warrant on which the European arrest warrant is based, and not to any other European arrest warrant which may have been issued on the basis of any such domestic warrant. Mr Loucas appeal falls to be dismissed accordingly. LORD COLLINS appeal. LORD KERR I too agree with the opinion prepared by Lord Mance, and I would dismiss the I also agree with the opinion prepared by Lord Mance, and I would dismiss the appeal.

Mr Louca is a Cypriot national resident in the UK. His extradition is sought by the Office of the Public Prosecutor of Bielefeld, Germany, for six offences of tax evasion under a European Arrest Warrant (EAW) dated 14 July 2008. Two previous EAWs had been issued by the German Prosecutor, each resulting in the arrest of Mr Louca in April 2008, but were successively withdrawn because of minor technicalities. The current EAW refers to the domestic German arrest warrant but not to the previous, withdrawn, EAWs. Mr Louca argued that it was unlawful to extradite him under an EAW which did not refer to all the previous EAWs. The Supreme Court holds that, when a European Arrest Warrant is issued by the authorities of one Member State for execution in another, it must include a reference to the domestic warrant upon which the European Arrest Warrant is based, but need not include references to any other European Arrest Warrant which may have been issued on the basis of the domestic warrant. The appeal is therefore dismissed. (Paragraph [15]) Lord Mance gave the judgment of the Court, upholding the reasoning of the Divisional Court. The words any other warrant in section 2(4)(c) of the Extradition Act 2003 must be construed in the light of the European Council Framework Decision of 13 June 2002 on the European Arrest Warrant and the surrender procedures between Member States of the European Union. (Paragraph [3]). The Framework Decision does not require any other warrant to include previous EAWs. The relevant part of the Decision article 8(1)(c) does not use the phrase European arrest warrant as it does elsewhere. The reference to an enforceable judgment, an arrest warrant or any other enforceable judicial decision (article 8(1)(c)) cannot sensibly be limited to an EAW. One EAW is most unlikely to be based upon another. (Paragraphs [9] [10]) There was no other reason to require the EAW to include information about prior EAWs upon which no reliance was being placed. Not doing so would not prevent Mr Louca arguing that extradition was an abuse of process, and other due process factors were comprehensively covered by the Extradition Act. (Paragraphs [13] [15]) Judgments

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Section 3C of the Immigration Act 1971 extends a persons leave to remain pending determination of an application to vary the period of leave, provided that the application is made before the expiry of the original leave. The principal issue raised by these three appeals is how section 3C applies where an application is made in time, but is procedurally defective for some reason. In two cases (Mr Iqbal and Mr Mirza) the defect related to non payment of fees; in the third case (Ms Ehsan), failure to provide biometric information. Statutory provisions Section 3C at the material time, as substituted by section 118 of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act) (and amended by section 11 of the Immigration, Asylum and Nationality Act 2006), read as follows: 3C Continuation of leave pending variation decision (1) This section applies if (a) a person who has limited leave to enter or remain in the United Kingdom applies to the Secretary of State for variation of the leave, (b) the application for variation is made before the leave expires, and (c) for variation having been decided. the leave expires without the application (2) The leave is extended by virtue of this section during any period when (a) decided nor withdrawn, . the application for variation is neither (3) Leave extended by virtue of this section shall lapse if the applicant leaves the United Kingdom. (4) A person may not make an application for variation of his leave to enter or remain in the United Kingdom while that leave is extended by virtue of this section. (5) But subsection (4) does not prevent the variation of the application mentioned in subsection (1)(a). (6) The Secretary of State may make regulations determining when an application is decided for the purposes of this section; Procedure and fees Section 50 of the Immigration, Nationality and Asylum Act 2006 (the 2006 Act) enabled the Secretary of State to lay down in immigration rules requirements for the procedure for applications, including the use of specified forms, and provision about the manner in which a fee is to be paid; and to make provision for the consequences of failure to comply. Section 51 enabled her by order to require an application to be accompanied by a specified fee, and to make regulations specifying the amount of the fee, and making provision about the consequences of failure to pay a fee (section 51(3)(d)). The relevant rules (which to this extent were in the same form at the time of the three applications) required an application to be on a specified form, and to comply with certain requirements including: any specified fee in connection with the application or claim must be paid in accordance with the method specified in the application form, separate payment form and/or related guidance notes, as applicable, (rule 34A(ii)). Rule 34C provided: Where an application or claim in connection with immigration for which an application form is specified does not comply with the requirements in paragraph 34A, such application or claim will be invalid and will not be considered. The relevant statutory instruments in respect of fees (in Mr Iqbals case) were the Immigration and Nationality (Fees) Order 2011 and the Immigration and Nationality (Fees) Regulations 2011 (the 2011 Order and the 2011 Regulations). Regulation 37 of the 2011 Regulations provided: Consequences of failing to pay the specified fee 37. Where an application to which these Regulations refer is to be accompanied by a specified fee, the application is not validly made unless it has been accompanied by that fee. Earlier but equivalent provisions applied at the time of Mr Mirzas application. Biometric information The power to require biometric information was derived from regulations made under section 5 of the UK Borders Act 2007 (the 2007 Act). Section 7 (Effect of non compliance) provided that regulations under section 5 must include provision about the effect of failure to comply with a requirement of the regulations (section 7(1)), and: (2) In particular, the regulations may require or permit an application for a biometric (a) immigration document to be refused; require or permit an application or claim in (b) connection with immigration to be disregarded or refused; (c) leave to enter or remain in the United Kingdom; (d) a notice under section 9; [penalty notice] require the Secretary of State to consider giving require or permit the cancellation or variation of (e) provide for the consequence of a failure to be at the discretion of the Secretary of State. At the time of Ms Ehsans application, the Immigration (Biometric Registration) Regulations 2008 (regulation 3) provided that a person subject to immigration control must apply for the issue of a biometric immigration document where certain conditions were satisfied, as they were in her case. Regulation 23 provided that on failure to comply the Secretary of State may take any of the actions specified in paragraph (2): (2) The actions specified are to refuse an application for a biometric immigration (a) document; (b) disregard the person's application for leave to remain; (c) remain; and (d) refuse the person's application for leave to cancel or vary leave to enter or remain. Regulation 23 was amended from 29 February 2012, (inter alia) to substitute for sub paragraph (2)(b) the following: treat the persons application for leave to remain as (b) invalid The facts Javed Iqbal Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, extended thereafter to 30 April 2011. In October 2010 his wife was allowed entry as a dependant until the same date. On 19 April 2011 he applied for further leave to remain as a student at William Shakespeare College. Unaware that the fee had been recently increased, he paid the old fee (29 short). By letter dated 26 April, received by him on 2 May 2011, his application was rejected by the Secretary of State as invalid for that reason. On 6 May 2011 he resubmitted his application for leave to remain as a student at the same college. In October 2011, before the application had been determined, he sought and received confirmation from the Secretary of State that he was free to alter the named educational institution. On 2 May 2012 he varied his application to name the Equinox College, having obtained a Confirmation of Acceptance for Studies (CAS) from that college. However, the colleges sponsor licence was revoked on 16 May 2012, with the result that his CAS became invalid. If he had been entitled to extension of leave under section 3C, he would have been given 60 days in which to identify another approved institution. This concession was not available because the new application had been made after his leave had expired. On 18 March 2013 his application was refused because he had failed to identify an approved college. His notice of appeal to the First tier Tribunal was rejected because, not having leave to remain at the time of the relevant application, he had no right of appeal. He then commenced the present judicial review proceedings, for which following refusal by the Upper Tribunal, permission was granted by the Court of Appeal. Muhammad Mirza Mr Mirza entered the country on 27 July 2002 under a student visa which was in due course extended until 31 March 2009. He made an application to extend leave on 27 March 2009, which was rejected in error but resubmitted on 4 April 2009. On 24 April 2009 the Secretary of State attempted unsuccessfully to take the 295 application fee from the bank details provided by Mr Mirza. His application was rejected for non payment of the fee. On 1 April 2012, following completion of his studies, he submitted a further application to remain as a Tier 1 (Post Study Work) Migrant. On 10 December 2012 his application was refused because he did not meet the relevant requirements of the rules, primarily that: (1) he did not have leave to remain as a student or a Tier 4 Migrant between 1 September 2010 and 17 March 2012; and (2) his application for further leave to remain as a Tier 1 (Post Study Work) Migrant was made more than 12 months after obtaining the relevant qualification, awarded on 17 March 2011. He applied for judicial review of the Secretary of States decision. Following refusal of permission in the High Court permission was granted by the Court of Appeal. Humaira Ehsan Ms Ehsan arrived on 8 March 2011 with entry clearance as a Tier 4 (General) student valid until 28 December 2011. On 23 December 2011 she made an application for further leave as a Tier 4 (General) student. The Secretary of State thereafter wrote requesting her to make an appointment to provide certain biometric information. By letter dated 24 February 2012 she was told that, unless she booked and attended an appointment within 17 days, or provided a reasonable explanation for failure to do so, her application would be rejected as invalid. In a letter dated 26 March 2012 she was told that her application was being returned as invalid because of her failure to make and attend an appointment for providing biometric information. On 3 April 2012 she submitted a new application for leave to remain as a Tier 4 (General) student. On 21 April 2012 the Secretary of State wrote asking her to make an appointment to provide biometric information within 15 days, which she did. In September 2012 the college which had sponsored her had its licence revoked. On 9 January 2013 her application for further leave was rejected on the grounds that she had not obtained the necessary number of points, no points being attributable to the now invalid CAS. Had her leave been extended under section 3C, she would have been able to take advantage of the 60 day concession to find a replacement institution. She sought judicial review, which following refusal of permission by the High Court, was allowed by the Court of Appeal. The issues in the Court of Appeal The nature of the issues, and the positions of the parties, have shifted markedly during the progress of these cases through the courts. In the Court of Appeal, departing from the position taken before the Upper Tribunal, the appellants (through Mr Malik of counsel) contended that an application which was invalid under the regulations was still effective to engage the automatic extension provisions. The Secretary of State did not contend otherwise, even though (as counsel accepted on her behalf) this represented a change from her position in previous cases. Instead as Elias LJ explained (para 22) she now relied on the next stage, that is the effect of the Secretary of States notice rejecting such an application as invalid, which she submitted should be treated as a decision on the application, thereby bringing the leave to an end under section 3C(2)(a). Although the Secretary of State has now reverted to her previous position, it is right to refer to the policy reasons which led to the interpretation advanced by her in the Court of Appeal. The submissions on her behalf spoke of the strong policy reasons for the Secretary of States re examination of her previous approach, leading to her favoured interpretation as presented in that court: First, at the point at which the application is made, neither the Secretary of State nor the applicant will know for sure whether or not their application is valid. Applications may be made in good faith and believed to be valid, yet be invalid. This may have significant adverse consequences for bona fide applicants: for example, he may have continued working whilst waiting for a response from the Home Office on the application (as section 3C leave continues the leave the person has, on the same terms) but unbeknownst to him and his employer, this constituted illegal working because in fact his application was invalid. Second, the previous view that section 3C leave was not triggered by an invalid application has become very complex and difficult to understand both for applicants and caseworkers, giving rise to uncertainty in an area where it is important to be able to readily work out whether a person has had their leave extended pursuant to section 3C or not. Third, the previous view that section 3C leave was not triggered by an invalid application has become increasingly difficult in practice where the requirements for validity can arise after the application is made: for example the need to enrol biometric information. This adds a further layer of complexity and uncertainty to that which should be readily ascertainable This approach led in turn to the need to find some means of bringing the extended leave to an end. Otherwise, as Elias LJ pointed out, it would be possible for someone with limited leave to submit a defective application, and thereby secure an extension of time, which would become in effect indefinite because no valid decision could be made bringing it to an end (para 24). It was for this reason that the Secretary of State was constrained to argue that the rejection of the application as invalid could itself be treated as a decision on the application for that purpose. The Court of Appeal held, contrary to the primary submissions of both parties, that section 3C did not extend to an application which was not validly made in accordance with the rules (para 30). Elias LJ (with whom the other Lord Justices agreed) addressed his reasoning primarily to the case of Mr Iqbal, the other two being treated as covered by the same principles. He noted (para 14) that this had hitherto been assumed to be the effect of the rules, by all including the Court of Appeal (see JH (Zimbabwe) v Secretary of State for the Home Department [2009] EWCA Civ 78; [2009] Imm AR 499, para 35). He held that the powers in sections 50 and 51 of the 2006 Act to provide for the consequences of procedural failure gave sufficient Parliamentary endorsement for that position (para 30). He rejected as wholly unsustainable the Secretary of States argument that notification of invalidity could constitute a relevant decision for the purposes of section 3C, since the context clearly required a determination of the application, not its rejection or a decision that there is no valid application (paras 31 32). He also rejected a separate argument for Mr Iqbal that the procedure in his case was unfair, because of the failure to notify him of the defect in time for him to correct it before the expiration of leave. This submission relied on comments of the Upper Tribunal in Basnet v Secretary of State for the Home Department [2012] UKUT 113; [2012] Imm AR 673, relating to an argument that in this respect personal applications were treated more favourably than applications by post. Elias LJ accepted that in practical terms a personal applicant had the advantage that a defect could be more quickly remedied, but short of unreasonable delay (which the Upper Tribunal had not found) there was no obligation on the Secretary of State to prioritise cases where lack of the appropriate fee might be fatal (para 39). In this court, Mr Malik renews the argument that the word application in section 3C is unqualified by reference to any procedural requirements in subsequent regulations, and should not be interpreted by reference to them. He points to the strong policy arguments for that interpretation, previously recognised by the Secretary of State, to which he adds the fact that overstaying is a criminal offence for the applicant, and may result in a penalty for his employer (1971 Act section 24; 2006 Act section 15). He does not shrink from the possible consequence that leave may be extended indefinitely, but submits that the answer is in the hands of the Secretary of State by appropriate amendments to the regulations or if necessary to section 3C itself. He also points out that the application will be treated as withdrawn if the applicant applies for return of his passport to travel outside the common travel area (rule 34J). Legislative history Both parties have relied to some extent on the history of the legislative provisions in support of their respective cases. A brief account is therefore necessary. The need for a statutory mechanism to extend the right to remain pending a final decision on an application to vary was identified as a result of the decision of the House of Lords in Suthendran v Immigration Appeal Tribunal [1977] AC 359. The House held that the then right of appeal (under 1971 Act section 14) only arose if the applicant had leave at the date of both the application to vary and the notice of appeal. This problem was answered by the Immigration (Variation of Leave) Order 1976 (the 1976 Order), article 3 of which provided that where a person with limited leave to remain applies before the expiry of that period for variation, the duration of the leave would be extended for 28 days after the date of the decision or withdrawal of the application. Section 14(1) of the 1971 Act gave protection against removal while an appeal was pending. No formality was laid down for an application to vary. It was regarded as sufficient that there should be a request in unambiguous terms for a variation of leave (see Macdonald Immigration Law and Practice 4th ed (1995) p 83). In 1996 changes to the Immigration Rules introduced a requirement for applications for variation to be made on a prescribed form accompanied by specified documents and provided that An application for such a variation made in any other way is not valid. (HC395 rule 32). Rule 32 was challenged in judicial review proceedings by the Immigration Law Practitioners Association (ILPA), on the grounds that immigration rules under section 3(2) of the 1971 Act could not be used to change the law made by the 1976 Order. The challenge failed, even though the court accepted that under the new rule someone who does not make an application in the prescribed form would find that his application will not be valid so that he then becomes an overstayer and is thus subject to the criminal and other consequences that flow from that status. (R v Secretary of State for the Home Department, Ex p Immigration Law Practitioners Association [1997] Imm AR 189, 191 per Collins J) Both section 14 of the 1971 Act and the 1976 Order were replaced by provisions in the Immigration and Asylum Act 1999 with similar effect. They included the insertion into the 1971 Act of a new section 3C, providing for the extension of leave, but again depending on the making of an application before the expiry of leave. The 1999 Act also introduced for the first time power to make regulations for payment of fees, and provided for the consequences of failure to pay. Section 5(2) provided that where a fee was payable in connection with an application of a particular kind no such application is to be entertained by the Secretary of State unless the fee has been paid in accordance with the regulations. This section was not brought into force until 1 April 2003, and regulations imposing the first fees came into effect on 1 August 2003. Section 165 of the 1999 Act also inserted a new section 31A into the 1971 Act, giving power to prescribe by regulation the form of an application. Section 31A provided that where a form was prescribed the application must be made in that form, but it said nothing about the consequences of non compliance. No regulations were made at that time. As from 1 April 2003, section 3C of the 1971 Act was replaced (by 2002 Act section 118) by a new version taking the form set out earlier in this judgment (para 2). This version, subject to minor amendment by section 11 of the 2006 Act (not relevant to this appeal), was current at the time of the present applications. It differed from the previous version, in that the statutory extension of leave continued during the time when an appeal was pending, and came to an end upon the applicant leaving the country. The 2002 Act also introduced a new unified appeal structure with rights of appeal from an immigration decision as defined by section 82 of that Act (Part 5 of the 2002 Act). It appears to be common ground that there was no right of appeal against a decision on an application made after expiry of leave to remain. Section 31A of the 1971 Act was amended by the insertion of a new subsection (3A): (3A) Regulations under this section may provide that a failure to comply with a specified requirement of the regulations invalidates an application, (a) (b) does not invalidate an application, or invalidates an application (c) in specified circumstances (which may be described wholly or partly by reference to action by the applicant, the Secretary of State, an immigration officer or another person). As from 1 August 2003 (the same date as the first fees regulations), the Immigration (Leave to Remain) (Prescribed Forms and Procedures) Regulations 2003 (the 2003 Forms Regulations) set prescribed forms (regulations 3 9) and laid down prescribed procedures (regulation 11) for various types of application. Regulation 12 provided that failure to comply with certain procedural requirements would only invalidate the application if the applicant did not provide a satisfactory explanation and comply within 28 days of being notified of the failure. These regulations were amended or replaced on a number of occasions in similar form until 2007. Section 31A of the 1971 Act and section 5 of the 1999 Act were repealed by the 2006 Act. The relevant provisions of that Act, and of the subordinate legislation have already been set out (paras 3ff above). Finally, the UK Borders Act 2007 enabled the Secretary of State to make regulations requiring those subject to immigration control to apply for a document recording biometric information, and providing for its use in immigration procedures. Again the relevant provisions have been set out above (paras 6 7). Mr Malik relies on the original interpretation of the term application, as it appeared in the 1976 Order, as requiring no more than a request in unambiguous terms. He submits that there is no reason to interpret the same word any differently in the equivalent provisions in later statutory enactments, including the 2002 Act. There is no indication that Parliament intended the meaning of that word to be restricted by reference to later provisions relating to fees or biometric information which were not in contemplation at the time. The Secretary of State in turn relies on the decision of Collins J in the ILPA case as recognising the consequences of an invalid application, an analysis which should be taken as entrenched in subsequent legislation in similar form. Discussion I have found this a troubling case. It is particularly disturbing that the Secretary of State herself has been unable to maintain a consistent view of the meaning of the relevant rules and regulations. The public, and particularly those directly affected by immigration control, are entitled to expect the legislative scheme to be underpinned by a coherent view of their meaning and the policy behind them. I agree with the concluding comments of Elias LJ (para 49) on this aspect, and the overwhelming need for rationalisation and simplification. The problem is only too vividly demonstrated by the course of the arguments in this case. The policy concerns which underlay the Secretary of States position in the Court of Appeal were and remain very real. They should have been apparent to the Department at least since 1996, when judgment was given in the ILPA case. Against that background, there was surely a need to introduce some measure of flexibility to ensure that bona fide applicants were not unduly penalised for simple mistakes which could be readily corrected. There have been some examples of flexibility. Thus the 2003 Forms Regulations provided that particular procedural requirements should not result in invalidity in the event of a satisfactory explanation and compliance within 28 days. We have been given no explanation for the more rigid approach adopted in respect of fees. Although Parliament did not place any restriction on the power of the Secretary of State to provide for the consequences of failure, that did not absolve her of responsibility for achieving a fair balance between the competing policy considerations. There was some discussion in argument of the extent to which the Departments guidance to officers allowed for a degree of flexibility in the operation of the rules. After the hearing the Treasury Solicitor has helpfully submitted a note on relevant parts of the guidance on Specified application forms and procedures. It seems that this has proved to be a more onerous task than anticipated because of the number of versions in force at various times. The guidance does recognise a measure of discretion to depart from requirements of the rules in particular cases. Thus in version 6.0 of the guidance valid from 9 May 2012 there is a section headed Discretion (p 46). This explains for example that, if an application received more than three months ago does not meet the specified form requirements, you must use discretion and accept it as valid, since otherwise the applicant might be unfairly disadvantaged by rejection at that stage. On the other hand: You must not use discretion and accept an application as valid if a specified fee has not been paid. This difference is explained as due to the fees requirement being in the regulations rather than the rules. Whatever the logic of that distinction, it is not suggested by either side that it throws any light on the issue before us. We must accordingly decide the present appeals within the legislation as it stands, there being no challenge to the legality or rationality of the relevant rules and regulations. The issues have to be approached by the application of the ordinary principles of statutory interpretation. They start from the natural meaning of the words in their context. On that basis I have no doubt that, at least in respect of Mr Iqbal and Mr Mirza, the Court of Appeal reached the correct conclusion. There is no ambiguity in the words of regulation 37 of the 2011 Regulations. It provides in terms that if an application is not accompanied by the specified fee the application is not validly made. In ordinary language an application which is not validly made can have no substantive effect. There is nothing in the regulation to exclude section 3C from its scope. Nor is there anything in the history of the provisions to support a different approach. It is true that, at the time of the enactment of section 3C in its present form by the 2002 Act, Parliament could not have had in contemplation the relevant provisions of the 2006 Act or the regulations made under it. However, that is nothing in point. The powers given by Parliament in the later Act were made within the same legislative framework as the 2002 Act. In the absence of any limitation on the scope of the powers given to the Secretary of State to prescribe the consequences of procedural failure, there is no reason to exclude section 3C. That is not, as Mr Malik argues, to allow the executive to alter the interpretation of the primary legislation, but rather to determine the scope of the powers given to the executive by Parliament in the later statute. Conversely, the reasoning of Collins LJ in the ILPA case shows a clear understanding of the practical implications of invalidity, which formed part of the background of the new legislation, and must be assumed to have been taken into account by the drafters of the legislation, both primary and secondary. I also agree with the Court of Appeals rejection of Mr Iqbals separate ground of appeal based on alleged unfairness. The comments of the Upper Tribunal in Basnet while deserving respect cannot be treated as laying down a universal rule. It is unfortunate that he was caught out by a recent change in the level of fees. But it is not suggested that there was any failure by the Secretary of State to publicise the change. It was announced in Parliament on 28 February 2011. News items were published on the UK Border Agency website, and the new fees were set out in the relevant application form. There has been no challenge to the finding of the Upper Tribunal that the Secretary of State responded with reasonable promptness. The problem arose because the application had been made very close to the expiry of leave and left no time for correction. It follows that the appeals of Mr Iqbal and Mr Mirza must be dismissed. I find more difficulty with the case of Ms Ehsan. Mr Malik did not, as I understood him, rely on any material distinction between the applicable provisions in the three cases. However, there is a potentially important difference. The obligation to pay the fee arises at the time of the application. There is no conceptual difficulty in providing that an application unaccompanied by a fee is invalid from the outset. The requirement to apply for biometric information arises only at a later stage, on receipt of a notice from the Secretary of State. Thus in Ms Ehsans case the application was made in December 2011, but it was not until the following February that she was required to make an appointment. Even then it was accepted that there might be a reasonable explanation justifying further delay. It is difficult to see any reason why a failure at that stage should be treated as retrospectively invalidating the application from the outset, and so nullifying the previous extension under section 3C of her leave to remain. There appears to be nothing in section 7 of the 2007 Act to support such retrospective effect. The revised version of regulation 23(2)(b) (which was in force at the time of the March decision to reject her application as invalid) does no more than give the Secretary of State power to treat the application as invalid. There might be some question as to how that wording relates to the terms of section 7(2), but as I have said there was no challenge to its validity. In any event there is no reason to read it as having retrospective effect. The natural reading, which is consistent with the statutory purpose, is to give power to invalidate the application as from the time of the decision, but not before. However, this reading would not help Ms Ehsan herself. Even if her leave was treated as continuing until the date of the Secretary of States decision on 26 March 2012, it would not assist her in respect of her new application made on 3 April 2012. Conclusion For the reasons given above I would dismiss the three appeals and uphold the orders of the Court of Appeal.

Section 3C of the Immigration Act 1971 extends a persons leave to remain pending determination of an application to vary the period of leave, so long as the application is made before the original leave has expired. All three appeals before the Court raise the issue of how section 3C applies where an application is made in time, but for some reason is procedurally defective. Sections 50 and 51 of the Immigration, Nationality and Asylum Act 2006 enable the Secretary of State to lay down in immigration rules procedural requirements for applications, including provision for the payment of a fee and the consequences of failure to comply. Similarly, sections 5 and 7 of the UK Borders Act 2007 provide the power to make regulations regarding the provision of biometric information and the effect of failure to comply with these. Mr Iqbal was granted entry clearance in January 2007 to come to the UK as a student, later extended to 30 April 2011. On 19 April 2011 he applied for further leave to remain as a student, although unaware that the fee had recently increased, he paid the old, lower fee. His application was rejected as invalid for that reason, and his leave expired. Mr Mirza entered the UK under a student visa which was valid until 31 March 2009. His application to extend leave was rejected for non payment of the fee when the Secretary of State was unable to take the 295 application fee from his bank. In Ms Ehsans case she had entry clearance until 28 December 2011. She applied for further leave on 23 December 2011 and was contacted by the Secretary of State, requesting that she make an appointment to provide certain biometric information. She was told by letter dated 26 March 2012 that her application was returned as invalid because of her failure to make and attend an appointment for providing biometric information. A new application made on 3 April 2012 subsequently failed. All three appellants applied for judicial review of the Secretary of States decisions, and following refusal of permission to apply for judicial review in the High Court/Upper Tribunal, permission to appeal was granted by the Court of Appeal. The Court of Appeal dismissed their joined appeals on the basis that section 3C did not extend to an application which was not validly made in accordance with the rules. The Supreme Court unanimously dismisses the appeals. Lord Carnwath gives the judgment, with which the other Justices agree. The public are entitled to the legislative scheme being underpinned by a coherent view of the meaning of the rules and regulations. The court agrees with the Court of Appeal as to the need for rationalisation and simplification [30]. The approach to the present appeals must be based on the legislation as it stands, since there has been no challenge to the legality or rationality of the rules and regulations. Ordinary principles of statutory interpretation are to be used, starting from the natural meaning of the words in their context. On this basis, the Court of Appeal in respect of Mr Iqbal and Mr Mirza reached the correct conclusion. There is no ambiguity in the words of regulation 37 of the 2011 Regulations: if an application is not accompanied by the specified fee it is not validly made. An application not validly made can have no substantive effect [33]. It does not matter that section 3C was enacted before the provisions of the 2006 Act or the regulations made under it, because the powers given by Parliament in the later Act were made within the same legislative framework as the 2002 Act. This does not equate with permitting the executive to alter the interpretation of primary legislation [34]. The Court of Appeal was also right in rejecting Mr Iqbals ground of appeal based on alleged unfairness. The comments of the Upper Tribunal in Basnet do not lay down a universal rule and although it is unfortunate that he was caught out by a change in fees, there was no failure by the Secretary of State to publicise that change. The problem only arose because the application had been made very close to the expiry of leave [35]. In the case of Ms Ehsan the situation is slightly different. While the obligation to pay fees arises at the time of the application, the requirement to apply for biometric information only arises at a later stage. Thus, while an application without the fee will be invalid from the outset, it is difficult to see why a failure at the biometric information stage should retrospectively invalidate an application from the outset, nullifying any section 3C extension to her leave to remain. There is no reason to read section 7 of the 2007 Act as having retrospective effect. Rather, the natural reading is to give power to invalidate the application from the time of the decision. However this reading would not help Ms Ehsan because even if her leave continued until the date of the Secretary of States decision on 26 March 2012, it would not assist her in respect of her new application made on 3 April 2012 [36 7].

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When a person is facing insolvency, a possible alternative to sequestration is a voluntary arrangement with his creditors. Under Scots law, this usually takes the form of a deed granted by the debtor, conveying his property to a trustee for the benefit of his creditors. The trustee is given powers to collect and realise assets, to rank claims, and to distribute the estate among the creditors according to their respective rights and preferences. The trust deed will usually contain provisions relating to the discharge of the debtor from his debts, the restoration to him of any surplus, and the discharge of the trustee. At common law, the trust deed is binding on creditors who accede to it. As will be explained, it may also, under statute, affect the rights of non acceding creditors. This appeal concerns a situation in which, after the debtors estate so far as known had been distributed in partial payment of his debts, and he and his trustee had received their discharges, additional property was discovered, of which his trustee had not previously been aware. There is no suggestion that it had been concealed, or that the debtor was even aware of its existence. The question raised in the appeal is whether the trustee (or former trustee, depending on the view one takes) is entitled to the property, and can distribute it among the creditors (or former creditors) in further payment of the debts (or former debts). As will appear, the form in which the case has been brought presents the court with a narrow issue, and it has been unable to consider wider aspects of the question which it might otherwise have addressed. The facts On 29 September 2006 Mr Davidson, the second respondent, granted a trust deed for his creditors. It was in a standard form, and was a protected trust deed to which the provisions of the Bankruptcy (Scotland) Act 1985 (the 1985 Act), Schedule 5, paragraphs 5 10, as amended by section 11(3) of, and paragraph 32 of Schedule 1 to, the Bankruptcy (Scotland) Act 1993, applied. Put briefly, those provisions have the effect of restricting the rights of non acceding creditors and conferring on the trust deed some protection against being superseded by the sequestration of the debtors estate. In accordance with paragraph 5(1) of Schedule 5 to the 1985 Act, the trust deed was sent to all known creditors, notice of it was published in the Edinburgh Gazette, and it was registered in the Register of Insolvencies. The material provisions of the trust deed can be summarised as follows. Clause 1 provided that Mr Davidson transferred to a named insolvency practitioner, as trustee for his creditors, the rights and assets which would vest in a permanent trustee in terms of sections 31, 32 and 33 of [the 1985 Act]. Those rights and assets were described as Mr Davidsons estate. They included any right of action and any estate acquired by the debtor during the currency of the trust, in accordance with section 32(6) and (10) of the 1985 Act. Under Clauses 2 and 3, the trustee was entitled to receive, during the period of the trust, the amount of Mr Davidsons income which exceeded a suitable amount to allow for his aliment and relevant obligations as defined in section 32(3) of the 1985 Act. Under Clause 7, headed Distribution of my Estate, the estate was to be distributed first in payment of the expenses of the trust deed and the trustees remuneration, secondly in payment of creditors, and thirdly so as to re convey any remaining surplus to Mr Davidson. In relation to the payment of creditors, Clause 7 (Second) provided, so far as material: My Trustee shall determine as he thinks fit the time(s) when payment should be made, what notice of payment should be given and whether payment should be made by way of interim or final dividend(s). Clause 10 provided: This Trust Deed is granted by me on condition that the creditors acceding to the Trust Deed shall discharge me of all my debts due to them on the termination of this Trust Deed unless: (i) My Trustee reports that in his opinion I have not made fair and full surrender of my Estate or; (ii) The Trust Deed terminates on an award of sequestration of my Estate being made. Clause 11 provided that the trust deed would terminate on the earliest of the following events: (i) An award of sequestration of my Estate . (ii) The final distribution of my Estate (which shall for the avoidance of doubt include a nil distribution) by my Trustee in accordance with this Trust Deed. (iii) The acceptance by my creditors of any composition offered by me. Clause 12 provided for the discharge of the trustee: When my Trustee considers it appropriate to wind up this trust created by the Trust Deed, he shall summon a final meeting of my creditors by issuing a notice sent by first class post and confirmed by a certificate of posting and shall include with such notice a copy of the accounts of his transactions and intromissions with my Estate. At the meeting of my creditors he can seek his discharge from my creditors. Mr Mond, the appellant, was assumed as the trustee in July 2010. On 16 September 2010 he wrote to the creditors, stating: I am now in a position to complete the administration of the case and make payment of the first and final dividend. All the assets in the Trust Deed have been realised . Creditors had been invited to submit their claims. They exceeded the known estate. On 5 November 2010 Mr Mond paid the creditors a dividend of 22.41 pence in the pound. On 19 November 2010 he received his discharge. On 5 April 2011 he sent the Accountant in Bankruptcy, for registration in the Register of Insolvencies, a statement indicating how the estate was realised and distributed, and a certificate to the effect that the distribution was in accordance with the trust deed, as required by paragraph 9 of Schedule 5 to the 1985 Act. That provision applies where the trustee under a protected trust deed has made the final distribution of the estate among the creditors, and requires the trustee to submit the statement and certificate not more than 28 days after the final distribution. The certificate was made expressly in terms of paragraph 9, and stated that a full distribution of the debtors estate has now been made in accordance with the terms of the Trust Deed. At the same time, Mr Mond also requested the Accountant in Bankruptcy to register his discharge in the Register of Insolvencies in accordance with paragraph 10 of Schedule 5. Unbeknown to Mr Mond, before Mr Davidson entered into the trust deed he had been mis sold payment protection insurance (PPI) which he had taken out in respect of various loans from the Bank of Scotland (the Bank). In January 2015 he appointed Dooneen Ltd, the first respondent, as his agent for the purpose of making a claim against the Bank for the mis selling of the PPI, and assigned to Dooneen 30% of the value of any compensation received. Dooneen made a claim, and in April 2015 the Bank agreed to pay compensation of around 56,000. Mr Mond claimed that he was entitled to payment of that sum, on the basis that the right to compensation had vested in him as part of the estate subject to the trust deed and remained vested in him as trustee. The Bank paid the compensation to Mr Mond. The present proceedings In the present action, Dooneen and Mr Davidson seek declarator that the compensation had not vested in Mr Mond together with payment of the compensation from Mr Mond. They accept that Mr Davidsons right to compensation formed part of the estate transferred to his trustee for the benefit of his creditors, but argue that his radical right to it became disburdened of the trust when the avowedly final distribution was made, since the trust then came to an end in accordance with Clause 11(ii). Mr Mond, on the other hand, argues that there was no final distribution within the meaning of the trust deed, since a distribution cannot be final if, as a result of ignorance, it leaves part of the trust estate out of account. That, he argues, is clearly the position in a statutory sequestration: Whyte v Northern Heritable Securities Investment Co Ltd (1891) 18 R (HL) 37; [1891] AC 608. The same, he argues, should follow under a voluntary trust deed, which should be construed so as to prevent the debtor from receiving a windfall at the expense of his creditors. The Lord Ordinary, Lord Jones, found in favour of Dooneen and Mr Davidson: [2016] CSOH 23. That decision was upheld by the Second Division of the Inner House (Lady Dorrian, the Lord Justice Clerk, Lord Malcolm and Lord McGhie): [2016] CSIH 59; [2017] SCLR 199; [2017] BPIR 380. The Inner House considered that, on a proper construction of the trust deed, a final dividend within the meaning of Clause 7 (Second), and the equivalent expression final distribution in Clause 11(ii), meant a dividend or distribution declared to be such by the trustee. The distribution on 5 November 2010 was made on the basis that the trustee had determined that a final dividend should be paid. It was therefore a final distribution within the meaning of the trust deed, notwithstanding the existence of an asset which was unknown to the trustee. The trust therefore came to an end on that date, in accordance with Clause 11(ii), and the debtor was discharged of his debts, in accordance with Clause 10. The essence of the Second Divisions reasoning was set out in para 18 of its Opinion, delivered by the Lord Justice Clerk: This interpretation is necessary because the termination of the trust deed, as we have noted, is tied to, amongst other things, final distribution. The final distribution acts not only as the trigger for a discharge of the debtor by creditors, but, in effect, a composition, whereby the trust deed (the voluntary equivalent of a sequestration) is ended and the debtor is entitled to be re invested in any remaining trust estate. As was explained in Flett v Mustard [1936 SC 269] (Lord President Normand, p 275): If abandonment is out of the way, the only other mode by which retrocession can be established, short of full payment of the creditors, is by showing that there was a discharge on composition Northern Heritable Securities Investment Co, Lord Watson at p 39. There may be a discharge of a debtor under a trust deed for creditors which does not expressly bear to be a discharge on composition but which is intended to have that effect, and that intention may be found in the terms of the trust deed and of the discharge. That was the view taken by Lord Trayner (at p 570) in Kinmond, Luke & Co v James Finlay & Co [(1904) 6 F 564]. In Kinmond, where there was a provision in similar terms to clause 11(ii), Lord Trayner had said (p 570): Under the trust deed, to which the pursuers creditors acceded, it was made matter of contract that on receiving a final dividend (as declared by the trustee) the pursuers should, ipso facto, stand discharged of all claims ranked on their estate. Such a dividend has been paid and the discharge given. In my opinion, that operated practically as a discharge on a composition would have done, and had the effect of reinvesting the pursuers. The discharge in the present case has the same effect, terminating the trust and reinvesting the truster in any unrealised estate, which includes the PPI payment. Discussion In my respectful opinion, the Inner House reached the correct conclusion as to the construction of the trust deed. It provides in effect for a composition between the debtor and the acceding creditors, as the Lord Justice Clerk explained under reference to the dicta in Kinmond, Luke & Co v James Finlay & Co and Flett v Mustard. The composition is conditional on the final distribution of the estate by the trustee (subject to the contingencies mentioned in Clause 10(i) and (ii)). It is for the trustee, acting in accordance with his fiduciary duty towards the creditors, to determine when a final distribution should take place. Those considerations do not in themselves entail that a final distribution, within the meaning of the trust deed, can take place even though a part of the estate of which the trustee was unaware has not been distributed in payment of the debts. But the contrary argument that a final distribution only occurs, in the absence of full payment of the debts, when all the assets transferred to the trustee under the trust deed have in fact been distributed, whether or not the trustee is aware of their existence would have consequences which the debtor cannot reasonably be taken to have intended when granting the deed. First, since one could never be certain that any distribution was a final distribution in that sense, one could never be certain that the trust had terminated. It would potentially be of indeterminate duration. The consequent uncertainty as to whether the trust had terminated or not is particularly difficult to reconcile with the provisions of Clause 1, vesting acquirenda in the trustee, and Clause 2, requiring the debtor to pay part of his income to the trustee, so long as the trust subsists. Secondly, if one cannot be certain whether the trust has terminated, it follows that the debtor cannot be certain that he has been discharged of his debts under Clause 10. This could have serious practical consequences not only for the debtor but also for anyone else doing business with him after his apparent discharge and the apparent termination of the trust, since he might nevertheless prove to be an undischarged bankrupt. Thirdly, if the discovery of previously unknown assets signifies that there has not been a final distribution, even though the certificate required by paragraph 9 of Schedule 5 to the 1985 Act has already been registered, then it follows that reliance cannot be placed on the accuracy of the public Register of Insolvencies. It is inherently unlikely that the trust deed was intended to have that result. Counsels response was that Clause 1 defines the trust estate by reference inter alia to section 32 of the 1985 Act, which refers to estate acquired by the debtor on a relevant date, defined by section 32(10) as meaning a date after the sequestration and before the date on which the debtors discharge becomes effective. Under section 54 of the 1985 Act, a debtor automatically obtains his discharge three years after the date of sequestration. On that basis, it was argued that the definition of the trust estate in Clause 1 does not include acquirenda acquired more than three years after the commencement of the trust. This argument cannot be accepted. The incorporation into Clause 1 of section 32 of the 1985 Act, for the purpose of defining the trust estate, does not entail the incorporation of section 54 for the purpose of determining whether property was acquired before the date of the debtors discharge. On the contrary, the trust deed itself makes provision for the date of the debtors discharge in Clause 10, so giving content to section 32(10) as applied to the trust. Furthermore, the terms of Clause 10, read together with Clause 11, are inconsistent with section 54: discharge does not occur automatically after three years, but on the termination of the trust, which takes place on the earliest of the three events listed in Clause 11(i) to (iii), all of which can occur more than three years after the commencement of the trust. Counsel also relied on the case of Whyte v Northern Heritable Securities. That case was concerned with a similar factual situation to that in the present case, but it arose in a materially different legal context. The debtor had been sequestrated under the Bankruptcy (Scotland) Act 1856 (19 & 20 Vict, c 79). Section 102 vested his property in the trustee for behoof of the creditors, absolutely and irredeemably. Section 132 required the payment of dividends from time to time until the whole funds of the bankrupt shall be divided. Section 152 provided a procedure for the trustee to obtain his discharge after a final division of the funds. Section 155 provided for any surplus of the bankrupts estate remaining after payment of his debts to be paid to him. The case arose because the creditors discovered, after both the debtor and the trustee had been discharged, that part of the estate had not been distributed. The House of Lords concluded that, under the legislation, the remaining estate could only vest in the debtor upon a composition or other transaction with his creditors, or upon payment in full of his debts. Since none of these events had occurred, it followed that the process of sequestration under the Act had not been completed, and that a new trustee should be appointed for the purpose of distributing the remaining estate. Lord Watson explained at pp 39 and 614 615: According to my view of the statute, he [the debtor] can only get back the property which has been taken from him absolutely and irredeemably by the force of the statute in one of three ways; either, first, by his discharge upon payment of a composition to his creditors; secondly, by receiving a part of it as surplus after satisfying their claims to the extent of 20 shillings in the pound; or, in the third place, by a transaction with the trustee and creditors of the bankrupts estate I think the final close of the sequestration contemplated by the statute was the discharge of the trustee after the final distribution after the whole of the funds vested in him by force of the statute had been applied to their proper purpose, namely, payment of the debts ranked in the sequestration. When I speak of final distribution, I mean distribution of what were in fact the last funds available for the purpose. Now in this case there was no doubt a discharge of the trustee upon the footing that the available funds had been distributed. That was the footing upon which the discharge of the trustee proceeded, so far as I can see. But it proves to have been in face of the fact that there were funds extant at that date which were available, and might have been made available by the trustee for division among the creditors. Now it appears to me that the discharge of a trustee upon that footing before final distribution, either in ignorance or by inadvertence, cannot possibly alter the provisions of the Act, and that by force of the Act the sequestration notwithstanding subsists for behoof of the creditors. Counsel relied on the second paragraph of that passage as defining the meaning of the words final distribution. But Lord Watson was merely explaining the sense in which he was using those words in his speech, rather than defining a term of article The decision in the case turned on the relevant statutory provisions, in particular sections 132 and 155 of the 1856 Act. In the present case, by contrast, the trust deed contains no comparable provisions. Furthermore, in the present case the debtor has been discharged on the basis of what is in effect a composition with his creditors: a situation in which Lord Watson accepted that the position would have been different. It might also be observed that the proceedings in that case were brought by the creditors, in order to have a new trustee appointed to the undistributed estate. Although the point was not raised in the courts below, and it is unnecessary to decide it, one might question on what basis the present action, even if well founded in law, could be brought by a former trustee who had received his discharge. Conclusion For the foregoing reasons, a decision that a distribution is final, taken by the trustee under the present trust deed in accordance with his fiduciary duty, must be regarded as definitive, subject to the possibility, discussed below, of its being reduced (ie set aside). It follows, in the present case, that the trust came to an end on 5 November 2010, that the debtor was then discharged of his debts, and that the former trustee, discharged later the same month, has no entitlement to the asset discovered in 2015. The appeal should therefore be dismissed. Postscript This is scarcely a satisfactory outcome. An asset which vested in the trustee for the benefit of the creditors and ought to have been applied to payment of the debts due to them, will instead be paid to the debtor, merely because the trust was administered in ignorance of its existence. One might question whether the law is powerless to provide a remedy in this situation. Prior to the hearing of the appeal, the court informed the parties that it would be assisted by discussion of the legal consequences of a mistake in this context: in particular, whether the relevant acts of the trustee might be reduced if they were the result of an error as to the extent of the trust estate. In posing that question, the court had it in mind that on the construction of the trust deed which it has now upheld, the acceding creditors effectively conferred on the trustee a power to extinguish their rights as against the debtor by determining that a dividend should be a final distribution; and that the determination in the present case had been made in ignorance of a relevant indeed, critical consideration. It also had it in mind that reduction is a discretionary remedy, which may be granted on terms, or withheld, where that is appropriate to protect the rights of third parties. The court drew the attention of the parties to the Scottish Law Commission Discussion Paper on Supplementary and Miscellaneous Issues relating to Trust Law (2011) (No 148), Chapter 14, Error and other defects in trustees exercise of discretionary powers, and the Scottish Law Commission Report on Trust Law (2014) (Scot Law Com No 239), Chapter 19, Defects in the exercise of trustees powers, where relevant authorities are discussed. Those authorities include the decisions of the House of Lords in Dundee General Hospitals Board of Management v Bells Trustees 1952 SC (HL) 78; [1952] 1 All ER 896 and Hunter v Bradford Property Trust Ltd 1970 SLT 173, to which one might add the case of Whyte v Knox (1858) 20 D 970. In the event, the parties declined to make submissions on these matters. In those circumstances, it would be inappropriate for the court to consider them further on this occasion.

In September 2006, Mr Davidson (the Second Respondent) entered into a trust deed for the benefit of his creditors. It was a protected trust deed to which provisions of the Bankruptcy (Scotland) Act 1985 (1985 Act) applied. Clause 11 of the deed provided for the deeds termination on the occurrence of one of three events, one of which was a final distribution of the estate. Before he entered into the deed, Mr Davidson had been mis sold payment protection insurance (PPI), for which the bank agreed to pay him compensation of around 56,000 in April 2015. Dooneen Ltd (the First Respondent) was Mr Davidsons agent for the purpose of making the claim and Mr Davidson had assigned 30% of any compensation received to Dooneen. The dispute between the parties was about whether Mr Mond (the Appellant), as trustee, or the Respondents were entitled to the compensation. This turned on whether Mr Mond had made a final distribution when he distributed what he called a first and final dividend of 22.41 pence in the pound to the creditors in November 2010 and was discharged accordingly in circumstances where he did not know at the time that Mr Davidson had been mis sold PPI in respect of which he was entitled to compensation. The Lord Ordinary, Lord Jones, found in favour of the Respondents, and that decision was upheld by the Inner House. Mr Mond now appeals to the Supreme Court on the ground that the courts below had misinterpreted final distribution. The Supreme Court unanimously dismisses the appeal with the result that Dooneen and Mr Davidson are entitled to the payment of compensation. Lord Reed, with whom the rest of the Court agrees, delivers the judgment. Mr Mond argued that, regardless of whether or not the trustee knew of all of the assets, a final distribution can only occur when either all assets are distributed or enough assets are distributed so as to pay all creditors in full. This construction is rejected because it would have consequences which the debtor cannot have intended when granting the deed [12]. First, one could never be certain whether any distribution was in fact final so that the deed would potentially be of indeterminate duration. This would be particularly difficult to reconcile with other parts of the deed that vest in the trustee assets and income acquired by the debtor during the currency of the trust deed [13]. Second, it would make it impossible for the debtor or anyone doing business with him to know whether or not the debtor has been finally discharged [14]. Third, it would undermine the purpose of the public Register of Insolvencies, where certificates are registered under the 1985 Act signifying that a final distribution has been made, as it could no longer be relied on as accurate [15]. Lord Reed observes that the outcome of the case is scarcely satisfactory, and notes that the Court raised with the parties the question whether the relevant acts of the trustee might be reduced (set aside) if they were the result of an error as to the extent of the trust estate. Although the parties were invited to make submissions on this, they declined to do so, and it would accordingly not have been appropriate for the Court to consider these matters on this occasion [23].

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This appeal relates to personal independence payment, which is a non means tested allowance paid to certain people with long term health problems or disability. The appeals focus is upon one of the markers used to determine whether a claimants ability to live his or her daily life is limited, by his or her physical or mental condition, to such an extent as to generate an entitlement to personal independence payment (PIP). Various daily living activities are examined as markers, and the one in question here is engaging with other people face to face. The general scheme of the Welfare Reform Act 2012 and the Social Security (Personal Independence Payment) Regulations 2013 PIP is dealt with in Part 4 of the Welfare Reform Act 2012 (the Act). Section 77 introduces the allowance and establishes that a person may be entitled to one or both of its two components, namely the daily living component and the mobility component. This case is concerned with the daily living component. Entitlement is dealt with in section 78, which also points the way to other relevant provisions contained in Part 4 and in the regulations made under it. The component can be paid at either the standard rate (which is what is in question here) or, for those whose ability is more limited, the higher enhanced rate. By section 78(1), there are two requirements which the claimant must satisfy in order to be entitled to the daily living component at the standard rate, namely the requirement in section 78(1)(a) (which I will refer to as the limited ability requirement), and the required period condition in section 78(1)(b). So far as is material, the section reads: 78. Daily living component (1) A person is entitled to the daily living component at the standard rate if (a) the persons ability to carry out daily living activities is limited by the persons physical or mental condition; and the person meets the required period (b) condition. [entitlement to enhanced rate] (2) [meaning of standard and enhanced rate] (3) In this Part daily living activities means such (4) activities as may be prescribed for the purposes of this section. (5) See sections 80 and 81 for provision about determining (a) whether the requirements of subsection (1)(a) or (2)(a) above are met; (b) whether a person meets the required period condition for the purposes of subsection (1)(b) or (2)(b) above. (6) This section is subject to the provisions of this Part, or regulations under it, relating to entitlement to the daily living component Section 80 provides that the question whether a persons ability to carry out daily living activities is limited by the persons physical or mental condition (the limited ability requirement in section 78(1)(a)) is to be determined in accordance with regulations, and that the regulations must provide for that question to be determined, except in prescribed circumstances, on the basis of an assessment (or repeated assessments) of the person. The question of whether the person meets the required period condition for the purposes of section 78(1)(b) is similarly to be determined in accordance with regulations. The Social Security (Personal Independence Payment) Regulations 2013 (the Regulations) prescribe the activities which are daily living activities for section 78 as those set out in column 1 of the table in Part 2 of Schedule 1 to the Regulations. The table lists ten activities. Column 2 focuses in some detail on the ability of the claimant (referred to throughout the Regulations as C) to carry out each activity, on a scale ranging from being able to carry out the activity unaided to being unable to do it. For example, activity 1 in the list is Preparing food, and there are six levels of ability in column 2 ranging from a. Can prepare and cook a simple meal unaided to f. Cannot prepare and cook food. Each sub paragraph in column 2 is called a descriptor. In column 3, points are attributed, according to the level of ability measured by the descriptors; the greater the difficulty experienced by the claimant, the greater the number of points awarded. So, a claimant who can prepare and cook a simple meal unaided has no points attributed, whereas, at the other end of the scale, eight points are attributed where the claimant cannot prepare and cook food. There are gradations between the two; for example, a claimant who needs prompting to be able to prepare or cook a simple meal has two points attributed, as does a claimant who needs to use an aid or appliance to do so. The same ascending scale of difficulty, reflected in increasing numbers of points, can be seen in relation to each of the activities in the table. Regulation 5 provides that the points attributed for each activity in the table are added together and, if the total is at least eight but less than 12, the claimant has limited ability to carry out daily living activities, and is entitled to PIP at the standard rate, whereas if the total is 12 points or more, the claimant will be classed as having severely limited ability and is entitled to the enhanced rate. Regulation 4(2A) provides some more detail as to how the assessment of ability is approached, providing that: C is to be assessed as satisfying a descriptor only if C can do so safely; to an acceptable standard; repeatedly; and (a) (b) (c) (d) within a reasonable time period. Regulation 4(4) defines these concepts as follows: repeatedly means as often as the activity being (a) safely means in a manner unlikely to cause harm to C or to another person, either during or after completion of the activity; (b) assessed is reasonably required to be completed; and (c) reasonable time period means no more than twice as long as the maximum period that a person without a physical or mental condition which limits that persons ability to carry out the activity in question would normally take to complete that activity. The assessment of the claimant is more than just a snapshot of ability, given that the required period condition has to be satisfied, see section 78(1)(b). Section 81 dictates the shape of the regulations about this condition, providing (so far as material) that they: must provide for the question of whether a person meets the required period condition to be determined by reference to (a) whether, as respects every time in the previous three months, it is likely that if the relevant ability had been assessed at that time that ability would have been determined to be limited by the person's physical or mental condition; and (b) whether, as respects every time in the next nine months, it is likely that if the relevant ability were to be assessed at that time that ability would be determined to be limited by the persons physical or mental condition. For present purposes, the relevant ability is, of course, the ability to carry out daily living activities (section 81(2)). Section 81(3) deals with the reckoning of the periods of three and nine months, providing that the previous three months means the three months ending with the prescribed date and the next nine months means the nine months beginning with the day after that date. The Regulations make provision as required by section 81, including establishing what the prescribed date is, and also dealing with further issues to do with the required period. The detail does not matter for the issue presently under consideration. What is important is to recognise that it is not just the claimants situation on one day of assessment that is under consideration, but his or her situation over a period of 12 months. Furthermore, it is clear from the Regulations that some degree of fluctuation in the claimants presentation is anticipated. Regulation 7, which is entitled Scoring: further provision, sets out how to choose which descriptor applies to a claimant in relation to each activity in the table. It involves looking to see which descriptors are satisfied on over 50% of the days of the required period, and from that information, working out which descriptor is to be applied. Regulation 7(1)(a) (which deals with the most straightforward situation) will serve as an example; it provides that where one descriptor is satisfied on over 50% of the days of the required period that descriptor applies to the claimant. The provision under consideration in the present case It is Activity 9 in the table in Part 2 of Schedule 1 to the Regulations which gives rise to the issues in this appeal. In relation to this activity, the table provides: Column 1 Activity 9. Engaging with other people face to face. Column 3 Points 0 2 4 8 Column 2 Descriptors a. Can engage with other people unaided. b. Needs prompting to be able to engage with other people. c. Needs social support to be able to engage with other people. d. Cannot engage with other people due to such engagement causing either (i) overwhelming psychological distress to the claimant; or (ii) the claimant to exhibit behaviour which would result in a substantial risk of harm to the claimant or another person. Difficulty has arisen over descriptor 9c, and in particular over what is meant by social support, and how it differs from prompting in descriptor 9b so as to justify descriptor 9c attracting four points, whereas descriptor 9b only attracts two points. A subsidiary issue that arises is whether social support only covers help given whilst actually engaging with other people face to face, or whether help given in advance is also relevant. Definitions are provided for the purpose of Schedule 1 by Part 1 of the Schedule, including the following: In this Schedule aided means with (a) (b) the use of an aid or appliance; or supervision, prompting or assistance; assistance means physical intervention by another person and does not include speech; communication support means support from a person trained or experienced in communicating with people with specific communication needs, including interpreting verbal information into a non verbal form and vice versa; engage socially means interact with others in a contextually and (a) socially appropriate manner; (b) understand body language; and establish relationships; (c) prompting means reminding, encouraging or explaining by another person; psychological distress means distress related to an enduring mental health condition or an intellectual or cognitive impairment; social support means support from a person trained or experienced in assisting people to engage in social situations; supervision means the continuous presence of another person for the purpose of ensuring Cs safety; unaided means without (a) (b) the use of an aid or appliance; or supervision, prompting or assistance. There is no definition of engaging with other people face to face or of engage. As can be seen, Part 1 provides, instead, a definition of engage socially, a term which does not appear anywhere else in the Schedule. It is thought that this is an error, arising when Activity 9, which was originally entitled engaging socially, was refined following consultation on the provisions. The settled position in the tribunals (endorsed by the Court of Appeal in Hickey v Secretary of State for Work and Pensions [2018] EWCA Civ 851; [2018] 4 WLR 71, para 9) is that factors set out in relation to engaging socially are nevertheless relevant to the consideration of a persons ability to engage with other people face to face, and there does not appear to be any reason to disrupt that approach. The context in which the present issues arise The respondent is a man in his forties. He made a claim for PIP relying, inter alia, upon the effects that his mental health has upon his ability to engage with other people. When his claim was refused because he had not been awarded the required eight points, he appealed unsuccessfully to the First tier Tribunal (FTT). A central issue in the appeal was the number of points that should be attributed to him under Activity 9. The FTT considered that the decision maker had correctly found him to fall within descriptor 9b (prompting), rather than 9c (social support). Explaining this, the FTT Judge simply said: Two points have been awarded in respect of 9b. From the activities of daily living and our findings in fact above we consider that this is the appropriate descriptor. The appellant did not require social support as defined to be able to engage with other people nor did engaging with other people cause him overwhelming psychological distress or to exhibit behaviour which would result in a substantial risk of harm to himself or another person. Two points are due as awarded. The respondent appealed to the Upper Tribunal, contending that he should have been awarded four points under 9c, which would have qualified him to receive PIP. The appeal was allowed on the basis that the FTT had given an inadequate explanation of why 9b had been selected rather than 9c, and that it had failed to make adequate findings of fact going to that issue. The Upper Tribunal judge remitted the case to the FTT for rehearing, providing directions as to how the tribunal should approach Activity 9. The essence of the directions might be said to be as follows: i) what is envisaged as social support is emotional or moral support and perhaps also physical support, and other interventions which could include everything in the definition of prompting provided it can only be accepted by the claimant if given by a qualified person; ii) qualified people are those who are trained or experienced in assisting people to engage in social situations and friends or family can come within that category; iii) support. the qualified person needs to be present or available to provide the The Secretary of State appealed to the Inner House of the Court of Session. The Upper Tribunals decision to set aside the FTTs determination and to remit the matter for rehearing was not challenged, but the directions which were to govern the FTTs approach were. The grounds of appeal were that the Upper Tribunal should have directed the FTT that the social support must be contemporaneous with the social engagement being supported, and that social support requires something more substantial than prompting. The Inner House refused the appeal. It rejected the argument that the support had to be contemporaneous with the social engagement, considering that there might be situations in which a qualified person could provide sufficient support in anticipation of the claimant meeting people face to face, without the supporter actually having to be present during the meeting. However, although there was, in the Inner Houses view, no justification for a requirement that the support must be given during or immediately before the engagement, there did have to be a temporal or causal link of some sort between the help given and the activity in respect of which the help is needed (para 51 of the Inner Houses opinion). As to the nature of social support, the Secretary of States position was encapsulated by the Inner House in this way (at para 53 of its opinion): the exercise suggested is, in effect, to treat prompting and social support as mutually exclusive, deduct everything that amounts to prompting and see what, if anything, you are left with which, if sufficient in quantity, might amount to social support. This approach had found favour with a number of Upper Tribunal judges (in CPIP/1861/2015 UKUT(AAC) (unreported) 12 April 2016; CSPIP/203/2015 and CSPIP/210/2015 UKUT (AAC) (unreported) 11 March 2016; AH v Secretary of State for Work and Pensions [2016] UKUT 276 (AAC); EG v Secretary of State for Work and Pensions [2017] UKUT 101 (AAC)). In the view of the Inner House, however, the Secretary of States approach failed to recognise the potential for overlap between the prompting and the social support categories (para 54 ibid). It held that they are not mutually exclusive categories. As the Inner House saw it, the critical distinction between descriptor 9b prompting and descriptor 9c support lay not in a difference in the nature of the help provided but in the fact that, with social support, there is a necessity for the help to come from a person trained or experienced in assisting people to engage in social situations (para 55). Having given the example of psychological support given by someone trained in psychology, which would clearly count as social support, it went on to say: But there may be cases where the support is in the nature of encouragement or explanation but, because of the claimants mental state, will only be effective if delivered by someone who is trained or experienced in delivering that type of support to that individual. In such a case there will not be a qualitative difference in the help given, but the help can be regarded as support because of the necessity for it to be provided by someone trained or experienced in delivering it. The Inner House slightly modified the Upper Tribunal judges direction to the FTT, setting out its own formulation, at para 56, as follows: Encouragement or any other sort of prompting can qualify as social support if, to render it effective or to increase its effectiveness, it requires to be delivered by someone trained or experienced in assisting people to engage in social situations. The case was remitted to the FTT for determination in accordance with the guidance given in the Inner Houses opinion. The Secretary of State then appealed to this court, challenging the Inner Houses interpretation of social support (termed by the parties the qualitative issue), and its conclusion that it need not be contemporaneous with the engagement being supported (the timing issue). The respondent, who made his claim for PIP in February 2015, meanwhile continues to await the factual findings and ruling in the FTT that is necessary to resolve whether or not he is entitled to any payment. He maintains that the Inner Houses ruling is substantially correct. Mind was given permission to intervene and has provided helpful submissions, both in writing and orally. It considers the respondents position in relation to the timing issue to be correct, but invites the court not to decide that issue, on the basis that it is unnecessary and undesirable to do so in the circumstances of this case. It concentrates its submissions on the qualitative issue, aligning itself with the respondent and the courts below. The Secretary of States argument: the qualitative issue Contrary to the position taken below, in this court the Secretary of State accepts that social support for the purposes of descriptor 9c may consist of prompting, but submits that the prompting involved in social support is different by virtue of the fact that, in accordance with the definition of social support, the support needed has to be support from a person trained or experienced in assisting people to engage in social situations. If a person trained or experienced were to be narrowly construed, denoting someone who has such training or experience by virtue of their professional training or occupational history, there would be no difficulty in identifying situations within 9c, but the Secretary of State adheres to the assurance given during the consultation process that a friend or family member who knows the claimant well, and can offer support, can also be included as a relevantly experienced person. So, the Secretary of State submits, the key feature that distinguishes social support is that, as it is put in the written case: the help needs to be given by [the] trained or experienced person by reason of their training or experience. Familiarity is not enough. The Secretary of States concern (as articulated in the written case) is that the Inner Houses direction risks generating confusion: between the persons who require support from a person because of their relevant experience (which might include experience gained in the course of being friends or family), and those who require support from a friend or family member solely because of that relationship It is very common for a person to only respond well to someone they know and trust. However, the need for help from someone familiar or trusted on its own does not turn prompting into social support. There will be a qualitative difference, the Secretary of State says, in the help given by a helper using his or her training or experience as opposed to other help. The trained or experienced person will understand what is lacking in the claimants social engagement and be able to overcome this, or enable the claimant to do so, whereas an inexperienced person would not necessarily be able to see what was lacking, anticipate a difficulty, or know how to remedy it. Discussion: the qualitative issue The difference between the Secretary of States interpretation and that of the Inner House (supported by the respondent and the intervener) is somewhat nebulous, and appears as if it might, in fact, be limited. Rather than risk confusing the issue by indulging in a comparison of the two positions, it might be better to return directly to the text of Activity 9. It is well to bear in mind, when considering the ambit of the various limbs of Activity 9, that engaging with people face to face is an activity that can take many differing forms. As was pointed out in the course of oral argument, face to face interactions will range from engagements such as formal interviews and medical examinations to establishing and furthering close personal relationships. Similarly, the sort of assistance that enables the engagement to occur will take many differing forms. The obvious starting point, in determining which of the Activity 9 descriptors applies, is to establish what help the particular person needs in order to be able to engage with other people face to face, remembering that this is not about the help the person is actually receiving, but about the help that they need, although the one may of course inform the other. It is worth stressing that the provisions are not concerned with support that the person would like to have, or would appreciate as generally comforting; the particular support has to be needed to enable the activity to take place. Having assembled the facts in this way, one can start to consider whether the help needed is of a type that falls within the ambit of social support for the purposes of descriptor 9c. Early in the oral argument, the Secretary of State sought to confine the scope of social support by adopting a rather technical construction of the Activity 9 descriptors. The starting point was that descriptor 9a concerns a person who can engage with other people unaided. The submission flowing from this had the following elements: it can be inferred that, in contrast to those within 9a who can manage i) unaided, claimants falling within 9b and 9c all need to be aided; ii) aided is a term defined in Part 1 of the Schedule (see para 13 above), and involves the use of an aid or appliance, or supervision, prompting or assistance; iii) iv) is meant by social support in 9c. so 9b and 9c claimants will all require aid in one of these forms; and other forms of support are therefore irrelevant in considering what There are difficulties with this proposed interpretation, but there is nothing to be gained in elaborating them. It suffices to say that, in my view, such a narrow and technical approach would introduce an unwarranted limitation of the broad word support which has been used in descriptor 9c. This would be inconsistent with the governments objectives in introducing the new disability benefit provisions, including PIP, which included simplifying matters, and creating a benefit that was easier to understand, and reached those in need of extra support to live independently and participate in everyday life. In practice, support might take many forms, responding, no doubt, to the varied needs of claimants, and the varied forms of face to face engagement. The examples provided by Mind underline the wide variation in the help people have/require in order to engage with other people. Prompting is one form of support, as is now accepted, but there will be other forms, and they may well not fall within the definition of aided. The use of an aid or appliance might not often be relevant, supervision is about ensuring safety rather than directed at Activity 9, and the only other form of aid included in the definition is assistance which means physical intervention not includ[ing] speech, and might play a part, but is unlikely to sweep up all other available forms of support. I would accordingly reject the argument that only support that falls within the definition of aid is relevant, although acknowledging that a consideration of the various forms of prompting and of the other sorts of aid identified in the Regulations could assist in lending some colour to the concept of support. I return, therefore, to the central question of what differentiates the claimant who needs social support and is entitled to four points under descriptor 9c, from the claimant who is only entitled to two points, because he or she only needs prompting in the form covered by descriptor 9b. It is inherent in the scheme that, broadly speaking, descriptor 9c reflects a greater degree of disability than descriptor 9b, so attracting increased points. Responding to the greater degree of disability requires the attention not just of another person (as in the case of prompting simpliciter), but of a person trained or experienced in assisting people to engage in social situations. That is what differentiates prompting for the purposes of 9b from prompting which is social support for the purposes of 9c. And where the support takes a form other than prompting, it will similarly only qualify for 9c if the claimant needs it to come from a person so trained or experienced. The Secretary of States anxiety that the provision will be taken to include the sort of confidence boosting and reassurance that occurs in most close relationships can be allayed by keeping the focus very firmly on the twin requirements of necessity and relevant training or experience. Applied in the family/friends setting, to qualify for points under 9c, the claimant has to need support from someone who is not just familiar with him or her, but who is also experienced in assisting engagement in social situations. It is the training/experience of the helper upon which the claimant depends in order to enable the face to face engagement with others to take place, not simply the close and comforting relationship that may exist between the claimant and the helper. Having dispatched the idea that prompting can never constitute social support, the words of descriptor 9c, taken with the definition of social support, clearly define the ambit of the category and distinguish it from descriptor 9b. There is no need to complicate them. As the Inner House observed in para 55 of its opinion (see the passage quoted at para 20 above), the nature of the support provided might not differ between 9b and 9c. What brings the claimant into 9c rather than 9b is that, to be able to engage with others, he or she needs that support to come from someone trained or experienced in assisting people to engage in social situations. As the Inner House helpfully put it, the support will only be effective if delivered by someone who is trained or experienced. I would express a word of caution about the Inner Houses statement (at para 56) that help can qualify as social support if, to render it effective or to increase its effectiveness (my italics), it requires to be delivered by a trained or experienced person. It is useful to ask oneself what is required to render help effective in enabling the social engagement to take place, as I have observed in my preceding paragraph. But I cannot endorse the addition of the italicised words. Descriptor 9c revolves around what the claimant needs, and need is not a relative term. The claimant either needs or does not need trained/experienced help in order to be able to engage with other people. If only trained/experienced help will be effective in achieving the objective, the claimant can be said to need it. If what could be called, for want of a better shorthand, lay help would enable the claimant to engage, the claimant does not fall within 9c, but might fall within 9b. And, of course, if not even trained/experienced help would work, the claimant might fall within 9d. There will, inevitably, be cases in which it is not immediately evident whether descriptor 9c applies, and it is only after scrutinising the facts particularly carefully that the decision maker will be able to reach a determination. Although the provision is concerned with the help the claimant needs, rather than with the help which he or she is actually getting in practice, it seems likely that, in many family/friends cases, someone will already be carrying out the supportive role in face to face engagements. Where this is so, the assessment/decision making process will be assisted by looking at the elements of the support that they actually provide, how they have come to know what to do, whether or not the sort of help that they provide could be provided by any well meaning friend or family member, and what additional help (if any) is required. Exploring these issues will no doubt be a sensitive task. Mind points out that people often struggle to convey the relevant information or they put it in terms which are misunderstood. Claimants are likely to be handling their applications for PIP themselves, or with assistance only from family and friends. Here, for example, the respondent and his partner attended the hearing before the FTT, both gave evidence, and the partner acted as the respondents representative. During the application process, whether it be upon the first request for payment or in the tribunal system upon appeal, it may be necessary to probe what is being said in support of the claim so as to establish the elements of the help that is required to enable the face to face engagement to take place and the characteristics of the person who will need to provide it in order for it to be effective. By way of example, if a claimant says, I need to have someone I trust with me when I meet people face to face, a number of questions are likely to be required to follow this up, and to determine whether the claimant comes within descriptor 9b or 9c. Everything will depend on the facts of the particular case, but they might include questions (sensitively put, of course) such as why is that?, who would you trust in that role?, what sort of things could they do to help you engage?, how would they know what to do?, what would happen if that person was not there? The Secretary of States argument: the timing issue The Secretary of State submits that social support needs to be contemporaneous with the face to face engagement being supported, and that it does not include help provided in advance of it. The contrary interpretation would, submits the Secretary of State, leave matters so open that it would inevitably generate inconsistencies and arbitrariness in decision making. The reasons given in support of the narrow approach include: i) The assessment is a calibration of the claimants functional limitations at the date of the claim with the application of the qualifying periods; it is an assessment of actual disability during the activity. ii) Descriptor 9c uses the present tense: needs. This suggests presence during the activity, for example to do the reminding, encouraging or explaining involved in prompting. iii) Supporting the face to face engagement requires that the supporter perceives the full context of the engagement and has the ability to react to what is done by the person with whom the claimant is seeking to engage. iv) Descriptor 9c is concerned with an intensity of need on the part of the claimant (as reflected in the need for a trained/experienced supporter) which is such as to make it unrealistic to contemplate sufficient support being given without the supporter actually being present during the engagement. v) Social support would be in an anomalous position if it could occur in advance of the engagement, whereas other descriptors require support to be contemporaneous. The Secretary of State invites comparison with, for example, communication support (relevant to Activity 7) which it is submitted would, by its nature, have to be provided at the time of the communication. vi) It would be very difficult to apply the provision if support in advance would qualify. How would the moral, social and emotional support which is an ordinary incident of family relationships and friendships, be distinguished from assistance that would qualify for 9c? vii) As for psychological support, the Secretary of State would say that it is not within the scope of social support at all, but if it were, the problem would be to know how far back one should go, and whether to include counselling sessions the day before the engagement, or a week before, or a year before. Discussion: the timing issue It might be helpful to consider the timing issue having in mind some examples of the practical ways in which a person can be helped to engage face to face with others. Given that no findings of fact have yet been made in relation to the respondents circumstances, it is desirable to avoid focusing particularly on him, but in the course of his counsels submissions, examples were given of the sort of support that an experienced family member might give. Preparation might occur prior to the engagement which enables it to occur without, for example, overwhelming psychological distress. One technique that can be deployed is to look together, in advance of the meeting, at the worst case scenario. During the meeting, with knowledge of the claimant, the supporter can watch out for things that are known to trigger his or her anxiety, and redirect the conversation. Where memory is a problem, the supporter can remind the claimant of things they have forgotten. Private signs of reassurance can be given where required. And, where required, the supporter might recognise the need to remove the person from the meeting. It is important to remember that each claimant is an individual with individual needs, and that different techniques might help in different cases, or at different times in the life of the same person. It seems to me that the Secretary of States insistence on it being necessary for the supporter to be present with the claimant during the face to face engagement would stand in the way of other means of support which work for the particular claimant, and would also be likely to impede attempts to improve the claimants abilities to handle matters without support at all, or with diminished support. It is not difficult to contemplate a situation in which the trained or experienced supporter is aiming to make progress so that a claimant, who initially cannot manage without the supporter physically present during the face to face engagement, learns in stages to manage with the supporter at the door of the room, next door, leaving the building for a short period during the meeting, bringing the claimant to the meeting and collecting him after it, and so on. Discussion before (and possibly after) engagements, and also practical exercises, might be deployed, in order to equip the claimant to deal with encounters without the physical presence of the supporter. At some point in the progress, the claimant will cease to qualify under 9c, but, looking at things entirely practically, rather than legalistically, it would be hard to say that, in all cases, from the moment in the continuum when the supporter is no longer in the room with the claimant, he no longer needs social support to be able to engage with people. It is also relevant to consider the sensitivity of some of the face to face engagements that a claimant may need to undertake. Social support by physical presence with a claimant during a medical examination, or what was called during the hearing a romantic engagement, might be counter productive, whereas social support which did not involve actual presence might enable the claimant to engage when that would not otherwise have been possible. For example, it is easy to contemplate that the claimant and the experienced supporter might have a discussion in advance of a medical examination, going through every element of the procedure and exploring how the claimant might respond to it, the claimant might then allow him or herself to be accompanied to the door of the consultation room and given into the care of the doctor or nurse, and the necessary continuing reassurance might come from the knowledge that the supporter was nearby in the waiting room. It is undesirable to construe the provision in a way that runs counter to these sorts of considerations, unless that is dictated by the provision itself, or by something in its legal context. There is nothing in the wording of descriptor 9c, or the definition of social support, to require actual presence of the supporter during the engagement, nor yet to require that the support is timed to coincide with the engagement, rather than being provided in advance, or indeed afterwards. The use of the present tense (needs) does not carry the Secretary of State this far. It does dictate that the claimant actually needs the support as respects every time over the course of the 12 months made relevant by the required period condition (see para 9 above). The need has to be a continuing one, not one that has been addressed or otherwise ceased, and I would certainly agree with the Inner House when they said (para 49) that descriptor 9c (and for that matter descriptor 9b) would not apply to a case: where, as a result of a successful psychiatric or psychological intervention in the past, the person being assessed was now able to engage with other people satisfactorily and without further help. He would not be able to say, on the strength of that previous intervention, that he continued to fall within Activity 9, descriptor c. But the requirement that there should be a current need at all relevant times does not, of itself, exclude the possibility of assistance given outside the confines of the engagement itself. This is perhaps most easily demonstrated by an example: if social support includes, say, advice and discussion prior to a face to face engagement, it could perfectly properly be said of a claimant, who can only engage if that sort of help is provided, that he needs social support. The Secretary of States interpretation would only be made out if social support is confined to that which is provided on the spot, and there is nothing in the definition of it to confine it in that way. In the absence of express wording dictating contemporaneity, the Secretary of States argument must depend upon inferences drawn from elsewhere in the Regulations and/or from the likely circumstances of claimants. Comparisons with other daily living activities where presence is required during the activity are unhelpful, in my view, because all the various activities are different in nature, and the ways of overcoming difficulties in carrying them out will inevitably be different. Nor am I persuaded by the submissions based upon the intensity of the claimants need and the supposed need for the supporter to perceive and react to the engagement as it unfolds. Sometimes these factors will dictate that the supporter can only provide effective help if actually present, but I see no reason to assume that this will always be the case, and no reason to limit the scope of descriptor 9c so as to exclude cases where support is required from a person trained or experienced in assisting people to engage in social situations but which do not fall within this model. In short, I do not consider that descriptor 9c is limited to cases where a claimant needs social support actually during the face to face engagement. Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe, in the abstract, which other forms of support will be sufficient. It will be a question of fact and degree, and is something that will have to be worked out on a case by case basis, by those with expertise in making assessments and decisions in relation to claims, keeping the wording of the provision firmly in mind. I am hopeful that it will prove possible to do this without the Secretary of States fears of inconsistent and arbitrary decisions being realised. Before concluding, I should say something about the Inner Houses acceptance that what was required was a temporal or causal link of some sort between the help given and the activity in respect of which the help is needed (para 51). This is not a formulation that should, in my view, be adopted. A detailed explanation of why not is unlikely to be of assistance, and one illustration of the problem will perhaps suffice. The formulation contemplates two separate ways in which the requisite link could exist, expressed as alternatives, namely a link by virtue of timing (temporal link) and a link by virtue of being instrumental in securing the engagement (causal link). It is difficult to envisage how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance. Sometimes, explaining and elaborating upon a provision confuses rather than assists, and this might be one of those situations. The answer is more likely to be found, in any given case, by close attention to the words of descriptor 9c, as defined in the Regulations, and to the required period condition. This exercise, paying close attention in particular to the requirement that the claimant needs the support (see para 43 above), should serve to confine the scope of descriptor 9c within appropriate time boundaries. Conclusion I would allow the appeal in the limited sense that I would interpret the relevant legal provisions slightly differently from the Inner House, as I have explained above.

This appeal concerns the assessment of claimants for personal independence payment (PIP), a non means tested allowance paid to certain people with long term health problems or disability. The appeals focus is on one of the markers used to determine the extent to which the ability of claimants to carry out daily living activities is limited by their physical or mental condition. The particular activity in question is engaging with other people face to face and the issue is the interpretation of descriptor 9c found in Part 2 of Schedule 1 to the Social Security (Personal Independence Payment) Regulations 2013 (the Regulations). The Regulations are made under Part 4 of the Welfare Reform Act 2012 (the Act). Descriptor 9c reads: Needs social support to be able to engage with other people. The respondent is a man in his forties. He made a claim for PIP in February 2015. His entitlement to the daily living component of the allowance at the standard rate depended on whether he satisfied descriptor 9c, which would give him 4 points towards the required score of at least 8 points overall under regulation 5. His claim was rejected on the ground that his ability to engage with other people face to face only satisfied descriptor 9b, Needs prompting to be able to engage with other people, which gave him a score of 2 points. The respondent appealed unsuccessfully to the First tier Tribunal (FTT). His appeal to the Upper Tribunal was allowed on the ground that the FTT had given an inadequate explanation of why he satisfied descriptor 9b rather than 9c. The case was remitted to the FTT for rehearing and directions were given as to the interpretation of descriptor 9c. The appellant Secretary of State appealed to the Inner House of the Court of Session in relation to the directions. The Inner House refused the appeal while modifying some of the directions. The Secretary of State appealed to the Supreme Court. Before the Supreme Court the Secretary of State accepted that the social support required for descriptor 9c may consist of prompting, as with 9b, but for this descriptor the support had to be from a person trained or experienced in assisting people to engage in social situations. Whilst he accepted that a friend or family member who knows the claimant well could have the relevant training or experience, he argued that a need for help simply from someone familiar or trusted was not sufficient (the qualitative issue). He also argued that the social support needed to be contemporaneous with the face to face engagement, ie that the person offering the social support had to be physically present (the timing issue). The Supreme Court unanimously allows the appeal in the limited sense of interpreting the relevant legal provisions differently from the Inner House. The respondents claim will now return to the FTT for determination in accordance with this interpretation. The judgment is given by Lady Black. The qualitative issue The activity of engaging with people face to face can take many differing forms, as can the form of the assistance that is needed for the claimants engagement to occur [29 30]. A narrow and technical approach to the words social support in descriptor 9c is unwarranted; it is inconsistent with the governments objective of creating a benefit which is easier to understand and reaches those who need extra support to live independently and participate in everyday life [32]. What brings the claimant within descriptor 9c rather than 9b is that, to be able to engage with others, he or she needs the support to come from someone trained or experienced in assisting people to engage in social situations i.e. the support will only be effective if delivered by someone who is not just familiar with the claimant, but also trained/experienced in assisting engagement in social situations [34 35]. Careful scrutiny of the facts will sometimes be necessary in order to determine whether descriptor 9c applies, including probing the information provided by sensitive questions [38] and, where support is already being provided by family/friends, exploring how they have come to know what to do, whether that help could come from any well meaning friend or family member, and what additional help (if any) is required [37]. The timing issue It is helpful to consider examples of practical ways in which a person can be helped to engage face to face with others. For instance, preparation prior to the engagement might avoid overwhelming psychological distress, and, during the engagement, a supporter might be able to give the claimant reminders, direct the conversation away from topics that trigger anxiety, give private signs of reassurance, or recognise the need to remove the claimant from the meeting [40]. The Secretary of States insistence on it being necessary for the supporter to be present at the engagement would stand in the way of means of support which do not involve physical presence and would be likely to impede attempts to improve the claimants abilities to handle matters in future with less support [41]. It would be undesirable to construe descriptor 9c in a way that runs counter to these considerations, and there is nothing in the wording of the descriptor to require that. The word needs indicates a continuing need, to be found as respects every time over the 12 month period made relevant by s 81 of the Act, but it does not, of itself, exclude the possibility of assistance outside the confines of the engagement [43] and nor is there anything else to dictate such an interpretation [45]. Given that social support is likely to take many different forms, depending on the individual needs of the claimant, it is undesirable to attempt to prescribe in the abstract which other forms of support will be sufficient. It will be a question of fact and degree [46], addressed with close attention to the words of the descriptor and the required period condition [48]. The Inner Houses acceptance that a temporal or causal link was required between the help given and the activity should not be adopted. It is difficult to see how support which is linked in time to a face to face engagement but has no causal link to what occurs could have any relevance [47].

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These appeals are brought by a Polish national, Roksana Mirga, and an Austrian national, Wadi Samin, against decisions of the Court of Appeal upholding determinations that they were not entitled to certain benefits, namely income support and housing assistance respectively, pursuant to the provisions of United Kingdom domestic law. The arguments have changed somewhat over the course of the two sets of proceedings, but the essential issue raised now is whether the provisions and the current implementation of the domestic law in question infringe the rights of residence in the UK of citizens of European Union member states. Shortly before this judgment was to be delivered, counsel for the appellants informed us of an Opinion which had been delivered by Advocate General Wathelet in Jobcenter Berlin Neuklln v Alimanovic (Case C 67/14) [2016] 2 WLR 208, which they contended assisted their arguments. We decided to await the judgment of the Court of Justice in that case. Judgment was given on 15 September 2015, and the parties have had the opportunity to make written submissions as to its effect on these appeals. It should perhaps be added that, after we received those further submissions, the appellants counsel drew to our attention Advocate General Cruz Villalns Opinion in European Commission v United Kingdom (Case C 308/14), and suggested that we await the judgment of the Court of Justice in that case, or alternatively that we refer these two cases to that court. In my opinion, following the judgment in Alimanovic, any issue on which we have to rule in these appeals is acte clar, and accordingly we should now determine these two appeals. The factual background The facts relating to Ms Mirga Ms Mirga was born in 1988 in Poland. In 1998, she came to this country with her parents and three siblings, but they returned to Poland in 2002 after being refused asylum. Two years later, in June 2004, on Polands accession to the EU, the family returned to the UK. Sadly, her mother died four months later, and her father, who had been working, gave up his job owing to depression a few months afterwards. He received income support until late 2007, when it was decided that he should not have been receiving it, on the ground that he did not have the right of residence in the UK. Meanwhile, Ms Mirga finished her education in April 2005 and embarked on registered work within the meaning of the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations). She continued with that registered work until November 2005. In February 2006, she became pregnant and started to do unregistered work, which she continued for two months or so. In June 2006, she left home for rented accommodation, and did a months further unregistered work around June 2006. In August 2006, she claimed income support under the Income Support (General) Regulations 1987 (SI 1987/1967) (the Income Support Regulations) on the grounds of her pregnancy. Her baby son was born in October 2006. The Secretary of State for Work and Pensions refused Ms Mirgas application for income support, and his decision was upheld by the First tier Tribunal, whose decision was affirmed, albeit for different reasons, by Judge Rowland in the Upper Tribunal. The Upper Tribunal decided that the Secretary of State was entitled to refuse Ms Mirgas application because she did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from the ambit of income support by virtue of the Income Support Regulations. The Upper Tribunals decision was upheld by the Court of Appeal in a judgment given by Laws LJ, with which Tomlinson LJ and Sir David Keene agreed [2012] EWCA Civ 1952. The facts relating to Mr Samin Mr Samin was born in Iraq in 1960. After ten years military service, he successfully sought asylum in Austria in 1992, together with his wife and children, and he was accorded Austrian citizenship the following year. Sadly, he became wholly estranged from his wife and children, and he came to the UK in December 2005, since when he has lived in this country on his own. During the ten months following his entry into the UK, he had some paid employment on occasions, often part time, but he has not worked since some time in 2006, and has not been looking for work since 2007. Mr Samin is socially isolated and suffers from poor mental health, principally from clinical depression and post traumatic stress disorder. Having attempted to kill himself in the past, he remains a moderately high risk of suicide in the medium term. He also suffers from diabetes, hypertension and kidney stones, and he needs physiotherapy. After occupying temporary accommodation, Mr Samin lived in a studio flat in North London, which he had to vacate after four years in June 2010. He then applied to Westminster City Council (the Council) for housing under the homelessness provisions in Part VII of the Housing Act 1996 (the Housing Act). After making inquiries, the Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations). That decision was affirmed in the Central London County Court by His Honour Judge Mitchell, whose decision was in turn upheld by the Court of Appeal for reasons given by Hughes LJ, with which Etherton and Tomlinson LJJ agreed [2012] EWCA Civ 1468; [2012] WLR(D) 336. The legislative background The Treaty on the Functioning of the European Union Under article 18 of the Treaty on the Functioning of the European Union (TFEU), any discrimination on grounds of nationality is prohibited in so far as it is [w]ithin the scope of application of the Treaties. The importance of avoiding discrimination is emphasised by article 19 of TFEU which states that the Council may take appropriate action to combat discrimination . Article 20 of TFEU states in para 1 that every national of an EU member state shall be a citizen of the Union, and, in para 2(a), that citizens of the Union should have the right to move and reside freely within the territory of the member states, albeit that that right is to be exercised in accordance with the conditions and limits defined by the Treaties and by the measures adopted thereunder. Article 21.1 of TFEU provides as follows: Every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect. Article 45 of TFEU, which is also concerned with freedom of movement for workers, requires the abolition of any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment. The 2003 Accession Treaty In 2004, ten countries, including Poland, acceded to the EU pursuant to the Treaty on Accession 2003 (the 2003 Accession Treaty). By virtue of articles 10 and 24 of the Act of Accession forming the second part of the Treaty, existing member states, including the UK, were accorded, by way of derogation, certain transitional powers. Those powers included a right to derogate in relation to the free movement of workers within the EU, which was then governed by Regulation (EEC) No 1612/68 (the 1968 Regulation), in relation to nationals (known as A8 nationals) of eight of the ten new member states. Those powers of derogation in relation to Polish nationals were contained in paragraphs 1 14 of Part 2 of Annex 12 to the 2003 Accession Treaty. So long as these provisions were in force, they enabled a host member state to exclude Polish nationals from freedom of movement rights unless they had been working in that state for an uninterrupted period of 12 months following accession. The 2004 Directive The right of EU nationals to reside in all member states of the EU has been qualified and regulated by EU Instruments, most notably by the 1968 Regulation and by Directive 2004/38/EC of 30 April 2004 (the 2004 Directive), which made substantial amendments to the 1968 Regulation. The 2004 Directive is concerned with the right of citizens of the Union and their family members to move and reside freely within the territory of the member states. The preamble to the 2004 Directive includes the following: (10) Persons exercising their right of residence should not become an unreasonable burden on the social assistance system of the host member state during an initial period of residence. Therefore, the right of residence for Union citizens and their family members for periods in excess of three months should be subject to conditions. (16) As long as the beneficiaries of the right of residence do not become an unreasonable burden on the social assistance system of the host member state they should not be expelled. Therefore, an expulsion measure should not be the automatic consequence of recourse to the social assistance system. The host member state should examine whether it is a case of temporary difficulties and take into account the duration of residence, the personal circumstances and the amount of aid granted in order to consider whether the beneficiary has become an unreasonable burden on its social assistance system and to proceed to his expulsion. In no case should an expulsion measure be adopted against workers, self employed persons or job seekers as defined by the Court of Justice save on grounds of public policy or public security. Recital (31) emphasises that the 2004 Directive should be implemented in a non discriminatory way. Article 6 states that Union citizens shall have the right of residence on the territory of another member state for a period of up to three months without any conditions or any formalities, and that the right extends to family members. Article 7 is concerned with the Right of Residence for more than three months, and it starts as follows: 1. All Union citizens shall have the right of residence on the territory of another member state for a period of longer than three months if they: are workers or self employed persons in the host (a) member state; or (b) have sufficient resources for themselves and their family members not to become a burden on the social assistance system of the host member state during their period of residence and have comprehensive sickness insurance cover in the host member state. Para 1(c) of article 7 deals with students, and para 1(d) and para 2 deal with family members. Article 7.3 provides that a person does not lose the status of a worker or self employed person on ceasing to work in certain circumstances. Those circumstances include (a) if he or she is temporarily unable to work as the result of an illness or accident, and (b) if he or she has been employed for more than a year, is involuntarily unemployed and has registered as a job seeker. Article 8 is concerned with Administrative formalities for Union citizens, and articles 8.1 and 8.2 deal with the right of member states to require Union citizens residing for more than three months to register with the relevant authorities. Articles 8.3 and 8.4 include the following: 3. For the registration certificate to be issued, member states may only require that: Union citizens to whom point (b) of article 7(1) applies present a valid identity card or passport and provide proof that they satisfy the conditions laid down therein; 4. Member states may not lay down a fixed amount which they regard as sufficient resources but they must take into account the personal situation of the person concerned. In all cases this amount shall not be higher than the threshold below which nationals of the host member state become eligible for social assistance, or, where this criterion is not applicable, higher than the minimum social security pension paid by the host member state. Article 14.1 states that the three months right of residence under article 6 applies as long as [the citizen and his or her family] do not become an unreasonable burden on the social assistance system of the host member state. Article 14.2 provides that Union citizens and their family members have the right of residence provided for in [article 7] as long as they meet the conditions set out therein. But article 14.3 states that an expulsion measure should not be the automatic consequence of recourse to the social assistance system. Article 14.4 provides that an expulsion measure shall not be adopted against Union citizens who (a) are workers or self employed persons, or (b) entered the host state to seek employment and can provide evidence that they are continuing to seek employment and that they have a genuine chance of being engaged. Article 24.1 states that all Union citizens residing on the basis of this Directive in the territory of the host member state shall enjoy equal treatment with the nationals of that member state, albeit subject to such specific provisions as are expressly provided for in the Treaty and secondary law. Article 24.2 specifically entitles a member state to refuse social assistance during the first three months of residence, or, where appropriate, the longer period provided for in article 14(4)(b). Article 28 is concerned with Protection against expulsion, and para 1 provides that: Before taking an expulsion decision on grounds of public policy or public security, the host member state shall take account of considerations such as how long the individual concerned has resided on its territory, his/her age, state of health, family and economic situation, social and cultural integration into the host member state and the extent of his/her links with the country of origin. Articles 30 and 31 are concerned with protecting the rights that are the subject of the Directive (and the width of their ambit is emphasised by article 15.1). Article 30 deals with notification, and article 31 deals with Procedural safeguards, including access to judicial redress procedures. Domestic legislation: the EEA Regulations On 30 April 2006, the EEA Regulations came into force in the United Kingdom. They were, as the Explanatory Note explains, intended to implement the 2004 Directive. Regulation 13 of the EEA Regulations provides that all EEA nationals have the right to reside in the UK for three months. Regulation 14 provides that a qualified person is entitled to remain in the UK so long as he is so qualified. Regulation 6 of the EEA Regulations defines what is meant by qualified person. It includes a jobseeker, a worker, a self employed person, a self sufficient person, and a student. Regulation 4, which has been amended on various occasions, is concerned with definitions of most of those expressions, including worker and self sufficient person. Regulation 4(1)(a) defines worker by reference to the TFEU. Regulations 5 and 15 certain workers who [have] ceased activity have a permanent right of residence, and they include (2) those who have retired having worked in the UK for at least 12 months and resided there for at least three years, and (3) those who have stopped working as a result of permanent incapacity, having resided in the UK for at least two years. Regulation 6 extends qualified person status to people who are temporarily no longer working owing to illness or accident, or who worked but are now involuntarily unemployed and registered as jobseekers (but only for six months if they were employed for less than a year), or who have lost their jobs and are in vocational training. Regulation 4(1)(c) of the EEA Regulations provides that: self sufficient person means a person who has i) sufficient resources not to become a burden on the social assistance system of the United Kingdom during his period of residence; and ii) United Kingdom. comprehensive sickness insurance cover in the Regulation 4(2), (3) and (4) contain further provisions dealing with what constitutes sufficient resources, but only para (4) is of any relevance in these proceedings. It has been amended at least twice. Ignoring references to family members which are irrelevant in these two cases, regulation 4(4) now provides that resources are to be regarded as sufficient if (a) they exceed the maximum level which a British citizen may possess if he is to become eligible for social assistance in the UK, or (b) taking into account the personal situation of the person concerned it appears that [his] resources should be regarded as sufficient. The paragraph originally only included what is now sub para (a), and sub para (b) was added in 2011. Regulation 19 of the EEA Regulations is concerned with refusal of admission and removal, and para 3 provides that a person who has been admitted into, or acquired a right to reside in, the UK may be removed if he does not have or ceases to have a right to reside. However regulation 19(4) states that a person cannot be removed as an automatic consequence of having recourse to the social assistance system of the [UK]. Domestic legislation: the A8 Regulations Pursuant to the terms of the 2003 Accession Treaty, the European Union (Accessions) Act 2003 was enacted, which, under section 2, permitted the Secretary of State to make the A8 Regulations (which were revoked in May 2011). Regulations 2 and 5 of the A8 Regulations provided that A8 nationals would only have full access to the UK labour market if they had been in registered employment under the Worker Registration Scheme for a continuous period of 12 months. The consequence was that, so long as the A8 Regulations were in force, A8 nationals could not become qualifying persons under the EEA Regulations unless and until they had performed registered employment for a continuous period of at least 12 months. Domestic legislation: income support Entitlement to income support arises under section 124 of the Social Security Contributions and Benefits Act 1992 and the Income Support Regulations. In very summary terms, income support is available for certain people provided that they are not engaged in relevant work or receiving relevant education, and their income is below the applicable amount. The effect of regulation 21 of the Income Support Regulations, however, is that a person from abroad is to be treated as having an applicable amount of nil, and is therefore not eligible for income support. Regulation 21AA(1) (3) of the Income Support Regulations states that certain people will be treated as persons from abroad unless they are habitually resident in the UK (and certain other places, including Ireland), and have the right to be so under certain statutory provisions not germane to the present appeals. Regulation 21AA(4) provides, however, that a person is not a person from abroad if he is, inter alia, a worker (or self employed person, or is to be treated as a worker or self employed person) within the meaning of the 2004 Directive. Domestic legislation: housing assistance Part VII of the Housing Act imposes duties on local housing authorities in relation to homeless people. The duty extends, under section 193, to providing them with accommodation where they are involuntarily homeless and in priority need unless they are not eligible for assistance. Eligibility for assistance is dealt with in section 185 of the Housing Act, which provides, inter alia, that a person who is subject to immigration control is ineligible for housing assistance unless of a class prescribed by regulations, along with any other person from abroad treated as ineligible by virtue of regulations. The Allocation of Housing and Homelessness (Eligibility) (England) Regulations 2006 (SI 2006/1294) (the Eligibility Regulations) define the classes of persons subject to immigration control who are eligible for housing assistance and the classes of other persons from abroad who are ineligible, and the effect of regulations 2(2) and 6(2) is that a person from abroad is eligible if he is a worker for the purposes of the definition of a qualified person in regulation 6(1) of the EEA Regulations. The issues raised on these appeals Mr Coppel QC and Ms Rogers, on behalf of the Secretary of State, contend that, at the time that Ms Mirga applied for income support, she was ineligible for income support under the Income Support Regulations, because she was a person from abroad. This was on the basis that she could not claim to be a worker as she was an A8 national who had not done 12 months registered employment (under the A8 Regulations), and thus could not be a qualifying person for the purpose of the EEA Regulations. Even if the A8 Regulations did not apply, Mr Coppel argues that Ms Mirga would still not have been a worker, as the EEA Regulations would have required her to have worked for at least 12 months before she claimed income support. There is no question of Ms Mirga having been a jobseeker, a self employed person, or a student under the EEA Regulations. Further, it seems clear that Ms Mirga could not claim to be a self sufficient person under the EEA Regulations, as she had no significant means of support and no health insurance (but if she had had been a self sufficient person she would presumably not have needed income support anyway). With the support of the Secretary of State for Communities and Local Government, Mr Peacock contends for the Council that Mr Samin is not a worker within the EEA Regulations because he is now permanently incapable of work, and in any event he cannot claim to be a worker because he has not worked for 12 months in the UK. Accordingly, argues Mr Peacock, Mr Samin is not a qualified person under the EEA Regulations, from which it follows that he is ineligible for the purposes of the Housing Act. It is also said that Mr Samin cannot claim to be a self sufficient person within the EEA Regulations because he has no assets and no health insurance. The first argument raised by Mr Drabble QC, who appears with Ms Leventhal on behalf of Ms Mirga, is that, in the light of her right to respect for her private and family life, under article 8 of the European Convention on Human Rights, she cannot be removed from the UK, and therefore her right of residence in the UK, as accorded by article 21.1 of TFEU, cannot be limited or cut back in the way that the Income Support Regulations seek to do, namely by restricting her rights to income support because she has not achieved a continuous 12 month period in registered employment. His alternative argument is that, even if it would be permissible to refuse Ms Mirga income support on that ground, it is only possible in practice if it would be proportionate to do so, and in particular if the grant of income support to her would place an unreasonable burden on the social assistance system of the UK, and there has been no inquiry into that question. The first argument raised on behalf of Mr Samin by Mr Drabble, appearing with Mr Carter and Mr Cowan, is that the refusal of housing assistance to Mr Samin constituted unlawful discrimination in breach of article 18 of the TFEU, even though he may not have had a right of residence in the UK. The alternative argument raised on behalf of Mr Samin reflects the alternative argument in Ms Mirgas case, namely that there should have been an investigation as to whether it was proportionate to refuse Mr Samin housing assistance, in particular on the ground that it represented an unreasonable burden of the UK social assistance system. Mr Drabbles arguments were supported by Ms Demetriou QC, assisted by Mr Banner and Ms MacLeod, on behalf of The AIRE Centre, and it is right to record the courts appreciation of their pro bono work in this case, and their assistance to the court. Discussion Issue one: do the domestic Regulations infringe the appellants TFEU rights? Mr Drabbles first contention on behalf of Ms Mirga is that, as she is a worker (albeit one whose work was temporarily interrupted owing to her pregnancy), article 21.1 of TFEU accords her the right to reside freely within the EU, and therefore within the UK, and that the denial of income support to her, at a time when she needed it in order to be able to live in the UK, was an impermissible interference with that right, as she would, in practice, be forced to return to Poland. That argument can be said to reflect the fundamental importance of freedom of movement and freedom of establishment to the single market concept, as well as the significance attached in articles 18 and 19 of TFEU to the avoidance of discrimination between citizens of a member state and other EU nationals. A similar argument cannot be run in relation to Mr Samin, because it is now accepted that owing to his inability to work he cannot claim to be a worker, even in the light of the extended definition in article 7.3 of the 2004 Directive and regulation 6 of the EEA Regulations. Accordingly, Mr Drabbles first line of argument on behalf of Mr Samin is that the Councils refusal to provide Mr Samin with housing assistance under Part VII of the Housing Act constituted discrimination on grounds of nationality prohibited by article 18 of TFEU, because such assistance would have been accorded to a citizen of the UK, or a qualifying worker from another member state, who was otherwise in the same position as Mr Samin. It seems to me that these arguments face real difficulties. The right accorded by article 21.1 of TFEU, which is relied on by Ms Mirga, although fundamental and broad, is qualified by the words subject to the limitations and conditions laid down in the Treaties and in the measures adopted to give them effect. In the present case, the measures include the 2004 Directive, and presumably include the 2003 Accession Treaty, which was adopted under article 49 of the Treaty on European Union. It appears clear from the terms of paragraph 10 of the preamble that it was a significant aim of the 2004 Directive that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system. It also seems clear that any right of residence after three months can be subject to conditions. This is reflected in the terms of article 7.1, in that it limits the right of residence after three months to those who are workers, self employed, students, or with sufficient resources and health insurance not to become a burden on the social assistance system of the host member state. Indeed, it is worth noting that article 14.1 even limits the right of residence in the first three months. It further appears clear from article 24, that EU nationals right of equal treatment in host member states is subject to secondary law, and in particular that they can be refused social assistance where appropriate. Accordingly, when one turns to the 2003 Accession Treaty and the 2004 Directive, I consider that, because Ms Mirga has not done 12 months work in this country, she cannot claim to be a worker, and, because she is not a jobseeker, self employed, a student, or self sufficient, it would seem to follow that she can be validly denied a right of residence in the UK, and therefore can be excluded from social assistance. In those circumstances, it must follow that article 21.1 TFEU cannot assist her. The fact that Ms Mirga may have to cease living in the UK to seek assistance in Poland does not appear to me to assist her argument. Although the refusal of social assistance may cause her to leave the UK, there would be no question of her being expelled from this country. I find it hard to read the 2004 Directive as treating refusal of social assistance as constituting a species of constructive expulsion even if it results in the person concerned leaving the host member state. As I see it, the Directive distinguishes between the right of residence and the act of expulsion. However, quite apart from this, the Directive makes it clear that the right of residence is not to be invoked simply to enable a national of one member state to obtain social assistance in another member state. On the contrary: the right of residence is not intended to be available too easily to those who need social assistance from the host member state. Mr Samins first argument appears to me to face similar difficulties. The article 18 right which he relies on does not constitute a broad or general right not to be discriminated against. First, its ambit is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU Treaty. Secondly, the article 18 right is without prejudice to any special provisions contained [in the Treaties]. That brings one back to the argument raised on behalf of Ms Mirga. Contrary to the appellants argument, I do not consider that the decision of the Third Chamber in Pensionsversicherungsanstalt v Brey (Case C 140/12) [2014] 1 WLR 1080 provides the appellants with much assistance. However, it is unnecessary to consider that possibility, because it seems to me clear that the first point raised by each appellant must be rejected as acte clar following the recent Grand Chamber judgments in Dano and another v Jobcenter Leipzig (Case C 333/13) [2015] 1 WLR 2519 (which was published after the Court of Appeal decided these cases) and in Alimanovic (Case C 67/14) EU:C:2015:597, which, as mentioned above, was published some time after the hearing of these appeals. It is appropriate to set out in summary terms the effect of those three decisions, not least because they have relevance to the second issue raised on behalf of each appellant, as well as the first. In Brey, the applicant was a German national residing in Austria, who received a German pension and care allowance insufficient for his needs, and who was refused a compensatory supplement from the Austrian government, because he did not meet the necessary national residency requirements, which excluded those who did not have sufficient resources not to be a burden on the Austrian social security system. Shortly after that refusal, the Austrian government issued the applicant with an EEA citizen registration certificate. The question referred to the Court of Justice by the Austrian Oberster Gerichtshof was whether article 7(1)(b) of Directive 2004/38 should be interpreted as meaning that, for the purposes of that provision, the concept of social assistance covers a benefit such as the compensatory supplement (para 26). The Chamber ruled, at para 80, that the 2004 Directive precluded national legislation which automatically whatever the circumstances bars the grant of a benefit, such as the compensatory supplement to a national of another member state who is not economically active, on the grounds that, despite having been issued with a certificate of residence, he does not meet the necessary requirements for obtaining the legal right to reside since obtaining that right of residence is conditional on that national having sufficient resources not to apply for the benefit. In Dano, the applicant and her son were Romanian nationals living in Germany (where the son had been born), and she had been issued with an unlimited residence certificate. The applicant neither had worked nor was looking for work, and she and her son were refused maintenance payments. The Sozialgericht Leipzig referred a number of questions to the Court of Justice, and the Grand Chamber concluded that article 24 of the 2004 Directive and article 4 of Regulation 883/2004 (which concerns the coordination of social security systems, and includes a similar anti discrimination provision to the 2004 Directive): must be interpreted as not precluding legislation of a member state under which nationals of other member states are excluded from entitlement to certain special non contributory cash benefits within the meaning of article 70(2) of Regulation 883/2004, although those benefits are granted to nationals of the host member state who are in the same situation, in so far as those nationals of other member states do not have a right of residence under Directive 2004/38 in the host member state. (para 84) In Alimanovic, Mrs Alimanovic and her three children were Swedish nationals who had gone to Germany and had been issued with a certificate of right to permanent residence. She and her children were refused subsistence and social allowances, and when they challenged this, the Bundessozialgericht referred three questions to the Court of Justice. The Grand Chamber ruled, at para 63, that article 24 of the 2004 Directive: must be interpreted as not precluding legislation of a member state under which nationals of other member states who are in a situation such as that referred to in article 14(4)(b) of that Directive are excluded from entitlement to certain special non contributory cash benefits within the meaning of article 70(2) of Regulation No 883/2004, which also constitute social assistance within the meaning of article 24(2) of Directive 2004/38, although those benefits are granted to nationals of the member state concerned who are in the same situation. In para 60 of Dano, the Grand Chamber said that the right granted by article 18 of TFEU was subject to the restrictions I have mentioned in paras 43 and 44 above, and the court referred in support to the decision in Brey, and in particular paras 46ff. In para 46 of Brey, the Chamber had referred to the right of nationals of one member state to reside in the territory of another members state without being employed or self employed as being not unconditional. It is also worth noting that the Grand Chamber also referred to article 20 of TFEU and article 24 of the 2004 Directive in terms which made it clear that the rights they grant should, in the instant context, be treated similarly to the rights granted by article 18. In para 61 of Dano, the Grand Chamber described the right under article 18 of the TFEU as having been given more specific expression in article 24 of [the 2004 Directive]. In para 63, citing Brey, para 61, the court pointed out that if someone has recourse to assistance schemes established by the public authorities, he may during his period of residence, become a burden on the public finances of the host member state which could have consequences for the overall level of assistance which may be granted by that state. In para 69, it was made clear that a Union citizen can claim equal treatment with nationals of the host member state only if his residence in the territory of the host member state complies with the conditions of [the 2004 Directive]. In para 73, the court summarised the effect of article 7(1) of the 2004 Directive, and said in the following paragraph that, if persons who do not have a right of residence under [the 2004 Directive] may claim entitlement to social benefits under the same conditions as those applicable to nationals [that] would run counter to an objective of the Directive. In para 76, the purpose of article 7(1)(b) of the 2004 Directive was described as being to prevent economically inactive Union citizens from using the host members states welfare system to fund their means of subsistence. Finally, in para 80 the Grand Chamber said that a persons financial situation should be examined specifically in order to determine whether he meets the condition of having sufficient resources to qualify under article 7.1(b). As already mentioned, the authority of the decision in Dano has been reinforced by the decision in Alimanovic, where, in paras 44 and 50 respectively, the Grand Chamber specifically referred to what was said in paras 63 and 69 of the judgment in Dano with approval. More broadly, as explained more fully below, the Grand Chamber in Alimanovic confirmed that a Union citizen can claim equal treatment with nationals of a country, at least in relation to social assistance, only if he or she can satisfy the conditions for lawful residence in that country. Thus, it was confirmed that article 24.2 of the 2004 Directive was, in effect, a valid exception to the principle of non discrimination. Dano and Alimanovic clearly demonstrate that the jurisprudence of the Grand Chamber of the Court of Justice is inconsistent with Mr Drabbles first argument on behalf of Ms Mirga and Mr Samin, at least in so far as his argument is focussed on the 2004 Directive. It is fair to say that those cases were not concerned with the 2003 Accession Treaty. However, the House of Lords concluded in Zalewska v Department for Social Development [2008] 1 WLR 2602 that the A8 Regulations, which reflect the provisions of the 2003 Accession Treaty, were consistent with EU law, and nothing I have heard or read in connection with this appeal casts doubt on that conclusion. In particular, it appears to be consistent with the reasoning in Brey, Dano and Alimanovic. The only possible remaining issue in relation to this first set of arguments could be whether (i) in the case of Ms Mirga, the provisions of the Income Support Regulations, when read together with the A8 Regulations and the EEA Regulations, and (ii) in the case of Mr Samin, the provisions of the Eligibility Regulations, when read together with the EEA Regulations, complied with the requirements of the 2003 Accession Treaty and the 2004 Directive. As I understood his contentions, Mr Drabble did not suggest any discrepancy in the domestic regulations unsurprisingly, as they were clearly intended to implement the EU instruments. Accordingly, in my judgment, following the clear guidance from the Grand Chamber in Dano and Alimanovic, the first arguments raised on behalf of Ms Mirga and Mr Samin cannot be maintained. That leaves their alternative arguments raised in the two appeals, based on proportionality. Issue two: the appellants argument based on lack of proportionality Mr Drabbles second argument in both appeals is that the determination of the authorities and the courts and tribunals below in the case of both Ms Mirga and Mr Samin was flawed because no consideration was given to the proportionality of refusing each of them social assistance bearing in mind all the circumstances of their respective cases, and in particular that the authority or tribunal concerned failed to address the burden it would place on the system if they were to be accorded the social assistance which they sought. In that connection, Mr Drabble relied on the Court of Justices decisions in St Prix v Secretary of State for Work and Pensions (Case C 507/12) [2014] PTSR 1448, Baumbast v Secretary of State for the Home Department (Case C 413/99) [2003] ICR 1347 and Brey. St Prix was concerned with the question whether a person ceased automatically to be a worker for the purpose of the 2004 Directive, and therefore the EEA Regulations, if she temporarily ceased work owing to the fact that she was pregnant. It provides no assistance to the appellants arguments as advanced by Mr Drabble, except to emphasise the purposive approach to be adopted to the interpretation of the 2004 Directive. The effect of the decision of Baumbast is that the fact that an applicant may fall short of the strict requirements of having self sufficiency status under what are now the 2004 Directive and the EEA Regulations cannot always justify the host member state automatically rejecting his or her right to reside on the ground that the requirements for that status are not wholly complied with. In Baumbast the court was concerned, inter alia, with the issue whether an applicant could exercise the right to reside in the UK in circumstances where he was resting his case on the ground that he was a self sufficient person. It is clear from paras 88 and 89 of the judgment that the applicant had sufficient resources to be self sufficient in practice, and that he had medical insurance. His only possible problem was that the insurance may have fallen short of being comprehensive in one respect, namely that it was not clear whether it covered emergency treatment. The court held that, on the assumption that the insurance fell short in this connection, it would nonetheless be disproportionate to deprive the applicant of his right to reside. In para 92, the court pointed out that there were strong factors in the applicants favour, namely that he had sufficient resources, that he had worked and resided in the UK for several years, that his family had also resided in the UK for several years, that he and his family had never received any social assistance, and that he and his family had comprehensive medical insurance in Germany. In those circumstances, the court said in para 93 that it would be a disproportionate interference with the exercise of the applicants right of residence conferred by what is now article 21.1 of TFEU to refuse to let him stay in the UK because of a small shortfall in the comprehensiveness of his medical insurance. I do not consider that the appellants derive any assistance from Baumbast. Mr Baumbasts case was predicated on the fact that he did not need any assistance from the state. Even if the decision is relied on by analogy, it is of no help to the appellants. The thrust of the courts reasoning in that case was that, where an applicants failure to meet the requirements of being a self sufficient person was very slight, his links with the host member state were particularly strong, and his claim was particularly meritorious, it would be disproportionate to reject his claim to enjoy the right of residence in that host state. Even though the applicant had a very strong case in the sense that he fell short of the self sufficiency requirements in one very small respect, the court decided that he could rely on disproportionality only after considering the position in some detail. Mr Drabbles argument appears to derive greater assistance from some of the reasoning of the Third Chamber in Brey, where the Third Chamber held that the complementary supplement was social assistance within the meaning of the 2004 Directive and also that it was open to member states to provide such assistance to economically inactive citizens of other member states in any circumstances. Crucially, argues Mr Drabble, the Austrian governments refusal of the complementary supplement to the applicant was held to be unlawful. The central reasoning of the Third Chamber in Brey for present purposes is in paras 75 78. In para 75, having considered a number of points, the court concluded that the mere fact that a national of a member state receives social assistance is not sufficient to show that he constitutes an unreasonable burden on the social assistance system of the host member state. In the following paragraph, the court stated that the fact that a non national has applied for the benefit in issue in that case was not sufficient to preclude [him] from receiving it, regardless of the duration of residence, the amount of the benefit, and the period for which it is available. In para 77, the court made the point that domestic legislation, such as the Austrian law in that case, could not provide that a national of another member state, who was not a worker, self employed or a student, should be automatically barred from receiving a social benefit. In the next paragraph, the court stated that the competent authorities should be able when examining the application of a Union citizen who is not economically active and is in Mr Breys position to take into account certain factors. They included the amount and regularity of [the applicants] income, the fact that he had received a certificate of residence, the period for which he would receive the benefit, and the extent of the burden [it] would place on the social security system (which as Advocate General Wathelet said in Dano at paras 111 112 of his Opinion, must be a collective assessment, which was confirmed by the Grand Chamber in para 62 of Alimanovic). These factors were, the court said in para 78 of the judgment in Brey, for the domestic court to assess. Brey was an unusual case, because the applicant had been issued with a certificate of residence by the Austrian government, a factor which appears to have played a significant part in the courts thinking, as it was recited in the re formulated question (in para 32) and it is referred to expressly and impliedly in the crucial para 78 of the judgment, and indeed in the final ruling of the Third Chamber (see para 49 above). However, it is not necessary to address that point further, as it appears to me that the reasoning in Brey cannot assist the appellants on the instant appeals, in the light of the subsequent reasoning of the Grand Chamber in the subsequent decisions in Dano and Alimanovic. The observations of the Grand Chamber in Dano discussed in para 53 above are in point. In Alimanovic, para 59, the Grand Chamber specifically mentioned that the court in Brey had stated that a member state [was required] to take account of the individual situation of the person concerned before it finds that the residence of that person is placing an unreasonable burden on its social assistance system. However, the Grand Chamber went on to say that no such individual assessment is necessary in circumstances such as those in issue in this case. In para 60, the Grand Chamber explained that: Directive 2004/38, establishing a gradual system as regards the retention of the status of worker which seeks to safeguard the right of residence and access to social assistance, itself takes into consideration various factors characterising the individual situation of each applicant for social assistance and, in particular, the duration of the exercise of any economic activity. The court then went on to explain that article 7 of the 2004 Directive, when read with other provisions, guarantees a significant level of legal certainty and transparency in the context of the award of social assistance by way of basic provision, while complying with the principle of proportionality. (In this connection, the Grand Chamber took a different view from that taken by Advocate General Wathelet in paras 105 111 of his Opinion, upon which Mr Drabble had understandably relied.) In my view, this makes good sense: it seems unrealistic to require an individual examination of each particular case. I note that this was a proposition which the Second Chamber rejected, albeit in a somewhat different (and probably less striking) context, on the ground that the management of the regime concerned must remain technically and economically viable see Dansk Jurist og konomforbund v Indenrigs og Sundshedsministeriet (Case C 546/11) [2014] ICR 1, para 70, which was cited with approval in the present context by Advocate General Wahl in Dano at para 132 of his Opinion. Where a national of another member state is not a worker, self employed or a student, and has no, or very limited, means of support and no medical insurance (as is sadly the position of Ms Mirga and Mr Samin), it would severely undermine the whole thrust and purpose of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked. Even if there is a category of exceptional cases where proportionality could come into play, I do not consider that either Ms Mirga or Mr Samin could possibly satisfy it. They were in a wholly different position from Mr Baumbast: he was not seeking social assistance, he fell short of the self sufficiency criteria to a very small extent indeed, and he had worked in this country for many years. By contrast Ms Mirga and Mr Samin were seeking social assistance, neither of them had any significant means of support or any medical insurance, and neither had worked for sustained periods in this country. The whole point of their appeals was to enable them to receive social assistance, and at least the main point of the self sufficiency test is to assist applicants who would be very unlikely to need social assistance. Whatever sympathy one may naturally feel for Ms Mirga and Mr Samin, their respective applications for income support and housing assistance represent precisely what was said by the Grand Chamber in Dano, para 75 (supported by its later reasoning in Alimanovic) to be the aim of the 2004 Directive to stop, namely economically inactive Union citizens using the host member states welfare system to fund their means of subsistence. Conclusion I would dismiss both these appeals.

These two appeals concern the claims of two EU nationals to claim benefits in the United Kingdom. Ms Mirga was born in Poland and, having previously lived in the UK with her parents for four years, moved back here in 2004. The benefit rights of people from Poland in the UK were mostly governed by the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the A8 Regulations) which were enacted to give effect to the Treaty on Accession 2003 (the Accession Treaty) under which Poland (and seven other countries) joined the EU. After finishing her education in April 2005, she carried out registered work within the meaning of the A8 Regulations for seven months. She then became pregnant and did around three months of unregistered work. Ms Mirga claimed income support in August 2006 under the Income Support (General) Regulations (SI 1987/1967) (the Income Support Regulations) on the grounds of pregnancy. The Secretary of State refused Ms Mirgas application for income support and his decision was upheld by the First tier Tribunal. The Upper Tribunal and then the Court of Appeal affirmed that decision, on the ground that Ms Mirga did not have a right of residence in the UK under the A8 Regulations and therefore was excluded from income support by the Income Support Regulations. Mr Samin was born in Iraq in 1960. In 1992, he and his family were granted asylum in Austria in 1992 and he was granted Austrian citizenship the following year. He then became estranged from his wife and children and came to the UK in December 2005, since when he has lived here alone. Where the A8 Regulations do not apply, the benefit rights of EU nationals in the UK are mostly governed by the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the EEA Regulations), issued pursuant to EU Directive 2004/38/EC (the 2004 Directive). Mr Samin is socially isolated and suffers from poor mental and physical health. Mr Samin occupied private accommodation until 2010, when he applied to Westminster City Council (the Council) for housing under the homelessness provisions of the Housing Act 1996 (the Housing Act). The Council decided that he was a person from abroad who is not eligible for housing assistance within the meaning of section 185(1) of the Housing Act, because he did not have the right of residence in the UK under the EEA Regulations. That decision was affirmed in the Central London County Court, whose decision was in turn upheld by the Court of Appeal. The Supreme Court unanimously dismisses both Ms Mirgas and Mr Samins appeals for reasons set out in a judgment given by Lord Neuberger (with which Lady Hale, Lord Kerr, Lord Clarke and Lord Reed agree). Submissions of the parties The Secretary of State contended that the Court of Appeals decisions were right. At the time she applied for it, Ms Mirga was ineligible for income support because she was a person from abroad, and could not claim to be a worker as she was an A8 national who had not done 12 months employment and thus could not qualify under the A8 Regulations. Even if the A8 Regulations did not apply, the Secretary of State argued, Ms Mirga would not have been a worker under the EEA Regulations as she had not worked for 12 months before claiming income support [36]. In respect of Mr Samin, the Council contended that he was not a worker within the EEA Regulations because he is now incapable of work and had not worked for 12 months in the UK [37]. In response to these contentions, two arguments were raised on behalf of Ms Mirga and Mr Samin. The first argument rested on the Treaty on the Functioning of the European Union (the TFEU). Ms Mirga contended that, given her right to respect for family and private life under article 8 of the European Convention on Human Rights, and given that she had been a worker, albeit not for the requisite period under the A8 Regulations (or the EEA Regulations), she could not be removed from the UK; accordingly, she contended, her right of residence under article 21.1 of TFEU could not lawfully be cut back by restricting her right to income support as the Income Support Regulations purport to do [38, 41]. Mr Samin argued that refusal of housing assistance to him constituted unlawful discrimination contrary to article 18.1 of the TFEU because such assistance would have been accorded to a citizen of the UK or a qualifying member from another member state who was in the same position as Mr Samin [39, 42]. Ms Mirgas alternative argument was that, even if the Income Support Regulations could have the effect for which the Secretary of State contended, it would only be so if it could be shown that providing her with income support would be disproportionate i.e. if it would place an unreasonable burden on the UK social assistance system, and there has been no inquiry into that question [38, 58]. To much the same effect, Mr Samins alternative argument was that the refusal of housing allowance to him could only be justified if it could be shown that the grant of such an allowance would be disproportionate and there had been no inquiry into that question [58]. The first issue: do the domestic Regulations infringe the appellants TFEU rights? The right accorded to Ms Mirga by article 21.1 of TFEU is qualified by the words subject to the limitations and conditions laid down in the Treaties and by the measures adopted to give them effect. In the present case, the measures include the Accession Treaty and the 2004 Directive, and hence the A8 Regulations and the EEA Regulations respectively [43]. A significant aim of these measures was to ensure that EU nationals from one member state should not be able to exercise their rights of residence in another member state so as to become an unreasonable burden on the social assistance system. Further, any right of residence after three months can be subject to conditions, and EU nationals can be refused social assistance where appropriate [44]. Whether the Accession Treaty or the 2004 Directive applied, Ms Mirga has not done 12 months work in the UK, and therefore cannot claim to be a worker, and she is not a jobseeker, self employed, a student or self sufficient. Therefore she can be validly denied a right of residence in the UK and can be excluded from social assistance. Article 21.1 of TFEU therefore cannot assist her [45]. The article 18 right claimed by Mr Samin is limited to the scope of the Treaties, which means that it only comes into play where there is discrimination in connection with a right in the TFEU or another EU treaty. Further, the right is without prejudice to any special provisions contained in the Treaties. Therefore, Mr Samins argument fails for the same reasons that Ms Mirgas does [47]. Examination of recent judgments of the Court of Justice of the European Union (CJEU), especially Dano v Jobcenter Leipzig [2015] All ER (EC) 1 and Case C 67/14 Jobcenter Berlin Neukolin v Alimanovic clearly support this conclusion. [48 57] The second issue: the arguments based on lack of proportionality The argument that the determinations of the courts and tribunals below in relation to Ms Mirgas claim and Mr Samins claim were flawed because no consideration was given to the proportionality of refusing each of them social assistance is rejected. The judgments of the CJEU relied on by the appellants do not support the argument [58 66]. On the other hand, the judgment and reasoning in Dano, supported by the judgment in Alimanovic undermine the argument [66, 67, 71]. It is unrealistic to require an individual examination of each particular case, as is recognised by the jurisprudence from the CJEU [68]. Where a national of another member state is not a worker, self employed or a student and had no, or very limited, means of support and no medical insurance, it would undermine the whole thrust of the 2004 Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances [69]. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right or residence or the right against discrimination was invoked [69]. Even if there is a category of exceptional cases where proportionality would come into play, Mr Samin and Ms Mirga do not fall into it [70].

8k-16k

This appeal concerns the Hague Convention on the Civil Aspects of International Child Abduction (25 October 1980) (the Abduction Convention). It raises general questions relating to: the place which the habitual residence of the child occupies in the (1) scheme of that Convention, and (2) whether and when a wrongful retention of a child may occur if the travelling parent originally left the home State temporarily with the consent of the left behind parent or under court permission, and the agreed or stipulated time for return has not yet arrived. In addition, the facts of the present case raise particular questions whether the trial judges conclusions were properly open to him upon: (a) the habitual residence of the children in the case; and (b) whether a wrongful retention in fact occurred, and if so when. The 1980 Hague Abduction Convention The Abduction Convention is in force for some 97 States. Its preamble records the desire of those States: to protect children internationally from the harmful effects of their wrongful removal or retention and to establish procedures to ensure their prompt return to the State of their habitual residence Article 1 states the objects of the Convention as follows: to secure the prompt return of children wrongfully (a) removed to or retained in any Contracting State; and (b) to ensure that rights of custody and of access under the law of one Contracting State are effectively respected in the other Contracting States. The general scheme of the Convention is to enable a left behind parent to make this application in the State to which a child has been taken, seeking return of the child. States are required to set up Central Authorities to transmit and receive such applications. Where the removal from the home State, or the retention in the destination State is wrongful, the courts of the recipient State are required by article 12 to order the return of the child forthwith. Apart from a saving provision in article 20 which permits refusal to return where such would amount to a breach of the requested States fundamental principles of human rights, that obligation to return is subject to very limited exceptions which, if present, enable (but do not require) return not to be ordered. Those exceptions are found in article 13 (rights of custody not being exercised; consent or acquiescence of the left behind parent; grave risk that return would expose the child to physical or psychological harm or would place him/her in an intolerable situation; childs objections), and in article 12 (child has been in the recipient State for one year from the wrongful removal or retention and is now settled there). Where prompt notice of wrongful removal or retention is received, the recipient State is required by article 16 to abstain from any decision on the merits of rights of custody, unless it is determined that return is not to be ordered. Moreover, States are required to act fast on any request. By article 11 an initial period of six weeks is stipulated, and the applicant or his Central Authority are entitled to an explanation from the recipient State if that period is exceeded. Thus the return is summary and its object is to enable merits decisions as to the childs future to be made in the correct State, rather than in the State to which the child has been wrongfully taken, or in which he/she has been wrongfully retained. The general purposes and scheme of the Convention are expanded upon in an explanatory report by Professor Elisa Prez Vera on the work of the drafting conference, which report accompanied the original framing of the Convention; it is accordingly an aid to construction recognised in international law and in particular under article 32 of the Vienna Convention on the Law of Treaties (1969). In England and Wales the Convention is given domestic effect by the Child Abduction and Custody Act 1985, section 1(2). Four key concepts underlie the Convention: wrongful removal, wrongful retention, rights of custody and return. The principal provisions which require attention in the present case, apart from the preamble and article 1, set out above, are articles 3, 4, 5, 12 and 16. So far as relevant, they say: Article 3 The removal or the retention of a child is to be considered wrongful where (a) it is in breach of rights of custody attributed to a person, an institution or any other body, either jointly or alone, under the law of the State in which the child was habitually resident immediately before the removal or retention; and (b) at the time of removal or retention those rights were actually exercised, either jointly or alone, or would have been so exercised but for the removal or retention. Article 4 The Convention shall apply to any child who was habitually resident in a Contracting State immediately before any breach of custody or access rights. The Convention shall cease to apply when the child attains the age of 16 years. Article 5 For the purposes of this Convention [rights of access] (a) rights of custody shall include rights relating to the care of the person of the child and, in particular, the right to determine the child's place of residence; (b) Article 12 Where a child has been wrongfully removed or retained in terms of article 3 and, at the date of the commencement of the proceedings before the judicial or administrative authority of the Contracting State where the child is, a period of less than one year has elapsed from the date of the wrongful removal or retention, the authority concerned shall order the return of the child forthwith. The judicial or administrative authority, even where the proceedings have been commenced after the expiration of the period of one year referred to in the preceding paragraph, shall also order the return of the child, unless it is demonstrated that the child is now settled in its new environment. Article 16 After receiving notice of a wrongful removal or retention of a child in the sense of article 3, the judicial or administrative authorities of the Contracting State to which the child has been removed or in which it has been retained shall not decide on the merits of rights of custody until it has been determined that the child is not to be returned under this Convention or unless an application under this Convention is not lodged within a reasonable time following receipt of the notice. The facts The mother, although born in Canada, was brought up in England and is originally of British nationality. The father is Australian. Mother went to live in Australia in 2008. There she met, and later married, the father. She took Australian citizenship in 2014 and so now has dual British/Australian nationality. Two children were born to them in 2012 and 2014. By the end of 2014 the marriage was in difficulties. Mother was on maternity leave from her job at the time. She told Father that she wanted to make a trip to England with the children before going back to work. Although initially reluctant, he agreed to an eight week visit. Mother and the children came to England on 4 May 2015 with return tickets then scheduled for 24 June. They went to stay with the maternal grandmother, where they have since remained. Discussions between Mother and Father then resulted in Father agreeing to an extension of the eight week visit. Initially, Father agreed to a four week extension. But then, on 28 June 2015 he sent Mother an email which said: For the happiness of yourself & the children & for moving on with our lives I am in agreement that u n the children stay in the UK for a year. That email left open whether the year ran from its date or from Mothers first arrival six or seven weeks earlier. The difference does not affect the outcome of the present dispute, but it is relevant that Father raised the question in emails to Mother whether she intended to return in May or June 2016. She did not answer the question. On the basis of the extension she gave notice to her Australian employer and looked for work in England. In September 2015 she enrolled the older child at a local pre school. The children had entered England on six month visitor visas, so steps needed to be taken to regularise the longer stay now contemplated. What Mother then did loomed large at the hearing before the judge. Without telling Father she applied on 2 November 2015 for British citizenship for the children. She engaged solicitors to make the application. Those solicitors wrote on her behalf to the United Kingdom immigration authorities on 4 November 2015. In the course of a long letter they asserted that the marriage had irretrievably broken down, that Mother had been the object of repeated domestic abuse which had, moreover affected the elder child adversely, that she had been effectively forced not to return to Australia in order to safeguard herself and the children and that the children could not return to Australia because there was nowhere safe for them to go. The letter added: It cannot be in doubt that the childrens centre of life is, and will be, in the UK where the children are registered as requested. Meanwhile in continuing correspondence between the parents, Father pressed Mother on her expected date of return. On 11 February 2016 she wrote saying that she did not know what her plans were but Short term I will not be returning in May. She added I will not base my return to Australia at your demand. Later, Father referred her to the Abduction Convention and instructed solicitors who wrote formally to ask Mother when she planned to return. She replied in June 2016: Thank you for allowing me the time to seek professional advice I can confirm that I intend to remain in the UK for the short term. In due course both parents gave oral evidence at the hearing before the judge of Fathers application under the Abduction Convention. By then it was accepted that Mother did not propose to return. The issue of when she had so decided was much in contention. The judges conclusions on the topic are considered below: [2016] EWHC 3535 (Fam). But Mothers own case was that by April 2016 she had felt that we wouldnt be going back. That meant that on any view there had been a decision not to return before the expiry of the agreed year of stay in England. That gives rise to the second general question in this case, namely: whether and when such a decision can make the retention in the destination country wrongful for the purposes of the Abduction Convention before the expiry of any agreed or sanctioned term of residence there. The judge also had to make findings as to the place of the childrens habitual residence. The details of his conclusions are set out below, but he found that they were habitually resident in England and Wales by at the latest the end of June 2016, which was the last possible date for the expiry of the agreed year of stay. He added that in his view it was eminently arguable that they had acquired habitual residence significantly before that date. Those findings give rise to the first general question in this case, namely: what is the effect on an application under the Abduction Convention if the child has become habitually resident in the destination (requested) State before the act relied on as a wrongful removal or retention occurs. The significance of the two general questions In the simple paradigm case of wrongful removal, one parent will have taken the child from the State where s/he is habitually resident to a destination State. Similarly, in the simple paradigm case of wrongful retention, one parent will have travelled with the child from the State of habitual residence to the destination State, for example for an agreed fortnights holiday (and thus without the removal being wrongful), but will then wrongfully have refused to return. In each of those paradigm cases, the child will have remained habitually resident in the home State. An application under the Abduction Convention will be made in the destination (or requested) State for the return of the child to the State of habitual residence. The return will be a summary one, without investigation of the merits of any dispute between the parents as to custody, access or any other issue relating to the upbringing of the child (article 16). Such merits decisions are for the courts of the State of the childs habitual residence. In some cases, however, it is possible that by the time of the act relied upon as a wrongful removal or retention, the child may have acquired habitual residence in the destination State. It is perhaps improbable in the case of removal, but it is not in the case of retention. It may particularly happen if the stay in the destination State is more than just a holiday and lasts long enough for the child to become integrated into the destination State. It is the more likely to happen if the travelling parent determines, however improperly, to stay, and takes steps to integrate the child in the destination State. Even in the case of wrongful removal it may be possible to imagine such a situation if, for example, there had been successive periods of residence in the destination State, followed by a removal from the State of origin which infringed the rights of custody of the left behind parent. In England and Wales at least, this possibility did not in practice arise in the past, since it was regarded as axiomatic that one parent could not by unilateral action alter the habitual residence of the child. This proposition dated from a dictum of Lord Donaldson MR in In re J (A Minor) (Abduction: Custody Rights) [1990] 2 AC 562, 572, and the decision of Wall J in In re S (Minors) (Child Abduction: Wrongful Retention) [1994] Fam 70, which was approved by the Court of Appeal in In re M (Abduction: Habitual Residence) [1996] 1 FLR 887, 892, and, as Baroness Hale explained in A v A (Children: Habitual Residence) [2014] AC 1 at para 39, it was thereafter taken for granted. Such a proposition is, however, not generally adopted in other countries, including the United States, sits uneasily with the equally axiomatic principle that habitual residence is a question of fact, not law, and is difficult to accommodate within the European approach which requires an examination of integration, as exemplified in Proceedings brought by A (Case C 523/07) [2010] Fam 42 and Mercredi v Chaffe (Case C 497/10PPU) [2012] Fam 22, and which is binding on this country via Council Regulation (EC) No 2201/2003 (Brussels II Revised): see the analysis of Baroness Hale in A v A. It was recognised in In re H (Children) [2015] 1 WLR 863 that such a rule could not survive. If the habitual residence of the child may have changed to the destination State by the time of the wrongful act of removal or retention relied upon, then it becomes necessary to know whether the summary procedure of the Abduction Convention remains available in such a case or does not. Hence the first general question. If the answer is that it is not available, because the Abduction Convention pre supposes an application made in a destination State which is not the State of habitual residence, then the second general question becomes of importance. It becomes important because deliberate acts aimed at integrating the child in the destination State may well be undertaken by the travelling parent once he has decided not to honour his obligation to return to the State of origin. It will then matter whether such acts, or other manifestations of his decision, can themselves amount to wrongful retention. If they can, then wrongful retention may occur before any change of habitual residence has been achieved and whilst the child is still habitually resident in the State of origin. If they cannot, and wrongful retention cannot occur until the day of agreed return arrives, it may be too late for any application under the Abduction Convention, because the same acts which derive from and accompany the decision not to return may themselves have resulted in the child becoming habitually resident in the destination State. The first general question: habitual residence The first question is accordingly this: if by the time of the act relied on as wrongful removal or retention the child is habitually resident in the State where the application for return is made, is summary return under the Abduction Convention still available or not? This question did not arise in either of the courts below, where everyone proceeded on the assumption that the answer was no. It arose in the course of argument in this court, and we have had the benefit not only of some immediate oral submissions, but of considered post hearing written submissions from both parties and from the International Centre for Family Law, Policy and Practice as intervener. The argument that summary return under the Abduction Convention remains available runs as follows: (a) there is no express statement in the Convention that the remedy of summary return is available only where at the time of the act relied on as wrongful the child either remains habitually resident in the State of origin or is not habitually resident in the requested State; (b) on the contrary, article 3 refers to habitual residence only in order to identify the proper law that is to say to identify the law which determines whether a given act is wrongful (because it is in breach of rights of custody) or not; (c) therefore, if the child starts by being habitually resident in State A, but has by the time of the act relied on as wrongful become habitually resident in State B, all that article 3 requires is that you look to the law of State B to decide whether the act was wrongful or not; that is so whether State B is the requested State, or some intermediate State where the child has become habitually resident before arriving in the requested State; (d) once it has been decided that the act constituted either wrongful removal or wrongful retention, the Convention takes the court to article 12, which requires an order for return, subject to the limited exceptions contained in that article and article 13; (e) moreover, it is noticeable that article 12, in providing for an order for return, does not specify that return must be to the state of the childs habitual residence; it could be to any State; this reinforces the conclusion that habitual residence does not govern the place where application for return may be made, but is only referred to in the Convention in order to provide which law is to determine wrongfulness. Accordingly, it is said, on facts such as those of the present case, if the childs habitual residence is in England by the time of the act relied on as wrongful retention, that simply means that it becomes English law which decides whether the retention was wrongful. If it is decided that it is wrongful, there can still be a return to Australia. This may be a possible construction if one has regard simply to the wording of articles 3 and 12. It is, however, not a persuasive construction if one takes into account the general scheme of the Convention. Nor is it the way that the Convention has been operated over the nearly 40 years of its life. Nor is this construction consistent with the way in which the Convention has been treated by subsequent multi lateral instruments in the general field of the conflict of laws in relation to disputes about the upbringing of children. By the time of the Abduction Convention, habitual residence was already established as the principal internationally recognised basis for according jurisdiction relating to the upbringing of children. At any rate by the time of the 1961 Hague Convention on the Protection of Infants, habitual residence was, together with in some respects the law of the childs nationality, the principal basis for jurisdiction (see article 1). By the time of the Abduction Convention, Professor Prez Veras report was saying (in para 19) that the Convention: rests implicitly on the principle that any debate on the merits of the question, ie on custody rights, should take place before the competent authorities in the State where the child had its habitual residence prior to its removal (See also para 66 which repeats the point.) Since then the principle has become even more firmly entrenched. The 1996 Hague Convention on Jurisdiction, Applicable Law, Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children (the 1996 Convention) accords jurisdiction, by article 5, to the State for the time being of habitual residence, subject only to few qualifications. So, for states members of the European Union (EU), does Regulation 2201/2003 (Brussels II Revised) by article 8. The entire scheme of the Abduction Convention is to provide a summary remedy which negates the pre emptive force of wrongful removal or retention. The aim was also to defeat forum shopping. This is made clear by Professor Prez Veras report, especially at paras 14 15. 14. Now, even if the [left behind parent] acts quickly, that is to say manages to avoid the consolidation through lapse of time of the situation brought about by the removal of the child, the abductor will hold the advantage, since it is he who has chosen the forum in which the case is to be decided, a forum which, in principle, he regards as more favourable to his own claims. 15. To conclude, it can firmly be stated that the problem with which the Convention deals together with all the drama implicit in the fact that it is concerned with the protection of children in international relations derives all of its legal importance from the possibility of individuals establishing legal and jurisdictional links which are more or less artificial. In fact, resorting to this expedient, an individual can change the applicable law and obtain a judicial decision favourable to him. Admittedly, such a decision, especially one coexisting with others to the opposite effect issued by the other forum, will enjoy only a limited geographical validity, but in any event it bears a legal title sufficient to legalize a factual situation which none of the legal systems involved wished to see brought about. With that aim in mind, the framers of the Convention deliberately abjured a treaty which provided for recognition or enforcement of the decisions of the State of habitual residence. Paragraph 36 of the report makes this clear: 36. Secondly, the Convention is certainly not a treaty on the recognition or enforcement of decisions on custody. This option, which gave rise to lengthy debates during the first meeting of the Special Commission, was deliberately rejected. Due to the substantive consequences which flow from the recognition of a foreign judgment, such a treaty is ordinarily hedged around by guarantees and exceptions which can prolong the proceedings. Now, where the removal of a child is concerned, the time factor is of decisive importance . Hence the alternative scheme adopted, for mandatory summary return. Hence also the critical rule in article 16 that the courts of the requested State are to abstain from exercising any jurisdiction which they may have (for example based upon the presence of the child) to make a merits decision. This underlying rationale of the scheme of the Abduction Convention was recognised by this court in In re E (Children) (Abduction: Custody Appeal) [2011] UKSC 27; [2012] 1 AC 144. Baroness Hale and Lord Wilson observed at para 8: The first object of the Convention is to deter either parent (or indeed anyone else) from taking the law into their own hands and pre empting the result of any dispute between them about the future upbringing of their children. If an abduction does take place, the next object is to restore the children as soon as possible to their home country, so that any dispute can be determined there. The left behind parent should not be put to the trouble and expense of coming to the requested state in order for factual disputes to be resolved there. The abducting parent should not gain an unfair advantage by having that dispute determined in the place to which she has come. The whole point of the scheme adopted was to leave the merits to be decided by the courts of the place of the childs habitual residence. The preamble makes this clear in almost the first words of the Convention. If, however, the child has by the time of the act relied on as wrongful become habitually resident in the requested State, then that State will be the appropriate place for the merits of any custody dispute to be resolved. If the requested State is the habitual residence of the child, there can be no place for a summary return to somewhere else, without a merits based decision, still less for such to be mandatory. That would be so whether or not the removal or retention was, judged by the law of the requested State, as the State of habitual residence, wrongful, for even if it were, it would remain open to either party to ask the courts of that State to review the future plans for the upbringing of the child. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the 1996 Convention and Brussels II Revised. A large number of nations are party to these two multinational instruments, but not nearly so many as are party to the Abduction Convention. These two instruments are concerned, unlike the Abduction Convention, with recognition and enforcement. But they are scrupulous to ensure that wherever possible they are consistent with the Abduction Convention, whose scheme they very plainly seek to preserve. The 1996 Convention adopts, by article 7(2) a definition of wrongful removal and retention in the same words as article 3 of the Abduction Convention. Substantively, article 7(1) provides for cases of wrongful removal and retention a limited exception to the ordinary rule in article 5 that jurisdiction moves with the habitual residence of the child. In effect, the State of habitual residence immediately before the wrongful removal or retention keeps jurisdiction until not only habitual residence has shifted but also there has been an opportunity for the summary return provided for by the Abduction Convention. The effect, plainly intended, is to preserve the regime of the Abduction Convention, and in particular the mandatory summary return. But if, at the time of the wrongful act, the requested State had become the State of habitual residence, the extension by article 7(1) to the jurisdiction of the previous State of habitual residence would have no application and the requested State would have sole jurisdiction; in such an event, there could be no question of a mandatory summary return without consideration of the merits. Brussels II Revised adopts a similar structure to the 1996 Convention. article 2(11) provides a definition of wrongful removal and retention which, although not in identical words to article 3 of the Abduction Convention, achieves the same result, and in particular makes the test for wrongfulness the law of the State of habitual residence immediately before the act relied upon. Article 10 prolongs the jurisdiction of that State in the event of a wrongful removal or retention in much the same terms as does article 7 of the 1996 Convention. As with the 1996 Convention, the intention is plainly to preserve the regime of the Abduction Convention, and article 11 goes on to make supplemental provision for the handling of applications under it. It is revealing that it does so after introduction in the following terms: (1) Where a person [etc] having rights of custody applies to the competent authorities in a member state to deliver a judgment on the basis of [the Abduction Convention] in order to obtain the return of a child that has been wrongfully removed or retained in a member state other than the member state where the child was habitually resident immediately before the removal or retention, paragraphs 2 to 8 shall apply. (Emphasis supplied) Of course, this provision applies only as between States members which are of the EU. But there is no reason why such States alone should adopt a rule that the requested State must be a different one from the State of habitual residence immediately before the wrongful act. On the contrary, the aim is clearly to preserve the scheme of the Abduction Convention. The words other than the member state where the child was habitually resident immediately before the removal or retention plainly assume that this is the scheme implicit in the Abduction Convention. Recital 17 to the Regulation, which expresses the intention that the Abduction Convention should continue to operate, also assumes a difference between the State of habitual residence and the State requested to make a return order. There are other examples of legislative provisions making explicit the principle that return under the Abduction Convention presupposes return from a state other than that of habitual residence at the time of the wrongful act. In New Zealand, the Convention is given effect by the Care of Children Act 2004. In that Act, removal includes retention, in each case as defined in article 3 of the Convention. Section 103 provides: (1) The Authority must take action under the Convention to secure the prompt return of the child to a Contracting State other than New Zealand if the Authority receives, in respect of a child, an application claiming (a) that the child is present in New Zealand; and (b) that the child was removed from that other Contracting State in breach of the applicants rights of custody in respect of the child; and that at the time of the removal those rights of (c) custody were actually being exercised by the applicant, or would have been so exercised but for the removal; and (d) that the child was habitually resident in that other Contracting State immediately before the removal. (Emphasis supplied) In Australia the equivalent Family Law (Child Abduction Convention) Regulations 1986 provide by regulation 16(1A)(b) that one of the conditions for an order for return is that the child habitually resided in a convention country immediately before the childs removal to, or retention in, Australia. In re H (Minors) (Abduction: Custody Rights), In re S (Minors) (Abduction: Custody Rights) [1991] 2 AC 476 the House of Lords addressed the question whether wrongful removal and wrongful retention were mutually exclusive concepts; the issue arose in the context of the commencement date for the 1985 Act as between the two States involved. The House held that for the purposes of the Abduction Convention the two concepts were mutually exclusive, and that because article 12 required it to be possible to calculate the 12 month period from a wrongful retention, as well as from a wrongful removal, the former could not be regarded as simply continuing, but had to have an identified date, in effect its beginning. Giving the sole speech, Lord Brandon explained, at 498G: The preamble of the Convention shows that it is aimed at the protection of children internationally (my emphasis) from wrongful removal or retention. article 1(a) shows that the first object of the Convention is to secure the prompt return to the state of their habitual residence of children in two categories: (1) children who have been wrongfully removed from the state of their habitual residence to another contracting state; and (2) children who have been wrongfully retained in a contracting state other than the state of their habitual residence instead of being returned to the latter state. The Convention is not concerned with children who have been wrongfully removed or retained within the borders of the state of their habitual residence. (Emphasis of other supplied) That echoed an observation of Lord Donaldson MR in the same case in the Court of Appeal. He had said, [1991] 2 AC 476, 486F: plainly the Act and Convention can only apply if the child is found in a different State from that in which it was habitually resident The question raised in the present case did not arise for decision in In re H; In re S and so the observations noted were not the result of argument on the point now at issue. They were, however, a considered analysis of the scheme of the Abduction Convention, and they have been consistently followed in England and Wales ever since. In consequence in a number of cases, which it is not necessary to list, applications under the Convention have failed where the child was habitually resident in England and Wales by the time of the wrongful act relied upon. The researches of counsel, for which we are very grateful, have disclosed that a similar approach has been adopted in Scotland, France, Israel, Switzerland, Canada, Australia, New Zealand and various United States courts whether federal or state. Whilst those surveys cannot by their nature be exhaustive of every decision in every jurisdiction, what is significant is that none of them, including those conducted on behalf of those arguing against the currently assumed analysis (Father and the Intervener), has unearthed any decision to the contrary. In C v M (2014) (Case C 376/14PPU); [2015] Fam 116 the Court of Justice of the European Union (CJEU) adopted the same analysis. The French Father had made application to the Irish Court for the return of children who had been taken to Ireland by Mother. The background was an initial decision of the French court permitting relocation to Ireland, which had been appealed promptly. Mother had moved notwithstanding the pending appeal, a stay having been refused to Father, and subsequently the French decision had been reversed by the appeal court. The Irish court was minded to find that the child had become at some stage habitually resident in Ireland. It referred a number of questions to the CJEU. The CJEU decided (1) that the initial removal to Ireland had not been wrongful, because of the then extant first instance decision permitting the move (para 44), (2) that the subsequent retention there after the French appellate decision might justify an order for return but (3) this would depend on whether by then the child was habitually resident in Ireland (paras 45 49 and 63). If habitual residence had by then been established in Ireland, there could be no order for return. At para 48 the court said: Article 11(1) of the Regulation [vis Brussels II Revised] provides that paragraphs 2 8 of that article are to apply where the holder of rights of custody applies to the competent authorities of a member state to deliver a judgment on the basis of the 1980 Hague Convention in order to obtain the return of a child that has been wrongfully removed or retained in a member state other than the member state where the child was habitually resident immediately before the wrongful removal or retention. It follows that this is not the case if the child was not habitually resident in the member state of origin immediately before the removal or retention. It is certainly true that this paragraph proceeds from the words of article 11(1) of Brussels II Revised. But the application which the father had made was under the Abduction Convention. He had referred also to Brussels II Revised, but this Regulation does not contain the duty to return a child; what it does is to recognise that the Abduction Convention does contain such a duty, and by article 11 it provides supplementary rules for how this duty is to be performed. En route to its conclusion, the CJEU emphasised, first, that the Regulation and the Abduction Convention were to be uniform, that is to say consistent (para 58), and secondly that a decision to return under the Abduction Convention is not a decision on the merits and thus there can be no occasion for a conflict of jurisdiction between the requesting and requested State (paras 37 and 40 42). It left to the Irish court the decision of fact whether and when habitual residence had been established in Ireland. It may be that its proposition that for a return order under the Abduction Convention to be made it was essential that the child was habitually resident at the time of the wrongful act in the State of origin, as distinct from some State other than the requested State, might be wider than necessary, for it may not have considered the possibility of habitual residence in an intermediate State, which did not arise for debate. But what is abundantly clear is that it is only under the Abduction Convention that a summary order for return is provided for, and that such an order could not be made if the child was, by the time of the wrongful act relied upon, habitually resident in the requested State. There is no hint in the courts decision that Brussels II Revised has in any sense modified the fundamentals of the scheme of the Abduction Convention for EU members; quite the contrary. In the later case of OL v PQ (2017) (Case C 111/17PPU), a different chamber of the CJEU reached a similar conclusion. The court held that a child born in Greece was habitually resident there, despite the originally Italian home of her parents, and that in consequence an order under the Abduction Convention for return from Greece to Italy could not be made by the Greek court. At para 38 the court said: It is clear from those provisions that the concept of habitual residence constitutes a key element in assessing whether an application for return is well founded. Such an application can succeed only if a child was, immediately before the alleged removal or retention, habitually resident in the member state to which return is sought. The nearest case proffered as any indication to the contrary is In re G (A Minor) (Enforcement of Access Abroad) [1993] Fam 216. There, the Court of Appeal held that a Canadian resident father could use the Abduction Convention (article 21) to enforce his Canadian given rights of access in relation to a child who was habitually resident in England by the time the mother declined to comply with them. But that was not a case involving any question of return. The provisions of the Convention in relation to access are notably more fluid and flexible. They simply require the central authorities to facilitate co operation with a view to preserving access rights. They make no demands of the courts of the requested State and to the extent that they contemplate that an application may be made there, they appear to assume that those courts will conduct a merits hearing. They provide no guide to the scheme of the Convention in relation to applications for orders for summary return. These various examples of the practice as to the application of the Abduction Convention thus all point in the same direction. The Convention cannot be invoked if by the time of the alleged wrongful act, whether removal or retention, the child is habitually resident in the State where the request for return is lodged. In such a case, that State has primary jurisdiction to make a decision on the merits, based on the habitual residence of the child and there is no room for a mandatory summary return elsewhere without such a decision. It may of course be that in making a merits decision, the court of the requested State might determine that it is in the best interests of the child to be returned to his previous home State, and indeed might do so without detailed examination of all possible evidence, as the English courts may do (see In re J (A Child) (Custody Rights: Jurisdiction) [2005] UKHL 40; [2006] 1 AC 80). But so to do is very different from making a summary order for return without consideration of the merits under the Abduction Convention. The submissions made to this court addressed also the separate question of whether a return under the Abduction Convention, if made, must always and only be made to the State of habitual residence immediately before the wrongful act. It is to be noted that article 12 does not contain any such restriction, and that Professor Prez Veras report at para 110 makes clear that the decision not to do so was deliberate. The reason given is that whilst ordinarily that State will be the obvious State to which return should be made, there may be circumstances in which it would be against the interests of the child for that to be the destination of return. The example given is of the applicant custodial parent who has, in the meantime, moved to a different State. The propriety, in such circumstances, of an order returning the child to the new home state of the custodial parent is not in issue in this case. For the reasons given above, the silence of article 12 on the destination of a return order is of no help on the issue which does arise, namely whether an order for return can be made if at the time of the wrongful act the child was habitually resident in the requested State. It is however to be observed in passing that the unusual circumstances envisaged in para 110 of the Prez Vera report were held at first instance to have arisen in O v O (Child Abduction: Return to Third Country) [2013] EWHC 2970 (Fam); [2014] Fam 87 and there did result in an order for return to the new home State. The second general question: when does wrongful retention occur? This was the question of principle on which leave to appeal to this court was given. If the child has been removed from the home State by agreement with the left behind parent for a limited period (and thus the removal is not wrongful), can there be a wrongful retention before the agreed period of absence expires? The classic example of the possibility is where the travelling parent announces, half way through the agreed period (say of a sabbatical year of study for the parent) that he will not under any circumstances return the child in accordance with the agreement he made. He might do more. He might effectively make it impracticable to return, by, for example, selling his house in the home State, abandoning his job there, and obtaining residency in the new State for himself and the child on the basis of an undertaking that they will both remain there indefinitely. No doubt other examples could be postulated. The question is whether, if such a thing occurs, there is then and there a wrongful retention, or whether his retention of the child cannot in law be wrongful until the date agreed for return arrives and, as it was graphically put in the American case of Falk v Sinclair (2009) 692 F Supp 2d 147, the aeroplane lands and the child is not among those who disembark. There is some difficulty in devising a suitable shorthand for the possibility of wrongful retention in advance of the due date for return. One which has been used is anticipatory retention. This is certainly convenient but it may lead to misconceptions. If early wrongful retention is a legal possibility, it is not because there is an anticipation of retention. On the contrary, the child is retained in the destination State from the moment of arrival, just as he is removed from the home State at the moment of departure. If the departure and arrival are permitted by agreement with the left behind parent, or sanctioned by the court of the home State, they are still respectively removal and retention, but they are not wrongful. So what is under consideration is a retention which becomes wrongful before the due date for return. The key to the concept of early wrongful retention, if it exists in law, must be that the travelling parent is thereafter denying, or repudiating, the rights of custody of the left behind parent and, instead of honouring them, is insisting on unilaterally deciding where the child will live. In the absence of a better expression, the term which will be used here will, for that reason, be repudiatory retention. That is not to import contractual principles lock stock and barrel into the concept, for the analogy with a contract is only partial. It is simply to attempt a shorthand description. The expert and thorough analysis of the known cases in several different jurisdictions which was undertaken in this case by Black LJ, as she then was, cannot be improved upon. It is to be found at paras 28 97 of her judgment [2017] EWCA Civ 980; [2017] 3 FCR 719. On this part of her judgment the Court of Appeal was unanimous. It shows that a concept of repudiatory retention has been recognised in some jurisdictions, and for many years now: early examples included Wall Js decision in In re S (Minors) (Abduction: Wrongful Retention) [1994] Fam 70 and the Canadian case of Snetzko v Snetzko (1996) CanLII 11326. Other cases have rejected the concept, for example in Australia. There are cases going either way in the United States. It follows that there is no generally accepted international practice on the point, nor is there clear authority either way in this jurisdiction. In those circumstances it is necessary for this court to address the principle of the suggested concept. The Court of Appeal concluded unanimously that there was a concept of repudiatory retention known to the law. It divided, however, as to whether it could exist only when the repudiation was communicated to the left behind parent (or at least manifested by action), as Black LJ held, or whether such communication was not necessary in law, as Sharp and Thirlwall LJJ concluded. In considering the existence of the concept, it is necessary also to address how repudiatory retention, if it exists at all, may occur. The helpful submissions made to this court identified six suggested reasons why such a concept is inconsistent with the Abduction Convention and not known to the law. In principle there can only be a single act of wrongful retention and (i) this cannot occur until the due date for return arrives, and is not honoured, because until then there is no breach of the rights of custody of the left behind parent. (ii) In ordinary language retention means continuing to hold or to keep possession; however, until the due date for return arrives, the travelling parents retention is sanctioned and not wrongful. (iii) A repudiatory retention is too uncertain a concept, for the travelling parent may change his mind and return after all on the due date, whatever he may have said or done earlier. (iv) If repudiatory retention were acknowledged, the effect might be to start the clock running before the left behind parent knew about it, with the consequence that the 12 month period stipulated in article 12 might wholly or partly pass and the left behind parent be deprived of or hindered in the right to a certain order for return. (v) Any such concept would be likely to lead to prolonged hearings in applications under the Abduction Convention when it is axiomatic that they should be such as can be dealt with swiftly and summarily. (vi) No such concept is needed because the left behind parent will, if he cannot obtain a summary return order under the Abduction Convention, have other effective remedies. The crux of the issue lies in the first two contentions, which are different ways of expressing the same point. If there is no breach of the rights of custody of the left behind parent, then it is clear that the Convention cannot bite; such a breach is essential to activating it, via articles 3 and 12. It is clearly true that if the two parents agree that the child is to travel abroad for a period, or for that matter if the court of the home State permits such travel by order, the travelling parent first removes, and then retains the child abroad. It is equally true that both removal and retention are, at that stage, sanctioned and not wrongful. But to say that there is sanctioned retention is to ask, rather than to answer, the question when such retention may become unsanctioned and wrongful. When the left behind parent agrees to the child travelling abroad, he is exercising, not abandoning, his rights of custody. Those rights of custody include the right to be party to any arrangement as to which country the child is to live in. It is not accurate to say that he gives up a right to veto the childs movements abroad; he exercises that right by permitting such movement on terms. He has agreed to the travel only on terms that the stay is to be temporary and the child will be returned as agreed. So long as the travelling parent honours the temporary nature of the stay abroad, he is not infringing the left behind parents rights of custody. But once he repudiates the agreement, and keeps the child without the intention to return, and denying the temporary nature of the stay, his retention is no longer on the terms agreed. It amounts to a claim to unilateral decision where the child shall live. It repudiates the rights of custody of the left behind parent, and becomes wrongful. The plain purpose of the Abduction Convention is to prevent the travelling parent from pre empting the left behind parent. The travelling parent who repudiates the temporary nature of the stay and sets about making it indefinite, often putting down the childs roots in the destination State with a view to making it impossible to move him home, is engaging in precisely such an act of pre emption. It is possible that there might also be other cases of pre emptive denial of the rights of custody of the left behind parent, outside simple refusal to recognise the duty to return on the due date. It is not, however, necessary in the present case to attempt to foresee such eventualities, or to consider whether fundamental failures to observe conditions as to the care or upbringing of the child might amount to such pre emptive denial. It is enough to say that if there is a pre emptive denial it would be inconsistent with the aim of the Abduction Convention to provide a swift, prompt and summary remedy designed to restore the status quo ante to insist that the left behind parent wait until the aeroplane lands on the due date, without the child disembarking, before any complaint can be made about such infringement. It is no doubt true that a travelling parent might change his mind after an act of repudiation. But so he might after a failure to return on the due date, and commonly does when faced by notice of the provisions of the Abduction Convention, or by an application under it. So also he might, after making an unsanctioned move to an unagreed country, or after embarking on an unsanctioned programme of religious conversion. The possibility of a change of heart is no reason not to recognise that the heart needs changing if rights of custody in the left behind parent are to be respected. On the contrary, the desirability of inducing a prompt change of mind is an argument for recognising a repudiatory retention when and if it occurs. Proof that it has occurred is a matter of evidence, and what manifestation of it must be demonstrated is considered below. If a concept of repudiatory retention exists, it would indeed follow that once such an act occurs, the article 12 12 month clock would begin to run at that point. If the left behind parent knows of the repudiation, there is every reason why it should run. If he does not, the possibility exists that the 12 month period partly, or sometimes wholly, may pass before he finds out and can make an application under the Abduction Convention. But it is a mistake to think of the 12 month period as a limitation period, of the kind designed in Limitation Acts to protect a wrongdoer from claims which are too old to be pursued. It is not a protection for the wrongdoer. Rather, it is a provision designed in the interests of the child. It operates to limit the mandatory summary procedure of the Convention to cases where the child has not been too long in the destination State since the wrongful act relied on. Where it applies, it does not prevent a summary return; it merely makes it discretionary. In the event that an act of wrongful repudiatory retention had been concealed, that concealment might well be one factor in the decision whether to order return or not. In other cases, the settlement of the child might be so well established that notwithstanding the wrong done by the travelling parent, it is too late to disturb it. Such decisions are fact sensitive ones which are properly left to the court of the requested State. The risk of the 12 month period running without the knowledge of the left behind parent is in any event distinctly less fatal to his interests than the risk of the childs habitual residence being changed without his knowledge, or indeed with his knowledge but without him being able to invoke the Convention because the due date for return has not yet arrived. The latter risk creates a complete bar to return under the Convention; the former a discretionary one. The concern that Abduction Convention applications may become longer and more complicated is a point well made. It was convincingly voiced in the Court of Appeal by Black LJ. It is of the essence of such cases that the remedy is a swift and summary one. Oral evidence should be the exception, not the rule. But some limited disputes of fact are bound to arise. In the kind of case where retention is in question, it will often be critical to establish what the terms were of any arrangement under which the child travelled. That may be as necessary to establish the date of due return (and thus conventional wrongful retention) as to establish an earlier repudiatory retention. The Family Division judges who hear these cases are well used to managing them actively and to controlling any tendency to spill outside the issues necessary to determine them. If the correct rule is that repudiatory retention must be demonstrated by overt act or statement (see below) the danger of speculative applications being made, or of hearings degenerating into speculative cross examination as to the internal and undisclosed thinking of the travelling parent ought not to arise. It may be that in many cases which would be covered by the concept of repudiatory retention the left behind parent may have remedies alternative to an application under the Abduction Convention. We were pressed with the contention that ordinarily he will be able to seek an order for return in the home State, and then enforce it in the destination State. This may indeed sometimes be possible. It will be possible if both States are party to the 1996 Convention and if at the time of the application to the court of the home State the child is still habitually resident there. In that event, the home State has jurisdiction (article 5) and the destination State must enforce its decision (article 23). Article 7 of the 1996 Convention prolongs the jurisdiction of the home State if there has been a wrongful retention, but if the habitual residence of the child has been changed to the destination State by the time of the act relied upon, there will be no wrongful retention and article 7 will not apply. Nevertheless, the necessity for habitual residence in the home State presents no greater hurdle to the left behind parent under the 1996 Convention than under the Abduction Convention, because if the habitual residence of the child has shifted to the destination State by the time of the act relied on, neither form of machinery will work. Likewise, if both States are members of the EU and governed by Brussels II Revised. All that said, the critical fact is that by no means all States which are party to the Abduction Convention are party to the 1996 Convention; at the time of the hearing in this court there were some 49 States which are not. Even fewer are members of the EU. The Abduction Convention has its own self contained scheme and should function as such. The recognition and enforcement provisions in the 1996 Convention are, as explained above, meant to preserve that scheme and not to substitute for it. Moreover, such an application to the home State would have to trigger a merits hearing, in which the home State has to adjudicate upon where the best interests of the child now lie, and upon whether habitual residence has shifted, all depending on facts occurring perhaps some thousands of miles away. That is not at all the same as the mandatory summary remedy provided by the Abduction Convention. Even in jurisdictions, such as England and Wales, which retain the practice of sometimes returning children without a full investigation of the facts (In re J, para 34 above), the remedy is not, for the left behind parent, the equivalent of the Abduction Conventions mandatory summary return. For all these reasons, the principled answer to the question whether repudiatory retention is possible in law is that it is. The objections to it are insubstantial whereas the arguments against requiring the left behind parent to do nothing when it is clear that the child will not be returned are convincing and conform to the scheme of the Abduction Convention. The remaining question is what is needed to constitute such repudiatory retention. As with any matter of proof or evidence, it would be unwise to attempt any exhaustive definition. The question is whether the travelling parent has manifested a denial, or repudiation, of the rights of the left behind parent. Some markers can, however, be put in place. (i) It is difficult if not impossible to imagine a repudiatory retention which does not involve a subjective intention on the part of the travelling parent not to return the child (or not to honour some other fundamental part of the arrangement). The spectre advanced of a parent being found to have committed a repudiatory retention innocently, for example by making an application for temporary permission to reside in the destination State, is illusory. (ii) A purely internal unmanifested thought on the part of the travelling parent ought properly to be regarded as at most a plan to commit a repudiatory retention and not itself to constitute such. If it is purely internal, it will probably not come to light in any event, but even supposing that subsequently it were to do so, there must be an objectively identifiable act or acts of repudiation before the retention can be said to be wrongful. That is so in the case of ordinary retention, and must be so also in the case of repudiatory retention. (iii) That does not mean that the repudiation must be communicated to the left behind parent. To require that would be to put too great a premium on concealment and deception. Plainly, some acts may amount to a repudiatory retention, even if concealed from the left behind parent. A simple example might be arranging for permanent official permission to reside in the destination State and giving an undertaking that the intention was to remain permanently. (iv) There must accordingly be some objectively identifiable act or statement, or combination of such, which manifests the denial, or repudiation, of the rights of custody of the left behind parent. A declaration of intent to a third party might suffice, but a privately formed decision would not, without more, do so. (v) There is no occasion to re visit the decision of the House of Lords in In re H; In re S (para 28 above) that wrongful retention must be an identifiable event and cannot be regarded as a continuing process because of the need to count forward the 12 month period stipulated in article 12. That does not mean that the exact date has to be identifiable. It may be possible to say no more than that wrongful retention had clearly occurred not later than (say) the end of a particular month. If there is such an identifiable point, it is not possible to adopt the submission made to the Court of Appeal, that the left behind parent may elect to treat as the date of wrongful retention either the date of manifestation of repudiation or the due date for return. It may of course be permissible for the left behind parent to plead his case in the alternative, but that is a different thing. When once the actual date of wrongful retention is ascertained, the article 12 period begins to run. This case: the judges decision The judge ([2016] EWHC 3535 (Fam)) held that there was no concept of repudiatory retention known to the law. But he helpfully addressed the facts on the hypothesis that he was wrong about that. He held that the application to the immigration authorities made on 4 November 2015 did not amount to such a repudiatory retention, because although it was concealed from Father, something had to be done to regularise the stay of the children once it was to last more than their six month visas permitted. Father, he held, could not properly have objected to such regularisation, even if Mother feared that he might have tried. There can be no doubt that the judge significantly misdirected himself here. It was not the application for permission to stay which was potentially significant. It was what was said, in support of it, about Mothers intentions. Of course it was said by her solicitors, but if it showed that by that date she had determined that the childrens centre of life is, and will be, in the UK indefinitely, then it would be capable of being an objectively identifiable manifestation, made to an official third party, of her repudiation of Fathers rights of custody, and of the fact that thereafter her retention of the children in the United Kingdom was not in accordance with the arrangement she had made with him, but in defiance of it. However, the question which matters is not whether the judge made this error, but whether it affected his conclusion that Mother had not, before the expiry of the agreed year (which he determined was at the end of June 2016) made any act of repudiatory retention. The judge went on to examine Mothers state of mind. He found that she vacillated in what she meant to do. He had seen her examined and cross examined, and it is clear that he believed her when she said that as at both November 2015 and February 2016, she had not yet made up her mind. In February she had told Father only that she would not be returning in May (when the year would not, on the judges findings, have expired). He attributed her uncertainty in part to anticipation of harassment from Father. He then directed himself that even though she gave evidence that by the end of April 2016 she had resolved not to return, that could not be a date for repudiatory retention because it was too imprecise and thus inconsistent with the In re H; In re S rule that retention must be a definite occurrence rather than a continuing process. To the extent that he relied on imprecision he was, again, clearly wrong. There is, as explained above, nothing in In re H; In re S which prevents a court from saying that retention had occurred not later than the end of April. But what does prevent there from being a repudiatory retention in April is that Mothers internal thinking could not by itself amount to such. If she had had such an intention in November, the application to the immigration authorities would have been capable of amounting to an objective manifestation of her repudiation, but the judge believed her when she said that she did not. It was open to him to believe her or not to believe her about this. He saw her and this court has only a transcript. It does not provide nearly sufficient basis for overturning his decision. His error about the potential significance of what was said to the immigration authorities in November is not inconsistent with his yet believing the witness whom he saw when she said that she had not then (or until April) made up her mind to stay. These findings need to be considered alongside the judges decision as to the habitual residence of the children. He reviewed a body of evidence from Mother, relatives, neighbours and the playschool manager, to the effect that the children were, by the Summer of 2016, firmly integrated into the social and family environment of the part of England in which they had lived for a year, and, in the case of the younger child, for somewhat longer than he had lived in Australia. By reference to the decision of Hayden J in In re B (A Child) (Custody Rights: Habitual Residence) [2016] EWHC 2174 (Fam); [2016] 4 WLR 156, he directed himself correctly as to the test of habitual residence and the factors relevant to the integration necessary to establish it. He found that the children were, by the time of their otherwise wrongful retention at the end of June 2016, already habitually resident in the United Kingdom, so that the Abduction Convention could not apply to call for a mandatory summary return. He expressed the view that they had probably become habitually resident in England much earlier than June 2016. There is no basis in law for criticising the judges decision as to habitual residence. His remark that it was arguable that the children had established habitual residence by the time of the November application to the immigration authorities may well be going too far, for at that stage they had been in the United Kingdom only since May, a period of about six months, but that remark does not alter the propriety of his decision as to June 2016, by which time more than a years residence had passed, during which the children had clearly become integrated parts of English life. For my part, I recognise the force of the contention that the judges error about the potential significance of what was said at the time of the November application to the immigration authorities infected his decision that there was no combination of intention not to return and outward manifestation of that decision until the following summer. But for the reasons given above I conclude that that infection did not in fact take place. It follows that by the time the children were retained in the United Kingdom inconsistently with Fathers rights of custody they had become habitually resident here. That being so, the application under the Abduction Convention cannot succeed. The consequence is that Mothers appeal against the order of the Court of Appeal must succeed, whilst Fathers cross appeal in relation to the finding as to habitual residence must be dismissed. LORD KERR: (dissenting) There is much in Lord Hughes judgment with which I agree. Like Lord Wilson (with whose proposed disposal I fully agree) I would have dismissed the appeal. There is perhaps a slight difference in emphasis between us, however, on the reasons that the appeal should be dismissed and, on that account, I add this short judgment. When dealing with the effect of wrongful retention of a child by what has been described as a travelling parent, one can recognise that various factors are in play. One starts with the proposition that, in general, it should not be possible for a child to acquire or for a parent to bestow habitual residence after the time that wrongful retention begins. A strong imperative exists for discouraging travelling parents from the view that they can avoid the consequences of the Abduction Convention by concealing an intention to retain the child in the country to which they have travelled, on the pretext, for instance, of a holiday of fixed or limited duration. To insist that wrongful retention can only occur at the end of an agreed period of absence could lead to absurd results; would encourage dissimulation on the part of the travelling parent; and would permit habitual residence to be acquired by the perpetration of deception on the left behind parent. As against that, it is often difficult retrospectively to decide when wrongful retention began. It may be the outcome of a gradual change of attitude on the part of the travelling parent. Retention in the country travelled to may be acquiesced in by the left behind parent, even if she or he suspects that the travelling parent may be in the process of forming an intention not to return the child to the country where she or he was habitually resident. If the child has formed relationships in the travelled to country and is well settled there (albeit as a result of the travelling parents covertly formed intention not to return him or her) do the best interests of the child obtrude on the question of where her or his habitual residence should be found to be? No final answers to these potentially difficult questions need be given in the present appeal. I raise them solely to illustrate the extremely trying problems that can arise in this fraught area. How is the fact (and the time of onset) of wrongful retention to be established? Clearly the intention of the travelling parent wrongfully to retain is needed. Must this be accompanied by some overt act or event by which the intention becomes manifest? Not without misgivings, I am prepared to accept that this is required. The reason for my misgivings can be explained by taking a simple but not, I suggest, fanciful, example. Suppose a husband persuades his wife to allow him to take their children to his parents native country on the promise that he will return within a stipulated period. Days after leaving, he conceives a firm determination that the children and he will never return. He does not communicate this to anyone. Some months later, he takes action which clearly demonstrates that he has no intention of returning the children. Evidence emerges that this was his plan from the outset. Is the period between his first determining not to return the children and the later event reckonable in the assessment as to whether they have acquired habitual residence in the country of their paternal grandparents? If we say that the retention only becomes wrongful when the intention of the retaining parent becomes manifest, how is the claim by the father in my example that the children have become habitually resident in his parents country to be resisted? Again, however, this conundrum does not require to be solved in the present appeal and, having expressed my misgivings about the notion that some manifestation of the wrongful retention is required, I say no more about it. For the reasons given by Lord Hughes and Lord Wilson, the judge ([2016] EWHC 3535 (Fam)) was wrong to hold that the law did not recognise repudiatory retention. His examination of when such a wrongful retention might have occurred (if, contrary to his view, the concept exists in law) appears to have been coloured by that primary finding, for he concluded that it had not arisen in this case at all. That finding simply cannot be reconciled with his statement in para 80 that as the months went by, the mother gradually came to the conclusion that she and the children should remain in England. She had reached that conclusion by around April though it was not communicated to the father. And this, notwithstanding that he had earlier said, at para 62, that a finding that there was a wrongful retention on some unspecified date in April 2016 is too imprecise. The opportunity for a firm finding as to the precise timing that an intention was formed is, in the nature of things, unlikely to be always possible. Intentions are formed over days, weeks or even years. Because it is not possible to make a positive finding of the date on which it had been formed is not a reason for not making a finding as to the time by which it had been formed. And indeed Judge Bellamy appears to have done precisely that when he said in para 80 that the mother had decided by around April that the children should remain in England. The judge, having made that finding, was obliged to consider whether the childrens habitual residence had been established in England by April 2016. He did not do that. On that account alone, his decision cannot be allowed to stand, in my opinion. It is impossible to say that, if he had recognised the true implication of his statement that the mother had, by April 2016, formed the intention not to return the children, he would nevertheless have decided that habitual residence in England had by then already been established. In the absence of a finding to that effect, or alternatively the inevitability of such a conclusion, it is quite impossible to conclude that the habitual residence of the children had changed at a time which would displace the fathers rights under the Abduction Convention. There is a more fundamental problem with the judges judgment. This concerns the communications to the Home Office in November 2015. In the letter from the mothers solicitor, it was asserted that she had been advised not to return to Australia; that it was necessary that she remain in England to safeguard herself and her children; and that there was no doubt that the childrens centre of life is and will be in the UK. At paras 53 and 59 of his judgment, the judge dealt with the application for British citizenship in the following terse passages: And The solicitors letter to the Home Office dated 4th November sets out information clearly designed to persuade and assumes that the person making the decision will be exercising a discretion. As the Home Office was not required to exercise a discretion it follows that any misleading or inaccurate information set out in that letter cannot have had any bearing on the decision of the Home Office to approve the childrens applications. As the father well knew, the children had entered the UK on six month visitors visas. To enable them to stay for the year to which the father had agreed, some step had to be taken to enable them lawfully to remain in the UK beyond 5th November. I do not accept that it can properly be said that the mother wrongfully retained the children from 5 November 2015. From these passages, two reasons for the judges conclusions can be discerned. First, the circumstance that the Home Office did not have to exercise a discretion meant that any misleading or inaccurate information in the letter should be discounted or ignored. Secondly, the fact that the father knew that something would have to be done to allow the children to remain in the United Kingdom after 5 November 2015 eliminated any possibility of the mother having wrongfully retained the children from that date. Neither reason is sustainable. More importantly, the conclusions that he reached on those matters deflected the judge from recognising and considering the significance of the evidence provided by the November 2015 correspondence as to the mothers intention at that time. The failure to give proper consideration to that evidence fatally undermines the conclusion reached by the judge as to the time at which the mother had conceived the intention to retain the children in England. In turn, this extinguishes the basis for his decision that the wrongful retention did not begin until June 2016 and that, by that time, the habitual residence of the children was England. Why was the judge wrong to decide that, because the Home Office did not have to exercise a discretion, any misleading or inaccurate information in the letter should be discounted or ignored? Because this was nothing to the point. The significance of the letter in the context of these proceedings was its potential to provide an insight into what the mothers intention was at the time that it was written. The purpose of the letter, the result that it sought to achieve, was entirely incidental to that critical consideration. The importance of the letter bore on the question of what the mothers sentiments about the retention of her children in England were at the time of its dispatch. What it sought to persuade the Home Office of was entirely irrelevant to that question. But the judge dismissed the letter as a potential source of evidence on that central question. Until that question is addressed, the conclusion that the mother had not formed any intention wrongfully to retain the children in England in November 2015 is simply insupportable. Likewise, the fact that the father knew that something would have to be done in November 2015 to ensure that the legal entitlement of the children to remain living in England was preserved, has no direct bearing on the question whether the letter from the mothers solicitor showed that, as early as that date, the mother had decided that she would not return the children to Australia. The contents of the letter certainly suggested that that was the case. As already observed (in para 11 above), it had said that she had been advised not to return to Australia; that it was necessary that she remain in England to safeguard herself and her children; and that there was no doubt that the childrens centre of life is and will be in the UK. What the judge should have asked himself was, is it conceivable that such a letter would be sent if the mother had not already decided that she and the children would not return to Australia?. Instead, he elided that question by concentrating on the circumstance that the husband must have known that the mother would have to do something to regularise the childrens continued stay in England. The important question was why the letter was couched in the terms that it was, if it did not reflect the mothers settled intention to remain here. That question was never asked by the judge and it has not been possible to address it since. It needs to be asked and satisfactorily answered before any conclusion as to the mothers intention in November 2015 about returning her children to Australia can be I consider that this court should have dismissed the mothers appeal. reached. That is why, in my opinion, remittal of the case for a proper hearing is unavoidable. LORD WILSON: (dissenting) I respectfully agree with the exposition of law in the judgment of Lord Hughes. I disagree with him only when, from para 52 onwards under the heading This case: the judges decision, he reaches the conclusion that the mothers appeal should be allowed. The trial judge (the judge) held that the law did not recognise a repudiatory retention and that the mothers retention of the children in the UK became wrongful only on 28 June 2016, which he found to have been the agreed date for their return to Australia. The judge added, however, that, even if the law did recognise a repudiatory retention, he did not consider that it had arisen in the present case, whether in November 2015 or in April 2016 or at all. As Lord Hughes has explained, the Court of Appeal was right to hold that the law does indeed recognise a repudiatory retention. The majority (Sharp and Thirlwall LJJ) proceeded to hold that the judges conclusion that in any event it had not arisen in the present case had been flawed; and they ordered that the case be remitted for further inquiry in that regard, particularly in relation to circumstances in November 2015. In my view the majority were right to order that the possibility of a repudiatory retention, particularly in November 2015, required further to be explored. It required further to be explored by reference in particular to the mothers intention; to the need for some objectively identifiable act of repudiation; and to whether, immediately before any repudiatory retention, the children had already acquired their habitual residence in the UK. Although, like the majority in the Court of Appeal, I will focus principally on circumstances in November 2015, I wish briefly to address the possibility of a repudiatory retention of the children on the part of the mother in April 2016. The judge found: I am satisfied that as the months went by the mother gradually came to the conclusion that she and the children should remain in England. She had reached that conclusion by around April though it was not communicated to the father. So why was there no repudiatory retention in April 2016? In para 55 above Lord Hughes explains that Mothers internal thinking could not by itself amount to such. If she had had such an intention in November, the application to the immigration authorities would have been capable of amounting to an objective manifestation of her repudiation, but the judge believed her when she said that she did not. Today this court decides, with hesitant concurrence on the part of Lord Kerr, that the concept of a repudiatory retention requires not only an intention on the part of the travelling parent to retain a child beyond the agreed date of return but also some objectively identifiable act of repudiation on her part. If, however curiously (see below), the objectively identifiable act occurred in November 2015 but the requisite intention arose only by around April 2016, how obvious is it that the requirements of the concept were not at any rate by then satisfied? More importantly, however, the majority in the Court of Appeal were in my view right to set aside the judges finding that the mothers intention to retain the children beyond 28 June 2016 arose only by around April 2016. For he did not grapple with evidence which seemed clearly to point to her having developed that intention by November 2015. This evidence was the letter dated 4 November 2015 from the mothers solicitor to the Home Office, which accompanied her applications on behalf of the children to be registered as UK citizens. The context was that the children had entered the UK on 5 May 2015 pursuant to visitors visas due to expire on 5 November 2015. In the light of the fathers agreement that they could remain with the mother in the UK until 28 June 2016, it was necessary for their visas to be extended for almost eight months. But the regularisation of their stay in the UK for that extended period could have been achieved without their becoming UK citizens. So the mothers applications for them to be registered as UK citizens called for an explanation. Her failure to notify the father in advance that she was making the applications also called for an explanation and, in cross examination, it received one: she explained that she believed that he would have obstructed them. To her statement in answer to the fathers application, the mother exhibited her solicitors letter dated 4 November 2015. In the letter the solicitor said: that the mother was effectively forced not to return to Australia in that she was advised not to return to Australia; that the interests of these two children are best served by their being (a) order to safeguard herself and her children; (b) (c) in the UK; and (d) be, in the UK where the children are registered as requested. that it cannot be in doubt that the childrens centre of life is, and will The terms of the letter therefore appear to be entirely inconsistent with an intention on the part of the mother to return with the children to Australia in June 2016 or at all. In the body of her statement the mother said that her decision not to return the children to Australia in June 2016 had developed over time and had not arisen long before that date. But she made no comment upon the content of her solicitors letter to the Home Office. She did not say that any part of it had been written without her approval or was untrue. On the contrary she said that her solicitor had been utterly clear that there was nothing wrong or deceptive in the applications for citizenship, being an assertion with which she seems there to have associated herself. In cross examination the mother was taxed, albeit perhaps in terms too general, about the content of the solicitors letter. She agreed that it did not indicate that she and the children would return to Australia in June 2016. She denied that, as at the date of the letter, she had formed an intention to stay with them indefinitely in the UK but, whether in re examination or otherwise, she offered no explanation for what her solicitors had said. In my view the content of the solicitors letter dated 4 November 2015, in support of applications for the children to acquire UK citizenship, represented a major obstacle to any finding that the mother had not by then intended to keep the children indefinitely in the UK. Before making any such finding, the judge was obliged to weigh that evidence and, on some basis or another, to explain it away. But, apart from an early reference to any misleading or inaccurate information set out in that letter, he did not address its content in any way. He said simply: If there is a binding legal principle in relation to anticipatory breach, I do not accept that the circumstances surrounding the childrens applications for British citizenship amount to such a breach. As the father well knew, the children had entered the UK on six month visitors visas. To enable them to stay for the year to which the father had agreed, some step had to be taken to enable them lawfully to remain in the UK beyond 5 November. With respect to the judge, he was there missing the main point and was indeed making an unconvincing subsidiary point. His crucial finding about the mothers intention in November 2015, not even expressly made but to be inferred from his reference to around April 2016, was flawed; and the majority in the Court of Appeal were correct to order that inquiry into it should be conducted again.

This matter centres around a married man and woman who, until 2015, had been living together in Australia with their two children. By the end of 2014 the marriage was in difficulties. The mother, who holds British citizenship, wanted to make a trip to England with the children before returning to work from maternity leave. The father agreed to an eight week stay. The mother and the children came to England on 4 May 2015 where they have since remained. Discussions between the mother and father resulted in the father agreeing to an extension of the eight week visit up to a year. Based on the extension, the mother gave notice to her employer and looked for work in England. In September 2015, the mother enrolled the older child at a local pre school. Without telling the father, on 2 November 2015, she applied for British citizenship for both children who had entered England on six month visitor visas. Her solicitors wrote a letter to the immigration authorities on her behalf indicating that she and the children could not return to Australia for fear of domestic abuse. In continuing correspondence, the father pressed the mother on the childrens expected date of return. The mother indicated that she did not know what her plans were but made clear that she would not be returning in May 2016. In June 2016, she expressed her intention to remain in the UK. The father made an application in the High Court under the Convention of 25 October 1980 on the Civil Aspects of International Child Abduction (the Abduction Convention). The issue of when the mother had decided not to return to Australia was in contention. The mothers own case was that by April 2016 she had felt she and the children would not be returning. The arguments before the Court meant that, on any view, there was a decision not to return to Australia before the expiry of the agreed year. The judge held that the children were habitually resident in England and Wales by the end of June 2016 so that mandatory summary return was unavailable under the Abduction Convention. But he accepted mothers evidence that she did not have the intention, in November 2015, or before April 2016, not to return to Australia. The mother now appeals against the Court of Appeals decision. The issues in the appeal are: (1) what is the effect on an application under the Abduction Convention if a child has become habitually resident in the destination state before the act relied on as a wrongful removal or retention occurs; and (2) if a child has been removed from their home state by agreement with the left behind parent for a limited period can there be a wrongful retention before the agreed period of absence expires (so called repudiatory retention)? The father cross appeals on the issue of habitual residence. The Supreme Court allows the appeal and dismisses the cross appeal. Lord Hughes gives the lead judgment with whom Lady Hale and Lord Carnwath agree. Lord Kerr and Lord Wilson each give judgments concurring on the two points of principle but dissenting on the outcome of this case on its facts. Issue 1 When considering the general scheme of the Abduction Convention, the construction that summary return is available if, by the time of the act relied on as a wrongful removal or retention, a child is habitually resident in the state where the application for return is made is unpersuasive. That construction is inconsistent with the operation of the Abduction Convention since 1980 and its treatment by subsequent international legal instruments. [19] The Abduction Convention is designed to provide a summary remedy which negates the pre emptive force of wrongful removal or retention and to defeat forum shopping. [21] The point of the scheme adopted by the Abduction Convention was to leave the merits to be decided by the courts of the place of the childs habitual residence. If the forum state is the habitual residence of the child, there can be no place for a summary return to somewhere else, without a merits based decision. This understanding of the scheme of the Abduction Convention is reflected in the provisions of both the Revised Brussels II Regulation and the 1996 Hague Convention on Recognition, Enforcement and Cooperation in respect of Parental Responsibility and Measures for the Protection of Children. [23] The Abduction Convention cannot be invoked if by the time of the alleged wrongful act, whether by removal or retention, the child is habitually resident in the state where the request for return is lodged. In such a case, that state has primary jurisdiction to decide on the merits, based on the childs habitual residence, and there is no room for a mandatory summary decision. [34] Issue 2 Repudiatory retention has been recognised in some jurisdictions, but no generally accepted international practice or authority exists on the point. [39] The desirability of inducing a prompt change of mind in the retaining parent is an argument for recognising a repudiatory retention when and if it occurs. The 12 month time limit for seeking mandatory summary return runs from the point a repudiatory retention occurs and that period may pass before an applicant is aware of the repudiatory retention. However, it is not a limitation period but a provision in the childs interest to limit mandatory summary return. Once elapsed it renders a summary return discretionary. The concern that repudiatory retention would make Abduction Convention applications longer and more complicated is a point well made. However, Family Division judges are used to managing applications actively and controlling any tendency to spill outside the relevant issues. Further, if repudiatory retention requires an overt act or statement, this lessens the danger of speculative applications. [46 48] Repudiatory retention is possible in law. The objections to it are insubstantial, whereas the arguments in favour are convincing and conform to the scheme of the Abduction Convention. It would be unwise to attempt an exhaustive definition of proof or evidence. An objectively identifiable act of repudiation is required, but it need not be communicated to the left behind parent nor does an exact date need to be identifiable. [50 51] On the present facts there could not have been a wrongful retention in April 2016 as the mothers internal thinking could not by itself amount to such. If she had such an intention in November 2015, the application to the immigration authorities could have amounted to a repudiatory retention. But it was open to the judge to believe the mothers evidence that she did not possess this intention in November. [55] There is no basis in law for criticising the judges decision as to habitual residence. [57] Lord Kerr dissents on the outcome of this case on its facts. He expresses misgivings about repudiatory retention requiring an overt act by the travelling parent. [63] The judges finding that wrongful retention did not arise in this case could not be reconciled with his statement that the mother had concluded by April 2016 that she and the children should remain in England. [68] Moreover, the judges conclusion that the mother had not formed any intention to retain the children in England in November 2015 is insupportable as he failed to address the question of what bearing the letter of November 2015 had on her intention. [72] Lord Wilson also dissents on the outcome of this case on its facts. The solicitors letter to the immigration authorities in November 2015 represented a major obstacle to any finding that the mother had not by then intended to keep the children in the UK indefinitely. The judges finding as to the mothers intention in November 2015 was flawed and the Court of Appeal were correct to order a fresh inquiry into her intention. [91 92]

8k-16k

This appeal concerns a tax avoidance scheme by which employers paid remuneration to their employees through an employees remuneration trust in the hope that the scheme would avoid liability to income tax and Class 1 national insurance contributions (NICs). The appeal raises a fundamental question about the nature of the income tax charge on employment income. That question is whether an employees remuneration is taxable as his or her emoluments or earnings when it is paid to a third party in circumstances in which the employee had no prior entitlement to receive it himself or herself. HM Revenue and Customs Commissioners (HMRC) assessed the employing companies to income tax and NICs on the sums so paid as remuneration. The employing companies appealed those assessments to the First tier Tribunal (Tax Chamber) (the FTT), whose members were Kenneth Mure QC, Dr Heidi Poon and Scott Rae WS. The FTT, while recognising that the scheme was an aggressive tax avoidance scheme (para 193), held in a decision dated 29 October 2012 (by a majority, being Mr Mure and Mr Rae) that the scheme was effective in avoiding liability to income tax and NICs. This was because the FTT considered the steps in the scheme were not shams and that the employees had received only a loan of the moneys which the employing companies paid to the trusts. The Upper Tribunal (Tax and Chancery Chamber) (Lord Doherty), in a decision dated 8 July 2014, upheld the FTTs decision, because it detected no error of law in the majoritys reasoning. The Advocate General for Scotland on behalf of HMRC appealed to the Inner House of the Court of Session and advanced a legal argument which had not been presented to, or at least had not been developed before, the tribunals, namely that the payment of the sums to the remuneration trust involved a redirection of the employees earnings and accordingly did not exclude those earnings from the charge to income tax. The Inner House (the Lord Justice Clerk (Lord Carloway), Lord Menzies and Lord Drummond Young) upheld that argument and allowed the appeal on 4 November 2015: Advocate General for Scotland v Murray Group Holdings Ltd 2016 SC 201. Of the employing companies only RFC 2012 plc appeals to this court. I will refer to it, along with its previous incorporation which was the Rangers Football Club plc, as RFC. In this judgment I set out my reasons for concluding that this appeal should be dismissed. The tax legislation The employing companies, including RFC, operated the tax avoidance scheme in the tax years between 2001/02 and 2008/09. During that time the legislation for the taxation of emoluments from earnings was replaced by a new enactment. It is therefore necessary to describe the relevant provisions, which are essentially to the same effect, under each of the relevant Acts. In the tax years 2001/02 and 2002/03 the relevant legislation was contained in the Income and Corporation Taxes Act 1988 (as amended) (ICTA). Section 19 of that Act charged income tax under Schedule E on emoluments derived from any office or employment. So far as relevant section 19 provided: Schedule E Tax under this Schedule shall be charged in respect of any office or employment on emoluments therefrom which fall under one or more than one of the following Cases Case1: any emoluments for any year of assessment in which the person holding the office or employment is resident and ordinarily resident in the United Kingdom Emoluments were defined in very wide terms in section 131 of ICTA as including all salaries, fees, wages, perquisites and profits whatsoever. Since 1989, emoluments have been taxed on a receipts basis: section 202A of ICTA provided that income tax shall be charged under Schedule E on the full amount of the emoluments received in the year in respect of the office or employment concerned. Section 202B defined when emoluments were to be treated as received for the purposes of section 202A: so far as relevant it was the earlier of (a) the time when payment is made of or on account of the emoluments or (b) the time when a person becomes entitled to payment of or on account of the emoluments. This legislation was replaced by the Income Tax (Earnings and Pensions) Act 2003 (ITEPA), which governs RFCs liability to income tax on employment income during the relevant tax years from 2003/04 to 2008/09. Section 6 of that Act imposes a tax on employment income, which so far as relevant is on general earnings. Section 7 defines general earnings by reference to section 62 which, so far as relevant, provides: (2) [E]arnings, in relation to an employment, means any salary, wages or fee, (a) any gratuity or other profit or incidental benefit (b) of any kind obtained by the employee if it is money or moneys worth, or (c) the employment. anything else that constitutes an emolument of (3) For the purposes of subsection (2) moneys worth means something that is (a) of direct monetary value to the employee, or (b) capable of being converted into money or something of direct monetary value to the employee. Section 9 of ITEPA, which defines the amount of employment income charged to tax, provides in subsection (2) that, in the case of general earnings, the amount charged is the net taxable earnings from an employment in the year. Employers, who pay emoluments (or earnings after 2003) which are assessable to tax, are required to deduct income tax from their payments to their employees under the pay as you earn (PAYE) regime. Before 2003, section 203 of ICTA provided for the deduction to be made in accordance with regulations, which were the Income Tax (Employments) Regulations 1993 (SI 1993/744) (the 1993 Regulations). Regulation 6 provided that an employer, on making any payment of emoluments to an employee, should deduct tax and regulations 40 to 42 provided that the employer should pay to HMRC the amount of tax which it was liable to deduct. Section 203A of ICTA provided, so far as relevant, that for the purposes of section 203 and the 1993 Regulations payment was treated as made at the earlier of (a) the time when the payment is actually made and (b) the time when a person becomes entitled to the payment. For the tax year 2003/04 and following tax years, section 683 of ITEPA defined PAYE income as any PAYE employment income for the year and section 684 provided for the making of regulations, which became the Income Tax (Pay As You Earn) Regulations 2003 (SI 2003/2682) (the PAYE Regulations). Regulation 21 of the PAYE Regulations requires the employer to deduct income tax on making a relevant payment to an employee. I discuss the meaning of employee in both of these regulations in para 40 below. Regulation 80 of the PAYE Regulations provides that, if it appears to HMRC that there may be tax payable by an employer which has not been paid, HMRC may determine the amount of that tax and serve notice of their determination on the employer. HMRC made its determinations in relation to the employing companies under this regulation. Thus, as Lord Drummond Young stated in delivering the impressive judgment of the court, the central concept in the tax regime governing employment income is the payment of emoluments or earnings derived from employment; and an employer who pays emoluments or earnings to or on account of an employee is obliged to deduct tax in accordance with the PAYE Regulations. Liability to pay Class 1 NICs on earnings in respect of employment was and is governed by section 6 of the Social Security Contributions and Benefits Act 1992 (the 1992 Act). Schedule 1 to the 1992 Act required the employer, who paid earnings to an employed earner, to pay both the employers and the earners Class 1 contributions to HMRC. The parties to the appeal have agreed that the determination of the appeal in relation to income tax will govern liability to NICs. I therefore do not need to consider the legislation relating to NICs any further. The interpretation of tax legislation The legislative code for the taxation of income has developed over time to reflect changing governmental policies in relation to taxation, to remove loopholes in the tax regime and to respond to the behaviour of taxpayers. Such responses include the enactment of provisions to nullify the effects of otherwise successful tax avoidance schemes (or schemes which were apparently successful pending a definitive judicial determination). As a result, the legislative code is not a seamless garment but is in certain respects a patchwork of provisions. Over time, judicial decisions on the interpretation of sections of the tax legislation have assisted in clarifying the boundaries of those provisions. Such decisions have influenced Parliament in the re enactment of legislation. Some judicial decisions, for example, as I discuss in paras 42 44 below, the requirement that a perquisite in section 131 of ICTA be convertible into money, have been definitional. But the courts at the highest level have repeatedly warned of the need to focus on the words of the statute and not on judicial glosses, which may clarify or illustrate in a particular case but do not replace the statutory words. Thus in Hochstrasser v Mayes [1960] AC 376, in which the House of Lords was considering whether an emolument could be said to arise from a taxpayers employment or office, Lord Radcliffe cited various judicial statements and stated (391): These are all glosses, and they are all of value as illustrating the idea which is expressed by the words of the statute. But it is perhaps worth observing that they do not displace those words. Similar advice can be found in the speech of Lord Reid in Laidler v Perry [1966] AC 16, 30, in which he stated: There is a wealth of authority on this matter and various glosses on or paraphrases of the words in the Act appear in judicial opinions, including speeches in this House. No doubt they were helpful in the circumstances of the cases in which they were used, but in the end we must always return to the words in the statute See also the judgment of Lord Russell of Killowen in the Court of Appeal in Brumby v Milner [1976] 1 WLR 29, 34 35 and the speech of Lord Simon of Glaisdale in the House of Lords in that case [1976] 1 WLR 1096, 1099 1100. Another, more recent, judicial development in the interpretation of taxing statutes is the definitive move from a generally literalist interpretation to a more purposive approach. This can be traced to the speech which Lord Nicholls of Birkenhead delivered in the House of Lords in Barclays Mercantile Business Finance Ltd v Mawson [2005] 1 AC 684, in which he explained the true principle established in W T Ramsay Ltd v Inland Revenue Comrs [1982] AC 300 and the cases which followed it. As he explained (para 28), the modern approach to statutory construction is to have regard to the purpose of a particular provision and interpret its language, so far as possible, in a way which best gives effect to that purpose. In the past, the courts had interpreted taxing statutes in a literalist and formalistic way when applying the legislation to a composite scheme by treating every transaction which had an individual legal identity as having its own tax consequences. Lord Nicholls described this approach as blinkered (para 29). Instead, he removed the interpretation of taxing statutes from its literalist enclave and incorporated it into the modern approach to statutory interpretation which the court otherwise adopts. He stated (para 32): The essence of the new approach was to give the statutory provision a purposive construction in order to determine the nature of the transaction to which it was intended to apply and then to decide whether the actual transaction (which might involve considering the overall effect of a number of elements intended to operate together) answered to the statutory description. [T]he question is always whether the relevant provision of the statute, upon its true construction, applies to the facts as found. As Lord Nicholls of Birkenhead said in MacNiven v Westmoreland Investments Ltd [2003] 1 AC 311, 320, para 8: The paramount question always is one of interpretation of the particular statutory provision and its application to the facts of the case. Lord Nicholls (para 34) recognised two features which were characteristic of tax law. First, tax is generally imposed by reference to economic activities or transactions which exist, as Lord Wilberforce said (in W T Ramsay, 326) in the real world. In the Court of Appeal in Barclays Mercantile [2003] STC 66, para 66, Carnwath LJ made the same point: taxing statutes generally draw their life blood from real world transactions with real world economic effects. Secondly, the prodigious intellectual effort in support of tax avoidance results in transactions being structured in a form which will have the same or nearly the same economic effect as a taxable transaction but which it is hoped will fall outside the terms of the taxing statute. He continued: It is characteristic of these composite transactions that they will include elements which have been inserted without any business or commercial purpose but are intended to have the effect of removing the transaction from the scope of the charge. The correct response of the courts was not to disregard elements of transactions which had no commercial value. That, he said, was going too far. Instead the court had, first, to decide, on a purposive construction, exactly what transaction would answer to the statutory description and secondly, to decide whether the transaction in question did so (para 36). Lord Reed in UBS AG v Revenue and Customs Comrs [2016] 1 WLR 1005, para 62, has helpfully summarised the significance of the new approach, which W T Ramsay, as explained in Barclays Mercantile, has brought about, in these terms: First, it extended to tax cases the purposive approach to statutory construction which was orthodox in other areas of the law. Secondly, and equally significantly, it established that the analysis of the facts depended on that purposive construction of the statute. In summary, three aspects of statutory interpretation are important in determining this appeal. First, the tax code is not a seamless garment. As a result provisions imposing specific tax charges do not necessarily militate against the existence of a more general charge to tax which may have priority over and supersede or qualify the specific charge. I return to this point towards the end of this judgment (paras 68 72 below). Secondly, it is necessary to pay close attention to the statutory wording and not be distracted by judicial glosses which have enabled the courts properly to apply the statutory words in other factual contexts. Thirdly, the courts must now adopt a purposive approach to the interpretation of the taxing provisions and identify and analyse the relevant facts accordingly. In this appeal, there is no suggestion that any part of the transaction, which comprised the tax avoidance scheme, was a sham. But that is not the point. The elements of the transaction, which I discuss below, were all genuine and had legal effect, as the majority of the FTT held. In answering the question whether the relevant statutory provisions were intended to apply to the transaction, the proper approach is, first, to interpret the relevant statutory provisions purposively and, secondly, to analyse the facts in the light of those statutory provisions so construed. I seek to do so in para 35 and following. But first I set out the facts. The facts As this is an appeal on a point of law and as the UT did not make separate findings of fact, I derive my summary of the facts from the judgment of the majority of the FTT. Some of those findings are terse and require explanation from the documents which were before the FTT and have been made available to this court. Dr Poon, who wrote the minority judgment, made additional findings of fact, which she derived principally from the documents before her. I do not have regard to her findings in so far as they are inconsistent with those of the majority. I refer to her findings on two occasions, first, where they explain findings by the majority which need clarification (para 29 below) and, secondly, as a check on a conclusion which I have reached based on the majoritys findings (para 27 below). I state below when I am drawing on her findings for these purposes. The employing companies were at all relevant times members of a group of companies whose ultimate parent company is Murray International Holdings Ltd. Since the period with which this appeal is concerned, RFC has been sold out of the Murray group. Other than RFC, the employing companies were Murray Group Holdings Ltd, which is a subsidiary holding company, Murray Group Management Ltd (MGML), which provided management services to the group, the Premier Property Group Ltd, and GM Mining Ltd. MGML by deed dated 20 April 2001 set up a trust known as the Remuneration Trust, which I will refer to as the Principal Trust. A company within the Murray group of companies which wished to benefit one of its employees made a cash payment to the Principal Trust in respect of that employee. When it did so, the employing company recommended the trustee of the Principal Trust to resettle the sum which it paid on to a sub trust and asked that the income and capital of the sub trust should be applied in accordance with the wishes of the employee. The trustee of the Principal Trust had a discretion whether to comply with those requests, but, when an employing company provided the funds, the trustee without exception created a sub trust for the favoured employee. 108 sub trusts were established in the name of individual employees, of which 81 were for RFC employees (footballers and executives) and 27 for other Murray group employees. The group companies also used the combination of the Principal Trust and a sub trust to pay discretionary annual bonuses to employees, other than the footballers whom RFC employed. Since 2005 only RFC used the Principal Trust to remunerate its employees. In this appeal we are concerned only with the sums which RFC paid to the Principal Trust and which were re settled on to a sub trust in accordance with the wishes of each of its employees who took part in the scheme. I discuss employees other than footballers in para 31 below, but first address the operation of the scheme by reference to the footballers. It is instructive to understand (a) how the trust mechanism was established when a footballer was recruited and how the mechanism was explained to the player, (b) the powers over the sub trust which were conferred on the footballer, and (c) how the trustee of the various sub trusts exercised its discretion in operating the arrangement which RFC (and the other Murray group companies) had initiated. The establishment of the trust mechanism: When RFC negotiated the engagement of a footballer with the prospective player or his agent, the discussions focused on the figure net of tax which the footballer would receive. A senior RFC executive would explain the mechanism of creating a sub trust in the name of the employee and the benefits which the trust mechanism would give. In particular, the prospective employee would be told that he could obtain a loan of the sum paid to the sub trust from its trustee which would be greater than a payment net of tax deducted under PAYE if he were to be paid through RFCs payroll. The loan was to be repayable on an extended term of ten years on a discounted basis, that is to say that the player would not pay annual interest on the loan but that the interest would be accrued and applied so that a grossed up sum would be repayable. Both RFC and the footballer expected that the loans would not be repaid at term but would be renewed, as RFCs executive explained to the footballer or his agent that the arrangement had the additional tax advantage that the loans would be repayable out of the footballers estate on death, thereby reducing its value for Inheritance Tax purposes. It was also explained that the player would be appointed as protector of the sub trust, with powers to change both the trustee and also the beneficiaries of the sub trust, as I discuss below. On recruitment of a footballer, the terms of his engagement were recorded in two separate contractual documents. The first was a contract of employment which set out the terms of employment and the footballers remuneration which would be paid subject to deduction of PAYE and NICs. The second was a side letter in which a senior executive of RFC undertook that RFC would (a) recommend to the trustee of the Principal Trust (i) to include the footballer as protector of a sub trust and (ii) to fund the sub trust with the sum or sums which had been agreed in the recruitment negotiation, and (b) fund the Principal Trust to enable the trustee to carry out those recommendations. It is clear from documents, which were before the FTT and were made available to this court as examples of the arrangements, that the sums paid to the Principal Trust and to the sub trusts represented remuneration for employment. In one case, RFC undertook in the side letter to an employee dated 17 June 2004 to pay him free of UK or other taxes the sum which it had undertaken to pay into the Principal Trust for funding the sub trust, if the trustee of the Principal Trust did not make him the protector of the sub trust or fund the sub trust. In another case, we were referred to documents in which a footballers remuneration had been agreed between RFC and his agent in July 2001. The footballers agent recorded his clients remuneration in these terms: Annual Salary 8,000 per week. Contribution to Remuneration trust 8,000 per week namely 416,000 per annum which equates to the sum of 250,000 per annum net. The player will accordingly receive 125,000 in October and February during each year of the Contract. Rangers will grant the appropriate indemnity that they will be responsible for payment of any tax should the revenue seek to recover any tax from the player on these amounts. Thereafter RFC and the footballer entered into a contract of employment which provided for the payment of an annual salary of 416,000 and RFCs finance director sent the footballer a side letter dated 13 July 2001 in which he confirmed that RFC would recommend to the trustee of the Principal Trust to include him as the protector of a sub trust and to fund the sub trust with 125,000 on each occasion in October and February during the period which matched the term of the contract of employment. The majority of the FTT recorded (para 207) that RFC offered the prospective employees this form of deal, combining a payroll payment and the transfer of funds through the trust mechanism on a take it or leave it basis. The Scottish Football Association (SFA) required football clubs to register players contracts with it. RFC registered the contracts of employment but did not disclose the side letters to the SFA. RFC initiated the creation of a sub trust by having the employee complete a letter of wishes, in which the employee, as protector of the sub trust, wrote to the trustee to express his wishes as to the exercise of the trustees discretionary powers. The court was shown examples of such letters, which were in a standardised form, in which the employee asked that the income and capital be held and applied according to his wishes, and that on his death, the trust fund be held for the benefit of a specified member or members of his family. In all but one case, RFC had the employee complete a loan application on his own behalf. The letter of wishes and the loan application were then submitted to the trustee. Messrs Baxendale Walker, the solicitors who devised and operated the scheme for the Murray group, then submitted a standard form of trust deed for the trustee company, in its capacity as trustee of the Principal Trust, to sign in order to create the sub trust. RFC paid its agreed contribution to the Principal Trust; and, on receipt of the funds, the trustee company invariably exercised its discretion to create a sub trust in the name of the employee. The trustee company, in its other capacity as trustee of the sub trusts, almost invariably exercised its discretion to grant a loan of the full amount in the sub trust in response to an employees request. The employees powers over the sub trust: The employee enjoyed extensive powers under the sub trust as its protector. In an example of a sub trust which was shown to the court, clause 7 gave the protector a power, which was stated to be a fiduciary power, to appoint and remove any trustee. Clause 9 gave the protector the power, which again was stated to be a fiduciary power, to alter the provisions of the sub trust. Significantly, that power included the power to change the beneficiaries of the sub trust. The power of alteration was subject to exclusions and required the written consent of the trustee if it was exercised in a manner which would adversely affect the trustee. The employee as protector was also empowered to appoint a protector in his place (clause 1.1.7). The FTT summarised the position (in para 103(v) of the majority decision) in these terms: the employee could also be appointed protector with extended powers in respects resembling trusteeship, but without title to the trust assets, and not enabling the conferring of any absolute beneficial right on the employee himself. This statement by the majority of the FTT is accurate in so far as it states what the employee could do while he was protector. But the employee had, as I have said, a power to appoint someone else as protector in his place and that person as protector had power to alter the beneficiaries of the sub trust. The majority of the FTT recorded (paras 23 and 227) that foreign players who left RFC and moved to reside overseas were able to unscramble the legal framework and receive an absolute right to the moneys which had been put in the sub trust. The majority of the FTT stated that this could be done only with the consents of those interested in the capital of the sub trust concerned. I am not persuaded that that is correct. In some cases, such as the one to which the majority expressly referred, the players wife cooperated with RFC, the trustee and the player to assign the receivables of the sub trust to the player and thus extinguish the loan. But the power of a replacement protector to alter the beneficiaries may have enabled the player to be nominated as the beneficiary and for him in cooperation with the trustee to extinguish the loan and bring the sub trust to an end. Dr Poons more detailed findings on the termination of sub trusts in paras 145 151 of her dissenting decision suggest that this device also was used. The exercise of discretion by the trustee: The initial trustee of the Principal Trust was Insinger Trust Company Ltd, which was resident in Jersey and which later changed its name to Equity Trust (Jersey) Ltd (Equity). Equity was also the trustee of the sub trusts. Both the Principal Trust and the sub trusts are governed by English law. In 2006 MGML replaced Equity with Trident Trust Company Ltd (Trident), another company resident in Jersey, as trustee of the Principal Trust, and transferred the trusteeship of certain sub trusts to it. As I have said, in every case in which an employing company paid money to the Principal Trust, the trustee, whether Equity or Trident, exercised its discretion to create a sub trust. When the employee applied for a loan of the sum paid into the sub trust, the trustee gave the employee a loan of that sum. In no case did the trustee take a security from the employee borrower to protect the repayment of the fund of the sub trust. The majority of the FTT recorded (paras 91, 103(x) and 225) that Equity was replaced as trustee by Trident after Equity had responded to some loan applications by requesting the provision of security and delayed the payment of the loans. It is clear from Dr Poons more detailed findings of fact (paras 50, 60, 166(xiii) and 201) that Equitys request for security was prompted by an investigation by its regulator, the Jersey Financial Services Commission, as to whether the loans were on commercial terms. Tridents managers proved to be more compliant with MGMLs wishes and the majority of the FTT (para 225) described the trustees attitude as lax. The majority recorded (para 225) that the trustee had the benefit of a broad indemnity from MGML; but the majority in its judgment treated the structure of the trust mechanism as important rather than the lax attitude of a particular trustee. RFC used the same trust mechanisms in making termination payments to players and in the payment of guaranteed bonuses. The majority of the FTT discussed these and also certain exceptional cases in paras 206 to 211 of its decision. The other companies in the Murray group, which were respondents before the Court of Session, used the same trust mechanisms and loans when paying discretionary annual bonuses to senior executives. The majority recorded (paras 103(xi) and 205) that these bonuses differed from the footballers bonuses, which were agreed on their engagement, as the senior executives had no contractual right to the bonuses before they were awarded. But the bonuses were paid as a reward for the work which the employees had carried out in their capacity as employees. RFC also used the same mechanisms in paying discretionary bonuses to its senior executives. One director, whose evidence the majority of the FTT accepted, described his understanding that the loan of the funds from the sub trust could be extended after ten years and would ultimately reduce the value of his estate for Inheritance Tax. He had received an indemnity from RFC against any personal tax liability from the arrangement (para 71). The basis of this appeal The majority of the FTT found that the trusts and the loans were valid and were not shams. It refused to hold that the trustee was a cipher and concluded that the trustee genuinely exercised discretion in its appointments upon the sub trusts and the making of the loans. HMRC does not challenge those findings in its defence of this appeal. HMRC succeeded in its appeal before the Inner House on the basis that income, which is derived from an employees work qua employee, is an emolument or earnings, and that it is assessable to income tax, even if the employee requests or agrees that it be redirected to a third party. The Inner House held that the scheme, which involved payments into the Principal Trust and the application of the funds through the sub trusts, amounted to a redirection of the employees earnings and did not remove the employers liability to pay income tax under the PAYE system. It held that the redirection occurred when the employing company paid the sums to the Principal Trust; the fact that the employee took the risk that the trustee would not apply the funds as he requested was irrelevant. The payments by the employing company into the Principal Trust were derived from the employees work as an employee and so were emoluments or earnings. RFC challenges this conclusion. Andrew Thornhill QC submits on its behalf that the Inner House erred in applying what it called the redirection principle in the circumstances of this case. In essence, he asserts that it is not sufficient that the payment of money arises from the performance of the duties of an employment. The payment of money so arising to a third party does not amount to the payment of earnings or emoluments unless the employee already has a legal right to receive the payment and it is paid at his direction to a third party. He submits that the employing companies did not incur liability to pay income tax or NICs because the employees of the Murray group companies never had a right to receive the sums which were paid into the trust mechanism. An employee received only a loan from the trustee of the relevant sub trust and that loan did not fall within the PAYE system. Interpreting the legislation Discussion (i) Income tax on emoluments or earnings is, principally but not exclusively, a tax on the payment of money by an employer to an employee as a reward for his or her work as an employee. As we have seen from the use of the word therefrom in section 19 of ICTA (para 5 above), income tax under Schedule E was charged on emoluments from employment. In other words, it was a tax on the remuneration which an employer pays to its employee in return for his or her services as an employee. This concept also underpins the concept of earnings in ITEPA (para 6 above) which in section 9(2) refers to taxable earnings from an employment and in section 62 defines earnings in relation to an employment. Included in that definition in section 62(2)(c) is the catch all phrase: anything else that constitutes an emolument of the employment. That which was an emolument under prior legislation remains an emolument under ITEPA. What is taxable is the remuneration or reward for services: Brumby v Milner [1976] 1 WLR 29, 35 per Lord Russell of Killowen in the Court of Appeal; [1976] 1 WLR 1096, 1098 1099 per Lord Wilberforce in the House of Lords. That is not in dispute. The central issue in this appeal is whether it is necessary that the employee himself or herself should receive, or at least be entitled to receive, the remuneration for his or her work in order for that reward to amount to taxable emoluments. A careful examination of the provisions of the primary legislation reveals no such requirement. First, section 13 of ITEPA defines the taxable person who is liable for any tax on employment income. Subsection (2) of that section provides: If the tax is on general earnings, the taxable person is the person to whose employment the earnings relate. The employee, whose work gives rise to the remuneration, is taxed, not the recipient of the earnings. This is consistent with the prior history of the tax charge under Schedule E which, as RFC acknowledged in its written case, made the employee the taxable person even if the emoluments were received by a third party. Secondly, the provisions of ICTA and ITEPA, to which I have referred in paras 5 and 6 above, with one exception, do not restrict the concept of emoluments by requiring their payment to a specific recipient. Section 131 of ICTA and section 62(2) of ITEPA define taxable emoluments, but, other than section 62(2)(b) which I discuss in para 45 below, do not specify the recipient. Section 202A of ICTA, which established the receipts basis of the tax charge, spoke of the emoluments received in the year without specifying the recipient and section 202B spoke of the time when a person becomes entitled to payment of or on account of the emoluments (emphasis added). Section 18 of ITEPA, which sets out rules as to when money earnings are received is similarly unspecific as to the identity of the recipient. It provides: (1) General earnings consisting of money are to be treated for the purposes of this Chapter as received at the earliest of the following times Rule 1 The time when payment is made of or on account of the earnings. Rule 2 The time when a person becomes entitled to payment of or on account of the earnings. (Emphasis added) Section 686 of ITEPA contains the same rules for the purposes of the PAYE Regulations. Section 203A of ICTA used a similar formulation in the context of the PAYE regime. Section 203 of ICTA, like the other provisions which I have mentioned, was silent as to the identity of the recipient. I see nothing in the wider purpose of the legislation, which taxes remuneration from employment, which excludes from the tax charge or the PAYE regime remuneration which the employee is entitled to have paid to a third party. Thus, if an employee enters into a contract or contracts with an employer which provide that he will receive a salary of X and that as part of his remuneration the employer will also pay Y to the employees spouse or aunt Agatha, I can ascertain no statutory purpose for taxing the former but not the latter. The breadth of the wording of the tax charge and the absence of any restrictive wording in the primary legislation, do not give any support for inferring an intention to exclude from the tax charge such a payment to a third party which the employer and employee have agreed as part of the employees entitlement. Both sums involve the payment of remuneration for the employees work as an employee. The relevant subordinate legislation points in the same direction. Regulation 21 of the PAYE Regulations speaks of making a relevant payment to an employee and regulation 6 of the 1993 Regulations used similar language (para 7 above). But those provisions in subordinate legislation do not mean that only the employee may receive it. Employee was defined in the 1993 Regulations (regulation 2) as meaning any person in receipt of emoluments. The PAYE Regulations defines employee more narrowly by reference to sections 4 and 5 of ITEPA but it allows for receipt by an other payee which it defines (regulation 2) as a person receiving relevant payments in a capacity other than employee and regulation 12 provides that for the purposes of the PAYE Regulations other payees are treated as employees. I therefore read payment to an employee or essentially similar phrases in the subordinate legislation as a reference to the payment of the employees emoluments whether to the employee or to another person. As a general rule, therefore, the charge to tax on employment income extends to money that the employee is entitled to have paid as his or her remuneration whether it is paid to the employee or a third party. The legislation does not require that the employee receive the money; a third party, including a trustee, may receive it. While that is a general rule, not every payment by an employer to a third party falls within the tax charge. It is necessary to consider other circumstances revealed in case law and in statutory provisions which fall outside the general rule. Those circumstances include: (i) the taxation of perquisites, at least since the enactment of ITEPA, (ii) where the employer uses the money to give a benefit in kind which is not earnings or emoluments, and (iii) an arrangement by which the employers payment does not give the intended recipient an immediate vested beneficial interest but only a contingent interest. As I shall seek to show, in the first circumstance, current legislation requires receipt by the employee; in the second circumstance, there are special rules for the taxation of such benefits; and, in the third circumstance, where on a proper analysis of the facts there is only a contingent right, the taxable earnings or emoluments are not paid by the employer as remuneration until the occurrence of the contingency. The first such circumstance is the taxation of perquisites and profits or, in the updated wording of ITEPA, any gratuity or other profit or incidental benefit. Section 131 of ICTA spoke of perquisites and profits. While in colloquial usage a perk may take many forms, judicial interpretation of tax legislation has long required that the perquisite be capable of being converted into money in order to fall within the tax net under this provision. Three cases in the House of Lords demonstrate this. First, in Tennant v Smith [1892] AC 150, the House of Lords held that a bank manager was not liable to income tax on the use of accommodation in bank premises in Montrose, which he was required to occupy as part of the duties of his employment, because he could not convert any benefit which he obtained from such occupation into money. The arrangement saved the bank manager from incurring expenditure on accommodation; but that was not enough to make the benefit taxable as an emolument. In Abbott v Philbin [1961] AC 352 a majority of the House of Lords held that an employee of a company was liable to income tax on the grant by his employer of an option to purchase shares in that company in the tax year in which the option was granted because the option itself had a monetary value which the employee could realise. Lord Radcliffe described the principle in Tennant v Smith thus (378): if [the benefits] are by their nature incapable of being turned into money by the recipient they are not taxable, even though they are in any ordinary sense of the word of value to him. In Heaton v Bell [1970] AC 728 the House of Lords held by majority that the benefit of the use of a car which an employer provided to its employees under a car loan scheme was taxable either as part of an employees wages, because the contract provided for a deduction from the employees wages to cover the cost of providing the car or, more relevantly, because the car was a perquisite which the employee could turn into money by surrendering it to his employer. These judicial decisions gained statutory expression in section 62 of ITEPA which in subsection (2)(b) provides that earnings include any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or moneys worth and defines moneys worth in subsection (3) which looks to the monetary value of the thing to the employee (para 6 above). Thus, in contrast with the more open definitions of earnings in section 62(2)(a) and (c) (salary, wages or fee and anything else that constitutes an emolument of the employment), Parliament has required that the benefit be obtained by the employee and that it is or is capable of being converted into money or something of direct monetary value to the employee. The Notes on Technical Points, which were annexed to the Bill which became ITEPA, described subsection 2(b) as a significant departure in contrast with the continuity between the statutory concepts of emoluments and earnings (Annex 2, note 13). Section 62(2)(b) and (3) were intended to be the modern equivalent of the prior statutory reference to perquisites and profits whatsoever. It is not clear in principle why such benefits should be restricted to those which are received by and of value to the employee when the other forms of employment earnings are not. The provision may reflect judicial dicta such as in Pook v Owen [1970] AC 244, in which Lord Pearce (259) spoke of perquisites as meaning something that benefits a man by going into his own pocket. That case concerned the question of whether the reimbursement of travel expenses, from which the employee made no profit, was a perquisite, which Lord Guest (255) described as a casual emolument additional to regular salary or wages. The House of Lords held that the reimbursement was not such a perquisite. The question of payment to a third party did not arise. It may be that casual emoluments, such as gratuities, are almost always paid to the employee. But I see no proper basis for reading the other forms of earnings in section 62(2)(a) and (c) in a similarly restrictive way. A second circumstance, which falls outside the general rule, is where the employer spends money to confer a benefit in kind which the recipient cannot convert into money. Such expenditure is not a perquisite or profit, gratuity or incidental benefit for the reasons discussed above and only falls within the income tax regime because of special statutory provision, such as, currently, the benefits code in Part 3 chapters 2 11 of ITEPA, which cover among others the provision of living accommodation, cars or loans and the payment of expenses. Part 7 of ITEPA also has special rules for shares etc acquired in connection with an employment, and Part 6 of that Act is concerned with income which is not earnings or share related. A third circumstance is where the person entitled to receive the sums paid by the employer does not acquire a vested right in those sums until the occurrence of a contingency. This circumstance is illustrated by the case of Edwards v Roberts (1935) 19 TC 618, in which an employing company entered into an employment contract to give an employee, in addition to his salary, an interest in a conditional fund, into which it would make annual payments from its profits, as an incentive for him to advance the companys interests. The employee was entitled to receive the annual income from the fund but had no right to receive any of the capital of the fund other than that which had been held in the fund for five years or more. The contract provided that he would receive the whole fund if he died while still employed by the company or on termination of his employment by the company in specified circumstances. But the contract also provided that the employee would cease to have any right in the conditional fund in circumstances which included his dismissal for misconduct. The trustees of the fund handed over to the employee the investments in the fund when he later resigned with the consent of the company. The employee argued that the sums which the company had paid into the conditional fund formed part of his emoluments in each of the years in which they were paid into the fund. But the Court of Appeal (Lord Hanworth MR, Romer and Maugham LJJ) held that those sums did not constitute his emoluments in those years because he had only a conditional interest in them; instead the value of the investments transferred to him after his resignation were his emoluments in the tax year in which they were transferred to him. The payments in that year reflected his status as an employee at the time when the contingency was fulfilled. In that case the court distinguished the case of Smyth v Stretton (1904) 5 TC 36, in which Channell J had construed an employers scheme, which provided for payments into a provident fund for payment to employees on their retirement, as providing for an agreed application of part of the employees salary and held that the payments into the fund were therefore taxable as emoluments for services provided in the year of payment into the fund. The recent judgment of this court in Forde and McHugh Ltd v Revenue and Customs Comrs [2014] 1 WLR 810, which turned on the wording of provisions in the Social Security Contributions and Benefits Act 1992, is consistent with the approach in Edwards v Roberts in holding that sums paid by an employer, other than out of an employees salary, which were to provide contingent benefits to an employee, did not fall within the charge to NICs on earnings before the occurrence of the contingency and the payment of the benefits. Otherwise, on HMRCs approach to the legislation in question, liability to pay NICs on earnings would have arisen both on payment of sums into the trust and on the later payments of the benefits (if any) from it. Mr Thornhill founds on the case, and in particular on its emphasis in para 17 of the judgment on what the employee received, to support his submission that the payment of remuneration cannot be the payment of emoluments unless the employee is entitled to receive it. But Forde and McHugh Ltd was not concerned with the payment of an employees remuneration to a third party or the provision of that money to the employee without the interposition of any contingency. What the court said in para 17 of that case should be read in its context, which involved (a) the conferring of only a contingent benefit on the employee and (b) (if HMRC had been correct in their submission) the imposition of a double charge, levied both on the settlement of funds on to the pension trust and on receipt of the deferred remuneration from it. The case did not create or support the principle for which Mr Thornhill contends. In summary, the statutory provision for the taxation of what were in the past called perquisites and profits, namely section 62(2)(b) of ITEPA, has confined the tax charge to benefits received by the employee. But there is no such restriction in section 62(2)(a) or (c). In none of the cases, which I have mentioned in paras 42 44, 47 and 48 and on which RFC relies, was the court concerned with the identity of the recipient of the benefit. The focus in each was on the source or the nature of the right which the employee received. Accordingly, the cases do not assist in determining the issue on this appeal. By contrast, the advice of the Privy Council in Hadlee v Comr of Inland Revenue [1993] AC 524 is in point. The appeal concerned income tax legislation in New Zealand. Section 38(2) of the Income Tax Act 1976 provided that income tax was payable by every person on income derived by him during the year for which tax was payable. A partner in an accountancy firm assigned a proportion of his share in the partnership to a trust under which the primary beneficiaries were his wife and child. He sought to argue that he was not liable to income tax on that proportion of his annual partnership income. The New Zealand courts rejected that contention and the Privy Council upheld their decision, holding that income tax was a tax on income which was the product of the taxpayers personal exertion and that the taxpayer could not escape liability to pay that tax by assigning a part of his share in the partnership. While the relevant provision of the New Zealand statute was worded differently from the United Kingdom legislation, the latter, by its emphasis on emoluments arising from a taxpayers employment, adopts a similar concept of the tax charge. It supports the view which I have reached that a charge to income tax on employment income can arise when an arrangement gives a third party part or all of the employees remuneration. As well as ascertaining whether remuneration amounts to emoluments or earnings, it is necessary under the provisions relating to PAYE to determine whether there has been a payment from which deductions were required. In para 11 above, I referred to cases of high judicial authority which warned against misplaced reliance on judicial glosses. Such misplaced reliance has been evident in the case law which led up to this appeal in relation to the concept of payment. In Garforth v Newsmith Stainless Ltd [1979] 1 WLR 409 Walton J addressed the meaning of payment in the context of the statutory provisions and regulations which then set out the PAYE system. In the tax year 1974/75 a taxpayer company voted to award bonuses to its two directors and controlling shareholders and credited the sums to accounts with the company from which the directors were free to draw. The directors did not draw on those sums. The Inland Revenue assessed the company to tax, arguing that the company should have deducted tax under the PAYE system on the full sums credited to those accounts. Walton J, upholding the revenues assessment, said (412G) that the word payment had no one settled meaning but took its colour from its context. He held that there was no need for the directors to withdraw the money from their loan accounts for there to have been payment by the company, stating (414A B) when money is placed unreservedly at the disposal of directors by a company, that is equivalent to payment. He held (415C E) that different considerations would have arisen if the company had required a further decision by the board of directors or by the shareholders in general meeting before the money could have been withdrawn. In my view, the interpretation or gloss which Walton J placed on payment (money placed unreservedly at the disposal ) was a practical and sensible one in the context of the circumstances which he was addressing, which later became the subject of statutory provision in section 202B of ICTA. That interpretation or gloss was also adopted by the Inner House in Aberdeen Asset Management plc v Revenue and Customs Comrs 2014 SC 271 in analysing the nature of the rights which a tax avoidance scheme, involving an offshore employee benefits trust and family benefit trusts and shares in Isle of Man companies, had conferred on the relevant employees. By the time the case reached the Inner House, the employing company had accepted that the sums which it had paid though the employee benefits trust to an Isle of Man company were taxable as emoluments and that the scheme was ineffective to reduce the value of those emoluments. The question was whether the employing company was liable to pay the tax under the PAYE system or the benefited employees individually should pay. The issue, to which the gloss was unexceptionably applied, was whether the money in an Isle of Man company, whose shares the employee had acquired through the scheme, was to be treated as being received by the employee so that there was payment within the meaning of section 203 of ICTA and the 1993 Regulations. Lord Drummond Young, having cited Walton Js judgment in Garforth, stated (para 34): In considering what amounts to payment for the purposes of the PAYE legislation, it is important in my opinion to bear in mind that money is a medium of exchange. In practical terms, therefore, the crucial question is whether funds have been placed in a position where as a practical matter they may be spent by the employee as he wishes; it is at that point that the employee can be said to obtain the benefit of those funds. If the PAYE legislation is construed purposively it is in my view obvious that it is such a benefit that is to be taxed. For this purpose it is not appropriate to deconstruct the precise legal nature of the employees rights, drawing fine distinctions according to the methods that he must adopt in order to use the funds for his benefit. The fact that the employee has practical control over the disposal of the funds is sufficient to constitute a payment for the purposes of the legislation. See also the Lord President (Lord Gill) (para 7) and Lord Glennie (paras 65 66). The Inner House did not have to address the argument which HMRC has advanced in this appeal that a payment of an employees emoluments to a third party, including a trustee, could be covered by the PAYE system. The gloss is no basis for establishing a general rule or principle that a payment is made for the purposes of PAYE only if the money is paid to or at least placed unreservedly at the disposal of the employee. Yet it has been so used. In Sempra Metals Ltd v Revenue and Customs Comrs [2008] STC (SCD) 1062 one of the issues which the Special Commissioners had to address was whether payments by the taxpayer company of senior employees bonuses into an employee benefit trust involved the payment of earnings for the purposes of PAYE. In 1995 the company established the trust by deed of settlement in order to provide tax efficient benefits to its employees. The employees could choose to take their annual bonuses in cash or have them paid to the trust. Each employee had the choice of taking the amount allocated to him as a loan or leaving it invested in the trust. No application for a loan was ever refused by the trustee. After changes were made by the Finance Act 2003 which prevented the deduction from profits for the purpose of corporation tax of sums paid into such trusts unless they gave rise to an income tax charge on employment income and a liability to pay NICs, the company replaced the employee benefit trust with a family benefit trust. The beneficiaries of the family benefit trust were members of the employees family as nominated by the employee and the trust operated in a very similar way to the earlier trust. Counsel for the taxpayer company submitted that the employees had received loans and not earnings or emoluments and the trustee had exercised the discretion subject to which it held the funds. Counsel for HMRC argued that the payments to the trusts became emoluments and earnings when they vested unconditionally in the employees and that occurred when the trustee allocated amounts to the individual employees or their nominated beneficiaries. He referred to Garforth for the principle that money placed unreservedly at the disposal of an employee amounted to payment. That was one of the principles which the special commissioners adopted in their reasoning, holding (para 142) that the existence of the trusts, the continuing discretion of the trustee and the existence of the loans, in those cases in which loans were made, meant that the employees were not free to do whatever they liked with the funds allocated to them. They concluded (para 144): When the appellant made payments to the trusts, no transfer of cash or its equivalent was placed unreservedly at the disposal of the employees. That means that there was no payment by the appellant of emoluments or earnings giving rise to an obligation to deduct income tax and pay it to the Revenue. The special commissioners (para 147) reached the same conclusion in relation to NICs. In my view, for the reasons discussed above, Sempra Metals was wrongly decided. HMRC had earlier taken the same approach in its arguments before the special commissioners in Dextra Accessories Ltd v Macdonald (Inspector of Taxes) [2002] STC (SCD) 413, which concerned an employee benefit trust into which a company transferred the bulk of the remuneration of its three director shareholders. In that case the special commissioners rejected the assertion that funds which an employer contributed to an employee benefit trust and which its trustee allocated to trust sub funds were at the absolute disposal of the employees. They held that the trustee would have to exercise its discretion and appoint the funds absolutely to the employees as beneficiaries of the sub trust before those funds could be at the employees absolute disposal. From that conclusion the special commissioners inferred that the sums were not subject to income tax, holding (para 17): The reason why the employees are not taxed on funds in the EBT is simply that they do not belong to the employees. For the reasons set out above I do not agree with this conclusion. But their decision on this issue was not appealed and the special commissioners decision on the deductibility of the companys expenditure for the purpose of corporation tax was reversed by the House of Lords: (2003) 77 TC 146. It is therefore sufficient to note that the special commissioners were not presented with the arguments which HMRC advanced in this appeal before the Inner House and this court. In summary, (i) income tax on emoluments or earnings is due on money paid as a reward or remuneration for the exertions of the employee; (ii) focusing on the statutory wording, neither section 131 of ICTA nor section 62(2)(a) or (c) of ITEPA, nor the other provisions of ITEPA which I have quoted (except section 62(2)(b)), provide that the employee himself or herself must receive the remuneration; (iii) in this context the references to making a relevant payment to an employee or other payee in the PAYE Regulations fall to be construed as payment either to the employee or to the person to whom the payment is made with the agreement or acquiescence of the employee or as arranged by the employee, for example by assignation or assignment; (iv) the specific statutory rule governing gratuities, profits and incidental benefits in section 62(2)(b) of ITEPA applies only to such benefits; (v) the cases, to which I have referred above, other than Hadlee, do not address the question of the taxability of remuneration paid to a third party; (vi) Hadlee supports the view which I have reached; and (vii) the special commissioners in Sempra Metals (and in Dextra) were presented with arguments that misapplied the gloss in Garforth and erred in adopting the gloss as a principle so as to exclude the payment of emoluments to a third party. Parliament in enacting legislation for the taxation of emoluments or earnings from employment has sought to tax remuneration paid in money or moneys worth. No persuasive rationale has been advanced for excluding from the scope of this tax charge remuneration in the form of money which the employee agrees should be paid to a third party, or where he arranges or acquiesces in a transaction to that effect. Having adopted this purposive construction of the legislation, I turn to apply it to the facts of this appeal. (ii) Applying the legislation to the facts Having set out the law in some detail above, I can be brief in applying it to the facts as found by the majority of the FTT. The payment of money into the Principal Trust was a component of the remuneration of the footballers and other employees. I address first the footballers. The arrangement which led to the two contracts, being the contract of employment and the side letter relating to the trust arrangement, were negotiated between senior managers of RFC on the one hand and the footballers or their agents on the other. The focus of the discussions was on the net remuneration which would be made available to the footballer. Every time a footballer wanted to use the money provided to his sub trust, he was given a loan by the sub trust. Thus, as envisaged by the negotiation, the footballer was able to gain access to the cash when he wanted it. The expectation of both employer and employee was that the employee would not have to repay the loan while he lived and thus he would be able to gain an inheritance tax benefit through the diminution of his estate by the combination of the outstanding loan and its accrued interest. See paras 21 24 above. The assets of the sub trust, which were almost always the loan and the accruing interest, were held in trust for the benefit of members of the footballers family whom he had selected. Thus the funds available on repayment of the loan would go to his family. The footballer as protector of the sub trust could determine who the trustees of the sub trust were and also who were its beneficiaries. See paras 25 27 above. It was necessary for the operation of the scheme as the parties intended that the trust administration was lax, not least in the provision of the entire fund of a sub trust to the employee in the form of a loan without taking measures to secure its repayment. When the Jersey regulator caused Equity to tighten up the terms on which a sub trust provided loans, Equity was replaced by the more compliant Trident. See paras 28 and 29 above. The relevant provisions for the taxation of emoluments or earnings were and are drafted in deliberately wide terms to bring within the tax charge money paid as a reward for an employees work. The scheme was designed to give each footballer access without delay to the money paid into the Principal Trust, if he so wished, and to provide that the money, if then extant, would ultimately pass to the member or members of his family whom he nominated. Having regard to the purpose of the relevant provisions, I consider the sums paid to the trustee of the Principal Trust for a footballer constituted the footballers emoluments or earnings. There was a chance that the trust company as trustee of the Principal Trust might not agree to set up a sub trust and there was a chance that as trustee of a sub trust it might not give a loan of the funds of the sub trust to the footballer. But that chance does not alter the nature of the payments to the trustee of the Principal Trust. In applying a purposive interpretation of a taxing provision in the context of a tax avoidance scheme it is legitimate to look to the composite effect of the scheme as it was intended to operate. In Inland Revenue Comrs v Scottish Provident Institution [2004] 1 WLR 3172 Lord Nicholls stated (para 23): The composite effect of such a scheme should be considered as it was intended to operate and without regard to the possibility that, contrary to the intention and expectations of the parties, it might not work as planned. The footballers, when accepting the offer of higher net remuneration through the trust scheme which the side letters envisaged, were prepared to take the risk that the scheme might not operate as planned. The fact that the risk existed does not alter the nature of the payment to the trustee of the Principal Trust. The bonuses which RFC and the other employing companies gave their executives were made available through the same trust mechanisms. See para 31 above. The employees had no contractual entitlement to the bonuses before their employers decided to give them but that does not alter the analysis of the effect of the scheme. The fact that bonuses were voluntary on the part of the employer is irrelevant so long as the sum of money is given in respect of the employees work as an employee: Blakiston v Cooper [1909] AC 104, 107 per Lord Loreburn LC, Hartland v Diggines [1926] AC 289, 291 per Viscount Cave LC. For the same reasons as those which cause the footballers remuneration paid to the Principal Trust to be subject to taxation, the bonuses which were paid to the employees though the trust mechanism fall within the tax charge as emoluments or earnings when paid to the Principal Trust. In agreement with Lord Drummond Young, I consider that the PAYE system can operate without difficulty. The trustee of the Principal Trust is the person in receipt of the emoluments or earnings and payment to it should have been subject to deduction of income tax under the 1993 Regulations and now under the PAYE Regulations. See paras 38 and 39 above. The constraints of the statutory tax code? For completeness, I should explain why I am not persuaded by the assertion that other provisions in tax legislation militate against the view to which I have come. The majority of the FTT thought that a purposive approach to the interpretation of emoluments or earnings was curtailed by the existence of a highly prescriptive statutory code and by the legal effect of the trust arrangements and loans (paras 191 and 193). The creation of a trust structure can give rise to charges to income tax on trust income and, other things being equal, employment related loans can be the subject of a specific tax charge under Part 3 chapter 7 (sections 173 191) of ITEPA and formerly under Part V chapter 2 (sections 160 161B) of ICTA. But the taxation of income earned by the assets of a trust is the taxation of a separate source of income from a persons emoluments or earnings and is therefore irrelevant. The specific provisions for the taxation of employment related loans have the effect of deeming the benefit of the loans to be emoluments. But if, on a proper analysis, the sums paid into the Principal Trust are emoluments in the first place, these provisions cannot apply as otherwise the taxpayer would taxed twice on part of the same earnings. I agree with Dr Poon in her dissenting judgment in the FTT when she stated (para 181) that the legislative code for emoluments has primacy over the benefits code in relation to loans. I also agree with the conclusion of the FTT in Sloane Robinson Investment Ltd v Revenue and Customs Comrs [2012] UKFTT 451 (TC), [2012] SFTD 1181 (para 93): it suffices to say that in these circumstances [the provisions of Part 7 of ITEPA (which covered income related securities)] cannot apply to a situation which is already covered by sections 18 and 686 of the Act. Part 7A of ITEPA was introduced by the Finance Act 2011 (section 26 and Schedule 2) and is designed to tax as employment income, among other things, the value of loans provided by third parties to employees under arrangements to reward employment. This legislation appears to have removed many of the benefits which some believed that the tax scheme gave. More recently, the Finance Act 2017 (section 15 and Schedule 6) has amended Part 7A of ITEPA. But these provisions, which are designed further to counter tax avoidance schemes, cannot affect the interpretation of prior tax legislation. Finally, section 154 of ICTA imposed a charge on the provision of benefits to members of the family or household of a person employed as a director of a company or with emoluments of 8,500 or more. But it does not militate against the interpretation which I have favoured because it is a residual charge to tax and applies only if the cost of providing the benefit is not otherwise chargeable to tax: section 154(1)(b). The current residual liability to a tax charge on such a benefit is in chapter 10 of Part 3 of ITEPA, section 201(2). I am therefore satisfied that the purposive approach to the interpretation of the general provisions of ICTA and ITEPA in relation to emoluments or earnings is not excluded by these provisions. Disposal For these reasons, which are essentially the same as those of the Inner House, I would dismiss the appeal.

RFC 2012 Plc (RFC) was a member of a group of companies whose parent company was Murray International Holdings Ltd. By a deed dated 20 April 2001, Murray Group Management Ltd, which was also a member of the group, set up a trust known as the Remuneration Trust (the Principal Trust). When a group company wished to benefit an employee it made a payment to the Principal Trust. On payment, the employing company asked the trustee of the Principal Trust to resettle the sum on to a sub trust and requested that the sub trust income and capital should be applied in accordance with the employees wishes. The trustee of the Principal Trust had a discretion whether to comply with those requests, but, in practice, the trustee without exception created the requested sub trust. The employee was appointed as protector of the sub trust with the power to change its beneficiaries. When RFC negotiated the engagement of a footballer, RFC would explain the sub trust mechanism, in particular, that the prospective employee could obtain a loan of the sum paid to the sub trust from its trustee which would be greater than the payment net of tax deducted under PAYE if he were to be paid through RFCs payroll. The trust fund would be held for the benefit of the beneficiaries of the sub trust, being members of the footballers family whom he specified. On the footballers death, the loans and interest would be repayable out of his estate, thereby reducing its value for Inheritance Tax purposes. RFC used the same mechanisms in paying discretionary bonuses to its senior executives. The Income Tax (Earnings and Pensions Act) 2003 (ITEPA) governs RFCs liability to income tax on employment income during the relevant tax years from 2003/04 to 2008/09. Section 6 imposes a tax on general earnings. Section 7 defines general earnings by reference to section 62. Section 62(2) provides [E]arnings, in relation to an employment, means (a) Any salary, wages or fee, (b) Any gratuity or other profit or incidental benefit of any kind obtained by the employee if it is money or moneys worth, or (c) Anything else that constitutes an emolument of the employment. The Income and Corporation Taxes Act 1988 (ICTA) applied in the tax years 2001/02 and 2002/003. The relevant provisions in ICTA, under which income tax is charged on emoluments, are essentially to the same effect as those in ITEPA. In accordance with the Income Tax (Employments) Regulations 1993 and the Income Tax (Pay As You Earn) Regulations 2003 (the PAYE Regulations), employers who pay emoluments or earnings which are assessable to tax are required to deduct income tax from their payments to their employees under the pay as you earn (PAYE) regime. Under the PAYE Regulations, HM Revenue and Customs Commissioners determined that RFC had failed to pay income tax and National Insurance Contributions (NICs) on the sums paid to the trusts as remuneration. The parties to the appeal agreed that the determination of the appeal in relation to income tax governs the liability to NICs. The First tier Tribunal (the FTT) held that the scheme was effective in avoiding liability to income tax and NICs because the employees had only received a loan of the moneys paid to the trusts. The Upper Tribunal (Tax and Chancery Chamber) upheld the FTTs decision. The Inner House allowed HMRCs appeal. It held that income derived from an employees work is assessable to income tax, even if the employee agrees that it be redirected to a third party. The central issue in this appeal is whether it is necessary that the employee should himself or herself receive, or at least be entitled to receive, the remuneration for his or her work in order for that payment to amount to taxable earnings. The Supreme Court unanimously dismisses RFCs appeal. Lord Hodge gives the judgment, with which the other Justices agree. Three aspects of statutory interpretation are important in determining this appeal. First, provisions in the tax code imposing specific tax charges do not militate against the existence of a more general charge to tax which may have priority over or qualify the specific charge. Secondly, it is necessary to pay close attention to the statutory wording and not be distracted by judicial glosses which have enabled the court to apply the statutory words in other factual contexts. Thirdly, a purposive approach to the interpretation of the taxing provisions must be adopted [15]. As a general rule, the charge to tax on income extends to money that the employee is entitled to have paid as remuneration irrespective of whether it is paid to the employee or to a third party [41]. The relevant ICTA and ITEPA provisions do not restrict the concept of earnings by requiring payment to a specific recipient [38]. Section 62(2)(b) ITEPA confines the charge on perquisites and profits to benefits received by the employee, but there is no such restriction in section 62(2)(a) or 62(2)(c) [49]. Nothing in the wider purpose of the legislation excludes from the tax charge remuneration which the employee is entitled to have paid to a third party [39]. Parliament has sought to tax remuneration paid in money or moneys worth. There is no rationale for excluding from the scope of this tax charge remuneration in the form of money which the employee agrees should be paid to a third party [59]. For the purposes of PAYE it is necessary to determine whether there has been a payment of earnings from which deductions were required. Misplaced reliance on judicial glosses in relation to the concept of payment is evident in the case law leading up to the appeal [51]. There is no basis for establishing a general rule that a payment is made for the purposes of PAYE only if the money is paid to or at least placed unreservedly at the disposal of the employee [54]. The references to making a relevant payment to an employee or other payee in the PAYE Regulations fall to be construed as payment either to the employee or to the person to whom payment is made with the agreement of the employee [58]. The sums paid to the trustee of the Principal Trust for a footballer constituted the footballers earnings [64]. The risk that the trustee might not set up a sub trust or give a loan of the sub trust funds to the footballer does not alter the nature of the payments made to the trustee of the Principal Trust [65]. The discretionary bonuses made available to RFCs employees through the same trust mechanisms also fall within the tax charge as these were given in respect of the employees work [66]. Payment to the Principal Trust should have been subject to deduction of income tax under the PAYE Regulations [67]. As the sums paid into the Principal Trust were earnings in the first place, the specific provisions of the tax code which deem the benefit of loans to be earnings cannot apply [69].

8k-16k

The respondent Mr Frank Perry is a retired miner. Like very many of his colleagues he had, by the time he ceased working underground in 1994, been afflicted with a condition known as Vibration White Finger (VWF) , which is a particular type of a wider species of condition affecting the hand and the upper limbs collectively known as Hand Arm Vibration Syndrome (HAVS), caused by excessive exposure to the effects of using vibratory tools. One symptom of these conditions can be a reduction in grip strength and manual dexterity in the fingers. A common although not invariable consequence is that the sufferer from these conditions becomes unable, without assistance, to carry out routine domestic tasks such as gardening, DIY or car maintenance. A group of test cases, representative of some 25,000 similar claims, established that there had been negligence on the part of the National Coal Board, later British Coal, in failing to take reasonable steps to limit the exposure of employed miners to VWF from the excessive use of vibratory tools: see Armstrong v British Coal Corpn [1998] EWCA Civ1359 [1998] CLY 975. As a result, the Department for Trade and Industry (which had by then assumed responsibility for British Coals relevant liabilities) set up a scheme (the Scheme) in 1999 to provide tariff based compensation to miners who had been exposed to excessive vibration and had therefore suffered from VWF. The Scheme was administered pursuant to a Claims Handling Arrangement (CHA) dated 22 January 1999, and made between the DTI and a group of solicitors firms representing claimant miners suffering from VWF. The central objective of the CHA was to enable very large numbers of similar claims, having a common originating cause in British Coals systemic negligence, to be presented, examined and resolved both effectively and at proportionate cost. The Scheme contemplated the making of two main types of compensatory award to miners suffering from VWF, corresponding broadly with general and special damages for personal injuries. Pursuant to a Services Agreement dated 9 May 2000, the special damages could include a Services Award to qualifying miners. This depended upon the claimant establishing what has come to be known as the factual matrix, namely: That before he developed VWF he undertook one or more of six i) routine domestic tasks (the six tasks), without assistance; ii) That he could no longer undertake those tasks without assistance by reason of his VWF; and iii) That he had received the necessary assistance with those tasks from others. The six tasks may be summarised as: 1) Gardening 2) Window cleaning 3) DIY 4) Decorating 5) Car washing 6) Car maintenance Qualification for a general damages award required the claimant miner to undertake a medical interview and examination designed to establish, against an internationally recognised scale, the severity of his VWF. Those shown to be sufferers at certain high levels of severity were then also entitled to a rebuttable presumption, in their favour, that they satisfied the qualifying requirements for a Services Award, but they were required nonetheless to demonstrate, by completion of a standard form questionnaire, which of the six tasks they had undertaken without assistance before developing the VWF, and which of the tasks they were no longer able to undertake without assistance. The Scheme provided for a relatively light touch system of checking claims for Services Awards by the claims handlers, which included questionnaires to be filled in by those assisting the claimant in performing the six tasks and short telephone interviews, usually with one or more of the assistants, rather than with the claimant himself. Compensation was then payable to qualifying claimants in accordance with a detailed index linked tariff. Proportionate deductions from the tariff amounts were also liable to be made if the claimants reduced ability to perform the six tasks unaided was caused in part by other contributory medical conditions. For this purpose, claimants were required to undertake a further medical examination for the purpose of the assessment of co morbidity, as it was described. Again, the amount of the reductions (if any) from the full Services Award was determined in accordance with a tariff based upon the medical examiners certification of relevant co morbid conditions on a scale ranging between nil, material, moderate, serious and complete. Mr Perrys claim Mr Perry retained the appellant solicitors firm Raleys to pursue a VWF claim on his behalf in October 1996, before the setting up of the Scheme. Following the making of the CHA, his claim continued under the Scheme. In October 1997 Professor Kester reported, after an interview and examination of Mr Perry, that he suffered from VWF, with ratings (or stagings in the jargon of the Scheme) of 3V and 3Sn bilaterally (that is, in both hands). Those stagings were sufficient both for Mr Perry to obtain general damages and to have entitled him to a presumption in his favour, of the type described above, in the event that he chose to seek a Services Award. In the event however, Mr Perry settled his claim in November 1999 for payment of general damages only, in the sum of 11,600, and made no claim for a Services Award within the available time frame. Much later, in February 2009, he issued professional negligence proceedings against Raleys, claiming that by reason of their negligent failure to give him appropriate advice, he had lost the opportunity to claim a Services Award, in respect of all of the six tasks, which he quantified in the sum of 17,300.17 plus interest. He asserted that he had performed all the six tasks without assistance before developing VWF, and that he had needed assistance with all those tasks thereafter, which had been provided by his two sons and his wife. In response, Raleys denied a breach of duty and separately denied that any breach (if proved) would have caused Mr Perry any loss. They alleged also that Mr Perrys claim against them was statute barred. Breach of duty was admitted shortly before the trial. The trial judge, Judge Saffman, rejected the limitation defence on its merits. After a two day trial, which included cross examination of Mr Perry, his wife and his two sons, the judge concluded that Mr Perry had failed to prove that Raleys admitted negligent advice had caused him any loss. This was because, in summary, the judge found that the VWF from which Mr Perry was suffering when he settled his claim had not caused him any significant disability in performing any of the six tasks without assistance, sufficient to have enabled him to make an honest claim for a Services Award. He therefore dismissed Mr Perrys claim with costs. In his detailed and lucid reserved judgment (circulated to the parties within ten days of the trial) Judge Saffman explained that it was Mr Perrys complete lack of credibility as a witness that had led to his finding that he would not have been able to make an honest claim for a Services Award. His evidence that he was unable to perform the six domestic tasks without assistance was undermined by his medical records, which showed that he had made no complaint of lack of manual dexterity at the relevant time, by evidence (including photographs) of him engaging in fishing at a time when he said he had given it up due to his manual disability, and by his failure to offer any credible explanation of those disparities between his case and that evidence, when cross examined about them at length. The judge found that the evidence from his family lacked sufficient credibility to rescue Mr Perry from his difficulties, and that the medical evidence, while supportive of his case, was insufficient to swing the balance in Mr Perrys favour. The judge nonetheless thought it appropriate to assist by setting out the findings which he would have made as to the quantum of Mr Perrys claim, if he had been wrong in rejecting his case on causation. He did so, no doubt, with a view to minimising the risk that an expensive re trial would be necessary if an appellate court concluded that causation had been established. A main plank in Raleys defence had been that, even if Mr Perry was to a significant extent incapacitated in performing the six domestic tasks without assistance at the relevant time, this was the result of a chronic back problem, rather than VWF. A single joint medical expert, Mr Tennant, had advised that in his view the contribution made to Mr Perrys relevant disability by back troubles lay between moderate and mild, on the co morbidity scale adopted by the Scheme. On the assumption that he had been wrong in his primary finding that Mr Perry was not hindered by VWF in performing the six tasks unaided, he held that he would not depart from Mr Tennants co morbidity assessment. Finally, and again on the same assumption that he had been wrong about causation, the judge assessed the prospects of success in a Services Award claim, after being discounted by co morbidity in accordance with the Schemes tariff, at 80%. On Mr Perrys appeal the Court of Appeal reversed the trial judge on causation, and concluded that his alternative findings as to quantum were sufficiently reliable to make it unnecessary to direct a re trial: [2017] EWCA Civ 314. Accordingly, they assessed Mr Perrys damages in the same amount as the judge would have assessed them, had he been wrong about causation, namely 14,556.15 plus interest, plus additional amounts pursuant to CPR Part 36. The Court of Appeal reversed the judge on four grounds, two of which amounted in their view to errors of law, and the remaining two to shortcomings in his appraisal of, and conclusions based upon, the evidence. It is convenient to take the errors of law first. The Court of Appeal held first that the judge had, in addressing the issue of causation, wrongly conducted a trial within a trial of the very question which would have arisen if Mr Perry had made a claim for a Services Award, namely whether in fact (after he ceased work as a miner) he needed assistance, due to his VWF, in carrying out the six domestic tasks which he had previously been able to carry out unaided. Secondly, the Court of Appeal concluded that the judge wrongly imposed the burden upon Mr Perry to prove that fact on the balance of probabilities. This approach was, in the view of the Court of Appeal, contrary to well settled authority about the burden upon a claimant in relation to causation, following a breach by a professional person of a duty of care. The Law about Causation in Professional Negligence cases The assessment of causation and loss in cases of professional negligence has given rise to difficult conceptual and practical issues which have troubled the courts on many occasions. The most recent example at the level of this court is Gregg v Scott [2005] UKHL 2; [2005] 2 AC 176 in which the House of Lords had to wrestle with the intractable question whether negligent medical advice, which reduced the patients prospects of long term survival from cancer from 42% to 25%, sounded in damages when, probably, he would have died anyway, even if competently treated. Commonly, the main difficulty arises from the fact that the court is required to assess what if any financial or other benefit the client would have obtained in a counter factual world, the doorway into which assumes that the professional person had complied with, rather than committed a breach of, his duty of care. The everyday task of the court is to determine what, in fact, happened in the real world rather than what probably would have happened in a what if scenario generally labelled the counter factual. Similar difficulties arise where the question of causation or assessment of damage depends upon the court forming a view about the likelihood of a future rather than past event. In both those types of situation (that is the future and the counter factual) the court occasionally departs from the ordinary burden on a claimant to prove facts on the balance or probabilities by having recourse to the concept of loss of opportunity or loss of a chance. Sometimes the court makes such a departure where the strict application of the balance of probability test would produce an absurd result, for example where what has been lost through negligence is a claim with substantial but uncertain prospects of success, where it would be absurd to decide the negligence claim on an all or nothing basis, giving nothing if the prospects of success were 49%, but full damages if they were 51%: see Hanif v Middleweeks (a firm) [2000] Lloyds Rep PN 920 per Mance LJ at para 17. A further reason why this is a generally unrealistic approach is that most claims with evenly balanced prospects of success or failure are turned into money by being settled, rather than pursued to an all or nothing trial. Sometimes it is simply unfair to visit upon the client the same burden of proving the facts in the underlying (lost) claim as part of his claim against the negligent professional. This may be because of the passage of time following the occasion when, with competent advice, the underlying claim would have been pursued. Sometimes it is because it is simply impracticable to prove, in proceedings against the professional, facts which would ordinarily be provable in proceedings against the third party who would be the defendant to the underlying claim. Disclosure and production of relevant documents might be impossible, and the obtaining of relevant evidence from witnesses might be impracticable. The same departure from the practicable likelihood that the underlying claim would have been settled rather than tried is inherent in any such process of trial within a trial. But none of this means that the common law has simply abandoned the basic requirement that a claim in negligence requires proof that loss has been caused by the breach of duty, still less erected as a self standing principle that it is always wrong in a professional negligence claim to investigate, with all the adversarial rigour of a trial, facts relevant to the claim that the client has been caused loss by the breach, which it is fair that the client should have to prove. For present purposes the courts have developed a clear and common sense dividing line between those matters which the client must prove, and those which may better be assessed upon the basis of the evaluation of a lost chance. To the extent (if at all) that the question whether the client would have been better off depends upon what the client would have done upon receipt of competent advice, this must be proved by the claimant upon the balance of probabilities. To the extent that the supposed beneficial outcome depends upon what others would have done, this depends upon a loss of chance evaluation. This sensible, fair and practicable dividing line was laid down by the Court of Appeal in Allied Maples Group Ltd v Simmons & Simmons (a firm) [1995] 1 WLR 1602, a decision which received surprisingly little attention in either of the courts below (although, in fairness, the trial judge cited another authority to similar effect: namely Brown v KMR Services [1995] 4 All ER 598). Allied Maples had made a corporate takeover of assets and businesses within the Gillow group of companies, during which it was negligently advised by the defendant solicitors in relation to seeking protection against contingent liabilities of subsidiaries within the vendors group. Allied Maples would have been better off, competently advised, if, but only if: (a) it had raised the matter with Gillow and sought improved warranties and (b) Gillow had responded by providing them. The Court of Appeal held that Allied Maples had to prove point (a) on a balance of probabilities, but that point (b) should be assessed upon the basis of loss of the chance that Gillow would have responded favourably. The Court of Appeal (Stuart Smith, Hobhouse and Millett LJJ) were unanimous in that statement of legal principle, although they differed as to the outcome of its application to the facts. It was later approved by the House of Lords in Gregg v Scott, at para 11 by Lord Nicholls and para 83 by Lord Hoffmann. The Allied Maples case was about the loss, due to negligence, of the opportunity to achieve a more favourable outcome in a negotiated transaction, rather than about the loss of an opportunity to institute a legal claim. But there is no sensible basis in principle for distinguishing between the two, and none was suggested in argument. In both cases the taking of some positive step by the client, once in receipt of competent advice, is an essential (although not necessarily sufficient) element in the chain of causation. In both cases the client will be best placed to assist the court with the question whether he would have taken the requisite initiating steps. He will not by the defendants breach of duty be unfairly inhibited in proving at a trial against his advisor that he would have done so, save perhaps where there is an unusual combination of passage of time and scarcity of other probative material, beyond his own unaided recollection. Two important consequences flow from the application of this balance of probabilities test to the question what the client would have done, in receipt of competent advice. The first is that it gives rise to an all or nothing outcome, in the usual way. If he proves upon the narrowest balance that he would have brought the relevant claim within time, the client suffers no discount in the value of the claim by reason of the substantial possibility that he might not have done so: see Stuart Smith LJ in the Allied Maples case at [1995] 1 WLR 1602, 1610G H. By the same token, if he fails, however narrowly, to prove that he would have taken the requisite initiating action, the client gets nothing on account of the less than 50% chance that he might have done so. The second consequence flows directly from the first. Since success or failure in proving on the balance of probabilities that he would have taken the necessary initiating step is of such fundamental importance to the clients claim against his advisor, there is no reason in principle or in justice why either party to the negligence proceedings should be deprived of the full benefit of an adversarial trial of that issue. If it can be fairly tried (which this principle assumes) then it must be properly tried. And if (as in this case) the answer to the question whether the client would, properly advised, have taken the requisite initiating step may be illuminated by reference to facts which, if disputed, would have fallen to be investigated in the underlying claim, this cannot of itself be a good reason not to subject them to the forensic rigour of a trial. As will appear, this has an important bearing on the extent of the general rule that, for the purpose of evaluating the loss of a chance, the court does not undertake a trial within a trial. Applied to the present case, the principle that the client must prove on the balance of probabilities that he would have taken any necessary steps required of him to convert the receipt of competent advice into some financial (or financially measurable) advantage to him means that Mr Perry needed to prove that, properly advised by Raleys, he would have made a claim to a Services Award under the Scheme within time. To this the judge added that it would have to have been an honest claim. He made this addition upon the basis of a concession to that effect by counsel on Mr Perrys behalf, from which Mr Watt Pringle QC for Mr Perry (who did not appear at the trial) invited this court to permit him to resile, so that the question whether the honesty of the claim was a requirement of Mr Perrys cause of action could be properly argued. Having heard commendably concise argument on the point, I consider that the concession was rightly and properly made. In Kitchen v Royal Air Force Association [1958] 1 WLR 563 the plaintiffs husband, a member of the RAF, was electrocuted and killed in the kitchen of his house. His widow lost the opportunity to bring a claim under the Fatal Accidents Act in time due to the negligence of the defendant solicitors. In a leading judgment on the evaluation of the loss of a chance, Lord Evershed MR said this, at p 575: I would add, as was conceded by Mr Neil Lawson, that in such a case it is not enough for the plaintiff to say: Though I had no claim in law, still, I had a nuisance value which I could have so utilised as to extract something from the other side and they would have had to pay something to me in order to persuade me to go away. If nuisance value claims fall outside the category of lost claims for which damages may be claimed in negligence against professional advisors, then so, a fortiori, must dishonest claims. That simple conclusion might be thought by many to be too obvious to need further explanation, but it may be fortified in any of the following ways. First, a client honestly describing his condition to his solicitor when considering whether to make a personal injuries claim would not be advised to do so if the facts described did not give rise to a claim. On the contrary, he would be advised not to waste his own money and time upon the pursuit of pointless litigation. Secondly, the court when appraising the assertion that the client would, if properly advised, have made a personal injuries claim, may fairly presume that the client would only make honest claims, and the client would not be permitted to rebut that presumption by a bald assertion of his own propensity for dishonesty. Thirdly, the court simply has no business rewarding dishonest claimants. The extent of dishonest claims for minor personal injuries such as whiplash (which are difficult to disprove) in road traffic accident cases is already such a blot upon civil litigation that Parliament has considered it necessary to intervene to limit that abuse. Applied to the present case, Mr Perry could only have brought an honest claim for a Services Award if he believed that: a) He had, prior to developing VWF, carried out the six tasks, or some of them, without assistance, b) After developing VWF, he needed assistance in carrying out all or some of those tasks, and c) The reason for his need for that assistance was a lack of grip or manual dexterity in his hands, brought on by VWF. While the question whether a perceived lack of grip or manual dexterity on his part was caused by VWF might be said to be a matter of expert medical opinion, the presence or absence of all the other elements necessary for making an honest claim to a Services Award fell squarely within Mr Perrys own knowledge. He would not, for example, need a doctor to tell him whether he needed assistance in changing the sparking plugs on his car engine and, if he did, whether his difficulty arose from lack of ability to grip or manipulate the requisite spanner, or rather from chronic back pain. Simple facts of that kind, plainly relevant to the question whether Mr Perry could have brought an honest claim if competently advised, do not in themselves fall within either of those categories of futurity or counter factuality which have traditionally inclined the court to adopt a loss of a chance type of assessment. They are facts about Mr Perrys actual physical condition at the relevant time (that is when he could have made a claim for a Services Award under the Scheme if properly advised), and about his habitual patterns in going about the six types of domestic task. Furthermore, it is the common understanding of medical experts that VWF, once developed, is a relatively stable condition. It gets neither worse nor better once the miner ceases to use vibrating machinery. If one asks without reference to authority whether there would be any unfairness subjecting his assertion that he would have made a claim for a Services Award to forensic analysis including questions about his then manual grip and dexterity and about the extent to which he was assisted in the performance of the relevant domestic tasks, the answer would be no. Nor would it be, on the face of it, unfair to subject his oral evidence about those matters, and that of his alleged family assistants, to a searching comparison with other evidence about his own concerns about his medical condition at the relevant time, to be derived from GP records. The question remains however whether any of the authorities relied upon by counsel for Mr Perry on this appeal, or by the Court of Appeal in its conclusion that a forensic investigation of that kind at a trial was contrary to principle, really establish any such proposition, where the facts being investigated are relevant to the issue, to be proved by the claimant on the balance of probabilities, whether he would have taken the essential step of bringing an honest claim, upon receipt of competent advice. On analysis, they establish no such proposition. All they do show is that, where the question for the court is one which turns upon the assessment of a lost chance, rather than upon proof upon the balance of probabilities, it is generally inappropriate to conduct a trial within a trial. Taking the cases in chronological order, the earliest relevant decision is the Kitchen case already mentioned. There, the plaintiffs husband had been killed by electrocution and the claim which the solicitors negligence disabled her from making was against the electricity company. It was never suggested that, if properly advised, she could not have made an honest claim. It was clearly more than a nuisance value claim. The precise circumstances which led to the husbands electrocution were, as the Court of Appeal said, shrouded in mystery, and were not within the plaintiffs knowledge. Accordingly, the well known advice of the Court of Appeal, that in those circumstances the court should focus upon the chose in action constituted by the lost claim and determine its value as best it can, without necessarily conducting a trial within a trial, was not directed to the question whether the plaintiff would have brought a claim. Nor indeed had it by then been established, in the Allied Maples case, that such a question required proof on the balance of probabilities. Mount v Barker Austin [1998] PNLR 493 is the first of a series of cases in which the Court of Appeal sought to extract from the Kitchen and Allied Maples cases principles applicable to the determination of negligence claims against solicitors who had through their negligence allowed their clients pending claim to be struck out, either for failure to comply in time with a procedural step, or more generally for want of prosecution. They may all be distinguished from the present case because, by the time when the negligent conduct occurred, the client already had a pending claim which could be treated as something of potential value, thereafter lost because of the solicitors negligence. By contrast with the Allied Maples case and indeed this case, there was nothing which the client had to prove, on the balance of probabilities, that he would have done, had his solicitors acted competently, to bring such a pending claim into existence. Simon Brown LJ sought to lay out the relevant principles at pp 510 511, in four propositions which have been frequently followed and applied. In summary, they require the claimant only to prove that the lost claim had a real and substantial, rather than merely negligible, prospect of success, following which the court was obliged to conduct an evaluation of the prospect of success, rather than a trial within a trial of the underlying claim. But those principles all fall on that side of the dividing line established in the Allied Maples case in which the court is concerned to value the loss of a chance, rather than to enquire whether the client has proved, on the balance of probabilities, that he would have done something relevant to the existence of a chain of causation between the solicitors negligence and the clients loss. The Court of Appeal, and counsel for Mr Perry in his submissions to this court, placed Hanif v Middleweeks (supra) squarely in the forefront of their criticism of the judge in conducting what they described as a trial within a trial. It was a professional negligence action in which the client was the co owner of a nightclub which had been destroyed by fire. The insurers had issued proceedings for a declaration of non liability, on the ground (among others) that the fire had been started deliberately by Mr Hanifs co owner. Mr Hanif counterclaimed for an indemnity under the insurance policy, but his counterclaim was struck out for want of prosecution because of the negligence of the defendant solicitors. The trial judge had assessed the prospects of Mr Hanif resisting the insurers allegation of arson by his co owner at 25% and the Court of Appeal, applying both the Allied Maples and Kitchen cases, held that he had been right to adopt a loss of chance approach, rather than to decide, in a trial within a trial, whether or not the fire had been started deliberately. A submission that, in the light of the 25% finding, the fire probably had been deliberate, so that the claim should have been dismissed as being contrary to public policy was rejected, not least because it had been neither pleaded nor argued in the court below. The Hanif case did not, therefore, involve any question about what the client would have done had he obtained competent advice. He had already given instructions for the making of the counterclaim, and it would have gone to trial but for the solicitors negligence in allowing it to be struck out for want of prosecution. There was, therefore, nothing which Mr Hanif had to prove, on the balance of probabilities, that he would have done in order to have benefitted from a competent discharge by the solicitors of their duty of care. The questions relevant to the lost counterclaim therefore fell squarely within the category identified in the Allied Maples case as calling for an evaluation of a lost chance, rather than proof upon the balance of probabilities. Furthermore, there was no suggestion, at trial or in the Court of Appeal, that Mr Hanif could not honestly have brought or pursued his counterclaim, even though the judge found that he had only a 25% prospect of resisting the allegation of arson by his co owner. In sharp contrast with Mr Perrys knowledge of his own manual grip and dexterity, it was not suggested that Mr Hanif had personal knowledge of the facts relevant to the question whether the fire had been started deliberately. The case is therefore a conventional example of the correct application of the dividing line established in the Allied Maples case between those matters to be proved by the client on the balance of probabilities, and those to be addressed by reference to the assessment of the value of the lost opportunity. But it does not begin to establish some principle that it is always wrong for the court to try an issue relevant to causation in a professional negligence case, merely because that same issue would have fallen for determination in the trial of the underlying claim, lost due to the solicitors negligence. The question whether any given issue should or should not be tried in the negligence proceedings depends upon whether it is one upon which the client must prove his case on the balance of probabilities, or only one which should be subjected to the valuation of a lost chance. Treating the question as determined by asking whether the same issue would fall to be tried in the lost claim puts the cart before the horse. Sharif v Garrett & Co [2001] EWCA Civ 1269; [2002] 1 WLR 3118 is another case in which the negligence in question consisted of solicitors allowing a pending claim to be struck out for want of prosecution. The underlying claim (which had been struck out) was a negligence claim against insurance brokers, following the destruction of the claimants business premises by fire. There was no suggestion that it was a dishonest claim, or indeed a hopeless claim, although there was a wide disagreement about its value. It was also a case in which the reason why the underlying claim had been struck out for want of prosecution was that, because of the inordinate delay, it could no longer be fairly tried. The criticism of the trial judges approach which prevailed in the Court of Appeal was that he should not have conducted a trial of issues which would have arisen in the underlying claim in circumstances where the court had already concluded that no fair trial of that claim was possible, as a result of the solicitors negligence in its prosecution. But the case is, like the Hanif case, another conventional application of the dividing line established in the Allied Maples case. The client had started his claim and needed to prove nothing about what he would have done, on the balance of probabilities, in order to have benefited from his solicitors careful conduct of the proceedings. In Dixon v Clement Jones [2005] PNLR 6, the underlying claim was a negligence action against accountants for failing to advise the claimant against what turned out to be a disastrous transaction, which her solicitors allowed to be struck out for failure to serve Particulars of Claim in time. The solicitors alleged that, even if their client had received competent advice from the accountants, she would still have entered into the disastrous transaction so that she would, applying principles from the Allied Maples case, have failed to prove a necessary element in her case on causation, on the balance of probabilities. The question for the Court of Appeal was whether, in those circumstances, the client was obliged in the negligence claim against the solicitors also to prove, on the balance of probabilities, that aspect of her case on causation in the underlying claim. In agreement with the trial judge, they concluded that she did not, because causation issues in the underlying claim fell to be evaluated on a loss of chance basis in the same way as all other issues in the underlying claim, when considering the value of that claim which had been lost by reason of the solicitors negligence. It is unnecessary to express a concluded view about that analysis. A rigid application of the Allied Maples test, namely whether the fact in issue was something that the claimant rather than a third party would have done, might lead to the opposite conclusion. But the client had already given instructions for the bringing of the underlying claim, so there was nothing which she needed to prove that she would have done, had the solicitors acted competently and served the Particulars of Claim in time, in order to bring into existence a chose in action which the court could value. Nor, unsurprisingly, was it suggested that the underlying claim had not itself been honestly brought. It is sufficient to say that it does not address the question for decision in the present case, namely whether the client must prove, on the balance of probabilities that, competently advised, he would have brought an honest claim so as to establish causation between the solicitors negligence and his alleged loss. The Judges Approach to the Law It was not, therefore, wrong in law or in principle for Judge Saffman to have conducted a trial of the question whether Mr Perry would (or indeed could) have brought an honest claim for a Services Award, if given competent advice by Raleys. That was something which Mr Perry had to prove on the balance of probabilities, and which Raleys were entitled to test with all the forensic tools available at an ordinary civil trial, and by proof or challenge of alleged facts relevant to that question, even if the same facts would have formed part of the matters in issue, either at a trial of the underlying claim, or upon its adjudication or settlement pursuant to the Scheme. But the Court of Appeals criticism of the judges approach to the issue of causation went further. They held that his reserved judgment disclosed that he wrongly imposed upon Mr Perry the burden of proving not merely that he would, properly advised, have brought an honest claim, but also a successful claim. Viewed across the generality of claims that may never be pursued because of a solicitors negligent advice, it may well be that the burden of proving that the claim would have succeeded is higher than the burden of proving that it could or would have been honestly made. That is because, in the ordinary case, success will depend upon a raft of factual and legal matters, all of which are liable to be subjected to full adversarial examination at a trial, or at least to the disclosure and examination by an opponent of the claimants documents before an attempt at settlement. By contrast, claims for Services Awards under the Scheme by persons already in possession of a medical opinion that they suffered from VWF, at a level sufficient to entitle them to general damages, would not under the claims handling processes provided for by the CHA be subject to any such adversarial procedures. As already described, the claimant miner would only have to complete a questionnaire, identify his alleged assistants, and have one or more of them subjected to a short, non adversarial interview on the telephone by a claims handler, and undergo medical examination limited to the question of co morbidity, before his claim would be assessed and, in all probability, made the subject of an offer of an amount sufficient for the claim to be treated as having been successful. As an experienced judge in this specialised field, Judge Saffman may be assumed to have been well aware of this, and the expression in his reserved judgment of the burden which Mr Perry needed to surmount for the purposes of establishing causation needs to the read in that light, in the context of a long and careful reserved judgment, considered as a whole. There are four occasions in the judges judgment where he directly addressed the causation hurdle facing Mr Perry. First, when dealing with the issues for trial, he said, at para 15: In short therefore the issues for determination are; a. Whether the claim is statute barred, b. If not, whether the admitted breach of duty caused or materially contributed to the claimants alleged loss. In the context of this case did the breach cause the claimant to settle his claim at an undervalue because, on balance, if properly advised, and on the assumption that he acted honestly, he would have made a claim for a Services Award? . c. Has the claimant lost something of value in the sense that his prospects of success in a claim for a Services Award were more than negligible? d. If the claimant has lost a claim with more than a negligible prospect of success what is a realistic assessment of what the prospects of success were? e. What is an appropriate assessment of the likely value of the claim having taken account of the prospects of success? Then, at para 88, under the heading Causation: he continued: The onus is on the claimant to establish causation on the balance of probabilities. The claimant therefore must establish on balance that he would have acted differently if properly advised and a lack of opportunity to do so has caused him loss. In other words the claimant must establish that the breach of duty actually caused him loss. Under the heading Other aspects of Causation he continued at para 114: I therefore now turn to the issue of whether the breach caused the claimant to settle his claim at an undervalue because, on balance, if properly advised and on the assumption that he was acting honestly he would have acted differently and made a successful claim for a Services Award. At para 119 the judge said: That is a question of credibility. Am I satisfied that the claimant originally undertook the services but could no longer do so without assistance? As Mr Quiney put it, has the claimant succeeded in persuading the court that he actually suffered sufficient disability that he could honestly say I cannot carry out these services? Finally, he expressed his conclusion at para 133, as follows: I am not satisfied that the evidence of Mrs Perry or Scott Perry is sufficiently cogent to dissuade me from my conclusion that the claimant has not established that he honestly met the factual matrix by reason of his VWF either in respect of what tasks he used to do and those which he could not do without assistance at the time of settlement of his original claim. Indeed I go further, I am satisfied that in so far as the burden is on the defendant to establish its assertion that the claimant did not meet the matrix, it has discharged that burden. The judge was using the phrase the factual matrix in the way described above, namely having a sufficient disability in his hands, caused by VWF, that he could no longer carry out, without assistance, tasks that he had previously carried out on his own. While it is true that, at para 114, the judge did use language which, read on its own, might appear to suggest that he imposed upon Mr Perry the additional burden, beyond proving that he would have made an honest claim, that it would have been successful, his analysis of causation, derived from all the passages quoted above, taken together, and in the context of the judgment as a whole, makes it clear that he was not thereby imposing some additional burden upon Mr Perry, beyond proof, on the balance of probabilities, that he would have brought an honest claim. His reference to a successful claim may have been no more than shorthand for his earlier reference to the requirement upon Mr Perry to show that his claim had a more than negligible prospect of success. Accordingly, and contrary to the view of the Court of Appeal, the judges determination of the case was not vitiated by any error of law. The Judges Determination of the Facts It is necessary therefore also to address the question whether the Court of Appeal was right to conclude that, quite separately from supposed errors of law, the judge went sufficiently wrong in his determination of the facts to enable an appellate court to intervene. The Court of Appeal expressed its positive conclusion on that issue under two headings, at para 26, namely: iii) he demonstrably failed to consider, or misunderstood, relevant evidence, and iv) his decision (that Mr Perry could not honestly have claimed in 1999 and thereafter that he was unable to perform the relevant tasks without assistance) cannot reasonably be explained or justified. Those are strong conclusions about a fact finding exercise at trial by an experienced judge, but the Court of Appeal made them after reminding themselves of the very real constraints facing an appellate court when invited to overturn a judges findings of fact at trial. For that purpose they referred to Grizzly Business Ltd v Stena Drilling Ltd [2017] EWCA Civ 94, Henderson v Foxworth Investments Ltd [2014] UKSC 41; [2014] 1 WLR 2600 and McGraddie v McGraddie [2013] UKSC 58; [2013] 1 WLR 2477. In the Henderson case the Supreme Court had said, at para 62: It does not matter, with whatever degree of certainty, that the appellate court considers that it would have reached a different conclusion. What matters is whether the decision under appeal is one that no reasonable judge could have reached. In the McGraddie case Lord Reed said this, at paras 3 4: The reasons justifying that approach are not limited to the fact, emphasised in Clarkes case and Thomas v Thomas, that the trial judge is in a privileged position to assess the credibility of witnesses evidence. Other relevant considerations were explained by the United States Supreme Court in Anderson v City of Bessemer (1985) 470 US 564 (1985), 574 575: The rationale for deference to the original finder of fact is not limited to the superiority of the trial judges position to make determinations of credibility. The trial judges major role is the determination of fact, and with experience in fulfilling that role comes expertise. Duplication of the trial judges efforts in the court of appeals would very likely contribute only negligibly to the accuracy of fact determination at a huge cost in diversion of judicial resources. In addition, the parties to a case on appeal have already been forced to concentrate their energies and resources on persuading the trial judge that their account of the facts is the correct one: requiring them to persuade three more judges at the appellate level is requiring too much. As the court has stated in a different context, the trial on the merits should be the main event rather than a try out on the road. For these reasons, review of factual findings under the clearly erroneous standard with its deference to the trier of fact is the rule, not the exception. Similar observations were made by Lord Wilson in In re B (a Child) (Care Proceedings: Threshold Criteria) [2013] UKSC 33; [2013] 1 WLR 1911, para 53. 4. Furthermore, as was stated in observations adopted by the majority of the Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235, para 14: The trial judge has sat through the entire case and his ultimate judgment reflects this total familiarity with the evidence. The insight gained by the trial judge who has lived with the case for several days, weeks or even months may be far deeper than that of the Court of Appeal whose view of the case is much more limited and narrow, often being shaped and distorted by the various orders or rulings being challenged. The Court of Appeal, at para 24, also reminded themselves of the following dicta of Lewison LJ in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5: (iv) In making his decisions the trial judge will have regard to the whole of the sea of evidence presented to him, whereas an appellate court will only be island hopping. (v) The atmosphere of the courtroom cannot, in any event, be recreated by reference to documents (including transcripts of evidence). (vi) Thus even if it were possible to duplicate the role of the trial judge, it cannot in practice be done. The question in the present case is not whether the Court of Appeal misstated those constraints. They may be summarised as requiring a conclusion either that there was no evidence to support a challenged finding of fact, or that the trial judges finding was one that no reasonable judge could have reached. Rather, the question is whether the Court of Appeal were correct in concluding, as they did, that there were errors in the judges factual determination which satisfied those very stringent requirements. For that purpose it is necessary to address each of the Court of Appeals criticisms in turn, but with the caveat that it is not possible entirely to disentangle some of them from what, for reasons already given, was the Court of Appeals incorrect approach to the burden imposed by the common law upon Mr Perry to prove causation. The Court of Appeals first conclusion was that the judge had failed to appreciate that, on the question whether Mr Perry could have made an honest claim for a Services Award, the burden of proof in relation to any question of dishonesty lay squarely upon Raleys. More importantly, the Court of Appeal concluded that it had not been fairly put to Mr Perry in cross examination at trial that, for him to have instructed Raleys to pursue a claim for a Services Award would have involved dishonesty on his part, in suggesting that he suffered from the requisite underlying manual disability. As to that, for the reasons already given, the burden lay on Mr Perry to prove that he would have made an honest claim. Since his written evidence was that he would indeed have made a claim for a Services Award, it was incumbent upon counsel for Raleys to bring home to Mr Perry in cross examination and by any other relevant means that his honesty in making that assertion was being challenged, and to do so in a way which took properly into account Mr Perrys relative lack of sophistication. The judge reminded himself at some length of the need to take account of Mr Perrys relatively unsophisticated background, at paras 16 18 and 136 of his judgment. He satisfied himself, at paras 74 75, that Mr Perry and his advisors were in no doubt that Raleys were alleging that he was promoting a dishonest claim. At para 133 the judge made it clear that his conclusion that, in asserting that he suffered from the requisite manual disability in carrying out the relevant tasks unaided, Mr Perry was not telling the truth was one which he reached regardless of the incidence of a burden of proof. The question whether it had been sufficiently brought home to Mr Perry, by cross examination or otherwise, that the court was being invited to conclude that he was lying in his evidence about his inability to carry out the domestic tasks without assistance was pre eminently a matter for the trial judge, and it is clear, as noted above, that he concluded, after hearing submissions from counsel on the point, that it had been. The question for an appellate court is therefore whether there was material upon which the judge could reasonably reached that affirmative conclusion. Having read those parts of the cross examination to which this court was directed by counsel, there clearly was such material. It consisted, in the main, of counsel for Raleys putting in considerable detail to Mr Perry aspects of his documented medical history, and evidence (including photographic evidence) of fishing and gardening activities after his retirement as a miner which were, as the judge held, wholly inconsistent with his evidence about his disability in carrying out the relevant tasks. The judge was entitled to conclude that this sufficiently brought home to Mr Perry that he was being accused of lying about it. The fact that an appellate judge might, if trying the case at first instance, have preferred or required the matter to be put to Mr Perry differently or more directly, is, with respect, neither here nor there. Linked to this criticism was the conclusion, at para 46 of the judgment of Gloster LJ, that the judge placed far too much weight on the detail of the inadequate answers which were given by the appellant in this respect . But again, the weight to be given to evidential material in forming a conclusion whether Mr Perrys evidence lacked all credibility (as the judge found) was a matter for the trial judge. The second and main criticism by the Court of Appeal was that the judge had disregarded, without giving proper reasons, the evidence, broadly supportive of Mr Perrys case, from Professor Kester and from the single joint expert Mr Tennant, in particular because the latter was not called to be cross examined. Professor Kesters task, under the Scheme, was to advise whether, and with what degree of severity, Mr Perry suffered from VWF. He noted that Mr Perry reported a loss of manual dexterity and clumsiness of an intermittent nature, but his detailed examination of Mr Perry was directed to the presence or absence of the VWF in his hands rather than to their grip or dexterity. By contrast, Mr Tennants opinion was directed towards Mr Perrys ability to carry out the relevant domestic tasks unaided. Again however, much of his reasoning was based upon information provided to him by Mr Perry during interview, in particular in relation to each of the six relevant tasks, although Mr Tennant appears to have carried out a grip strength test and some simple tests of manual dexterity. The judge did, at paras 116 118 and 122 123 of his judgment, remind himself of the opinions of Professor Kester and Mr Tennant, of their findings as to the severity of Mr Perrys VWF, of the presumption thereby arising in favour of a Services Award, and accepted that Mr Perry suffered from VWF to a high degree. At para 118, he said: I acknowledge that the staging of two doctors supports the view that he has a significant loss of function, but I repeat that the question is whether the claimant has established that in reality any loss of function manifested itself in an inability to carry out the tasks. This was what, in the passage already quoted above, the judge described as a question of credibility. The trial judge was not merely entitled but obliged to weigh in the evidential balance his perception that Mr Perry was lying about his ability to perform, unaided, the relevant tasks against the opinion, in particular of Mr Tennant, that he suffered from shortcomings in manual dexterity which made it likely that he suffered from such a disability. Corroborative expert evidence not infrequently transforms testimony which on its own appears most unlikely into something credible. The judges conclusion that Mr Tennants opinion did not prevail over Mr Perrys thoroughgoing lack of credibility cannot be described as either lacking in reasoning or trespassing beyond the range of reasonable conclusions available to a trial judge. While it might have been better if Mr Tennant had been called for cross examination, the judge was not obliged to prefer the experts opinion, based as it was to a significant extent upon what Mr Perry had told him, to that which the judge was entitled to form, on the basis of the evidence as a whole, about whether Mr Perry was telling the truth about his supposed disability. In the end, the Court of Appeals criticism amounted to a supposed failure to give sufficient weight to the medical evidence: see per Gloster LJ at para 52. But questions as to the weight of competing evidence are pre eminently a matter for the trial judge. The next criticism was that the judge had misunderstood, or failed to apply, a principle fundamental to the Scheme, namely that a claimant did not have to be disabled entirely from carrying out a task in order to be entitled to a Services Award: see per Gloster LJ at para 54. She said that the impression given by the judge was that he wrongly considered that unless Mr Perry could not carry out any aspects of a task without assistance, he was not entitled to claim in respect of that task. No such error appears from perusal of the judges careful judgment. In particular, at para 132, he acknowledged that inability or reduced ability to carry out the services tasks would be sufficient to support a claim to a Services Award. The final criticism made by the Court of Appeal was that the judge could not rationally have reached the conclusion that Mr Perry, his wife and two sons had all given false evidence: see per Gloster LJ at para 55. It is a very strong thing for an appellate court to say, from a review of the paper records of a trial , that the trial judge was irrational in concluding that witnesses were not telling the truth, all the more so when the trial judge gives detailed reasons for that conclusion in a lengthy reserved judgment, and those reasons do not disclose any failure by him to consider relevant materials, or any disabling failure properly to understand them. The credibility (including honesty) of oral testimony is, of all things, a matter for the trial judge. It is unnecessary to address in detail the reasons given by Gloster LJ for that finding of irrationality against the judge. It is sufficient to say that, while they constitute persuasive and forcefully expressed views about why she and her colleagues in the Court of Appeal, faced with the same materials, would have come to a different conclusion, they do not, separately or in conjunction, support a conclusion of irrationality as the only explanation for the judges contrary view. As the judge said, the question whether Mr Perry needed assistance in the performance of the relevant tasks following his retirement from mining was pre eminently a matter to be proved, or not proved, by his oral evidence, with such support as he could muster from the oral evidence of his wife and two sons. It was, as the judge put it, a question of credibility. While there undoubtedly are cases where surviving documents point so clearly to the correct answer to issues of fact that the oral testimony of relevant witnesses is of subordinate importance, this is not one of them. Furthermore the surviving documents were, as was demonstrated during cross examination, generally hostile to Mr Perrys case. Mr Watt Pringle sought to support the Court of Appeals criticisms of the judges findings with specific submissions about aspects of the detail. They did not, separately or together, amount to a case sufficient to support either a conclusion that there was no evidence to support the judges adverse findings about credibility or a conclusion that no reasonable judge could have decided as he did. In particular Mr Watt Pringle pointed to the relative brevity of the cross examination of Mr Perrys wife and two sons, being, he submitted, insufficient to justify the conclusion that any of them was lying. But it is impossible to tell, without having been present at the trial, whether a short or a long cross examination of a witness was necessary in order to undermine his or her credibility. Mr Watt Pringle also pointed to the fact that the central thrust of Raleys case at trial was not so much that Mr Perry suffered from no disability in performing the relevant tasks unaided, (although that was part of Raleys case) but rather that his back problem was the only significant cause of such disability as in fact affected him. He pointed to the fact that, in the concluding part of his judgment, the judge rejected Raleys case that Mr Perrys back problems were of that degree of significance, preferring in that respect the evidence to the contrary of Mr Tennant. But he did so expressly on the conditional basis that he might be wrong in his primary conclusion that Mr Perry was lying about having any relevant inability to perform those tasks unaided: see para 137 of his judgment. In conclusion therefore, none of the grounds upon which the Court of Appeal considered that this was one of those rare cases where it was appropriate to reverse the trial judges findings on issues of fact is established, to the requisite high degree. Accordingly, this appeal should be allowed, and the judges order restored.

The respondent, Mr Perry, is a retired miner. By the time he stopped working, he was suffering from a condition known as Vibration White Finger (VWF). Common symptoms include a reduction in grip strength and manual dexterity, often leading to an inability to carry out routine domestic tasks unaided. In the late 1990s, a group of test cases established that the National Coal Board (later British Coal) had been negligent in failing to take reasonable steps to limit the exposure of its miners to VWF from the excessive use of vibratory tools. In 1999, the Department for Trade and Industry (DTI) set up a scheme (the Scheme) to provide tariff based compensation (i.e. based on the severity of the injury) to miners suffering from VWF following exposure to excessive vibration. The Scheme was administered under a Claims Handling Arrangement dated 22 January 1999 made between the DTI and solicitors firms representing miners. The Scheme contemplated the making of two main types of compensatory award to such miners, which broadly reflected general and special damages for personal injuries. Pursuant to a Services Agreement dated 9 May 2000, special damages could include a Services Award to qualifying miners. This depended on establishing what became known as the factual matrix. In summary: (1) prior ability to undertake one or more of six defined routine domestic tasks (the six tasks) without assistance; (2) current inability to undertake those tasks without assistance because of VWF; and (3) current receipt of the necessary assistance with those tasks from others. The six tasks were gardening, window cleaning, DIY, decorating, car washing, and car maintenance. Qualification for a general damages award required affected miners to undertake a medical interview and examination designed to assess the severity of their VWF. Sufferers at certain high levels of severity also became entitled to a rebuttable presumption that they qualified for a Services Award. The Scheme provided for relatively light touch checks of Services Award claims. Compensation was payable to qualifying claimants according to an index linked tariff. Proportionate deductions could be made if a further medical examination showed that there were other contributing medical conditions. Mr Perry engaged the appellant law firm, Raleys, to pursue a VWF claim in October 1996. His claim ultimately fell within the Scheme. In October 1997, he was given medical ratings (stagings) sufficient both for him to obtain general damages and for a Services Award to be presumed. However, Mr Perry settled his claim in November 1999 for the payment of general damages only (11,600) and made no claim for a Services Award within the specified time. He made a professional negligence claim against Raleys in February 2009, claiming that the firms negligent failure to give him competent legal advice deprived him of the chance to claim a Services Award. His estimated loss was 17,300.17 plus interest. At trial in the County Court, Raleys ultimately admitted breach of duty, but denied causation of loss. It also alleged that his claim was time barred. The trial judge, Judge Saffman, rejected the limitation defence, but held that Mr Perry had not proved that Raleys breach of duty had caused him any loss. This conclusion was based on the finding that Mr Perrys VWF had not caused him any significant disability in performing any of the six tasks without assistance, such that he could not have been able to make an honest claim for a Services Award. The judge dismissed the claim, but nonetheless proceeded to make findings on the assessment of damages. The Court of Appeal reversed the finding on causation and concluded that the alternative findings on quantum meant a re trial was unnecessary. It granted Mr Perry loss of chance damages of 14,556.15 plus interest. Raleys appealed to the Supreme Court, seeking restoration of Judge Saffmans order. The Supreme Court allows the appeal and restores the order of the County Court judge. Lord Briggs gives the sole judgment, with which all members of the Court agree. Loss of chance damages have been developed by the courts to deal with the difficulties arising from the assessment of counter factual and future events [16]. In both types of situation, the courts at times depart from the ordinary burden on a claimant to prove the facts required for a successful claim on the balance of probabilities (i.e. more likely than not) standard [17 18]. However, this does not mean that the basic requirement that a negligence claim requires proof that loss has been caused by the breach of duty is abandoned [19]. The correct approach, following Allied Maples Group Ltd v Simmons & Simmons [1995] 1 WLR 1602 (CA), is to require a claimant to prove what he or she would have done on the balance of probabilities, while what others would have done (if relevant) depends on a loss of chance evaluation [20 21]. These principles apply equally to negligence claims based on loss of the opportunity to achieve a better outcome in a negotiated transaction and ones, as in this case, based on loss of the chance to bring a legal claim [22]. It is not unfair to subject medical and oral evidence as to facts within the claimants own knowledge to forensic analysis on the balance of probabilities standard [30]. The case law only establishes that, where the question for the court is one which turns on the assessment of a lost chance, it is generally inappropriate to conduct a trial within a trial [31]. It does not establish a principle that it is always wrong to try an issue relevant to causation in a professional negligence case, merely because that issue would have fallen for determination in the underlying claim (lost due to alleged negligence) [35 37]. Whether an issue should be tried to the usual standard depends on whether it concerns the claimants conduct (where it should be) or third party conduct (only requiring a real and substantial chance) [37]. Applying this approach, Mr Perry needed to prove that, properly advised by Raleys, he would have made a claim to a Services Award under the Scheme within time [25]. Further, the judge was correct to impose the additional requirement of the claim having to be an honest claim [25]. A concession in the courts below had been rightly made as to the honest claim requirement, because: (1) a claimant giving an honest description of his or her condition to a solicitor would not be advised to bring a claim if the facts were insufficient; (2) a court may fairly presume that the client would only make honest claims; and (3) it is not the proper role of the courts to reward dishonest claimants [25 27]. On the facts, Mr Perry had to believe the following to bring an honest claim: (1) before developing VWF, he had carried out all or some of the six tasks without assistance; (2) after developing VWF, he needed assistance in carrying out all or some of those tasks; and (3) the need for assistance was due to complications from VWF [28]. Question (3) might require expert medical opinion, but all the other necessary elements fell within his own knowledge [29]. Such facts do not raise issues of counter factuality or futurity which engage loss of chance principles [30]. Accordingly, Judge Saffman had made no legal error in conducting a trial of the issue whether Mr Perry would (or could) have brought an honest claim for a Services Award [41]. Further, the judge did not (wrongly) apply a second causation hurdle requiring Mr Perry to prove that his claim would have been successful (not merely honest) [42 48]. In addition, the Court of Appeal wrongly interfered with the judges factual determination the very stringent test for appellate court interference was not met in this case [49 66].

8k-16k

The appellants are former employees of the London Borough of Lewisham (the council). They worked in the councils leisure department until 2002. Their part of the councils undertaking was then contracted out to a private sector employer named CCL Ltd and they were transferred into its employment. In May 2004 CCLs undertaking was taken over by another private sector employer named Parkwood Leisure Ltd (Parkwood), which is the respondent to this appeal. As a result of that transfer the appellants became employees of Parkwood. The Transfer of Undertakings (Protection of Employment) Regulations 1981 (SI 1981/1794) (TUPE) applied to each of these transfers. TUPE safeguards the rights of employees when the business in which they worked changes hands between employers. It preserves their contractual rights so that they are enforceable against the transferee after the transfer. Regulations 5(1) and 5(2) of TUPE provided that their contracts of employment were to have effect after the transfer as if originally made between the persons so employed and the transferee. TUPE was replaced by the Transfer of Undertakings (Protection of Employment) Regulations 2006 (SI 2006/246) which came into force on 5 April 2006. But the transfers with which this case is concerned took place before that date. So the position that applies to them is governed by the 1981 Regulations, which I shall continue to refer to as TUPE. The council subscribed to the National Joint Council for Local Government Services (the NJC). The NJC comprises within its membership representatives of local authority employers and trades unions. As the appellants were employees of a local authority, their contracts of employment with the council included a term which entitled them to the benefit of the terms and conditions set by the NJC. They were in a standard form which, under the heading Terms and Conditions of Employment, contained the following express term: During your employment with the council your terms and conditions of employment will be in accordance with collective agreements negotiated from time to time by the National Joint Council for Local Government Services, set out in the scheme of conditions of service (commonly known as the Green Book) supplemented by agreements reached locally through the councils negotiating committees. Among the terms and conditions collectively agreed by the NJC were rates of pay for employees of local authorities. At the date of the appellants transfer to CCL there were in place collectively agreed terms setting out the pay rates for the period from 1 April 2002 to 31 March 2004. Those terms were honoured by CCL throughout the period of the appellants employment with that company. In March 2004 NJC negotiations began for the period from 1 April 2004 to 31 March 2007. There were twelve representations of the local government associations on the NJC and various unions, including UNISON of which the appellants were members. But Parkwood does not recognise UNISON and, as it is a private sector employer, it cannot belong to the NJC or be represented on it. So it was not a party to these negotiations. The negotiations concluded on 4 June 2004, after the date of Parkwoods takeover of CCL. On 14 July 2004 the NJC issued a circular summarising the three year settlement. It included pay increases for the periods from 1 April 2004 and 1 April 2005. Parkwood initially refused to award the appellants pay increases in accordance with the collective agreement for the periods from 1 April 2004 and 1 April 2005. The appellants brought claims against it for unauthorised deductions from their wages contrary to section 13 of the Employment Rights Act 1996. These claims were settled without admission of liability and the increases for these years were paid. But Parkwood declined to award the appellants increased rates of pay in accordance with the collective agreements with effect from 1 April 2006 and 1 April 2007. So the appellants brought further claims against Parkwood for unauthorised deductions in the London (South) Employment Tribunal (the ET). The ET dismissed their claims, for reasons that were given in a judgment sent to the parties on 16 July 2008. On 12 January 2009 the Employment Appeal Tribunal (the EAT), allowed the appellants appeal against that decision and remitted the claims to the ET for a hearing as to remedy: [2009] ICR 703. Parkwood was given permission to appeal. On 29 January 2010 the Court of Appeal (Ward, Smith and Rimer LJJ) allowed the appeal, set aside the order of the EAT and restored the decision of the ET to dismiss the appellants claims: [2010] EWCA Civ 24, [2010] ICR 793. The issues The issue which lies at the heart of this appeal is whether the effect of regulations 5(1) and 5(2) of TUPE is that the appellants are entitled to the benefit of increases in pay negotiated by the NJC after they were transferred into the employment of Parkwood. It is common ground that, had this issue been solely one of domestic law, the question would have been open only to one answer. In BET Catering Services Ltd v Ball (unreported) 28 November 1996, Lindsay J, delivering the judgment of the appeal tribunal in Mrs Balls favour, said that he could see no conceptual difficulty in a private sector employer binding itself to public sector pay rates. In Whent v T Cartledge Ltd [1997] IRLR 153, in a judgment delivered by Judge Hicks QC, the appeal tribunal said that, once it was accepted that regulation 5 of TUPE applied and that there had been no relevant subsequent variation in the contract of employment, the issue became simply one of the true meaning of the clause that provided that the employees pay would be in accordance with the agreement made by the NJC as amended from time to time, and that there was no apparent reason why the transfer should cause any change in the meaning of these words: para 9. The employment tribunals view that it could not be right that an employer is bound ad infinitum by the terms of a succession of collective agreements negotiated by bodies other than themselves was rejected. In para 16 Judge Hicks said: there is simply no reason why parties should not, if they choose, agree that matters such as remuneration be fixed by processes in which they do not themselves participate. In Glendale Grounds Management v Bradley, (unreported) 19 February 1998, and Glendale Managed Services v Graham [2003] EWCA Civ 773, [2003] IRLR 465 issues were raised as to whether a different result followed because of particular words used in the employees contract. In Bradley it was held that the particular terms of the contract required the approval of the employer for the time being to any new negotiated terms, whereas Glendale had given none. In Graham the clause provided that the rate of remuneration would normally be in accordance with the NJC. The Court of Appeal held that it was an implied term of that contract that the employer must inform the employee if and when there was to be a departure from the normal situation. BET Catering Services Ltd v Ball and Whent v T Cartledge Ltd were not referred to. But I agree with Rimer LJs observation in the Court of Appeal in this case that the decision in Graham was impliedly consistent with the approach that was reflected in those cases: [2010] ICR 793, para 21. The view that was taken in those decisions about the effect of conditions of the kind that the appellants rely on in this case was, in my opinion, entirely consistent with the common law principle of freedom of contract. There can be no objection in principle to parties including a term in their contract that the employees pay is to be determined from time to time by a third party such as the NJC of which the employer is not a member or on which it is not represented. It all depends on what the parties have agreed to, as revealed by the words they have used in their contract. The fact that the employer has no part to play in the negotiations by which the rates of pay are determined makes no difference. Unless the contract itself provides otherwise, the employee is entitled to be paid according to the rates of pay as determined by the third party. This is simply what the parties have agreed to in their contract. The same is true of the transferee in the event of the transfer of an undertaking regulated by TUPE. Domestic law tells us that the term in the contract is enforceable against the transferee in just the same way as it was against the original employer. As Rimer LJ said in the Court of Appeal, decisions such as Whent amount to no more than a conventional application of ordinary principles of contract law to the statutory consequences apparently created by regulation 5 of TUPE: [2010] ICR 793, para 46. But the issue is not solely one of domestic law. Regulation 5 of TUPE must be read together with article 3(1) of Council Directive 77/187/EEC of 14 February 1977 on the approximation of the laws of the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of businesses (OJ 1977 L61, p 26) (the Directive), to which it gave effect. The question that has brought the appeal before this court is whether the approach that has hitherto been taken as to the effect of TUPE can still stand, in the light of the decision of the European Court of Justice in Werhof v Freeway Traffic Systems GmbH & Co KG (Case C 499/04) [2006] ECR I 2397 (Werhof). The ECJ was concerned in that case with the meaning and effect of article 3(1) of the Directive. The Court of Appeal held that the decision of the ECJ in Werhof was to be understood as meaning that the transferee was not committed by article 3(1) to any collective agreement made after the expiry of an agreement that was in force at the date of the transfer, and that there was nothing in the language of regulation 5 of TUPE to indicate that it was intended to enlarge employees rights beyond those provided for by article 3(1). Its conclusion was that, in the light of Werhof, the domestic decisions in cases such as Whent were wrong and should not be followed. The appellants contend for what has been described as a dynamic interpretation of the effect of their contract on transferees. That is to say, that their contracts should be given effect according to their terms, binding the transferee to give effect to collective agreements negotiated by the NJC from time to time in the same way as if they had still been employed by the council. The respondents submit that the effect of Werhof is that static rights only are protected, with the result that the transferee is not bound by any collective agreements that were not already binding on the original employer on the date of the transfer. The questions that must be examined, therefore, are these: (i) what is the effect of the judgment of the Court of Justice in Werhof as to the interpretation of article 3(1) of the Directive? (ii) to what extent, if at all, is there room for giving a different meaning to regulation 5 of TUPE in domestic law from that indicated by Werhof as to the meaning of article 3(1)? The legislation As Rimer LJ observed in para 9 of his judgment, the law in the United Kingdom prior to the bringing into force of legislation to comply with the Directive was that, if an employer transferred his business to another, the employees contracts of employment were terminated. It was a matter entirely for the transferee to decide whether it should continue to employ the employees of the transferor in the business which it had acquired and, if so, on what terms. That position was reversed by the implementation of the Directive in 1981 by TUPE. The position now is that the rights of employees when the business in which they worked changes hands between employers are safeguarded. The extent to which their contractual rights are protected so that they are enforceable against the transferee after the transfer has not hitherto been in question. The 1977 Directive was amended by Council Directive 98/50/EC (OJ 1998 L201, p 88). Article 3 of the amended version reproduced in substance the provisions of article 3 of the 1977 Directive, as the ECJ noted in Werhof, para 4. Council Directive 2001/23/EC of 12 March 2001 (OJ 2001 L82, p 16) has replaced the 1977 Directive, but the tenor of the wording used in the article 3 of the 1998 Directive has been retained: Werhof, in the opinion of Advocate General Ruiz Jarabo Colomer, para 9. As both the Advocate General and the Court of Justice directed their attention to the wording of the 1977 Directive in Werhof, and as that was the Directive that TUPE was intended to implement, I shall do the same for the purposes of this judgment. The preamble to the Directive included the following recitals : Whereas it is necessary to provide for the protection of employees in the event of a change of employer, in particular, to ensure that their rights are safeguarded; Whereas differences still remain in the Member States as regards the extent of the protection of employees in this respect and these difference should be reduced; Whereas these differences can have a direct effect on the functioning of the common market; Whereas it is therefore necessary to promote the approximation of laws in this field . No mention was made in the recitals of any need to protect employers in the event of a change in employer as against the rights that were to be safeguarded for the protection of the employees. In article 1(1) of the Directive it was declared that the Directive was to apply to the transfer of an undertaking, business or part of a business to another employer as a result of a legal transfer or merger. Article 3 of the Directive included these provisions: 1.The transferors rights and obligations arising from a contract of employment or from an employment relationship existing on the date of a transfer within the meaning of article 1(1) shall, by reason of such transfer, be transferred to the transferee. Member States may provide that, after the date of the transfer within the meaning of article 1(1) and in addition to the transferee, the transferor shall continue to be liable in respect of obligations which arose from a contract of employment or an employment relationship. 2. Following the transfer within the meaning of article 1(1), the transferee shall continue to observe the terms and conditions agreed in any collective agreement on the same terms applicable to the transferor under that agreement, until the date of termination or expiry of the collective agreement or the entry into force or application of another collective agreement. Member States may limit the period for observing such terms and conditions, with the proviso that it shall not be less than one year. As the aim of the Directive was the approximation of the laws of the Member States, not their harmonisation, article 7 of the Directive provided: This Directive shall not affect the right of member states to apply or introduce laws, regulations or administrative provisions which are more favourable to employees. In that connection it should be noted that the Directive did not apply to sea going vessels: article 1(3). Nor, according to consistent decisions of the Court of Justice, did it apply to transfers of undertakings in the context of insolvency proceedings unless the undertaking had continued to trade or was expected to continue to trade: see Transport and General Workers Union v Swissport (UK) Ltd (in administration) and another [2007] ICR 1593, paras 56 58. TUPE was made under the authority of section 2 of the European Communities Act 1972, subsection (2) of which, as amended by section 27(1) of the Legislative and Regulatory Reform Act 2006, provides inter alia that at any time after the passing of that Act any designated Minister or department may by order, rules, regulations or scheme make provision for the purpose of implementing any EU obligation of the United Kingdom or enabling any such obligation to be implemented. Paragraphs (1) and (2) of Regulation 5 of TUPE, as amended by section 33(4)(a) and (b) of the Trade Union Reform and Employment Rights Act 1993, provided: (1) Except where objection is made under paragraph (4A) below, a relevant transfer shall not operate so as to terminate the contract of employment of any person employed by the transferor in the undertaking or part transferred but any such contract which would otherwise have been terminated by the transfer shall have effect after the transfer as if originally made between the person so employed and the transferee. (2) Without prejudice to paragraph (1) above, but subject to paragraph (4A) below, on the completion of a relevant transfer (a) all the transferors rights, powers, duties and liabilities under or in connection with any such contract shall be transferred by virtue of this regulation to the transferee; and (b) anything done before the transfer is completed by or in relation to the transferor in respect of that contract or a person employed in that undertaking or part shall be deemed to have been done by or in relation to the transferee. A relevant transfer is a transfer to which TUPE applies, that is to say a transfer from one person to another of an undertaking situated immediately before the transfer in the United Kingdom: regulation 3, read with regulation 2(1). Regulation 5(4A), which was inserted by section 33(4)(c) of the 1993 Act, provided that paragraphs (1) and (2) were not to operate to transfer the employees contract of employment and the rights, powers, duties and liabilities under or in connection with it if he informs the transferor or the transferee that he objects to becoming employed by the transferee. Regulation 6 of TUPE was in these terms: Where at the time of a relevant transfer there exists a collective agreement made by or on behalf of the transferor with a trade union recognised by the transferor in respect of any employee whose contract of employment is preserved by regulation 5(1) above, then (a) without prejudice to section 18 of the 1974 Act or article 63 of the 1976 Order (collective agreements presumed to be unenforceable in specified circumstances) that agreement, in its application in relation to the employee, shall, after the transfer, have effect as if made by or on behalf of the transferee with that trade union, and accordingly anything done under or in connection with it, in its application as aforesaid, by or in relation to the transferor before the transfer, shall, after the transfer, be deemed to have been done by or in relation to the transferee; and (b) any order made in respect of that agreement, in its application in relation to the employee, shall, after the transfer, have effect as if the transferee were a party to the agreement. Section 18 of the 1974 Act is now to be found in section 179 of the Trade Union and Labour Relations (Consolidation) Act 1992. The interpretative obligation in domestic law I shall deal with this question first so that the decision of the Court of Justice in Werhof [2006] ECR I 2397, which is the most troublesome aspect of this case, can be examined in the right context. The appellants submit that, even if the ruling in Werhof is inconsistent with the interpretation of regulation 5 of TUPE for which they contend, it does not warrant any reading down of regulation 5 given that article 7 of the Directive expressly authorises more generous protection for employees. The respondents, on the other hand, say that regulation 5 of TUPE was introduced to implement, and to do no more than implement, article 3 of the Directive and that, in that situation, the courts of the United Kingdom are obliged to construe the domestic legislation consistently with the Directive and rulings of the Court of Justice as to the meaning and scope of the Directive. As to the latter point, it is well established that it is the duty of the court to construe domestic legislation which has been enacted to give effect to the United Kingdoms obligations under the EU Treaty so as to conform to those obligations, so far as it is possible to do so. In Pickstone v Freemans plc [1989] AC 66 it was held that words were to be implied into a regulation which was designed to give effect to Council Directive 75/117/EEC dealing with equal pay for women doing work of equal value. This was because, if the House had not been able to make that implication, the United Kingdom would have been in breach of its treaty obligations to give effect to Directives. In Litster v Forth Dry Dock & Engineering Co Ltd [1990] 1 AC 546, where the employees had been dismissed a short time before the transfer became operative, the issue was as to the meaning of the words immediately before the transfer in regulation 5(3) of TUPE. Lord Keith of Kinkel said at p 554: it is the duty of the court to give to regulation 5 a construction which accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect. The precedent established by Pickstone v Freemans plc indicates that this is to be done by implying the words necessary to achieve that result. Lord Oliver of Aylmerton said at p 559: If the legislation can reasonably be construed so as to conform with those obligations obligations which are to be ascertained not only from the wording of the relevant Directive but from the interpretation placed upon it by the European Court of Justice at Luxembourg such a purposive construction will be applied even though, perhaps, it may involve some departure from the strict and literal application of the words which the legislature has elected to use. This approach is consistent with what the Court of Justice itself said in von Colson and Kamann v Land Nordrhein Westfalen (Case 14/83) [1984] ECR 1891 with regard to Council Directive 76/207/EEC on the implementation of the principle of equal treatment for men and women as regards access to employment (OJ 1976 L39, p 40). In para 26 the court said that: the member states obligation arising from a Directive to achieve the result envisaged by the Directive and their duty under article 5 of the Treaty to take all appropriate measures, whether general or particular, to ensure the fulfilment of that obligation, is binding on all the authorities of member states including, for matters within their jurisdiction, the courts. It follows that, in applying the national law and in particular the provisions of a national law specifically introduced in order to implement Directive 76/207, national courts are required to interpret their national law in the light of the wording and the purpose of the Directive in order to achieve the result referred to in the third paragraph of article 189. All of this is, of course, now very well known and it is common ground between the parties. Mr Linden QC for the appellants submitted, however, that there was no decision of the Court of Justice which prohibits the domestic court from doing other than applying its domestic law approach to interpretation in a case where there was no reason to be concerned that the domestic provisions fell short of what Community law requires. In R (Hurst) v London Northern District Coroner [2007] UKHL 13, [2007] 2 AC 189, para 52 Lord Brown of Eaton under Heywood said that the interpretative effect that Community law required was strictly confined to those case where, on their particular facts, the application of the domestic legislation in its ordinary meaning would produce a result incompatible with the relevant European Community legislation. In cases where no European Community rights would be infringed, the domestic legislation is to be construed and applied in the ordinary way. Mr Linden referred to two decisions of the Court of Justice that he said supported this approach to the construction of domestic legislation by national courts. They showed, he said, that it was open to national courts to adopt an interpretation of domestic legislation that had been designed to give effect to the result sought to be achieved by a Directive that was more favourable than that indicated by the Directive itself. In Katsikas v Konstantinidis (Joined Cases C 132/91, C 138/91 and C 139/91) [1992] ECR I 6577 the court was asked to consider a provision in article 613a(1) of the German Domestic Code which had been held by the German Labour Court to have the effect of preventing a transfer of the employment relationship where one of the employees had objected to the transfer of his employment by the business in which he was employed. Provisions to the same effect are now to be found in regulations 5(4A) and 5(4B) of TUPE. The question was whether the words laws, regulations or administrative provisions in article 7 of the Directive, which enable Member States to introduce laws which were more favourable to employees than the Directive, covered more favourable interpretations of measures of that kind given by national courts. The court said in paras 39 and 40 that it had been consistently held that the scope of national laws, regulations and administrative provisions had to be assessed having regard to the interpretation given to them by the national courts and that the expression used in article 7 must be understood as referring to those measures as they are interpreted by the courts of that state. In Criminal Proceedings against Lindqvist (Case C 101/01) [2004] QB 1014 questions had been referred to the Court of Justice as to whether Council Directive 95/46/EC on the protection of individuals with regard to the processing of personal data was compatible with the general principles of freedom of expression and whether national rules might be introduced that were more restrictive than the Community provisions. As to the first point, the court said in para 85 that it was at the stage of the application at national level of the legislation implementing the Directive in individual cases that a balance must be found between the rights and interests involved. The courts of the member states had to make sure, however, that they did not rely on an interpretation which would be in conflict with the fundamental principles protected by the Community legal order: para 87. In paras 97 98 it said: 97 It is true that Directive 95/46 allows the member states a margin for manoeuvre in certain areas and authorises them to maintain or introduce particular rules for specific situations, as a large number of its provisions demonstrate. However, such possibilities must be made use of in the manner provided for by Directive 95/46 and in accordance with its objective of maintaining a balance between the free movement of personal data and the protection of private life. 98 On the other hand, nothing prevents a member state from extending the scope of the national legislation implementing the provisions of Directive 95/46 to areas not included within the scope thereof, provided that no other provision of Community law precludes it. The question that these decisions give rise to are (1) whether regulations 5(1) and 5(2) of TUPE were designed to be more generous than article 3(1) of the Directive as interpreted by the Court of Justice in Werhof [2006] ECR I 2397, according to the respondents reading of that decision; and (2) if not, whether it is open to the national court to construe regulation 5 of TUPE more generously because to do so is not precluded by article 3(1). Was regulation 5 of TUPE designed to be more generous? There is no doubt that in some respects TUPE was more generous to employees than the Directive. As already noted (see para 16, above), the Directive did not apply to sea going vessels. In Castle View Services Ltd v Howes 2000 SLT 696, however, the First Division of the Court of Session held that the crews of such vessels were not excluded from the benefit of the regulations: see also NUMAST v P&O Scottish Ferries Ltd [2005] ICR 1270. In Transport and General Workers Union v Swissport (UK) Ltd (in administration) [2007] 1CR 1593 it was held that TUPE applied to transfers of undertakings in insolvency cases, whereas the Directive did not. TUPE did not adopt the one year maximum on the period for observing collective agreements after a transfer in regulation 6, as member states were authorised to do by the second paragraph of article 3(2). And regulations 5(4A) and 5(4B) introduced by section 33 of the Trade Union Reform and Employment Rights Act 1993, which enable employees to object to being transferred, are also more generous: Katsikas v Konstantinidis v Stauereibetreib Paetz [1992] ECR I 6577. It is not possible, however, to detect anything in regulations 5(1) and 5(2) of TUPE that is so obviously more generous than what is to be found in article 3(1) of the Directive. Regulation 5(1) does say something that article 3(1) does not say in so many words. This is that a relevant transfer shall not operate so as to terminate the contract of employment, which shall have effect after the transfer as if originally made between the employee and the transferee. Article 3(1) leaves this to implication, concentrating as it does on the fundamental point that the transferors rights and obligations arising from the contract shall, by reason of the transfer, be transferred to the transferee. This is the point that is picked up, admittedly in more elaborate language, in regulation 5(2)(a) and (b). The words rights and obligations are expanded to rights, powers, duties and liabilities. But the expanded phrase does not encompass anything more than was caught by the words used in article 3(1). So there is in substance no difference. Regulation 5(2)(b) goes on to refer to things done in relation to the transferor before the transfer, which are deemed to have been done by or in relation to the transferee. But here too we find an expanded description of what is already captured by the words rights and obligations in article 3(1). Mr Linden sought to find support for his argument as to the intention of Parliament from the fact that regulations 4(1) and (2) of the 2006 Regulations which came into force on 6 April 2006 were in almost the same terms as regulations 5(1) and (2) of TUPE. He submitted that, by re enacting the equivalent provisions of TUPE, Parliament must be taken to have endorsed the interpretation that had been given to those provisions in BET Catering Services Ltd v Ball and Whent v T Cartledge Ltd (see para 7, above). I do not think that it is open to us to make that assumption. No reference to these authorities was made in the Public Consultation Document issued by the Employment Relations Directorate of the Department of Trade and Industry in March 2005 and none of the questions that were asked were addressed to this point. Furthermore, by the time the 2006 Regulations were laid before Parliament on 7 February 2006 the Advocate Generals opinion in Werhof [2006] ECR I 2397 was in the public domain. It was delivered on 15 November 2005, so anyone who was keeping an eye on what was being said about the effect of article 3(1) of the Directive would have been aware of the raising of the issue as to its limits by that time. The judgment in Werhof was promulgated on 9 March 2006, and the 2006 Regulations came into force on 6 April 2006. This timetable indicates that it would not be safe to infer that Parliaments intention was to do anything more than simply to give continuing effect to the Directive. I think therefore that Rimer LJ summarised the situation correctly when he said that it seemed to him that the language of regulations 5(1) and (2) of TUPE sat harmoniously with that of article 3(1) and gave effect to it: [2010] ICR 793, para 56. In my opinion Parliament must be taken to have intended to do no more, when it was enacting regulations 5(1) and (2), than implement article 3(1) of the Directive. The same must be said of its intention when it was enacting the 2006 Regulations. Is it open to the national court to interpret regulation 5 more generously? I address this question on the assumption, whose soundness I will examine later, that the effect of the decision of the Court of Justice in Werhof [2006] ECR I 2397 is that the transfer of dynamic contractual rights was inconsistent with article 3(1) of the Directive. It seems to me that Mr Lindens argument that it is open to the domestic courts to give regulations 5(1) and 5(2) of TUPE their ordinary meaning derives some support from what the Court of Justice said in the cases of Katsikas v Konstantinidis [1992] ECR I 6577 and Criminal Proceedings against Lindqvist [2004] QB 1014: see paras 24 and 25, above. Lord Keiths statement in Litster v Forth Dry Dock & Engineering Co Ltd (In Receivership) [1990] 1 AC 546, 554 that it is the duty of the court to give to regulation 5 a construction which accords with the decisions of the European Court upon the corresponding provisions of the Directive to which the regulation was intended by Parliament to give effect must be read subject to this qualification. It is open to the national court, as the Court of Justice said in para 98 of Lindqvist, to extend the scope of the national legislation implementing the provisions of the Directive to areas not included within its scope, provided that no other provisions of Community law preclude it. In the present context this means that it would be open to the national court to give regulations 5(1) and 5(2) their ordinary and natural meaning so long as there was nothing in Werhof that indicates that it is not open to it to do so. Mr Lynch QC for Parkwood submits however that this is exactly what, in the light of the ruling in Werhof, the national court cannot do. Werhof Mr Linden submits that there are two main reasons why Werhof v Freeway Traffic Systems GmbH & Co KG [2006] ECR I 2397 is not to be read as having the effect of overruling the case law of the EAT as indicated by Whent [1997] IRLR 153. The first depends on the facts in Werhof. He submits that it was concerned with a different question from that which arises in this case, as it did not concern a term in the employment contract which incorporated terms and conditions as agreed from time to time by a collective bargaining body such as the NJC. The second is that in any event Werhof merely decided that the Directive did not require the transferred employees to be entitled to the benefit of subsequent collective agreements. It did not prohibit national law from being more generous to the employees, in accordance with our own domestic case law as to the effect of regulation 5 of TUPE. Mr Werhofs terms of employment with his original employer were governed by a framework collective agreement and wages agreement in force at the material time for workers in the North Rhine Westphalia metal and electrical industry negotiated between the trade union for the metal industry, of which he was not a member, and the metal and electrical Industry for North Rhine Westphalia, of which the undertaking was a member: Advocate General, para 17; ECJ, paras 7 and 8. The Advocate General acknowledged that, under German employment law, a contract of employment may refer to other instruments such as collective agreements which have not necessarily been concluded by the contracting parties: para 30. These clauses act statically or dynamically, depending on whether they refer to a specific agreement which is in force or to the agreement applicable at any time to the undertaking or economic sector in which the business is conducted: para 32. Mr Werhofs agreement was of the dynamic kind. This was what gave rise to the problem with which his case was concerned. As the Advocate General explained in para 33, the problem arose as to the legal effects of an agreement of that kind when the undertaking has been transferred, where the transferor was a member of the employers federation with whom the union negotiated but the transferee was not and the collective agreement was replaced by another one after the transfer. The referring court, the Landesarbeitsgericht at Dsseldorf, was in doubt as to whether the right to participate in amendments made to agreements following the transfer was one of the rights that passed to the transferee under article 3(1) of the Directive. This was because, as the Advocate General explained in para 35, in Germany, the Bundesarbeitsgericht (Federal Labour Court) has interpreted paragraph 613a of the BGB stating that, under the second sentence, the collectively agreed rules become a constituent part of the contract of employment with the content that they possess at the time when the business is transferred and subsequent amendments are not relevant, because a right to benefit from the advantages of further dynamic development in negotiation cannot be inferred, since the protection granted to the rights of workers is static; the Bundesarbeitsgericht, combining the first sentence of the provision with paragraphs 3 and 4 of the TVG [Law on Collective Agreements: Advocate General, para 10], also considers that subjection of workers to subsequent collective agreements cannot do without the subjection of the employer; otherwise, if the company were transferred, the position of the employees would depend on the concluding of an arrangement for parity of treatment. The point that the Advocate General was making in the concluding part of this paragraph was that the system of collective bargaining that was in issue in that case was enforceable by statute, which required the employer to be a member of the employers federation that was a party to the collective agreement. The only way the collective agreement could be rendered enforceable, if the statute did not apply to it, would be by entering into a contract which gave parity of treatment to the employee. Mr Werhofs contract of employment was not of that kind. The first sentence of paragraph 613a(1) of the BGB provides that, where a business is transferred to another owner, the rights and obligations arising from the employment relationship existing on the date of the transfer shall pass to the owner. The second sentence provides that, where the rights and obligations are governed by the provisions of a collective or works agreement, they shall be incorporated into the employment relationship with the new owner and the employee. This was the provision that the Federal Labour Court had interpreted as having the effect that such agreements had the content that they possessed at the time when the business was transferred and that subsequent amendments were not relevant. The question that the case raised was whether this interpretation was precluded by article 3(1) of the Directive. The Advocate General drew attention to the distinction between articles 3(1) and 3(2) of the Directive in paras 38 43. Article 3(1) refers to clauses applying to individuals and article 3(2) to those stipulated in a collective agreement. Where the document concluded by the worker and the employer refers to a collective agreement on a matter such as wages it is governed by article 3(1) because it is included in an individual contract. But the collective provision to which the parties refer is governed by article 3(2). He drew attention too to the fact that the right to freedom of association under article 11 of the European Convention on Human Rights includes the right not to join or to withdraw from an association: Young, James and Webster v United Kingdom (1981) 4 EHRR 38; Gustafsson v Sweden (1996) 22 EHRR 409, para 45. In para 49 he observed that if the new owner wished to participate in agreements with the unions he would have to join the negotiating employers federation which would curtail his freedom of association. In paras 51 52 the Advocate General said that the right of a person acquiring an undertaking must prevail over any other of lesser importance, such as the right of the employee to the financial advantages arising from the development of the collective agreements signed by the transferor, otherwise the consequences would be similar to contracts imposing obligations on third parties in breach of the general principle pacta tertiis nec nocent. In para 53 he concluded that a dynamic interpretation of the clause in Mr Werhofs contract was inappropriate. He suggested that the Court of Justice should rule that it was not contrary to article 3(1) of the Directive if a transferee, who was not a member of an employers federation which negotiates such agreements, did not apply collective agreements which had replaced the one which was in force at the time of change of ownership. The Court of Justice was more guarded in its approach to the question whether the principle that contracts cannot impose obligations on third parties would be infringed. In paras 24 and 25 it noted that the Community legislature has sought to ensure that, on the transfer of an undertaking, employees enjoyed special protection designed to prevent the erosion which could result from the application of that principle. According to the case law of the court, the Directive was intended to safeguard the rights of employees by allowing them to continue to work for the new employer on the same conditions as those agreed with the transferor. The rights and obligations arising from a collective agreement to which the contract of employment refers were automatically transferred to the new owner even if the new owner was not a party to any collective agreement. That having been said, however, the court found two reasons for holding that Mr Werhof could not maintain that his clause referring to collective agreements must necessarily be dynamic, so that by the application of article 3(1) of the Directive it referred to collective agreements concluded after the date of the transfer. The first was that account had to be taken of article 3(2), which contained limitations to the principle that the collective agreement to which the contract of employment referred was applicable. It showed that the object of the Directive was merely to safeguard the rights and obligations of employees in force on the date of the transfer, and was not intended to protect hypothetical advantages flowing from future changes to collective agreements: paras 28 29. The second was that, although the interests of the employees must be protected, those of the transferee could not be disregarded. If the dynamic interpretation were to be applied it would mean that the transferees fundamental right not to join an association could be affected, whereas that right would be fully safeguarded if the static interpretation were to be adopted: paras 31 35. The Court concluded its judgment with a ruling in these terms, at para 37: . Article 3(1) of the Directive must be interpreted as not precluding, in a situation where the contract of employment refers to a collective agreement binding the transferor, that the transferee, who is not a party to such an agreement, is not bound by collective agreements subsequent to the one which was in force at the time of the transfer of the business. [emphasis added] Is a dynamic interpretation precluded by article 3(1)? The Advocate Generals summary of the facts indicates that the system under national law which applied in Werhof was different from that which formed the context for the appellants contracts of employment with the council. Among other things, the German employment law with reference to which Mr Werhofs employment contract was framed assumes that the employer is a member of the employers federation which is a party to the collective agreement and, in consequence, is bound by statute to comply with it: Advocate General, para 12; see also Employment Law In Europe 2nd ed (2009), paras 11.197 11.200. There is no such statutory obligation in our domestic law, nor is membership of the negotiating body a prerequisite for the enforceability of any agreement that has been reached collectively. It all depends upon what the parties have provided for in their individual contracts. There is therefore something to be said for Mr Lindens submission that the decision in Werhof is distinguishable on its facts, especially as to the point that the Court of Justice made in paras 31 35 of its judgment about the transferees fundamental right not to be required to join an employers federation. The more important point of distinction for present purposes, however, is the second point on which Mr Linden relies: see para 34, above. The question which the Court of Justice addressed by its ruling in Werhof is not the same as that which requires to be answered in this case. It was sufficient to resolve the issue that had been raised by the referring court for it to say that the ruling of the Federal Labour Court summarised by the Advocate General in para 35 of his opinion was not precluded by article 3(1) of the Directive. In our case the question has to be looked at the other way round. This is because, as the Court of Justice recognised in Criminal Proceedings against Lindqvist [2004] QB 1014, para 98, there is nothing to prevent a member state from extending the scope of the national legislation implementing the provisions of the Directive to areas not included within it, so long as no other provisions of Community law preclude this. It would, of course, not be open to the national court to adopt that approach if the effect of the Directive was that it was precluded by it. That is why the way in which the Court of Justice framed its ruling in Werhof does not answer directly the question that needs to be resolved in this case. The absence of a direct answer to it would not have given rise to difficulty if it had been possible to infer from the judgment how the question would have been answered. Mr Lynch invited us to draw that inference, as his case is that the principle enunciated in the judgment is that the transfer of dynamic contractual rights is inconsistent with the Directive so regulation 5 of TUPE must be confined to static contractual rights. But it is not obvious, if it is open to the national courts to interpret legislation that was intended to give effect to the Directive more generously in favour of employees than the Directive itself envisaged, why this should be so. The first of the two reasons for the courts decision, that the object of the Directive was merely to safeguard the rights and obligations of employees in force on the date of the transfer, would not seem to preclude a more generous interpretation if the national court thought that this was appropriate to give effect to the ordinary meaning of TUPE. There are various reasons for thinking that, when TUPE was originally being framed, it was thought that employment contracts such as those which the appellants entered into which provided for a dynamic approach to be taken to collective agreements were permitted by the Directive. The aim of the Directive was to promote approximation of laws among the member states, not their harmonisation. None of the recitals in the preamble refer to a need to balance protection for employers against the protection given to employees in the event of a change of employer. And it was stated in article 7 of the Directive that it was not to affect the right of member states to introduce laws which are more favourable to employees. It hardly needs to be said that the question whether Werhof precludes the dynamic approach, if this is indeed what the employment contract interpreted according to the principles of domestic law provides for, is of fundamental importance to the many employees who work in sectors where their terms and conditions of employment are commonly determined through collective bargaining. The second reason for the courts decision was its finding that, when interpreting the Directive, account had to be taken of the principle of the coherence of the Community legal order which required secondary Community legislation to be interpreted in accordance with the general principles of Community law among which was that the right not to join an association or a union was protected in the Community legal order: paras 32 33. As I have already mentioned, this point was directly relevant in Mr Werhofs case because of the way German employment law deals with collective agreements. Our domestic law is entirely different. There is no equivalent statutory framework. The matter depends entirely on the domestic law of contract, under which parties are at liberty to agree to abide by agreements arrived at by a process in which they do not, and are not required to, participate. Parkwood has not sought to argue that regulation 5 of TUPE is objectionable because it breached its article 11 Convention right of freedom not to join an association. There is no question of its being forced to become a member of one of the participants in the NJC. The appellants contracts do not require this, and in any event it would not be eligible to do so. In these circumstances, as I consider the answer to the question not to be acte clair, I would refer the issue as to whether article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to regulation 5 of TUPE in the circumstances of this case to the Court of Justice of the European Union for a preliminary ruling under article 267 TFEU (ex article 234 EC). I would invite the parties to make submissions in writing within 28 days on the questions to be referred to the Court of Justice.

The issue in this appeal is whether, where there has been a transfer of employees to which the Transfer of Undertakings (Protection of Employment) Regulations 1981 (TUPE) apply, the new employer is bound by a term of an employees contract of employment which provides that terms and conditions of employment will be in accordance with collective agreements negotiated from time to time. UK courts have previously held that Regulation 5 TUPE renders such a dynamic clause enforceable against the new employer. This appeal considers whether that approach requires to be modified in light of a decision of the European Court of Justice in Werhof v Freeway Traffic Systems GmbH & Co KG (Case C 499/04) [2006] ECR I 2397 (Werhof). Werhof interpreted Article 3(1) of the Directive which TUPE implements in domestic law (Directive 77/187/EEC on the approximation of the laws in the Member States relating to the safeguarding of employees rights in the event of transfers of undertakings, businesses or parts of businesses, as amended (the Directive). The Appellants are former employees of the London Borough of Lewisham (the council) who worked in the councils leisure department until 2002. The council subscribed to the National Joint Council for Local Government Services (the NJC). The Appellants contracts of employment provided that their terms and conditions of employment will be in accordance with the collective agreements negotiated from time to time by the NJC supplemented by agreements reached locally through the councils negotiating committees. In 2002 the part of the councils undertaking in which the Appellants worked was contracted out to CCL Ltd. In 2004, CCL Ltds undertaking was taken over by the Respondent, another private sector employer. TUPE applied to each of these transfers. The employees therefore first became employees of CCL Ltd and then of the Respondent. At the date of the transfer to CCL Ltd, there were collectively agreed terms setting out pay rates from 1 April 2002 to 31 March 2004. Subsequent NJC settlements provided for further pay increases. The Respondent refused to increase the Appellants pay in line with the NJC settlement with effect from 1 April 2006 and 1 April 2007. The Appellants brought claims for unauthorised deduction from wages. These were dismissed by the Employment Tribunal. The Appellants appeal to the Employment Appeal Tribunal was successful, but the Court of Appeal restored the Tribunals decision. It held that Werhof meant that Article 3(1) of the Directive did not bind the transferee to any collective agreement made after the transfer and that Regulation 5 TUPE did not indicate any intention to provide employees with greater protection. The Appellants appealed to the Supreme Court. The Supreme Court unanimously holds that there should be a reference to the Court of Justice of the European Union for a preliminary ruling to establish whether Article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to Regulation 5 of TUPE in the circumstances of this case. Lord Hope gives the judgment, with which the other members of the court agree. Domestic legislation enacted so as to give effect to the UKs EU obligations must be construed so as to conform to those obligations, so far as possible to do so. Two questions arise: (i) whether Regulations 5(1) and 5(2) TUPE were designed to be more generous than Article 3(1) of the Directive, as interpreted in Werhof; (ii) if not, whether it is open to the national court to construe those Regulations more generously because that is not precluded by Article 3(1) of the Directive: [19] [26]. As to the first question, Parliament must be taken to have intended to do no more in enacting Regulations 5(1) and (2) TUPE than implement Article 3(1) of the Directive. Regulations 5(1) & (2) TUPE provided that contracts of employment to which it applied were to have effect after the TUPE transfer as if originally made between the employee and the transferee. Although in some respects TUPE was more generous to employees that the Directive, there was nothing indicating such an intention in Regulations 5(1) & (2). Although it is the 1981 TUPE Regulations which apply to this case, they were replaced by new regulations in 2006, which contained equivalent provisions to Regulations 5(1) & (2). It was not possible to infer from this that Parliament had intended to endorse the interpretation which had been given to Regulation 5 in the existing domestic case law: [28] [30]. As to the second question, it is open to a national court to extend the scope of national legislation implementing a Directive to areas not included within the scope of the Directive, provided that no other provisions of EU law preclude that: [32]. The scope of Article 3 has now been interpreted by the ECJ in Werhof, which was a preliminary reference from Germany. German law provides that collectively agreed rules become part of the employment contract with the content that they possess at the time when the business is transferred and are not updated after the transfer. It therefore adopts a static approach. The ECJ held such an approach was not precluded by Article 3(1) of the Directive: [37] [42] The question in this case is a different one: whether a member state is precluded from extending the protection afforded to employees on transfer, so as to provide dynamic protection, where that would be the consequence of an application of domestic contract law: [44]. It was not possible to infer from Werhof how the ECJ might have answered that question: [45]. First, the Directives aim was to promote approximation, not harmonisation, of law. It was not to affect the right of member states to introduce laws more favourable to employees: [46]. Secondly, in Werhof the ECJ had taken into account the new employers right not to join an association or union, protected by Article 11 of the European Convention on Human Rights. That had been of relevance there because of the way German employment law deals with collective agreements. It was not a concern in this case, because the matter depended entirely on the domestic law of contract: [47]. The question whether Article 3(1) of the Directive precludes national courts from giving a dynamic interpretation to regulation 5 of TUPE in the circumstances of this case should therefore be referred for a preliminary reference to the Court of Justice: [48].

8k-16k

This appeal challenges the validity of two patents, which seek to confer a monopoly over the creation of a range of types of transgenic mouse. The subject matter, genetic engineering for medical purposes, is of great technical complexity, but the legal question which falls for determination in this court may be quite shortly stated. It is a general requirement of patent law both in this country and under the European Patent Convention (EPC) that, in order to patent an inventive product, the patentee must be able to demonstrate (if challenged) that a skilled person can make the product by the use of the teaching disclosed in the patent coupled with the common general knowledge which is already available at the time of the priority date, without having to undertake an undue experimental burden or apply any inventiveness of their own. This requirement is labelled sufficiency. It is said that the invention must be enabled by the teaching in the patent. Patent protection is sometimes claimed for a single product, but sometimes for a range of products. Whether the patent claims one or the other is a question of construction of the claim (or claims) in the patent. In the latter case the sufficiency requirement has usually been expressed as meaning that the invention must be enabled over the whole of the range of products for which the claim is made. In the present case both the trial judge (the late Henry Carr J) and the Court of Appeal construed the relevant claim as extending to a range of products (transgenic mice) answering a certain description. The judge held that the teaching in the patent did not enable any type of mouse within the range to be made, let alone mice across the whole of the relevant range. The Court of Appeal held, to the contrary, that the teaching in the patent, coupled with the available common general knowledge as at the priority date, did enable some types of mouse within the range to be made, but not all types across the whole range. There is no appeal against that essentially factual finding. But they held that the sufficiency requirement was nonetheless satisfied, because the invention for which protection was claimed amounted to an inventive, indeed ground breaking, general principle, such that every type of mouse with the specified characteristics would display the particular benefits which the invention was designed to achieve, benefits which would not be displayed by any types of mouse outside the specified range. The invention constituted by the specified characteristics was therefore sufficiently enabled across the whole scope of the claim, and matched the contribution which the disclosure of the invention made to the article The question for this court is therefore whether a product patent, the teaching of which enables the skilled person only to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made. This is a pure question of law, but an understanding of its implications requires at least a bare summary of the technical context in which it arises. A full description of the technical context may be found in the judgments of the courts below. The Technical Background in Outline By the priority date, which was 16 February 2001, it was well recognised that antibodies (also known as immunoglobulins) could be used for treatment of disease in humans, by way of augmentation of, or in substitution for, antibodies produced by the patients own immune systems. Since the development of antibodies is a natural process shared by mammals generally, and since ethical constraints prevented the use of fellow humans as platforms for antibody development, mice had been identified as suitable platforms for the development of antibodies suitable for use in treatment of humans, and were already in use for that purpose by the priority date. Two main problems inhibited the use of mice for that purpose. The first was that humans tend to reject murine antibodies. The second was that if human antibody genes are genetically implanted in mice, so that the mice then produce human antibodies coded from those genes, then the mice suffer from a reduced immune response, and therefore reduced development of suitable antibodies in response to antigens, which seriously impairs their efficiency as platforms for antibody development. In the jargon of this litigation, this rendered the mice immunologically sick. The solution, which is the innovative idea at the heart of this case, was to develop a hybrid (chimeric) antibody gene structure, consisting in part of human and in part of murine elements, created by insertion into the genome of the mouse. Mammalian antibodies are proteins which all share a characteristic structure consisting of four polypeptide chains, two identical heavy chains and two identical light chains bonded in a Y formation. Each chain has a constant region, so named because it does not vary in its segments, called C segments, and a variable region, in which the segments vary between different antibodies. In both mice and humans the variable regions consist, in the light chains, of V (variable) and J (joining) segments and, in the heavy chains, of V, D (diversity) and J segments. Production of antibodies is one of the major functions of B cells. The natural development of specific antibodies in humans and mice involves a complex process of rearrangement among the segments in the variable regions, within the B cells which are created in the bone marrow. During this stage of development, each B cell acquires a B cell receptor on its surface. As a result of different combinations of the V, D and J segments, B cells are created with a variety of B cell receptors. As all the antibodies made by one B cell are identical, it is necessary to produce a diversity of B cells in order to have a diversity of antibodies. The degree of variety is important, because the body faces invasion by a wide variety of antigens associated with disease. The effectiveness of the bodys immunological response against a specific antigen depends upon the body producing a B cell whose receptor happens to be capable of binding to that antigen. The chances of that happening are increased the greater the number of different B cells (with different receptors) which the body produces. Repeated rearrangements of the V, D and J segments (known as somatic gene rearrangement or V(D)J recombination) through combinatorial use of a number of different gene segments coding for the polypeptide chains means that a huge variety of antibodies can be generated eventually. Where a B cell does encounter an antigen to which it binds, it is activated and induced to divide and differentiate. Repeated cell divisions give rise to sizeable clones that depend on antigen recognition for their survival. B cells that are unable to bind the antigen simply die. Those that do bind the antigen can be taken and subjected to other processes to produce antibodies in quantities which can be introduced into humans to combat or vaccinate against that particular antigen. It was generally understood, at least as at the priority date, that these processes of rearrangement were likely to be optimised, and the range of potential and effective antibodies increased, if the antibody genes implanted in the mice had as many as possible of the human V, D and J segments included within them. A typical human heavy chain gene locus has around 125 V segments (each different from the others), 27 D segments and nine J segments in the variable region. If the V and J segments in the light chains gene loci are factored in as well, the number of possible combinations which may be made from the human antibody gene loci is about 1.5m. The hybrid gene structure at the heart of the present dispute was designed to combine within one antibody gene structure the murine constant region and the whole of the human variable region. That was indeed what the patents in issue taught. But the judge found that the formidable difficulties in producing such a hybrid gene structure could not be surmounted at all by the combination of the existing common general knowledge and the disclosure in the patents. By contrast, the Court of Appeal found that it could be done, by a combination of the prior knowledge and the disclosure in the patents, but only so as to produce a hybrid gene structure with a small sub set of the 125 human V segments in the variable region (on the appellants estimate between two and six V segments), and an unspecified number of human D and J segments. Transplantation of the whole of the human variable region into a hybrid gene structure has since been achieved but only with the benefit of further inventive processes not forming part of the disclosure of the patents or the prior article The name given to this type of hybrid gene structure, containing the murine constant region and all or part of the human variable region is the Reverse Chimeric Locus. Once created in the mouse genome, it operated as the code for the production of a variety of hybrid antibodies which, when the B cells which contain the relevant coding are isolated and removed, could then have the murine constant regions removed and replaced with human equivalents before mass production and use in humans for therapy. The Patents in Issue The foregoing bare outline of the technical background makes it possible to understand the relevant claims of the patents in issue, to the limited extent necessary for the resolution of the single issue of law before this court. The dispute relates to two patents obtained by the respondent, Regeneron Pharmaceuticals Inc, each with a priority date of 16 February 2001, and each with substantially the same disclosure for the purpose of justifying different claims. They are European Patent (UK) No 1 360 287 (the 287 Patent) and European Patent (UK) No 2 264 163 (the 163 Patent). The 163 Patent is a divisional of the 287 Patent. The challenge to validity arose because Regeneron alleged infringement by Kymab Ltd of claim 1 in the 163 Patent and claims 5 and 6 of the 287 Patent by the offer to the pharmaceutical industry of its own Kymouse, a transgenic mouse with a Reverse Chimeric Locus some of which included the whole of the human variable segments in both the heavy and the light chain loci. The judge found infringement proved, but that all three claims were invalid for insufficiency. It was common ground before this court that the outcome for the validity of all three claims turns on the validity of claim 1 of the 163 Patent (Claim 1), which reads as follows: A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus. This is of course a product claim, seeking a monopoly for the making (at first sight a strange but serviceable word to use of an animal) of a genetically engineered mouse having the characteristics described in the claim. The characteristics related both to what such a mouse does (namely produce the hybrid antibodies described) and to what is contained in its genome, namely the Reverse Chimeric Locus, achieved by a process of in situ replacement of the murine variable regions in both the light and heavy chain gene loci with the corresponding but of course different human variable regions. The claim seeks protection for the making and exploitation of any type of mouse having those characteristics. Since the description of what the mouse does is more loosely worded than the description of what lies within its genome, it is the latter description which mainly controls the breadth of the claim. All issues as to the construction of Claim 1, ie as to what it means, were resolved in the courts below, and none are subject to appeal in this court. There were, for example, issues as to the meaning of in situ replacement, which no longer matter. But there was a more important issue about whether Claim 1 described a single type of mouse or a range of types which the courts below also resolved, in favour of the range, arising from the meaning of the phrase with human VDJ regions in the heavy chain locus, and the phrase with human VJ regions in the light chain locus. Did this mean (only) all the segments in the VDJ and VJ regions, or did it include any of them? Looking at the V segments, did this capture only a mouse with all 125 human V segments, or also a mouse with only one such segment, and therefore mice with any number of V segments between one and 125? Both the judge and the Court of Appeal concluded that the quoted phrase meant both all and any. It was this interpretation which led them both to conclude that Claim 1 extended to a range of qualifying types of mice, rather than to a single type. Taking the V segments in the heavy chain locus as the best example, the range was denominated by reference to the number, between one and 125, of the human V segments introduced into the mouses genome as part of the human variable region. The conclusion that Claim 1 sought to protect the making of a range of transgenic mice was not in dispute on this appeal, even though every type (or embodiment) within the range would necessarily have a form of Reverse Chimeric Locus as part of its genome. The fact that there is such a range is the foundation for the agreed identification of the legal issue before this court, since the question, as framed above, makes no sense if there is not a relevant range with different types or embodiments within it. There was nonetheless a sharp difference in this court between the parties submissions on the relevance or otherwise of the existence of this range to the question of sufficiency. For the appellant it was submitted that the range was of the highest importance because of its effect upon the ability of a particular type of mouse to produce a wide variety of B cells, and hence its potential to deliver a broad stream of useful antibodies. A mouse fitted with only (say) four V segments from the human variable region gene locus would produce only a small fraction of the variety of B cells that would be produced by a mouse fitted with the entire 125 V segments in the human variable region gene locus. That at least (as the judge found) was the assumption made by the skilled person as at the priority date, even though research and development since 2001 have called into question to some extent the assumption that the full range of 125 V segments is necessary to optimise the desirable combinatorial possibilities needed for there to be a reasonable prospect of delivery of useful antibodies. For the respondent it was submitted that the existence of this range was irrelevant, because the unique advantage conferred by the use of a Reverse Chimeric Locus, namely a cure for the immunological sickness of the recipient mouse, worked across the whole range, regardless of the amount of the human variable region DNA inserted into the murine genome, because it was the product of the retention in the hybrid gene structure of the murine constant region genes. In a functional sense, both these submissions are to an extent literally true, on the facts found by the courts below. The amount of human variable region DNA inserted into the murine genome does substantially affect the usefulness of the mouse fitted with the Reverse Chimeric Locus as (to use the judges summary) a platform for therapeutic antibody discovery. More to the point that was the general understanding at the time of the priority date, and the patents in issue did not teach the contrary. But the ground breaking invention encapsulated and disclosed in the Reverse Chimeric Locus would (and eventually did) deliver a solution to murine immunological sickness across the whole of the range captured by Claim 1, making all of them better platforms than mice which had (as previously) been fitted with fully human antibody gene structures. That analysis does not of itself lead to a conclusion that the range which is denominated by reference to the amount of human variable segments in the hybrid gene structure is irrelevant, for sufficiency purposes. One can imagine an obviously irrelevant range, such as mice which are large and small, of differing colours, or having tails of varying length. No one would say that Claim 1 fails for insufficiency because it includes mice with very short tails (which it does) merely because it does not teach how to make such mice. The quality and diversity of the stream of antibodies which the mouse exists to produce is, so far as is known, wholly unaffected by the length of its tail. The question whether the range denominated by the amount of human segments in the variable region within the Reverse Chimeric Locus is relevant for sufficiency purposes is best answered from the terms of Claim 1 itself. The claim is to mice which produce a stream of antibodies with human variable regions, and the disclosure more generally shows that this stream is for eventual use (after further engineering and mass production) in treating disease in humans. True it is that the particular ground breaking contribution achieved by the invention of the Reverse Chimeric Locus is the delivery of a means of preventing (or greatly reducing) murine immunological sickness, to which the range of embedded human variable segments is irrelevant, but murine immunological health is not an end in itself. It is a means to a different end. Sufficiency the Basic Principle Sufficiency is one of the established tools by which is measured the correspondence, or lack of it, between the protection afforded by the claim and the technical contribution to the art made by the disclosure of the invention in the patent. The other main tools are novelty, inventive step and industrial application: see Actavis Group PTC EHF v ICOS Corpn [2019] UKSC 15; [2019] Bus LR 1318, para 57 per Lord Hodge. The essence of the bargain between the patentee and the public is that the patentee dedicates the invention to the public by making full disclosure of it, in return for a time limited monopoly over its use. The benefit afforded to the public is not merely the disclosure, but the ability to work the invention after the expiry of the monopoly by the use of the disclosure. Where the invention enables patentees to make a particular product, and they seek a monopoly over the making and exploitation of the product (which is what a product claim does), they must disclose enough in the teaching of the patent to enable the public also to make the product. In that context work the invention means make the product: see Generics (UK) Ltd v H Lundbeck A/S [2008] EWCA Civ 311; [2008] RPC 19, para 30 per Lord Hoffmann. If the patentee were able to obtain a product monopoly without disclosing how to make the product, the public would get nothing of substance in return for the grant of the monopoly. Furthermore, other inventors would be deterred from conducting the research and development in fact necessary to take advantage of the inventive idea for the benefit of society as a whole, since during the period of the monopoly they could derive no benefit from their own inventiveness. Similar basic principles apply to the patenting of processes, but such distinctions as there may be do not call for examination here. Disclosure does not, of course, have to enable the product to be made by any member of the public, or solely by using the teaching in the patent. The law creates, distinctly for each patent under scrutiny, a notional skilled person or (as here) skilled team who must be enabled to make the product by the combination of the teaching in the patent, the general technical knowledge available at the priority date, and a reasonable (ie not burdensome) element of experimentation. But the skilled person is not expected to be inventive or even, as is sometimes said, imaginative: see Rockwater Ltd v Technip France SA [2004] RPC 46, paras 7 and 10 per Jacob LJ. Sufficiency Enablement across the Range Starting to apply those basic principles to the question before the court, is disclosure sufficient if the teaching in the patent enables only some but not all of the products within the claimed range to be made? Subject to de minimis exceptions, the instinctive answer would be: surely not. If in principle the patentee should be entitled to a monopoly only over the making of a product which the teaching in the patent enables the skilled person to make, why should not the same principle apply to every product type within the relevant range for which a monopoly is sought? The essential patent bargain is not satisfied in relation to products in that part of the range which cannot be made, using the teaching in the patent. This analysis may be tested by a simple example. Suppose that five types of product (types A to E) were all claimed to be more efficient or useful than their predecessors by the application to their manufacture of the same new invention. The patentee made separate claims in relation to each type, all supported by the same disclosure. Each claim would be subjected to the sufficiency test: could a product of that type be made by use of the teaching in the patent, coupled with the existing common general knowledge? Suppose that types A and B could but C, D and E could not. Then claims A and B would be valid, and the remainder invalid. But now suppose that all five types were covered by the more compendious wording of a single claim. Would this enable the patentee also to obtain a monopoly for the making of types C, D and E? Surely not. The Court of Appeal did not doubt this analysis as a general rule, but concluded that it would defeat the implementation of the essential patent bargain if applied to a case in which the invention amounted to a principle of general application, which would yield the relevant increase in efficiency or usefulness across a range of potential product types if they incorporated the invention, as and when they could be made, even if only a few could be made as at the priority date by using the teaching in the patent. In bare outline their reasoning was as follows. The patent bargain requires that the reward given to the patentee should be commensurate with the contribution which the invention makes to the article An invention which consists of a new generally applicable principle may contribute to the art by its use, not only in products which can currently be made, but equally in products which will only be capable of being made in the future, after further inventive research and development. To limit the patentee strictly to a monopoly over the products which can immediately be made would be to deprive the patentee of any reward for the public benefit which will be derived from the use of that same invention in future types of product. In a fast moving field, where new products quickly outperform their predecessors so as to render them obsolete, the reward of a monopoly limited to those immediately capable of being made would be short lived and illusory. Accordingly the invention should be regarded as sufficiently enabled across the range if it can be seen that it will in due course benefit all products in the range, provided that, as at the priority date, the teaching in the patent enables at least one type to be made immediately. Since the Reverse Chimeric Locus would be likely to deal with murine immunological sickness in mice whose genomes were fitted with all or any amount of the human variable segments, up to and including the whole of the human variable region, its invention was one of those principles of general application which should be regarded as enabled across the whole range contemplated by Claim 1. A monopoly over the making and exploitation of the whole range would correspond with the contribution made by the Reverse Chimeric Locus to the article This is a sophisticated and internally logical process of reasoning, which certainly would tend to increase the rewards obtainable by inventors in a complex, rapidly developing field like genetic engineering for use in treatment of disease. The question is whether it is part of the law or, perhaps, a legitimate development of it. The requirement for sufficiency is now enshrined in article 83 of the EPC as follows (in its English version): The European patent application shall disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the article This is replicated in section 14(3) of the Patents Act 1977 as follows: The specification of an application shall disclose the invention in a manner which is clear enough and complete enough for the invention to be performed by a person skilled in the article Article 100(b) of the EPC makes it a ground of opposition that: the European patent does not disclose the invention in a manner sufficiently clear and complete for it to be carried out by a person skilled in the art; This is reflected in section 72(1)(c) of the Act which provides as a ground for revocation that: the specification of the patent does not disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the article By section 130(7) of the Act, provisions including section 72(1): are so framed as to have, as nearly as practicable, the same effects in the United Kingdom as the corresponding provisions of the European Patent Convention, the Community Patent Convention and the Patent Co operation Treaty have in the territories to which those Conventions apply. Those terse statements of the sufficiency requirement in articles 83 and 100(b) of the EPC and in sections 14(3) and 72(1)(c) of the Act offer no particular illumination in the present debate. Rather the answer is to be found in the European and UK authorities on sufficiency, which were subjected to intensive review both by the Court of Appeal and in submissions to this court. The interpretative objective is to strive for consistency between European and UK patent law: see Generics (UK) Ltd v H Lundbeck A/S [2009] RPC 13, para 86 per Lord Neuberger of Abbotsbury. A chronological review of the relevant decisions of the Technical Board of Appeal of the European Patent Office (EPO) begins with Unilever/Stable Bleaches (T 226/85) ECLI:EP:BA:1987:T022685.19870317, decided in March 1987. The appeal included opposition on the ground of insufficiency. At para 2 the Board provided this general summary of the sufficiency requirement: An attack on the ground of insufficiency under article 100(b) EPC is, of course, based on article 83 EPC which requires that the disclosure of the invention must be sufficiently clear and complete for it to be carried out by the person skilled in the article It is understood that this means that substantially any embodiment of the invention, as defined in the broadest claim, must be capable of being realised on the basis of the disclosure. That case was not specifically about a claim for a range of products, or an assertion that the invention disclosed a generally applicable principle. But such a claim and assertion were directly in issue in Exxon/Fuel Oils (T 409/91) EP:BA:1993:T040991.19930318, decided in March 1993. This has come to be seen as the leading case on the subject of sufficiency across a range. In Generics v Lundbeck (supra) at para 21 Lord Walker of Gestingthorpe described the requirement that the invention be enabled across the whole of the claim as the Exxon principle. At certain temperatures, wax crystals suspended in diesel fuel tend to clog fuel filters in diesel engines. Exxon claimed a monopoly over fuel oils which, within specified temperatures, had wax crystals having an average particle size of less than 4,000 nm. This was challenged on the basis that the claimed range was from 1 nm to 3,999 nm, but the teaching in the patent did not enable fuel oil to be produced (by the insertion of additives) with a wax crystal size below 1,000 nm. This was a relevant range because the smaller the crystal the more easily it would pass through a filter. The sufficiency challenge was eventually met by amending the claim to exclude crystal size below 1,000 nm (although it still failed for other reasons, under article 84 of the EPC). But Exxon sought to defend the claim by asserting that the invention embodied a general principle, applicable across the whole claimed range, that small crystals do not clog filters. Prior to amendment of the claim the sufficiency challenge was upheld, in these terms, at para 2: In other words, in the present case there is absolutely no doubt that all these claims must be so construed as to relate to fuel oils containing wax crystals smaller than 1,000 nanometres. The appellant has admitted that no way of obtaining such fuel oils was disclosed or could be found in the body of relevant common general knowledge. However, in the Boards judgment, in order to fulfil the requirement of article 83 EPC, the application as filed must contain sufficient information to allow a person skilled in the art, using his common general knowledge, to carry out the invention within the whole area that is claimed. Later, at para 3.5, the sufficiency requirement was defined as meaning that: the disclosure of the claimed invention is only sufficient if it enables the skilled person to obtain substantially all embodiments falling within the ambit of the claims At para 3.6 the Board directly addressed the submission that the invention disclosed a general principle, and decided that, even if it did, that made no difference. They said that the claim must fail: regardless of whether or not the alleged principle to avoid the so called cold filter plugging (or clogging) by reducing the size of the wax crystals would be novel and inventive. Despite the very different subject matter there is an obvious similarity between the claimed range in the Exxon case (wax crystals from 3,999 nm down to 1 nm) and the claimed range in the present case (from all the segments in the human variable region locus down to just one V, D and J segment in the heavy chain locus and one V and J segment in the light chain locus). Although the lower the better in Exxon contrasts with the higher the better in the present case, it is a feature of both cases that the invention was not enabled by the disclosure in the patent at the more beneficial end of the range. It is noteworthy that the descriptions of the sufficiency requirement in these EPO cases use the adverb substantially to qualify the strictness of the requirement, meaning that it is a requirement of substance, which may on a de minimis basis still be satisfied where there are or may be a tiny or inconsequential number of embodiments which are not enabled. But the enablement shortfall in the present case is, as already explained, much greater than anything which could be saved by that qualification. In Unilever/Detergents (T 435/91) ECLI:EP:BA:2008, decided in March 1994, the Board described the requirement that the invention be enabled across the whole of the claim as a rule of general application to all inventions, as follows: In the Boards judgment the criteria for determining the sufficiency of the disclosure are the same for all inventions, irrespective of the way in which they are defined, be it by way of structural terms of their technical features or by their function. In both cases the requirement of sufficient disclosure can only mean that the whole subject matter that is defined in the claims, and not only a part of it, must be capable of being carried out by the skilled person without the burden of an undue amount of experimentation or the application of inventive ingenuity. The Board shed some useful light on what the specification in a patent must do if it is to qualify as a general principle which enables an invention across a broad claim. It must disclose: a technical concept fit for generalisation which makes available to the skilled person the host of variants encompassed by the respective functional definition of the . claim. A similar analysis of the contribution which a general concept may make to sufficiency across a range is to be found in Mycogen/Modifying plant cells (T 694/92) ECLI:EP:BA:1996, decided in May 1996, at p 19. The key for present purposes is that the general concept or principle must actually make the embodiments within the claim available. It is not enough for the general inventive concept or principle to make all those variants, if and when they become available, fit or better than their predecessors for beneficial or efficient use. Henry Carr J had this well in mind when he said in the present case (at para 257): I do not accept that all embodiments within the claim are unified by a single principle of a reverse chimeric locus. This is not a principle that enables the method to be performed, rather it is the result of successfully carrying out the method. He was speaking mainly of process rather than product claims at that point, but the principle is the same for both. In relation to Claim 1 he could equally have said that the Reverse Chimeric Locus was not a principle that enables the products to be made, rather it is the result of successfully making the products. Lord Pannick QC, Adrian Speck QC and Justin Turner QC for the respondent relied on three EPO cases which, they submitted, supported the Court of Appeals analysis in the present case. The earliest, Genentech I/Polypeptide expression (T 292/85) ECLI:EP:BA:1988, was decided in January 1988. The Board upheld a patent claiming processes and resulting products which produced a uniform stream of specified polypeptides by the use as input components of a range of bacteria, plasmids and regulons, wide enough to embrace types which had yet to be made available under the then state of the article The Examining Division had rejected the patent because, in its view, the specification did not enable embodiments containing such future input components to be made. The Board of Appeal stated, to the contrary: 3.1.2 There is, however, in the opinion of the Board, no such requirement in the European Patent Convention, nor is such principle established in normal patent practice within the Contracting States. The suggested features in the claims are essentially functional terms in this particular context, in spite of structural connotations, and may cover an unlimited number of possibilities. It follows that the features may generically embrace the use of unknown or not yet envisaged possibilities, including specific variants which might be provided or invented in the future. The Board continued: In appropriate cases, such as the present, it is only possible to define the invention (the matter for which protection is sought article 84 EPC) in a way which gives a fair protection having regard to the nature of the invention which has been described, by using functional terminology in the claims. 3.1.3 What is also important in the present case is the irrelevancy of the particular choice of a variant within the functional terms bacteria, regulon or plasmid. It is not just that some result within the range of polypeptides is obtained in each case but it is the same polypeptide which is expressed, independent of the choice of these means . 3.1.5 Unless variants of components are also embraced in the claims, which are, now or later on, equally suitable to achieve the same effect in a manner which could not have been envisaged without the invention, the protection provided by the patent would be ineffectual. Thus it is the view of the Board that an invention is sufficiently disclosed if at least one way is clearly indicated enabling the skilled person to carry out the invention. At first sight, and taken out of context, (for which see paras 42 and 53 below) the first and last of those quoted passages might appear to provide powerful support for the respondents case. But an attempt to rely upon them for a similar purpose was made and firmly rejected in Unilever/Detergents (T 435/91). At pp 10 11 the Board said: In particular, it is not adequate to take the finding in point 3.1.5 of Decision T 292/85 (OJ EPO 1989, 275) out of its context. It is not only stated there, as quoted by the respondent, that an invention is sufficiently disclosed if at least one way of carrying out the invention is clearly indicated enabling the skilled person to carry out the invention, but in the next sentence it is made clear that any non availability of some particular variants of a functionally defined component feature of the invention is immaterial to sufficiency as long as there are suitable variants known to the skilled person through the disclosure or common general knowledge which provide the same effect for the invention . Moreover, in respect of the functional expression suitable bacterium it was pointed out that the applicability of the claimed method to any kind or most species of bacteria has not been effectively challenged. Similar findings of fact concerned the remaining functional definitions in the considered claim Unilever/Detergents was one of the EPO cases cited above where the requirement that the specification should enable all embodiments across the whole range of the claim was firmly asserted. The Board plainly did not regard that requirement as necessitating any departure from the decision in the Polypeptide case although, if such a departure was the only way of reconciling them, the law ought now to be taken as laid down by the Detergents case and by the Exxon case which applied the requirement to facts closely allied with those of the present case. But the Polypeptide and Detergents cases can be reconciled. In the former the claims were (necessarily in the Boards view) framed by reference to function, and sought to protect products and processes which in fact achieved that function when applied to a broad range of input variables, none of which were themselves embodiments of the claim. In the Detergents case (as the headnote explains) the claim was again made by reference to function, but the patent failed to disclose any general technical principle by which the skilled person could achieve the desired result across the whole range of claimed embodiments. Furthermore the range of the input variables which could be used to work the invention in the Polypeptide case was held to be irrelevant. For reasons already explained, Claim 1 in the present case is of the kind which falls within the Detergents and Exxon line of EPO authority. Mention should briefly be made of two EPO decisions which followed and applied the Polypeptide case. The first, decided in June 1988, is Nabisco/Micro organisms (T 361/87) ECLI:EP:BA:1988. A claim to protect a means of preparing fructose was challenged for sufficiency on the ground that a certain type of input variable falling within the claim only became available to persons skilled in the art after the priority date. The challenge was rejected in part by application of the cited passage in the Polypeptide case, but also because the description contained sufficient teaching to enable the invention to be used with that new input element, once available. The decision takes the matter no further for the purposes of the present case than does the Polypeptide case. The second, more recent, case is Novartis II/Transgenic plant (G 1/98) ECLI:EP:BA:1999, decided by the Enlarged Board in December 1999. The decision makes brief reference to both the Polypeptide and Nabisco cases as demonstrating that the requirement that the claim be enabled across the full range of the claim is not without exception. Save that it suggests that those earlier cases should not simply be regarded as having been overruled by the Detergents and Exxon line of EPO authority, it sheds little further light on the necessary distinction between the two. Reference was also made to the decision of the German Federal Supreme Court in Dipeptidyl Peptidase Inhibitoren (X ZB 8/12). It was about a medical use patent, rather than a product claim. It sought to protect a method of using a range of known substances for lowering the blood glucose level in mammals, in a manner which would be simple, cost efficient and not too burdensome on the patient, by comparison with methods already known. As in the Polypeptide case it was held not to be fatal to the validity of the patent that it applied to a range of known input substances and extended to substances not yet available. Neither the outcome nor the language used by the court (at paras 19 20) takes the matter any further than either the Polypeptide or Nabisco cases, when read in the context of a medical use claim. It is convenient at this point to explain why the present case falls on the Detergents/Exxon side of this line. The reason why Claim 1 fails to enable the skilled person to make mice with Reverse Chimeric Loci across the whole range of the human variable regions of the hybrid antibody gene structure is not because any of the V, D and J segments had yet to be discovered or mapped by the priority date, or even because any of them could not be inserted into mice. The whole of the human variable region gene locus had already been mapped. It could be (and had been) inserted into mice, but only when attached to the human constant region genes, thereby causing murine immunological sickness. The problem facing those skilled in the art at the priority date was that there was no known way, even using the teaching in the patents, to combine more than a very small part of the human variable region gene locus with the endogenous murine constant region gene locus, in the same hybrid gene structure. It took several years, and significant further inventive steps, before methods were developed sophisticated enough to accommodate the whole of the human variable and murine constant region genes in a single hybrid gene structure. Thus the inventive shortfall at the priority date lay not in the range of possible inputs to which the invention could be applied, but in the inability to create a Reverse Chimeric Locus involving the whole (or anything more than a very small part of) the human variable region. It was truly a shortcoming in the invention itself, which, as at the priority date, limited its use to only a small part of the relevant range within the scope of Claim 1. In sharp contrast the inventions in the Polypeptide line of cases did disclose a sufficient general principle which, without any further inventive step, would enable the skilled person to work the relevant invention by using, as input elements, examples of those components described generally in the claims, which were unavailable as at the priority date, in order to make products across the scope of the claim. The fact that the claim permitted alternative examples of input elements, as yet unavailable at the priority date, is the exception to the requirement for enablement across the whole scope of the claim to which the Enlarged Board made brief reference in the Novartis II decision. A study of the relevant UK cases reveals a similar approach to the existence and nature of this exception to the Exxon principle. The earliest, and perhaps best known, are the decisions of the Court of Appeal and the House of Lords in Biogen Inc v Medeva plc [1995] RPC 25 and [1997] RPC 1. It was, like the present, a case about genetic engineering, but the claim sought to protect a genetic molecule rather than a whole mouse. The claim was that the molecule would, if inserted into a suitable host cell, cause the cell to make antigens of the Hepatitis B virus. Both the Court of Appeal and the House of Lords held that the claim failed, inter alia for insufficiency, but for different reasons. Apart from the holding that sufficiency is to be tested as at the priority date (a rule which is not in dispute in this appeal) the case is of importance for present purposes only because of the reliance placed by the parties on different dicta by Hobhouse LJ (in the Court of Appeal) and Lord Hoffmann (in the House of Lords) about the sufficiency requirement and the principles of UK law to be derived from the main EPO decisions cited above. It is, again, important not to take the dicta out of context. In the Court of Appeal Hobhouse LJ addressed the submission, accepted by the trial judge, that the sufficiency requirement was satisfied whenever the patentee demonstrated that the invention enabled one embodiment of the claimed range to be made. Having cited extensively from the Exxon case, and held that it correctly represented UK law, he continued, at pp 98 99: The disclosure must be sufficient to enable the whole width of the claimed invention to be performed. What will suffice to satisfy this criterion will vary depending upon the nature of the claim that has been made. It is essential to apply the test having regard to the extent of the claim. It is not the law that the disclosure of a single embodiment will always satisfy the requirement regardless of the width of the claim. Having noted counsels attempt to limit his submission to cases where the patent related to the invention of a principle, he continued: The disclosure must be wide enough to enable the man skilled in the art to perform the claimed invention across its full width not just by reference to one type of antigen or one type of host. The plaintiff had a choice as to how widely it would draw its claim. If it chose to draw it widely, it must accept the co relative obligation to make a correspondingly wide disclosure. If it is unable to make that disclosure, that shows that it is seeking to claim an invention to which it is not entitled. In the House of Lords Lord Hoffmann described the submission that enablement of a single embodiment was sufficient (rejected by Hobhouse LJ) as having originated from a misunderstanding of the meaning of the Polypeptide case by Aldous J (who was the trial judge in Biogen) in Chiron Corpn v Organon Teknika Ltd (No 3) [1994] FSR 202. At pp 48 49 he set out his own understanding of the Polypeptide case as follows: In other words, the applicants had invented a general principle for enabling plasmids to control the expression of polypeptides in bacteria and there was no reason to believe that it would not work equally well with any plasmid, bacterium or polypeptide. The patent was therefore granted in general terms. He continued: In fact the Board in Genentech I/Polypeptide expression was doing no more than apply a principle of patent law which has long been established in the United Kingdom, namely, that the specification must enable the invention to be performed to the full extent of the monopoly claimed. If the invention discloses a principle capable of general application, the claims may be in correspondingly general terms. The patentee need not show that he has proved its application in every individual instance. On the other hand, if the claims include a number of discrete methods or products, the patentee must enable the invention to be performed in respect of each of them. Thus if the patentee has hit upon a new product which has a beneficial effect but cannot demonstrate that there is a common principle by which that effect will be shared by other products of the same class, he will be entitled to a patent for that product but not for the class, even though some may subsequently turn out to have the same beneficial effect: see May & Baker Ltd v Boots Pure Drug Co Ltd (1950) 67 RPC 23, 50. On the other hand, if he has disclosed a beneficial property which is common to the class, he will be entitled to a patent for all products of that class (assuming them to be new) even though he has not himself made more than one or two of them. He continued by treating the Exxon case as reinforcing the established principle of UK law which he had earlier described. In the event Lord Hoffmann decided that the patent failed for insufficiency because it disclosed only one method of working the invention, whereas there were other methods available to the skilled person. He did not disagree with Hobhouse LJs analysis of the law. At p 51 he concluded: This shows that there is more than one way in which the breadth of a claim may exceed the technical contribution to the art embodied in the invention. The patent may claim results which it does not enable, such as making a wide class of products when it enables only one of those products and discloses no principle which would enable others to be made. Or it may claim every way of achieving a result when it enables only one way and it is possible to envisage other ways of achieving that result which make no use of the invention. (my underlining) Both the Court of Appeal and the respondent in the present case placed great emphasis on the reference by Lord Hoffmann to a common principle by which products in a class may share the same beneficial effect, as if this was separate and additional to the case of a general principle which enables a whole class of products to be made. He did so by reference to the May & Baker Ltd v Boots Pure Drug Co Ltd (1950) 67 RPC 23 case, where a beneficial therapeutic effect was said to be of the essence of the claim. But the case before him and the submission with which he was dealing were all about the question whether the disclosure needed to enable all, or only some, of the embodiments of a claimed range to be made, as he acknowledged in the last of the passages quoted (and underlined) above. In Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9, the trial judge had cited Lord Hoffmanns concept of a general principle of beneficial effect in Biogen. Lord Hoffmann commented, at p 202 (para 112): This gave rise to a good deal of argument about what amounted to a principle of general application. In my opinion there is nothing difficult or mysterious about it. It simply means an element of the claim which is stated in general terms. Such a claim is sufficiently enabled if one can reasonably expect the invention to work with anything which falls within the general term. For example, in Genentech I/Polypeptide expression (T 292/85) [1989] OJ EPO 275, the patentee claimed in general terms a plasmid suitable for transforming a bacterial host which included an expression control sequence to enable the expression of exogenous DNA as a recoverable polypeptide. The patentee had obviously not tried the invention on every plasmid, every bacterial host or every sequence of exogenous DNA. But the Technical Board of Appeal found that the invention was fully enabled because it could reasonably be expected to work with any of them. Lord Hoffmanns reference to the Polypeptide case as an example shows that he was not thinking in terms of general beneficial effect. By reasonably expect the invention to work in relation to a product claim he meant reasonably expect the product to be able to be made. This is clear from dicta of his, sitting in the Court of Appeal, in the third of the UK cases, Generics (UK) Ltd v H Lundbeck A/S [2008] RPC 19. Two product claims were rejected by the trial judge for insufficiency, because the patent disclosed only one of a number of methods of making the products, following Biogen. Lord Hoffmann, with whom Jacob and Smith LJJ agreed, reversed him. At paras 29 30 he said: In order to decide whether the specification is sufficient, it is therefore first necessary to decide what the invention is. That must be found by reading and construing the claims, in which the inventor identifies what he claims to be his invention. As the Board of Appeal of the European Patent Office said in Exxon/Fuel Oils (T 409/91) [1994] OJ EPO 653, para 3.3, It is the definition of the invention in the claims that needs support. Section 60(1) of the Act makes it clear that a claim may be either to a product or a process. In the case of a product claim, performing the invention for the purposes of section 72(1)(c) means making or otherwise obtaining the product. In the case of a process claim, it means working the process. A product claim is therefore sufficiently enabled if the specification discloses how to make it. There is nothing to say that it must disclose more than one way. At paras 34 36 he continued: Thus, as a matter of construction, the House of Lords interpreted the claim as being to a class of products which satisfied the specified conditions, one of which was that the molecule had been made by recombinant technology. That expression obviously includes a wide variety of possible processes. But the law of sufficiency, both in the United Kingdom and in the EPO, is that a class of products is enabled only if the skilled man can work the invention in respect of all members of the class. The specification might show that this has been empirically demonstrated or it might disclose a principle which can reasonably be expected to apply across the class: see T 292/85 Polypeptide expression/Genentech [1989] OJ EPO 275; T 409/91 Exxon/Fuel Oils [1994] OJ EPO 653; Kirin Amgen Inc v Hoechst Marion Roussel Ltd [2005] RPC 9, para 112. But the specification in Biogen described only one method of making the molecule by recombinant technology and disclosed no general principle. It was easy to contemplate other methods about which the specification said nothing and which would owe nothing to the matter disclosed. In my opinion, therefore, the decision in Biogen is limited to the form of claim which the House of Lords was there considering and cannot be extended to an ordinary product claim in which the product is not defined by a class of processes of manufacture. It is true that the House in Biogen endorsed the general principle stated by the Board of Appeal in Exxon/Fuel Oils (T 409/91) [1994] OJ EPO 653, that: the extent of the patent monopoly, as defined by the claims, should correspond to the technical contribution to the art in order for it to be supported or justified. The judge said that in holding claim 1 insufficient, he was applying this principle. But then he treated the relevant technical contribution to the art as being the inventive step, namely a way of making the enantiomer. That, I respectfully consider, was a mistake. When a product claim satisfies the requirements of section 1 of the 1977 Act, the technical contribution to the art is the product and not the process by which it was made, even if that process was the only inventive step. The House of Lords dismissed the appeal. Lord Walker placed emphatic reliance upon the Exxon case as the leading statement of the law on sufficiency in relation to a product claim. At para 20 he said: The disclosure must be such as to enable the invention to be performed (that is, to be carried out if it is a process, or to be made if it is a product) to the full extent of the claims. Analysis Reflection upon those European and UK authorities yields the following principles: i) The requirement of sufficiency imposed by article 83 of the EPC exists to ensure that the extent of the monopoly conferred by the patent corresponds with the extent of the contribution which it makes to the article ii) In the case of a product claim, the contribution to the art is the ability of the skilled person to make the product itself, rather than (if different) the invention. iii) Patentees are free to choose how widely to frame the range of products for which they claim protection. But they need to ensure that they make no broader claim than is enabled by their disclosure. iv) The disclosure required of the patentee is such as will, coupled with the common general knowledge existing as at the priority date, be sufficient to enable the skilled person to make substantially all the types or embodiments of products within the scope of the claim. That is what, in the context of a product claim, enablement means. v) A claim which seeks to protect products which cannot be made by the skilled person using the disclosure in the patent will, subject to de minimis or wholly irrelevant exceptions, be bound to exceed the contribution to the art made by the patent, measured as it must be at the priority date. vi) This does not mean that the patentee has to demonstrate in the disclosure that every embodiment within the scope of the claim has been tried, tested and proved to have been enabled to be made. Patentees may rely, if they can, upon a principle of general application if it would appear reasonably likely to enable the whole range of products within the scope of the claim to be made. But they take the risk, if challenged, that the supposed general principle will be proved at trial not in fact to enable a significant, relevant, part of the claimed range to be made, as at the priority date. vii) Nor will a claim which in substance passes the sufficiency test be defeated by dividing the product claim into a range denominated by some wholly irrelevant factor, such as the length of a mouses tail. The requirement to show enablement across the whole scope of the claim applies only across a relevant range. Put broadly, the range will be relevant if it is denominated by reference to a variable which significantly affects the value or utility of the product in achieving the purpose for which it is to be made. viii) Enablement across the scope of a product claim is not established merely by showing that all products within the relevant range will, if and when they can be made, deliver the same general benefit intended to be generated by the invention, regardless how valuable and ground breaking that invention may prove to be. Application of those principles to the facts of the present case shows clearly that Claim 1 fails for insufficiency. At the priority date the disclosure of the two patents, coupled with the common general knowledge, did not enable transgenic mice to be made with a Reverse Chimeric Locus containing more than a very small part of the human variable region gene locus. The extent to which that variable region of the human antibody gene structure could be included in the hybrid antibody gene structure was, at that date, understood to be a very important factor affecting the diversity of useful antibodies capable of being discovered by the use of transgenic mice, so that the range thus denominated was a relevant range for sufficiency purposes, even though it did not affect the immunological health of the transgenic mouse. Thus the claim to a monopoly over the whole of that range went far beyond the contribution which the product made to the art at the priority date, precisely because mice at the more valuable end of the range could not be made, using the disclosure in the patents. A comparison between those principles and those applied by the Court of Appeal reveals that they did not correctly apply the law as it stands, for the following reasons. First, I cannot accept their summary of the essential patent bargain. In the case of a product claim, the contribution to the art is the product which is enabled to be made by the disclosure, not the invention itself. Patents are about products and processes, not pure ideas. Secondly, I do not accept their conclusion that an invention may be enabled in relation to a particular type of product falling within the scope of the claim even if it does not permit the skilled person to make it. They thought it was enough that the benefits which the invention unlocked (in terms of preventing murine immunological sickness) would in due course be realised over the whole range, if and when all embodiments within the range could be made. In practical terms they upheld a monopoly over that part of the range of products answering the broad description in Claim 1 which was likely to be of most benefit to medical genetic engineering, at a time when the disclosure in the patent only enabled the skilled person to make products over a very small part of the range, and at the least beneficial end of the range denominated by the amount of the human variable region gene locus incorporated in the hybrid gene structure. It is now known that the type of mouse fitted with a Reverse Chimeric Locus which actually does serve as the gold standard in the art has the whole of the human variable region gene locus as part of its hybrid antibody gene structure. Yet the Court of Appeal would have upheld a monopoly for its manufacture and exploitation when the disclosure in the patent, coupled with the common general knowledge, would not have enabled a skilled person to make such a mouse at all. The ability of both the appellant and the respondent to make such a mouse now depends upon further (and different) inventions separately made by each of them some years after the priority date. Nor is the Court of Appeals analysis to be regarded as a legitimate development of the law. The sufficiency requirement, namely that the disclosure in the patent should enable substantially all products within the scope of a product claim to be made by the skilled person as at the priority date, is part of the bedrock of the law, worked out over time both in the UK and by the EPO, which is essential to prevent patentees obtaining a monopoly which exceeds their contribution to the article To water down that requirement would tilt the careful balance thereby established in favour of patentees and against the public in a way which is not warranted by the EPC, and which would exceed by a wide margin the scope for the development of the law by judicial decision making in a particular Convention state. It may well be, as the Court of Appeal clearly thought, that the consequence of confining the patentee with a ground breaking invention to protection only over a range of products which the invention currently enables to be made at the priority date will give the patentee scant and short lived reward for their efforts and ingenuity, viewed in particular with the benefit of hindsight. The Court of Appeal put this point forcefully to counsel for Kymab at the hearing in October 2017, and the transcript discloses that little was said in response by way of mitigation. A little more was attempted in this court in the appellants reply, but it would not be a useful exercise to engage with it. What matters is that it is settled law, in relation to a product claim, that sufficiency requires substantially the whole of the range of products within the scope of the claim to be enabled to be made by means of the disclosure in the patent, and this both reflects and applies the principle that the contribution to the art is to be measured by the products which can thereby be made as at the priority date, not by the contribution which the invention may make to the value and utility of products, the ability to make which, if at all, lies in the future. I would therefore allow the appeal. LADY BLACK: (dissenting) I differ from the view of the majority and would have dismissed this appeal for reasons which I will set out shortly. I should first explain that, in what follows, in order to express myself as clearly as possible, I have at times consciously used simplified descriptions of the scientific concepts to which I need to refer. The issue raised by the appeal Lord Briggs says, at para 5, that the legal question that arises is whether a product patent, the teaching of which enables the skilled person to make some, but not all, of the types of product within the scope of the claim, passes the sufficiency test where the invention would contribute to the utility of all the products in the range, if and when they could be made. It is useful to bear in mind also how the issue was formulated by the parties in the Statement of Facts and Issues for this court, which was as follows: Is it a requirement for a valid patent under article 83 EPC that the description enables the skilled reader (at the date of the Patent) to make products across the whole scope of the claim, or is it enough that they could make products within only a limited part of that range, provided that all the products within the scope of the claim (if and when they could be made) would use the invention? The nature of the claims The Court of Appeal described claim 1 of the 287 patent as a method claim directed to the modification of an endogenous immunoglobulin heavy chain locus in a mouse ES cell such that murine V, D and J gene segments are replaced by human V, D and J segments and the locus produces hybrid antibodies containing human variable regions and mouse constant regions (para 114), the method having four steps as described in para 115. Claims 5 and 6 of the 287 patent were described as product by process claims (para 121). The issues in the appeal have been considered through the medium of claim 1 of the 163 patent, so it is worth setting that out again here. It is a claim to: A transgenic mouse that produces hybrid antibodies containing human variable regions and mouse constant regions, wherein said mouse comprises an in situ replacement of mouse VDJ regions with human VDJ regions at a murine chromosomal immunoglobulin heavy chain locus and an in situ replacement of mouse VJ regions with human VJ regions at a murine chromosomal immunoglobulin light chain locus. The Court of Appeal said of this claim that it is directed to a transgenic mouse in which there has been in situ replacement of mouse V, D and J regions on the heavy chain by human V, D and J regions; and in which there has been in situ replacement of mouse V and J regions on the light chain by human V and J regions (para 125). It then observed (para 126) that the claim contains no requirement that any particular size of DNA fragment is inserted or replaced; nor is there any limit to the number of steps by which the claim requirements may be met. Further, the reference to V, D and J regions must mean one or more V, D and J segments respectively. The Court of Appeal agreed with the judge that the claim was: not confined to a single product. It includes mice in which different amounts of mouse V, D and J regions (of the heavy chain) and mouse V and J regions (of the light chain) have been replaced with human V, D and J regions and V and J regions, respectively. So it includes, for example, a mouse in which one V, one D, and one J region (of the heavy chain) and one V and one J region (of the light chain) have been replaced and mice in which several such regions have been replaced. (para 127(i)) and that it: extends to a mouse in which the entire murine variable gene locus has been replaced with the entire human variable gene locus. (para 127(iv)) Henry Carr Js determination and how it fared in the Court of Appeal Henry Carr J made two key decisions which formed the foundation for the rest of his conclusions. First, he had to determine the proper construction of the claims in issue, in particular what was meant by in situ replacement in claim 1 of the 287 Patent. He accepted Regenerons proposed construction of the words, as did the Court of Appeal. No construction issue has been pursued before this court. Secondly, Henry Carr J had to make findings as to the feasibility of putting the invention into practice, which he did focussing specifically on claim 1 of the 287 Patent. He rejected the approaches proposed, for varying reasons, concluding that the whole subject matter defined in the claim was not capable of being performed at the priority date without undue burden and without invention (para 257). He considered that the difficulty did not relate to some hypothetical puzzle at the edge of the claim, but rather to the central disclosure of the specification, and the amounts of genetic sequence of which it contemplates the deletion and insertion. None of the methods disclosed would have worked, and the task could not have been achieved, if it could be achieved at all at the priority date, without a great deal of creative thinking. On appeal from the trial judge, Regeneron argued that it was in fact possible for a skilled team to have implemented the reverse chimeric locus without undue effort by means of minigenes. The Court of Appeal was persuaded that this was correct. It was satisfied that the use of minigenes was part of the common general knowledge, and said (para 200): In our judgment and given the idea of the reverse chimeric locus, it would have been obvious to the skilled team and technically feasible to produce a transgenic mouse that would produce hybrid antibodies containing human variable regions and mouse constant regions, and in which mouse V, D and J segments had been replaced with human V, D and J segments in the mouse immunoglobulin heavy chain gene locus, and mouse V and J segments had been replaced with human V and J segments in the immunoglobulin light chain gene locus. Given that it differed from Henry Carr J in this respect, the Court of Appeal inevitably had a different starting point for its consideration of the central legal issue of whether the claim was enabled across its whole scope. As the Court of Appeals finding of technical feasibility has not been challenged before us, we share the Court of Appeals starting point. But it is nevertheless important to note the following observation that Henry Carr J made at para 257, and to which Lord Briggs refers at para 38, with approval: I do not accept that all embodiments within the claim are unified by a single principle of a reverse chimeric locus. This is not a principle that enables the method to be performed, rather it is the result of successfully carrying out the method. The Court of Appeals determination of the enablement issue Having reviewed various decisions of the Technical Boards of Appeal of the EPO and of the domestic courts, the Court of Appeal turned at para 250 to the application of the law to the instant case. This involved, inter alia, a consideration of the nature and extent of the contribution to the art that the disclosure of the invention had made, which Regeneron submitted Henry Carr J had failed to appreciate properly. The Court of Appeal noted that the claim is drawn in general language and is of broad scope, but that: each of the mice it encompasses has the reverse chimeric locus, that is to say, it is a mouse which produces hybrid antibodies containing human variable regions and mouse constant regions, and in which mouse V, D and J segments have been replaced with human V, D and J segments at a chromosomal immunoglobulin heavy chain locus, and mouse V and J segments have been replaced with human V and J segments at a chromosomal immunoglobulin light chain locus. (para 254) It observed that the disclosure of the reverse chimeric locus was a major contribution to the art for it provided the answer to a significant problem which those working in the field had faced, namely that transgenic mice produced by conventional methods were immunologically sick [whereas those] with the reverse chimeric locus do not suffer from this deficiency (para 255). It proceeded to characterise the invention as a principle of general application, supporting that conclusion as follows (para 256): The character of this invention is therefore such that any transgenic mouse which falls within the scope of the claim and so produces hybrid antibodies containing the human variable regions and mouse constant regions will benefit from the technical contribution the disclosure of the 163 patent has made to the art, and will do so irrespective of the antigen which is used to challenge the mouse. The court then noted, at paras 257 to 259, that it was satisfied that the ability of the skilled team to implement the teaching of the 163 patent had been established. It was also noted that the mice produced would have had only a subset of the human V gene segments, although they would have had an immunological response close to that of wild type mice. The court continued (para 260): These points, taken together, strongly suggest to us that the 163 patent does disclose the invention clearly enough and completely enough for it to be performed by a person skilled in the article The character of the invention is one of general application. It applies to any mouse challenged with any antigen and the benefit it confers will be shared by every mouse falling within the scope of the claim. The skilled team would reasonably expect the invention to work across the scope of the claim and that expectation would be correct. What is more, there is nothing in the claim which could have been envisaged without the invention and, were protection to be limited to only those embodiments which could have been made at the priority date without undue effort, the protection provided by the patent would have rapidly become ineffectual. A further passage is of importance, taken from the following paragraphs in which the court examines the implications of it not being possible to perform, precisely, elements of what was described in the examples. In explaining why this did not render the patent insufficient, the court recalled that the law does not require a patentee to enable each and every embodiment of a claimed invention, but recognises that a claim may encompass inventive improvements of what is described and that a specification is not insufficient merely because it does not enable the person skilled in the art to make every such invention. It then continued (para 265): It is important, however, that any such improvement is still a way of working the original invention. In this case we have no doubt that this is the case: there is no mouse falling within the scope of claim 1 of the 163 patent which does not embody the reverse chimeric locus and enjoy the benefits it brings. Claim 1 of the 163 patent was therefore found not to exceed the contribution to the art which the disclosure of its specification made, the extent of the patent monopoly corresponding to the technical contribution and being adequately enabled across its scope (para 267). The 287 patent was seen to be subject to very similar considerations. Here too, the invention was found to be one of general application, being a methodology of making the reverse chimeric locus in which successful integrations using LTVECs are detected by using the MOA assay (para 272). Claims 1, 5 and 6 of that patent were also adequately enabled across its scope (paras 273 and 274). It is useful to note particularly what the Court of Appeal said, at the end of its judgment, in summarising what it saw as the reasons why its conclusion was different from that of the very experienced first instance patent judge. It seems to me that this short summary reveals what is at the heart of the Court of Appeals reasoning. It said: we are satisfied that, in assessing the sufficiency of the disclosure of the patents, [the judge] did not attach sufficient weight to the character of the invention as claimed in each of the claims in issue, the contribution that its disclosure made to the art and the need to confer a fair degree of protection on the patentee. (para 275) The approach of the majority in this court The majority in this court would allow the appeal, holding that the Court of Appeal failed to apply the law correctly and should have concluded that Regenerons claims failed for insufficiency. In essence, this is because the disclosure of the patents did not enable the making of a mouse which incorporated any more than a small part of the human variable region, yet claimed a monopoly including mice incorporating a far greater quantity of the human variable region. In the majoritys view, the claims therefore fail to satisfy the requirement that substantially the whole range of products within the scope of the claim be enabled. Discussion It is common ground between the parties, established in the authorities, and acknowledged in Lord Briggs judgment (see for example para 56(vi)), that an invention may disclose a principle of general application. It is also common ground between the parties (and again see Lord Briggs judgment at para 56(vi)) that there is no exception from the ordinary principles of enablement for such inventions; the invention must be enabled across its full scope, as with any other invention. It is when it comes to characterising this claim, determining what its scope is, and deciding whether it is enabled across that full scope that the argument arises. The claim is framed in terms of the mouse, specifying what it does (produces the hybrid human/mouse antibodies), and what it has in it (the reverse chimeric locus). As the trial judge said, and the Court of Appeal reiterated, it is not confined to a single product in that it includes mice in which different amounts of the mouse variable regions have been replaced, extending to a mouse with the entire murine variable region replaced with the entire human variable gene locus. It is the existence of this range of mice that leads the majority of my colleagues to conclude that, as only a limited amount of replacement was possible at the priority date, the claim was insufficient. But this was not the view of the Court of Appeal, and it is important to attempt to isolate the point at which the two approaches diverge. As I have already foreshadowed, it seems to me that there is little, if any, real disagreement with the Court of Appeals statement of the legal principles. It is in the application of them that the paths diverge. Lord Briggs says, at para 58, that the Court of Appeal did not correctly apply the law as it stands, having failed to recognise that the contribution to the art is the product which is enabled to be made by the disclosure, not the invention itself, and having erroneously concluded that it was enough that the benefits unlocked by the invention would in due course be realised over the whole range if and when all embodiments could be made. The Court of Appeals characterisation of the claim was informed by the principle that (to use the Board of Appeals formulation in Unilever/Detergents (T 435/91)) the protection covered by a patent should correspond to the technical contribution to the art made by the disclosure of the invention described therein. This principle, and the other principles that are relevant to determining sufficiency, can only be applied having close regard to the facts of the particular case, and the authorities make clear that an assessment of sufficiency does depend very much upon the nature of the individual invention and the facts of the particular case, see for example Unilever/Detergents (T 435/91), para 2.2.1. The Court of Appeal here recognised the general language used in the claim and its broad scope (Court of Appeal judgment, para 254), and we know that it had well in mind that it extended to a mouse with its entire variable gene locus replaced with the entire human variable gene locus (ibid, para 127). It focussed its analysis firmly on the reverse chimeric locus. The disclosure of the reverse chimeric locus was, it observed, a major contribution to the art because it solved the problem of immunological sickness (ibid, para 255). Every mouse encompassed in the claim will have the reverse chimeric locus, or, as the court put it at para 256 will benefit from the technical contribution the disclosure of the 163 patent has made to the article Every such mouse will, in the terms of the issue stated by the parties in the Statement of Fact and Issues, use the invention. This is what led the court to characterise the claim as a principle of general application (ibid, para 256). For sufficiency, it was necessary for the skilled team to be able to produce transgenic mice incorporating the reverse chimeric locus and producing hybrid antibodies, and this they could do, producing mice which would have had a near wild type response (ibid, para 264). That the claim encompassed inventive improvements (more human variable region incorporated) did not make it insufficient as any such improvement was still a way of working the original invention (ibid, para 265). Lord Briggs, seeking to concentrate attention upon the fact that this is a product claim, and to emphasise that patents are about products and not about ideas, chooses terms which focus rather upon the mice containing the reverse chimeric locus (mice fitted with a reverse chimeric locus as Lord Briggs terms them at para 58). This difference of terminology is perhaps of less significance than the spotlight that he trains upon the range of the mice, extending from mice fitted with a reverse chimeric locus incorporating a subset of the human variable region (feasible at the time of the claim) to mice fitted with a reverse chimeric locus incorporating the whole human variable region (achievable now but not at the time of the claim). It is this focus on the quantum of replaced material in the reverse chimeric locus, rather than on the reverse chimeric locus as a general principle, that leads to a different conclusion about sufficiency from that reached by the Court of Appeal. Given that I am alone in my disagreement with my colleagues, I can see little to be gained by a lengthy exegesis on the issues arising in the appeal. As I see it, and as perhaps appears from my exploration of the differences between the approach of this court and that of the Court of Appeal, the case turns upon how this particular claim is characterised, and how the law is applied to the particular facts of this case. I do not perceive the errors in the Court of Appeals approach that have been identified by the majority, and I would not have interfered with their conclusion that the claim here relates to a principle of general application. It still has to be enabled across its scope, but seen in this way, it is so enabled, being deployed in each mouse across the range, irrespective of the quantum of human material incorporated. Furthermore, it can also be said that protection across the range coincides with the technical contribution of the patents which was to solve the problem of immunological sickness, or putting it (loosely) another way, to facilitate the making of immunologically efficient mice.

In 2001 Regeneron Pharmaceuticals Inc filed patents for a new type of genetically modified mouse. Regenerons breakthrough was a hybrid version of the gene that produces antibodies, combining a section of the mouses genetic material (the constant region DNA) with a section of genetic material from a human (the variable region DNA). The resulting mouse can be used to produce antibodies which are suitable for medical treatment in humans, but are sufficiently similar to mouse antibodies that they do not cause immunological sickness in the mouse. The idea of combining a human variable region with a mouse constant region was a major contribution to science. At the hearing in February 2020 the court was told that hybrid mice incorporating this invention had a range of medical uses, including in the race to generate antibody therapies against coronavirus. In 2013 Regeneron sued a British company, Kymab Ltd, for infringement of its patents. Kymab was producing its own genetically modified mice, branded Kymice, with a similar genetic structure to Regenerons mice. Kymab responded by arguing the patents filed by Regeneron in 2001 were invalid because they fell foul of a patent law rule called sufficiency. Sufficiency means documents filed with the patent must be detailed enough to enable scientifically skilled readers to make the invention for themselves. The Court of Appeal found that Regenerons patents contained enough information to enable a skilled reader to insert some of the human material into a mouses genes. This would have created one type of hybrid mouse. However, the patents did not explain how to create a hybrid structure incorporating the full human variable region genes into the mouses genome. That was a complicated feat of genetic engineering and no reliable method for doing it was invented until 2011. This meant an expert reading the patents in 2001 would be unable to make many types of hybrid mice which Regeneron had claimed to have invented. The Court of Appeal upheld the patents, saying there was no need for the patents to explain how to make the full range of mice because Regenerons idea was a principle of general application. Kymab appealed to the Supreme Court. The Supreme Court allows Kymabs appeal by a majority of four to one, holding that the patents are invalid. Lord Briggs gives the majority judgment. Lady Black gives a dissenting judgment. A patent reflects a bargain between the inventor and the public. The inventor gains a time limited monopoly over the making and use of a product. In return, the public gains the ability to make the product after the expiry of the monopoly. As part of this bargain, the inventor must publish sufficient information to enable a skilled member of the public to make the product. This ensures that patent holders only gain legal protection which is proportional to their actual technical contribution to the art, and encourages inventors to conduct research for the benefit of society [23]. The Court of Appeal was influenced by the fact that Regenerons invention is a principle of general application. Its contribution to the field was present not only in mice which could be made in 2001, but also in mice with a larger amount of human genetic material which could be made using later scientific developments. The Court of Appeal thought it was unfair to limit Regenerons monopoly to types of hybrid mice which could be made when the patent was filed [27]. However, the authorities establish a number of principles in this area. Patentees must not make overly broad claims [56(iii)]. If they claim the right to make a range of products, sufficiency means they must disclose enough information to enable a skilled person to make the full range which is claimed [56(iv)]. This means a relevant range which affects the utility of the product [56(vii)]. So Regeneron was not required to explain how to make mice of varying colours, or with tails of varying length, because these features do not affect a mouses ability to produce antibodies [21]. Applying these principles, Regenerons patents did not enable a skilled person to make mice containing more than a very small section of the human variable region. The amount of human material was an important factor which was thought to affect the diversity of useful antibodies which the mice would produce. Mice at the more valuable end of the range could not be made using Regenerons patents. So Regeneron was claiming a monopoly which was far wider than its contribution to the art [57]. The Court of Appeal upheld patents over a range of mice even though Regeneron could only make mice over a small part of the range, at the least beneficial end of the range with the smallest amount of human genetic material [58]. Its analysis watered down the sufficiency requirement which is a bedrock of patent law, tilting the balance of patent law in favour of patentees and against the public [59]. Therefore, the majority allows the appeal and holds that the patents are invalid for insufficiency. Lady Black gives a dissenting judgment, in substance agreeing with the Court of Appeal. The application of the sufficiency requirement depends on the nature of the individual invention and the facts of the case. The Court of Appeal characterised Regenerons invention as a principle of general application which solved the problem of immunological sickness [83 84]. Seen in this way, the sufficiency requirement was met since the invention was deployed in each mouse across the range, irrespective of the quantum of human material incorporated [86].

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The question raised by this appeal is whether there exists a power under the Immigration Act 1971 (the 1971 Act) to grant immigration bail to a person who can no longer be lawfully detained. Factual Background B has a long and complex immigration history which it is necessary to refer to in some detail. He has been in the United Kingdom since 1993. Between 5 February 2002 and 11 March 2005, he was detained under section 21 of the Anti terrorism, Crime and Security Act 2001. He appealed to the Special Immigration Appeals Commission (SIAC) against that decision using a false identity. The relevant provisions of the 2001 Act were repealed by the Prevention of Terrorism Act 2005 (the 2005 Act) following the decision of the House of Lords in A and others v Secretary of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68. B was then released from detention on 11 March 2005, and made subject to a control order under the 2005 Act. He was admitted to the Royal Free Hospital on the 12 March 2005 as a voluntary psychiatric patient where he remained, save for one night, until 11 August 2005. On 11 August 2005 B was notified, in accordance with regulations under section 105 of the Nationality Immigration and Asylum Act 2002, of the Secretary of States decision to make a deportation order against him on national security grounds, under sections 3(5) and 5(1) of the 1971 Act. B was arrested and detained under immigration powers contained in paragraph 2(2) of Schedule 3 to the 1971 Act pending the making of the deportation order. He was detained at HMP Woodhill and, the following day, transferred to HMP Long Lartin. On 17 August 2005, B appealed to SIAC against that decision, once again using the same false identity. Bs grounds of appeal contended, inter alia, that his removal to Algeria would be in breach of the United Kingdoms obligations under the UN Refugee Convention and unlawful as incompatible with his rights under article 3 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). The Secretary of State has never disputed that, if deported to Algeria, B would be at real risk of treatment incompatible with article 3 ECHR and that only with specific individual assurances from the Algerian government could he be lawfully and safely removed to Algeria. On 11 May 2006, Her Majestys Government informed the Algerian Government that it proposed to deport B and requested certain information about him. On 16 May 2006, specific assurances as to the treatment of B were sought from Algeria. On 10 July 2006, the Algerian authorities confirmed that the details of his identity given by B were those of an individual present in Algeria. On 17 July 2006, SIAC heard the national security case in Bs appeal against the Secretary of States decision to make a deportation order. On 12 January 2007, pursuant to rule 39(1) of the Special Immigration Appeals Commission (Procedure) Rules 2003, SIAC directed B to provide specified particulars of his true identity and to consent to provide a non invasive sample for the purposes of DNA testing. B consented to provide a DNA sample but refused to provide the particulars of his true identity. On 19 July 2007, SIAC ordered B to provide details of his true identity. A penal notice was attached to the order. On 30 July 2008, SIAC gave judgment in the national security case against B, holding that the Secretary of States case on the risk to national security had been made out. SIAC concluded that, notwithstanding his mental health difficulties, B had played a leading role in facilitating communications for Algerian terrorists, as well as being responsible for the procurement of false documentation and high technology equipment. The hearing of the case on safety on return did not take place at that time because of the unresolved question of Bs true identity. On 18 August 2009, the Secretary of State applied to SIAC for an order that B be committed to prison for contempt for disobeying the order of 19 July 2007. Following an adjournment in the hope of resolving the issue of Bs identity, the committal application was eventually heard on 11 October 2010. In its judgment delivered on 26 November 2010 SIAC held that B had deliberately and contumeliously disobeyed its order and, taking into account all the circumstances including that Bs mental illness may have reinforced his decision not to comply with SIACs order, imposed a prison sentence of four months. The operation of the order was suspended until the final determination of any appeal. On 21 July 2011, the Court of Appeal by a majority dismissed his appeal (B (Algeria) v Secretary of State for the Home Department [2011] EWCA Civ 828). B appealed to the Supreme Court which on 30 January 2013 dismissed the appeal (B (Algeria) v Secretary of State for the Home Department [2013] UKSC 4; [2013] 1 WLR 435). B then served his sentence of 4 months imprisonment in HMP Belmarsh and was released on 5 April 2013. On 11 April 2006, SIAC had decided in principle that B could be granted bail. However, save for one night, throughout the period from 11 March 2005 B remained in either prison or hospital until his discharge from hospital to bail accommodation on 18 January 2011. B was voluntarily readmitted to hospital in February 2011 and on further occasions thereafter. Following his release from prison after serving his sentence for contempt, two sets of bail conditions were set by SIAC to run in parallel depending on whether B was an in patient at a psychiatric hospital or residing at his bail accommodation. On 23 January 2014, B applied to vary his bail conditions which, he maintained, constituted an unlawful deprivation of liberty. At a hearing on 28 and 29 January 2014 SIAC considered the application of the Hardial Singh principles (R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704) to the circumstances of Bs case, including the prospect of Bs removal to Algeria. In its judgment of 13 February 2014, SIAC found that in the absence of a change of mind by B there is no reasonable prospect of removing [B] to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away. Following this ruling, the Secretary of State did not authorise the further detention of B, although Bs advisers only became aware of this on or about 6 June 2014. In its judgment of 13 February 2014 SIAC also held that the conditions of bail did not constitute a deprivation of liberty. However, it subsequently directed a review of Bs bail conditions, which were relaxed by an order dated 16 May 2014. On 14 May 2014 the Secretary of State applied under rules 11B and 40 of the Special Immigration Appeals Commission (Procedure) Rules 2003 to strike out Bs appeal against the notice of decision to deport him, on the grounds of his continuing refusal to comply with the order of 19 July 2007. On 1 July 2014, in the light of Bs continuing contempt of court, SIAC struck out Bs appeal. B maintained that, following SIACs findings on 13 February 2014, his detention could no longer lawfully be authorised as it would be incompatible with Hardial Singh principles. He contended that if that were so, and he could not lawfully be detained, SIAC no longer had jurisdiction to grant bail to B or to impose bail conditions. In its judgment of 1 July 2014, SIAC rejected these submissions, concluding that it continued to have jurisdiction to impose bail conditions on B. B then applied for permission to apply for judicial review of SIACs decision of 1 July 2014 on its bail jurisdiction, there being no right of appeal against that decision. Irwin J, sitting as a High Court Judge, heard that application by agreement between B and the Secretary of State, and on 14 August 2014 he granted B permission to apply for judicial review of that decision, dismissed the application for judicial review, and granted permission to appeal to the Court of Appeal. B appealed to the Court of Appeal which on 6 May 2015 gave judgment allowing both appeals (B (Algeria) v Secretary of State for the Home Department (No 2) [2015] EWCA Civ 445; [2016] QB 789). (1) The Court of Appeal allowed Bs appeal in relation to SIACs bail jurisdiction on the ground that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful. (2) The Court of Appeal also allowed Bs appeal against the strike out of Bs SIAC appeal and remitted the matter to SIAC. On 15 September 2016 SIAC refused the application to strike out Bs appeal against the decision to make a deportation order against him. The Secretary of State then indicated that she no longer opposed Bs appeal. Accordingly, in a judgment dated 12 December 2016 SIAC confirmed its decision to allow Bs appeal against the notice of intention to deport him. The Secretary of State did not seek permission to appeal. As a result of this ruling allowing the substantive deportation appeal, Bs bail fell away and it is common ground that the immigration bail power is now unavailable. On 9 November 2015, the Supreme Court granted the Secretary of State permission to appeal against the decision of the Court of Appeal on the issue of SIACs bail jurisdiction. Statutory provisions The Secretary of States power to detain or control a person pending deportation is set out in paragraph 2 of Schedule 3 to the 1971 Act which provides in material part, as amended: (2) Where notice has been given to a person in accordance with Regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not detained in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom (and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise). (4A) Paragraphs 22 to 25 of Schedule 2 to this Act apply in relation to a person detained under sub paragraph (1), (2) or (3) as they apply in relation to a person detained under paragraph 16 of that Schedule. (5) A person to whom this sub paragraph applies shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by the Secretary of State. (6) The persons to whom sub paragraph (5) above applies are (b) a person liable to be detained under sub paragraph (2) or (3) above, while he is not so detained. The power to grant immigration bail and impose bail conditions derives from paragraphs 22 and 29 of Schedule 2 to the 1971 Act so far as relevant, as amended. Paragraph 22 governs bail in general and paragraph 29 governs bail pending appeal. Section 3 of the Special Immigration Appeals Commission Act 1997 (the 1997 Act) extends to SIAC the power to grant bail and impose bail conditions that is conferred on an immigration officer not below the rank of chief immigration officer or the First tier Tribunal (the FTT) by paragraphs 22 and 29 of Schedule 2 to the 1971 Act. Section 3 of the 1997 Act provides in material part: (1) In the case of a person to whom section (2) below applies, the provisions of Schedule 2 to the Immigration Act 1971 specified in Schedule 3 to this Act shall have effect with the modifications set out there. (2) This subsection applies to a person who is detained under the Immigration Act 1971 if the Secretary of State certifies that his detention (a) is necessary in the interests of national security, (b) or (c) he is detained following a decision to make a deportation order against him on the ground that his deportation is in the interests of national security. Paragraphs 1 and 4 of Schedule 3 to the 1997 Act modify paragraphs 22 and 29 of Schedule 2 to the 1971 Act respectively so that, in deportation cases heard in SIAC, they provide as follows: 22. (1) The following, namely a person detained under paragraph 16(1) (a) above pending examination; (aa) a person detained under paragraph 16 (1A) above pending completion of his examination or a decision on whether to cancel his leave to enter; and a person detained under paragraph 16(2) (b) above pending the giving of directions, may be released on bail in accordance with this paragraph. (1A) The Special Immigration Appeals Commission may release a person so detained on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before an immigration officer at a time and place named in the recognizance or bail bond or at such other time and place as may in the meantime be notified to him in writing by an immigration officer. (2) The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the Special Immigration Appeals Commission to be likely to result in the appearance of the person bailed at the required time and place; and any recognizance shall be with or without sureties as the Commission may determine. (3) In any case in which the Special Immigration Appeals Commission has power under this paragraph to release a person on bail, the Commission may, instead of taking the bail, fix the amount and conditions of the bail (including the amount in which any sureties are to be bound) with a view to its being taken subsequently by any such person as may be specified by the Commission; and on the recognizance or bail bond being so taken the person to be bailed shall be released. 29(1) Where a person (in the following provisions of this Schedule referred to as an appellant) has an appeal pending under Part 5 of the Nationality, Immigration and Asylum Act 2002 or section 2 of the Special Immigration Appeals Commission Act 1997 or a review pending under section 2E of that Act and is for the time being detained under Part I of this Schedule, he may be released on bail in accordance with this paragraph and paragraph 22 does not apply. (2) The Special Immigration Appeals Commission may release an appellant on his entering into a recognizance or, in Scotland, bail bond conditioned for his appearance before the Commission at a time and place named in the recognizance or bail bond. (5) The conditions of a recognizance or bail bond taken under this paragraph may include conditions appearing to the person fixing the bail to be likely to result in the appearance of the appellant at the time and place named; and any recognizance shall be with or without sureties as that person may determine. The power of arrest and re detention of persons on bail under paragraphs 22 and 29 of Schedule 2 is provided for under paragraph 24 of Schedule 2 to the 1971 Act which provides: 24. (1) An immigration officer or constable may arrest without warrant a person who has been released by virtue of paragraph 22 above (a) if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond that he will appear at the time and place required or to break any other condition of it, or has reasonable ground to suspect that that person is breaking or has broken any such other condition; or (b) if, a recognizance with sureties having been taken, he is notified in writing by any surety of the suretys belief that that person is likely to break the first mentioned condition, and of the suretys wish for that reason to be relieved of his obligations as a surety; and paragraph 17(2) above shall apply for the arrest of a person under this paragraph as it applies for the arrest of a person under paragraph 17. (2) A person arrested under this paragraph (a) if not required by a condition on which he was released to appear before an immigration officer within twenty four hours after the time of his arrest, shall as soon as practicable be brought before the First tier Tribunal or, if that is not practicable within those 24 hours, before in England and Wales, a justice of the peace, in Northern Ireland, a justice of the peace acting for the petty sessions area in which he is arrested or, in Scotland, the sheriff; and (b) if required by such a condition to appear within those 24 hours before an immigration officer, shall be brought before that officer. (3) Where a person is brought before the First tier Tribunal, a justice of the peace or the sheriff by virtue of sub paragraph (2)(a), the Tribunal, justice of the peace or sheriff (a) if of the opinion that that person has broken or is likely to break any condition on which he was released, may either (i) direct that he be detained under the authority of the person by whom he was arrested; or (ii) release him, on his original recognizance or on a new recognizance, with or without sureties, or, in Scotland, on his original bail or on new bail; and if not of that opinion, shall release him on (b) his original recognizance or bail. On 12 May 2016 the Immigration Bill 2016 received royal assent. Section 61 of the Immigration Act 2016 provides in material part: (3) A person may be released and remain on bail under paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 even if the person can no longer be detained under a provision of the Immigration Acts to which that paragraph applies, if the person is liable to detention under such a provision. (4) The reference in subsection (3) to paragraph 22 or 29 of Schedule 2 to the Immigration Act 1971 includes that paragraph as applied by any other provision of the Immigration Acts. (5) Subsections (3) and (4) are to be treated as always having had effect. On 9 November 2015, the Supreme Court granted the Secretary of State permission to appeal on the issue of SIACs bail jurisdiction. The Secretary of State indicated that she did not propose to rely on section 61 of the Immigration Act 2016 on this appeal. The appeal has been heard on the basis of the statutory provisions as they were at the time of the Court of Appeals decision. Hardial Singh principles The Hardial Singh principles form an important part of the background to these proceedings. In Hardial Singh itself Woolf J. laid down the following propositions (at p 706D G): Since 20 July 1983, the applicant has been detained under the power contained in paragraph 2(3) of Schedule 3 to the Immigration Act 1971. Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained in one case pending the making of a deportation order and, in the other case, pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to seek to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. Over time these principles have been elaborated and refined. In R (WL (Congo)) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, Lord Dyson JSC summarised them as follows (at para 22): With regard to determining what is a reasonable period Lord Dyson (at para 104) repeated his earlier conclusion in Is case (at para 48): It is common ground that my statement in R (I) v Secretary of State for the Home Department [2003] INLR 196, para 46 correctly encapsulates the principles as follows: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the deportee may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal. It is not possible or desirable to produce an exhaustive list of all the circumstances that are or may be relevant to the question of how long it is reasonable for the Secretary of State to detain a person pending deportation pursuant to paragraph 2(3) of Schedule 3 to the Immigration Act 1971. But in my view they include at least: the length of the period of detention; the nature of the obstacles which stand in the path of the Secretary of State preventing a deportation; the diligence, speed and effectiveness of the steps taken by the Secretary of State to surmount such obstacles; the conditions in which the detained person is being kept; the effect of detention on him and his family; the risk that if he is released from detention he will abscond; and the danger that, if released, he will commit criminal offences. Discussion I take as my starting point that adopted by the Court of Appeal at paragraph 23 of the judgment of Lord Dyson MR. It is uncontroversial. On 13 February 2014 SIAC ruled that there was no reasonable prospect of removing [B] to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away. The Secretary of State accepts that there was thereafter no further authority for the detention of B under paragraph 2(2) of Schedule 3 to the 1971 Act. It is, therefore, common ground that B could not lawfully be detained following the ruling of 13 February 2014 because to do so would exceed the implied limits on the exercise of administrative power to detain for immigration purposes as determined in Hardial Singh. At the heart of this case lies a dispute between the parties as to the correct approach in principle to the availability of immigration bail when the Hardial Singh limit on actual detention is reached. The Secretary of State submits that at that point the individual can be moved onto or kept on bail as an alternative to detention, as a means of getting or keeping him out of detention that is, or is about to become, or would be unlawful. Moreover, at that point the ability to exercise control over him in the form of bail conditions is retained. Bs position, by contrast, is that bail is predicated on lawful detention with the result that when the Hardial Singh limit on actual detention is reached the ability to grant or maintain bail also simultaneously falls away. On behalf of the Secretary of State, Mr Tam urges the court to adopt a purposive interpretation of the relevant legislation. He submits that it is consistent with the purpose of the bail power for it to be construed so that bail is available regardless of whether the individual is lawfully detained or would hypothetically be lawfully detained. The bail power has been provided in order to remove an individual from detention. That purpose would be served whether the detention is lawful or unlawful at the time that bail is granted and the detention is terminated. The bail power, he submits, constitutes a practical solution which permits the termination of unwanted or unwarranted detention, regardless of the separate question of whether that detention is lawful or unlawful. He then draws attention to the fact that at one end of the spectrum of cases dealt with by the immigration system are those of dangerous criminals and those who pose a risk to national security. It is, he submits, particularly important that bail should be available in such cases. Here he refers to the fact that bail conditions can be of greater stringency than conditions which can be attached to temporary admission or temporary release. The availability of bail, he argues, therefore helps to protect the public from such risks if detention is no longer appropriate. While accepting that practical difficulties may arise in the categories of case referred to by Mr Tam in circumstances where continuing detention becomes unlawful on Hardial Singh grounds, I can see no basis for adopting the purposive approach for which the Secretary of State contends, resting as it does on a disregard of the issue of the lawfulness of any continuing detention. It is a fundamental principle of the common law that in enacting legislation Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear (Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, 111E; R v Secretary of State for the Home Department, Ex p Khawaja [1984] AC 74, 122E F per Lord Bridge). Thus, in In re Wasfi Suleman Mahmod [1995] Imm AR 311, 314 Laws J, observed: While, of course, Parliament is entitled to confer powers of administrative detention without trial, the courts will see to it that where such a power is conferred the statute that confers it will be strictly and narrowly construed and its operation and effect will be supervised by the court according to high standards. In the present case our particular focus is not on a power of executive detention, but on a power to grant bail. Nevertheless, and despite the fact that the purpose may be to effect a release from detention, I consider that this similarly attracts the presumption of statutory interpretation because the conditions which may be attached to a grant of bail are capable of severely curtailing the liberty of the person concerned. It was common ground before us that bail under the 1971 Act may be subject to conditions which constitute a deprivation of liberty within article 5(1)(f) ECHR. As Mr Tam frankly accepts, the ability to exercise control through the use of what may be stringent conditions of bail in part underlies the purposive interpretation for which he contends. Moreover, this is, to my mind, a situation where the principle of legality is in play. As Lord Hoffmann observed in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131D G: Fundamental rights cannot be overridden by general or ambiguous words. This is because there is too great a risk that the full implications of their unqualified meaning may have passed unnoticed in the democratic process. In the absence of express language or necessary implication to the contrary, the courts therefore presume that even the most general words were intended to be subject to the basic rights of the individual. In these circumstances, we are required to interpret the statutory provisions strictly and restrictively. It is common ground that being detained is a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the 1971 Act. The power of SIAC to grant bail under section 3, Special Immigration Appeals Commission Act 1997 is similarly based on the person being detained. The Court of Appeal (at para 30) described the bail power as predicated on the individual being detained. Paragraph 22 of Schedule 2 confers a power to release on bail in the case of three categories of person, namely a person detained under paragraph 16(1) pending examination, a person detained under paragraph 16(1A) pending completion of his examination or a decision on whether to cancel his leave to enter, and a person detained under paragraph 16(2) pending the giving of directions. Each category is defined by reference to the person being detained under paragraph 16 of Schedule 2. Similarly, paragraph 29 applies to a person who is for the time being detained under Part I of this Schedule. Applying the strict approach to interpretation which I consider is required here, these provisions must be taken to refer to detention which is lawful. This conclusion is reinforced by the fact that in respect of each category to which it applies paragraph 16 refers to detention under the authority of an immigration officer. This makes clear that the provision is not addressing the mere fact of detention; this must refer to a lawful authorisation for detention. As the Court of Appeal concluded in the present case, it would be extraordinary if Parliament had intended to confer the power to grant bail where a person had been unlawfully detained or could not lawfully be detained. The words employed are certainly not appropriate to refer to a state of purported detention or to embrace both lawful and unlawful detention. I consider that detained in paragraphs 22 and 29 refers to lawfully authorised detention. On behalf of the Secretary of State, Mr Tam submits that detained is used only to define the state of affairs which must exist at the time when the power is first exercised. Clearly the power to grant bail can continue to be exercised after the person has ceased to be detained. However, this fails to address whether there needs to be a continuing power to detain as a pre condition to the grant of bail. Here it seems to me that unless there is a continuing power to detain, the system of bail within Part 1 of Schedule 2 would encounter substantial difficulties in its operation. In this regard, Ms Harrison on behalf of B, draws attention to certain features attending the grant of bail. First, paragraph 22(1A) and paragraph 29(2) require the detained person to enter into a recognizance to appear before an immigration officer at a named time and place. When he does so it is then for the immigration officer to re fix bail if he or she considers it appropriate to do so and to determine any appropriate conditions. (R (AR (Pakistan)) v Secretary of State for the Home Department [2016] EWCA Civ 807, para 26). It is difficult to see how this would operate if there were no continuing power of detention. As Ms Harrison points out, bail could be re fixed but until it is the individual cannot simply be at liberty, neither detained nor granted temporary admission. Secondly, and more fundamentally, Ms Harrison points to a situation in which it becomes necessary to re detain the person on bail, for example because he or she is in breach of the conditions of bail. This would not be possible in the absence of a subsisting lawful power to detain. In the absence of such a power, conditions of bail and recognizances entered into would be unenforceable. In response Mr Tam first places reliance on the breach of bail conditions. However, in such circumstances the legal authority for detention cannot be found in the grant of bail or in the breach of conditions of bail but must be found in an ongoing lawful power to detain, as appears from Stellato v Ministry of Justice [2010] EWCA Civ 1435; [2011] QB 856 and R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 (Admin), authorities to which I shall return later in this judgment. Secondly, he makes the point that under the Hardial Singh principles a power of detention may sometimes revive, for example because of a change of circumstances in the foreign state concerned or because of a change in the risk which the individual presents. While that may well occur from time to time in individual cases, it is no answer to Ms Harrisons objection which is directed at the operation of the system of immigration bail. I note, moreover, that there is no possibility of that occurring in the present case where not only did SIAC conclude on 1 July 2014 that Bs detention could no longer be authorised as it would be incompatible with Hardial Singh principles, but the Secretary of State has not authorised Bs continuing detention since that finding of SIAC. The present case, it appears, falls within the category contemplated by Lord Dyson JSC in WL (Congo) at para 144 where, however grave the risk of absconding or the risk of serious offending, it ceases to be lawful to detain a person pending deportation. Once that position is reached there is, in my view, no longer a power of detention under paragraph 16 and there is therefore no longer a power to grant bail under paragraphs 22 or 29. The Secretary of State next draws attention to paragraph 21 of Schedule 2 which concerns temporary admission or release of persons liable to detention or detained in non deportation cases (ie the equivalent provisions to paragraphs 2(5) and (6) of Schedule 3 of the 1971 Act). Paragraph 21 as amended provides for the release or temporary admission of persons liable to detention or detained: 21. Temporary admission or release of persons liable to detention (1) A person liable to detention or detained under paragraph 16(1), (1A) or (2) above may, under the written authority of an immigration officer, be temporarily admitted to the United Kingdom without being detained or be released from detention; but this shall not prejudice a later exercise of the power to detain him. (2) So long as a person is at large in the United Kingdom by virtue of this paragraph, he shall be subject to such restrictions as to residence, as to his employment or occupation and as to reporting to the police or an immigration officer as may from time to time be notified to him in writing by an immigration officer. Mr Tam submits that the respective structures of the powers to grant temporary admission or release under paragraph 21 and the power to grant bail under paragraph 22 are similar; paragraph 21 refers to a person liable to detention or detained whereas paragraph 22 refers to a person detained. He submits that this difference of wording serves only to identify that bail is available only if the individual is actually detained, while temporary admission is also available if the individual has not been actually detained. Thereafter, he submits, the approach adopted by the House of Lords in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39; [2006] 1 AC 207 ought to apply equally to both of these ameliorating possibilities. The power to admit temporarily and the power to grant bail should be held to continue so long as the power to detain exists, even if it cannot be lawfully exercised. The approach to which he refers is to be found in the speech of Lord Brown in Khadir at paras 31 33. 31. For my part I have no doubt that Mance LJ was right to recognise a distinction between the circumstances in which a person is potentially liable to detention (and can properly be temporarily admitted) and the circumstances in which the power to detain can in any particular case properly be exercised. It surely goes without saying that the longer the delay in effecting someones removal the more difficult will it be to justify his continued detention meanwhile. But that is by no means to say that he does not remain liable to detention. What I cannot see is how the fact that someone has been temporarily admitted rather than detained can be said to lengthen the period properly to be regarded as pending . his removal. 32. The true position in my judgment is this. Pending in paragraph 16 means no more than until. The word is being used as a preposition, not as an adjective. Paragraph 16 does not say that the removal must be pending, still less that it must be impending. So long as the Secretary of State remains intent upon removing the person and there is some prospect of achieving this, paragraph 16 authorises detention meanwhile. Plainly it may become unreasonable actually to detain the person pending a long delayed removal (ie throughout the whole period until removal is finally achieved). But that does not mean that the power has lapsed. He remains liable to detention and the ameliorating possibility of his temporary admission in lieu of detention arises under paragraph 21. 33. To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when properly it can be exercised and when it cannot); nothing about its existence. In its judgment in the present proceedings SIAC drew attention to the distinction drawn by Lord Brown between the existence of a power to detain, which can subsist even where actual detention would be unlawful, and the unlawful exercise of that power. The power to detain continues to exist even if actual detention would be unlawful provided that there is some prospect of removal being effected. It noted that Khadir had not been disapproved by the Supreme Court in WL (Congo). In the present case SIAC considered that there remained some prospect of removal so that the power to detain persisted under paragraph 2 of Schedule 3. The fact that detention today would be unlawful did not necessarily prevent lawful detention in the future. As a result it concluded that the power to grant bail also subsisted and could be exercised. That reasoning was decisively rejected by the Court of Appeal. On this further appeal Mr Tam submits that the value of the decision in Khadir is that its acceptance of the continuing existence of the power to detain and thus the continuing availability of temporary admission or temporary release allows a purposive construction of the three layered mechanism provided by Schedule 2 ie detention, bail, temporary admission or temporary release. In particular, he submits that as both bail and temporary admission or temporary release are ameliorating possibilities of alternatives to detention, it is sensible for both powers to persist for some duration beyond the point at which actual detention can no longer continue. In my view, Khadir provides no assistance to the Secretary of State in the present case, for the reasons given by Lord Dyson MR (at paras 29 31). They may be summarised as follows: (1) Khadir is a decision not on detention or on the power to grant bail under paragraphs 22 or 29, but on the power to grant temporary admission under paragraph 21. (2) There is a material difference between the wording of paragraph 21, on the one hand, and paragraphs 22 and 29 on the other. The distinction between a person detained and a person liable to be detained is clear and must have been deliberate. (3) The House of Lords in Khadir held that the distinction between the existence and the exercise of the power to detain was material to the power to grant temporary admission to a person liable to detention. There is no warrant for applying that distinction to the different question of whether there is a power to grant bail to a person who may not lawfully be detained at the time when it is proposed to grant bail. On behalf of the Secretary of State it is then submitted that the interpretation of paragraphs 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application and that this casts doubt on its reading. First, it is submitted that, if there is no power to grant bail unless there is a power to detain, on an application for bail the FTT or an immigration officer would have to determine Hardial Singh issues as a jurisdictional matter. It is submitted that Parliament could not have intended the FTT or immigration officers to engage in such an exercise which is difficult enough in a case of actual detention but which would be much more difficult or even logically impossible in the hypothetical context required by this reading of paragraphs 22 and 29. As a result bail applications could require two or three days of Hardial Singh enquiry simply to decide whether there is jurisdiction to grant bail. Here Mr Tam further submits that the FTT does not have jurisdiction to decide whether detention is lawful. (See Konan at para 30 and WL (Congo) at para 118.) I consider that there is little or no substance in these contentions for the following reasons: (1) It is unlikely that an applicant for bail will seek to challenge the jurisdiction of the FTT to grant bail. Similarly, the Secretary of State is unlikely to maintain that an applicants detention is unlawful. I accept, however, that, as it is a matter of jurisdiction, there may be cases in which the FTT should properly take the point of its own motion. (2) The power to grant bail is expressly conferred on the FTT or a Chief Immigration Officer by paragraphs 22 and 29 of Schedule 2. If an issue as to the legality of detention were to arise on a bail application, it would fall to be addressed in that context. If the judge concluded that detention was unlawful, the Secretary of State could be expected to direct release of the applicant on temporary admission. If she maintained the view that detention was lawful, the matter could be raised urgently in the Administrative Court. I note that, in the context of SIAC, where an applicant puts the legality of his detention in issue, concurrent judicial review proceedings can be lodged and the Chair of SIAC is able to exercise the jurisdiction of the Administrative Court. That is, in fact, what occurred in the present case. (3) The FTT is clearly entitled to address the Hardial Singh principles. Consideration on a bail application of whether detention was lawful would not, in any event, require the FTT to depart significantly from what is currently required of it. The current guidance (Bail Guidance for Immigration Judges Presiding over Immigration and Asylum Hearing, Presidential Note 1 of 2012, Judge Michael Clements, 11 June 2012 at paras 5,17 and 18) recognises that the lawfulness of detention may be a relevant factor in bail proceedings, as has the High Court in the SIAC jurisdiction (R (Othman) v SIAC [2012] EWHC 2349 (Admin)). Secondly, the Secretary of State submits that it appears from the statutory scheme that the grant of bail was intended to be an exercise conducted by relatively junior immigration officers or even by police officers with less specialist immigration experience and that, accordingly, it is very unlikely that Parliament intended that the lawfulness of detention should be investigated before the grant of bail. This is equally unconvincing. So far as the capabilities of immigration officers are concerned, I agree with the observations of Lord Dyson MR (at para 35). Immigration officers are charged by Parliament with taking many difficult decisions, which require care, individual consideration and the exercise of judgement and which may involve fact finding. These decisions are of enormous consequence to the lives of the persons concerned. In particular, in considering whether to grant temporary admission an immigration officer may have to consider whether a person is liable to detention under paragraph 21. Contrary to the submission of Mr Tam, I cannot see that application of the Khadir test of some prospect of the individuals removal is a significantly less complex exercise than the application of the Hardial Singh principles. Thirdly, the Secretary of State submits that an arrest by a police officer for an actual or apprehended breach of bail would require the officer to consider the Hardial Singh principles and assess whether the prescribed limit of a power to detain had been reached. However, the power of arrest conferred by paragraph 24(1)(a) is exercisable by a police officer if he has reasonable grounds for believing that that person is likely to break the condition of his recognizance or bail bond. Unlike the power to order re detention in paragraph 24(3), it does not depend on a continuing power to exercise immigration detention. Fourthly, the Secretary of State points to the consequences which might follow if detention were unlawful on other grounds. Here, particular reliance is placed on WL (Congo), where detention was unlawful because it was based on an unpublished policy which conflicted with a published policy, and on R (SK (Zimbabwe)) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299, where detention was unlawful because of missed detention reviews required by a published policy. It is said that it would be absurd if there were no power to grant bail in such circumstances. In my view, there is no absurdity here. Once detention had been authorised on a lawful basis there would be power to grant bail. Accordingly, I consider that the spectre of impracticability conjured up by Mr Tam is illusory and does not cast any doubt on my reading of paragraphs 22 and 29. There is no reason to conclude that Parliament must have intended to confer a power to grant bail where a person is detained unlawfully. On the contrary, I have no doubt that the statutory provisions with which we are concerned require a lawful power to detain as a pre condition to a grant of bail. In any event, if administrative inconvenience is a consequence the remedy lies with Parliament. For these reasons I agree with the conclusion of Lord Dyson MR that bail may not be granted under paragraphs 22 and 29 of Schedule 2 where a person is unlawfully detained purportedly under paragraph 2(2) of Schedule 3 to the 1971 Act or where a person not currently in detention could not lawfully be detained under that provision. In his judgment in the Court of Appeal in the present case, Lord Dyson MR, having arrived at the conclusion that the word detained in paragraphs 22 and 29 of Schedule 2 should be construed as meaning lawfully detained, advanced a further, independent basis for his conclusion, namely that the power to grant bail presupposes the existence of and the ability to exercise the power to detain lawfully. In support of this conclusion he drew attention to Mitchell v Mitchinham (1823) 2 D & R 722 and In re Amand [1941] 2 KB 239 which, he observed, demonstrate that the writ of habeas corpus can still issue where a person is on bail. As a matter of legal instinct, the proposition that the ability to exercise a lawful power to detain is a precondition to a power to grant bail seems entirely sound. Not only does it seem correct as a matter of principle, but also the lack of a lawful power to detain is likely, without more, to give rise to practical difficulties. As I have explained earlier in this judgment, that would, in my view, be the position in relation to immigration bail if the Secretary of States submissions were accepted in the present case. Although we have been referred on this appeal to a number of authorities relating to the scope and availability of habeas corpus, including those referred to by Lord Dyson MR, I have not found these decisions of any great assistance. Nevertheless, there is a considerable body of modern authority which supports Lord Dysons statement of principle. The decision of the Court of Appeal in Stellato v Ministry of Justice [2011] QB 856 is strongly supportive of this approach. The claimant having been released on licence from a prison sentence refused to comply with the conditions of his licence on the ground that he was entitled to be released unconditionally. He was returned to prison. A Divisional Court of the Queens Bench Division dismissed his claim for judicial review. His appeal was allowed by the Court of Appeal which granted a declaration that he was entitled to immediate release but stayed the declaration to permit a petition to the House of Lords and granted him conditional bail. He refused to comply with the bail conditions and, as a result, was arrested and returned to prison pursuant to an order of a Lord Justice who, the next day, ordered that his bail be revoked and that he remain in custody until the end of the stay granted by the Court of Appeal. Following the dismissal by the House of Lords of the Home Offices appeal, he was released unconditionally and he then brought an action for false imprisonment and breach of his rights under article 5 ECHR against the Ministry of Justice as successor to the Home Office. In those proceedings the question arose whether the stay or the breach of bail conditions provided legal authority for his detention. The Court of Appeal (Maurice Kay, Stanley Burnton and Patten LJJ) held that they did not. Stanley Burnton LJ explained (at para 21) that the only authority for the continued detention was the original sentence of imprisonment and the legislation which was the subject of the courts judgment. He continued: 23. Turning to the effect of the orders of Hughes LJ, I consider that the answer is to be found in the nature of a grant of bail. In principle, a grant of bail is not an order for the detention of the person to whom it is granted. To the contrary, it is a grant of liberty to someone who would otherwise be detained. The legal justification for his detention is to be found elsewhere: in the case of a person suspected of crime, in the powers of arrest of a constable under a warrant issued by a magistrates court (see section 1 of the Magistrates Courts Act 1980), or without a warrant (see section 24 of the Police and Criminal Evidence Act 1984), and powers to remand pending trial or further hearing. Similarly, there is statutory authority for detention in immigration cases: see, for example, paragraph 16 of Schedule 2 to, and paragraph 2 of Schedule 3 to, the Immigration Act 1971. 24. A grant of bail may be conditional or unconditional. A condition of bail does not impose an obligation on the person granted bail. It is a true condition. It qualifies the grant of liberty made by the grant of bail. If the person granted bail does not comply with the conditions of his bail, he is liable to be returned to custody. If so, the legal authority for his detention is not the grant of bail, or his breach of the conditions of his bail, but the authority for his detention apart from the order for bail. All that his breach of the conditions of his bail does is to disentitle him to bail. Similarly, in R (Konan) v Secretary of State for the Home Department [2004] EWHC 22 Admin, where the claimants alleged that their immigration detention had been unlawful, Collins J, in rejecting a submission on behalf of the Secretary of State that bail was an alternative remedy, stated (at para 30): An adjudicator in considering a bail application is not determining (indeed, he has no power to determine) the lawfulness of the detention. The grant of bail presupposes the power to detain since a breach of a bail condition can lead to a reintroduction of the detention. That the grant of bail is not a determination of the legality of detention was emphasised by Lord Dyson JSC in R (WL (Congo)) v Secretary of State for the Home Department [2012] 1 AC 245, para 118, and Hughes LJ in R (Omar Othman) v Special Immigration Appeals Commission [2012] EWHC 2349 (Admin), para 18. I also note that in Ismail v United Kingdom (2014) 58 EHRR SE6, para 16, the United Kingdom expressly submitted, on the authority of Konan and Lumba, that article 5(4) ECHR was not applicable since a bail application was not a procedure under domestic law to challenge the lawfulness of immigration detention and emphasised that, under domestic law as interpreted by the courts, a decision to release a person on bail, subject to conditions designed to ensure his future attendance, presupposed the legality of the power to detain. On behalf of the Secretary of State Mr Tam relies before us on a line of cases concerning foreign national offenders in which bail had been granted to an individual, whose detention had become or was about to become unlawful, as a means of ending the detention and continuing the individuals management whilst he was on bail. These decisions include R (Bashir) v Secretary of State for the Home Department [2007] EWHC 3017 (Admin); R (A, MA, B and E) v Secretary of State for the Home Department [2008] EWHC 142 (Admin); R (O) v Secretary of State for the Home Department [2008] EWHC 2596 (Admin); R (Adewale) v Secretary of State for the Home Department [2009] EWHC 1289 (Admin); R (Wang) v Secretary of State for the Home Department [2009] EWHC 1578 (Admin); R (D) v Secretary of State for the Home Department [2009] EWHC 1655 (Admin); R (Ahmed) v Secretary of State for the Home Department [2010] EWHC 625 (Admin); R (Hussein) v Secretary of State for the Home Department [2010] EWHC 2651 (Admin) and R (HY) v Secretary of State for the Home Department [2010] EWHC 1678 (Admin). On this basis, he submits that the Secretary of States contention in the present proceedings is the conventionally accepted approach to the question of bail and that this includes the imposition of bail conditions as an alternative to detention after actual detention has become unlawful for Hardial Singh reasons. The difficulty with this submission, however, is that in these first instance decisions, which include one of my own, the power to grant bail appears to have been assumed without the present issue having been directly addressed. Nevertheless, the notion that the power to grant bail presupposes the existence and the ability to exercise a power to detain lawfully is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so. It would be a question of construction in each case whether that result had been achieved. Thus in Stellato Stanley Burnton LJ observed (at para 25) that the general principles which he had set out in paragraphs 23 and 24 (quoted above) are subject to any statutory provision. Moreover, following a suggestion by Lord Hughes during the course of argument on this appeal, it became apparent that the provisions governing police bail in sections 34, 37 and 41, Police and Criminal Evidence Act 1984 may be exceptions to the general principle stated by the Court of Appeal. In this regard, I also draw attention to section 61, Immigration Act 2016. In view of such possible statutory inroads into the principle stated by the Court of Appeal, I prefer to found my conclusions in the present case on the interpretation of the provisions of Schedule 2. In the present case it is common ground that B could not lawfully be detained following the ruling of SIAC on 13 February 2014 that there was no reasonable prospect of removing [B] to Algeria and thus the ordinary legal basis for justified detention of B under the Immigration Acts has fallen away. Furthermore, it has not been suggested that this is a case in which, on the application of Hardial Singh principles, a lawful power of detention subsequently revived as a result of a change of circumstances. In these circumstances I conclude, for the reasons set out above, that in the absence of a power of lawful detention there was no power to grant bail to B pursuant to paragraph 22 of Schedule 2 to the 1971 Act. In these circumstances I do not consider it necessary to address the arguments which we have heard on article 5 ECHR which, in my view, adds nothing to the resolution of the issues before the court on this appeal.

The Respondent (B) has been in the UK since 1993. He was originally detained under section 21 of the Anti Terrorism, Crime and Security Act 2001 and was subsequently subject to a control order under the Prevention of Terrorism Act 2005. On 11 August 2005, he was notified of the Secretary of States intention to make a deportation order against him on national security grounds. He was detained under Schedule 3 of the Immigration Act 1971 (the 1971 Act) pending deportation. He appealed, using a false identity, to the Special Immigration Appeals Commission (SIAC) against his deportation. The UK Government sought assurances from the Algerian authorities that, if returned to Algeria, B would not be subject to treatment incompatible with Article 3 of the European Convention on Human Rights (ECHR). On 10 July 2006, the Algerian authorities confirmed that the details of his identity given by B were those of an individual present in Algeria. On 19 July 2007, SIAC ordered B to provide details of his true identity. On 30 July 2008, SIAC held that the Secretary of States case against B on the risk to national security had been made out. On 26 November 2010, SIAC held that B had disobeyed its earlier order of 19 July 2007 and imposed a prison sentence on B of four months. Following his eventual release from prison, bail conditions were imposed on B. On 13 February 2014, SIAC held that there was no reasonable prospect of removing B to Algeria and the ordinary legal basis for justified detention under the Immigration Acts therefore fell away. Thereafter, the Secretary of State did not authorise Bs further detention and his bail conditions were relaxed. Bs appeal against the notice of decision to deport him was struck out by SIAC in light of his continuing contempt of court. SIAC also rejected Bs submission that, following SIACs findings of 13 February 2014, it no longer had jurisdiction to grant bail to B or to impose bail conditions. This decision was upheld by the High Court. B appealed to the Court of Appeal, which allowed his appeal on the ground that SIAC had no jurisdiction to impose bail conditions on B if his detention would be unlawful. On 12 December 2016, SIAC allowed Bs substantive deportation appeal. As a result, Bs bail fell away and it is common ground that the immigration power is now unavailable. The Supreme Court granted the Secretary of State permission to appeal against the decision of the Court of Appeal on the issue of SIACs bail jurisdiction. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones gives the lead judgment with which the other Justices agree. The so called Hardial Singh principles concerning the operation of the detention power contained in paragraph 2 of Schedule 3 to the 1971 Act form an important part of the background to this appeal. These principles are that (i) the Secretary of State must intend to deport the person and can only use the detention power for that purpose; (ii) the deportee may only be detained for a reasonable period; (iii) if it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period then he should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect removal [24 25]. At the heart of the case is a dispute about what the correct approach to the availability of immigration bail is when the Hardial Singh limit on actual detention is reached. The Secretary of State suggested that a purposive interpretation of the legislation should apply so that bail is available regardless of whether the individual is lawfully detained or would hypothetically be lawfully detained [28]. The Court saw no basis for such an approach. It is a fundamental principle of the common law that Parliament is presumed not to intend to interfere with the liberty of the subject without making such an intention clear. This was a situation where the principle of legality was in play. Accordingly, the Court was required to interpret the statutory provisions strictly and restrictively [29]. It was common ground that being detained was a condition precedent to the exercise of the power to grant bail conferred by paragraphs 22 and 29 of Schedule 2 to the 1971 Act. Applying the strict approach to interpretation, the Court found that the reference to detained means lawful detention [30 31]. Furthermore, detained does not only refer to the state of affairs which must exist at the time when the power is first exercised. Unless there is a continuing power to detain, the system of bail would encounter substantial difficulties in operation [32]. Where it ceases to be lawful to detain a person pending deportation there is no longer a power of detention under paragraph 16 of Schedule 2, and there is therefore no longer a power to grant bail under paragraphs 22 or 29 [33]. The Secretary of State submitted that as both bail and temporary admission or temporary release are ameliorating possibilities of alternatives to detention, it is sensible for both powers to persist for some duration beyond the point at which actual detention can no longer continue. Temporary admission or release is covered by paragraph 21 of Schedule 2. However, unlike paragraphs 22 and 29, it refers to a person liable to be detained and not detention which is a material difference. Accordingly, the comparison does not assist the Secretary of State [34 39]. The Court did not agree with the Secretary of States submission that the interpretation of paragraphs 22 and 29 favoured by the Court of Appeal would lead to impracticability in their application. In any event, if administrative inconvenience is a consequence the remedy lies with Parliament [40 45]. The Court found considerable modern authority which supported the Court of Appeals statement of principle that the power to grant bail presupposes the existence of and the ability to exercise the power to detain lawfully. [47 51]. However, this is not necessarily a principle of universal application. While the clearest possible words would be required to achieve a contrary result, Parliament could do so [53]. In the circumstances it was not necessary to address the arguments under Article 5 ECHR which added nothing to the resolution of the issues on appeal [56].

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This appeal is about whether the appellant, Nigerian National Petroleum Corporation (NNPC), should have to put up a further USD 100m security (in addition to USD 80m already provided) in respect of a Nigerian arbitration award which the respondent, IPCO (Nigeria) Ltd (IPCO), has been seeking since November 2004 to enforce in this jurisdiction. The enforcement proceedings have, therefore, a long history and it is necessary to set some of it out, to understand the context. The arbitration award has an even longer history. It is dated 28 October 2004 and is for USD152,195,971 plus Naira 5m plus interest at 14% per annum. The arbitration took place under a contract dated 14 March 1994 whereby IPCO undertook to design and construct a petroleum export terminal for NNPC. The contract was subject to Nigerian law and contained an agreement to arbitrate disputes in accordance with the Nigerian Arbitration and Conciliation Act 1988. The award once made was challenged by NNPC before the Nigerian Federal High Court. Initially, the challenge was for what have been called non-fraud reasons. As from 27 March 2009, NNPC, relying on evidence supplied by a former IPCO employee, Mr Wogu, has also challenged the whole award on the basis that IPCO procured it in substantial part by fraudulent inflation of the quantum of its claim using fraudulently created documentation. Both Field J [2014] EWHC 576 (Comm) and the Court of Appeal (Christopher Clarke, Burnett and Sales LJJ) [2015] EWCA Civ 1144 concluded that the fraud challenge was made bona fide, that NNPC has a good prima facie case that IPCO practised a fraud on the tribunal and that NNPC has a realistic prospect on that basis of proving that the whole award should be set aside. It is unnecessary to describe the vicissitudes which befell the challenges before the Nigerian courts. Suffice it to say that they have been closely examined in the English courts on more than one occasion; and that the Court of Appeal has concluded (para 164, per Christopher Clarke LJ) that it would not be profitable to seek to determine which party (if either) is more to blame for the delay, which appears, to me in large measure, to result from the workings of the Nigerian legal system. At the outset of the English proceedings, Steel J made an ex parte order for enforcement dated 29 November 2004. This led in turn to an application by NNPC for the ex parte order to be set aside under sections 103(2)(f) and 103(3) of the Arbitration Act 1996 (the 1996 Act), or alternatively for its enforcement to be adjourned under section 103(5), pending the resolution of the non-fraud challenges in the Nigerian courts. After an inter partes hearing, Gross J held on 27 April 2005 [2005] EWHC 726 (Comm) that NNPC should pay IPCO a sum of just over USD 13m (which, at that stage, when only the non-fraud challenge had been raised, appeared indisputably due), and that NNPC should provide security in the sum of USD 50m in respect of the adjournment. The USD 13m ordered was duly paid, and the security was also provided. At that stage, it was envisaged that the non-fraud challenge in Nigeria might be resolved with relative despatch. This was not to be, and on 17 July 2007 IPCO applied to have Gross Js order reconsidered on the basis that the Nigerian challenge appeared now to be unlikely to be determined for several years. Tomlinson J in a judgment dated 17 April 2008 concluded that the change of circumstances, catastrophic though it is did not justify a complete re-opening of the exercise undertaken by Gross J. Nevertheless, he ordered NNPC to pay a further net sum of around USD 52m (after taking account of USD 7.7m already paid), plus USD 26m by way of interest. He gave permission to appeal and ordered a stay pending appeal, conditional upon NNPC providing additional security to the value of USD 30m. This additional security was also provided. Tomlinson J adjourned any decision regarding enforcement of the balance of the award under section 103(5). The Court of Appeal upheld Tomlinson Js order, but it was further stayed pending the outcome of a petition to appeal to the House of Lords. Before this petition was determined (by refusal of leave), NNPC on 2 December 2008 moved to stay Tomlinson Js order on the ground that it had now obtained evidence of fraud. Flaux J on 16 December 2008 stayed Tomlinson Js order to enable NNPC to make an application under section 103(3) based on this new evidence and/or under section 103(5) for a further adjournment of enforcement. He ordered that NNPC maintain the security totalling USD 80m which had been ordered by Gross J and Tomlinson J. By application dated 18 December 2008 NNPC applied to vary Tomlinson Js order so as to provide that recognition or enforcement of the Award dated 28 October 2004 be refused pursuant to section 103(3) of the Arbitration Act 1996 because it would be contrary to public policy to do so; alternatively, the decision on whether to enforce the Award be adjourned pursuant to section 103(5) of the Arbitration Act 1996 with liberty to apply. The grounds given for refusal of recognition or enforcement were that there had been a material change of circumstances and/or Tomlinson J had been misled into believing that the Award had been properly obtained and/or public policy. The ground given for the alternative of adjournment was that the Nigerian courts would or might set aside the Award for fraud, false evidence or forgery. On 27 March 2009 NNPC applied to amend its pleadings in the Nigerian proceedings to raise the fraud challenge (an application adjourned by consent and never determined). In this light, a consent order dated 17 June 2009 was made in the English proceedings, whereby inter alia, upon NNPC undertaking to maintain the USD 80m security until further order of the court, those parts of Tomlinson Js order dated 17 April 2008 ordering payment of sums were set aside (para 1), and the decision on enforcement of the Award was adjourned pursuant to section 103(5) of the Arbitration Act 1996 (para 2). Delay continued to dog the Nigerian proceedings, and on 24 July 2012 IPCO renewed its application to enforce the Award in England, again on the ground that there had been a sufficient change of circumstances to justify this. By order dated 1 April 2014 made after a six day hearing in October 2013 Field J dismissed this application, but added that, even if it had been appropriate to reconsider enforcement in England afresh, he would have refused it, on the ground that NNPC had a good prima facie case of fraud, and that this case should continue to trial in Nigeria. The security, which NNPC had undertaken by the consent order to maintain, in these circumstances continued. The Court of Appeal took a different view. It held that there had been a material change of circumstances, and decided to cut the Gordian knot caused by the sclerotic process of the proceedings in Nigeria (paras 172-173). By order dated 10 November 2015 it therefore allowed IPCOs appeal, set aside Field Js order (by para 1) and ordered as follows (by paras 2 and 3): 2. Upon condition that the respondent provides security as set out at paragraph 5 below: (a) the proceedings shall be remitted to the Commercial Court for determination, pursuant to section 103(3) of the Act, as to whether the arbitral award dated 28 October 2004 (the Award) should not be enforced in whole or in part because it would be against English public policy so to do (the Section 103(3) Proceedings); (b) any further enforcement of the Award shall be adjourned, pursuant to section 103(5) of the Arbitration Act 1996, pending determination of the Section 103(3) Proceedings. 3. Upon any failure of the respondent to comply with the said condition the adjournment shall lapse and the appellant may enforce the Award in the same manner as a judgment or order of the court to the same effect and the appellant shall immediately be entitled to demand payment under the Guarantee and Further Guarantee (as defined in the Order of Mr Justice Tomlinson dated 17 April 2008) [ie the two existing guarantees totalling USD 80m]. 5. The security to be provided by the respondent must be provided by 4 pm on 4 December 2015 by way of first class bank guarantee issued in London in similar form to the Guarantee and the Further Guarantee in the sum of US$ 100,000,000. This security is to be in addition to that provided by those Guarantees. The parties have subsequently agreed that not only the fraud issue, but also the non- fraud issues should be decided should be decided in the English enforcement proceedings. The order dated 10 November 2015 did not reflect the Court of Appeals initial conclusions as to the appropriate disposition. They were set out in a draft, circulated on 4 September 2015 in the usual way, by para 175 of which the Court proposed to require NNPC to provide security for the whole of the principal and interest then claimed, around USD 300m. This led to a request by NNPC to the Court for it, exceptionally, to reconsider the position, on the ground that the order for security was made without jurisdiction or was alternatively wrong in principle and/or manifestly wrong. On the former point, NNPC referred to Soleh Boneh International Ltd v Government of the Republic of Uganda [1993] 2 Lloyds Rep 208 and Dardana Ltd v Yukos Oil Co (Dardana v Yukos) [2002] EWCA Civ 543; [2002] 2 Lloyds Rep 326. After receiving submissions from both parties, the Court of Appeal issued two judgments, neither in precisely the same terms as the original draft. It rejected the submission of lack of jurisdiction, but acceded to the request that it reconsider the quantum of security, which it reduced to a requirement for a further USD 100m. In the Courts first, main judgment, Christopher Clarke LJ, said: Decision 174. In my judgment the appropriate course to take is as follows. First, we should order that IPCOs application to enforce should be adjourned pending the determination by the Commercial Court pursuant to section 103(3) of the Act as to whether the Award should not be enforced in whole or in part because it would be against English public policy so to do. 175. Second, we should make that order conditional upon the provision by NNPC of further security in a form and within a time period to be agreed, or if not agreed, to be determined by this Court, in the sum of $ 100m. 176. Third, we should order that, if such security is not provided within a period which we shall specify from the time when the form of security is agreed or determined, IPCO shall have permission to enforce the Award. 177. Fourth, we should order that, if such security is provided, then, if and to the extent that it is determined by a final order of the courts of England and Wales that the enforcement of the Award is not contrary to the public policy of England & Wales, IPCO may enforce it. 178. Fifth, there shall be Permission to apply to the Commercial Court. In the Courts shorter supplementary judgment [2015] EWCA Civ 1145 dealing more extensively with the issue of jurisdiction, Christopher Clarke LJ said: Discussion 18. In the present case it seems to us that in reality it is NNPC, the Award debtor, which sought the continuance of the adjournment in the face of IPCOs attempt to enforce the Award and bring the adjournment to an end. In its respondents notice NNPC said that, if the judges contingent exercise of his discretion was in error, he was nevertheless correct to conclude that it was appropriate to adjourn under section 103(5) so that the challenge could proceed in Nigeria inter alia because, if the court were minded to enforce the Award, it would still have to decide whether the enforcement of the award was contrary to English public policy. In other words it was relying on the possibility of a later English public policy challenge as a reason to uphold the continuance of the adjournment, ordered by consent on 17 June 2009, pending resolution of the fraud challenge in Nigeria, rather than suggesting that enforcement should only abide a section 103(3) determination. 19. So far as the ability of IPCO to enforce any judgment is concerned, much will depend on whether NNPC has sufficient assets in this country, or any other country in which an English judgment may be enforced, to ensure that it can swiftly receive the fruits of any judgment in its favour. 20. Although NNPC is a large business we have no details of its assets within such countries, or the form in which they are held, how long they have been held there, or how readily any trading arrangements might be changed so as to render enforcement difficult or impossible. 21. where there is a very large award, delay without security is inherently likely to prejudice the award creditor and certainly risks doing so. We regard that as a factor which should incline us towards providing some security to ensure that if the fraud challenge fails, IPCO will not be faced with a further round of attempts to avoid payment of the Award or a situation in which its prospects of recovery have worsened. 22. Another material factor is the need in a case involving such extraordinary delay, extending over a decade, to provide a strong incentive to securing finality. NNPL [sic] says that, now that the fraud challenge is to be heard in London, the prospects of excessive delay are much reduced. Hopefully so. But the history of these proceedings, and their inordinate delay, persuades us of the need to provide an incentive, indeed something of a goad, to progress. 23. Lastly we bear in mind that the delay which has already taken place has meant that the ratio between the amount of security in place and the amount due has greatly decreased. Interest under the award is running at 14% per annum. Gross J ordered that security of $ 50m be provided 10 years ago. $ 50m x 14% x 10 = $ 70m. The same exercise applied to the $ 30m security provided in 2008 produces about another $ 31.5m ($ 30m x 14% x 7.5). NNPC now appeals, by permission of this Court, against the Court of Appeals order for security, in essence on the ground that the order was made without jurisdiction or wrong in principle and/or was illegitimate in circumstances where NNPC has a good prima facie case of fraud entitling it to resist enforcement of the whole award. Sections 100 to 104 of Part III of the 1996 Act address the recognition and enforcement of foreign awards. They give effect to the United Kingdoms obligations under the New York Convention on the Recognition and Enforcement of Foreign Arbitral Awards 1958. Section 103 is central to the resolution of this appeal. It reads: 103. Refusal of recognition or enforcement. (1) Recognition or enforcement of a New York Convention award shall not be refused except in the following cases. (2) Recognition or enforcement of the award may be refused if the person against whom it is invoked proves - (a) that a party to the arbitration agreement was (under the law applicable to him) under some incapacity; (b) that the arbitration agreement was not valid under the law to which the parties subjected it or, failing any indication thereon, under the law of the country where the award was made; (c) that he was not given proper notice of the appointment of the arbitrator or of the arbitration proceedings or was otherwise unable to present his case; (d) that the award deals with a difference not contemplated by or not falling within the terms of the submission to arbitration or contains decisions on matters beyond the scope of the submission to arbitration (but see subsection (4)); (e) that the composition of the arbitral tribunal or the arbitral procedure was not in accordance with the agreement of the parties or, failing such agreement, with the law of the country in which the arbitration took place; (f) that the award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, it was made. (3) Recognition or enforcement of the award may also be refused if the award is in respect of a matter which is not capable of settlement by arbitration, or if it would be contrary to public policy to recognise or enforce the award. (4) An award which contains decisions on matters not submitted to arbitration may be recognised or enforced to the extent that it contains decisions on matters submitted to arbitration which can be separated from those on matters not so submitted. (5) Where an application for the setting aside or suspension of the award has been made to such a competent authority as is mentioned in subsection (2)(f), the court before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the recognition or enforcement of the award. It may also on the application of the party claiming recognition or enforcement of the award order the other party to give suitable security. Section 103(2) and (3) give effect to article V, while section 103(5) gives effect to article VI, of the New York Convention. Articles V(1) specifies as a ground on which recognition and enforcement may be refused that: (e) The award has not yet become binding on the parties, or has been set aside or suspended by a competent authority of the country in which, or under the law of which, that award was made. Article VI reads: If an application for the setting aside or suspension of the award has been made to a competent authority referred to in article V(1)(e), the authority before which the award is sought to be relied upon may, if it considers it proper, adjourn the decision on the enforcement of the award and may also, on the application of the party claiming enforcement of the award, order the other party to give suitable security. In this light it was common ground, and it is in any event clear, that sections 103(2)(f) and (5) are both addressing a situation where an award sought to be recognised or enforced in this jurisdiction has been or is under challenge in an overseas jurisdiction where, or under the law of which, it was made. The issue on this appeal falls under two heads: first, whether the Court of Appeals order was justified by reference to section 103(5) of the 1996 Act; and, second, whether it was justified by reference to general English procedural rules. In the latter connection, reliance is placed on CPR 3.1(3) as well as, indirectly, on section 70(7) of the 1996 Act. CPR 3.1(3) provides that: Where the court makes an order, it may - a) make it subject to conditions, including a condition to pay a sum of money into court; and specify the consequences of failure to comply b) with the order or a condition. Section 70(7) is one of a group of sections appearing under the heading Powers of the court in relation to award in Part I of the 1996 Act. Part I concerns arbitrations that (unlike the present) have their seat in England, Wales or Northern Ireland: see section 2(1). The group starts with section 66, addressing enforcement generally: Enforcement of the award (1) An award made by the tribunal pursuant to an arbitration agreement may, by leave of the court, be enforced in the same manner as a judgment or order of the court to the same effect. (2) Where leave is so given, judgment may be entered in terms of the award. (3) Leave to enforce an award shall not be given where, or to the extent that, the person against whom it is sought to be enforced shows that the tribunal lacked substantive jurisdiction to make the award. The right to raise such an objection may have been lost (see section 73). (4) Nothing in this section affects the recognition or enforcement of an award under any other enactment or rule of law, in particular under Part II of the Arbitration Act 1950 (enforcement of awards under Geneva Convention) or the provisions of Part III of this Act relating to the recognition and enforcement of awards under the New York Convention or by an action on the award. Section 66 must be read with section 81(1), providing that: Saving for certain matters governed by common law. (1) Nothing in this Part shall be construed as excluding the operation of any rule of law consistent with the provisions of this Part, in particular, any rule of law as to - (a) matters which are not capable of settlement by arbitration; (b) (c) arbitral award on grounds of public policy. the effect of an oral arbitration agreement; or the refusal of recognition or enforcement of an Sections 67, 68 and 69 concern challenges to awards for lack of substantive jurisdiction (section 67), serious irregularity (section 68) or by way of appeal on a point of law (section 69), in each case in proceedings initiated before the court by the award debtor. They therefore contrast with section 66(3), which, read with section 81, enables an award debtor to challenge enforcement on grounds there indicated by resisting enforcement proceedings initiated by the award creditor. Section 70(1) provides that the following provisions, inter alia, apply to an application or appeal under sections 67, 68 or 69 of the Act: (6) The court may order the applicant or appellant to provide security for the costs of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with. (7) The court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal, and may direct that the application or appeal be dismissed if the order is not complied with. CPR 62.18(9) provides that, within 14 days of service of an ex parte order giving permission to enforce under section 66, the defendant may apply to set aside the order and the award must not be enforced until after any application made by the defendant within that [14 day] period has been finally disposed of. I start with the relationship between the Court of Appeals order and the scheme of section 103 of the Act. The order was that the fraud issue, raised as an issue of public policy under section 103(3), should, for the purposes of determining whether enforcement should be ordered, be decided in the English, rather than Nigerian, proceedings. But the decision of the fraud issue was made conditional upon the provision by NNPC of a further USD 100m security, failing which the Court gave leave to enforce without any decision of the fraud issue. Upon provision of such security, on the other hand, the Courts order provided that any further enforcement of the award should be adjourned under section 103(5) pending decision of the fraud issue. The position is therefore that the Court held that an enforcing courts decision upon an issue, raised by an award debtor under section 103(3) or, as must follow, section 103(2) could (and in the instant case should) be made conditional upon the award debtors provision of security in respect of the award. Further, it regarded the delay which would follow while that decision was being reached by the enforcing court as involving an adjournment within the meaning of the words the court may adjourn the decision on the recognition or enforcement of the award in section 103(5). In both these respects, the Court of Appeal fell in my opinion into error. First, nothing in section 103(2) or (3) (or in the underlying provisions of article V of the New York Convention) provides that an enforcing court may make the decision of an issue raised under either subsection conditional upon the provision of security in respect of the award. In this respect, there is a marked contrast with section 103(5), which specifically provides that security may be ordered where there is an adjournment within its terms. Second, the Court erred in regarding its order that the English court should as the enforcing court decide the fraud issue as involving adjournment of the decision on that issue within the terms of section 103(5). This error has two aspects. First, as stated in para 15 above, section 103(5) concerns the situation where an enforcing court adjourns its decision on enforcement under section 103(2) or (3), while an application for setting aside or suspension of the award is pending before the court of the country in, or under the law of which, the award was made. This was the situation when orders were made by Gross J on 12 April 2005, by Flaux J on 16 December 2008 and by consent on 17 June 2009. But it ceased to be the situation for the future, once the Court of Appeal held that the issue whether fraud was an answer to enforcement should no longer await the outcome of the Nigerian proceedings, but should be decided by the English courts. Although the literal trigger to the application of section 103(5) is that an application has been made to the courts of the country where, or under the law of which, the award was made, the adjournment which it contemplates is pending the outcome of that application. Once it is held that there should be no such further adjournment, there is no basis for ordering further security under section 103(5). The Court of Appeal, in ordering that any further enforcement of the award should be adjourned under section 103(5) pending determination of the section 103(3) proceedings, was, therefore, misusing the word in the context of section 103(5). Of course, any decision of an issue raised under section 103(2) or (3) may take a court a little time, even if it is only while reading the papers, or adjourning overnight or for a number of weeks, in order to consider and take the decision. But that does not mean that the decision was being adjourned within section 103(5). On the contrary, delays of this nature are all part of the decision-making process. The second aspect is that section 103(5) contemplates an order for security being made on the application of the party claiming recognition or enforcement of the award. It is true that in Dardana v Yukos, when giving the reasons of all members of the court, I said, at para 31: I am fully prepared to proceed on the basis that section 103(5) provides the court with jurisdiction to make such an order, in a case where it, either of its own motion (cf Soleh Boneh) or at the instance of the party seeking [sic] recognition or enforcement, decides to adjourn, pending a foreign application to set aside by the party resisting recognition or enforcement. Christopher Clarke LJ in his supplementary judgment, para 6, questioned how section 103(5) was thought to provide jurisdiction to the court to act of its own motion. It is unnecessary to consider that question here, although I shall return to para 6. What is however important to note is an evident error in the passage cited, which no one appears to have spotted. The word seeking after which I have inserted sic should clearly have read resisting, to reflect the actual language of section 103(5). That is also evident from the actual decision in Dardana v Yukos and its supporting reasoning. In Dardana v Yukos, the award debtor (Yukos) was challenging a Swedish award in Stockholm, but its primary response to an application to enforce in England was that the English courts should themselves decide whether the award should be recognised or enforced under section 103(2)(b) and/or (d). (Only in the alternative, did Yukos apply for an adjournment under section 103(5).) For a considerable time, the award creditor (Dardana) shared the award debtors stance, that the issues should be decided under section 103(2)(b) and/or (d). But, during the hearing, Dardana appreciated that its case was less strong than it had thought. It then changed direction, and rather than risk losing in England, resisted determination of Yukoss case in England, and itself in reality sought an adjournment pending the outcome of the Swedish proceedings (see judgment, para 23). In these circumstances, the Court of Appeal held in Dardana v Yukos that the English courts had no power under section 103(5) to order Yukos to provide security on the tacit basis that, if Yukos did not do this, immediate enforcement would be ordered against it (paras 26-31). Security pending the outcome of foreign proceedings is, in effect, the price of an adjournment which an award debtor is seeking, not to be imposed on an award debtor who is resisting enforcement on properly arguable grounds. The reasoning in Dardana v Yukos underlines both these aspects. I have added italics for emphasis: 27. In most cases it would be the party resisting recognition or enforcement, who had already begun proceedings to set aside in the foreign state, who would be seeking an adjournment of the recognition or enforcement proceedings, pending resolution of the foreign application. An order for security, on the application of the party seeking recognition or enforcement, would be the price of the adjournment sought by the other party, and would protect the party seeking recognition or enforcement during the adjournment. There is no power under section 103(5) to order security except in connection with an adjournment. If no foreign application had been made to set aside, the domestic proceedings under section 103(2) would have had to be fought out to a conclusion; and there would be no power under section 103(5) to order security during the period which that took. There could of course, in an appropriate case be an application for freezing relief 28. In a case where a party resisting enforcement applies under section 103(2), but later seeks an adjournment of its application pending resolution of foreign proceedings in which it is also challenging the award, adjournment may as a matter of general principle be ordered on condition that security be provided (failing which the order for adjournment will be vacated and the issues under section 103(2) will be determined). 29. The reality in the present case is that the appellants were obliged to provide the security, on the tacit basis that, if they did not do so, then enforcement would be ordered unconditionally against them, despite their outstanding application under section 103(2). The provision for security was, in other words, made a condition not of any adjournment sought by the appellants, but of avoiding immediate and final enforcement; and, failing its provision, the appellants outstanding application under section 103(2) would have been liable to be struck out or dismissed, without determination of its merits. I do not consider that as a legitimate sanction to attach to any order made for the provision of security in the present circumstances. It would involve overriding or fettering an outstanding application under section 103(2), in a way for which sections 100-104 provide no warrant. It is inconsistent with paragraph 31.9 of the Arbitration Practice Direction, and the concluding words of Mr Justice Steels order, whereby the award was not to be enforced, if the appellants applied (as they did) to set aside his order, until the application was finally disposed of. Paragraph 31.9 of the Arbitration Practice Direction has now become CPR 62.18, set out in para 21 above. In the present case, the Court of Appeals order involves the same error as that identified in the first and third italicised passages. It required security, not as the price of a further adjournment falling within section 103(5), but as the price of the decision of an issue under section 103(3). The Court was lifting the adjournments previously ordered pending the outcome of the Nigerian proceedings, not ordering an adjournment. It had no power under section 103 to make a decision of the properly arguable case raised by NNPC under section 103(3) conditional on NNPC providing further security. The Court of Appeals reasoning at paras 174-177 of its main judgment and para 18 of its supplementary judgment demonstrates the same errors that are evident in its order. Para 18 by focusing on NNPCs (alternative) submission that, if Field Js contingent exercise of his discretion (to refuse enforcement) was wrong, there should be an adjournment under section 103(5) case misses the point. What is critical here is not what submissions were advanced (contingently), but whether there was in the event an adjournment (and, if there was, whether it was effectively at the award debtors instance as well as pending the outcome of the relevant challenge in the overseas court of the country in which, or under the law of which, the award was made). Here, no such adjournment was ordered by the Court of Appeal, which on the contrary decided that the fraud issue should be resolved in the English proceedings. There was therefore no adjournment under section 103(5) onto which to hang, as the price, a requirement of further security. The Court of Appeals further reasons at paras 19-23 in its supplementary judgment do not go to the jurisdiction or power to order security under section 103, though they might have gone to the exercise of any discretion, if (contrary to my conclusion) any such discretion had existed under section 103. The perceived inadequacy by the time of the Court of Appeals order of the security of USD 80m validly ordered as a condition of past adjournments under section 103(5) was no basis for ordering further security when further adjournment was being refused. Mr Michael Black QC suggested that, when the matter came before Field J and the Court of Appeal, there was no outstanding challenge by NNPC under section 103(3). If that were so, it is difficult to understand what either court was doing in considering and deciding, at some length, whether NNPC had shown a good prima facie case of fraud, and, in the case of the Court of Appeal, making an order for its decision by the English courts. Further, NNPC had made a formal challenge by its application dated 18 December 2008; the decision on that challenge was adjourned, pending the outcome of the Nigerian proceedings, by the consent order dated 17 June 2009; and the whole purpose and effect of the Court of Appeals decision that there had been a change of circumstances justifying the reopening of the consent order was to lift the adjournment and to order that the challenge be decided in the English proceedings. For these reasons, the Court of Appeals order for security was not within the scope of any jurisdiction or power conferred by section 103 of the 1996 Act. Mr Black has, however, submitted that the order can be and was justified on grounds not directly considered in Dardana v Yukos, and touched on, if at all, then only very tangentially by the Court of Appeal. At the basis of this submission is the proposition that the New York Convention, and sections 100-104 of the 1996 Act, leave untouched the ordinary procedural powers of the English courts in respect of proceedings before them. I have no difficulty accepting the general correctness of that in relation to the conduct of a challenge to recognition or enforcement being decided under section 103(2) and/or (3): see further para 45 below. But it provides no basis for making the raising for decision of a properly arguable challenge under these sections conditional upon the provision of security for the award. providing: In support of his submission, Mr Black points to article III of the Convention, Each Contracting State shall recognize arbitral awards as binding and enforce them in accordance with the rules of procedure of the territory where the award is relied upon, under the conditions laid down in the following articles. There shall not be imposed substantially more onerous conditions or higher fees or charges on the recognition or enforcement of arbitral awards to which this Convention applies than are imposed on the recognition or enforcement of domestic arbitral awards. Although article III is not itself part of English law, Mr Black submits that we can and should, on familiar principles, view sections 100-104 of the 1996 Act in its light. I also have little difficulty with that as a general proposition, although the possible differences between the meaning of the word conditions used twice in article III have given rise to much discussion. I am prepared for present purposes to proceed on the basis, without deciding, that the second reference to conditions refers in effect to principles or rules of procedure (as Mr Black submits with the weighty support of Professor Albert van den Bergs commentary on The New York Arbitration Convention of 1958 (1981), p 239). Mr Blacks submission is that sections 100-104 only occupy the field of procedural matters to a limited extent. The second paragraph of article VI (which led domestically to the second paragraph of section 103(5)) was, according to the Summary Record of the Seventeenth Meeting of the United Nations Conference on International Commercial Arbitration held on 3 June 1958, inserted to address the risk of abuse of what became article VI by proceedings started in the country where, or under whose law, the award was issued without a valid reason purely to delay or frustrate the enforcement of the award; it may, he submits, have been necessary to regulate this limited procedural aspect at an international level, because individual states might not have their own procedural mechanisms to do so; but it did not follow that states could not attach procedural conditions to challenges made under article V (ie domestically, under section 103(2) and (3)). The submission continues by pointing to the English courts general power to make conditional orders, including orders on its own motion under CPR 3.1(3)(a) and 3.3. In this connection, Mr Black is able to submit that this is in fact what the Court of Appeal must, or must also, have had in mind when it made its order. In para 6 of his supplementary judgment, commenting on the passage from Dardana v Yukos set out in para 27 above, Christopher Clarke LJ said this: It is not wholly clear to us how section 103(5) was thought to provide jurisdiction to the Court to act of its own motion but, in any event, a court which is asked to adjourn, or continue an adjournment of, enforcement is entitled to impose conditions on the exercise of its discretion to do so: CPR 3.1(3)(a); and may do so of its own initiative: CPR 3.3. Section 103(5) cannot be treated as precluding the exercise of that right. Finally, Mr Black argues that the English courts would, contrary to article III, be discriminating procedurally against foreign awards compared with awards in arbitrations where the seat is English, if they could not order security against a party who was merely mounting a challenge under section 103(2) or (3). It is in this connection that he deploys section 70(7) of the 1996 Act. He relies on reasoning of Rix LJ (supported to some extent by that of Moses LJ, but opposed by that of Buxton LJ) in Gater Assets Ltd v NAK Naftogaz Ukrainiy (Gater) [2007] EWCA Civ 988; [2007] 2 Lloyds Rep 588; [2008] Bus LR 388. Rix LJ considered that an award debtor resisting enforcement by destroying the formal validity of the award, either as a matter of substantive jurisdiction or serious irregularity or as a matter of public policy is in substance in a position of a claimant analogous to that of an award debtor under an English award seeking to challenge an award under sections 66 to 69 of the Act, and is liable accordingly to be made subject to an order for security for costs: see paras 77-80 (see also per Moses LJ para 93, and, to the contrary effect, per Buxton LJ paras 101-104). On Mr Blacks case, therefore, if English procedural law does not enable an award creditor under a Nigerian arbitration award to apply and, if the court thinks fit, to obtain security for the award from an award debtor who is challenging enforcement under section 103(2) or (3), then it is imposing on the award creditor substantially more onerous conditions, in the sense of procedural rules, than those applicable to English awards under section 70(7) of the Act. Mr Blacks case on these points fails, in my opinion, at a number of levels. First, the Court of Appeal in Gater was addressing an issue of security for the future costs of a challenge under section 103(3), which raises very different considerations to an issue of security for the past award itself. Even then, although Rix LJ did not make this the ground of decision because it had not been argued, he noted that the Convention might be regarded as a complete code, precluding the making of a decision under section 103(2) or (3) conditional upon the provision of security for costs: para 82. More importantly, in relation to the provision of security for the award itself, he said this, at para 81: Field J, however, was prepared to refuse enforcement, on the ground of failure to provide the security for costs ordered. That was the order that Field J made, setting aside the enforcement order if the security was not provided, and doing so on a ground not expressly within the Convention. There is no express basis in the New York Convention for that condition. Enforcement may be refused only if one of the exceptions within article V is made good. Security is discussed in the Convention, but only security for the award itself and only in the context of an adjournment of enforcement proceedings pending an application to set aside or suspend the award to the competent authority of the country in which, or under the law of which, that award was made: article VI, reproduced in section 103(5) of the 1996 Act. That is not just an example of a circumstance in which such security might be ordered, but is the only circumstance in which it might be: see the decision of this court in Dardana Ltd v Yukos Oil Co [2002] All ER (Comm) 819, para 27. In my opinion, the conditions for recognition and enforcement set out in articles V and VI of the Convention do constitute a code. Just as article V codifies the grounds of challenge (see Dicey, Morris & Collins on The Conflict of Laws, 15th ed (2012), para 16-137), so the combination of articles V and VI must have been intended to establish a common international approach, within the field which they cover. They contemplate that a challenge under article V may only be made conditional upon the provision of security in one situation falling within their scope. Had it been contemplated that the right to have a decision of a properly arguable challenge, on a ground mentioned in article V (domestically, section 103(2) and (3)), might be made conditional upon provision of security in the amount of the award, that could and would have been said. The Convention reflects a balancing of interests, with a prima facie right to enforce being countered by rights of challenge. Apart from the second paragraph of article VI, its provisions were not aimed at improving award creditors prospects of laying hands on assets to satisfy awards. Courts have, as noted in Dardana v Yukos, other means of assisting award creditors, which do not impinge on award debtors rights of challenge, eg disclosure and freezing orders. It is unnecessary in this context to address the issue which divided the Court of Appeal in Gater, whether or how far an award debtor challenging an award should or may be regarded as being in the position of a claimant, rather than a defendant. Suffice it to say that I would leave open the correctness of Rix LJs view (Gater, paras 77-79) that there is no material difference at a domestic level between challenges falling within the scope of section 66 of the Act, read with section 81(1), and challenges falling within sections 67, 68 or 69. The fact that section 70(6) and (7) only apply to the latter, and not to challenges under section 66, highlights this point. If it were appropriate or relevant to have regard to the position regarding an English award, the true domestic analogy with, at any rate, the present fraud challenge under section 103(3) would be a challenge under section 66 read with section 81(1)(c). On that section 70(7) cannot on any view offer any direct assistance to Mr Blacks submission. In fact, however, the challenges permissible under section 103(2) and (3) embrace, but do not distinguish between, matters which could in some cases be raised both under section 66 and under either section 67 or 68 and in other cases only under one of the latter two sections. Domestic analogies are in these circumstances unlikely to illuminate the operation of the internationally-based provisions of sections 100-104. In any event, I do not regard the argument based on article III and section 70(7) as having any force. First, article III may serve as a caution against interpreting or applying English procedural provisions in a sense which discriminates against Convention awards by imposing substantially more onerous rules of procedure. But this is only so long as the conditions laid down in the following articles of the Convention do not otherwise provide. As I have indicated, I consider that articles V and VI constitute a code relating to security for an award when the issue is enforcement or adjournment; and that the code excludes requiring security for an award in the face of a properly arguable challenge under article V, except in so far as article VI provides. Second, even if that were not so, I would have some doubt whether an inability to order security on a challenge to an overseas award could constitute a substantially more onerous rule of procedure in relation to recognition or enforcement than a rule allowing such security in the case of an English award. Third, be that as it may, the fact is that the 1996 Act contains in relation to Convention awards no equivalent to section 70(7) in relation to English awards. Whatever article III might require in that respect (if anything), it is not found in the 1996 Act, and no amount of consistent interpretation can alter the Act in that respect. Fourth, there is first instance authority, which in my opinion accurately reflects what would be expected as a matter of principle in relation to the provision of security for the amount of an award in issue, that the power under section 70(7) will only be exercised if the challenge appears flimsy or otherwise lacks substance: A v B (Arbitration: Security) [2010] EWHC 3302 (Comm); [2011] 1 Lloyds Rep 363; [2011] Bus LR 1020, para 32 per Flaux J; Y v S [2015] EWHC 612 (Comm); [2015] 1 Lloyds Rep 703, para 33 per Eder J. That cannot by any stretch be said of NNPCs fraud challenge in the light of the evidential material set out in the Court of Appeals judgment. Finally, I turn to CPR 3.1(3). In my opinion, this takes IPCO nowhere. It is a power, expressed in general terms, to impose conditions on orders. It cannot authorise the imposition, on a person exercising its right to raise a properly arguable challenge to recognition or enforcement, of a condition requiring security for all or any part of the amount of the award in issue. Its obvious subject matter is the imposition of a condition as the price of relief sought as a matter of discretion or concession, not the imposition of a fetter on a person exercising an entirely properly arguable right. The Court of Appeal was right to underline in Huscroft v P & O Ferries Ltd (Practice Note) [2010] EWCA Civ 1483; [2011] 1 WLR 939, paras 18- 19 that rule 3.1(3) does not give the court a general power to impose conditions on one or other party whenever it happens to be making an order, and that its purpose is to enable the court to grant relief on terms and that the court should focus attention on whether the condition (and any supporting sanction) is a proper price for the party to pay for the relief being granted, satisfying itself also that the condition it has in mind represents a proportionate and effective means of achieving that purpose. CPR 3.1(3) may be relevant where the court only permits the pursuit on terms of a claim or defence which in some respect is problematic: see Deutsche Bank AG v Unitech Global Ltd [2016] EWCA Civ 119, paras 72-81 (to which the appellants solicitors very properly drew the Supreme Courts attention after the handing down in draft of this judgment). But it is entirely clear that CPR 3.1(3) has no relevance on this appeal. That is not to say that CPR 3.1(3) or the courts other general procedural powers may never become relevant in the context of an issue being decided under section 103(2) or (3). I have noted that the courts power to make disclosure and freezing orders is one means by which an award may indirectly be secured, without impinging on a defendants right to raise challenges under section 103. The court may in the course of such a challenge make all sorts of other procedural orders, and back them where necessary with sanctions. But none of this has anything to do with this appeal. NNPC here had not misconducted themselves or given any sort of cause for the exercise of any procedural discretion to make an order against them or to condition it in any way. Some of the factors to which the Court of Appeal alluded in paras 19 to 23 of its supplementary judgment might have had some possible relevance had NNPC in some way defaulted in the pursuit of a challenge under section 103. As it is, paras 19-21 amount to no more than concern that the award might be difficult to enforce in practice, while para 23 links this to a perception that the previously ordered security now appears insufficient. These were not admissible bases for attaching a condition to the future exercise in this jurisdiction of a right of challenge under section 103(3). The wish in para 22 to provide a goad to progress was also an inadmissible basis for securing the award, particularly in the absence of any finding of any relevant prior default by NNPC from which it needed relief, and is (one might add, if it had had any potential relevance) difficult to understand as a matter of fact in circumstances where the fraud issue will from now be case- managed by the Commercial Court. I should not finish without addressing a point made by NNPC in a footnote - doubtless to avoid too obvious a hostage to fortune on the main issue - on the last page of its written case. The footnote records that NNPC also considers that it follows that NNPC can allow the guarantees given previously (in a total sum of US$ 80m) to lapse without affecting its right to have its defence under section 103(3) of the 1996 Act determined prior to IPCO being permitted to enforce the Award. I do not accept that. The security of USD 80m was the agreed price of adjournments in 2005 and 2008-2009 which have lasted in total nearly 12 years. NNPC undertook by the consent order dated 17 June 2009 to maintain the guarantees until further order of the Court. That the adjournment will now lapse is no reason for the Court to permit the existing security to lapse, still less for any argument that NNPC is entitled to allow it to lapse. The guarantees should continue in place until further order, pursuant to NNPCs undertaking. For the reasons I have given, the appeal must in my opinion be allowed, the Court of Appeals order attaching conditions (in particular, the requirement to provide further security of USD 100m) in relation to the challenges raised by NNPC must be set aside and NNPCs fraud and non-fraud challenges must be remitted to the Commercial Court for decision free of any such further conditions. The parties will have 21 days to make submissions as to the precise form of order and as to costs. For the reasons I have given, the appeal must in my opinion be allowed, the Court of Appeals order attaching conditions (in particular, the requirement to provide further security of USD 100m) in relation to the challenges raised by NNPC must be set aside and NNPCs fraud and non-fraud challenges must be remitted to the Commercial Court for decision free of any such further conditions. The parties will have 21 days to make submissions as to the precise form of order and as to costs.

This appeal concerns the enforcement in England of a Nigerian arbitration award dated 28 October 2004 for USD 152,195,971 plus 5m Nigerian Naira in respect of a contract by which IPCO (Nigeria) Limited (IPCO) undertook to design and construct a petroleum export terminal for Nigerian National Petroleum Corporation (NNPC). The award is subject to still outstanding challenges by NNPC in Nigeria, initially for what have been called non fraud reasons and, from 27 March 2009, for alleged fraud in relation to IPCOs presentation of its claim. The issue before the Court is whether the appellant, NNPC, should have to put up a further USD 100m security in the English enforcement proceedings. An ex parte order for enforcement made by Steel J on 29 November 2004 led to an application by NNPC to set aside under ss.103(2)(f) and 103(3) or, alternatively, for enforcement to be adjourned under s.103(5), of the Arbitration Act 1996 (the 1996 Act). On 27 April 2005, Gross J ordered that enforcement be adjourned pending resolution in Nigeria of the non fraud challenges, conditional on NNPC (i) paying IPCO USD 13.1m and (ii) putting up security of USD 50m under s.103(5). Following a further application for enforcement based on the delay in the Nigerian proceedings, and further orders including one under which a further USD 30m was provided by way of security, NNPC applied in Nigeria to raise the fraud challenge. A consent order dated 17 June 2009 was then made in the English proceedings whereby the decision on enforcement was further adjourned under s.103(5), upon NNPC undertaking to maintain the security of USD 80m thus far provided until further order. On 24 July 2012, IPCO renewed its application to enforce on the ground of the further delay in the Nigerian proceedings. This application was dismissed by Field J but allowed on appeal by the Court of Appeal, which decided to cut the Gordian knot caused by the sclerotic process of the Nigerian proceedings. The Court of Appeal ordered that (i) the proceedings be remitted to the Commercial Court for it to determine pursuant to s.103(3) whether the award should be enforced in light of the alleged fraud and (ii) any further enforcement of the award be adjourned in the meanwhile under s.103(5), such order being made conditional on NNPC providing a further USD 100m security (in addition to the USD 80m already provided). NNPC appeals against the order for security on the basis that it was made without jurisdiction or wrong in principle and/or was illegitimate in circumstances where both Field J and the Court of Appeal had concluded that NNPC had a good prima facie case of fraud entitling it to resist enforcement of the whole award. The Supreme Court unanimously allows NNPCs appeal. Lord Mance gives the lead judgment, with which all the Justices agree. Section 103(5) of the 1996 Act The Court of Appeals order was not justified by reference to s.103(5). Nothing in s.103(2) or (3) (or in the underlying provisions of article V of the New York Convention) provides a power to make an enforcing courts decision on an issue raised under these provisions conditional on an award debtor providing security in respect of the award. This is in marked contrast to s.103(5), which specifically provides that security may be ordered where there is an adjournment within its terms [24]. The Court also erred in treating its order that the English Commercial Court should decide the fraud issue as involving an adjournment of the decision on that issue within the terms of s.103(5). Section 103(5) concerns the situation where an enforcing court adjourns its decision on enforcement under s.103(2) or (3) while an application for setting aside or suspension of the award is pending before the court of the country in, or under the law of which, the award was made. It does not extend to delays in the decision making process occurring while a decision of an issue under s.103(2) or (3) is made [25 26]. Further, s.103(5) contemplates an order for security being made on the application of the party claiming recognition or enforcement of the award. The reasoning in Dardana v Yukos [2002] confirms that security pending the outcome of foreign proceedings is, in effect, the price of an adjournment which an award debtor is seeking; it is not to be imposed on an award debtor who is resisting adjournment on properly arguable grounds [27 29]. In the present case, there was no adjournment under s.103(5) onto which to hang, as the price, a requirement of further security [30 32]. The Court of Appeals further reasons for imposing the security, including as an incentive to securing finality in the context of lengthy delays, do not go to the jurisdiction or power to order security under s.103 [32]. General English procedural rules The requirement to provide security could not be justified by reference to general English procedural rules. Reliance was placed on CPR 3.1(3) and, indirectly, s.70(7) of the 1996 Act [16 21]. However, the conditions for recognition and enforcement set out in articles V and VI of the New York Convention (to which s.103(2), (3) and (5) give effect) constitute a complete code intended to establish a common international approach. Had it been contemplated that the right to have a decision of a properly arguable challenge, on a ground mentioned in article V (i.e. s.103(2) and (3)), might also be made conditional on provision of security in the amount of the award, that could and would have been said. The Convention reflects a balancing of interests. Its provisions were not aimed at improving award creditors prospects of laying hands on assets to satisfy awards. Courts have other means of assisting award creditors which do not impinge on award debtors rights of challenge, such as disclosure and freezing orders [41]. Section 70(7) provides that the court may order that any money payable under the award shall be brought into court or otherwise secured pending the determination of the application or appeal. It only applies, however, to arbitrations that (unlike the present) have their seat in England, Wales or Northern Ireland. The 1996 Act contains no equivalent in relation to Convention awards. Further, the power will only be exercised if the challenge appears flimsy or otherwise lacks substance, which cannot be said of NNPCs fraud challenge [43]. Finally, CPR 3.1(3) has no relevance on this appeal. It is a power, expressed in general terms, to impose conditions on orders. Its focus is the imposition of a condition as the price of relief sought as a matter of discretion or concession, and not the imposition of a fetter on a person exercising its right to raise a properly arguable challenge to recognition or enforcement [44].

8k-16k

Supplies of education to students in the United Kingdom are exempt from value added tax (VAT) if they are made by a college of a university within the meaning of Note 1(b) to Item 1, Group 6 of the Value Added Tax Act 1994 (the VAT Act). This appeal concerns the criteria to be applied in determining whether an undertaking is such a college. In these proceedings the appellant (SEL) contends that its supplies of education to students in the United Kingdom were and are exempt from VAT because it was and remains a college of Middlesex University (MU). For this reason, it appealed against assessments raised by the Commissioners for Her Majestys Revenue and Customs (the Commissioners) in respect of its accounting periods 1 May 2009 to 29 February 2012. It has also appealed against subsequent assessments, but these have been stayed by agreement with the Commissioners pending the outcome of this appeal. SELs appeal was allowed by the First tier Tribunal (the FTT, Judge John Clark and Dr Michael James MBE) by its decision dated 28 February 2014: TC/2011/022521. The Commissioners appealed that decision to the Upper Tribunal (the UT, Judge Colin Bishopp and Judge Guy Brannan) which allowed the appeal by its decision dated 25 April 2016: [2016] UKUT 193 (TCC); [2016] STC 1837. SEL then appealed to the Court of Appeal. The appeal was heard over three days in June 2017. The Court of Appeal dismissed the appeal by its decision dated 28 July 2017 (Patten, Black and Sales LJJ): [2017] EWCA Civ 1116; [2017] STC 2166. SEL now appeals to this court. In broad terms the appeal gives rise to the following questions: first, whether the Court of Appeal adopted the correct approach in determining whether SEL was a college of MU for the purposes of Note 1(b) to Item 1, Group 6 of the VAT Act; and secondly, if it did not, whether, upon application of the correct test, SEL was such a college. The relevant facts SEL is an English company and a subsidiary of SAE Technology Group BV, a Dutch company. Both are part of the SAE group of companies which trades around the world under the name SAE Institute (SAEI). SAE is an acronym for School of Audio Engineering and SAEI has for many years provided education in audio and digital media technologies, and as a result has gained a significant reputation in that field. SAEI has conducted business in the United Kingdom since 1985, first through SAE Educational Trust Ltd (SETL) and, since 1 May 2009, through SEL. From that date SEL has taught in the United Kingdom the higher education courses to which I shall come in a moment. MU is a United Kingdom university within the meaning of the VAT Act, Group 6, Item 1, Note 1(b). It has never had any financial interest in any SAE group company, and no MU employee has ever been a director of any such company. Similarly, no SAE group company has had a representative on MUs governing body or has played any direct part in its governance. Nevertheless, the relationship between MU and SAEI has been very close and is a reflection of a series of agreements addressing the nature of that relationship, the validation by MU of SAEI programmes of education and the accreditation of SAE group companies. As early as 1998 SAEI and MU agreed a memorandum of cooperation which provided for the teaching by SAE Technology College of Bachelor of Arts (BA) degree courses in Recording and Multimedia Arts at specified campuses. These courses were described as validated collaborative programmes of MU. Overall responsibility for the courses was retained by MU but their day to day direction was undertaken by employees of an SAEI group company. Over the years that followed this memorandum was superseded by other memoranda of cooperation and the validation of BA degree courses in Multimedia, Interactive Animation and Games Programming. In 2009 another memorandum of cooperation was agreed which consolidated into a single framework the programmes which had by that time been validated by earlier memoranda. It set out the terms on which MU agreed to validate specified courses and how entry requirements were to be set and satisfied. In short, admission requirements would be set by SAEI but conform to MUs general requirements; students who met those requirements would be selected by SAEI using procedures agreed by MU; selected students would be enrolled by SAEI for one of MUs qualifications; enrolled students would be considered members of MU and taught by SAEI subject to MUs quality safeguards; and in due course those enrolled students would be assessed by SAEI subject to MUs regulations and, if they completed their programmes of study successfully, would be awarded a degree by MU. From time to time SAEI and MU also entered into what have been termed partnership agreements which made more general provision relating to the relationship between them. The first such agreement, entered into in 2003, recorded the intention of the parties to work together to develop undergraduate and taught graduate degree courses at SAEI centres in the United Kingdom and around the world. It was intended at that time that within five years MU would consider an application from SAEI for MU accreditation which would allow SAEI to validate for itself courses leading to the award of undergraduate degrees by MU. In 2009 SAEI and MU entered into another partnership agreement which recorded that within 12 months MU would consider an application from SAEI for such accreditation. To this end, it was agreed that senior executives of MU and SAEI would meet three times a year to develop their collaboration on undergraduate and postgraduate courses of study. In September 2010 SAEI was accredited by MU to validate, provide, monitor and review courses of study leading to MU BA degrees in Recording Arts, Film Making, Digital Film Animation and Multimedia articles The instrument of accreditation permitted SAEI to conduct MU graduation ceremonies but graduating students could also attend a graduation ceremony at MU if they so wished. A memorandum of cooperation confirmed the independent status of SAEI and allowed it to retain its own governing council and academic board and responsibility for its own financial management. In July 2011 MU and SAEI entered into what was described as a Special Associate College Agreement (SACA). This recorded their successful cooperation over 14 years in the provision of courses of education, including courses leading to MU undergraduate and graduate awards. It provided, by clause 2: As a further extension of that special relationship in the context of higher education in the United Kingdom, the University and SAE Education, UK (hereinafter referred to as SAE UK) have agreed a long term partnership, which is detailed below. This builds upon the existing status of SAE UK as a Middlesex University Associate College. The legal framework The origin of the common system for the collection of VAT in the European Union lies in the First Council Directive 67/227/EC of 11 April 1967 on the harmonisation of legislation of member states concerning turnover taxes (the First Directive). This recognised the interest of the common market in achieving a harmonisation of legislation concerning turnover taxes so as to eliminate, so far as possible, factors which might distort competition, and it provided, in article 2, that the principle of the common system involved the application to goods and services of a general tax on consumption which was proportional to their price. The Second Council Directive 67/228/EEC, also of 11 April 1967, on the harmonisation of legislation concerning turnover taxes and procedures for application of the common system of VAT (the Second Directive) made further provision for harmonisation and recorded in its fifth recital that the introduction of zero rates of tax gave rise to difficulties and it was highly desirable to limit strictly the number of exemptions. However, article 10 of the Second Directive exempted from VAT in any member state the supply of goods to places outside the territory of that state and the provision of services relating to such goods or goods in transit, and, of particular relevance to this appeal, also provided that, subject to consultation, any member state could determine the other exemptions it considered necessary. The First and Second Directives were followed by the Sixth Council Directive 77/388/EEC of 17 May 1977 on the harmonization of the laws of member states relating to turnover taxes (the Sixth Directive). This recited the need for a common system of exemptions and, in Title X, article 13, part A, made express provision for the exemption of certain activities in the public interest, including the supply of services related to education. Article 13A(1) provided, so far as material: A. Exemptions for certain activities in the public interest 1. Without prejudice to other Community provisions, member states shall exempt the following under conditions which they shall lay down for the purpose of ensuring the correct and straightforward application of such exemptions and of preventing any possible evasion, avoidance or abuse: (i) childrens or young peoples education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, provided by bodies governed by public law having such as their aim or by other organizations defined by the member state concerned as having similar objects. Article 13A(2) contained examples of the conditions member states might impose when recognising other organisations having similar objects to those of public bodies. It provided, so far as material: 2(a) Member states may make the granting to bodies other than those governed by public law of each exemption provided for in (1) (i) of this article subject in each individual case to one or more of the following conditions: they shall not systematically aim to make a profit, but any profits nevertheless arising shall not be distributed, but shall be assigned to the continuance or improvement of the services supplied, exemption of the services concerned shall not be likely to create distortions of competition such as to place at a disadvantage commercial enterprises liable to value added tax. In due course the Sixth Directive was itself recast by Council Directive 2006/112/EC of 28 November 2006 on the common system of value added tax (the Principal VAT Directive). Recital (4) of the Principal VAT Directive reiterates the objective of the legislative scheme as being to harmonise legislation on turnover taxes and eliminate, so far as possible, factors which may distort competition. It reads: The attainment of the objective of establishing an internal market presupposes the application in member states of legislation on turnover taxes that does not distort conditions of competition or hinder the free movement of goods and services. It is therefore necessary to achieve such harmonisation of legislation on turnover taxes by means of a system of value added tax (VAT), such as will eliminate, as far as possible, factors which may distort conditions of competition, whether at national or Community level. Title IX sets out various exemptions, including the exemption concerning the provision of university education first introduced in the Sixth Directive in the manner I have described. Article 131 of Chapter 1 of Title IX provides: The exemptions provided for in Chapters 2 to 9 shall apply without prejudice to other Community provisions and in accordance with conditions which the member states shall lay down for the purposes of ensuring the correct and straightforward application of those exemptions and of preventing any possible evasion, avoidance or abuse. Chapter 2 of Title IX contains Exemptions for certain activities in the public interest. Article 132(1)(i) of this Chapter says that member states shall exempt: the provision of childrens or young peoples education, school or university education, vocational training or retraining, including the supply of services and of goods closely related thereto, by bodies governed by public law having such as their aim or by other organisations recognised by the member state concerned as having similar objects. Article 133 contains examples of the conditions member states may impose when recognising other organisations having similar objects to those of public bodies. It echoes article 13(2) of the Sixth Directive and reads, so far as relevant: Member states may make the granting to bodies other than those governed by public law of each exemption provided for in points (i) of article 132(1) subject in each individual case to one or more of the following conditions: (a) the bodies in question must not systematically aim to make a profit, and any surpluses nevertheless arising must not be distributed, but must be assigned to the continuance or improvement of the services supplied; (d) the exemptions must not be likely to cause distortion of competition to the disadvantage of commercial enterprises subject to VAT. These provisions of the Principal VAT Directive and the general scheme of which they form a part were considered by the Court of Justice of the European Union (the CJEU) in Minister Finansw v MDDP sp z oo Akademia Biznesu, sp komandytowa, (Case C 319/12) [2014] STC 699. MDDP, a Polish undertaking, carried on the business of organising for profit specialised training courses and applied to the Polish Minister for Finance for confirmation that it was entitled to deduct input VAT levied on the goods and services it needed for its business. The Minister refused to provide that confirmation and so MDDP issued proceedings in which it claimed that its activities should not be exempt from VAT but subject to it, and that Polish law, which provided that such activities were exempt, was incompatible with the Principal VAT Directive. A reference by the Polish court to the CJEU asked, in substance, whether articles 132(1), and 133 of the Principal VAT Directive must be interpreted as meaning that educational services provided for commercial purposes not governed by public law were precluded from exemption from VAT. In addressing that question, the CJEU explained (at paras 33 to 36) that articles 132(1)(i) and 133 do not preclude educational services provided for commercial purposes by bodies not governed by public law from being exempt from VAT; however, under article 132(1)(i), supplies of educational services are exempt only if they are provided by bodies governed by public law or by other organisations recognised by the member state concerned as having similar objects. It followed that the exemption in issue, which applied generally to all supplies of educational services, whatever the aim pursued by the private organisations providing those services, was incompatible with article 132(1)(i). The CJEU continued (at paras 37 to 38) that, in so far as article 132(1)(i) does not specify the conditions or procedures for defining those similar objects, it is for the national law of each member state to lay down rules, and that member states have a discretion in that respect; and it is for the national courts to examine whether member states, in imposing such conditions, have observed the limits of their discretion in applying the principles of EU law, in particular the principle of equal treatment, which, in the field of VAT, takes the form of the principle of fiscal neutrality. The answer to the referred question necessarily followed, as the CJEU explained at para 39: point (i) of article 132(1), article 133 and article 134, of the VAT Directive must be interpreted as meaning that they do not preclude educational services provided for commercial purposes by bodies not governed by public law from being exempt from VAT. However, point (i) of article 132(1) of that directive precludes a general exemption of all supplies of educational services, without consideration of the objects pursued by non public organisations providing those services. VAT was introduced to the United Kingdom by the Finance Act 1972 (the FA 1972) which implemented the First and Second Council Directives. Parliament chose to exercise the wide discretion then conferred upon member states by exempting the various supplies set out in Schedule 5. These included as Group 6, Item 1: The provision of education if it is provided by a school or university; or it is of a kind provided by a school or university (a) (b) and is provided otherwise than for profit. Note (3) defined university as including a university college and the college, school or hall of a university. The United Kingdom has given effect to the Principal VAT Directive (and before it, the Sixth Directive) in the VAT Act. Exempt supplies are set out in Schedule 9. Items 1 and 4 of Group 6 of Schedule 9 read, so far as material: 1. The provision by an eligible body of (a) education; 4. The supply of any goods or services (other than examination services) which are closely related to a supply of a description falling within item 1 (the principal supply) by or to the eligible body making the principal supply provided (a) the goods or services are for the direct use of the pupil, student or trainee (as the case may be) receiving the principal supply; and (b) where the supply is to the eligible body making the principal supply, it is made by another eligible body. Note (1) then explains that: (1) For the purposes of this Group an eligible body is (b) a United Kingdom university, and any college, institution, school or hall of such a university; (e) a body which is precluded from distributing and does (i) not distribute any profit it makes; and (ii) applies any profits made from supplies of a description with this Group to the continuance or improvement of such supplies; It can be seen that Parliament has not expressly limited the bodies it has recognised in Note 1(b) to those which do not make a profit. It will also be noted that the phrase any college, institution, school or hall of such a university in Note (1)(b) is similar to the phrase college, school or hall of a university in Schedule 5, Group 6, Item 1, Note (3) of the FA 1972, and this is a matter to which I must return. Domestic authorities The provisions of the VAT Act to which I have referred have been considered in a number of decisions of the courts in this jurisdiction. For the purposes of this appeal, I must refer to three of them for they form an important part of the background to the decisions of the FTT, the UT and the Court of Appeal in this case. The first is that of Burton J in Customs and Excise Comrs v School of Finance and Management (London) Ltd [2001] STC 1690. The School of Finance and Management London (SFM) delivered a number of courses of study for the University of Lincolnshire and Humberside and claimed to be exempt from VAT as a college of a university under Note (1)(b) to Group 6 of Schedule 9 to the VAT Act. The tribunal found that SFMs fundamental purpose was to provide education services leading to the award of a university degree and that it was fairly to be regarded as a college of the university. On appeal, the Commissioners contended first, that, having regard to the provisions of the Sixth Directive set out above, Note (1)(b) only encompassed bodies governed by public law having education as their aim; secondly, that SFM was not a college; and thirdly, if SFM was a college, it was not a college of a United Kingdom university. The judge rejected all three contentions and dismissed the appeal. So far as the third was concerned, the parties put forward a non exhaustive list of 15 relevant factors termed the SFM factors which fell to be considered. For their part, the Commissioners relied on eight factors, the first four of which were said to be determinative: (i) the presence of a foundation document establishing the college as part of the university by way of a constitutional link; (ii) an absence of independence on the part of the college; (iii) the financial dependence of the college on the university or the financial interdependence of each on the other; (iv) the absence of distributable profit; (v) an entitlement to public funding; (vi) the presence of permanent links between the college and the university; (vii) the physical proximity of the college to the university; and (viii) an obligation on the college to offer a minimum number of university places. SFM accepted that all of these factors were arguably relevant but argued that none was determinative. It contended that of more relevance were seven further factors: (ix) the possession by the college of a similar purpose to that of the university; (x) the provision by the college of courses leading to a degree from the university; (xi) the supervision by the university of the colleges courses and the regulation by the university of the quality standards of those courses; (xii) the admission of students of the college as members of the university with university identity cards; (xiii) the submission of students of the college to disciplinary regulations and requirements of the university; (xiv) the entitlement of successful students of the college to receive a degree from the university at a university degree ceremony; and (xv) the description of the college as an associate/affiliated college of the university. The Commissioners accepted these were relevant (subject to their submissions as to the determinative nature of the first four of their own features). Shortly after Burton J handed down his judgment, the Court of Appeal gave judgment in Customs and Excise Comrs v University of Leicester Students Union [2001] EWCA Civ 1972; [2002] STC 147. Here the issue was whether supplies of drinks by the students union of Leicester University were exempt from VAT. The Commissioners took the view that they were not. By an interim decision on a preliminary issue, the Manchester VAT tribunal held that the union was an integral part of the university and so an eligible body, and it was entitled to an exemption in respect of any supplies which were closely related to the supply of education within the meaning of Item 4 of Group 6 of Schedule 9. On appeal, the judge considered that the real question was whether the union was an integral part of the university such that it could properly be said that the soft drinks sold in the union were sold by the university. He held it could not, and that, in consequence, the tribunal ought to have held that the soft drinks were not supplied by the eligible body making the principal supply of education within the meaning of Item 4. On further appeal to the Court of Appeal, the substantial argument was, as before the judge, whether the union was an integral part of the university and as such an eligible body. The Court of Appeal found it was not. It was not encompassed by the phrase a United Kingdom university for it was an entity distinct from the university. Further, it was not an institution of such a university within the meaning of Note 1(b) because it supplied no education. Peter Gibson LJ, with whom Morland J agreed, explained at para 36: 36. Note 1(b) on its face refers to five entities, a United Kingdom University, and four entities of such a University. The conjunction connecting a United Kingdom University with the four other entities is the word and, not including. Further, the four other entities are alternative to each other as can be seen by the conjunction or between school and hall. On the ordinary and natural meaning of the words used in note 1(b) I would construe them as covering both a university itself and, in those cases where there are separate entities which are nevertheless parts of that university, any of those separate entities. Furthermore, the common characteristic of all those four entities in my opinion is that they are suppliers of education. Arden LJ considered that the students union did promote an object of utility within the university community and was potentially an institution of the university. But the question for her was whether the term institution had a narrower meaning in the context of Note (1)(b). She answered that question in two steps, the first of which was to consider the meaning of the expression of such a university: 55. Note 1(b) uses the expression the university and of the university. In the latter expression the word of cannot mean belong to or form part of since the former is not the case with regard to Oxbridge colleges (which are presumably intended to be covered) and the latter is included within the expression the university. In other words, the expression of the university seems to me to denote a state of affairs whereby the university is in some sense an umbrella organisation which provides education and related services in conjunction with other bodies or wherein the body in question has some form of status under the University statutes, for example to present candidates for matriculation. The second was to consider the meaning of the word institution in this context. Here she did not agree that a college, institution, school or hall of a university had itself to be a supplier of education. For her the key question was whether the body in question had academic links with the university and so recognition from the university, and this the union did not have. The third decision is that of the Court of Appeal in Finance and Business Training Ltd v Revenue and Customs Comrs [2016] EWCA Civ 7; [2016] STC 2190. Here the question was whether the taxpayer, FBT, a profit making enterprise, was exempt from VAT in respect of the supply of courses leading to the grant of degrees by the University of Wales. The FTT decided it was not. Although it supplied a university education, FBT also had to show that it was an integrated part of the university, and that it had failed to do. In reaching this conclusion, the FTT applied the SFM factors and attached particular weight to the nature of the relationship between FBT and the university, which it found to be short term, commercial and held out as being one of partnership. An appeal to the UT was dismissed. On further appeal to the Court of Appeal, it was argued by FBT, among other things, that Parliament had failed to set conditions for the education exemption in accordance with EU law and, in particular, the principles of legal certainty and fiscal neutrality. Arden LJ (with whom Gloster and Sharp LJJ agreed), rejected that submission. She explained that it was up to each member state to set the conditions under which bodies not governed by public law would be entitled to the education exemption, and how it did so was a matter for national law. It was therefore open to Parliament to decide which non public bodies would qualify, and it had done so in Note (1)(b). However, Parliament was constrained by article 132(1)(i) as to which bodies it could include. She continued, at paras 55 to 57: 55. In those circumstances, it has taken the view that the body must be one which provides education in like manner to a body governed by public law, that is, there must be a public interest element in its work. It has decided to draw the line, in the case of universities to those colleges, halls and schools which are integrated into universities and which are therefore imbued with its objects. 56. For FBT to show that its exclusion from this group is a breach of the fiscal neutrality principle would require it to say that it belongs to the same class as those institutions which meet the integration test in Note (1)(b). Neither of the tribunals made any findings that would support that conclusion and this court is hearing an appeal only on a point of law. 57. FBT contends that Parliament has not met the requirements of the EU law principle of legal certainty by setting out criteria which are to apply to determine when non public bodies seek to enjoy the education exemption. The criteria have to be neutral, abstract and defined in advance. In my judgment, this is achieved by the combination of note (1)(b) and the SFM factors. These factors are neutral, they are abstract and defined in advance. By applying them, it is possible to know what supplies and which suppliers qualify for exemption. The decisions below (a) The First tier Tribunal The FTT carried out a multi factorial assessment in order to determine whether SEL was sufficiently integrated with MU to justify the conclusion that it was a college of the university and for that purpose considered each of the 15 SFM factors. In carrying out that exercise, it conducted an extensive analysis of the evidence. Having done so, it was satisfied that SEL, as the United Kingdom arm of SAEI, had since May 2009 been an Associate College of MU, and a college of MU within the meaning of Note 1(b). It set out the factors which it considered carried the greatest weight at para 293: (1) Status of Associated College, combined from September 2010 with status of Accredited Institution. (2) Long term links between SAE Institute and MU. Similar purposes to those of a university, namely the provision of higher education of a university standard. (3) Courses leading to a degree from MU, such courses being supervised by MU, which regulated their quality standards. (4) Conferment of degrees by MU, received by SAE students at MU degree ceremonies. (b) The Upper Tribunal On further appeal by the Commissioners, the UT adopted an approach which differed in some respects from that of the FTT. It explained that it is necessary to adopt a multi step evaluation of the relationship between the undertaking and the university. It must first be determined whether they had a common understanding of their relationship. If they did, the next question is whether they had a common understanding that the undertaking was a college of the university. If the answer to that question is also in the affirmative, it must be considered whether the relationship was sufficiently close to justify the conclusion that the undertaking was indeed a college of the university within the meaning of Note 1(b), and it is here that the SFM factors are relevant. If the relationship was sufficiently close, the final step is to consider whether the undertaking supplied university level education. It was the UTs view that the FTT failed properly to take the first and second steps, and had it done so it would have found that they should be answered in the negative. It therefore allowed the Commissioners appeal. (c) The Court of Appeal The approach of the Court of Appeal differed from those of both the FTT and the UT. Patten LJ (with whom Black and Sales LJJ agreed) explained that the test of whether an undertaking is part of a university is considerably more hard edged than earlier decisions had suggested. It is necessary for the relevant undertaking to show that it is a part of the university in the sense of being a constituent part with all the rights and privileges for its students which that entails. Inherent in this test is the need to demonstrate some legal relationship which establishes and confirms the status of the undertaking. It matters not whether this relationship is embodied in a formal foundation or constitutional document or whether it is based upon some other binding agreement. But it has to be one which in a real sense makes the undertaking a constituent part of the university. It had not been established that SEL was a part of MU in a constitutional or structural sense and so the appeal fell to be dismissed. Note 1(b) the correct approach The starting point for a consideration of the proper interpretation of Note 1(b) to Schedule 9, Group 6, Item 1 of the VAT Act must be articles 131 to 133 of the Principal VAT Directive. These make clear that member states must exempt transactions involving the provision of, among other things, university education by bodies governed by public law having such education as their aim. Member states must also exempt transactions by other organisations which they have recognised as having similar objects to those governed by public law and which also have education as their aim. In accordance with well established principles, the terms used in articles 131 to 133 to specify exemptions from VAT must be construed strictly. Nevertheless, they must also be construed in a manner which is consistent with the objectives which underpin them and not in such a way as to deprive them of their intended effects. The general objective of the exemptions in articles 133 to 135 is, I think, readily apparent and, so far as university education is concerned, it is to ensure that access to the higher educational services this necessarily involves is not hindered by the increased costs that would result if those services were subject to VAT. This was explained by the CJEU in Commission of the European Communities v Federal Republic of Germany (Case C 287/00) [2002] ECR I 5811; [2002] STC 982, a decision which concerned article 13A(1)(i) of the Sixth Directive, which, as we have seen, is an exemption drawn in very similar terms to those of article 132(1)(i) of the Principal VAT Directive. The court said this about the purpose of the Article in considering the concept of services which are closely related to university education, and whether research activities fell within its scope: 47. Nevertheless, that concept does not require an especially strict interpretation since the exemption of the supply of services closely related to university education is designed to ensure that access to the benefits of such education is not hindered by the increased costs of providing it that would follow if it, or the supply of services and of goods closely related to it, were subject to VAT (see, by analogy, in relation to article 13(A)(1)(b) of the Sixth Directive, Commission v France (Case C 76/99) [2001] ECR I 249, para 23). However, if the undertaking by State universities of research projects for consideration is made subject to VAT, that does not have the effect of increasing the cost of university education. That does not mean that all organisations which provide educational services may be granted a tax exemption by member states, however. The services must be provided by organisations governed by public law or by other organisations recognised by the member state in issue as having similar objects. It is essentially for this combination of reasons that the CJEU held in MDDP that articles 132(1) and 133 of the Principal VAT Directive do not preclude the inclusion of educational services provided by private organisations for commercial purposes in the tax exemption but do preclude a general exemption of all supplies of educational services without consideration of the objects pursued by the private organisations which are providing them. In implementing articles 132 and 133 of the Principal VAT Directive, the United Kingdom and other member states therefore had a discretion in deciding which bodies, other than those governed by public law, they would recognise as providing educational services, including university education. But that discretion was limited in the manner I have described, and whilst it was open to member states to exempt educational services provided by private bodies for commercial purposes, they could not do so without consideration of the objects those bodies pursued. It was also limited in other important respects for, in implementing the Directive, member states were required to respect the general principles of law that form part of the order of the European Union, including the principles of fiscal neutrality, legal certainty and proportionality. As I have explained, Parliament has chosen to exercise the discretion conferred upon it by exempting from VAT, so far as relevant, the provision of education by a United Kingdom university and any college of such a university. The term university is not defined in the VAT Act. However, the conditions under which a body in the United Kingdom is entitled to use the word university in its title are regulated by statute. Over 100 bodies are presently entitled to call themselves a university and they vary greatly in character. A small but nonetheless significant number of them are private and run for profit. Some, such as the University of London, are collegiate federal universities in which, for many purposes, the constituent colleges operate on an independent basis. Others, such as the University of Oxford and the University of Cambridge, comprise a kind of federal system of colleges, schools and faculties, in which the colleges are generally financially independent and self governing. These are just examples. Other universities also comprise or have close relationships with colleges, including the University of the Arts London, the University of the Highlands and Islands and Queens University of Belfast. The connection between each of these universities and its respective colleges has its own particular character and is a reflection of the history of the institutions involved. It is against the background of the range of possible arrangements between universities and their colleges that the meaning of the phrase college of such a university in Note (1)(b) falls to be determined. In my judgment the following points are material. First, for its activities to fall within the scope of Item 1(a), any college of a university, as an eligible body, must provide education. Secondly and as we have seen, the supply of educational services is exempt only if it is provided by bodies governed by public law or by other bodies recognised by the member state as having similar objects. Parliament has exercised the discretion conferred upon it by recognising for this purpose the provision of education by universities, and it has done so regardless of whether those universities are charities or are private and run for profit. If, as I believe, the phrase a United Kingdom university in Note 1(b) therefore extends to private universities which are run for profit then in my opinion the same must apply to the expression any college of such a university. There can be no justification for treating the scope of the two expressions differently in this respect. Further, were it otherwise, private colleges of a university providing higher education services would be obliged to charge VAT on their supplies, rendering them more expensive and so restricting the opportunities of students to access them, contrary to the purpose of the exemption. Thirdly, there is in my view nothing in Note 1(b) or the broader context which would justify limiting the scope of the phrase any college of such a university to colleges which are a constituent part of a university in a constitutional or structural sense. To the contrary, if satisfaction of such a constituent part test were required, it would effectively exclude commercial providers such as SEL from the exemption for it is a test they will rarely if ever be able to satisfy. That, so it seems to me, would be contrary to the principle of fiscal neutrality in the light of the decision by Parliament not to limit the bodies it has recognised in Note 1(b) to those which do not make a profit. Fourthly, the United Kingdom must be taken to have recognised that a college (or, for that matter, a school or hall) of a university within the meaning of Note 1(b) has similar objects to those of a university which is governed by public law and which provides education to young people. In my opinion this consideration focuses attention on the objects of the body in issue, the nature of the educational services that it supplies, and how integrated those services are with those of the university. Put another way, it is necessary to examine the characteristics of those educational services and the context in which they are delivered rather than the precise nature of the legal and constitutional relationship between the body that provides them and its university. Of course, I recognise that if a college is a part of a university in a constitutional or structural sense then it is overwhelmingly likely that any educational services it provides will reflect this relationship and so the college may properly be regarded as a college of that university within the meaning of Note 1(b). But it does not follow that the converse is also true. It is entirely possible that an independent and private body which conducts its business of providing education for profit will be so integrated with a university that its educational activities and objects are indistinguishable from those of a college which is constitutionally part of the university or, indeed, from those of the university itself. All of these matters point to the conclusion that the integration test explained in the SFM case and adopted by the FTT is essentially correct. However, I think the factors to be considered do need some refinement. As I have said, the presence of a foundation or constitutional document or some other legal relationship establishing the college as a constituent part of the university in a constitutional or structural sense will be sufficient to prove that it is a college of the university within the meaning of Note 1(b), save in an exceptional case. But that is not a necessary condition. In assessing whether a body is a college of a university the following five questions are also likely to be highly relevant: (i) whether they have a common understanding that the body is a college of the university; (ii) whether the body can enrol or matriculate students as students of the university; (iii) whether those students are generally treated as students of the university during the course of their period of study; (iv) whether the body provides courses of study which are approved by the university; and (v) whether the body can in due course present its students for examination for a degree from the university. If a body can establish the presence of each of these five features, focused as they are on the objects of the body, the relationship between the students of the body and the university and the degree to which the activities of the body are recognised by and integrated with the university, then in my judgment it is highly likely to be a college of the university within the meaning of Note 1(b). Again, I do not suggest that there may not be other cases where the degree of integration of the activities of the body and the university is such that it may properly be described as a college of the university in light of some or most of the factors I have identified and other aspects of the services it supplies. All will depend on the particular circumstances of the case. However, some of the SFM factors are, in my view, likely to be of much less assistance in light of the matters to which I have referred. Here I have in mind: (i) whether the body is independent from the university; (ii) whether the body is financially dependent on the university, or whether the body and the university are financially interdependent; (iii) whether the body generates any distributable profit; (iv) whether the body is entitled to public funding; (v) the presence or absence of permanent links between the body and the university; (vi) the degree of physical proximity between the body and the university; and (vii) whether the body has any an obligation to offer a minimum number of university places. I do not suggest that none of these matters will ever have any evidential weight. For example, the duration of the relationship between the body and the university and how long it may be expected to last may have some relevance, if only as part of the background, but these and similar matters are unlikely to be determinative. In my judgment it follows that the reasoning of Peter Gibson LJ in the University of Leicester Students Union case at para 36 (which I have set out at para 34 above) needs some qualification. I accept that the words in those cases where there are separate entities which are nevertheless parts of the university, any of those separate entities in Note 1(b) include a college, institution, school or hall of a university which is separate from the university but which is nevertheless a part of it in a constitutional or structural sense. But, for the reasons I have given, I do not accept that the scope of Note 1(b) is limited to such entities, and if that is what Peter Gibson LJ meant by the use of these words, I respectfully disagree with him. In my view the correct approach was expressed succinctly by Arden LJ in FBT at para 55, which I have recited above. The question is whether the college and the university are so integrated that the entity is imbued with the objects of the university, and that is best answered in the manner I have described. Did the Upper Tribunal and the Court of Appeal fall into error? The UT did not reject the integration approach or question the value of the SFM factors but introduced the sequential test which I have set out at para 39 above. I recognise that if a taxpaying body is a college of a university one would expect to see some recognition of that by the university. I also accept the importance of establishing that the university and the body have a common understanding that the body is a college of the university. But it seems to me that these are matters which are best addressed in the context of and as part of the general assessment of their relationship, the extent to which their activities are integrated and whether they share the same objects. That brings me to the judgment of Patten LJ in the Court of Appeal, with which Black and Sales LJJ agreed. It is carefully reasoned and merits great respect. His analysis began with the FA 1972. He noted, entirely correctly, that it exempted the provision of education by an eligible body and that it defined the term university as including a university college and the college, school or hall of a university. He also observed, again correctly, that at the time this exemption came into effect the relevant EU provisions on exemptions were those contained in article 10 of the Second Directive which, as we have seen, gave each member state a broad discretion as to which exemptions to create beyond the supply of goods to places outside that state, and services relating to such goods or goods in transit. He concluded, and I agree, that the language of item 1 in the FA 1972 must be taken to represent what Parliament considered at that time should constitute the scope of the exemption for the supply of education by a university. Patten LJ turned next to the meaning of the phrase college, school, or hall of a university in the context of United Kingdom universities as they operated in 1972. Here, focusing on the universities of Oxford and Cambridge, he observed that their colleges and private halls, though self governing and legally independent, formed an integral part of the structure of their respective universities and that their members made up the universitys teaching staff and students. Patten LJ also found support for his approach in the provisions of the Education Reform Act 1988 (the 1988 Act) and the Education (Listed Bodies) (England) Order 2010 (the 2010 Order) made under it. The 1988 Act makes it an offence to award a degree that is not a recognised award. Under section 214(2), a recognised award includes an award granted or to be granted by a university which is authorised by Royal Charter or Act of Parliament to grant degrees, and any award granted or to be granted by any body for the time being permitted by a university to act on its behalf. Any such body falls within the definition of a recognised body in section 216(4). Section 216(2) of the 1988 Act requires the Secretary of State to compile and publish by order a list of the names of the bodies which appear to him to fall within section 216(3) which provides, so far as relevant: (3) A body falls within this subsection if it is not a recognised body and it: (b) is a constituent college, school or hall or other institution of a university which is a recognised body. The 2010 Order was made pursuant to section 216(2) and, as Patten LJ observed, it lists, among other bodies, all the colleges and halls of the universities of Oxford, Cambridge, Durham and Queens University Belfast, and the Institutes constituting the School of Advanced Study in the University of London. I would add that the 2010 Order was revoked and replaced by The Education (Listed Bodies) (England) Order 2013 which came into force on 30 December 2013. This expands the list of colleges and halls and includes one college of the University of South Wales and several colleges of the University of the Highlands and Islands. It was notable, Patten LJ continued, that the provisions of section 216(3)(b) were all but identical to those of Schedule 5, Group 6, Item 1 of the FA 1972 in defining what was included in a university, and it was unlikely that the similarity between the provisions was accidental. He recognised that the purpose of the two sets of provisions was very different but thought that both of them were seeking to identify the constituent parts of a university; and further, that the 1988 Act and the 2010 Order provided a useful illustration of how essentially the same statutory language had come to be interpreted and applied, albeit in the regulation of the granting of degrees. Patten LJ turned next to the VAT Act. Here he noted what he termed the stylistic and grammatical differences between Note 1(b) of Schedule 9, Group 6, Item 1 of the VAT Act and the definition of a university in Note (3) of Schedule 5, Group 6, Item 1 of the FA 1972 but he could see nothing in these differences or in the Sixth Directive to justify giving what he thought was essentially the same language a much wider meaning. He was of the view that there was nothing in the EU legislation which compelled member states to cast the scope of the exemption more widely than, in the case of the United Kingdom, it had previously chosen to do. He thought the focus of Note 1(b), and that of Note (3) before it, was on identifying the constituent parts of the university. The phrase of a university was common to both statutes and in his opinion this was determinative of the position. Patten LJ also considered the decisions in SFM, University of Leicester Students Union and FBT. Having done so, he was still of the view that it was necessary for SEL to establish what he understood Peter Gibson LJ to have described in University of Leicester Students Union, namely that it was a part of the university in the sense of being a constituent part with all the rights and privileges for its students and other members which that entailed. In my judgment Patten LJ has fallen into error in the following important respects. First, in focusing on the colleges of Oxford and Cambridge, all of which form a part of the structure of their respective universities, he has failed to take into account the variety of reasonable and foreseeable arrangements between a university and a college. Secondly, the 1988 Act is in my view of no real assistance in construing the provisions of Schedule 9, Group 6 of the VAT Act. The 1988 Act does not purport to implement or give effect to any EU legislation, let alone the Sixth Directive or the Principal VAT Directive. Further and as Patten LJ himself recognised, the purposes of the 1988 Act and the orders made under it are very different from those of the VAT Act. The 1988 Act is concerned with the grant of awards. The relevant provisions of the VAT Act, on the other hand, are concerned with the provision of education. Thirdly, Patten LJ has in my view failed properly to take into account the difference between the provisions of the First and Second Directives, on the one hand, and those of the Sixth Directive and the Principal VAT Directive, on the other, namely the scope and nature of the discretion they respectively confer on member states to exempt supplies of education from VAT. The provisions of the VAT Act are not the same as those of the FA 1972 and, most importantly, must be interpreted in the light of the wording and purpose of the Sixth Directive and now the VAT Directive, the breadth of the discretion conferred on member states by those Directives, and the need for Parliament, in exercising that discretion, to apply the relevant principles of EU law, including the principle of equal treatment. Finally, and for the reasons I have given, the judgment of Peter Gibson LJ in University of Leicester Students Union does not provide any sound support for the conclusion Patten LJ reached. I have therefore come to the conclusion that the Court of Appeal has fallen into error. The correct approach is to ascertain the nature and purpose of the educational activities of the college in issue, and whether those activities are so integrated with those of its university that it may properly be said to have the same objects as that university. That exercise may conveniently be carried out in the manner I have described at paras 47 to 56 above. The application of the correct approach In my judgment the analysis of the evidence carried out by the FTT was careful and comprehensive. It found, among other things, that SEL, as the United Kingdom arm of SAEI, had been an Associate College of MU since May 2009 and that the parties had proceeded on that basis; that the links between SAEI and MU were well established and likely to endure; that most of SELs courses were supervised by MU and their quality was regulated by MU; that SELs purposes were similar to those of MU; that SELs students became students of MU and received degrees from MU; and that the activities of SEL were substantially integrated into those of MU. It identified the factors upon which it particularly relied in the passage I have set out at para 38 above. In my judgment these findings had a sufficient basis in the evidence and there is no proper ground for interfering with them. In allowing the appeal, the UT considered that the FTT failed to distinguish between the activities of SAEI and those of SEL. It found that the various agreements relied upon by SEL were made between SAEI and MU; that SAEI was not a college of MU and SEL had the same status as SAEI; that MU was initially unaware of SELs existence as a corporate entity and so there was no common understanding between them; and that the FTT failed properly to consider what was meant by the term Associate College. In my judgment these are not fair criticisms. In May 2009 SEL stepped into the shoes of SETL and from that point was the entity through which the activities of SAEI were conducted in the United Kingdom. The factual findings of the FTT were sufficient to justify its conclusion that SELs activities were integrated into those of MU and that it shared the objects of MU. In my opinion the FTT was entitled to find that in May 2009 SEL became and thereafter remained a college of MU within the meaning of Schedule 9, Group 6, Item 1, Note (1)(b) of the VAT Act. Conclusion For the reasons I have given, I would allow the appeal.

Supplies of education to students in the United Kingdom are exempt from value added tax (VAT) if they are made by a college of a university within the meaning of Note 1(b) to Item 1, Group 6 of the Value Added Tax Act 1994 (the VAT Act). The appellant (SEL) contends that its supplies of education to students in the United Kingdom were and are exempt from VAT because it was and remains a college of Middlesex University (MU). SEL is a subsidiary of SAE Technology Group BV. Both are part of the SAE group of companies which trades around the world under the name SAE Institute (SAEI). MU is a United Kingdom university within the meaning of the VAT Act, Group 6, Item 1, Note 1(b). It has never had any financial interest in any SAE group company. Nevertheless, the relationship between MU and SAEI has been very close and is a reflection of a series of agreements addressing the nature of that relationship, the validation by MU of SAEI programmes of education and the accreditation of SAE group companies. SEL appealed against assessments raised by the Commissioners for Her Majestys Revenue and Customs (the Commissioners) in respect of its accounting periods 1 May 2009 to 29 February 2012. It has also appealed against subsequent assessments, but these have been stayed by agreement with the Commissioners pending the outcome of this appeal. SELs appeal was allowed by the First tier Tribunal (FTT). The Commissioners appealed that decision to the Upper Tribunal which allowed the appeal. SEL then appealed to the Court of Appeal, this appeal was dismissed. There are two issues for the Supreme Court: first, whether the Court of Appeal adopted the correct approach in determining whether SEL was a college of MU for the purposes of Note 1(b) to Item 1, Group 6 of the VAT Act; and secondly, if it did not, whether, upon application of the correct test, SEL was such a college. The Supreme Court unanimously allows the appeal. Lord Kitchin, with whom the rest of the Court agrees, delivers the judgment. The starting point for a consideration of the proper interpretation of Note 1(b) to Schedule 9, Group 6, Item 1 of the VAT Act must be articles 131 to 133 of the Principal VAT Directive. These make clear that member states must exempt transactions involving the provision of, among other things, university education by bodies governed by public law having such education as their aim. Member states must also exempt transactions by other organisations which they have recognised as having similar objects to those governed by public law and which also have education as their aim [41]. The general objective of the exemptions is to ensure that access to the higher educational services is not hindered by the increased costs that would result if those services were subject to VAT [43]. Parliament has chosen to exercise the discretion conferred upon it by exempting from VAT the provision of education by a United Kingdom university and any college of such a university. The term university is not defined in the VAT Act. However, the conditions under which a body in the United Kingdom is entitled to use the word university in its title are regulated by statute. Over 100 bodies are presently entitled to call themselves a university and they vary greatly in character. A small but nonetheless significant number of them are private and run for profit [46]. It is against the background of the range of possible arrangements between universities and their colleges that the meaning of the phrase college of such a university in Note (1)(b) falls to be determined [47]. In Lord Kitchins judgment the following points are material [47]. First, for its activities to fall within the scope of Item 1(a), any college of a university, as an eligible body, must provide education [48]. Secondly, the supply of educational services is exempt only if it is provided by bodies governed by public law or by other bodies recognised by the member state as having similar objects [49]. Thirdly, there is nothing in Note 1(b) or the broader context which would justify limiting the scope of the phrase any college of such a university to colleges which are a constituent part of a university in a constitutional or structural sense. To the contrary, if satisfaction of such a constituent part test were required, it would effectively exclude commercial providers such as SEL from the exemption for it is a test they will rarely if ever be able to satisfy [50]. Fourthly, it is necessary to examine the characteristics of those educational services and the context in which they are delivered rather than the precise nature of the legal and constitutional relationship between the body that provides them and its university [51]. Lord Kitchin recognises that the presence of a foundation or constitutional document or some other legal relationship establishing the college as a constituent part of the university in a constitutional or structural sense will be sufficient to prove that it is a college of the university within the meaning of Note 1(b), save in an exceptional case. However, that is not a necessary condition. In assessing whether a body is a college of a university the following five questions are also likely to be highly relevant: (i) whether they have a common understanding that the body is a college of the university; (ii) whether the body can enrol or matriculate students as students of the university; (iii) whether those students are generally treated as students of the university during the course of their period of study; (iv) whether the body provides courses of study which are approved by the university; and (v) whether the body can in due course present its students for examination for a degree from the university [53]. If a body can establish the presence of each of these five features, then it is highly likely to be a college of the university within the meaning of Note 1(b). This is not to suggest that that there may not be other cases where the degree of integration of the activities of the body and the university is such that it may properly be described as a college of the university. All will depend on the particular circumstances of the case [54]. Lord Kitchin concludes that the factual findings of the FTT were sufficient to justify its conclusion that SELs activities were integrated into those of MU and that it shared the objects of MU. The FTT was entitled to find that in May 2009 SEL became and thereafter remained a college of MU within the meaning of Schedule 9, Group 6, Item 1, Note (1)(b) of the VAT Act [73].

8k-16k

Mr Achilles Macriss complaint is that without giving him a chance to make representations in his own defence, the Financial Conduct Authority has published a notice imposing a penalty on his former employer for various irregularities in the conduct of its business, in terms which identify him as the person responsible. The question at issue on this appeal is whether the notices in question did in fact identify him. This may look like a small point but, for reasons which I shall explain, it has significant implications for the conduct of the Authoritys investigatory and disciplinary functions. The Financial Conduct Authority is responsible for the statutory regulation of the United Kingdoms financial markets. This includes protecting and enhancing the integrity of the United Kingdom financial system and ensuring the stability and orderly functioning of financial markets. The Authoritys powers are derived from the Financial Services and Markets Act 2000 (the Act), as amended by the Financial Services Act 2012. JP Morgan Chase Bank NA is authorised under the Act to carry on regulated investment activities. In 2012 Mr Macris was the Banks International Chief Investment Officer. In that capacity, he was the head of a unit of the Bank in London called the Chief Investment Office (or CIO International). The function of CIO International was to manage the firms excess deposits, including a portfolio of traded credit instruments called the Synthetic Credit Portfolio. Mr Macriss own functions were controlled functions for the purpose of section 59 of the Act, which meant that he had to be approved by the Authority as a suitable person to carry on those functions. In July 2012, the Bank announced that the Synthetic Credit Portfolio had lost $5.8 billion in the first half of the year, a figure which rose to $6.2 billion by the end of the year. Following an investigation, the Authority concluded that the loss was caused by a high risk trading strategy, weak management of that trading and an inadequate response to important information which should have alerted the Bank to the problems. It also concluded that the Bank had withheld significant information from the Authority while the losses were being incurred. Together, these failings were found to have undermined trust and confidence in UK financial markets. A regulatory settlement was agreed with the Bank, under which it paid a penalty of 137,610,000. The provisions of the Act governing the imposition of penalties provide for three successive notices to be given to a person or firm under investigation: a warning notice describing the action which the Authority is provisionally minded to take and inviting representations (section 207); a decision notice describing the action that it has decided to take after considering any representations and informing the recipient of his right to refer the matter to the Upper Tribunal (Tax and Chancery) (section 208); and a final notice describing the action that it is taking once the decision notice has become final, ie after it has been reviewed by the Upper Tribunal or the time for applying for such a review has expired (section 390). The normal form of these notices is a brief statement of the action proposed, followed by a fairly extensive narrative entitled Reasons. Where a regulatory settlement is agreed before the service of any of these notices, they must still be given, but the practice is to draft them in identical terms and serve them simultaneously. In this case the three notices were all served on the Bank on 18 September 2013. The Authority is not required to publish a warning notice to the world, but it is required to publish a decision notice and a final notice. It did so in this case on the following day, 19 September 2013. Notices recording disciplinary action proposed to be taken against an authorised firm will almost inevitably contain implicit or explicit criticisms of those responsible for the irregularities in question and possibly of other persons involved. These are referred to in the Act as third parties. Section 393 contains provisions for protecting them against unfair prejudice. Subsection (1) provides: If any of the reasons contained in a warning notice to which this section applies relates to a matter which identifies a person (the third party) other than (a) the person to whom the notice is given, and (b) is prejudicial to the third party, in the opinion of the regulator giving the notice, a copy of the notice must be given to the third party. The object of this procedure is to enable the third party to make representations to the regulator. Subsection (3) requires a copy notice served on a third party to specify a reasonable period of time within which he may do so. Subsection (4) contains a corresponding provision relating to decision notices. The object here is to enable the third party to take the matter before the Upper Tribunal, as subsection (9) entitles him to do. These procedures need not be followed if a corresponding notice in relation to the same matter has been given to the third party in his own right: see subsections (2) and (6). Mr Macris was not supplied with a copy of the notice served on the Bank or given an opportunity to make representations. As an approved person he was personally under investigation along with his employer. But he was not party to the settlement with the Bank, and the investigation of his conduct was still in progress at the time. Ultimately, in February 2016, Mr Macris reached his own regulatory settlement. A final notice in relation to him was published on 9 February 2016, in which he was found to have been party to the withholding of information from the Authority and on one occasion to have misled it. A penalty of 762,900 was imposed on him. The Authority does not deny that if Mr Macris was identified in the warning and decision notices served on the Bank, there were statements in those notices which were prejudicial to him. Their case is that he was not identified. It is common ground that he was not identified by name or job title. But there were many references to conduct by CIO London management or similar expressions. Mr Macris was not the only manager in CIO International in London. On the basis of the notice alone, therefore, CIO London management could have referred to a number of people other than him. His case is that those who were active in the relevant markets would have known that it referred to him. In support of this case, he produced two witness statements in the Upper Tribunal, neither of which was challenged. One was from a senior manager formerly employed in CIO International in London, who said that it was clear to him that CIO London management referred to Mr Macris. This was because of the knowledge that he had acquired as a manager in the same unit. In particular, he knew that Mr Macris was the head of that unit and was not in the habit of sharing his responsibilities with others. The other witness was a senior sales representative dealing in credit instruments for another bank in London. He said that he drew the same conclusion because he knew about Mr Macriss position and working methods from his dealings with CIO International. In addition, Mr Macris relied on the fact that some five months before the service of the notices on the Bank, a US Senate Committee had published a report on the losses in the Banks Synthetic Credit Portfolio, which described his role in the incurring and treatment of those losses, identifying him by name. This report was available on the internet. It was said that if read side by side with the Authoritys notices the Senate Committee report would enable anyone to deduce who was being referred to as CIO London management. The Upper Tribunal directed the hearing as a preliminary issue of the question whether Mr Macris was entitled to be treated as a third party for the purposes of section 393 of the Act. Judge Herrington upheld Mr Macriss complaint and held that he was. He referred at para 13 of his judgment to para 4.3 of the final notice, which described the position of CIO International in the Banks hierarchy in the following terms: 4.3 The Firm is a wholly owned subsidiary of the Group. CIO operates within the Firm in both New York and London. The traders on the SCP were managed by SCP management, which in turn were managed by CIO London management. CIO London management represented the most senior level of management for the SCP in London, reporting directly to CIO Senior Management in New York, which in turn reported to Firm Senior Management. CIO also had its own Risk, Finance and VCG functions, which were control functions relevant to the SCP and other portfolios within CIO. The wider control functions within the Group included Internal Audit, Compliance and the Groups Audit Committee. The judge then referred at para 16 to a number of places where the notices referred to acts as having been performed by an individual (eg CIO London management sent an e mail). The essence of his reasoning appears at paras 45 and 46 of his judgment: 45. In my view the drafting of para 4.3 is inconsistent with how a corporation would describe the hierarchy of its governing bodies. Collective bodies are responsible for the management of particular business units rather than managing them themselves and the bodies concerned would appoint named individuals to carry out the actual management in clearly defined reporting lines. What therefore comes across clearly from para 4.3 of the Final Notice is a description of the reporting lines of particular individuals to their line managers. The paragraph also discloses the fact that SCP management would manage rather than be purely responsible for the management of the individual traders who would therefore each say that their line manager was whoever was identified as SCP management. It is not the practice that an individual trader would report to a collection of individuals; it is the hallmark of good management that there can be no confusion over which individual a person reports to he needs to know who his boss is and so he does not get conflicting messages. The reference to CIO London management being the most senior level of management for the SCP in London is also significant; again a reader with experience of how large corporations operate would take such a reference as being to the most senior individual concerned. 46. This initial impression that the reader would take from para 4.3 is reinforced by the fact that CIO London management is stated in the notice to have performed actions such as having conversations, attending meetings and sending e mails which can only be taken in the context in which these events are described, as being the actions of an individual rather than a body of persons. This is clearly apparent from the references Mr Herberg referred me to as set out in para 16 above. In the Court of Appeal Gloster LJ delivered the leading judgment, Patten LJ agreeing with her generally and Longmore LJ agreeing to the extent that it is a question of law. Gloster LJ declined (paras 52, 60) to adopt Judge Herringtons reasoning but agreed with him in the result, namely that the references to CIO London management were references to an individual, ascertained by reference solely to the terms of the notice itself (para 52). She also considered (para 53) that the evidence adduced by Mr Macris and publicly available material such as the US Senate Committee report entitled the judge to conclude, on an objective basis, that persons acquainted with Mr Macris, or who operated in his area of the financial services industry, would reasonably have been able to identify Mr Macris from the statements made in the notice. Gloster LJs view that the relevant audience was persons acquainted with Mr Macris, or who operated in his area of the financial services industry was based on an analogy, which she regarded as persuasive, between disclosure under section 393 of the Act and publication in the law of defamation. In the latter context, she drew attention after the hearing to the statement in the current edition of Gatley on Libel and Slander, 12th ed (2013), paras 7.1, 7.2: The question in all cases is whether the words might be understood by reasonable people to refer to the claimant, subject to the qualification that where the words are published to persons who have special knowledge the issue will be decided by reference to what reasonable persons possessing that knowledge would understand by them. The test of whether words that do not specifically name the claimant refer to him or not is this: Are they such as reasonably in the circumstances would lead persons acquainted with the claimant to believe that he was the person referred to? This appeal turns on the meaning of identifies and on the meaning of the notice to which that word is being applied. Both are questions of law, although the answers may be informed by background facts. The essential question before us is what background facts may be relevant for this purpose. In my opinion, a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym, it must be apparent from the notice itself that it could apply to only one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplementing) the language of the notice. Thus a reference to the chief executive of the X Company may be elucidated by discovering from the companys website who that is. And a reference to CIO London Management would be a relevant synonym if it could be shown to refer to one person and that person so described was identifiable from publicly available information. What is not permissible is to resort to additional facts about the person so described so that if those facts and the notice are placed side by side it becomes apparent that they refer to the same person. I reach this conclusion for the following reasons. The starting point is that section 393 covers the same ground as the general obligation imposed by public law to give those affected sufficient notice to enable them to make representations to protect their legitimate interests. But it does so in a more limited way. So far as it concerns notice of potential criticisms, the section defines what fairness requires in the context of warning and decision notices issued by the Authority. Secondly, although the word identifies is not elaborated, it is clear from the language that it is the reasons contained in the notice which must identify the third party and not some extrinsic source. Reference to extrinsic sources of information is legitimate only so far as it is necessary in order to understand what the notice means. Third, it is necessary to read section 393 in the light of the practicalities of performing the Authoritys investigatory and disciplinary functions. It is common for notices to be served on different parties to the same investigation at different times. The possibility is expressly envisaged in section 393 itself. The role of the firm or of the various individuals involved may take more or less long to investigate. Or, as happened in this case, one of them may settle before the others. Once the facts relating to one person or firm under investigation are ascertained or admitted and are found to justify criticism or sanctions, there will often be no proper reasons for withholding that information from the market. Yet there will almost always be people in the know, who will realise when they read the notices which individuals are encompassed by apparently anodyne collective expressions such as management or who is likely to have been responsible for particular failings of the firm. The facts, or enough of them, may be well known within the firm. They may be deduced by those who know enough about the firms procedures or organisational structure or the business methods of the third party in question. Even for those who are further from the scene, the internet is a fertile source of information and gossip for those who are willing to go to some trouble to discover his identity. The Authority will not necessarily know what if any further information about the business, the facts or the individuals involved may be available to knowledgeable outsiders or discoverable from publicly available sources. In those circumstances it must be able to ensure, by the way in which it frames its own notices, that a third party is not identified in the notice, even if he or she is identifiable from information elsewhere. The present case is a good illustration of the problem. The Court of Appeal considered that the information relevant for the purpose of identifying Mr Macris included the US Senate Report, which identified him by name. On that footing, once the Senate Committee had published his report, it would have been impossible for the Authority to serve the notice on JP Morgan as part of the settlement process, without serving a copy on Mr Macris at a comparatively early stage of the investigation of his role, when it would not necessarily know the relevant facts or have formulated any criticisms. Fourth, the combination of information in the notice with other information can prejudice a third party only if the notice is published. Publication is not automatic. Where the Authority decides to publish, it does so in order to serve the public interest in the proper performance of its functions and the protection of those who use the financial services industry. This is reflected in the Authoritys Enforcement Guide (2016), section 6.2.16 of which states: Publishing notices is important to ensure the transparency of FCA decision making; it informs the public and helps to maximise the deterrent effect of enforcement action. The relevant audience for this purpose is accordingly the public at large. The fact that some specific sector of the public at large may, like Mr Macriss witnesses, have special additional information enabling them to identify a third party is not relevant. Finally, I do not regard the suggested analogy with the law of defamation as helpful. The law imposes strict liability for the publication of a defamatory statement which reflects on the claimant, even if the defendant did not intend it to refer to the claimant and had no reason to believe that others would connect it with him. The test is whether those to whom the statement was published would reasonably suppose him to be the person referred to. That will commonly depend on who it was published to and what knowledge they had of him. In that context, extrinsic evidence is naturally available to connect the perception of the claimant among those to whom the defamatory statement was published with the person referred to in it. Section 393 of the Act has an entirely different purpose. It applies where the Authority knows of the third party and intends to refer to his actions, but only where it actually identifies him in the notice. I do not accept, any more than the Court of Appeal did, the judges view that because reporting lines lead to individuals, any reference to management must be to an individual. Nor do I accept Mr Macriss argument that because the notices referred to actions such as making statements, attending meetings or sending e mails, which must have been done by individuals, a single individual is meant, as opposed to any of a number of individuals comprised within the term the firm, CIO or CIO management. The real question is whether the terms of the notice itself would have conveyed to a reasonable member of the public without extrinsic information that any of these terms was a synonym for Mr Macris. Plainly it would not. I would therefore allow the appeal and declare that Mr Macris was not a third party for the purposes of section 393 of the Financial Services and Markets Act 2000. LORD NEUBERGER: I agree with the judgment of Lord Sumption, and I add a few observations of my own because there is no doubt that the case for giving a wider meaning to section 393(1)(a) of the Financial Services and Markets Act 2000, as explained by Lord Mance and Lord Wilson, has considerable force. The point raised on this appeal centres around the effect of the word identifies in section 393(1)(a), and it is, at least in my view, difficult to resolve. Section 393(1)(a) is a good example of Parliament enacting a provision whose general purpose is clear, but, because there can be more than one reasonable view as to the provisions scope, the resolution of that issue has effectively been assigned to the courts. I do not say this by way of complaint. In some cases, Parliament may consider that it is better for the legislature to lay down a rule in fairly unspecific terms in a statute, and then leave it to the courts to determine the precise extent and reach of the rule by reference to specific sets of facts. This appears to be such a case. As is clear from reading the judgments of Lord Sumption and Lord Wilson, resolution of the point at issue has significant implications both for the conduct of the Financial Conduct Authoritys functions and for individuals who, while they are not named in a warning notice (under section 387) or a decision notice (under section 388), may have their reputations harmed as a result of the publication of such a notice. Section 393 is plainly intended to enable at least some such individuals to be served with a copy of the notice concerned, to refer it to the Upper Tribunal and to challenge some or all of the contents of the notice, rather than leaving any challenge to the notice in the sole hands of the party against whom it is primarily issued, presumably normally the employer of the individual concerned, as in this case. The purpose of including such a provision in the 2000 Act is clear. The interests of the addressee of a notice who is accused of failings, and those of a third party such as an employee of the addressee, who may be identifiable as responsible for, or implicated in, the alleged failings, are by no means necessarily aligned. Thus, it may well be that an employer would want to try and curtail any publicity about the alleged failings by quickly negotiating and paying a penalty, even if there may be grounds for challenging the allegation in whole or in part. But this may often not suit the employee, who might well feel that, in the absence of the Tribunal exonerating him, his reputation, and therefore his future employment prospects, could be severely harmed or even ruined. In this case, the addressee of the Notice, JP Morgan Chase Bank NA, was Mr Macriss employer, and it did indeed pay a substantial penalty to the Authority, no doubt with a view to putting an end to any proceedings on the Notice. Mr Macris received a separate notice and contested before the Tribunal the allegations in the notice served on him (which were substantially identical to those in the Notice served on the Bank, which is the Notice to which he claims section 393 applies). While some of the allegations against Mr Macris were upheld, the more serious ones, including one which at least implied that he had not been honest in certain respects, were rejected. Had he not been served with his own notice, Mr Macris would not have been able to challenge the Notice served on the Bank, unless he had been identifie[d] in that Notice. That brings me to the question of the scope of the section. The wider the scope of section 393(1)(a), the more constraining it will be on the Authoritys activities, as Lord Sumption explains in para 14 above. But the narrower the scope of the provision, the greater the number of individuals who will be at risk of being harmed by notices without any recourse, as Lord Wilson describes in paras 60 and 61 below. On this appeal, it is not suggested on behalf of Mr Macris that an individual should be within the scope of section 393 simply because he could show that one person could identify him from the terms of the notice. On the other hand, the Authority accepts that section 393 cannot be limited to cases where the individual concerned is mentioned by name in the notice. There is no entirely satisfactory logical basis for justifying any particular conclusion as to the precise point at which one draws the line between these two extremes. Because there are powerful policy arguments pointing in opposite directions, it seems to me that it is justified, indeed requisite, to have particular regard to the wording of the relevant statutory provision. Section 393(1)(a) states that section 393 applies where any of the reasons contained in a notice relates to a matter which identifies a person. In other words, the question to be asked is: does the notice identify the individual in question? The language used appears to stipulate that the person must be identified in the notice, not that he must be identifiable as a result of the notice. A literal reading could therefore be said to suggest that the notice must expressly mention the individual by name, as opposed to rendering that individual capable of being identified as a result of information to which one reader, all readers or a specific group of readers of the notice may be able to get access. In my view, that would be too narrow a meaning to give the section. An equally natural, but more realistic interpretation is that, in order for the section to apply to an individual, either he must be named in the notice, or the description in the notice must be equivalent to naming him. On this basis, a reference to the Chairman of the Board of a United Kingdom registered company would identif[y] the individual concerned, as it would be easy for anyone to find out his name. (And, depending on the facts, the same might be the case with a reference to the Chairman of the Board of a foreign registered company). It is true that even that form of identification would require the reader to have some outside knowledge, but as a matter of ordinary language, I would accept that an individual is identified in a document if (i) his position or office is mentioned, (ii) he is the sole holder of that position or office, and (iii) reference by members of the public to freely and publicly available sources of information would easily reveal the name of that individual by reference to his position or office. Apart from the notice having to mention the position or office, that test has two essential features. The first is that it involves assessing the identifiability of an individual by reference to what members of the public generally know or could discover. A test that was satisfied by reference to a specific and smaller group would give rise to difficulties as to where one should draw the line as a matter of principle, and also as to how in practice the Authority could know whether or not an individual satisfies the statutory test. The second essential feature is that, in order to satisfy the test, any research or investigation should be straightforward and simple, as would be the case in relation to identifying who chairs the board of a UK registered company. In order to qualify, any investigation process should not require any detective work; and so jigsaw identification, ie correctly identifying someone as a result of relating separate snippets of information (Donald v Ntuli [2011] 1 WLR 294, para 55), would not do. Similarly, the fact that Mr Macris could be identified by reference to a publicly available US Senate Committee report would not do because a member of the public would not know of that report, and anyway would not think of referring to it for the purpose of identifying Mr Macris as the individual referred to in the Notice in this case. Lord Wilson makes out a strong case as to the potential for unfairness if this conclusion is right, and his powerfully expressed views have caused me considerable doubts as to whether indeed it is. However, his solution appears to me to give rise to problems which support adhering to the conclusion I have expressed. First, if a wider meaning than that which I have suggested is given to section 393(1)(a), it would be a matter of subjective assessment as to how wide a scope to give it. Secondly, any wider definition, unless it is very much wider than anyone has so far suggested, could self evidently lead to disputes. Thirdly, a wider meaning could lead to some rather odd consequences. Fourthly, a wider definition would put the Authority in a difficulty from the start. Fifthly, a wider definition could still lead to arbitrary outcomes. Lord Wilsons suggested formulation in para 63 is plainly reasonable and indeed it is attractive. However, like the formulation suggested by the Court of Appeal, it seems to me to manifest the first and second problems I have just identified, and it also serves to demonstrate the third, fourth and fifth problems. First, if section 393(1)(a) has a wider application than I have suggested, there is no logical or principled reason for excluding from, or indeed including in, its scope an individual who could be identified by a person who is personally acquainted with [him], to quote from Lord Wilsons test. Secondly, there could also easily be disagreements, which would have to be resolved, as to whether, on disputed or agreed facts, a particular person falls within that expression. Thirdly, as the facts of this case show, it may well be that Mr Macris could only have satisfied Lord Wilsons test because of the happenstance that he had been identified in a published US Senate Committee report on various problems encountered by the Bank. Fourthly, these very facts highlight the difficulties which the Authority could face if one gives section 393(1)(a) a wide meaning. Fifthly, even on Lord Wilsons test, where a group of two people is identifiable from a Notice, it could be damaging to both of them if they could not clear their names, yet unless one of them could be identified, neither of them would be within the section. LORD MANCE: This is a difficult case. But, ultimately, I am in broadly the same position as Lord Wilson on the issue of law. However I find myself, not without hesitation, arriving at the same conclusion about the outcome of this appeal as Lord Sumption and Lord Neuberger when I apply this test to the facts of this case. On the question of law, it is tempting to take the very broad view that it is unfair if a person like Mr Macris is not given the opportunity to address criticisms in a final decision notice directed, as this was, to Mr Macriss current employers, JP Morgan Chase Bank NA, in terms which future employers might be able to ascertain by due diligence or investigation were in reality critical of Mr Macris. But that would make the task of the Authority very difficult indeed, and is not in my opinion the intention or effect of the language of section 393 of the Financial Services and Markets Act 2000. On the other hand, I consider that Lord Sumption and Lord Neuberger take too narrow a view of the third party protection which the Act intended. They take a narrower approach than even the Authority advances as its primary case, a narrower approach than any previous court addressing the issue has ever considered appropriate. They do not go to the absolute extremity of a requirement that the third party should be named. But they require either naming or what is described as a synonym. In Lord Sumptions words (para 11), a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym, it must be apparent from the notice itself that it could apply to only one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplementing) the language of the notice. This is what one may call a dictionary approach. But a notice is not issued into a vacuum, of which the only occupant is a dictionary. The dictionary is one aspect of publicly available information, and, once it is permissible to look at that aspect of publicly available information to supply the identity of a person who is being criticised in a notice, I am unclear why this should not, for example, also be permissible to show that a generic description such as CIO London management in a notice in fact describes only one person. In my view, the correct analysis is, rather, along the lines of the Authoritys primary case, viz that a matter (only) identifies a person if the identity of the person is apparent from the terms in which the matter is described or explained, read in the light of information generally or publicly available in the financial world (as distinct from information available only to persons acquainted with the person or his company). Judge Timothy Herrington in the Upper Tribunal treated section 393 of the 2000 Act as involving a two stage test. First, the decision notice must direct criticism at a particular individual or the members of a particular group of individuals. Second, that satisfied, such individual or individuals could be identified for the purposes of section 393 by external material, regardless of whether the ordinary reader of the notice would be able to establish that the criticisms relate to the individual in question (para 37). It was not a question of whether any particular type of reader could identify the individual concerned but simply whether there is information in the public domain that incontrovertibly links the description in the Final Notice to, in this case, Mr Macris (para 50). Judge Herrington considered (in my view, probably incorrectly) that this analysis was consistent with that adopted by an earlier Financial Services and Markets Tribunal decision in Watts v Financial Services Authority FIN/2004/0024 (unreported) 7 September 2005. Judge Herrington attached no significance to the fact that the British press had not in fact worked out the identity of Mr Macris until by his present claim he prompted them. The Court of Appeal considered that Whether the relevant matters identify a person for the purposes of section 393 is in one sense a unitary question, a proposition with which I agree, but went on to adopt Judge Herringtons two stage approach as logical. It disagreed with the breadth of Judge Herringtons approach at the second stage of his two stage approach. It said that there cannot be ex post facto unlimited reference to external material to identify the third party, and that identification could only be made by reference to information which objectively would be known by persons acquainted with the third party, or persons operating in the relevant area of the financial services market (para 50). It is notable, however, that, in the next paragraph of its judgment, the Court of Appeal referred to what such persons might reasonably have known. Further, in para 51, after noting, correctly in my view, that the failure of the press to identify Mr Macris before his present claim was of some evidential relevance, the Court of Appeal only upheld the judges conclusion on the basis that had he applied the objective test [which the Court of Appeal] formulated, [he] would have been entitled to conclude on the evidence before him, that despite the fact that the press had not previously latched on to the matter, the relevant sector of the financial market would nonetheless have appreciated that it was Mr Macris who was identified in the Notice as CIO London management. Once it had concluded that Judge Herrington had applied the wrong test, it was for the Court of Appeal itself to apply the right test, not to consider whether a judge applying the correct text might reasonably have arrived at the same result or would have been entitled to do so. Section 393 gives rights which go beyond any which would arise at common law under principles discussed in In re Pergamon Press Ltd [1971] Ch 388. It is not therefore surprising that these are carefully delimited. The use of the words which identifies a person contrasts with the use elsewhere in the statute of the word identifiable (Schedule 2, paragraph 14(2) and Schedule 11B, paragraph 8(3)). Some assistance in understanding section 393 may also be obtained from section 230A, albeit only added with effect from 24 January 2013. This, in the context of the Ombudsman Scheme introduced by Part XVI of the Act, provides that: (3) Unless the complainant agrees, a report of a determination published by the scheme operator may not include the name of the complainant, or particulars which, in the opinion of the scheme operator, are likely to identify the complainant. The ambit of this provision may be regarded as confirming the limited scope of the third party protection intended under section 393. On the question whether a notice is directed at a particular person, the Tribunal said in Watts, at para 50, in the context of a decision notice directed simply at Shell, that: There is no reason in our view why a market abuse allegation directed at a company must necessarily be taken to impute criticism to particular individuals. We doubt whether undertaking the threefold steps which are said to be required, and looking at publicly available sources to see whether any and if so which individuals were identified, would be a workable process. In the present case, I consider (contrary to the conclusion reached by Judge Herrington) that the criticism directed in the report to CIO [ie Chief Investment Office] London Management cannot by itself necessarily be taken to relate to any particular individual or individuals. However, it must relate to one or more of a group of individuals making up CIO London management. I also consider (contrary to the view taken in both courts below) that a notice cannot be said to identify an individual merely because persons acquainted with him or his company could do so. Otherwise, it would be necessary in almost every case for a third party notice to be given. The test of identification should have regard to information generally available publicly, without inquiry of those with direct knowledge of the company involved or detailed investigation, to those in the relevant financial world in which the matter occurred. A notice will, in my view, only identify an individual if it does so to persons operating in that world, unacquainted with the particular individual or his company, though familiar with information generally available publicly to operators in that world. In the present case, the matter to which the Notice related consisted of the circumstances in which the Bank incurred losses as the result of what became known as the London Whale trades (para 2.1), and the Notice assigned responsibility for this matter in certain respects to CIO London management. If there was publicly available information making clear that CIO London management equated with Mr Macris or that he was the person who within CIO London management had managed the London Whale trades, I would regard that as sufficient identification of him to trigger section 393(1) and (4). The courts below relied both on evidence from two witnesses closely acquainted with Mr Macris and on the US Senate Report into the London Whale matter. The two witnesses in question had worked with Mr Macris in, or done business with, the CIO and had detailed knowledge of the CIOs organisation and structure. They were speaking on the basis of specialist knowledge which was, in my view, irrelevant to identification. As to the Report, Judge Herrington said that it is accessible on the internet and contains many references to [Mr Macris] (para 53), and noted that it showed that some of the communications referred to in the Notice as involving CIO London management were in fact with Mr Macris. In disagreement with Lord Wilson on this point, I do not consider that it follows that CIO London management equated with Mr Macris, or that he was the only relevant individual in CIO London management or that the criticisms directed generically at CIO London management were being directed at him. Although it was accessible on the internet, I am also left uncertain whether it and its contents have been shown to constitute publicly available information in a United Kingdom context. For these reasons, I agree that this appeal should be allowed. LORD WILSON: (dissenting) I find myself in respectful disagreement both with the majority of the court and, on a more limited yet important aspect referable to the disposal of this particular appeal, also with Lord Mance. In its Notice of Appeal the Authority suggested that, when providing for third party rights in section 393 of the Act, Parliament probably intended an approach which could strike a fair balance between individual reputation and regulatory efficiency. The courts decision today does not strike a fair balance. In para 1 of his judgment Lord Sumption observes that the point raised by the appeal has significant implications for the conduct of the Authoritys investigatory and disciplinary functions. I agree with Lord Sumptions observation. But does it not betray a lack of balance? Does the point not also have significant implications for individuals wrongly criticised in warning and decision notices given by the Authority to others? In its Notice of Appeal the Authority stated as follows: I indorse the Authoritys suggestion. The issue in the appeal is whether the test formulated by the Court of Appeal is correct. The Authority does not seek to argue (as it did in the Court of Appeal) that identification for these purposes is limited to names or designations that function as proper nouns. But the Authority submits, as it did in the Court of Appeal, that a person is identified in a notice only if the terms of the notice would reasonably lead the ordinary reader (that is, the reader with a general understanding of financial affairs and aware of publicly and widely available background material, but without specific or special knowledge of the underlying facts of the matter to which the notice and its reasons relate) to conclude that the notice unambiguously identifies the applicant as a person mentioned in the notice. I will refer to the Authoritys suggested test as the ordinary reader test. In its written case, echoed in the oral submissions of Mr Crow QC on its behalf, the Authority suggested that, while the court might wish to consider whether an individual was identified only if named in the notice, or perhaps also if referred to by his formal job title, the correct test was its ordinary reader test. In order to ensure that the Authoritys functions are workable, Lord Sumption favours a construction of section 393 which appears to narrow the field of those upon whom it confers third party rights even more than the Authority itself suggests to be correct. But I say that his construction appears to narrow the field because I confess that I find it indeed it follows that I find the whole basis of the courts decision today slightly hard to understand. My perplexity, which I trust that readers of our judgments will not share, arises in the following way: (a) Both in para 11 and in the final paragraph of his judgment (para 17) Lord Sumption stresses the need for a synonym before an unnamed person will be identified within the meaning of the section. (b) In explaining his agreement with Lord Sumption, Lord Neuberger therefore undertakes, at para 26, a conventional analysis of what, in this context, a synonym means. He suggests that the persons position or office must be mentioned, that he must be the sole holder of it and that, by reference to freely available sources of information, the public must be able easily to discover his name as being the holder of it. In para 11, however, Lord Sumption proceeds to explain his use of the (c) As Lord Mance suggests at para 33, the above may be called a dictionary approach. (d) word synonym. (e) So he says that a reference to CIO London management would be a synonym if it referred to one person who was identifiable from publicly available information. But can CIO London management be described as a position or office? (f) Lord Sumption also says that resort to publicly available information is permissible in order only to interpret, and not to supplement, the language of the notice. How obvious is this distinction? (g) He also says that it is impermissible to resort to additional facts about the person so that, if they are placed alongside the notice, it becomes apparent that they refer to the same person. How clear is the meaning of this prohibition? The question raised by section 393(1) and (4) of the Act is whether any of the reasons contained in a notice relates to a matter which (a) identifies a person The cumbersome terminology was borrowed from the predecessor of the section, namely section 70(4) of the Financial Services Act 1986 (the 1986 Act). But the surplus words are swiftly and conveniently banished in section 393(2)(b) and (6)(b) of the Act, where it is made clear that it is simply the notice which has to identify the person. In the Upper Tribunal Judge Herrington, who prior to his appointment had been Chair of the Authoritys Regulatory Decisions Committee and so brought to the issue an arresting level of expertise, suggested that the question whether a notice identified an applicant for third party status should be answered in two stages: (i) By reference only to the terms of the notice, do the matters of which the applicant complains refer to an individual? If so, (ii) demonstrates that the individual is the applicant? Is there information in the public domain which incontrovertibly The Court of Appeal agreed that the question should be answered in two stages and that the judges formulation of the question at the first stage was correct. The Authority says that it now agrees that a two stage approach may be helpful and it broadly agrees with the formulation of the first question. The Court of Appeal held that the judges formulation of the question at the second stage was too broad; and no one now contends otherwise. The Court of Appeal proceeded to reformulate that question as follows, at para 45: Are the words used in the matters such as would reasonably in the circumstances lead persons acquainted with the [applicant], or who operate in his area of the financial services industry, and therefore would have the requisite specialist knowledge of the relevant circumstances, to believe as at the date of the promulgation of the Notice that he is a person prejudicially affected by matters stated in the reasons contained in the notice? Unfortunately the Court of Appeals mistaken reliance on the law of defamation led it to make two errors in its reformulation of the question at the second stage and to include in it one infelicity. The first error was to include persons acquainted with the [applicant] in the notional constituency of those who would decide whether he was the individual to whom the notice referred. Persons acquainted with him would include persons well acquainted with him, such as members of his family and close colleagues at work; and they would be likely to know that he was indeed that individual in circumstances in which it would be absurd to describe him as having been identified in the notice. Thus, in the recent case in the tribunal of Bittar v Financial Conduct Authority [2015] UKUT 602 (TCC), Judge Herrington felt the need, at paras 33 and 34, to apply a heavy gloss to the Court of Appeals reference to acquaintances so as to exclude those with close knowledge of the circumstances. The second error was to define the decision for that constituency as being whether the applicant was a person prejudicially affected by matters in the notice. The decision for the constituency is, instead, whether the individual to whom the notice refers is the applicant. Whether, if so, matters in the notice are prejudicial to him is, instead, a matter for the Authority pursuant to section 393(1)(b) and (4)(b) of the Act. The infelicity was to suggest that it was enough for that constituency to believe. The verb is too weak. Although the composition of the constituency may not have been correctly identified in its ordinary reader test, the Authority is correct to suggest that, at the second stage, the constituency needs to conclude that the individual to whom the notice refers is the applicant. But the kernel of the Court of Appeals reformulation of the question at the second stage remains. It is that the relevant conclusion should be reached by persons who operate in his area of the financial services industry, and therefore would have the requisite specialist knowledge of the relevant circumstances. It is at this point that the court should have addressed what is in my view the central issue of construction raised by the appeal. Does a notice identify a person for the purpose of section 393(1)(a) and (4)(a) of the Act if ordinary readers, as defined by the Authority in its suggested test, would conclude that the individual to whom the notice refers is the applicant? Or does it identify a person for that purpose if ordinary operators in the same sector of the market would reach that conclusion? Which, in other words, is the appropriate constituency ordinary readers or ordinary market operators? I answer the question by reference to the particular sort of damage which a wrong criticism of an individual in a notice given by the Authority is likely to cause to him. It is the reaction to the criticism of those who operate in the same sector of the market which is likely to cause him most damage; for it may prejudice his ability to remain in his employment, or to find other employment in that sector, or otherwise to continue to earn his livelihood in the industry. The predecessor to section 393 of the Act, namely section 70(4) of the 1986 Act, identified, at (b), the prejudice which the Secretary of State needed to perceive: it was prejudice to that person in any office or employment. Although under section 393(1)(b) and (4)(b) of the 2000 Act the type of prejudice which the Authority needs to perceive is left open, there is nothing to indicate that in 2000 Parliament was any less concerned about prejudice in relation to employment than it had been in 1986. Take the case of Mr Macris himself. In the warning and decision notices given to the bank on 18 September 2013, the Authority referred in detail to a telephone call on 10 April 2012 which it had conducted with CIO London management. In fact it had conducted the call with (or primarily with) Mr Macris; and in these proceedings it has always accepted that, when referring in the notices to CIO London management, it was referring to Mr Macris but in a way which (so it hoped) would avoid identifying him. In the notices the Authority concluded in relation to the telephone call that (by virtue of the conduct of CIO London management) the Authority was deliberately misled by the Firm. The allegation that during the telephone call Mr Macris deliberately misled the Authority is, if untrue, gravely damaging to him. But, in its later notices given to Mr Macris himself following its direct inquiry into his conduct, there is no such allegation. There is extensive reference to the same telephone call; and his conduct in the course of it is said to contribute to the conclusion that, as an approved person, he had failed to deal with the Authority in an open and cooperative way in breach of Statement of Principle 4 of the Authoritys Statements of Principle for Approved Persons. But the more gravely damaging allegation against Mr Macris is not repeated. Yet, by contrast, there, in the published decision notice given to the bank, the allegation remains. Apparently Mr Macris, whose employment by the bank has long since been terminated, cannot challenge it in any way. He cannot sue the Authority for damages, whether in tort or otherwise, because it has not acted in bad faith: paragraph 25 of Schedule 1ZA to the Act. And, by the decision of the court today, he is not entitled to third party status under section 393 of the Act. Nor would Mr Macris have been entitled to third party status by application of the Authoritys ordinary reader test. I see no merit in the Authoritys submission that, even if ordinary market operators were to conclude that he was the individual to whom the decision notice referred, Mr Macris should fail to secure third party status because ordinary readers would not reach a similar conclusion. In my view the proper construction of the word identifies in section 393(1)(a) and (4)(a) of the Act requires that the question at the second stage of the inquiry should be answered by reference to the ordinary market operator test. But the test requires expansion in order to identify, and in particular to limit, the information to which the operator should refer. In essential agreement with Lord Mance at para 37, I would expand it as follows: Are the words in the notice such as would reasonably lead an operator in the same sector of the market who is not personally acquainted with the applicant, by reference only to information in the public domain to which he would have ready access, to conclude that the individual referred to in the notice is the applicant? It is easy to pick holes in my formulation of the above question. In their application to particular facts, its references to the same sector, to personal acquaintanceship and to ready access to information might all give rise to debate. But, for my part, I am unpersuaded that it would be impossible for the Authority satisfactorily to address that question; for it will not have reached the stage of giving a notice before having conducted a profound examination of the relevant circumstances. Above all, however, my formulation would, if I may say so, have better struck, as between individual reputation and regulatory efficiency, the fair balance which the Authority has correctly identified to have been Parliaments intention. Were I correctly to have formulated the question at the second stage of the inquiry, the answer to it would be yes, the individual referred to in the notices is Mr Macris. There is no doubt that the two deponents in support of Mr Macris, each of whom knew him and had worked with him, could not have contributed to an affirmative answer. But there was also the report of the US Senate Permanent Subcommittee on Investigations dated 15 March 2013 and entitled JP Morgan Chase Whale Trades: A Case History of Derivatives Risks and Abuses. As Judge Herrington said, the report was the subject of an in depth investigation; was readily accessible on the subcommittees website; and contained many (in fact more than 80) references to Mr Macris. It had generated significant press attention. By cross reference to the report, the ordinary market operator would readily conclude that the references in the notices to CIO London management were references to Mr Macris. When, for example, the notices referred to the despatch by CIO London management of an e mail on 30 March 2012, the subcommittee report referred to its despatch by Achilles Macris. I do not share the concern of Lord Mance, expressed at para 39, that the report might not have been readily available to market operators in the UK; and I agree with the qualified acknowledgement by Lord Neuberger, at para 30, that it would provide an affirmative answer to my formulation of the question. Nor do I join my colleagues in concluding that Mr Macris fails even to pass the first stage of the inquiry, which requires him to establish that, by reference only to the terms of the notices, the Authoritys criticisms of CIO London management refer to an individual. The Authority secured permission from the Court of Appeal to challenge the tribunals conclusion that Mr Macris had passed the first stage; but its challenge failed. In its Grounds of Appeal to this court there was no suggestion of any aspiration to mount a further challenge in this respect. Indeed in my view, had permission to do so been sought, it would have been refused; it does not raise a point of general public importance. I consider that, although good arguments relevant to the inquiry at the first stage have run both ways, it is no longer open to the Authority to dispute the passage of Mr Macris through it. So I would have dismissed the appeal.

In 2012 Mr Macris was the International Chief Investment Officer of JP Morgan Chase Bank NA and, in that capacity, head of the banks Chief Investment Office (CIO International). Part of CIO Internationals function was to manage a portfolio of traded credit instruments called the Synthetic Credit Portfolio. The Financial Conduct Authority (FCA) is responsible for the statutory regulation of the United Kingdoms financial markets, deriving its powers from the Financial Services and Markets Act 2000 (the Act), as amended by the Financial Services and Markets Act 2012. Over the course of 2012 the Synthetic Credit Portfolio made losses of $6.2 billion and, following an investigation, the FCA concluded that the loss was caused by, amongst other things, a high risk trading strategy, weak management of that trading and an inadequate response to information which should have alerted the bank to the problems. The FCA agreed a regulatory settlement with the bank, under which it paid a penalty of 137,610,000. The provisions of the Act governing the imposition of penalties provide for three successive notices to be given to a person or firm under investigation, all of which include extensive reasons for the FCAs actions. Where a regulatory settlement is agreed before service of these notices, the usual procedure is to draft them in identical terms and serve them simultaneously. That practice occurred in this case on 18 September 2013. Where such notices contain material discreditable to particular individuals not party to the settlement, the Act makes provision under section 393 to protect these persons from unfair prejudice. When the notice identifies such a person, they must be given a copy of the notice, to enable them to make representations to the regulator and take the matter before the Upper Tribunal. These notices did not identify Mr Macris by name or job title, but there were multiple references to CIO London management, a category to which he belonged He was not supplied with a copy of the notice served on the bank or given an opportunity to make representations. He brought a claim before the Upper Tribunal, which heard as a preliminary issue the question of whether he was entitled to be notified under section 393. The Upper Tribunal upheld the complaint on the basis that the references to CIO London management would be taken by a reader with relevant experience to refer to the most senior individual involved. The Court of Appeal agreed in the result, but based their reasoning in part on an analogy with the law of defamation. This led them to conclude that persons who operated in Mr Macris field would reasonably have been able to identify Mr Macris from statements made in the notice in conjunction with publicly available material. The FCA appealed to the Supreme Court. By a majority of 4 to 1, the Supreme Court allows the FCAs appeal. Lord Sumption gives the lead judgment, with which Lord Neuberger and Lord Hodge agree. Lord Neuberger adds a concurring judgment and Lord Wilson gives a dissenting judgment. Lord Mance writes a judgment concurring with the majority in the outcome of the appeal, but agreeing with Lord Wilson on the issue of law. Lord Sumption holds that a person is identified in a notice under section 393 if he is identified by name or by a synonym for him, such as his office or job title. In the case of a synonym it must be apparent from the notice itself that it could only apply to one person and that person must be identifiable from information which is either in the notice or publicly available elsewhere. However, resort to information publicly available elsewhere is permissible only where it enables one to interpret (as opposed to supplement) the language of the notice. It is not permissible to resort to additional facts about the person so that if those facts and the notice are placed side by side it becomes apparent that they refer to the same person [11]. Lord Sumption gives five reasons: (i) section 393 defines what fairness requires in the context of notices issued by the FCA [12]; (ii) it is clear from the provision that it must be the reasons contained in the notice which identify the third party and not an extrinsic source [13]; (iii) the Act must be read in a manner which enables the FCA to ensure that a third party is not identified in the notice, when it does not know precisely what information is available elsewhere [14]; (iv) the relevant audience for publication is the public at large, not a specific industry sector specially familiar with the third party or his business [15]; and (v) the suggested analogy with the law of defamation is not helpful given its different purpose to that of section 393 of the Act [16]. Lord Neuberger points out that the wider the scope of section 393(1)(a), the more constraining it will be on the FCAs activities; but the narrower it is the greater the number of individuals who will be at risk of being harmed by notices without any recourse [23]. The question to be asked is: does the notice identify the individual in question? The statutory language appears to stipulate that the person must be identified in the notice, not that he must be identifiable as a result of the notice [25]. Lord Neuberger describes the test as whether the individual is named in the notice, or the description in the notice must be equivalent to naming him. An individual is identified in a document if: (i) his position or office is mentioned, (ii) he is the sole holder of that position or office, and (iii) reference by members of the public to freely and publicly available sources of information would easily reveal the name of that individual by reference to his position or office [26]. Lord Neuberger also points to a number of problems if a wider meaning is adopted: (i) it would be a matter of subjective assessment as to how wide a scope to give it; (ii) it could self evidently lead to disputes; (iii) it could lead to some odd consequences; (iv) it would place the FCA in difficulty from the outset; and (v) it could still lead to arbitrary outcomes [28]. Lord Wilson dissents on the ground that the majoritys approach does not strike a fair balance between individual reputation and regulatory efficiency [44]. The central issue of construction in the appeal relates to the appropriate constituency whether it is ordinary readers or ordinary market operators who would conclude that the individual to whom the notice refers is the applicant [59]. The answer is by reference to the particular sort of damage which a wrong criticism of an individual by a notice is likely to cause him: that from within the sector of the market in which he operates [60]. Lord Wilson agrees in essence with the formulation of Lord Mance: the key question being are the words in the notice such as would reasonably lead an operator in the same sector of the market who is not personally acquainted with the applicant, by reference only to information in the public domain to which he would have ready access, to conclude that the individual referred to in the notice is the applicant [63]? However, in his application of that test, Lord Mance concludes that CIO London management did not equate with or identify Mr Macris, and that no information had been shown to exist in the public domain which, when read with the notice, identified him with CIO London Management. [39]. On this basis, Lord Mance agrees with the majority in the outcome of the appeal.

8k-16k

This appeal raises three questions. The first is whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should be required to consider the proportionality of evicting the occupier, in the light of section 6 of the Human Rights Act 1998 and article 8 of the European Convention on Human Rights (the Convention). The second question is whether, if the answer to the first question is yes, the relevant legislation, in particular section 21(4) of the Housing Act 1988, can be read so as to comply with that conclusion. The third question is whether, if the answer to the first and second questions is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. The factual and procedural background The substantive facts The appellant, Fiona McDonald, is aged 45 and, sadly, she has had psychiatric and behavioural problems since she was five. Dr Peter Sargent, an experienced psychiatrist, explained in his expert evidence that she had an emotionally unstable personality disorder and at times when her mental state has deteriorated she has presented with frank psychotic symptoms. She has been unable to hold down any employment, and has not worked since 1999; since that time she lost two public sector tenancies owing to her behaviour. In those circumstances, her parents, who are technically the respondents to this appeal, decided to buy a property for her to occupy. Accordingly, in May 2005, they purchased 25 Broadway Close, Witney (the property) with the assistance of a loan from Capital Home Loans Ltd (CHL), which was secured by way of a registered legal charge over the property. From about June 2005, the respondents granted the appellant a series of assured shorthold tenancies (ASTs) of the property, on the basis that the rent would be covered by housing benefit. The last of those ASTs was granted in July 2008 for a term of one year from 15 July 2008. The appellant continues to live in the property. The financial arrangements between the respondents and CHL were that the respondents were to pay interest on the loan by way of monthly instalments, and that the loan was to be repayable in full after eight years ie on 12 May 2013. Initially, the respondents paid the interest instalments as they fell due. However, owing to financial difficulties which they unfortunately encountered in their business, they failed to meet all the interest as it fell due. Accordingly, in August 2008, CHL appointed Andrew Hughes and Julian Smith (the Receivers) to act as receivers of the property under section 109 of the Law of Property Act 1925. Having been appointed under that provision, the Receivers, although appointed by the chargee, CHL, were entitled to take steps in relation to the property on behalf of, and in the name of, the chargors, the respondents. As the rent was being regularly paid, and the arrears of interest were not substantial, the Receivers took no immediate steps to end the AST or to sell the property. However, not least because the arrears persisted, albeit not on a very large scale, the Receivers served a notice, in the name of the respondents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property. The notice was served under section 21 of the Housing Act 1988 (the 1988 Act) and it expired on 14 March 2012. The procedural history On the expiry of that notice, the Receivers then issued the instant proceedings, again in the names of the respondents, for possession of the property in the Oxford County Court. In the light of the appellants mental health, her brother, Duncan McDonald, was appointed her litigation friend. The proceedings came on for trial before His Honour Judge Corrie, who heard them on 4 December 2012 and 7 March 2013. The evidence of Dr Sargent included the following passages, which were quoted by the judge in his judgment: [Homelessness], I am sure, would have a major detrimental effect on [the appellants] mental health and she would decompensate entirely, very probably requiring admission to hospital. I think that if she was evicted from the current accommodation she would have real difficulty in finding alternative rented accommodation that would accept her on benefits and in view of her mental health history including at times aggression towards others. I think that there is a significant possibility that she would become homeless as a consequence. Even if alternative accommodation is found for her, I think that the stress and upheaval of trying to find and move into alternative accommodation would also very likely have a significantly detrimental effect on her mental health with the possibility of harm to herself or suicide, or the possibility of violence towards others which she has exhibited on a number of occasions when she has previously de compensated under stress. Judge Corrie gave judgment on 22 April 2013. In his judgment, he considered a number of issues which are no longer live between the parties, including whether the respondents had misled CHL (they had not), and whether the Receivers had had authority to serve the notice and bring the proceedings (they had). Accordingly, the judge concluded that, subject to the appellants reliance on article 8, the court had no alternative to make an order for possession. He then turned to consider the appellants article 8 case, and held that it was not open to her to require the court to consider the proportionality of making an order for possession against a residential occupier, given that the person seeking possession was not a public authority. He went on to hold that, if he was wrong on that issue, and he had been entitled to consider the proportionality of making an order for possession, he would have dismissed the action, because, on balance, he would have taken the view that those circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. The appellant appealed to the Court of Appeal, who dismissed the appeal [2014] EWCA Civ 1049; [2015] Ch 357. The main judgment was given by Arden LJ, Tomlinson LJ gave a brief concurring judgment, and Ryder LJ gave a concurring judgment agreeing with them both. The Court of Appeal agreed with the judge that article 8 could not be invoked by a residential occupier in possession proceedings brought by a private sector landowner, as a ground for opposing the making of, or the terms of, the order for possession. However, they considered that, if article 8 could have been invoked in this case, the judge would have been wrong to dismiss the claim as he had indicated that he would have done. The appellant now appeals to this court. Before turning to the three issues identified in para 1 above, it is appropriate to explain the relevant provisions of the 1988 Act, and, albeit in very summary terms, the history of the policy of successive Governments towards renting in the private sector. Private sector residential tenants and the relevant statutory provisions Government policy since 1977 In the late 1970s, residential tenants in England and Wales had two forms of protection, which applied even if their tenancies had contractually expired, namely (i) protection from summary eviction and (ii) security of tenure. The first, which applied to all residential tenants and most licensees, was under the Protection from Eviction Act 1977, which, among other things, precluded their eviction other than through court proceedings. That statute remains in force, and, although it has been amended from time to time (sometimes for the purpose of strengthening or extending), its original provisions remain substantially in place. There were also statutory provisions governing the amount of time which a court could allow an occupier before an order for possession took effect and could be executed. Security of tenure, which only applied to tenants with private sector landlords, was accorded by the Rent Act 1977, whose provisions extended to most but not all such tenancies. In very summary terms, that Act (i) precluded a court making an order for possession against most such tenants unless one or more of a number of specified grounds could be established, (ii) permitted family members to succeed on the death of the tenant in some circumstances, and (iii) limited the level of rent which a landlord could recover from the tenant, often to a rate considerably below the market level. Under Chapter II of Part I of the Housing Act 1980, later replaced by Part IV of the Housing Act 1985, residential public sector tenants were for the first time given a substantially similar degree of security of tenure. In 1987, the Conservative government published a White Paper, Housing: The Government's Proposals (Cm 214, 1987). One of its principal aims was to reverse the decline of rented housing and to improve its quality para 1.1. An important part of its thesis was that the protection afforded to tenants by the Rent Act 1977 and similar predecessor legislation, not least because of the security of tenure thereby afforded to tenants, had greatly reduced both the supply and the quality of housing in the private rented sector, which was to the disadvantage of residential tenants as a group paras 1.8 and 3.1. The 1987 White Paper therefore made proposals which were intended according to para 1.15 to ensure that the letting of private property will again become an economic proposition. The White Paper therefore proposed two new types of tenancy, namely (i) an assured tenancy, which would be at a freely negotiated rent, but with the tenant having security of tenure (albeit somewhat more attenuated than under the Rent Act 1977), and (ii) an AST, under which the tenant would have very limited security of tenure, and either party could have an appropriate rent determined (which would be substantially less restricted than the rent fixed under the Rent Act 1977) para 3.11. The Bill which became the 1988 Act was introduced to give effect to these proposals (as well as giving effect to other proposals). As originally enacted, the 1988 Act defined an AST as being a fixed term tenancy for at least six months, which could not be determined earlier by the landlord, and in respect of which the tenant had been given a notice in a prescribed form before the tenancy was granted. The 1988 Act set out a number of grounds upon which a landlord could seek possession against a tenant under a shorthold tenancy (including an AST); it also contained provision for the landlord to serve a notice seeking possession at any time after the contractual term of an AST had expired, and then provided that the court should grant possession. (Housing Associations which had previously been treated as public sector landlords were brought into the ambit of the 1988 Act by section 140(2) and Schedule 18). In 1995, the Conservative government published another White Paper, Our Future Homes: Opportunity, Choice and Responsibility (Cm 2901, 1995). This White Paper noted the increase in the number of private sector tenancies in the residential sector between 1988 and 1994, and ascribed it largely to the 1988 Act, which had made renting out property a much more attractive alternative for owners p 21. It also emphasised the need to reduce unnecessary regulation and control p 24. The 1995 White Paper led to provisions in the Housing Act 1996 (the 1996 Act), whose effect was that (subject to exceptions) all assured tenancies granted after March 1997 would be ASTs; the 1996 Act also abolished the requirements for a six month minimum term and for the service of a prescribed notice (although it gave some protection under section 21(5) and it also required certain information to be given to tenants). At the same time, an accelerated procedure was introduced whereby landlords could obtain possession against tenants under ASTs which had been the subject of notice of determination (see CPR 55.11 to 55.19 and CPR PD55A). Around the same time, the so called buy to let sector began in earnest, and it subsequently has undergone an expansion, reflecting the structural and demographic trends towards a larger [private rental sector] according to a Treasury consultation paper, Financial Policy Committee powers of direction in the buy to let market, published in December 2015. Following the general election in 1997, the Labour Government stated that it did not intend to reverse the reforms affected by the 1988 and 1996 Acts, but rather to build on them by promoting choice in both the public and private sectors, to quote from para 2.68 of a Law Commission Consultation Paper No 162 Renting Homes 1: Status and Security (2002), citing a paper published by the Department for Transport, Local Government and the Regions, Quality and Choice: A Decent Home for All, The Way Forward for Housing (December 2000). That policy was continued by the Coalition government in 2010 and there is no reason to think that the Conservative government, elected in 2015, has different ideas. Accordingly, since 1996, although the 1988 Act has been amended from time to time, its basic provisions have remained unaffected and continue to apply in England. (The Welsh Assembly has enacted a scheme based upon the Law Commissions recommendations on Renting Homes: The Final Report (2006, Law Com No 297) which preserves essentially the same distinction between private and public sector tenancies.) Successive reports emanating from government departments have claimed that the decrease in statutory protection effected by the 1988 and 1996 Acts has been at least one of the factors which has served to reinvigorate the private residential rented sector in England and Wales over the past 25 years see eg the annual English Housing Surveys issued by the Department for Communities and Local Government. The Housing Act 1988 in its current form Chapters I and II of Part I of the 1988 Act are concerned with assured tenancies generally and ASTs respectively. Section 1 provides that a tenancy under which a dwelling house is let as a separate dwelling to an individual or individuals, who occupy it as her or their only or principal home is an assured tenancy, subject to certain specified exceptions (including cases where a local authority is the landlord). None of those exceptions apply here. Section 19A (as inserted by section 96(1) of the 1996 Act) provides that, subject to certain irrelevant exceptions, an assured tenancy entered into after March 1997 shall be an AST. Section 5 of the 1988 Act (as amended by section 299 of, and paragraph 6 of Schedule 11 to, the Housing and Regeneration Act 2008) is in these terms, so far as relevant: (1) An assured tenancy cannot be brought to an end by the landlord except by (a) obtaining an order of the court for possession of the (i) dwelling house under section 7 or 21, the execution of the order, and (ii) and, accordingly, the service by the landlord of a notice to quit is of no effect in relation to a periodic assured tenancy. (1A) Where an order of the court for possession of the dwelling house is obtained, the tenancy ends when the order is executed. (2) comes to an end otherwise than by virtue of If an assured tenancy which is a fixed term tenancy an order of the court [of] the kind mentioned in (a) subsection(1)(a) , or (b) tenant, a surrender or other action on the part of the then, subject to section 7 and Chapter II below, the tenant shall be entitled to remain in possession of the dwelling house let under that tenancy and his right to possession shall depend upon a periodic tenancy arising by virtue of this section. Section 7(1) of the 1988 Act provides that [t]he court shall not make an order for possession of a dwelling house let on an assured tenancy except on one or more of the grounds set out in Schedule 2. Section 7(3) (as amended by paragraph 18 of Schedule 11 to the Anti social Behaviour, Crime and Policing Act 2014) requires the court to make an order for possession if any of those grounds is made out, subject, inter alia, to any available defence based on the tenants Convention rights, within the meaning of the Human Rights Act 1998. Section 7(6) provides that a landlord can only rely on section 7 if the AST has expired or could be brought to an end on the ground on which possession is sought. A common ground relied on under section 7 is arrears of rent, which represent a mandatory ground for possession if the rent is more than a specified period, between eight weeks and three months (depending on how frequently it is to be paid), in arrear see ground 8 of Schedule 2. Section 19A provides that (subject to certain exceptions which are irrelevant for present purposes) an assured tenancy entered into after March 1997 is an AST. Section 20A (as inserted by section 97 of the 1996 Act) requires a landlord under such a tenancy to provide the tenant with certain information in writing, failing which the landlord is liable to be convicted. Section 21(1) of the 1988 Act (as amended by section 193 of, and paragraph 103 of Schedule 11 to, the Local Government and Housing Act 1989 and section 98(2) of the 1996 Act) states at the time of the service of notice and the hearing in the County Court in this case: [O]n or after the coming to an end of an assured shorthold tenancy which was a fixed term tenancy, a court shall make an order for possession of the dwelling house if it is satisfied (a) that the assured shorthold tenancy has come to an end and no further assured tenancy (whether shorthold or not) is for the time being in existence, other than an assured shorthold periodic tenancy (whether statutory or not); and (b) the landlord has given to the tenant not less than two months notice in writing stating that he requires possession of the dwelling house. (Various other restrictions on a courts power to order possession in relation to an AST have been added by the Housing Act 2004, the Deregulation Act 2015 and the Assured Shorthold Tenancy Notices and Prescribed Requirements (England) Regulations (SI 2015/1646) but nothing hangs on them for period proposed.) Section 21(4) (as amended by section 98(3) of the 1996 Act) is at the centre of this case. It states that: Without prejudice to any such right as is referred to in subsection (1) above, a court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if the court is satisfied (a) that the landlord has given to the tenant a notice in writing stating that, after a date specified in the notice, being the last day of a period of the tenancy and not earlier than two months after the date the notice was given, possession of the dwelling house is required by virtue of this section; and that the date specified in the notice under (b) paragraph (a) above is not earlier than the earliest day on which, apart from section 5(1) above, the tenancy could be brought to an end by a notice to quit given by the landlord on the same date as the notice under paragraph (a) above. Accordingly, a landlord under an AST can obtain an order for possession from a court against the tenant either (i) under section 21, after giving two months notice once the AST has come to an end, or (ii) under section 7, where the AST is a periodic tenancy or has come to an end or could be brought to an end, and one of the specified grounds is made out by the landlord. In practice, the majority of possession proceedings issued against tenants who have been granted ASTs are brought under section 21 rather than section 7. Chapter IV of the 1988 Act reinforces the protection to residential tenants afforded by the Protection from Eviction Act 1977. In particular, it imposes a fairly steep measure of damages on a landlord who unlawfully evicts a residential occupier, and extends the ambit of the offence of harassment. It is also relevant to refer to section 89(1) of the Housing Act 1980 which applies to possession orders against tenants under ASTs. That section provides that, subject to certain exceptions (which do not include orders for possession in respect of an AST): Where a court makes an order for the possession of any land , the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than 14 days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. The issues In summary terms, the appellants argument is that, when considering whether to make an order for possession against her, and if so on what terms, the judge should have taken into account the proportionality of making any such order, bearing in mind in particular article 8 and the interference which would be occasioned by the making of the order to her enjoyment of her home, and that, had he done so, he would have been entitled to refuse to make an order for possession and to dismiss the claim. The effect of this argument would be that, despite the apparently mandatory requirements of section 21(4) of the 1988 Act (set out in para 25 above), the judge could have refused to make an order for possession in favour of the respondents, or, despite the apparently mandatory terms of section 89(1) of the 1980 Act (set out in para 28 above), he could have suspended or delayed the operation of the order for possession for a substantial, or even an indeterminate, period. This argument gives rise to the three issues set out at para 1 above. We shall take them in turn. The first issue: can the appellant rely on proportionality? Introductory Article 8 of the Convention provides as follows: 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. Section 6(1) of the Human Rights Act 1998 provides that [i]t is unlawful for a public authority to act in a way which is incompatible with a Convention right, which, of course, includes an article 8 right. Section 6(1) is subject to subsection (2), which provides that subsection (1) does not apply if the authority is required so to act as a result of primary legislation or provisions made thereunder which cannot be construed in any other way. Where the party seeking possession of residential property is a local authority, or other public authority within the meaning of section 6 of the Human Rights Act 1998, it is now well established that it is, in principle, open to the occupier to raise the question whether it is proportionate to make an order for possession against her, and if it is, to invite the court to take that into account when deciding what order to make. That is the effect of the decisions of this court in Manchester City Council v Pinnock [2011] 2 AC 104 and Hounslow London Borough Council v Powell [2011] 2 AC 186. Pinnock represented the resolution of a protracted inter judicial dialogue between the House of Lords and the Strasbourg court, discussed in paras 25 50. The view originally taken by the House of Lords was that, although a claim for possession of residential property by a local authority engaged the article 8 right of the residential occupier, the proportionality of making an order for possession was already taken into account by Parliament through the legislation which limited the landlords right to obtain possession. However, the Strasbourg court took the view that the existence of the legislation did not prevent an occupier in such a case from raising her article 8 rights when possession of her home was being sought. In Pinnock, para 49, this court concluded that, in the light of the Strasbourg courts clear and constant jurisprudence, if our law is to be compatible with article 8, where a court is asked to make an order for possession of a persons home at the suit of a local authority, the court must have the power to assess the proportionality of making the order, and, in making that assessment, to resolve any relevant dispute of fact. However, the Supreme Court also made it clear in paras 51 and 54 that it would only be in very highly exceptional cases that it will be appropriate for the court to consider a proportionality argument and that where the local authority is entitled to possession as a matter of domestic law, there will be a very strong case for saying that making an order for possession would be proportionate. In Pinnock, it was made clear that the Supreme Courts conclusion, that proportionality should, if raised, be addressed (albeit that in the great majority of cases it could and should be summarily rejected) in every possession action against a residential occupier, only applied in cases where the person seeking possession was a local authority or other public authority. That was because section 6(1) of the 1998 Act only applied to a public authority, which is unsurprising, given that the Convention is intended to protect individual rights against infringement by the state or its emanations. Thus, in Pinnock, para 50, the Supreme Court made it clear that nothing said in the judgment in that case was intended to bear on cases where the person seeking the order for possession is a private landowner, and added that it was preferable for this court to express no view on the issue until it arises and has to be determined. The present appeal raises that issue, and it therefore now falls to be determined. A private sector landlord, such as the respondents, who are individuals, or CHL, which is a limited company trading for profit, is not a public authority. However, the appellant argues that, because a court is specifically included within the expression public authority by section 6(3)(a) of the 1998 Act, no judge can make an order for possession of a persons home without first considering whether it would be proportionate to do so, and, if so, what terms it would be proportionate to include in the order. Again, it can be said with some force that this is not, at least on the face of it, a particularly surprising proposition, as a domestic court would be regarded by the Strasbourg court as part of the state, and therefore obliged to respect individual rights enshrined in the Convention. Accordingly, runs the appellants argument, in terms of article 8 proportionality, the position of a private sector residential tenant facing eviction is quite similar to that of a public sector residential tenant, as determined in Pinnock and Powell. Having said that, it is, I think, accepted by the appellant that the position of a private sector tenant is rather weaker in that a private sector landlord can claim that any delay in giving him possession of the property to which he is entitled would be an interference with his rights under article 1 of the First Protocol to the Convention (A1P1), which provides as follows: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a state to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. Accordingly, as Ms Bretherton QC accepts on behalf of the appellant, unlike in the case of a public sector landlord, a judge invited to make an order for possession against a residential occupier by a private sector landlord would, if the appellants argument is correct, have to balance the landlords A1P1 rights against the occupiers article 8 rights. Either party would have a potential claim against the United Kingdom in Strasbourg if the balance were struck in the wrong place. Preliminary view In the absence of any clear and authoritative guidance from the Strasbourg court to the contrary, we would take the view that, although it may well be that article 8 is engaged when a judge makes an order for possession of a tenants home at the suit of a private sector landlord, it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where, as here, there are legislative provisions which the democratically elected legislature has decided properly balance the competing interests of private sector landlords and residential tenants. In effect the provisions of the Protection from Eviction Act 1977, section 89 of the Housing Act 1980 and Chapters I and IV of the 1988 Act, as amended from time to time, reflect the states assessment of where to strike the balance between the article 8 rights of residential tenants and the A1P1 rights of private sector landlords when their tenancy contract has ended. (It is true that the balance was initially struck in statutes enacted before the 1998 Act came into force in 2000. However, the effect of those statutes has not only been considered and approved in government reports since 2000, as mentioned in para 19 above, but they have been effectively confirmed on a number of occasions by Parliament, when approving amendments to those statutes since 2000). To hold otherwise would involve the Convention effectively being directly enforceable as between private citizens so as to alter their contractual rights and obligations, whereas the purpose of the Convention is, as we have mentioned, to protect citizens from having their rights infringed by the state. To hold otherwise would also mean that the Convention could be invoked to interfere with the A1P1 rights of the landlord, and in a way which was unpredictable. Indeed, if article 8 permitted the court to postpone the execution of an order for possession for a significant period, it could well result in financial loss without compensation for instance if the landlord wished, or even needed, to sell the property with vacant possession (which notoriously commands a higher price than if the property is occupied). The contrary view would also mean that article 8 could only be invoked in cases where a private sector landowner, or other private sector entity entitled to possession in domestic law, was either required by law, or voluntarily chose, to enforce its rights through the court, as opposed to taking the law into its own hands eg by changing the locks when the residential occupier was absent. There are a number of types of residential occupiers who are not protected by the Protection from Eviction Act 1977, and who can therefore be physically (albeit peaceably) evicted, such as trespassers, bare licensees, sharers with the landlord and some temporary occupiers, as well, it appears, as mortgagors see Ropaigealach v Barclays Bank plc [2000] 1 QB 263. The risk of otherwise facing an article 8 defence seems a somewhat perverse incentive for a private sector landowner to take the unattractive course of locking out the occupier rather than the more civilised course of seeking possession through the courts. More broadly, it would be unsatisfactory if a domestic legislature could not impose a general set of rules protecting residential tenants in the private sector without thereby forcing the state to accept a super added requirement of addressing the issue of proportionality in each case where possession is sought. In the field of proprietary rights between parties neither of whom is a public authority, the state should be allowed to lay down rules which are of general application, with a view to ensuring consistency of application and certainty of outcome. Those are two essential ingredients of the rule of law, and accepting the appellants argument in this case would involve diluting those rules in relation to possession actions in the private rented sector. It is, of course, true that a court, which is a public authority for the purposes of the 1998 Act (and is regarded as part of the state by the Strasbourg court), actually makes the order for possession which deprives the tenant of his home and indeed puts an end to the AST. However, as Lord Millett explained in Harrow London Borough Council v Qazi [2004] 1 AC 983, paras 108 109, the court is merely the forum for the determination of the civil right in dispute between the parties and once it concludes that the landlord is entitled to an order for possession, there is nothing further to investigate. This conclusion does not mean that a tenant could not contend that the provisions of the 1988 Act did not, for some reason, properly protect the article 8 rights of assured shorthold tenants: that would involve arguing that the legislature had not carried out its obligations under the Convention. However, quite rightly, no such argument was advanced on behalf of the appellant in this case. As the summary in paras 11 19 above shows, the Governments approach to the private rented sector in England has been designed to confer a measure of protection on residential occupiers, without conferring so much protection as to deter private individuals and companies from making residential properties available for letting. The extent of the protection afforded to tenants under ASTs is significant, if limited, and it enables both landlords and tenants to know exactly where they stand. While there will of course occasionally be hard cases, it does not seem to us that they justify the conclusion that in every case where a private sector landlord seeks possession, a residential tenant should be entitled to require the court to consider the proportionality of the order for possession which she has agreed should be made, subject to what the legislature considers appropriate. Of course, there are many cases where the court can be required to balance conflicting Convention rights of two parties, eg where a person is seeking to rely on her article 8 rights to restrain a newspaper from publishing an article which breaches her privacy, and where the newspaper relies on article 10. But such disputes arise not from contractual arrangements made between two private parties, but from tortious or quasi tortious relationships, where the legislature has expressly, impliedly or through inaction, left it to the courts to carry out the balancing exercise. It is in sharp contrast to the present type of case where the parties are in a contractual relationship in respect of which the legislature has prescribed how their respective Convention rights are to be respected. Given that that is our view as a matter of principle, it is necessary to consider the jurisprudence of the Strasbourg court to see whether it points to a different conclusion. The Strasbourg jurisprudence There are two admissibility decisions of the European Commission on Human Rights which are inconsistent with the appellants case, and are understandably relied on by Mr Jourdan QC for the respondents. They are Di Palma v United Kingdom (1986) 10 EHRR 149 and Wood v United Kingdom (1997) 24 EHRR CD 69. Di Palma was a case where a private sector landlord forfeited a long and valuable residential lease for non payment of a relatively small amount of service charge, and the court refused the tenant relief from forfeiture owing to her refusal to apply within the statutorily prescribed time. The Commission rejected the tenants application, which was based on articles 6, 8, 13 and 14 and on A1P1, as manifestly ill founded, as the Governments Convention responsibilities were not engaged by an exclusively private law relationship between the parties (p 154). The Commission also said that the fact that a domestic court made the orders granting forfeiture and refusing relief made no difference, as the court merely provided a forum for the determination of the civil right in dispute between the parties (p 155). In Wood, the same reasoning led to the conclusion that a mortgagor had no article 8 complaint if a private sector mortgagee sought and obtained possession of her home in circumstances in which she had failed to pay instalments due under the mortgage, which gave the mortgagee the right to seek possession as a matter of domestic law. If these decisions represent the view in Strasbourg, they would be fatal to the appellants case. However, Ms Bretherton QC contends that the Strasbourg jurisprudence has developed in a very different direction over the past 15 years. So far as possession actions brought by public sector landlords are concerned, this is undoubtedly correct, as the decisions discussed in Pinnock, paras 31 43, demonstrate. However, as we have explained, and as Ms Bretherton fairly accepts, there is a fundamental difference between public sector landlords (who owe their residential tenants an article 8 duty) and private sector landlords (such as those in the two admissibility decisions described in para 48 above, who do not). Accordingly, we do not consider that the decisions concerning cases where a public sector landlord seeks possession are of much relevance. Of those decisions discussed in Pinnock, it appears to us therefore that Connors v United Kingdom (2004) 40 EHRR 9, Blei v Croatia (2006) 43 EHRR 48, McCann v United Kingdom (2008) 47 EHRR 40, osi v Croatia (2011) 52 EHRR 39, Pauli v Croatia (Application No 3572/06) (unreported) 22 October 2009 and Kay v United Kingdom [2011] HLR 13 take matters little further for present purposes, as the party seeking possession was a public institution. The same applies to the decisions in Orli v Croatia [2011] HLR 44 and in Buckland v United Kingdom (2013) 56 EHRR 16 (where the local authority owned the site see para 60). The furthest any observations in those eight decisions can be said to go for present purposes is to support the notion that, whenever an order for possession is made by a court, article 8 is engaged. However, observations which appear to have that effect when read on their own in the context of claims by public authorities, cannot be confidently translated to cases involving private sector landlords seeking to enforce a contractual right to possession subject to legislative constraints. And, even if they can be so read, they beg the question whether a domestic court can be required to take into account the proportionality of making the order for possession required by the contractual terms as softened by domestic legislation. Zehentner v Austria (2009) 52 EHRR 22 is at first sight of some assistance to the appellant, because the Strasbourg court held that article 8 rights could be invoked where the court had ordered a sale of the applicants home to reimburse her creditors. However, quite apart from the fact that Austria does not seem to have challenged the contention that article 8 was engaged, the case was not concerned with the enforcement of a landlords right to possession, but with statutorily created powers of a court to enforce debts owed to creditors by ordering the sale of the debtors assets, including her home. The basis of the courts finding of incompatibility was that the decision of the domestic court refusing the applicant any opportunity to pay off what was owing to her creditors had been disproportionate, principally in the light of the absence of any procedural safeguards and the applicants mental incapacity, which meant that the debts were unenforceable see paras 61 65. The furthest this decision goes in assisting the appellant is to support the notion that article 8 is engaged whenever a court determines a tenancy of residential property and makes an order for possession. However, once again, the decision does not support the notion that article 8 can be invoked by a residential occupier to curb her private sector landlords reliance on its contractual right to possession, where the statutory regime according her a degree of protection is not said to infringe the Convention. Zrili v Croatia (Application No 46726/11) (unreported) 3 October 2013 is unhelpful for the same sort of reasons. It involved the partition and sale of a residential property. Croatia does not seem to have challenged the contention that article 8 could be invoked by the applicant, once she established that the property concerned was her home (see paras 42 and 59). Quite apart from this, the case involved the domestic court exercising its own powers of partition and sale, rather than enforcing the contractual rights of the parties subject to specific legislative protective provisions, and it was a case where both parties had article 8 rights. Thus, in para 65, the Strasbourg court described the domestic courts function as being to seek a partition model which would be feasible and appropriate in the circumstances of the case. In any event, the application was rejected on the merits. In two other cases involving Croatia, article 8 was successfully invoked by a residential tenant against whom a private sector landlord had obtained an order for possession. In Breec v Croatia [2014] HLR 3, the land owner was a private company, but it had been a state owned company when the tenancy was granted a factor which the court plainly thought relevant (see para 48). In any event, Croatia did not rely on the subsequent privatisation to justify an argument that article 8 could not be invoked (see para 33). It therefore seems to us that the judgment in that case can take matters no further on this appeal. The same points can be made about the subsequent decision in Lemo v Croatia (Application No 3925/10, etc) (unreported) 10 July 2014 (see paras 28 and 43). For completeness, it is right to mention Belchikova v Russia (Application No 2408/06) (unreported) 25 March 2010, which also involved a private land owner seeking possession (having inherited the property concerned after the former owners death), but the decision is of no assistance as there appears to have been no challenge to the contention that article 8 could be invoked, it appears that the domestic law may well have involved a balancing exercise, and in any event the application was held to be manifestly ill founded on the facts. It is worth noting concurring opinions in two of the Strasbourg court decisions mentioned above, which are very much in line with Lord Milletts observation in Qazi, cited in para 44 above. In Buckland, para OI 1, Judge De Gaetano said that while it is perfectly reasonable to require that an eviction notice issued by the Government or by a local authority should be capable of being challenged on the grounds of proportionality, when the landlord is a private individual the tenants right should in principle be limited to challenging whether the occupation has in fact come to an end according to law. He added that [i]n this latter case the proportionality of the eviction in light of the relevant principles under article 8 should not come into the equation. In Breec, at pp 37 38, Judge Dedov, having pointed out that the applicant did not challenge the privatisation of the properties, observed that, if the domestic court could hold that it was disproportionate to grant the land owner possession when domestic law entitled him to it, it would represent an interference with the private owners claims, and that it would have amounted to interference with the owners rights and such interference would be arbitrary from the very outset, since the private owner cannot be responsible for the states social obligations. Another decision which deserves mention is Mustafa and Tarzibachi v Sweden (2008) 52 EHRR 24, where the Strasbourg court considered a claim by applicants who had been evicted by a court order at the suit of their landlords, who had determined their tenancy for installing a satellite dish in breach of covenant. The Strasbourg court held that this infringed the applicants article 10 rights, but did not go on to consider their claim in so far as it was based on article 8 (see para 54). It is fair to say that the domestic courts involvement was enough to render the application based on articles 8 and 10 admissible (see paras 33 34). However, as we have already said, that does no more than establish that article 8 is engaged in a case where a private sector claimant seeks possession of a defendants home pursuant to the terms of the contract between them. Beyond that, it does not seem to us that Mustafa is of any assistance. Contrary to the submission on behalf of the appellant, we do not consider that this decision involved holding that article 10 could be invoked to vary the contractual rights as agreed between two private persons, in a case such as the present, where there is no suggestion that the legislature has failed to protect the relevant Convention rights. The effect of the decision in Mustafa, as we see it, was that the Swedish Government had failed to enact legislation to satisfy article 10, so far as individuals rights to receive information by satellite were concerned, and that in those circumstances, unless the court had power to give effect to such rights despite the terms of the relevant contract, the applicants article 10 rights would be infringed (see again para 34). Indeed, it is worth noting that the Strasbourg court in Mustafa considered that para 59 of its earlier judgment in Pla v Andorra (2006) 42 EHRR 25 was in point (see footnote 8). In that paragraph the Strasbourg court said that it could not remain passive where a national courts interpretation of a legal act, be it a testamentary disposition, a private contract, a public document, a statutory provision or an administrative practice appears unreasonable, arbitrary or, as in the present case, blatantly inconsistent with the prohibition of discrimination established by article 14 and more broadly with the principles underlying the Convention. That is a long way from what this case is about. Conclusion on the first issue In these circumstances, while we accept that the Strasbourg court jurisprudence relied on by the appellant does provide some support for the notion that article 8 was engaged when Judge Corrie was asked to make an order for possession against her, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under the provisions of the 1980 and 1988 Acts. Accordingly, for the reasons set out in paras 40 46 above, we would dismiss this appeal on the first issue. This renders it unnecessary to address the second and third issues. However, both issues are of potential importance. The second issue is relevant to many cases when the court is faced with a choice between making an order under section 3 or under section 4 of the 1998 Act. The third issue is of importance in terms of giving guidance to judges faced with an article 8 proportionality argument by a residential occupier in the context of a possession claim by a public sector land owner. Accordingly, we will go on to consider those two issues. The second issue: could section 3 have applied? Section 3(1) of the 1998 Act provides that So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights. The appellant argues that, if this court could read down section 143D(2) of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti social Behaviour Act 2003) in Pinnock and section 127(2) of the same Act in Powell, then there is no reason not to do the same for section 21(4) of the 1988 Act. Their wording is in similarly mandatory terms. Section 21(4) (para 25 above) states that the court shall make an order for possession of a dwelling house let on an assured shorthold tenancy which is a periodic tenancy if satisfied, in effect, that the landlord has served the correct two months notice. Section 143D(2) of the 1996 Act, which relates to demoted tenancies, states that The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Section 127(2) of the 1996 Act, which relates to introductory tenancies, states that The court shall make [an order for possession] unless the provisions of section 128 apply. If those two mandatory provisions can be read down so as to allow for the court to assess the proportionality of making the order, why can section 21(4) not be read in the same way? What is the difference between the notice requirements in section 21(4) and the requirements in sections 143E and 143F or section 128 respectively? This is an attractive argument, so much so that the second interveners, the Residential Landlords Association, are persuaded that section 21(4) could be read in this way (although they argue that it should not). Indeed, we were ourselves initially attracted by it. There are, however, powerful arguments to the contrary. Both demoted and introductory tenancies can only be granted by a public authority landlord. There are three inter linked reasons why decisions made by public authorities under the 1996 Act are different from decisions made by private landlords. First, public authorities are obliged to use their powers lawfully in accordance with the general principles of public law; it is open to a tenant to defend possession proceedings on the ground that the authority has acted unlawfully: see Wandsworth London Borough Council v Winder [1985] AC 461. As Lord Scott of Foscote pointed out in Doherty v Birmingham City Council [2009] 1 AC 367, at para 69, this concept of lawfulness has no application to a private landlord, who is entitled to recover possession of his property in accordance with the law for whatever reason he likes. He is not subject to the constraints of Wednesbury reasonableness: see Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. Second, section 143E of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the 2003 Act) requires the landlord seeking to bring a demoted tenancy to an end to serve a notice giving reasons for doing so and informing the tenant of his right to seek a review of the decision under section 143F (as inserted by paragraph 1 of Schedule 1 to the 2003 Act). Similarly, section 128 of the 1996 Act requires the landlord seeking to bring an introductory tenancy to an end to serve a notice giving reasons and informing the tenant of his right to seek a review. In short, both are reasons based processes. There is nothing equivalent in section 21(4) of the 1988 Act, which is purely mechanical the right form of notice must be given at the right time to expire at the right time. Third, of course, by section 6(1) of the 1998 Act, it is unlawful for a public authority landlord to act incompatibly with the Convention rights. By section 7(1)(b) a person who claims that a public authority has acted or proposes to act in a way which is made unlawful by section 6(1) may rely on the Convention right concerned in any legal proceedings. None of this applies to a private landlord, who is not obliged to act compatibly with the Convention rights. It was for this combination of reasons that this court, in both Pinnock and Powell, held that it was possible to read the relevant provisions of the 1996 Act in such a way as to include the article 8 requirement of proportionality in the courts assessment of the lawfulness of the public authoritys actions in seeking possession. It is true, as the third interveners, Shelter, point out, that there are constraints on a private landlords freedom of action, other than those laid down in section 21(4) itself (an example is the Equality Act 2010, which prohibits unlawful discrimination in bringing possession proceedings). But all of these are laid down by statute or statutory instrument. And none of them imports the public sector obligations, in particular the duty to act compatibly with the Convention rights, set out above. There is therefore not the same flexibility inherent in the language of section 21(4) of the 1988 Act as there is in the language of sections 143D and 127(2) of the 1996 Act such as to enable the court to read into it a requirement that the court consider the proportionality of making an order for possession. More importantly, however, there are substantive limits to what the courts can achieve under section 3(1) of the 1998 Act. It is possible to do a great deal with words. In the leading case of Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, it was possible to read as husband and wife to include two people of the same sex. The courts had already learned what could be achieved by interpretation in order to make statutory provisions conform to a higher law, under the European Communities Act 1972 and in construing the legislation of certain Caribbean islands compatibly with the fundamental rights protected by their Constitutions. As Lord Rodger of Earlsferry put it in Ghaidan at para 119, Such cases are instructive in suggesting that, where the court finds it possible to read a provision in a way which is compatible with Convention rights, such a reading may involve a considerable departure from the actual words. But there is a difference between interpretation, which is a matter for the courts and others who have to read and give effect to legislation, and amendment, which is a matter for Parliament. While the boundary may not always be easy to discern, the difference was neatly encapsulated by Lord Rodger in Ghaidan at para 121: If the court implies words that are consistent with the scheme of the legislation but necessary to make it compatible with Convention rights, it is simply performing the duty which Parliament has imposed on it and on others. It is reading the legislation in a way that draws out the full implications of its terms and of the Convention rights. And, by its very nature, an implication will go with the grain of the legislation. By contrast, using a Convention right to read in words that are inconsistent with the scheme of the legislation or with its essential principles as disclosed by its provisions does not involve any form of interpretation, by implication or otherwise. It falls on the wrong side of the boundary between interpretation and amendment of the statute. Notably, Lord Rodger was looking at the legislation itself when seeking to draw the line, rather than its broader policy. In the case before us, the scheme of the legislation is to draw a careful distinction between those cases in which good grounds must be shown for obtaining possession and those cases, such as this, where no ground need be shown. The essential principles disclosed by its provisions are that private landlords letting property under an AST should have a high degree of certainty that, if they follow the correct procedures and comply with their own obligations, they will be able to regain possession of the property. Reading in an obligation to assess the proportionality of doing so in the light of the personal circumstances of the individual tenant would not go with the grain of the legislation but positively contradict it. All this can be concluded without considering the broader policy of the 1988 Act, which (as we have explained at paras 12 to 19 above) was to stimulate the re growth of the private rented sector and in doing so to increase the supply of homes available to rent. For all those reasons, we conclude that it would not be possible to read section 21(4) in the way contended for by the appellant. Had we been persuaded that it was incompatible with the Convention rights, the only remedy would have been a declaration of incompatibility under section 4. As was said (in a different context) in Powell, at para 64, this is an area where the choice of if, and how, to remedy any incompatibility should be left to Parliament. The third issue: would the judge have been entitled to dismiss the claim? Even supposing that a proportionality assessment were required, at least where the occupier has crossed the high threshold of showing an arguable case, and section 21(4) could be read so as to accommodate it, what should the consequences be? The judge in this case held, that had proportionality arisen, he would on balance have taken the view that the appellants personal circumstances were sufficiently exceptional to justify dismissing the claim for possession on the basis that it was disproportionate. In reaching that obiter conclusion, he did not consider whether there were other solutions to the problems than dismissing the claim. In those rare cases where the court is required to assess the proportionality of making a possession order, the court has at least four possible options. One is to make a possession order, and if it does so, its powers to suspend or postpone the effect of the order are severely limited by section 89(1) of the Housing Act 1980 (set out at para 28 above). In Powell, at para 62, this court held that the language of section 89(1) was so strong that any reading down to enable the court to postpone the execution of a possession order for a longer period than the statutory maximum would go well beyond what section 3(1) of the 1998 Act permits. As Lord Phillips pointed out in Powell at para 103, the effect of section 89(1) is to increase the options available to the court. It may (a) make an immediate order for possession; (b) make an order for possession on a date within 14 days; (c) in cases of exceptional hardship make an order for possession on a date within six weeks; or (d) decline to make an order for possession at all. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between, even when taken as a proportion of those rare cases where proportionality can be successfully invoked. They could only be cases in which the landlords interest in regaining possession was heavily outweighed by the gravity of the interference in the occupiers right to respect for her home. The evidence filed on behalf of Shelter indicates that Pinnock defences hardly if ever succeed against public authority landlords save in combination with some other public law factor (although they may well provide a helpful bargaining counter in particularly deserving cases). Were a proportionality defence to be available in section 21 claims, it is not easy to imagine circumstances in which the occupiers article 8 rights would be so strong as to preclude the making, as opposed to the short postponement, of a possession order. In this case, the judge referred to the fact that the arrears of interest on the mortgage were insubstantial and the rent was always up to date. That is, however, only part of the story. The loan which enabled the appellants parents to buy this house was for a period of only eight years, expiring on 12 May 2013, three weeks after the judge gave his judgment. The lenders were entitled to their money back then. The amount due (apart from legal costs) was nearly 164,000. The best chance of recovering all that was due to them was to sell the property with vacant possession. It may be, as the appellant argues, that they could recoup everything by selling the property with the appellant as sitting tenant. This does, however, seem unlikely, as her parents would have been advised to do this if they could have done. It was also in their interests to achieve the best price possible on the property, in the hope of realising some equity (which might have helped their daughter find another home). In any event, it would be for the appellant to show that a possession order would be disproportionate, and that to refuse a possession order would not prevent the lenders from recovering the sums to which they were entitled. It is difficult to see how the appellants circumstances, most unfortunate though they undoubtedly are, could justify postponing indefinitely the lenders right to be repaid. In the circumstances, therefore, and on the evidence available to the judge, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks time. Conclusion For these reasons, we would dismiss this appeal.

The appellant, Fiona McDonald, is aged 45 and suffers from a personality disorder. In May 2005 her parents purchased 25 Broadway Close, Witney (the property), as a home for her, with the assistance of a loan from Capital Home Loans Ltd (CHL), which was secured by way of a registered legal charge over the property. From about June 2005, the respondents granted the appellant a series of assured shorthold tenancies (ASTs) of the property, the last of which was granted in July 2008 for a term of one year. The appellant continues to live in the property. Owing to financial difficulties with their business, the respondents failed to meet payments on the loan as they fell due. CHL accordingly appointed Andrew Hughes and Julian Smith (the Receivers) to act as receivers of the property. The rent due was regularly paid, but the arrears persisted. The Receivers subsequently served a notice, in the name of the appellants parents, on the appellant on 13 January 2012, indicating that they would be seeking possession of the property and, on the expiry of that notice, they issued proceedings in the name of the parents for possession of the property in the Oxford County Court. His Honour Judge Corrie heard the proceedings on 4 December 2012 and 7 March 2013. He gave judgment on 22 April 2013 and held that the court was not required to consider the proportionality of making an order for possession against a residential occupier where the person seeking possession was not a public authority, and as section 21(4) of the Housing Act 1988 (the 1988 Act) required him to make an order for possession against a person holding under an AST who had been served with an appropriate order, he had to make such an order. The judge added that, had he been entitled to consider proportionality, he would, on balance, have concluded that the claim for possession was disproportionate and dismissed the action. The Court of Appeal dismissed the appellants appeal. The appellant now appeals to the Supreme Court. The Supreme Court unanimously dismisses Fiona McDonalds appeal. Lord Neuberger and Lady Hale give the only judgment, with which the other Justices agree. This appeal raises three questions [1]: (i) whether a court, when entertaining a claim for possession by a private sector owner against a residential occupier, should, in light of section 6 of the Human Rights Act 1998 (the HRA) and article 8 of the European Convention on Human Rights (the ECHR) be required to consider the proportionality of evicting the occupier; (ii) whether, if the answer to question (i) is yes, the relevant legislation, in particular section 21(4) of the 1988 Act, can be read so as to comply with that conclusion; (iii) whether, if the answer to questions (i) and (ii) is yes, the trial judge would have been entitled to dismiss the claim for possession in this case, as he said he would have done. The appellants argument is that the judge should have taken into account the proportionality of making an order for possession for article 8 purposes and, on that basis, could have refused to make an order for possession despite the apparently mandatory terms of section 21(4) of the 1988 Act and section 89(1) of the Housing Action 1980 (the 1980 Act), which limits the period for which a court can postpone an order for possession taking effect [29 30]. It is well established that it is open to the occupier to raise the question of the proportionality of making an order for possession where the party seeking possession is a public authority within the meaning of section 6 of the HRA [34]. In deciding this issue in the case of Manchester City Council v Pinnock [2011] 2 AC 186, the Supreme Court made it clear that nothing in its judgment was intended to bear on cases where the person seeking possession was a private landowner [37]. The appellant contends that the same reasoning applies to a private sector landlord because the court which would grant the order for possession is a public authority for the purposes of the HRA [38 39]. The courts preliminary view is that it is not open to the tenant to contend that article 8 could justify a different order from that which is mandated by the contractual relationship between the parties, at least where there are legislative provisions through which the democratically elected legislature has balanced the competing interests of private sector landlords and residential tenants [40]. Were it otherwise, the ECHR could be said to be directly enforceable as between private citizens so as to alter their contractual rights and obligations [41]. As to the Strasbourg authorities, the admissibility decisions of Di Palma v United Kingdom (1988) 10 EHRR CD 149 and Wood v United Kingdom are inconsistent with the appellants case [48]. While subsequent authorities provide some support for the notion that article 8 is engaged on the making of the order for possession against a residential occupier such as the appellant, there is no support for the proposition that the judge could be required to consider the proportionality of the order which he would have made under legislation such as the 1980 and 1989 Acts [49 59]. The appeal is accordingly dismissed on the first issue [59 60]. As to the second issue, it would not be possible to read section 21(4) of the 1988 Act in the way contended for by the appellant [61 70]. Had the court been persuaded that the appellant was right on the first issue, a declaration of incompatibility under section 4 of the HRA would have been the only remedy [70]. As to the third issue, the judge did not consider whether, if he had found that the claim for possession were disproportionate, there might have been other solutions to the problem than dismissing the claim [71]. In those rare cases where a court is required to assess the proportionality of making a possession order, its powers to suspend or postpone the effect of that order are severely limited by section 89(1) of the 1980 Act [72]. The cases in which it would be justifiable to refuse, as opposed to postpone, a possession order must be very few and far between and could only be cases in which the landlords interest in regaining possession was heavily outweighed by the gravity of the interference in the occupiers right to respect for her home [73]. On the facts of this case, it seems likely that the most the appellant could hope for on a proportionality assessment would be an order for possession in six weeks time, the maximum permitted by section 89(1) of the 1980 Act [75].

8k-16k

Birmingham City Council (Birmingham) appeals against the order of the Court of Appeal (Mummery and Davis LJJ and Dame Janet Smith) dated 29 November 2011, whereby it dismissed Birminghams appeal against the order of Mr Colin Edelman QC, sitting as a deputy judge of the High Court, Queens Bench Division, dated 17 December 2010. The deputy judge had dismissed Birminghams application for a direction that the claims made against it by 174 claimants, joined as parties to the single action, should be struck out. The claimants allege that they are former employees of Birmingham. All except four of them are women. The claims, which were issued in the High Court on 30 July 2010, were founded on an alleged breach of the equality clause which, by section 1(1) of the Equal Pay Act 1970 (the Act), as substituted by section 8(1) of the Sex Discrimination Act 1975, was deemed to have been included in their contracts of employment. On 1 October 2010 the Act was repealed; and the provisions of it which this appeal requires the court to consider were replaced by provisions to similar effect in Chapter 3 of Part 5, and in particular in Chapter 4 of Part 9, of the Equality Act 2010. Under the Act an equality clause had effect in three different situations specified in section 1(2) at (a) to (c). The claimants allege that the second situation, specified at (b), applied to them, namely where the woman is employed on work rated as equivalent with that of a man in the same employment. Although section 1(1) and (2) identified the contracts of women as those in which an equality clause was to be included, the provisions applied equally to the contracts of men where the situation was converse: section 1(13). Hence the claims of the four men; but, in what follows, it will be convenient to refer only to the claims of the women. Section 1(2)(b), as substituted by section 8(1) of the 1975 Act, proceeded to provide that, where the second situation applied, the effect of the equality clause was that: (i) if (apart from the equality clause) any term of the womans contract determined by the rating of the work is or becomes less favourable to the woman than a term of a similar kind in the contract under which that man is employed, that term of the womans contract shall be treated as so modified as not to be less favourable, and (ii) if (apart from the equality clause) at any time the term womans contract does not corresponding to a term benefiting that man included in the contract under which he is employed and determined by the rating of the work, the womans contract shall be treated as including such a term. include a The claimants allege that Birmingham employed them on work rated as equivalent with that of certain men in the same employment pursuant to the National Joint Council for Local Authorities Services (West Midlands Provincial Council) Manual Workers Handbook 1987, known as the Blue Book, and to a Job Evaluation Scheme referred to in it; but that their contracts did not provide for the payment of the substantial bonuses and other additional payments for which the contracts of the male comparators provided. They therefore claim sums equivalent to such payments pursuant to the terms of their contracts provided for by section 1(2)(b) (i) and (ii) of the Act. Birmingham has not yet filed a defence to the claims. It does not allege that the claimants are out of time in bringing such claims in the High Court: their claims are brought within six years of the date on which their alleged causes of action accrued and so fall within the time set by section 5 of the Limitation Act 1980. Whether Birmingham will seek to dispute that it employed the claimants or, if so, that their work was rated as equivalent with that of the male comparators and whether it will seek to prove pursuant to section 1(3) of the Act, as substituted by regulation 2(2) of the Equal Pay (Amendment) Regulations 1983 (SI 1983/1794), that any variation between the contracts was genuinely due to a material factor other than the difference of sex are all questions which remain to be seen. The claimants suggest that, were their claims to go forward, the real battle would lie in the quantification of their claims, which certainly appears complex, rather than in the establishment of Birminghams substantive liability to them. Were it not for one feature, the claims could have been presented by way of complaint to an employment tribunal: section 2(1) of the Act, as amended by paragraph 2 of Schedule 1 to the Sex Discrimination Act 1975 and section 1(2)(a) of the Employment Rights (Dispute Resolution) Act 1998. Such claims are usually brought in the tribunal, which offers to litigants many advantages not on offer in a court, including greater expertise in their determination (even, in a specified situation, provision to them free of charge of an expert report under section 2A(1)(b) of the Act, as inserted by regulation 3(1) of the 1983 Regulations), less cost and, in principle, faster resolution. Indeed, in the course of giving the only substantive judgment in the Court of Appeal, Mummery LJ, whose experience of this area of the law is unrivalled, observed that he had never previously encountered a claim under the Act which had been presented to a court rather than the tribunal. The feature which precludes the claimants from presenting their claims to the tribunal is that they would be out of time for doing so. They concede that Birmingham ceased to employ them on various dates between August 2004 and November 2008. Section 2(4)(a) of the Act provided that the tribunal could not determine a complaint in respect of the contravention of a term modified or included by virtue of an equality clause unless it was presented on or before the qualifying date; and section 2ZA(3) provided that in a standard case the qualifying date was the date falling six months after the last day on which the woman was employed in the employment. It is agreed that each of the present claims is a standard case, as defined in section 2ZA(2). The period of six months was extended to nine months in specified circumstances but, even had such existed, the extension would not have enabled these claims to be presented to the tribunal. Birminghams application to the court for a direction that the claims be struck out has been brought pursuant to section 2(3) of the Act. The subsection, as amended by section 1(2)(a) of the 1998 Act, provided as follows: Where it appears to the court in which any proceedings are pending that a claim or counterclaim in respect of the operation of an equality clause could more conveniently be disposed of separately by an employment tribunal, the court may direct that the claim or counterclaim shall be struck out; and (without prejudice to the foregoing) where in proceedings before any court a question arises as to the operation of an equality clause, the court may on the application of any party to the proceedings or otherwise refer that question, or direct it to be referred by a party to the proceedings, to an employment tribunal for determination by the tribunal, and may stay or sist the proceedings in the meantime. It will be convenient to describe the provision prior to the semi colon as the first part of the subsection and the provision following it as the second part. It was Birminghams case before the deputy judge that the claims should have been presented to the tribunal; that the reasons why each claimant had failed to present her claim in time to the tribunal were irrelevant; that the claims could more conveniently be disposed of by the tribunal notwithstanding that such disposal would be by way of immediate dismissal for want of presentation in time; and that in those circumstances the first part of section 2(3) conferred on him a discretion to strike out the claims which he should proceed to exercise. categorical terms, as follows: In dismissing the application the deputy judge expressed himself in On the true construction of section 2(3), it cannot be more convenient for a claim to be disposed of separately by an employment tribunal in circumstances where the. tribunal could not determine the claim on its merits but would be bound to refuse jurisdiction to deal with the claim because it was time barred. He added that, had his conclusion about the meaning of the word convenient been otherwise, he would have held that to strike out the claims in such circumstances would be to offend against the principle of equivalence under EU law, which I will address in para 32 below. Finally, said the deputy judge, he would have declined to exercise any discretion which might have arisen under the first part of the subsection. But in the Court of Appeal (as it does in this court) Birmingham put its case differently. By that stage it had conceded that the reasons why each claimant had failed to present her claim in time to the tribunal were relevant. It invited the court to rule that, except where a claimant could provide a reasonable explanation for her failure to do so, her claim should be struck out; and it sought an order that its application be remitted to the High Court for inquiry into the identity of such claimants (of whom it conceded that there would be some) as, by reference to such an exception, could successfully resist the striking out of their claims. In his judgment Mummery LJ held that the basic assumption behind the first part of section 2(3) was that both the court and the tribunal would have jurisdiction to decide the claim on its merits; that the purpose behind the provision was, in that context, to identify the forum more fitted for its resolution; that, in that Birmingham was not alleging that the claims represented an abuse of the process of the court, the reasons why the claims had not been made to the tribunal were irrelevant; and that the deputy judges decision had been correct. Nevertheless Mummery LJ expressed himself in terms more qualified than those used by the deputy judge: he said that, in the exercise of the discretion under the first part of the subsection, the fact that a complaint to the tribunal would be time barred would be no more than a circumstance of considerable weight in most cases. He added that it would be exceptional for the reasons for not presenting a complaint in time to the tribunal to be relevant to the exercise of the discretion but that, for example, they would be relevant where they were such as to render the claim made to the court an abuse of its process. As an aside, Mummery LJ addressed the word separately in the first part of the subsection, upon which nothing in the appeal turned; and he observed, helpfully, that Parliament may in particular have had in mind the presentation to the court of a mixed claim, of which one component was of breach of an equality clause and of which others were such as the tribunal had no jurisdiction to entertain. In the light of his conclusion Mummery LJ explained that he had no need to address the principle of equivalence. We may readily expostulate that it cannot be more convenient for a claim to be disposed of in a forum in which, at the outset, and without reference to its merits, it would be required to be dismissed. But the issue in this appeal is somewhat more complicated than that. What, asks Birmingham, was Parliaments purpose in providing a strict time limit for the presentation of claims to the tribunal if those who fail to comply with it can have their claims heard elsewhere? The suggested absence of any good answer to that question leads, says Birmingham, to a need for us to stifle our expostulation and, in a more measured way, to conclude that the immediate disposal in the tribunal of a time barred claim would be otherwise than more convenient only in the case of those claimants who were to provide a reasonable explanation for their failure to present their claims to it in time. Other than in nomenclature, the terms of section 2(3) of the Act did not change between enactment and repeal. It is necessary to look carefully at the original context of the subsection. The Act, although enacted on 29 May 1970, provided that in principle it should come into force on 29 December 1975; the purpose of the lengthy delay was to afford time to employers to adapt to its new requirements. Article 119 of the EEC Treaty, later renumbered article 141, was replaced by article 157 of the Treaty on the Functioning of the European Union, which now provides that: Each Member State shall ensure that the principle of equal pay for male and female workers for equal work or work of equal value is applied. The scope of the earlier article was explained in article 1 of the Councils Equal Pay Directive No 75/117 adopted on 10 February 1975. Once the Act of 1970 was in force, the UK, which had become a member of the European Community on 1 January 1973, thereby discharged its obligations, at any rate in relation to Great Britain, under the article, as explained by the directive. But, as the date of its enactment shows, the Act was not originally a response to the need for the UK to discharge its Community obligations. It was the result of a long public campaign for equal pay for women on the part of feminists, trade unionists and fair minded citizens generally. Parliament resolved that the mechanism of the provision for equal pay for women should be by its very insinuation into their contracts of employment. Section 1(2) originally provided that It shall be a term of the contract under which a woman is employed. that she shall be given equal treatment with men. With effect from the date when the Act came into force, the section was radically recast by the Sex Discrimination Act 1975, which had been enacted in the interim. But the contractual mechanism was retained. The substituted section 1(1) thenceforward provided that: If the terms of a contract under which a woman is employed. do not include . an equality clause they shall be deemed to include one. In 1975 the employment tribunal, or industrial tribunal as it was called prior to August 1998, had no general jurisdiction to determine a claim that a contract of employment had been broken. Its general jurisdiction to do so was introduced only much later, in the wake of a suggestion made by Lord Browne Wilkinson in Delaney v Staples (trading as De Montfort Recruitment) [1992] 1 AC 687, 698B; it was achieved by the Industrial Tribunals Extension of Jurisdiction (England and Wales) Order 1994 (SI 1994/1623), and even then the jurisdiction was, as it remains, hedged about. Back in 1975 the jurisdiction of the tribunal, which had been established pursuant to the Industrial Training Act 1964, was limited to the determination of claims by employees of breach of specified statutory, non contractual, rights, for example to payment in the event of redundancy. In that Parliament intended that claims by women of breach of the equality clause in their contracts could be determined by the tribunal, it followed that jurisdiction to do so had specifically to be conferred on it by the Act. Such was achieved by section 2(1). Although another formulation of the subsection was substituted even before it came into force, the original formulation is worth noting. It provided that: . a claim for arrears of remuneration or damages in respect of a failure to comply with an equal pay clause may be referred to and determined by an industrial tribunal, and may be so referred either by the person making the claim or by the person against whom it is made. It is relevant to what follows at para 21 below to note the word referred: it may be seen that, pursuant to the Act as originally drawn, a woman referred, as opposed to presented, a claim to the tribunal. The unusual use of the verb appears to have been considered necessary in order also to encompass the employers right to seek from the tribunal a ruling in relation to a claim proposed to be made against it. Although it thus conferred on the tribunal jurisdiction to determine a claim of breach of contract in this regard, Parliament did not oust the jurisdiction of the court to determine such a claim. That there was concurrent jurisdiction in the tribunal and the court is plain from (among others) the subsection, namely section 2(3), which is central to this appeal; and, over the four subsequent decades, such has been frequently acknowledged and never doubted. Attention should now turn to the period of limitation provided by Parliament for the reference of a claim to the tribunal of breach of an equality clause. Its original provision was in section 2(4), as follows: No claim in respect of the operation of an equal pay clause relating to a womans employment shall be referred to an industrial tribunal otherwise than by virtue of subsection (3) above, if she has not been employed in the employment within the six months preceding the date of the reference. This provision remained in force until 19 July 2003, when, as supplemented by a new section 2ZA, as inserted by regulation 4 of the Equal Pay Act 1970 (Amendment) Regulations 2003 (SI 2003/1656), it was replaced by more sophisticated provisions which catered also for what were described as a concealment case, a disability case and a stable employment case. Fresh treatment of a stable employment case had been necessary in order to comply with the principle of effectiveness under EU law. Such is the principle which requires that the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law. are not framed in such a way as to render impossible in practice the exercise of rights conferred by Community law: Preston v Wolverhampton Healthcare NHS Trust, ECJ, (Case C78/98) [2001] 2 AC 415, para 31. One of the preliminary rulings of the ECJ in that case was that the application of section 2(4) to a stable employment case, as established for the purposes of domestic law, offended against the principle of effectiveness; the ruling was duly adopted by the House of Lords in Preston v Wolverhampton Healthcare NHS Trust (No 2) [2001] UKHL 5, [2001] 2 AC 455, paras 32 33 and the decision precipitated the reform. For a standard case the period of limitation remained as six months after the end of the employment. It is impossible to make a direct comparison between the period of limitation provided for the making of a claim (or, from 2003, a claim in a standard case) to the tribunal, namely six months from the end of the employment, and the period provided for the making of such a claim to the court, namely six years from the accrual of the cause of action. In that such claims can be made, and frequently are made, to the tribunal during the currency of the claimants employment, the period of limitation for making a claim to the tribunal is by no means as short as might at first appear. But there was another restriction, not strictly cast as a provision of limitation but having such effect, to which reference should be made. It does not aid comparison between the two periods because it applied equally to proceedings in the tribunal and to proceedings in court. It was section 2(5) and, as originally drawn, it provided as follows: A woman shall not be entitled, in proceedings brought in respect of a failure to comply with an equal pay clause (including proceedings before an industrial tribunal) to be awarded any payment by way of arrears of remuneration or damages in respect of a time earlier than two years before the date on which the proceedings were instituted. In Levez v TH Jennings (Harlow Pools) Ltd [2000] ICR 58 the employment appeal tribunal held, following a comparison with the ambit of the right of employees to make other contractual claims not reflective of Community law, that the period of only two years in section 2(5) offended against the principle of equivalence under EU law. In the Preston (No 2) case, cited at para 18 above, the House of Lords held, by way of adoption of another of the preliminary rulings of the ECJ in the same case, that, in relation at any rate to part time workers, mostly being women, who had been excluded from occupational pension schemes, the subsection also offended against the principle of effectiveness under EU law: see paras 10 to 12. The result was, in 2003, the replacement of the subsection, and its supplementation for England and Wales by section 2ZB, of which the effect was that, for the standard case (being, for this purpose, somewhat differently defined), a period of six years was substituted for that of two years. A striking feature of the limitation period of six months set by section 2(4) of the Act was that Parliament never made it extendable. For almost all of the many other claims which, by 2010, could be made to the tribunal, Parliament prescribed limitation periods which it permitted the tribunal to extend; in some cases to extend them insofar as it was just and equitable to do so and, in other cases in which it had not been reasonably practicable for the complaint to be presented in time, to extend them for such further period as the tribunal might consider reasonable: see Harvey on Industrial Relations and Employment Law, 2012 update, Division PI Practice and Procedure, para 84. It is strongly arguable that Parliament tolerated an unusually absolute time limit for the presentation to the tribunal of a claim under the Act only because it recognised that, were she to fall foul of that time limit, the claimant would nevertheless be likely to remain in time for making her claim in court. But I cannot resist one further piece of historical conjecture. It relates to the phrase otherwise than by virtue of subsection (3) above in the form in which section 2(4) remained in force until 2003 and which I have set out at para 18 above. Ones initial reaction such was certainly the reaction of highly experienced leading counsel at the hearing of this appeal is that the exclusion of the limitation period achieved by that phrase related to the second part of section 2(3), set out at para 8 above, namely to the ability of a court to refer to the tribunal a question as to the operation of an equality clause which arose in pending proceedings and to stay them in the meantime. It seems to me however that ones initial reaction might be wrong. In principle a reference by a court to a tribunal of a specific question raised in proceedings pending before it could not in any event fall foul of a period within which a claim had to be presented to the tribunal; so, on the initial analysis, the phrase would be redundant. Indeed, more specifically, the phrase was inserted into section 2(4) as an exception to the provision that [n]o claim shall be referred to [a] tribunal. (italics supplied). But the second part of section 2(3) did not provide for the reference of a claim; it provided for the reference of a question. It was, by contrast, the first part of the subsection which provided, albeit obliquely, for the reference of a claim, namely by the claimant to the tribunal as the intended sequel to the courts conclusion that her claim could more conveniently be disposed of there and to its consequent striking out. I recognise that judges can become dangerously enamoured of points introduced by themselves. So I venture only tentatively that, by the phrase introduced into section 2(4), Parliament intended to make entirely clear that there could never be circumstances in which a claimant could suffer the striking out of her claim in court on the basis that it could more conveniently be disposed of in the tribunal even though she would be time barred for presenting her claim there. The phrase, together therefore with this point, was swept away in 2003, when section 2(4) was replaced; but nothing suggests that, had such been Parliaments initial intention, it remained its intention no longer. In now contending that, except where they can provide a reasonable explanation for their failure to present their claims in time to the tribunal, the claims of the claimants should be struck out under section 2(3) of the Act, Birmingham relies heavily on observations made in the House of Lords in Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460 and on the decision of Slade J in Ashby v Birmingham City Council [2011] EWHC 424 (QB), [2012] ICR 1, in which she applied the observations to claims materially similar to the present. In the Spiliada case shipowners sued shippers for breach of contract in having loaded on to their ship a cargo of wet sulphur which had corroded it. The House of Lords held that the judge at first instance had rightly granted leave to serve the shippers out of the jurisdiction so that the action in England might proceed. The shippers had opposed leave on the basis that the shipowners should have sued them, if at all, in British Columbia, where any such action would by then have been time barred. Subject to three points of distinction which he identified at pp 480G 481E, Lord Goff, with whose speech the other members of the committee agreed, held that the principle which governs the grant of leave to serve out of the jurisdiction and the stay of the action on the ground of forum non conveniens was the same. It was, so he held at p 476C, whether, in the absence of special circumstances, the suggested alternative forum was appropriate for the trial of the action in the sense of being more suitable for all the parties and the ends of justice. But, at pp 476H 477A, he added a rider that, where the choice was between competing jurisdictions within a federal state, a strong preference should be given to the forum chosen by the claimant upon which, by its constitution, the state had conferred jurisdiction. which Birmingham relies. He observed, at pp 483E 484E: It is Lord Goffs treatment of a time bar in the alternative jurisdiction on Let me consider how the principle of forum non conveniens should be applied in a case in which the plaintiff has started proceedings in England where his claim was not time barred, but there is some other jurisdiction which, in the opinion of the court, is clearly more appropriate for the trial of the action, but where the plaintiff has not commenced proceedings and where his claim is now time barred. Now, to take some extreme examples, suppose that the plaintiff allowed the limitation period to elapse in the appropriate jurisdiction, and came here simply because he wanted to take advantage of a more generous time bar applicable in this country; or suppose that it was obvious that the plaintiff should have commenced proceedings in the appropriate jurisdiction, and yet he did not trouble to issue a protective writ there; in cases such as these, I cannot see that the court should hesitate to stay the proceedings in this country, even though the effect would be that the plaintiffs claim would inevitably be defeated by a plea of the time bar in the appropriate jurisdiction. Indeed a strong theoretical argument can be advanced for the proposition that, if there is another clearly more appropriate forum for the trial of the action, a stay should generally be granted even though the plaintiffs action would be time barred there. But, in my opinion, this is a case where practical justice should be done. And practical justice demands that, if the court considers that the plaintiff acted reasonably in commencing proceedings in this country, and that, although it appears that (putting on one side the time bar point) the appropriate forum for the trial of the action is elsewhere than England, the plaintiff did not act unreasonably in failing to commence proceedings (for example, by issuing a protective writ) in that jurisdiction within the limitation period applicable there, it would not, I think, be just to deprive the plaintiff of the benefit of having started proceedings within the limitation period applicable in this country. The appropriate order, where the application of the time bar in the foreign jurisdiction is dependent upon its invocation by the defendant, may well be to make it a condition of the grant of a stay, or the exercise of discretion against giving leave to serve out of the jurisdiction, that the defendant should waive the time bar in the foreign jurisdiction; this is apparently the practice in the United States of America. Lord Goff added, at pp 487H 488A, that, had he considered that the court of British Columbia was the appropriate forum, he would have appended such a condition to the refusal of leave. In the Ashby case Slade J heard an appeal against the decision of a circuit judge to strike out, pursuant to section 2(3) of the Act, claims brought in the county court by 14 women who were former employees of Birmingham and who alleged its breach of the equality clause in their contracts. The issue in the appeal was identical to the issue in the present proceedings in that, by the date of the issue of their claims in court, the women would have been time barred for presenting them to the tribunal. Following the hearing before Slade J but prior to the delivery of her judgment, the deputy judge gave his judgment in the present case; and it was brought to her attention. But she disagreed with it. She observed, at paras 71 and 78, that the fact that the claims would be time barred if presented to the tribunal did not preclude a conclusion that they could more conveniently be disposed of there. She suggested, at para 56, that assistance in the construction of section 2(3) was to be gained from the observations of Lord Goff in the Spiliada case and thus held, at para 78, that the reason why the women had not presented their claims in time to the tribunal had to be taken into account. She therefore allowed the womens appeal but without prejudice to the right of Birmingham to reapply to the county court for their claims to be struck out under the subsection if and insofar as it might wish to contend that in all the circumstances they had not reasonably explained their failure to present their claims in time to the tribunal. I agree with Mummery LJ in his judgment in the present proceedings, and, with respect to her, I disagree with Slade J in the Ashby case, about the relevance to the construction of section 2(3) of the observations of Lord Goff in the Spiliada case. The words which, by the subsection, Parliament has required us to apply to the facts before us are more conveniently. [I]ts statutory objective, said Mummery LJ of the subsection, is the distribution of judicial business for resolution in the forum more fitted for it. Lord Goff was required to consider a much broader canvas. He observed, at p 474E: I feel bound to say that I doubt whether the Latin tag forum non conveniens is apt to describe this principle. For the question is not one of convenience, but of the suitability or appropriateness of the relevant jurisdiction. However the Latin tag. is so widely used to describe the principle. that it is probably sensible to retain it. But it is most important not to allow it to mislead us into thinking that the question at issue is one of mere practical convenience. The proposition that an action brought inappropriately in England should sometimes not be allowed to proceed even though it can no longer be brought in the foreign jurisdiction in principle appropriate to it is in my view of no assistance in determining whether, in circumstances in which Parliament has specifically allowed a claimant to bring her entirely domestic claim in court, it could more conveniently be disposed of by the tribunal. No doubt in most cases it will be more convenient for the tribunal to dispose of a claim in respect of the operation of an equality clause, provided that it can still be brought there, rather than for the court to do so. If the claim can no longer be brought there, the effect of Birminghams submissions in this appeal, founded on the decision of Slade J, would be to convert the reasons why the claimant had failed to present her claim in time to the tribunal into the factor determinative of whether it be struck out by the court. But I do not regard the reasons for her failure as relevant in any way to the notion of convenience. In my view Birmingham aspires in effect to re write section 2(3); and to introduce into the law a principle which would in some cases in effect serve to shorten the period of limitation allowed by Parliament for the bringing of claims in court. A modified version of Birminghams submissions finds favour with Lord Sumption and Lord Carnwath. Whereas Birmingham contends for an inquiry limited to that single feature, namely the reasons for a claimants failure to present her claim in time to the tribunal, they consider that the proper operation of section 2(3) requires a multi factorial inquiry not just into that feature but into all others which might bear upon whether, in the interests of justice, a claim should be struck out; they would therefore remit the claims of the 174 claimants for individual consideration along such lines. I entirely understand the aspiration to attribute a greater degree of efficacy to the rules of limitation in sections 2(4) and 2ZA of the Act. On any view they lie curiously alongside the right to issue proceedings in court, governed by a rule of limitation which, in a number of cases albeit certainly not in all, will prove to be more indulgent to claimants. But in my respectful view the aspiration drives my two colleagues to treat section 2(3) with an unacceptable degree of violence. The adverb in the subsection is conveniently. Of course the disposal of a claim can be achieved by application of rules of limitation; but in my view the adverb qualifies the type of disposal addressed in the subsection and mandates a straightforward practical inquiry into the forum more convenient for investigation of the merits. It is analogous to the practical inquiry which attends the permission given to a claimant by rule 7.3 of the CPR to use a single claim form to start all claims which can be conveniently disposed of in the same proceedings. I would deprecate a multi factorial inquiry into what Lord Sumption neatly describes as the disembodied interests of justice in place of the inquiry for which, on the natural reading of the subsection, Parliament has provided. In Restick v Crickmore [1994] 1 WLR 420 the Court of Appeal considered five appeals by claimants who in the High Court had brought proceedings which were required to be brought in the county court and which the judges below had struck out even though the claimants had become out of time for bringing them in the county court. The decision of the Court of Appeal was that section 40(1) of the County Courts Act 1984 had given the judges a power, which they should have exercised, to transfer the proceedings to the county court instead of striking them out. It may have been a controversial construction of the subsection but it was a just decision. Stuart Smith LJ, with whom the other members of the court agreed, said, at p 427E G: The construction I prefer accords with the well established policy of the courts: provided proceedings are started within the time permitted by the Statute of Limitations, are not frivolous, vexatious or abuse of the process of the court and disclose a cause of action, they will not as a rule be struck out because of some mistake in procedure on the part of the plaintiff or his advisers. The ordinary sanction for failure to comply with the requirements will be in costs. The present claimants have a far stronger case than the appellants in the Restick group of cases for the effective survival of their claims in that they were never required to proceed in the tribunal. I would hold that the present claims cannot more conveniently be disposed of by the tribunal and that Birminghams invocation of section 2(3) of the Act was rightly rejected both by the deputy judge and by the Court of Appeal. I prefer the categorical terms favoured by the deputy judge to the qualified terms favoured by Mummery LJ. The latter referred to cases of abuse of process. Nothing can detract from the inherent jurisdiction of the court to strike out a claim in respect of the operation of an equality clause if it were to represent an abuse of its process; one example might be that of a claimant who had been invited to present a complaint in time to the tribunal but who had spurned the invitation in order to secure what the court considered to be an illegitimate advantage by bringing the claim before itself. But the subject of section 2(3) was not abuse of process; and I would hold, for the purpose both of the first part of the subsection and of its successor, namely section 128(1) of the Equality Act 2010, that a claim in respect of the operation of an equality clause can never more conveniently be disposed of by the tribunal if it would there be time barred. No doubt one aspect of Birminghams concern about the prospect that claims in respect of the operation of an equality clause may be brought against employers in court, rather than in the tribunal, relates to the courts general rule, which does not apply in the tribunal, to make an order for costs against the unsuccessful party. But the court may make a different order and, in deciding what order (if any) to make in respect of costs, it must have regard to all the circumstances, including the conduct of the parties: CPR r 44.3(4)(a). It is to this latter inquiry that the factor incorrectly urged as relevant to this appeal might well become relevant. The courts conclusion that, instead of bringing it in court, a claimant should, in all the circumstances, reasonably have presented her claim, in time, to the tribunal might well be relevant to its survey in relation to costs under the subrule: insofar as, had she done so, she would not have obtained an order for costs, such might well be relevant to the courts decision as to the appropriate order. Even in circumstances in which the presentation of a claim to the tribunal would be time barred, the power of the court under both the second part of section 2(3) of the Act and its successor, namely section 128(2) of the 2010 Act, to refer to the tribunal a question as to the operation of an equality clause still remains; and should not be forgotten. Nevertheless Parliament might well wish to consider introducing a relaxation of the usual limitation period for the presentation of a claim to the tribunal in cases in which a claim in respect of the operation of an equality clause has been brought, in time, before the court and, were it not for the effect of the usual limitation period, would more conveniently be disposed of by the tribunal. I have doubts about the value of assuming, contrary to the above, that the effect of section 2(3) of the Act is, as contended for by Birmingham, to preclude a hearing of the claimants claims on the merits even in court, save if they fall within the exception for which it now allows; and, upon that assumption, of proceeding to consider whether such an effect infringes the EU principle of equivalence. Such is the principle which requires that the procedural rules for proceedings designed to ensure the protection of the rights which individuals acquire through the direct effect of Community law [should be] not less favourable than those governing similar domestic actions: para 31 of the judgment of the ECJ in the Preston case, cited at para 18 above. But I will address the point, on which the court heard only limited argument, briefly. My view, contrary to that of the deputy judge, is that this is not a freestanding point: section 2(3) conferred upon the court a discretion and, were any exercise of the discretion in favour of a strike out to offend against the principle of equivalence, the obligation of the court would be not so to exercise it: Litster v Forth Dry Dock and Engineering Co Ltd [1990] 1 AC 546. So the point is linked to the proper exercise of the discretion, which was the deputy judges separate and final reason for dismissing Birminghams application. But the decision of the House of Lords in the Preston (No 2) case, cited at para 18 above, seems to me to place formidable difficulties in the path of the claimants invocation of the principle of equivalence. In the Preston litigation some 60,000 part time workers, mainly women, complained to the tribunal that their exclusion from their employers pension schemes infringed the equality clause introduced into their contracts by the Act. Acknowledging their own obligation to make the appropriate back dated contributions into them, they sought recognition of their entitlement to membership of the schemes, to be backdated over what, in some cases, had been their many years of employment. Test cases were identified in order to resolve preliminary issues in relation to the application to them of section 2(4) and (5) of the Act; and in Preston v Wolverhampton Healthcare NHS Trust (No 1) [1998] 1 WLR 280 the House of Lords referred three questions to the ECJ for preliminary rulings as to whether, in any of the three respects, the application of the subsections infringed the principles of equivalence or of effectiveness. I have referred, at paras 18 and 19 above, to two of the preliminary rulings of the ECJ. Its third (which did not concern cases of stable employment) was, at para 35, that the six months rule did not offend against the principle of effectiveness and, at para 49, that, in the light of the greater ability of the national court to identify a comparator, it was for that court to determine whether it offended against the principle of equivalence. Such was, therefore, an exercise which, upon the return of the case to it, the House of Lords conducted in Preston (No 2), cited at para 18 above. It determined that the rule did not offend against the principle of equivalence. Albeit with considerable hesitation on the part of three of its members, the committee decided that there was a sufficiently similar comparator in the form of an action under domestic law for damages by an employee against an employer for failure to pay to the trustees of a pension scheme on his or her behalf the sums for which the contract of employment had provided: para 22 of the speech of Lord Slynn. But the committee was not satisfied that the six months rule for a claim under the Act was less favourable than the six years rule which would apply to such an action: paras 24 to 31 of his speech. In particular he stressed, at para 30, that a claim brought in the tribunal within six months of the end of the employment might in some cases stretch much further back than six years from the date of the claim. The decision in Preston (No 2), which some might now consider border line but from which the court was not invited to depart, is therefore authority for the proposition that, in its application to what after 2003 was known as the standard case, the six months rule in section 2(4) of the Act did not offend against the principle of equivalence. The claimants concede that, were the subject of the present appeal to be the time limit for a claim to the tribunal, the decision would foreclose the point against them. But, in an argument accepted by the deputy judge, they suggest that the subject is, instead, the time limit for a claim to the court. I disagree. For Birmingham seeks, by the operation of section 2(3), in effect to import into the time limit for a claim to the court and subject to the exception for which it now makes allowance the time limit for a claim to the tribunal. The deputy judge proceeded first to note the suggested comparators in the present case, namely the men entitled under the express terms of their contracts to the additional payments, and then, for the purposes of the comparison, to imagine that Birmingham had refused to make such payments, with the result that the men had sued for them in court. He held that, by comparison with their position, the effect of Birminghams submissions about the proper application to the claimants of section 2(3) would offend against the principle of equivalence. But I discern no material difference between the deputy judges comparison and that made in relation to pension provision by the House of Lords in the Preston (No 2) case. I do not consider that Birminghams contentions, however flawed, offend against the principle of equivalence. I would dismiss the appeal. LORD SUMPTION (with whom Lord Carnwath agrees) The majority of the Court proposes to dismiss the appeal. I shall therefore be brief in explaining why, for my part, I would have allowed it. In bald summary, the decision of the deputy judge and the Court of Appeal frustrates the policy underlying the provisions of the Equal Pay Act relating to limitation. Since those provisions are an important part of the statutory scheme, I find it impossible to accept that this result can have been intended by Parliament. It is common ground that in principle the courts and the employment tribunals have concurrent jurisdiction to hear claims for breach of the statutory equality clause in a contract of employment. The issue on this appeal arises from the fact that Parliament has provided by sections 2(4) and 2ZA of the Equal Pay Act that in proceedings before an employment tribunal various limitation periods are to apply (depending on the type of case) which differ from those that would apply under the general law in proceedings before a court. Under the Act as originally enacted, there were three differences. First, the period was shorter, six months as opposed to six years. Second, it ran from the end of the end of the employment relationship, and not from the accrual of the cause of action. Third, there were no provisions for deferring the running of the period, such as those which would apply to proceedings in court under the Limitation Act 1980 and the Latent Damage Act 1986. Under the Equal Pay Act as it stood in 2005 (the relevant time for the purpose of this case), the position is exactly the same in a standard case like this one. But by that time the statutory scheme had been refined by amendment so as to defer the running of time in cases of concealment and disability. The question comes down to this. If a particular claim would be time barred before an employment tribunal but not before a court, is it open to a court to strike it out on the ground that it ought to have been brought before an employment tribunal within the period provided for by section 2(4)? Since the court has no power to transfer a case directly to the employment tribunal, and no one suggests that the present proceedings are an abuse of the courts process, this depends entirely on section 2(3). Section 2(3) empowers a court in which a claim under the equality clause is pending to strike it out if it could more conveniently be disposed of separately by an employment tribunal. Although the present question can fairly be described as turning on the construction of this provision, the issue is particularly difficult to resolve by reference to the mere language of the Act. The relevant provisions are poorly drafted, and a complex history of ill thought out amendments has contributed nothing to their coherence. This is therefore a case in which it is more than usually important to examine the underlying purpose of Parliament in (i) conferring jurisdiction on employment tribunals over equal treatment claims, and (ii) providing for special periods of limitation to apply to such claims in those tribunals. Employment tribunals (originally industrial tribunals) were established by the Industrial Training Act 1964, initially for the limited purpose of hearing appeals against the imposition of industrial training levies. Their jurisdiction has always been wholly statutory, but it has been progressively expanded over the past half century. At the time when the Equal Pay Act was originally passed in 1970, the main business of the tribunals was the determination of claims for statutory redundancy payments, a jurisdiction conferred on them in 1965. By the time that the Act came into force in substantially amended form in 1975, its jurisdiction also extended to unfair dismissal claims. By 1970, and even more by 1975, employment tribunals were well established as cheap, informal, expert tribunals, comprising predominantly lay members and operating under a simplified procedure, in which parties need not be legally represented (or indeed represented at all) and in which costs orders were not ordinarily made. These were, and remain, substantial advantages not just for parties appearing in them, but for the disembodied interests of justice. It can be assumed that they were significant factors in Parliaments decision, when enacting the Equal Pay Act 1970, to confer jurisdiction upon them in equal treatment cases. Their specialist expertise in employment practice was perhaps of particular value in these cases, because they commonly turned on an expert evaluation of the claimants job by comparison with a relevant comparator: see section 1(5). Notwithstanding these advantages, the courts jurisdiction was retained, but it follows from the criterion laid down by section 2(3) for striking out equal treatment claims brought in court that the draftsman envisaged that the courts jurisdiction would be invoked only if the subject matter of any particular claim made it the more convenient forum. The paradigm case (although not necessarily the only one) would be proceedings involving mixed claims arising out of the same employment relationship, some of which were within the jurisdiction of the employment tribunal, while others were not. Hence the reference to claims brought in court that could more conveniently be disposed of separately by an employment tribunal. Turning to the purpose of the special limitation provisions in the Act, it is right to make two points by way of introduction. The first is that issues of limitation are bedevilled by an unarticulated tendency to treat it as an unmeritorious procedural technicality. This is, I think, unjustified. Limitation in English law is generally procedural. But it is not a technicality, nor is it necessarily unmeritorious. It has been part of English statute law for nearly four centuries. It has generated analogous non statutory principles in equity. Some form of limitation is a feature of almost all other systems of law. And it has been accepted in principle in the jurisprudence of both the Court of Justice of the European Union and the European Court of Human Rights. Limitation reflects a fundamental and all but universal legal policy that the litigation of stale claims is potentially a significant injustice. Delay impoverishes the evidence available to determine the claim, prolongs uncertainty, impedes the definitive settlement of the parties mutual affairs and consumes scarce judicial resources in dealing with claims that should have been brought long ago or not at all. These considerations, which are common to most litigation, are particularly germane to equal treatment claims. The characteristics of a job are liable to change radically, especially at a time of economic upheaval, industrial rationalisation or technological advance. The selection of appropriate comparators and their comparative evaluation are inherently more uncertain exercises when they relate back several years to a state of affairs which may no longer exist. In addition, equal treatment claims are by their nature liable to affect large classes of employees of a particular firm and may therefore have important financial implications for the employer, which will be particularly disruptive if they arise out of the position of ex employees who left long ago. The second introductory point is that the dismissal of a claim on the ground that it is time barred is a disposal of the claim. Limitation is a defence. A dismissal on that ground is a judicial decision giving effect to that defence. It was submitted to us that the introductory words of section 2(4) (No determination may be made by an employment tribunal) mean that the provision is a limitation on the employment tribunals jurisdiction. There is authority that provisions in this form, or substantially similar, do go to jurisdiction: see, most recently, Radakovits v Abbey National Plc [2009] EWCA Civ 1346; [2010] IRLR 307. I am by no means convinced that this is correct, but it is unnecessary to decide the point because section 2(4) plainly gives rise to a defence in proceedings before an employment tribunal, even if it also operates as a limitation on the tribunals jurisdiction. The words cannot mean that the tribunal is disabled from determining whether the claim is time barred. The only consequence of treating section 2(4) as going to jurisdiction is therefore that the defence cannot effectually be waived. The legislative policy underlying section 2(4) of the Act, both in its original and its amended form, is clear. It is to confer a degree of protection on the employer. There is no other purpose that can be imputed to the legislature, and none was plausibly suggested in argument. In standard and stable employment cases the object was to restrict the employers exposure to equal treatment claims to those which were brought while the employment relationship still subsisted, or within a short time thereafter, so as to enable him to draw a line under any employment relationship at that point. Why were these provisions absolute? Unlike Lord Wilson (paragraph 20), I do not think that in the statute as originally enacted, the absolute character of this time bar was due to the availability of a concurrent jurisdiction in court which would not be affected by it. If this issue had been considered by the draftsman at all, he would surely have made specific provision for reconciling the two procedures. Likewise, I cannot, with respect, agree with his historical conjecture (paragraph 21) about the reason for exclusion from section 2(4) in its original form of a claim referred to an industrial tribunal by virtue of section 2(3). I agree that the drafting is unclear, but the exclusion seems most naturally to refer to the only form of reference for which provision is made by section 2(3), even if (as he rightly says) that is not strictly a reference of the claim as such. In any event, neither argument can arise on the terms of the Act as it has stood since its amendment in 2003. The absence of any provision for deferring the running of time in standard and stable employment cases is in my view more plausibly explained by the importance which the legislature attached to the time bar. At the time when the Equal Pay Act was passed, section 26 of the Limitation Act 1939 (now section 32 of the Limitation Act 1980) provided for the deferral of the running of a limitation period under the general law in cases of fraud and concealment. There was, however, no corresponding provision applicable to equal treatment claims under the Equal Pay Act, even in cases of concealment. Over the years Parliament has introduced other grounds of deferral into the general law of limitation. It is, however, notable that the possibility of deferring the running of time was not introduced into the Equal Pay Act until 2003, when it was amended by statutory instrument. Even then it was limited to two narrowly defined categories of case, namely those in which the facts giving rise to an equal treatment claim were deliberately concealed by the employer from the employee during the subsistence of the employment relationship, and those in which the employee was under a disability during the period of six months after the termination of the relationship or (in a concealment case) after the day on which she discovered the facts deliberately concealed from her. All of these provisions have been re enacted in substantially the same form by sections 120, 122 123 and 129 130 of the Equality Act 2010. Accordingly the three salient features of the Equal Pay Act for present purposes are: (i) that it provides in the public interest as well as in the interests of parties for particular categories of employment disputes to be referred to a specialised tribunal, applying a procedure particularly adapted to the hearing of such disputes, (ii) that it lays down in the interests of employers a highly restrictive regime of limitation for cases brought in the specialist tribunal, and (iii) that it contains a careful and qualified definition of the circumstances in which older claims can be brought in the specialist tribunal. Parliament cannot rationally be thought to have intended that a far less restrictive regime should apply at the unfettered option of the employee, by the simple device of bringing his claim in a court of general jurisdiction which is less appropriate to such claims because it has neither the same specialist experience nor the specially adapted procedures thought suitable for this class of case. Nonetheless, in conferring jurisdiction over equal treatment claims on employment tribunals Parliament left in being the jurisdiction that the ordinary courts had always had over contractual disputes arising out of employment. Moreover, the protection of section 2(4) is not available in equal treatment cases before the courts, because it is in terms confined to cases before the employment tribunal (compare section 2(5) in which the restriction on the period in respect of which damages may be awarded is applied to such claims wherever brought). The only rational answer to this conundrum lies in the application of section 2(3). If an action founded exclusively on a breach of the statutory equality clause were brought in court before the time limit had expired for bringing it in an employment tribunal, one would expect it to be struck out as a matter of course under section 2(3) so that it could be brought in the appropriate forum. It could, in the language of the subsection, more conveniently be disposed of by an employment tribunal. If the claim is brought in court after the tribunal time limit has expired, the test is exactly the same, but the circumstances are in one respect different. The decision whether to strike out will still depend on whether it can more conveniently be disposed of by an employment tribunal, but the employment tribunal will inevitably have to dismiss the claim because of the time bar. The Court of Appeal took the view that for this reason a claim could only very rarely be more conveniently disposed of in a tribunal which would be bound to dismiss it as time barred. They appear to have had in mind rare cases where the mere fact of bringing the claim in court could be characterised as an abuse of the courts process. In this court, the majority considers that a claim can never more conveniently be disposed of by an employment tribunal if it would be time barred there. With respect, I cannot accept either version. Both of them depend upon the proposition, which I understand to be accepted by the majority, that the notion of convenience in section 2(3) is directed only to the efficient distribution of judicial business between the available forums. I think that this is far too narrow a test, because it excludes the broader interests of justice which in my opinion should be decisive. Convenient is used in section 2(3) in a sense analogous to that which it has in the expression forum non conveniens. The question is whether the disposal of the claim in an employment tribunal is appropriate in the interests of justice: see Spiliada Maritime Corporation v Cansulex Ltd [1987] AC 460, 474 475 (Lord Goff). I would accept without hesitation that the fact that the claim will be time barred in the employment tribunal is a highly relevant factor, but I cannot accept that it is conclusive or nearly so. As I have pointed out, the dismissal of a claim because it is time barred is a disposal. It may, depending on the circumstances, be a just disposal. I would not wish to press the analogy with forum non conveniens too far, for it is only an analogy. But, as Lord Goff pointed out in the Spiliada case, it is not necessarily unjust to require a claim to be heard in a jurisdiction where it would be time barred, if the nature of the case is such that that is the more appropriate jurisdiction: see pp 483 484. Indeed, the case for doing so is likely to be stronger where (i) the alternative and appropriate forum is another English forum, provided by law for this very class of case; and (ii) the court is seeking to give effect to the policy of the legislature in imposing a time bar on claims brought in the appropriate tribunal. In such cases, the justice to the claimant in having his claim determined by a court on its merits without regard to the time bar is exactly commensurate with the injustice to the employer of being deprived of a defence. Other relevant considerations which seem to me to bear on the justice of requiring the claim to be brought if at all in the employment tribunal include: whether the claimant acted reasonably in failing to bring his claim before the appropriate tribunal in time; whether the passage of time since the expiry of the tribunal time bar has made the issue substantially more difficult to determine justly; and whether the employer would be exposed to a substantial liability in costs in court which he would not have faced in the tribunal. The latter is likely to be a particularly significant factor in a case where the litigation is funded under a conditional fee agreement. It will be apparent that I have considerable sympathy for the approach adopted by Slade J in Ashby v Birmingham City Council [2012] ICR 1, although I would not limit the range of relevant factors to those which arose on the facts of the case before her. If, as I have suggested, the limitation provisions of the Equal Pay Act reflect the policy of the legislature as to the circumstances in which an employer ought to be exposed to stale claims, it must in my opinion be wrong to treat the only statutory mechanism available for giving effect to it as inapplicable in the precise circumstances which engage that policy. The view that court proceedings in support of an equal treatment claim should rarely or never be struck out where they would be time barred in an employment tribunal has the effect of making the statutory protection of the employer available to him only at the option of the employee. The effect is to deprive it of most of its content. Indeed, on this view, a claimant in a concealment or a disability case could bring his claim in an employment tribunal and, having failed to persuade the tribunal that he was entitled to defer the running of time, then bring precisely the same claim in court with the benefit of the ordinary limitation period of six years and the broader provisions for deferral. The employment tribunal, he would argue, had only decided upon the applicability of the tribunal time bar, which had no relevance to proceedings brought in another English jurisdiction. I find it difficult to derive any assistance on these points from Restick v Crickmore [1994] 1 WLR 420, to which both the Court of Appeal and Lord Wilson (paragraph 28) attach importance. In that case, the Court of Appeal criticised the decision of the judges below to strike out proceedings which should have been brought in the county court, in circumstances where they would have been time barred there. That was a decision about a very different statutory scheme, whose critical feature was the existence of a statutory power to transfer the proceedings to the county court instead of striking them out. Since a transfer would have preserved the plaintiffs limitation position, it was held to have been the appropriate course. I agree with the majority that to strike out the claim would not be inconsistent with the EU principle of equivalence, for the reasons given at paragraphs 32 34 of the judgment of Lord Wilson. I would for these reasons have allowed the appeal and remitted the case to the High Court to determine whether in the interests of justice it should be allowed to proceed there.

The issue in this appeal is whether the court should exercise its discretion to strike out the equal pay claims of the respondents, which have been brought in the High Court, on the ground that they could more conveniently be disposed of in an employment tribunal, notwithstanding the fact that the claims there would be time barred. The respondents are former employees of the appellant council (Birmingham), 170 of them women and 4 men. They left their employment on various dates between 2004 and 2008. They allege that Birmingham was in breach of the equality clause inserted into their contracts of employment by section 1(1) of the Equal Pay Act 1970 (the Act), as substituted by section 8(1) of the Sex Discrimination Act 1975, by failing to provide certain benefits and other payments which were payable to workers of the opposite sex employed on work rated as equivalent. The respondents could have brought their claims in the employment tribunal, provided that they did so within the time limit applicable to them of up to six months after leaving their employment. They did not do so, however, and instead issued the claims later in the High Court, for which the time limit was six years from the date their cause of action accrued. Birmingham asked the High Court to exercise the discretion provided by s 2(3) of the Act (as amended) to strike out the claims on the ground that they could more conveniently be disposed of separately by an employment tribunal. Birminghams application was dismissed by the High Court. Its appeal to the Court of Appeal was also dismissed. The Supreme Court by a majority (Lord Sumption and Lord Carnwath dissenting) dismisses the appeal. The judgment of the majority is given by Lord Wilson; the judgment of the minority by Lord Sumption. Birmingham contended that, although the High Court did have concurrent jurisdiction under the Act to determine the respondents claims, those claims should have been presented to the employment tribunal. It invited the court to rule that, except where respondents could provide a reasonable explanation for their failure to do so, their claims should be struck out. It argued that there would be no purpose in providing a strict time limit for the presentation of claims to the tribunal under the Act, if those who failed to comply with it could have their claims heard elsewhere [11 13]. In reviewing the history of s 2 of the Act since its enactment, Lord Wilson observed that it was a striking feature of the six month limitation period set by the Act for claims in the employment tribunal that Parliament had never made it extendable. This suggested that Parliament recognised the availability of an alternative claim in court [20]. The statutory objective of s 2(3) was the distribution of judicial business for resolution in the forum more fitted for it. In most cases it would be more convenient for an employment tribunal to dispose of a claim in respect of the operation of an equality clause, provided that it could still be brought there, rather than for the court to do so. The reasons for the failure of a claimant to bring the claim in the tribunal were not, however, relevant in any way to the notion of convenience [26], nor was a multi factorial inquiry into the interests of justice required [27]. Such claims, barring an abuse of process, could never be more conveniently disposed of by the tribunal if they would there be dismissed for being out of time [29]. Parliament might wish to consider introducing a relaxation of the usual limitation period for such cases in order to allow their convenient disposal in the tribunal in future [31]. In these circumstances there was no need to consider whether the procedural rules might infringe the EU principle of equivalence, by which the rules for proceedings in respect of rights afforded to individuals through the direct effect of Community law should not be less favourable than those governing similar domestic actions. This was a point linked to the proper exercise of the discretion under s 2(3) and would have been unlikely to succeed in this case [32 33]. Lord Sumption, dissenting, considered that allowing the claims to proceed in court frustrated the policy underlying the provisions of the Act relating to limitation [36]. It was difficult to resolve the construction of s 2(3) by reference to the mere language of the Act and therefore important to examine Parliaments underlying purpose in conferring jurisdiction on employment tribunals over equal treatment claims and providing special periods of limitation to apply to such claims in those tribunals [39]. There were substantial advantages for both the parties and for the broader interests of justice in having claims heard in employment tribunals [40]. Limitation was a particularly important defence for employers facing equal treatment claims [41], and this point more plausibly explained the absence of any provision to defer the running of time [44]. Lord Sumption would have held that convenience under s 2(3) went further than the narrow question of the more efficient distribution of judicial business. The fact that a claim would be time barred in the employment tribunal was a highly relevant but not conclusive factor [47].

8k-16k

The question on this appeal is whether a bingo promoter is entitled to a refund of Value Added Tax (VAT) paid to the Commissioners of Her Majestys Revenue and Customs (HMRC) over many years on fees charged to customers for the right to play bingo. The question itself has only retrospective significance, as VAT on commercial bingo operations was replaced in 2003 by a separate bingo duty. But the appellants case also raises some broader issues about the assessment of VAT. The taxpayers operations The appellant company (which I shall refer to as the taxpayer) operates bingo clubs in Scotland. A customer who wishes to play bingo at one of its clubs pays a fee which entitles the customer to take part in a number of games of bingo, forming a session. On payment of the fee, the customer receives a book of cards. Each card contains a grid of numbers for one of the games in the session. The customer does not need to participate in every game. Cash prizes are paid to those who participate in games of bingo and win. As is well known, games of bingo are presided over by a caller who draws and announces random numbers. If the number called out is on a players card, the player marks it off. The game continues until one of the players has marked off on their card all the numbers required to win and announces that fact. The bingo club manager decides, after the sale of tickets for a particular session has concluded and immediately before the session begins, what the prize money for each game in the session will be save that some games, typically the jackpot game in the session, are played for fixed prizes advertised in advance. Such prizes tend to be consistent for the same sessions from week to week. VAT on bingo VAT is a tax charged on the supply of goods or services. There is a common system of VAT for member states of the European Union established by Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive). This directive continues to have effect in the United Kingdom during the transition period following the UKs exit from the European Union. The Principal VAT Directive replaced the Sixth Council Directive (Council Directive 77/388/EEC of 17 May 1977). It is sufficient to quote the relevant provisions of the Principal VAT Directive, as it made no changes from the Sixth Council Directive which matter for present purposes. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (SI 1995/2518) made under that Act (the 1995 Regulations). The national legislation must be interpreted so far as possible in conformity with the underlying directive, which also creates rights that are directly enforceable by individuals against the state in so far as the national legislation has not implemented the directive or has not done so correctly: Marshall v Southampton and South West Hampshire Area Health Authority (Teaching) (Case C 152/84) [1986] QB 401, paras 46 47. Article 73 of the Principal VAT Directive provides: In respect of the supply of goods or services, the taxable amount shall include everything which constitutes consideration obtained or to be obtained by the supplier, in return for the supply, from the customer or a third party Article 73 is implemented in the UK by section 19 of the VAT Act, which includes the following provisions: (2) If the supply is for a consideration in money its value shall be taken to be such amount as, with the addition of the VAT chargeable, is equal to the consideration. (4) Where a supply of any goods or services is not the only matter to which a consideration in money relates, the supply shall be deemed to be for such part of the consideration as is properly attributable to it. VAT is a tax on turnover, not profit. Thus, in the normal case the tax is charged on the full amount which the customer agrees to pay to the trader without any deduction for costs incurred by the trader in making the supply (although VAT on inward supplies to the trader can be deducted as input tax from the traders output tax in calculating the amount of tax payable to HMRC). In the case of commercial gambling, however, it has been recognised that it would be wrong to regard all the money received from participants by the organiser as consideration for the supply of a service. As pointed out by Jacobs AG in H J Glawe Spiel und Unterhaltungsgerate Aufstellungsgesellschaft mbH & Co KG v Finanzamt Hamburg Barmbeck Uhlenhorst (Case C 38/93) [1994] STC 543; [1994] ECR I 1679, paras 14 30, and Fischer v Finanzamt Donaueschingen (Case C 283/95) [1998] QB 833, paras 32 59, the basic activity of gambling involves money changing hands through placing bets and receiving winnings and does not involve the consumption or supply of any goods or service at all. What can be seen as a service is promoting and organising the activity and providing facilities for it. In so far as money received from customers by the promoter or organiser is paid out again to players as winnings, it cannot fairly be regarded as consideration for the supply of this service. It is therefore only the net sum retained by the promoter after deduction of winnings which may be included in the taxable amount for VAT purposes. That approach was endorsed by the court now known as the Court of Justice of the European Union (the CJEU) in the Glawe Spiel case, which concerned the application of the VAT regime to gaming machines. The machines contained two compartments. Coins inserted to play on the machine went into one compartment (the reserve), unless the reserve was full, in which case they went into the cash box. Coins paid out as winnings all came from the reserve. Coins which entered the cash box were retained by the operator for its own benefit. The machines were set up so that on average they paid out as winnings a pre determined proportion of the money inserted. The CJEU held that in these circumstances the taxable amount did not include the winnings paid out to players. To apply this principle to bingo, it is common ground that it is necessary to divide the fees charged by the promoter to customers into two components. One component is referred to as the stake. This is the contribution which each customer is treated as making towards the cash prizes paid out to the winners of games of bingo. The stake is outside the scope of the VAT regime. The other component is the participation fee. This is calculated by deducting the stake from the total fee received and is treated as the consideration obtained by the promoter in return for the supply to the customer of the right to play bingo for cash prizes. At all material times, VAT was payable on this component. The change in HMRCs guidance The background to the present dispute is a change in the guidance given by HMRC about how the participation fees on which VAT was payable should be calculated. Until 2007, leaflets and notices published by HMRC stated that bingo promoters should calculate the participation fees separately for each game in a session. This is referred to as the game by game basis of calculation. In 2007, the guidance changed. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that the participation fees treated as taxable turnover should instead be calculated on a session by session basis. The difference of approach matters for this reason. As mentioned, some bingo games are played for fixed prizes advertised or guaranteed in advance. If too few customers pay to attend a session, the proportion of the fee paid by each customer which is attributed to such a game may not be enough to fund the guaranteed cash prize. In that event the promoter will have to top up the prize money for that game from other funds. If participation fees are calculated on a game by game basis, the funds used to top up the prize money for any game will not reduce the taxable turnover for the session. If, on the other hand, participation fees are calculated on a session by session basis, then amounts used to top up the prize money for any game will reduce the taxable turnover for the session (unless and to the extent that the total prize money paid out in the session exceeds the total fees received). Accordingly, if the game by game basis of calculation is used, the taxable consideration will potentially be higher than where the session by session basis is used. This is because, on the game by game approach, part of the prize money given out (that part which, for any individual game, is funded by participation fees attributable to other games in the session) is subject to VAT, whereas on the session by session approach this part of the prize money is not subject to VAT. The business brief As mentioned, the change of approach by HMRC was announced in the business brief, published in 2007, which aimed to clarify HMRCs policy on how to calculate for VAT purposes participation fees paid by cash bingo players. The key parts of the business brief said this: Calculating the VAT due When a player pays to participate in all or part of a bingo session, the supply made by the promoter is the right to participate in the number of games during that session for which they have received payment. As a player cannot participate in further sessions unless they make further payment, the supply to the player is completed when the session ends. In these circumstances the amount of VAT due on participation and session charges should properly be calculated on a session by session basis by deducting the stake money arising in each individual session from the total amount (less any admission fees) paid by players to participate in that same session. Where money from other sources is added to the stake money received in the session in order to meet guaranteed prizes, that additional money cannot be used to reduce the value for VAT of the participation and session charges paid for taking part in that session. Making claims or adjustments Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45 How to correct VAT errors or make adjustments or claims. In particular, businesses should note that: where the total of previous errors does not exceed 2,000 net tax, an adjustment may be made to your current VAT return; but where the total of previous errors exceeds 2,000 net tax a separate claim should be submitted to HMRC (in these cases the errors must not be corrected through your VAT returns). HMRC may reject all or part of a claim if repayment would unjustly enrich the claimant. Notice 700/45, to which cross reference was made in the business brief, gives general guidance on how to correct errors and make other adjustments to VAT returns and how to claim refunds of any VAT paid that was not due. At the relevant time the notice stated that any such claim or adjustment was subject to a time limit of three years. The legislative basis for the guidance in Notice 700/45 on claiming a refund of VAT paid that was not due was section 80 of the VAT Act. The version of section 80 in force at the relevant time (as amended by section 3 of the Finance (No 2) Act 1995) stated: Subsections (1A) and (1B) made further provision for the crediting and repayment of amounts that were not due. Section 80 continued: (1) Where a person (a) has accounted to the Commissioners for VAT for a prescribed accounting period (whenever ended), and (b) in doing so, has brought into account as output tax an amount that was not output tax due, the Commissioners shall be liable to credit the person with that amount. (2) The Commissioners shall only be liable to credit or repay an amount under this section on a claim being made for the purpose. (3) It shall be a defence, in relation to a claim under this section by virtue of subsection (1) or (1A) above, that the crediting of an amount would unjustly enrich the claimant. (4) The Commissioners shall not be liable on a claim under this section (a) (1) or (1A) above, or (b) (1B) above, to repay an amount to a person under subsection to credit an amount to a person under subsection if the claim is made more than three years after the relevant date. (4ZA) The relevant date is (a) in the case of a claim by virtue of subsection (1) above, the end of the prescribed accounting period mentioned in that subsection (7) Except as provided by this section, the Commissioners shall not be liable to credit or repay any amount accounted for or paid to them by way of VAT that was not VAT due to them. The taxpayers claims for repayment Until 2007, the taxpayer accounted for VAT on its bingo operations on a game by game basis in accordance with HMRCs published guidance. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of tax that would not have been payable had it calculated its taxable turnover on a session by session basis rather than a game by game basis. Because of the time limit in section 80(4), this claim was limited to output tax paid in the previous three years. The taxpayer was repaid the amount of tax that was not due in those years applying the session by session basis. In 2011 a First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator which had made a claim to be repaid output tax going back to 1996. As with the taxpayer in this case, that operator had calculated its taxable turnover on a game by game basis until HMRC published the business brief. The argument advanced in support of its claim was afterwards adopted by the taxpayer in the present case and I will consider it in more detail soon. In short, it was said that the change to a session by session basis of calculation had brought about a decrease in the taxable consideration received by the operator during the relevant period and that the operator was entitled to make an adjustment to its VAT return to reflect this reduction which was not subject to any time limit. The First tier Tribunal accepted this argument and allowed the appeal: see Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In the light of this decision, the taxpayer in the present case made an adjustment of output tax in its VAT return for the period ending December 2012 in a sum of 460,630.36 by way of a credit to offset output tax brought into account in the years 1996 to 2004. The credit represented the amount of output tax that would not have been brought into account in those years if the session by session basis rather than the game by game basis of calculation had been used. The taxpayer explained its reasons for making this adjustment in a letter to HMRC dated 29 January 2013. On 21 March 2013 HMRC issued a decision declining to accept the adjustment and assessing the taxpayer for what it considered to be undeclared output tax in a corresponding amount. The proceedings below The taxpayer appealed against HMRCs decision and assessment to the First tier Tribunal (Tax Chamber), which allowed the taxpayers appeal, substantially adopting the reasoning of the tribunal in the Carlton Clubs case [2016] UKFTT 508 (TC). HMRC appealed to the Upper Tribunal (Tax and Chancery Chamber), which refused the appeal [2017] STC 1895; but its further appeal to the Inner House of the Court of Session was allowed by the First Division (Lord Carloway, Lord President, Lord Drummond Young and Lord Tyre) for reasons given in an opinion dated 13 December 2018: [2018] CSIH 78; [2019] STC 368. The Inner House accordingly reinstated HMRCs assessment of VAT. However, it granted the taxpayer permission to appeal to this court, noting that there are some 14 other cases pending which raise similar or related issues and are said to have a total value in the region of 30 to 40m. The taxpayers case The taxpayers case, presented with dexterity by Mr Roderick Cordara QC, has exhibited a somewhat protean quality but can, I think, be captured in the following contentions: i) The game by game and session by session methods were both lawful and correct methods of calculating output tax due on fees charged by the taxpayer for the right to play bingo for cash prizes and, as such, the taxpayers claim is not a claim for repayment of tax paid that was not due (which would be time barred under section 80 of the VAT Act). ii) Instead, the taxpayer has made an adjustment to its VAT return (to which no time limit applies) to reflect a decrease in consideration for the relevant supplies of services which has resulted from the change in the method of calculation. iii) The taxpayer is entitled to make such an adjustment as it was required or invited to do so by HMRC in the business brief. The statutory time limit The first and fundamental obstacle which the taxpayers claim faces is the time limit imposed by section 80 of the VAT Act. It is not disputed that the UK is entitled to set a time limit for making any claim to be credited or repaid tax that has been overpaid and that the time limit imposed by section 80 is valid and effective for this purpose. Hence it is not in dispute that, if the taxpayers claim for repayment of VAT accounted for between 1996 and 2004 falls within section 80, the claim is time barred. The taxpayer is therefore in the position of having to show, in order to succeed, that the output tax for which it accounted to HMRC on a game by game basis in those years was indeed due to HMRC. That is because if the amount which the taxpayer is claiming was not VAT due to [HMRC], then pursuant to section 80(4) and (7), HMRC is not liable to credit or repay that amount. This confronts the taxpayer with a dilemma. Clearly it does not wish to argue and does not argue that the approach set out by HMRC in the business brief was wrong and that the correct basis of calculation is the game by game basis and not the session by session basis. Such a contention, if correct, would defeat the taxpayers claim for repayment as it would mean that, for the years covered by the claim, tax has been correctly accounted for on the game by game basis. Worse than that, it would also mean that, by using the session by session basis of calculation for periods after 2004, the taxpayer has underpaid VAT and therefore owes money to HMRC. On the other hand, if the taxpayer accepts that, as stated in the business brief, VAT should properly be calculated on the session by session basis and not the game by game basis, then the taxpayer is in principle entitled to be repaid the amounts of output tax that were overdeclared in past years as a result of using the game by game method of calculation on the ground that such amounts were not due to HMRC. The taxpayer has indeed made a successful claim on this basis for the years 2005 to 2007. However, if this is the correct view, then the present claim relating to earlier years is time barred. The way in which the taxpayer seeks to escape this dilemma is by arguing that both methods of calculation are, in principle, correct and consistent with the applicable legislation. Accordingly, when the taxpayer was using the game by game method, it was paying output tax that was due; but it was also complying with the legislation and paying output tax that was due when it adopted the session by session method of calculation. To develop this argument, Mr Cordara QC drew a contrast between the normal case in which ascertaining a traders taxable turnover is a straightforward question of fact and a class of cases in which evaluative judgment is required. In the normal case the consideration obtained for a supply of goods or services is ascertained by identifying what, as a matter of fact, the customer agreed to pay for the supply. Sometimes, however, a single price is charged by a supplier which comprises a taxable element and a non taxable element (or element subject to a different rate of tax). This might be, for example, because a single price covers the supply of a service which is subject to VAT and another service which is exempt. In such cases some method of apportionment is needed to determine what part of the price paid by the customer is attributable to each element. This is often not an exact process. There may be no single right method of apportionment but two or more methods each of which is reasonable and legitimate. The present case falls into the category where the amount which the customer has agreed to pay needs to be split into two separate elements, one of which is taxable and the other not. The split is not one which has been agreed between the customer and the supplier. It requires an apportionment to be made based on an enquiry into the internal financial position of the suppliers business. Mr Cordara submitted that whether to take as the accounting unit for this purpose individual games of bingo, or bingo sessions, or all the games or sessions held in a week, or in a month, or in some other period, is a question to which there may be no one right answer. In relation to the taxpayers business, he argued, both the game by game basis and the session by session basis were reasonable and valid methods to adopt. It therefore cannot be said that, by accounting for VAT using the game by game method in line with HMRCs guidance at the time, the taxpayer brought into account as output tax any amount that was not due and which it is now seeking to claim back. In their written case counsel for HMRC did not appear to dispute that there was more than one lawful method of apportionment available to the taxpayer in this case. In oral argument Mr Thomson QC clarified HMRCs position as being that, while this may be so in principle, it was not true on the agreed facts of this case. For my part I think it clear that there can be only one correct method of calculating the taxable element of fees charged to customers for playing cash bingo and that, on the facts of the present case, this was the session by session method and not the game by game method. The correct method of calculation Counsel for the taxpayer was concerned to emphasise that deciding how to apportion a unitary price charged by a supplier into two elements for the purpose of calculating VAT can involve an exercise of evaluative judgment, as to which differences of view can exist within a spectrum of what is reasonable. This is undoubtedly true. But it does not follow that there must be more than one method of apportionment which the supplier may lawfully use. Although that is a possible conclusion for a court or tribunal to reach, in most cases where such a question is raised the court or tribunal can be expected to exercise its own judgment as to which method should be used. There is good reason for this. In matters of taxation consistency of approach is of critical importance. If the same exercise of apportionment may lawfully be carried out in more than one way, the result is likely to be that different taxpayers whose situations are identical will lawfully pay different amounts of tax. That offends the principle of equal treatment. It is also capable of distorting competition between businesses. In the case of a pan European system of taxation such as VAT, there is an additional consideration that recognising more than one method of apportionment as lawful could result in inequality in competition between businesses situated in different member states. This was a matter emphasised by the CJEU in MyTravel plc v Customs and Excise Comrs (Case C 291/03) [2005] STC 1617. That case concerned the apportionment for VAT purposes of a single price charged by a tour operator to customers for a package holiday which comprised services bought in from third parties (for example, hotel owners) and services provided by the tour operator itself (for example, where it used its own airline). In an earlier decision, Customs and Excise Comrs v Madgett and Baldwin (trading as Howden Court Hotel) (Joined Cases C 308/96 and C 94/97) [1998] STC 1189, the CJEU had considered two possible methods of making such an apportionment. One method treated the consideration attributable to each component as proportional to what it cost the operator to supply the service. The other method was based on the market value of each component, if sold separately. Both methods involved assumptions which were to some extent arbitrary. The court had ruled (at para 46 of the judgment) that: a trader may not be required to calculate the part of the package corresponding to the in house services by the actual cost method where it is possible to identify that part of the package on the basis of the market value of services similar to those which form part of the package. This could be read as giving the trader, where the market value of the in house services can be established, a choice of which method to use. In the MyTravel case, however, the CJEU held that this is not the position. The court ruled that a trader may not use the market value method at its own discretion according to whether this produces a lower tax liability than would result from using the actual cost method. Rather, the trader must use the market value method whenever possible unless the trader proves that the criterion of actual costs reflects the actual structure of the package (para 35 of the judgment). The reasons given (at paras 32 33 of the judgment) for not according traders the right to choose which method to use bear quotation: 32 The grant to taxable persons of such a right could have the consequence of allowing them to increase artificially the taxable amount subject to the lowest rate and of thus creating an inequality in competition between businesses, in favour of those which have established their business or have a fixed establishment in a member state which taxes certain transactions at very low rates or even zero rates them, as in the United Kingdom in relation to passenger transport. Such an interpretation could, therefore, run counter to the principle of neutrality of VAT. 33 As is apparent from the ninth recital in the preamble to the Sixth Directive, the Community legislature wished the taxable base to be harmonised so that the application of the Community rate to taxable transactions leads to comparable results in all the member states. This harmonisation is thus intended to ensure that situations similar from an economic or commercial point of view are treated identically as regards application of the VAT system. The harmonisation thus helps to ensure the neutrality of that system. The same aim of seeking to achieve harmonisation and a uniform basis of assessment such as will eliminate, as far as possible, factors which may distort competition is reflected in the fourth, seventh and eight recitals to the Principal VAT Directive. The only case cited on this appeal which proceeded on the basis that a taxable person had a right to choose between different lawful methods of apportionment is Victoria & Albert Museum Trustees v Customs and Excise Comrs [1996] STC 1016. In that case the trustees of a museum needed to apportion input tax on goods and services purchased for use in both their business and non business activities. Guidance published by HMRC stated that for this purpose there is no special method of apportionment and that any method could be used, provided that it produced a fair result and was used with the prior agreement of the local VAT office. Having used one method of apportionment for several years, the trustees obtained the agreement of their local VAT office to use a different method which was more advantageous to them. They then claimed a refund of the tax that would have been saved if the more favourable method had been used in earlier years, relying on a regulation which allowed an error in accounting for tax or in any return to be corrected. Turner J affirmed the finding of a tribunal that the trustees had not made an error when all that had happened was that they had chosen a method of assessment which did not provide the most favourable outcome. Whether or in what circumstances it is compatible with EU law to allow taxpayers a choice between methods of apportionment when calculating VAT was not a question considered in the Victoria & Albert Museum case, nor is it necessary to explore that question further here. The argument in the Victoria & Albert Museum case proceeded on the assumption that there was more than one lawful method of apportionment in accordance with the HMRC guidance applicable in that case. What the decision shows is that, if that is the position, it does not lead to the conclusion desired by the taxpayer. Where a lawful method has been adopted, the fact that another method could lawfully have been used does not in itself provide any basis for subsequently claiming a refund of tax that would have been saved if the alternative method had been used instead. In any event the facts of this case bear no relevant similarity to those of the Victoria & Albert Museum case. It has never been suggested in guidance issued by HMRC that bingo promoters had a discretion to choose between different methods of apportionment. Furthermore, contrary to what has been urged on the taxpayers behalf, the apportionment between taxable and non taxable elements of fees charged by bingo promoters to customers does not require an evaluative judgment. It is simply a matter of arithmetic and involves no exercise of judgment at all. Before a composite or package price is apportioned between taxable and non taxable elements, it is first necessary to identify the service or services in return for which the price is being charged. On the agreed facts of the present case, there can be no doubt about this. It is an agreed fact that what a customer who wishes to play bingo at one of the taxpayers clubs receives in return for payment of the fee charged is the right to participate in a session of bingo. That is reflected in the book of cards supplied to the customer at the time of payment. Whether customers choose to use all the cards they receive and play each game included in the session is up to them: there is no suggestion that any refund is available if a customer does not take part in a game; nor are cards sold separately for the individual games in a session. I recognise that the fact that a single composite price is charged is not decisive and there may be cases in which it better reflects commercial reality to regard customers who pay a single price as intending to purchase two or more distinct services: see Card Protection Plan Ltd v Customs and Excise Comrs (Case C 349/96) [1999] 2 AC 601, paras 29 31. However, in the present case I can see no reason and none has been advanced for going behind the pricing policy adopted by the taxpayer and treating the fee charged to participate in a session of bingo as if it were a bundle of separate fees charged for the rights to play separate games. On the contrary, such a division would fail to reflect the commercial reality that what a customer purchases and intends to purchase is the right to play all or any of the games which make up the session as he or she chooses. Once the relevant supply has been identified as the right to participate in a session, the apportionment of the fee charged to the customer into the separate components referred to as the stake and the participation fee does not involve any exercise of judgment. It is a simple arithmetical calculation. All that is required is to add up the total fees received for each session and deduct the total cash value of the prizes paid out in that session to arrive at the taxable consideration. That is an exercise which can yield only one correct answer. I therefore think it clear that on the agreed facts of this case the session by session basis was the only correct method of calculating taxable turnover. The game by game basis was an incorrect method to use because it wrongly treated customers as if they were paying separate fees to participate in individual games when in fact they were not. It follows that, in so far as the taxpayer accounted for more output tax and paid more VAT between 1996 and 2007 as a result of using the game by game basis of calculation than it would have done if the session by session basis had been used, the taxpayer accounted for and paid to HMRC tax that was not due. This should be a satisfactory conclusion for the taxpayer, as it means that the taxpayer was entitled under section 80 of the VAT Act to the refund of VAT for periods after September 2004 which it claimed. But the conclusion is not as munificent as the taxpayer would like, as it also means because of the time limit in section 80(4) that the taxpayer is not entitled to any refund of tax accounted for or paid to HMRC in any earlier period. That is a complete answer to taxpayers claim in these proceedings, but I will also address the further steps in the taxpayers argument. Alleged decrease in consideration The legislative provision on which the taxpayer has sought to found a claim for repayment of VAT without falling within section 80 of the VAT Act is article 90 of the Principal VAT Directive. This states: In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. Although a contrary opinion was expressed by Lord Drummond Young in the Inner House, it is common ground on this appeal that there is no difference in meaning between the term price in article 90 and the term consideration used in article 73: see eg Finanzamt Bingen Alzey v Boehringer Ingelheim Pharma GmbH & Co KG (Case C 462/16) EU:C:2017:1006, para 45. The mechanism in UK national law for claiming repayment of VAT in cases covered by article 90 is contained in regulation 38 of the 1995 Regulations. Regulation 38 applies where there is an increase or a decrease in consideration for a supply which includes an amount of VAT, and the increase or decrease occurs after the end of the prescribed accounting period in which the original supply took place. In such circumstances the taxable person is required to adjust his VAT account in accordance with the regulation. Unlike where a claim for repayment of tax is made under section 80, there is no time limit for making an adjustment under regulation 38. The taxpayer argues that, where there has been a change from one method of calculating its tax liability (the game by game basis) to another method (the session by session basis) which produces a lower taxable amount, the adoption of the new method at any rate where it takes place in response to a relevant communication from HMRC involves a decrease in consideration (or reduction in the price) occurring after the accounting period in which the original supply took place. This accordingly requires an adjustment to be made under article 90 of the Principal VAT Directive and regulation 38 of the 1995 Regulations to reduce the amount of tax payable. I do not consider this a tenable interpretation of the legislation, essentially for reasons given by the Inner House. As the CJEU has observed on several occasions, the provision which is now article 90 of the Principal VAT Directive embodies one of the fundamental principles of the directive, according to which the basis of assessment is the consideration actually received by the taxable person. In accordance with that principle, the provision: requires the member states to reduce the taxable amount whenever, after a transaction has been concluded, part or all of the consideration has not been received by the taxable person. See Goldsmiths (Jewellers) Ltd v Customs and Excise Comrs (Case C 330/95) [1997] ECR 1 3801; [1997] STC 1073, paras 15 16; Freemans plc v Customs and Excise Comrs (Case C 86/99) [2001] 1 WLR 1713, para 33; Grattan plc v Revenue and Customs Comrs (Case C 310/11) [2013] STC 502, para 35. This may occur because part or all of the price is not in the event paid or because some form of rebate or refund is made by the supplier which reduces the consideration received after the supply has taken place. What is required, however, is a change in the consideration actually received by the supplier. No case has been cited in which it has been held that a change in the method used to calculate the taxable proportion of the consideration received falls within the scope of article 90. It is plain, in my view, that it does not. In such a case nothing has happened since the time of the supply to reduce the consideration actually received at that time. All that has happened is that the taxpayer has had second thoughts about how the consideration received at the time of the supply should be analysed for tax purposes. The position was well summarised by Lord Drummond Young in the Inner House, when he said (at para 61 of the judgment) that what is involved when a retrospective shift is made by a bingo promoter from a game by game to a session by session basis of calculation is not a decrease in consideration in the real world, as between a supplier and its customer, but is rather a re attribution of tax liability within the taxpayers internal accounts. I agree. A case heavily relied on by the taxpayer is Elida Gibbs Ltd v Customs and Excise Comrs (Case C 317/94) [1997] QB 499. This concerned coupon schemes operated by a manufacturer of toiletries under which consumers who presented a coupon (either cut out from a newspaper or magazine or distributed by the retailer) when buying a product in a shop received a discount off the purchase price. The prices charged by the manufacturer to wholesalers, and by wholesalers to retailers, were not affected by the coupon schemes. But retailers who accepted coupons from consumers could get the value of the coupons refunded to them directly by the manufacturer. The CJEU held that in calculating its taxable turnover the manufacturer could deduct the sums which it refunded, even though there was no direct contractual relationship between the manufacturer and the retailers to whom the sums were paid. The taxpayer emphasised that the CJEU in its judgment treated the predecessor provisions to articles 73 and 90 as expressions of the same underlying principle (of neutrality) and did not make it clear, or apparently think it necessary to specify, under which of those provisions the taxable amount was to be reduced. The taxpayer further emphasised that the reduction in the taxable amount recognised in the Elida Gibbs case did not involve any amendment of the contract or refund of money between the manufacturer and its customer (the wholesaler). This was said to show that in the present case there could likewise be a reduction in the taxable amount, and hence in the amount of VAT payable by the taxpayer, without any contractual amendment or refund of money to its customers. In my opinion, the decision in the Elida Gibbs case provides no assistance to the taxpayer. Although the CJEU was not asked to and did not decide in that case whether (the predecessor to) article 73 or article 90 was the applicable provision, it is clear from later decisions that it was the latter provision which applied and that the correct analysis is that the original taxable amount (ascertained when the goods were supplied by the manufacturer to its wholesaler customer) was subsequently reduced when coupons were accepted and refunds claimed and paid: see Freemans plc v Customs and Excise Comrs (Case C 86/99) [2001] 1 WLR 1713, paras 31 33 and 36; Finanzamt Bingen Alzey v Boehringer Ingelheim Pharma GmbH & Co KG (Case C 462/16) EU:C:2017:1006, paras 37 42. The fact that the refunds were paid, not to the manufacturers own customer but to a party further down the supply chain, was held not to matter. But it was fundamental to the courts reasoning in the Elida Gibbs case that the original taxable amount was not actually received by the manufacturer because part of that amount was subsequently repaid albeit directly to retailers rather than to its own customer. In the present case the supply chain does not extend beyond the taxpayers bingo playing customers and so the possibility of refunding part of the price to someone further down the supply chain does not arise. That feature of the Elida Gibbs case is therefore of no relevance. The essential point is that, unlike in the Elida Gibbs case, there has been no refund made to anyone by the taxpayer and accordingly article 90 is not engaged. It is worth noting in this context the reason why there is no time limit for making an adjustment under regulation 38 and the fact that this reason does not justify exempting from any time limit a claim of the present kind. Until it was revoked in 2009, regulation 38 used to contain a provision which said that it did not apply to any increase or decrease in consideration which occurs more than three years after the end of the prescribed accounting period in which the original supply took place. In General Motors Acceptance Corpn (UK) plc v Revenue and Customs Comrs (2003) VAT decision 17990 a tribunal held that this provision was ineffective because it was incompatible with the predecessor to article 90 of the Principal VAT Directive the reason being that imposing a limitation period has the effect of ousting the taxable persons basic right to be taxed on the consideration received by him and no more (see para 65). This is clearly right. It is right because no adjustment can be made under regulation 38 unless and until an event occurs, however long after the original supply was made, which reduces the consideration actually received by the taxable person. It would be contrary to principle if the taxable person was barred from making the necessary adjustment to its tax liability to take account of such an event by a time limit which had expired before the event occurred and the adjustment was capable of being made. That rationale, however, has no application in a case of the present kind where what is said to constitute a decrease in consideration does not depend on any event which has occurred since the supply of services was made. All that has happened is that the taxpayer has subsequently altered the way in which it has calculated its VAT liability. All the matters, however, on which the calculation of its liability is based (the amount of fees received from customers and the amount of the prize money paid out) were established when the original supply was made indeed even before each bingo session began. Nothing has happened since then which needs to be brought into account and which the taxpayer might have been prevented from bringing into account if there were a time limit. This is consistent with the fact that regulation 38 and article 90 are concerned with actual payments or changes in the liability to make payments which occur after a supply of goods or services has taken place and not with a mere subsequent change of accounting method. The effect of the business brief It would undermine the orderly management of the tax system and subvert the policy embodied in section 80 of the VAT Act if a taxable person could insist on adjusting its tax liability for all past years, without any limit in time, simply by deciding to adopt a different method of calculating the taxable element of the price charged to its customers. I noted earlier that, even if it had been true that the game by game method and the session by session method of calculating taxable turnover were both valid and lawful methods, the fact that the taxpayer switched after 2007 from one lawful method to another would not of itself give the taxpayer any right to recover the tax that it would have saved if it had previously used the session by session method. The basis on which the taxpayer has sought to found such a right is the publication by HMRC of the business brief. That document is said to have required or invited bingo promoters in the position of the taxpayer to make a retrospective adjustment to their VAT account by re calculating their output tax for all past years (without limit in time) using the session by session basis instead of the game by game basis of calculation. The way in which the taxpayers case was put before the tribunals and the Inner House was to argue that, although both methods of calculation were consistent with the applicable legislation, the taxpayer was required to use the method set out in the guidance published by HMRC at any given time. This guidance was said to contain directions as to the method of calculation to be used. Thus, it was said that initially directions given by HMRC required the taxpayer to calculate its taxable turnover on a game by game basis. But then, when the guidance changed, the taxpayer was required to calculate its taxable turnover using the session by session basis of calculation not only going forward but also retrospectively for all past periods. It is, however, a misconception to characterise guidance of the kind issued by HMRC in this case as capable of giving directions with which taxpayers are obliged to comply. As Lewison LJ explained in Leeds City Council v Revenue and Customs Comrs [2015] EWCA Civ 1293; [2016] STC 2256, para 4: The administration and collection of VAT in this country is under the management of HMRC (formerly the Commissioners for Customs and Excise). There are many problems of interpretation arising out of the VAT code and HMRC provide the public with their own interpretation of points of difficulty; and information about the practice they adopt in various areas. These are variously contained in notices, business briefs and the VAT manual. They are not law: they are no more than HMRCs interpretation of the law. HMRC are not of course infallible, and so Parliament has legislated for a system of tribunals to decide contested points. As and when cases are decided against HMRC they will often revise their opinion and inform the public accordingly. Sometimes, of course, HMRC disagree with a tribunal decision, in which event they may choose to appeal. The fundamental point that an administrative agency, such as HMRC, has no power (in the absence of specific statutory authority) to issue guidance which has legally binding force is qualified by the doctrine which protects legitimate expectations created by such a public body. There is no doubt that guidance formally published by HMRC is capable in some circumstances of generating an expectation on the part of a taxpayer that a particular policy or practice or course of action will be followed which the law will protect by preventing HMRC from acting in a way which will frustrate that expectation: see eg R (Davies) v Revenue and Customs Comrs [2011] UKSC 47; [2011] 1 WLR 2625, paras 25 29. It is not necessary on this appeal, however, to examine the precise contours of this doctrine, as it is clear that it has no relevance to the facts of this case. The taxpayer is not seeking to prevent HMRC from frustrating an expectation said to have been created by guidance published before 2007 that the game by game method could properly be used to calculate the amount of VAT payable. Such an argument might have been advanced if the game by game method had been more favourable to the taxpayer than another method which HMRC was now contending ought to be used. But the factual situation in this case is the direct opposite of that. The taxpayer is seeking to argue that the game by game method should not be used to calculate the tax that was payable in periods before 2007. Any legitimate expectation that the taxpayer is entitled to rely on the accuracy of pre 2007 guidance does not assist that argument. Accordingly, to suggest that the business brief required bingo promoters to use the session by session basis of calculation ascribes to guidance published by HMRC a status which it does not have. Such guidance is not capable of imposing on taxpayers an obligation to calculate tax in a particular way. It represents only HMRCs view or interpretation of the law and, if a taxpayer disagrees with HMRCs view, it can appeal from a decision or assessment based on that view to a tribunal whose function it is to give authoritative interpretations of the law (subject to any further appeal). In any case it is quite impossible to read the language of the business brief as instructing bingo promoters to make retrospective adjustments to their VAT returns. The section of the business brief (quoted at para 15 above) headed Making claims or adjustments says that bingo promoters who fall into the category described may make a claim for a repayment, not that they must to do so. In oral argument on this appeal Mr Cordara for the taxpayer accepted that the business brief merely invited and did not require bingo promoters who had in past periods calculated VAT on a game by game basis to seek a repayment. His submission was that this could be done as the heading of the relevant section of the business brief indicated in either of two ways: by making a claim or by making an adjustment. If a bingo promoter made a claim for repayment on the basis that it had paid tax which was not due, this would be governed by section 80 of the VAT Act, with its time limit on recovery. If on the other hand the promoter elected to make an adjustment under regulation 38 on the basis that there had been a decrease in consideration for the supply, then (as already mentioned) such an adjustment is not subject to any time limit. Having originally availed itself only of the first option, it is the latter invitation which the taxpayer has now chosen to accept. I have explained why, as a matter of law, the only basis on which a repayment of tax could properly be claimed or made in the circumstances of the present case is that the tax was not due because it was calculated on a game by game basis when it should have been calculated on a session by session basis, and that there is no legal basis on which an adjustment under regulation 38 could properly be made. Had HMRC invited bingo promoters to make such adjustments and offered to repay tax which it was not liable to repay, it seems to me that it would have been acting outside its powers. But, in any case, the business brief cannot reasonably be read as making such an invitation or offer. The only invitation made in the business brief was to bingo promoters who have calculated VAT on a game by game basis, and who now find that they have done so incorrectly, to make a claim to HMRC for a repayment of any resulting overdeclaration. Such a claim can only reasonably be understood as a claim under section 80 the VAT Act, made on the footing that the promoter had overpaid tax because it had used the game by game method of calculation when, as advised in the business brief, the amount of VAT due should properly be calculated on a session by session basis. The sole peg on which the taxpayer seeks to hang its contention that adjustments under regulation 38 were invited is the reference to adjustments in the section heading and in the cross reference to Notice 700/45. It is true that the subject matter of Notice 700/45 included adjustments under regulation 38 (although, unhelpfully for the taxpayers case, such adjustments were said in the notice to be subject to a time limit of three years). However, the notice provided entirely general guidance about how to correct VAT errors and make adjustments or claims and was not specifically concerned with bingo. The fact that it included an explanation of how to make an adjustment under regulation 38 therefore does not mean that HMRC in the business brief were inviting bingo promoters who had previously used a game by game basis of calculation to make an adjustment under regulation 38. There was no suggestion that everything covered by the notice was relevant to the claims for repayment which bingo promoters were invited to make. Nor does the fact that the heading refers to making claims or adjustments support such an inference. The reference to adjustments in the body of the section, to which this must relate, is in the first bullet point, which states that where the total of previous errors does not exceed 2,000 net tax, an adjustment may be made to your current VAT return. This kind of adjustment to correct small errors was provided for in regulation 34 of the 1995 Regulations (and was also explained in Notice 700/45). It was quite different from the kind of adjustment to reflect a decrease in consideration provided for in regulation 38. Moreover, as the second bullet point explained, where the total of previous errors exceeds 2,000 net tax a separate claim should be submitted to HMRC. This could only be a claim under section 80 of the VAT Act for repayment of tax paid in error when it was not due. That was yet further confirmed by the statement that HMRC may reject all or part of a claim if repayment would unjustly enrich the claimant. A defence of unjust enrichment is provided by section 80(3) in relation to claims under section 80 of the VAT Act. I therefore consider that the language of the business brief is entirely inconsistent with the taxpayers case and can only reasonably be read in the way that it was originally read by the taxpayer, as inviting (only) claims from bingo promoters for repayment of VAT which had been calculated incorrectly by using the game by game basis of calculation when the session by session basis ought to have been used, subject to the statutory time limit for such claims of three years. Conclusion For these reasons I can find no merit in the taxpayers arguments and would dismiss the appeal.

The Appellant (the taxpayer) operates bingo clubs. Customers pay a fee, which entitles them to play in a number of bingo games (collectively, a session). There is no obligation to play every game in a session. Prizes are paid to those who win games. VAT is charged on the supply of goods or services. Council Directive (EC) 2006/112 of 28 November 2006 (the Principal VAT Directive), which currently still applies in the UK, establishes a common system of VAT for member states of the European Union. The main UK national legislation is the Value Added Tax Act 1994 (the VAT Act) and the Value Added Tax Regulations 1995 (the 1995 Regulations). VAT is normally charged on the full amount paid by the customer. However, exceptionally in the case of commercial gambling the taxable amount is the net sum retained by the organiser after deducting the winnings paid out. For bingo, the fees charged must therefore be divided into two components: the stake, which is the contribution each customer makes towards the cash prizes, and the participation fee, which is the total fee received minus the stake. At all relevant times VAT was payable on the participation fee and not the stake. The present dispute arises from a change in guidance given by HMRC about how participation fees should be calculated. Until 2007, the guidance stated that bingo promoters should calculate the participation fees separately for each game. In February 2007, HMRC issued Business Brief 07/07 (the business brief), which stated that participation fees should be calculated on a session by session basis. This is more favourable to the promoter than the game by game basis as it tends to produce a lower taxable amount. The business brief stated that Bingo promoters that have calculated the VAT due on participation and session charges on a game by game basis, and who now find that they have done so incorrectly, may make a claim to HMRC for a repayment of any resulting overdeclaration, subject to the conditions set out in Notice 700/45. Notice 700/45 gave general guidance and stated that a claim was subject to a time limit of three years. This time limit had a legislative basis in section 80 of the VAT Act. The taxpayer accounted for VAT on a game by game basis until 2007. After the business brief was issued, the taxpayer made a claim under section 80 of the VAT Act for repayment of sums overpaid as a result of having used this basis of calculation; because of the time limit in section 80, the taxpayer claimed and was repaid for the previous three years only. In 2011, the First tier Tribunal (Tax Chamber) heard an appeal by another bingo club operator, which argued that it was entitled to make an adjustment without any time limitation. The First tier Tribunal agreed: Carlton Clubs plc v Revenue and Customs Comrs [2011] UKFTT 542 (TC); [2011] SFTD 1209. In light of that case, the taxpayer in the current dispute sought to make an adjustment for the years 1996 HMRC declined to accept that. The taxpayer appealed. The question for the Supreme Court was whether the taxpayer was entitled to make such an adjustment. The Supreme Court unanimously dismisses the appeal. Lord Leggatt gives the sole judgment. The first obstacle facing the taxpayer was the time limit in section 80 of the VAT Act, which applied to recovery of money paid that was not VAT due to HMRC. To avoid the time limit, the taxpayer therefore had to argue that all the tax paid on a game by game basis in the years 1996 2004 was due to HMRC [24]. The taxpayer argued that both the session by session and game by game methods were legitimate methods of calculation. As such, when using the game by game method, it was paying tax that was due and therefore section 80 of the VAT Act, and its time limit, did not apply [27]. Lord Leggatt disagreed; there was only one correct method of calculating the taxable element which was the session by session method [30]. In the present case, it was an agreed fact that a customer purchased a right to participate in a session of bingo [38]. No reason was advanced for going behind the pricing policy adopted by the taxpayer [39]. It followed that if, as a result of using the game by game basis, the taxpayer had paid more VAT to HMRC between 1996 and 2007 than if it had used the session by session method, then the taxpayer had paid tax that was not due. This means that section 80 with its three year time limit applied, so that VAT paid before 2004 cannot be recovered [41]. This was sufficient to dispose of the appeal. However, Lord Leggatt went on to address the rest of the taxpayers argument. The taxpayer sought repayment by relying on article 90 of the Principal VAT Directive, which states In the case of cancellation, refusal or total or partial non payment, or where the price is reduced after the supply takes place, the taxable amount shall be reduced accordingly under conditions which shall be determined by the member states. The mechanism for adjustments under article 90 is found in regulation 38 of the 1995 Regulations, which applies where there is an increase or a decrease in consideration for a supply. There is no time limit for making such adjustments [45]. The taxpayer argued that where the method of calculation changes and produces a lower amount, there is a reduction in the price / decrease in consideration for a supply for which an adjustment can be made under regulation 38 [46]. Lord Leggatt rejected that argument [47]. Article 90 and regulation 38 apply only where there has been a change in the consideration actually received by the taxpayer, not where all that has changed is the method used to calculate the taxable amount [48]. It would subvert section 80 of the VAT Act if the taxable person could, by adopting a different method of calculation, adjust its liability for all past years. The taxpayer further argued that the business brief required or invited bingo promoters to change the calculation method and make retrospective adjustments accordingly [57]. This was also not accepted. HMRC does not generally have the power to issue binding guidance [59] and the business brief was merely HMRCs view of the law; if the taxpayer disagreed, the position would need to be resolved by a tribunal [60]. In any case, the business brief could only reasonably be read as inviting bingo promoters who found that they had incorrectly calculated VAT on a game by game basis to make a claim for repayment under section 80 [64]. It could not be read as inviting promoters to make adjustments under regulation 38 [65]. The business brief was therefore inconsistent with the taxpayers case [67].

8k-16k

The question at issue on this appeal is whether a sewerage undertaker under the Water Industry Act 1991 has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question: Manchester Corporation v Farnworth [1930] AC 171, 183 (Viscount Dunedin), Allen v Gulf Oil [1981] AC 1001, 1013 (Lord Wilberforce). The law before 1991 It has been said that a court should not routinely investigate the statutory predecessors of provisions in a consolidation statute: R v Secretary of State for the Environment, Transport and the Regions, Ex p Spath Holme Ltd [2001] 2 AC 349, 388 (Lord Bingham of Cornhill). This is not so much a rule of construction as a valuable warning against the over ready assumption that a consolidating Act means exactly the same as the enactments which it replaces. There are, however, cases where a consolidating Act cannot be understood without reference to the state of the law as it was when it was enacted. This is one of them. Until 1973, sewerage services in England were generally provided by local authorities, initially under powers conferred by local Acts of Parliament and then under powers successively conferred by the Public Health Acts of 1848, 1875 and 1936. The Water Act 1973 transferred the sewerage and water supply functions of local authorities to statutory regional water authorities. The Water Act 1989 privatised the water industry, transferring the sewerage and the water supply functions of the regional water authorities to commercial water undertakers and sewerage undertakers, and comprehensively restated the powers and duties of those charged with these functions. The Water Industry Act 1991 is a consolidating Act which was passed on the recommendation of the Law Commission in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary: see section 3(1). It is on these changes that the issues on this appeal turn. No right to discharge from public sewers into private watercourses has ever been expressly conferred by statute. It is, however, common ground that such a right existed at least until 1989 and was the basis on which the industry operated for many years. In Durrant v Branksome Urban District Council [1897] 2 Ch 291, the Court of Appeal held that a right to discharge surface water and treated effluent into private watercourses was impliedly conferred on local authorities by the Public Health Act 1875. Section 15 of that Act imposed on local authorities a duty to cause such sewers to be made as might be necessary for effectually draining their district. The extent of that duty was largely demand led. This was because section 21 entitled any owner or occupier of premises in a local authoritys area to connect to a public sewer, and section 18 provided that a local authority should not be entitled to discontinue the use of a sewer unless it made available another sewer which was as effectual for the use of those served by the existing one. The critical sections from which the Court of Appeal derived the right of discharge into private watercourses were sections 16 and 17. Section 16 empowered a local authority to carry any sewer through, across or under any street or road or, on notice to the owner or occupier, any land within their district. Section 17 was a proviso in the following terms: Nothing in this Act shall authorise any local authority to make or use any sewer, drain or outfall for the purpose of conveying sewage or filthy water into any natural stream or watercourse, or into any canal pond or lake until such sewage or filthy water is freed from all excrementitious or other foul or noxious matter such as would affect or deteriorate the purity and quality of the water in such stream or watercourse or in such canal pond or lake. The Court of Appeal did not say that an implied right of discharge into private watercourses was necessary to the efficacy of a local authoritys statutory powers and duties. Nor did they derive it from the mere existence of a power under section 16 to lay sewage pipes through streets, roads or private land. Since the Public Health Act 1875 conferred extensive powers of compulsory purchase on local authorities for the purpose of enabling them to perform their sewerage functions, neither point would have been sound. What they said, adopting the reasoning of North J, the trial judge, was that the right of discharge was implicit in the express terms of section 17, which by restricting the right to discharge foul water into any watercourse impliedly recognised the existence of a right to discharge treated effluent and surface water: see pp 295 (North J), 302 (Lindley LJ), 303 (Lopes LJ), 304 305 (Chitty LJ). There was no provision requiring local authorities to pay for mere exercise of their rights under sections 16 and 17, but they were required by section 308 to pay full compensation for any damage caused by the exercise of any of their powers. This was held to be a sufficient answer to any objection based on the adverse effect on property owners. All of the features of the Public Health Act 1875 on which the Court of Appeal relied in Durrants Case were reproduced in the Public Health Act 1936, which replaced the earlier Act and continued to govern the sewerage powers of local authorities and then of the regional water authorities and privatised sewerage undertakings until 1991. In particular section 17 of the Act of 1875 (the protection against discharges of foul water) and section 308 (the compensation provision) were re enacted with no material changes as sections 30 and 278 of the Act of 1936. When the water industry was privatised by the Water Act 1989, the transfer of sewerage functions and associated assets, rights and duties from the regional water authorities to the new sewerage undertakers was achieved by section 4 of the Water Act 1989 and by schemes made under that section. The object of the schemes was to transfer the property, rights and liabilities of the regional water authorities: see section 4(1). Their contents were regulated by Schedule 2, paragraph 2(1) of which provided that with effect from the transfer date the scheme would transfer to the privatised undertakers in accordance with its provisions all the property, rights and liabilities of the statutory water boards which were not required to be transferred to the National Rivers Authority. In accordance with that provision, the transfer scheme in this case transferred to the undertaker on the transfer date all property, rights and liabilities to which the water authority is entitled or subject immediately before that date. The object of these provisions is to achieve a seamless transfer of the relevant functions, assets, powers and duties to the new undertakers. Under section 4(1), the Secretary of State was empowered to appoint the transfer date on which the functions of the regional water authorities would be transferred to the new undertakers and the transfer schemes would come into effect. Section 194(3)(b) of the Water Act 1989 provided that among other provisions Part II, Chapter III (Provision of Sewerage Services) should automatically come into force on the transfer date, i.e. simultaneously with the transfer of the rest of the undertaking. Part II, Chapter III included all the relevant provisions governing the duties of the privatised sewerage undertakers. These included sections 67 and 69. Section 67 imposed on the privatised sewerage undertakers the duty of effectually draining their area. Section 69 provided that Schedule 8 should have effect for transferring to sewerage undertakers the functions of water authorities relating to the provision of sewerage services and for making amendments of the enactments relating to the transferred functions. Subject to immaterial amendments, Schedule 8, paragraph 1 applied to the privatised sewerage undertakers certain of the provisions of the Public Health Act 1936 which had governed the powers of the regional water authorities since their inception in 1973, as if references in those provisions to a water authority were references to a sewerage undertaker. The incorporated provisions of the Act of 1936 included section 22 (which prevented them from discontinuing the use of a sewer without providing an alternative sewer), section 30 (the protection against the discharge of foul water into watercourses), section 34 (the right of the owner or occupier of any premises to void his drains or sewers into a public sewer) and section 278 (the obligation to make full compensation for any damage sustained by the exercise of the undertakers powers). These provisions included all the provisions of the 1936 Act previously found in the Act of 1875 from which the Court of Appeal in Durrants Case had derived a general right of discharge into private watercourses. The draftsman must therefore have intended in 1989 that that right should subsist. The legislation of 1991 All of these features can be traced through the labyrinthine scheme of amendments, repeals and re enactments into the legislation of 1991, but with significant changes of both form and context. Section 94 of the Water Industry Act 1991, which corresponds to section 15 of the Act of 1875, provides: (1) It shall be the duty of every sewerage undertaker (a) to provide, improve and extend such a system of public sewers (whether inside its area or elsewhere) and so to cleanse and maintain those sewers as to ensure that that area is and continues to be effectually drained; and (b) to make provision for the emptying of those sewers and such further provision (whether inside its area or elsewhere) as is necessary from time to time for effectually dealing, by means of sewage disposal works or otherwise, with the contents of those sewers. Sections 106 and 116 re enact the provisions originally found in sections 21 and 18 respectively of the Act of 1875 conferring a right on owners and occupiers of premises to connect to a public sewer and forbidding local authorities to discontinue the use of a sewer without providing another equally effective sewer for the use of those served by it. Sections 158 and 159 substantially re enact the power to lay pipes across streets, roads and other land which dated back to section 16 of the Act of 1875. The protection against the use of the powers conferred by the Act to discharge foul water into any watercourse, which was originally enacted as section 17 of the Act of 1875 and section 30 of the Public Health Act 1936, is now to be found in modified form in section 117(5) and (6) of the Water Industry Act. These provide: (5) Nothing in sections 102 to 109 above or in sections 111 to 116 above shall be construed as authorising a sewerage undertaker to construct or use any public or other sewer, or any drain or outfall (a) in contravention of any applicable provision of the Water Resources Act 1991; or (b) for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been so treated as not to affect prejudicially the purity and quality of the water in the stream, watercourse, canal, pond or lake. (6) A sewerage undertaker shall so carry out its functions under sections 102 to 105, 112, 115 and 116 above as not to create a nuisance. The provision for compensation for damage caused by any exercise of sewerage powers, which had originally been found in section 308 of the Act of 1875 and section 278 of the Act of 1936, is now represented by the provisions of Schedule 12 of the Water Industry Act 1991, which are at the same time more specific and more elaborate. Paragraph 2 of Schedule 12 is confined to the pipe laying functions of a sewerage undertaker. It confers a right to compensation in respect of the depreciation of the value of land on which pipe laying works are carried out, injurious affection of other land, and other loss or damage attributable to the exercise of an undertakers power to lay pipes through private land. Paragraph 4 confers a right of full compensation for damage occasioned by the exercise by a sewerage undertaker of its powers under the relevant sewerage provisions. I will return later to this expression. The issues There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrants Case is implied into the corresponding provisions of the Water Industry Act 1991. The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force. The alleged general right of discharge: section 159 of the Water Industry Act 1991 The argument for the sewerage undertakers on this appeal is that a general right to discharge into private watercourses should be implied into the Water Industry Act 1991 from the power conferred on an undertaker by section 159 to lay pipes across private land for the purpose of carrying out its functions, together with the definition of those functions in section 94. The problem which confronts this argument is that the particular provisions of the earlier legislation which justified the implication of such a right before 1991 are re enacted in the Water Industry Act 1991 in a somewhat different form and as part of a much more elaborate statutory scheme in which such an implication is more difficult to accommodate. For substantially that reason the Court of Appeal rejected an identical argument in British Waterways Board v Severn Trent Water Ltd [2002] Ch 25. The judgments, and particularly that of Chadwick LJ, contain a detailed analysis of the relevant provisions of the Water Industry Act which makes it unnecessary to repeat the exercise here. In summary, the Court of Appeal held that the Water Industry Act had to be construed as a coherent scheme in its own right, without any a priori assumption that it was intended to reproduce everything in the previous statute law. They considered that that scheme did not include an implied right of discharge into private watercourses, for five main reasons. The first was that section 159 merely authorised the laying of pipes across private land and in itself provided no basis for any implication about the places where those pipes were authorised to discharge. Second, any power derived from section 159 to discharge into private watercourses would not be qualified by the statutory protection in section 117(5) and (6) against the discharge of foul water. This was because in the Act of 1991 these provisions qualify only specified sections of the Act, not including section 159. Therefore, if such a right existed, it would authorise the discharge not only of treated effluent and surface water but foul water, routinely and in unlimited quantities. Third, the provisions of Schedule 12, paragraph 2 of the Act of 1991 for compensation for the exercise of a water undertakers statutory power to lay pipes through private land did not extend to damage caused by discharges from those pipes. The wider duty under paragraph 4 to pay compensation for damage occasioned by a sewerage undertakers exercise of its powers under the relevant sewerage provisions, would not apply because the relevant sewerage provisions is a defined term and does not include section 159. Fourth, although section 159 applied to both water and sewerage undertakers, section 165 conferred an express power of discharge from pipes on water undertakers only. On the face of it, the distinction was deliberate. Fifth, a right of discharge into private watercourses was not necessary to the exercise by the sewerage undertaker of its statutory powers or the performance of its statutory duties. They could discharge into rivers or the sea, or onto their own land, or onto private land or watercourses by agreement with the owner. Any rights which they required but could not obtain (or could not obtain on reasonable terms) could be acquired by compulsory purchase, paying the proper statutory measure of compensation. The Courts conclusion is summarised by Chadwick LJ at para 71: The fallacy, as it seems to me, lies in the underlying (but unspoken) premise that Parliament must have intended that sewerage undertakers should have facilities to discharge (which, plainly, they do require in order to carry out their functions) without paying for those facilities. Whether or not that premise could have been supported in the context of a public authority charged with functions imposed in the interests of public health, it cannot be supported, as it seems to me, in the context of legislation enacted following a decision to privatise the water industry. We were invited to hold that British Waterways Board v Seven Trent Water Ltd was wrongly decided. In my view we should decline that invitation. The reasoning of the Court of Appeal in that case is compelling as applied to the only argument that they were actually considering, namely that a power of discharge could be derived from sections 94(1) and 159 of the Act of 1991. Survival of pre existing rights of discharge This issue might have arisen in British Waterways Board v Severn Trent Water Ltd. That case arose out of a dispute about discharges from a sewer outfall into the Stourbridge canal which had been constructed by a regional water authority in about 1976, under the previous statutory regime. The relevant outfall was therefore already in use at the transfer date pursuant to a right enjoyed by the regional water authorities under the Public Health Act 1936 and transferred to the privatised sewerage undertakers under the Water Act 1989. However, no argument was addressed to the Court of Appeal in that case about the significance of this fact. Its factual and legal significance is, however, critical to the outcome of the present appeal. Manifestly, the purpose of a sewer is to carry away effluent and surface water and discharge it elsewhere. A sewer can be lawfully used only if it is lawful to discharge from it. A sewerage undertaker bringing an outfall into use for the first time after 1 December 1991 can reasonably be expected to have obtained any necessary consents to discharge onto private property in advance of laying the pipes, either by negotiation or by compulsory purchase in the course of the planning or the works. But if the outfall was already in use at that date, it cannot do this. The pipes will already have been laid. The location of their outfalls will have been determined. Where they discharge into a private watercourse, those outfalls will have been created under a statutory regime which entitled the sewerage undertaker or its statutory predecessors to discharge from them. The compulsory acquisition of such a right cannot be achieved overnight. Statutory procedures have to be observed, which may include a public inquiry. It is obvious, and confirmed by the evidence in this litigation, that by 1989 drainage from the existing public sewerage system depended to some extent on outfalls into private watercourses. After well over a century in which sewerage authorities were entitled as of right to construct and discharge from such outfalls one would expect the degree of dependence to be significant. Unless the entitlement to discharge from existing outfalls into private watercourses survives the transfer to privatised water undertakers, the consequence is that in law such discharge must cease forthwith on 1 December 1991. Any continuing discharge thereafter will become tortious from that date. Under the Water Industry Act, the statutory duties of a sewerage undertaker include a duty to operate the system of public sewers so as effectually to drain their area (section 94) and a duty to allow the owners or occupiers of premises to connect to the public sewer system (section 106). Moreover, the undertaker is not permitted to discontinue the use of a sewer until it has provided an alternative sewer capable of serving as effectually (section 116). The result, if the right to discharge into private watercourses ceases as the canal owners suggest, is to make it impossible for the sewerage undertakers lawfully to perform their statutory functions or observe the statutory restrictions on the discontinuance of existing sewers from the moment that the new Act comes into force. This state of affairs will continue thereafter for a considerable period while the existing sewerage system is partially redesigned and rebuilt or the necessary easements are acquired by negotiation or compulsory purchase. When pressed to say how a sewerage undertaker was to comply with this view of the law immediately after 1 December 1991, the canal owners had no answer except that the law would not in practice be enforced by injunction but that if it was they must block the outfalls and allow surface water and treated effluent to backwash through the system into the streets. In fact, section 116 of the Act would rule out even that possibility. This is not just a practically inconvenient way of dealing with an issue which engages an important public interest. It is legally incoherent. Without the clearest possible indication that Parliament intended such a preposterous result, I decline to accept that it is the effect of the current legislative scheme. In my opinion, when the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses, (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived. The basis of this implication is not section 30 of the Public Health Act 1936, whose statutory predecessor was the basis of the decision in Durrants Case, but section 116 of the 1991 Act viewed against the background of the general duties of sewerage undertakers under the Act. It follows that the repeal of section 30 by the Water Consolidation (Consequential Provisions) Act 1991 is irrelevant. In any event, its repeal would not affect rights of discharge which had already accrued by virtue of the use of existing outfalls: see section 16(1)(c) of the Interpretation Act 1978. It is true that although over a period of time after the coming into force of the Water Industry Act new rights of discharge could have been acquired by negotiation or compulsory purchase or existing sewers or outfalls replaced, the effect of the conclusion which I have reached is that a sewerage undertaker is entitled under the Water Industry Act 1991 to continue discharging into private watercourses from existing outfalls indefinitely. The solution is therefore more extensive than the problem. But that is a lesser anomaly and one which is inherent in the nature of the issue. Once one concludes that because of the time required to do these things after the law was changed, the right of discharge for existing outfalls must survive, it is not possible to arrive by a process of construction at a positive obligation to address the issue after transfer in a different way by acquiring new easements or replacing sewers or outfalls. I should finally deal with the suggestion that this conclusion leaves the owners of private watercourses in a worse position than they were under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. This is a serious objection to the attempt to imply a general right to discharge into private watercourses from section 159 of the 1991 Act, as the Court of Appeal pointed out in British Waterways Board. It does not give rise to difficulty if, as I consider, a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers. As far as compensation is concerned, Schedule 12, paragraph 4 of the Water Industry Act confers a right of full compensation for any exercise by a sewerage undertaker of its powers under the relevant sewerage provisions. Unlike section 159, section 116 is one of the relevant sewerage provisions: see section 219(1). Turning to the question of statutory protection, the Act of 1991 contains a large number of protections against the abusive or harmful use by undertakers of their statutory powers. This is not the place to examine all of them, and many are of no potential relevance. The most important are to be found in sections 117(5) and 186(3). Section 117(5)(b) protects against the discharge of foul water into watercourses. It is the successor of section 17 of the Public Health Act 1875 and section 30 of the Act of 1936. Section 186(3) protects against the injurious affection without consent of any canal or watercourse or the supply, quality or fall of water in any canal or watercourse. Both provisions expressly qualify powers derived from specified provisions of the Act, which do not include section 159 but do include section 116. Conclusion I would accordingly allow the appeal to the extent of declaring that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. For the avoidance of doubt, I should make it clear that this in no way affects any binding agreement under which the parties may have regulated for themselves the use of particular outfalls. We were informed that here may be such agreements with some proprietors, but we have not been concerned with them. I would leave the precise form of the declaration to be agreed between counsel. LORD TOULSON I agree that under the Water Industry Act 1991 sewerage undertakers are impliedly empowered to continue to discharge surface water and other non pollutant water through sewers vested in them into watercourses to which they were already discharging at the time the Act came into force, but have no right to create new outfalls into canals or rivers without the agreement of the body which owns or is responsible for the canal or river. The case has assumed a complexity which I do not think is necessary. In disagreeing with the Court of Appeal, I have sympathy with the court which seems to me to have been led into a forest. The reasons for my conclusions are simple and accord essentially with those given by Lord Sumption. As to the broader power claimed by the appellants, the argument that section 159 gives to a sewerage undertaker the right to create a new public sewer by connecting pipework, laid under the powers given to it by the section, into a river or canal without the agreement of the river or canal owner or operator, is in my view untenable for the reasons given by the Court of Appeal in British Waterways Board v Severn Trent Water Ltd (summarised by Lord Sumption). The purpose of section 159 is to enable a sewerage undertaker to obtain the means of access for foul or surface water to reach wherever it proposes (lawfully) to treat or dispose of the water (such as a sewage treatment plant), and no more. To treat the section as silently empowering the undertaker to dispose of the water by discharging it onto the land of another person without their consent requires an unnatural and unwarranted reading of the section. The appellants argument for giving the section a wider meaning is based on comparison with the Public Health Acts 1875 to 1961. That argument overlooks the major change in the scheme of water legislation introduced by the Water Act 1989 (which was consolidated, with other enactments, by the 1991 Act). The 1989 Act did much more than to introduce privatisation of the water industry. Its purposes, stated in the long title, included to amend the law relating to the provision of sewers and the treatment and disposal of sewage. It provided a much more comprehensive statutory code than the previous legislation. There is no warrant for assuming that Parliament intended under the new legislative scheme that the privatised authorities should have a general right to create new outfalls, discharging water onto the property of other parties, without having to pay for the facility. On the question of the lawfulness of the continued use of public sewers established prior to the coming into force of the Act, I agree with Lord Sumption that the answer lies in section 116 of the 1991 Act, read in conjunction with sections 106(1) and 117(5) and (6). Under section 106 the owner of premises in the area of a sewerage undertaker has the right to have his drains or sewer communicate with the undertakers public sewers and has a continuing right thereby to discharge foul water and surface water from those premises. Section 116 prohibits the sewage undertaker from depriving that person of the use of the public sewer for that purpose, unless the undertaker provides alternative means of communication (which Parliament cannot realistically have supposed that the undertaker would be in a position to do instantly on the passage of the Act). Section 117(5) provides that nothing in section 116 is to be construed as authorising a sewerage undertaker to use a public sewer for the purpose of conveying foul water into any natural or artificial stream, watercourse, canal, pond or lake, without the water having been treated so as not prejudicially to affect the purity and quality of the water into which it is being discharged. Section 117(6) also requires a sewerage undertaker to carry out its functions under section 116 in such a way as not to create a nuisance. The conditions for section 116 to apply are, in the words of subsection (1), that the sewer is a public sewer which is vested in the undertaker, but I do not understand it to be disputed that the relevant sewers are public sewers as defined in section 219 of the 1991 Act: public sewer means . a sewer for the time being vested in a sewerage undertaker in its capacity as such, whether vested in that undertaker by virtue of a scheme under Schedule 2 to the Water Act 1989 or Schedule 2 to this Act or under section 179 above or otherwise . As a matter of history, it would appear that the sewers vested in the sewerage undertakers by virtue of schemes under Schedule 2 to the 1989 Act but I do not see that it is necessary to refer to the 1989 Act for any other purpose. Since section 116 of the 1991 Act expressly prohibits a sewerage undertaker from discontinuing the use of an existing public sewer vested in it, unless it creates an alternative means of disposal, it thereby impliedly (if not expressly) empowers the undertaker to continue to use such sewers, subject to the qualifications in section 117(5) and (6) that the undertaker must not cause pollution or a nuisance. For those reasons, it seems to me that the answers to the questions in this case are to be found within the sections of the 1991 Act to which I have referred. Save where necessary for the limited purpose of establishing as a fact that a sewer is a public sewer vested in a sewerage undertaker within the definition section in the 1991 Act, I see no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, I would conclude that there was no trespass during that period. Section 69 of the 1989 Act provided that Schedule 8 to the Act should have effect for the purpose of transferring to sewerage undertakers the functions of water authorities relating to sewerage services and for making amendments of the enactments relating to the transferred functions. Paragraph 1 of Schedule 8 provided that references to water authorities in sections 30 and 278 of the Public Health Act 1936 were to be construed as references to sewerage undertakers. Those sections re enacted the sections in the 1875 Act which were the subject of the decision in Durrants case, as explained in para 6 of Lord Sumptions judgment. Reading those sections as amended by paragraph 1 of Schedule 8 to the 1989 Act (ie as applying to sewerage undertakers from the commencement of the 1989 Act), the conclusion is clear in my view that sewerage undertakers did not commit the tort of trespass by continued use of the public sewers which they inherited. Although that historical examination of the position under the 1989 Act is unnecessary to my conclusion about the 1991 Act, it fortifies it for this reason. If, as I have concluded, sewerage undertakers did not commit the tort of trespass between 1989 and 1991 by continued use of public sewers vested in them under schemes made under the 1989 Act, Parliament cannot be taken to have intended to change that position by the 1991 Act, which was presented to it as a consolidation Act with minor immaterial amendments explained in the Law Commissions report. Consolidation Acts have a speedy parliamentary process precisely because they are not intended to involve changes meriting detailed scrutiny. It follows also from what I have said that I do not think that it is necessary to invoke the provisions of the Interpretation Act; but if I am wrong, I would agree with Lord Neubergers analysis of its effect. LORD NEUBERGER (with whom Lord Clarke and Lord Hughes agree) This appeal raises two questions in relation to the statutory right of sewerage undertakers to discharge surface water and treated effluent from their sewers into streams and private watercourses. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use ie present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 (the 1989 Act) or (ii) the coming into force of the Water Industry Act 1991 (the 1991 Act). In my view, the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. I agree with the reasons given by Lord Sumption and Lord Toulson although I would place greater weight on the assistance which can be gained from the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 (the 1978 Act). The relevant statutory provisions The statutory provisions relating to sewerage before 1989 By section 13 of the Public Health Act 1875, all existing and future sewers within their districts were vest[ed] in local authorities. Certain rights were granted to local authorities, including, in section 16, the right to construct sewers into, through or under any lands whatsoever in their district. Duties were also imposed on local authorities, including the duty to provide and maintain sewers to drain their districts in section 15, and the duty to enable property owners and occupiers to be connected to sewers in section 21. The right to discharge from sewers was not expressly granted to local authorities by the 1875 Act. However, section 17 of the 1875 Act stated that [n]othing in the Act authorise[s] the use of sewers constructed under the Act for the purpose of conveying sewage or filthy water into any natural stream or watercourse until such sewage or filthy water is freed from all foul or noxious matter. Section 308 of the 1875 Act contained a rather generally expressed right to full compensation to anyone who suffered damage as a result of the exercise of a local authoritys statutory rights with regard to sewerage. The Public Health Act 1936 repealed the relevant provisions of the 1875 Act, and re enacted many of its provisions in very similar, if somewhat more modern, terms. The opening part of subsection (1) of section 20, the successor to section 13 of the 1875 Act, provided that any sewers vested in a local authority under the 1875 Act shall continue to be vested in them. Section 20(1)(b) of the 1936 Act stated that all sewers subsequently constructed by local authorities shall also vest in them. Sections 14, 15, 22, 34 and 278(1) of the 1936 Act were to the same effect as, respectively, sections 15, 16, 18, 21 and 308 of the 1875 Act, albeit that section 15 of the 1936 Act was considerably more detailed in its terms than section 16 of the 1875 Act. Section 30 of the 1936 Act was in very similar terms to section 17 of the 1875 Act, although it used somewhat different language, referring to foul water [having to be] so treated as not to affect prejudicially the purity and quality of the water rather than sewage or filthy water [having to be] freed from all foul or noxious matter, and it extended its reach to artificial, as well as natural, watercourses and streams, and to canals. The provisions of section 17 of the 1875 Act, supported by those of sections 15, 16, and 308, were held by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 to lead to the inevitable or irresistible inference that a local authority could discharge treated effluent and surface water from its sewers, whether constructed before or after 1875, into natural streams and watercourses see at pp 302, 303 and 304 305 per Lindley, Lopes and Chitty LJJ respectively. In other words, the Court of Appeal held that the 1875 Act impliedly granted a right to discharge from that sewer, a right whose width was cut down by section 17. That right was continued by the 1936 Act, as it contained provisions which were very similar to those in the 1875 Act, and in particular section 30 and, albeit of lesser significance in this connection, sections 14, 15 and 278, whose statutory predecessors were considered by the Court of Appeal to support its conclusion in Durrant [1897] 2 Ch 291. The statutory rights and duties of local authorities in relation to sewerage became vested in water authorities pursuant to sections 14 and 15 of the Water Act 1973. Section 14(2) provided that the functions of local authorities under, inter alia, sections 15 24 and 27 31 of the 1936 Act shall be exercisable by water authorities, and that references [therein] to a local authority shall be construed as references to a water authority. Para 33 of Schedule 8 to the 1973 Act amended section 20 of the 1936 Act to make it clear that all sewers in an area were vested in the relevant water authority. The Water Act 1989 During the 1980s, as part of the drive for privatisation, it was decided that the water supply and sewerage functions of water authorities should be taken out of public ownership and vested in water undertakers and sewerage undertakers respectively. This was effected through the medium of the 1989 Act, which provided for the creation of these new undertakers in section 11. Section 4(1)(a) of the 1989 Act stated that the sewerage functions of water authorities should become the functions of the new sewerage undertakers from a day appointed by the Secretary of State, and section 11 enabled the Secretary of State or the Director General of Water Services to appoint a company as a sewerage undertaker for any area of England and Wales. Section 4(1)(b) provided for schemes under Schedule 2 for the division of the property, rights and liabilities of the water authorities to, inter alia, the sewerage undertakers. The effect of section 67 of the 1989 Act, which replaced section 14 of the 1936 Act, was to impose a duty on sewerage undertakers from the date of the transfer of the sewerage functions to drain the area for which it was responsible. Section 153 of, and Schedule 19 to, the 1989 Act empowered sewerage undertakers to lay sewers, and they effectively replaced section 15 of the 1936 Act. Section 69 of the 1989 Act stated that Schedule 8 had the effect of transferring to sewerage undertakers the functions of water authorities relating to the provision of sewerage services and for making amendments of the enactments relating to the transferred functions. By para 1 of Schedule 8, such functions included those set out in sections 22, 30 and 34 and (at least in so far as it related to surviving sections of the provisions of the 1936 Act) section 278 of the 1936 Act. However, section 20 of the 1936 Act was repealed by the 1989 Act. Para 2 of Schedule 2 to the 1989 Act was concerned with transfers by scheme, and it provided that there should be transferred to a sewerage undertaker the property, rights and liabilities of a water authority, and para 2(3) stated: The property, rights and liabilities of a water authority that shall be capable of being transferred shall include (a) property, rights and liabilities that would not otherwise be capable of being transferred or assigned by the water authority; (b) property situated anywhere ; (c) rights and liabilities under enactments, including (i) such rights and liabilities as may arise after the transfer date by virtue of enactments amended or repealed by this Act and, in pursuance of provision contained in Schedule 26 to this Act, may be the subject of an allocation made by a scheme under this Schedule; and (ii) other rights and liabilities under enactments which are amended or repealed by this Act subject to a saving; (d) In so far as it dealt expressly with the ownership of, or equivalent rights over, existing sewers, the 1989 Act was laconic. Section 153(1) granted powers to sewerage undertakers to lay and maintain sewers, and section 153(2)(a) provided that sewers so laid should be vested in that undertaker (subject to irrelevant exceptions). However, they were not concerned with existing sewers, which were obliquely referred to in section 153(6), which stated that the provisions of section 153 were without prejudice to the vesting of anything in a company appointed to be a sewerage undertaker, in accordance with a scheme under Schedule 2 Section 70, which dealt with sewers which crossed two local authority areas, referred in subsection (1) to such sewers being vested in a water authority and set out how they were to be treated [f]or the purposes of any scheme under Schedule 2, and subsection (3) referred to a case [w]here any part of a sewer is vested in any sewerage undertaker by virtue of this section. The definition of public sewer in section 189(1) was a sewer vested in a sewerage undertaker whether . by virtue of a scheme under Schedule 2 or under section 153. On the same day as the 1989 Act came into force, 1 September 1989, various transfers came into effect, as contemplated by section 4. They were (or at least the one we were shown was) expressed in relatively general terms, so far as identifying what precisely was transferred to the new sewerage undertaker, namely the property, rights and liabilities specified in . Schedule 2. With effect from 1 September 1989, the new sewerage undertakers took over the sewerage rights and responsibilities of the previous water authorities, subject of course to such amendments as were laid down in the 1989 Act. The 1991 legislation Some two years later, the law relating to the water supply and sewage industries was comprehensively re enacted and consolidated in 1991, principally by the 1991 Act, but also by the Water Consolidation (Consequential Provisions) Act 1991 (the 1991 Consolidation Act), which received Royal Assent on the same day, 25 July 1991. The long title of the 1991 Act described its purpose as being to consolidate enactments relating to the supply of water and the provision of sewerage services, with amendments to give effect to recommendations of the Law Commission. The long title of the 1991 Consolidation Act explained that its purpose was to effect consequential amendments and repeals, and for transitional and transitory matters and savings, in connection with the consolidation of certain enactments in the Water Industry Act 1991, and to repeal certain related enactments which are spent or unnecessary. As the long title to the 1991 Act indicated, its purpose was largely to consolidate the law, but it was also to implement the recommendations of the Law Commission, which were made in a report presented in April 1991, Law Com No 198. Although there were some recommendations relating to drainage, none of them impinges on the issues raised in this appeal. Accordingly, much of the 1991 Act simply re enacted the provisions of the 1989 Act and (in so far as they related to water and sewerage services) the surviving provisions of the 1936 Act, sometimes with modifications. Such provisions included sections 158 and 159, which gave sewerage (and water) undertakers the power to lay pipes in streets and in other land respectively (replacing paragraph 1 of Schedule 19 to the 1989 Act). Section 94 imposed a duty on sewerage undertakers to operate a sewerage system so as effectually to drain their area (replacing section 67 of the 1989 Act), and section 106 required them to allow the owners or occupiers of premises to connect to the public sewer system (replacing section 34 of the 1936 Act). Section 116(1) empowered a sewerage undertaker to discontinue and prohibit the use of any public sewer, subject to providing an alternative and equally effective sewer (replacing section 22 of the 1936 Act). Section 117(5) provided that nothing in section 116 entitled a sewerage authority to discharge foul water into a natural or artificial waterway (replacing, albeit in a limited respect, section 30 of the 1936 Act). Section 179 of the 1991 Act provided that, subject to agreement to the contrary and subject to certain other exceptions, any sewer laid by an undertaker shall vest in the [sewerage] undertaker which laid it. The definition of public sewer in section 219 includes any sewer vested in [an] undertaker by virtue of a scheme under Schedule 2 to the Water Act 1989. Paragraph 4(1) of Schedule 12 to the 1991 Act effectively replaced section 278 of the 1936 Act in relation to sewerage undertakers. By Schedule 3, the 1991 Consolidation Act repealed certain statutory provisions, including section 30 of the 1936 Act. Section 2(5) of the 1991 Consolidation Act provided that those repeals were without prejudice to sections 16 and 17 of the Interpretation Act 1978. The Interpretation Act 1978 The 1978 Act lays down general rules applicable to the interpretation of statutes. Section 16(1)(c) of that Act provides that where an Act repeals an enactment, the repeal does not, unless the contrary intention appears, affect any right, privilege, obligation or liability acquired, accrued or incurred under that enactment. The traditional view is that section 16(1)(c) (like its statutory predecessors) applies only to existing or vested rights. However, the precise nature of a vested right is somewhat elusive. The problem is very close to that thrown up by the presumption against retrospective legislation, which was illuminatingly discussed by Lord Rodger in Wilson v First County Trust Ltd (No 2) [2004] 1 AC 816, paras 186 201. At para 196, Lord Rodger said this of the cases on vested rights: It is not easy to reconcile all the decisions. This lends weight to the criticism that the reasoning in them is essentially circular: the courts have tended to attach the somewhat woolly label vested to those rights which they conclude should be protected from the effect of the new legislation. If that is indeed so, then it is perhaps only to be expected since, as Lord Mustill observed in LOffice Cherifien des Phosphates v Yamashita Shinnihon Steamship Co Ltd [1994] 1 AC 486, 525A, the basis of any presumption in this area of the law is no more than simple fairness, which ought to be the basis of every general rule. At para 201, Lord Rodger suggested that the test could well be expressed thus: would the consequences of applying the statutory provision retroactively, or so as to affect vested rights or pending proceedings, be so unfair that Parliament could not have intended it to be applied in these ways? In answering that question, a court would rightly have regard to the way the courts have applied the criterion of fairness when embodied in the various presumptions. The first question So far as the first question is concerned, Mr Karas QC, on behalf of United Utilities, a sewerage undertaking, relied primarily to support his case for a positive answer, on the provisions of section 159 of the 1991 Act. I would reject that case and there is nothing I can usefully add to what Lord Sumption and Lord Toulson say in paras 13 15 and 26 28 of their respective judgments. At least in relation to sewers laid after the 1991 Act came into force, United Utilities argument is not supported by the language of section 159 or any other provision of the 1991 Act. It is inconsistent with some other provisions of the 1991 Act, and it is not supported by any practical considerations (although it is fair to add that it is not undermined by any practical considerations either). The reasoning of all three members of the Court of Appeal in British Waterways Board v Severn Trent Water Ltd [2002] Ch 25, summarised in para 14 above, appears to me to be unanswerable. The second question The question whether sewerage undertakers can claim any rights in respect of any outfalls must ultimately turn on the 1991 Act, but in my view, the issue should be addressed by first identifying the water authorities rights in respect of outfalls from public sewers immediately before the 1989 Act came into force. Mr Karass argument is that it is a necessary inference from the terms of the 1991 Act that sewerage undertakers have a right to discharge from existing outfalls. A court should not be easily persuaded that a new right has been created by implication, particularly where that right (i) interferes with the private rights of third parties (in this case waterway owners), and (ii) arises out of a long and detailed statute. There is in my view a strong presumption that (i) private rights are only to be taken away by a statute by means of clear and specific words, and (ii) where a statute deals in considerable detail with the rights and obligations in a certain field, it is intended to be exhaustive particularly where the legislation is both consolidating the law and giving effect to Law Commission recommendations. Accordingly, in my judgment, the inference which we are invited to draw is, at least in principle, far more likely to be justified if sewerage undertakers had the right to discharge from existing outfalls under the 1989 Act, when their sewerage functions started, than if they did not. The rights vested in the sewerage undertakers by the 1989 Act were based on the rights vested in the water authorities, whose rights and obligations in relation to sewers and sewerage were derived from the 1936 Act, as amended. Accordingly, I start by addressing the position under the 1936 Act, and only then turn to the 1989 and 1991 Acts. For the reasons I shall give below, it appears to me that there are two alternative reasons for concluding that the new water undertakers had the right to discharge from existing outfalls under the 1989 Act, and one reason for concluding that that right continued under the 1991 Act. The position prior to the 1989 Act As explained in para 43 above, the provisions of section 17 of the 1875 Act, supported by those of sections 15, 16 and 308, were held by the Court of Appeal in Durrant [1897] 2 Ch 291 to lead to the inevitable or irresistible inference that a local authority could discharge treated effluent and surface water from its sewers (subject to payment of compensation in case of damage), and that right continued under the 1936 Act. As I see it, the effect of the reasoning in Durrant is that the inclusion of section 17 in the 1875 Act had two relevant consequences. First, it indicated clearly that Parliament intended that local authorities had the right to discharge from the sewers vested in them by section 13. Secondly, it equally clearly cut down the way in which that right could be exercised. As to the first point, section 17 did not itself grant the right: it merely enabled the courts confidently to conclude that the right was intended by Parliament to be granted to local authorities under the 1875 Act. As to the second point, it is clear from the terms of section 17 itself that that right was capable of being cut down or regulated by statute. These two points apply equally to the 1936 Act. Accordingly, as at the date the 1989 Act came into force, water companies had vested in them the right (subject to payment of compensation in case of damage) to discharge water through existing outfalls, by virtue of the continued existence of section 30 (supported by sections 14, 15 and 278) of the 1936 Act as amended by the 1973 Act. The first argument in relation to the 1989 Act It appears to me that the reasoning in Durrant compels the conclusion that the 1989 Act impliedly granted the new sewerage undertakers the right to discharge from outfalls from sewers vested in them (subject to payment of compensation in case of damage). Section 30 of the 1936 Act (the provision which precluded discharge of foul water) was not repealed by the 1989 Act; indeed, by virtue of paragraph 1 of Schedule 8 to that Act, it remained in force, save that it was amended so as to apply to sewerage undertakers. Given that it was held in Durrant [1897] 2 Ch 291 that section 17 of the 1875 Act, the statutory predecessor of section 30 of the 1936 Act, had the effect of implying a right in water authorities to discharge from their sewers into canals and streams prior to September 1989, then, in the absence of a good reason to the contrary, section 30 as amended by the 1989 Act must have had the same effect in relation to those sewers when vested in the new sewerage undertakers after August 1989. Far from there being a good reason to the contrary, there are two significant factors which support this conclusion. The first is based on the statutory provisions. As mentioned above, the Court of Appeal in Durrant [1897] 2 Ch 291 placed some reliance on other provisions of the 1875 Act. Albeit in re enacted and modified form, those provisions remained in existence after the 1989 Act was in force. Sections 15 and 16, which had been replaced by sections 14 and 15 of the 1936 Act, were in turn replaced by sections 67 and 153 of the 1989 Act, and section 308 was replaced by section 278 of the 1936 Act, which continued to apply after 1989 by virtue of paragraph 1 of Schedule 8. Secondly, the practical implications of a new sewerage undertaker having no right of discharge from existing outfalls of existing sewers from the date of the transfer under the 1989 Act are striking. Such an undertaker was, from the date of the transfer of sewerage functions to it, under statutory duties to drain its area, to permit people to connect into its sewers for the purposes of drainage, and to provide new sewers in the event of shutting off existing sewers. A sewerage undertaker could only have complied with such obligations in practice if it had a right of discharge from the existing outfalls of the sewers vested in it. Lord Sumption and Lord Toulson develop this argument more fully in paras 17 18 and 30 35 of their respective judgments, albeit in relation to the 1991 Act, but the argument is equally sound in relation to the 1989 Act. The alternative argument under the 1989 Act Were the argument based on the 1989 Acts retention and amendment of section 30 of the 1936 Act to be rejected, I would accept United Utilities alternative argument that the transfers to sewerage undertakers pursuant to the 1989 Act included the water authorities existing rights of discharge. This would be on the basis that the water authorities rights of discharge from existing outfalls under the 1936 Act (as amended by the 1973 Act) constituted property or (as I tend to think is more likely) rights, which would have been transferred as part of the water authorities property, rights and liabilities in section 4(1)(b) of the 1989 Act. It seems to me that, whether such rights were property or rights, they were vested in the water authorities, and it would be unrealistic to think that the 1989 Act could have intended that they be removed when the functions of those authorities were being transferred to other entities. In the absence of any transitional provisions, the ability to be able to discharge through existing outfalls was essential: indeed, it was an integral part of the sewerage authorities continuing functions and duties, as explained in para 66 above. It would have been so unfair, or the better but equally appropriate expression may be so absurd, if the water authorities existing rights of discharge had been removed by the 1989 Act that Parliament could not have intended it, to quote Lord Rodger in Wilson [2004] 1 AC 816, para 201. In answer to this, Mr McCracken QC for the Manchester Ship Canal Company Limited, a canal owner, relies, first, on the precise terms of paragraph 2(3) of Schedule 2 to the 1989 Act, and, secondly, on the anomalous nature of the right involved. As to the first point, he says that paragraph 2(3) restricts the breadth of the expression property, rights and liabilities, and in particular that subparagraph (c)(ii) limits the transferable rights to those under enactments which are amended or repealed by this Act subject to a saving. He points out that section 30 of the 1936 Act was amended by the 1989 Act without a saving provision. I do not accept that argument, because, in my view, paragraph 2(3) was intended to widen, not to narrow, the meaning of property, rights and liabilities, as is apparent from the phrase shall include. In any event, it is highly arguable that (i) the right involved was not in fact granted under section 17 of the 1875 Act as I have explained in para 62 above, and (ii) section 30 of the 1936 was not relevantly amended for the purpose of subparagraph (c)(ii). However, given that paragraph 2(3) is not a definition provision, it is not necessary to consider those two points. Mr McCrackens second argument is summarised in para 64 of Arden LJs judgment in the Court of Appeal, where she said that she thought that the right of discharge enjoyed by the water authorities was not within the expression property, rights and liabilities, as used in section 4 and elsewhere in the 1989 Act. She explained that this was because the implied right of discharge was not a right in the usual sense and was simply an incident of the statutory functions of the sewerage undertaker. For my part, I do not see why the fact that a right is implied or incidental prevents it from falling within the word rights in the 1989 Act, or indeed from being a vested right for the purposes of section 16(1)(c) of the 1978 Act. This view is reinforced by the fact that the precise legal characterisation of the rights of local authorities as a result of sewers being statutorily vested in them appear to be somewhat unclear see the discussion in Taylor v North West Water (1995) 70 P & CR 94, 96 110. Thus, there is, as was pointed out by Lord Russell CJ in Bradford v Mayor of Eastbourne [1896] 2 QB 205, 211, a number of cases which support his view that the vesting [under section 13 of the 1875 Act] is not a giving of the property in the sewer and in the soil but giving such ownership and such rights only as are necessary for the purpose of carrying out the duties of a local authority. Yet there can be no doubt but that those rights were regarded as vested rights which survived the repeal of section 20 of the 1936 Act, and were transferred to sewerage undertakers pursuant to the 1989 Act. The 1989 Act: conclusion Accordingly, it seems to me to follow that the sewerage undertakers had an implied right (subject to payment of compensation in case of damage) to discharge from existing outfalls from the sewers vested in them in 1989, because (i) the provisions of the 1989 Act conferred such a right on them by implication in accordance with the reasoning in Durrant or, if that is wrong, (ii) the implied right to discharge from those outfalls enjoyed just before the 1989 Act came into force was transferred by the water authorities to them. The effect of conclusion (i) is, as I see it, that the right to discharge applied to outfalls created after 1989, including those from sewers brought into use after the 1989 Act came into force, as section 30 (as amended to apply to the sewerage undertakers) continued in force, and, following the reasoning in Durrant, so did the right to discharge. The position under the 1991 legislation Section 30 of the 1936 Act (as amended by the 1973 and 1989 Acts) was repealed by the 1991 Consolidation Act (and section 278 of the 1936 Act was effectively replaced with new compensation provisions in the 1991 Act), and therefore there was no further express statutory basis, as established in Durrant [1897] 2 Ch 291, for saying that any sewerage undertakers could claim any right of discharge in respect of outfalls created after 1991. As Arden LJ rightly pointed out in para 22 of her judgment in the Court of Appeal, although section 30 of the 1936 Act, which she called the foul water proviso, was re enacted in the 1991 Act, it was only in a limited form by section 117(5) so that there was no foul water proviso applying to the pipe laying power. Accordingly, as section 30 was repealed, the sewerage undertakers cannot rely on the arguments which, in my view, justify their first argument under the 1989 Act. However, the repeals effected by the 1991 Consolidation Act were, rather unusually and arguably unnecessarily, expressly without prejudice to section 16 of the 1978 Act, which applies unless a contrary intention appears. Far from the contrary intention appearing, it seems to me clear that the factual context of the Acts of 1991, as discussed in paras 17 18 and paras 30 35 of the judgments of Lord Sumption and Lord Toulson, and more summarily discussed in paras 66 67 above, strongly supports the statutory presumption that the existing right to discharge from existing outfalls survived the repeal of section 30 (and the replacement of section 278) of the 1936 Act by the 1991 Act. Indeed, it seems to me that the notion that the 1991 Act removed the rights of discharge in relation to existing outfalls from sewers vested in the sewerage undertakings is even more unlikely than the notion that this was the effect of the 1989 Act. The 1989 Act was intended to give effect to a wholesale overhaul of the water and sewerage industries, and in particular to bring them into private ownership, and to subject them (subject to modifications to protect the public interest) to market forces. While it is impossible to accept for the practical reasons already mentioned that in 1989 private sewerage companies were to be deprived of the right to discharge from existing sewers and were to be left to negotiate what rights they could, the proposition is not fanciful, at least in principle. However, even in principle, it seems very unlikely indeed that such a deprivation could have been intended to have been effected sub silentio, without any consultation or recommendation from the Law Commission, by the 1991 legislation, and in particular by two Acts whose purposes were as described in their long titles (as set out in para 51 above). My scepticism is reinforced by the fact that it is even more unlikely that such a deprivation was intended so soon after the 1989 Act. Some concern was expressed in argument about the fact that the right of discharge (which in the light of this conclusion exists under the 1991 Act) is potentially more onerous on waterway owners, than the right when it existed under the 1936 Act. I agree with what Lord Sumption says about this in para 22 above. Quite apart from that, as explained in para 62 above, the right identified in Durrant was, as I see it, a right of discharge, which could be qualified by the provisions of the same or other legislation. I see no cause for concern if Parliament, having given a right of discharge, is free to change the terms as to conditions and compensation (subject to complying with common law and human right principles) upon which such discharge can be effected. On the contrary: such a conclusion appears to me to make good sense. Conclusion In these circumstances, it appears to me to follow that sewerage undertakers had, and therefore continue to have, a statutory right to discharge surface water and treated effluent from existing outfalls from sewers which had been vested in them by the time that the 1991 Act came into force, but not from subsequently created outfalls or outfalls from sewers which they may have laid after that date.

The question at issue on this appeal is whether, under the Water Industry Act 1991, a sewerage undertaker has a statutory right to discharge surface water and treated effluent into private watercourses such as the Respondents canals without the consent of their owners and, if so, whether the right extends to any sewer or only to those which were in existence in 1991 when new sewerage legislation was passed. This depends on the construction of the Water Industry Act 1991, a consolidating Act which was passed in order to tidy up the statute law relating to water and sewerage services. It consolidates with amendments the provisions of the Act of The Water Industry 1989, together with a number of other statutes concerned with water management. At the same time, the Water Consolidation (Consequential Provisions) Act 1991 repealed a number of earlier statutory provisions, including some thought to be spent and unnecessary. It is on these changes that the issues on this appeal turn. The Supreme Court unanimously allows the appeal to the extent of declaring, in accordance with the second possibility, that subject to section 117(5) of the Water Industry Act 1991, the Appellants are entitled to discharge into the Respondents canals from any sewer outfall which was in use on or before 1 December 1991. The leading judgment is given by Lord Sumption. Discharge into a private watercourse is an entry on the owners land, and as such is an unlawful trespass unless it is authorised by statute. It is common ground that no express statutory right is conferred by the Water Industry Act. The question is therefore whether it should be implied. A statutory right to commit what would otherwise be a tort may of course be implied. But since this necessarily involves an interference with the rights of others, the test has always been restrictive. The implication must be more than convenient or reasonable. It must be necessary. As a general rule, this will involve showing either that the existence of the power is necessarily implicit in the express terms of the statute, or else that the statutory purpose cannot be effectually achieved without the implication. In particular a right to commit what would otherwise be a tort may be implied if a statutory power is incapable of being exercised or a statutory duty is incapable of being performed without doing the act in question [2]. There are two bases on which a right of discharge into private watercourses might be implied into the current statutory regime. The first is that a right corresponding to the one recognised by the Court of Appeal in Durrant v Branksome Urban District Council [1897] 2 Ch 291 under earlier legislation is implied into the corresponding provision of the Water Industry Act 1991. In particular section 159 (which confers a power to lay pipes). The effect of such an implication would be to authorise discharge from future sewage outfalls as well as from those already in use when the Water Industry Act 1991 came into force. The second possibility is that the only right of discharge into private watercourses which survives under the Act of 1991 is a right of discharge from existing outfalls which were already in use on 1 December 1991 when the Act came into force [12]. The first basis must be rejected because the language and scheme of the current legislation differs significantly from that of the legislation in force at the time of Durrants Case. However, a right of discharge, limited to outfalls from sewers in existence when the Act of 1991 came into force, exists on the second basis. When the Water Industry Act 1991 (i) imposed on the privatised sewerage undertakers duties which it could perform only by continuing for a substantial period to discharge from existing outfalls into private watercourses and (ii) at the same time applied to them the statutory restrictions in section 116 on discontinuing the use of existing sewers, it implicitly authorised the continued use of existing sewers. A restriction on discontinuing the use of an existing sewer until an alternative has been constructed is not consistent with an obligation to discontinue its use forthwith under the law of tort. The inescapable inference is that although there is no provision of the Act of 1991 from which a general right of discharge into private watercourses can be implied, those rights of discharge which had already accrued in relation to existing outfalls under previous statutory regimes survived [19]. Lord Sumption rejects the suggestion that this conclusion leaves the owners of private watercourses in a worse position than under the Water Act 1989, because of the more limited provisions for compensation for damage and the more limited protections available against abuse. It does not, he considers, give rise to difficulty if a more limited right to continue discharging from existing outfalls into private watercourses is to be implied from the restrictions in section 116 on discontinuing the use of existing sewers [22]. In a concurring judgment, Lord Toulson concludes that the answers to the questions in this case are to be found within the sections of the 1991 Act. There is, in Lord Toulsons opinion, no need to go back to examine the position under the 1989 Act. There is no claim for damages for trespass during the period when the 1989 Act was in force. However, if it were necessary to do so, he would conclude that there was no trespass during that period [36]. In a further concurring judgment, Lord Neuberger identifies two questions in the appeal. The first question is whether sewerage undertakers have such a right in relation to all their sewers, irrespective of when they came into use i.e. present and future sewers. The second question, which only arises if the answer to the first question is no, is whether sewerage undertakers have such a right in relation to any of their sewers, and, if so, whether it is those which were in use immediately before (i) the transfers effected pursuant to the Water Act 1989 or (ii) the coming into force of the Water Industry Act 1991 [38]. In Lord Neubergers view the composite answer to these questions is that sewerage undertakers have the statutory right to discharge surface water and treated effluent into streams and canals (subject to payment of compensation for any damage thereby caused), but only in respect of outfalls in existence before the coming into force of the 1991 Act. He agrees with the reasons given by Lord Sumption and Lord Toulson although would place greater weight on the provisions of the earlier legislation relating to public sewers and the Interpretation Act 1978 [39].

8k-16k

This appeal concerns the interpretation and application of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act). The appellant is a patient detained in the State Hospital at Carstairs who made an application to the Mental Health Tribunal for Scotland (the tribunal) for an order under section 264(2) of the Act, declaring that he was being detained under conditions of excessive security and specifying a period during which the duties under section 264(3) and (5) should be performed. His application was refused. An appeal to the Court of Session against that decision, under section 322 of the Act, was also refused ([2011] CSIH 55; 2012 SC 138). He now appeals to this court. For the reasons I shall explain, the appeal must be dismissed. It has however provided an opportunity to clarify the nature of decision-making under section 264(2), and the factors which are relevant to the proper application of that section and of other provisions of the Act. The background to the Act It may be helpful to begin by considering the general background to the Act. Until its enactment, the statutory framework for the treatment in Scotland of persons suffering from mental disorders was contained in the Mental Health (Scotland) Act 1984, a consolidation Act which drew together a body of older legislation. That legislation had become increasingly out of step with current thinking about the treatment of mental disorders, the rights of patients, and the relationship between patients and the wider community. One important development was the influence of the European Convention on Human Rights, particularly after it was given effect in domestic law by the Scotland Act 1998 and the Human Rights Act 1998. In particular, the Convention necessitated a more robust system of judicial protection of the rights of patients than had previously existed, and greater involvement of patients and their families and carers in decisions concerning treatment. Another important development concerned the treatment of the mentally ill, with many more patients being treated outside hospitals, fewer patients requiring long-term hospital care, and a marked reduction in the number of hospital beds available for the treatment of mental illness. A third development was an increasing recognition of the desirability of eliminating the stigma which had long been associated with mental illness. All these developments, and others, necessitated a fundamental review of Scottish mental health law. The Committee stated in the report that it was fundamental to its approach that a new Act should be based on principles stated on the face of the Act itself (Introduction, para 3): as I shall explain, that is reflected in section 1 of the Act. A particular problem identified by the Committee, which in due course section 264 of the Act sought to address, was discussed in Chapter 27: 82. We have received evidence from the State Hospital and the Mental Welfare Commission that there are significant numbers of entrapped patients. These are patients who no longer require the level of security afforded by the State Hospital, but for whom appropriate local services are not available. The State Hospitals Board suggested that there is currently little incentive for local health boards and trusts to arrange secure psychiatric services. The local public is unlikely to welcome such services (indeed quite the reverse), and funding arrangements do not create incentives to develop such services. The Board strongly advocated that an explicit statutory duty be placed on health boards to commission local services to address the need for a range of medium and low security services for mentally disordered offenders. 83. We have considerable sympathy with the position of the State Hospital on this point. However, we have decided that, in terms of our core remit of reviewing the Mental Health (Scotland) Act 1984, it would be more appropriate for us to propose another means of addressing this problem, which is more directed at the rights of individual patients. This is that patients should have a continuing right to appeal against the level of security to which they are subjected. 84. It seems to us that to detain a patient unnecessarily in conditions of high security is inconsistent with respect for the patient's rights, and our general principle of Least restrictive alternative. Furthermore, the proposed development of medium secure units would seem to make it more likely that such an appeal right would be practicable. The Committee discussed how such a right of appeal might be made effective. In order to provide care at a lower level of security, arrangements would have to be made by the responsible health board. The provision of such arrangements could involve practical difficulties which might be beyond the health boards control. If the necessary arrangements were not put in place, it would be undesirable that a patient who was still assessed as requiring some degree of secure care should simply be discharged. On the other hand, the proposed right of appeal would be meaningless unless it led to an order which was capable of being enforced. Following consultation on this issue, the Committee concluded that a staged approach was appropriate: We therefore suggest that, should a patient successfully appeal to a tribunal against the level of security, it should set a time within which the necessary provision should be arranged by the responsible health board. The time limit might be of the order of three months. Should arrangements not be made at the expiry of that period, representatives of the health board should be required to appear before the tribunal to explain the position, and to confirm whether there is a prospect of a placement being found within a reasonable period. The tribunal should be able to extend the time limit for a further period of no more than three months. If, at the end of that period, no provision has been made, the tribunal could order that arrangements must be put in place to accommodate the patient within 14 days. (Chapter 27, para 89) In a subsequent White Paper, Renewing Mental Health Law Policy Statement (2001), the Scottish Executive broadly accepted the Committees recommendations as the framework for a future Bill, although rejecting or modifying some of the recommendations concerned with mentally disordered offenders. As introduced, the Bill did not contain any provision reflecting the recommendations in relation to appeals against levels of security. There was at that time only one specialist medium secure unit in Scotland, namely the Orchard Clinic in Edinburgh. The provisions which became sections 264 to 273, giving effect to the Committees recommendations, were however introduced by amendment during the passage of the Bill through Parliament. Commencement provisions in section 333(2) allowed the entry into force of sections 264 to 273 to be delayed until 1 May 2006, so as to allow sufficient time for additional facilities for affected patients to be commissioned. Section 1 of the Act Section 1 of the Act is a provision of particular importance. It sets out principles to be applied by persons discharging certain functions under the Act. The principles are set out in, or incorporated into, subsections (2) to (4). The circumstances in which they apply are defined by subsection (1), which provides: (1) Subsections (2) to (4) below apply whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a patient who has attained the age of 18 years. The tribunal does not fall within subsection (7). Subsections (2) to (4) therefore apply to the tribunal whenever it is discharging a function by virtue of the Act in relation to a patient who is over 18. One of the functions discharged by the tribunal under the Act, to which subsections (2) to (4) therefore apply, is that of taking decisions under section 264(2). Section 1(2) provides: (2) In discharging the function the person shall, subject to subsection (9) below, have regard to the matters mentioned in subsection (3) below in so far as they are relevant to the function being discharged. Subsection (9) is not relevant to the present case, and need not be considered further. Subject only to that provision, the tribunal is under a statutory duty to have regard to the matters mentioned in subsection (3) so far as they are relevant to the function being discharged: such as, in the present case, the taking of decisions under section 264(2). Section 1(3) provides: (3) The matters referred to in subsection (2) above are - (a) the present and past wishes and feelings of the patient which are relevant to the discharge of the function; (b) the views of [the patients named person, carer, guardian and welfare attorney, if any], which are relevant to the discharge of the function; (c) the importance of the patient participating as fully as possible in the discharge of the function; (d) the importance of providing such information and support to the patient as is necessary to enable the patient to participate in accordance with paragraph (c) above; (e) the range of options available in the patient's case; (f) the importance of providing the maximum benefit to the patient; (g) the need to ensure that, unless it can be shown that it is justified in the circumstances, the patient is not treated in a way that is less favourable than the way in which a person who is not a patient might be treated in a comparable situation; (h) the patient's abilities, background and characteristics, including, without prejudice to that generality, the patient's age, sex, sexual orientation, religious persuasion, racial origin, cultural and linguistic background and membership of any ethnic group. Paragraphs (a), (c) and (d) reflect the importance of respect for the patients autonomy and the consequent need to enable the patient to participate in the exercise of functions concerning him or her, so far as possible. The Millan Committee had identified in its discussion of general principles (Chapter 3, para 13) a need to broaden the extent to which those principles were reflected in mental health law. Paragraph (b) is similar in purpose to paragraph (a), and applies the same general principle to carers and others closely involved with the patient. Paragraphs (e) and (f) reflect the importance of ensuring that functions exercised under the Act should be discharged in the most beneficial way possible for the patient. As the Committee had noted, that principle was reflected in the older legislation concerned with children and with adults with incapacity, but not in mental health law generally. Paragraph (g) gives expression to the principle of non-discrimination in relation to persons with mental disorders: the term patient is defined by section 329(1) of the Act as meaning a person who has, or appears to have, a mental disorder. The Committee had noted that this concept of equality had come to the fore in recent years. Paragraph (h) reflects the principle of respect for diversity. The Committee had observed that such a principle added to the principle of equality by making a positive statement of the requirement to reflect individual needs. Before considering section 1(4), it is necessary to consider section 1(5) and (6), which list further matters to which regard must be had in particular circumstances. Section 1(5) provides: (5) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act (other than the making of a decision about medical treatment) in relation to a patient, the person shall have regard, in so far as it is reasonable and practicable to do so, to - (a) the needs and circumstances of any carer of the patient which are relevant to the discharge of the function and of which the person is aware; and (b) the importance of providing such information to any carer of the patient as might assist the carer to care for the patient. As I have explained, the tribunal does not fall within subsection (7); and a decision under section 264(2) is not a decision about medical treatment. It is therefore a decision to which section 1(5) applies. Section 1(6) provides: (6) Whenever a person who does not fall within subsection (7) below is discharging a function by virtue of this Act in relation to a person who is, or has been, subject to - (a) detention in hospital authorised by [an emergency detention certificate]; (b) detention in hospital authorised by a [short-term detention certificate]; (c) [a compulsory treatment order]; or (d) [a compulsion order], the person who is discharging the function shall have regard to the importance of the provision of appropriate services to the person who is, or has been, subject to the certificate or order concerned (including, without prejudice to that generality, the provision of continuing care when the person is no longer subject to the certificate or order). Since section 264 applies where a patients detention in a state hospital is authorised by inter alia a compulsory treatment order or a compulsion order, it follows that section 1(6) can apply when the tribunal is taking a decision under section 264. It did so in the present case, the appellant being subject to a compulsion order. Returning to section 1(4), it provides: (4) After having regard to - (a) the matters mentioned in subsection (3) above; (b) if subsections (5) and (6) below apply, the matters mentioned there; and (c) such other matters as are relevant in the circumstances, the person shall discharge the function in the manner that appears to the person to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Section 1(4) is of a different nature from subsections (3), (5) and (6). It does not specify matters to which the person in question must have regard. It applies after the person has had regard to all the matters to which he or she is required to have regard, including, under paragraph (c), the residual category of such other matters as are relevant in the circumstances. It requires the person then to discharge the function in a particular manner, namely the manner which appears to the person to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances. This broadly but not precisely reflects the Millan Committees general principle of the least restrictive alternative (Chapter 3, para 13), and Principle 9.1 of the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care, adopted by the UN General Assembly on 17 December 1991 (A/RES/46/119). The concept of restriction on freedom is not defined, and must be considered broadly. A persons freedom has many aspects, and can be restricted in many different ways. To some extent, whether a particular aspect or effect of the detention of a patient is regarded as a restriction of his freedom may depend on the characteristics of the patient. There may be room for debate as to whether one course of action will involve greater restriction of a patients freedom than another. One course of action may, for example, involve relatively greater restriction on freedom than another for a period of time, but relatively less restriction subsequently. One course of action may involve one kind of restriction on freedom, while another may involve a different type of restriction. For all these reasons, the person discharging the function must have a wide power of judgment in making his or her assessment under section 1(4), and may not be able to reach any clear conclusion. Section 1(4) does not prioritise the freedom of the patient over other considerations, such as the importance of providing the maximum benefit to the patient or, where relevant, the protection of the public, or the safety of other patients: it requires the minimum restriction on the freedom of the patient that is necessary in the circumstances. The judgment of what is necessary in the circumstances is to be made by the person discharging the function. Section 1 thus sets out an overarching approach to the discharge of functions under the Act. The person discharging the function must have regard to the matters specified in subsection (3), so far as relevant, to the matters specified in subsections (5) and (6) where applicable, and to such other matters as may be relevant in the particular circumstances. The person must then discharge the function in the manner that appears to him or her to involve the minimum restriction on the freedom of the patient that is necessary in those circumstances. Section 1(4) will not however be determinative of all the decisions falling within its scope. Some functions discharged under the Act do not impinge upon the freedom of patients. In other cases, there may be a number of ways in which the function might be discharged, none of which appears to the person in question to impose a greater restriction on the freedom of the patient than is necessary in the circumstances. Section 264 of the Act Section 264 applies, in terms of subsection (1), where a patients detention in a state hospital is authorised by any of a number of specified orders and directions, including a compulsion order. As I have explained, the appellants detention in the State Hospital is authorised by such an order, and therefore comes within the scope of section 264. Section 264(2) provides: (2) On the application of any of the persons mentioned in subsection (6) below, the Tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, make an order - (a) declaring that the patient is being detained in conditions of excessive security; and (b) specifying a period, not exceeding 3 months and beginning with the making of the order, during which the duties under subsections (3) to (5) below shall be performed. The patient is among the persons mentioned in subsection (6), and is therefore entitled to make such an application. Section 264(2) confers a discretion (the Tribunal may make an order), subject to a pre-condition (if satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital). The function conferred upon the tribunal by section 264(2) therefore involves two distinct stages. First, the tribunal has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital: that is to say, whether the statutory condition for the admission of a patient to a state hospital (under, for example, sections 57A(6) or 59A(6) of the Criminal Procedure (Scotland) Act 1995 as amended) is no longer satisfied. If the tribunal is not so satisfied, then it will refuse the application. If on the other hand it is so satisfied, then it may make an order under the subsection. The second stage of the tribunals function is therefore to decide whether to exercise its discretion to make such an order. If it decides to do so, then it must also decide the length of the period within which the duties under subsections (3) to (5) are to be performed, subject to a maximum period of three months. The duties imposed by an order made under section 264(2) are set out in subsections (3) to (5). Section 264(3) provides: (3) Where the Tribunal makes an order under subsection (2) above in respect of a relevant patient, the relevant Health Board shall identify a hospital (a) which is not a state hospital; (b) which the Board and the Scottish Ministers, and its managers if they are not the Board, agree is a hospital in which the patient could be detained in appropriate conditions; and (c) in which accommodation is available for the patient. Section 264(4) makes analogous provision in relation to patients who are not relevant patients. A relevant patient is defined by section 273 as one whose detention in hospital is authorised by a compulsion order and who is also subject to a restriction order, or one whose detention in hospital is authorised by a hospital direction or a transfer for treatment direction. The appellant falls into the first of these categories and is therefore a relevant patient. Section 264(5) provides that, where the tribunal makes an order under subsection (2), the relevant health board shall, as soon as practicable after identifying a hospital under subsection (3) or (4), notify the managers of the state hospital of the name of the hospital so identified. It is relevant to note the terms of sections 265 to 267 and 272. Section 265 provides an enforcement mechanism in relation to orders which have been made under section 264(2) and have not been recalled under section 267. In terms of section 265(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order, under section 265(3), of a similar nature to the order originally made under section 264(2). The order made under section 265(3) must specify either a further period of 28 days, or a longer period of up to three months, within which the health board must perform its duties. Section 266 provides a further enforcement mechanism in relation to orders made under section 265(3) which have allowed the health board a further period of more than 28 days to perform its duties, and have not been recalled under section 267. In terms of section 266(2), if the health board fails, during the period specified in the order, to give notice to the tribunal that the patient has been transferred to another hospital, there must be a further hearing before the tribunal. If, following such a hearing, the tribunal remains satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it may then make a further order under section 266(3) of a similar nature to the order originally made under section 264(2), specifying a further period of 28 days within which the health board must perform its duties. Under section 267, an application can be made to the tribunal by the health board (and, in the case of a relevant patient, by the Scottish Ministers) for the recall of an order made under section 264(2), 265(3) or 266(3). The tribunal is required to recall the order if it is satisfied that the patient requires to be detained under conditions of special security that can be provided only in a state hospital, and also has a discretion to recall the order on any other grounds. Under section 272(1), an order made under section 264(2), or an order made under section 265(3) which allows the health board a period of more than 28 days to perform its duties, cannot be enforced by proceedings for specific performance. Such orders can therefore be enforced only by means of the procedures laid down in sections 265 and 266 respectively. On the other hand, under section 272(2), an order under section 265(3) which specifies a period of 28 days, and an order under section 266(3), are enforceable by proceedings for specific performance. One implication of these provisions is that orders made by the tribunal under section 264(2), and orders made under section 265(3) allowing the health board more than 28 days, are not enforceable. In particular, following the making of an order under section 264(2), the tribunal is required to review the position at one or possibly two further hearings before the health board can be compelled by civil proceedings to identify a suitable hospital and notify the managers of the state hospital. The period of time allowed to the health board to make suitable arrangements, before civil proceedings can be taken to compel it to do so, can therefore be substantial: up to three months in terms of the order made under section 264(2), a further three months in terms of the order made under section 265(3), and a further 28 days in terms of the order made under section 266(3). Further time will be required to deal with applications under each of those three sections, there being in each case a requirement to afford an opportunity of making representations and of leading evidence, and to hold a hearing. In the present case, an application under section 264 alone took more than 19 months to be decided by the tribunal. Returning to section 264(2), I have explained the two stages of the exercise which the tribunal has to carry out. At the first stage, it has to decide whether it is satisfied that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital. What constitute such conditions will be a question of fact for the tribunal, the answer to which may vary from time to time. Having identified those conditions, the tribunal has to decide whether the patient requires to be detained under them. If he does not, then the decision at stage one will be favourable to him. It is to be noted that the tribunal is not concerned at stage one with the question whether accommodation is available for the patient in some other hospital in which he could be detained in appropriate conditions. If the tribunal is satisfied at stage one, it then has to perform its function at stage two: that is to say, it has to decide whether to exercise its discretion to make an order. As I have explained, the tribunals discharge of its function under section 264(2) falls within the scope of the general provisions set out in section 1 of the Act. The tribunal must therefore have regard to the matters to which it is required to have regard under that section, and to such other matters as are relevant in the circumstances, in accordance with section 1(4)(c). In the present case, for example, a relevant consideration was that the State Hospital had no female patients, whereas there were such patients in medium secure hospitals. Another was the risk posed by the appellant to the safety of women. As I have explained, the tribunal is required by section 1(4) to exercise its discretion at stage two in the manner that appears to [it] to be the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. That test employs a different concept from section 264(2): conditions of security are not synonymous with restrictions on freedom. For example, the security conditions at the State Hospital include a perimeter security fence which prevents patients from having uncontrolled access to the wider community. Within the perimeter, however, the movements and activities of a patient may be subject to relatively few restrictions. Medium secure hospitals on the other hand typically have less secure perimeters. In consequence, patients posing a risk to the public may require to be subject to relatively onerous restrictions on their movements and activities, which may not only prevent them from having uncontrolled access to the wider community but may also restrict their freedom within the hospital itself. For reasons such as these, it is possible that fewer restrictions on the freedom of a particular patient may be necessary under conditions of security that are available only in a state hospital than if the patient were detained elsewhere. Thus an analysis of the implications of an order under section 264(2) for the daily regime of the patient and for his progress through the system may, depending on the circumstances, result in the conclusion that the refusal of the order will result in the minimum restriction necessary in the circumstances. It is also possible that no clear conclusion will be reached as to whether the patient will be subject to greater restrictions on his freedom if he is detained in a state hospital or elsewhere. The tribunal should in any event exercise its discretion in such a way as to promote the policy and objects of the Act, and of section 264 in particular. As I have explained, the mischief which section 264 was intended to address is the entrapment of patients who no longer require the level of security afforded by the State Hospital. Given that intention, Parliament can be taken to have envisaged that if the tribunal were to conclude at stage one that the patient no longer required to be detained under conditions of special security that could be provided only in a state hospital, it would then make an order under section 264(2) unless it considered that there was some good reason not to do so. In that regard, the unavailability of accommodation in a medium secure hospital in which the patient could be detained in appropriate conditions cannot have been intended to preclude the making of an order under section 264(2): otherwise, Parliaments intention in enacting section 264 could be frustrated by mere inertia on the part of health boards, and the arrangements made by sections 264 to 266 and 272, preventing the immediate enforcement of orders under section 264(2), and allowing health boards substantial periods of time where necessary to make appropriate arrangements, would be supererogatory. Those provisions take account of the potential practical difficulties identified by the Millan Committee, while also guarding against the connection between entrapment and the absence of incentives for health boards to address the problem. It is implicit in section 264(3), (4) and (5) that an order can be made by the tribunal under subsection (2) at a time when no hospital has been identified, other than a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for the patient. At the same time, the unavailability of accommodation in medium secure hospitals where the patient could be detained in conditions appropriate to his particular needs, including appropriate facilities for treatment, may in some circumstances be relevant to the tribunals performance of its duty to have regard to the importance of providing the maximum benefit to the patient, in accordance with section 1(3)(f). It may also be relevant to the tribunals duty to have regard to the importance of the provision of appropriate services to the patient, in accordance with section 1(6). To make an order under section 264(2) where medical or other evidence demonstrated that appropriate conditions were not available outside a state hospital, or where clinically superior conditions were available in a state hospital, might be incompatible with providing the maximum benefit to the particular patient. As I shall explain, the present case provides an example of such a situation. Furthermore, to make an order where the tribunal was satisfied that there was no conceivable possibility that the patient could be accommodated in a medium secure hospital in appropriate conditions within any realistic timescale, and where an application for recall could not therefore be refused, would be unreasonable. The view expressed in Lothian Health Board v BM 2007 SCLR 478, that the availability of accommodation in a medium secure hospital where the patient could be detained in appropriate conditions, including appropriate facilities for treatment, can never be relevant to the question whether an order should be made under section 264, and can only be raised by way of an application for the recall of the order under section 267, therefore goes too far. The present case In 1998 the appellant appeared before the High Court of Justiciary on charges of rape, assault and breach of the peace. He was acquitted on the ground of insanity and made the subject of orders under which he was detained at the State Hospital. Although those orders were made under earlier legislation, they are now deemed to be a compulsion order and a restriction order within the meaning of the Criminal Procedure (Scotland) Act 1995 as amended. In 2008 the appellant applied for an order under section 264(2) of the Act. In 2009 the tribunal issued its decision, refusing the application. In its decision, the tribunal described the security conditions at the State Hospital, and explained how they differed from those in hospitals of lesser security. It found that the appellant had in recent times been subject to the lowest level of security in the State Hospital. He continued to pose some risk of sexual violence. The best way of managing that risk could only be determined following his undertaking and completing satisfactorily a course of psychological treatment for sexual offending. The tribunal found that the appellant had in the past been offered such treatment at the State Hospital, on a group basis, but had declined to take part. He had recently indicated his willingness to engage in such treatment on a one to one or one to two basis. After a delay for which there was no satisfactory explanation, the provision of appropriate treatment for him was currently under consideration by the clinical psychologists at the State Hospital. The psychology department there was the best resourced in any secure hospital in Scotland. It was capable of providing appropriate treatment in a variety of forms, including one to one or one to two. It had assessed the appellant and was best placed to decide how to meet his needs. There was uncertainty as to the time scale for undertaking such treatment in a medium secure hospital. The tribunal correctly identified that decision-making under section 264(2) involved two stages, and it correctly understood what those stages were. At the first stage, it concluded that the appellant did not require to be detained under conditions of special security that could be provided only in a state hospital. On the facts which it had found, it was entitled to reach that conclusion: it found that the appellant could be managed within a medium secure hospital, although only subject to considerable restrictions until he had completed a course of treatment for sexual violence. If the appellant could be detained elsewhere in appropriate conditions of security, then he did not require to be detained under conditions of special security that could be provided only in a state hospital. At the second stage of its decision, the tribunal had regard to section 1 of the Act. It referred in particular to the importance of providing the maximum benefit to the patient (section 1(3)(f)), and to the least restrictive option (section 1(4)). It made no express mention of the other provisions of section 1(3), (5) or (6). In reaching its decision at the second stage, the tribunal noted the medical witnesses agreement that the appellant had to undertake an appropriate course of treatment before he could be allowed greater contact with women. If transferred to a medium secure hospital, he would have greater contact with women: although this was not explained by the tribunal, we were informed that the State Hospital has no female patients, whereas medium secure hospitals have patients of both sexes. If transferred before completing such treatment, he would pose a risk to any woman with whom he formed a relationship, in the event that he felt rejected or came under the influence of alcohol or drugs. The tribunal also shared the concern expressed by certain of the medical witnesses that the appellant was less likely to engage in such treatment in a medium secure hospital. There was therefore a significant risk that he would become entrapped in the medium secure system: although this was not explained by the tribunal, we were informed that this was because the progression of patients to lower levels of security depends on assessments of risk, and one of the purposes of such treatment is to provide the information necessary for that assessment process. Because of the risk he posed to women, he would require to be subject to restrictions on his movements in a medium secure hospital which were much greater than those to which he was subject in the State Hospital, unless and until he successfully completed such treatment. There was a significant risk of consequential problems for his mental health. In relation to the least restrictive alternative, the tribunal stated that if the appellant moved to a medium secure hospital then he would have to endure greater restrictions on his movements than currently experienced at the State Hospital, until a treatment course was satisfactorily completed. Such a course could take 12 to 18 months. The tribunal concluded that it was of maximum benefit to the appellant that he should remain at the State Hospital and undertake appropriate treatment there. It stated that accordingly in the exercise of its discretion, the application should be refused. The challenge to the tribunals decision On behalf of the appellant, it was submitted to this court that the tribunals decision was vitiated by a number of errors. In the first place, it was argued that the tribunal had failed to exercise its discretion in accordance with the purpose of section 264. Since the purpose was to avoid patients being detained in state hospitals when adequate security arrangements were available elsewhere, section 264(2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage two, where a decision favourable to the patients application had been reached at stage one. Secondly, the tribunal had been influenced at stage two by the risk posed by the appellant to women. Risk was however an irrelevant consideration at stage two: the tribunal only reached stage two after it had already decided at stage one that the patient could be managed within a medium secure hospital. Thirdly, the tribunal had placed weight on a finding that the State Hospital offered better resources for the treatment of the appellant than were available in the medium secure estate. The unavailability of suitable resources elsewhere was not however a relevant factor: otherwise, the provisions of sections 265 and 266 would be otiose. Fourthly, the tribunal had failed to have regard to the wishes and feelings of the appellant, and to the need to avoid discrimination against patients, contrary to section 1(3)(a) and (g) respectively. Fifthly, the tribunal had misunderstood the relationship between section 1(3) and section 1(4). It had elevated the importance of providing maximum benefit to the patient (section 1(3)(f)) above the least restrictive alternative principle (section 1(4)), thus inverting the proper approach. I shall consider each of these contentions in turn. The width of the discretion exercised at stage two If the tribunal reaches a conclusion favourable to the patients application at stage one, it must then exercise its discretion whether to grant the application in accordance with the principles set out in section 1 and in accordance with the policy underlying section 264. Putting the matter broadly, if the patient does not require to be detained under conditions of special security available only in a state hospital, this approach should lead to the granting of the application unless in the particular circumstances there is some good reason to refuse it. It would therefore be potentially misleading to describe the tribunals discretion as unqualified: the range of matters which it may take into account is not subject to any express restriction, and is necessarily wide, but its discretion must nevertheless be exercised in a manner which is consistent with the intention of Parliament. On the other hand, it would also be wrong to say that it is only in exceptional circumstances that an application should be refused at stage two: it is impossible to say a priori whether the circumstances in which an application may properly be refused will be exceptional or not. There is no legal reason why they need be. Indeed, exceptional circumstances cannot be a legal test: circumstances can be described as exceptional only by reference to a criterion, rather than exceptionality being a criterion in itself. The relevance of risk at stage two The risk posed by the patient to the safety of others is plainly relevant to the tribunals assessment at stage one, since the conditions of security under which the patient requires to be detained are dependent upon the nature and extent of any risk which he poses. If the tribunal concludes at stage one that the patient does not require to be detained under conditions of special security that can be provided only in a state hospital, it is by implication finding that the conditions of security that can be provided elsewhere are equally capable of addressing the risk posed by the patient. The tribunal cannot rationally exercise its discretion at stage two on a basis which is inconsistent with that conclusion. In those circumstances, the tribunal was correct to consider one aspect of the issue of risk namely, the necessity for security arrangements available only in a state hospital - at stage one, and other aspects namely, the risk to female patients in a medium secure hospital, and the implications of that risk for restrictions on the appellants freedom in that setting, and consequently for the appellants mental health - at stage two. The relevance of the quality of the resources available in medium secure hospitals As I have explained, when the tribunal is taking a decision under section 264(2), the unavailability of accommodation for the patient at another hospital where he could be detained in appropriate conditions does not preclude the granting of the application. That does not however entail that the quality of treatment available at other hospitals, as compared with the treatment available at the State Hospital, is irrelevant to the tribunals exercise of its discretion. There is nothing in section 264 which expressly or implicitly bars the tribunal from taking such a clinical comparison into account. Under section 1, the quality of the treatment available elsewhere may be a relevant consideration, notably under section 1(3)(f) and section 1(6), both of which were relevant in the present case. Furthermore, the quality of treatment available in a medium secure hospital, and in particular the availability of the particular form of treatment required by the patient, may affect the risk posed by the patient in that setting. The potential raising of the level of risk is in itself a matter to which the tribunal is entitled to have regard, under section 1(4)(c), and it may have consequences which are also relevant to the tribunals decision, for example under section 1(3)(f) or section 1(4). In the present case, the tribunals focus was upon the availability of the most suitable treatment for the appellants particular needs in the State Hospital and in a medium secure hospital, the likelihood of his accepting appropriate treatment in each of those settings, and the implications of those matters for the risk which he would pose in each of those settings, for the necessary restrictions on his movement and for his mental health. Although the tribunal might have given a fuller explanation of its factual findings in relation to these matters, its approach to them did not involve any error of law. The tribunals failure to refer to section 1(3)(a) and (g) The tribunal made no express mention of section 1(3)(a), and did not refer in terms to the appellants wishes or feelings in the reasons it gave for its decision. It is nevertheless clear that the tribunal had regard to the appellants wishes and feelings so far as relevant, as required by section 1(3)(a). In particular, it took account of his wish to be transferred to a medium secure hospital, and it considered his attitude towards different forms of treatment. I am unable to accept the submission on behalf of the tribunal, seemingly endorsed by the Inner House at para 14 of the opinion delivered by Lord Bonomy, that the non-discrimination principle set out in section 1(3)(g) is irrelevant to the tribunals discharge of its function under section 264, since a patient is not comparable to a person of full capacity: on the contrary, section 1(3)(g) is undoubtedly relevant, most obviously to the way in which the patient is treated by the tribunal in its procedures. In the present case, it was argued that section 1(3)(g) required the tribunal to respect the appellants right to decline to accept the most beneficial form of treatment. No reference was made to section (1)(3)(g) by the tribunal. In reaching its decision, however, the tribunal bore in mind that the appellant might decline to participate in an appropriate course of treatment if transferred to a medium secure hospital. It was partly for that reason that it concluded that his application should be refused. Generally, in relation to this aspect of the appellants contentions, it is necessary to have regard to general guidance relevant to the duty of tribunals to give reasons for their decisions, such as that given by Lord Clyde in City of Edinburgh Council v Secretary of State for Scotland 1998 SC (HL) 33, 49-50; [1997] 1 WLR 1447, 1464-1465. Applied in the present context, that guidance does not require a formulaic rehearsal of every matter referred to in section 1 of the Act, regardless of its importance in the particular case. It is also necessary to bear in mind general guidance given to courts scrutinising the reasoning of expert tribunals, such as that given by Baroness Hale of Richmond in AH (Sudan) v Secretary of State for the Home Department [2007] UKHL 49; [2008] AC 678, para 30 and that given by Sir John Dyson in MA (Somalia) v Secretary of State for the Home Department [2010] UKSC 49; [2011] 2 All ER 65, para 45. In the present case, the reasons given by the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. That was enough. The relationship between section 1(3)(f) and section 1(4) It is not readily apparent from the tribunals decision that it understood the structure of section 1, and the potential significance of section 1(4) in particular. On the facts of the present case, however, it does not appear that any misunderstanding can have affected the substance of the tribunals decision, as opposed to the manner in which it was expressed. The tribunal considered section 1(4), which it referred to as the least restrictive option. It stated that if the appellant moved to a medium secure hospital, then until a psychotherapy course was satisfactorily completed he would have to endure greater restrictions on his movements than currently experienced in the State Hospital. Such a course could take 12 to 18 months. If the implication of that statement is that the tribunal considered that the refusal of the application would result in the minimum restriction on the appellants freedom that was necessary in the circumstances, then it could have stopped there: that would have been a proper basis for refusing the application. It appears more likely however that the tribunal did not reach a clear conclusion as to the least restrictive option, perhaps because of the uncertainties as to the appellants likely attitude to treatment in a medium secure hospital, and as to the timescale and outcome of such treatment. In those circumstances it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. It concluded that it would be of maximum benefit to the appellant to undertake the necessary course of treatment at the State Hospital, because (1) the State Hospital had carried out the necessary groundwork to offer him such treatment, and was best placed to offer him the most suitable treatment for his needs, (2) he was less likely to undertake such treatment at a medium secure hospital, (3) he would have to endure greater restrictions on his movements at such a hospital until he completed such treatment, because of the risk to women in that setting, (4) such treatment could take 12 to 18 months to complete, and (5) the restrictions on his movements until the treatment was completed would place his mental health at risk. On that basis, it exercised its discretion to refuse the application. In the light of the matters to which it referred, all of which were relevant, its decision cannot be regarded as unreasonable. Conclusion For these reasons, and those given by Lady Hale, I would dismiss the appeal. A fundamental modernisation of the system for detaining and treating mental patients took place in Scotland under the Mental Health (Scotland) Act 1960 and in England and Wales under the Mental Health Act 1959. The aim was to integrate and normalise the treatment of mental patients within the mainstream National Health Service. But there remained the high security institutions, in Scotland the state hospital at Carstairs and in England and Wales what were then known as the special hospitals at Broadmoor, Rampton, Moss Side and Park Lane (which at that stage were not run as part of the NHS but now are). It soon became clear that there were many patients detained in the high security hospitals who did not need to be there but who could not be transferred to other settings and thus became trapped. There were many reasons for this. These patients were most unlikely to be able to move directly from the highly structured setting of the special hospital into a community setting. Many would be unable to move directly into an ordinary psychiatric hospital or unit. But there was a lack of facilities with an intermediate level of security which could enable the patient to move on without endangering either his own health or safety or that of others. There was also some reluctance among hospital staff, as well as local communities, to having former special hospital patients in their midst. The problem was recognised as long ago as 1974, when the Butler Committee on Mentally Abnormal Offenders published an Interim Report (1974, Cmnd 5698), ahead of its main recommendations, urging the setting up of secure units in each NHS region. This became government policy, and eventually medium and low secure units were established and became an attractive if challenging area of forensic psychiatric practice. According to the Care Quality Commission, 11% of all psychiatric hospital inpatients in England and Wales on census day in 2010 were on medium or high security wards, compared with 76% in general wards and 13% on low security wards (Count me in 2010, p 27). The proportions of detained patients on high, medium or low security wards are likely to be double that, as something over half of all inpatients are detained. This was achieved through government policy and professional commitment rather than through asserting the individual rights of patients. Mr Ashingdane was a Broadmoor patient who was deemed ready for transfer back into his local hospital, but was denied a bed there because the nurses trade union operated a ban on taking special hospital patients. He launched proceedings against the trade union branch secretaries, the Secretary of State and the area health authority. We shall never know whether his claim against the Secretary of State and the local health authority might have succeeded on the grounds that it was unlawful for them to take the union ban into account, because at that stage both were virtually immune from suit under section 141 of the 1959 Act and so his claim was struck out (see Ashingdane v Department of Health and Social Security [1981] CLY 175u). He then complained to the European Court of Human Rights that, among other things, his detention in Broadmoor did not fall within the lawful detention of persons of unsound mind permitted by article 5(1)(e) of the Convention, because he did not need to be in Broadmoor. The Court held that there had to be a relationship between the grounds of detention and the place and conditions of detention, so that a person detained because of mental disorder had to be kept in some sort of hospital or clinic appropriate to that purpose (Ashingdane v United Kingdom (1985) 7 EHRR 528). But beyond that article 5 is not concerned with the conditions under which a patient is detained; keeping him in Broadmoor longer than he needed to be there did not change the character of his detention and was not a violation of article 5. Since then, beyond the very remote possibility of judicial review, patients in England and Wales have been unable to complain that they are being detained in conditions of excessive security. It was therefore progressive and far-sighted of the Millan Committee to recommend that individual patients in Scotland should have the right to challenge the place of their detention on that basis and of the Scottish Parliament to pass what became sections 264 to 273 of the Mental Health (Care and Treatment) (Scotland) Act 2003. Despite all the recent changes to the Mental Health Act 1983 (which consolidated the 1959 Act with later amendments), the law in England and Wales still lags behind the law in Scotland in this respect. No doubt those with an interest in the subject south of the border will be keeping a close eye on experience with the Scottish jurisdiction. It would obviously defeat the object of the legislation if the authorities were able simply to say that no bed was available in another, less secure, hospital. It must be the case, as Lord Reed observes (para 38), that this is irrelevant to the first stage: deciding whether (in the case of a state hospital patient) he requires to be detained under conditions of special security that can be provided only in a state hospital (section 264(2)) or (in the case of a patient in another hospital) he is being subject to a level of security that is excessive in his case (section 268(2)). It must also be the case, as Lord Reed says (paras 41 and 54), that having decided that question in favour of the patient, the expectation is that the tribunal will make an order unless in the particular circumstances of the case there is some good reason not to do so. More difficult is whether the non-availability of a bed constitutes a good reason at the second stage, the exercise of the tribunals discretion in the light of the guidance given in section 1(2), (3), (4), (5) and (6) of the 2003 Act. I agree with Lord Reed (para 43) that it would be unreasonable to make an order under section 264, or indeed section 268, if there were no conceivable possibility of an appropriate bed being found elsewhere. But that is a conclusion which a tribunal should be slow to reach. I would add that the search for an appropriate bed need not be confined to Scotland. If there are appropriate facilities in England, Wales or Northern Ireland, then the patient can be transferred there. The difficult case is the one like this, where the patient is not being denied a bed in a medium secure unit, but it is said that the conditions and treatment there will not be appropriate to his particular needs. These are not for the high level of security which can only be provided at the state hospital, but to be kept away from unsupervised contact with women until he has properly addressed the problem which brought him into the hospital in the first place. One can easily see how such a case could develop into an unseemly contest between the state hospital doctors, who wish their patient to move on, and the medium secure unit doctors who consider their facilities unsuitable. A principal object of giving patients individual rights is to stimulate the authorities into providing appropriate facilities for them, so it is important to ask whether such facilities could be provided in less secure settings. There is the further problem in a case like this, that the reason why the experts do not consider a medium secure unit suitable is that the patient has not undergone a particular course of treatment. One must beware the Catch 22 where the patient does not need a high level of security, but the facilities offered are not in fact suitable to the level of security he does need, and the reason for that is the lack of appropriate work which has been done with him in the state hospital. This is akin to the problem of those post-tariff life or indeterminate sentence prisoners who are denied the opportunity of demonstrating that they are safe to be moved on or out by the lack of appropriate courses for them: see R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 and James v United Kingdom (2012) 56 EHRR 399. If Ashingdane is right, this does not engage article 5(1) in the way it was said to be engaged in James. Nevertheless, being denied the opportunity of moving on because the state hospital has not provided the treatment which would enable the patient to move on is likely to engender a sense of injustice which might, at the very least, be considered anti- therapeutic. Fortunately, it looks as if this patients treatment needs are now being addressed in a way which he can accept. I confess to having found this case a troublesome one. Is it a case in which the authorities could provide the appropriate facilities outside the state hospital if they chose to do so? If it is, then in my view the tribunal should at least make an order at the first hearing, even if the search eventually proves fruitless so that the order has to be recalled. Alternatively, is it a case where the patients therapeutic needs will genuinely be better met in the state hospital than they would be outside it? This is obviously relevant to factor (f) in section 1(3) (para 14 above), the importance of providing the maximum benefit to the patient, and to section 1(6) (para 21), the importance of the provision of appropriate services to the [patient]. Those are factual matters for the tribunal, but I agree with Lord Reed that the evidence that the forensic psychology facilities at the state hospital were better than anywhere else, and that the patient would be more inclined to engage with them if he were still there (and thus had the incentive to demonstrate that he was ready to move on), was highly relevant to that question. So in my view the tribunal was entitled to take the view that the patients therapeutic needs would be better met in the state hospital. As Lord Reed has made clear (para 23), the obligation in section 1(4) is of a different nature from the obligation to consider the various matters listed in section 1(3), (5) and (6). It is not a matter to be taken into account. It is the manner in which the discretion is to be exercised, that is, the manner that involves the minimum restriction on the freedom of the patient that is necessary in the circumstances. Generally speaking, one would expect that if a patient does not need to be detained with the level of security that can only be provided at the state hospital, the minimum restriction on the patients freedom that is necessary in the circumstances will be found elsewhere. Once again, the object of the legislation would be defeated if the authorities were able to say that they had chosen to provide medium secure facilities in such a way as to make it difficult for people like this patient to move on. They might, for example, provide single sex accommodation where patients would not come into unsupervised contact with women until they were ready. However, I agree with Lord Reed (para 56) that risk, whether to the patient or others, is not irrelevant to the exercise of the tribunals discretion. It is inherent in factors 1(3)(f) and 1(6). This in turn feeds into what is necessary for the purpose of section 1(4). So the tribunal could conclude that, in the light of the patients treatment needs and the risks he posed either to himself or others, the restrictions on his freedom which would be necessary in a medium secure unit would in fact be greater than those entailed in staying in the state hospital. But I would hope that among the factors it considers when reaching that conclusion are the wishes and feelings of the patient (section 1(3)(a)). It could be that a patient is willing to accept a greater restriction on his freedom for the sake of the opportunity to leave the state hospital. It is therefore with a degree of reluctance that I conclude, for the reasons given by Lord Reed, that the tribunal was entitled to reach the conclusion that they did and that therefore this appeal must be dismissed. It has, however, provided the court with a useful opportunity, both to clarify how these provisions are meant to work, and to sound some warning bells as to how they should not work.

This appeal concerns provisions of the Mental Health (Care and Treatment) (Scotland) Act 2003 (the Act) designed to address the problem of entrapped patients, namely those who no longer require the level of security afforded by the state hospital but for whom appropriate local services are not available [3 11]. The appellant, G, was tried for rape, assault and breach of the peace in 1998 and acquitted on the ground of insanity. He is detained at the state hospital at Carstairs under a compulsion order and a restriction order. G made an application under section 264(2) of the Act. It provides that the mental health tribunal may, if satisfied that the patient does not require to be detained under conditions of special security that can be provided only at the state hospital, make an order (a) declaring that he is being detained in conditions of excessive security, and (b) specifying a period not exceeding 3 months during which certain duties shall be performed [28 29]. These include the identification of a hospital, which is not a state hospital, in which the patient could be detained in appropriate conditions and in which accommodation is available for him [31]. Decisions under section 264(2) are among those functions that must be discharged having regard, insofar as relevant, to the matters set out at section 1(3) of the Act. These include the wishes and feelings of the patient (s.1(3)(a)), the importance of providing the maximum benefit to him (s.1(3)(f)), and the need to ensure that, unless it can be justified, he is not treated less favourably than a non patient in a comparable situation would be (s.1(3)(g)) [12 18]. Section 1(4) provides that the function must be discharged in the manner that appears to the person discharging it to involve the minimum restriction on the freedom of the patient that is necessary in the circumstances, after having regard to matters including those in section 1(3) and such other matters as are relevant in the circumstances [22]. Gs application was refused. At the first stage of its section 264(2) analysis, the tribunal found G did not require to be detained under conditions of special security that could be provided only at the State Hospital. At the second stage, when considering whether to exercise its discretion to make an order, it had regard to section 1, referring in particular to maximum benefit (section 1(3)(f)) and to the least restrictive option (s.1(4)). It did not expressly mention the other provisions of section 1(3), (5) or (6). It found [47 53] that he had recently been subject to the lowest level of security at Carstairs. He continued to pose some risk of sexual violence towards women and the best way of managing it could only be determined once he had undertaken and completed satisfactorily a course of psychological treatment for sexual offending. The psychology department at Carstairs was best placed to deliver this treatment, and the tribunal was concerned that G was less likely to engage in it in a medium secure hospital. Consequently, there was a significant risk that he would become trapped in the medium secure system. The risk he posed meant he would need to be subject to greater restrictions on his movements in a medium secure hospital than at Carstairs unless and until he completed the necessary treatment, which could take 12 to 18 months. There was a significant risk of consequential mental health problems. The tribunal found that it was of maximum benefit to G that he remain at Carstairs. Gs appeal to the Court of Session was refused. Before the Supreme Court, he argues that the tribunal: (i) failed to exercise its discretion in accordance with the purpose of section 264: subsection (2) should be interpreted as conferring only a residual discretion to refuse an order in exceptional circumstances at stage 2 where a decision favourable to the application had been reached at stage 1; (ii) was influenced at stage 2 by the risk G posed to women, when consideration of risk ought to have been confined to stage 1; (iii) placed weight on the unavailability of suitable resources elsewhere an irrelevant factor; (iv) failed to have regard to his wishes and feelings and to the need to avoid discrimination; and (v) elevated the importance of providing maximum benefit (s.1(3)(f)) above the least restrictive alternative principle (s.1(4)). The Supreme Court unanimously dismisses the appeal. Lord Reed, with whose judgment the other Justices agree, addresses each ground of appeal as follows: (i) The tribunal understood that section 264(2) involved two stages and what those stages were. Once stage 1 is satisfied, the application should be granted unless there is some good reason to refuse it [41]. The range of matters the tribunal may take into account is necessarily wide but its discretion must be exercised consistently with the intention of Parliament. There is no legal reason why it is only in exceptional circumstances that an application should be refused at stage 2 [55]. (ii) Given the nature of a section 264 decision, risk is plainly relevant at each stage of the process. The increased risk to women which might result from a transfer to a medium secure hospital where there would be female patients was a relevant matter falling within section 1(4)(c). The finding that the risk would result in greater restrictions in the medium secure unit was plainly relevant to the tribunals section 1(4) assessment, and it was also entitled to have regard, under section 1(3)(f), to the consequential risk to Gs mental health [57]. (iii) Although the unavailability of accommodation does not preclude the granting of an application [38; 42], this does not mean the comparative quality of treatment available at other hospitals is irrelevant. The tribunal is not prevented from taking into account a clinical comparison [59 61]. (iv) Whilst it did not mention them, it is clear that the tribunal had regard to Gs wishes and feelings insofar as relevant, in particular his wish to be transferred to a medium secure hospital and his attitude towards different forms of treatment. In relation to section 1(3)(g). Lord Reed rejects the argument that the provision is irrelevant to the discharge of the section 264 function since a patient is not comparable to a person of full capacity. It is undoubtedly relevant, but it was enough that the tribunal dealt with the critical issues sufficiently to enable the parties and the court to understand why the application had been refused. A formulaic rehearsal of every matter in section 1 was not required [64]. It is not readily apparent that the tribunal understood the structure of section 1. On the facts of this (v) case, however, this cannot have affected the substance of its decision. It appears most likely that it did not reach a clear conclusion on section 1(4). In those circumstances, it was entitled to exercise its discretion having regard to all relevant matters and in accordance with the objects of the Act. Its conclusion that it would be of maximum benefit for G to remain in the State Hospital was reasonable [65 67]. In a short concurring judgment, Lady Hale agrees with a degree of reluctance that the appeal should be dismissed. She shares Lord Reeds view [43] that it would be unreasonable to make a section 264 order where there was no conceivable possibility of an appropriate bed being found elsewhere, but stresses that such a conclusion is one that a tribunal should be slow to reach. One must beware the Catch 22 where the patient does not need a high level of security but the facilities offered are not suitable to the level of security he does need by reason of a lack of appropriate work done with him in the state hospital. In this case she agrees with Lord Reed that the tribunal was entitled to reach the factual conclusion that the patients therapeutic needs would be better met in the state hospital.

8k-16k

This appeal was heard by this Panel on 10 and 11 February 2010. On 14 April 2010, while we were still considering our decision upon it, we were asked to consider applications for permission to appeal in two other cases in which foreign national prisoners had been detained pending their deportation after completing their sentences of imprisonment. Walumba Lumba, a citizen of the Democratic Republic of Congo, sought permission to appeal from a decision of the Court of Appeal [2010] EWCA Civ 111, [2010] 1 WLR 2168, dismissing his appeal from a decision of Collins J [2008] EWHC 2090 (Admin) on his claim for judicial review to refuse him a declaration that his detention by the Secretary of State for the Home Department was unlawful, for a mandatory order for his release and for damages. Mr Lumba together with Kadian Mighty, a citizen of Jamaica, also sought permission to appeal against the Court of Appeals decision dismissing their appeals from a decision of Davis J [2008] EWHC 3166 (Admin) to dismiss their claims for judicial review of the Secretary of States decision to detain them prior to their deportation and for damages for unlawful detention. We decided to give permission to appeal in both cases, and a direction was given that the appeals should be heard by a panel of nine Justices. As there was plainly a close relationship between the issues raised in those cases and this, we decided to withhold delivery of our judgments in this case until after the decision of nine Justices in the cases of Mr Lumba and Mr Mighty had been given. Following the delivery of the judgment of their cases in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12, [2011] 2 WLR 671 on 11 March 2011 the parties were invited to make written submissions in light of that judgment. Having received and considered their submissions, we are now in a position to give our judgment in this case. The appellant is a national of Zimbabwe. He entered the United Kingdom with leave as a visitor and was then given leave to remain for one year as a student. But he overstayed his leave and, following his conviction for several criminal offences, he was sentenced to a period of imprisonment. The Secretary of State decided that he should be deported. On 8 March 2006 he was detained pending the making of a deportation order. He remained in detention for 27 months until 13 June 2008 when he was released on bail by the Asylum and Immigration Tribunal. On 12 November 2007 while still detained he sought judicial review by means of a mandatory order for his immediate release, a declaration that he was unlawfully detained and damages. On 25 January 2008 Munby J granted a declaration that the appellant had been detained unlawfully for various distinct periods amounting to about 19 months and he gave directions for the assessment of damages: [2008] EWHC 98 (Admin). But he declined to make an order for his release. The Secretary of State appealed against the declaration. The appellant appealed against the refusal of an order for his release, but he was later granted bail and that appeal was not proceeded with. On 6 November 2008 the Court of Appeal (Laws, Keene and Longmore LJJ) allowed the Secretary of States appeal, holding that the appellants detention had been lawful throughout. It remitted a new point which had been raised about the legality of the appellants detention during periods when Munby J held that he was lawfully detained for determination by the High Court: [2008] EWCA Civ 1204, [2009] 1 WLR 1527. The appellant now appeals to this court against the decision by the Court of Appeal that he is not entitled to damages for false imprisonment. Anonymity The appellant has been referred to hitherto in these proceedings as SK (Zimbabwe). Mr Tam QC for the respondent invited the court to maintain the order for the appellants anonymity in accordance with the practice for asylum cases recognised by the Court of Appeal. He suggested that references in the appellants application for asylum might expose him to risk if he were to be returned to Zimbabwe. Mr Husain for the appellant on the other hand did not ask for the order to be maintained. He did not suggest that there were any reasons for concern in his case. He said that he adopted a position of neutrality on this issue. There is no doubt that the court has power to make an anonymity order to restrain publication of a person named in its proceedings. In an extreme case, where he or his family are in peril of their lives or safety, this may help to secure his rights under articles 2 and 3 of the European Convention on Human Rights: In re Guardian News and Media Ltd [2010] UKSC 1, [2010] 2 WLR 325, para 26. Those are the rights that are most likely to be relevant if he is seeking asylum. It may also be made to secure that other persons, such as the press, show respect for his private and family life under article 8 of the Convention. But in such cases the persons article 8 rights must be balanced against the article 10 rights of the press and the general public interest in his being identified: In re Guardian News and Media Ltd, para 76. As the decision in that case shows, however, much will depend on the circumstances of each case. It is no longer the case that all asylum seekers as a class are entitled to anonymity in this Court. The making of such an order has to be justified. I am not persuaded that an order for the appellants anonymity is justified in this case. It must be recognised, of course, that lifting the order for his anonymity is not entirely without risk. It is rarely possible to predict with complete confidence what risks a failed asylum seeker will face when he is returned to his home country. But the position that the asylum seeker himself adopts will always be an important factor. He is likely to be in the best position to assess the risks and to say whether or not he needs anonymity for his protection. His counsel, Mr Husain, is very experienced in these matters and well able to form a sound judgment as to whether this is necessary or desirable. I would have expected him to inform the court if there were any grounds at all for wishing to preserve the appellants anonymity. Had he done so I would, of course, have given a good deal of weight to his submissions. As it is, in view of the position that he has adopted on the appellants behalf, I am not persuaded that there is anything to prevent his being identified in this case. I would set aside the anonymity order, and name the appellant as Shepherd Masimba Kambadzi. The appellants case The context for the appellants claim of damages for false imprisonment is provided by the provisions for the regulation of entry and stay in the United Kingdom which are set out in Part 1 of the Immigration Act 1971, as amended. His case, put very simply, is that the discretionary power to detain that is vested in the Secretary of State by paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act was not exercised throughout his period of detention in the way it should have been according to the published policy, that for periods when his detention was not reviewed in accordance with the policy it was not authorised and that he is entitled to damages for false imprisonment because his continued detention was unlawful during those periods. A description of the statutory background and the system which, according to his own policy, the Secretary of State had undertaken to operate provides the starting point for an examination of this argument. The facts of this case are best understood in the light of that background. The statutory background Section 4 of the 1971 Act provides that the power to give or refuse leave to enter the United Kingdom shall be exercised by immigration officers and that the power to give leave to remain in the United Kingdom, or to vary any leave, shall be exercised by the Secretary of State. Section 3(5) renders a person who is not a British citizen liable to deportation if the Secretary of State deems his deportation to be conducive to the public good. Section 4 gives effect to Schedule 2, paragraph 1(3) of which provides: In the exercise of their functions under this Act immigration officers shall act in accordance with such instructions (not inconsistent with the immigration rules) as may be given them by the Secretary of State. Section 5(3) of the 1971 Act gives effect to Schedule 3 with respect to the removal from the United Kingdom of persons against whom deportation orders are in force and the detention and control of persons in connection with deportation. Paragraph 2 of Schedule 3 appears under the heading Detention or control pending deportation. It provides in subparagraphs (2) and (3): (2) Where notice has been given to a person in accordance with regulations under section 105 of the Nationality, Immigration and Asylum Act 2002 (notice of decision) of a decision to make a deportation order against him, and he is not a detained person in pursuance of the sentence or order of a court, he may be detained under the authority of the Secretary of State pending the making of the deportation order. (3) Where a deportation order is in force against any person, he may be detained under the authority of the Secretary of State pending his removal or departure from the United Kingdom and if already detained by virtue of sub paragraph (1) or (2) above when the order is made, shall continue to be detained unless he is released on bail or the Secretary of State directs otherwise. [emphasis added] At first sight, the effect of paragraph 2(3) of the Schedule is that, once notice has been given of a decision to make a deportation order against him, the person may lawfully be detained until he is removed or departs. But, as Munby J observed in para 9 of his judgment, the powers conferred by those paragraphs are not unfettered. In R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, 706 Woolf J said: Although the power which is given to the Secretary of State in paragraph 2 to detain individuals is not subject to any express limitation of time, I am quite satisfied that it is subject to limitations. First of all, it can only authorise detention if the individual is being detained pending his removal. It cannot be used for any other purpose. Secondly, as the power is given in order to enable the machinery of deportation to be carried out, I regard the power of detention as being impliedly limited to a period which is reasonably necessary for that purpose. The period which is reasonable will depend upon the circumstances of the particular case. What is more, if there is a situation where it is apparent to the Secretary of State that he is not going to be able to operate the machinery provided in the Act for removing persons who are intended to be deported within a reasonable period, it seems to me that it would be wrong for the Secretary of State to exercise his power of detention. In addition, I would regard it as implicit that the Secretary of State should exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time. This statement was referred to with approval in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97. Lord Browne Wilkinson said of the power to detain pending removal in the Hong Kong Ordinance at p 111A D: Their Lordships have no doubt that in conferring such a power to interfere with individual liberty, the legislature intended that such power could only be exercised reasonably and that accordingly it was implicitly so limited. The principles enunciated by Woolf J in the Hardial Singh case [1984] 1 WLR 704 are statements of the limitations on a statutory power of detention pending removal. In the absence of contrary indications in the statute which confers the power to detain pending removal their Lordships agree with the principles stated by Woolf J. In A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC 68, para 8 Lord Bingham of Cornhill said that Woolf Js guidance in Hardial Singh had never been questioned. In R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888, [2003] INLR 196, para 46, Dyson LJ said that counsel had correctly submitted that the following four principles (the Hardial Singh principles) emerge from it: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) The deportee may only be detained for a period that is reasonable in all the circumstances; (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention; (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. It was common ground in R (Lumba) v Secretary of State for the Home Department [2011] 2 WLR 671 that in this passage the effect of Woolf Js judgment was correctly summarised and it was approved as an accurate statement of the relevant principles: see, eg, paras 171 174. As Lady Hale said at para 199, the detention must be for the statutory purposes of making or implementing a deportation order and for no other purpose. The cases were reviewed by Lord Brown of Eaton under Heywood in R (Khadir) v Secretary of State for the Home Department [2005] UKHL 39, [2006] 1 AC 207, where the power to detain was exercised under Schedule 2 in the context of removing those refused leave to enter. Lord Brown said that, while it went without saying that the longer the delay in effecting someones removal the more difficult it becomes to justify the continued detention meanwhile, that was by no means to say that he does not remain liable to detention: para 31. In para 33 he said: To my mind the Hardial Singh line of cases says everything about the exercise of the power to detain (when it properly can be exercised and when it cannot); nothing about its existence. This case is about the way in which the power to detain can properly be exercised, but it raises issues about the existence of the power too. Does the Secretary of States failure to comply with his published policy for regular reviews to monitor changing circumstances deprive him of his executive power to continue to detain the detainee? Or does his power continue until a review shows that continued detention is no longer appropriate? I think that an examination of the Hardial Singh principles may help to resolve these questions, as they give rise to the need for these reviews. But it is clear that the appellant cannot succeed in his claim by relying solely on those principles. Mr Husain for the appellant submits that, while the Secretary of States decision to detain was lawful at its inception, it could become unlawful with the passage of time. There was no challenge to the judges findings that throughout the period that the appellant was detained the Hardial Singh principles were complied with. In the Court of Appeal Laws LJ said that the judge was entitled to be so satisfied: [2009] 1 WLR 1527, para 36. But Mr Husains case is that the matter does not rest there. He says that the Secretary of States published policy also regulates the existence of the power to continue detention, and that it must be followed in the absence of good reason not to do so. The published policy Before I come to the published policy I should mention that the Secretary of State was given power by the Immigration and Asylum Act 1999 to make rules for the regulation and management of detention centres. Rule 9 of the Detention Centre Rules 2001 (SI 2001/238) provides: (1) Every detained person will be provided, by the Secretary of State, with written reasons for his detention at the time of his initial decision, and thereafter monthly. (2) The Secretary of State shall, within a reasonable time following any request to do so by a detained person, provide that person with an update on the progress of any relevant matter relating to him. Rule 9(3) sets out a list of relevant matters for the purposes of that paragraph. In the Court of Appeal, para 45, Keene LJ said that it was clearly implicit in the rule that the Secretary of State has to reconsider the justification for detention, month by month, in the light of changing circumstances. At para 46 he said: The need for such regular reviews stems from the necessity for the Secretary of State to monitor changing circumstances in a given case lest his power to detain, on the principles set out in Ex p Hardial Singh [1984] 1 WLR 704, no longer exists. Even if the power still exists, he has a discretion to exercise which he must also keep under review. The importance of the detainee receiving regular statements of the reason why he is still detained is self evident: he needs to be in a position to know whether he can properly challenge the Secretary of States decision in the courts by way of an application for habeas corpus or judicial review or whether he can apply for bail on a meaningful basis. So the requirements imposed by rule 9 cannot be treated lightly, especially when one is dealing with administrative detention which deprives a person of his liberty without a court order. I agree with these observations, but I would prefer to apply them to the system of review that is set out in the policy rather than to the system required by rule 9(1). This is because it seems to me that the 2001 Rules are concerned with the regulation and management of detention centres, not with the way the discretion to detain is exercised. This is what the explanatory note says, and I think that Keene LJ was right to conclude in para 47 that rule 9(1) is not concerned with limiting the Secretary of States power to detain. In any event the appellant was detained in prison conditions to which the Rules do not apply for the first 14 months of the period of his detention. It was not until April 2007 that he was moved to a detention centre and the Rules applied to his case. I come then to the Secretary of States policy. It is to be found in a document issued by the Home Office called the Operations Enforcement Manual. Various versions of this manual have been existence since at least 2001. Mr Tam informed the Court that it was safe to proceed on the basis that the version used in these proceedings, which was downloaded in 2007, was the one that was in circulation while the appellant was being held in detention. Chapter 38 of the manual is entitled Detention and Temporary Release. It is here that the published policies regulating the exercise of the Secretary of States discretion, in accordance with the Hardial Singh principles, are set out. Paragraph 38.1, headed Policy refers to the 1998 White Paper Fairer, Faster and Firmer: a Modern Approach to Immigration and Asylum (1998) (Cm 4018) in which it was said there was a presumption in favour of temporary admission or release and that detention would most usually be appropriate to effect removal, initially to establish a persons identity or basis of claim or where there is reason to believe that the person will fail to comply with any conditions attached to the grant of temporary admission or release. It refers also to the 2002 White Paper Secure Borders, Safe Haven: Integration with Diversity in Modern Britain (2002) (Cm 5687) in which the principles stated in the 1998 White Paper were reiterated. These criteria are said to represent the Governments stated policy on the use of detention. There then follows this important acknowledgement of the significance of the policy in public law: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy. [emphasis added] Under the sub heading Use of Detention these words appear: In all cases detention must be used sparingly, and for the shortest period necessary. Paragraph 38.3 is headed Factors influencing a decision to detain (excluding pre decision fast track cases). It contains the following instructions: 1. There is a presumption in favour of temporary admission or temporary release. 2. There must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 3. All reasonable alternatives to detention must be considered before detention is authorised. 4. Once detention has been authorised it must be kept under close review to ensure that it continues to be justified. 5. Each case must be considered on its individual merits. Various factors which must be taken into account when considering the need for initial or continued detention are then set out. They include, among other things, the likelihood of the person being removed and, if so, after what timescale; whether there is any history of previous absconding or of failure to comply with conditions of temporary release or bail; and whether there is a previous history of complying with the requirements of immigration control. Paragraph 38.5 is headed Levels of authority for detention. It states: Although the power in law to detain an illegal entrant rests with the [immigration officer], or the relevant non warranted immigration caseworker under the authority of the Secretary of State, in practice, an officer of at least [Chief Immigration Officer] rank, or a senior caseworker, must give authority. Detention must then be reviewed at regular intervals (see 38.8). Paragraph 38.5.2 states that the decision as to whether a person subject to deportation action should be detained under Immigration Act powers is taken by a senior caseworker in the Criminal Casework Directorate. Paragraph 38.6 is headed Detention Forms. The opening sentence states: The Government stated in the 1998 White Paper that written reasons for detention should be given in all cases at the time of detention and thereafter at monthly intervals. [emphasis in the original] The authority to detain is known as Form IS91. Paragraph 38.6.1, which is headed Form IS91RA Risk Assessment, states: Once it has been identified that the person is one who should be detained, consideration should be given as to what, if any, level of risk that person may present whilst in detention. [Immigration officers] should undertake the checks detailed on form IS91RA part A Risk Factors (in advance, as far as possible, in a planned operation/visit when it is anticipated detention will be required. Paragraph 38.6.2, which is headed Form IS9I Authority to Detain, states that once the Detainee Escorting and Population Management Unit has decided on the location for detention they will forward a form to the detaining office detailing the detention location and the assessment of risk, which is attached to form IS91 and served on the detaining agent. If there is an alteration in risk factors a new form IS91 is issued. Paragraph 38.8 is headed Detention Reviews. It is on its provisions that the appellants argument that from time to time during the period of his detention he was detained unlawfully depends. It identifies the grade of officer by whom initial detention must be authorised. It then states: Continued detention in all cases of persons in sole detention under Immigration Act powers must be subject to administrative review at regular intervals. At each review robust and formally documented consideration should be given to the removability of the detainee. A formal and documented review of detention should be made after 24 hours by an Inspector and thereafter, as directed, at the 7, 14, 21 and 28 day points. At the 14 day stage, or if circumstances change between weekly reviews an Inspector must conduct the review. In [the Criminal Casework Directorate] an [higher executive officer] reviews detention up to 2 months. [A senior executive officer/Her Majestys inspector] reviews detention up to 4 months, the Assistant Director/Grade 7 up to 8 months, the Deputy Director up to 11 months and the Director up to 12 months and over. [emphasis in the original] The facts The appellant arrived in this country on 30 October 2002 as a visitor with six months leave to enter. On 9 May 2003 he applied for leave to remain for two years as a student. He was granted leave for one year until 30 April 2004. After that date he remained here without leave. On 9 December 2005 he was convicted on two counts of common assault and one count of sexual assault on a female. He was sentenced to 12 months imprisonment and ordered to be registered as a sex offender for five years. The judge did not recommend deportation. But on 7 March 2006, the day before he was due to be released from prison after serving six months of his sentence including time spent on remand, the Secretary of State decided to make a deportation order against him. He was detained under paragraph 2(2) of Schedule 3 to the 1971 Act and remained in custody at HMP Woodhill. On 24 March 2006 the appellant claimed asylum. On 11 April 2006 he asked the Secretary of State to move him from the prison to a detention centre, but his request was ignored. On 18 April 2006 the Citizens Advice Bureau wrote two letters to the Secretary of State on his behalf. In one it requested his urgent transfer to a detention centre. In the other it appealed against the notice of decision to make a deportation order. On 20 April 2006 and again on 3 May 2006 the Citizens Advice Bureau wrote to the Secretary of State on the appellants behalf contending that his continued detention was unlawful. Munby J said in para 19(xvi) that these letters were clearly relying upon the Hardial Singh principles, but they went unanswered. On 17 May 2006 the appellant, who had now been moved to HMP Lincoln, applied for bail. His application was refused on 19 May 2006. He applied for bail again on 15 September 2006. On 19 September 2006 the Secretary of State refused his application for asylum. Two days later, on 21 September 2006, the Asylum and Immigration Appeals Tribunal heard his appeals against the decision to deport, the refusal of asylum and a refusal to grant him relief on human rights grounds. The tribunal refused bail, having noted that he had previously committed an offence under the Bail Act 1976. On 4 October 2006 the Tribunal issued its decision dismissing all three appeals. It stated that the appellant, believing that he had a poor case in resisting deportation, had sought to bolster his prospects of success by inventing a false claim and that the Secretary of State was right to conclude that his deportation was necessary as the offences which he had committed were serious and he had been assessed as presenting a medium risk of sexual or violent offending upon his release. On 4 May 2007 he was moved from HMP Lincoln to Campsfield Immigration Removal Centre. On 6 July 2007, following a hearing for the reconsideration of his appeals that had been ordered in January 2007, the tribunal refused his appeals following reconsideration. On 24 August 2007 a deportation order was made and served on the appellant. As the appellant is a national of Zimbabwe, it is to Zimbabwe that the Secretary of State proposes to deport him. But two years previously on 4 August 2005 Collins J ordered by consent that removal of 30 Zimbabweans be suspended pending resolution of the issue in a test case, and the enforced return of failed Zimbabwean asylum seekers was suspended by the Secretary of State. The position as at the date of the hearing of this appeal was that no enforced returns of Zimbabwean failed asylum seekers had taken place since that date. By a letter dated 8 March 2006 the appellant was informed that he was to be detained and that his detention would be reviewed on a regular basis. If the reviews had been carried out in accordance with the policy set out in paragraph 38.8 of the manual they would have occurred on 10 March 2006 (after 24 hours), 16 March 2006 (7 days), 23 March 2006 (14 days), 30 March 2006 (21 days) and 6 April 2006 (28 days). They would have been carried out thereafter at monthly intervals. As to the monthly reviews, the paragraph 38.8 provides that the first two monthly reviews must be carried out by a Higher Executive Officer, the next two by a Senior Executive Officer or one of Her Majestys Inspectors, the next four by an Assistant Director or Grade 7 civil servant, the next three by a Deputy Director and, in the case of the monthly reviews in the second year of detention, by a Director. By the date of the hearing before Munby J the appellant had been entitled to 22 monthly reviews of the lawfulness of his detention in addition to the initial five reviews in the first month. In the event he had had only 10 reviews up to the date of the hearing. Of these, only six were conducted by officials of the required seniority. Of these, two were disavowed by the Secretary of State as flawed by material errors of fact. The details of the Secretary of States failure to carry out reviews at the required frequency and by the appropriate persons are set in the judgment of Munby J at paras 43 51 and 124 127 and in paras 11 13 of the judgment of the Court of Appeal. The judge described the picture that emerged from his analysis of the Secretary of States file as deeply disturbing and profoundly shocking. The Secretary of State has acknowledged that reviews should have been carried out. He has not sought to justify or excuse in any way their absence in the appellants case. He also accepts that these failures cannot be extenuated by the appellants own bad character or his previous conduct. It is now known, following disclosures that were made prior to the hearing of R (WL) Congo v Secretary of State for the Home Department [2010] EWCA Civ 111, [2010] 1 WLR 2168 by the Court of Appeal, that from April 2006 to September 2008 the Home Office applied an unpublished detention policy to all foreign national prisoners following the completion of their prison sentences pending their deportation. This followed the revelation on 25 April 2006 that during the past seven years over 1,000 such prisoners had been released from prison on completion of their sentences without being considered for deportation or deported. Illegal migrants and paedophiles, a toxic mix. The tabloids will go bananas. The words of a contemporary diarist, Chris Mullin, Decline and Fall (2010), p 94, capture the atmosphere of disaster that was engendered among ministers by this announcement. A few days later Charles Clarke was removed from his post and was replaced on 4 May 2006 as Home Secretary by Dr John Reid. A practice of blanket detention was then instituted with a ruthless determination that precluded consideration of the merits of any individual case and was wholly at odds with the presumption in the published policy in favour of temporary admission or temporary release. It remained in place until November 2007 when it was replaced by another unpublished policy which permitted release only in exceptional circumstances. It was not until 9 September 2008 that a revised detention policy was published. This course of events may explain the Secretary of States failure to carry out reviews at the required frequency and by the appropriate persons in the appellants case. But his case has been conducted throughout so far on the basis that the policy that was being applied to him was the published policy. The new issues that he has raised in light of these disclosures are presently stayed for determination by the High Court: see Laws LJ [2009] 1 WLR 1527, paras 42 44. The issues Munby J held that the appellant was unlawfully detained for the periods which he specified by reason of the Secretary of States failures to carry out the reviews required by rule 9(1) and the manual. The basis for that finding is to be found in the following passage in his judgment [2008] EWHC 98 (Admin), para 68: Integral to the scheme endorsed by Parliament in its approval of rule 9(1) of the Detention Centre Rules 2001, and integral to the policy laid down by the Secretary of State in paragraph 38.8 of the Operations Enforcement Manual, is the principle that someone is not to be detained beyond a certain period without there being a review undertaken at regular intervals and moreover, as required by the Secretary of States policy, a review undertaken at increasing high levels of seniority within the Home Office as the period of detention grows. Those reviews are fundamental to the propriety of the continuing detention, they are required in order to ensure that the continuing detention can still be justified in the light of current, and perhaps, changed circumstances, and they are, in my judgment, a necessary prerequisite to the continuing legality of the detention. In para 122 he said that, to the extent that the appellants detention had been unlawful as a matter of domestic law it had also, by parity of reasoning, been unlawful by virtue of section 6 of the Human Rights Act 1998, and that there was nothing in the circumstances of his case to give him a remedy under section 6 where there would not be a remedy under domestic law. So in practical terms the claim under article 5 of the Convention added nothing. In the Court of Appeal Laws LJ said that the issue was one of statutory construction: [2009] 1 WLR 1527, para 21. Ex p Hardial Singh showed that paragraph 2(2) of Schedule 3 to the 1971 Act was subject to implied limitations. The question, as he saw it, was whether a further limitation was to be found such that on a proper construction of paragraph 2(2) the power was subject to compliance with the rule and the manual: para 23. Summarising his conclusions, with which the other members of the court agreed, he said that compliance with the rules and the manual as such was not a condition precedent to a lawful decision pursuant to paragraph 2(2): para 25. The statute did not make it so, nor did the common law or the Convention. The Hardial Singh principles had to be complied with, but this was subject to control by the courts, principally by way of judicial review. In that event the particular context would be the vindication of those principles, but in this case it was plain that the appellant was held in compliance with them throughout the period of his detention. Mr Husain accepted that the Hardial Singh principles had throughout been complied with. On the other hand there had been repeated failures to comply with the system of review set out in the manual. Paragraph 38.8 of the manual states that continued detention in all cases under Immigration Act powers must be subject to administrative review at regular intervals. These reviews were essential to the continued legality of the exercise by the Secretary of State of his discretion to detain. He accepted that not all public law errors or policy defaults will render detention unlawful. The question will always be whether the error is sufficiently linked to the decision to detain or to continue detention. In this case the reviews required by the policy must be seen as the authority on which continued legality of the detention rests. He accepted that if his case were to succeed at common law his case under article 5 would not add anything. But in case it were necessary to address this argument he submitted that the appellant was entitled to the implied protections prescribed by article 5(1)(f). There had been a clear breach of national procedural rules because the Secretary of State had failed to comply with the rules and with the published policy, which he was required to follow unless there were good reasons not to do so. This was irrespective of whether the requirements that had been breached were conditions precedent to the exercise of the power to detain. As to the effect of the decision in Lumba, Mr Husain submitted that it was now clear that it was not a defence for the Secretary of State to show that the detention complied with the Hardial Singh principles and the requirements of the statute. Nor was it a defence for him to show that had the public law error not been committed the detainee would have been detained in any event. The serial failure to conduct the proper detention reviews was a material public law error, as it was essential to the legality of a temporarily unlimited and otherwise unchecked power to continue detention. The initial detention authority by the Secretary of States executive order was to be contrasted with orders to detain by a court. The reviews were an important safeguard. The failure to conduct them amounted, on the facts of this case, to an abuse of the power to detain. For the Secretary of State Mr Tam accepted that the Hardial Singh principles imposed implied limits on the exercise of the powers of detention that were set out in the statute. But he submitted that there was no provision or rule that limited the Secretary of States authority to detain in any other way. Things had not been done, probably in violation of his duty in public law, for which legal remedies might have been available. But the claim in this case was a very specific one. The question was not whether there had been a breach of the law. The appellant was seeking damages for false imprisonment. There was no basis for such a claim, as the detention was at all times within the original authority to detain under the powers that were to be found in the statute. That would have been plain from the documents that were available in his case had his continued detention had been challenged by judicial review. In the light of the judgments in Lumba, the central question for the court was whether each relevant breach of the procedural requirement to review detention was material in public law terms, that is to say whether it bore on and was relevant to the decision to detain. There was a difference between a requirement that was procedural only and a failure to apply a substantive rule which was capable of affecting the decision to detain or not to detain. A pure omission to review detention at the times specified by the policy was not material, at least in a case such as this where, had the review been carried out, the application of the substantive rules would have resulted in a decision to continue detention. But he accepted that if that submission was rejected, an omission to make a new decision by way of a detention review which was material in the Lumba sense must inevitably have the effect that the next period of detention was not authorised and the tort of false imprisonment was made out. The common law remedy The issue as to whether the appellant is entitled to damages, as focussed by these arguments, is a narrow one. It is common ground that the appellant was lawfully detained at the outset, as his detention was with a view to the making of a deportation order. There was a serious breakdown thereafter in the system of reviews mandated by the manual. But it is also common ground, as the judge found, that the Hardial Singh principles were complied with throughout the entire period. As Mr Tam points out, the continued detention could at all times have been justified by the Secretary of State had he been faced with an application for judicial review. Until 24 August 2007, when the deportation order was made and served on the appellant, the appellant was being detained under paragraph 2(2) pending the making of a deportation order. From that date onwards he was being detained under paragraph 2(3) because he had not been released on bail and the Secretary of State had not directed otherwise. On the other hand Mr Tam accepts that the breakdown in the system was a breach of a duty owed by the Secretary of State to the appellant in public law. The appellant could have obtained a mandatory order at any time requiring the reviews to be carried out if he had asked for this. The focus of attention therefore is on the authority to detain. Is the review essential to the legality of the continued detention? Or is it a sufficient answer to the claim for damages for the Secretary of State to say that, unless and until he directed otherwise, the authority to detain is there throughout in terms of the statute? I have not found this an easy question to answer. I do not accept the Court of Appeals view that the question is one of statutory construction. We are dealing in this case with what the Secretary of State agrees are public law duties which are not set out in the statute. Of course it is for the courts, not the Secretary of State, to say what the effect of the statements in the manual actually is. But there is a substantial body of authority to the effect that under domestic public law the Secretary of State is generally obliged to follow his published detention policy. In R (Saadi) v Secretary of State for the Home Department [2001] EWCA Civ 1512, [2002] 1 WLR 356, para 7, Lord Phillips of Worth Matravers MR, delivering the judgment of the court, said that lawful exercise of statutory powers can be restricted, according to established principles of public law, by government policy and the legitimate expectation to which such policy gives rise. In Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139, para 54 the Master of the Rolls, again delivering the judgment of the court, said: Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of States published policy, which, under principles of public law, he is obliged to follow. In D v Home Office (Bail for Immigration Detainees intervening) [2005] EWCA Civ 38, [2006] 1 WLR 1003, para 132 Brooke LJ said that what the law requires is that the policies for administrative detention are published and that immigration officers do not stray outside the four corners of those policies when taking decisions in individual cases. Wade and Forsyth, Administrative Law 10th ed, (2009), pp 315 316 states that the principle that policy must be consistently applied is not in doubt and that the courts now expect government departments to honour their statements of policy. Policy is not law, so it may be departed from if a good reason can be shown. But it has not been suggested that there was a good reason for the failure of officials of the required seniority to review the detention in this case and to do so in accordance with the prescribed timetable. Mr Husain submitted that the effect of the statements in the manual was not just to create a legitimate expectation that the reviews would be carried out. He said that, as the discretion to detain under the statute had to be exercised reasonably according to the Hardial Singh principles, the authority for continued detention was dependent on decisions taken each time it was reviewed. Moreover an unlawful detention was not rendered lawful because there were circumstances that might have made it lawful. He sought support for that proposition in Clarke LJs observation in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 666, that the detention in that case was unlawful because it was not reviewed until some event occurred to make it lawful. But that was a case where the plaintiff was detained under the Police and Criminal Evidence Act 1984, section 34(1) of which provided that a person arrested for an offence shall not be kept in detention except in accordance with the provisions of Part IV of the Act. Section 40, which was in Part IV, required reviews of the detention of person police custody at stated intervals. It was clear, as Clarke LJ said in the passage at p 666 that Mr Husain referred to, that the plaintiff was not being detained in accordance with the relevant provisions of the Act. As Mr Husain pointed out, the Secretary of State accepts that where the authorising statute provides that a particular procedural step is a precondition to the legality of the detention a failure to carry out the required step means that the detention is unlawful and entitles the detainee to damages for false imprisonment. That is what was decided in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662. But that case, as Mr Tam put it, was all about the statute. The situation in this case is quite different, as there is no mention of the need for reviews in relevant paragraphs in the authorising statute. I agree with both Laws LJ in the Court of Appeal, para 25, and Lord Brown (see para 100, below), that Roberts provides little, if any, assistance on the effect of the Secretary of States failure to comply with his published policy. On the other hand the appellants argument that where the published policy is departed from the detention is unlawful finds some support in Nadarajah v Secretary of State for the Home Department [2004] INLR 139. Two appeals were before the court in that case. The appellants had both been detained on the ground that their removal from the United Kingdom was imminent. The Secretary of States published policy was not to treat removal as imminent once proceedings which challenged the right to remove had been initiated. It was also the policy of the immigration service when considering the imminence of removal to disregard information from those acting for asylum seekers that proceedings were about to be initiated. But this policy had not been made public and it was held that the Secretary of State could not rely on it. In para 54 the Master of the Rolls, Lord Phillips of Worth Matravers, said that he was obliged to follow his published policy. Asking itself the question whether the appellants detention had been lawful, the court held that it was not. In para 68, referring to Nadarajahs case, Lord Phillips said: The only basis upon which the Immigration Service could treat his removal as imminent was by applying that aspect of the Secretary of States policy which had not been made public, namely that no regard would be paid to an intimation that judicial review proceedings would be instituted. The Secretary of State cannot rely upon this aspect of his policy as rendering lawful that which was, on the face of it, at odds with his policy, as made public. In other words, it was unlawful for him to depart from his published policy unless there were good reasons for doing so. In para 72, referring to the case of the other appellant, he said that his detention was unlawful for the same reason as Nadarajahs detention was unlawful. In consequence of that decision he was entitled to damages: see para 15. In Mohammed Holgate v Duke [1984] AC 437, 443, Lord Diplock said that the Wednesbury principles are applicable not only in proceedings for judicial review but also for the purpose of founding a cause of action at common law for trespass by false imprisonment. It may be that not every public law error will justify resort to the common law remedy in every case. But I do not think that it is necessary to show that there was bad faith or that the discretion was exercised for an improper purpose in the present context. Where there is an executive discretion to detain someone without limit of time, the right to liberty demands that the cause of action should be available if the discretion has not been lawfully exercised. In R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 Lord Bridge of Harwich said that the tort of false imprisonment has two ingredients: the fact of imprisonment and the absence of lawful authority to justify it. The requirements of the 1971 Act and Hardial Singh principles are not the only applicable law with which the Secretary of State must comply. Nadarajahs case shows that lawful authority for an executive power of detention may also be absent when there is a departure from the executives published policy. As Lord Brown points out, the published policy in Nadarajahs case entitled the detainee to release because it narrowed the grounds on which the power of detention was exercisable: para 107, below. In this case the policy was different because it was concerned not with the grounds for detention but with procedure. All it did was to provide that the detention would be reviewed by designated officers at regular intervals. Of course I agree with him that the policies are different. But I do not think that this difference means that Nadarajah offers no assistance in this case. On the contrary, it seems to me to indicate that a failure by the executive to adhere to its published policy without good reason can amount to an abuse of power which renders the detention itself unlawful. I use this expression to describe a breach of public law which bears directly on the discretionary power that the executive is purporting to exercise. The importance of the principle that the executive must act within the law was emphasised by Lord Bingham in his seminal Sir David Williams lecture, The Rule of Law [2007] CLJ 67, 72, when he said: The broader and more loosely textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law. This sub rule requires that a discretion should ordinarily be narrowly defined and its exercise capable of reasoned justification. That is a proposition which can be applied to this case. The published policy narrowed the power of executive detention by requiring that it be reviewed regularly. This was necessary to meet the objection that, unless it was implemented in accordance with a published policy, the power of executive detention was being applied in a manner that was arbitrary. So it was an abuse of the power for the detainee to be detained without his detention being reviewed at regular intervals. Applying the test proposed by Lord Dyson in Lumba, it was an error which bore on and was relevant to the decision to detain throughout the period when the reviews should have been carried out: [2011] 2 WLR 671, para 68. The authorities relied on by the Secretary of State Mr Tam referred to a series of cases where detention was held not to be unlawful despite errors of public law. In R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58 the appellant Hague had been segregated under a procedure which was not lawful which it was claimed amounted to false imprisonment, and another prisoner named Weldon claimed that he had been falsely imprisoned and battered by certain prison officers. Those claims were rejected, in short because the sentence of imprisonment provided lawful authority for the prisoners detention, that this could not be read as subject to any implied term with respect to the prison rules and that an otherwise lawful detention was not rendered unlawful by the conditions of detention. Mr Tam said that it was authority for the view that a public law error made in relation to a persons detention may entitle the person to seek judicial review but does not necessarily give rise to a remedy in damages. I would not quarrel with that proposition, but it begs the question whether the present case is one where a remedy in damages is available. Cullen v Chief Constable of the Royal Ulster Constabulary [2003] UKHL 39, [2003] 1 WLR 1763 was a case about the right of access to a solicitor. The appellant was arrested under section 14(1)(b) of the Prevention of Terrorism (Temporary Provisions) Act 1982. He asked to see a solicitor but his right to do so was deferred while he was in police custody. In contravention of the relevant statute the deferral was made before the appellant requested access and he was not given the reasons for delaying access. He claimed damages for false imprisonment. Lord Hutton said in para 48 that he saw no substance in this submission as he had been lawfully arrested and after his arrest was lawfully detained under the provisions of the statute. The premature authorisation and the breach of the requirement for reasons to be given did not render the detention unlawful. Lord Millett said in para 61 that compliance was not a condition of lawful detention. This decision indicates that the critical question is likely to be whether breaches of this kind undermine the lawful authority for the detention. On the view that was taken of the statute that applied in that case, they did not. The facts of this case, which concerns the Secretary of States discretion to maintain detention in accordance with his published policy, are quite different. In R (Saadi) v Secretary of State for the Home Department [2002] UKHL 41, [2002] 1 WLR 3131, which was concerned with the lawfulness of detention under paragraphs 2(1) and 16(1) of Schedule 2 to the 1971 Act, Lord Slynn of Hadley said at para 48 that the Secretary of States giving of no or wrong reasons did not affect the legality of the detention. Mr Tam said that no hint was given in that case that this failure gave rise to a problem as to its legality. But Collins J said that it was not argued in that case that the muddle about reasons rendered the decision to detain unlawful: [2001] EWCA Civ 1512, [2002] 1 WLR 356, para 16. Nor was the effect of a failure to review in issue. In R (Munjaz) v Mersey Care NHS Trust [2003] EWCA Civ 1036, [2004] QB 395 two psychiatric patients challenged the lawfulness of the policy on seclusion that was applied in their respective hospitals. Referring to what was decided in R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, Hale LJ said that a person who had been deprived of his liberty in pursuance of a lawful power to detain cannot through the medium of a tort of false imprisonment complain about the conditions in which he is detained, at least by those who are lawfully detaining him: para 49. There had been a breach of the statutory code of practice, but this did not amount to false imprisonment: para 82. Mr Tam said that these observations supported his argument. But he accepts that Hague, Cullen and Munjaz were not concerned with the question whether the person concerned should be detained at all, but only with the conditions of detention (Hague and Munjaz) or the ancillary matter of legal advice while in detention (Cullen). It should also be noted that in Munjaz, para 77, Hale LJ said that if an individual decision has been taken unlawfully in public law terms and results in actions which are tortious if taken without lawful excuse, then tortious remedies will be available. The context is different, of course. And the claim for a remedy under the tort of false imprisonment was rejected. But her observation is entirely consistent with what was said in Nadarajah v Secretary of State for the Home Department: see para 39, above. The question as to the lawfulness of continued detention was directly in issue in R (Walker) v Secretary of State for Justice (Parole Board intervening) [2009] UKHL 22, [2010] 1 AC 553. That case arose out of the Secretary of States failure to provide the systems and resources that prisoners serving indeterminate sentences for public protection needed to demonstrate to the Parole Board by the time of the expiry of their tariff periods that it was not longer necessary for the protection of the public for them to remain in detention. There was a breach of the Secretary of States public law duty to provide these facilities. But, as I noted in para 5, counsel for the prisoners accepted that they were unable to challenge the legality of the warrant which authorised their continued detention. That provides the context for the passage in the speech of Lord Brown of Eaton under Heywood in paras 36 and 37 on which Mr Tam relies, where he said: 36. It is one thing to say as indeed is now undisputed that the Secretary of State was in breach (even systemic breach) of his public law duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, course enabling them to reduce the risk they pose, duties inherent in the legislation (the legislations underlying premise as Laws LJ described it [2008] 1 All ER 138, paras 24, 50); quite another to say that such breach of duty results in detention being unlawful. I respectfully agree with the Court of Appeal that it does not. 37. The remedy for such breach of public law duty indeed the only remedy, inadequate in certain respects it may be is declaratory relief condemning the Secretary of States failures and indicating that he is obliged to do more Past failures do not sound in damages In my own speech in Walker, para 6, I said that in terms of the statute the detention was lawful until the Parole board gave a direction for the prisoners release. The default position was that until the direction was given the protection of the public required that the prisoner should be confined. I do not think that Lord Browns observations can be applied to the different statutory regime that we are concerned with it this case. I agree with him that Walker is no more helpful to the respondents case than Roberts is to the appellant: para 104, below. For the same reason I do not think that the decision in Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WLR 728, where the Court of Appeal applied the same approach where the Parole Board had failed to conduct a timely review and the appellant remained in detention as authorised by the statute, is of any assistance in this case. Discussion I cannot find in these authorities anything that requires us to hold that the claim for damages for false imprisonment is untenable or which points conclusively in the other direction. I would start therefore with principle that must lie at the heart of any discussion as to whether a persons detention can be justified. The liberty of the subject can be interfered with only upon grounds that the court will uphold as lawful: R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19, 35; see also Tam Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97, per Lord Browne Wilkinson at p 111B. In Ex p Evans (No 2), p 42, Lord Hobhouse of Woodborough said: Imprisonment involves the infringement of a legally protected right and therefore must be justified. If it cannot be lawfully justified, it is no defence for the defendant to say that he believed that he could justify it. We are dealing in this case with the power of executive detention under the 1971 Act. It depends on the exercise of a discretion, not on a warrant for detention issued by any court. That is why the manner of its exercise was so carefully qualified by Woolf J in Hardial Singh. The power to detain must be exercised reasonably and in a manner which is not arbitrary. If it is not, the detention cannot be lawfully justified. The initial decision to detain will be held to be lawful if it is made under the authority of the Secretary of State pending the making of a deportation order. But it cannot be asserted, in the light of what was said in Hardial Singh, that the initial decision renders continued and indefinite detention lawful until the deportation order is made whatever the circumstances. Nor can it be said that it has that effect after the deportation order is made pending the persons removal from the United Kingdom when the person is being detained under paragraph 2(3). The authority that stems from the initial decision is not unqualified. The question then is what is to be made of the Secretary of States public law duty to give effect to his published policy. In my opinion the answer to that question will always be fact sensitive. In this case we are dealing with an executive act which interferes with personal liberty. So one must ask whether the published policy is sufficiently closely related to the authority to detain to provide a further qualification of the discretion that he has under the statute. Unlike the 2001 Rules, chapter 38 of the manual is concerned with the lawfulness of the detention. That is made clear in the opening paragraphs: see para 18, above. It has been designed to give practical effect to the Hardial Singh principles to meet the requirement that, to be lawful, the measures taken must be transparent and not arbitrary. It contains a set of instructions with which officials are expected to comply: see Schedule 2 to the 1971 Act, para 1(3). As I see it, the principles and the instructions in the manual go hand in hand. As Munby J said in para 68, the reviews are fundamental to the propriety of continued detention. The instructions are the means by which, in accordance with his published policy, the Secretary of State gives effect to the principles. They are not only commendable; they are necessary. The relationship of the review to the exercise of the authority is very close. They too go hand in hand. If the system works as it should, authorisation for continued detention is to be found in the decision taken at each review. References to the authority to detain in the forms that were issued in the appellants case illustrate this point. Form IS 151F, which is headed Monthly Progress Report to Detainees, concludes at the top of page 3 of 3 with the words Authority to maintain detention given, on which the officers comments are invited and beneath which his decision is recorded. The discretion to continue detention must, of course, be exercised in accordance with the principles. But it must also be exercised in accordance with the policy stated in the manual. The timetable which paragraph 38.8 sets out is an essential part of the process. These are limitations on the way the discretion may be exercised. Following the guidance that Nadarajah v Secretary of State for the Home Department [2004] INLR 139 provides (see paras 39 and 40, above), I would hold that if they are breached without good reason continued detention is unlawful. In principle it must follow that tortious remedies will be available, including the remedy of damages. There remains however the question of causation: what if the Secretary of State is able to show that, despite the failure to give effect to the policy, continued detention was nevertheless compatible with the Hardial Singh principles? Is it an answer for the Secretary of State to say that, as he could have authorised continued detention had lawful procedures been followed, no tort was committed? Is there room in such a situation for an award of damages? These questions are brought into sharp focus in this case. Mr Husain accepts that the Secretary of State would have been able to justify the need for the appellants detention under the Hardial Singh principles at all times had he been required to do so. But in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 667, Clarke LJ said that it was nothing to the point to say that the detention would have been lawful if a review had been carried out or that there were grounds which would have justified detention. The statutory requirement with which he was dealing in that case existed in order to ensure that members of the public were not detained except in certain defined circumstances. In all other circumstances, he said, every member of the public is entitled to his liberty. I would apply that reasoning to this case. It is true that the reviews were not required by the statute. But there was a public law duty to give effect to the provisions about reviews in the manual. If the reviews were not carried out unless for good reason, which is not suggested in this case continued detention was not authorised by the initial decision to detain. It is no defence for the Secretary of State to say that there were good grounds for detaining the appellant anyway. Unless the authority to detain was renewed under the powers conferred by the statute he was entitled to his liberty. The decision in Lumba leads inevitably to this conclusion. As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to more than a purely nominal award. The public law duty exists for the protection of everyone, from the most undeserving to the most vulnerable. The detention of children, those suffering from physical or mental illness and those who have been traumatised by torture are perhaps the most obvious examples. Paragraph 38.8 states that children are reviewed on a regular basis to ensure that the decision to detain is based on the current circumstances of the case and that detention remains appropriate. This sentence makes explicit in the case of children what must be taken to be the purpose of the reviews in all cases. The difference is that the system provides for more frequent reviews in the case of children. In any event, false imprisonment is a trespass against the person which is actionable without proof of special damage: Murray v Ministry of Defence [1988] 1 WLR 692, 701 702, per Lord Griffiths; Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, 666 669, per Lord Clarke. There may well be issues as to quantum in cases of that kind. As Smith LJ said in Iqbal v Prison Officers Association [2009] EWCA Civ 1312, [2010] QB 732, para 83, an award of damages for false imprisonment is based on normal compensatory principles: see also Langley v Liverpool City Council [2005] EWCA Civ 1173, [2006] 1 WLR 375, para 70. It may be that the conclusion in this case will be that an award of nominal damages is all that is needed to recognise that the appellants fundamental rights have been breached. But that does not affect the issue of principle. I would hold therefore that the appellant is entitled to the remedy he seeks at common law. There will, of course, have to be an inquiry as to the quantum of damages if the amount is not agreed. Article 5 The appellants alternative claim is that he has an enforceable right to compensation under article 5(5) of the Convention. He maintains that his detention did not satisfy the requirements of article 5(1)(f). It was not lawful, and it was not in accordance with a procedure prescribed by law. He relies on what the Grand Chamber said in Saadi v United Kingdom (2008) 47 EHRR 17, para 74, and in A v United Kingdom (2009) 49 EHRR 29; Application No 3455/05, 19 February 2009, para 164 as to what was needed to avoid the detention being branded as arbitrary. The protections referred to in these passages are, as Mr Husain points out, redolent of the Hardial Singh principles. It is agreed on both sides that the article 5 claim adds nothing to the claim at common law if that claim succeeds: see R (I) v Secretary of State for the Home Department [2003] INLR 196, per Simon Brown LJ at para 8; R (Munjaz) v Mersey Care NHS Trust [2004] 2 QB 395, per Hale LJ at para 70. Indeed there are reasons for thinking that the Hardial Singh principles are in some respects more favourable to detainees than Strasbourg requires, as Lord Brown indicates: see para 94, below; Chahal v United Kingdom (1996) 23 EHRR 413, para 112; Saadi v United Kingdom, para 72. So, as I would hold that the appellant succeeds on his common law claim, I propose to say no more about this alternative, except to note that article 5(5) gives a right to compensation where there has been a contravention of any of the provisions of the article. This would have provided the appellant with a remedy if, although there was a breach of the public law duty to conduct reviews, he was not entitled to claim damages at common law for false imprisonment. As it is, for the reasons I have given, I consider that he is entitled to that remedy and at least to nominal damages. Conclusion For these reasons, and for those given by Lady Hale and Lord Kerr with which I am in full agreement, I would allow the appeal. I would restore the declaration that was made by Munby J that the appellants detention by the Secretary of State was unlawful for the periods stated by him, except for a period of one month beginning on 6 December 2007 when the only defect in the decision to continue detention was that the review was carried out by an official of the wrong grade: see R (Lumba v Secretary of State for the Home Department [2011] 2 WLR 671, para 68 per Lord Dyson. I would also restore his orders as to the assessment, if the parties are not agreed, of the quantum of damages. LADY HALE Mr Shepherd Kambadzi may not be a very nice person. He is certainly not a very good person. He has overstayed his welcome in this country for many years. He has abused our hospitality by committing assaults and sexual assault. It is not surprising that the Home Secretary wishes to deport him. But in R (Roberts) v Parole Board [2005] UKHL 45, [2005] 2 AC 738, para 84, Lord Steyn quoted the well known remark of Justice Frankfurter in United States v Rabinowitz (1950) 339 US 56, p 69, that It is a fair summary of history to say that the safeguards of liberty have frequently been forged in controversies involving not very nice people. Lord Steyn continued: Even the most wicked of men are entitled to justice at the hands of the state. And I doubt whether Mr Kambadzi is the most wicked of men. He had come to the end of the time he was due to serve as a result of his crimes. He may even have been expecting to be released from prison on 8 March 2006. If so, it must have come as a cruel shock when he was kept in prison (indeed for many months in the same prison where he had been serving his sentence), because the Home Secretary had decided to make a deportation order against him and at the same time to exercise the power to authorise his detention under paragraph 2(2) of Schedule 3 to the Immigration Act 1971. This gives the Secretary of State an apparently open ended power to authorise the detention of a person who has been served with a notice of intention to deport pending the making of the deportation order. The order was in fact made more than a year later, after which Mr Kambadzi was detained under paragraph 2(3) of the Schedule, which again gives an apparently open ended power to authorise detention pending his removal or departure from the United Kingdom. No court had ordered or authorised or approved this detention. The trial judge who sentenced Mr Kambadzi for his crimes had not even recommended it. A Government official decided to lock him up, on the face of it until a Government official decided to take the next step. But no one suggests that paragraph 2 of Schedule 3 gives the Government an unlimited power to authorise a persons indefinite detention without trial. Everyone knows that there are limits. Everyone also knows that if those limits are exceeded, the detention becomes unlawful. Everyone also knows that a person who is unlawfully detained is entitled, not only to be released, but to claim compensation for having been unlawfully detained. The person responsible for the unlawful detention is liable even if he acted in good faith and without any negligence: see R v Governor of Brockhill Prison, Ex p Evans (No 2) [2001] 2 AC 19 (compare the statutory protection given to those who detain mentally disordered or incapacitated people under the Mental Health Act 1983 or the Mental Capacity Act 2005: see s 139(1) and Schedule A1, para 3 respectively). All this is Hornbook law. The only question, therefore, is what the limits are to the Home Secretarys powers. In particular, are there procedural as well as substantive limits? The substantive limits were established as long ago as 1983, in the powerful extempore judgment of Woolf J in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704, and approved by the Privy Council in Tan Te Lam v Superintendent of the Tai A Chau Detention Centre [1997] AC 97. The detention has to be pending the deportation order or the removal, as the case may be, and cannot therefore be imposed for any other purpose. If it becomes clear that the purpose cannot be carried out, the detention becomes unlawful. In Tan Te Lam, above, the detention of these particular Vietnamese boat people became unlawful once it was clear that the Vietnamese Government did not regard them as Vietnamese nationals and would not have them back. It was also held in Hardial Singh that the Secretary of State cannot detain a person for longer than is reasonable in all the circumstances. This can depend upon the reasons for the delay. The Secretary of State has to exercise all reasonable expedition to ensure that the steps are taken which will be necessary to ensure the removal of the individual within a reasonable time: Hardial Singh, at p 706F. If the Secretary of State is dragging his feet, then the period may become unreasonable. But if the detainee is unjustifiably stringing things out, for example by launching an obviously bogus asylum claim, it will not. In this case, Munby J held that the Home Secretary did indeed intend to deport Mr Kambadzi and that this was still a possibility. He had been detained for a very long time (22 months by the time that Munby J decided the case in January 2008). But for most of that time he had been pursuing a claim for asylum, which was clearly bogus, through all possible appellate routes. Thereafter he could not be deported because the Home Secretary had temporarily suspended removals to Zimbabwe. But there remained some prospect of achieving this. Hence the detention was substantively justified in accordance with the Hardial Singh principles. But Munby J held that the detention had, for much of those 22 months, been unlawful because of the failure of the Secretary of States officials to conduct the regular reviews laid down in his own Operations Enforcement Manual. No one doubts that the failure to conduct these reviews was unlawful, and that the Secretary of State could have been obliged by judicial review proceedings to comply with his stated policy, unless he had a good reason not to do so in the individual case: see the Court of Appeals judgment in this case at [2009] EWCA Civ 1204, [2009] 1 WLR 1527, para 25. The issue is whether that unlawful failure has also rendered the detention unlawful. The Manual seemed to think that it did. It stated that the purpose of the reviews was to ensure that the detention continued to be justified: see para 38.3.4. Further than that, it declared, at para 38.1: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy. The Court of Appeal took the same view in Nadarajah v Secretary of State for the Home Department [2003] EWCA Civ 1768, [2004] INLR 139. At para 54, Lord Phillips stated that: Our domestic law comprehends both the provisions of Schedule 2 to the Immigration Act 1971 and the Secretary of States published policy, which, under principles of public law, he is obliged to follow. The failure to follow that published policy rendered the detentions unlawful in that case. The policy which was in question there related to the considerations that the Secretary of State would take into account in deciding to detain. It went further than the bare bones of the Hardial Singh principles. Nadarajah was a case principally brought under article 5 of the European Convention on Human Rights. The question, therefore, was whether the detention was lawful in the sense that it complied with the Convention standards of legality. It is not surprising that the Court held that, to be lawful, a decision to detain had to comply, not only with the statute, but also with the Secretary of States published policy. But it is also not surprising that the majority of this Court has now held, in R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, that a failure to comply with the Secretary of States published policy may also render detention unlawful for the purpose of the tort of false imprisonment. While accepting that not every failure to comply with a published policy will render the detention unlawful, I remain of the view that the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach (see the Lumba case, para 207). The question remains, however, whether a material breach of a public law duty to conduct regular reviews that is, a procedural obligation has the same consequence as a material breach of a public law duty to detain only if certain criteria are fulfilled. For the sake of the argument before this Court, we have to assume that the case falls into the former category breach of a procedural obligation even though the co incidence of timing and the evidence of the secret policy which emerged in Lumba might suggest that the real reason why the reviews were not conducted as required by the policy was that they would be a waste of time all these people were going to be detained under the new and secret criteria in any event. But might there be a distinction between the substantive limitations on the power to detain and the procedural requirements for exercising it? Sometimes a statute puts the effect of a failure to follow procedural requirements beyond doubt. The Police and Criminal Evidence Act 1984, section 34(1), states that A person . shall not be kept in police detention except in accordance with the provisions of this Part of this Act; those provisions require regular reviews; failure to conduct those reviews on time renders detention beyond the time when they should have been conducted unlawful: see Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662, CA. Sometimes a statute does not say in so many words that failing to comply with one of its procedural requirements will render the resulting detention unlawful, but the courts will construe the statute to mean that it does. An example is the prohibition in the Mental Health Act 1983, section 11(4)(a), of making an application for compulsory admission to hospital if the patients nearest relative objects: Re S C (Mental Patient: Habeas Corpus) [1996] QB 599, CA. In these cases, it is irrelevant that the person concerned could have been lawfully detained had the correct procedures been followed. Sometimes, however, the court will conclude that the lawfulness of detention does not depend upon the fulfilment of a particular statutory requirement. For example, in R (D) v Secretary of State for the Home Department [2006] EWHC 980 (Admin), it was common ground that failing to comply with the requirement in the (Immigration) Detention Centre Rules 2001 SI 2001/238 that immigration detainees be given a medical examination within 24 hours of arrival did not render the detention unlawful unless the detainees could show that it would have led to their earlier release. In short, there are some procedural requirements, failure to comply with which renders the detention unlawful irrespective of whether or not the substantive grounds for detention exist, and some procedural requirements, failure to follow which does not have this effect. If the requirement is laid down in legislation, it will be a matter of statutory construction into which category it falls. A clear distinction can be drawn between a requirement which goes to whether or not a person is detained and a requirement which goes to the conditions under which a person is detained. If the grounds exist for detaining a person in a mental hospital, for example, and the procedures have been properly followed, it is not unlawful to detain him in conditions of greater security than are in fact required by the nature and degree of his mental disorder. The same analysis applies to requirements which are imposed, not by statute, but by the common law. There are some procedural requirements which go to the legality of the detention itself and some which do not. The common law imposed a requirement that an arrested person be told, at the time, the real reason why he was being arrested. It did so for the very good reason that the arrested person had to know whether or not he was entitled to resist arrest. Mr Leachinsky was told that he was being arrested under the Liverpool Corporation Act 1921, but this Act gave the police officers no power to arrest him without a warrant. They did have power to arrest him on reasonable suspicion of having committed a felony. But, as they had not told him this, his detention was unlawful and he was entitled to damages for false imprisonment: see Christie v Leachinsky [1947] AC 573. As Lord Simonds put it, at p 592, if a man is to be deprived of his freedom he is entitled to know the reason why. It is not statute, but the common law, indeed the rule of law itself, which imposes upon the Secretary of State the duty to comply with his own stated policy, unless he has a good reason to depart from it in the particular case at the particular time. Some parts of the policy in question are not directly concerned with the justification and procedure for the detention and have more to do with its quality or conditions. But the whole point of the regular reviews is to ensure that the detention is lawful. That is not surprising. It was held in Tan Te Lam, above, that the substantive limits on the power to detain were jurisdictional facts, so the Secretary of State has to be in a position to prove these if need be. He will not be able to do so unless he has kept the case under review. He himself has decided how often this needs to be done. Unless and until he changes his mind, the detainees are entitled to hold him to that. Just as Mr Leachinskys detention was unlawful even though there were in fact good grounds for arresting him, the detainees detention is unlawful during the periods when it has not been reviewed in accordance with the policy, irrespective of whether or not the review would have led to their release. In my view, Munby J was right to hold that the reviews were fundamental to the propriety of the continuing detention and a necessary prerequisite to the continuing legality of the detention: see [2008] EWHC 98 (Admin), para 68. It follows also, from the decision in Lumba, that the fact if it be a fact that had the requisite reviews been held, the decision would have been the same makes no difference. However, the result of any review, had it been held, cannot be irrelevant to the quantum of damages to which the detainee may be entitled. False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. A differently constituted majority in Lumba has now clearly rejected the view, taken by some members of the Court, that deliberate breaches of constitutional rights might attract a conventional sum in vindicatory damages even if the officials conduct were not so egregious as to attract exemplary or punitive damages. That view has, of course, to be respected. I have reached these conclusions without reference to the Strasbourg case law under article 5 of the European Convention on Human Rights. I did initially think that article 5 might supply the answer to what, on any view, is not an easy question. Article 5 lays down an exhaustive list of the circumstances in which a person may be deprived of his liberty. These include, in article 5(1)(f), the lawful arrest or detention of a person against whom action is being taken with a view to deportation or extradition. The requirement of lawfulness is not limited to complying with the substantive and procedural provisions of the domestic law. The Convention itself imports extra requirements in order to ensure that the detention is not arbitrary. Some of these are procedural. Thus the detention of persons of unsound mind under article 5(1)(e), even if formally authorised, must be regularly reviewed in order to ensure that the criteria for detention still exist: see X v United Kingdom (1982) 4 EHRR 118. A principle of domestic law which allows people to be de facto detained without any formality at all contravenes article 5(1)(e) (as well as article 5(4)) even though the criteria for detention do exist: see HL v United Kingdom (2005) 40 EHRR 761. The Strasbourg court has not yet (so far as we are aware) addressed the procedural protection which may be required in order to prevent detention by the executive under article 5(1)(f) becoming arbitrary. The notion of arbitrariness for the purpose of article 5(1)(f) is, however, different from the notion of arbitrariness for the purpose of article 5(1)(b), (d) and (e). It does not require that the detention be necessary in order to achieve the stated aim: see Chahal v United Kingdom (1997) 23 EHRR 413; Saadi v United Kingdom (2008) 47 EHRR 427. But in Chahal, the Court did endorse the Hardial Singh principles, which incorporate a reasonable time limit on the detention. It is not impossible, therefore, that the Court would also impose a requirement for regular reviews. But it cannot be assumed that it would do so, or that it would expect these to be as rigorous as those which the Secretary of State has imposed upon himself. Thus, while the article 5 jurisprudence does not detract from the conclusions reached on domestic law, it does not add anything to them. For those reasons, I would allow the appeal and make the order proposed by Lord Hope, although I would not hold out much hope that Mr Kambadzi will be entitled to more than a nominal sum in damages. My reasons for reaching this conclusion are, I believe, no different from those of Lord Hope and Lord Kerr. But because the Court is so narrowly divided, I thought it necessary to reason the matter through for myself. The decision in Lumba has confirmed and strengthened me in these conclusions, although I acknowledge that, as this case was presented to us, the departure from published departmental policy was of a different kind from the departure in that case. Nevertheless, it was so obvious and so persistent and so directly related to the decision to continue to detain that it was clearly material in the Lumba sense. Whether in reality it was a Lumba case is not for this Court to decide. LORD KERR I agree with Lord Hope that this appeal should be allowed for the reasons that he has given. I also agree that the anonymity order should be set aside. As Lord Hope has said, it may be safely assumed that an asylum seeker will be alive to the risks that disclosure of his identity will entail and his stance on the question of anonymity, especially if he expresses no desire that it be maintained, will be of importance in striking the balance between avoiding unnecessary risks to the asylum seekers safety and the principle of open justice. The critical question in this appeal is whether compliance with the duty to review underpins the legality of the detention. It is accepted that there is a duty to review. It is further accepted that this duty had not been complied with. Does that make the detention unlawful? The respondent says that it does not, arguing that the situation encountered here is not comparable to that which demands compliance with a statutory obligation on which the condition of lawfulness of the detention depends. It is suggested that a failure to observe a public law duty should not render unlawful a hitherto lawful detention because there can be no sufficient nexus between such a failure and the lawfulness of the detention. One can acknowledge the initial appeal of the respondents argument. If a statute prescribes certain conditions that must be met in order that a person may be lawfully held in detention, where one of those conditions remains unfulfilled, the detention may be regarded as automatically unlawful. By contrast, the failure to fulfil a duty owed at public law will not necessarily render invalid a detention made on foot of a valid authorisation. The essential question must be whether there is an adequate connection between compliance with the duty and the lawfulness of the detention. The respondents argument proceeds on the premise that there can never be such a close link. The appellants case is that it depends on the circumstances some public law duties are so closely linked to the continued legality of the detention that a failure to comply with them transforms it from a condition of lawfulness to one which is unlawful. The case can be approached in a relatively simplistic way. The appellant has a legal entitlement to have the justification for his detention reviewed. This is not disputed. Likewise it is not challenged that where there has been a violation of that right, the appellant must have a remedy. Is that remedy to be confined to a declaration and/or an injunction? And if he is entitled to these forms of relief, why should he not be entitled to maintain an action for damages for false imprisonment? Given that what is at stake is the appellants liberty; that there is a presumption in favour of his release; that scrupulous adherence to the review standards is clearly contemplated in the language of the policy document; and that, plainly, these are considered to be vital safeguards of the detainees interests, I can discern no reason in principle to restrict the availability of all remedies that the law will conventionally afford for unlawful detention. On the contrary, it appears to me that access to the full panoply of such remedies is required in order that those fundamental interests are afforded proper protection. Another way of approaching the questions that arise on the appeal is to ask whether the initial authority to detain could be regarded as comprehensive of the issues which are germane to the continued lawfulness of detention. Quite clearly, detention which is lawful initially can be transformed to a condition of illegality see R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704. In his argument to this court on behalf of the Secretary of State, Mr Tam QC has asserted that where the detention is initially lawful, it cannot become unlawful, absent an undermining of the initial authority to detain. But there was no undermining of the initial authority in that sense in Hardial Singh yet the initially lawful detention became unlawful. That transformation occurred by a means other than by operation of an express statutory pre condition or by the extinction of the initial authority to detain. In Hardial Singh it was held that there were implicit limitations on the statutory power to continue to detain. If, for instance, the original purpose of detention viz to deport became incapable of fulfilment, the detainee could no longer be lawfully held. Why should implicit limitations in the form of an effective review of the continuing justification for detention not be recognised in the present case? Where someone is detained beyond the immediate post detention period, there may be two aspects to the question whether his detention is lawful. First there must be an initial valid authorisation; secondly, there must be compliance with such public law duties as touch directly on the question of whether he should continue to be detained. That proposition can perhaps be best exemplified in the context of a review of the justification of the reasons for continued detention by considering the purpose of that review. One starts with the unexceptionable proposition that it would be indisputably unlawful to hold someone in detention if there was no justification for it. Since, self evidently, an original justification for detention may prove, in light of events and circumstances that occur subsequently, to no longer obtain, periodic review of the justification for continued detention is required. The purpose of the review is to determine whether there are still good grounds to continue to hold the person in detention. If the review discloses that there are no such grounds, continued detention is unquestionably illegal. A person detained after it had been shown that there was no good reason for his continued detention would undoubtedly have the right to claim compensation for false imprisonment. As Lord Hope has said, support for the proposition that a departure from published policy as to detention will render it unlawful is to be found in R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139. Lord Brown has sought to distinguish that case from the present appeal on the basis that in Nadarajah the grounds on which the power of executive detention could be exercised had been narrowed but that no such narrowing of powers occurred here. But if the published policy in Nadarajah narrowed the grounds on which someone could be lawfully detained, why should the same consequence not accrue in the present case? In Nadarajah the stated policy was to release those whose removal was not imminent. Here it is to the effect that persons will only be detained if there is continuing justification for it, as verified by a prescribed system of review. Lord Brown suggests that in Nadarajah the detainee was entitled to release and in the present case that the appellant was entitled 'merely' to be reviewed for release. I respectfully disagree that such a distinction can be drawn. The essence of the appellant's entitlement was that he would be released unless continued justification for his detention existed. The review was the means by which the existence of the justification was to be established. It is not comprehensive of the detainee's entitlement. As in Nadarajah the appellant in the present case is entitled to be released in accordance with the terms of the relevant policy, if justification for his continued detention no longer obtains. What if no review takes place? If it is illegal to hold a person in detention where it has been established that there are no good grounds for doing so, can it be lawful to hold someone without examining whether such grounds continue to exist? In my view it cannot. Since it has been recognised that, in cases such as the appellants, periodic review is necessary in order to vouch the continued justification for detention, where that review does not take place, the detention can no longer be considered justified. The justification for continued detention cannot be said to exist and, absent such justification, the detention is unlawful. Likewise, in my opinion, where the review does take place but does not partake of the quality or character required to justify the continuance of detention, it becomes unlawful and gives rise to a right to claim false imprisonment. I believe that Munby J was right in his characterisation of the system of review as being integral to the lawfulness of the detention (para 68 of his judgment). It was not only so stated in the policy document, this concept pervades the entire approach of government to this type of detention. I accept, of course, that the Executive cannot make law and that the policy document should not be construed as a statute but it is not irrelevant that the Home Secretary made an unequivocal statement that failure to comply with the policy would be a breach of the law. This surely provides the foundation for a finding that the requirement of review is intimately connected to the continuing lawfulness of the detention and that it therefore constitutes an implicit limitation on the statutory power to detain. The majority in R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671, has held that causation is not a necessary ingredient for liability. In that case the argument on behalf of the detained persons was put in this way: a public law error that bears directly on the decision to detain will mean that the authority for detention is ultra vires and unlawful, and will sound in false imprisonment. That argument was accepted by the majority of the court in Lumba. The public law error in the present case bore directly on the decision to detain in that it was made without the necessary review of the justification for detention. As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages. For the reasons that I gave in my judgment in that case, I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable. LORD BROWN (with whom Lord Rodger agrees) Does a failure to comply with a published policy periodically to review the exercise of a statutory power of executive detention constitute not merely the breach of a public law duty but in addition the tort of false imprisonment? Does it, in other words, undermine the lawfulness of continuing detention? That essentially is the issue before the Court on this appeal. Lord Hopes judgment contains a very full account of the facts, the arguments and the authorities relevant to this appeal so that my own judgment can be correspondingly short. The Immigration Act 1971, as amended, (the 1971 Act) provides (by paragraphs 2(2) and (3) of Schedule 3) that, in a case like this, once notice of intention to deport has been given, the Secretary of State may detain the person pending the making of the deportation order (paragraph 2(2)) and, once the deportation order has been made, the detainee shall continue to be detained [pending his removal or departure] unless he is released on bail or the Secretary of State directs otherwise (paragraph 2(3)). One suspects that when these provisions were enacted nearly 40 years ago Parliament envisaged the deportation process taking place within a comparatively short timescale, perhaps months at most. As it is, however, the process regularly stretches to years and not infrequently the position arises where, for one reason or another, it proves impossible for a considerable time to deport anyone to a particular country because of conditions there. In the past this has been true at various times of Somalia, of Afghanistan, of Iraq, and of Kosovo. Since 2005 it has also been true of Zimbabwe which is why this appellant, although given notice of an intention to deport him on 8 March 2006, and made subject to a deportation order on 24 August 2007, remains in this country to this day. More particularly, this is the background to his detention under Schedule 3 to the 1971 Act (following completion of a prison sentence) from 8 March 2006 to 13 June 2008 when, after 27 months of Schedule 3 detention, he was finally released on bail. That the Secretary of States power to detain people under paragraph 2 of Schedule 3 (the paragraph 2 power as for convenience I shall call it) is not unlimited is plain and undisputed. This was first established by Woolf J in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 704, approved by the Privy Council in Tan Te Lam v Superintendent of Tai A Chau Detention Centre [1997] AC 97 and subsequently distilled by Dyson LJ in R (I) v Secretary of State for the Home Department) [2003] INLR 196, para 46 into four propositions (which, again for convenience, I shall call the Hardial Singh principles), as follows: (i) The Secretary of State must intend to deport the person and can only use the power to detain for that purpose. (ii) The deportee may only be detained for a period that is reasonable in all the circumstances. (iii) If, before the expiry of the reasonable period, it becomes apparent that the Secretary of State will not be able to effect deportation within that reasonable period, he should not seek to exercise the power of detention. (iv) The Secretary of State should act with reasonable diligence and expedition to effect removal. Although suggested by the appellant to be broadly similar to the protections implied by the ECtHR into article 5(1)(f) of the Convention to ensure proportionality and guard against arbitrariness, to my mind the Hardial Singh principles, certainly as applied in a succession of later cases, are in fact more favourable to detainees than Strasbourg requires. In particular Strasbourg has consistently stated that there is no requirement that the detention be reasonably considered necessary, for example to prevent the person concerned from committing an offence or fleeing (para 72 of the Grand Chambers judgment in Saadi v UK (2008) 47 EHRR 427, following Chahal v UK (1996) 23 EHRR 413, para 112). Domestic case law, by contrast, holds that with regard to the second Hardial Singh principle the deportee may only be detained for a period that is reasonable in all circumstances [t]he likelihood or otherwise of the detainee absconding and/or re offending [is] an obviously relevant circumstance (my judgment in I at para 29, echoed by Dyson LJ at paras 48 and 49). I may note at this point that, notwithstanding that the full width of the Hardial Singh principles was clearly recognised by Munby J in the present case (paras 79 120), his conclusion was that none of them had been breached at any time, a conclusion unchallenged in the Court of Appeal. It follows that not merely was the appellant in a formal sense a person liable to be detained under the third Schedule (in the same way that the unsuccessful appellant in R (Khadir) v Secretary of State for the Home Department [2006] 1 AC 207 was held liable to detention and thus eligible for temporary admission under the second Schedule even though it might well have been unreasonable and in breach of the Hardial Singh principles actually to have detained him); here the appellant was liable to be detained in the fuller sense that throughout the period of his detention it would have been a lawful and reasonable exercise of the paragraph 2 power actually to detain him. On what basis, then, is it said that the appellants detention was unlawful so as to give rise to a claim for damages for false imprisonment? The argument revolves around the Secretary of States published policy: chapter 38 of the Departments Operations Enforcement Manual (the OEM) under the heading Detention and Temporary Release. The policy (at 38.3) includes a presumption in favour of temporary admission or temporary release, provides that [t]here must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified and that [a]ll reasonable alternatives to detention must be considered before detention is authorised, and dictates that [o]nce detention has been authorised, it must be kept under close review to ensure that it continues to be justified. Paragraph 38.8 then specifies how both the initial detention and any continued detention thereafter are to be authorised and kept under review, expressly providing both for the frequency and for the level of seniority of the reviews required. In the event, as Munby J recorded (para 48), although entitled (by the date of the first instance hearing) to no fewer than 22 monthly reviews of the lawfulness of his detention, the appellant had had the benefit of only ten reviews, of which only six were conducted by officials of the requisite seniority, and of those six, two had had to be disavowed as fatally flawed. Paragraph 38.1 of the policy, headed General, states: To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with this stated policy. In a sense the question now before us is quite simply: is that statement accurate? Munby J in effect held that it was, not only as to the substantive requirements to justify continuing detention but as to the review requirements also. At para 68 of his judgment, having referred to rule 9(1) of the Detention Centre Rules (which, like Lord Hope, I think to be of only peripheral relevance) he continued: [I]ntegral to the policy laid down by the Secretary of State in paragraph 38.8 of the Operations Enforcement Manual, is the principle that someone is not to be detained beyond a certain period without there being a review undertaken at regular intervals and moreover, as required by the Secretary of States policy, a review undertaken at increasingly high levels of seniority within the Home Office as the period of detention grows longer. Those reviews are fundamental to the propriety of the continuing detention, they are required in order to ensure that the continuing detention can still be justified in the light of current, and perhaps changed, circumstances, and they are, in my judgment, a necessary prerequisite to the continuing legality of the detention. That paragraph identifies the critical question: is the holding of the reviews required by the OEM a necessary prerequisite to the continuing legality of the detention? In addressing this question it is convenient first to distinguish the present case from certain other authorities strongly relied upon by the respective parties. The appellant (supported by the Intervener) seeks to pray in aid the Court of Appeals decision in Roberts v Chief Constable of the Cheshire Constabulary [1999] 1 WLR 662. The case turned on the proper construction of Part IV of the Police and Criminal Evidence Act 1984 (the Part containing each of the sections to which I now refer). The detainee, following arrest, was initially kept in police detention pursuant to section 37. Section 40(1) provided that: Reviews of the detention of each person in police detention in connection with the investigation of an offence shall be carried out periodically in accordance with the following provisions of this section. Section 40(3)(a) provided that the first review shall be not later than six hours after the detention was first authorised. Central to the decision that, no such review within six hours having taken place, the detainees continued detention (until the point two hours, twenty minutes later when his detention was reviewed) had been unlawful (notwithstanding that had he been reviewed at the six hour point he clearly would still have been detained), was section 34(1) which provided that: A person arrested for an offence shall not be kept in police detention except in accordance with the provisions of this Part of this Act. Munby J appears to have thought Roberts strongly supportive of the appellants case. Laws LJ, giving the leading judgment in the Court of Appeal, thought otherwise. As he pointed out ([2009] 1 WLR 1527, para 25): [T]he requirement of periodic review, on the proper construction of the statute, had to be satisfied as a condition precedent to the legality of the suspects detention. It was made so by the express terms of section 34(1). But there is no analogue to section 34(1) of PACE to be found in paragraph 2(2) of Schedule 3 to the Immigration Act 1971. There is no reference in the sub paragraph, express or implied, to the Rules or the manual or to any Rules that might be made under powers in the Immigration Act or to any manual, or instructions, that might be issued by the Secretary of State. I cannot see how compliance with the letter of the Rules or manual could be said to be a sine qua non of a lawful exercise of the power to detain unless paragraph 2(2) (or other main legislation) made it so. But it does not. I agree with Laws LJ that Roberts provides little if any assistance to the appellant here. The respondent for his part seeks to rely on R (Walker) v Secretary of State for Justice (Parole Board intervening) [2010] 1 AC 553 in support of his argument that a failure in the review process does not undermine the legality of (the unreviewed) continuing detention. Walker was concerned with a number of appeals by IPP prisoners justifiably complaining of the Secretary of States systemic failures to provide the necessary resources and systems to enable such prisoners to demonstrate to the Parole Board that they could safely be released. The Divisional Court held in one of the cases, R (Wells) Parole Board [2008] 1 All ER 138, para 47: To the extent that the prisoner remains incarcerated after tariff expiry without any current and effective assessment of the danger he does or does not pose, his detention cannot in reason be justified. It is therefore unlawful. The Court of Appeal and the House of Lords disagreed. As I put it (at paras 36 37): It is one thing to say as, indeed, is now undisputed that the Secretary of State was in breach (even systemic breach) of his public law duty to provide such courses as would enable IPP prisoners to demonstrate their safety for release and, to some extent at least, courses enabling them to reduce the risk they pose, duties inherent in the legislation (the legislations underlying premise [as it was described in the court below]); quite another to say that such breach of duty results in detention being unlawful. I respectfully agree with the Court of Appeal that it does not. The remedy for such breach of public law duty indeed the only remedy, inadequate though in certain respects it may be is declaratory relief condemning the Secretary of States failures and indicating that he is obliged to do more. By the same token, submits Mr Tam QC, the undisputed (and here too systemic) breaches of the Secretary of States public law duty to review, consistently with his published policy, the justifiability of the appellants (and doubtless very many other detainees) continuing detention, although (as in Walker) deeply to be regretted and strongly to be condemned, does not result in the unreviewed detention being unlawful. To my mind, however, Walker is no more helpful to the respondents case than Roberts is to the appellants. Again, as in Walker, the primary legislation made the position clear: IPP prisoners were expressly made subject to the statutory requirement (under section 28 of the Crime (Sentences) Act 1997) that they were not to be released until the Parole Board was satisfied that their continuing confinement was no longer necessary for the protection of the public. In the same way that Schedule 3 to the 1971 Act contains no analogue to section 34(1) of PACE, so too it contains no analogue to section 28 of the 1997 Act. Laws LJ below identified (at para 21) the essential question here to be: What is the reach [of the paragraph 2 power] and characterised it as a question of statutory construction. At paragraph 35 he summarised his conclusions upon the question as follows: (i) Compliance with the Rules and manual as such is not a condition precedent to a lawful detention pursuant to paragraph 2(2). Statute does not make it so (contrast section 34(1) of PACE, and the Roberts case [1999] 1 WLR 662). Nor does the common law, or the law of the Convention. (ii) Avoidance of the vice of arbitrary detention by use of the power conferred by paragraph 2(2) requires that in every case the Hardial Singh principles should be complied with. (iii) It is elementary that the power exercised, being an act of the executive, is subject to the control of the courts, principally by way of judicial review. So much is also required by Convention article 5(4). The focus of judicial supervision in the particular context is upon the vindication of the Hardial Singh principles. (iv) In the event of a legal challenge to any particular case the Secretary of State must be in a position to demonstrate by evidence that those principles have been and are being fulfilled. However the law does not prescribe the form of such evidence. Compliance with the Rules and the manual would be an effective and practical means of doing so. It is anyway the Secretary of States duty so to comply. It is firmly to be expected that hereafter that will be conscientiously done. Mr Raza Husains attack upon that paragraph centres upon the proposition that, following the initial exercise of the paragraph 2 power, the Secretary of State has a continuing discretion whether to maintain the detention and is under a duty to exercise that discretion regularly in accordance with the published policy. So much Mr Tam accepts and, indeed, he further accepts that every failure to review a detention by the specified time or by the specified level of decision maker constitutes a breach of the Secretary of States public law duty. Of course, as Mr Husain recognises, not all breaches of public law duties arising in the context of detention would render its continuation unlawful see, for example, Cullen v Chief Constable of the Royal Ulster Constabulary [2003] 1 WLR 1763. The key question, he submits, is whether the breach is sufficiently closely linked to the detention decision. Here, he contends, it plainly was. The authority (Roberts aside) upon which Mr Husain principally relies is the decision of the Court of Appeal in R (Nadarajah) v Secretary of State for the Home Department [2004] INLR 139 (a report dealing also with Amirthanathans appeal I shall call them respectively N and A). That case too concerned the Secretary of States detention policy under chapter 38 of the OEM but not, as here, the review provisions rather the statement that one of the reasons for detaining an asylum seeker is that his removal from the UK is imminent. What was not part of the published policy and so was not publicly known was the Departments further policy, when considering the imminence of removal, to disregard information from those acting for asylum seekers that proceedings were about to be instituted, however credible that information might be. Ns solicitors had given notice of his intention to seek judicial review of the Secretary of States decision to certify his case as manifestly unfounded. As solicitors similarly had notified his intention to exercise his right of appeal against the Secretary of States rejection of his Human Rights Act claim to remain. The detentions of both on the ground that their removal was imminent were held unlawful. It was, said the Court of Appeal (at para 68), at odds with [the Secretary of States] policy, as made public. Additionally, in As case, it was clear that he had in fact been kept detained so as to facilitate the obtaining of the documentation needed for his removal. This too was at odds with the Secretary of States policy, as made public (para 72). I confess that for a time I was persuaded by the appellants argument and thought it supported by the authority of Nadarajah. In the end, however, I have reached the contrary view. Nadarajah now seems to me clearly distinguishable. Not because, as the Court of Appeal noted in that case at para 69, had Ns solicitor been aware of the Secretary of States unpublished policy she would have instituted judicial review proceedings earlier, so that the departure from the published policy was in fact causative of Ns continued detention. Rather Nadarajah is distinguishable because it is one thing, as there, to adopt a published policy which in substance narrows the grounds on which an executive power of detention is exercisable (the stated policy there being to release those whose removal was not imminent); quite another, as here, to have a policy and programme for review which dictates only the procedure whereby detention will regularly be reviewed. In the former case, under the published policy the detainee was entitled to release; in the latter case, he was not he was entitled merely to be reviewed for release. Naturally, upon the intended reviews, the detainee would be released if, as a matter of substance, his continuing detention were found no longer justifiable according to the published policy. The difference, however, seems to me crucial. In the one case a breach of policy renders continuing detention unlawful. In the other it does not. Lady Hale, at para 72 of her judgment, suggests an analogy between the present case and Christie v Leachinsky [1947] AC 573 which established the common law requirement that an arrested person be told, at the time, the reason for his arrest. For my part I find the suggestion unpersuasive. As Lady Hale herself observes, the requirement was imposed for the very good reason that the arrested person had to know whether or not he was entitled to resist arrest. Lord Simonds put it thus (p591): it is the corollary of the right of every citizen to be thus free from arrest [unless, that is, someone has the right to arrest him] that he should be entitled to resist arrest unless that arrest is lawful. How can these rights be reconciled with the proposition that he may be arrested without knowing why he is arrested? and a little later (p.592): . the subject is entitled to know why he is deprived of his freedom, if only in order that he may, without a moments delay, take such steps as will enable him to regain it. No such consideration arises or could arise in the present content. Their Lordships in Christie v Leachinsky would, I think, be astonished at the suggestion that any failure to give effect to a self imposed requirement for periodic review of the continuing detention of those awaiting deportation similarly renders that detention unlawful. I fear that they would be scarcely less surprised by the further suggestion (at para 77 of Lady Hales judgment) that, assuming such detention to be unlawful, it is to be compensated by no more than a nominal sum in damages. Indeed it seems to me that that very suggestion illustrates the ineptness of the proposed analogy between the two cases in the first place. The majoritys proposed solution to this case would quite simply devalue the whole concept of false imprisonment. Nothing that I have said should be taken to depreciate the desirability and importance of reviews under chapter 38 nor to excuse the Departments lamentable failures to conduct them, certainly in the appellants case and very probably in a host of others. As the courts below rightly observed, these matters go to the liberty of the subject and the picture which emerges is deeply disturbing, indeed profoundly shocking (Munby J, para 137). One obvious consequence of such serial failures is that it creates a substantially greater risk of detainees bringing successful proceedings for breach of the Hardial Singh principles (or, indeed, assuming they are still more favourable to detainees, the Secretary of States published policy statements going to the substantive criteria for release, as in Nadarajah itself) principles and statements to which the reviews are intended and likely to give effect. And, of course, as the Hardial Singh line of authority (and, indeed, Nadarajah) clearly establishes, a successful claim on these grounds carries with it a right to damages for false imprisonment, a right to damages, moreover, which, unlike that arising upon a failure to review such as envisaged by the majority (and, indeed, such as arose in Roberts see p669H), would naturally be untroubled by any question of causation. I recognise, of course, that, on this approach, it is only in cases where the detainee can show that he should have been released that the respondent will be required to pay, financially, for failures in the review process. Where, as here, all that can be shown is a series of public law breaches failures to comply with his own published policy as to reviews the only remedy, as in Walker, is by way of declaratory relief. Unsatisfactory though in one way this is, to treat a failure in the review process (perhaps merely a review held a day late or by someone of insufficient seniority and perhaps in respect of an obviously dangerous detainee) as of itself giving rise (as in Roberts) to a claim for false imprisonment would to my mind be unsatisfactory too. There may well be altogether too many people (above all children and other likewise vulnerable people) locked up awaiting deportation. Plainly a wise Secretary of State would instigate and operate a practicable and robust system for minimising the use made of the paragraph 2 power. As it is, like any other public body failing to comply with their published policy, he commits a breach of his public law duty, always a regrettable state of affairs. That said, however, a detainee, once properly detained, in my opinion remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction or he establishes an entitlement to release pursuant to the Hardial Singh principles or other substantive policy statements governing how the Secretary of State will exercise his paragraph 2 power. This appellant could establish no such entitlement. In my judgment he remained lawfully imprisoned until he was bailed. It will be noted that I have not hitherto referred to article 5(1)(f) of the Convention save only to observe (at para 94) that domestic law is in fact more favourable to detainees awaiting deportation than Strasbourg requires. Since it now appears that this is to be a minority judgment, I need say no more than that there is nothing in the existing Strasbourg jurisprudence which would warrant a conclusion that a failure to give effect to the Secretary of States self imposed requirement for detention reviews would result in unlawful detention under the Convention irrespective of whether it constitutes false imprisonment under the common law. (I do not think I am in disagreement with the majority as to this see, for example, para 76 of Lady Hales judgment.) Nor, of course, is there any question here of a breach of article 5(4) of the Convention: the requirements of that provision are amply satisfied by the detainees right to seek bail or, indeed, judicial review. I would dismiss this appeal. The above (paras 90 113) is the judgment I wrote before an enlarged court of nine of us in November 2010 heard, and subsequently, on 23 March 2011, gave judgment in, R (Lumba and Mighty) v Secretary of State for the Home Department [2011] UKSC 12; [2011] 2 WLR 671 (Lumba). Given that a majority of the court (6:3) held that the particular public law breaches committed by the Secretary of State there resulted in the appellants being falsely imprisoned albeit a differently constituted majority (also 6:3) held that they can recover no more than nominal damages should I (must I) now change my judgment and agree with the majority that Mr Kambadzi too was falsely imprisoned? I have concluded not: it by no means follows from the majority view on liability in Lumba that there is liability here too and to my mind it would be still more undesirable to find liability established here than the minority of us thought it to be in Lumba itself. That the two cases are different is plain enough. As Lord Dyson observed in para 61 of his lead judgment: A somewhat similar problem arose in R (SK Zimbabwe) v Secretary of State for the Home Department In that case the unlawfulness lay in the failure of the Secretary of State to comply with her policy which prescribed the procedural requirements for reviews of FNPs who are already in detention. The present case concerns the substantive requirements for the initial detention of FNPs as well as their continued detention. Lady Hale too (para 198) recognised that on the issue of liability Lumba is a stronger case than is still before the court in SK (Zimbabwe) because the illegality alleged (and now admitted) went to the criteria for detention rather than to the procedure for authorising it. Although, obviously, the court in Lumba was not required to consider the consequences in terms of liability of a public law failure to comply with the Secretary of States self imposed requirements for the review of continuing detention, there appear to me a number of passages in the judgments of those holding liability to be established there, strongly suggesting that they might well have taken a very different view in the present case. This is perhaps plainest at paras 193 and 194 of Lord Walkers judgment: It is a big step to extend the [Anisminic] principle to a claim for damages for false imprisonment, where a defendant may have his professional reputation at stake and may not enjoy the procedural protections which attend judicial review (strict time limits, and the discretionary nature of the remedy granted). I would prefer a more demanding test, that in a case where an extant statutory power to detain has been wrongly used there would be a private law claim only if the misuse amounted to an abuse of power (including but not limited to cases of misfeasance or other conscious misuse of power). 194 However, it is in my opinion unnecessary to decide the point in these appeals because the conduct of officials, including some senior officials, of the Home Office between April 2006 and September 2008 amounted to a serious abuse of power. Lord Dyson SCJ has . described in restrained language how senior officials were well aware of the risk (indeed the likelihood) of challenge and decided to run the risk, (including the proposal to let immigration judges take any hit), and how further damaging facts were disclosed by stages, some before Davis J, some before the Court of Appeal and some only in this court. Wherever the line is to be drawn (if, as I think, a line does need to be drawn between public law errors in detention policies which do or do not give rise to an action for false imprisonment) these appeals must in my view fall on the wrong side of the line from the Secretary of States point of view. Given that a line is to be drawn between public law errors amounting to the sort of serious misconduct which Lord Walker was clearly intending to denote by his use of the expression abuse of power and other public law errors which do not give rise to actions for false imprisonment, it is very far from obvious that Lord Walker would regard the failures in the review process here as an abuse of power. Lord Collins too, having referred (at para 220) to the Home Offices deliberate decision . to continue an unlawful policy and to the cynical nature of its approach generally in these cases, expressed himself (at para 221) satisfied that the serious breach of public law in this case has the result that the detention of the appellants was unlawful (emphasis added). Even Lord Dyson (para 68) expressly accepted that: It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Thus, for example, the decision to detain made by an official of a different grade from that specified in a detention policy would not found a claim in false imprisonment. It seems clear, therefore, that Lord Dyson would have rejected Mr Kambadzis case at least in respect of the four monthly reviews carried out by officials of the wrong grade although, I acknowledge, it is unclear what conclusion he would have reached with regard to the twelve omitted reviews. Of course, the three of us who dissented on liability in Lumba would by definition conclude that Mr Kambadzi must fail on liability in the present case. As for why, liability in Lumba notwithstanding, it would be wrong to find false imprisonment established here too, let me illustrate what seems to me the absurdity of such conclusion by the example I gave (at para 357) in Lumba: it would result in a detainee whose detention is reviewed every second month instead of monthly as the published policy dictates, alternat[ing] yo yo like between lawful detention and false imprisonment. To hold that false imprisonment is the consequence of a failure to comply with the substantive requirements for the initial detention of FNPs as well as their continued detention (Lord Dyson at para 61, quoted above) is one thing; to hold that the same consequence follows a failure to comply with the procedural requirements for reviews of FNPs who are already in detention (ibid) is quite another and to my mind a step altogether too far. I therefore remain of the view, the authority of Lumba notwithstanding, that this appeal should be dismissed. On the issue of anonymity I agree with Lord Hope. As was recently established by the Courts comprehensive and authoritative judgment given by Lord Rodger in In re Guardian News and Media Ltd [2010] 2 AC 697, the general rule is that parties to proceedings are named and that an anonymity order has to be justified. In my opinion there is no justification for such an order here and, indeed, Mr Husain on behalf of the appellant suggests none and seeks no such order. There may, of course, be good reason in certain asylum cases for maintaining the asylum seekers anonymity notwithstanding that his claim fails: the very fact of his having made a claim, albeit unsuccessful, could on occasion tip the balance and give rise to a genuine fear of persecution or article 3 ill treatment where previously none existed. Doubtless in any such case counsel, certainly counsel as expert and experienced as Mr Husain, would duly seek the necessary anonymity order. Given, however, that this appellants asylum claim was clearly bogus, it is unsurprising that no such application was made here and it is to my mind inconceivable that the appellants known involvement in these proceedings could give rise to any bona fide further asylum claim.

The issue in this appeal is whether a failure by the Respondent to comply with a procedural requirement in its policy relating to the detention of foreign national prisoners results in their detention being unlawful, so as to allow the detainee to advance a claim in tort for false imprisonment. Shepherd Masimba Kambadzi is a Zimbabwean national. He entered the UK lawfully, but remained here after his leave to remain expired. In 2005, he was convicted of assault and sexual assault, sentenced to one years imprisonment and ordered to be registered as a sex offender for five years. Prior to his being released from prison, the Respondent decided to make a deportation order against the Appellant. Paragraph 2(2) of Schedule 3 to the Immigration Act 1971 (the 1971 Act) gives the Secretary of State the power to detain foreign nationals pending the making of a deportation order and the Appellant was detained under that power on 7 March 2006. On 24 August 2007, a deportation order was made against the Appellant, after which he was detained under paragraph 2(3) of Schedule 3 to the 1971 Act. In all, he was detained for 27 months until 13 June 2008, when he was granted bail. He has not yet been returned to Zimbabwe because of conditions in that country. The common law has recognised limits on the extent of the power to detain under paragraphs 2(2) and (3) of Schedule 3 to the 1971 Act (the Hardial Singh principles, set down in R v Governor of Durham Prison Ex p Hardial Singh [1984] 1 WLR 904). The Respondent had a policy which detailed how the power to detain was to be exercised. It provided, for example, that all reasonable alternatives to detention must be considered before detention was authorised. The policy also provided for detention to be subject to review at regular intervals. It specified the frequency of review and the grade of official which was to carry them out. The policy required the Appellants detention to be reviewed on five occasions during the first month and then monthly thereafter. The Appellants detention was not reviewed in accordance with that policy. By the date of the first instance hearing of this claim, he had been entitled to 22 monthly reviews of the lawfulness of his detention, in addition to the five reviews which should have taken place in the first month. His detention had been reviewed only ten times. Only six of those reviews had been conducted by officials of the required seniority and, of those six, two were flawed by material errors of fact. The substantive requirements for detaining the Appellant were, however, met throughout the period of his detention: had the Respondent carried out the reviews, it could justifiably have decided to continue to detain him. While still detained, the Appellant raised a judicial review, seeking a declaration that he was unlawfully detained and damages. At first instance, Munby J granted a declaration that the Appellant had been unlawfully detained for various periods amounting to about 19 months and gave directions for the assessment of damages, but he declined to order his release. (The Appellant was subsequently granted bail in other proceedings.) The Court of Appeal allowed the Secretary of States appeal and held that the Appellants detention had been lawful throughout. Although the Supreme Court heard the appeal in February 2010, it delayed handing down its judgment so as to be enable a court of nine Justices to consider the case of R (Lumba) v Secrteary of State for the Home Department [2011] UKSC 12. That case also considered the legality of the detention of foreign national prisoners where the Secretary of State has not complied with the terms of the published policy relating to detention. The Supreme Court, by a majority, allows the appeal. Lord Hope gives the leading judgment; Lady Hale and Lord Kerr issue separate concurring judgments. The majority holds that the Appellants detention was unlawful for the periods in respect of which no review was carried out and that he does have a claim in tort for false imprisonment in respect of those periods. The amount of damages is yet to be ascertained, but will be nominal if it is found that the Appellant would have been detained even if his detention had been reviewed as the policy required. Lord Brown gives a dissenting judgment, with which Lord Rodger agrees. The Secretary of State was under a public law duty to adhere to the terms of the policy relating to reviews unless there were good reasons not to: [36], [39], [66]. The majority of the Court holds that the Respondents unlawful failure to review the Appellants detention, as required by the policy, resulted in his detention being unlawful. The court rejects the argument that because the breach of public law related to a procedural requirement, it did not affect the legality of the detention: [69] [73], [85]. Some procedural requirements go to the legality of the detention and some do not: [71]. The policy was sufficiently closely related to the authority to detain to qualify the Secretary of States discretion under the 1971 Act: [51]. The very point of the review was to ensure that the detention was lawful: [73], [86]. The public law error bore directly on the decision to detain the Appellant and therefore satisfied the test adopted by the majority in Lumba for determining when a public law error will result in detention being unlawful: [42], [88]. The Appellants detention was not unlawful, however, where the only defect in the decision to continue detention was that the review had been carried out by an official of the wrong grade: [60]. As the Court also held in Lumba, it was no defence to the claim that there were grounds which justified the Appellants detention: [54], [73], [88]. False imprisonment is a trespass to the person and actionable in itself, without proof of loss or damage: [74]. The result of the reviews which should have taken place is, however, relevant to assessing damages. A defendant is liable only for the loss which his wrongful act has caused. The full facts of this case are yet to be established, but if it is found that the claimant would not have been released had proper reviews been carried out, he will only be entitled to nominal damages: [55] [56], [74], [89]. Lord Brown (with whom Lord Rodger agrees) would have held that the failure to review the Appellants detention did not result in the Appellants detention being unlawful. They hold that the policy did not confer upon the Appellant an entitlement to be released, but only an entitlement to be reviewed for release: [107]. Once properly detained, a detainee remains lawfully imprisoned unless and until released on bail or by the Secretary of States direction, or he establishes a substantive entitlement to release: [111]. Lumba does not compel the majoritys result, because it was concerned with a substantive entitlement under the policy and not a procedural one, and because it also held that not every breach of public law resulted in detention being unlawful: [116] [118].

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There are two appeals before the court: Rubin v Eurofinance SA (Rubin) and New Cap Reinsurance Corpn Ltd v Grant (New Cap). These appeals raise an important and novel issue in international insolvency law. The issue is whether, and if so, in what circumstances, an order or judgment of a foreign court (on these appeals the United States Bankruptcy Court for the Southern District of New York, and the New South Wales Supreme Court) in proceedings to adjust or set aside prior transactions, eg preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England. The appeals also raise the question whether enforcement may be effected through the international assistance provisions of the UNCITRAL Model Law (implemented by the Cross Border Insolvency Regulations 2006 (SI 2006/1030) (CBIR)), which applies generally, or the assistance provisions of section 426 of the Insolvency Act 1986, which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York (the US Bankruptcy Court) in default of appearance for about US$10m under State and Federal law in respect of fraudulent conveyances and transfers was enforced in England at common law. In New Cap (in which the Court of Appeal was bound by the prior decision in Rubin) a default judgment of the New South Wales Supreme Court, Equity Division, for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (the 1933 Act), and, alternatively, pursuant to powers under section 426 of the Insolvency Act 1986. In each of the appeals it was accepted or found that the party against whom they were given was neither present (nor, for the purposes of the 1933 Act, resident) in the foreign country nor submitted to its jurisdiction (which are the relevant conditions for enforceability at common law and under the 1933 Act), but that those conditions did not apply to judgments or orders in foreign insolvency proceedings. In addition to the arguments on these two appeals, the court has had the great benefit of written submissions on behalf of parties to proceedings pending in Gibraltar. Those proceedings are to enforce default judgments entered by the US Bankruptcy Court for some $247m in respect of alleged preferential payments to companies in the British Virgin Islands and Cayman Islands arising out of the notorious Ponzi scheme operated by Mr Bernard Madoff. It has been necessary to emphasise that the judgments in all three matters were in default of appearance, because if the judgment debtors had appeared and defended the proceedings in the foreign courts, the issues on these appeals would not have arisen. The reason is that the judgments would have been enforceable on the basis of the defendants submission to the jurisdiction of the foreign court. Enforcement would have been at common law, or, in the New Cap case either under the common law, or under the 1933 Act which substantially reproduces the common law principles there is a subsidiary issue on this appeal as to whether the 1933 Act applies to judgments in insolvency proceedings, dealt with in section IX below. Under the common law a court of a foreign country has jurisdiction to give a judgment in personam where (among other cases) the judgment debtor was present in the foreign country when the proceedings were instituted, or submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings. In the case of the 1933 Act the foreign court is deemed to have jurisdiction where the judgment debtor submitted to the jurisdiction by voluntarily appearing in the proceedings otherwise than for the purpose (inter alia) of contesting the jurisdiction; or where the judgment debtor was resident at the time when the proceedings were instituted, or being a body corporate had an office or place of business there: section 4(2)(a)(i),(iv). The Dicey Rule The general principle has been referred to on these appeals, by reference to the common law rule set out in Dicey, Morris & Collins, Conflict of Laws (14th edition, 2006), as Diceys Rule 36. This was only by way of shorthand, because the rules in the 1933 Act are not quite identical, and in any event has been purely for convenience, because the Rule has no standing beyond the case law at common law which it seeks to re state. What was Rule 36 now appears (incorporating some changes which are not material on this appeal) as Rule 43 in the new 15th edition, and I shall refer to it as the Dicey Rule. So far as relevant, Rule 43 (Dicey, Morris and Collins, Conflict of Laws, 15th ed, 2012, para 14R 054) states: a court of a foreign country outside the United Kingdom has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it was given in the following cases: First CaseIf the person against whom the judgment was given was, at the time the proceedings were instituted, present in the foreign country. Second CaseIf the person against whom the judgment was given was claimant, or counterclaimed, in the proceedings in the foreign court. Third CaseIf the person against whom the judgment was given submitted to the jurisdiction of that court by voluntarily appearing in the proceedings. Fourth CaseIf the person against whom the judgment was given had before the commencement of the proceedings agreed, in respect of the subject matter of the proceedings, to submit to the jurisdiction of that court or of the courts of that country. The first edition of Dicey in 1896 stated (Rule 80) that the foreign court would have jurisdiction if the defendant was resident [or present?] in the foreign country so as to have the benefit, and be under the protection, of the laws thereof. By the 6th edition in 1949 the formula was repeated by Professor Wortley (Rule 68) but without the doubt about presence as a basis of jurisdiction. In the 8th edition in 1958 Dr (later Professor) Clive Parry removed the phrase (then Rule 189) about the benefit and protection of the foreign countrys laws. The Rule, subsequently edited by Dr Morris and then by Professor Kahn Freund, remained in that form until the decision in Adams v Cape Industries plc [1990] Ch 433 (CA), which established that presence in the foreign jurisdiction, as opposed to residence, was a sufficient basis for the recognition of foreign judgments. Then, edited by myself and later by Professor Briggs, the Rule took substantially its present form in the 12th edition in 1993. The theoretical basis for the enforcement of foreign judgments at common law is that they are enforced on the basis of a principle that where a court of competent jurisdiction has adjudicated a certain sum to be due from one person to another, a legal obligation arises to pay that sum, on which an action of debt to enforce the judgment may be maintained: Williams v Jones (1845) 13 M & W 628, 633 per Parke B; Godard v Gray (1870) LR 6 QB 139, 147, per Blackburn J; Adams v Cape Industries plc [1990] Ch 433, 513; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484, per Lord Bridge of Harwich. As Blackburn J said in Godard v Gray, this was based on the mode of pleading an action on a foreign judgment in debt, and not merely as evidence of the obligation to pay the underlying liability: LR 6 QB 139, 150. But this is a purely theoretical and historical basis for the enforcement of foreign judgments at common law. It does not apply to enforcement under statute, and makes no practical difference to the analysis, nor, in my judgment, to the issues on these appeals. Consequently, if the judgments in issue on the appeals are regarded as judgments in personam within the Dicey Rule, then they will only be enforced in England at common law if the judgment debtors were present (or, if the 1933 Act applies, resident) in the foreign country when the proceedings were commenced, or if they submitted to its jurisdiction. It is common ground that the judgment debtors were not present or resident, respectively, in the United States or in Australia, although there is an issue as to whether the New Cap defendants submitted to the jurisdiction of the Australian court, which is dealt with in section VIII below. Insolvency proceedings and the international dimension There are some general remarks to be made. First, from as early as the mid 18th century the English courts have recognised the effect of foreign personal bankruptcies declared under the law of the domicile: Solomons v Ross (1764) 1 H Bl 131n, where Dutch merchants were declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt in priority to an English creditor of the merchants who had attached the debt after the bankruptcy: see Nadelmann, Conflict of Laws: International and Interstate (1972), p 273; Blom Cooper, Bankruptcy in Private International Law (1954), pp 107 108. In Galbraith v Grimshaw [1910] AC 508 Lord Dunedin said that there should be only one universal process of the distribution of a bankrupts property and that, where such a process was pending elsewhere, the English courts should not allow steps to be taken in its jurisdiction which would interfere with that process (p 513): Now so far as the general principle is concerned it is quite consistent with the comity of nations that it should be a rule of international law that if the court finds that there is already pending a process of universal distribution of a bankrupts effects it should not allow steps to be taken in its territory which would interfere with that process of universal distribution. Second, in the case of corporations the English courts have exercised a winding up jurisdiction which is wider than that which at common law they have accorded to foreign courts. The court exercises jurisdiction to wind up a foreign company if there is a sufficient connection between the company and England, there are persons who would benefit from the making of a winding up order, and there are persons interested in the distribution of assets of the company who are persons over whom the court can exercise jurisdiction: see Dicey, 15th ed, para 30R 036. But as regards foreign liquidations, the general rule is that the English court recognises at common law only the authority of a liquidator appointed under the law of the place of incorporation (Dicey, 15th ed, para 30R 100). That is in contrast to the modern approach in the primary international and regional instruments, the EC Insolvency Regulation on Insolvency Proceedings (Council Regulation (EC) No 1346/2000) (the EC Insolvency Regulation) and the Model Law, which is that the jurisdiction with international competence is that of the country of the centre of main interests of the debtor (an expression not without its own difficulties). It is ultimately derived from the civil law concept of a traders domicile, and was adopted in substance in the draft EEC Convention of 1980 as a definition of the debtors centre of administration: see Report by M Lemontey on the draft EEC Bankruptcy Convention, Bulletin of the European Communities, Supp 2/82, p 58; American Law Institute, Transnational Insolvency: Global Principles for Co operation in International Insolvency Cases (2012), Principle 13, pp 83 et seq. Third, it is not only in recent times that there have been large insolvency proceedings with significant cross border implications. Even before then there were the Russian Bank cases in the 1930s (arising out of the nationalisation and dissolution of the banks by the Soviet Government) and the Barcelona Traction case in the 1940s and 1950s (see In re Barcelona Traction, Light and Power Co Ltd (second phase) (Belgium v Spain) [1970] ICJ Rep 69), but there is no doubt that today international co operation in cross border insolvencies has become a pressing need. It is only necessary to recall the bankruptcies or liquidations of Bank of Credit and Commerce International, Maxwell Communications, or Lehman Brothers, each with international businesses, assets in many countries, and potentially competing creditors in different countries with different laws. There is not only a need to balance all these interests but also to provide swift and effective remedies to combat the use of cross border transfers of assets to evade and to defraud creditors. Fourth, there is no international unanimity or significant harmonisation on the details of insolvency law, because to a large extent insolvency law reflects national public policy, for example as regards priorities or as regards the conditions for the application of avoidance provisions: the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, per Lord Hoffmann. Fifth, there has been a trend, but only a trend, to what is called universalism, that is, the administration of multinational insolvencies by a leading court applying a single bankruptcy law: Westbrook, A Global Solution to Multinational Default (2000) 98 Mich L Rev 2276, 2277. What has emerged is what is called by specialists modified universalism. The meaning of the expression universalism has undergone a change since the time it was first used in the 19th century, and it later came to be contrasted with the doctrine of unity. In 1834 Story referred to the theory that assignments under bankrupt or insolvent laws were, and ought to be, of universal operation to transfer movable property, in whatever country it might be situate, and concluded that there was great wisdom in adopting the rule that an assignment in bankruptcy should operate as a complete and valid transfer of all his movable property abroad, as well as at home, and for a country to prefer an attaching domestic creditor to a foreign assignee or to foreign creditors could hardly be deemed consistent with the general comity of nations [T]he true rule is, to follow out the lead of the general principle that makes the law of the owners domicil conclusive upon the disposition of his personal property, citing Solomons v Ross as supporting that doctrine: Story, Commentaries on the Conflict of Laws, 1st ed (1834), pp 340 341, para 406. Professor Cheshire, in his first edition (Cheshire, Private International Law, 1935, pp 375 376), said that although English law neglects the doctrine of unity it recognizes the doctrine of universality. What he meant was that English law was committed to separate independent bankruptcies in countries where the assets were situate, rather than one bankruptcy in the country of the domicile (the doctrine of unity), but also accepted the title of the foreign trustee to English movables provided that no bankruptcy proceedings had begun within England (universality). He cited Solomons v Ross for this proposition: The English Courts have consistently applied the doctrine of universality, according to which they hold that all movable property, no matter where it may be situated at the time of the assignment by the foreign law, passes to the trustee. In In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 30, Lord Hoffmann said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. and in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508, para 16 he said, speaking for the Privy Council: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated The US Bankruptcy Court accepted in Re Maxwell Communication Corp, 170 BR 800 (Bankr SDNY 1994) that the United States courts have adopted modified universalism as the approach to international insolvency: the United States in ancillary bankruptcy cases has embraced an approach to international insolvency which is a modified form of universalism accepting the central premise of universalism, that is, that assets should be collected and distributed on a worldwide basis, but reserving to local courts discretion to evaluate the fairness of home country procedures and to protect the interests of local creditors. International co operation and assistance Jurisdiction in international bankruptcy has been the subject of multilateral international instruments at least since the Montevideo Treaty on International Commercial Law of 1889, Title X, although bilateral treaties go back much further, and the subject of international recognition and co operation in insolvency was the subject of early discussion by the International Law Association (1879), the Institut de droit international (1888 1912) and the Hague Conference on Private International Law (1904): Nadelmann, op. cit. pp 299 et seq. In more modern times, the European Convention on Certain International Aspects of Bankruptcy (the Istanbul Convention) was concluded under the auspices of the Council of Europe in 1990, but never came into force. The European Community/Union initiative took 40 years to come to fruition. In 1960 the European Community embarked on a project for a Bankruptcy Convention, which resulted in a draft Convention in 1980, to which there was significant opposition. But the project was renewed in 1989, and this led to the tabling of a draft Convention in 1995, which provided that it would only come into force when signed by all 15 of the then member states. The United Kingdom, however, alone of the states, did not sign the Convention (for political reasons), and it never came into force. In 1999 the project was re launched as a Council Regulation, which resulted in the EC Insolvency Regulation in 2000. The United Nations Commission on International Trade Law (UNCITRAL) adopted a Model Law on cross border insolvency in 1997. The Model Law was adopted following initiatives in the 1980s by the International Bar Association and later by INSOL International (the International Association of Restructuring, Insolvency and Bankruptcy Professionals). In 1993 UNCITRAL adopted a resolution to investigate the feasibility of harmonised rules of cross border insolvencies. In 1994 an expert committee was assembled consisting of members of INSOL and representatives of the UNCITRAL Secretariat, and following a series of reports and drafts, UNCITRAL adopted the Model Law in May 1997. The Model Law provides for a wide range of assistance to foreign courts and office holders. It has been implemented by 19 countries and territories, including the United States and Great Britain (although by some states only on the basis of reciprocity). It was not enacted into law in Great Britain until 2006, by the CBIR. Apart from the EC Insolvency Regulation, none of these instruments deals expressly with the enforcement of judgments in insolvency proceedings. The question whether the Model Law does so by implication will be considered below in section IV. Consequently, there are four main methods under English law for assisting insolvency proceedings in other jurisdictions, two of which are part of regionally or internationally agreed schemes. First, section 426 of the Insolvency Act 1986 provides a statutory power to assist corporate as well as personal insolvency proceedings in countries specified in the Act or designated for that purpose by the Secretary of State. All the countries to which it currently applies are common law countries or countries sharing a common legal tradition with England. They include Australia: the Co operation of Insolvency Courts (Designation of Relevant Countries and Territories) Order 1986 (SI 1986/2123). Second, the EC Insolvency Regulation applies to insolvency proceedings in respect of debtors with their centres of main interests (COMI) within the European Union (excluding Denmark). The EC Insolvency Regulation has no role in the present appeal because none of the debtors has its centre of main interests in the European Union. Third, the CBIR came into force on 4 April 2006, implementing the Model Law. The CBIR supplement the common law, but do not supersede it. Article 7 of the Model Law provides: Nothing in this Law limits the power of a court or British insolvency officeholder to provide additional assistance to a foreign representative under other laws of Great Britain. Article 23 of the Model Law allows avoidance claims to be made by foreign representatives under the Insolvency Act 1986, and the CBIR apply to preferences after they came into force on 4 April 2006. The UNCITRAL Guide to Enactment (to which resort may be had for the purposes of interpretation of the CBIR) also emphasises that the Model Law enables enacting states to make available to foreign insolvency proceedings the type of relief which would be available in the case of a domestic insolvency (UNCITRAL Legislative Guide on Insolvency Law (2005), Annex III, Ch IV, p 311, para 20(b)): The Model Law presents to enacting states the possibility of aligning the relief resulting from recognition of a foreign proceeding with the relief available in a comparable proceeding in the national law. Fourth, at common law the court has power to recognise and grant assistance to foreign insolvency proceedings. The common law principle is that assistance may be given to foreign officeholders in insolvencies with an international element. The underlying principle has been stated in different ways: recognition carries with it the active assistance of the court: In re African Farms Ltd [1906] TS 373, 377; This court will do its utmost to co operate with the United States Bankruptcy Court and avoid any action which might disturb the orderly administration of [the company] in Texas under ch 11: Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112, 117. In Credit Suisse Fides Trust v Cuoghi [1998] QB 818, 827, Millett LJ said: In other areas of law, such as cross border insolvency, commercial necessity has encouraged national courts to provide assistance to each other without waiting for such co operation to be sanctioned by international convention It is becoming widely accepted that comity between the courts of different countries requires mutual respect for the territorial integrity of each others jurisdiction, but that this should not inhibit a court in one jurisdiction from rendering whatever assistance it properly can to a court in another in respect of assets located or persons resident within the territory of the former. The common law assistance cases have been concerned with such matters as the vesting of English assets in a foreign officeholder, or the staying of local proceedings, or orders for examination in support of the foreign proceedings, or orders for the remittal of assets to a foreign liquidation, and have involved cases in which the foreign court was a court of competent jurisdiction in the sense that the bankrupt was domiciled in the foreign country or, if a company, was incorporated there. An early case of recognition was Solomons v Ross 1 H B1 131n, where, as I have said, the bankruptcy was in Holland, and the bankrupts were Dutch merchants declared bankrupt in Amsterdam, and the Dutch curator was held entitled to recover an English debt: see also Bergerem v Marsh (1921) B&CR 195 (English member of Belgian firm submitted to Belgian bankruptcy proceedings: movable property in England vested in Belgian trustee). One group of cases involved local proceedings which were stayed or orders which were discharged because of foreign insolvency proceedings. Thus in Banque Indosuez SA v Ferromet Resources Inc [1993] BCLC 112 an English injunction against a Texas corporation in Chapter 11 proceedings was discharged; cf In re African Farms Ltd [1906] TS 373 (execution in Transvaal by creditor in proceedings against English company in liquidation in England stayed by Transvaal court), applied in Turners & Growers Exporters Ltd v The Ship Cornelis Verolme [1997] 2 NZLR 110 (Belgian shipowner in Belgian bankruptcy: ship released from arrest); Modern Terminals (Berth 5) Ltd v States Steamship Co [1979] HKLR 512 (stay in Hong Kong of execution against Nevada corporation in Chapter 11 proceedings in United States federal court in California), followed in CCIC Finance Ltd v Guangdong International Trust & Investment Corpn [2005] 2 HKC 589 (stay of Hong Kong proceedings against Chinese state owned enterprise in Mainland insolvency). Cases of judicial assistance in the traditional sense include In re Impex Services Worldwide Ltd [2004] BPIR 564, where a Manx order for examination and production of documents was made in aid of the provisional liquidation in England of an English company. Cases involving remittal of assets from England to a foreign office holder include In re Bank of Credit and Commerce International SA (No 10) [1997] Ch 213 (Luxembourg liquidation of Luxembourg company); and In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (the view of Lord Hoffmann and Lord Walker) (Australian liquidation of Australian insurance company); and In re SwissAir Schweizerische Luftverkehr Aktiengesellschaft [2009] EWHC 2099 (Ch), [2010] BCC 667 (Swiss liquidation of Swiss company). III The Cambridge Gas and HIH decisions The opinion of Lord Hoffmann, speaking for the Privy Council, in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 (Cambridge Gas) and his speech in the House of Lords in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852 (HIH) have played such a major role in the decisions of the Court of Appeal and in the arguments of the parties on these appeals that it is appropriate to put them in context at this point. Cambridge Gas The broad facts of Cambridge Gas were these. In 1997 a shipping business was initiated by a Swiss businessman, Mr Giovanni Mahler. The investors borrowed $300m on the New York bond market and the business bought five gas transport vessels. The venture was a failure, and ended with a Chapter 11 proceeding in the US Bankruptcy Court in New York. The question for the Privy Council on appeal from the Isle of Man was whether an order of the New York court was entitled to implementation in the Isle of Man. The corporate structure of the business was that the investors owned, directly or indirectly, a Bahamian company called Vela Energy Holdings Ltd (Vela). Vela owned (through an intermediate Bahamian holding company) Cambridge Gas, a Cayman Islands company. Cambridge Gas owned directly or indirectly about 70% of the shares of Navigator Holdings plc (Navigator), an Isle of Man company. Navigator owned all the shares of an Isle of Man company which in turn owned companies which each owned one ship. In 2003 Navigator petitioned the US Bankruptcy Court for relief under Chapter 11 of the US Bankruptcy Code, which allows insolvent companies, under supervision of the court and under cover of a moratorium, to negotiate a plan of reorganisation with their creditors. The petition was initiated by the investor interests, who proposed a plan to sell the ships nominally by auction but in fact to the previous investors, but the bondholders did not accept this and proposed their own plan under which the assets of Navigator would be vested in the creditors and the equity interests of the previous investors would be extinguished. The judge rejected the investors plan and approved the creditors plan. The mechanism which the plan used to vest the assets in the creditors was to vest the shares in Navigator in their representatives, ie, the creditors committee. That would enable them to control the shipping companies and implement the plan. The plan provided that upon entry of the confirmation order title to all the common stock of Navigator would vest in the creditors committee to enable it to implement the plan. The order of the New York court confirming the plan recorded the intention of the court to send a letter of request to the Manx court asking for assistance in giving effect to the plan and confirmation order and such a letter was sent. The committee of creditors then petitioned the Manx court for an order vesting the shares in their representatives. At this point it is necessary to emphasise two features of the case. The first feature is that Navigator was an Isle of Man company and 70% of its common stock was owned directly or indirectly by Cambridge Gas. Under the normal principles of the conflict of laws the shares would have been situate in the Isle of Man: Dicey, 15th ed, para 22 045. That is why Lord Hoffmann said, at para 6, that the New York court was aware that the order vesting title to the common stock of Navigator in the creditors committee could not automatically have effect under the law of the Isle of Man; and also why he accepted (paras 12 13) that if the judgment were a judgment in rem it could not affect title to shares in the Isle of Man. The second feature which it is necessary to emphasise is that Cambridge Gas was a Cayman Islands company which (as held by the Manx courts) had not submitted to the jurisdiction of the US Bankruptcy Court. Lord Hoffmann said, at para 8, that the position that Cambridge Gas had not submitted to the jurisdiction of the US Bankruptcy Court bore little relation to economic reality since the New York proceedings had been conducted on the basis that the contest was between rival plans put forward by the shareholders and the creditors; Vela, the parent company of Cambridge Gas, participated in the Chapter 11 proceedings; and they had been instituted by Navigator. Consequently the claim by Cambridge Gas that it had not submitted was highly technical, but there was no appeal from the decisions of the Manx courts that it had not submitted. But Lord Hoffmann also accepted that if the order of the US Bankruptcy Court were to be regarded as a judgment in personam it would not be entitled to recognition or enforcement in the Isle of Man because the New York court had no personal jurisdiction over Cambridge [Gas]: para 10. Nevertheless the Privy Council held that the plan could be carried into effect in the Isle of Man. The reasoning was as follows: first, if the judgment had to be classified as in personam or in rem the appeal would have to be allowed, but bankruptcy proceedings did not fall into either category: [13] Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. [14] The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. [15] [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. Second, the principle of universality underlay the common law principles of judicial assistance in international insolvency, and those principles were sufficient to confer jurisdiction on the Manx court to assist, by doing whatever it could have done in the case of a domestic insolvency: paras 21 22. Third, exactly the same result could have been achieved by a scheme under the Isle of Man Companies Act 1931. Fourth, it was no objection to implementation of the plan in the Isle of Man that the shares in Navigator belonged to a person (Cambridge Gas) which was not a party to the bankruptcy proceedings for these reasons, at para 26: [A] share is the measure of the shareholders interest in the company: a bundle of rights against the company and the other shareholders. As against the outside world, that bundle of rights is an item of property a chose in action. But as between the shareholder and the company itself, the shareholders rights may be varied or extinguished by the mechanisms provided by the articles of association or the Companies Act. One of those mechanisms is the scheme of arrangement under section 152 [of the Isle of Man Companies Act 1931]. As a shareholder Cambridge is bound by the transactions into which the company has entered, including a plan under Chapter 11 or a scheme under section 152. At this point it is necessary to point out that the opinion in Cambridge Gas does not articulate any reason for holding that, in the eyes of the Manx court, the US Bankruptcy Court had international jurisdiction in either of two relevant senses. The first sense is the jurisdiction of the US Bankruptcy Court in relation to the Chapter 11 proceedings themselves. The entity which was in Chapter 11 was Navigator. The English courts exercise a wider jurisdiction in bankruptcy and (especially) in winding up than they recognise in foreign courts. At common law, the foreign court which is recognised as having jurisdiction in personal bankruptcy is the court of the bankrupts domicile or the court to which the bankrupt submitted (Dicey, 15th ed, para 31R 059) and the foreign court with corresponding jurisdiction over corporations is the court of the place of incorporation (Dicey, 15th ed, para 30R 100). Under United States law the US Bankruptcy Court has jurisdiction over a debtor, and such a debtor must reside or have a domicile or place of business, or property in the United States. From the standpoint of English law, the US Bankruptcy Court had international jurisdiction because although Navigator was not incorporated in the United States, it had submitted to the jurisdiction by initiating the proceedings. The second sense in which international jurisdiction is relevant is the jurisdiction over the third party, Cambridge Gas, and its shares in Navigator. Cambridge Gas was not incorporated in the United States, and it was held by the Isle of Man courts that it had not submitted to the jurisdiction of the US Bankruptcy Court (and this was, as I have said, accepted with evident reluctance by the Privy Council). The property which was the subject of the order of the US Bankruptcy Court was shares in an Isle of Man company. Consequently the property dealt with by the US Bankruptcy Court was situate, by Manx rules of the conflict of laws, in the Isle of Man, and the shareholder relationship was governed by Manx law. Cambridge Gas was the subject of brief comment a few months later by the Privy Council in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85. The decision in that case was simply that a Kenyan judgment deciding that A was bound to sell shares in a Manx company to B was entitled to recognition in the Isle of Man. It resulted in an order in personam against a person subject to the jurisdiction of the Kenyan court, and was not a judgment in rem against property in the Isle of Man and outside the jurisdiction of the Kenyan court, because the fact that a judicial determination determines or relates to the existence of property rights between parties does not in itself mean that it is in rem. Lord Mance, speaking for the Board, said, at para 23: In Cambridge Gas the Board touched on the concepts of in personam and in rem proceedings, but held that the bankruptcy order with which it was concerned fell into neither category. Its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. The decision in HIH does not deal with foreign judgments. HIH concerned four Australian insurance companies which were being wound up in Australia and in respect of which provisional liquidators had been appointed in England. The question was whether the English court had power to direct remission of assets collected in England to Australia, notwithstanding that there were differences between the English and Australian statutory regimes for distribution which meant that some creditors would benefit from remission whilst some creditors would be worse off. The House of Lords unanimously directed that remission should take place, but the reasons differed. The reasoning of the majority (Lord Scott of Foscote and Lord Neuberger of Abbotsbury, with Lord Phillips of Worth Matravers agreeing)) was based exclusively on the statutory power to assist foreign insolvency proceedings under section 426 of the Insolvency Act 1986, but Lord Hoffmann (with whom Lord Walker agreed) also considered that such a power existed at common law. Lord Hoffmann characterised the principle of universality as a principle of English private international law that, where possible, there should be a unitary insolvency proceeding in the courts of the insolvents domicile which receives worldwide recognition and which should apply universally to all the bankrupts assets, at para 6: Despite the absence of statutory provision, some degree of international co operation in corporate insolvency had been achieved by judicial practice. This was based upon what English judges have for many years regarded as a general principle of private international law, namely that bankruptcy (whether personal or corporate) should be unitary and universal. There should be a unitary bankruptcy proceeding in the court of the bankrupt's domicile which receives worldwide recognition and it should apply universally to all the bankrupt's assets. Other parts of Lord Hoffmanns speech have already been quoted above, and it is only necessary for present purposes to recall that he said that (a) the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme (at para 19) and (b) that the purpose of the principle of universality was to ensure that the debtors assets were distributed under one scheme of distribution, and that the principle required that English courts should co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution: para 30. Subsequent treatment of Cambridge Gas The decision in Cambridge Gas was not applied by the Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 (to which I shall revert) and has been subject to academic criticism. Professor Briggs has expressed the view ((2006) 77 BYIL 575, 581) that the decision in [Cambridge Gas] is wrong, for it requires a Manx court to give effect to a confiscation order made by a foreign court of property belonging to a person who was not subject to the personal jurisdiction of the foreign court. That a Manx court could have done so itself is nothing to the point. I shall return to the question whether it was correctly decided. IV The cases before the court and the issues Eurofinance SA is a company incorporated in the British Virgin Islands. It was established by Adrian Roman, the second appellant on the Rubin appeal. Eurofinance SA settled The Consumers Trust (TCT) under a deed of trust made in 2002 under English law, with trustees resident in England, of whom two were accountants and two were solicitors. TCT was established to carry on a sales promotion scheme in the USA and Canada. The class of beneficiaries was made up of persons who had successfully participated in the scheme by claiming validly in certain sales promotions owned and operated by Eurofinance SA. The trustees were to hold the capital and income of TCT for the beneficiaries and subject thereto for Eurofinance SA as beneficiary in default. The promotion, known as the Cashable Voucher Programme, was entered into with participating merchants in the United States and Canada who, when they sold products or services to their customers, offered those customers a cashable voucher comprising a rebate of up to 100% of the purchase price for the product or service. Under the terms of the voucher the rebate was to be paid to customers in three years time provided that certain conditions were followed by the customer involving the completion by the customer of both memory and comprehension tests. The participating merchants paid TCT 15% of the face value of each cashable voucher issued by the merchant during a week. TCT retained 40% of the payments received (ie 6% of the face value of each cashable voucher). About one half of the 60% balance received from merchants was paid to Eurofinance SA (and so effectively to Adrian Roman) and the remainder was paid to others involved in the operation of the programme, such as solicitors, accountants and US lawyers. From about 2002 Adrian Romans sons, Nicholas Roman and Justin Roman, each began to receive about 2%. The trustees maintained bank accounts in the USA and Canada where the payments they had received from merchants were kept. Since the trustees only retained 6% of the face value of the issued vouchers, the success of the scheme necessarily involved the consumers either forgetting to redeem the vouchers or being unsuccessful in navigating the process required to be followed in order to obtain payment. When the scheme folded in 2005 the trustees held nearly US$10m in bank accounts in the United States and Canada. By about 2005 TCTs business ceased after the Attorney General of Missouri brought proceedings under Missouris consumer protection legislation which resulted in a settlement involving a payment by the trustees of US$1,650,000 and US$200,000 in costs. When it became clear that further proceedings were likely to be brought by Attorneys General in other states, that the number of consumer claims would increase, and that TCT would not have sufficient funds to meet all the valid claims of its beneficiaries, in November 2005 Adrian Roman caused Eurofinance to apply for the appointment by the High Court of the respondents on the Rubin appeal, David Rubin and Henry Lan, as receivers of TCT for the purposes of causing TCT then to obtain protection under Chapter 11 of Title 11 of the United States Code (Chapter 11). The English court was told that Chapter 11 reorganisation proceedings would result in an automatic stay of proceedings against TCT, would enable the receivers to reject unprofitable or burdensome executory contracts, and might result in the recovery as preferential payments of sums paid to consumers and to the Missouri Attorney General. In November 2005 the respondents were appointed as receivers by order of Lewison J, and in the following month, the respondents and the trustees then caused TCT to present a voluntary petition to the US Bankruptcy Court for relief under Chapter 11. TCT was placed into Chapter 11 proceedings in New York as virtually all of its 60,000 creditors were located in the United States or Canada as were its assets. As a matter of United States bankruptcy law, TCT could be the subject matter of a petition for relief under Chapter 11 as a debtor. This is because a trust such as TCT is treated under Chapter 11 as a separate legal entity under the classification of a business trust. A joint plan of liquidation for TCT was prepared, and in September 2007 Lewison J ordered that the respondents (as receivers) be at liberty to seek approval of the plan from the US Bankruptcy Court. Under the terms of the plan the respondents were appointed legal representatives of TCT and given the power to commence, prosecute and resolve all causes of action against potential defendants including the appellants. The US Bankruptcy Court approved the plan in October 2007, and appointed the respondents as foreign representatives of the debtor to make application to the Chancery Division in London for recognition of the Chapter 11 proceedings as a foreign main proceeding under the CBIR; and to seek aid, assistance and co operation from the High Court in connection with the Chapter 11 proceedings, and, in particular to seek the High Courts assistance and co operation in the prosecution of litigation which might be commenced in the US Bankruptcy Court including the enforcement of judgments of this court that may be obtained against persons and entities residing or owning property in Great Britain In December 2007 proceedings were commenced in the US Bankruptcy Court by the issue of a complaint against a number of defendants including the appellants. These claims fall within the category of adversary proceedings under the US bankruptcy legislation, and I will use this term to refer to them. The adversary proceedings comprised a number of claims including causes of action arising under the US Bankruptcy Code, which related to funds received by TCT from merchants which were paid out to the defendants (including the appellants), or to amounts transferred to the defendants within one year prior to the commencement of the TCT bankruptcy case including the appellants. The defendants were the appellants and other parties involved with the programme. The appellants were served personally with the complaint commencing the adversary proceedings but did not defend, or participate, in the adversary proceedings, although it appears from a judgment of the US Bankruptcy Court that Eurofinance SA had filed a notice of appearance in the main Chapter 11 proceedings (Order of 22 July 2008, paras 42 43). On 22 July 2008 default and summary judgment was entered against the appellants in the adversary proceedings by the US Bankruptcy Court. The US Bankruptcy Court entered a judgment against the appellants on the ten counts of the complaint. In November 2008 the respondents applied as foreign representatives to the Chancery Division for, inter alia, (a) an order that the Chapter 11 proceedings be recognised as a foreign main proceeding (b) an order that the respondents be recognised as foreign representatives within the meaning of article 2(j) of the Model Law in relation to those proceedings; and (c) an order that the US Bankruptcy Courts judgment be enforced as a judgment of the English court in accordance with CPR Pts 70 and 73. Nicholas Strauss QC, sitting as a deputy judge of the Chancery Division, recognised the Chapter 11 proceedings (including the adversary proceedings) as foreign main proceedings, and the respondents as foreign representatives, but refused to enforce the judgments in the adversary proceedings because (a) at common law the English court will not enforce a judgment in personam contrary to the normal jurisdictional rules for foreign judgments; and (b) there was nothing in CBIR, articles 21(e) (realisation of assets) and 25 (judicial co operation), which justified the enforcement of judgments in insolvency proceedings. At first instance the respondents sought to enforce the entirety of the US Bankruptcy Courts judgment, but before the Court of Appeal they sought an order for the enforcement of those parts of the judgment which were based on state or federal avoidance laws, including fraudulent conveyance under State Fraudulent Conveyance Laws, and under federal law, namely fraudulent transfers under section 548(a) of 11 USC; liability of transferees of avoided transfers under section 550; fraudulent transfers under section 548(b) and liability of transferees of avoided transfers under section 550. The Court of Appeal (Ward and Wilson LJJ and Henderson J) allowed an appeal, and held that the judgment was enforceable: [2010] EWCA Civ 895, [2011] Ch 133. New Cap In the New Cap appeal the appellants are members of Lloyds Syndicate Number 991 (the Syndicate) for the 1997 and 1998 years of account. The respondents are a reinsurance company (New Cap) and its liquidator, a partner in Ernst & Young in Sydney. New Cap is an Australian company, which was licensed as an insurance company in Australia under the Australian Corporations Act 2001 (Cth) (the Australian Act). New Cap did not conduct insurance business in any country other than Australia, and the majority of New Cap's business was generated through reinsurance brokers conducting business in Australia and the balance was generated from overseas insurance brokers. New Cap reinsured the Syndicate in relation to losses occurring on risks attaching during the 1997 and 1998 years of account under reinsurance contracts which were subject to English law, and contained London arbitration clauses and also (oddly) English jurisdiction clauses. The reinsurance contracts were placed with New Cap by the Syndicates Australian broker, which was the sub broker for the Syndicates London broker. Each reinsurance contract contained a commutation clause. The Syndicate and New Cap entered into a commutation agreement to commute the reinsurances with effect from 11 December 1998. Under the commutation agreement, New Cap agreed to make a lump sum payment to the Syndicate by 31 December 1998 in consideration for its release from liability under the reinsurance contracts. The payments were calculated on the basis of a 7.5% discount and a deduction from premium. New Cap made payment pursuant to the commutation agreements in two instalments of US$2,000,000 and US$3,980,600 in January 1999. The commutation payments were made from a bank account held by New Cap at the Sydney branch of the Commonwealth Bank of Australia to a bank account in London. The second respondent was appointed the administrator of New Cap by a resolution of its directors in April 1999. In September 1999 the creditors of New Cap resolved that New Cap be wound up and the second respondent (the liquidator) was appointed its liquidator. Under the Australian legislation, the winding up is deemed to have commenced on the day on which the administration began. In April 2002 the liquidator caused proceedings to be commenced against the Syndicate in the Supreme Court of New South Wales alleging that because New Cap was insolvent when the commutation payments were made in January 1999, and because those payments were made within the period of six months ending on the date when the administrator was appointed, they constituted unfair preferences and were thus voidable transactions under Part 5.7B of the Australian Act. The Syndicate (which does not accept that the payments were preferences) refused to accept service of the Australian proceedings. The liquidator obtained leave from the Australian court to serve the Australian proceedings on the Syndicates English solicitors in London. The Syndicate did not enter an appearance to the proceedings, but corresponded with the liquidators solicitors, including commenting on an Independent Expert's Report to be used by the respondents as evidence of New Caps insolvency in all of the avoidance proceedings including the proceedings against the Syndicate. The Australian court (White J in a judgment in September 2008, and Barrett J in a judgment in July 2009) recognised that there had been no submission by the Syndicate to the jurisdiction of the Australian court in that it did not enter an appearance, but White J held that the Australian court had jurisdiction over the Syndicate because a cause of action available under the Australian Act for the recovery of a preferential payment to an overseas party made when the company is insolvent was a cause of action which arose in New South Wales for the purposes of the New South Wales provisions for service out of the jurisdiction. Barrett J gave a reasoned judgment in July 2009 holding the Syndicate liable. After the respondents had been given leave to re open their case so that the orders made by the Australian court would more accurately reflect the differences between those appellants who were members of the Syndicate for the 1997 year of account and those appellants who were members for the 1998 year of account, the Australian court entered final judgment against the Syndicate in its absence on 11 September 2009. The Australian judgment declared that the commutation payments were voidable transactions within the meaning of part 5.7B of the Australian Act and ordered the Syndicate to repay the amount of the commutation payments to the liquidator together with interest. On the liquidators application the Australian court issued, in October 2009, a letter of request to the High Court in England and Wales requesting that the court act in aid of and assist the Australian court and exercise jurisdiction under section 426 of the Insolvency Act 1986 by: (1) ordering the Syndicate to pay the sums specified in the Australian judgment; alternatively (2) allowing the liquidator to commence fresh proceedings under the Australian Act in the English Court; (3) granting such further and other relief as the High Court may consider just; and (4) making such further or other orders as may, in the opinion of the High Court, be necessary or appropriate to give effect to the foregoing orders. On 30 July 2010, the Court of Appeal handed down judgment in Rubin. As a result, the respondents' alternative application for permission to commence fresh proceedings against the Syndicate under the Australian Act in England pursuant to section 426 of the Insolvency Act 1986 was adjourned generally, and the respondents were granted permission to seek relief at common law as an alternative to relief under section 426. In New Cap Lewison J and the Court of Appeal were bound by the decision of the Court of Appeal in Rubin. Lewison J held: (a) the judgment was not enforceable under the Foreign Judgments (Reciprocal Enforcement) Act 1933 because, although it applied to Australian judgments, it did not apply to orders made in insolvency proceedings; but (b) the judgment was enforceable under the assistance provision of section 426 of the Insolvency Act 1986 and also at common law: [2011] EWHC 677 (Ch). The Court of Appeal (Mummery, Lloyd and Macfarlane LJJ) affirmed Lewison Js judgment on these grounds: (a) the 1933 Act applied, and registration would not be set aside for lack of jurisdiction in the foreign court, because of the Rubin decision; (b) section 426 could also be used and was not excluded by section 6 of the 1933 Act; (c) but section 6 would preclude an action at common law; (d) it was not necessary to decide whether the courts power of assistance at common law was exercisable where the statutory power was available: [2011] EWCA Civ 971, [2012] 2 WLR 1095. Picard v Vizcaya Partners Ltd This court gave permission for intervention by a written submission on behalf of Mr Irving Picard (the trustee), the trustee for the liquidation in the United States under the Securities Investor Protection Act of 1970 (SIPA) of Bernard L Madoff Investment Securities LLC (Madoff), which was Bernard Madoffs broking company. The trustee is seeking to enforce at common law in Gibraltar judgments of the US Bankruptcy Court against Vizcaya Partners Ltd (Vizcaya), a BVI company, for $180m, and against Asphalia Fund Ltd (Asphalia), a Cayman Islands company, for $67m, representing alleged preferential payments. He is also seeking to enforce a US Bankruptcy Court default judgment in excess of $1 billion in the Cayman Islands in Picard v Harley International (Cayman) Ltd. The Gibraltar and Cayman Islands proceedings have been adjourned to await the outcome of the present appeals. In Picard v Vizcaya Partners Ltd proceedings have been brought in Gibraltar to enforce the default judgments against Vizcaya and Asphalia because $73m is held there on behalf of Vizcaya which the trustee maintains is available to satisfy the judgments. Vizcaya and Asphalia have also, with the permission of the court, intervened by written submission. There is no agreed statement of facts relating to this aspect of the case, and nothing which is said here about the facts should be taken as representing or reflecting any finding. According to Vizcaya and Asphalia the position is as follows. Between 2002 and 2007, a bank in Europe, acting as a custodian trustee for Vizcaya, sent $327m to Madoff for investment in securities. Unknown to the bank, or to Vizcaya, or its shareholder Asphalia, Madoff had been engaged in a Ponzi scheme for some 30 years, and their money was never invested in securities. In 2008, at the time of the credit crunch and the banking crisis, the custodian trustee withdrew $180m (leaving $147m with Madoff) and $67m of the $180m was paid to Asphalia. In late 2008, the Madoff fraud came to light, and the trustee was appointed. The trustee targeted investors who had withdrawn investments from Madoff in the two years before its collapse in December 2008 as a source for recovery of customer property for the benefit of other investors who had not withdrawn their investments. The trustee commenced adversary proceedings in the US Bankruptcy Court alleging preference and fraudulent conveyance against Vizcaya and Asphalia under SIPA and under the Bankruptcy Code, the effect of which, they say, is that (a) as the trustee argues, a person who, on the basis that he has received customer money has been required to repay a preference, does not necessarily become a customer and thereby entitled to share with other customers in the bankruptcy; and (b) the trustee may avoid a payment made by the bankrupt to a creditor 90 days before the commencement of the bankruptcy, irrespective of the intention with which the payment is made or received. The trustee obtained judgments in default, and Vizcaya and Asphalia say that they took no part in the New York proceedings because they had no connection with New York, and in particular (a) Asphalia was not a customer of Madoff but a shareholder of Vizcaya; (b) arguably Vizcaya was not a customer since it had appointed the bank to act as custodian trustee and it was the bank which entered into contracts with Madoff. The issues The principal issue on these appeals is whether the rules at common law or under the 1933 Act regulating those foreign courts which are to be regarded as being competent for the purposes of enforcement of judgments apply to judgments in avoidance proceedings in insolvency, and, if not, what rules do apply (section V below). The other issues are whether, in the Rubin appeal, enforcement may be effected through the assistance provisions of the Cross Border Insolvency Regulations 2006 (section VI) or, in the New Cap appeal, section 426 of the Insolvency Act 1986 (section VII); whether the judgments are enforceable as a result of the submission by the judgment debtors to the jurisdiction of the foreign courts (section VIII); and, in the New Cap appeal, if the judgment is enforceable, whether enforcement is at common law or under the 1933 Act (section IX). V The first issue: recognition and enforcement of foreign judgments in insolvency proceedings Reasoning of the Court of Appeal in Rubin and the issue on the appeal The Court of Appeal in the Rubin appeal decided that a foreign insolvency judgment could be enforced in England and Wales at common law against a defendant not subject to the jurisdiction of the foreign court under the traditional rule as formulated in the Dicey Rule. As I have already said, on the Rubin appeal in the Court of Appeal the receivers sought only to enforce those parts of the judgment which in effect related to the avoidance causes of action. The Court of Appeal held that the judgment (as narrowed) was enforceable at common law. The reasoning was as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not resident (this was a slip for present since the action was at common law and not under the 1933 Act) when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2006] UKPC 26, [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] UKHL 21, [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62, 64. It was unnecessary to decide whether the judgment was enforceable under the CBIR: para 63. In short, Ward LJ accepted that the judgment was an in personam judgment, but he decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. The essential questions on this aspect of the appeals are these. Is the judgment in each case to be regarded as a judgment in personam within the scope of the traditional rules embodied in the Dicey Rule, or is it to be characterised as an insolvency order which is part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them? Is that a distinction which has a role to play? Is there a distinction between claims which are central to the purpose of the proceedings and claims which are incidental procedural matters? As a matter of policy, should the court, in the interests of universality of insolvency proceedings, devise a rule for the recognition and enforcement of judgments in foreign insolvency proceedings which is more expansive, and more favourable to liquidators, trustees in bankruptcy, receivers and other officeholders, than the traditional common law rule embodied in the Dicey Rule, or should it be left to legislation preceded by any necessary consultation? Ward LJs conclusion derives from a careful synthesis of dicta in Lord Hoffmanns brilliantly expressed opinion in Cambridge Gas and his equally brilliant speech in HIH, each of which has on these appeals been subjected to an exceptionally detailed analysis. For reasons which will be developed, I do not agree with the conclusions which Ward LJ draws. But I begin with two matters on which I accept the respondents analysis. The first is that avoidance proceedings have characteristics which distinguish them from ordinary claims such as claims in contract or tort. The second is that, if it were necessary to draw a distinction between insolvency orders and other orders, it would not be difficult to formulate criteria for the distinction, along similar lines to that drawn by the European Court in relation to the Brussels Convention, the Brussels I Regulation (Council Regulation (EC) 44/2001) and the EC Insolvency Regulation. Nature of avoidance proceedings In order to achieve a proper and fair distribution of assets between creditors, it will often be necessary to adjust prior transactions and to recover previous dispositions of property so as to constitute the estate which is available for distribution. The principle of equality among creditors which underlies the pari passu principle may require the adjustment of concluded transactions which but for the winding up of the company would have remained binding on the company, and the return to the company of payments made or property transferred under the transactions or the reversal of their effect. Systems of insolvency law use avoidance proceedings as mechanisms for adjusting prior transactions by the debtor and for recovering property disposed of by the debtor prior to the insolvency. Thus under the Insolvency Act 1986 an administrator, or liquidator, or trustee in bankruptcy may, where there has been a transaction at an undervalue, or amounting to an unlawful preference, apply for an order restoring the position to what it would have been had the transaction not taken place: sections 238 et seq and 339 et seq. Other systems of law have similar mechanisms, but they will differ in matters such as the period during which such transactions are at risk of reversal and the role of good faith of the parties to the transaction. The underlying policy is to protect the general body of creditors against a diminution of the assets by a transaction which confers an unfair or improper advantage on the other party, and it is therefore an essential aspect of the process of liquidation that antecedent transactions whose consequences have been detrimental to the collective interest of the creditors should be amenable to adjustment or avoidance: Fletcher, Law of Insolvency, 4th ed (2009), para 26 002; Goode, Principles of Corporate Insolvency Law, 4th ed (2011), para 13 03. Thus the UNCITRAL Legislative Guide on Insolvency Law (2005) says: 150. Many insolvency laws include provisions that apply retroactively from a particular date (such as the date of application for, or commencement of, insolvency proceedings) for a specified period of time (often referred to as the suspect period) and are designed to overturn those past transactions to which the insolvent debtor was a party or which involved the debtor's assets where they have certain effects. 151. It is a generally accepted principle of insolvency law that collective action is more efficient in maximizing the assets available to creditors than a system that leaves creditors free to pursue their individual remedies and that it requires all like creditors to receive the same treatment. Provisions dealing with avoidance powers are designed to support these collective goals, ensuring that creditors receive a fair allocation of an insolvent debtors assets consistent with established priorities and preserving the integrity of the insolvency estate. In In re Condor Insurance Ltd, 601 F 3d 319, 326 (5th Cir 2010), the Court of Appeals for the Fifth Circuit said that: Avoidance laws have the purpose and effect of re ordering the distribution of a debtors assets in favor of the collective priorities established by the distribution statute [and] must be treated as an integral part of the entire bankruptcy system. In different phases of the Australian proceedings in New Cap Barrett J made similar points. He said that in an action for unfair preference under the Australian legislation the liquidator might obtain an order for the payment of money, but the action did not contemplate recovery in the sense applicable to damages and debts; and the proceedings sought to remedy or counter the effects of that depletion caused by the payment by New Cap: New Cap Reinsurance Corpn v Renaissance Reinsurance Ltd [2002] NSWSC 856, paras 23, 27. The order does not vindicate property rights which the company itself would have had prior to liquidation, but statutory rights which the liquidator has under the statutory scheme in consequence of winding up. The purpose of the order for the payment of money to a company in liquidation is not to compensate the company, but to adjust the rights of creditors among themselves in such a way as to eliminate the effects of favourable treatment afforded to one or more creditors, to the exclusion of others, in the period immediately before an insolvent administration commences: New Cap Reinsurance Corpn v Grant [2009] NSWSC 662, 257 ALR 740, paras 20 21. Difference between insolvency claims and others I also accept that, if there were to be a separate rule for the recognition and enforcement of insolvency orders, it would not normally be difficult to distinguish between judgments in insolvency proceedings which are peculiarly the subject of insolvency law such as avoidance proceedings, and other judgments of the kind which are covered by the Dicey Rule. In the context of the Brussels Convention, the Brussels I Regulation and the EC Insolvency Regulation, the European Court has developed a distinction between claims which derive directly from the bankruptcy or winding up, and which are closely connected with them, on the one hand, and those which do not, on the other hand, and the distinction has been applied by the English court. In my judgment, the distinction is a workable one which could be adapted to other contexts should it be useful or necessary to do so. Claims which were regarded as bankruptcy claims have been held to include a claim under French law by a liquidator against a director to make good a deficiency in the assets of a company (Gourdain v Nadler (Case 133/78) [1979] ECR 733); or a claim under German law to set aside a transaction detrimental to creditors (Seagon v Deko Marty NV (Case C 339/07) [2009] 1 WLR 2168). Claims outside the category of bankruptcy claims have been held to include an action brought by a seller based on a reservation of title against a purchaser who was insolvent (German Graphics Graphische Maschinen GmbH v van der Schee (Case C 292/08) [2009] ECR I 8421) or a claim by a liquidator as to beneficial ownership of an asset (Byers v Yacht Bull Corp [2010] EWHC 133 (Ch), [2010] BCC 368). In Oakley v Ultra Vehicle Design Ltd [2005] EWHC 872 (Ch), [2006] BCC 57, Lloyd LJ (sitting as an additional judge of the Chancery Division) said, at para 42): it has been held that a claim by a liquidator to recover pre liquidation debts, although made in the course of the winding up and so, in a sense, relating to it, does not derive directly from it and is therefore not excluded from the Brussels Convention (and therefore now not from the [Brussels I] Regulation) by article 1.2(b): see In re Hayward decd [1997] Ch 45, and UBS AG v Omni Holding AG [2000] 1 WLR 916. By contrast, proceedings by a liquidator against a director or a third party to set aside a transaction as having been effected at an undervalue or on the basis of wrongful or fraudulent trading would be claims deriving directly from the winding up and therefore excluded from the Brussels Convention and now from the [Brussels I] Regulation. In personam or sui generis? I have already quoted the passage in Cambridge Gas in which Lord Hoffmann distinguished between judgments in rem and in personam, on the one hand, and judgments in bankruptcy proceedings, on the other, but it is necessary to repeat it at this point. He said: 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. There is no doubt that the order of the US Bankruptcy Court in Cambridge Gas did not fall into the category of an in personam order. Even though the question whether a foreign judgment is in personam or in rem is sometimes a difficult one (Dicey, 15th ed, para 14 109), that was not a personal order against its shareholders, including Cambridge Gas. The order vested the shares in Navigator in the creditors committee. It did not declare existing property rights. Indeed the whole purpose of what was the functional equivalent of a scheme of arrangement was to alter property rights. But it is not easy to see why it was not an in rem order in relation to property in the Isle of Man in the sense of deciding the status of a thing and purporting to bind the world: see Jowitts Dictionary of English Law, 3rd ed (2010) (ed Greenberg), p 1249. The judgments in the Rubin and New Cap appeals were based on avoidance legislation which, with some differences of substance, performs the same function as the equivalent provisions in the Insolvency Act 1986 and its predecessors. But Ward LJ in Rubin accepted that the judgment was in personam and the Rubin respondents have not sought to argue that it was not an in personam judgment. What they say is that, even if it is in personam, it is within a sui generis category of insolvency orders or judgments subject to special rules. There can be no doubt that the avoidance orders in the present appeals are in personam. In In re Paramount Airways Ltd [1993] Ch. 223, 238, Nicholls LJ said that the remedies under section 238 of the Insolvency Act 1986, (transactions at an undervalue) were primarily of an in personam character, and that accords with the nature of the orders in these appeals. The form of judgment of the US Bankruptcy Court in the Rubin case was that plaintiffs have judgment against the defendants in the sums awarded, and the orders of the New South Wales Supreme Court in the New Cap case included orders that the defendants pay to the first plaintiff the sums due under section 588FF(1) of the Australian Corporations Act. The question of principle and policy Since the judgments are in personam the principles in the Dicey Rule are applicable unless the court holds that there is, or should be, a separate rule for judgments in personam in insolvency proceedings, at any rate where those judgments are not designed to establish the existence of rights, but are central to the purpose of the insolvency proceedings or part of the mechanism of collective execution. Prior to Cambridge Gas and the present cases, there had been no suggestion that there might be a different rule for judgments in personam in insolvency proceedings and other proceedings. There are no cases in England which are helpful. The normal rules for enforcement of foreign judgments were applied to a claim by a liquidator for moneys due to the company (Gavin Gibson & Co Ltd v Gibson [1913] 3 KB 379) and to a claim on a debt ascertained in bankruptcy under German law (Berliner Industriebank Aktiengesellschaft v Jost [1971] 2 QB 463). A judgment of the US Bankruptcy Court in Chapter 11 proceedings for repayment of a preferential transfer was enforced in Ontario on the basis of the judgment debtors submission to the New York court, without any suggestion that the normal rules did not apply: Gourmet Resources International Inc v Paramount Capital Corpn (1991) 3 OR (3d) 286, [1993] ILPr 583, app dismissed (1993) 14 OR (3d) 319 (Ont CA). The principles in the Dicey Rule have never received the express approval of the House of Lords or the UK Supreme Court and the leading decisions remain Adams v Cape Industries plc [1990] Ch 433 and the older Court of Appeal authorities which it re states or re interprets. But there can be no doubt that the references by the House of Lords in the context of foreign judgments to the foreign court of competent jurisdiction are implicit references to the common law rule: eg In re Henderson, Nouvion v Freeman (1890) 15 App Cas 1, 8; Owens Bank Ltd v Bracco [1992] 2 AC 443, 484. The Rubin respondents question whether the rules remain sound in the modern world. It is true that the common law rule was rejected in Canada, at first in the context of the inter provincial recognition of judgments. The Supreme Court of Canada held that the English rules developed in the 19th century for the recognition and enforcement of judgments of foreign countries could not be transposed to the enforcement of judgments from sister provinces in a single country with a common market and a single citizenship. Instead a judgment given against a person outside the jurisdiction should be recognised and enforced if the subject matter of the action had a real and substantial connection with the province in which the judgment was given: Morguard Investments Ltd v De Savoye [1990] 3 SCR 1077, para 45. This approach was applied, by a majority, to foreign country judgments in Beals v Saldanha [2003] 3 SCR 416 (applied to the recognition of an English order convening meetings in a scheme of arrangement in Re Cavell Insurance Co (2006) 269 DLR (4th) 679 (Ont CA)). There is no support in England for such an approach except in the field of family law. In Indyka v Indyka [1969] 1 AC 33 it was held that a foreign decree of divorce would be recognised at common law if there was a real and substantial connection between the petitioner (or the respondent) and the country where the divorce was obtained. This rule (now superseded by the Family Law Act 1986) was in part devised to avoid limping marriages, ie cases where the parties were regarded as divorced in one country but regarded as married in another country. It has never been adopted outside the family law sphere in the context of foreign judgments. The Supreme Court of Ireland in In re Flightlease (Ireland) Ltd [2012] IESC 12 declined to follow Cambridge Gas (and also the decision of the Court of Appeal in Rubin) and also held that the Dicey Rule should not be rejected in favour of a real and substantial connection test. In Flightlease the airline Swissair was in a form of debt restructuring proceeding in Switzerland, where it was incorporated. Flightlease is an Irish company in the same group as Swissair. An application was before the Swiss courts under the Swiss federal statute on debt enforcement and bankruptcy seeking the return of money paid by Swissair to Flightlease. The proceedings had reached the stage of judgment, but the liquidators of Flightlease were concerned to know whether a Swiss judgment would be enforceable in Ireland so that they could decide whether to appear in the Swiss proceedings. The Irish Supreme Court held that the judgment would not be enforceable if Flightlease did not appear in the Swiss proceedings for these reasons: (1) the effect of the Swiss order would be to establish a liability on Flightlease to repay moneys and would therefore result in a judgment in personam; (2) it would be preferable for any change in the rules relating to the enforcement of foreign judgments to take place in the context of international consensus by way of treaty or convention given effect by legislation. In particular, the Irish Supreme Court said that it would not adopt the approach in Cambridge Gas because it had resulted from legislative changes in the United Kingdom (this appears to have been based on a misapprehension), and should not be adopted in Ireland in the absence of consensus among common law jurisdictions. But there is no suggestion on this appeal that the principles embodied in the Dicey Rule should be abandoned. Instead the Rubin respondents suggest that the principles should not apply to foreign insolvency orders. The respondents accept that the Dicey Rule applies to claims which may be of considerable significance by an officeholder in a foreign insolvency, such as a claim for breach of contract, or a tort claim, or a claim to recover debts. It is clear that such claims may affect the size of the insolvent estate just as much, and often more, than avoidance claims. Like claims to recover money due to the insolvent estate such as restitutionary claims not involving avoidance, avoidance claims may establish a liability to pay or repay money to the bankrupt estate (as in the present cases). There is no difference of principle. The question, therefore, is one of policy. Should there be a more liberal rule for avoidance judgments in the interests of the universality of bankruptcy and similar procedures? In my judgment the answer is in the negative for the following reasons. First, although I accept that it is possible to distinguish between avoidance claims and normal claims, for example in contract or tort, it is difficult to see in the present context a difference of principle between a foreign judgment against a debtor on a substantial debt due to a company in liquidation and a foreign judgment against a creditor for repayment of a preferential payment. The respondents suggest that a person who sells goods to a foreign company accepts the risk of the insolvency legislation of the place of incorporation. Quite apart from the fact that the suggestion is wholly unrealistic, why should the seller/creditor be in a worse position than a buyer/debtor? The second reason is that if there is to be a different rule for foreign judgments in such proceedings as avoidance proceedings, the court will have to ascertain (or, more accurately, develop) two jurisdictional rules. There are two aspects of jurisdiction which would have to be satisfied if a foreign insolvency judgment or order is to be outside the scope of the Dicey Rule: the first is the requisite nexus between the insolvency and the foreign court, and the second is the requisite nexus between the judgment debtor and the foreign court. In Cambridge Gas Navigator was an Isle of Man company, and the jurisdiction of the United States Bankruptcy Court depends on whether the debtor resides or has a domicile or place of business, or property, in the United States. The shares in Navigator owned by Cambridge Gas (a Cayman Islands company) were, on ordinary principles of the conflict of laws, situated in the Isle of Man, and the shareholder relationship between Navigator and Cambridge Gas was governed by Manx law. The Privy Council, as noted above, did not articulate any rule for the jurisdiction of the US Bankruptcy Court over Navigator (although it had plainly submitted to its jurisdiction) or over Cambridge Gas (which, the Manx courts had held and the Privy Council accepted, had not submitted) or over Cambridge Gas Manx assets. Nor did the Court of Appeal in Rubin articulate the reasons why the English court recognised the jurisdiction of the US Bankruptcy Court over TCT, or over the appellants. The receivers appear to have proceeded originally on the basis that the United States Bankruptcy Court had jurisdiction under United States bankruptcy law because of TCTs residence and principal place of business in New York (petition, 5 December 2005), but the US Bankruptcy Court, in deciding to appoint the receivers as foreign representatives also noted that TCTs business operations were conducted primarily in the United States, the majority of its creditors, substantially all of its assets, and its centre of main interests, were all in the United States. The basis of jurisdiction of the US Bankruptcy Court under United States law over the individual defendants in Rubin was that they were subject both to the general jurisdiction of the court (ie connection of the defendant with the jurisdiction) and also to the specific jurisdiction of the court (ie connection of the cause of action with the jurisdiction) because they specifically sought out the United States as a place to do business and specifically sought out United States merchants and consumers with whom to do business. Accordingly, the exercise of jurisdiction satisfied the due process requirements of the Fifth Amendment. The basis of jurisdiction in New Cap over New Cap itself was of course that it was incorporated in Australia. The basis of jurisdiction over the Syndicate under New South Wales law was that the cause of action against the Syndicate arose in New South Wales. The respondents do not put forward any principled suggestion for rules which will deal with the two aspects of jurisdiction. They accept, as regards the jurisdictional link between the foreign country and the insolvent estate, that English law has traditionally recognised insolvency proceedings taking place in an individual bankrupts place of domicile, or, in the case of corporations, the place of incorporation, but (because the connection which the trustees of the TCT, or the TCT itself, had with the United States was that the trusts main business was there) they rely on what Lord Hoffmann said in HIH [2008] UKHL 21, [2008] 1 WLR 852, para 31: I have spoken in a rather old fashioned way of the companys domicile because that is the term used in the old cases, but I do not claim it is necessarily the best one. Usually it means the place where the company is incorporated but that may be some offshore island with which the company's business has no real connection. The Council Regulation on insolvency proceedings (Council Regulation (EC) No 1346/2000 of 29 May 2000) uses the concept of the centre of a debtor's main interests as a test, with a presumption that it is the place where the registered office is situated: see article 3.1. That may be more appropriate. They propose that each of these issues be resolved, not by a black letter rule like the common law rule for enforcement of judgments, but instead by an appeal to what was said in oral argument to be the discretion of the English court to assist the foreign court. On the second aspect, the jurisdictional link between the foreign country and the judgment debtor, they accept that it is necessary for there to be an appropriate connection between the foreign insolvency proceeding and the insolvency order in respect of which recognition and enforcement is sought. They propose that, in the exercise of the discretion, the court should adopt an approach similar to that taken by the English court in deciding whether to apply provisions of the Insolvency Act 1986, such as section 238 (transactions at an undervalue), to persons abroad, relying on In re Paramount Airways Ltd [1993] Ch 223. That case decided that there is no implied territorial limitation to the exercise of jurisdiction over any person. The Court of Appeal rejected the argument that the section applied only to British subjects and to persons present in England at the time of the impugned transaction. In particular the physical absence or presence of the party at the time of the transaction bore no necessary relationship to the appropriateness of the remedy. Nor was the test of sufficient connection with England satisfactory because it would hardly be distinguishable from the ambit of the sections being unlimited territorially: p 237. Instead, the approach was to be found in the discretion of the court, first to grant permission to serve the proceedings out of the jurisdiction, and secondly, to make an order under the section. On both aspects the court would take into account whether the defendant was sufficiently connected with England for it to be just and proper to make the order against him despite the foreign element. The Rubin respondents say that In re Paramount Airways Ltd is instructive because, if the facts of the present case were reversed such that TCT had carried on the scheme in England and had been placed into insolvency proceedings here and the appellants were resident in New York, then it can be expected that the English court would have considered that England was the correct forum in which to bring section 238 proceedings to recover payments made to the appellants and would have given permission to serve out of the jurisdiction accordingly. They go on to say that it is implicit in this that the English court would have expected the New York court then to recognise and enforce any judgment of the English court even if the appellants had remained in New York and had not contested the proceedings; and that by the same token that the court seeks and expects the recognition and enforcement abroad of its own insolvency orders, the court should recognise and enforce in England insolvency orders made in insolvency proceedings in other jurisdictions. There is no basis for this line of reasoning. There is no necessary connection between the exercise of jurisdiction by the English court and its recognition of the jurisdiction of foreign courts, or its expectation of the recognition of its judgments abroad. It has frequently been said that the jurisdiction exercised under what used to be RSC Ord 11, r. 1 (and is now CPR Practice Direction 6B, para 3.1) is an exorbitant one, in that it was a wider jurisdiction than was recognised in English law as being possessed by courts of foreign countries in the absence of a treaty providing for recognition: see The Siskina (Owners of cargo lately laden on board) v Distos Cia Naviera SA [1979] AC 210, 254 per Lord Diplock; Amin Rasheed Shipping Corpn v Kuwait Insurance Co [1984] AC 50, 65 per Lord Diplock; Spiliada Maritime Corpn v Cansulex Ltd [1987] AC 460, 481 per Lord Goff of Chieveley. Outside the sphere of matrimonial proceedings (see Travers v Holley [1953] P 246, disapproved on this aspect in Indyka v Indyka [1969] 1 AC 33) reciprocity has not played a part in the recognition and enforcement of foreign judgments at common law. The English court does not concede jurisdiction in personam to a foreign court merely because the English court would, in corresponding circumstances, have power to order service out of the jurisdiction: In re Trepca Mines Ltd [1960] 1 WLR 1273. In my judgment, the dicta in Cambridge Gas and HIH do not justify the result which the Court of Appeal reached. This would not be an incremental development of existing principles, but a radical departure from substantially settled law. There is a reason for the limited scope of the Dicey Rule and that is that there is no expectation of reciprocity on the part of foreign countries. Typically today the introduction of new rules for enforcement of judgments depends on a degree of reciprocity. The EC Insolvency Regulation and the Model Law were the product of lengthy negotiation and consultation. A change in the settled law of the recognition and enforcement of judgments, and in particular the formulation of a rule for the identification of those courts which are to be regarded as courts of competent jurisdiction (such as the country where the insolvent entity has its centre of interests and the country with which the judgment debtor has a sufficient or substantial connection), has all the hallmarks of legislation, and is a matter for the legislature and not for judicial innovation. The law relating to the enforcement of foreign judgments and the law relating to international insolvency are not areas of law which have in recent times been left to be developed by judge made law. As Lord Bridge of Harwich put it in relation to a proposed change in the common law rule relating to fraud as a defence to the enforcement of a foreign judgment, if the law is now in need of reform, it is for the legislature, not the judiciary, to effect it: Owens Bank Ltd v Bracco [1992] 2 AC 443, 489. Furthermore, the introduction of judge made law extending the recognition and enforcement of foreign judgments would be only to the detriment of United Kingdom businesses without any corresponding benefit. I accept the appellants point that if recognition and enforcement were simply left to the discretion of the court, based on a factor like sufficient connection, a person in England who might have connections with a foreign territory which were only arguably sufficient would have to actively defend foreign proceedings which could result in an in personam judgment against him, only because the proceedings are incidental to bankruptcy proceedings in the courts of that territory. Although I say nothing about the facts of the Madoff case, it might suggest that foreigners who have bona fide dealings with the United States might have to face the dilemma of the expense of defending enormous claims in the United States or not defending them and being at risk of having a default judgment enforced abroad. Nor is there likely to be any serious injustice if this court declines to sanction a departure from the traditional rule. It would not be appropriate to express a view on whether the officeholders in the present cases would have, or would have had, a direct remedy in England, because there might be, or might have been, issues as to the governing law, or issues as to time limits or as to good faith. Subject to those reservations, several of the ways in which the claims were put (especially those parts of the judgment which were not the subject of these proceedings) in the United States proceedings in Rubin could have founded proceedings by trustees in England for the benefit of the creditors (as beneficiaries of the express trust). In addition there are several other avenues available to officeholders. Avoidance claims by a liquidator of an Australian company may be the subject of a request by the Australian court pursuant to section 426(4) of the Insolvency Act 1986, applying Australian law under section 426(5). In appropriate cases, article 23 of the Model Law will allow avoidance claims to be made by foreign representatives under the Insolvency Act 1986. In the cases where the insolvent estate has its centre of main interests in the European Union, judgments will be enforceable under Article 25 of the EC Insolvency Regulation. It follows that, in my judgment, Cambridge Gas was wrongly decided. The Privy Council accepted (in view of the conclusion that there had been no submission to the jurisdiction of the court in New York) that Cambridge Gas was not subject to the personal jurisdiction of the US Bankruptcy Court. The property in question, namely the shares in Navigator, was situate in the Isle of Man, and therefore also not subject to the in rem jurisdiction of the US Bankruptcy Court. There was therefore no basis for the recognition of the order of the US Bankruptcy Court in the Isle of Man. Regulations In the Rubin appeal it was argued by the respondents that the judgment should also be enforced through the CBIR, implementing the UNCITRAL Model Law. The order made by the deputy judge recognised the Chapter 11 proceeding including the Adversary Proceedings, because bringing adversary proceedings against debtors of the bankrupt is clearly part of collecting the bankrupts assets with a view to distributing them to creditors and the adversary proceedings are part and parcel of the Chapter 11 insolvency proceedings: [2010] 1 All ER (Comm) 81, paras 46, 47. The Court of Appeal was of the same view: [2011] Ch 133, para 61(2) (3). The appellants no longer maintain that the adversary proceedings should not be recognised under the Model Law. Issue 2: Rubin: Enforcement under the Cross Border Insolvency The issue which still arises in relation to the Model Law as implemented by the CBIR is whether the court has power to grant relief recognising and enforcing the relevant parts of the judgment. Article 21 provides that: 1. Upon recognition of a foreign proceeding, whether main or non main, where necessary to protect the assets of the debtor or the interests of the creditors, the court may, at the request of the foreign representative, grant any appropriate relief, including (a) staying the commencement or continuation of individual actions or individual proceedings concerning the debtor's assets, rights, obligations or liabilities, to the extent they have not been stayed under paragraph l(a) of article 20; (b) staying execution against the debtor's assets to the extent it has not been stayed under paragraph l(b) of article 20; suspending the right to transfer, encumber or otherwise (c) dispose of any assets of the debtor to the extent this right has not been suspended under paragraph 1(c) of article 20; (d) providing for the examination of witnesses, the taking of evidence or the delivery of information concerning the debtor's assets, affairs, rights, obligations or liabilities; (e) entrusting the administration or realisation of all or part of the debtor's assets located in Great Britain to the foreign representative or another person designated by the court; (f) extending relief granted under paragraph 1 of article 19; and (g) granting any additional relief that may be available to a British insolvency officeholder under the law of Great Britain, including any relief provided under paragraph 43 of Schedule B1 to the Insolvency Act 1986. The reference to relief under paragragh 43 of Schedule B1 to the Insolvency Act 1986 is a reference to a moratorium on claims in an administration. The Guide to Enactment states, at paras 154, 156: [154] The types of relief listed in article 21, paragraph 1, are typical or most frequent in insolvency proceedings; however, the list is not exhaustive and the court is not restricted unnecessarily in its ability to grant any type of relief that is available under the law of the enacting state and needed in the circumstances of the case. [156] It is in the nature of discretionary relief that the court may tailor it to the case at hand. This idea is reinforced by article 22, paragraph 2, according to which the court may subject the relief granted to conditions that it considers appropriate. Article 25 provides (under the heading Co operation and direct communication between a court of Great Britain and foreign courts or foreign representatives) that: 1. the court may co operate to the maximum extent possible with foreign courts or foreign representatives, either directly or through a British insolvency officeholder. 2. The court is entitled to communicate directly with, or to request information or assistance directly from, foreign courts or foreign representatives. Article 27 provides that the co operation referred to in article 25 may be implemented by any appropriate means, including (a) appointment of a person to act at the direction of the court; (b) communication of information by any means considered appropriate by the court; (c) coordination of the administration and supervision of the debtor's assets and affairs; (d) approval or implementation by courts of agreements concerning the coordination of proceedings; (e) coordination of concurrent proceedings regarding the same debtor. The respondents say that (a) the power under article 21 is to grant any type of relief that is available under the law of the relevant state, and that the fact that recognition and enforcement of foreign judgments is not specifically mentioned in article 21 as one of the forms of relief available, does not mean that such relief cannot be granted; (b) the recognition and enforcement of the judgments of a foreign court is the paradigm means of co operation with that court; and (c) the examples of co operation in article 27 are merely examples and are not exhaustive. But the CBIR (and the Model Law) say nothing about the enforcement of foreign judgments against third parties. As Lord Mance pointed out in argument, recognition and enforcement are fundamental in international cases. Recognition and enforcement of judgments in civil and commercial matters (but not in insolvency matters) have been the subject of intense international negotiations at the Hague Conference on Private International Law, which ultimately failed because of inability to agree on recognised international bases of jurisdiction. It would be surprising if the Model Law was intended to deal with judgments in insolvency matters by implication. Articles 21, 25 and 27 are concerned with procedural matters. No doubt they should be given a purposive interpretation and should be widely construed in the light of the objects of the Model Law, but there is nothing to suggest that they apply to the recognition and enforcement of foreign judgments against third parties. The respondents rely on United States decisions but the only case involving enforcement of a foreign judgment in fact supports the appellants argument. The Model Law has been implemented into United States law through Chapter 15 of Title 11 of the United States Code, which has in sections 1521, 1525 and 1527 provisions which are, with modifications not relevant for present purposes, equivalent to articles 21, 25 and 27 of the CBIR. In Re Metcalfe & Mansfield Alternative Investments 421 BR 685 (Bankr SDNY 2010) the US Bankruptcy Court ordered that orders made by a Canadian court in relation to a plan of compromise and arrangement under the (Canadian) Companies Creditors Arrangement Act 1985 be enforced. That decision does not assist the respondents because the US Bankruptcy Court applied the normal rules in non bankruptcy cases for enforcement of foreign judgments in the United States: pp 698 700. In my judgment the Model Law is not designed to provide for the reciprocal enforcement of judgments. VII Issue 3: New Cap: Enforcement through assistance under section 426 of the Insolvency Act 1986 In view of my conclusion in the next section (section VIII) that the Syndicate submitted to the jurisdiction of the Australian court, the issues on section 426(4) and (5) of the Insolvency Act 1986, and their relationship with section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933 do not arise, but since the matter was fully argued I will express a view on the applicability of section 426(4) to a case such as this. Section 426(4) (5) of the Insolvency Act 1986 provides: (4) The courts having jurisdiction in relation to insolvency law in any part of the United Kingdom shall assist the courts having the corresponding jurisdiction in any other part of the United Kingdom or any relevant country or territory. (5) For the purposes of subsection (4) a request made to a court in any part of the United Kingdom by a court in any other part of the United Kingdom, or in a relevant country or territory is authority for the court to which the request is made to apply, in relation to any matter specified in the request, the insolvency law which is applicable by either court in relation to comparable matters falling within its jurisdiction. In exercising its discretion under this subsection, a court shall have regard in particular to the rules of private international law. The reference to the application of rules of private international law in section 426(5) is difficult and obscure: see Dicey, 15th ed, para 30 119; my discussion in In re Television Trade Rentals [2002] EWHC 211 (Ch), [2002] BCC 807, para 17, and the cases there cited; and Al Sabah v Grupo Torras SA [2005] UKPC 1, [2005] 2 AC 333, para 47. But nothing turns on it on these appeals. The question is whether section 426(4) of the 1986 Act provides a procedure by which a judgment of a court having jurisdiction in relation to insolvency law in a relevant country or territory may be enforced in the United Kingdom. As I have said, Australia is a relevant country. A further question arises if section 426(4) applies to the enforcement of foreign judgments and that is whether section 426 is ousted by section 6 of the Foreign Judgments (Reciprocal Enforcement) Act 1933, which provides: No proceedings for the recovery of a sum payable under a foreign judgment, being a judgment to which this Part of the Act applies, other than proceedings by way of registration of the judgment, shall be entertained by any court in the United Kingdom. Both Lewison J and the Court of Appeal [2012] 2 WLR 1095 held that section 426(4) was available as a tool for the enforcement of the judgment. Section 426(4) has been given a broad interpretation: see Hughes v Hannover Rckversicherungs Aktiengesellschaft [1997] 1 BCLC 497 (CA); England v Smith [2001] Ch 419 (CA); HIH [2008] UKHL 21, [2008] 1 WLR 852. It has been held that the fact that a letter of request has been made is a weighty factor, and public policy and comity favour the giving of assistance: Hughes v Hannover, at pp 517 518; England v Smith, at p 433. Thus in England v Smith the Australian court overseeing the liquidation of the Bond Corporation made an order for the examination of a London partner in Arthur Andersen. It issued a letter of request asking the English court to assist it by making its own order for the examination. The Court of Appeal decided that the order should be made. But, despite the respondents argument to the contrary, England v Smith was not a case of the enforcement of the Australian order, but rather the making of the courts own order in aid of the Australian liquidation. In my judgment, subsections 426(4) and (5) of the 1986 Act are not concerned with enforcement of judgments. Section 426(1) (2), by contrast, deals with enforcement of orders in one part of the United Kingdom in another part, and refer expressly to the enforcement of such orders (shall be enforced in section 426(1)). Section 426(4) deals with assistance not only for foreign designated countries such as Australia but also to intra United Kingdom assistance. If section 426(4) applied to intra United Kingdom enforcement of orders, then section 426(1) would be largely redundant, going beyond what the Court of Appeal [2012] 2 WLR 1095, para 57 described as a degree of overlap. Sections 426(1) and (4) have their origin in sections 121 and 123 of the Bankruptcy Act 1914. Section 121 of the 1914 Act provided that orders of bankruptcy courts in one part of the United Kingdom were to be enforced in other parts. Section 122 provided that the courts exercising bankruptcy and insolvency jurisdiction in the United Kingdom and every British court elsewhere were to act in aid of, and be auxiliary to, each other; and, upon a request by the non English court, could exercise the jurisdiction of either court. The Insolvency Law and Practice Report of the Review Committee (1982) (Cmnd 8558) (the Cork Report) said (paras 1909 1913) that section 122 was the vital section in this context, and recommended that the section should be extended to winding up. But, despite the respondents arguments, I do not discern any recommendation which would suggest that section 426(4) applies to the enforcement of foreign judgments. Consequently the applicability of section 6 of the 1933 Act does not arise for decision, except in a context which makes little practical difference, and to which I will revert. VIII Submission If the Dicey Rule applies the judgments in issue will be enforceable in England if the judgment debtors submitted to the jurisdiction of the foreign court. New Cap The Australian court granted leave to serve these proceedings out of the jurisdiction on the Syndicate: section IV, above. The Syndicate did not enter an appearance, but its solicitors commented in writing on evidence presented to the Australian court about New Caps insolvency and their comments were placed before the Australian judge. More relevant is the fact that from August 1999 the Syndicate submitted proofs of debt (in relation to unsettled claims and outstanding premiums for the 1997, 1998, and 1999 years of account, and not to the reinsurance contracts which are the subject of these proceedings) and attended and participated in creditors meetings. In particular at an adjourned meeting of creditors on 16 September 2009 the Syndicate had given a proxy for that meeting to the chairman, and submitted a proof of debt and proxy form for that meeting. The Syndicate voted at a meeting of creditors in favour of a scheme of arrangement. The liquidator has admitted claims by the Syndicate for the sterling equivalent of more than 650,000, although the liquidator is retaining the dividend in partial settlement of the costs incurred in these proceedings. The general rule in the ordinary case in England is that the party alleged to have submitted to the jurisdiction of the English court must have taken some step which is only necessary or only useful if an objection to jurisdiction has been actually waived, or if the objection has never been entertained at all: Williams & Glyns Bank plc v Astro Dinamico Compania Naviera SA [1984] 1 WLR 438, 444 (HL) approving Rein v Stein (1892) 66 LT 469, 471 (Cave J). The same general rule has been adopted to determine whether there has been a submission to the jurisdiction of a foreign court for the purposes of the rule that a foreign judgment will be enforced on the basis that the judgment debtor has submitted to the jurisdiction of the foreign court: Adams v Cape Industries [1990] Ch 433, 459 (Scott J); Akai Pty Ltd v Peoples Insurance Co Ltd [1998] 1 Lloyds Rep 90, 96 97 (Thomas J); see also Desert Sun Loan Corpn v Hill [1996] 2 All ER 847, 856 (CA); Akande v Balfour Beatty Construction Ltd [1998] ILPr 110; Starlight International Inc v Bruce [2002] EWHC 374 (Ch), [2002] ILPr 617, para 14 (cases of foreign judgments); Industrial Maritime Carriers (Bahamas) Inc v Sinoca International Inc (The Eastern Trader) [1996] 2 Lloyds Rep 585, 601 (a case involving the question whether the party seeking an anti suit injunction in support of an English arbitration clause had waived the agreement by submitting to the jurisdiction of the foreign court). The characterisation of whether there has been a submission for the purposes of the enforcement of foreign judgments in England depends on English law. The court will not simply consider whether the steps taken abroad would have amounted to a submission in English proceedings. The international context requires a broader approach. Nor does it follow from the fact that the foreign court would have regarded steps taken in the foreign proceedings as a submission that the English court will so regard them. Conversely, it does not necessarily follow that because the foreign court would not regard the steps as a submission that they will not be so regarded by the English court as a submission for the purposes of the enforcement of a judgment of the foreign court. The question whether there has been a submission is to be inferred from all the facts. It is in that context that Scott J said at first instance in Adams v Cape Industries plc [1990] 1 Ch 433, 461 (a case in which the submission issue was not before the Court of Appeal): If the steps would not have been regarded by the domestic law of the foreign court as a submission to the jurisdiction, they ought not to be so regarded here, notwithstanding that if they had been steps taken in an English court they might have constituted a submission. The implication of procedural steps taken in foreign proceedings must be assessed in the context of the foreign proceedings. I agree with the way it was put by Thomas J in Akai Pty Ltd v Peoples Insurance Company Ltd [1998] 1 Lloyds Rep 90, 97: The court must consider the matter objectively; it must have regard to the general framework of its own procedural rules, but also to the domestic law of the court where the steps were taken. This is because the significance of those steps can only be understood by reference to that law. If a step taken by a person in a foreign jurisdiction, such as making a counterclaim, might well be regarded by English law as amounting to a submission to the jurisdiction, but would not be regarded by that foreign court as a submission to its jurisdiction, an English court will take into account the position under foreign law. The Syndicate did not take any steps in the avoidance proceedings as such which would be regarded either by the Australian court or by the English court as a submission. Were the steps taken by the Syndicate in the liquidation a submission for the purposes of the rules relating to foreign judgments? In English law there is no doubt that orders may be made against a foreign creditor who proves in an English liquidation or bankruptcy on the footing that by proving the foreign creditor submits to the jurisdiction of the English court. In Ex p Robertson, In re Morton (1875) LR 20 Eq 733 trustees were appointed over the property of bankrupt potato merchants in a liquidation by arrangement. A Scots merchant received payment of 120 after the liquidation petition was presented, and proved for a balance of 247 and received a dividend of what is now 20p in the pound. The trustees served a notice of motion, seeking repayment of the 120 paid out of the insolvent estate, out of the jurisdiction. The respondent objected to the jurisdiction of the English court on the ground that he was a domiciled Scotsman. On appeal from the county court, Sir James Bacon CJ held that the court had jurisdiction. He said, at pp 737 738: what is the consequence of creditors coming in under a liquidation or bankruptcy? They come in under what is as much a compact as if each of them had signed and sealed and sworn to the terms of it that the bankrupt's estate shall be duly administered among the creditors. That being so, the administration of the estate is cast upon the court, and the court has jurisdiction to decide all questions of whatever kind, whether of law, fact, or whatever else the court may think necessary in order to effect complete distribution of the bankrupt's estate. [C]an there be any doubt that the Appellant in this case has agreed that, as far as he is concerned, the law of bankruptcy shall take effect as to him, and under this jurisdiction, to which he is not only subjected, but under which he has become an active party, and of which he has taken the benefit . [The Appellant] is as much bound to perform the conditions of the compact, and to submit to the jurisdiction of the court, as if he had never been out of the limits of England. The Syndicate objected to the jurisdiction of the Australian court. Barrett J in his judgment of 14 July 2009 accepted that it had made it clear that it was not submitting to its jurisdiction, and he also accepted that as a result the judgment of the Australian court would not be enforceable in England. His judgment is concerned exclusively with the preference claims, and he did not deal with the question of submission by reference to the Syndicates participation in the liquidation by way of proof and receipt of dividends. He decided that the court had jurisdiction because the New South Wales rules justified service out of the jurisdiction on the basis that the cause of action arose in New South Wales. I would therefore accept the liquidators submission that, having chosen to submit to New Cap's Australian insolvency proceeding, the Syndicate should be taken to have submitted to the jurisdiction of the Australian court responsible for the supervision of that proceeding. It should not be allowed to benefit from the insolvency proceeding without the burden of complying with the orders made in that proceeding. The position is different in the Rubin appeal. It would certainly have been arguable that Eurofinance SA had submitted to the jurisdiction of the United States District Court, for these reasons: first, it was Eurofinance SA which applied for the appointment by the High Court of Mr Rubin and Mr Lan as receivers of TCT specifically for the purpose of causing TCT then to obtain protection under Chapter 11; second, it was Eurofinance SA which represented to the English court that officeholders appointed by the United States court would be able to pursue claims against third parties; third, the judgment of the US Bankruptcy Court states that the court had personal jurisdiction over Eurofinance SA not only because it did business in the United States but also (as I have mentioned above) because it had filed a notice of appearance in the Chapter 11 proceedings (Order 22 of July 2008, paras 42 43). But the Rubin appellants did not appear in the adversary proceedings, and it was not argued in these proceedings that Eurofinance SA (or Mr Adrian Roman, who caused Eurofinance SA to make the application) had submitted to the jurisdiction of the US Bankruptcy Court in any other way and it is not necessary therefore to explore the matter further. IX New Cap: enforcement at common law or under the 1933 Act In view of my conclusion that the Australian judgment in New Cap is enforceable by reason of the Syndicates submission, a purely technical point arises on the method of enforcement. The point is whether the enforcement is to be under the 1933 Act or at common law. If insolvency proceedings are excluded from the 1933 Act, then enforcement would be at common law. If they are not excluded, then (as I have said) section 6 has the effect of excluding an action at common law on the judgment and making registration under the 1933 Act the only method of enforcement of judgments within Part I of the Act. Section 11(2) of the 1933 Act provides that the expression action in personam shall not be deemed to include (inter alia) proceedings in connection with bankruptcy and winding up of companies. But the effect of section 4(2)(c) is that in the case of a judgment given in an action other than an action in personam or an action in rem, the foreign court shall be deemed to have jurisdiction if its jurisdiction is recognised by the English court, ie at common law. Accordingly, the question whether insolvency proceedings are wholly excluded from the operation of the 1933 Act still arises. There is no other provision in the 1933 Act which throws any light on the point. The main object of the 1933 Act was to facilitate the enforcement of commercial judgments abroad by making reciprocity easier. The only reference to insolvency proceedings in the Report of the Foreign Judgments (Reciprocal Enforcement) Committee (1932) (Cmnd 4213), (the Greer Report), which recommended the legislation, is the statement (para 4): It is not necessary for our present purposes to consider the effect in England of foreign judgments in bankruptcy proceedings. The Report annexed draft Conventions which had been drawn up in consultation with experts from Belgium, France and Germany. The draft Conventions with Belgium (article 4(3), (4)) and Germany (article 4(4)) provided that the jurisdictional rules in the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate, but that the jurisdiction of the original court would be recognised where such recognition was in accordance with the rules of private international law observed by the court applied to. That provision paralleled what became sections 4(2)(c) and 11(2) of the 1933 Act. The draft Convention with France did not apply to judgments in bankruptcy proceedings etc (article 2(3)), but provided that nothing was deemed to preclude the recognition and enforcement of judgments to which the Convention did not apply: article 2(4). The Conventions concluded with countries to which the 1933 Act applied adopted similar techniques. It is unnecessary to set them out in detail. But there is no reason to suppose that bankruptcy proceedings were not regarded as being civil and commercial matters. Thus the 1961 Convention with the Federal Republic of Germany of 1961 (the Reciprocal Enforcement of Foreign Judgments (Germany) Order) (SI 1961/1199) provided in article I(6) that the expression judgments in civil and commercial matters did not include judgments for fines or penalties, and had a separate provision in article II(2) that the Convention did not apply to judgments in bankruptcy proceedings or proceedings relating to the winding up of companies or other bodies corporate (although, in accordance with the usual technique, it did not rule out recognition and enforcement: Art II(3)). Other Conventions simply excluded bankruptcy proceedings from the specific jurisdictional provisions of the Convention, like the draft Conventions annexed to the Greer Report: article 4(5) of the Reciprocal Enforcement of Foreign Judgments (Austria) Order 1962 (SI 1962/1339), article 4(3) of the Reciprocal Enforcement of Foreign Judgments (Norway) Order 1962 (SI 1962/636), and article IV(3) of the Reciprocal Enforcement of Foreign Judgments (Italy) Order 1963 (SI 1973/1894). The Reciprocal Enforcement of Judgments (Australia) Order 1994 (SI 1994/1901) extended the 1933 Act to Australia, implementing the UK Australia Agreement for the reciprocal enforcement of judgments in civil and commercial matters. The Agreement is expressed in article I(c)(i) to apply to judgments in civil and commercial matters. The Order applies Part I of the Act to judgments in respect of a civil or commercial matter (article 4(a)). There is no reason to conclude that the phrase civil and commercial matters does not include insolvency proceedings, and the history of the 1933 Act and the Conventions shows that it does. The fact that insolvency was expressly excluded from the operation of the Brussels Convention, the original and revised Lugano Conventions and the Brussels I Regulation in fact suggests that otherwise they would have been within their scope. The respondents relied on a passage in the ruling of the European Court of Justice in Gourdain v Nadler (Case 133/78) [1979] ECR 733, paras 3 4, as suggesting that the exclusion of bankruptcy in article 1 of the Brussels Convention was an example of a matter excluded from the concept of civil and commercial matters. But it is clear from the context (and from the opinion of Advocate General Reischl) that the court was simply saying that because the expression civil and commercial matters in Article 1 had to be given an autonomous meaning, so also was the case with the expression bankruptcy. That the exclusion of bankruptcy proceedings does not affect their character as civil or commercial matters is confirmed by the recent ruling in F Tex SIA v Lietuvos Anglijos UAB Jadecloud Vilma (Case C 213/10) 19 April 2012, where the court said that the Brussels I Regulation was intended to apply to all civil and commercial matters apart from certain well defined matters and as a result actions directly deriving from insolvency proceedings and closely connected with them were excluded: para 29. It follows that the 1933 Act applies to the Australian judgment and that enforcement should be by way of registration under the 1933 Act. X Disposition I would therefore allow the appeal in Rubin, but dismiss the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian court. LORD MANCE I agree with Lord Collins reasoning and conclusions in his judgment on these appeals, essentially for the reasons he gives, though without subscribing to his incidental observation (para 132) that the Privy Council decision in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2006] UKPC 26, [2007] 1 AC 508 was necessarily wrongly decided. This was not argued before the Supreme Court, and I would wish to reserve my opinion upon it. Cambridge Gas is, on any view, distinguishable. The common law question central to these appeals is whether the Supreme Court should endorse or introduce a special rule of recognition and enforcement, one falling outside the scope of the Dicey Rule which Lord Collins has identified (Rule 36 in the 14th and Rule 43 in the 15th edition) and applicable to judgments in foreign insolvency proceedings setting aside voidable pre insolvency transactions. For the principal reasons which Lord Collins gives in paras 95 to 131, I agree that we should not do so. Since much weight was placed by the respondents and the Court of Appeal upon the Boards reasoning and decision in Cambridge Gas, I add some observations to indicate why, as the present appellants submitted, it concerned circumstances and proceeded upon factual assumptions and a legal analysis which have no parallel in the present case. Cambridge Gas has attracted both Irish judicial dissent and English academic criticism, to which Lord Collins refers in paras 53 and 111 112. Giving the judgment of the Board in Pattni v Ali [2006] UKPC 51, [2007] 2 AC 85, I said that the purpose of the bankruptcy order with which the Board was concerned in Cambridge Gas was simply to establish a mechanism of collective execution against the property of the debtor [Navigator] by creditors whose rights were admitted or established (para 23). This analysis, admittedly, involved treating the vesting in creditors of shares in Navigator as no different in substance from the vesting in creditors of Navigators shares in its ship owning subsidiaries. But it is clear from paras 8 and 9 and again 24 to 26 of the Boards advice in Cambridge Gas that the Board saw no difference. It did not regard Cambridge Gas as having any interest of value to advance or protect in the shares still held nominally in its name. Their vesting in Navigators creditors was no more than a mechanism for disposing of Navigators assets, which did not affect or concern Cambridge Gas. The Board was therefore, in its view (and rightly or wrongly), concerned with distribution of the insolvent companys assets in a narrow and traditional sense. Amplifying this, the Board approached the situation in Cambridge Gas as follows. The New York court had jurisdiction over Navigators assets, since Navigator had submitted to the New York proceedings. Cambridge Gass shares in Navigator (located in the Isle of Man, Navigators place of incorporation) were completely and utterly worthless: [2007] 1 AC 508, para 9. The transfer to Navigators creditors of Cambridge Gass shares in Navigator had the like effect to a transfer of Navigators assets, since Navigator was an insolvent company, in which the shareholders ha[d] no interest of any value (para 26). Cambridge Gass shares in Navigator were vulnerable in the Isle of Man, under section 152 of the Companies Act 1931, to a similar scheme of arrangement to that which the New York Court intended by its Chapter 11 order. More generally, as I noted in Stone & Rolls Ltd v Moore Stephens [2009] UKHL 39, [2009] AC 1391, paras 236 to 238, in insolvency shareholders interests yield to those of creditors. It was in this limited context that the Board concluded that the New York and Manx courts orders could be regarded as doing no more than facilitating or enabling collective execution against Navigators property. The Court of Appeal believed on the contrary that the answer to the present cases lay in the Boards general statements in Cambridge Gas at paras 19 to 21 regarding the nature of insolvency proceedings. It is true that proceedings to avoid pre insolvency transactions can be related to the process of collection of assets. That is, their general purpose and effect is to ensure a fair allocation of assets between all who are and were within some specified pre insolvency period creditors. A dictum of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] UKHL 21, [2008] 1 WLR 852, para 19, quoted by Lord Collins in paras 15 and 52, is to that effect, though again uttered in a different context to the present. However, the Board did not see these considerations as answering or eliminating all questions regarding the existence of jurisdiction or at least its exercise in Cambridge Gas. On the contrary, it went on to examine in close detail in paras 22 to 26 the limits of the assistance that a court could properly give. In rejecting the argument that the interference with the shareholding held in Cambridge Gass name was beyond the Manx courts jurisdiction (para 26), the only reason it gave related to the nature of shares in an insolvent company. This meant, according to its advice, that Cambridge Gas had no interest of any value to protect and that registration of the shares in Navigators creditors name was no more than a mechanism for giving creditors access to Navigators assets. On this basis, the decision in Cambridge Gas is, as Professor Adrian Briggs noted in a penetrating case note in The British Year Book of International Law (2006) p575 581, less remarkable (although, as Professor Briggs also notes, it perhaps still poses problems of reconciliation with the Houses decision in Socit Eram Shipping Co Ltd v Hong Kong & Shanghai Banking Corp Ltd [2003] UKHL 30, [2004] AC 260). But, because the actual decision in Cambridge Gas was so narrowly focused on the nature of a shareholders rights in an insolvent company and was not directly challenged, I prefer to leave open its correctness. Whatever view may be taken as to the validity of the Boards reasoning in Cambridge Gas, it is clear that it does not cover or control the present appeal. The present cases are not concerned with shares, with situations in which shares are, or are treated by the court as, no more than a key to the insolvent companys assets or even with situations in which it is clear that those objecting to recognition and enforcement of the foreign courts orders have no interests to protect. There are, on the contrary, substantial issues as to whether there were fraudulent preferences giving rise to in personam liability in large amounts. The persons allegedly benefitting by fraudulent preferences did not appear in the relevant foreign insolvency proceedings in which judgment was given against them. They were (leaving aside any question of submission) outside the international jurisdiction of the relevant foreign courts. Lord Clarke takes a different view from Lord Collins, but does not define either the circumstances in which a foreign court should, under English private international law rules, be recognised as having jurisdiction to entertain bankruptcy proceedings or, if one were (wrongly in my view) to treat the whole area as one of discretion, the factors which might make it either unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings (see paras 193, 200 and 201 of Lord Clarkes judgment). The scope of the jurisdiction to entertain bankruptcy proceedings which English private international law will recognise a foreign court as having is described in Dicey (in para 31 064 in the 14th and 15th editions) as a vexed and controversial question. But it would include situations in which the bankrupt or insolvent company had simply submitted to the foreign bankruptcy jurisdiction. On Lord Clarkes analysis, in such a case (of which Rubin v Eurofinance is an example), it would be irrelevant that the debtor under the avoidance order had not submitted, and was not on any other basis subject, to the foreign jurisdiction. It would be enough that the judgment debtor had had the chance of appearing and defending before the foreign court. For the reasons given by Lord Collins, I do not accept that this is the common law. In the light of the above, the Court of Appeal was, in my view, in error in seeing the solution to the present appeals as lying in the advice given by the Board in Cambridge Gas. Even on an assumption that the actual decision in Cambridge Gas can be supported, it cannot and should not be treated as supporting the respondents case that fraudulent preference claims and avoidance orders in insolvency proceedings generally escape the common law rules requiring personal or in rem jurisdiction. LORD CLARKE I would like to pay tribute to the learning in Lord Collins comprehensive judgment. However, left to myself, I would dismiss the appeal in the Rubin case. Since I am in a minority of one, little is to be gained by my writing a long dissent. I will therefore try to explain my reasons shortly. In doing so, I adopt the terminology and abbreviations used by Lord Collins. I agree with Lord Collins and Lord Mance that the decision of the Privy Council in Cambridge Gas Transportation Corpn v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 is distinguishable. The facts there were quite different from those here. However, in so far as it is suggested that Cambridge Gas was wrongly decided, I do not agree. Moreover, I do not think that it would be appropriate so to hold because it was not submitted to be wrong in the course of the argument. To my mind the approach which should be adopted is presaged in the speech of Lord Hoffmann in In re HIH Casualty and General Insurance Ltd [2008] 1 WLR 852 and in his judgment in Cambridge Gas. As I see it, the issue is simply whether an avoidance order made by a foreign bankruptcy court made in the course of the bankruptcy proceedings, whether personal or corporate, which the court has jurisdiction to entertain, is unenforceable if it can fairly be said to be an order made either in personam or in rem. I would answer that question in the negative. Put another way, the question is whether the English court has jurisdiction under English rules of private international law to enforce an avoidance order made in foreign bankruptcy proceedings in circumstances where, under those rules, the foreign court has jurisdiction to entertain the bankruptcy proceedings themselves. I would answer that question in the affirmative. It is not, as I understand it, suggested here that the US court did not have jurisdiction to entertain the bankruptcy proceedings themselves. The relevant paragraphs of Lord Hoffmanns judgment in Cambridge Gas are in these terms (as quoted by Lord Collins at para 43 above): 13. Judgments in rem and in personam are judicial determinations of the existence of rights: in the one case, rights over property and in the other, rights against a person. When a judgment in rem or in personam is recognised by a foreign court, it is accepted as establishing the right which it purports to have determined, without further inquiry into the grounds upon which it did so. The judgment itself is treated as the source of the right. 14. The purpose of bankruptcy proceedings, on the other hand, is not to determine or establish the existence of rights, but to provide a mechanism of collective execution against the property of the debtor by creditors whose rights are admitted or established. 15 [B]ankruptcy, whether personal or corporate, is a collective proceeding to enforce rights and not to establish them. Of course, as Brightman LJ pointed out in In re Lines Bros Ltd [1983] Ch 1, 20, it may incidentally be necessary in the course of bankruptcy proceedings to establish rights which are challenged: proofs of debt may be rejected; or there may be a dispute over whether or not a particular item of property belonged to the debtor and is available for distribution. There are procedures by which these questions may be tried summarily within the bankruptcy proceedings or directed to be determined by ordinary action. But these again are incidental procedural matters and not central to the purpose of the proceedings. The critical paragraph is para 15, which seems to me to make it clear that it is possible to have an order which is both in personam or in rem and an order of the kind referred to by Lord Hoffmann in para 14. Thus it may be incidentally necessary to establish substantive rights in the course of the bankruptcy proceedings as part of a collective proceeding to enforce rights. In such a case the order will be doing two things. It will be both establishing the right and enforcing it. This can be seen from the examples given in para 15. Proofs of debt may be rejected, which is a process which may involve determining, for example, the substantive rights of the creditor against the debtor. Or it may be necessary to determine whether or not a particular item of property belongs to the debtor and is available for distribution. As para 15 contemplates, such procedures may be tried either summarily within the bankruptcy proceedings or by ordinary action. In either such case Lord Hoffmann describes them as incidental procedures which are not central to the purpose of the bankruptcy proceedings. As I see it, in such a case, an avoidance order may be both an order in personam or in rem and an order in the bankruptcy proceedings. I agree with Lord Collins at para 103 that it is not easy to see why the order of the US Bankruptcy Court in Cambridge Gas was not an order in rem. However, that does not to my mind show that Cambridge Gas was wrongly decided but demonstrates that it is possible to have an in rem order which is made as incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy. The approach is explained by Lord Hoffmann in HIH at para 30 and in Cambridge Gas at para 16, both of which are quoted by Lord Collins at para 19 above. In HIH he said: The primary rule of private international law which seems to me applicable to this case is the principle of (modified) universalism, which has been the golden thread running through English cross border insolvency law since the 18th century. That principle requires that English courts should, so far as is consistent with justice and UK public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. In Cambridge Gas he said: The English common law has traditionally taken the view that fairness between creditors requires that, ideally, bankruptcy proceedings should have universal application. There should be a single bankruptcy in which all creditors are entitled and required to prove. No one should have an advantage because he happens to live in a jurisdiction where more of the assets or fewer of the creditors are situated. At paras 94 to 98 above Lord Collins discusses the nature of avoidance proceedings. I entirely agree with his analysis. Avoidance provisions requiring the adjustment of prior transactions and the recovery of previous dispositions of property so as to constitute the estate available for distribution are necessary in order to maintain the principle of equality among creditors. At para 15 Lord Collins notes that Lord Hoffmann said at para 19 of HIH that the process of collection of assets will include, for example, the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme. In short, avoidance proceedings, and therefore avoidance orders, are central to the bankruptcy proceedings. As Lord Collins puts it at para 98, avoidance proceedings are peculiarly the subject of insolvency law. I accept that to permit the enforcement of an avoidance order in circumstances of this kind would be a development of the common law. However, it seems to me that it would be a principled development. It would in essence be an application of the principle identified by Lord Hoffmann in the passage quoted above from para 30 of HIH that the principle of modified universalism requires that English courts should, so far as is consistent with justice and United Kingdom public policy, co operate with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. The position of the judgment debtor in such a case would be protected by the principle that the English court would only enforce a judgment in a case like this where to do so was consistent with justice and United Kingdom public policy. All would depend upon the facts of the particular case. In the case of Rubin, there would be no injustice in enforcing the judgment against the appellants. Lord Mance notes at para 189 that I do not define either the circumstances in which a foreign court should be recognised as having jurisdiction to entertain bankruptcy proceedings or the factors which would make it unjust or contrary to public policy to recognise an avoidance order made in such foreign proceedings. As I see it, these are matters which would be worked out on a case by case basis in (as Lord Hoffmann put it in HIH at para 30) co operating with the courts in the country of the principal liquidation to ensure that all the companys assets are distributed to its creditors under a single system of distribution. It would not be irrelevant that the debtor under the avoidance order had not submitted. All would depend upon the particular circumstances of the case, including the reasons why the debtor had not submitted. In essence, on the critical question, I prefer the reasoning of the Court of Appeal, which is contained in the judgment of Ward LJ, with whom Wilson LJ and Henderson J agreed. Lord Collins has concisely summarised their reasoning in paras 88 to 90, substantially as follows: (a) the judgment was final and conclusive, and for definite sums of money, and on the face of the orders was a judgment in personam; (b) it was common ground that the judgment debtors were not present when the proceedings were instituted, and did not submit to the jurisdiction, and so at first blush had an impregnable defence; (c) Cambridge Gas decided that the bankruptcy order with which it was concerned was neither in personam nor in rem, and its purpose was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established: Pattni v Ali [2007] 2 AC 85, para 23; (d) bankruptcy was a collective proceeding to enforce rights and not to establish them: Cambridge Gas [2007] 1 AC 508, para 15; (e) the issue was whether avoidance proceedings which could only be brought by the representative of the bankrupt were to be characterised as part of the bankruptcy proceedings, ie part of the collective proceeding to enforce rights and not to establish them; (f) the adversary proceedings were part and parcel of the Chapter 11 proceedings; (g) the ordinary rules for enforcing foreign judgments in personam did not apply to bankruptcy proceedings; (h) avoidance mechanisms were integral to and central to the collective nature of bankruptcy and were not merely incidental procedural matters; (i) the process of collection of assets will include the use of powers to set aside voidable dispositions, which may differ very considerably from those in the English statutory scheme: HIH [2008] 1 WLR 852, para 19; (j) the judgment of the US Bankruptcy Court was a judgment in, and for the purposes of, the collective enforcement regime of the insolvency proceedings, and was governed by the sui generis private international law rules relating to insolvency; (k) that was a desirable development of the common law founded on the principles of modified universalism, and did not require the court to enforce anything that it could not do, mutatis mutandis, in a domestic context; (l) there was a principle of private international law that bankruptcy should be unitary and universal, and there should be a unitary insolvency proceeding in the court of the bankrupts domicile which receives worldwide recognition and should apply universally to all the bankrupts assets; (m) there was a further principle that recognition carried with it the active assistance of the court which included assistance by doing whatever the English court could do in the case of a domestic insolvency; (n) there was no unfairness to the appellants in upholding the judgment because they were fully aware of the proceedings, and after taking advice chose not to participate: see [2011] Ch 133, paras 38, 41, 43, 45, 48, 50, 61 62 and 64. That seems to me to be a correct summary of the views of the Court of Appeal. I agree with those views subject to this comment on point (c). I am not sure that in Cambridge Gas the Privy Council decided that the bankruptcy order with which it was concerned was neither in personam nor in rem. It held that the purpose of the order was simply to establish a mechanism of collective execution against the property of the debtor by creditors whose rights were admitted or established. As discussed above, it may well have appreciated that it was also an order in rem. However that may be, I agree with Lord Collins at para 90 that, in short, the Court of Appeal accepted that the judgment sought to be enforced in the instant cases was an in personam judgment, but decided that the Dicey Rule did not apply to foreign judgments in avoidance proceedings because they were central to the collective enforcement regime in insolvency and were governed by special rules. I agree with the reasoning of the Court of Appeal. Put another way, the Dicey Rule should in my opinion be modified to include a fifth case in which a foreign court has jurisdiction to give a judgment in personam capable of enforcement or recognition as against the person against whom it is given. That fifth case would be if the judgment was given in avoidance proceedings as part of foreign bankruptcy proceedings which the foreign court had jurisdiction to entertain. I recognise that there are other ways of achieving such a result, as for example by an equivalent provision to the EC Insolvency Regulation: per Lord Collins at paras 99 101. I also recognise that it would be possible to adopt a more radical approach not limited to avoidance proceedings. However, so limited, I respectfully disagree with the view expressed by Lord Collins at para 128 that this development would not be an incremental development of existing principles but a radical departure from substantially settled law. For the reasons given in para 198, it would in essence be an application of the principle of modified universalism. It seems to me that in these days of global commerce, the step taken by the Court of Appeal was but a small step forward. Judgment debtors are protected by the principle that no order would be made if it were contrary to justice or United Kingdom public policy. Moreover, on the facts here, I can see no basis upon which the order made by the Court of Appeal would be either unjust or contrary to public policy. Finally, I do not think that that conclusion is undermined by any absence of reciprocity. For these reasons, I would dismiss the appeal in the Rubin case on the common law point. On all other issues I agree with the judgment of Lord Collins.

The two appeals concern whether, and if so, in what circumstances, an order or judgment of a foreign court in proceedings to set aside prior transactions, such as preferences or transactions at an undervalue (avoidance proceedings), will be recognised and enforced in England and Wales. The appeals also raise the question of whether enforcement may be effected through the international assistance provision of the UNCITRAL Model Law implemented by the Cross Border Insolvency Regulations 2006, which apply generally, or the assistance provisions of s.426 of the Insolvency Act 1986 (the Insolvency Act), which applies to a limited number of countries, including Australia. In Rubin a judgment of the US Federal Bankruptcy Court for the Southern District of New York in default of appearance for around US$10m in respect of fraudulent conveyances and transfer was enforced in England at common law. In New Cap, bound by the prior decision in Rubin, a default judgment of the New South Wales Supreme Court for about US$8m in respect of unfair preferences under Australian law was enforced under the Foreign Judgments (Reciprocal Enforcement) Act 1933 (1933 Act) and, alternatively, pursuant to the Insolvency Act. In both appeals the parties against whom the judgments were made were neither present in the foreign country nor had they submitted to the jurisdiction. Since both judgments were in personam, the essential issue was whether the existing principles were applicable or whether the Court should adopt separate rules for judgments in personam in avoidance proceedings, where the judgments were central to the purposes of the insolvency proceedings or part of the mechanism of collective execution. The Supreme Court by a majority of 4:1 (Lord Clarke dissenting) allowed the appeal in Rubin holding that there should not be special rules for avoidance judgments but dismissed the appeal in New Cap on the ground that the Syndicate submitted to the jurisdiction of the Australian Court. Lord Collins gave the leading judgement. Broadly, under both the common law and the 1933 Act, a foreign court has jurisdiction to give a judgment in personam capable of recognition and enforcement against the person whom the judgment was given if the person (i) was present in the foreign court when proceedings were instituted; (ii) was a claimant, or counterclaimed, in the foreign proceedings; (iii) submitted to the jurisdiction of the foreign court by voluntarily appearing in the proceedings; or (iv) agreed to submit to the jurisdiction of the foreign court before the commencement of the proceedings. As a matter of policy, the Court did not agree that, in the interests of the universality of bankruptcy and similar procedures, there should be a more liberal rule for judgments given in foreign insolvency proceedings for the avoidance of transactions. [115] A different rule for avoidance proceedings would mean courts would have to develop two aspects of jurisdiction: a requisite nexus between the insolvency and the foreign court and a requisite nexus between the judgment debtor and the foreign court. [117] Such a change would not be an incremental development of existing principles but a radical departure from substantially settled law, and more suitable for the legislature than judicial innovation. The restricted scope of the existing rules reflects the fact that there is no expectation of reciprocity on the part of foreign countries. [128 29] Expanding the principal would also be detrimental to United Kingdom businesses without any corresponding benefit. [130] Nor would any serious injustice result from adhering to the traditional rule. There were several other avenues open to officeholders. Rubin, for example, could have been founded on proceedings by trustees in England for the benefit of creditors under an express trust, and avoidance claims by the liquidator of an Australian company may be the subject of a request by the Australian court under the Insolvency Act. [131] Lord Collins (with the agreement of Lord Walker and Lord Sumption) held that the earlier Privy Council decision in Cambridge Gas Transportation Corporation v Official Committee of Unsecured Creditors of Navigator Holdings plc [2007] 1 AC 508 was wrongly decided as there was no basis for the recognition of the US Bankruptcy order in the Isle of Mann in that case. [132] Whilst agreeing it was distinguishable, Lord Mance reserved judgment on whether it was wrongly decided. [178] As for enforcement under the Cross Border Insolvency Regulations 2006, there was nothing expressly or by implication in the UNICTRAL Model Law that applied to the recognition or enforcement of foreign judgments against third parties. [142 44] In relation to New Cap, Lord Collins concluded that the Syndicate had submitted to the jurisdiction of Australia having chosen to prove in New Caps Australian insolvency proceedings. It should not be allowed to benefit from the insolvency proceeding in this way without the burden of complying with orders made in that proceeding. [156 167] In these circumstances, the 1933 Act would apply to the Australian judgment and enforcement should be by way of registration under the 1933 Act rather than by the common law. In view of the conclusion that the Syndicate submitted to the Australian jurisdiction, the issue of enforcement under the Insolvency Act did not arise. However, Lord Collins expressed the opinion that the relevant subsections of the Insolvency Act were not concerned with enforcement of judgements having examined their construction and the statutory history. [152 154] Lord Clarke dissented on the Rubin appeal. He relied on the principle that avoidance orders made by a foreign courts in bankruptcy proceedings (personal or corporate), which the court has jurisdiction to entertain, were enforceable if it could fairly be said to have been made in personam or in rem. [193] It was possible to have a rem order incidental to bankruptcy proceedings but which is enforceable at common law, provided that the bankruptcy court has jurisdiction in the bankruptcy [195 6]. Avoidance orders are central to bankruptcy proceedings. To allow for their enforcement was in keeping with the principle of modified universalism requiring English courts, so far as is consistent with justice and UK public policy, to co operate with the courts in the country of the principal liquidation to ensure a companys assets are distributed to the creditors under a single system of distribution [199]. This would be worked out on a case by case basis depending on the facts of the particular case. [200 1]

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The common law has long protected the liberty of the subject, through the machinery of habeas corpus and the tort of false imprisonment. Likewise, article 5 of the European Convention on Human Rights begins: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. In Storck v Germany (2005) 43 EHRR 6, paras 74 and 89, confirmed by the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 22, paras 117 and 120, and adopted by this court in Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896 (commonly known as Cheshire West), para 37, the European Court of Human Rights held that there were three components in a deprivation of liberty for the purpose of article 5: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State. At the same time, the common law and equity have long recognised the authority of parents over their minor children, now encapsulated in the concept of parental responsibility in the Children Act 1989. Likewise, article 8 of the European Convention on Human Rights begins Everyone has the right to respect for his private and family life, his home and his correspondence; and, as this court recognised in Christian Institute v Lord Advocate [2016] UKSC 51; 2017 SC (UKSC) 29, paras 71 to 74, the responsibility of parents to bring up their children as they see fit, within limits, is an essential part of respect for family life in a western democracy. This case is about the interplay between the liberty of the subject and the responsibilities of parents, between the rights and values protected by article 5 and the rights and values protected by article 8, and between the relationship of parent and child at common law and the Convention rights. The principal issue can be simply stated: is it within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to a deprivation of liberty within the meaning of article 5? But this principal issue cannot sensibly be addressed without also considering further issues. What difference, if any, does it make that the child lacks the mental capacity to make the decision for himself? What difference, if any, does it make that the holder of parental responsibility is a public authority rather than an individual? Furthermore, although the concentration in this case is upon 16 and 17 year old children, similar issues would arise in a case concerning a child under 16. A further issue was raised by the court after the hearing: do the restrictions on placing children in accommodation provided for the purpose of restricting liberty, arising from section 25 of the Children Act 1989, apply to the sort of living arrangements in question here? We are grateful to the parties for their written submissions on this complicated issue. It is addressed by Lady Black at paras 91 to 115 of her judgment, with which I agree. The history The child in question, D, was born on 23 April 1999, and so is now aged 20 and an adult. Nevertheless, the importance of the issues is such that this court gave the Official Solicitor, who acts for him as his litigation friend, permission to appeal from the decision of the Court of Appeal. D was diagnosed with attention deficit hyperactivity disorder at the age of four, Aspergers syndrome at seven, and Tourettes syndrome at eight. He also has a mild learning disability. His parents struggled for many years to look after him in the family home, despite the many difficulties presented by his challenging behaviour. Eventually, in October 2013 when he was 14, he was informally admitted to Hospital B for multi disciplinary assessment and treatment. Hospital B provided mental health services for children between the ages of 12 and 18. He lived in a unit in the hospital grounds and attended a school which was integral to the unit. The external door to the unit was locked and D was checked on by staff every half hour. If he left the site, he was accompanied by staff on a one to one basis. His visits home were supervised at all times. In 2014, the Hospital Trust issued an application under the inherent jurisdiction of the Family Division of the High Court relating to children, seeking a declaration that it was lawful for the Trust to deprive D of his liberty and that this was in his best interests. In March 2015, Keehan J held: first, that the conditions under which D lived amounted to depriving him of his liberty (by which he meant confinement under limb (a) of Storck v Germany, para 1 above); the fact that he enjoyed living in the unit made no difference; second, that it was within the zone of parental responsibility for his parents to agree to what would otherwise be a deprivation of liberty; it was a proper exercise of parental responsibility to keep an autistic 15 year old boy who had erratic, challenging and potentially harmful behaviours under constant supervision and control; but third, once he reached 16 he would come under the jurisdiction of the Court of Protection and the different regime there, largely contained in the Mental Capacity Act 2005: In re D (A Child) (Deprivation of Liberty) [2015] EWHC 922 (Fam); [2016] 1 FLR 142. By then, the clinical team had agreed that D should be discharged from Hospital B to a residential placement. Birmingham City Council took the lead in making the arrangements for D to move to Placement B. His parents agreed to the move. On 23 April 2015, his 16th birthday, proceedings were issued in the Court of Protection. Birmingham sought a declaration that D would not be deprived of his liberty at Placement B because his parents could consent to it. On 20 May 2015, Keehan J made an order for Ds transfer from Hospital B to Placement B. This took place on 2 June 2015. D was accommodated there under section 20 of the Children Act 1989 and thus became a looked after child within the meaning of section 22(1) of that Act. It has always been common ground between the parties to this case that the arrangements under which D lived at Placement B would have amounted to a deprivation of liberty were it not for his parents consent to them. Placement B was a large house set in its own grounds, with 12 residential units in the grounds, each with its own fenced garden. D lived with three other young people in House A. The external doors were locked. If he wanted to go out into the garden, he had to ask for the door to be unlocked. He was not allowed to leave the premises except for a planned activity, such as attending his school, which was also on the site, swimming and leisure activities. He received one to one support during waking hours and staff were in constant attendance overnight. The application was heard by Keehan J in the Court of Protection in November 2015. In January 2016, he held: first, that the parents could no longer consent to what would otherwise be a deprivation of liberty now that D had reached 16; his principal reasons for doing so were that Parliament had, on numerous occasions, distinguished the legal status of those who had reached the age of 16 from that of those who had not; and that the Mental Capacity Act 2005 applied to people who had reached the age of 16. He also held that this deprivation of liberty was attributable to the state, a matter which is no longer in dispute: Birmingham City Council v D (by his litigation friend, the Official Solicitor) [2016] EWCOP 8; [2016] PTSR 1129. Birmingham City Council appealed to the Court of Appeal. Before the hearing, D was transferred to Placement C, where the arrangements were not materially different from those in Placement B. Once again, his parents agreed to his being accommodated under section 20 of the 1989 Act, to the arrangements themselves and to the restrictions on Ds liberty which they entailed. On 23 November 2016, Keehan J authorised the placement and the deprivation of liberty. There has never been any doubt that both placements were in Ds best interests but that D himself did not have the capacity to consent to them. The appeal was heard in February 2017, but judgment was not given until 31 October 2017. In the meantime, D had reached the age of 18 and parental responsibility for him ceased. However, by virtue of his age, it was now possible for a deprivation of liberty in a hospital or care home to be authorised under the deprivation of liberty safeguards in Schedule A1 to the Mental Capacity Act 2005 (which applied only to those aged 18 or over), as well as by the Court of Protection. The Court of Appeal agreed with Keehan J that Ds accommodation in Placement B and Placement C was attributable to the State. However, the appeal was allowed on the ground that Keehan J had been wrong to hold that a parent could not consent to what would otherwise be a deprivation of the liberty of a 16 or 17 year old child who lacked the capacity to decide for himself. Sir James Munby P, in a typically erudite judgment, traced the development of the common law responsibilities of parents in great detail. He concluded, first, that the approach of Keehan J did not give effect to the fundamental principle, established by the majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, that the exercise of parental responsibility comes to an end, not on the childs attaining a fixed age, but on his attaining Gillick capacity; and second, that none of the statutory provisions upon which Keehan J had relied had a bearing on the matter in hand (para 125). The position of each party to this appeal The Official Solicitor now appeals to this court on Ds behalf. The Official Solicitors primary case is that, whatever may once have been the position at common law, no person can consent to the confinement of a child who has reached the age of 16 and lacks the capacity to decide for himself. If such a child is confined, and that confinement is attributable to the state, he is deprived of his liberty within the meaning of article 5 and there must be safeguards to ensure that the deprivation is lawful. The Mental Capacity Act 2005 provides a complete decision making framework for the care and treatment of people aged 16 and above who lack the capacity to decide for themselves. His alternative case is that, even if such consent is within the scope of parental responsibility, the person giving it should apply the principles and procedure for deciding whether the arrangements are in the childs best interests set out in section 4 of the Mental Capacity Act 2005. Birmingham City Councils case is that it is within the scope of a parents lawful exercise of parental responsibility to authorise the confinement of a 16 or 17 year old child who is not Gillick competent to consent. The common law as to the scope of parental responsibility in this respect has not been eroded by the Mental Capacity Act 2005 or by any other legislation. If it affects the exercise of parental responsibility at all, it does so only by substituting the concept of lack of capacity within the meaning of the Act for the concept of lack of competence within the meaning of Gillick (to the extent that these two may differ an issue which does not arise on this appeal). The Equality and Human Rights Commission have been given permission to intervene in this court, as they did in the Court of Appeal. Their case is that, while parental responsibility can in principle extend to the age of 18, whether it applies in particular circumstances has to be judged in the light, not only of the common law, but also of statute, the European Convention on Human Rights and other international instruments. Parents should not be able to consent to the confinement of a 16 or 17 year old child, thereby removing the protections given by article 5 of the European Convention. Further, to remove those protections from a child who lacks Gillick competence because of a disability, while according them to a competent child, is unjustified discrimination on the ground of his or her disability. The Secretaries of State for Education and for Justice did not intervene in the Court of Appeal but have been given permission to intervene jointly in this court. The Secretary of State for Education has policy responsibility for children and young people and depriving them of liberty; the Secretary of State for Justice has overall policy responsibility for the Mental Capacity Act 2005 and in relation to parental responsibility generally. Their case is, first, that a child will only be confined if the restrictions on his liberty go beyond those which would be imposed upon a child of the same age and relative maturity who is free from disability; and second, that even if a child is confined, a person with parental responsibility may provide a valid consent to that confinement if the child is not Gillick competent to make the decision for himself; however, a person with parental responsibility must be acting in the best interests of the child for there to be a proper exercise of that responsibility. The Secretaries of State agree with both the Official Solicitor and Birmingham City Council that a local authority with parental responsibility by virtue of a care order or interim care order, or with any other statutory responsibilities for a child, cannot supply a valid consent to the confinement of a child (as Keehan J held in In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam), [2016] 1 WLR 1160; see also In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377, para 35 below). Only a natural person with parental responsibility can do so. Quite what the basis is for distinguishing between the content of parental responsibility according to the person who holds it is not explained: the Children Act 1989, which both defines and governs the allocation of parental responsibility, makes no such distinction. Parental responsibility This case turns on the inter relationship between the concept of parental responsibility, as defined by the Children Act 1989, the common law and other relevant statutory provisions, and the obligation of the State to protect the human rights of children under the European Convention on Human Rights. The one cannot supply an answer without reference to the other. It makes sense, therefore, to begin with parental responsibility. Parental responsibility is defined in the Children Act 1989 as all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property (section 3(1)). By law obviously refers to the common law, but also includes those statutory provisions which give rights etc to parents, such as the Marriage Act 1949, which gives them the right to withhold consent to the marriage of a 16 or 17 year old child (section 3). As Lady Black explains in more detail in paras 55 to 68 of her judgment, the common law and equity recognised the parental power of a father over his legitimate minor children (the mother did not acquire equal rights and authority with the father until the Guardianship Act 1972): see the valuable account of the history by P H Pettitt, Parental Control and Guardianship in R H Graveson and FR Crane, A Century of Family Law (1957, Sweet & Maxwell). The high water mark of this was the well known case of In re Agar Ellis (No 2) (1883) 24 Ch D 317, at 326, where the Master of the Rolls declared: the law of England is, that the father has the control over the person, education and conduct of his children until they are 21 years of age. That is the law. However, as Sachs LJ explained in Hewer v Bryant [1970] 1 QB 357, at 372, in passages quoted in full at para 55 of Lady Blacks judgment, a distinction was drawn between custody in the narrow sense of the right to physical possession of the child and custody in the wider sense of the right to control every aspect of the childs life, including his religion, education and property. The common law courts would enforce the former by way of the writ of habeas corpus. But they would refuse to do this against the wishes of the child, once he or she had reached the age of discretion. In the 19th century, this was regarded as fixed at 14 for boys and 16 for girls (the latter by reference to the Abduction Acts of 1557 and 1828). The Court of Chancery would enforce all parental powers and authority, but by way of the Crowns parens patriae jurisdiction rather than by way of enforcing the parents rights, potentially up to the age of majority. Parental rights were never absolute and became increasingly subject to the overriding consideration of the childs own welfare. This was put on a statutory footing by the Guardianship of Infants Act 1925, which famously declared that Where in any proceedings before any court the custody or upbringing of an infant, or the administration of any property belonging to or held in trust for an infant, or the application of the income thereof, is in question, the court, in deciding that question, shall regard the welfare of the infant as the first and paramount consideration (section 1). That remains the guiding principle in section 1(1) of the Children Act 1989, which provides that the childs welfare shall be the courts paramount consideration. Section 1, of course, deals with the position if a case about a childs upbringing gets to court. But what about the powers and authority of holders of parental responsibility before a case gets to court? Two 20th century cases show how, whatever may have been the earlier position, the common law is capable of moving with the times. In Hewer v Bryant [1970] 1 QB 357, the issue was the meaning of in the custody of a parent in the Limitation Act 1954. The High Court had held that a child remained, by law, in the custody of his father until the age of majority, applying In re Agar Ellis. The Court of Appeal held that a 15 year old living away from home and working as an agricultural trainee was not in the custody of a parent for this purpose. Custody in the Limitation Act meant the actual exercise of powers of control. But both Lord Denning MR and Sachs LJ recognised that the parents legal powers of physical control diminished as the child got older. Sachs LJ expressly referred to the parents ability to restrict the liberty of the person, which lasted until the age of discretion, and distinguished between the parental power and the courts power, which lasted until the age of majority (p 372). Lord Denning MR put it this way: the legal right of a parent to the custody of a child is a dwindling right which the courts will hesitate to enforce against the wishes of the child, and the more so the older he is. It starts with a right of control and ends with little more than advice. That dictum was approved by the majority of the House of Lords in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112, at pp 172, 186, 195. The issue was whether it was lawful to give contraceptive advice and treatment to a child under 16 without her parents consent if she herself was capable of giving that consent. The Court of Appeal had held that this would be infringing the inalienable and legally enforceable rights of parents relating to the custody and upbringing of their children which, except in emergencies, could only be overridden by a court. A girl under 16 was incapable either of consenting to treatment or prohibiting a doctor from seeking the consent of her parents. The House of Lords, by a majority, disagreed. The earlier age of discretion cases had established the principle that children could achieve the capacity to make their own decisions before the age of majority. It was no longer, if it ever had been, correct to fix that at any particular age, rather than by reference to the capacity of the child in question: it had already been established that a child below the age of 16 could consent to sexual intercourse so that it was not rape (R v Howard [1966] 1 WLR 13) or to being taken away so that it was not kidnapping (R v D [1984] AC 778). Parental rights and authority existed for the sake of the child, to enable the parent to discharge his responsibilities towards the child, and not for the sake of the parent. Lord Scarman put it thus (p 185): The principle is that parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection, and education until he [the child] reaches such an age as to be able to look after himself and make his own decisions. The consequence was that (p 188): as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. As Lady Black explains in paras 69 to 72 of her judgment, the Gillick case is not directly relevant to the issue before us now. It had to do with medical treatment and not with deprivation of liberty. It was concerned with whether a child might acquire the capacity, and the right, to make such decisions for herself before she reached the common law age of discretion, not with whether parental authority endured beyond that age if the child lacked the capacity to decide for herself. And as Lady Black has shown, it is, to say the least, highly arguable that such authority did not extend to depriving such a child of her liberty once she had reached the age of discretion. Some support for that conclusion is supplied by the earliest legislation dealing specifically with people with mental disabilities, the Mental Deficiency Act 1913. Section 6(3) provided both for detention in an institution and admission to guardianship. Section 10(2) provided that an order that a person be placed under guardianship conferred upon the person named as guardian such powers as would have been exercisable if he had been the father of the defective and the defective had been under the age of 14. That provision remained in force until repealed by the Mental Health Act 1959, under which the powers of a guardian were defined, by section 34(1), in materially identical terms. (The powers of a guardian are now more narrowly defined in the Mental Health Act 1983.) It is highly likely that it was contemplated that a guardian might have to accommodate the person under his guardianship in conditions which deprived him of his liberty. The fact that the guardian was therefore given the powers of the father of a child under 14, rather than the powers of the father of a child of any age, suggests that it was not then thought that a father had the right to deprive a child of any age of his liberty if the child lacked the capacity to make his own decisions. Many of the people falling within the definition of mental defective would lack that capacity. Statute has also intervened to make specific provision for children who have reached the age of 16. In the Court of Protection, Keehan J referred to the following (para 64) although not in the same terms or the same order: (i) Section 8(1) of the Family Law Reform Act 1969 provides that the consent of a child of 16 to any surgical, medical or dental treatment shall be as effective as it would be if he were of full age and that where a child has given an effective consent it is not necessary to obtain the consent of a parent or guardian. That is why the discussion in Gillick related to children below that age. However, subsection (3) provides that Nothing in this section shall be construed as making ineffective any consent which would have been effective if this section had not been enacted. Lord Fraser of Tullybelton saw this as recognising that the consent of a child below that age might also be effective. Whether the consent of a parent remains effective even if a child, with capacity, has refused consent is a more controversial question (which fortunately does not arise in this case). (ii) Section 131(2) of the Mental Health Act 1983 provides that subsections (3) and (4) apply to a child of 16 who has the capacity to consent to arrangements for his own informal admission to hospital for treatment for mental disorder. Subsection (3) provides that if he does consent, those arrangements may be made even though there is someone with parental responsibility for him; and subsection (4) provides that if he does not consent, then the arrangements cannot be made on the basis of parental consent. Subsection (5) provides that capacity is to be read in accordance with the Mental Capacity Act 2005. (iii) Section 2(5) of the Mental Capacity Act 2005 provides that the powers which may be exercised under that Act in relation to a person who lacks, or is reasonably believed to lack, capacity cannot be exercised in relation to a person under 16 (although there is an exception for powers in relation to their property and affairs if it is likely that the incapacity will continue past majority: section 18). This means that the Act, including the presumption of capacity in section 1(2) and the test for incapacity in sections 2(1) and 3, applies to a person who has reached 16. The Act gives protection for people acting in connection with the care and treatment of a person whom they reasonably believe to lack capacity if they reasonably believe that it will be in that persons best interests (section 5(1)). However, the Act does not authorise any person to deprive another person of his liberty except in accordance with an order of the court or if authorised under the deprivation of liberty safeguards in Schedule A1 (section 4A). Schedule A1 only applies to people aged 18 or over. After these events, a new Schedule AA1 (not yet in force) has been inserted applying to those aged 16 and above. (iv) Section 9(6) of the Children Act 1989 provides that no court may make a child arrangements, specific issue or prohibited steps order under section 8 of the Act which is to have effect after the child reaches 16 unless the circumstances are exceptional. (v) Section 31(3) of the Children Act 1989 provides that a care or supervision order may not be made in respect of a child of 17 (or of 16 who is married). However, an order made before this point can last until the child reaches 18 (section 92(12)). (vi) Section 20(11) of the Children Act 1989 provides that a child of 16 or 17 may agree to being accommodated by a local authority even if his parents object or wish to remove him. The age of 16 is significant for various other purposes, such as leaving school, joining the armed forces or getting married (albeit that parental consent is usually required). So Keehan J was correct to suggest that the law accords children who have reached 16 a status which is in some respects different from that of children under that age. However, Sir James Munby P was also correct to hold that these provisions do not supply the answer to the issues in this case. Items (iv) and (v) are concerned with the limits on making court orders. Items (i) and (ii) relate only to children who have the capacity to make a decision for themselves, and it is quite possible that item (vi) is also so limited. Furthermore, as Gillick holds, a child may acquire the capacity to make certain decisions for himself before the age of 16. We are concerned with the extent of parental responsibility for a child who lacks the capacity to make the decision for himself. It may well be that, as a general rule, parental responsibility extends to making decisions on behalf of a child of any age who lacks the capacity to make them for himself. This would always be subject to the courts powers of intervention, whether at the behest of another parent or individual in private law proceedings under Part 2 of the Children Act 1989, or at the behest of a local authority in public law proceedings under Part 4 on the ground that the child is suffering or likely to suffer significant harm as a result of the parents decisions. The question, however, is whether there are any limits to that general rule, and in particular whether it is within the scope of parental responsibility to make arrangements which have the effect of depriving a child of his liberty. In view of the conclusion which I have reached as to the effect of article 5 of the European Convention on Human Rights, and the interaction between parental responsibility and the childs rights under article 5, it is strictly unnecessary to reach a concluded view on that question. But I acknowledge the force of the conclusion reached by Lady Black at para 90 of her judgment. As she says, it reinforces the conclusion which I have reached for other reasons. The European Convention on Human Rights Article 1 of the European Convention on Human Rights requires the High Contracting Parties to secure to everyone within their jurisdiction the rights and freedoms set out in the Convention. There can be no doubt that everyone includes minor children, or indeed that the Convention rights may require adaptation to cater for their special needs as children: see, for example, the case of Thompson and Venables dealing with the fair trial rights of children accused of serious crime: T v United Kingdom (1999) 30 EHRR 121. We are here concerned with article 5, which, as already stated, accords to everyone the right to liberty and security of person. No one shall be deprived of his liberty save in the [listed] cases and in accordance with a procedure prescribed by law. That this applies to children is made clear by article 5(1)(d) which permits the detention of a minor by lawful order for the purpose of educational supervision . That it applies to people who lack the capacity to make decisions for themselves is made clear by article 5(1)(e) which permits the lawful detention of persons of unsound mind. Article 5(1) contains within it the requirement that decisions made under it are not arbitrary and accord with the Convention concept of legality: see, for example, HL v United Kingdom (2005) 40 EHRR 32. Article 5 also contains various specific procedural safeguards, including article 5(4), which requires that everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful. Prima facie, therefore, article 5 protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. All parties to this case agree that this means that a local authority which has parental responsibility for a child cannot deprive the child of his liberty without the authority of a court. But, say Birmingham City Council and the Secretaries of State, the position is different if the parents or other individuals with parental responsibility such as special guardians agree to it. Why should that be? The facts of RK v BCC, YB and AK [2011] EWCA Civ 1305; [2012] COPLR 146, were remarkably similar to the facts of this case. A young woman aged 17 suffered from autism, attention deficit hyperactivity disorder and severe learning difficulties, as well as epilepsy. She had been looked after at home for nearly 16 years but was then accommodated by the local authority under section 20 of the Children Act 1989 in a private care home. In proceedings brought by her mother in the Court of Protection, the Official Solicitor raised concerns that her living arrangements might amount to a deprivation of liberty. Mostyn J held: first, that the provision of accommodation under section 20 could never amount to a deprivation of liberty because the parents must have agreed to it; and second, that in any event the restrictions authorised by her parents did not amount to a deprivation of liberty. In relation to the first, the Court of Appeal upheld the consensus reached at the Bar (para 14): that an adult in the exercise of parental responsibility may impose, or may authorise others to impose, restrictions on the liberty of the child. However, restrictions so imposed must not in their totality amount to deprivation of liberty. Deprivation of liberty engages the article 5 rights of the child and a parent may not lawfully detain or authorise the deprivation of liberty of a child. However, the Court of Appeal went on to hold that the restrictions imposed did not amount to a deprivation of liberty: they were no more than what was reasonably required to protect RK from harming herself or others within her range (para 27). That decision was, of course, before the Supreme Courts decision in Cheshire West, which clarified the objective elements of a deprivation of liberty (limb (a) of Storck v Germany, para 1 above). The acid test is that a person is under continuous supervision and control and not free to leave. The fact that such restrictions may be necessary in order to prevent a person from harming himself or others makes no difference. Nor does the fact that the persons living arrangements are as close to a normal home life as they could possibly be. It seems likely, therefore, that the conditions under which RK was living would now be regarded as depriving her of her liberty. But it is not clear why that should make any difference to the validity of the consensus reached at the Bar and endorsed by the court as to the scope of parental responsibility. The basis for that consensus was said to be the case of Nielsen v Denmark (1988) 11 EHRR 175 in the European Court of Human Rights, together with the Court of Appeal decision in In re K (A Child) (Secure Accommodation Order: Right to Liberty) [2001] Fam 377. It is worth looking at the case of Nielsen v Denmark in some detail. It concerned a 12 year old child of unmarried parents. The mother alone had custodial rights over him. Nevertheless, at the age of eight he had refused to return to his mother after a holiday with his father and then disappeared to live in hiding with his father for more than three years. He re appeared with his father during proceedings in which his father was attempting to obtain a change in custody. His father was arrested and his mother requested that the boy be admitted to the State Hospitals child psychiatric ward as it was clear that he did not want to stay with her. He was eventually discharged after six months and went to live with another family. However, five months after that, the Danish Supreme Court awarded custody to the father. The boy complained to the European Court of Human Rights that his rights under article 5(1) and 5(4) of the European Convention had been breached. The European Commission found, by 11 votes to one, that there had been a breach of article 5(1) and by ten votes to two that there had been a breach of article 5(4). However, the Court found, by nine votes to seven, that there had been no breach. It is not easy to identify how the majoritys decision fits into the tri partite scheme of later decisions such as Storck v Germany and Stanev v Bulgaria. The majority held that article 5 was not applicable in so far as it is concerned with deprivation of liberty by the state (para 64), a conclusion which was strongly disputed by the dissenters who pointed out that the boy was detained in a State Hospital, with the agreement of the responsible psychiatrist, and was returned to hospital by the police when he disappeared on the day that he was due to be discharged into his mothers care. Nevertheless, the majority went on to consider whether article 5 was applicable in regard to such restrictions on the applicants liberty as resulted from the exercise of the mothers parental rights (para 64). This can only be explained on the basis that, again as the minority observed, article 5 imposes a positive obligation upon the state to protect individuals from being deprived of their liberty by private persons. The majority went on to consider the boys actual situation. They found that he was in need of medical treatment for his nervous condition. The treatment did not involve medication, but consisted of regular talks and environmental therapy. The restrictions on his freedom of movement and contact with the outside world were not much different from restrictions which might be imposed on a child in an ordinary hospital. In general conditions in the ward were said to be as similar as possible to a real home (para 70). The restrictions to which the boy was subject were no more than the normal requirements for the care of a child of 12 years of age receiving treatment in hospital. They were not in principle different from those in many hospital wards where children with physical disorders were treated. The boy was still at an age at which it would be normal for a decision to be made by the parent even against the wishes of the child (para 72). Accordingly, the hospitalisation of the applicant did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interest of the child (para 73). The minority considered that the placing of a 12 year old boy who was not mentally ill for several months in a psychiatric ward was a deprivation of liberty for which the state was accountable. Whether one agrees with the majority or the minority assessment of the facts of the case, the majority judgment clearly turned on the comparative normality of the restrictions imposed upon the freedom of a 12 year old boy. In In re K (A Child) (Secure Accommodation Order: Right to Liberty), the Court of Appeal was faced with an argument that the regime for authorising the placement of a child in secure accommodation, under section 25 of the Children Act 1989, was incompatible with the right to liberty in article 5. The first issue was whether such a placement was indeed a deprivation of liberty, even though it was agreed to by the local authority, which had parental responsibility under an interim care order, as well as by the childs parents. Dame Elizabeth Butler Sloss P and Judge LJ held that it clearly was. Butler Sloss P recognised the force of the principles in Nielsen (and Family T v Austria, 64 DR 176, which followed it). Nevertheless, There is a point, however, at which one has to stand back and say: is this within ordinary acceptable parental restrictions upon the movements of a child or does it require justification? (para 28) Judge LJ was to the same effect: In short, although normal parental control over the movements of a child may be exercised by the local authority over a child in its care, the implementation of a secure accommodation order does not represent normal parental control (para 102). (They went on to hold that section 25 was not incompatible with article 5 as it fell within article 5(1)(d).) That, as it seems to me, is the crux of the matter. Do the restrictions fall within normal parental control for a child of this age or do they not? If they do, they will not fall within the scope of article 5; but if they go beyond the normal parental control, article 5 will apply (subject to the question of whether parental consent negates limb (b) of the Storck criteria, see para 42 below). Quite clearly, the degree of supervision and control to which D was subject while in Placement B and Placement C was not normal for a child of 16 or 17 years old. It would have amounted to a deprivation of liberty in the case of a child of that age who did not lack capacity. The question then arises what difference, if any, does Ds mental disability make? The answer to that question lies in the illuminating discussion by Lord Kerr in Cheshire West: 77. The question whether one is restricted (as a matter of actuality) is determined by comparing the extent of your actual freedom with someone of your age and station whose freedom is not limited. Thus a teenager of the same age and familial background as MIG and MEG is the relevant comparator for them. If one compares their state with a person of similar age and full capacity it is clear that their liberty is in fact circumscribed. They may not be conscious, much less resentful, of the constraint but, objectively, limitations on their freedom are in place. 78. All children are (or should be) subject to some level of restraint. This adjusts with their maturation and change in circumstances. If MIG and MEG had the same freedom from constraint as would any child or young person of similar age, their liberty would not be restricted, whatever their level of disability. As a matter of objective fact, however, constraints beyond those which apply to young people of full ability are and have to be applied to them. There is therefore a restriction of liberty in their cases. Because the restriction of liberty is and must remain a constant feature of their lives, the restriction amounts to a deprivation of liberty. Indeed, the principal point of Cheshire West was that the living arrangements of the mentally disabled people concerned had to be compared with those of people who did not have the disabilities which they had. They were entitled to the same human rights, including the right to liberty, as any other human being. The fact that the arrangements might be made in their best interests, for the most benign of motives, did not mean that they were not deprived of their liberty. They were entitled to the protection of article 5, precisely so that it could be independently ascertained whether the arrangements were indeed in their best interests. It follows that a mentally disabled child who is subject to a level of control beyond that which is normal for a child of his age has been confined within the meaning of article 5. Limb (a) of the three Storck criteria for a deprivation of liberty (see para 1 above) has been met. There was, however, an argument that the consent of Ds parents supplied a substitute for the consent of the person confined, so that limb (b) was not met. It suited counsel in Cheshire West (as recorded in the last sentence of para 41) to argue that Nielsen should be regarded as a case of substituted consent, because no person has the right to give such consent on behalf of a mentally incapacitated adult. But, as also pointed out in Cheshire West, it is striking that the European Court of Human Rights has consistently held that limb (b) can be satisfied despite the consent of a person with the legal right to make decisions on behalf of the person concerned: see Stanev v Bulgaria (2012) 55 EHRR 696, DD v Lithuania [2012] MHLR 209, Kedzior v Poland [2013] MHLR 115, Mihailovs v Latvia, unreported, and now Stankov v Bulgaria [2015] 42 ECtHR 276. In Stanev, the court did observe, in passing, that there are situations where the wishes of a person with impaired mental facilities may be validly replaced by those of another person acting in the context of a protective measure and that it is sometimes difficult to ascertain the true wishes or preferences of the person concerned (para 130). However, as Keehan J observed in the Court of Protection (para 118) that is very far from adopting a general principle of substituted consent. The consent of a legal guardian may have been sufficient to make the confinement lawful in the domestic law of the country concerned, but that did not prevent its being a deprivation of liberty, or guarantee that it fulfilled the Convention requirement of legality. In the cases where limb (b) has been held to be satisfied, it is because the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view. Parental consent, therefore, cannot substitute for the subjective element in limb (b) of Storck. As already mentioned, limb (c) of Storck is no longer disputed and rightly so. Not only was the State actively involved in making and funding the arrangements, it had assumed statutory responsibilities albeit not parental responsibility towards D by accommodating him under section 20 of the Children Act 1989, thereby making him a looked after child. Even without all this, it is clear that the first sentence of article 5 imposes a positive obligation on the State to protect a person from interferences with liberty carried out by private persons, at least if it knew or ought to have known of this: see, for example Storck, para 89. In conclusion, therefore, the accommodation of D in Placement B and Placement C did amount to a deprivation of liberty within the meaning of article 5 and the fact that his parents agreed to them did not rob the arrangements of this quality. The procedural requirements of article 5 applied. (As it happens, both placements were authorised by a High Court Judge sitting in the Court of Protection and it is common ground that they were in Ds best interests. His rights under article 5 have not, in fact, been violated.) This conclusion is consistent with the whole thrust of Convention jurisprudence on article 5, which was examined in great detail in Cheshire West. But it is reinforced by the consideration that it is also consistent with the principle of non discrimination in article 2.1 of the United Nations Convention on the Rights of the Child, which requires that the rights set out in the Convention be accorded without discrimination on the ground of, inter alia, disability, read together with article 37(b), which requires that no child shall be deprived of his liberty unlawfully or arbitrarily, and article 37(d), which requires the right to challenge its legality. It is also consistent with article 7.1 of the United Nations Convention on the Rights of Persons with Disabilities, which requires all necessary measures to ensure the full enjoyment by children with disabilities of all human rights and fundamental freedoms on an equal basis with other children. Parental responsibility and human rights But what is the relationship between holding that the placement did deprive D of his liberty within the meaning of article 5 and the view that it might otherwise have been within the scope of parental responsibility? Parental responsibility is about the relationship between parent and child and between parents and third parties: it is essentially a private law relationship, although a public authority may also hold parental responsibility. As Irwin LJ correctly pointed out (para 157) human rights, on the other hand, are about the relationship between individuals (or other private persons) and the state. It is, however, now agreed that any deprivation of liberty in Placement B or Placement C was attributable to the state. So is there any scope for the operation of parental responsibility to authorise what would otherwise be a deprivation of liberty? There are two contexts in which a parent might attempt to use parental responsibility in this way. One is where the parent is the detainer or uses some other private person to detain the child. However, in both Nielsen and Storck it was recognised that the state has a positive obligation to protect individuals from being deprived of their liberty by private persons, which would be engaged in such circumstances. The other context is that a parent might seek to authorise the state to do the detaining. But it would be a startling proposition that it lies within the scope of parental responsibility for a parent to license the state to violate the most fundamental human rights of a child: a parent could not, for example, authorise the state to inflict what would otherwise be torture or inhuman or degrading treatment or punishment upon his child. Likewise, section 25 of the Children Act 1989 recognises that a parent cannot authorise the State to deprive a child of his liberty by placing him in secure accommodation. While this proposition may not hold good for all the Convention rights, in particular the qualified rights which may be restricted in certain circumstances, it must hold good for the most fundamental rights to life, to be free from torture or ill treatment, and to liberty. In any event, the state could not do that which it is under a positive obligation to prevent others from doing. In conclusion, therefore, it was not within the scope of parental responsibility for Ds parents to consent to a placement which deprived him of his liberty. Although there is no doubt that they, and indeed everyone else involved, had Ds best interests at heart, we cannot ignore the possibility, nay even the probability, that this will not always be the case. That is why there are safeguards required by article 5. Without such safeguards, there is no way of ensuring that those with parental responsibility exercise it in the best interests of the child, as the Secretaries of State acknowledge that they must. In this case, D enjoyed the safeguard of the proceedings in the Court of Protection. In future, the deprivation of liberty safeguards contained in the Mental Capacity Act 2005 (as amended by the Mental Capacity (Amendment) Act 2019) will apply to children of 16 and 17. I would therefore allow this appeal and invite the parties submissions on how best to incorporate this conclusion in a declaration. Logically, this conclusion would also apply to a younger child whose liberty was restricted to an extent which was not normal for a child of his age, but that question does not arise in this case. The common law may draw a sharp distinction, in relation to the deprivation of liberty, between those who have reached the age of 16 and those who have not, but the extent to which that affects the analysis under the Human Rights Act is not clear to me and we have heard no argument upon it. I therefore prefer to express no view upon the question. Nor would I express any view on the extent of parental responsibility in relation to other matters, such as serious and irreversible medical treatment, which do not entail a deprivation of liberty. Some reference to this was made in the course of argument, but it does not arise in this case, which is solely concerned with depriving 16 and 17 year olds of their liberty. It follows that I agree with what Lady Black says about those last two points in para 90 of her judgment. LADY BLACK: The purpose of this judgment is two fold. It addresses the question of whether the restrictions, in section 25 of the Children Act 1989, on placing children in accommodation provided for the purpose of restricting liberty apply to the sort of living arrangements in question here. It also provides an opportunity to explain a little further why I agree with Lady Hales conclusion that the consent of Ds parents to his confinement cannot operate as a substitute for Ds own consent. Lady Hale bases this conclusion, essentially, on there being no room for substituted consent in cases such as the present, for reasons she sets out commencing at para 42 of her judgment; I agree with her on this point and I do not seek to detract from what she says there. My comments are directed at the prior issue of whether it is actually within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to a deprivation of liberty within the meaning of article 5. Like Sir James Munby P (at para 50 of the Court of Appeal judgment), I consider that, in order to answer this question, it is necessary to look to the domestic law, set in its proper historical context. Before us, the parties have not dwelt on the legal history in relation to parental responsibility. This is no doubt because the Official Solicitor accepts that the Court of Appeal was entitled to hold that, immediately following the decision in Gillick v West Norfolk & Wisbech Area Health Authority [1986] AC 112 (Gillick), parental responsibility was, in principle, exercisable to authorise the confinement of a 16 or 17 year old child who, for whatever reason, lacked capacity. The Official Solicitors argument is that that position has changed since Gillick with the passage of the Mental Capacity Act 2005 and the trends in international rights norms. Notwithstanding the Official Solicitors approach, I have gone back to look in detail at the old authorities, many of them signposted in the Presidents judgment. The President observed that the domestic law is far from straightforward, an observation which I have no difficulty in endorsing. At para 62 below, I have summarised an explanation given by Bowen LJ in In re Agar Ellis (No 2) (1883) 24 Ch D 317 of the terminology used in this area of the law, which might help a little in understanding the earlier authorities. Lady Hale sets out, in para 21, the themes which are to be found in the old cases. I do not disagree with what she says, but merely seek to add a little more detail to the picture and to explain that, as will become apparent (particularly from paras 88 to 90), I have reached a firmer conclusion than she has on this aspect of the case. It might be useful to set the scene by citing the passage from Sachs LJs judgment in Hewer v Bryant [1970] 1 QB 357, at 372 373, which, after his own study of the earlier authorities, the President found (para 65) to be an accurate analysis of the position: Before proceeding further, it is essential to note that among the various meanings of the word custody there are two in common use in relation to infants which are relevant and need to be carefully distinguished. One is wide the word being used in practice as almost the equivalent of guardianship: the other is limited and refers to the power physically to control the infant's movements. In its limited meaning it has that connotation of an ability to restrict the liberty of the person concerned to which Donaldson J referred in Duncans case, at p 762. This power of physical control over an infant by a father in his own right qua guardian by nature and the similar power of a guardian of an infants person by testamentary disposition was and is recognised at common law; but that strict power (which may be termed his personal power) in practice ceases upon the infant reaching the years of discretion. When that age is reached, habeas corpus will not normally issue against the wishes of the infant. Although children are thought to have matured far less quickly in the era when the common law first developed, that age of discretion which limits the fathers practical authority (see the discussion and judgment in R v Howes (1860) 3 El & El 332) was originally fixed at 14 for boys and 16 for girls (see per Lindley LJ in Thomasset v Thomasset [1894] P 295, 298). This strict personal power of a parent or guardian physically to control infants, which is one part of the rights conferred by custody in its wider meaning, is something different from that power over an infants liberty up to the age of 21 which has come to be exercised by the courts on behalf of the Crown as parens patriae, to use the phraseology in A Century of Family Law, 1857 1957 (1957), p 68. It is true that in the second half of last century that power was so unquestionably used in aid of the wishes of a father that it was referred to as if its resultant exercise was a right of the father. Indeed in the superbly Victorian judgments in the Agar Ellis case 24 Ch D 317, it seems thus to be treated: for the purpose, however, of the present issues it is sufficient to observe that if those judgments are to be interpreted as stating as a fact that fathers in practice personally had in 1883 strict and enforceable power physically to control their sons up to the age of 21, then as my Lord, the Master of the Rolls, has already indicated they assert a state of affairs that simply does not obtain today. In truth any powers exercised by way of physical control in the later years of infancy were not the fathers personal powers but the more extensive ones of the Crown (see Lindley LJ in Thomassets case [1894] P 295, 299); and hence the fathers right was really no more than that of applying to the courts for the aid he required as guardian. The reason for emphasising the word power appears later in this judgment. In its wider meaning the word custody is used as if it were almost the equivalent of guardianship in the fullest sense whether the guardianship is by nature, by nurture, by testamentary disposition, or by order of a court. (I use the words fullest sense because guardianship may be limited to give control only over the person or only over the administration of the assets of an infant.) Adapting the convenient phraseology of counsel, such guardianship embraces a bundle of rights, or to be more exact, a bundle of powers, which continue until a male infant attains 21, or a female infant marries. These include power to control education, the choice of religion, and the administration of the infants property. They include entitlement to veto the issue of a passport and to withhold consent to marriage. They include, also, both the personal power physically to control the infant until the years of discretion and the right (originally only if some property was concerned) to apply to the courts to exercise the powers of the Crown as parens patriae. It is thus clear that somewhat confusingly one of the powers conferred by custody in its wide meaning is custody in its limited meaning, namely, such personal power of physical control as a parent or guardian may have. It is, of course, custody in what Sachs LJ called its limited meaning that is material in the present appeal. In this sense, it is concerned with, as he put it, an ability to restrict the liberty of the person concerned, otherwise described as a power of physical control over an infant, and even physical possession. There are a number of earlier cases, notably Rex v Greenhill (1836) 4 Ad & E 624, R v Maria Clarke (In the Matter of Alicia Race) (1857) 7 E & B 186, and R v Howes (1860) 3 El & El 332, which deal with the common law position in relation to this aspect of custody. The context in each case is a habeas corpus application by a parent. What is important about the decisions for present purposes is that they establish, as the common law position, that (i) up to the age of discretion, the parents right to restrict the childs liberty was absolute (subject to some very limited exceptions), (ii) once the child reached the age of discretion, that right disappeared, and (iii) reaching the age of discretion was a matter of attaining the requisite chronological age, and not a matter of mental capacity. It is necessary to begin with Rex v Greenhill, although it is only in the subsequent cases that its import becomes clear. It concerned children who were all under six years of age and were with their mother. Their father obtained an order for them to be delivered up to him and their mother applied for that to be set aside. She was unsuccessful, a father being entitled to custody in the absence of any sufficient reason to separate the children from him. The four judges each gave separate short judgments, from which the following are extracts: When an infant is brought before the court by habeas corpus, if he be of an age to exercise a choice, the court leaves him to elect where he will go. If he be not of that age, and a want of direction would only expose him to dangers or seductions, the court must make an order for his being placed in proper custody. (Lord Denman CJ) The practice in such cases is that, if the children be of a proper age, the court gives them their election as to the custody in which they will be; if not, the court takes care that they be delivered into the proper custody. (Littledale J) In general, where the party brought up by habeas corpus is competent to exercise a discretion on [custody], the court merely takes care that the option shall be left free But where the age is not such as to allow the exercise of a discretion, and there is a controversy as to the custody, the court must decide (Williams J) A habeas corpus proceeds on the fact of an illegal restraint. When the writ is obeyed, and the party brought up is capable of using a discretion, the rule is simple, and disposes of many cases, namely, that the individual who has been under the restraint is declared at liberty; and the court will even direct that the party shall be attended home by an officer, to make the order effectual. But, where the person is too young to have a choice, we must refer to legal principles to see who is entitled to the custody (Coleridge J) Rex v Greenhill was relied upon in R v Maria Clarke (In the matter of Alicia Race) (1857) where Lord Campbell CJ interpreted it as having: laid down the rule that, where a young person under the age of 21 years of age is brought before the court by habeas corpus, if he be of an age to exercise a choice, the court leaves the infant to elect where he will go, but, if he be not of that age, the court must make an order for his being placed in the proper custody. The issue in the Maria Clarke case was whether the ten year old girls widowed mother, as her guardian for nurture, had a legal right to custody against the wishes of the girl, however intelligent she was, or whether the court was bound to examine the child to ascertain whether she had the mental capacity to make a choice. There was no argument but that children under seven were delivered to the guardian without any such examination; the argument was about those between the ages of seven and 14 (when guardianship for nurture ended). The court held that the guardian was absolutely entitled to the custody of the child until the age of 14, irrespective of the childs capacity. Lord Campbell said: Lord Denman, Littledale J, Williams J and Coleridge J all make age the criterion, and not mental capacity, to be ascertained by examination. They certainly do not expressly specify the age: but they cannot refer to seven as the criterion; and there is no intervening age marking the rights or responsibility of an infant till 14, when guardianship for nurture ceases, upon the supposition that the infant has now reached the years of discretion. In R v Howes (1860) 3 El & El 332, a father sought the delivery to him of a girl of 15 who was unwilling to return to him, and had been brought into court in obedience to a writ of habeas corpus and interviewed privately by the judges before they heard argument. Cockburn CJ, giving the judgment of the court, said: Now the cases which have been decided on this subject shew that, although a father is entitled to the custody of his children till they attain the age of 21, this court will not grant a habeas corpus to hand a child which is below that age over to its father, provided that it has attained an age of sufficient discretion to enable it to exercise a wise choice for its own interests. The whole question is, what is that age of discretion? We repudiate utterly, as most dangerous, the notion that any intellectual precocity in an individual female child can hasten the period which appears to have been fixed by statute for the arrival of the age of discretion; for that very precocity, if uncontrolled, might very probably lead to her irreparable injury. The Legislature has given us a guide, which we may safely follow, in pointing out 16 as the age up to which the fathers right to the custody of his female child is to continue; and short of which such a child has no discretion to consent to leaving him. The reference to the guide given by [t]he Legislature is no doubt a reference to the statutes making it an offence to take a female unmarried child under the age of 16 out of the possession of the childs father or mother. In re Agar Ellis (No 2) (1883) 24 Ch D 317 concerned a girl of 16 who wanted to spend time with her mother, contrary to her fathers directions. She and her mother argued that, given her age, her father had no right to the control or custody of her. Their petition failed at first instance and they appealed. This was not a habeas corpus application because, said Sir William Brett MR, the child is not away from her father the child is under the control of her father. It was, as Lindley LJ described it the following year in Thomasset v Thomasset (see below), an attempt to remove a girl over 16 from the care of her father. Therefore, although the habeas corpus cases were considered, they were found to be inapplicable. The court was concerned, rather, with an exercise of what Cotton LJ described as the jurisdiction which the Court of Chancery has always exercised, delegated probably from the Crown as parens patriae. The law was declared to be that the father had, as the Master of the Rolls put it, control over the person, education, and conduct of his children until they are 21 years of age. Exercising its Chancery jurisdiction, the court proceeded on the basis that it could interfere with the discretion of the father, but would not do so except in very extreme cases, of which this was not one. It is to be noted that this might have been seen by some as an overly narrow application of the Chancery approach, see the judgment of Kay LJ in R v Gyngall [1893] 2 QB 232. Sachs LJ commented, in the passage I have quoted above from Hewer v Bryant, on the use during the second half of the 19th century of the parens patriae jurisdiction unquestionably in aid of the wishes of the father, citing Agar Ellis (No 2) as an example of this, but pointing out that any powers exercised by way of physical control in the later years of infancy were not in fact the fathers personal powers but the more extensive ones of the Crown. And in Gillick, Lord Scarman referred to In re Agar Ellis (No 2) and an earlier decision concerning the same family (In re Agar Ellis (1878) 10 Ch D 49), as the horrendous Agar Ellis decisions (p 183E of Gillick). Bowen LJs judgment in In re Agar Ellis (No 2) includes an interesting explanation of how confusion had been caused by earlier law books making distinctions which were no longer adhered to. He explained that the strict common law gave the father guardianship of his children during the age of nurture and until the age of discretion (14 for a boy, and 16 for a girl), and thereafter, apart from in the case of the heir apparent (in relation to whom he was guardian by nature until 21), he had no guardianship. But he said that, for a great number of years, more especially in the courts of equity, the term guardian by nature had not been confined to heirs apparent, so that there was a natural paternal jurisdiction between the age of discretion and the age of 21, which the law will recognise. The distinction between the common law jurisdiction (concerned to declare rights between the parties) and the broader jurisdiction of the Courts of Chancery is made very clear in R v Gyngall (supra). The father of the child in that case (a girl of about 15) was dead and it was the mother who was the guardian, it seems by operation of the Guardianship of Infants Act 1886. The decision of the first instance court not to return the girl to her mother, despite there being no misconduct on the part of the mother derogating from her right to custody, was interpreted as an exercise of the Chancery jurisdiction, taking into account the welfare of the child, rather than an exercise of the common law habeas corpus jurisdiction. It is worth looking at the case of Thomasset v Thomasset, the following year, because the Court of Appeal there set out its understanding of the position that the law had now reached. Dealing first with the approach of the Courts of Common Law, Lindley LJ said (at p 298) that the father had a legal right to custody of his child until the child attained 21, but the child would not be forced to remain with the father after he or she had attained the age of discretion. He quoted the passage from Coleridge J in Rex v Greenhill which is set out above, and continued: The age at which a child is deemed to have a discretion is 14 in the case of a boy, and 16 in the case of a girl After a child has attained the age of discretion, a Court of Common Law will set it free if illegally detained, but will not force a child against his or her will to remain with his or her father or legal guardian Although the Court of Chancery would be in the same position as the Courts of Common Law when dealing with a writ of habeas corpus, Lindley LJ emphasised that it also had its much more extensive parens patriae jurisdiction. This had been exercised in aid of fathers and guardians of children who had attained the age of discretion, and also to control the rights of fathers and guardians in order to secure the welfare of infants, and it was available to the Divorce Court since the Judicature Acts. However, whilst the Divorce Court could make orders respecting the custody, maintenance, and education of infants during the whole period of infancy, that is up to 21, both members of the court expressed caution on the subject. Lindley LJ said (p 303): I do not say that a child who has attained years of discretion can, except under very special circumstances, be properly ordered into the custody of either parent against such childs own wishes. Lopes LJ said (p 306): No doubt a writ of habeas corpus could not go to compel a child over the age of 16 to return to the custody of the parent when such child was unwilling to submit to such custody It is not easy for us, accustomed to a legal system which has changed very considerably since Victorian times, to reach a perfect understanding of these cases, and I do not pretend to have done so. Like Sir James Munby P, I would settle for Sachs LJs summary, quoted at para 55 above. How does this historical perspective, as summarised by Sachs LJ, inform the present issue? It can be seen from the old cases that the mere fact that a parent had guardianship of a child did not give him a free hand to make decisions about that childs life. The extent of his ability to dictate depended upon the circumstances. At common law, the ability to restrict the liberty of the child lasted only until the age of discretion, and the age of discretion was fixed chronologically, and not by considering the attributes of the particular child. Equity had wider powers to govern a childs behaviour, but this was essentially by stepping in as the parent, and making decisions for the welfare of the child, rather than by enforcing the parents rights. Terminology has changed, of course, and what was referred to as guardianship in those days has been translated into todays parental responsibility, but I do not see this older chapter in the evolution of the scope of parental authority as irrelevant in the search for the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property (section 3(1) of the Children Act 1989). Equally, it is not the end of the investigation, because the common law can evolve. I turn therefore to the important case of Gillick decided in 1985. The President took the view (see in particular paras 85 and 125 of his judgment) that the fixed age of discretion, encountered in the old cases, has been replaced by a test of, as he termed it, Gillick capacity to determine when the exercise of parental responsibility comes to an end. I will look in more detail at Gillick below, but it may help to preface this examination by explaining that I do not share the Presidents confidence that the Gillick test extends to the aspect of parental responsibility with which the present case is concerned. The issue in Gillick was different in at least two important ways. First, it was not about restricting the physical liberty of the child, but concerned decision making in the sphere of medical treatment. Secondly, the question was whether the parent could lose his or her exclusive decision making powers before the child reached the age of 16, if the child was capable of making his or her own decision, not whether the parent was entitled to continue to make decisions after the child reached 16, if the child was not capable. As to the first of these differences, the considerations in relation to decisions about physical liberty are not the same as those involved in other spheres where parental responsibility may operate. In particular, article 5 of the European Convention on Human Rights was not material in the Gillick decision, but is of central importance to the present case, as can be seen from Lady Hales judgment. Moreover, it is not only in the Convention, and the cases decided by the European Court of Human Rights, that one can find special attention being given to liberty, whether of a child or a vulnerable adult. It is evident in the older habeas corpus authorities to which I have referred. And it has been firmly engrained in domestic law in certain statutes, notably in the Children Act 1989 in the secure accommodation provisions, with which I deal later in this judgment, and in the Mental Capacity Act 2005 which, by section 4A, marks out deprivation of liberty for special treatment, with more attendant safeguards than other acts performed in relation to a person who lacks capacity. Turning to the second of the differences, it has a number of components, one of which is the pivotal age of 16. Although not determinative of the question before us, I think it is far from irrelevant that, as Lady Hale puts it at para 27 (after listing various statutory provisions in her para 26), the law accords to children who have reached the age of 16 years a status which is in some respects different from children below that age. Of the provisions listed, I would single out section 2(5) of the Mental Capacity Act 2005 (para 26(iii) of Lady Hales judgment). I cannot accept the Official Solicitors case that the 2005 Act constitutes a complete decision making framework for the care and treatment of those aged 16 and above who lack capacity, not least because there is an obvious overlap between the reach of the Children Act 1989 and that of the 2005 Act, and I can find nothing in the 2005 Act that could be said to indicate a general rule to the effect that, where it applies, it does so to the exclusion of other common law and statutory provisions. However, it does seems to me that the deliberate choice of the legislature to include children of 16 to 18 years within the scope of the 2005 Act, and now (by virtue of the recent amendment to the Act, see para 49 of Lady Hales judgment) to extend a regime of administrative deprivation of liberty safeguards to them, indicates an appreciation of the different needs of this particular age group. At risk of underlining the obvious, another important element in this second difference is that Gillick was about contracting the boundary of parental responsibility and empowering the child at an earlier age, whereas the present case is about extending the boundary of parental responsibility beyond the age at which, in relation to the particular matter in issue, it would have been taken, at common law, to have ended. As can be seen from Sachs LJs analysis, the common law position at the time of Hewer v Bryant, in 1969, was that the power of physical control over an infant ended at the age of discretion. For present purposes I would take that age as 16. The common law, even in 1969, might have balked at continuing to treat a boy as reaching the age of discretion at 14, but a girl as having to wait until 16, and, if an issue about this had come up, would no doubt have evolved to iron out the difference. It is pointless to worry, in the present context, about whether it would have equalised up or down, because we are dealing here with the position of a child between the ages of 16 and 18. If the age of discretion had been raised above 16, thus extending the parents power of physical control into the age group with which we are concerned, that would have been of considerable significance to the debate, but I have seen nothing to suggest that that was done, and it would be extremely surprising if it had been. So to the detail of Gillick. Lady Hale deals with the case in para 23 of her judgment. I propose to refer to some further passages, in order to provide some substance for the views that I have just expressed about it. The Family Law Reform Act 1969 had provided that the consent of a minor who has attained the age of 16 years to medical treatment was as effective as if the child were of full age, and rendered it unnecessary to obtain consent from the parent or guardian. It was the position of a child of under 16 that was in question, and in particular whether such a child could, herself, provide the necessary consent for contraceptive treatment. It will be recalled that Mrs Gillick was arguing (see p 168D of the report) that the custody that parents have of a minor under the age of 16 necessarily involves the right to veto contraceptive advice or treatment being given to the girl, and that she failed in this argument. Giving the first speech, Lord Fraser of Tullybelton, one of the three members of the House in the majority, spoke in terms of parental rights to control a child, which he held (p 170D) existed for the benefit of the child, not the parent, and were justified only in so far as they enabled the parent to perform his duties towards the child, and towards other children in the family. Understandably, given the issue in the case, his speech is directed at diminishing control on the part of a parent as a child ages, rather than at the opposite problem of the child who needs parental input for a longer than usual period, although I accept that some of what he said is in general terms and could be applied to either situation. He spoke (p 171E) of wise parents relaxing their control gradually as the child develops, and of the degree of parental control actually exercised over a particular child varying according to his understanding and intelligence. He looked at R v Howes, In re Agar Ellis, and Hewer v Bryant (see above). As to R v Howes, where the court declined to consider a child having discretion to consent to leaving the father before she reached 16, he said that the view that the childs intellectual ability is irrelevant cannot now be accepted. He endorsed the criticism that had been heaped on Agar Ellis, dismissed the concept deployed in that case of absolute paternal authority continuing until a child attains majority as so out of line with present day views that it should no longer be treated as having any authority, and shared Lord Dennings view that the legal right of a parent to custody of a child was a dwindling right, as the child approached majority. He said (p 173D): Once the rule of the parents absolute authority over minor children is abandoned, the solution to the problem in this appeal can no longer be found by referring to rigid parental rights at any particular age. The solution depends upon a judgment of what is best for the welfare of the particular child. This abandonment of the rule of the parents absolute authority led to the conclusion that a doctor could prescribe contraceptive treatment to a girl of under 16 without the consent of her parents, provided that, amongst other things, she would understand his advice. Lord Scarman agreed with Lord Fraser but added his own speech. Having considered the earlier case law, he enunciated what he had found to be the principle of law (hereafter in my discussion of his speech the principle), saying (pp 183 184): Parental rights clearly do exist, and they do not wholly disappear until the age of majority. Parental rights relate to both the person and the property of the child custody, care, and control of the person and guardianship of the property of the child. But the common law has never treated such rights as sovereign or beyond review and control. Nor has our law ever treated the child as other than a person with capacities and rights recognised by law. The principle of the law, as I shall endeavour to show, is that parental rights are derived from parental duty and exist only so long as they are needed for the protection of the person and property of the child. The principle has been subjected to certain age limits set by statute for certain purposes: and in some cases the courts have declared an age of discretion at which a child acquires before the age of majority the right to make his (or her) own decision. But these limitations in no way undermine the principle of the law, and should not be allowed to obscure it. Later in his speech, Lord Scarman formulated the principle in slightly different ways. At p 185E, the following formulation can be found: parental right or power of control of the person and property of his child exists primarily to enable the parent to discharge his duty of maintenance, protection, and education until he reaches such an age as to be able to look after himself and make his own decisions. And at p 186D, Lord Scarman put it this way: parental right yields to the childs right to make his own decisions when he reaches a sufficient understanding and intelligence to be capable of making up his own mind on the matter requiring decision. Understandably, in his consideration of the common laws understanding of the nature of parental right, Lord Scarmans focus was upon the particular type of parental right/duty that was in issue there, as the following passage from his speech makes clear (p 184F): It is abundantly plain that the law recognises that there is a right and a duty of parents to determine whether or not to seek medical advice in respect of their child, and, having received advice, to give or withhold consent to medical treatment. The question in the appeal is as to the extent, and duration, of the right and the circumstances in which outside the two admitted exceptions to which I have earlier referred [order of a competent court, and emergency] it can be overridden by the exercise of medical judgment. Although varying ages of discretion had been fixed by statute and case law for various purposes, Lord Scarman found it clear that (p 185F): this was done to achieve certainty where it was considered necessary and in no way limits the principle that parental right endures only so long as it is needed for the protection of the child. In modern times, statute had intervened in respect of a childs capacity to consent to medical treatment from the age of 16 onwards, but neither statute nor case law had ruled on the extent and duration of parental right in respect of children under the age of 16. So, Lord Scarman said, it was open to the House to formulate a rule (p 185H). He was influenced, in so doing, by the fact that the law relating to parent and child is concerned with the problems of growth and maturity of the human personality. This disposed him against the fixed age limit of 16 (below which a girl could not give valid consent) that had commended itself to the Court of Appeal. He observed (p 186B): If the law should impose upon the process of growing up fixed limits where nature knows only a continuous process, the price would be artificiality and a lack of realism in an area where the law must be sensitive to human development and social change. He found the earlier cases no guide to the application of the principle in the conditions of today. He dealt specifically with the habeas corpus cases in these terms (p 187B): The habeas corpus age of discretion cases are also no guide as to the limits which should be accepted today in marking out the bounds of parental right, of a childs capacity to make his or her own decision, and of a doctors duty to his patient. Nevertheless the age of discretion cases are helpful in that they do reveal the judges as accepting that a minor can in law achieve an age of discretion before coming of full age The principle underlying them was plainly that an order would be refused if the child had sufficient intelligence and understanding to make up his own mind. A passage from the judgment of Cockburn CJ in R v Howes (1860) 3 El & El 332 [quoted at para 10 above] illustrates their reasoning and shows how a fixed age was used as a working rule to establish an age at which the requisite discretion could be held to be achieved by the child The principle is clear: and a fixed age of discretion was accepted by the courts by analogy from the Abduction Acts (the first being the Act of 1557, 4 & 5 Ph & M c8). While it is unrealistic today to treat a 16th century Act as a safe guide in the matter of a girls discretion, and while no modern judge would dismiss the intelligence of a teenage girl as intellectual precocity, we can agree with Cockburn CJ as to the principle of the law the attainment by a child of an age of sufficient discretion to enable him or her to exercise a wise choice in his or her own interests. After citing from R v D [1984] AC 778 (an appeal relating to the conviction of a father on indictment of kidnapping his five year old daughter) on the subject of parental right and a childs capacity to give or withhold a valid consent, Lord Scarman concluded (p 188H) that: as a matter of law the parental right to determine whether or not their minor child below the age of 16 will have medical treatment terminates if and when the child achieves a sufficient understanding and intelligence to enable him or her to understand fully what is proposed. It will be a question of fact whether a child seeking advice has sufficient understanding of what is involved to give a consent valid in law. Until the child achieves the capacity to consent, the parental right to make the decision continues save only in exceptional circumstances. The third member of the majority, Lord Bridge, agreed with what Lord Fraser and Lord Scarman had said, without adding further reasoning of his own. What the President drew from the speeches of Lord Fraser and Lord Scarman was, as he set out at paras 83 to 85, that the attainment of Gillick capacity is child specific, to be decided as a matter of fact in relation to each particular child. He said: 84. This has an important corollary. Given that there is no longer any magic in the age of 16, given the principle that Gillick capacity is child specific, the reality is that, in any particular context, one child may have Gillick capacity at the age of 15, while another may not have acquired Gillick capacity at the age of 16 and another may not have acquired Gillick capacity even by the time he or she reaches the age of 18: cf, In re R (A Minor) (Wardship: Consent to Treatment) [1992] Fam 11, at 24 and 26. Therefore, he said (para 85), after Gillick, the position of domestic law in relation to the aspect of custody described in Hewer v Bryant as, inter alia, the ability to restrict the liberty of the person was that: The parental power was precisely as described by Sachs LJ subject only to the substitution, when applying the principles set out by Sachs LJ in relation to the concept of the age of discretion, of the test of what we now call Gillick capacity in place of the previous fixed ages. So, the President concluded, Keehan J was wrong to decide that a parent of an incapacitous 16 year old may not consent to confinement which would otherwise amount to a deprivation of liberty (para 115 of Keehan Js judgment) because (para 125 of the Presidents judgment), none of the statutory provisions upon which he relied assisted on the matter and: his approach does not give effect to the fundamental principle established by Gillick: namely that, in this context (see paras 79 85 above), the exercise of parental responsibility comes to an end not on the attaining of some fixed age but on attaining Gillick capacity. In effect, Keehan J would have us go back to the approach of Cockburn CJ and Parker LJ. As I have explained (see above at para 69 et seq), I do not share the Presidents confidence that the Gillick test extends to the aspect of parental responsibility with which the present case is concerned, or that the Gillick decision can, without more, be treated as regulating the situation where the objective is not to contract the boundaries of parental responsibility, but to extend them. In my view, as I said above, it is of real significance that in Gillick, the House of Lords were dealing with a materially different issue. The respondent recognises that the focus of Gillick was specific to the issue of consent to medical treatment of children under 16, but invites this court to conclude that the test laid down there applies beyond that scope and up to the age of majority. I accept that certain things that were said in Gillick were capable of being interpreted as applying to a situation such as the present, but it would not, in my view, be appropriate to interpret them in that way, so as to draw into the Gillick net a situation which is diametrically opposed to that with which the House was concerned (not the tempering of parental responsibility in relation to the under 16 age group, but its expansion in relation to those aged 16 and 17 so as to give it a role which would not otherwise be afforded by the common law). My unwillingness to adopt this interpretation is reinforced by what I perceive to be the distinct, and rather special, features of the field of deprivation of liberty with which we are here concerned. It follows that the rights of a parent in relation to restricting the liberty of a child remain, at common law, as described in Hewer v Bryant. The inescapable result of that is, I think, that it is not within the scope of parental responsibility for parents to give authority for their 16 year old child to be confined in a way which would, absent consent, amount to a deprivation of liberty. In so saying, I do not intend in any way to water down the important changes brought about by Gillick or to alter the way in which it has been applied in many spheres of family law. I have only been concerned to consider its application in the very specific context of confinement of children of the ages of 16 to 18. The position in relation to the confinement of children who are under 16 might be different for a variety of reasons. It could be argued, for example, that the Gillick decision is more readily applicable to under 16s than to over 16s, given that this was the age group with which the House was concerned. It would then be arguable that the position in relation to that group was as the President set out at para 85 of his judgment (quoted above) ie that the parental ability to restrict a childs liberty continues to be as described by Sachs LJ in Hewer v Bryant, but with a Gillick test rather than the previous fixed ages. But the effect of this, applied to a child who lacked capacity, would not be to leave a gap in the parents powers to cater for the particular needs of a child with disability. On the contrary, the child not having attained Gillick capacity, there would be nothing to bring to an end the parents common law power to confine the child as required in the childs interests. To put it in the terms used in this appeal, it would remain within the ambit or zone of the parents parental responsibility. However, there would, no doubt, be other arguments to be aired on the point, and I have not formed even a preliminary view about it. In summary, therefore, I would hold that as a matter of common law, parental responsibility for a child of 16 or 17 years of age does not extend to authorising the confinement of a child in circumstances which would otherwise amount to a deprivation of liberty. For me, this reinforces the conclusion to which Lady Hale has come by the route she sets out in paras 42 to 49 of her judgment. She concludes, in para 50, by saying that logically her conclusion would also apply for a younger child, but I would prefer to leave this separate question entirely open, to be decided in a case where it arises. I should also stress, before moving on to the discrete issue in relation to section 25 of the Children Act 1989 and its potential application to living arrangements such as Ds, that I have been looking specifically at the common law power of a parent in relation to a childs liberty. I have not intended to cast doubt on any existing understanding about the operation of parental responsibility in different spheres of a childs life. And nothing that I have said is intended to cast any doubt on the powers of the courts, recognised in the early cases to which I have referred, and still available today in both the parens patriae jurisdiction and under statute, notably the Children Act 1989, to make orders in the best interests of children up to the age of majority, with due regard to their wishes and those of their parents, but not dictated by them. Does section 25 of the Children Act 1989 apply to living arrangements such as Ds? Where it applies, section 25 of the Children Act 1989 regulates the circumstances in which children can be placed and kept in accommodation provided for the purpose of restricting liberty and dictates that, save for very short periods, the courts authorisation of the arrangements is required. If the section applies to living arrangements like Ds, making court authorisation obligatory, the debate as to whether it falls within the scope of parental responsibility to authorise a childs confinement would be of far less practical significance. In order to set that debate in its proper context, the scope of section 25 was therefore explored. In the light of this exploration, it appears likely that a significant number of children living in confined circumstances will be outside the ambit of the section, although clearly each case will depend upon its own facts. Accordingly, the parental responsibility issue has a real practical importance. The reasons for this provisional conclusion are set out below. They deal with the law as it applies to accommodation in England; there is a separate statutory and regulatory regime where the accommodation is in Wales, albeit in similar terms. Section 25 provides as follows, omitting provisions concerned solely with Scotland: 25. Use of accommodation for restricting liberty (1) Subject to the following provisions of this section, a child who is being looked after by a local authority in England or Wales may not be placed, and, if placed, may not be kept, in accommodation in England or Scotland provided for the purpose of restricting liberty (secure accommodation) unless it appears (a) that he has a history of absconding and is (i) likely to abscond from any other description of accommodation; and if he absconds, he is likely to suffer (ii) significant harm, or (b) that if he is kept in any other description of accommodation he is likely to injure himself or other persons. (2) The Secretary of State may by regulations (a) specify a maximum period (i) beyond which a child may not be kept in secure accommodation in England or Scotland without the authority of the court; and for which the court may authorise a child (ii) to be kept in secure accommodation in England or Scotland; (b) empower the court from time to time to authorise a child to be kept in secure accommodation in England or Scotland for such further period as the regulations may specify; and (c) provide that applications to the court under this section shall be made only by local authorities in England or Wales. (3) It shall be the duty of a court hearing an application under this section to determine whether any relevant criteria for keeping a child in secure accommodation are satisfied in his case. (4) If a court determines that any such criteria are satisfied, it shall make an order authorising the child to be kept in secure accommodation and specifying the maximum period for which he may be so kept. (5) On any adjournment of the hearing of an application under this section, a court may make an interim order permitting the child to be kept during the period of the adjournment in secure accommodation. (5A) (6) No court shall exercise the powers conferred by this section in respect of a child who is not legally represented in that court unless, having been informed of his right to apply for the provision of representation under Part 1 of the Legal Aid, Sentencing and Punishment of Offenders Act 2012 and having had the opportunity to do so, he refused or failed to apply. (7) The Secretary of State may by regulations provide that (a) this section shall or shall not apply to any description of children specified in the regulations; (b) this section shall have effect in relation to children of a description specified in the regulations subject to such modifications as may be so specified; (c) such other provisions as may be so specified shall have effect for the purpose of determining whether a child of a description specified in the regulations may be placed or kept in secure accommodation in England or Scotland. (d) a child may only be placed in secure accommodation that is of a description specified in the regulations (and the description may in particular be framed by reference to whether the accommodation, or the person providing it, has been approved by the Secretary of State or the Scottish Ministers). (8) The giving of an authorisation under this section shall not prejudice any power of any court in England and Wales or Scotland to give directions relating to the child to whom the authorisation relates. (8A) (9) This section is subject to section 20(8). Where applicable, the section operates to prevent a child being placed or kept in secure accommodation unless one of the two conditions set out in section 25(1)(a) and (b) is satisfied. The initial placement need not involve the court, but regulations made under section 25(2) provide that a child may not be kept in secure accommodation without court authority for more than 72 hours in any period of 28 consecutive days (regulation 10, Children (Secure Accommodation) Regulations 1991 (SI 1991/1505), hereafter the 1991 Regulations). There are limits on the period that can be authorised by the court, being three months in the first instance, and a further period of up to six months thereafter (regulations 11 and 12). There is a misconception that section 25 applies only to children who are being looked after by a local authority. These are the children to whom section 25(1) refers, but section 25(7) gives the Secretary of State power to provide, by regulations, that the section shall or shall not apply to other descriptions of children, and he did so in the 1991 Regulations. Various categories of children are excluded from the operation of the section including, by regulation 5(1), a child who is detained under the provisions of the Mental Health Act 1983, and, by regulation 5(2)(a), a child who is being accommodated under section 20(5) of the Children Act 1989 (which relates to certain accommodation in a community home of people who are over 16 but under 21 years of age). In contrast, regulation 7 widens the reach of section 25, extending it to children other than those looked after by a local authority. It provides: (1) Subject to regulation 5 and paras (2) and (3) of this regulation section 25 of the Act shall apply (in addition to children looked after by a local authority) (a) to children, other than those looked after by a local authority, who are accommodated by health authorities, National Health Service trusts established under section 5 of the National Health Service and Community Care Act 1990, NHS foundation trusts or local authorities in the exercise of education functions or who are accommodated pursuant to arrangements made by the Secretary of State, the National Health Service Commissioning Board or a clinical commissioning group under the National Health Service Act 2006, and to children, other than those looked after by a (b) local authority, who are accommodated in care homes or independent hospitals. Regulation 7(2) and (3) modify the wording of section 25 so as to reflect its widened scope in the cases covered by regulation 7(1). With regulation 7 casting the section 25 net beyond looked after children, the possibility that a child is in secure accommodation cannot be dismissed simply on the basis that the child is not being looked after by the local authority. Furthermore, the inclusion within section 25 of children in hospitals and care homes demonstrates that the traditional view that secure accommodation has a punitive quality (see for example In re AB (A Child) (Deprivation of Liberty: Consent) [2015] EWHC 3125 (Fam); [2016] 1 WLR 1160, para 31) will not always be valid, so that cannot be used as a reliable hallmark of secure accommodation either. Deprived of obvious insignia such as these, how is it to be determined whether a particular childs circumstances are covered by section 25? As established by section 25(1), the concern of the section is a child who is placed, and if placed, kept in accommodation provided for the purpose of restricting liberty (secure accommodation). This definition, which is mirrored in regulation 2(1) of the 1991 Regulations, is the only definition of secure accommodation, so the hallmark by which such accommodation has to be identified is that it is accommodation provided for the purpose of restricting liberty. The Secretaries of State argue that identification is simplified in the case of childrens homes because, they say, Parliament has provided a mechanism for determining which childrens homes have the nature of being secure accommodation. The mechanism suggested derives from regulation 3 of the 1991 Regulations. This provides that [a]ccommodation in a childrens home shall not be used as secure accommodation unless it has been approved by the Secretary of State for that use. It seems that the Secretaries of State argue that where the accommodation in question is in a childrens home, it will count as secure accommodation only if it has been approved by the Secretary of State for that use. The logical corollary of that would appear to be that no matter what the living arrangements of a child in an unapproved childrens home, he or she is not placed/kept in accommodation provided for the purpose of restricting liberty and therefore not within section 25. This argument might owe something to the regime in relation to local authority homes which was discussed in R v Secretary of State for the Home Department, Ex p A [2000] 2 AC 276 (see later). It is not necessary to determine, in the present case, whether it is correct in the different context of section 25, but it should be acknowledged that it does give rise to some questions. Whilst it can readily be accepted that the intention is that only properly authorised childrens homes are to be used as accommodation for the purpose of restricting liberty, it does not necessarily follow that, in practice, a child could not find him or herself placed or kept in a childrens home which, but for the fact that it does not have the Secretary of States approval, has every appearance of being secure accommodation. If the argument advanced by the Secretaries of State is right, such children might be doubly prejudiced ie placed in an unapproved childrens home and outside the protective regime of section 25. Given the shortage of approved secure childrens homes, highlighted by the Court of Appeal in In re T (A Child) [2018] EWCA Civ 2136, this is a risk which cannot be ignored. In In re T, the appellant was 15 years old and subject to a full care order. The local authority proposed that she be detained in a unit which was not an approved childrens home, and sought authority from the High Court for the restriction of the childs liberty, relying upon the inherent jurisdiction. It is evident from the judgment of the President of the Family Division (with whom the other members of the court agreed) that such applications are not uncommon. At para 5, he said that there are many applications being made to place children in secure accommodation outside the statutory scheme laid down by Parliament, expressing concern about the situation (see also paras 88 and 89). No question seems to have been raised as to whether it is proper for the High Courts inherent jurisdiction to be used to authorise the restriction of a childs liberty in an unapproved childrens home. This might, perhaps, have been because the childs accommodation was not in fact in a childrens home as defined for the 1991 Regulations (see regulation 2) and therefore not covered by the prohibition in regulation 3, but given the limited details available about the childs circumstances, it is impossible to know. In any event, even if the approach commended by the Secretaries of State is correct, it would not serve to identify secure accommodation in all its various settings, but only in so far as childrens homes are concerned, and it would leave unanswered questions in relation to many other children. Accordingly, there being no reliable and universally applicable shortcuts to identifying secure accommodation, it is necessary to look more closely at the wording of section 25(1) in order to determine what circumstances fall within it. The parties rightly stress the need to interpret the section with an eye to the whole scheme in which it takes its place. Local authorities have far reaching welfare obligations towards children. Notably, under section 20 of the Children Act 1989, they have a duty to provide accommodation for children in need, and they must also address the accommodation and other needs of children in relation to whom care orders have been made. The children who require help will present with all sorts of different problems, and there will be those whose care needs cannot be met unless their liberty is restricted in some way. But by no means all of these children will fall within the criteria set out in section 25(1)(a) and (b), which are the gateway to the authorisation of secure accommodation. It seems unlikely that the legislation was intended to operate in such a way as to prevent a local authority from providing such a child with the care that he or she needs, but an unduly wide interpretation of secure accommodation would potentially have this effect. It is possible to imagine a child who has no history, so far, of absconding, and who is not likely actually to injure himself or anyone else, so does not satisfy section 25(1)(a) or (b), but who, for other good reasons to do with his own welfare, needs to be kept in confined circumstances. If section 25 applies whenever a childs liberty is restricted, local authorities will not be able to meet the welfare needs of children such as this. And, of course, it is similarly possible to envisage children in hospitals and care homes who need a degree of confinement, but do not satisfy either of the limbs of section 25(1). Putting it another way, the criteria set for the placing or keeping of a child in secure accommodation might be taken to reveal something of the problems which it was anticipated that children in secure accommodation would present. This, in turn, could be taken as a pointer towards the characteristics that one could expect to find in secure accommodation being used to meet those problems. It is also worth noting, when considering how section 25 fits into the statutory scheme, that a court determining an application under the section does not have the childs welfare as its paramount consideration, as would normally be the case when the court determines any question with respect to the upbringing of a child (section 1 of the Children Act 1989). If any of the relevant criteria for keeping a child in secure accommodation are satisfied, the court is obliged to make the order authorising the child to be kept in secure accommodation (section 25(4)). It would be surprising if section 25 were intended to be interpreted in such a way as to extend this displacement of the courts welfare role beyond a relatively circumscribed group of children whose circumstances make this unavoidable. Underlining this, it is worth noting that where the position of a child of 16 or 17 is being considered in the Court of Protection under the Mental Capacity Act 2005, welfare is the touchstone, as deprivation of liberty will only be endorsed where it is in the best interests of the child. So, the challenge is to interpret section 25 in such a way as to provide the protection intended by the legislature, without getting in the way of meeting the varied needs of the children for whom hospitals, care homes, and local authorities (in the exercise of their social services and education functions) have responsibility. We are grateful to the parties for the valuable detailed written submissions they have all made to assist with this process; as, for the most part, they traverse similar ground, it is unnecessary to attribute submissions in what follows. It is unnecessary also to address all the arguments advanced, given that we are not making a definitive decision as to the operation of section 25. It is submitted that the focus should be on the accommodation and the purpose for which it is provided, rather than upon the regime within the accommodation. This would be consistent with section 25(1)(a) and (b) which, in setting the criteria for the use of secure accommodation, stipulate that the child may not be placed/kept in secure accommodation unless it appears that he is likely to abscond from any other description of accommodation or to injure himself or others if he is kept in any other description of accommodation. This contrast of secure accommodation with any other description of accommodation can be read as supporting the notion that secure accommodation is a description of accommodation, rather than a description of a regime of care. This is an interpretation which also gains support from R v Secretary of State for the Home Department, Ex p A [2000] 2 AC 276. The 15 year old offender in that case had been remanded to a local authority childrens home which was not approved by the Secretary of State for the purpose of restricting liberty, but he was subject to a curfew and other conditions whilst there. The issue was whether he should be given credit, in serving his sentence of detention in a young offender institution, for his period in the local authority accommodation. That depended on whether it was covered by section 67(1A)(c) of the Criminal Justice Act 1967 which entitled an offender to have his sentence reduced by: (c) any period during which, in connection with the offence for which the sentence was passed, he was remanded or committed to local authority accommodation by virtue of an order under section 23 of the Children and Young Persons Act 1969 or section 37 of the Magistrates Courts Act 1980 and in accommodation provided for the purpose of restricting liberty. The legislative scheme with which the House was concerned was, of course, different from the provisions which concern us. Broadly speaking, by virtue of (inter alia) section 23 of the Children and Young Persons Act 1969, a court remanding a child or young person who had committed, or was alleged to have committed, a criminal offence could release him on bail or remand him to local authority accommodation, in either case with or without conditions. In the case of certain offenders who had reached 15 years of age, the court could require [the designated local] authority to comply with a security requirement, that is to say, a requirement that the person in question be placed and kept in secure accommodation (section 23(4)). Section 23(12) defined secure accommodation as accommodation which is provided in a community home, a voluntary home or a registered childrens home for the purpose of restricting liberty, and is approved for that purpose by the Secretary of State. It will be noted that this definition differs from that in section 25 of the Children Act, in that it makes approval by the Secretary of State an integral part of the definition of secure accommodation, whereas the section 25 definition makes no reference to such approval which is, instead, the subject of regulation 3 of the 1991 Regulations. The local authority home in which the offender was accommodated on remand was not approved by the Secretary of State, so did not qualify as secure accommodation as such. But it was argued that section 67(1A)(c) was satisfied anyway, by virtue of the restrictions placed upon him whilst he was living there. A useful review of the history of the provisions as to secure accommodation in the civil and the criminal spheres can be found in the speech of Lord Clyde (with whom all the other members of the House agreed), commencing at p 285, although inevitably the law has moved on again since the decision. Then, at p 287, dealing with the construction of the phrase and in accommodation provided for the purpose of restricting liberty at the end of section 67(1A)(c), Lord Clyde said: The use of the expression accommodation provided in the statutory phraseology is to my mind significant. The word accommodation refers to the place where the person is to be accommodated. The phrase designates a particular class or kind of accommodation. It is accommodation which has been provided for a particular purpose. The phrase does not refer to any accommodation where the liberty of a person may be restricted. The reference intended by the language used is in my view not simply to a regime of some kind whereby the persons liberty is restricted, but to the nature of the accommodation itself. The phrase is looking to a category of accommodation, namely accommodation which has been provided for the stated purpose. The obvious category of accommodation which can be identified as having been provided for the purpose of restricting liberty is that which came to be referred to as secure accommodation. The same point can be taken from the repeated use of the word in which appears in relation to police detention in paragraph (a), to custody in paragraph (b) and to accommodation in paragraph (c). It is the place in which the person is situated, and in particular its nature, rather than any controls over his movements, to which the subsection is looking. Similarly, Lord Hope (with whom the members of the Appellate Committee other than Lord Clyde agreed) said, at p 282, that: the words provided for the purpose of restricting liberty appear to direct attention to the nature of the accommodation and the purpose for which it is provided, not to the effect on the persons liberty of any conditions to which he may be subjected under section 23(7) of the Act of 1969. Thus the additional requirement indicated by the word and is that the accommodation to which the person was committed must have been for that purpose and of that character. Both Lord Clyde and Lord Hope were persuaded not only by the wording of the provision but also by practical considerations that this construction was correct. By focusing on whether the offender was in what Lord Clyde called qualifying accommodation (p 289E), the institution detaining the offender would be able to apply the appropriate credit against the sentence without having to form judgments about the precise conditions under which the individual offender had been held there (see Lord Hope at p 283 and Lord Clyde at p 289). Lord Clyde was clearly equating qualifying accommodation for section 67(1A)(c) purposes with secure accommodation as defined in section 23(12), as he envisaged that all that was necessary to ascertain whether the offender had been in qualifying accommodation was to see whether it had been approved by the Secretary of State as secure accommodation. It would not be right to regard R v Secretary of State for the Home Department, Ex p A as determinative of the ambit of section 25 of the Children Act 1989. Although the phrase considered by the House of Lords there also features in section 25, the context is obviously different. There, by training the lens on the accommodation itself, the House was able to ensure that there was a simple means of identifying relevant periods on remand, merely by looking to see whether or not the particular local authority accommodation had the Secretary of States approval. Focusing on the accommodation itself does not, however, provide such a simple answer to the problem of what is secure accommodation within section 25. Section 25 extends well beyond local authority homes, and undoubtedly encompasses secure accommodation which does not have to be approved by the Secretary of State. Furthermore, the purpose of the provisions considered by the House of Lords was very different from the purpose of section 25. They were concerned with a scheme which conferred power on a court remanding a child to local authority accommodation to dictate that the child should be kept in secure accommodation as narrowly defined by section 23(4) of the Children and Young Persons Act, and confined credit for time spent in local authority accommodation to that type of accommodation. In contrast, what section 25 has to say about secure accommodation is of much wider application. It does not set out to dictate where a local authority must place/keep a particular child, but to regulate, in both local authority and non local authority settings, the circumstances in which a child can be placed/kept in secure accommodation as defined in the section. Nevertheless, given that the House of Lords were concerned with the same phrase as features in section 25, their interpretation must carry weight. Coming closer to home, we are invited to endorse the approach that Wall J took to the phrase accommodation provided for the purpose of restricting liberty in In re C (Detention: Medical Treatment) [1997] 2 FLR 180 at p 193. The case concerned a 16 year old girl suffering from anorexia nervosa. The local authority made an application for an order under the inherent jurisdiction authorising her detention in a clinic for medical treatment. Wall J was faced with the question whether the courts powers under the inherent jurisdiction were ousted by the scheme laid down by Parliament in section 25, and in addressing that issue, he needed to determine whether the clinic was, in fact, secure accommodation within section 25. Having reviewed three earlier authorities (R v Northampton Juvenile Court, Ex p London Borough of Hammersmith and Fulham [1985] FLR 193, South Glamorgan County Council v W and B [1993] 1 FLR 574, and A Metropolitan Borough Council v DB [1997] 1 FLR 767) he said (p 193): Whilst I respectfully agree that premises which are not designed as secure accommodation may become secure accommodation because of the use to which they are put in the particular circumstances of individual cases, it does seem to me that the more natural meaning of the words provided for the purpose of restricting liberty is designed for, or having as its primary purpose the restriction of liberty. The circumstances in which section 25 operates are based on the premise that the child has a history of absconding and is likely to abscond from any other description of accommodation. The alternative premise, that if he is kept in any other description of accommodation he is likely to injure himself or others once again envisages a secure regime designed to prevent self harm. I therefore prefer to look at the clinic, and ask myself: is it accommodation provided for the purpose of restricting liberty? This is, of course, as Cazalet J indicates, a question of fact. Having said that, he went on to examine the regime operated by the particular clinic, before finding that it was not secure accommodation. In his view, the purpose of placement of a child in the clinic is to achieve treatment: the accommodation provides a structure for that treatment. The fact that there was a degree of restriction on the patients liberty was an incident of the treatment programme, and the fact that steps could be taken to prevent the child from leaving the premises did not, of itself, render the clinic secure accommodation. Section 25 has played no direct role in the proceedings in the present case, and the bulk of the argument about it has occurred in writing after the conclusion of the hearing in this court. Nothing that we say about it will conclusively resolve the difficult questions that arise as to its scope and operation, and that is as it should be, because it would be undesirable that final views should be formed, without there having been an opportunity for oral argument. Furthermore, it would be better that such issues as there are about the scope of section 25 should be resolved in a case where the relevant facts have been found, so that the section can be interpreted with reference to a real factual situation. Because the issue was not under consideration at all before the appeal arrived in this court, factual findings have not been made in relation to all the matters relevant to the application of section 25 in Ds case. As, by virtue of his age, D is now no longer within the scope of the Children Act, there would be absolutely no point in remitting the case for evidence to be heard, particularly as none of the parties contends that this is a section 25 case. The exercise in which we have engaged has, however, been sufficient to persuade us that section 25 is not intended to be widely interpreted, so as to catch all children whose care needs are being met in accommodation where there is a degree of restriction of their liberty, even amounting to a deprivation of liberty. There is much force in the argument that it is upon the accommodation itself that the spotlight should be turned, when determining whether particular accommodation is secure accommodation, rather than upon the attributes of the care of the child in question. This fits with the language used in section 25(1), when read as a whole. It is also consistent with the objective of ensuring that the section is not so widely drawn as to prejudice the local authoritys ability to offer children the care that they need, and it ought to make it more straightforward to apply than would be the case if the issue were dependent upon the features of a childs individual care regime, so that the child might be found to be in secure accommodation in all manner of settings. A restrained construction of the section is also justified by the fact that, far from being concerned with the routine sort of problems that might require a childs freedom to be curtailed, the section has a last resort quality about it. It is concerned with accommodation which has the features necessary to safeguard a child with a history of absconding who is likely to abscond from any other description of accommodation or to prevent injury where the child in question would be likely to injure himself or others if kept in any other description of accommodation. Of course, training the spotlight on the accommodation itself does not provide a complete answer to the question as to what falls within the definition of secure accommodation. Some secure accommodation will be readily recognisable from the fact that it is approved as such by the Secretary of State, but that is by no means a universal hallmark, as that approval is not needed for all types of secure accommodation. Moreover, given that it is contemplated that secure accommodation might be provided in places such as hospitals, it seems likely that there will not infrequently be more than one purpose of the child being in the accommodation, and there is much to commend Wall Js approach to such a situation, that is to count within the definition of secure accommodation designed for or having as its primary purpose the restriction of liberty. Equally, the section will have to be interpreted in such a way as to allow for situations where only a part of the premises is made over to restricting liberty. LADY ARDEN: I agree with the judgment of Lady Hale on the effect of article 5 of the European Convention on Human Rights (the Convention). She has held that parental consent to a childs living circumstances is not effective to prevent a child, who has mental disabilities and cannot give any relevant consent to those circumstances, from being deprived of their liberty for the purposes of article 5 if their living circumstances mean that they are not free and the restrictions on them go beyond those which are normal for a child of their age. In this case, the child, D, is over 16 years of age. I agree with Lady Hale (para 50) that it is unnecessary in this case to express any view on the question whether there would be a deprivation of liberty for the purposes of article 5 if a child who has not yet attained that age has their liberty restricted to an extent that is not normal for a child of their age. Likewise I express no view on the question of parental consent for medical treatment or other matters outside article 5. The key case on article 5 in this context is Nielsen v Denmark (1988) 11 EHRR 175, which Lady Hale analyses at paras 34 to 38 above. As Lady Hale explains, it is the normality of the parents control over the child, as compared with arrangements for children of a similar age, that is the key to understanding this difficult decision of the European Court of Human Rights (the Strasbourg court). In the present case, the position can simply be compared with the position of other children in the UK. It might in future be necessary to have regard to the practice in other contracting states to the Convention, but that does not arise in this case. I have one qualification. Article 5 is not a qualified right and there is no scope for holding that the denial of a persons liberty engages article 5 but does not amount to a violation because it serves a legitimate aim and is proportionate and necessary in a democratic society. Exceptionally there are situations where the Strasbourg court finds that in effect those tests were met but it can only do so by holding that there is no deprivation of liberty for article 5 purposes. Thus, in Austin v United Kingdom 35 EHRR 14, the complainants were demonstrators who had been kettled by the police, that is, kept against their will within a police cordon. The Strasbourg court held that there was no violation because the need for the police to maintain order in this situation meant the denial of liberty was not a deprivation of liberty for article 5 purposes. So, too, in Nielsen, the Strasbourg court had held that there was no deprivation of liberty for article 5 purposes. It follows that there will be cases where a person loses their liberty but the acid test in Cheshire West, as Lady Hale describes it, does not apply. That conclusion is shown by observing that Ds case is about living arrangements. It is not about a child, or anyone else, needing life saving emergency medical treatment. For the reasons which the Court of Appeal (McFarlane LJ, Sir Ross Cranston and myself) gave in R (Ferreira) v Inner South London Senior Coroner [2018] QB 487, the situation where a person is taken into (in that case) an intensive care unit for the purpose of life saving treatment and is unable to give their consent to their consequent loss of liberty, does not result in a deprivation of liberty for article 5 purposes so long as the loss of liberty is due to the need to provide care for them on an urgent basis because of their serious medical condition, is necessary and unavoidable, and results from circumstances beyond the states control (para 89). I pass on to section 25 of the Children Act 1989 and to the judgment of Lady Black. So far as section 25 is concerned, this was unfortunately dealt with only on written submissions. I have read the judgment of Lady Black, in which Lady Hale concurs, with admiration. I have read it as laying down a marker for the future. I have read it conscious of the depth of experience which Lady Black and Lady Hale bring to bear in the field of family law, and particularly the circumstances in those childrens cases which may be affected by a ruling on section 25. It is evident that there is a very serious issue here, but I do not express any final view until a case arises which raises this very question. I am far from disagreeing with them, but I would like to reach a final view against the facts of an actual case. I express no view on the other issues as to the common law in Lady Blacks judgment for the same reason. It follows that I would allow this appeal. LORD CARNWATH: (dissenting) (with whom Lord Lloyd Jones agrees) Introduction As Lady Hale says, this case is about the limits of parental responsibility in the case of a young person who has reached the age of 16, but does not have the mental capacity to make decisions for himself. This arises in the context of article 5 of the European Convention on Human Rights by which: Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law. As she also explains (para 1), and as is common ground, the application of article 5 is to be tested by reference to three components: (a) the objective component of confinement in a particular restricted place for a not negligible length of time; (b) the subjective component of lack of valid consent; and (c) the attribution of responsibility to the State. This is the effect of Storck v Germany (2005) 43 EHRR 6 (Storck), followed by this court in Surrey County Council v P; Cheshire West and Chester Council v P [2014] UKSC 19; [2014] AC 896 (Cheshire West). It is further common ground that on the facts of this case, components (a) and (c) are satisfied. The area of debate is about component (b): whether on the facts of this case the exercise of parental responsibility could make up for the lack of consent by D himself. That it could do so while he was under the age of 16 was not in dispute in the courts below. That was supported by reference to the decision of the Strasbourg court in Nielsen v Denmark (1988) 11 EHRR 175 (see Lady Hale para 34). It is worth stating at the outset the reasons for this view, as stated by Keehan J, and adopted by Sir James Munby P giving the leading judgment in the Court of Appeal (para 108): The parents of this young man are making decisions, of which he is incapable, in the welfare best interests of their son. It is necessary for them to do so to protect him and to provide him with the help and support he needs. I acknowledge that D is not now cared for at home nor in a home setting. His regime of care and treatment was advised by his treating clinicians and supported by his parents. They wanted to secure the best treatment support and help for their son. They have done so. It has proved extremely beneficial for D who is now ready to move to a new residential home out of a hospital setting. What other loving and caring parent would have done otherwise? Those arrangements are and were made on the advice of the treating clinicians. All professionals involved in his life and in reviewing his care and treatment are agreed that these arrangements are overwhelmingly in Ds best interests. On the facts of this case, why on public policy or human rights grounds should these parents be denied the ability to secure the best medical treatment and care for their son? Why should the state interfere in these parents role to make informed decisions about their sons care and living arrangements? I can see no reasons or justifications for denying the parents that role or permitting the state to interfere in Ds life or that of his family. I accept the position might well be very different if the parents were acting contrary to medical advice or having consented to his placement at Hospital B, they simply abandoned him or took no interest or involvement in his life thereafter. The position could not be more different here. Ds parents have regular phone calls with him. They regularly visit him at the unit. Every weekend D has supported visits to the family home. He greatly enjoys spending time at home with his parents and his younger brother. In my judgment, on the facts of this case, it would be wholly disproportionate, and fly in the face of common sense, to rule that the decision of the parents to place D at Hospital B was not well within the zone of parental responsibility. (paras 58 64) The good sense of that appraisal has not, as I understand it, been challenged by any of the parties to this court. Nor is it suggested that, when D became 16, anything changed in practical terms, whether in respect of his own needs and best interests, or of his relationship with his parents or the public agencies involved. However, Keehan J was persuaded by the Official Solicitor that there was a fundamental change in the legal position so that the approval of the court was now required. The Court of Appeal disagreed. That view is challenged in this court by the Official Solicitor, with the support of the Equality and Human Rights Commissioner as first intervener. The Court of Appeals approach is defended by the Council as the statutory authority responsible for safeguarding Ds interests. They are supported by the Secretaries of State for Education and Justice. They have intervened as having policy responsibility respectively for the Mental Capacity Act 2005 (MCA 2005) and the Children Act 1989, and for the Court Service. They are concerned that the outcome of the appeal could have significant implications for a large number of 16 and 17 year olds, who are being held in care across a variety of settings, ranging from foster care placements to residential holiday schemes for disabled children. They also point out that the appeal takes place against the background of the Law Commissions review of the law of Mental Capacity and Deprivation of Liberty, and in particular the deprivation of liberty safeguards (DoLS) (Law Com No 372). As the Commission explained in its Consultation Paper (CP No 222, paras 2.39 40), that review was prompted by the massive and unanticipated increase in cases requiring to be dealt with under the DoLS arrangements (from 11,300 in 2013 4 to 113,300 in 2014 5), following the decision of this court in the Cheshire West case. Their review has been followed more recently by the consideration by Parliament of the Mental Capacity (Amendment) Bill (now the Mental Capacity (Amendment) Act 2019). That provides for the replacement of DoLS by a new scheme of safeguards (the Liberty Protection Safeguards) for those who lack capacity under the MCA and who are deprived of their liberty, which will extend to 16 and 17 year olds. The background to the 2019 Act was described in the Explanatory Notes: 6. In 2014 the decision of the Supreme Court in the case of Cheshire West gave a significantly wider interpretation of deprivation of liberty than had been previously applied in the health and social care context. This increased considerably the number of people treated as being deprived of liberty, and correspondingly increased the obligations on public authorities (primarily local authorities) in connection with authorising, and providing safeguards for, these extra deprivations of liberty. 7. Following Cheshire West, the Government asked the Law Commission to review this area of law. The Commissions final report, which included a draft Bill, called for the DoLS to be replaced as a matter of pressing urgency and set out a replacement scheme. The new scheme was intended to establish a proportionate and less bureaucratic means of authorising deprivation of liberty. The Law Commission noted that its remit had been limited to children of 16 or over (para 7.20). It also noted the complicating factor that in the Nielsen case the Strasbourg court had recognised the right of parents in certain cases to consent to what would otherwise be a deprivation of liberty for their children; but it also noted that Keehan J (in the present case, decided since the consultation paper) had limited that approach to children under 16 (para 7.22). When what became the 2019 Act was presented to Parliament it was limited to those over 18, but it was later extended to those over 16. That followed an amendment proposed in the House of Lords by (inter alios) Baroness Thornton. It is of interest that she referred to evidence of the Royal College of Psychiatrists which has pointed out that case law has established that the parents of children under 16 may give consent to what would otherwise constitute a deprivation of a childs liberty where the matter falls within the zone of parental responsibility, but it has been held that a parent cannot give equivalent consent for a 16 to 17 year old. It therefore argues that the Bill should be extended to 16 to 17 year olds to provide them with better safeguards, as they are not served well at present. (HL Committee Stage Day 1 Volume 792 Column 1832) It seems therefore that the fixing of the age threshold in the new Act at 16 was directly related to the then understanding of the scope of parental responsibility as reflected in the judgment of Keehan J in the present case. Parental responsibility There is no dispute about the importance of the principle of parental responsibility in the common law. As Sir James Munby P said in In re H B (Contact) [2015] EWCA Civ 389; [2015] 2 FCR 581, para 72: parental responsibility is more, much more than a mere lawyers concept or a principle of law. It is a fundamentally important reflection of the realities of the human condition, of the very essence of the relationship of parent and child. Parental responsibility exists outside and anterior to the law. Parental responsibility involves duties owed by the parent not just to the court. First and foremost, and even more importantly, parental responsibility involves duties owed by each parent to the child. Not surprisingly a corresponding principle is recognised under the European Convention on Human Rights. As the Strasbourg court said in Nielsen v Denmark (1988) 11 EHRR 175, family life in the Contracting States encompasses a broad range of parental rights and responsibilities in regard to care and custody of minor children. The care and upbringing of children normally and necessarily require that the parents or an only parent decide where the child must reside and also impose, or authorize others to impose, various restrictions on the childs liberty. Family life in this sense, and especially the rights of parents to exercise parental authority over their children, having due regard to their corresponding parental responsibilities, is recognized and protected by the Convention, in particular by article 8. Indeed the exercise of parental rights constitutes a fundamental element of family life The common law principle is given specific statutory recognition in section 3 of the Children Act 1989, which defines parental responsibility as encompassing all the rights, duties, powers, responsibilities and authority which by law a parent of a child has in relation to the child and his property. A child in this context means a person under the age of 18 (section 105(1)). Neither definition is in terms modified by anything in the MCA 2005 or the 2019 Act. The judgments below The judges conclusion that the legal position changed when D became 16 turned principally on his view of the change in the statutory framework applicable to such children. He said: 103. I am entirely persuaded that Parliament has on numerous occasions, , chosen to distinguish the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority. 104. I am particularly persuaded by the fact that Parliament chose to include incapacitous 16 and 17 year olds within the remit of the Mental Capacity Act 2005. An incapacitous young person under the age of 16 years is specifically excluded from the provisions of the Act: see section 2(5) (subject to the exceptions referred to [above] ). The President disagreed. As to the correct approach to article 5, and in particular the effect of Nielsen, he extracted the following propositions from the judgments in Cheshire West of Lady Hale and Lord Neuberger: 105. In the premises, and whilst acknowledging that parents still have parental responsibility for their 16 and 17 year old children, I accept that the various international Conventions and statutory provisions referred to, the United Nations Convention on the Rights of the Child and the Human Rights Act 1998, recognise the need for a greater degree of respect for the autonomy of all young people but most especially for those who have attained the age of 16 and 17 years. Accordingly, I have come to the clear conclusion that however close the parents are to their child and however co operative they are with treating clinicians, the parent of a 16 or 17 year old young person may not consent to their confinement which, absent a valid consent, would amount to a deprivation of that young persons liberty. i) Nielsen is, fundamentally, a case about Storck component (b); or, to be more precise, about the proper ambit of Storck component (b) and the extent and limit of parental authority, which between them determine whether Storck component (c) arises for consideration. ii) Whatever its implications in relation to adults, a matter which is not before us and which is not free from difficulty, Nielsen is good authority in relation to children. iii) In accordance with Nielsen, there are circumstances in which the consent by a holder of parental authority in domestic terms, someone with parental responsibility will provide a valid consent for the purposes of Storck component (b) to something which is a confinement for the purposes of Storck component (a). Those circumstances, although extensive, are not unlimited. (para 37) This led him to a discussion of the scope of parental responsibility in the context of Storck component (b), which in his view was governed by domestic law: 50. For the purpose of applying the Nielsen principle one first has to identify what are the relevant rights of the holder of parental authority, and that, in my judgment, is plainly a matter to be determined by the relevant domestic law. Understanding of the issues arising in relation to ground (1) therefore requires consideration of our domestic law before one can turn to consider the application of article 5 and the Strasbourg jurisprudence (para 50) There followed a comprehensive review of the authorities culminating in the leading modern authority in Gillick v West Norfolk and Wisbech Area Health Authority [1986] AC 112. From an extended discussion of the speeches in Gillick (paras 74ff) he derived three propositions: (in very brief summary) first, that parental rights exist for the benefit of the child not the parent; secondly, that parental rights are to be exercised in the best interests of the children, and subject to the control of the court by reference to general community standards; thirdly, the rejection of the rule that the age of discretion was fixed and the substitution of what it has now become customary to refer to as the acquiring of Gillick capacity (para 79). He concluded his discussion of Gillick with this summary: What for convenience, and in accordance with settled practice, I shall refer to as Gillick capacity or Gillick competence is not determined by reference to the characteristic development trajectory of some hypothetical typical or normal child (whatever those expressions might be understood as meaning). Whether a particular child has Gillick capacity is determined by reference to the understanding and intelligence of that child The attainment of Gillick capacity is, and has always been, treated as being child specific. This has an important corollary. Given that there is no longer any magic in the age of 16, given the principle that Gillick capacity is child specific, the reality is that, in any particular context, one child may have Gillick capacity at the age of 15, while another may not have acquired Gillick capacity at the age of 16 and another may not have acquired Gillick capacity even by the time he or she reaches the age of 18. (paras 83 84) He thought that the judges approach was inconsistent with the Gillick principle, and unsupported by the statute: On this point, in my judgment, Keehan J was wrong in law. I say this for two reasons. First, because his approach does not give effect to the fundamental principle established by Gillick: namely that, in this context , the exercise of parental responsibility comes to an end not on the attaining of some fixed age but on attaining Gillick capacity Secondly, because none of the statutory provisions upon which he relied bears either expressly or by implication upon the matter in hand which, to emphasise the obvious, is to do with the ambit and extent of parental responsibility and nothing else. It was therefore, with great respect to Keehan J, beside the point for him to observe (para 103) that: Parliament has on numerous occasions chosen to distinguish the legal status of those who have not attained the age of 16 years, those aged 16 and 17 and, finally, those who have attained their majority. No doubt, but, I ask rhetorically, where does that take us? given the rejection by the House of Lords in Gillick of this courts reliance in the same case on what was essentially the same line of thought. (para 125) In relation to the 2005 Act itself he made two points First, that in general terms the 2005 Act does not make specific provision in relation to those aged 16 or 17. Secondly, and even more important for present purposes, that with only two (in the present context irrelevant) exceptions, the 2005 Act makes no statutory provision for the role of those exercising parental responsibility. Precisely so: the matter is left to the common law, in other words to the operation of the Gillick principles. (para 127, his emphasis) He concluded that in the present context, parental responsibility is, in principle, exercisable in relation to a 16 or 17 year old child who, for whatever reason, lacks Gillick capacity (para 128). The Official Solicitors case In this court the Official Solicitor submits that the President was wrong to treat Nielsen as relevant only to limb (b) of the Storck test, having regard to the later authorities reviewed in the judgment of Keehan J. To do justice to the argument, I cannot do better than quote from the written submissions advanced by Mr Setright QC and his team. He suggests that argument about the scope of limb (a) (confinement) is to some extent, a sterile one since it is the nuancing of the meaning of confinement that allows the balance to be struck between consideration of the rights of the parents (whether under the common law or article 8 ECHR) to exercise parental control over their children as an aspect of their caring responsibilities, and consideration of the rights of the child to be recognised as an independent legal actor, those latter rights gaining greater strength the closer the child gets to adulthood (and irrespective of their disability). In the remainder of his case he puts the main emphasis on developments in the law since Gillick, in particular the 2005 Act. Indeed he accepts that the Presidents approach was undoubtedly correct as a statement of the operation of Gillick competence at common law in 1985 , but argues that it has been overtaken by developments in the law, in particular, the passage of the 2005 Act, and also the trends in international human rights norms (Case para 65). He argues that these changes justify a change in the approach of the courts: If as the Official Solicitor submits section 5 MCA 2005 provides a complete framework for the delivery of care and treatment to those aged 16 above lacking capacity, then he submits that, by operation of conventional principles, it should be seen as ousting the place of the common law. As set out above, it has already been held that, where section 5 MCA 2005 applies, the common law defence of necessity has no application. [citing Comr of Police for the Metropolis v ZH [2013] 1 WLR 3021.] The Official Solicitor submits that the same analysis applies equally to the (common law) position in relation to those aged 16 and 17 with impaired capacity. Even if the court considers that the common law has not been ousted by the passage of the MCA 2005, the great virtue of the common law is that it can respond to changing circumstances. The Official Solicitor prays in aid by analogy the approach adopted by the Supreme Court in Montgomery v Lanarkshire Health Board [2015] AC 1430 In the circumstances, the Official Solicitor respectfully submits that good practice in the clinical and caring context now recognises very considerable limits upon the ability of parents to consent to beneficent, but either coercive or very serious, interventions in relation to their children The Official Solicitor would respectfully submit that this can, and should, be the point at which the Supreme Court expressly confirms as a matter of common law that the power of a parent to consent on behalf of a 16/17 year old with impaired capacity simply does not exist, as (1) there is no requirement for it to exist; and (2) it does not reflect contemporary understandings of the rights of children; (Case paras 65.3 4) This argument is resisted by the City Council. Discussion Parental authority and the MCA 2005 Without disrespect I can deal relatively shortly with the central argument in the Official Solicitors case, because I agree essentially with the reasons given by the President for rejecting the corresponding part of the judges reasoning. Like the President I see nothing in the 2005 Act which detracts from the common law principle or from section 3 of the 1989 Act. There is a presumption that Parliament does not change the common law by implication. Certainly in respect of a concept as basic and sensitive as parental responsibility one would expect clear words to indicate the nature of the change and its practical consequences. Not only is there nothing in the 2005 Act itself to indicate such a change, but, as the Secretary of State has shown (without challenge), there is nothing in the background to the Act to indicate such an intention. On the contrary it was made clear by the Law Commission and in Ministerial statements to Parliament, that there would be an overlap between the proposed regime and the 1989 Act. That position has been reinforced by the lack of anything in the 2019 Act to undermine the common law position, as reflected in the 1989 Act. In the absence of any specific legislative change I do not see how unincorporated international instruments can add anything to the argument. I am also satisfied that this is not an area in which it would be appropriate for this court to accept the invitation to develop the law to fill a supposed gap left by the legislation, or otherwise to reflect contemporary understandings of the rights of children, as the Official Solicitor invites us to do. There is no parallel with the Montgomery case (Montgomery v Lanarkshire Health Board [2015] 1432) where a seven justice court had been convened specifically to consider whether to depart from the controversial and much criticised reasoning of the majority in Sidaway v Board of Governors of the Bethlem Royal Hospital and the Maudsley Hospital [1985] AC 871. Not only does the Secretary of State, who is responsible for legislative policy in this area, resist such a development, but the treatment of mentally incapacitated 16 or 17 year olds has been subject of Parliamentary scrutiny in connection with legislation passing through Parliament during the course of this appeal. In addition the experience of the Cheshire West decision should lead us to extreme caution in this difficult and sensitive area of the law. Nielsen On the question whether Nielsen was a case about Storck limb (a) or (b), I accept that, as the case was decided before the identification of the Storck components, it is a little artificial to attempt to fit the reasoning of the majority directly into that scheme. It is enough to say that, on the authorities as they stood before him, I see no error in Sir James Munby Ps approach. He referred to two passages in Cheshire West to support his view. The first (para 26) was from Lady Hale: I start with Baroness Hale of Richmond DPSC, who said this about Nielsen v Denmark (1988) 11 EHRR 175 (para 30): The seven dissenting judges considered that placing a 12 year old boy who was not mentally ill in a psychiatric ward for several months against his will was indeed a deprivation of liberty. It would appear, therefore, that the case turns on the proper limits of parental authority in relation to a child. As already mentioned (para 4 above) there is no equivalent in English law to parental authority over a mentally incapacitated adult. She added (para 41): Although Nielsen 11 EHRR 175 has not been departed from, it is to be regarded as a case of substituted consent, and thus not fulfilling component (b). The second (para 35) was from Lord Neuberger, who said of Nielsen (at para 73): The case involved a child, and was decided on the basis that his mother was exercising her article 8 rights responsibly, in good faith and on the basis of medical advice: see para 71 There was some discussion before us whether the second passage in the quotation from Lady Hale was an expression of her own opinion, or simply a recitation of counsels submission. Either way I can see nothing in the remainder of her judgment to indicate disagreement with that proposition, which also seems to me consistent with the first passage, and with the passage quoted from Lord Neubergers judgment. It also seems to me the more natural interpretation. If Storck component (a) is directed to the objective quality of confinement, it is difficult to see how that quality is affected by whether or not it has been sanctioned by the parent. It is true that the attributes of confinement may vary in relation to children of different ages, as explained by Lord Kerr in Cheshire West paras 77 79 (a passage quoted by the Lady Hale: para 38). However, I am not persuaded that the clarity of the concept would be improved by further nuancing as the Official Solicitor suggests. In this case, as I have said, it is not in dispute that component (a) is satisfied. Lady Hales judgment I need to deal separately with Lady Hales judgment in the present appeal. She takes a rather different approach from that advocated by any of the parties before us, and perhaps for that reason finds it unnecessary to address in any detail the reasoning of the Court of Appeal. She deals relatively briefly with the majority judgment in Nielsen, which she treats as turning on the comparative normality of the restrictions imposed on the freedom of a 12 year old boy (para 38). Later in the judgment (para 42), she discounts suggestions in Cheshire West that Nielsen was a case of substituted consent, because it had suited counsel so to argue. Instead she relies on later Strasbourg authorities as showing that limb (b) (that is, lack of valid consent) can be satisfied despite the consent of a person with the legal right to make decisions on behalf of the person concerned, the only exceptions being where the evidence showed that the person concerned was willing to stay where he or she was and was capable of expressing that view. She concludes accordingly that parental consent cannot substitute for the subjective element of limb (b) of Storck. Later in her judgment (para 48) she reinforces that view by equating deprivation of liberty with other fundamental human rights such as the right to life or freedom from torture. She argues that it would be a startling proposition that it lies within the scope of parental responsibility to authorise violation of such rights. I say at once, with respect, that I am not persuaded that such comparisons are fair or helpful. Ds parents were not authorising the state to commit torture or anything comparable to it. They were doing what they could, and what any conscientious parent would do, to advance his best interests by authorising the treatment on which all the authorities were agreed. That this involved a degree of confinement was an incidental but necessary part of that treatment, and no more than that. On the Presidents view, with which I agree, they were not authorising a violation of his rights, but rather exercising their parental responsibility in a way which ensured that there was no such violation. More importantly, I do not accept that the majority reasoning in Nielsen, nor indeed what was said about it in Cheshire West, can simply be brushed aside. It was not just about the relative normality of the confinement (although some might share the minoritys doubts about that description of the forcible confinement of a 12 year old child for five months in a locked psychiatric ward). As has been seen (para 147 above), in Cheshire West Lady Hale herself described it as turning, not on the normality of the arrangements, but on the proper limits of parental authority in relation to a child. More specifically Lord Neuberger said that it was decided on the basis that his mother was exercising her article 8 rights responsibly, in good faith and on the basis of medical advice . Sir James Eadie QC, on behalf of the Secretaries of State, has helpfully analysed the majority judgment in Nielsen in terms which I would in substance endorse. He accepts that, not surprisingly in a case decided before Storck, there may be some overlap between the categories. But, in agreement with the President, he sees it as primarily about limb (b). He points to the emphasis given by the majority at the outset to family life under the Convention, encompassing the broad range of parental rights and responsibilities in regard to the care and custody of minor children (para 61). He notes the following points from the judgment (paras 68 72): i) The mothers decision to have the applicant hospitalized was a lawful exercise of parental powers under Danish law and was also well founded. The Danish courts found that the hospitalization decision fell within the mothers competence as holder of parental rights. ii) The mother had taken her decision on the basis of medical advice from her family doctor and a professor, and had as her objective the protection of the applicants health. This was a proper purpose for the exercise of parental rights. iii) The mothers decision was approved by the relevant social services authorities. iv) There was no suggestion that the treatment given at the hospital and the conditions under which it was administered were inappropriate in the circumstances. The applicant was in need of medical treatment for his condition and the treatment administered to him was curative. v) There was no evidence of bad faith on the part of the mother. Hospitalization was decided upon by her in accordance with expert medical advice. It must be possible for a child to be admitted to hospital at the request of the holder of parental rights, a case which was not covered by para 1 of article 5. That the court based its reasoning principally on the exercise of parental responsibility seems to me put beyond doubt by its concluding comment: the hospitalization of the applicant did not amount to a deprivation of liberty within the meaning of article 5, but was a responsible exercise by his mother of her custodial rights in the interests of the child. Accordingly, article 5 is not applicable in the case. (para 73) In context, that comment is clearly designed to take the reader back to where this discussion began (para 61), that is to the broad range of parental rights and responsibilities recognised by the Convention under the concept of family life. The Secretaries of State further submits (without contradiction) that the Strasbourg court has not departed from Nielsen in the three decades since the judgment was delivered. That submission is confirmed by the exhaustive review by Keehan J of the Strasbourg authorities relied on by the Official Solicitor before him (paras 44 61). The case has been consistently explained by the court itself as a case about the responsible exercise by the applicants mother of her custodial rights: see Koniarski v United Kingdom (Application No 33670/96) 30 EHRR CD 139 and DG v Ireland (Application No 39474/98) (2002) 35 EHRR 33. (Notably, the fact that both those cases related to 17 year olds was not cited as a ground of distinction). In HL v United Kingdom (2004) 40 EHRR 761, it was cited with approval, but distinguished on the basis that no one had legal authority to act on the adult HLs behalf in the same way as Jon Nielsens mother (para 93). It was also cited with approval by the Grand Chamber in Stanev v Bulgaria (2012) 55 EHRR 696, where it was explained as the exercise of exclusive custodial rights over a child who was not capable of expressing a valid opinion (para 122). Keehan J (para 42) noted some doubts about the case expressed by Lord Walker in Austin v Comr of Police [2009] 1 AC 564, para 42. But no such doubts appear to have found their way into the Strasbourg jurisprudence. It was and remains the leading Grand Chamber decision on the scope of such parental rights and responsibilities in the context of article 5. It is unnecessary in my view to decide whether the case is to be regarded as a case of substituted consent so as to bring it directly with Storck limb (b) (as was hinted at in Stanev v Bulgaria [2012] 55 EHRR 22, para 130), or whether it is simply an exception to the Storck categorisation, justifiable in its own terms by reference to the scope of family life under article 8. For the present purposes, it provides amply sufficient support in Strasbourg case law for the Presidents reliance on equivalent domestic law principles to determine the present case. Lady Blacks judgment Lady Black, while agreeing with Lady Hale, has introduced a new line of reasoning based on a review of the common law authorities preceding Gillick. This leads her to reject the Presidents view of the relevance of that case to decisions relating to detention. Instead she reads those authorities as showing that in this context reaching the age of discretion was a matter of attaining the requisite chronological age, and not a matter of mental capacity (para 56, 68). As I understand her judgment (paras 71 72), she would regard 16 as the appropriate age in the modern law, taking account inter alia of the recognition by the legislature in successive Acts of that age as a pivotal turning point, most recently in the 2019 Act. This line of reasoning was not subject to detailed argument at the hearing. For the moment I remain unconvinced that the earlier cases can be relied on to limit the scope of the judgments in Gillick in the way she proposes, or that the Presidents conclusions are undermined. However, I acknowledge that this approach, if correct, may have advantages for the certainty and coherence of the law, particularly if taken with another important point which emerges from her review of the earlier cases. That is the willingness of the courts since the 19th century to take guidance from the legislature as to where to draw the lines in relation to the limits of parental responsibilities (see para 60, citing Cockburn CJ in R v Howes (1860) 3 El & El 332). In the present case there is the added consideration that, as noted above (para 130), the exclusion of those under 16 from the new legislative scheme appears at least in part to be a reflection of the legislatures understanding of the law following Keehan Js judgment, which to that extent may be seen as having the implicit endorsement of Parliament. I note with some concern that Lady Hale (para 50) has raised a question as to the logic of the differential treatment of those under 16, at least in the context of article 5 taken on its own. That does not reflect any issue between the parties. Keehan Js application of parental responsibility to those under 16 has not been questioned by any of the parties in the Court of Appeal or in this court. Nor does Lady Hale, as I understand it, suggest that there is anything in the Strasbourg law as it stands which invalidates that aspect of Keehan Js judgment. For the time being his reasoning remains the law, and as such appears to fit well with the new legislative scheme. I have nothing to add to what Lady Black says in respect of section 25 of the Children Act 1989, with which I agree. Conclusion For the reasons stated earlier in this judgment, in substantial agreement with the reasoning of the Court of Appeal, I would have dismissed the appeal.

The issue in this appeal is whether it is within the scope of parental responsibility to consent to living arrangements for a 16 or 17 year old child which would otherwise amount to a deprivation of liberty within the meaning of article 5 of the European Convention of Human Rights (ECHR), in particular where the child lacks the mental capacity to make the decision for himself. D was born in 1999. He was diagnosed with attention deficit hyperactivity disorder, Aspergers syndrome and Tourettes syndrome, and has a mild learning disability. When he was 14 he was admitted to a hospital providing mental health services, for assessment and treatment. He lived in the hospital grounds and attended a school which was integral to the unit. The external door was locked and D was accompanied whenever he left the site. The hospital trust applied to the High Court for a declaration that it was lawful for the trust to deprive D of his liberty in this way. The judge, Mr Justice Keehan, held that D was so deprived but that it was a proper exercise of parental responsibility to consent to his constant supervision and control while he was under 16. By then, with his parents agreement, and with Birmingham City Council (the Council) accommodating him under s 20 Children Act 1989, D had been discharged from hospital to a residential placement, where he was similarly under constant supervision and not allowed to leave the premises except for a planned activity. On his 16th birthday proceedings were issued in the Court of Protection for a declaration that the consent of Ds parents meant that he was not deprived of his liberty at the placement. Keehan J held that his parents could no longer consent to what would otherwise be a deprivation of liberty once D had reached 16, and that the provisions of the Mental Capacity Act 2005 (MCA) now applied. He authorised the placement, and a subsequent transfer to another similar placement, as being in Ds best interests. When D reached the age of 18 his deprivation of liberty could be authorised under the deprivation of liberty safeguards in the MCA. The Councils appeal to the Court of Appeal was allowed, on the ground that parents could consent to what would otherwise be a deprivation of liberty of a 16 or 17 year old child who lacked the capacity to decide for himself, and the MCA had no bearing on this. The Supreme Court by a majority of 3 to 2 (Lord Carnwath and Lord Lloyd Jones dissenting) allows the appeal. Lady Hale gives the main judgment. Lady Black gives an additional judgment, dealing also with the issue of secure accommodation which arose during the hearing. Lady Arden agrees with Lady Hale on the effect of article 5 in a further judgment. Lord Lloyd Jones agrees with Lord Carnwaths dissenting judgment. The case turns on the inter relationship between the concept of parental responsibility, as defined by the Children Act 1989, the common law and other relevant statutory provisions, and the obligation of the State to protect the human rights of children under the ECHR [19]. Historically, parental rights under domestic law were never absolute and became increasingly subject to the overriding consideration of the childs own welfare. The power of physical control was a dwindling right as the child acquired sufficient understanding and intelligence to make his or her own decisions the age of discretion which could be before the age of majority (known as Gillick competence after the case of Gillick v West Norfolk and Wisbech AHA [1986] 1 AC 112) [21 23]. Gillick is not directly relevant to the question of whether parental authority endures beyond the age of discretion, if the child lacks capacity to make decisions [24, 69 72]. The MCA does not override other common law and statutory provisions relating to 16 and 17 year old children, but it does indicate an appreciation of the different needs of this age group [27, 71]. Lady Black would hold that as a matter of common law, parental responsibility for a child of 16 or 17 does not extend to authorising a confinement of the child in circumstances amounting to a deprivation of liberty [88 90]. Lady Hale prefers not to express a concluded view on this question but agrees that it reinforces the conclusion reached under the ECHR [28]. Article 5 ECHR protects children who lack the capacity to make decisions for themselves from being arbitrarily deprived of their liberty. Clearly the degree of supervision to which D was subject at the placements was not normal for a child of 16 or 17 [39]. Ds living arrangements had to be compared with those of children of the same age without disabilities, and the fact that they were made in his best interests did not mean he was not deprived of his liberty [41]. Parental consent could not substitute for the subjective requirement under article 5 for valid consent to the deprivation [42]. The procedural requirements of article 5 applied (and had in fact been complied with by the court authorisations) [44]. Human rights are about the relationship between private persons and the state, and Ds deprivation of liberty in the placements was attributable to the state [46]. There is no scope for the operation of parental responsibility to authorise what would otherwise be a violation of a fundamental human right of a child [49]. The question was raised in the hearing of whether the provisions of s 25 Children Act 1989, regarding the placing of children in accommodation provided for the purpose of restricting liberty, apply to Ds living arrangements. Lady Black addresses this issue in her judgment, concluding that a narrow construction of s 25 is needed to ensure local authorities can meet the welfare needs and best interests of children who for good reasons need to be kept in confined circumstances, but that s 25 does not play a direct role in Ds case [100, 113 115]. Lord Carnwath, dissenting, would have agreed with the Court of Appeal that nothing in the MCA detracts from the common law principle of parental responsibility in respect of 16 and 17 year olds [145]. He further considers that the case law of the European Court of Human Rights on article 5 recognises that the proper exercise of parental responsibility can include consent to confinement of a child such as D [155].

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In early 2006 the appellant, The United States of America, decided for strategic reasons to close the watercraft repair centre, known as RSA Hythe, which the United States Army maintained in Hampshire. The respondent, Mrs Nolan, was employed there as a civilian budget assistant, and the closure on 30 September 2006 involved her dismissal for redundancy on the previous day. She brought Employment Tribunal proceedings on 9 November 2006. The proceedings were brought under Part IV Chapter II, containing sections 188 to 198 of the Trade Union and Labour Relations (Consolidation) Act 1992 as amended by the Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587). I will call the Act as amended TULCRA and the Regulations by which it was amended the 1995 Regulations. Mrs Nolans complaint was that the appellant as her employer had, when proposing to dismiss her and other employees, failed to consult with any employee representative as required by the procedure for handling collective redundancies prescribed by Part IV Chapter II of TULCRA. There was no trade union at the base to represent Mrs Nolans and other employees interests. Accordingly, she made her complaint on the basis that she was an employee representative within section 188(1B). The appellant accepts that it made clear in June 2006 that there would be neither discussions nor consultation about the forthcoming closure. It denies that it was under the alleged duty. State immunity The appellant did not rely on state immunity when the proceedings were begun. It is common ground that it could successfully have done so. Whether this would have been under the State Immunity Act 1978 or at common law is presently immaterial. The 1978 Act is under section 16(2) inapplicable to proceedings relating to anything done by or in relation to the armed forces of a state while present in the United Kingdom. Assuming that section 16(2) applies, there would have been immunity under common law principles, summarised by Lord Millett in Holland v Lampen Wolfe [2000] 1 WLR 1573, 1583D F. Littrell v United States of America (No 2) [1995] 1 WLR 82 is an example of a successful common law plea of state immunity; see also Sengupta v Republic of India [1983] ICR 221. As to why there was no plea of state immunity, it was not apparent at the outset that the duty to consult under section 188 would apply to the closure of a base, rather than the consequences for employees after its closure. The potential for this extended understanding of the duty was only highlighted by the Employment Appeal Tribunal decision on 28 September 2007 in UK Coal Mining Ltd v National Union of Mineworkers (Northumberland Area) [2008] ICR 163. By then, the Employment Tribunal held, it was too late for the plea of state immunity which the appellant sought at that stage to raise. The validity of the extended understanding of the duty remains open to debate notwithstanding a later Court of Justice decision in Akavan Erityisalojen Keskusliitto (AEK) ry v Fujitsu Siemens Computers Oy (Case C 44/08) [2009] ECR I 8163, [2010] ICR 444, [2009] IRLR 944 (Fujitsu). TULCRA and EU law Section 188 of TULCRA is in general terms. Subsection 1 provides: (1) Where an employer is proposing to dismiss as redundant 20 or more employees at one establishment within a period of 90 days or less, the employer shall consult about the dismissals all the persons who are appropriate representatives of any of the employees who may be [affected] by the proposed dismissals or may be affected by measures taken in connection with those dismissals. Subsections (2) and (3) state the aims and nature of the required consultation. Subsection (7) provides: (7) If in any case there are special circumstances which render it not reasonably practicable for the employer to comply with a requirement of subsections (1A), (2) or (4) the employer shall take all such steps towards compliance with that requirement as are reasonably practicable those circumstances. Various types of public employment are or may be taken outside the Part IV Chapter II, or outside the Act as a whole. Service as a member of the armed forces and employment which a minister certifies as required to be excepted from the Act for the purpose of safeguarding national security are taken entirely outside the Act by sections 274 and 275. Under section 273(1) to (4) the provisions of Part IV Chapter II of TULCRA have, for present purposes, no effect in relation to Crown employment and persons in Crown employment. Crown employment here means employment under or for the purposes of a government department or any officer or body exercising on behalf of the Crown functions conferred by an enactment, and employee and contract of employment mean a person in Crown employment and the terms of employment of such a person subject to a presently immaterial exception. Employment as a relevant member of House of Lords or House of Commons staff is outside Part IV Chapter II under sections 277 and 278. Under section 280, the term employee or worker does not include a person in police service, defined as meaning service as a member of any constabulary maintained by virtue of an enactment, or in any other capacity by virtue of which a person has the powers or privileges of a constable. Finally, under section 286(2) the Secretary of State may by order made by statutory instrument provide that the provisions of inter alia Part IV Chapter II shall not apply to persons or employment of such classes as the order may prescribe, or shall only apply to them with such exceptions and modifications as the order may prescribe. Part IV Chapter II of TULCRA gives effect to the United Kingdoms duty under European Union law to implement Council Directive 98/59/EC and its predecessor Council Directive 77/187/EEC. As originally enacted, it did not do so fully, with the result that the Commission brought proceedings against the United Kingdom which led to a Court of Justice judgment dated 8 June 1994 in Case C 383/92 [1994] ECR I 2479, [1994] ICR 664. One flaw identified by the judgment was that TULCRA (and its predecessor the Employment Protection Act 1975) did not require consultation in circumstances where employees did not enjoy union representation recognised by the employer. The Court of Justice held that Council Directive 77/187/EEC required member states to ensure that employee representatives would be designated for consultation purposes in such circumstances. The 1995 Regulations make provision accordingly by amending section 188. The Directive contains the following articles: Definitions and scope Article 1 1. For the purposes of this Directive: collective redundancies means dismissals effected by (a) an employer for one or more reasons not related to the individual workers concerned where, according to the choice of the member states, the number of redundancies is: (i) either, over a period of 30 days: at least ten in establishments normally employing more than 20 and less than 100 workers, at least 10% of the number of workers in establishments normally employing at least 100 but less than 300 workers, at least 30 in establishments normally employing 300 workers or more, (ii) or, over a period of 90 days, at least 20, whatever the number of workers normally employed in the establishments in question; workers representatives means (b) the workers representatives provided for by the laws or practices of the member states. For the purpose of calculating the number of redundancies provided for in the first subparagraph of point (a), terminations of an employment contract which occur on the employers initiative for one or more reasons not related to the individual workers concerned shall be assimilated to redundancies, provided that there are at least five redundancies. 2. This Directive shall not apply to: (a) collective redundancies effected under contracts of employment concluded for limited periods of time or for specific tasks except where such redundancies take place prior to the date of expiry or the completion of such contracts; (b) workers employed by public administrative bodies or by establishments governed by public law (or, in member states where this concept is unknown, by equivalent bodies); (c) the crews of seagoing vessels. Final provisions Article 5 This Directive shall not affect the right of member states to apply or to introduce laws, regulations or administrative provisions which are more favourable to workers or to promote or to allow the application of collective agreements more favourable to workers. While TULCRA in its original form (and its 1975 predecessor) failed until the 1995 Regulations properly to implement European Union law in certain respects identified in the Court of Justices judgment in Case C 383/92 (para 6 above), in other respects they went beyond the requirements of such law. In particular: they provided until the 1995 Regulations that the consultation a) obligations arose if even a single redundancy was proposed; b) they provided for consultation at the earliest opportunity until 1995 (when this was replaced by the Directive requirement in good time) and further provided (as TULCRA continues to do) for specific time limits within which consultation must occur (there being no such time limits in the Directives); and c) they applied (and TULCRA continued until 2013 to apply) to fixed term contracts (to which the Directive under article 1(2)(a) does not apply). Most importantly for the present appeal, TULCRA in its original and amended form and its 1975 predecessor: d) contained and contain no express homologue of article 1(2)(b). They all exclude Crown employees and those in the police service. But they do not exclude public administrative bodies or public law establishments generally. The present proceedings The proceedings initiated by Mrs Nolan have not taken a straightforward course. She succeeded before the Employment Tribunal (LJ Guyer, Mrs S Foulser and Mr M W Heckford), obtaining on 17 March 2008 an order for remuneration for a one month protected period. The order was on 15 May 2009 upheld on appeal by the Employment Appeal Tribunal (Slade J, Mr D Norman and Mrs R Chapman). On a further appeal, the Court of Appeal (Laws, Hooper and Rimer LJJ) on 26 November 2010 ordered that there should be a reference to the Court of Justice on the question, raised by the decision in UK Coal, whether the obligation to consult arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies? The Court of Justice did not answer this question (Case C 583/10) [2013] ICR 193. It raised the issue whether Mrs Nolans dismissal by the appellant, which is not an EU member state, fell within the scope of Directive 98/59/EC, having regard in particular to article 1(2)(b). Having heard submissions on this point, the court on 18 October 2012 gave a judgment with two parts. First, the court held that the Directive was both by virtue of its adoption under article 100 of the former EC Treaty (now article 94 TEU) and by nature part of the legislation aimed at improving the internal market; that activities like national defence, falling within the exercise of public powers, are in principle excluded from classification as economic activity; and that, by virtue of article 1(2)(b), the dismissal of staff of a military base falls outside the scope of the Directive, whether or not the base belongs to a non member state (para 43). Secondly, the court addressed Mrs Nolans submission that it should nonetheless rule on the question referred by the Court of Appeal, on the basis that TULCRA extends the provisions of the Directive in national law to cover article 1(2)(b) situations (other than in respect of Crown employment or employees and persons in the police service). The court (disagreeing on this point with Advocate General Mengozzis approach) declined to give any such ruling on the basis that If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces the objective [of] seeking uniform interpretation and application of the rules of law in that excluded area (para 55). The upshot was that the Court of Justice simply declined jurisdiction. So the questions raised by UK Coal/Fujitsu and the Court of Appeals reference will in the present case have to be resolved, if ever necessary, domestically without further assistance from the Court of Justice. Whether it will be necessary to resolve them in this case appears doubtful. The first part of the Court of Justices judgment lent encouragement to an argument by the appellant that, since EU law did not require or intend a foreign state to be subject to the Directives consultation obligations, United Kingdom law should be read in the same sense. When the matter came back before the Court of Appeal after the Court of Justices ruling, Mrs Nolan was prepared to concede the correctness in law of this argument and did not appear. The Court of Appeal (Moore Bick, Rimer and Underhill LJJ) [2014] ICR 685 after hearing submissions from Mr John Cavanagh QC and Sir Daniel Bethlehem QC for the appellant nonetheless dismissed the appeal, and made an order (stayed pending any appeal to the Supreme Court) that there be a further hearing to deal with the remaining UK Coal/Fujitsu issue. The appellant duly sought permission to appeal to the Supreme Court. This was given on the basis that the appellant bear its own costs in respect of the appeal, including those of any advocate to the court who might be appointed, and do not seek any costs order in respect of any instance of the proceedings. The appeal has proceeded on that basis and The Honourable Michael Beloff QC and Sarah Wilkinson have been appointed and appeared as advocates to the court. The government, which might be expected to have an interest in the third point (vires) identified in the next paragraph, has not sought to intervene. The issues The appellant has through counsel raised two points of construction and one of vires. The first point of construction, argued by Mr Cavanagh QC, is that the domestic legal provisions should be given an interpretation conforming to that given in the first part of the Court of Justices judgment, at least as regards foreign states jure imperii activity. By jure imperii, is here meant any decision or act which is not jure gestionis, (or commercial) in nature. A state enjoys no general immunity in respect of jure gestionis decisions or acts. The second point, argued by Sir Daniel Bethlehem QC, is that the same construction should be reached as regards foreign states by virtue of or by reference to principles of international law forming part of or inspiring domestic law. The third point, that of vires, argued by Mr Cavanagh, is that the 1995 Regulations were ultra vires section 2(2) of the European Communities Act 1972, in that, when providing workers without trade union representation with the protection which the Court of Justice held in (Case C 383/92) to be required, they did not confine themselves to the sphere of EU law, as confirmed by the court in the present case, but went further by conferring extended protection on workers without trade union representation employed by public administrative bodies or public law establishments. There is some overlap between the considerations relied upon by the appellant in relation to the two points of construction. The appellant focused on the overlap, which meant in its submission that TULCRA could not and should not on any view apply to foreign states jure imperii activity. The two points have however different underlying logics. The logic of the first point is that TULCRA should be construed so as not to apply to employment by any public administrative body or public law establishment. The logic of the second is that TULCRA should be construed so as not to apply to foreign states jure imperii activity. The third point, vires, only arises if neither point of construction is accepted. It would if accepted have an effect similar to the first point, but only in circumstances where there is no trade union representation. In circumstances where there is trade union representation consultation would be required by primary legislation (TULCRA without reference to the 1995 Regulations), so that no question of vires could arise. The first point of construction Taking the first point of construction, it is a cardinal principle of European and domestic law that domestic courts should construe domestic legislation intended to give effect to a European Directive so far as possible (or so far as they can do so without going against the grain of the domestic legislation) consistently with that Directive: Marleasing SA v La Comercial Internacional de Alimentacion SA (Case C 106/89) [1990] ECR I 4135, Vodafone 2 v Revenue and Customs Comrs [2009] EWCA Civ 446, [2010] Ch 77, paras 37 38 and Swift v Robertson [2014] UKSC 50, [2014] 1 WLR 3438, paras 20 21. But that means avoiding so far as possible a construction which would have the effect that domestic implementing legislation did not fully satisfy the United Kingdoms European obligations. Where a Directive offers a member state a choice, there can be no imperative to construe domestic legislation as having any particular effect, so long as it lies within the scope of the permitted. Where a Directive allows a member state to go further than the Directive requires, there is again no imperative to achieve a conforming interpretation. It may in a particular case be possible to infer that the domestic legislature did not, by a domestic formulation or reformulation, intend to go further in substance than the European requirement or minimum. R (Risk Management Partners Ltd) v Brent London Borough Council [2011] UKSC 7, [2011] 2 AC 34, considered below, is a case where the Supreme Court implied into apparently unqualified wording of domestic Regulations a limitation paralleling in scope that which had been implied by the Court of Justice into general wording of the Directive to which the Regulations were giving effect: see Teckal Srl v Comune di Viano (Case C 107/98) [1999] ECR I8121 (Teckal). It concluded that the two had been intended to be effectively back to back. A reformulation may also have been aimed at using concepts or tools familiar in a domestic legal context, rather than altering the substantive scope or effect of the domestic measure from that at the European level. But that is as far as it goes. Directive 98/59/EC introduces requirements in favour of workers engaged in fields of economic activity. But it leaves it open to member states to apply or introduce even more favourable laws, regulations or administrative provisions than those it requires (article 5), and, whether or not article 5 confirms this, it certainly leaves it open to member states to apply or introduce similar or more favourable provisions in areas of non economic activity, such as those of workers employed by public administrative bodies or public law establishments excluded from the Directive because of its internal market base and focus. Heavy reliance was placed by the appellant on the Supreme Courts decision in R (Risk Management Partners Ltd) v Brent London Borough Council and Harrow London Borough Council [2011] 2 AC 34, in furtherance of the appellants case that the Regulations must be limited in scope by reference to the Directive. The Supreme Court in Risk Management applied under the Public Contracts Regulations 2006 (SI 2006/5), passed to give effect to Council Directive 2004/18/EC, similar reasoning to that adopted by the Court of Justice in Teckal. In Teckal the Comune de Viano had decided, without inviting competing tenders, to switch responsibility for its fuel supplies and heating system servicing from a private company, Teckal, to a corporate entity (AGAC), set up by a consortium of Italian municipalities to provide energy and environmental services to the participating authorities. Teckal challenged this decision as breaching Directive 93/36/EEC (a predecessor to Directive 2004/18/EC) on supply of goods. The Court of Justice examined the principles determining whether the new arrangement fell within the Directive 93/36/EEC, which contained the following definitions in article 1: (a) public supply contracts are contracts for pecuniary interest concluded in writing involving the purchase, lease [,] rental or hire purchase, with or without option to buy, of products between a supplier (a natural or legal person) and one of the contracting authorities defined in (b) below. The delivery of such products may in addition include siting and installation operations; contracting authorities shall be the state, regional or (b) local authorities, bodies governed by public law, associations formed by one or several of such authorities or bodies governed by public law; The Court of Justice gave this guidance: 50. In that regard, in accordance with article 1(a) of Directive 93/36, it is, in principle, sufficient if the contract was concluded between, on the one hand, a local authority and, on the other, a person legally distinct from that local authority. The position can be otherwise only in the case where the local authority exercises over the person concerned a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities. 51. The answer to the question must therefore be that Directive 93/36 is applicable in the case where a contracting authority, such as a local authority, plans to conclude in writing, with an entity which is formally distinct from it and independent of it in regard to decision making, a contract for pecuniary interest for the supply of products, whether or not that entity is itself a contracting authority. In Risk Management, Risk Management Partners Ltd (RMP) complained that Harrow London Borough Council had awarded insurance contracts to a mutual insurer established by various local authorities without going through the public contract award procedure required by the 2006 Regulations. The Regulations applied to a public services contract, defined as: a contract, in writing, for consideration (whatever the nature of the consideration) under which a contracting authority engages a person to provide services but does not include a public works contract; or a public supply contract; The Regulations contained a list of contracting authorities which included a local authority. Article 1 of the Directive, to which the Regulations gave effect, applied to public contracts, defined as: contracts for pecuniary interest concluded in writing between one or more economic operators and one or more contracting authorities and having as their object the execution of works, the supply of products or the provision of services within the meaning of this Directive. The Directive defined contracting authorities as meaning: the state, regional or local authorities, bodies governed by public law, associations formed by one or several of such authorities or one or several of such bodies governed by public law. There was nothing in the Regulations in issue in Risk Management positively to have prevented the legislator going further than European law required. Nonetheless, the Supreme Court in Risk Management read the wording as qualified so as to have a like scope to that which the Court of Justice had given the Directive in issue in Teckal. The Supreme Courts reasoning is however important. In his leading judgment, Lord Hope of Craighead noted that the Teckal exemption was not referred to anywhere in the Directive. It is a judicial gloss on its language (para 17), and went on to say (para 22) that: In the other leading judgment in the case, Lord Rodger of Earlsferry said to like effect (para 92): the basis for implying the Teckal exemption into the 2006 Regulations is to be found in their underlying purpose, which was to give effect to the Directive. The absence of any reference to the exemption in the Regulations is of no more significance than the absence of any reference to it in the Directive that was being transposed. The exemption in favour of contracts which satisfy its conditions was read into the Directive by the Court of Justice in Teckal because it was thought to be undesirable for contracts of that kind to be opened up for public procurement. This was not just a technicality. It was a considered policy of EU law. It would be odd if a significant and policy based exemption were to apply in some member states and not others, especially as one of the aims of the Directive was to harmonise procedures. The 2006 Regulations give effect to the Directive in English law. In other words, they are the way in which English law secures the free movement of services and the opening up to undistorted competition in relation to contracts which are to be placed by English local authorities. That being the purpose of the Regulations, they, too, cannot be meant to apply in circumstances where that purpose is not relevant because a contracting authority intends to contract with a body which is not properly to be regarded as an outside body. Although the Teckal criteria were formulated with particular reference to the predecessors of the Directive, they are simply a way of identifying situations where the authority can be regarded as obtaining the products or services which it requires in house and, so, where there is no need to secure the free movement of services and the opening up to undistorted competition. In my view, the criteria are an equally good indication of situations where, for that reason, the 2006 Regulations have no application. The insight of Advocate General Trstenjak in para 83 of her opinion in Coditel Brabant [2008] ECR I 8457, 8482 is instructive. To hold that the Regulations did apply in these circumstances would involve saying that the legislature intended to attach weight to competition law objectives in an area where they have no legitimate application. This would, in turn, involve inappropriate interference with local authorities right to co operate in discharging their public functions. Lord Hopes further observations about the domestic legal history of the Regulations are relevant not only to construction, but also to the third point on vires, which I consider later. He said (para 24): As Waller LJ said in Oakley Inc v Animal Ltd (Secretary of State for Trade and Industry intervening) [2006] Ch 337, para 39, the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws. There is nothing in the explanatory memorandum to the Regulations that was prepared by the Office of Government Commerce and laid before Parliament to indicate that it was intended to depart from the jurisprudence of the court as to the scope of the Directive. In paras 7.2 7.4 of the memorandum it was stated that the change to the legislation was necessary to implement the new public procurement Directive, that it clarified and modernised the previous texts and that the simpler and more consistent public sector text should reduce the burdens involved under the EU rules. If the Teckal exemption were to be held not to apply to the 2006 Regulations, it could only be because the purpose of the Regulations was to apply the public procurement rules to relationships that fell outside the regime provided for by the Directive. But that would not be consistent with the memorandum, and it would not be a permitted use of the power. In Risk Management, the indications were that the domestic measure was intended in the relevant respect to be no more than back to back with the European Directive. That cannot be said to be so in the present case. TULCRA contains no equivalent of article 1(2)(b) of the Directive. Instead, it contains specific and limited exceptions for Crown employment and employees and for certain others in public service. It is true that the remainder of the category of public workers comprised by article 1(2)(b) would have been relatively confined, comprising those engaged in the exercise of public powers, rather than economic functions, as the Court of Justice indicated in Scattolon v Ministero dellIstruzione, dellUniversit, e della Ricerca (Case C 108/10) [2012] ICR 740, paras 43 44. But this remaining category is nonetheless significant. Contrary to the appellants submission, its inclusion within the scope of TULCRA cannot have been mere oversight. The careful exclusion of several specified categories of public employee speaks for itself. The variation of the Directive scheme enables, and according to the Employment Appeal Tribunal (para 84) has in many cases enabled, cases to be brought by those representing workers in public authorities. There are also other respects in which provisions of TULCRA have given protection in the form of consultation obligations which extends or has in the past extended, clearly deliberately, beyond the European requirement. It is, as Underhill LJ observed in the Court of Appeal (para 24) well understandable that a Labour government should in 1975, with trade union encouragement, have decided to give the scheme an extended domestic application to public employees. That does not mean that the legislator in the present case necessarily realised or foresaw the existence of employees of a public authority consisting of a foreign non EU member state such as the appellant, operating within the United Kingdom a base with its own employees. The appellant is the only foreign state with military bases in the United Kingdom, and it appears that civilian employees at United States Air Force (as distinct from Army) bases in the United Kingdom were and are, it seems, employed by the Crown. But the fact that a particular rare situation affecting a foreign state has not been foreseen is no reason for reading into clear legislation a specific exemption which would not reflect the wording or scope of any exemption in European law. This is particularly so, when the natural reaction to any suggestion that a foreign state might be adversely affected in its jure imperii decisions taken, according to the appellant, at the level of the US Secretary of Defense and US Secretary of the Army and in Washington would have been that the foreign state would be entitled to rely on state immunity, in response to any suggestion that it should have consulted with its workforce in relation to a strategic decision to close any such facility. While there is no positive indication that this played a part in legislative or ministerial thinking, it is a factor of relevance when considering whether objectively TULCRA must be read as containing any such implied limitation as the appellant suggests. The Court of Appeal and the advocates to the court also referred to section 188(7), with its limitation under special circumstances of any obligation to consult to whatever might be reasonably practicable in those circumstances. It may be that this could be of assistance to the appellant, in resisting a claim that it had breached the consultation obligations in section 188. But to my mind it provides an unconvincing basis for any conclusion that this was, or is objectively, the way in the legislator should be seen as having catered for the possible anomalies that might flow from expecting a sovereign state to consult about a jure imperii decision to close a naval or military facility. Section 188(7) is directed to special factual situations raising issues of feasibility apt for evaluation by the Employment Tribunal. It is much less obviously designed for situations where consultation might be thought to be incongruous for high policy reasons. The second point of construction I turn therefore to the second point of construction and to the additional considerations which it raises. As in the courts below, so before us the arguments advanced have been, as Slade J described them, both sophisticated and imaginative. They have also been careful and helpful in enabling the court to reach a conclusion on them. But like the courts below, I would reject them. In substance, Sir Daniel Bethlehems submission on behalf of the appellant is that international legal considerations should lead to the recognition by the court of a tailored exemption from TULCRA in respect of dismissals involving redundancies arising from a jure imperii decision taken by a foreign state. He does not suggest that, if TULCRA otherwise applies, the appellant enjoys any defence outside TULCRA (such as act of state, which would only here arise if the challenge was to a decision or act of the appellant in the United States). His case depends on construing TULCRA as inapplicable to what happened. His starting point is the prima facie presumption that the legislator intends to legislate consistently with, and that legislation (if reasonably capable of being so construed) should be construed consistently with, the principles of international law: Salomon v Customs and Excise Comrs [1967] 2 QB 116, Alcom Ltd v Republic of Columbia [1984] 1 AC 580 and Assange v Swedish Prosecution Authority [2012] UKSC 22, [2012] 2 AC 471, para 10. Reduced to their essence, his submissions regarding international law are that: a) the application of TULCRA to dismissals of this nature would conflict with settled international law principles that one state does not legislate to affect the jure imperii activity of another; b) it would place the appellant in a unique position of potentially infringing United Kingdom law, by failing to consult, when the Crown in respect of British bases would have no such obligation, and when EU principles of non discrimination would mean that other member states would also have to be regarded as having no such obligation; it would in that respect infringe either EU law or general international legal principles regarding non discrimination. Jurisdiction is primarily territorial in both international and domestic law. As the Permanent Court of International Justice said in The Case of the SS Lotus (1927) PCIJ Series A No 10, pp 18 19, that: the first and foremost restriction imposed by international law upon a state is that failing the existence of a permissive rule to the contrary it may not exercise its power in any form in the territory of another state. In this sense jurisdiction is certainly territorial; it cannot be exercised by a state outside its territory except by virtue of a permissive rule derived from international custom or from a convention. It does not, however, follow that international law prohibits a state from exercising jurisdiction in its own territory, in respect of any case which relates to acts which have taken place abroad, and in which it cannot rely on some permissive rule of international law. Such a view would only be tenable if international law contained a general prohibition to states to extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, and if, as an exception to this general prohibition, it allowed states to do so in certain specific cases. But this is certainly not the case under international law as it stands at present. Far from laying down a general prohibition to the effect that states may not extend the application of their laws and the jurisdiction of their courts to persons, property and acts outside their territory, it leaves them in this respect a wide measure of discretion which is only limited in certain cases by prohibitive rules; as regards other cases, every state remains free to adopt the principles which it regards as best and most suitable. The following overview appears in Brownlies Public International Law 8th ed (2012), (ed by James Crawford SC, FBA), Chapter 21, pp 456 457: The starting point in this part of the law is the presumption that jurisdiction (in all its forms) is territorial, and may not be exercised extra territorially without some specific basis in international law. However, the territorial theory has been refined in the light of experience and what amounts to extra territorial jurisdiction is to some extent a matter of appreciation. If there is a cardinal principle emerging, it is that of genuine connection between the subject matter of jurisdiction and the territorial base or reasonable interests of the state in question. In the present case, the United Kingdom was in my opinion legislating in TULCRA entirely consistently with these principles. TULCRA is expressly stated to extend to England, Wales and Scotland. Part IV Chapter II regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in those territories. It requires consultation within the jurisdiction with employees who are and whose employment is within the jurisdiction. Merely because the appellant may have taken a decision at the highest level in Washington, which led to dismissals on grounds of redundancy at a base in England, does not mean that the United Kingdom was legislating extra territorially. It is in this sort of situation that a plea of state immunity may be most useful. Sir Daniel Bethlehem referred to the American legal position, in particular the American Law Institute Restatement (Third) of the Foreign Relations Law of the United States (published May 14, 1986) and the United States Supreme Court decision of F Hoffmann la Roche v Empagran SA (2004) 542 US 155). Section 402 of the Reinstatement indicates that, subject to section 403, a state has jurisdiction to prescribe law with respect to (a) conduct that, wholly or in substantial part, takes place within its territory; (b) the status of persons, or interests in things, present within its territory; (c) conduct outside its territory that has or is intended to have substantial effect within its territory. The qualification in section 403 is that, even when one of the bases for jurisdiction under section 402 is present, a state may not exercise jurisdiction to prescribe law with respect to a person or activity having connections with another state when the exercise of such jurisdiction is unreasonable, this to be determined by evaluating all relevant factors. The drafters seek to give this evaluation some bones by listing eight potentially relevant (but not exclusive) factors. Among them are (a) the extent to which the activity takes place within the territory, or has substantial, direct and foreseeable effect upon or in the territory and (c) the character of the activity to be regulated, the importance of regulation to the regulating state, the extent to which other states regulate such activities . The US Supreme Courts decision in Hoffmann la Roche illustrates the significance of the principles in the Restatement. The case concerned the ambit of the Sherman Act in relation to a price fixing conspiracy between foreign and domestic vitamin sellers allegedly raising prices both inside and outside the United States. The issue was whether the Sherman Act applied to purchases (described as foreign transactions) by foreign distributors for delivery by Hoffmann la Roche outside the United States. The Foreign Trade Antitrust Improvements Act of 1982 (FTAIA) provided that the Sherman Act shall not apply to conduct involving trade or commerce with foreign nations unless (1) such conduct has a direct, substantial, and reasonably foreseeable effect (A) on trade or commerce which is not trade or commerce with foreign nations [ie domestic trade or commerce] (15 USC section 6a). The words trade or commerce with foreign nations were by the court held to cover foreign transactions. But the Court of Appeals had held that the qualifying words (unless ) brought all transactions, foreign and domestic within the Sherman Act. The US Supreme Court disagreed, holding that so far as the complaint depended on an adverse foreign effect on prices independent of any adverse domestic effect, it lay outside the scope of the Sherman Act. Breyer JA, giving the judgment of the court, identified two main reasons, derived from comity and the statutory history, for concluding that the FTAIA did not bring independently caused foreign injury within the scope of the Sherman Act. In their light he rejected linguistic arguments to the contrary advanced by the complainants. As to the first reason, comity, he said, in Part IV of the judgment (with characteristic emphasis, as italicised): this court ordinarily construes ambiguous statutes to avoid unreasonable interference with the sovereign authority of other nations. This rule of construction reflects principles of customary international law law that (we must assume) Congress ordinarily seeks to follow. See Restatement (Third) of Foreign Relations Law of the United States sections 403(1), 403(2) (1986) (hereinafter Restatement) (limiting the unreasonable exercise of prescriptive jurisdiction with respect to a person or activity having connections with another state); Murray v Schooner Charming Betsy, 2 Cranch 64, 118 (1804) ([A]n act of Congress ought never to be construed to violate the law of nations if any other possible construction remains); This rule of statutory construction cautions courts to assume that legislators take account of the legitimate sovereign interests of other nations when they write American laws. It thereby helps the potentially conflicting laws of different nations work together in harmonya harmony particularly needed in todays highly interdependent commercial world. No one denies that Americas antitrust laws, when applied to foreign conduct, can interfere with a foreign nations ability independently to regulate its own commercial affairs. But our courts have long held that application of our antitrust laws to foreign anticompetitive conduct is nonetheless reasonable, and hence consistent with principles of prescriptive comity, insofar as they reflect a legislative effort to redress domestic antitrust injury that foreign anticompetitive conduct has caused. But why is it reasonable to apply those laws to foreign conduct insofar as that conduct causes independent foreign harm and that foreign harm alone gives rise to the plaintiffs claim? Like the former case, application of those laws creates a serious risk of interference with a foreign nation's ability independently to regulate its own commercial affairs. But, unlike the former case, the justification for that interference seems insubstantial. See Restatement section 403(2) (determining reasonableness on basis of such factors as connections with regulating nation, harm to that nations interests, extent to which other nations regulate, and the potential for conflict). Why should American law supplant, for example, Canadas or Great Britains or Japans own determination about how best to protect Canadian or British or Japanese customers from anticompetitive conduct engaged in significant part by Canadian or British or Japanese or other foreign companies? The FTAIA was capable of interpretation in two senses. An interpretation which excluded from its grasp foreign transactions causing foreign damage was, for the reasons given in this passage, readily available and understandable. The present case presents a different picture. There is no lack of clarity in the wording of TULCRA. The base at RSA Hythe, the complainants, the contracts of employment and the dismissals for redundancy which were regulated (on the face of it) by TULCRA were and are all within the United Kingdom. I am ready to assume that the base was operated in the United Kingdom for strategic reasons, and it is common ground that the decision to close it was taken in the United States for strategic reasons. The appellants case is that there should be carved out of TULCRA, or any other relevant legislation, an exception for circumstances in which a foreign state takes a decision or commits an act of a jure imperii nature abroad which would otherwise lead to a person in the United Kingdom having a domestic right and remedy in respect of domestic employment or other domestic activity in the United Kingdom. The submission is far reaching. It would require substantial re formulation and expansion of the presumptive principles of construction referred to in the Restatement and in Hoffmann la Roche, and I am unable to accept it. The submission would amount, in effect, as Sir Daniel recognised, to reading domestic legislation as subject to an exception or as inapplicable, at least prima facie, in relation to a foreign state in any circumstances where the foreign state could rely on a plea of state immunity, to avoid the adjudicative processes of another state in which proceedings had been brought against it. I do not accept that there is any such principle. It would make quite largely otiose the procedures and time for a plea of state immunity. As Hazel Fox CMG QC and Philippa Webb observe in The Law of State Immunity 3rd ed (2013), p 20: Jurisdiction and immunity are two separate concepts. Jurisdiction relates to the power of a state to affect the rights of a person or persons by legislative, executive or judicial means, whereas immunity represents the independence and exemption from the jurisdiction or competence of the courts and tribunals of a foreign state and is an essential characteristic of a state. Logically the existence of jurisdiction precedes the question of immunity from such jurisdiction but the two are inextricably linked (see Chapter IV). In Chapter IV, p 82, the authors go on further to explain the relationship, in this passage: Immunity comports freedom or exemption from territorial jurisdiction. It bars the bringing of proceedings in the courts of the territorial state (the forum state) against another state. It says nothing about the underlying liability which the claimant alleges. Immunity does not confer impunity; the underlying accountability or substantive responsibility for the matters alleged in a claim remain; immunity merely bars the adjudication of that claim in a particular court. As a matter of logic, the determination of jurisdiction precedes the consideration of immunity. A states latitude to assert immunity in the face of a claim is different from the inapplicability of the law, by way of exemption or otherwise, to the impugned conduct of the foreign state in the first place. Immunity operates as a bar to the adjudicative jurisdiction of the courts of the forum state. It does not address the legislative or prescriptive jurisdiction of that state. A claim of immunity thus at some level acknowledges the forum states legislative competence and the putative application of the domestic law in question to the foreign state but for the assertion of immunity. In its written case, para 116, the appellant put the same point in a way met with the advocates to the courts assent: Sir Daniel Bethlehem sought to emphasise the importance for a foreign state such as the appellant of recognising in TULCRA an implied exemption for a decision to dismiss for redundancy taken on jure imperii grounds. The appellant would wish to comply with domestic law, and the ability to plead state immunity in any proceedings would not alter the fact that, without such an exemption, it would be and have been in breach of domestic law. That is true, but carried to its logical conclusion it would mean that all legislation should, however clear in scope, be read as inapplicable to a foreign state in any case where the state could plead state immunity. That would elide two distinct principles, and, as noted already, very largely make redundant a plea of state immunity at least in respect of any statutory claim. On Sir Daniels argument, the legislation relating to unfair dismissal on which the claimant relied in Sengupta v Republic of India [1983] ICR 221 would presumably also have to be read as containing an implied exception for foreign states in jure imperii contexts, as would perhaps also the principles of common law negligence on which the claimant relied in Littrell v United States of America (No 2) [1995] 1 WLR 82. Sir Daniel Bethlehems submissions on discrimination start with the exclusion from the scope of Part IV Chapter II of TULCRA of Crown and police service employees. The exclusion is specific, and that itself makes it difficult to argue for an equivalent implied exclusion in respect of foreign state employees. In any event, there are circumstances in which, even on Sir Daniels case, it would not be inappropriate for Part IV Chapter II to apply to a foreign government, for example in the (admittedly perhaps rare) case where a foreign state was itself responsible for a commercial activity in the United Kingdom, in respect of which it wished to declare all or some of its employees redundant. Be that as it may be, Sir Daniel argues that non discrimination is a general principle of international law. It was in terms accepted as such by the Court of Appeal in Benkharbouche v Embassy of the Republic of Sudan [2015] EWCA Civ 33, [2015] 3 WLR 301, para 61, but the context there was a claim by an individual foreign employee, asserting that section 4 of the State Immunity Act was contrary to articles 6 and 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms and/or European Union law. (This was because it only lifted a foreign states immunity in favour employees with contracts made in the United Kingdom or work to be wholly or partly performed there if such employees were nationals of or habitually resident in the United Kingdom.) A state cannot take advantage of articles 6 and 14 of the European Convention. Articles 1 and 2 of the Universal Declaration of Human Rights, article 26 of the International Covenant on Civil and Political Rights and article 14 of the European Convention, cited by the Court of Appeal, are likewise all provisions by states in favour of persons, not states. I will return to articles 20 and 21 of the Charter of Fundamental Rights of the European Union, which the Court of Appeal also cited. The position as between states is expressed in Oppenheims International Law 9th ed (1992) as follows, at para 114: Although states are equal as legal persons in international law, this equality does not require that in all matters a state must treat all other states in the same way. There is in customary international law no clearly established general obligation on a state not to differentiate between other states in the treatment it accords to them. Nevertheless, discrimination is widely regarded as undesirable, and in some particular respects a rule of non discrimination may exist, within limits which are not clear. Oppenheim goes on to discuss some possibilities, eg multi lateral treaties, none of which is relevant here. To give teeth to his submissions, Sir Daniel Bethlehem invokes European Union law, to which the Court of Appeal in Benkharbouche also referred. Article 18 TFEU provides: Within the scope of application of the Treaties, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. The European Parliament and the Council, acting in accordance with the ordinary legislative procedure, may adopt rules designed to prohibit such discrimination. A provision in, effectively, the same terms as the first sentence is contained in the Charter of Fundamental Rights, article 21(2). On the basis of these provisions, Sir Daniel argues that United Kingdom courts would have to recognise other member states of the European Union as enjoying like exemptions from TULCRA to those TULCRA provides for UK Crown employees. This would in principle leave non EU states out on a limb, but the only non EU state actually shown to be affected would in practice be or be likely to be the appellant. That would, Sir Daniel submits, be absurd and should itself lead to an implication that foreign states should enjoy the like immunity. In any event, he submits, the principle of non discrimination operates under European Union law horizontally to protect the appellant, even though it is neither a European citizen or an EU member state; in this connection, Sir Daniel invokes the Court of Justices well known if controversial jurisprudence in Mangold v Helm (Case C 144/04) [2006] All ER (EC) 383 and Kckdeveci v Swedex GmbH & Co KG (Case C 555/07) [2010] All ER (EC) 867, both in fact cases of age discrimination. Whether article 18 TFEU and/or article 21(2) of the Charter of Fundamental Rights apply in favour of member states can be left open. Whether, if they do, it would be open to a member state to rely on them horizontally as against a complainant like Mrs Nolan can also be left open. It is not clear in European law how far and when the principles in Mangold and Kckdeveci apply in cases not involving age discrimination. The court considered such an issue in Association de mdiation sociale v Union locale des Syndicates CGT (Case C 176/12) [2014] ICR 411. The domestic Labour Code excluded from calculation holders of an accompanied employment contract (young persons being directed towards more stable employment or social activities), of whom the Association de mdiation sociale (AMS), a private non profit making organisation, employed well over 100. The result of the exclusion was that AMS counted as having only eight employees under the Labour Code, and so fell domestically below a threshold of 50 (based on the Directive 2002/14/EC) which would otherwise have triggered obligations on its part to inform and consult. The court held that the Labour Code by excluding accompanied employees from the calculation of numbers was in breach of the Directive. Article 27 of the Charter requires that Workers or their representatives must, at the appropriate levels, be guaranteed information and consultation in good time in the cases and under the conditions provided for by Union law and national laws and practices. The question thus arose whether article 27 of the Charter, read with the Directive, could be relied on horizontally in proceedings between AMS and the Union locale des Syndicates. Differing on this point from Advocate General P Cruz Villaln, the Court of Justice held that it could not, saying that it was clear from the wording of article 27 of the Charter that, for this article to be fully effective, it must be given more specific expression in European Union or national law (para 45). This was so although the Labour Code must, it appears, have contained specific provisions regarding information and consultation for those employers who, under its own defective method of calculation, did have 50 or more employees. So it is at least open to question whether article 18 TFEU or article 21(2) of the Charter, read with the provisions of TULCRA, would necessarily have direct horizontal effect in favour of another EU member state. There are however to my mind two fundamental flaws in Sir Daniels submissions at this point. The first is that articles 18 and 21(2) apply expressly only within the scope of application of European law, or, as it was paraphrased in Association de mdiation sociale, para 42, in situations governed by European law. The same point was made by the Court of Justice as long ago as 1974 in Walrave v Association Union Cycliste Internationale (Case C 36/74) [1974] ECR 1405. In the present case, the Court of Justice declined to rule on the interpretation of Directive 98/59/EC for the very reason that, to the extent that TULCRA covers workers employed by public administrative bodies or by public law establishments, it goes beyond European Union law into an area to which the EU legislature states unequivocally that the measure which it has adopted does not apply, and in which the objective [of] seeking uniform interpretation and application of the rules of law has been renounced: para 55. Since the issue in the present case arises in precisely that area, it is not possible to conclude that the appellant or indeed any EU member state, let alone any non member state, could insist on European Union law as giving it any horizontal or other entitlement. The second flaw is that I do not regard a non member state as being within the protection of articles 18 and 21(2) in any circumstances. In Patmalniece v Secretary of State for Work and Pensions [2011] UKSC 11, [2011] 1 WLR 783, para 83, Lady Hale said of the then equivalent article: This is not a general prohibition of discrimination on grounds of nationality. Only the nationals of member states are protected. Discrimination against third country nationals is not prohibited. Indeed it is positively expected. The underlying purpose is to promote the objects of the Union and in particular the free movement of workers between the member states and the free establishment of businesses within them. The Court of Justices case law is to like effect: Vatsouras v Arbeitsgemeinschaft (AGRE) Nrnberg 900 (Joined Cases C 22/08 and C 23/08) [2009] ECR I 4585, [2009] ALL ER (EC) 747, para 52 and Martinez Sala v Freistaat Bayern (Case C 85/96) [1998] ECR I 2691, para 62. The Court of Appeal recently reached the same conclusion in Sanneh v Secretary of State for Work and Pensions [2015] EWCA Civ 49, para 106. The freedom of this countrys universities to charge unrestricted tuition fees to non EU citizens, while having in this respect to assimilate citizens of other EU countries with British citizens, is an example of the impact of this principle. For these reasons, I am unable to accept the appellants second point on construction any more than its first. The third point the vires of the 1995 Regulations I come to the third point, the appellants submission that the 1995 Regulations were ultra vires section 2 of the European Communities Act 1972. When providing workers without trade union representation with the protection which the Court of Justice had in (Case C 383/92) held to be required, the Regulations did not confine themselves to the sphere of EU law, confirmed by the court in the present case. They went further by conferring extended protection on workers without trade union representation employed by public administrative bodies or public law establishments. In that respect, the appellant submits, they went beyond any power conferred by section 2. Section 2 of the 1972 Act (as amended by sections 27 and 33 of the Legislative and Regulatory Reform Act 2006 and sections 3 and 8 of and Part I of the Schedule to the European Union (Amendment) Act 2008) reads: General implementation of Treaties (1) All such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the Treaties, and all such remedies and procedures from time to time provided for by or under the Treaties, as in accordance with the Treaties are without further enactment to be given legal effect or used in the United Kingdom shall be recognised and available in law, and be enforced, allowed and followed accordingly; and the expression enforceable EU right and similar expressions shall be read as referring to one to which this subsection applies. (2) Subject to Schedule 2 to this Act, at any time after its passing Her Majesty may by Order in Council, and any designated Minister or department may by order, rules, regulations or scheme, make provision (a) for the purpose of implementing any EU obligation of the United Kingdom, or enabling any such obligation to be implemented, or of enabling any rights enjoyed or to be enjoyed by the United Kingdom under or by virtue of the Treaties to be exercised; or (b) for the purpose of dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of subsection (1) above; and in the exercise of any statutory power or duty, including any power to give directions or to legislate by means of orders, rules, regulations or other subordinate instrument, the person entrusted with the power or duty may have regard to the objects of the EU and to any such obligation or rights as aforesaid. (3) (4) The provision that may be made under subsection (2) above includes, subject to Schedule 2 to this Act, any such provision (of any such extent) as might be made by Act of Parliament, and any enactment passed or to be passed, other than one contained in this part of this Act, shall be construed and have effect subject to the foregoing provisions of this section; but, except as may be provided by any Act passed after this Act, Schedule 2 shall have effect in connection with the powers conferred by this and the following sections of this Act to make Orders in Council or orders, rules, regulations or schemes. Schedule 2 paragraph 1 (as amended by section 32 of the Criminal Law Act 1977 and sections 38 and 46 of the Criminal Justice Act 1982) contains the following restriction on the powers conferred by section 2(2): The powers conferred by section 2(2) of this Act to make provision for the purposes mentioned in section 2(2)(a) and (b) shall not include power to make any provision imposing or increasing (a) taxation; or to make any provision taking effect from a date (b) earlier than that of the making of the instrument containing the provision; or (c) to confer any power to legislate by means of orders, rules, regulations or other subordinate instrument, other than rules of procedure for any court or tribunal; or (d) to create any new criminal offence punishable with imprisonment for more than two years or punishable on summary conviction with imprisonment for more than three months or with a fine of more than level 5 on the standard scale (if not calculated on a daily basis) or with a fine of more than 100 a day. Section 2 of the 1972 Act recognises the different types of EU legislative measure. Article 288 TFEU states a well known trifurcation: A Regulation shall have general application. It shall be binding in its entirety and directly applicable in all member states. A Directive shall be binding, as to the result to be achieved, upon each member state to which it is addressed, but shall leave to the national authorities the choice of form and methods. A decision shall be binding in its entirety. A decision which specifies those to whom it is addressed shall be binding only on them. Section 2(1) gives the force of law in the United Kingdom to all the rights, etc and remedies and procedures to which it refers, which are in accordance with the Treaties without further enactment to be given legal effect or used in the United Kingdom. It is the means by which Regulations have effect. Section 2(2) concerns obligations of the United Kingdom to be implemented, or rights of the United Kingdom to be enjoyed, under or by virtue of the Treaties. A right or obligation under a Directive is the classic instance. As article 288 indicates, Directives are not as specific as Regulations in their impact or, often, in their terms. Member states have a degree of latitude in their implementation, provided they achieve the intended result. Paragraph (a) of section 2(2) enables provision to be made by order in council or ministerial or departmental order, rule, regulation or scheme for the purpose of implementing any such obligation, or enabling any such right to be exercised. Paragraph (b) enables provision to be made for dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time of subsection (1). The ambit of section 2(2) has been considered in a number of cases. The leading authority is Oakley Inc v Animal Ltd [2005] EWCA Civ 1191, [2006] Ch 337. Since then section 2(2) has been considered by Moses LJ in R (Cukorova Finance International Ltd) v HM Treasury [2008] EWHC 2567 (Admin), [2009] EuLR 317, by Lord Hope in Risk Management [2011] 2 AC 34 (para 22 above), by the Employment Appeal Tribunal in Pothecary Witham Weld v Bullimore [2010] ICR 1008 and by Floyd J, who identified as many as 14 relevant principles in ITV Broadcasting Ltd v TV Catchup Ltd (No 2) [2011] EWHC 1874 (Pat), [2011] FSR 40. In Oakley, Directive 98/71/EC on the legal protection of designs required member states to approximate their legislation, but provided an option permitting them to derogate and retain in force existing legislation for registered designs. The option, found in article 11(8) of the Directive, read: 8. Any member state may provide that, by way of derogation from paragraphs 1 to 7, the grounds for refusal of registration or for invalidation in force in that state prior to the date on which the provisions necessary to comply with this Directive enter into force shall apply to design applications which have been made prior to that date and to resulting registrations. In issuing the Registered Designs Regulations 2001 (SI 2001/3949), the Secretary of State made use of this option. By regulation 12 he retained in force the Registered Designs Act 1949, as amended in 1988, in relation to designs already registered, so making use of this option. The Court of Appeal rejected the submission that regulation 12 required primary legislation. All three members of the court considered that regulation 12 could be regarded as being within section 2(2)(a) of the 1972 Act, as having been for the purpose of implementing an EU obligation or enabling one to be implemented (para 29, per Waller LJ, para 46 per May LJ and paras 64 67 per Jacob LJ). All three members of the court also went on to express views on the scope of section 2(2)(b). Waller LJ considered that the words used in section 2(2)(b) must take their context from the primary purpose of section 2, that being the bringing into force under section 2 of the laws, which under the Treaties the United Kingdom has agreed to make part of its laws; para 39. On that basis he added this in the same paragraph: section 2(2)(b), from its position in section 2, from the fact that it adds something to both subsections (1) and (2), and from its very wording is a subsection to enable further measures to be taken which naturally arise from or closely relate to the primary purpose being achieved. I accept that I will be accused of adding the words naturally and closely, but I believe that describes the context which provides the meaning of the words. May LJ said (para 47): I do not consider that to hold that the making of these transitional provisions came within section 2(2)(a) has the effect of making section 2(2)(b) devoid of content. There is a distinction between providing something which, although it is a choice, is a choice which the implementation of the Directive requires you to make, and one which is not so required, but which has the effect of tidying things up or making closely related original choices which the Directive does not necessarily require. Section 2(2)(b) is confined by its words and context. Redefinition in the abstract is to be avoided. Jacob LJ addressed the topic in some detail. He had no doubt that section 2(2)(a) covered the case where a Directive contains explicit alternatives and the implementing statutory instrument merely selects one of these (para 73). Questioning whether it also covers the supply of detail which Directives frequently leave to member states to spell out, he observed that, in his view, the wider section 2(2)(a), the narrower section 2(2)(b) is likely to be (para 74). In paras 79 80 he expressed his provisional views: 79. My own view, provisional though it must be in the absence of any specific context relevant to this case, is this: that section 2(2)(a) covers all forms of implementation whether by way of choice of explicit options or by way of supply of detail. Both of these are for the purpose of implementing or enabling any such obligation to be implemented. Supplying detail required by a Directive is just that. 80. So section 2(2)(b) indeed adds more . How much more must depend on the particular circumstances of the case the statutory language is the guide. It says for the purpose of dealing with matters arising out of or related to. Whether a particular statutory instrument falls within those words must depend on what it purports to do and the overall context. One cannot put a gloss on the meaning. If Otton LJ [in R v Secretary of State for Trade and Industry, Ex p UNISON [1996] ICR 1003] was adding a gloss distinct, separate or divorced from it then I do not agree with that gloss. You just have to apply the statutory language to the case concerned. And in doing so you bear in mind that the purpose of the power given by the section is European the article10 purpose. Whether or not Otton LJ was right in the circumstances of, I do not decide. It would not be right to do so in the absence of the affected parties. The reference to Otton LJs words was to a sentence in which Otton LJ said that he was satisfied that the provision made was related to a Community obligation, and not distinct, separate, or divorced from it (R v Secretary of State for Trade and Industry, Ex p UNISON [1996] ICR 1003, 1014G H). Article 10 of the then Treaty establishing the European Community read: Member states shall take all appropriate measures, whether general or particular, to ensure fulfilment of the obligations arising out of this Treaty or resulting from action taken by the institutions of the Community. Some general observations are possible, arising from these passages. First, so far as possible, it is clearly desirable to avoid paraphrase, though almost impossible to do so completely, if any greater light is to be shed on the scope of their application. Second, as Waller LJ (and also May LJ) indicated, words such as those used in section 2(2) must be seen in the context of the primary purpose of section 2, that being the bringing into force under section 2 of the laws, which under the Treaties the United Kingdom has agreed to make part of its laws. Third, that is the context in which Parliament was prepared to delegate law making ability to the executive because the focus of section 2(2) is on obligations to the implementation of which the United Kingdom is already committed (and rights to which it is already entitled) at the European level by virtue of its EU membership. Parliament will itself have had prior opportunities for scrutiny of, and input into the content of, the European measures giving rise to such obligations and rights, through in particular Select Committee procedures, at the stage when such measures were being developed and proposed by the European Commission and considered in Europe by member states and the European Parliament. Fourth, section 2(2) authorises the making of provisions for two differently expressed purposes. In the case of paragraph (a), the purpose expressed is implementing or enabling the implementation of any EU obligation (or the enabling the exercise of any EU right enjoyed by the United Kingdom). In the case of paragraph (b), it is dealing with matters arising out of or related to any such obligation or rights or the coming into force, or the operation from time to time, of section 2(1). It is not in my view appropriate to get too involved in a linguistic debate about whether these paragraphs should be read entirely disjunctively or whether there may be some overlap. But Jacob LJ was, I think, right in saying that the wider section 2(2)(a), the narrower section 2(2)(b) is likely to be that is so, because the language of paragraph (b) introduces bottom line limitations of the power it confers. What can in my view be said, from the wording and positioning of these two paragraphs, is that paragraph (a) is the main vehicle for implementation of EU obligations and rights which are not directly enforceable. Paragraph (b) goes further, in authorising provision for different purposes, but those purposes are limited by reference to the United Kingdoms EU obligations or rights (or the coming into force, or operation, of section 2(1)). The words arising out of limit the power to provisions dealing with matters consequential upon an EU obligation or right (or the coming into force, etc, of section 2(1)). The further phrase related to any such obligation or rights, must, unless redundant, go somewhat further. But the relationship required must exist objectively; and the positioning of the phrase and its conjunction with the earlier wording of section 2(1) suggest to me, as they did to Waller and May LJJ, that by speaking of a relationship the legislature envisaged a close link to the relevant obligation or right. A relationship cannot on any view arise from or be created by simple ministerial decision that it would be good policy or convenient to have domestically a scheme paralleling or extending EU obligations in a field outside any covered by the EU obligations. That would be to treat paragraph (b) as authorising a purpose to implement policy decisions not involving the implementation of, not arising out of and unrelated to any EU obligation. A fifth and final point is that it is, in the light of the above, possible to describe section 2(2) as both wide and confined in scope. It is wide because it authorises almost every conceivable provision required to fulfil the United Kingdoms obligations under article 4.3 TEU (or to give effect to any EU right) subject only to the restrictions in Schedule 2. It is confined because any such provision must be for the purpose of implementing, or dealing with a matter arising from or related to, such an obligation or right. Some conclusions can fairly readily be drawn. Consistently with a view taken, I understand, by all members of the court in Oakley, it is clear, that, where a Directive is in general terms leaving member states freedom to decide on the precise means for its implementation, provisions which the United Kingdom makes within the scope of such freedom will on the face of it fall within section 2(2)(a), as being for the purpose of implementing or enabling the implementation of the Directive. Second, where a Directive confers a choice of specific alternatives, as Directive 98/59/EC did in article 1(1)(a) (see para 7 above) a provision selecting one or other alternative will also fall within section 2(2)(a). Where a Directive gives member states a specific option to derogate from its provisions in a particular respect in Oakley as regards design applications made prior to the date of domestic implementation of the Directive and as regards resulting registrations then I again agree with the court in Oakley that the exercise of this option can be regarded as falling within section 2(2)(a), and, further, that if that were not so, then it would, in any event, be related to the implementation of the United Kingdoms EU obligation within section 2(2)(b). At the other end of a spectrum is a situation such as Lord Hope considered in Risk Management, para 24 (para 22 above). That is where a Directive, such as Directive 2004/18/EC in that case, (i) addresses an internal market competition issue, by introducing procedures for the award of public works, supply and service contracts, but does not cover a situation where (ii) public authorities contract inter se, or where (iii) a local authority exercises over the other contracting party a control which is similar to that which it exercises over its own departments and, at the same time, that person carries out the essential part of its activities with the controlling local authority or authorities: see Teckal (Case C 107/98) [1999] ECR I 8121, para 50. In that context, Lord Hope, with whose judgment three other members of the court agreed, considered that it would not be a permitted use of the power conferred by section 2(2) to apply the public procurement rules to relationships [such as those in (ii) and (iii)] that fell outside the regime provided for by the Directive: para 22 above. In agreement with Lord Hope, I consider that, where a Directive is based on an internal market competence and as a result limited in impact to internal market situations, its domestic extension to situations outside the internal market cannot be regarded as being within either section 2(2)(a) or (b) of the 1972 Act. This is so whether it is so limited by implication or expressly. More difficult are intermediate situations where a Directive is limited to, or specifically excludes, a particular area of the internal market. An example of a Directive limited to a particular area of the internal market is Directive 2002/47/EC which was in issue in Cukurova [2009] EuLR 317. Directive 98/59/EC in issue in the present case is an example of a Directive with both limitations and specific exclusions which appear to fall within the internal market: It is limited by article 1(1)(a) to collective redundancies. It excludes in article 1(2)(a) limited period contracts, which might affect the functioning of the internal market competition. I say nothing on the question whether the exclusion in article 1(2)(c) of the crews of seagoing vessels operates in an area which might affect the internal market or was because this was seen as a situation, like that covered by article 1(2)(b), where the internal market was not affected. In my view, provisions extending an EU regime domestically into areas not covered by or specifically excluded from the EU regime contemplated by a Directive may well fall outside both paragraphs of section 2(2). Each case would have to be considered on its own merits. Some adjustments to situations in which a Directive operates may be regarded as necessary or appropriate for the purpose of implementing or enabling the implementation of a Directive, or as being related to the relevant EU obligation in the sense already discussed. Pothecary [2010] ICR 1008 is an example of a case where the Secretary of State used section 2(2)(b) to provide for a reverse burden of proof in section 63A of the Sex Discrimination Act 1975 (as inserted by regulation 5 of the Indirect Discrimination and Burden of Proof) Regulations 2001 (SI 2001/2660) in cases of alleged victimisation. There was no obligation under European law to have a reverse burden in such cases. There was under the Burden of Proof Directive 97/80/EC an obligation to have a reverse burden in cases of alleged unequal treatment, but the Employment Appeal Tribunal concluded that the right not to be victimised did not form part of the principle of equal treatment, but was an ancillary right accorded by EU law to render that principle properly enforceable. On that basis, it held, unsurprisingly, that introducing a reverse burden in respect of a right which European law treated as ancillary to its prohibition of discrimination was dealing with a matter related to an EU obligation, within section 2(2)(b). In Cukurova Directive 2002/47/EC was expressly limited to transactions between certain institutions, but the Financial Collateral Arrangements (No 2) Regulations 2003 (SI 2003/3226) issued by HM Treasury implementing it extended the range of the regime to cover other institutions. Moses LJ was concerned with a question whether Cukurova should be allowed an extension of time within which to challenge the vires of the Regulations. Ultimately, all he did was express such considerable doubts about Cukurovas prospects of success in its challenge as to lead him to a conclusion that justice did not demand an extension of time. Nonetheless, it is worth looking at the case more closely, because in my view Moses LJ greatly underestimated the force of Cukurovas challenge. Article 1(1) of Directive 2002/47/EC stated that it lays down a Community regime applicable to financial collateral arrangements [defined by article 2.1(a) as meaning a title transfer financial or a security financial collateral arrangement] which satisfy the requirements set out in paragraphs 2 and 5 and to financial collateral in accordance with the conditions set out in paragraphs 4 and 5. Paragraph 2 stated that The collateral taker and the collateral provider must each belong to one of the following categories. These included a wide range of (a) public authorities or bodies, (b) central or development banks, (c) financial institutions subject to prudential supervisions and (d) central counterparties, settlement agents or clearing houses as well as (e) a person other than a natural person, including unincorporated firms and partnerships, provided that the other party is an institution as defined in points (a) to (d). By these categories, the Directive notably did not cover hedge funds. Paragraph 3 permitted member states to exclude from the scope of this Directive financial collateral arrangements where one of the parties is a person mentioned in paragraph 2(e). Recital 22 stated the objective of the Directive to be to create a minimum regime relating to the use of financial collateral, this being an objective which, it went on, cannot be sufficiently achieved by the member states and can therefore be better achieved at Community level . In place of the carefully delineated categories of institution and concern covered by the Directive, the 2003 Regulations put in place a regime covering title transfer financial collateral arrangements and security financial collateral arrangements where the collateral provider and the collateral taker are both non natural persons: regulation 3. I find it difficult to see how this could be regarded as having been for the purpose of implementing or enabling the implementation of the EU Directive. Equally, the extension did not arise out of the obligations in the Directive and was not related to them. It was on its face the product of a decision by HM Treasury that it would be good policy domestically to have a more extensive regime operate within the United Kingdom. That is something which was of course open to the United Kingdom under European law, since the Directive was a measure of minimum harmonisation. But it was under the United Kingdom constitution and the 1972 Act a matter which was not for the executive to decide, but for Parliament to consider and, it if thought fit, to agree as a matter of primary legislation. Returning to the present case, it falls in my view even more clearly within the category which Lord Hope was considering in Risk Management. It also concerns a Directive issued by the European legislature under its internal market competence, which in the present case specifically excludes by article 1(2)(b) situations outside that competence. The express liberty in article 5 for member states to make provisions more favourable to workers does not in my view lead or point to a contrary view. It cannot have been directed to matters which would be outside the European Unions internal market competence. Even in relation to matters within the Unions internal market competence, an article of this nature does no more on its face than confirm that the Directive is a minimum harmonisation measure, which leaves member states free to introduce more favourable provisions as a matter of domestic law. This does not mean that such provisions are necessarily to be regarded as dealing with matters related to any EU obligation or rights. It follows that, had the provisions of TULCRA in its unamended form been the product of subordinate legislation under section 2(2) of the 1972, they would, on Lord Hopes analysis, have been ultra vires at least in so far as they purported to extend the required procedure for dismissals involving redundancies to situations falling within article 1(2)(b) of Directive 98/59/EC. However, TULCRA in its unamended form was actually a piece of primary legislation. So far as Parliament chose by TULCRA in its unamended form to extend the required procedure for dismissals involving redundancies, it was fully entitled to do so. Parliament has no need to show any particular competence base for primary legislation. It can legislate at will and at the same time achieve both European Union aims and domestic aims, as long as the latter are not positively inconsistent with the former. But TULCRA in its unamended form was confined to situations where the relevant employees had trade union representation. When the executive chose to rectify this by using section 2(2) of the 1972 Act to cover situations where there was no trade union representation, it did so across the whole width of the previous legislation so as to affect not only situations within the internal market scope of Directive 98/59/EC, but also the domestic situations to which Parliament had also extended the required procedure for dismissals. If Lord Hopes analysis is correct, does this mean that the amendments to TULCRA by the 1995 Regulations must to that extent be regarded as ultra vires? I have found this a difficult and borderline question to answer. Ultimately, I have come to the conclusion that it can and should be answered in the negative. TULCRA in its unamended form represented a unified domestic regime. The Court of Justice in 1994 identified a flaw in the protection provided, in that it did not cater for non trade union situations. It is entirely unsurprising that the 1995 Regulations did not distinguish between parts of TULCRA which were and were not within the internal market competence or within article 1(2)(b) of the Directive. I think that, in these unusual circumstances, Parliament can, by enacting TULCRA in its unamended form, be regarded as having created, for the future domestic purposes of the 1972 Act, a relationship between the EU obligation (which it was a primary object of Part IV Chapter II of TULCRA in its unamended form to implement) and the categories of public employment falling within article 1(2)(b) of Directive 98/59/EC (which Parliament decided without any EU obligation to do so to cover by TULCRA in its unamended form). That relationship having been established by TULCRA in its unamended form, it seems to me that the executive was entitled to take it into account and to continue it by and in the 1995 Regulations. Conclusion For all these reasons, I would dismiss the appellants appeal on all three points, and affirm the judgments of the courts below. The case should as a result be remitted to the Court of Appeal for determination, so far as necessary, of the UK Coal/Fujitsu issue referred to in paras 3 and 10 11 of this judgment. LORD CARNWATH: (dissenting) Overview This case has an unfortunate procedural background, which has been described by Lord Mance. Among other grounds raised by the appellants (which in agreement with my colleagues I would dismiss), it raises two difficult issues at the interface between European and domestic law: first, the extent of the power conferred by section 2(2)(b) of the European Communities Act 1972 to legislate in the UK by statutory instrument on matters arising out of or related to obligations under European law; secondly, the approach of the domestic court to an issue of European law (the Fujitsu issue see below) which arises under a UK statute modelled on a European Directive, but which has been held to be outside the competence of the European court. As will be seen, the two are in my view linked. Unfortunately, only the first is before this court on the present appeal. The second will have to be determined by the Court of Appeal if the present appeal fails, and may return here at a later date. There is the further difficulty that neither of the parties to the appeal has more than a limited interest in the resolution of either issue as a matter of law. The United States of America, as appellant, has no direct interest in the resolution of issues of English or European law. It is only before the court because it failed at an early stage (for understandable reasons at the time) to claim sovereign state immunity. (It is common ground that if a claim to state immunity had been made at the outset it would have succeeded.) Mrs Nolan, the nominal respondent, has not contested the appeal, either in the Court of Appeal or in this court. The UK government, which might be thought to have a substantial interest in both issues has chosen not to intervene, though informed of the appeal. In these unusual circumstances we are more than usually grateful for the assistance of Mr Beloff QC and Miss Wilkinson as advocates to the court. However, it is no reflection on them that we have been unable to explore in any detail the wider implications of this case for the transposition of European law in this country more generally. For this reason, had my colleagues agreed with my firm provisional view that the appeal should be allowed on this issue, I would have been reluctant to reach a final conclusion without allowing the UK government a further opportunity to submit representations. The conclusions set out below are to that extent provisional. I adopt gratefully Lord Mances exposition of the facts and the relevant statutory provisions. Procedural history Lord Mance has summarised the procedural history, but some expansion may be helpful in setting the scene for discussion of the issue on which we are divided. As he has noted, an important event was the decision of the Employment Appeal Tribunal, in UK Coal Mining Ltd v National Union of Mineworkers [2008] ICR 163), given in September 2007. To explain its importance I can refer to Underhill LJs summary [2014] ICR 685, para 9: The trend of English authority until comparatively recently was to the effect that the collective redundancy provisions, even when read with the Directive, did not oblige an employer to consult about, or therefore disclose the reasons for, the underlying business decision which gave rise to a proposed collective redundancy the paradigm case being the closure of a workplace but only about the consequences of that decision. However, the decision of the ECJ in Junk v Khnel (Case C 188/03) [2005] ECR I 885, raised a serious question whether that approach was compatible with EU law. In UK Coal Mining , the Employment Appeal Tribunal (Elias J, President, presiding) declined explicitly to depart from the established approach (while expressing some reservations about it); but it nevertheless held that in a case where a decision to close a workplace and the consequent decision to make redundancies were inextricably interlinked the obligation to consult about the reasons for the latter necessarily involved an obligation to consult about the reasons for the former and thus required the employer to initiate consultations prior to the closure decision. The CJEU revisited this issue in Akavan Erityisalojen Keskusliitto (AEK) ry v Fujitsu Siemens Computers Oy (Case C 44/08) [2010] ICR 444; [2009] ECR I 8163 (the Fujitsu decision); but unfortunately the effect of its reasoning is, to put it no higher, not entirely clear. As Underhill LJ explained (para 10), this change of understanding had important implications for the present case, in particular in the context of the USAs failure to rely before the tribunal on sovereign immunity: On the approach which it had initially taken, which involved acceptance of an obligation to consult only about the consequences for employees of the closure of the base, there had been no need for the USA to take any point on its status as a sovereign state. But the approach espoused in the UK Coal case was unacceptable to it: it did not believe that it should or could be under any legal obligation to consult with employees about a decision to close a military base, which is an act done jure imperii. It was not until the remedy hearing that the USA sought for the first time to invoke state immunity; but the tribunal held that it had already submitted to the jurisdiction. That conclusion is not now in issue. Before the EAT Mr John Cavanagh QC, who represented the USA, argued, as he has before us, that as a matter of construction, and in order to avoid absurdity, section 188 should be read as excluding any obligation by a sovereign state employer to consult about a decision made jure imperii. That submission was rejected by both the EAT and the Court of Appeal. In the Court of Appeal he further submitted that in the light of the Fujitsu decision, the reasoning in UK Coal [2008] ICR 163 should not be supported, with the consequence that consultation on the business decision to close the base had not been required. In the course of a detailed review of the reasoning of the Advocate General and the CJEU in the Fujitsu case, Rimer LJ (giving the judgment of the court) [2010] EWCA Civ 1223 sought an answer to what he identified as the critical question: does the ECJ explain whether the consultation obligation arises (i) when the employer is proposing, but has not yet made, a strategic business or operational decision that will foreseeably or inevitably lead to collective redundancies; or (ii) only when that decision has actually been made and he is then proposing consequential redundancies? (para 57) He inclined to the view that the Advocate General had favoured option (ii) (para 53). But he was unwilling to venture a concluded view on the position of the court, which he considered unclear (para 59), and which could be only resolved by the CJEU itself. Notwithstanding the USAs express unwillingness to support a reference, he saw it as important not just to the disposition of this litigation but also to industrial practice generally (para 62). Before the CJEU, as Lord Mance has noted, the case took an unexpected turn. Prompted by observations of the Commission, the court invited submissions on whether, having regard to the exclusion for public administrative bodies in article 1(2)(b), the dismissal was outside the scope of the Directive, with the result that the court would have no jurisdiction to decide the question. Its answer (in its judgment of 18 October 2012, (Case C 583/10), [2013] ICR 193) was no (for reasons to which I shall return below). Accordingly, when the appeal came back to the Court of Appeal, the issue had to be considered as one of domestic law only. At the second Court of Appeal hearing, the primary submission for the USA was that, in order to achieve conformity with the Directive, words should be read into section 188 to exclude its operation to a foreign state engaged in the exercise of public powers. This was rejected by Underhill LJ (with whom the other members of the court agreed). The draftsman had made a deliberate decision not to extend the exclusion to all public administrative bodies. This was unsurprising, given that the concept of a special employment regime for public employees recognised in some civil law countries has no equivalent in the common law, and it made sense for Parliament to have settled for a touchstone for exclusion which used common law concepts and would be (comparatively) easy to apply in the United Kingdom. He added that the Labour Government in 1975 may have had policy reasons to extend the collective redundancy provisions to public administrative bodies, such as local authorities, given the influence at the time of public sector trade unions (para 24). Having rejected the argument that amendments made under the European Communities Act 1972 had been outside the powers conferred by the Act, he concluded that there would need to be a further hearing to determine the Fujitsu issue. It was regrettable but unavoidable that an issue which will in almost all other cases albeit not in this depend on EU law will have to be decided without the guidance of the CJEU (para 33) It was further ordered that in the event of an appeal to the Supreme Court, the further hearing on the Fujitsu issue should await the outcome of the appeal. The reasoning of the CJEU The European court held that the armed forces fell clearly within the exception for public administration or equivalent bodies under article 1(2)(b). This was also supported by the objectives of the Directive, concerned with improving the protection of workers and the functioning of the internal market (para 39): 41. Whilst the size and functioning of the armed forces does have an influence on the employment situation in a given member state, considerations concerning the internal market or competition between undertakings do not apply to them. As the Court of Justice has already held, activities which, like national defence, fall within the exercise of public powers are in principle excluded from classification as economic activity It followed that dismissal of staff of a military base did not fall within the scope of the Directive, irrespective of whether or not it is a military base belonging to a non member state. (para 43) The court also considered an argument that, even if the case fell outside the Directive, it was able to give a preliminary ruling, following cases in which the court had accepted jurisdiction where EU law had been rendered applicable by reference in domestic law. The court explained the limits of that principle: 46. The court has already held that where, in regulating situations outside the scope of the EU measure concerned, national legislation seeks to adopt the same solutions as those adopted in that measure, it is clearly in the interest of the European Union that, in order to forestall future differences of interpretation, provisions taken from that measure should be interpreted uniformly 47. Thus, an interpretation by the court of provisions of EU law in situations outside its scope is justified where those provisions have been made applicable to such situations by national law in a direct and unconditional way in order to ensure that internal situations and situations governed by EU law are treated in the same way However, the court noted, in paras 49 and 50, that the USA had had the opportunity in the tribunal to rely on state immunity, or on special circumstances under section 188(7). It followed that the court did not have sufficiently precise indications that the national law made the solutions adopted by the Directive automatically applicable in such a case (para 51), so as to make the provisions of the Directive applicable in a direct and unconditional way (para 52). The court continued: 53. It is true that it is in the interests of the Union to safeguard the uniformity of the interpretations of a provision of an EU measure and those of national law which transpose it and make it applicable outside the scope of that measure. 54. However, such is not the case where, as in the case in the main proceedings, an EU measure expressly provides a case of exclusion from its scope. 55. If the EU legislature states unequivocally that the measure which it has adopted does not apply to a precise area, it renounces, at least until the adoption of possible new EU rules, the objective seeking uniform interpretation and application of the rules of law in that excluded area. 56. Therefore, it cannot be stated or presumed that there was an interest of the Union that, in an area excluded by the EU legislature from the scope of the measure which it adopted, there should be a uniform interpretation of the provisions of that measure. The vires issue The arguments The scope of section 2(2)(b) was considered by the Court of Appeal in Oakley Inc v Animal Ltd [2005] EWCA Civ 1191, [2006] Ch 337. The Registered Design Regulations 2001 were made under section 2(2) in order to implement Directive 98/71/EC, concerning the approximation of laws relating to registered designs. Article 11(8) was a transitional provision which granted member states the option of retaining their old laws in relation to designs that were already registered. The Court of Appeal rejected an argument that the transitional provisions in the Regulations went further than permitted by the Directive. Of section 2(2)(b) Waller LJ said that the words arising out of and related to should be read in the context of section 2 itself, the primary purpose of which was to give effect to the laws which under the EU Treaties the United Kingdom had agreed to make part of its own laws. He observed: It seems to me that section 2(2)(b) from its position in section 2, from the fact that it adds something to both subsections (1) and (2), and from its very wording is a subsection to enable further measures to be taken which naturally arise from or closely relate to the primary purpose being achieved. (para 39) (emphasis added) May LJ contrasted sections 2(2)(a) and (b): There is a distinction between providing something which, although it is a choice, is a choice which the implementation of the Directive requires you to make, and one which is not so required, but which has the effect of tidying things up or making closely related original choices which the Directive does not necessarily require. Section 2(2)(b) is confined by its words and context . (para 47) (emphasis added) In the present case the Court of Appeal accepted that the 1995 Regulations were not within the scope of section 2(2)(a) of the 1972 Act, but held that they were authorised by section 2(2)(b). Underhill LJ said: The decision to go beyond the requirements of the Directive by extending the employee representative rights to employees in PABs (except those in Crown employment) may, as a matter of strict analysis, reflect a substantive policy choice made by the Secretary of State; but, as the judgments in the Oakley Inc case make clear, that is not in itself objectionable. In fact all that he was doing was plugging the rights created by the Regulations in cases where no trade union was recognised into the pre existing scheme of the Act and thereby reproducing, in the case of this late discovered lacuna in the implementation of the Directive, the selfsame decision as Parliament had already made in enacting the primary legislation in 1975 and 1992. It would indeed have been an extraordinary anomaly if the kinds of employment where the obligation to consult arose differed as between cases where a trade union was recognised and cases where it was not; and it was not only natural but right for the Secretary of State in making the 1995 Regulations to ensure that the position was the same in both cases. In my judgment this is precisely the kind of closely related original choice which the Directive does not require but which has the effect of tidying things up that May LJ identifies in his judgment in Oakley Inc case. (para 32) In this court, Mr Beloff QC supports the reasoning of the Court of Appeal. Article 5 of the Directive made clear that the Directive sought to achieve minimum harmonisation only. Member states were free to enact laws more favourable to workers than those required by the Directive. Section 188, as applied to public administrative bodies, arose out of the obligations under the Directive in the sense of extending them further, as the UK was entitled to do by article 5, or alternatively it related to those because the subject matter (the right to consultation) was identical to the right to be consulted in the Directive. By the same token, the 1995 Regulations, in filling a gap in the UK legislation identified by the European court in Commission of the European Communities v United Kingdom (Case C 383/92) [1994] ICR 664 fell squarely within the scope of section 2(2)(b) of the 1972 Act under which they were made. This reasoning is challenged by Mr Cavanagh QC. Mrs Nolans employment by the public employers such as the USA was not within the scope of the 1992 Act as enacted by Parliament. It was brought within it solely by the amendments made by the 1995 Regulations. The Court of Appeal were right to find that the Regulations were outside the scope of section 2(2)(a), but were wrong to find that they were within section 2(2)(b) as matters arising out of or related to a community obligation. The CJEU judgment in the present case has made clear that decisions relating to the closure of foreign military bases are within an area excluded by the EU legislature from the scope of the measure which it adopted (judgment para 56). It follows that, in so far as the 1995 Regulations purported to extend the application of section 188 to employee representatives in such cases, they had nothing to do with this countrys Community obligations, but arose solely from domestic policy considerations. They were not dealing with matters arising out of or related to EU obligations in any relevant sense. Discussion I start from the words of Lord Hope in R (Risk Management Partners Ltd) Brent London Borough Council [2011] 2 AC 34, para 24: It is true that section 2(2) of the European Communities Act 1972 is in wide terms. It does not confine any measures made under it to doing the minimum necessary to give effect to a Directive. But, if it is to be within the powers of the subsection, the measure has to arise out of or be related to an EU obligation. As Waller LJ said in Oakley Inc v Animal Ltd , the primary objective of any secondary legislation under section 2(2) must be to bring into force laws which, under the Treaties, the United Kingdom has agreed to make part of its laws The words related to in section 2(2)(b) taken out of context are so wide as to be almost meaningless. A relationship may be very close or very distant without distortion of the word. In one sense, as Mr Beloff QC appeared to suggest, any provision dealing with employees rights to consultation could be said to be related to the subject matter of this Directive, and hence within the scope of the section. More specifically, it may be said in the present context, Parliament has in the 1992 Act established a clear and direct relationship, as a matter of domestic law, between the employments covered by the Directive, and the extension to equivalent employments under public administrative bodies. If that were sufficient, then it would no doubt follow that, when legislative action was required to fill gaps in the transposition of the Directive into domestic law, the same relationship would cover the decision to take equivalent action in respect of the extension. In Oakley the Court of Appeal sought to avoid an unduly broad interpretation by introducing additional qualifications: naturally arising, closely related, tidying up. Such glosses are not justified by normal rules of interpretation, and may beg as many questions as they solve. Thus in the present case, it may be said that extending the 1995 Regulations to public administrative bodies is closely related to to the main purpose of the amendments, or (as Underhill LJ thought) simply a matter of tidying up the 1992 Act in the light of the European courts decision. Such language provides no answer to the underlying problem that the relationship is one created entirely by a domestic statute, and has no obvious relevance to the purpose of the 1972 Act. Some limitation is necessary to ensure that the power to legislate outside the normal Parliamentary process is kept within bounds. The key, as Lord Hope said, at [2011] 2 AC 34, para 25, must lie in the context. The relationship must be one relevant to the purpose of the legislation, that is to give effect to the UKs obligations in European law. In other words it must be a relationship derived in some way from European law, not one dictated solely by considerations of domestic law. On the other hand, as the language makes clear, the power is not confined to matters which arise directly from the European obligation the minimum necessary in Lord Hopes words, at para 24. Related to implies the possibility of a less direct connection. The interpretation of the 1972 Act is of course a matter ultimately for the domestic, not the European courts. However, the reasoning of the CJEU in the present case suggests the basis for a principled and workable distinction, corresponding to the limits of its own jurisdiction. This would have the additional advantage of avoiding the problem, noted by Underhill LJ, of a European question of general importance (the Fujitsu issue) having to be decided without the possibility of recourse to the European court. The court saw its jurisdiction as extending to cases where European provisions are made applicable by national law in a direct and unconditional way to internal situations outside their direct scope. A relationship adequate to give jurisdiction to the European court might be thought an adequate relationship also for the purpose of the 1972 Act. However, that solution is not available in this case. The effect of article 1(2)(b), as found by the court, is to exclude public administrative bodies entirely from the scope of the Directive, and to renounce any European interest in that excluded area. I note with respect the different view taken by Lord Mance on what he describes as a difficult and borderline question. As I understand his judgment (para 71), he might have reached a different conclusion, if TULCRA in its amended form had been the product of subordinate rather than primary legislation. I would only comment that I find it difficult to understand why the status of the original legislation should impinge materially on the relationship required by section 2(2)(b) to support the 1995 Regulations. Mr Beloff QC relies on article 5 of the Directive by which member states are permitted to introduce laws or other measures which are more favourable to workers . Although the CJEU did not refer in terms to article 5, its reasoning makes it difficult to see the present extension as coming within its scope. That allows terms more favourable to workers as defined in the Directive. But by article 1.2(b), as interpreted by the CJEU, the Directive has no application to workers in public administrative bodies, who are outside its scope altogether and hence outside the reach of article 5. The power of the national legislature to extend similar protection to such workers is a matter purely of domestic competence, and owes nothing to the Directive. I should add that the same reasoning does not necessarily apply to time limited contracts, which, as already noted, are excluded by article 1(2)(a) of the Directive, but not from the domestic legislation. Employees under such contracts may still be workers for the purposes of the Directive, and therefore potentially within the scope of article 5. Conclusion I find it difficult therefore to avoid the conclusion that the extension of the 1995 Regulations to public administrative bodies, such as the appellants, was not within the power conferred by the 1972 Act, and that the appeal should be allowed on this ground. I reach this position with some diffidence, given that the wider implications of this interpretation of the 1972 Act have not been explored, and we have had no submissions from the UK government which is primarily interested in those issues. As already indicated, before reaching a final decision, I would have wished to invite the UK government to make representations on this issue. That will not now be necessary, in view of the opposite conclusion reached by Lord Mance, with the agreement of the rest of the court. I regret that, because of the narrow basis on which the appeal has come before us, we have not been able to provide any assistance on the resolution, as a matter now of domestic law, of the difficult Fujitsu issue, which, unless the parties otherwise agree, will have to revert to the Court of Appeal. For these reasons, I would have allowed the appeal on the vires issue, but dismissed all the other grounds of appeal.

In 2006 the United States of America (USA) closed a watercraft repair centre (the Base) which it maintained in Hampshire. Mrs Nolan was employed at the Base by the appellant and was dismissed for redundancy the day before it closed. Mrs Nolan complained that the appellant had failed to consult with any employee representative when proposing to dismiss her. The appellant denies any such duty. Mrs Nolan brought Employment Tribunal proceedings under Part IV Chapter II of the Trade Union and Labour Relations (Consolidation) Act 1992 (TULCRA) as amended by The Collective Redundancies and Transfer of Undertakings (Protection of Employment) (Amendment) Regulations 1995 (SI 1995/2587) (the 1995 Regulations). TULCRA as originally enacted by Parliament went beyond the requirements of European law under Council Directive 77/187/EEC (or now under Council Directive 98/59/EEC) in extending a right to be consulted prior to redundancies to employees of public administrative bodies, such as those at the Base. But it fell short of European law in that it was confined to circumstances where employees enjoyed union representation recognised by the employer. In 1994 the Court of Justice identified this failure, and in consequence the Secretary of State relying on the power to make secondary legislation conferred by section 2(2) of the European Communities Act 1972 (the 1972 Act) made the 1995 Regulations which amended TULCRA to require employee representatives to be designated for consultation purposes in all situations covered by TULCRA. On the basis of TULCRA as amended, Mrs Nolan succeeded before the Employment Tribunal and was granted an order for remuneration for a one month period. This Employment Appeal Tribunal upheld the order. The Court of Appeal referred to the Court of Justice the question whether the obligation to consult arose on a proposal or only on a decision to close the base (the UK Coal Mining and Fujitsu issue: see [2008] ICR 163 and Case C 44/08; [2009] ECR I 8163). The Court of Justice declined jurisdiction, holding that (i) Directive 98/59/EEC being an internal market measure covering economic activities, national defence and the dismissal of staff at a military base are outside its scope; and (ii) it was not appropriate to rule on a question relating to a public administrative establishment to which the Directive did not apply. The Court of Appeal ordered a further hearing of the UK Coal Mining/Fujitsu issues. The USA appeals to the Supreme Court on three grounds: (1) TULCRA should in the light of the Court of Justices ruling be construed as not applying to employment by a public administrative establishment, at least as regards non commercial (jure imperii) activity such as closure of a military base decided at the highest level in Washington; (2) the same result should be reached in the light of principles of international law and EU law; (3) In any event, the Secretary of State exceeded the powers conferred by s.2 of the 1972 Act when making the 1995 Regulations, in so far as these went further than EU law requires by protecting workers without trade union representation employed by public administrative establishments. The Supreme Court dismisses the USAs appeal by a majority of 4:1. The case is remitted to the Court of Appeal for determination, as necessary, of the UK Coal/ Fujitsu issues. Lord Mance gives the lead judgment, with which Lord Neuberger, Lady Hale and Lord Reed agree. Lord Carnwath dissents. Ground (1): That the present situation might not have been foreseen by the legislature is not a reason for reading into clear legislation a specific exemption which would not reflect the scope of any exemption in EU law, especially when the foreign state could have invoked state immunity but did not do so in time [24, 25]. The USAs first submission is rejected [26]. Ground (2): Jurisdiction is primarily territorial in both international and domestic law [29 30]. TULCRA regulates the procedures for dismissal on the grounds of redundancy of employees at institutions in England, Wales and Scotland. The UK is not legislating extra territorially when it covers proposals or decisions about domestic redundancies developed or taken abroad [31]. TULCRA contains no exception for such cases. The USAs submission would render largely otiose the procedures and time for a plea of state immunity. State immunity is an adjudicative bar separate from a foreign states underlying responsibility. The USAs case elides two distinct principles. [35 38]. This appeal concerns situations covered by TULCRA but falling outside EU law, so the USA cannot rely on EU law as entitling it to protection from discrimination [45]. Further EU law does not protect third country nationals from discrimination or therefore non member states [46 47]. The USAs second submission is therefore also rejected [47]. Ground (3): The power conferred under s.2(2) of the 1972 Act to make delegated legislation for the purpose of dealing with matters related to any obligation of the United Kingdom under EU law envisages a close link between the content of any such legislation and the relevant obligation [61]. While each case must be considered on its merits, the domestic extension of an EU regime into areas outside or specifically excluded from that regime may well fall outside s.2(2) [66]. In the present case, however, Parliament had by its original enactment of TULCRA established a unified domestic regime drawing no distinction between different parts of TULCRA within or outside the EUs internal market competence. In these unusual circumstances, Parliament could be taken to have created for the domestic purposes of s.2(2) of the 1972 Act a relationship which the Secretary of State was entitled to take into account and continue by and in the 1995 Regulations [72]. The submission that the 1995 Regulations went beyond the Secretary of States powers in protecting employees of public administrative establishments without trade union representation would therefore also be rejected [77 73]. Lord Carnwath (dissenting) considers that the relationship between TULCRA and the Directive created by domestic statute has no obvious relevance to the purpose of the 1972 Act [94 95]. Some limitation is necessary to ensure that the power to legislate outside the normal parliamentary process is kept within bounds [96]. Lord Carnwath would dismiss the appeals on the first two issues, but allow the appeal on the third issue [100 101]. the Courts decision. It does not form part of the reasons for the decision. The full judgment of the Court is the only authoritative document. Judgments are public documents and are available at: http://supremecourt.uk/decided cases/index.html

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The transactions with which this appeal is concerned arose during a period when sale and rent back transactions were common. They were what was described by the Office of Fair Trading in 2008 (Sale and rent back: An OFT market study) as a relatively new type of property transaction whereby firms bought homes from individuals, usually at a discount, and allowed the former home owners to stay on in the property as tenants. The deals were often sold to home owners in financial difficulties and the firms selling them often told the home owners that they would be able to stay in their homes for years, when in fact the tenancies were rarely granted for more than six or twelve months. Many firms financed the purchase of the properties through secured borrowing, and former owners were being evicted following proceedings for possession by mortgage lenders after the purchasers defaulted on their loans. The home owners did not fully understand the risks involved, and the OFTs research found that solicitors provided by the sale and rent back companies to provide advice to the seller were sometimes suspected to be acting for the companies as well. By the time of the study the OFT estimated that there were 1,000 firms involved in selling the schemes and about 50,000 transactions. In 2009 the Financial Services Authority recommended that consumer detriment occurring in this market warranted a fast regulatory response, and in the same year sale and rent back transactions became a regulated activity under section 19 of the Financial Services and Markets Act 2000. As a result, in February 2012 the FSA reported that most sale and rent back transactions were unaffordable or unsuitable and should never have been sold, but that in practice the entire market had shut down. They are now very rare. This is an appeal in one of what were originally ten test cases in which the defendant home owners were persuaded to sell their properties to purchasers who promised the vendors the right to remain in their homes after the sale. The purchasers bought the homes with the assistance of mortgages from lenders, who were not given notice of the promises to the home owners. Criminal charges are pending and the original owners and the lenders may have been the victims of a fraud. Some of the solicitors involved in the transactions were subsequently the subject of disciplinary proceedings. Ultimately this appeal will determine which of the innocent parties will bear the consequences. The purchasers/mortgagors were nominees for an entity called North East Property Buyers (NEPB). In each case the purchaser/mortgagor has taken no part in the proceedings. There are another 90 or so cases in the Newcastle area involving NEPB and some 20 different lenders, but also many other cases in other parts of England involving similar schemes. In each case the purchaser applied for a loan from one of the lenders. The application form disclosed that the property was being purchased on a "buy to let" basis and that the tenancies granted would be assured shorthold tenancies of six months' duration. The mortgage terms generally permitted only assured shorthold tenancies for a fixed term of not more than 12 months. As a result the purchasers were able to obtain loans on the basis that they were purchasing properties at full value with vacant possession. Exchange of contracts between the relevant vendor and the purchaser, and the completion of the contract by the execution of the transfer, and the execution of the mortgage, all took place on the same day. Neither the rights of occupation promised by the purchasers to the vendors nor the tenancies granted by the purchasers were permitted by the lenders mortgages. The purchasers defaulted on the loans, and the lenders sought possession of the homes in proceedings, which the original owners resisted, without success, before Judge Behrens sitting as a High Court judge in the Chancery Division at Leeds District Registry (sub nom Various Mortgagors v Various Mortgagees [2010] EWHC 2991 (Ch)) and on appeal before Lord Neuberger MR, and Rix and Etherton LJJ, with Etherton LJ giving the only reasoned judgment: sub nom Cook v Mortgage Business [2012] EWCA Civ 17, [2012] 1 WLR 1521. The essence of the issue before this court is whether the home owners had interests whose priority was protected by virtue of section 29(2)(a)(ii) of, and Schedule 3, paragraph 2, to the Land Registration Act 2002 (the 2002 Act). There are two main questions on this appeal which divide the parties, and each of them concerns the effect of the contract of sale and purchase. One question is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The second question is whether, even if the equitable rights of the vendors were more than merely personal rights, the rationale of the decision of the House of Lords on the Land Registration Act 1925 (the 1925 Act) in Abbey National Building Society v Cann [1991] 1 AC 56 applies in this case. At the risk of oversimplification, that case decided that where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction, and an occupier cannot assert against the mortgagee an equitable interest arising only on completion. Mrs Scott's case The only appeal before this court is that by Mrs Scott, but because this is a test case I shall for convenience refer to the arguments on her behalf as those of the vendors. In order to put some flesh on the scheme, I propose to illustrate it by reference to some of the facts of Mrs Scotts case, although it should be emphasised that there have been no findings of fact and that the lenders have not agreed the statement of facts from which this account is taken. Mrs Scott and her former husband Mr Scott were originally secure tenants of a house in Longbenton, Newcastle upon Tyne. They bought the house from North Tyneside Borough Council in 1999 on a mortgage from Cheltenham and Gloucester, and became the registered proprietors with absolute title. Five years later Mr Scott left Mrs Scott and she fell into financial difficulties. In 2005 she decided to put the house on the market at 156,000 but only received an offer significantly below the asking price. Mrs Scott was subsequently approached by a man who told Mrs Scott that he had heard she was trying to sell her house, and said that a friend of his worked for a Mr Michael Foster who was looking to buy properties in the area and that Mr Foster would pay the asking price and rent it back to Mrs Scott. Mr Foster, who was in some way connected with NEPB, then met Mrs Scott and told her that he would purchase the property for 135,000 and that she could stay as a tenant at a discounted rent of 250 a calendar month. If she stayed for ten years she would receive a lump sum of 15,000, which would make up some of the deficit in the sale price, and she would receive 24,000 from the net proceeds of sale. The outstanding mortgage to Cheltenham and Gloucester was in the region of 70,000, and so the equity would have been about 65,000. A deduction of 40,000 would be paid to NEPB. Mrs Scott told Mr Foster that she wished to live in the property indefinitely and he assured her that she could stay as long as she liked, and that if she were to die the tenancy would be automatically transferred into her sons name and he would receive the lump sum at the end of the ten year period. Mr Foster said that he would arrange solicitors for her and be responsible for the legal fees so long as those solicitors were used. Those solicitors were Hall & Co, who also acted for the vendors in most of the other cases. The solicitors for the purchaser were Adamsons, who, in the usual way, also acted for the lenders (and also acted in other transactions of this type). Ms Amee Wilkinson was the nominee purchaser for NEPB. Ms Wilkinson was made a buy to let interest only mortgage offer by Southern Pacific Mortgages Ltd on June 15, 2005. The loan amount was 114,750 and 1,751.50 fees. The mortgage offer stated that the purchaser was not bound by the terms of the offer until the purchaser had executed the legal charge, the funds had been released, and the legal transaction had been completed. In the course of the conveyancing process, the answers to the requisitions on title in respect of vacant possession were that arrangements might be made direct with the seller as to both the handover of keys and the time that vacant possession would be given. The agreement for sale, dated August 12, 2005, was expressed to be with Full Title Guarantee and subject to the Standard Conditions of Sale (4th Edition). The Special Conditions attached at Clause 4 were left by both firms of solicitors without either of the alternatives being deleted so that it read, The property is sold with vacant possession (or) The property is sold subject to the following Leases or Tenancies. No leases or tenancies were listed. Completion of the transfer (TR1) from Mrs Scott and Mr Scott to Ms Wilkinson and the legal charge by Ms Wilkinson to SPML also took place on August 12, 2005. The transfer and the charge were registered on September 16, 2005. Four days later, on August 16, 2005 UK Property Buyers acting as agents for Ms Wilkinson, contrary to the terms of Ms Wilkinsons mortgage, granted Mrs Scott a two year assured shorthold tenancy at the reduced rent. On expiry of the fixed term, the tenancy was stated to become a monthly periodic tenancy terminable on not less than two months notice in writing. Mrs Scott also received, dated August 16, 2005, a document promising that she could remain in the property as the tenant and that a loyalty payment of 15,000 would be paid after ten years. Three years later, in August 2008, Mrs Scott became aware that there might be a mortgage on the property. A letter was sent to Mrs Scott by North East Property Lettings suggesting that there had been teething problems following an office move and that some tenants had been receiving letters from mortgage companies stating that the account was in arrears, which, the letter assured Mrs Scott, was incorrect. A few months later, Mrs Scott discovered, through accidentally opening a letter addressed to Ms Wilkinson at the house, that a possession order had been made on March 17, 2009 without her knowledge, pursuant to proceedings commenced in February 2009. Subsequently, she received a warrant of possession due to be executed on May 20, 2009. 24. But there is also an important public interest in the security of registered transactions. There are more than 23 million registered titles in England and Wales, and each month the Land Registry may handle up to 75,000 house sales, of which the vast majority will be financed by secured loans. The judgments of Judge Behrens and the Court of Appeal 26. Ultimately, Mrs Scotts case was selected as one of the ten test cases to be tried before Judge Behrens. At a case management conference, he ordered that three preliminary issues should be tried, of which only the first remains live, namely: With reference to section 29 of the [2002 Act] are any of the interests alleged by the defendants capable of being interests affecting the estates immediately before and/or at the time of the disposition, namely the transfer and/or charge of the property in question, sufficient to be an overriding interest under paragraph 1 and/or 2 of Schedule 3 to the 2002 Act? 27. The vendors argument throughout these proceedings has been, with some variations, that they had rights which took priority to the lenders' charges essentially because: (1) from the moment of exchange of contracts the vendors each had, by virtue of the assurances by the purchasers as to the vendors right of occupation after completion, an equity in their property beyond and in addition to their registered freehold interest; (2) the equity was a proprietary right and not a mere personal equity, because the purchasers had proprietary rights as from exchange of contracts, out of which they could carve the obligation to lease back the properties to the vendors, and it did not matter that the contract of sale did not reflect that obligation; (3) there was a sale subject to a reservation of the leaseback to the vendors (and not a separate sale and leaseback or one indivisible transaction of contract, transfer and mortgage), and the purchasers never had more than a title to the property subject to the vendors rights; (4) the vendors rights had effect from the time they arose: the 2002 Act, section 116; and (5) the equity took priority under Schedule 3, paragraph 2, to the 2002 Act and was therefore binding on the lenders by virtue of section 29(2)(a)(ii). 28. Although there was some suggestion in the appeal to this court that the property was held on resulting trust (on the basis that the sale was in reality a sale of the reversionary interest), Mrs Scotts primary case is that, because of the representations made to her by or on behalf of the purchaser, the purchaser is a constructive trustee or bound by a proprietary estoppel. In Bannister v Bannister [1948] 2 All ER 133, a claim that the owner had agreed to let the occupier live in a cottage rent free for as long as she wished was treated as a claim based on constructive trust, on the basis that the purchaser fraudulently set up the absolute character of the conveyance for the purpose of defeating the beneficial interest (at p 136). The relationship between constructive trust and proprietary estoppel has been the subject of much discussion: see especially Yaxley v Gotts [2000] Ch 162, 176 177. It is likely that the difference would only be crucial in terms of remedies, but nothing turns on the distinction in this appeal. 29. The essence of Judge Behrens judgment was as follows: (1) even if the promises to the vendors gave rise to a proprietary right on completion, there was no moment in time in which such an interest could bind the lender: Abbey National Building Society v Cann [1991] 1 AC 56; (2) the vendors did not obtain an interest on exchange of contracts, because contract, conveyance and mortgage were one indivisible transaction: Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (3) in any event, prior to completion the vendors equitable rights were at best personal rights and not proprietary rights; (4) the transfers executed by the vendors on completion would have transferred any interest which they had in the properties to the purchaser under the Law of Property Act 1925, section 63. 30. The Court of Appeal decided that: (1) there was a separate sale of the freehold and a leaseback to the vendor on completion, and not a sale subject to a reservation; (2) the clear impression created by the contracts was that the vendors would be selling without reserving any beneficial interest or other rights in the property; (3) a mortgagee lending money to finance the purchase would be entitled to view the matter in the same way; (4) in those circumstances no equitable interest or equivalent equity could have arisen in favour of the vendors prior to completion; (5) even if an equity arose in favour of the vendors on exchange of contracts in consequence of the assurances given by the purchasers, there was no moment of time when the freehold acquired by the purchaser was free from the mortgage but subject to the equity, and it was unrealistic to separate out the contract, on the one hand, and the transfer and mortgage, on the other hand, as separate transactions: Abbey National Building Society v Cann [1991] 1 AC 56, as applied in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381; (5) if the equitable interest arose on completion, then Abbey National Building Society v Cann [1991] 1 AC 56 was not distinguishable and the equitable interest could not take priority. Land Registration legislation 31. Because the earlier authorities are concerned with the predecessor of the provisions in the 2002 Act relating to priority of unregistered interests which are the subject of this appeal, it is necessary to start with the relevant provisions of the 1925 Act. 32. Section 20(1)(b) of the 1925 Act provided: In the case of a freehold estate registered with an absolute title, a disposition of the registered land or of a legal estate therein shall, when registered, confer on the transferee or grantee an estate in fee simple or other legal estate expressed to be created in the land dealt with subject (b) to the overriding interests, if any, affecting the estate transferred or created . 33. Section 70(1) contained a list of miscellaneous overriding interests to which registered land was subject, and section 70(1)(g) provided: All registered land shall, unless under the provisions of this Act the contrary is expressed on the register, be deemed to be subject to such of the following overriding interests as may be for the time being subsisting in reference thereto, and such interests shall not be treated as incumbrances within the meaning of this Act, (that is to say) . (g) The rights of every person in actual occupation of the land or in receipt of the rents and profits thereof, save where inquiry is made of such person and the rights are not disclosed; . 34. The object of section 70(1)(g) was to protect a person in actual occupation of land from having his rights lost in the welter of registration No one can buy the land over his head and thereby take away or diminish his rights: Lord Denning MR in Strand Securities Ltd v Caswell [1965] Ch 958, 979. 35. The rights which were overriding rights related primarily to rights which in unregistered conveyancing were not normally included in title deeds or revealed in abstracts of title. Overriding interests in general were an impediment to one of the main objectives of land registration, that the land register should be as complete a record of title as it could be: see, eg Gray and Gray, Elements of Land Law (5th ed. 2008), para 8.2.44. Reform of the law of land registration was on the agenda of the Law Commission from its inception. Overriding interests were considered in the Third Report on Land Registration (Law Com No 158, paras 2.54 2.70, 1987) and the Fourth Report (Law Com No 173, 1988), and in a joint consultation by the Law Commission and HM Land Registry in 1998. The Law Commission ultimately produced a draft Bill which led to the 2002 Act: Land Registration for the 21st Century: A Conveyancing Revolution (2001), Law Com No 271, in which it referred to section 70(1)(g) of the 1925 Act as notorious and much litigated (para 8.15). 36. One of the principal objectives of what became the 2002 Act was to create a simplified conveyancing system, electronically based, under which it would be possible to investigate title to land almost entirely on line with the bare minimum of additional inquiries: Law Com No 271, paras 8.1 et seq. A major obstacle to that goal was the existence of overriding interests. Although the 2002 Act was intended to minimise the circumstances in which new overriding interests arose, the Law Commission recommended the retention of the overriding status of occupiers' rights. 37. The reason which had been given in the joint consultation was that: it is unreasonable to expect all encumbrancers to register their rights, particularly where those rights arise informally, under (say) a constructive trust or by estoppel. The law pragmatically recognises that some rights can be created informally, and to require their registration would defeat the sound policy that underlies their recognition. Furthermore, when people occupy land they are often unlikely to appreciate the need to take the formal step of registering any rights that they have in it. They will probably regard their occupation as the only necessary protection. The retention of this category of overriding interest is justifiedbecause this is a very clear case where protection against purchasers is needed but where it is not reasonable to expect or not sensible to require any entry on the register. (Law Com No 254, para 5.61). 38. The expression overriding interests is not found in the 2002 Act, except in relation to transitional matters. The heading to Schedule 3 is Unregistered interests which override registered dispositions. 39. So far as is relevant the scheme of the 2002 Act (leaving aside the special provisions for leases of seven years or less, which do not now arise on this appeal) is as follows: (1) a registered owner has the power to make a disposition of any kind permitted by the general law in relation to an interest of that description: section 23(1)(a); (2) a person is entitled to exercise owner's powers in relation to a registered estate or charge if he is (a) the registered proprietor, or (b) entitled to be registered as the proprietor: section 24; (3) by section 27 certain dispositions, including transfers of land and legal mortgages, are required to be registered and do not operate at law until the relevant registration requirements are met; (4) the basic rule is that the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge: section 28; (5) section 29 deals with the effect of registered dispositions and provides: (1) If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. (2) For the purposes of subsection (1), the priority of an interest is protected (a) in any case, if the interest (i) is a registered charge or the subject of a notice in the register, (ii) falls within any of the paragraphs of Schedule 3 ; (6) Schedule 3 is headed UNREGISTERED INTERESTS WHICH OVERRIDE REGISTERED DISPOSITIONS, and paragraph 2 includes: An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation, except for (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so; (c) an interest (i) which belongs to a person whose occupation would not have been obvious on a reasonably careful inspection of the land at the time of the disposition, and (ii) of which the person to whom the disposition is made does not have actual knowledge at that time . ; (7) section 72 grants priority protection to those who apply for an entry in the register during the priority period; (8) section 116 is headed Proprietary estoppel and mere equities and provides: It is hereby declared for the avoidance of doubt that, in relation to registered land, each of the following (a) an equity by estoppel, and (b) a mere equity, has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority); (9) section 132 is an interpretation section and provides (i) in section 132(1) that (a) legal estate has the same meaning as in the Law of Property Act 1925 and (b) registered estate means a legal estate the title to which is entered in the register, other than a registered charge; and (ii) in section 132(3)(b) that references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge ; (10) the effect of section 1 of the Law of Property Act 1925 for present purposes is: (a) that legal estates means [t]he estates and charges which under this section are authorised to subsist or to be conveyed or created at law (when subsisting or conveyed or created at law) (section 1(4)); (b) The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute (section 1(1)); (c) The only charges in or over land which are capable of subsisting or of being conveyed or created at law are .(c) A charge by way of legal mortgage (section 1(2)); (d) All other estates, interests, and charges in or over land take effect as equitable interests (section 1(3)). 40. The effect of sections 27 and 29 of the 2002 Act is that, although a registrable disposition takes place when it is executed, neither a conveyance nor a charge takes effect at law until registration, and the consequence is that a purchaser and a mortgagee acquire equitable interests on completion: Megarry and Wade, The Law of Real Property, 8th ed, 2012, para 7 053; Mortgage Corpn Ltd v Nationwide Credit Corpn Ltd [1994] Ch 49, 54, per Dillon LJ (a case on the 1925 Act). Abbey National Building Society v Cann [1991] 1 AC 56 41. The principal issue in the courts below was whether the decision in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann) is controlling (as the lenders say) or distinguishable (as the vendors say), and the decision also has some bearing on the other issue on this appeal, namely whether proprietary rights can be granted to a third party by a purchaser prior to completion. Consequently it is necessary to go beyond summarising the principles for which it stands by setting out the essential facts (particularly those facts which the vendors say distinguish the present case) and some of the reasoning. The decision in Cann predates the reform of land registration law in the 2002 Act, and the relevant sections of the 1925 Act have been set out above. The facts 42. Three properties in Mitcham, Surrey, were involved in Cann: 48 Warren Road, Mitcham (48 Warren Road); 30 Island Road, Mitcham (30 Island Road), and 7 Hillview, Mitcham (7 Hillview). Mrs Cann lived with her first husband in a house at 48 Warren Road. Her husband, who was the tenant of the property under a protected tenancy, died in 1962 and Mrs Cann succeeded to the tenancy as his widow and was entitled to the protection afforded by the Rent Acts. In 1977 the landlord's agents approached Mrs Cann as the sitting tenant with an offer to sell the freehold of 48 Warren Road to her for 5,000. Because neither she, nor her late husband's brother, Abraham Cann, who was by then living with her, could afford to purchase the property, her son George Cann (George) offered to raise a mortgage and purchase it; and in 1977 it was conveyed into the joint names of Mrs Cann and George with the aid of an endowment mortgage covering the whole of the price. George assured his mother that she would not need to pay any rent and that she would always have a roof over her head. Later they came across a more attractive house, 30 Island Road. 48 Warren Road was sold for 20,500, and 30 Island Road was purchased in the name of George alone for 26,500 of which 15,000 was, with Mrs Cann's knowledge and acquiescence, raised on mortgage from the Nationwide Building Society. 43. By 1984 George was in financial difficulties and told Mrs Cann that he could no longer afford to pay for two homes. He arranged to sell 30 Island Road for 45,000 and to purchase instead a smaller leasehold property, 7 Hillview, at a price of 34,000. George applied to Abbey National for a loan of 25,000 to be secured on a mortgage of 7 Hillview stating that that property was being purchased for his own sole occupation. Abbey National inspected and approved the property, and made a formal offer of an advance, which was accepted. Contracts for the sale of 30 Island Road, and the purchase of 7 Hillview, were exchanged in July 1984 with the completion date for both transactions fixed for August 13, 1984. Prior to the completion date, in the normal way Georges solicitors received a cheque from Abbey National and George executed a legal charge on the property in favour of Abbey National to secure the sum advanced. The solicitors were in a position to complete the purchase on the completion date subject only to completion of the sale of 30 Island Road, from which the balance of the purchase price was to come. 44. The sale of 30 Island Road and purchase of 7 Hillview by George were completed on August 13, 1984. George subsequently defaulted in his payments to Abbey National, and Abbey National commenced proceedings for possession against George, Mrs Cann and Abraham Cann. George took no part in the proceedings. The decision 45. The defence of Mrs Cann and Abraham Cann was that, because of a contribution made by Mrs Cann to the purchase of 48 Warren Road (represented by her status as a sitting tenant) and by reason of the assurance given by George that she would always have a roof over her head, she had an equitable interest in 7 Hillview, which, by virtue of her actual occupation, had taken priority over Abbey Nationals charge as an overriding interest. 46. The first two main holdings of the House of Lords present no difficulty on the present appeal. First, it was held that the relevant date for determining the existence of overriding interests affecting the estate transferred or created was the date of registration of the estate rather than the date of completion: at pp 87, 106. The 2002 Act lays down the general principle in section 29(1) that completion of a disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration (including overriding interests: section 29(2)(a)(ii)). 47. Second, it was held that to substantiate a claim to an overriding interest against a transferee or chargee by virtue of section 70(1)(g) of the 1925 Act, as a person in actual occupation of the land, the person claiming the overriding interest had to have been in actual occupation at the time of completion: at pp 88, 106. Schedule 3, paragraph 2 of the 2002 Act now expressly confirms that the relevant interest must belong at the time of the disposition to a person in actual occupation. 48. The other holdings are the crucial ones on this appeal, which are these: (1) where a purchaser relies on a bank or building society loan for the completion of a purchase, the transactions of acquiring the legal estate and granting the charge are one indivisible transaction; (2) George never acquired anything but an equity of redemption and there was no scintilla temporis during which the legal estate vested in him free of the charge and an estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on, and take priority over the interest of, the chargee; and (3) consequently Mrs Cann could have no overriding interest arising from actual occupation on the day of completion. The vendor remained the proprietor until registration, but the charge was created on its execution: at p 80. 49. On the facts it was held in any event that Mrs Cann was not in actual occupation at the time of completion (since all that happened prior to completion was that removers were unloading her carpets and furniture for about 35 minutes) and that she was precluded from relying on any interest as prevailing over Abbey National because she had impliedly authorised George to obtain the mortgage. 50. Lord Oliver gave the leading opinion, with which Lords Bridge, Griffiths and Ackner expressly agreed. Lord Jauncey concurred in a full opinion, but there is no substantial difference between his reasoning and that of Lord Oliver. The following points emerge from Lord Olivers opinion. First, prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Second, Abbey National, as an equitable chargee for money actually advanced prior to completion, had an interest ranking in priority to what was merely Mrs Cann's expectation of an interest under a trust for sale to be created if and when the new property was acquired. Third, there was no notional point of time at which the estate vested in George free from the charge and in which the estoppel affecting him could be fed by the acquisition of the legal estate so as to become binding on and take priority over the interest of the mortgagee, approving the analysis of Mustill LJ in Lloyds Bank plc v Rosset [1989] Ch 350, 388 393, and disapproving Church of England Building Society v Piskor [1954] Ch 553. 51. Lord Oliver said (at pp 92 93): The reality is that, in the vast majority of cases, the acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. Indeed, in many, if not most, cases of building society mortgages, there will have been, as there was in this case, a formal offer and acceptance of an advance which will ripen into a specifically enforceable agreement immediately the funds are advanced which will normally be a day or more before completion. In many, if not most, cases, the charge itself will have been executed before the execution, let alone the exchange, of the conveyance or transfer of the property. This is given particular point in the case of registered land where the vesting of the estate is made to depend upon registration, for it may well be that the transfer and the charge will be lodged for registration on different days so that the charge, when registered, may actually take effect from a date prior in time to the date from which the registration of the transfer takes effect The reality is that the purchaser of land who relies upon a building society or bank loan for the completion of his purchase never in fact acquires anything but an equity of redemption, for the land is, from the very inception, charged with the amount of the loan without which it could never have been transferred at all and it was never intended that it should be otherwise. The scintilla temporis is no more than a legal artifice 52. Lord Jauncey said that, on completion of the purchase of 7 Hillview, Mrs Cann acquired an equitable interest in that house. Since that interest derived from George it followed that she could acquire no equitable interest in the house prior to his acquisition of an interest therein on completion, nor could she acquire an interest greater than he acquired. He went on (at pp 101 103): It is of course correct as a matter of strict legal analysis that a purchaser of property cannot grant a mortgage over it until the legal estate has vested in him. The question however is whether having borrowed money in order to complete the purchase against an undertaking to grant security for the loan over the property the purchaser is, for a moment of time, in a position to deal with the legal estate as though the mortgagee had no interest therein. In my view a purchaser who can only complete the transaction by borrowing money for the security of which he is contractually bound to grant a mortgage to the lender eo instante with the execution of the conveyance in his favour cannot in reality ever be said to have acquired even for a scintilla temporis the unencumbered fee simple or leasehold interest in land whereby he could grant interests having priority over the mortgage or the estoppel in favour of prior grantees could be fed with similar results. Since no one can grant what he does not have it follows that such a purchaser could never grant an interest which was not subject to the limitations on his own interest. In the present case George Cann borrowed money from the society in order to complete the purchase of 7 Hillview and in return granted to them a mortgage. The mortgage was executed by George Cann prior to 13 August 1984 when the purchase was completed. It follows that as a matter of reality George Cann was never vested in the unencumbered leasehold and was therefore never in a position to grant to Mrs Cann an interest in 7 Hillview which prevailed over that of the society. The interests that Mrs Cann took in 7 Hillview could only be carved out of George Cann's equity of redemption. In reaching this conclusion it is unnecessary to consider whether or not Mrs Cann was aware that George Cann would require to borrow money in order to finance the purchase of 7 Hillview. Contract/conveyance 53. Logically the first question on this appeal is whether the purchasers were in a position at the date of exchange of contracts to confer equitable proprietary rights on the vendors, as opposed to personal rights only. The question whether the analysis in Cann applies where the equitable interest of the occupier arises on exchange of contracts only comes into play if the vendors acquired proprietary rights at that time. It was the second question which exercised the courts below, and they decided that the analysis in Cann did apply where the equitable interest of the occupier arises on exchange of contracts. 54. Effect of contract 55. But I propose to deal with the logically prior question first, namely whether the vendors acquired proprietary rights on exchange of contracts. The lenders argued that, even if the decision in Cann did not have the result that the contract was part of the indivisible transaction, the vendors claims against the purchasers were purely personal, and not proprietary, until the purchasers obtained the legal estate on completion and the estoppel was then fed which, on the basis of Cann, would have been too late to give the vendors priority over the charges. 56. The vendors relied on the 2002 Act, section 116, which is headed Proprietary estoppel and mere equities and declares for the avoidance of doubt that, in relation to registered land, an equity by estoppel has effect from the time the equity arises as an interest capable of binding successors in title (subject to the rules about the effect of dispositions on priority). Their argument was that the 2002 Act expressly provided that their proprietary estoppel claims gave them proprietary rights, and that it is not necessary that the person who is estopped has a legal title. 57. They also supported their claim to proprietary rights by reliance on the long line of authority that following exchange of contracts the seller holds the property on trust for the purchaser. The argument was that (a) a person who has contracted to purchase has a proprietary interest and not a mere contractual right: Lysaght v Edwards (1876) 2 Ch D 499; (b) consequently, on exchange of contracts, the vendors became trustees for the purchasers; and (c) the purchasers were as a result able to confer on the vendors equitable interests in the properties carved out of their rights as purchasers. 59. 58. The purpose of section 116 of the 2002 Act was to make it clear that the rights which arose after detrimental reliance were proprietary even before they were given effect by the court: Explanatory Notes, paras 183 185; Law Com No 271 (2001), paras 5.29 5.31. Cf. Birmingham Midshires Mortgage Services Ltd v Sabherwal (1999) 80 P & CR 256, paras 24 31 per Robert Walker LJ. But section 116 is expressly subject to the priority rules in the 2002 Act, and takes the matter no further. It also begs the question as to when the equity arises as an interest capable of binding successors in title and probably assumes that it first arises (as it usually does) as against the legal owner who is estopped or who is bound by the equity. I accept the argument for the lenders that the unregistered interests which override registered dispositions under the 2002 Act, Schedule 3, paragraph 2, by virtue of section 29(2) of the 2002 Act, must be proprietary in nature, because: (1) the interest which is postponed to a registered disposition of a registered estate under section 29(1) is any interest affecting the estate; (2) by section 132(1) legal estate has the same meaning as in the Law of Property Act 1925, and a registered estate means a legal estate the title to which is entered in the register, other than a registered charge; (3) the effect of the Law of Property Act 1925, section 1 is that the only estates which can exist at law are an estate in fee simple and a term of years absolute and a limited range of other interests including a charge by way of legal mortgage; (4) by section 132(3)(b) references to an interest affecting an estate or charge are to an adverse right affecting the title to the estate or charge; (5) the effect of sections 23 and 24 is that only someone with owners powers, i.e. the registered proprietor or a person entitled to be registered as proprietor, can make a disposition, such as granting a lease. Consequently, the combined effect of sections 116 and 132 is that section 116 rights require a proprietary element to have any effect. 60. The question therefore arises whether a purchaser, prior to acquisition of the legal estate, can grant equitable rights of a proprietary character, as opposed to personal rights against the purchaser. Many of the cases on the nature of the purchasers interest after exchange of contracts, but before completion, were cited on this appeal, and I endeavoured at first instance in Englewood Properties Ltd v Patel [2005] 1 WLR 1961, paras 40 43 to deal with their effect. See also Turner, Understanding the Constructive Trust between Vendor and Purchaser (2012) 128 LQR 582. 62. 61. The position of the vendor as trustee has been variously described as: (1) something between what has been called a naked or bare trustee, or a mere trustee (that is, a person without beneficial interest), and a mortgagee who is not, in equity (any more than a vendor), the owner of the estate, but is, in certain events, entitled to what the unpaid vendor is, viz, possession of the estate and a constructive trustee: Lysaght v Edwards 2 Ch D 499, 506, 510, Sir George Jessel MR; or (2) constructively a trustee: Shaw v Foster (1872) LR 5 HL 321, 349, per Lord O'Hagan; (3) a trustee with peculiar duties and liabilities: Earl of Egmont v Smith (1877) 6 Ch D 469, 475, per Sir George Jessel MR; (4) a trustee in a qualified sense only: Rayner v Preston (1881) 18 Ch D 1, 6, per Cotton LJ; and (5) a quasi trustee: Cumberland Consolidated Holdings Ltd v Ireland [1946] KB 264, 269, per Lord Greene MR. It has frequently been said that a purchaser of land obtains rights which are akin to ownership: by Lord Cairns in Shaw v Foster (1872) LR 5 HL 321, 338, the purchaser was the real beneficial owner in the eye of a court of equity of the property; by Lord OHagan in the same case (at p 349), the ownership is transferred in equity to the purchaser, and the vendor is in progress towards being a trustee. In more modern times it has been recognised that the purchasers interest is a proprietary interest of a sort: Oughtred v IRC [1960] AC 206, 240, per Lord Jenkins. In Jerome v Kelly [2004] UKHL 25, [2004] 1 WLR 1409, para 32, Lord Walker made the point that beneficial ownership of the land is in a sense split between the seller and buyer on the provisional assumptions that specific performance is available and that the contract will in due course be completed In Shaw v Foster (at p 338) Lord Cairns said that a purchaser had not only the right to devise the property (under the equitable doctrine of conversion) but also the right to alienate it or charge it, and Lord OHagan said (at p 350) that the purchasers interest could be the subject of a charge or assignment, and that the sub assignee or encumbrancer could enforce his rights against the original vendor. 63. 64. But in the same case Lord Hatherley LC referred (at p 357) to the fiction of Equity which supposes the money to be paid away with one hand and the estate to be conveyed away with the other, and in the High Court of Australia Deane J said: it is both inaccurate and misleading to speak of the unpaid vendor under an uncompleted contract as a trustee for the purchaser . the ordinary unpaid vendor of land is not a trustee of the land for the purchaser. Nor is it accurate to refer to such a vendor as a trustee sub modo unless the disarming mystique of the added Latin is treated as a warrant for essential misdescription: Kern Corpn Ltd v Walter Reid Trading Pty Ltd (1987) 163 CLR 164, 192. The High Court of Australia has said that the description of the vendor as a trustee tends to conceal the essentially contractual relationship which, rather than the relationship of trustee and beneficiary, governs the rights and duties of the parties: Chang v Registrar of Titles (1976) 137 CLR 177, 190; Tanwar Enterprises Pty Ltd v Cauchi [2003] HCA 57, (2003) 217 CLR 315, para 53. 66. 65. But these are not cases dealing with the question whether a contract of sale can have a proprietary effect on parties other than the parties to the contract. It is true that the purchaser is given statutory rights to enforce the interests against third parties under a contract of sale by registration: the 2002 Act, sections 15(1)(b), 32, 34(1); Land Charges Act 1972, section 2(1), (4). But it does not follow that the purchaser has proprietary rights for all purposes. Thus in Inland Revenue Commissioners v G Angus & Co (1889) 23 QBD 579, 595, Lindley LJ quoted Lord Cottenham LC in Tasker v Small (1837) 3 My & C 63, 70, who said that the rule by which a purchaser becomes in equity the owner of the property sold applies only as between the parties to the contract, and cannot be extended so as to affect the interests of others. In Berkley v Poulett [1976] EWCA Civ 1, [1977] 1 EGLR 86, 93 Stamp LJ said (at para 36) that the vendor is said to be a trustee because of the duties which he has, and the duties do not arise because he is a trustee but because he has agreed to sell the land to the purchaser and the purchaser on tendering the price is entitled to have the contract specifically performed according to its terms. Nor does the relationship in the meantime have all the incidents of the relationship of trustee and cestui que trust. In that case Lord Poulett sold the Hinton St George Estate to X, and X sub sold the house and grounds to Y. Both transactions were subsequently completed. In an action by Y against the executors of Lord Poulett, the main question which subsequently arose was whether certain objets dart were fixtures or chattels. It was held that none of them was a fixture, but also by a majority (Goff LJ dissenting) that, even though Lord Poulett had notice of the sub contract between X and Y, Lord Poulett was not under a duty to Y to take reasonable care of the house because Lord Poulett did not hold the house as trustee for the sub purchaser Y. In my view it is implicit in this analysis, which I consider to be correct, that X did not obtain proprietary rights against Lord Poulett which he could pass to Y. 67. There are some cases in the Court of Appeal and at first instance (all decided in the early 1950s) which considered the effect on a mortgagee of a grant of tenancies by a purchaser after exchange of contracts but before completion of the sale and a mortgage of the property. Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 901 was a pre cursor of Cann, and was approved in that decision. Harman J decided that the conveyance and mortgage were one transaction, and there was no scintilla temporis between the time of the conveyance and the mortgage during which the purchaser had acquired sufficient estate to be able to perfect the purported grant of the tenancies. Prior to the conveyance, the purchaser only had an equitable interest in the property and the tenants only had personal rights against the purchaser: at p 903. 68. That decision was distinguished by the Court of Appeal in Universal Permanent Building Society v Cooke [1952] Ch 95 on the ground that the building societys charge in that case was executed a day later than the conveyance and there was nothing in the building societys short statement that the conveyance and the mortgage were part of a single transaction (at p 101). That is a surprising (and very formalistic) ground of distinction, since it is apparent from the statement of the facts (at p 96) that the mortgagor had applied for the mortgage two weeks before the contract of sale. But it was recognised that prior to completion the purchaser was only able to make a contract, a promise to the intended tenant: at p 103. In Woolwich Equitable Building Society v Marshall [1952] Ch 1 Danckwerts J distinguished Coventry Permanent Economic Building Society v Jones on the equally surprising ground that the charge to the Woolwich Building Society recited that the mortgagor was the estate owner in respect of the property. In Church of England Building Society v Piskor [1954] Ch 553 purchasers of leasehold premises were given possession before completion and purported to grant tenancies of part of the premises. The purchase was completed on the same day as the purchasers granted a legal charge to the building society. The Court of Appeal disapproved Coventry Permanent Economic Building Society v Jones and held that the assignment of the lease to the purchasers and the legal charge to the building society could not be regarded as one indivisible transaction. Consequently the tenancies by estoppel were fed on the acquisition of the legal estate by the purchasers and prior to the grant of the charge: at p 558, per Sir Raymond Evershed MR, and p 566, per Romer LJ. 69. 70. In Cann the decision in Church of England Building Society v Piskor was disapproved and, as I have said, Coventry Permanent Economic Building Society v Jones was approved: at p 93, per Lord Oliver and p 102, per Lord Jauncey. The decision in the Woolwich Equitable case was doubted by Lord Jauncey in Cann (at p 102), and I do not think that it or Universal Permanent Building Society v Cooke can stand with Cann. 71. But in each of these cases it was decided, or assumed, that, even if the tenant had equitable rights as against the purchaser, those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate. That is because where the proprietary right is claimed to be derived from the rights of a person who does not have the legal estate, then the right needs to be fed by the acquisition of the legal estate before it can be asserted otherwise than personally. In Cuthbertson v Irving (1859) 4 H & N 742 Martin B said, at pp 754 755: There are some points in the law relating to estoppels which seem clear. First, when a lessor without any legal estate or title demises to another, the parties themselves are estopped from disputing the validity of the lease on that ground; in other words a tenant cannot deny his landlords title, nor can the lessor dispute the validity of the lease. Secondly, where a lessor by deed grants a lease without title and subsequently acquires one, the estoppel is said to be fed, and the lease and reversion then take effect in interest and not by estoppel . 72. In Bell v General Accident Fire and Life Assurance Corp Ltd [1998] L & TR 1, Mummery LJ said (at p 12): the juristic basis and the legal effect of the estoppel doctrine were authoritatively expounded in the Court of Exchequer by Martin B in Cuthbertson v Irving in terms applicable to this case. The result is also consistent with the legal effect of the satellite doctrine of feeding the estoppel which applies when an interest in the land is acquired by the person deficient in title at the time of the grant from which the estoppel arose: so that, as Hale put it, by purchase of the land, that is turned into a lease in interest, which before was purely an estoppel: see Holdsworth's History of English Law, vol VII, p 246. 73. Thus in Watson v Goldsbrough [1986] 1 EGLR 265 licensees of land owned by the wifes parents agreed that an angling club could have fishing rights if they improved the ponds: the estoppel was fed when the licensees acquired the legal estate. It is true that in Lloyds Bank plc v Rosset [1989] Ch 350, 386, Nicholls LJ said (in the case of a common intention constructive trust) that prior to completion of the purchase the wife had some equitable interest in the property before completion, carved out of the husband's interest. But the decision of the Court of Appeal was reversed on the facts ([1991] 1 AC 107), although Lord Bridge seems to have contemplated (at p 134) that Mrs Rosset might have had a beneficial interest before completion. But the question whether a purchaser could grant proprietary equitable rights was not argued or decided. 74. The decision in Cann did not directly deal with this point but the conclusion that a purchaser of property cannot grant a proprietary right is strongly supported by the approach of Lord Oliver and Lord Jauncey. Lord Oliver said (at p 89) that prior to completion Mrs Cann had no interest in 7 Hillview, because she was not a party to the contract for the purchase of that property and if she had been led to believe that she would have an interest in and the right to occupy that property when George acquired it, at the stage prior to its acquisition she had no more than a personal right against him. Lord Jauncey said (at p 95) that Mrs Cann could not have acquired an equitable interest in 7 Hillview prior to completion because her rights derived from George and she was not a party to the contract of sale. 76. 75. Nor are the vendors assisted by two further arguments. First, they say that they can justify the existence of an equitable right in the property of which they were legal owners by analogy to the position of an unpaid vendor, who has a proprietary right in property of which he is the legal owner, namely a lien for the unpaid purchase price. In the rare case in which the legal estate is transferred before the purchase price is paid, it was accepted or assumed that the vendors lien could be an overriding interest for the purposes of section 70(1)(g) of the 1925 Act: London and Cheshire Insurance Co Ltd v Laplagrene Property Co Ltd [1971] Ch 499; UCB Bank plc v Beasley [1995] NPC 144; Barclays Bank plc v Estates and Commercial Ltd [1997] 1 WLR 415; Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381. It is not necessary to address the point on this appeal, but the position is probably the same under the 2002 Act; cf Law Com No 271, para 5.10. But I accept the lenders answer that there is no analogy in the present case with the vendors lien, which arises by operation of law and is the corollary of the purchasers equitable interest in the property: Capital Finance Co Ltd v Stokes [1969] 1 Ch 261, 279; Barclays Bank plc v Estates & Commercial Ltd [1997] 1 WLR 415, 420. 77. Secondly, the vendors say that the substance of the matter is that they did not sell their homes outright to the purchasers, but simply sold them subject to the rights to the leases which they had been promised, and that Cann should be distinguished on the basis that in a sale and leaseback transaction the purchaser in reality has no more than a reversionary interest subject to that leaseback. They rely on a decision of Megarry J at first instance, Sargaison v Roberts [1969] 1 WLR 951, in which the question was whether, for the purposes of the tax legislation then in force, a transfer by the taxpayer into a settlement of a farm and the simultaneous grant by the trustees to him of a lease resulted in the whole of the taxpayer's interest in the land being transferred to another person (which would have disentitled him to a tax allowance) or operated to reduce his interest from ownership of a freehold to ownership of a lease. Megarry J held that the effect of the transaction was that the taxpayers interest had been reduced from ownership of the freehold to ownership of a lease. I agree with Etherton LJ that the true nature of the transaction was that of a sale and lease back. Sargaison v Roberts is of no assistance since Megarry J made it clear (at p 958) that he was considering the interpretation of a United Kingdom taxing statute and not the technicalities of English conveyancing and land law. In the case of Mrs Scott, for example, the contract provided that the property was to be transferred with full title guarantee and vacant possession and a transfer in the normal form was executed. 78. 79. Consequently, in my judgment, the appeal should be dismissed on the principal ground that the vendors acquired no more than personal rights against the purchasers when they agreed to sell their properties on the basis of the purchasers promises that they would be entitled to remain in occupation. Those rights would only become proprietary and capable of taking priority over a mortgage when they were fed by the purchasers acquisition of the legal estate on completion, and then Cann would apply, with the effect that the acquisition of the legal estate and the grant of the charge would be one indivisible transaction, and the vendors would not be able to assert against the lenders their interests arising only on completion. An indivisible transaction? 80. It follows that the question whether the decision in Cann that conveyance and mortgage are one transaction also extends to include a case where the equitable interest is said to arise at the time of the contract of sale does not arise. If I am right on the main point, it is not easy to see how this question could arise in any future case, but I propose to express my view on it because it was the main question canvassed in the courts below and on this appeal. 81. The vendors say that Cann did not decide whether the indivisible transaction analysis applies where the equitable interest of the occupier arises on exchange of contracts, and that the answer is that the analysis does not apply. The lenders say that, even if an equitable interest arose on exchange of contracts, in any event the House of Lords has already decided that not only were the conveyance and the charge part of one indivisible transaction, but also that the contract (which had been exchanged some weeks before), conveyance and charge were indivisible. It is therefore necessary to consider whether (and if so, how) this point was dealt with in Cann. 82. The argument for Mrs Cann was that she had an interest from the time of exchange of contracts for the acquisition of 7 Hillview: her equitable interest must have commenced not later than 20 July 1984, when a specifically enforceable contract for the purchase of 7 Hillview was entered into (at p 66). Lord Oliver assumed (at p 89) that prior to completion George was estopped by his promise to keep a roof over her head from denying her right as against him to terminate her occupation of the property without her consent, but that is a reference to the estoppel which arose on the acquisition of 30 Island Road (as the reference to it not binding the Nationwide Building Society shows). He then goes on to say that Mrs Cann had acquired no rights in 7 Hillview prior to completion because she had not been a party to the contract for its purchase, and at the stage prior to its acquisition she had no more than a personal right against him. Later on he gives a hypothetical example which may suggest that he thought that the relevant reliance by Mrs Cann would have been vacating 30 Island Road rather than merely agreeing that it be sold. It is possible that Lord Jauncey (at p 95) looked at the matter in the same way. 83. There are two inter linked questions involved in this analysis. The first question was whether Mrs Cann had any rights at all against George in relation to 7 Hillview (as distinct from her rights in 30 Island Road) at the time of the contract. The second question was whether the contract, conveyance and legal charge were one indivisible transaction. I have already said that Lord Oliver and Lord Jauncey expressed the view that if Mrs Cann had rights against George in relation to 7 Hillview from the time of the contract, they were only personal rights. On the facts of that case it seems to me that the relevant reliance would have been agreement to the sale of 30 Island Road rather than ceasing occupation of the house on completion of the purchase of 7 Hillview. In Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 A agreed to purchase a business, including some premises in Bradford, from B for 160,000. B was to retain the use of the property until the whole of the principal money and interest due under the agreement had been paid. A raised 84. 80,000 by way of a secured loan from Nationwide and this was paid to B. The balance of 80,000 was left outstanding and secured by a second charge in favour of B against the property. The agreement, the transfer of the property, and the charges were all executed on the same day. A failed to pay B the balance of the purchase price and fell into arrears on the mortgage repayments. In possession proceedings by Nationwide, B sought to defend on the basis that he had an overriding interest in priority to Nationwides charge, namely (1) his vendors lien; and/or (2) the right to occupy given by the purchase agreement until payment of the price in full. The Court of Appeal decided that there was no vendors lien, primarily because it was given up in consideration of the rights to a second charge and occupation of the property until payment. It also decided that the right to occupy was purely contractual and gave rise to no interest in the land. But it was also decided that B did not have an overriding interest in any event, because, applying Cann (per Aldous LJ at p 389): the charges, the agreement and the transfer were all signed on the same day Thus, [Bs] right to occupation under clause 6, did not accrue prior to the creation of [Nationwides] charge. In Abbey National Building Society v Cann the House of Lords concluded that when a purchaser relied on a building society, such as [Nationwide], to enable completion, the transactions involved were one indivisible transaction and, therefore, there was no scintilla temporis during which the right to occupation vested free of [the] charge. The same reasoning is applicable to the facts of this case. On June 1, the contract, the transfer and the legal charges were completed. They formed an indivisible transaction and there was no scintilla temporis during which any right to occupation under clause 6 of the agreement vested in [B] which was free of [Nationwides] charge. Thus, the right given by clause 6 did not provide an overriding interest under section 70(1)(g) of the 1925 Act, even if the right was a proprietary right. [Counsel for B] submitted that that conclusion ignored the reality of the position and that at all times [B] was in occupation. However that submission ignores the reality of the legal position. [B] gave up his right to occupy as an unpaid vendor by signing the agreement and thereby obtained permission to occupy, which permission did not take effect prior to [Nationwides] charge. 85. In my judgment the decision of the Court of Appeal in Nationwide Anglia Building Society v Ahmed (1995) 70 P & CR 381 was correct. As a matter of principle, Aldous LJ was right to take the view that it is implicit in Cann that contract, conveyance and mortgage are indivisible. In the present case, as in Nationwide Anglia Building Society v Ahmed, the contract and conveyance were executed on the same day, but the analysis is not dependant on that. 86. There are some 900,000 domestic conveyancing transactions per year in England and Wales. In almost every case, the Law Societys Conveyancing Protocol is used. The current version is the 2011 edition, but it is not different in substance from that current (5th ed, 2005) when the transactions in this appeal were carried out. The current edition sets out all the steps from instructions (Stage A) (which include the provision of the sellers Property Information Form which will give details of who is occupying the property and indicate whether vacant possession will be given), submission of contract (Stage B), steps prior to exchange, including confirmation of completion date and ensuring the seller is aware of the obligation to give vacant possession (Stage C), exchange of contracts (Stage D), completion (Stage E), and post completion matters, including registration (Stage F). Prior to contract the buyers solicitor should check whether the buyer requires a mortgage, whether an application has been made and whether a mortgage offer has been made, and whether any mortgage conditions remain to be performed. On exchange of contracts the buyers solicitor sends the certificate of title and/or requisition of funds to the lender so that funds are available for completion. Prior to exchange of contracts the sellers solicitor submits to the buyers solicitor a contract bundle, including (inter alia) the draft contract incorporating the latest edition of the Standard Conditions of Sale, official copies of the Register and title plan, replies to inquiries with supporting documentation, searches and inquiries, and (for consideration) a draft transfer. 87. The contract of sale does, of course, have separate legal effects, but it would be wholly unrealistic to treat the contract for present purposes as a divisible element in this process. That is why in R v Waya [2012] UKSC 51, [2013] 1 AC 294 this court adopted the reasoning in Cann to hold that where the same solicitor acts for a borrower and a mortgage lender, and the mortgage advance is paid to the solicitor to be held in the solicitor's client account, until completion, to the order of the mortgage lender; and on completion the solicitor transfers the advance to the vendor's solicitor against an executed transfer: In the eyes of the law all these events occurred simultaneously (per Lord Walker and Hughes LJ, at para 50). The purchaser never acquired more than an equity of redemption (at para 53) and under the tripartite contractual arrangements between vendor, purchaser and mortgage lender, [the purchaser] obtained property in the form of a thing in action which was an indivisible bundle of rights and liabilities (at para 54). 88. On this appeal the court was provided with notes from the parties on the effect on conveyancing practice, and particularly on the inquiries which mortgage 89. lenders would have to undertake and on the increased risk from fraud, should the appeal succeed. I agree with the point made by Lady Hale in the course of argument that the courts duty is to apply the law irrespective of an unexpected impact on conveyancing practice and an adverse effect on the risks of secured lending. It is also important to emphasise that the scheme in the present case could not have worked if the solicitors for the vendors and the solicitors for the purchasers/lenders had complied with their professional obligations and proper and normal conveyancing practice. It is also to be noted that where a person, who might otherwise have rights which could be asserted against a mortgagee, agrees to funds being raised on the property by way of mortgage, the mortgagee will have priority: Cann (at p 94); Bristol & West Building Society v Henning [1985] 1 WLR 778; Paddington Building Society v Mendelsohn (1985) 50 P & CR 244. It would follow that, even if (contrary to my view) the vendors had had equitable rights of a proprietary nature against the purchasers arising on exchange of contracts, the mortgages would have taken priority. 90. Accordingly I would dismiss the appeal on the preliminary issue. Possession order 91. The final question is whether the remainder of Mrs Scotts undated Re Amended Defence and Counterclaim should have been struck out without it being tried on the facts. The point arises because it is said on behalf of Mrs Scott that her pleadings raise specifically the point that, by virtue of the lenders actual, constructive or imputed notice of the leases granted or intended to be granted to the purchasers, the lenders are estopped from denying that Mrs Scott was promised a lease and from relying on the provisions of the mortgage restricting the grant of leases. For the purposes of this appeal, Mrs Scott relies particularly on a letter (which was also written in some of the other cases) written by her solicitors to the solicitors for the purchaser/lenders, requiring them to inform the lenders that a sum of 40,000.00 was to be paid to UK Property Buyers (rather than NEPB) upon completion of the transaction from the proceeds of sale of the property, which is said to show that the sale was not an outright sale. 92. But Judge Behrens decided the third preliminary question against the vendors, namely, whether it was possible for the lenders priority to be adversely affected by notice of such promises as were made and the circumstances of the transaction by virtue of their agents knowledge: (a) if passed on, or (b) if not passed on to the lenders. 93. 94. 97. I agree with the Court of Appeal that the judge was entitled to take the view that any argument about the relevance of the lenders knowledge of the promises made by the purchasers as to the right of the vendors to remain in occupation after completion fell within the third preliminary issue, on which there has been no appeal. I would therefore dismiss the appeal. I would only add that I express the hope that the lenders will, before finally enforcing their security, consider whether they are able to mitigate any hardship which may be caused to the vendors. LADY HALE 95. I am reluctantly driven to agree that this appeal must fail for the reason given by Lord Collins: the purchaser was not in a position either at the date of exchange of contracts or at any time up until completion of the purchase to confer equitable proprietary, as opposed to merely personal, rights on the vendor. But this produces such a harsh result that I would like to add a few additional words of explanation. Given that conclusion, the second question discussed by Lord Collins, which is whether the contract should be seen as an indivisible transaction with the conveyance and the mortgage, does not arise and is unlikely ever to arise. However, I must also explain why, with great respect, I take a different view from Lord Collins on that question. Overriding interests: some preliminary remarks 96. It is important to bear in mind that the system of land registration is merely conveyancing machinery. The underlying law relating to the creation of estates and interests in land remains the same. It is therefore logical to start with what proprietary interests are recognised by the law and then to ask whether the conveyancing machinery has given effect to them and what the consequences are if it has not. Otherwise we are in danger of letting the land registration tail wag the land ownership dog. It is also important to bear in mind that we are here concerned with events which took place before title to the land was registered in the name of the nominee purchaser. There is, of course, as Lord Collins says at para 25, an important public policy interest in the security of registered transactions. But that does not mean that the fact that a transaction is registered should automatically give it priority over all other interests. The land registration scheme accepts, as did the system of unregistered conveyancing, that there are some interests in land which deserve protection from later dispositions even if they are not protected by registration. There is also an important public policy interest in the accuracy of the register, so as to justify the reliance which later purchasers and mortgagees place upon it. 98. Thus the basic rule in section 28(1) of the Land Registration Act 2002 is that Except as provided by sections 29 and 30, the priority of an interest affecting a registered estate or charge is not affected by a disposition of the estate or charge. By section 28(2), it makes no difference whether either the interest or the disposition is registered. Section 29(1) goes on to state: If a registrable disposition of a registered estate is made for valuable consideration, completion of the disposition by registration has the effect of postponing to the interest under the disposition any interest affecting the estate immediately before the disposition whose priority is not protected at the time of registration. Section 29(2)(a)(ii) provides that among the interests protected for the purpose of subsection (1) is an interest which falls within any of the paragraphs of Schedule 3. Falling within paragraph 2 of Schedule 3 is An interest belonging at the time of the disposition to a person in actual occupation, so far as relating to land of which he is in actual occupation. This is subject to a number of exceptions; the only relevant one for our purpose is (b) an interest of a person of whom inquiry was made before the disposition and who failed to disclose the right when he could reasonably have been expected to do so. It has never been in dispute that Mrs Scott was in actual occupation of the property at the time of the disposition to the nominee purchaser (and the contemporaneous mortgage to the lenders). Nor is it disputed that no inquiries were made of her personally before the disposition. So the only question in this case is, and has always been, whether she had an interest which belonged to her at the time of the disposition. 99. 100. Of course, the whole idea of overriding interests is unpopular with those who would like the register to be a complete record of everything which will affect the estate or charge that they are acquiring. But it has always been recognised that the register cannot be a complete record and that there are some unregistered interests which require and deserve protection. The 2002 Act did reduce the list of overriding interests from that contained in section 70(1) of the Land Registration Act 1925. But the rights of those in actual occupation of the land remained on the list. Pejorative adjectives such as notorious and much litigated do not assist the argument in this case. 101. Perhaps the most notorious example of litigation about the rights of those in actual occupation was Williams and Glyns Bank v Boland [1981] AC 487. In that case it was held that the beneficial interest of a wife who had contributed to the purchase of the matrimonial home in which she lived when her husband mortgaged it to the bank was an overriding interest within the meaning of section 70(1)(g) of the 1925 Act. As Lord Wilberforce (with whom Viscount Dilhorne, Lord Salmon and Lord Roskill agreed) pointed out, in registered conveyancing, the fact of occupation takes the place which actual or constructive notice occupied in unregistered conveyancing: In the case of registered land, it is the fact of occupation that matters. If there is actual occupation, and the occupier has rights, the purchaser takes subject to them (p 504E F). Later on, he repeated that the doctrine of notice has no application to registered conveyancing (p 508E). 102. It follows from that, and is clear from the wording of paragraph 2(b) of Schedule 3 to the 2002 Act (para 98 above), that the question of whether or not it was reasonable to expect the purchaser or lender to make inquiries of the person in actual occupation is irrelevant. The only question is whether they did so and what the answer was. It is worth emphasising this point, because it is to be expected that the vendor of residential property will be in occupation of it at the time of the disposition, and so there is nothing to give the purchaser or lender constructive notice of any other interest that she might have. But that is not the point. If the vendor does have an interest in the land, other than the one of which she is disposing, and a tenancy by estoppel could be an example, then the fact of her occupation at that time makes it an overriding interest. 103. Williams and Glyns Bank v Boland did cause some consternation in some quarters at the time. The Law Commission devoted a whole report to the implications (1982, Law Com No 115), but their recommendations were not enacted. It was discussed in their third report on Land Registration (1987, Law Com No 158), where a constructive way of balancing the competing interests involved was proposed. That solution too did not find favour with the legislators. Nevertheless, the overriding interests of those in actual occupation survived into the 2002 Act. The lending world had meanwhile learned to live with Boland, mainly by insisting that matrimonial homes were conveyed into the joint names of husband and wife. There is no warrant at all for seeking to cut down the scope of overriding interests by giving them a narrower interpretation than they would otherwise have under the underlying law of property. Can a prospective purchaser grant proprietary rights before completion? 104. The question, therefore, is whether a promise of the kind said to have been made here, made to the vendor by or on behalf of a prospective purchaser of land, is capable of giving the vendor a proprietary interest in the land, as opposed to a merely personal right against the purchaser, before the purchase is completed. On the face of it, the promises which were made here and on which Mrs Scott acted in giving up the ownership of her home, bore all the hallmarks of a proprietary estoppel. But is such an estoppel capable of being an interest in land before the person making the promise has become its owner? 105. The best case which can be cited in favour of the vendors argument that it is so capable is the decision of the Court of Appeal in Lloyds Bank v Rosset [1989] Ch 350. Mrs Rosset had done work on the house before it was conveyed to her husband and contemporaneously charged to the Bank. Nicholls LJ was unable to accept that the wife had no beneficial interest in the property before completion (p 385F). The husband had a specifically enforceable contract to purchase the property and hence he had an equitable interest in it. The wife had some equitable interest in the property before completion, carved out of the husbands interest just described (p 386A). Both Mustill and Purchas LJJ agreed with him on this point. 106. When Rosset reached the House of Lords, it was held that the judges factual findings did not justify a finding that she had any beneficial interest in the property. Lord Bridge remarked that, had she become entitled to a beneficial interest prior to completion it might have been necessary to examine a variant of the question regarding priorities which your Lordships have just considered in Abbey National Building Society v Cann: see [1991] 1 AC 107, 134B. Thus it can well be said that their Lordships did not allow the appeal on the basis that the Court of Appeal were wrong on this point; they seem to have proceeded on the basis that the Court of Appeal were right, because otherwise no question of priorities would have arisen. 107. But that would indeed be odd, as the same appellate committee gave judgment in Abbey National Building Society v Cann on the very same day on which they gave judgment in Rosset. And in Cann they were well aware of the series of cases, beginning with Coventry Permanent Economic Building Society v Jones [1951] 1 All ER 951 (Coventry), Woolwich Equitable Building Society v Marshall [1952] Ch 1 (Woolwich), Universal Permanent Building Society v Cooke [1952] Ch 95 (Cooke), and ending with Church of England Building Society v Piskor [1954] Ch 553 (Piskor). These were all cases in which a person who had contracted to buy residential property granted a tenancy of all or part of the premises to another person who moved in before the contract was completed. The purchasers having mortgaged the property at or shortly after completion, the question was whether the mortgagees were bound by the tenancies. 108. All of them depended upon what Harman J in Coventry, at p 903, described as an old doctrine (none the worse for being old) that if A purports to create a lease in Bs favour, A having no estate sufficient to support the lease, then, if A afterwards acquires a sufficient estate, he will be bound not to deny that he always had a good right to create the tenancy and the lease is said to take effect by estoppel. This is the doctrine described as among the clear points about estoppel at first instance in Cuthbertson v Irving (1859) 4 Hurl & N 742, 157 ER 1034 (affirmed on appeal at (1860) 6 Hurl & N 135, 158 ER 56): neither the lessee nor the lessor can dispute one anothers title and if the lessor without a legal estate later acquires one, the estoppel is fed. 109. In each of these four cases, the interest of the purchaser between contract and completion was considered not sufficient to support the lease. Hence the question was whether there was a moment in time between the completion of the purchase and the grant of the mortgage the so called scintilla temporis in which the purchaser acquired the unencumbered legal estate and so the estoppel was fed before the purchaser disposed of it by way of mortgage. In Coventry, Harman J held that there was no such scintilla, the conveyance and the mortgage being (for this purpose at least) indivisible. In Woolwich, Dankwerts J held that there was such a scintilla and hence the tenancy took priority over the mortgage. In Cooke and Piskor, the Court of Appeal, led by Evershed MR, adopted the Woolwich approach. In Cann, of course, the House of Lords held that Piskor was wrongly decided and that Harman J had adopted the correct approach in Coventry. It follows that Woolwich was also wrongly decided as in all these three cases the conveyance and the mortgage were virtually contemporaneous and the mortgage loan was required to complete the transaction. 110. It does not necessarily follow that Cooke was wrongly decided. As Lord Oliver explained in Cann, at p 92: Of course, as a matter of legal theory, a person cannot charge a legal estate that he does not have, so that there is an attractive legal logic in the ratio in Piskors case. Nevertheless, I cannot help feeling that it flies in the face of reality. The reality is that, in the vast majority of cases, the acquisition of the legal estate and the charge are not only precisely simultaneous but indissolubly bound together. The acquisition of the legal estate is entirely dependent upon the provision of funds which will have been provided before the conveyance can take effect and which are provided only against an agreement that the estate will be charged to secure them. In Cooke, the mortgage was the day after the conveyance and there was no evidence that they were one and the same transaction, or that the advance had been handed over to the vendor rather than the purchase being initially funded in some other way, although the mortgage was applied for before completion. It may be that the conveyance and the mortgage were in fact indivisible. It may be that they were not. Cooke was not cited to their Lordships in Cann, but it must have been known to them, because it features prominently in Piskor, and it was not overruled or even mentioned in their opinions. 111. But that is by the way. None of this scintilla temporis debate would have been necessary if the purchaser of land had been capable of creating a proprietary interest in that land before completion, which would be binding upon a lender whose mortgage could only be granted on or after completion. And if a tenancy cannot be carved out of the equitable interest which the purchaser has before completion, it is hard to see how the sort of beneficial interest which Mrs Rosset was claiming could be so carved out. So it is odd, to say the least, that the House of Lords appears to have assumed that it could. In any event, we are here dealing with a promise which is much closer to a tenancy by estoppel than to the sort of beneficial interest claimed by Mrs Rosset. My provisional conclusion, therefore, is that under the ordinary law of property the nominee purchaser in this case could not give Mrs Scott a tenancy which would bind the lenders in this case before her purchase of the land was completed. 112. How does this provisional conclusion sit with the scheme of the Land Registration Act 2002? Sections 28 and 29, dealing with priority, refer to interests affecting the estate (see para 98 above). The interests which are protected for the purpose of section 29(1) are interests affecting the estate immediately before the disposition in question, in this case the mortgage. Section 132(3)(b) makes it clear that references to an interest affecting an estate are to an adverse right affecting the title to the estate . In other words, there has to be an estate before there can be an interest which affects it. The 2002 Act does not define estate but legal estate has the same meaning as in the Law of Property Act 1925, section 1(1) of which contains the most basic rule of English land law: The only estates in land which are capable of subsisting or of being conveyed or created at law are (a) An estate in fee simple absolute in possession; (b) A term of years absolute. The interest of the purchaser before completion, however it may be characterised, is not a legal estate. Hence the nominee purchaser could not create an interest which was capable of being a protected interest for the purpose of the 2002 Act until she had acquired the legal estate. This is entirely consistent with and confirms the provisional conclusion reached earlier. 113. There is a further complication. There is a gap between any transaction and its registration. The 2002 Act, confirming Cann on this point, makes it clear that the relevant date, when the person must be in actual occupation and have a proprietary interest in the land, is the time of the disposition over which priority is claimed: see Schedule 3, paragraph 2. Any unprotected interest affecting the estate immediately before the disposition is postponed to the interest under the disposition: see section 29(1). The relevant disposition for this purpose is the mortgage. But neither the mortgage nor the transfer to the purchaser can operate at law until they are registered: see section 27(1). Until registration, the purchaser (and indeed the mortgagee) have only equitable interests. This might suggest that rights granted by the purchaser to an occupier could not be fed until registration. However, this is machinery, not substance. Assuming that all relevant registration requirements are met, the purchaser has now acquired an absolute right to the legal estate (and the mortgagee an absolute right to the charge). Her interest is of a different order from that of a purchaser before completion, who has the contractual right to have the property conveyed to her but may never in fact get it. 114. Were there to be a scintilla temporis between the conveyance and the grant of the mortgage, the vendors tenancy by estoppel would indeed become an overriding interest. But it has not been argued in this case that Abbey National Building Society v Cann was wrongly decided. It has been accepted that, at least in the standard case where completion and mortgage take place virtually simultaneously and the mortgage is granted to secure borrowings without which the purchase would not have taken place, completion and mortgage are one indivisible transaction and there is no scintilla temporis between them. We have been invited to distinguish Cann but not to bury it. Are contract, transfer and mortgage indivisible? 115. That simple analysis is sufficient to determine this case, without any resort to the much more controversial proposition that, not only are the conveyance and the mortgage one indivisible transaction for this purpose, but they are now to be joined by the contract as well. Whatever ones view of the decision in Cann (and Lord Oliver acknowledged, at p 92, that the contrary view had an attractive logic to it) it does make sense. The conveyance vests the legal estate in the purchaser who instantly mortgages it to the lender. All the purchaser ever acquires is the equity of redemption. But that may not be true if the mortgage takes place sometime after the conveyance: there may be a period during which the purchaser owns the land without encumbrances. Not all conveyances and mortgages are indivisible: it depends upon the facts, which is why Cooke may not have been wrongly decided. 116. The lender is not a party to the contract to sell the land to the purchaser. This is an entirely separate matter between vendor and purchaser in which the lender is not involved. These days it may well take place on the same day as the conveyance and mortgage but it often takes place days, weeks or even months beforehand. In the olden days, it was common for vendor and purchaser to instruct the same solicitor. But that is no longer permitted, as it is recognised that they may well have a conflict of interest. The vendor may not know, and certainly has no right to know, how the purchaser proposes to fund the purchase and whether or not it is planned to mortgage the property immediately on completion. Indeed, the purchaser, perhaps particularly a corporate purchaser, may not know precisely where the money is coming from at the time when the contract is made. There may be a variety of options available and the choice between them not yet made. 117. Under the Law Societys Conveyancing Protocol (the current edition was published in 2011), the purchasers solicitor should check whether the purchaser requires a mortgage, whether a mortgage application and offer have been made and whether any conditions remain to be performed. It is only sensible to do so before the purchaser client is legally committed to the purchase. The vendor obviously also has an interest in knowing whether the purchaser will be good for the money. The Protocol advises the vendors solicitor to request details of the purchasers funding arrangements before exchange of contracts, but the purchasers solicitor cannot disclose the information without the clients consent. The Protocol simply advises him to consider recommending disclosure. Even if the vendor does know that the purchaser proposes to borrow money to fund the purchase, she will not know the precise terms of any proposed mortgage. Indeed the purchaser may not know them at the time of the contract. Mrs Scott did not know that the nominee purchaser proposed to mortgage her home to the Bank, nor did she know that the mortgage would prohibit the granting of the tenancy which she had been promised. 118. Nor will the mortgagee necessarily know the precise terms of the contract of sale. The seller will of course do so. Nowadays it is common for purchaser and lender to be represented by the same solicitor or conveyancer, but it is not obligatory, and there is obviously a potential conflict in a situation such as this. The Council of Mortgage Lenders Handbook provides that Unless otherwise stated in your instructions, it is a term of the loan that vacant possession is obtained. The contract must provide for this. If you doubt that vacant possession will be given, you must not part with the advance and should report the position to us (para 6.5.1). Existing and proposed lettings should be disclosed to the lender (paras 6.6.1 and 6.6.2). Under the Protocol, on exchange of contracts the purchasers solicitor sends the certificate of title and/or requisition of funds to the lender, or to the lenders solicitor if they are separately represented, in order that the funds will be available to complete the purchase. The certificate of title set out in Appendix F to the 2011 Protocol confirms that the contract of sale provides for vacant possession on completion. It also undertakes not to part with the funds if it comes to the conveyancers notice that the property will be occupied at completion otherwise than in accordance with the lenders instructions. All of this would not be necessary if the lender were a party to the contract of sale or otherwise automatically aware of its terms. 119. Thus in no sense is this a tripartite transaction, to which vendor, purchaser and lender are all party. Lord Walker and Hughes LJ cannot have meant that it was when they referred to the tripartite contractual arrangements between vendor, purchaser and mortgage lender in R v Waya [2012] UKSC 51, [2013] 1 AC 294, para 53. Waya was in any event concerned with the true construction of the arrangements between the purchasing borrower and the lender for the purpose of defining the benefit which the borrower had obtained from the lender having made a false statement in his mortgage application form. The contract between vendor and purchaser did not come into it. 120. I am afraid that I cannot see how it is implicit in the rejection of Piskor by the House of Lords in Cann that the contract of sale was part of the indivisible transaction. I understand, of course, that the ratio of Cann is limited to those cases where the purchaser requires the loan in order to complete his purchase. In that sense, the contract of sale is a necessary pre cursor to the conveyance and mortgage. But that does not explain why they are indivisible, nor does it explain what is meant by indivisibility in this context. If what is meant is that the purchaser only ever acquires an equity of redemption, out of which she is not able at completion to carve proprietary interests which are inconsistent with the terms of the mortgage, then to talk of the indivisibility of the contract adds nothing to the Cann analysis. It is still necessary to decide whether the purchaser can confer proprietary rights before completion. If what is meant is that the purchaser cannot do so, then it adds nothing to the analysis of the first question rehearsed earlier. The risk is that to talk of an indivisible transaction will not only fly in the face of the facts but also create confusion. Will it be taken, for example, to prevent a vendor from creating overriding interests between contract and conveyance? 121. In Nationwide Anglia Building Society v Ahmed and Balakrishnan (1995) 70 P & CR 381, the vendor agreed to sell his business, including its freehold premises, machinery, fixtures, fittings and vehicles, to the purchaser for 160,000. The vendor was prepared to leave up to 80,000 of the purchase price unpaid on completion. Hence the contract of sale provided that the vendor should have a first charge over the machinery, fixtures, fittings and vehicles and a second charge over the premises after the creation of a first charge to secure the intended mortgage loan. The contract also provided that the vendor should have a full set of keys and the use of an office at the property. All this duly happened. The Building Society provided a loan of 80,000 and was granted a first charge over the property. 80,000 remained owing to the vendor, who was granted a second charge over the property and a first charge over the chattels. He was also given the keys and allowed to use the office and therefore remained in actual occupation of the premises. The purchaser defaulted on the loan and the Building Society sought possession. The vendor argued, first, that his unpaid vendors lien was an overriding interest; the Court of Appeal held that the lien had been given up in return for the rights obtained under the agreement. The vendor argued, second, that the licence to occupy the room was an overriding interest; the Court of Appeal held that this was a mere contractual right and not a proprietary interest. The Court of Appeal did go on to say that, because the contract, the transfer and the legal charges were all completed on the same day, they formed an indivisible transaction and there was no scintilla temporis during which any right to occupation vested in the [vendor] which was free of the [lenders] charge (p 389). That observation was clearly not necessary for the decision, because the Court had already rejected the claimed overriding interests. It may have made factual sense in that particular case, as the transactions all took place on the same day and each of the participants knew what the terms of the arrangement were. It cannot, in my view, be extrapolated into a general proposition applicable to all ordinary domestic conveyancing transactions. Conclusion 122. This case has been decided on the simple basis that the purchaser of land cannot create a proprietary interest in the land, which is capable of being an overriding interest, until his contract has been completed. If all the purchaser ever acquires is an equity of redemption, he cannot create an interest which is inconsistent with the terms of his mortgage. I confess to some uneasiness about even that conclusion, for two reasons. First, Cann was not a case in which the vendor had been deceived in any way or been made promises which the purchaser could not keep. Should there not come a point when a vendor who has been tricked out of her property can assert her rights even against a subsequent purchaser or mortgagee? Second, Cann was not a case in which the lenders could be accused of acting irresponsibly in any way. Should there not come a point when the claims of lenders who have failed to heed the obvious warning signs that would have told them that this borrower was not a good risk are postponed to those of vendors who have been made promises that the borrowers cannot keep? Innocence is a comparative concept. There ought to be some middle way between the all or nothing approach of the present law. I am glad, therefore, that the Law Commission have included a wide ranging review of the 2002 Act in their recently announced Twelfth Programme of Law Reform (2014, Law Com No 354), which is to include the impact of fraud. LORD WILSON AND LORD REED 123. We agree that this appeal should be dismissed for the reasons given by Lord Collins and Lady Hale. On the point on which they disagree, the indivisibility of the contract from the conveyance and the mortgage, which is not part of the reasons for the decision, we agree with Lady Hale. The warrant of possession was suspended and Mrs Scott was joined as a defendant in the possession proceedings so that she could argue that she had an overriding interest under the 2002 Act. It is impossible not to feel great sympathy with Mrs Scott and the former home owners in her position, who may have been not only the victims of a fraud which tricked them out of their homes, but also of unprofessional and dishonest behaviour by the solicitors appointed to act for them. They may have claims against the Solicitors Compensation Fund, but the fact remains that they may lose their homes if they do not succeed on this appeal.

This is an appeal in a test case arising from sale and rent back transactions in the north east of England. Home owners like the appellant, Mrs Scott, were persuaded to sell their properties to purchasers who promised them the right to remain in their homes for years as tenants after the sale. The purchasers bought the homes with the assistance of mortgages from lenders such as the respondents, who were unaware of the promises made to the home owners. When the purchasers defaulted on the mortgages, possession proceedings were brought by the lenders. The issue arising in this appeal is whether the home owners have any rights entitling them to remain in occupation of their homes, in addition to any claims they may have against the purchasers who may have defrauded them and their legal advisers. Mrs Scott agreed in 2005 to sell her house to an agent for North East Property Buyers (NEPB) at a significant undervalue, in return for the right to remain in her home indefinitely as a tenant at a discounted rent, with the prospect of further capital sums after ten years. The nominee purchaser for NEPB, Ms Wilkinson, obtained a buy to let interest only mortgage from the respondent (Southern Pacific) on condition that only assured shorthold tenancies of up to one year could be granted and on the basis that there were no existing tenancies. In breach of the terms of the mortgage a two year tenancy was granted to Mrs Scott four days after completion of the sale. Three years later Mrs Scott discovered that a possession order had been made on 17 March 2009 in favour of Southern Pacific, following defaults by Ms Wilkinson on the mortgage. Mrs Scott was joined as a defendant to the possession proceedings and argued that she had an equitable interest in the property from the moment of exchange of contracts, which amounted to an unregistered interest given priority by section 29(2)(a)(ii) of, and Schedule 3, paragraph 2 to, the Land Registration Act 2002 (the 2002 Act) over the lenders charges. The courts below determined as a preliminary issue that she had not. Two questions arose: (i) whether Ms Wilkinson had been in a position at the exchange of contracts to confer equitable proprietary rights on Mrs Scott, as opposed to personal rights only, and (ii) whether, even if she had, the transaction of acquiring the legal estate and granting the charge was one indivisible transaction so that Mrs Scott could not assert against Southern Pacific an equitable interest which had only arisen on completion, in accordance with the decision of the House of Lords in Abbey National Building Society v Cann [1991] 1 AC 56 (Cann). The Supreme Court unanimously dismisses the appeal. Lord Collins, with whom Lord Sumption agrees, finds against Mrs Scott on both issues. Lady Hale, with whom Lord Wilson and Lord Reed agree, holds that the appeal must fail because Ms Wilkinson could not confer equitable proprietary rights on Mrs Scott at any time before completion of the purchase. On this basis the second issue does not arise, but they would have taken a different view on the indivisibility of the transaction had it done so. One of the main objectives of land registration is to create as complete a record of title as possible. Overriding interests, to which the land is subject but are not apparent from the register, are an obstacle to this, but the interests of occupiers continue to be protected in the 2002 Act [36]. The unregistered interests which override registered dispositions under the 2002 Act must be proprietary in nature [59]. A purchaser under a contract of sale is given statutory rights to enforce his or her interest against third parties by registration, but it does not follow that the purchaser can grant proprietary rights [65]. Mrs Scott acquired no more than a personal right against Ms Wilkinson when she agreed to sell her house on the basis of the promise made to her that she could remain in occupation and this is the principal ground on which her appeal fails. Her rights only became proprietary when Ms Wilkinson acquired the legal estate, at which time the grant of the charge in favour of Southern Pacific also took effect as part of one indivisible transaction. Accordingly, the lenders rights are not subject to Mrs Scotts right to occupation [79]. It is not therefore necessary to decide whether the decision in Cann applies to a proprietary equitable interest arising at the time of a contract of sale and it is difficult to see how this question could arise in any future case [80]. The justices do, however, express their views on this as it was the main question canvassed in the courts below and at the hearing. Lord Collins considers that it was implicit in Cann that not just the conveyance and mortgage, but also the contract, were all indivisible parts of the transaction. This does not depend on execution of all three on the same day [85]. Thus even if Mrs Scott had had equitable rights of a proprietary nature against Ms Wilkinson arising on exchange of contracts, the mortgage would have taken priority [89]. Lady Hale does not agree that the finding of an indivisible transaction in Cann extends to the contract of sale, and to include the contract would create confusion [120]. She acknowledges that the decision on the principal ground in the appeal produces a harsh result [95] and is uneasy with the all or nothing approach of the present law. She is glad that the Law Commission is now subjecting the 2002 Act to a wide ranging review, to include the impact of fraud [122].

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The specific issue raised by this appeal is whether, following receipt of a statutory notice from an inspector of taxes to produce documents in connection with its tax affairs, a company is entitled to refuse to comply on the ground that the documents are covered by legal advice privilege (LAP), in a case where the legal advice was given by accountants in relation to a tax avoidance scheme. The more general question raised by this issue is whether LAP extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far LAP thereby extends, or should be extended. The statutory provisions applicable in this case The statutory provisions in force at the time during which the events giving rise to the present proceedings took place were in the Taxes Management Act 1970 (TMA). All references in this judgment to sections are to sections of that Act, unless the contrary is stated. Section 20(1)(a) provided that an inspector of taxes may by notice in writing require a person to deliver to him such documents as (in the inspectors reasonable opinion) contain, or may contain, information relevant to (i) any tax liability to which that person is or may be subject, or (ii) the amount of any such liability. Section 20(3) extended this power to require any other person to deliver or make available such documents to an inspector. By virtue of section 20(7), an inspector needed the consent of the special or general commissioners before serving a notice under either subsection. It was established by R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563 (Morgan Grenfell) that the provisions of section 20 could not be invoked to force anyone to produce documents to which LAP attached. Lord Hoffmann at paras 7 and 9 said that a statute could only remove such a fundamental human right if it expressly stated that it was doing so, or if the intention appear[ed] by necessary implication, and, as Lord Hobhouse emphasised at para 45, [a] necessary implication is a matter of express language and logic not interpretation. Section 20A, inserted by the Finance Act 1976 (the 1976 Act), empowered an inspector to call for documents to be produced by a person who had stood in relation to others as a tax accountant and who had been convicted of an offence relating to tax or had had a penalty imposed on him under section 99. Section 20D(2), also inserted by the 1976 Act, explained that a person stands in relation to another as tax accountant when he assists the other in the preparation of returns or accounts to be made or delivered by the other for any purpose of tax . Section 20B was also inserted by the 1976 Act (and was amended in 1988, 1989 and 1990). Section 20B(1) required an inspector, before serving a notice under section 20(1) or (3) on any person, to give that person a reasonable opportunity to deliver (or make available) the documents in question . Section 20B also included the following subsections: (8) A notice under section 20(3) or section 20A(1) does not oblige a barrister, advocate or a solicitor to deliver or make available, without his clients consent, any document with respect to which a claim to professional privilege could be maintained. (9) Subject to subsection (11) below, a notice under section 20(3) (a) does not oblige a person who has been appointed as an auditor for the purposes of any enactment to deliver or make available documents which are his property and were created by him or on his behalf for or in connection with the performance of his functions under that enactment, and (b) does not oblige a tax adviser to deliver or make available documents which are his property and consist of relevant communications. (10) In subsection (9) above relevant communications means communications between the tax adviser and (a) a person in relation to whose tax affairs he has been appointed, or (b) any other tax adviser of such a person, the purpose of which is the giving or obtaining of advice about any of those tax affairs; and in subsection (9) above and this subsection tax adviser means a person appointed to give advice about the tax affairs of another person (whether appointed directly by that other person or by another tax adviser of his). (11) subsection (9) above shall not have effect in relation to any document which contains information explaining any information, return, accounts or other document which the person to whom the notice is given has, as tax accountant, assisted any client of his in preparing for, or delivering to, the inspector or the Board. Section 20BA was inserted by the Finance Act 2000 (the 2000 Act), and it extended the power granted by section 20 to make an order for the delivery of documents by any person who appears to have such documents in his possession or power. Paragraph 5(1) of Schedule 1AA, also inserted by the 2000 Act, exempted from the ambit of section 20BA items subject to legal privilege, which were defined in para 5(2) as: (a) communications between a professional legal adviser and his client or any person representing his client made in connection with the giving of legal advice to the client; (b) communications between a professional legal adviser and his client or any person representing his client or between such an adviser or his client or any such representative and any other person made in connection with or in contemplation of legal proceedings and for the purposes of such proceedings; and (c) items enclosed with or referred to in such communications and made (i) in connection with the giving of legal advice . These various provisions of TMA have now been replaced by provisions contained in section 113 of, and Schedule 36 to, the Finance Act 2008 (the 2008 Act). While there are differences between the regime in TMA and that in the 2008 Act, they are of no significance for present purposes. Paragraph 23 of Schedule 36 to the 2008 Act, which effectively replaces section 20B(8), provides that: (1) An information notice does not require a person (a) to provide privileged information, or (b) to produce any part of a document that is privileged. (2) For the purpose of this Schedule, information or a document is privileged if it is information or a document in respect of which a claim to legal professional privilege, or (in Scotland) to confidentiality of communications as between client and professional legal adviser, could be maintained in legal proceedings. the In 2004, international And paragraphs 24 to 26 of Schedule 36 to the 2008 Act contain provisions relating to communications with auditors and with tax advisers, which are similar to those in subsections (9) to (11) of section 20B. The factual and procedural background to this appeal firm of chartered accountants, PricewaterhouseCoopers (PwC), devised a marketed tax avoidance scheme (the scheme). In accordance with the requirements of Part 7 of the Finance Act 2004, PwC disclosed the scheme to the Commissioners for Inland Revenue, or Her Majestys Revenue and Customs (HMRC) as they became a year later and as I will refer to them. At about that time the Prudential group of companies instructed PwC to advise them in connection with certain overseas holdings, and PwC identified that the scheme could be adapted for their benefit. Thereafter the Prudential group implemented the scheme, which involved a series of transactions (the Transactions). The details of the scheme and the Transactions do not matter for present purposes. It is enough to say that the aim of the scheme was to give rise to a substantial tax deduction in Prudential (Gibraltar) Ltd, a subsidiary company of Prudential plc, which could then be set off against the profits of that company, which profits were ordinarily chargeable to corporation tax in this country. Mr Pandolfo, the inspector of taxes responsible for this aspect of the Prudential groups tax liabilities, considered it necessary to look into the details of the Transactions (for reasons which are not challenged). To that end, he served notices under section 20B(1) on Prudential (Gibraltar) Ltd and Prudential plc (together Prudential) giving them the opportunity to make available specified classes of documents in relation to the Transactions prior to his serving notices under section 20(1) and (3). Prudential disclosed many of the documents requested by Mr Pandolfo, but refused to disclose certain documents (the disputed documents) on the ground that Prudential was entitled to claim legal advice privilege in respect of them. Mr Pandolfo considered that questions were raised by the documents which were disclosed, and he sought authorisation from the Special Commissioners under section 20(7) to require Prudential to disclose the disputed documents. Such authorisation was given, and, on 16 November 2007, Mr Pandolfo served notices under section 20(1) and (3) on Prudential (Gibraltar) Ltd and Prudential plc respectively, requiring disclosure of the disputed documents. Prudential then issued the present application for judicial review challenging the validity of those notices on the ground that they sought disclosure of documents which related to the seeking (by Prudential) and the giving (by PwC) of legal advice in connection with the Transactions, which were therefore said to be excluded from the disclosure requirements of section 20 by virtue of LAP, in accordance with the decision of the House of Lords in Morgan Grenfell. That application came before Charles J, who rejected it on the ground that, although the disputed documents would have attracted LAP (and would have been thereby excluded from the disclosure requirements of section 20) if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer. His decision, [2009] EWHC 2494 (Admin), was upheld, substantially for the same reasons, by the Court of Appeal (Mummery, Lloyd and Stanley Burnton LJJ), [2010] EWCA Civ 1094. (Both decisions are now reported at [2011] QB 669.) Prudential now appeal to this court. Legal advice privilege Where legal professional privilege (LPP) attaches to a communication between a legal adviser and a client, the client is entitled to object to any third party seeing the communication for any purpose, unless (i) the client has agreed or waived its right, (ii) a statute provides that the privilege can be overridden, (iii) the document concerned was prepared for, or in connection with, a nefarious purpose, or (iv) one of a few miscellaneous exceptions applies (eg in a probate case where the validity of a will is contested). As Lord Carswell explained in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 (Three Rivers), para 105, LPP is a single integral privilege, whose sub heads are legal advice privilege and litigation privilege. This case is concerned with the first of those subheads, legal advice privilege (LAP). In summary terms, as is common ground on this appeal, LAP applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice, i.e. advice which relates to the rights, liabilities, obligations or remedies of the client either under private law or under public law Three Rivers (No 6), [2005] 1 AC 610, para 38, per Lord Scott. The development and rationale of LAP are explained in terms which I could not begin to improve on by Lord Sumption in paras 115 to 121 below. In modern times, LPP, and more particularly LAP, have been fully considered and refined in a number of authoritative decisions, which speak for themselves. Particularly as they throw no direct light on the issue thrown up by this appeal, it is only necessary to identify three points which emerge from them before turning to the issue itself. First, LAP exists to ensure that there is what Justice Rehnquist referred to in the Supreme Court of the United States as full and frank communication between attorneys and their clients, which promote[s] broader public interests in the observance of law and administration of justice Upjohn Co v United States (1981) 449 US 383, 389, quoted by Lord Scott in Three Rivers (No 6) at para 31. As Lord Scott went on to explain at para 34, the principle that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers legal skills , should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else is founded upon the rule of law. Secondly, LAP exists solely for the benefit of the client. As Bingham LJ said in Ventouris v Mountain [1991] 1 WLR 607, 611, the expression legal professional privilege is unhappy in so far as it suggests that the privilege is that of the legal profession, when it is the client who enjoys the privilege. Thus, as Lord Hoffmann pointed out in Morgan Grenfell at para 37, [i]f the client chooses to divulge the information, there is nothing the lawyer can do about it. Thirdly, LAP is a common law principle, which was developed by the judges in cases going back at least to the 16th century see Berd v Lovelace (1577) Cary 62, which, together with subsequent cases, is discussed in the opinion of Lord Taylor of Gosforth CJ in R v Derby Magistrates Court, Ex p B [1996] AC 487, 504 505. As Lloyd LJ said in the Court of Appeal at [2011] QB 669, 709, para 30, LAP and its rationale was probably first coherently characterised in a judgment by Lord Brougham LC in Greenough v Gaskell (1833) 1 My & K 98, 102 103. (Litigation privilege seems to have developed rather later see per Lord Carswell in Three Rivers (No 6), para 96.) The issue on this appeal This appeal is concerned with the breadth of LAP, in the sense of the types of advisers with whom communications can attract LAP. The particular issue on this appeal is whether LAP should attach to communications passing between chartered accountants and their client in connection with expert tax advice given by the accountants to their client, in circumstances where there is no doubt that LAP would attach to those communications if the same advice was being given to the same client by a member of the legal profession. The case advanced by Lord Pannick QC for Prudential, supported by Ms Patricia Robertson QC for the Institute of Chartered Accountants for England and Wales, was that this court should hold that LAP does attach to such communications. This case is based on the proposition that LAP is a common law right created by the judges, which should be applied, and if necessary extended, so as to accord with the principles which underlie and justify the right. More particularly, it is said that, given that LAP is justified by the rule of law, and that it exists for the benefit of a client who seeks and receives legal advice, for instance on its tax affairs, there is no principled basis upon which it can be restricted to cases where the adviser happens to be a member of the legal professions, as opposed to a qualified accountant. This point was said to be reinforced by reference to relatively modern developments, in particular the fact that the great majority of legal advice on taxation matters is now given by accountants rather than by lawyers. In addition reliance was placed on (i) section 330 of the Proceeds of Crime Act 2002 (POCA), (ii) the Human Rights Act 1998 (the HRA), and (iii) the Legal Services Act 2007 (the 2007 Act). The contrary case was advanced by Mr James Eadie QC for HMRC, supported by Sir Sydney Kentridge QC for the Law Society, Mr Bankim Thanki QC for the Bar Council, and Mr Michael Edenborough QC for AIPPI UK. Their case was that it has been universally assumed that LAP is restricted to advice given by lawyers, and the court should not extend it to accountants in connection with tax advice for a number of reasons. Those reasons, in summary form, were that (i) the effect of extending LAP would involve a potentially nuanced policy decision, with unpredictable and potentially wide ranging public and forensic consequences, which is therefore best left to Parliament, and (ii) Parliament has legislated on the assumption that LAP is restricted to advice given by lawyers, and has further considered and rejected a proposal to extend LAP to tax advisers. It was also argued that there is a good principled reason in the modern world to restrict LAP to advice given by lawyers. The ambit of LAP as it is generally understood There is room for argument whether, by allowing Prudentials appeal, we would be extending the breadth of LAP or would simply be identifying the breadth of LAP. On the former view we would be changing the common law; on the latter view, we would be declaring what the common law always has been. I do not think it necessary to address this issue, as the important point for present purposes is that it is universally believed that LAP only applies to communications in connection with advice given by members of the legal profession, which, in modern English and Welsh terms, includes members of the Bar, the Law Society, and the Chartered Institute of Legal Executives (CILEX) (and, by extension, foreign lawyers). That is plain from a number of sources, which speak with a consistent voice. First, there are clear judicial statements of high authority to that effect over the past century and more. Sir George Jessel MR referred to LAP as being confined to communications between a client and his legal adviser, that is, between solicitor and client or barrister and client in Slade v Tucker (1880) 14 Ch D 824, 828, a view he repeated in Wheeler v Le Marchant (1881) 17 Ch D 675, 681 682. In Minter v Priest [1930] AC 558, 581, Lord Atkin said that a [professional] communication pass[ing] for the purpose of getting legal advice must be deemed confidential, and added that it should be understood that the profession is the legal profession. More recently, the view that LAP is confined to advice from lawyers was repeated by Lord Denning MR in Attorney General v Mulholland [1963] 2 QB 477, 489 490, in a passage approved by Lord Edmund Davies in D v National Society for the Prevention of Cruelty to Children [1978] AC 171, 243 244. Secondly, in three more recent cases, on the basis that LAP is confined to advice given by lawyers, the courts have refused to extend LAP to legal advice given by a trade mark agent, a patent agent, or a personnel consultant see, respectively, Dormeuil Trade Mark [1983] RPC 131 (Nourse J), Wilden Pump Engineering Co v Fusfeld [1985] FSR 159 (CA, Waller and Dillon LJJ), and New Victoria Hospital v Ryan [1993] ICR 201 (EAT, Tucker J). Thirdly, and unsurprisingly, the current editions of textbooks on privilege and evidence state that LAP is limited to communications in connection with obtaining legal advice from qualified lawyers see the summary given by Charles J at first instance in this case at [2011] QB 669, 683, para 45(5). Fourthly, more than one significant official report has expressed the view, and proceeded on the basis, that LAP is restricted to legal advice given by a professional lawyer. Thus, The 16th Report of the Law Reform Committee (Privilege in Civil Proceedings) (1967) (Cmnd 3472) stated at para 24, in relation to LAP that [t]he category of professional legal advisers is confined to barristers and solicitors; the committee included Lord Pearson, Diplock LJ, Winn LJ, Megarry J and Roger Parker QC (later Parker LJ). To the same effect, Chapter 26 of the 1983 Report of the Committee on Enforcement Powers of the Revenue Departments, Cmnd 8822 (the Keith Report), prepared by a committee presided over by Lord Keith of Kinkel, proceeds on the clear basis that LAP was limited to communications with a clients lawyers and did not extend to communications with their tax accountants, even where these communications involve the seeking and giving of legal advice. Fifthly, in 2003, the Government (by which I mean the executive as opposed to Parliament) rejected a proposal, which had been made in 2001, by the Director General of Fair Trading that legal advice given by accountants should be subject to the same privilege as that conferred upon advice given by professional lawyers. This shows that both the Director General and the Government clearly proceeded in the belief that legal advice was not protected by LAP unless given by a member of the legal profession. Sixthly, and more importantly, Parliament has legislated in a way which plainly implies that it assumes that LAP is limited to advice given by lawyers. Thus, there are the statutory extensions of LAP to patent attorneys, to trade mark agents and to licensed conveyancers see respectively section 280 of the Copyright, Designs and Patents Act 1988, section 87 of the Trade Mark Act 1994 (as amended by the Legal Services Act 2007), and section 33 of the Administration of Justice Act 1985. Then there are the provisions of section 20B of TMA itself: the terms in which subsection (8) is expressed, particularly when one looks at subsections (3) and (9), plainly show that Parliament believed that there was a difference in the tax advice given by a barrister, advocate or a solicitor, as opposed to the more generic tax adviser. Seventhly, the substantial re enactment of the relevant provisions of TMA in paragraphs 23 to 26 of Part 4 of Schedule 36 to the Finance Act 2008 were considered in the usual way by the House of Commons Public Bill Committee. In their deliberations on 10 June 2008, the Committee actually discussed extending LAP to tax advice given by accountants through the medium of an amendment to what is now paragraph 23 of Schedule 36 to the 2008 Act see the Hansard report of this discussion, (HC Debates), cols 606 608. No details were given to us as to what happened following those discussions, but what is clear is that Parliament none the less decided in Schedule 36 to the 2008 Act to maintain the difference between (i) a person with whom communications attracted legal professional privilege (in England and Wales, and a professional legal adviser in Scotland) in paragraph 23, and (ii) a tax adviser in paragraph 25. Although it could be said to beg the question which we have to decide, a combination of the general understanding as to the breadth of LPP and the absence of any suggestion of a Parliamentary intention to depart from TMA in this connection, leads to the clear conclusion, in my view, that paragraph 23 was intended to be limited to professional lawyers. The implications of allowing this appeal If we were to allow this appeal, we would therefore be extending LAP beyond what are currently, and have for a long time been understood to be, its limits. Indeed, we would be extending it considerably, as the issue cannot simply be treated as limited to the question whether tax advice given by expert accountants is covered by LAP. While that is the specific question between the parties, it is just a subset, no doubt an important subset, of a much larger set. To concentrate on tax advice given by accountants would be wrong, because it would ineluctably follow from our accepting Prudentials argument that legal advice given by some other professional people would also be covered. In that connection, Sir Sydney pointed out in argument that there have been some variations in the way in which Prudential has formulated its case as to the precise breadth of LAP. In my view, the most powerful formulation is that favoured by Lord Sumption, namely that LAP is confined to cases where legal advice is given by a professional person whose profession ordinarily includes the giving of legal advice. It is the most powerful formulation because it is the simplest and the most consistent with the basis on which LAP has been justified by the courts. The case for allowing this appeal There is no doubt that the argument for allowing this appeal is a strong one, at least in terms of principle, as anyone reading Lord Sumptions judgment can appreciate. LAP is based on the need to ensure that a person can seek and obtain legal advice with candour and full disclosure, secure in the knowledge that the communications involved can never be used against that person. And LAP is conferred for the benefit of the client, and may only be waived by the client; it does not serve to protect the legal profession. In light of this, it is hard to see why, as a matter of pure logic, that privilege should be restricted to communications with legal advisers who happen to be qualified lawyers, as opposed to communications with other professional people with a qualification or experience which enables them to give expert legal advice in a particular field. This is especially true at the present time when, as Lord Pannick pointed out, almost all qualified lawyers specialise in limited fields, and when the provision of legal advice is no longer a service limited to professional lawyers, as (in terms of practice) is demonstrated by the specific example of tax advice, and as (in terms of law) is illustrated by the fact that the provision of legal advice is not a reserved legal activity under the 2007 Act. As Charles J said at [2011] QB 669, 691, paras 64 65: [there is] a compelling, and indeed unanswerable, case that in modern conditions accountants have the expertise to advise on tax law and it is firms of accountants, rather than firms of solicitors, who do give such advice and represent clients in disputes with the revenue on many aspects of their tax affairs. Further many firms of accountants now employ lawyers to advise on tax and what they, and qualified accountants in the same firm, do in this context is the same. So, in my view, [it has been] shown that accountants do what lawyers are described as doing in the cases that establish [LAP]. This has been the case for some time and in my view an equivalent position can be said to exist in respect of other professions. The principled arguments for restricting LAP to lawyers advice The principled arguments for restricting LAP to communications with professional lawyers which have been put forward appear to me to be weak, but not wholly devoid of force. They are based on (i) the close connection between members of the legal profession and the court, (ii) historical observations and relics (albeit important relics), such as the involvement of the court in disciplinary procedures of solicitors and barristers, (iii) the duties to the court owed by members of their profession, and (iv) the view that solicitors and barristers are in a special position, in that they are held by the courts to higher standards than members of other professions. At any rate, to modern eyes, it is hard to see why the connection between lawyers and the courts, and in particular the reliance which judges place upon lawyers to act properly, is a good reason in principle for limiting LAP to the legal profession. One can see why the argument might have carried real weight 150 years ago, but for the point to convince today would require something more than such a general statement. Judicial and other observations from the 19th century are of little use, as we are now in a world where a great deal of legal advice is tendered by professional people other than members of the legal profession, as is recognised by the fact, mentioned above, that giving legal advice is not a reserved legal activity under the 2007 Act. The appeal functions of the judges in the disciplinary procedures of the legal profession do not seem to me, at least in general, to be much greater than their judicial review functions in relation to the disciplinary procedures of other professions. It is also true that solicitors and barristers owe a formal duty to the court, but (i) that duty only would be relevant in connection with litigation, whereas LAP goes much wider, and (ii) every professional person involved in litigation can fairly be said to have a duty to the court. Such principled justification as there is for the restriction of LAP to lawyers seems to me to be further undermined by the extension of LAP which the court has approved to all foreign lawyers, without (it would seem) regard to their particular national standards, regulations or rules with regard to privilege. That extension appears to originate from Lawrence v Campbell (1859) 4 Drew 485 (Sir Richard Kindersley V C), and was approved and applied in Macfarlan v Rolt (1872) LR 14 Eq 580 (Sir John Wickens V C), In re Duncan, decd [1968] P 306 (Ormrod J), and Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, 536 (Templeman LJ). (I do not consider, however, that Prudentials argument is assisted by the fact that advice from employed lawyers attracts LAP: that seems entirely consistent with the notion that LAP applies where legal advice is being sought from or given by members of the legal profession). In the light of these points, particularly as it is entirely a creation of the common law for the benefit of individuals or companies seeking and obtaining legal advice, I accept that there is a strong case in terms of logic for allowing this appeal. Conclusion: introductory While I accept that it would accord with its underlying logic to extend LAP as Prudential contend, [t]he life of the [common] law has not been logic, as Oliver Wendell Holmes, Jr observed on the first page of The Common Law (1881). As he went on to say, the life of the common law has been experience. The common law has been created and developed by judges over more than eight centuries, and, as Holmes also observed, [i]n order to know what it is, we must know what it has been . It is therefore inevitable that the common law will include some rules which, while entirely valid today, have limitations or other aspects which are only explicable by reference to historical practices or beliefs. LAP, as it is currently understood, is such a rule. There is no doubt that the justification for LAP is as valid in the modern world as it was when it was first developed by the courts. However, its restriction to advice from members of the legal profession, while it can fairly be said to be illogical in the modern world, is explicable by reference to history. In particular, until the last century, (i) it was very rare for any professional person other than a lawyer to give legal advice, and (ii) the connection between the legal profession and the courts was thought to be of greater significance than it is now. Where a common law rule is valid in the modern world, but it has an aspect or limitation which appears to be outmoded, it is by no means always right for the courts to modify the aspect or remove the limitation. In any such case, the court must consider whether the implications of the proposed modification or removal are such that it would be more appropriate to leave the matter to Parliament. The court must also consider whether the aspect or limitation in question has led to problems, and whether it has been assumed, approved or disapproved impliedly or expressly by Parliament. And if Parliament has unequivocally endorsed the aspect or limitation then the courts should not, of course, alter it. Subject to that last qualification, the question whether to remove or modify the aspect of the rule in question must inevitably be considered on a case by case basis. Where the court decides that it is inappropriate to remove or modify, it is, in my view, wrong to characterise the result as unprincipled: in a common law system, no well understood rule or aspect of a rule can sensibly be so described. Turning to this case, then, despite the powerful arguments advanced to the contrary, and in agreement with the clear and careful judgments below, I consider that we should not extend LAP to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give. I reach this conclusion for three connected reasons, which together persuade me that what we are being asked to do by Prudential is a matter for Parliament rather than for the judiciary. First, the consequences of allowing Prudentials appeal are hard to assess and would be likely to lead to what is currently a clear and well understood principle becoming an unclear principle, involving uncertainty. Secondly, the question whether LAP should be extended to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament. Thirdly, Parliament has enacted legislation relating to LAP, which, at the very least, suggests that it would be inappropriate for the court to extend the law on LAP as proposed by Prudential. Conclusion: uncertainties and unknown consequences At the moment, although there are inevitably still arguments about whether a party can rely on LAP on particular facts, these arguments are very much at the margins (as Lord Scott recognised in Three Rivers (No 6) at para 43). That is because the presently accepted state of the law on LAP is clear to any professional advisers who need to understand it, and relatively easy to explain to their clients who are meant to benefit from it. The implications for society, for the courts, and for the executive, of LAP only applying where it is members of the legal profession who are giving the advice, have been generally understood, accepted and allowed for by the rules and practice of the courts and in legislation. The suggested reformulation proffered by Lord Sumption is, as I have said, clear and principled in conceptual terms. However, closer examination of the suggestion that LAP should apply in any case where legal advice is given by a person who is a member of a profession [which] ordinarily includes the giving of legal advice suggests to me that this is an inappropriate formulation for us to adopt, as it would carry with it an unacceptable risk of uncertainty and loss of clarity in a sensitive area of law. For example, it is unclear to me whether occupations such as town planners, engineers, or pension advisers would be members of a profession for this purpose. They require training and qualifications, and they have associations, with rules and disciplinary procedures. Further, like, for instance, actuaries, auditors, architects and surveyors (undoubtedly professionals), they often, as a result of education and/or experience, have considerable specialist legal expertise, on which clients draw and expect to be able to draw. And that may well become more in point now that legal advice is not a reserved legal activity under the 2007 Act. As I see it, it could be necessary for a court to delve into the qualifications or standing, and maybe into the rules and disciplinary procedures, of a particular group of people to decide whether the group constitutes a profession for the purpose of LAP. So there would be room for uncertainty, expenditure and inconsistency, if the court had to decide such an issue. Further, I am not clear quite how a court is to decide whether a profession is one which ordinarily includes the giving of legal advice. Many chartered surveyors, architects and accountants, for instance, may not ordinarily give legal advice, but there are many who do. Should the issue be judged by reference to the profession generally, a particular branch of the profession (which could lead to definitional issues), or the practice of the particular member of the profession in the case, and, if this last possibility is correct, would the issue be determined on that members say so? In addition, I suspect that much of the advice given by most members of those professions could not infrequently be characterised as legal in nature by some people but not by others. Consider cases such as (i) a town planner instructed to try and obtain planning permission for a development or to advise whether it was needed or what had to be done to get it, (ii) a pension consultant asked to advise on whether a payment could be made, or a contribution should be demanded, by trustees of a pension scheme, (iii) a valuation surveyor asked to advise on rental value under a rent review clause or for rating purposes, or (iv) an auditor asked as to the appropriate treatment of a receipt or debt. In each such case, the issue on which advice is sought may well involve a point of law on which the professional concerned is well qualified to advise. In each case, it could very well be open to argument whether LAP attached to such advice. So long as LAP is limited to advice from members of the legal profession, the strong, and justified, presumption will be that LAP does apply in connection with any communications in that context, because lawyers normally only give legal advice. However, where members of other professions give legal advice, it will often not represent the totality of the advice, and there may well be difficult questions to resolve, as to whether, and, if so, in respect of which documents, LAP could be claimed. For instance, it is unclear whether LAP would apply where the legal advice is only subsidiary, and, if so, how one determines subsidiarity; and, in a case where LAP could be claimed, there may be difficulties in deciding how to deal with documents (which may frequently be the majority of documents concerned with the giving of advice in the case) which contain legal and non legal advice. The specific issue in Three Rivers (No 6) provides the basis for an example of my concerns. In that case, it was held that advice to a client as to how to present its case at an inquiry was privileged if it was given by the clients lawyers, who were also giving general legal advice, which was undoubtedly subject to LAP. I am unclear whether, on Prudentials case, it would follow that a letter from town planning experts advising their client how to present its case at a planning inquiry would attract LAP; the answer might, for instance, depend on whether the advisers were also giving legal advice, but that would seem inconsistent with the requirement for consistency across the professions inherent in Prudentials case. And if LAP would apply in such a case, there might be obvious difficulties in disentangling letters seeking or giving both legal and technical advice. A policy issue best left to Parliament Apart from these concerns, it seems to me that this appeal gives rise to an issue, possibly a series of issues, of policy, which constitutes an area into which the courts should generally be reluctant to tread. Rather than extending LAP beyond its present accepted boundaries, we should leave it to Parliament to decide what, if anything, it wishes to do about LAP. Much of what is said in the preceding section of this judgment demonstrates that quite wide questions of public policy may be thrown up by Prudentials argument. The general implications of extending the generally understood limits of LAP as suggested by that argument could clearly have significant implications, which, at least in my view, would be very difficult to identify, let alone to assess. To put it at its lowest, they may well have significant consequences which should be considered through the legislative process, with its wide powers of inquiry and consultation and its democratic accountability. There are no doubt many pieces of legislation giving the executive the power to call for documents, in respect of which LAP could be invoked to avoid delivering up such documents. One of the most vital functions of the courts is to protect citizens against abuses by the executive, but that role must be exercised with discrimination. However, it would, I think, require exceptional circumstances before that function was invoked to create a new right, or to extend an existing right substantially beyond what is currently understood by everyone, including Parliament when enacting such legislation, to be its existing limits. In addition, there is the fast changing landscape of the legal terrain following the passing and implementation of the Legal Services Act 2007. That Act is also another indication that Parliament is ready to change common law practices which involve special rules for lawyers when it wishes to do so. Another reason why the present issue should be left to Parliament is that the extension of LAP to professions other than lawyers may only be appropriate on a conditional or limited basis. That is an aspect which can be properly considered and implemented by Parliament, and cannot appropriately be assessed, let alone imposed, by the courts. This point is well illustrated by reference to the very type of case with which this appeal is concerned. In 1983, when the Keith Committee recommended that LAP should be extended to communications in connection with tax advice given by expert accountants, it included two qualifications. The first was that the privilege should be overridden where it would . unreasonably impede the ascertainment of facts necessary to the proper determination of the taxpayers tax liabilities, being facts not otherwise capable of ascertainment (para 26.6.5). The second was that LAP should not extend to advice given by in house professional advisers (para 26.6.13). It would be open to Parliament to impose such types of restriction or condition: it would not realistically be open to the courts. Further, as demonstrated by the facts set out in paras 33 34 above, the sort of extension to the currently understood law of LAP sought by the appellants has been (i) reported on by two committees, (ii) discussed in a parliamentary committee, and (iii) proposed to the executive. Despite thinking it appropriate to extend LAP to certain other professions, as explained in para 35 above, Parliament has apparently chosen not to extend LAP to accountants giving tax advice. Of course, in another case, points such as these could be overcome if the court was satisfied that there was a pressing need, in terms of the rule of law, injustice or even practicality, for the common law to move from its generally understood position in a particular area. However, although there is evidence of some concern about the presently understood limits of LAP, there is no evidence that even gets near establishing a pressing need to change those limits. Parliament has relevantly legislated and declined to legislate Parliament has on a number of occasions legislated relevantly in this field. On three occasions it thought it appropriate to extend LAP, and did so on the basis that LAP was limited to advice given by members of the legal profession. I have in mind section 280 of the Copyright, Designs and Patents Act 1988, section 87 of the Trade Mark Act 1994, and section 33 of the Administration of Justice Act 1985, referred to in para 35 above. All these provisions would have been demonstrably unnecessary if the breadth of LAP was as Prudential submits. Parliament also legislated in the very field with which this appeal is concerned on the assumption that LAP only applies to advice given by lawyers see section 20B of TMA and paragraphs 23 to 26 of Part 4 of Schedule 36 to the 2008 Act, referred to in paras 6 to 9 above. Lord Pannick sought to meet this point by relying on the approach adopted by the House of Lords in Morgan Grenfell, where it was held that although the general words of sections 20 and 20B of the TMA might appear to imply the removal of LAP in some circumstances, they did not do so because, as already mentioned, [a]n intention to override such [a fundamental human right] must be expressly stated or appear by necessary implication (emphasis added) to quote from Lord Hoffmann at [2003] 1 AC 563, para 8. In my opinion, that principle does not apply here, although I accept that one must be careful about placing too much weight on the points I have identified in paras 63 and 64 above. The reason that it does not apply is that, in Morgan Grenfell, the Revenue was arguing that what undoubtedly was universally accepted as being LAP in common law had been impliedly cut down by legislation. Given that there was therefore no doubt that the LAP claimed by the appellant in that case existed at common law, it was to be expected that, if the 1970 Act had been intended to cut down LAP, Parliament [would have] squarely confront[ed] what it [was] doing and accept[ed] the political cost per Lord Hoffmann in R v Secretary of State for the Home Department, Ex p Simms [2000] 2 AC 115, 131, cited by Lord Hobhouse in Morgan Grenfell, para 44. But the position in this case is different from the position in that case, even though in both cases HMRC seek to rely on implication (rather than necessary implication) to defeat the taxpayers argument based on LAP. The difference arises from the fact that in this case, as demonstrated from the discussion in paras 30 36 above, the generally accepted view is that the type of LAP invoked by Prudential does not exist. In other words, HMRCs contention is not that a statutory provision impliedly shows that Parliament intended to remove LAP which plainly would otherwise exist (as in Morgan Grenfell): rather it is that a number of recent statutory provisions clearly show that Parliament, along with the courts, the textbook writers, and the writers of relevant reports, considered the type of LAP contended for by Prudential does not exist. Various other points I referred in para 45 above to four cases where it was held that LAP applied where the advice was tendered by foreign lawyers. In none of those cases does it appear that there was any significant analysis as to why and to what extent LAP was to be accorded where it was a foreign lawyer who had given the advice. It is none the less understandable why LAP was so extended: the extension was, I suspect, based on fairness, comity and convenience. While that extension does rather undermine much of the principled justification for LAP being confined to cases where the advice is given by professional lawyers, it is consistent with the argument that the court should restrict LAP to its currently understood bounds for reasons of practicality and certainty. Nor do I consider that HRA or POCA take the case any further. The decision and reasoning of the Strasbourg court in Van der Mussele v Belgium (1983) 6 EHRR 163, AM & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878, and Campbell v United Kingdom (1992) 15 EHRR 137 effectively undermine any suggestion that it would somehow be contrary to article 14 of the Convention to hold that LAP applies to communications with professional lawyers and not with other professional people. Nor do I accept the argument that so to hold would infringe article 8 read together with article 14. As for section 330 of POCA, it is in a form which was intended to give effect to the Second Money Laundering Directive (2001/97/EC), and I do not see how it can be said to represent any sort of indication by Parliament as to its understanding of the extent of LAP. I am also unimpressed by Prudentials reliance on the 2007 Act. At best, it merely acknowledges two realities which I have accepted anyway, namely that legal advice is now given by many professional people other than lawyers, and that lawyers can work in firms with other professionals, and vice versa: the only change affected by the 2007 Act is that lawyers can now go into partnership with people in other professions. Disposition For these reasons, I would dismiss this appeal. LORD HOPE For the reasons given by Lord Neuberger, Lord Mance and Lord Reed I too would dismiss this appeal. I should like to add just a few words of my own to explain why I am of that opinion. A search for a principled answer might well lead one to the conclusion that there was no good reason at all for holding that the tax advice of chartered accountants should be treated differently from similar advice given by a barrister or a solicitor, as Lord Sumptions powerfully reasoned judgment so ably demonstrates. He starts from the position that English law has always taken a functional approach to legal advice privilege, and that all one needs to do is to recognise as a matter of fact that much legal advice falling within the principles governing legal advice privilege is given today by people who are not lawyers: see paras 123 and 128, below. If the issue is approached on that basis, I agree that it is quite difficult to see how in principle according barristers and solicitors a special status on this matter can be justified. I would find it very hard to distinguish between the legal and factual basis for any claim of privilege in this respect as between chartered accountants on the one hand and lawyers on the other. The functions that they perform when giving tax advice are essentially the same in each case. And I would certainly not find it possible to draw any relevant distinction between these two professions as to their standards of training or discipline. My starting point, however, is the same as that indicated by Lord Neuberger: see para 29. The reason why the issue is before us at all in this case is quite simple. It is to be found in what people generally understand the position to be. Legal advice privilege, as generally understood, applies only to advice that is given by lawyers. If we were to declare that the matter is to be determined not by the profession to which the adviser belongs but by the function that he is performing, we would be changing the ambit of the privilege. And it would be a significant change because the position as generally understood has clearly defined limits and, in consequence, the inestimable advantages of clarity and certainty. Can we be certain that that will be so if the privilege were to be extended to tax advice by chartered accountants, on the ground that they too are advisers whose profession has as an ordinary part of its function the giving of skilled legal advice? If the privilege were to be extended that far, what about tax advice given by other members of the accountancy profession? As Sir Sydney Kentridge QC put it, the change we are asked to make would need a very good reason evidence that something was not working properly. I agree with Lord Neuberger that no such pressing need has been demonstrated, and that to adopt the functional test would give rise to a significant risk of uncertainty. I also think that the courts are not best placed to assess how profound such a change would be, whether there are good reasons of policy for making it and what protections, if any, are needed to ensure that the ambit of the privilege is kept within limits that are acceptable. Principle is an uncertain guide in such matters, if all one has to go on is the function that is being performed by the adviser. We do not need to go down that road, and it seems to me that the wiser course is not to do so. If there are reasons of public policy for making the change, the matter should be left to Parliament. LORD MANCE I have had the great advantage of reading the judgments prepared by Lord Neuberger, with whom Lord Hope agrees, and Lord Sumption, with whom Lord Clarke agrees. I come down on the same side as Lord Neuberger, basically for all the reasons which he gives. I add only a few words, principally to address the suggested logic of recognising that clients of tax accountants enjoy legal advice privilege (LAP) in respect of tax advice given them professionally by such accountants paralleling the LAP normally enjoyed by the clients of lawyers. LAP has developed and been accepted on a general basis in respect of lawyers because they are lawyers and their business is normally dealing with legal matters. There has been no particular occasion to examine specific areas of legal advice or lawyers activity, in order to consider whether it merits special treatment and, if so, how such areas of their activity would be defined. Such questions do however arise in respect of Prudentials current claim that the courts should recognise the underlying logic of LAP and accept that it applies in respect of legal advice given professionally in any particular area where the professional who gives it is a member of a profession which has as an ordinary part of its function the giving of skilled legal advice in that particular area. The relevant profession here is accountancy and the relevant area the giving of tax advice. But there are, as Lord Neuberger notes in paras 54 to 60, other professions which might be said to give legal advice in particular areas in the course of their ordinary professional activity. In relation to tax or any other particular areas where legal advice is given professionally, specific considerations may exist which could on examination point away from a recognition of LAP, or away at least from its recognition on an unqualified basis. That was certainly the conclusion of the Keith Committee, when it recommended that LAP be recognised in respect of tax advice by accountants, but only on a significantly qualified basis: see Lord Neubergers judgment, para 65. Similarly, when the New Zealand Parliament legislated by the Taxation (Base Maintenance and Miscellaneous Provisions) Act 2005 in June 2005 to create a statutory privilege in relation to any confidential tax advice document, it did so by inserting into the Tax Administration Act 1994 a complex of statutory provisions (sections 20B to 20G) requiring the relevant tax advisor to be a member of an approved advisor group approved by the Commissioner on Inland Revenue and providing that disclosure must nonetheless be made, from any tax advice document, of tax contextual information. This was defined to include, inter alia, (a) a fact or assumption relating to a transaction that has occurred or is postulated by the person creating the tax advice document; (b) a description of a step involved in the performance of a transaction that has occurred or is postulated by the person creating the tax advice document; (c) advice that does not concern the operation and effect on the person of tax laws; (d) advice that concerns the operation and effect on the person of tax laws relating to the collection by the Commissioner of debts payable to the Commissioner; (e) a fact or assumption relating to advice that is referred to in paragraph (c) or (d); and (f) a fact or assumption from, or relating to the preparation of (i) financial statements of the person, or (ii) a document containing information that the person is required to provide to the Commissioner under an Inland Revenue Act. In Australia the Law Reform Commission, in A Review of Legal Professional Privilege and Federal Investigatory Bodies (report ALRC 107 dated December 2007) supported the New Zealand model of creating a separate tax advice privilege, rather than simply extending client legal privilege to accountants giving tax advice; and it did this specifically because it would allow Parliament greater control over the operation and scope of tax advice privilege (para 6.278). As to the nature of the control, it said (para 6.281): The ALRC is also supportive of the provision in the New Zealand legislation which does not apply the privilege to contextual information provided for the purpose of providing tax advice. It should be very clear in the operation of this privilege that only the advice itself will be protected, and not any other information that may form part of the accountants file or briefing. The legislation should state that no privilege should apply to tax contextual information given for the purpose of providing tax advice. Tax contextual information should be defined as information about: a fact or assumption that has occurred or is postulated by the person creating the tax advice document; a description of a step involved in the performance of a transaction that has occurred or is postulated by the person creating the tax advice document; or advice that does not concern the operation and effect of tax laws. The justification of LAP advanced in respect of lawyers includes candour that is, that it enables clients to provide their lawyers with all the facts and matters that they might need to advise on the law: see eg the quotation from Lord Scott in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, quoted by Lord Sumption at para 118. But it is evident from paras 86 to 88 above that, when the present issue has been considered by law reform committees or legislators in the United Kingdom, New Zealand and Australia, this justification has not been felt to have the same force. Rather, a specific need has been felt to ensure, by appropriate legislative qualification of the scope of LAP, that the Revenue is put in possession of a full understanding of the facts and the nature of the relevant transactions, so as to be able then to advise itself as to the correct legal conclusions to be derived therefrom as a matter of tax law. Another, not unrelated, feature of this case, to which I attach considerable importance, is that the United Kingdom Parliament has on a number of occasions not only treated lawyers as the only persons whose advice gives rise to LAP on the part of their clients (see Lord Neubergers judgment, para 35 et seq), but has also specifically decided to maintain a distinction between lawyers and tax advisers when it was suggested that the latters advice ought to give rise to a general LAP paralleling that existing in respect of lawyers advice (Lord Neuberger, para 36). If LAP extended to professions other than lawyers, it is accepted that it would not be on a general basis, but that a careful distinction, in practice normally irrelevant in the case of lawyers, would have to be drawn between privileged and non privileged activities. Although such a distinction can sometimes be relevant with lawyers (eg where a lawyer acts as a man of business or purely administratively, rather than as a lawyer), it is not normally so. But in the case of other professions, the distinction would become highly relevant and would not necessarily be easy to draw. For all these and the other reasons given by Lord Neuberger, any recognition in respect of tax accountants of a privilege which has traditionally been and is still regarded as relevant only to legal advice given by lawyers in the course of their profession, or of any parallel privilege, should in my opinion take place, if at all, in Parliament, not in the courts. I agree that this appeal should be dismissed, for the reasons given by Lord LORD REED Neuberger, Lord Hope and Lord Mance. The argument that existing legal principle already recognises the privilege claimed by the appellants, although powerfully put by Lord Clarke and Lord Sumption, is not one that I find persuasive. The process of reasoning by which a legal principle is derived from a body of authority was explained by Lord Diplock in Dorset Yacht Co Ltd v Home Office [1970] AC 1004, 1058 1059. Speaking of the law of negligence, his Lordship explained that the process involved two stages, the first of which was inductive, and involved an analysis of the characteristics of the conduct and relationship involved in each of the decided cases: This analysis leads to a proposition which can be stated in the form: In all the decisions that have been analysed a duty of care has been held to exist wherever the conduct and the relationship possessed each of the characteristics A, B, C, D, etc, and has not so far been found to exist when any of these characteristics were absent. For the second stage, which is deductive and analytical, that proposition is converted to: In all cases where the conduct and relationship possess each of the characteristics A, B, C, D, etc, a duty of care arises. The conduct and relationship involved in the case for decision is then analysed to ascertain whether they possess each of these characteristics. If they do the conclusion follows that a duty of care does arise in the case for decision (p 1059). Applying that approach in the context of legal advice privilege, in each of the decided cases in which the privilege was held to exist, the relationship of the persons between whom the communication passed was that of client (or prospective client) and professional lawyer acting as such; and the privilege has not so far been held to exist when any of the characteristics of that relationship were absent. One can therefore deduce from the authorities a principle which applies when that relationship exists. That relationship does not however exist in the present case. As Lord Diplock explained (ibid), again in the context of the law of negligence, where the conduct or relationship which is involved in the case at hand lacks at least one of the characteristics which have been identified, the court has a choice whether or not to extend the kinds of conduct or relationships which give rise to a duty of care: And the choice is exercised by making a policy decision as to whether or not a duty of care ought to exist if the characteristic which is lacking were absent or redefined in terms broad enough to include the case under consideration. The choice to extend is given effect to by redefining the characteristics in more general terms so as to exclude the necessity to conform to limitations imposed by the former definition which are considered to be inessential. Applying that approach in the present context, since the case at hand lacks one of the characteristics which has been present in all previous cases in which legal advice privilege has been held to exist, the court has a choice whether or not to extend legal advice privilege to situations where legal advice was sought from a professional person other than a lawyer. That choice is exercised by making a policy decision of the kind which Lord Diplock explained. It is open to the court to redefine the characteristics of legal advice privilege in more general terms, for example by holding that legal advice, given in the exercise of a professional activity which involves the giving of such advice, is subject to legal advice privilege. It is also open to the court to adhere to the narrower principle which can be derived from the existing body of case law. A judgment has to be made as to the most appropriate course of action. That judgment, in this case, requires a number of considerations to be taken into account, as Lord Neuberger has explained. There are considerations which weigh in favour of an extension of the principle. In particular, it can be argued that the underlying rationale of the privilege favours its application whenever legal advice is sought from a person who is suitably qualified to give such advice, whether that person is a member of the legal profession or of some other profession whose activities include the giving of legal advice. There are on the other hand countervailing considerations. One which seems to me to be particularly significant is that the privilege must be capable of being relied upon if it is to serve its purpose of enabling clients and their legal advisers to communicate with each other with complete candour. It is therefore highly desirable that the privilege should, as far as possible, be based upon a principle which is clear, certain and readily understood. The existing common law principle meets those requirements. The variety of possible formulations of an extended common law principle, and the consequent scope for debate as to whether particular professional persons, in particular situations, would or would not fall within its scope, would detract from the certainty and clarity which presently exist. More fundamentally, it is necessary to give consideration to the respective roles, in relation to the development of this area of the law, of the courts, the executive and the legislature. In doing so, it is necessary to have regard to the measures taken (or not taken) in this area by the executive and the legislature, after consultation and consideration of a wider character than can be carried out by courts determining disputes between particular parties. In my judgment, having regard particularly to the latter consideration, the court should decide the case as Lord Neuberger proposes. No question arises in this appeal as to the scope of the privilege in Scots law. It may nevertheless be helpful to add some observations about the case from a Scottish perspective, given the likely interest in the case in Scotland as well as in England and Wales. My observations are not however intended to pre empt a full discussion of the matter should the issue arise in Scottish proceedings. The law in this area developed separately in Scotland from in England. The two systems have however developed in the same direction. There are a number of differences in the case law in relation to particular aspects of the law, but the general principle, its fundamental importance, and the considerations of public policy which underlie it, are common to both systems. By the late seventeenth century it was established in Scotland that an advocate was not bound to disclose any private advice or secret of his calling or employment: Creditors of Wamphray v Lady Wamphray (1675) Mor 347; Earl of Northesk v Cheyn (1680) Mor 353; Stair, Institutions of the Law of Scotland, IV.xliii.8. The rationale was explained by Sir George Mackenzie as being the public interest in persons being able to obtain legal advice based upon complete knowledge of the relevant circumstances: An Advocate is by the Nature of his Imployment tied to the same Faithfulness that any Depositor is: For his Client has depositate in his Breast his greatest Secrets; and it is the Interest of the Common wealth, to have that Freedom allowed and secured without which Men cannot manage their Affairs and private Business: And who would use that Freedom if they might be ensnared by it? This were to beget a Diffidence betwixt such who should, of all others, have the greatest mutual Confidence with one another; and this will make Men so jealous of their Advocates that they will lose their private Business, or succumb in their just Defence, rather than Hazard the opening of their Secrets to those who can give them no Advice when the case is Half concealed, or may be forced to discover them when revealed. (Observations upon the 18th Act of the 23rd Parliament of King James the Sixth against Dispositions made in Defraud of Creditors etc (1675), in Sir George Mackenzie's Works, vol 2 (1755), p 1). It became clear during the eighteenth century, if not earlier, that this approach also applied to other types of lawyer engaged in legal proceedings (McLeod v McLeod (1744) Mor 16754), and that the concept of a secret extended to anything of which a lawyer had been informed by his client (Leslie v Grant (1760) 5 Browns Supp 874). A crucial step in the further development of the principle was taken in Executors of Lady Bath v Sir John Johnston, 12 November 1811, FC, which has been interpreted (notably in McCowan v Wright (1852) 15 D 229) as having decided that the privilege was not confined to communications made in connection with legal proceedings which were then pending or in contemplation. It was also understood by the early nineteenth century, if not earlier, that the privilege was that of the client, not the lawyer: see eg Bell, Principles of the Law of Scotland, 4th ed (1839), para 2254. The general principle, as it was understood by the mid nineteenth century, was summarised by Lord Wood in McCowan v Wright at p 237: The rule by which the communications between clients and their legal advisers are protected from discovery, is one of great value and importance, and, within its legitimate limits, ought to be strictly observed. According to the law of Scotland, such communications are privileged although they may not relate to any suit depending or contemplated, or apprehended. Comparing the Scottish authorities down to that date with the review of the English case law by Lord Brougham in Greenough v Gaskell (1833) 1 My & K 98, it could be said that the general principles governing the privilege of communications between lawyer and client in the two jurisdictions were in alignment; and that is reflected in the citation of numerous authorities from England as well as Scotland in Bells account of the subject. More recent development of these general principles, notably in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, where the privilege was characterised as a fundamental human right, has not depended on matters peculiar to either jurisdiction. In Scotland, as in England and Wales, all the cases in which the privilege has been upheld appear to have concerned lawyers acting in a professional capacity, clerks or assistants acting on their behalf, or other intermediaries to whom a communication had been made for transmission to or from such a person. It has been held that the privilege did not attach to communications made to an accountant (Wright v Arthur (1831) 10 S 139); but the case was not one in which it was suggested that the accountant had given legal advice, and it long pre dated the era in which the giving of tax advice, in particular, became one of the principal areas of practice of many accountants. It is not apparent that the courts have hitherto been required to make a judgment as to whether the privilege ought to be confined to legal advice given by lawyers acting as such, as opposed to legal advice given by members of other professions. As far as I have ascertained, therefore, the authorities do not foreclose the possible application of the privilege to advice given by accountants. Nevertheless, as in England and Wales, the general understanding is that the privilege applies only to members of the legal professions. In Narden Services Ltd v Inverness Retail and Business Park Ltd 2008 SC 335, 338 for example, the court described the notion of legal professional privilege (an expression which was adopted in that case, and has been used in subsequent cases, in preference to the older term confidentiality, which could lead to confusion between the privilege and the different sense in which confidentiality is employed in other contexts), as enshrined in the common law of Scotland, as (in broad terms) a right of absolute privilege in respect of communications emanating between a solicitor and a client relating to advice and also in respect of any documents, including those coming from accountants, which were prepared in the contemplation of litigation. The apparent implication is that documents prepared by accountants may come within the scope of litigation privilege (in the older terminology, post litem motam confidentiality) if they were prepared in contemplation of litigation, but that legal advice privilege is confined, in broad terms, to communications between a solicitor and his client. The court was not however addressing the question whether the scope of the privilege might be extended where legal advice was given by accountants. Textbooks proceed on a similar basis, assuming that the privilege applies only where advice is given by lawyers, but not specifically addressing the question whether it might also apply where legal advice was given by members of other professions. The title on Evidence in the Stair Memorial Encyclopaedia of the Laws of Scotland, (Reissue), for example, states that the privilege is restricted to communications made to professionally qualified and instructed lawyers (para 205), and that any attempt to plead privilege by bankers, accountants and other professional business and personal advisers will fail (para 209). Ross and Chalmers, Walker and Walker, The Law of Evidence in Scotland, 3rd ed (2009), similarly proceed on the basis that the privilege is confined to professional lawyers (para 10.2.7). As in England and Wales, bodies concerned with law reform have also proceeded on the basis of such an understanding. The Keith Report, discussed by Lord Neuberger, concerned the United Kingdom as a whole, and was prepared by a committee presided over by a Scottish member of the Appellate Committee of the House of Lords. It discussed the relevant rules of Scots law, which it described as not differing materially from the English rules, although some differences in matters of detail were noted (para 26.1.5). This area of the law was also considered by the Scottish Law Commission in its Memorandum No 46, Law of Evidence (1980), where it expressed the view that solicitor/client privilege is reasonably well defined and works satisfactorily in practice: para S 21. The Commission did not suggest that the privilege applied, or ought to apply, in situations where legal advice was sought from members of other professions; nor was that issue touched upon in the reports which followed upon the consultative memorandum. As in relation to England and Wales, Parliament has legislated in relation to Scotland in ways which assumed that legal advice privilege was confined to advice given by lawyers. Section 20B of the Taxes Management Act 1970 and the replacement provisions in Schedule 36 to the Finance Act 2008, discussed by Lord Neuberger, apply to Scotland. So also do section 280 of the Copyright, Designs and Patents Act 1988 and section 87 of the Trade Marks Act 1994, which extend the privilege under Scots law to patent attorneys and trade mark agents respectively. Section 22 of the Law Reform (Miscellaneous Provisions) (Scotland) Act 1990 made provision for communications made to or by a licensed conveyancer or registered executry practitioner to be protected from disclosure in like manner as if the practitioner had at all material times been a solicitor acting for the client. Finally, just as Parliament legislated in the Legal Services Act 2007 to create a framework for the future of the provision of legal services, and for the regulation of such provision, in England and Wales, a comparable framework was created by the Scottish Parliament in the Legal Services (Scotland) Act 2010. The provision of legal advice is a legal service falling within the scope of the legislation: section 3. The professions whose members can own or control a licensed provider of legal services under the Act include chartered accountants and chartered certified accountants: Licensed Legal Services (Specification of Regulated Professions) (Scotland) Regulations, SSI 2012/213. The Act makes express provision in section 75, headed professional privilege, that communications made to or by a licensed provider (or a designated person within the licensed provider) in the course of its acting as such in its provision of legal services, are in any legal proceedings, privileged from disclosure as if the licensed provider or (as the case may be) the person had at all material times been a solicitor acting for the client. Since that provision applies only to licensed providers and designated persons within such providers, it therefore applies only where a licence has been granted; and such grants are dependent upon the existence of appropriate regulatory schemes and licensing rules. Against that background, if the question were to arise in Scotland whether the common law privilege should be extended to legal advice given by accountants, the courts would have to make a policy decision, as I have explained. That decision would have to be made in the context which I have discussed, including the enactment of legislation, following consultation and consideration in the Scottish Parliament, providing the privilege where other professions are involved in the provision of legal services, on a conditional and limited basis. LORD SUMPTION (dissenting) In my opinion the law is that legal professional privilege attaches to any communication between a client and his legal adviser which is made (i) for the purpose of enabling the adviser to give or the client to receive legal advice, (ii) in the course of a professional relationship, and (iii) in the exercise by the adviser of a profession which has as an ordinary part of its function the giving of skilled legal advice on the subject in question. The privilege is a substantive right of the client, whose availability depends on the character of the advice which he is seeking and the circumstances in which it is given. It does not depend on the advisers status, provided that the advice is given in a professional context. It follows, on the uncontested evidence before us, that advice on tax law from a chartered accountant will attract the privilege in circumstances where it would have done so had it been given by a barrister or a solicitor. They are performing the same function, to which the same legal incidents attach. The starting point for any analysis of these matters is the rationale of the privilege attaching to the process of obtaining legal advice. It has been described by the Supreme Court of the United States as the oldest of the privileges for confidential communications known to the common law: Upjohn Company v United States 449 US 383, 389 (1981). In some respects its development has been peculiar to the English common law and those legal systems which have adopted it. In most civil law countries, the protection of professional confidences is founded on the status of the adviser. In French law, which can stand as the paradigm case, information given to an adviser in the course of a confidential professional relationship is subject to the rules governing the secret professionnel. The source of the confidence is the professional obligations of the adviser, and the provisions of the Penal Code which reinforce them with criminal sanctions. Consistently with this approach, French law like most European civil law systems accords the same protection to other confidential professional relationships, for example with doctors or priests, and indeed has in recent times extended it to some non professional ones: see Code Pnal, article 226 13. English law originally protected professional confidences on a similar basis. The origins of the privilege have been traced in the speech of Lord Taylor of Gosforth CJ in R v Derby Magistrates Court, Ex p B [1996] AC 487, 504 507 and in Holdsworth, History of English Law, 3rd ed, ix (1944), 201 202. It originated in the practice of the Court of Chancery in the years after the statute of 1562 which first made witnesses compellable: see Berd v Lovelace (1577) Cary 62; Dennis v Codrington (1579) ib, 100. By the early eighteenth century most writers were agreed that it was based on the protection of the honour of the adviser, who would be discredited by being required to disclose his clients confidences. It followed that the adviser was permitted but not compellable to give evidence of them. This theory was disposed of by Lord Mansfield in the Duchess of Kingstons Case (1776) 20 St Tr 355, 574. The famous surgeon Sir Caesar Hawkins declined to give evidence against the Duchess on her trial for bigamy, saying: I do not know how far any thing that has come before me in a confidential trust in my profession should be disclosed consistent with my professional honour. Lord Mansfield ruled that he must testify, because if the sole ground of refusal was the protection of his honour, it was a sufficient answer to those who might subsequently impugn it that he was compellable. In the half century following this decision, the juridical basis of the privilege was redefined by the courts. It became a right of the client, which was justified as serving a specific public interest in his freedom of action in dealings with his legal advisers. In Wilson v Rastall (1792) 4 TR 753, it was established (i) that the privilege was a right of the client, not of the lawyer, (ii) that the lawyer was therefore precluded from giving evidence of privileged matters even if he was willing to, and (iii) that the privilege was not confined to the litigation in which disclosure was sought nor to litigation in which the client was a party, but extended to any litigation in which it was sought to compel the production of documents or the appearance of a witness. In Greenough v Gaskell (1833) 1 My & K 98, Lord Brougham LC reviewed the case law going back to the late eighteenth century. In a judgment which is generally regarded as the foundation of the modern law, he held that the privilege was unaffected by the question whether proceedings were pending or contemplated, for a person oftentimes requires the aid of professional advice upon the subject of his rights and his liabilities, with no reference to any particular litigation, and without any other reference to litigation generally than all human affairs have, in so far as every transaction may, by possibility, become the subject of judicial inquiry (p 102). In a celebrated passage, Lord Brougham said (p 103): The foundation of this rule is not difficult to discover. It is not (as has sometimes been said) on account of any particular importance which the law attributes to the business of legal professors, or any particular disposition to afford them protection, though certainly it may not be very easy to discover why a like privilege has been refused to others, and especially to medical advisers. But it is out of regard to the interests of justice, which cannot be upholden, and to the administration of justice, which cannot go on, without the aid of men skilled in jurisprudence, in the practice of the Courts, and in those matters affecting rights and obligations which form the subject of all judicial proceedings. If the privilege did not exist at all, every one would be thrown upon his own legal resources; deprived of all professional assistance, a man would not venture to consult any skilful person, or would only dare to tell his counsellor half his case. If the privilege were confined to communications connected with suits begun, or intended, or expected, or apprehended, no one could safely adopt such precautions as might eventually render any proceedings successful, or all proceedings superfluous. The only exception to the principle thus stated which Lord Brougham was prepared to recognise was the case where the communication for which privilege was claimed was made to a professional legal adviser but not in the course of a professional relationship with him: see pp 104 115. This was not an indirect way of recognising the special status of professional lawyers. It is clear from the context that the point which Lord Brougham was making was that the privilege attaches only to legal advice taken in a professional context, i.e. not in a social one. Not every one has applauded the principle as it was developed in the late eighteenth and early nineteenth centuries. But it is fair to say that many of its critics have been animated by broader misgivings about the whole process of forensic inquiry and the role of the legal profession in it. Jeremy Bentham, who regarded lawyers as obstacles to the administration of justice, famously characterised legal professional privilege as a doctrine which turned the lawyer into the accomplice of his client. His views were the subject of a ferocious refutation in the pages of the Edinburgh Review by Thomas Denman, a barrister, member of Parliament, and lifelong friend of Lord Brougham, later to become Lord Chief Justice, who restated the classic view of the privilege as fundamental to the rights of the citizen. History has gone Denmans way and not Benthams. Lord Broughams judgment in Greenough v Gaskell remains to this day the classic statement of the rationale for legal advice privilege. In AM & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878, 913, Sir Gordon Slynn, Advocate General, after reviewing the law relating to the protection of confidences imparted to lawyers across the member states of the European Community observed Whether it is described as the right of the client or the duty of the lawyer, this principle has nothing to do with the protection or privilege of the lawyer. It springs essentially from the basic need of a man in a civilised society to be able to turn to his lawyer for advice and help, and if proceedings begin, for representation; it springs no less from the advantages to a society which evolves complex law reaching into all the business affairs of persons, real and legal, that they should be able to know what they can do under the law, what is forbidden, where they must tread circumspectly, where they run risks. More recently, in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610, Baroness Hale took up the same theme at para 61: It may thus impede the proper administration of justice in the individual case. This makes the communications covered different from most other types of confidential communication, where the need to encourage candour may be just as great. But the privilege is too well established in the common law for its existence to be doubted now. And there is a clear policy justification for singling out communications between lawyers and their clients from other professional communications. The privilege belongs to the client, but it attaches both to what the client tells his lawyer and to what the lawyer advises his client to do. It is in the interests of the whole community that lawyers give their clients sound advice, accurate as to the law and sensible as to their conduct. I do not propose to multiply citations, but it is right to point out that precisely the same underlying rationale has been given for the privilege in modern times by the Supreme Court of the United States: Upjohn Company v United States 449 US 383, 389 (1981); Swidler & Berlin v United States 524 US 399, 403 (1998). By the High Court of Australia: Esso Australia Resources Ltd v Commissioner of Taxation of the Commonwealth of Australia (1999) 201 CLR 49, at para 35; Daniels Corporation International Pty Ltd v Australian Competition and Consumer Commission (2002) 213 CLR 543 at para 44 (McHugh J). And by the Supreme Court of Canada: R v McClure [2001] SCC 14, [2001] 1 SCR 445, at paras 36 39. Doubts have sometimes been expressed about how important the assurance of absolute confidentiality really is to clients who consult legal advisers, particularly when they do so in civil or non contentious matters. How often these doubts are justified is impossible to say. We can assume that they sometimes, perhaps often are. As Lord Scott pointed out in Three Rivers (No 6) at para 34, it is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non disclosure that the present law of privilege provides. It does not matter for two reasons. The first is that the law is that the confidence must be protected if proper legal advice is to be obtained. It has been established in this sense for many years and no one is asking us to depart from it. The second, which is perhaps more satisfying, is that it would be wrong to depart from it in any event. The underlying principle is that those clients who do wish to consult a lawyer on the basis of absolute confidence should be entitled to do so, notwithstanding that absolute confidence may be less important to others. Consistently with the underlying principle, the modern case law has developed the law of privilege in three principal respects which are relevant to the issues on this appeal. First, the courts have held that the privilege is absolute, subject only to a narrowly defined exception for cases where the client is seeking legal advice in order to enable himself the better to commit a fraud or crime. In R v Derby Magistrates Court, Ex p B [1996] AC 487 the House of Lords, after reviewing the case law on the juridical basis of the privilege from its origins in the sixteenth century, held that it did not depend on balancing the public interest in sustaining the confidence against any competing public interest. In the circumstances of that case, it could not be overridden even if the information withheld was likely to be material evidence to exonerate a man charged with murder. Second, although litigation (civil or criminal) will generally be the occasion for seeking disclosure of information said to be privileged, the modern case law has reaffirmed the principle first stated by Lord Brougham that the privilege does not just exist in aid of forensic litigation. It attaches to confidences given in circumstances where no proceedings were contemplated or where the proceedings contemplated were not litigation but, for example, a domestic or public inquiry: Three Rivers District Council v Bank of England (No 6) [2005] 1 AC 610. Third, in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, Lord Hoffmann, with whom the rest of the House of Lords agreed, recognised at para 7 what was implicit in these propositions, namely that the privilege was not a mere procedural incident of the forensic process, but a fundamental human right long established in the common law, which was a necessary corollary of the right of any person to obtain skilled advice about the law. Legal advice privilege is sometimes described as essential to the effective administration of justice, and Lord Brougham himself put it that way. By this, they did not mean the effective conduct of legal proceedings. On the contrary, as Baroness Hale pointed out in her speech in Three Rivers (quoted above), privilege may obstruct the forensic process by making relevant evidence unavailable. Lord Scott pointed out in the same case, para 34, that the relevant public interest was in reality the rule of law, which depends upon the citizen being able without inhibition to find out what his legal position is. The complexity of the modern law and its progressive invasion of the interstices of daily life, have made this a public interest of greater importance than ever before. It is perhaps particularly significant in the area of tax law, where the citizen is brought up against the power of the state and the law is often technically complex. From the origins of the privilege in the late eighteenth century to the present day, the case law refers to it as attaching to the advice of lawyers, i.e. barristers, solicitors and attorneys and, in the very early days of the doctrine, the scriveners who drew up wills, charters and other legal instruments. In most of the early cases lawyers were identified in contradistinction not to other sources of professional legal advice, but to professionals whose advice was not legal at all, such as priests or doctors. Once this distinction became too well understood to require repetition, the references in the cases to the advice of lawyers persisted but simply reflected the assumption that lawyers were the only source of skilled professional legal advice. Until modern times, this assumption was correct. The routine resort to accountants for legal advice on tax does not seem to have become common until the 1960s. The only English case before this one to address directly the difference between legal advice received from barristers and solicitors on the one hand and other legal advisers on the other was Wilden Pump Engineering Co v Fusfeld [1985] FSR 159, in which it was held that patent agents were not lawyers and that privilege did not attach to their advice. I shall say something more about this case below. Once it is appreciated (i) that legal advice privilege is the clients privilege, (ii) that it depends on the public interest in promoting his access to legal advice on the basis of absolute confidence, and (iii) that it is not dependent on the status of the adviser, it must follow that there can be no principled reason for distinguishing between the advice of solicitors and barristers on the one hand and accountants on the other. The test is functional. The privilege is conferred in support of the clients right to consult a skilled professional legal adviser, and not in support of his right to consult the members of any particular professional body. The findings of Charles J, which are borne out by the evidence, show that today there are at least three professions whose practitioners have as part of their ordinary professional functions the giving of skilled legal advice on tax. Accountants are among them. Any distinction for this purpose between some skilled professional advisers and others is not only irrational, but inconsistent with the legal basis of the privilege. It would make it dependent not just on the nature of the advice or the circumstances in which it was given, which have always been relevant considerations, but to a substantial degree on the status of the adviser, which has not been a relevant consideration for 250 years. It is consistent with the view that I have expressed that the courts have in recent times expanded the categories of lawyer whose advice may attract privilege, in particular to cover salaried legal advisers and foreign lawyers. This development has been the natural consequence of the functional character of the test combined with the laws pragmatic willingness to recognise the changing patterns of professional life. The privilege attaching to the advice of salaried legal advisers was first recognised judicially by the Court of Appeal in Alfred Crompton Amusement Machines Ltd v Customs and Excise Commissioners (No 2) [1972] 2 QB 102. Lord Denning MR, at p 129, justified the result primarily on the ground that, although the communications of a corporation with an in house legal adviser were internal to the corporation, nevertheless the adviser was performing the same function as the lawyer in independent practice. Relevant communications with foreign lawyers have for many years attracted the same privilege for the same reason. In Lawrence v Campbell (1859) 4 Drew 485 privilege was claimed in English litigation for communications between a Scottish client and a Scottish solicitor practising in London. Sir Richard Kindersley V C held (at p 491) that the same principle that would justify an Englishman consulting his English solicitor would justify a Scotchman consulting a Scotch solicitor. Subsequently, communications with foreign lawyers were treated as being entitled as a matter of course to the same privilege as communications with English lawyers in like circumstances: see Macfarlan v Rolt (1872) LR 14 Eq 580; In re Duncan, decd [1968] P 306; Great Atlantic Insurance Co v Home Insurance Co [1981] 1 WLR 529, 535 536. Sir Sydney Kentridge QC, appearing for the Law Society, described these cases as anomalous. But he did not suggest that they were wrong. I think that they were clearly right, and I do not regard them as anomalous. They reflect the functional approach which English law has always taken to legal advice privilege. The only sustained arguments addressed to us for treating barristers and solicitors as having a special status justifying their unique treatment by the law of privilege were (i) that other professionals did not have the same stringent legal obligations of non disclosure as lawyers; and (ii) that barristers and solicitors have a unique relationship with the courts. The first of these points can be shortly dealt with. If privilege attaches to the tax advice of accountants in the same circumstances as it would attach to similar advice from a barrister or solicitor, then its legal incidents are exactly the same in either case. It does not matter that the professional rules of at least some accountants permit them to disclose confidential client information in some circumstances in which it could not lawfully be disclosed by a solicitor. These rules do not prevent accountants from assuming more stringent and less qualified obligations, and they would be treated as doing so by giving advice in privileged circumstances. This is because the juridical source of the accountants duty in relation to privileged material is the right of the client under the law of privilege, not the accountants professional rules. The second reason for attributing a unique status to the advice of barristers and solicitors was that the existence of the privilege has always depended on the close relationship of the courts with the legal professions. The authority of the judges, it is said, has always been the ultimate source of standards of admission and of the disciplinary powers exercisable over legal practitioners. But they have never been concerned with the professional standards or organisation of the accountancy profession. Sir Sydney Kentridge, who was mainly responsible for developing this argument, did not of course suggest that accountants were unworthy of being treated on a par with solicitors and barristers, nor was any such suggestion advanced by any one else on this appeal. His point was that judicial recognition and supervision of the legal profession was historically part of the basis on which privilege attached to their advice. This, he submitted, was not something that could be ignored simply because others have come to perform the same functions. This approach was to some extent invited by the concession of the appellants that the privilege would attach only to communications with members of recognised professions. But in my view the argument, like the concession which provoked it, is mistaken. In the first place, the main judicial safeguard against abuse lies, as Lord Denning pointed out in the Alfred Crompton case (p 129), in the right of the court to examine the legal and factual basis for any claim of privilege at the time when it is made. The court is in as good a position to do this when accountants are involved as it is when the advice was sought from lawyers. Secondly, none of the statements of principle in the case law have identified the relationship of lawyers with the court or the arrangements for the admission or discipline of lawyers as a relevant factor. If it had been, then the English courts would not have recognised a privilege for legal advice which was wholly independent of any forensic proceedings, actual or prospective. Nor would they have recognised the privilege attaching to the advice of foreign lawyers. There is no suggestion in any of the cases about foreign legal advice of any interest on the part of the English court in the standards of their training or discipline, and they are certainly not amenable to the supervision of English judges. Nor could Sir John Romilly have recognised the privilege attaching to the advice of a person whom the client believed to be a solicitor and professionally consulted on that basis, but who in fact was not: see Calley v Richards (1854) 19 Beav 401. Third, the legal basis of the privilege was worked out by the courts at a time when most claims for legal advice privilege concerned communications with solicitors and attorneys, whose professional standards were then notoriously low. Many of them were not enrolled and the courts supervision of their professional practices was nominal or non existent. This was particularly true of attorneys, who practised in the common law courts and whom Sir Vicary Gibbs, Chief Justice of Common Pleas from 1813, once memorably described as the growling jackals and predatory pilot fish of the law: see The Oxford History of the Laws of England, xi (2010), 1110 (the whole of this chapter repays reading). The high modern standing of solicitors (as all of them were called after 1873) was due very largely to the work of the Law Society, which was founded after 1825 to address this perception, and which together with its provincial affiliates gradually transformed the profession in the course of the nineteenth century. Neither Charles J nor the Court of Appeal took issue with these points in principle. On the contrary, Charles J considered, at paras 64 65, that the appellants had put forward a compelling, indeed unanswerable, case that in modern conditions accountants have the expertise to advise on tax law and it is firms of accountants, rather than firms of solicitors, who do give such advice and represent clients in disputes with the revenue on many aspects of their tax affairs. So in my view, Prudential have shown that accountants do what lawyers are described as doing in the cases that establish LPP. The courts below decided the question mainly on the ground that the wider implications of recognising a privilege attaching to the advice of accountants made it a matter for Parliament. Most of the argument addressed to us on behalf of the respondents and those interveners who supported them, was directed to this proposition. In reality, it comprises three distinct points. The first is a classic floodgates argument, namely that it would involve an extension of scope of the privilege which would considerably increase the number of persons whose advice qualified. The second argument is that recognising the privilege attaching to accountants advice would directly conflict with statute. The third is that fixing the boundaries of the privilege for legal advice from non lawyers and determining the conditions on which it was exercisable were inherently legislative processes. The main difficulty about the first point is its premise. This is that by recognising the privilege attaching to the legal advice of accountants we would be extending the scope of the privilege at common law. In my view this premise is wrong. Acceptance of the appellants basic submission would not involve any change to the principles governing the availability of legal advice privilege. It would only involve recognising that as a matter of fact much legal advice falling within those principles is nowadays given by legal advisers who are not barristers and solicitors but accountants. It is the function of the courts, and in particular of this court, to ensure that changes in legal, commercial or social practice are properly reflected in the way that the law is applied. I do not doubt that as a result the number of claims to privilege will be increased. But that is because the growing complexity of tax law and the increasing number of people and organisations affected by it, have led to an exponential increase in the number of people seeking legal advice. A mere increase in the number of people who can take advantage of an existing rule of law cannot be a good reason for failing to apply general principles coherently. Nor can it justify an arbitrary distinction between different professions performing exactly the same function. The second point (that the supposed extension of the privilege would be directly inconsistent with statute) was based on the provisions of sections 20 and 20B of the Taxes Management Act 1970, which were the legal basis of the Revenues demand in this case. Section 20(1) confers on an Inspector of Taxes the power to call for documents in the possession or power of the taxpayer, and section 20(3) confers on him a corresponding power to call for documents from third parties such as advisers. By section 20(9), these provisions are subject to the restrictions in section 20B. Under section 20B(3), only the Commissioners of Inland Revenue (not an Inspector) may exercise the power under section 20(1) or (3) against a barrister, advocate or solicitor. And by section 20B(8), a barrister, advocate or solicitor is not obliged to produce any document for which legal professional privilege could be maintained. Section 20B(9) and (11) make additional provision for dispensing auditors and tax advisers from having to produce relevant communications which are their property (i.e., in effect, their working papers) or which are merely explanatory. For this last purpose, a tax adviser means any person appointed to give advice about the tax affairs of another person. The argument is that these sections make special provision for the assertion of privilege in respect of communications with barristers and solicitors, thus implicitly excluding the assertion of privilege for communications with any one else. The point is said to be reinforced by the fact that Parliament has made distinct provision in section 20B(9) for documents in the possession of a broader category of tax advisers. In my view this argument cannot be accepted in the light of the decision of the House of Lords in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563, which concerned the same provisions of the Taxes Management Act. The relevant advice in that case had been given by solicitors and counsel, but the argument was similar. Section 20B(8) expressly preserved legal professional privilege in respect of documents requisitioned from third parties under section 20(3) but not in respect of documents requisitioned from the taxpayer himself under section 20(1). The point made for the Inland Revenue, as summarised by Lord Hoffmann at para 10, was that Parliament has provided a number of specific safeguards and restrictions for the protection of the taxpayer, including an express preservation of LPP for documents in the possession of a barrister, advocate or legal adviser. It therefore necessarily follows that no wider qualification of the general words of section 20(1) was intended: see also para 21. The argument failed essentially because the provisions relating to privilege in this part of the Act could not be regarded as a complete code governing its availability. Section 20B(8) was held to be directed at a limited problem arising from dicta in Parry Jones v Law Society [1969] 1 Ch 1, which appeared to suggest that documents in the hands of a lawyer were protected only by the law of confidence, not by privilege. As for section 20B(9), that was held to be irrelevant because it was not concerned with privilege at all: see paras 14 and 19. More generally, Lord Hoffmann, with whom the rest of the Appellate Committee agreed, held at para 8 that the fundamental character of the clients right to invoke privilege meant that it could be overridden by statute only if an intention to do so was expressly stated or appear[s] by necessary implication. As Lord Hobhouse pointed out in his concurring judgment, at para 45, A necessary implication is one which necessarily follows from the express provisions of the statute construed in their context. It distinguishes between what it would have been sensible or reasonable for Parliament to have included or what Parliament would, if it had thought about it, probably have included and what it is clear that the express language of the statute shows that the statute must have been included. A necessary implication is a matter of express language and logic not interpretation. The decision in Morgan Grenfell illustrates the difficulty of arguing that statutory provisions expressly reserving legal professional privilege in some circumstances impliedly override it in all others. The most that can be said about section 20B(8) in the present context is that, like some other statutes conferring power to requisition documents or information, it assumes that privilege is available only in cases where a barrister, advocate or solicitor is involved. That is understandable at a time when no court had pronounced on the application of privilege to tax advice given by any one else. But it is axiomatic that the assumptions of Parliament are not the same as its enactments. In my view it is impossible to spell out of these provisions a necessary implication that Parliament intended to confine the privilege to communications with lawyers even if the common law extended it to others. On the footing that privilege attaches to communications about tax advice from accountants on exactly the same basis as corresponding communications with lawyers, I can discern no rational reason why Parliament should have intended to distinguish between them. The truth is that Parliament was not intending to deal with the advice of non lawyers at all. I come therefore to the third of the arguments for leaving the present issue to Parliament, which is to my mind the strongest of them. It can fairly be summarised as follows: (1) Legal professional privilege has been extended by statute to patent and trade mark attorneys, licensed conveyancers, and persons who without being barristers or solicitors are authorised to provide certain legal services under the Courts and Legal Services Act 1990 or the Legal Services Act 2007. There has been no equivalent extension to accountants. (2) A substantial number of statutes confer on the police or regulatory and disciplinary bodies the powers to obtain documents or information, subject to reservations for legal professional privilege which refer to professional legal advisers. Other provisions, such as section 2 of the Criminal Justice Act 1987 (which confers a corresponding power on the Serious Fraud Office), preserve legal professional privilege subject to exceptions which refer in terms to lawyers. The possibility of extending the privilege to accountants was (3) considered on a number of occasions between 1967 and 2008, but on none of them was Parliament prompted to extend the privilege to the advice of accountants. (4) More generally, the question which professionals qualify would be left uncertain if the appellants argument succeeded. They are seeking the recognition only of the privileged status of tax advice given by members of the Institute of Chartered Accountants and the Chartered Institute of Taxation, but the principle which is said to justify such recognition would be capable of affecting a wider and wholly uncertain category of legal adviser. In my view, none of these considerations require this court to refrain from giving a principled answer to the question posed on this appeal. The first point to be made is that we are not here concerned with social or economic issues or other issues of macro policy which are classically the domain of Parliament. Nor are we concerned with legal principles derived from statute. Legal professional privilege is a creation of the common law, whose ordinary incidents are wholly defined by the common law. In principle, therefore, it is for the courts of common law to define the extent of the privilege. The characterisation of privilege as a fundamental human right at common law makes it particularly important that the courts should be able to perform this function. Fundamental rights should not be left to depend on capricious distinctions unrelated to the legal policy which makes them fundamental. Statute has intervened frequently in the past half century, but it is important to appreciate on what basis it has done so. In the great majority of cases, statute has intervened for the limited purpose of reserving privilege when creating new powers to obtain documents or information by compulsion. Sometimes, the privilege is reserved subject to some qualification, although the commonest qualification relates to the right to require a lawyer to disclose his clients name and address, something that would not necessarily be privileged anyway. Section 20 of the Taxes Management Act 1970 is one of the earliest interventions of this kind. They have become commoner as statutory regulation has become more pervasive and powers of compulsion have multiplied. Some of the enactments in question, like the Taxes Management Act itself, assume that the privilege applies only to communications involving barristers and solicitors. Some of them, particularly in more recent times, have assumed that it applies to communications involving legal advisers or professional legal advisers, a term which would naturally include any person who gives legal advice in the course of his profession. Provisions of these kinds are not concerned to define the extent or incidents of the privilege at common law. They operate by reference to the common law as it is declared by the courts. They may proceed on assumptions about the categories of legal adviser to which the relevant common law applies, which may be expressed with greater or lesser precision. Either way, assumptions of this kind are entirely consistent with the courts continuing to perform their historic role of clarifying and developing the common law. Indeed, the regularity of statutory intervention makes it the more important for the courts to declare the common law so that Parliament can proceed on a correct assumption about what it is. The problem at the moment is that Parliament is legislating against the background of assumptions about the common law which are contrary to principle, discriminatory and out of date. Only the courts can be expected to rectify that state of affairs. Certainly, the frequency of references to privilege in statutes providing for the compulsory provision of documents or information has not prevented the courts from recognising the privileged status of relevant dealings with foreign lawyers. A French notary or a German Rechtsanwalt, for example, could not properly be described as a barrister or solicitor for the purposes of section 20B(8) of the Taxes Management Act, but it would be surprising to hear it said that a client who consulted one of these professionals could not claim privilege for their communications in response to a requisition under section 20. The other purpose for which statute has intervened in recent years is to recognise certain professional activities other than those of barristers and solicitors as attracting the privilege. I find it difficult to attach much significance to this. None of the enactments in question attempt a comprehensive scheme of recognition which could make the omission of accountants tax advice significant. There has been piecemeal legislation applying the privilege to certain professional activities of patent and trade mark attorneys and licensed conveyancers. In the case of patent and trade mark attorneys, this was necessary in order to reverse the effect of Wilden Pump Engineering Co v Fusfeld [1985] FSR 159, which had held that their activities did not attract privilege. A more systematic attempt to address the issue was made by section 63 of the Courts and Legal Services Act 1990, which has now been superseded by section 190 of the Legal Services Act 2007. Section 190(2) of the 2007 Act provides that where advocacy, litigation, conveyancing or probate services are provided by individuals who are not barristers or solicitors, legal professional privilege is to attach in like manner as if [the individual] had at all material times been acting as [his] clients solicitor. By section 190(4), it is also to attach where a body licensed by the Legal Services Board provides services through a person who is a relevant lawyer or acts under the supervision or direction of a relevant lawyer. Relevant lawyers include solicitors, barristers, Scottish advocates, registered foreign lawyers, European lawyers and also an indeterminate category of persons authorised by the Board to carry on a reserved legal activity. These provisions can contribute very little to the present debate for two reasons. First, legal advice is not as such covered by the statutory scheme. It is regulated only so far as it is incidental to one of the services specified for the purpose of subsection (2) or the reserved legal activities relevant to subsection (4). The latter are defined in section 12. Secondly, section 190(7) provides that the rest of the section is without prejudice to any. rule of law by virtue of which a communication, a document, material or information is privileged from disclosure. So far as any policy can be discerned which is relevant to the present issue, it is to enable legal services to be supplied on a comparable basis as to privilege and other matters, irrespective of traditional demarcation lines between barristers, advocates and solicitors on the one hand and other persons providing the same services on the other. There is a well established difference between a case where Parliament has merely made assumptions about the common law in framing legislation, and cases where the legislation in question is workable only if that assumption is correct. It was pointed out by Lord Reid in Birmingham Corporation v West Midlands Baptist (Trust) Association Inc [1970] AC 874, 898F G, and the courts have implicitly addressed it on many occasions. Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70 is one of them. The House of Lords extended the right to restitution of unlawfully demanded tax, notwithstanding that important policy considerations were engaged and notwithstanding extensive statutory intervention in the relevant area. Lord Slynn observed at p 200 C E: I do not consider that the fact that Parliament has legislated extensively in this area means that no principle of recovery at common law can or should at this stage of the development of the law be found to exist. If the principle does exist that tax paid on a demand from the Crown when the tax was the subject of an ultra vires demand can be recovered as money had and received then, in my view, it is for the courts to declare it. In so doing they do not usurp the legislative function. I regard the proper approach as the converse. If the legislature finds that limitations on the common law principle are needed for reasons of policy or good administration then they can be adopted by legislation. At the other extreme, in Marcic v Thames Water Utilities Ltd [2004] 2 AC 42 and Johnson v Unisys [2003] 1 AC 518 the suggested developments of the common law would have made apparently comprehensive schemes of statutory regulation unworkable in the manner which Parliament intended. In a case like this, where the suggested development conflicts with some of the assumptions of Parliament but not with its intentions, the courts should be extremely wary before acceding to invitations to leave those assumptions uncorrected when their practical application has become anomalous or incoherent in the light of modern developments. Over the years, there have been some proposals to protect communications with accountants relating to tax advice by statute. Their rejection or abandonment is said by the respondents to suggest that Parliament has taken a position on the question. In 1967, the Law Reform Committee advised in its Sixteenth Report (Cmnd 3472) against creating a statutory privilege for confidential professional relationships generally. The privilege would have been an enhanced rule of confidentiality along the same lines as the secret professionnel in most European civil law jurisdictions. It would have applied to doctors, priests, bankers and accountants. It is, however, clear that the Committee was dealing with the possibility that such a privilege might be desirable by virtue of the confidential character of the relationship, rather than any public interest in enabling persons to take legal advice. This has nothing to do with legal professional privilege. The Keith Committee came rather closer to the mark when they reported in 1983 on the enforcement powers of the revenue departments (Cmnd 8822). The Committee considered (para 26.6.13) that there does not appear to be any reason to distinguish between a legally qualified tax agent and any other, at least in the tax field. They recommended by a majority that the privilege should extend to non legally qualified tax agents in private practice who were members of an incorporated society of accountants or the Institute of Taxation. They considered that the privilege should be subject in all cases (including lawyers) to a right in the tribunal to override it where its exercise would unreasonably impede the ascertainment of the facts. For reasons which do not appear to be recorded, nothing came of this proposal. It would have involved an extension of the categories of relevant adviser but some significant restrictions of the scope of the privilege. This may have been why it got no further. In 2003, the Government rejected a recommendation of the Director General of Fair Trading that accountants legal advice should be privileged on the same basis as that of lawyers, on the ground that the discrimination between them was anti competitive. Its stated reason was that it was undesirable to increase the number of people who could decline on the ground of privilege to produce information about money laundering transactions or tax avoidance schemes. Finally, there was a brief discussion in the committee stage of the Finance Bill 2008 of a proposed amendment to Schedule 36, which substantially re enacted the various powers of the revenue departments to requisition documents or information. Schedule 36 as enacted does in fact allow tax advisers (generally accountants) to withhold material requisitioned by the Revenue if they constitute communications for the purpose of giving or obtaining advice about a clients tax affairs. The proposed amendment was directed to the fact that whereas the advice of lawyers was to be privileged in the hands of both the adviser and the client, the corresponding statutory protection for communications with tax advisers applied only to material in the hands of the adviser. The same material could be obtained by compulsion from the client himself. The Financial Secretary to the Treasury said that the Government was reluctant to extend the protection for privileged material too widely but would consider the position, and on that basis the amendment was withdrawn. The matter does not seem to have resurfaced. The differentiation between material in the hands of the adviser and in the hands of the client was criticised as irrational by Lord Hoffmann in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2003] 1 AC 563 at para 22, in the context of section 20B(8) of the Taxes Management Act, which made a similar distinction in a case where the advice was sought from a lawyer. The same criticism was made by Sir Gordon Slynn as Advocate General in AM & S Europe Ltd v Commission of the European Communities (Case 155/79) [1983] QB 878, 913 914. It is a poor advertisement for the coherence of English statute law in this area. In my view these proposals and their reception fall a very long way short of suggesting that Parliament has implicitly taken a position on the application of legal professional privilege to communications with accountants. The material shows that the Government is reluctant to increase the number of claims to privilege in tax investigations, which will surprise no one. I do not think that it shows any more than that. Only the Keith Report and the Government response to the proposals of the Director General of Fair Trading directly address the question whether privilege or some statutory equivalent should attach to communications with accountants. The former appears to have been rather cursorily discussed in Parliament and the latter not at all. The proposal in 2008 to deal with the anomalous distinction between materials in the hands of a tax adviser and his client was discussed in Parliament, but was left inconclusively in Limbo. Looking at these matters in the round, one point stands out. Most of the policy considerations urged upon us on this appeal ultimately rest on concerns that privilege may get out of hand if it may be claimed in respect of legal advice from non lawyers. It is said that only Parliament can address this problem so far as it is one. I do not underestimate these concerns. But I do not think that they impinge on the issue in this appeal. This is because, although there are perfectly rational reasons why one might wish to see the scope of legal professional privilege limited or the occasions for claiming it curtailed, there are no rational reasons for addressing the issue by discriminating between different categories of legal adviser performing precisely the same function. If privilege is abused by professional legal advisers, and there is no evidence that it is, then the answer lies in (i) the scrutiny to which all claims to privilege are ultimately exposed in court, and (ii) in a sufficiently extreme case, professional disciplinary sanctions against those involved. None of this requires an arbitrary distinction to be made between different kinds of legal adviser which has no basis in principle. If on the other hand, the scope of privilege at common law is thought to be too broad, then the remedy is legislation to modify the common law principles as they apply to all professionals performing the relevant functions and not just some of them. As applied to tax advice this should be straightforward if there is enough Parliamentary support for it: there is a Finance Bill once a year. But none of this has anything to do with the present appeal. We are not here concerned with the breadth of the scope of privilege at common law, but only with identifying the categories of adviser to which the existing principles apply. I turn, finally, to the argument that in recognising that privilege attaches to the advice of members of the Institute of Chartered Accountants or the Chartered Institute of Taxation, we would be acknowledging a principle which would let in an uncertain and potentially large category of other professionals. I would accept that so far as other professionals are found to be giving legal advice on substantially the same basis as barristers and solicitors do, the privilege will apply to them in the same way. Coherence and rationality demand nothing less. But fears of a flood of privilege claims arising from the activities of supernumerary legal advisers strike me as extravagant. The privilege is confined, as it always has been, to the taking of legal advice in the course of a professional relationship with a person whose profession ordinarily includes the giving of legal advice. There are other advisory professions whose practitioners although not lawyers require some knowledge of law. A chartered surveyor advising on the structural integrity of a building may require a knowledge of the building regulations. An investment banker advising on a takeover may require a knowledge of the Takeover Code and associated regulatory codes. An auditor will require a basic knowledge of company and insolvency law. The activities of these professionals will no doubt be informed by their understanding of the relevant law. But it does not follow that their profession has as an ordinary part of its functions the giving of legal advice. The legal element involved in their advisory work is likely to be purely incidental to the exercise of a broader advisory function. The distinctive feature of accountants advice on tax law is that advice on tax law is itself the service which clients routinely seek from them. I very much doubt whether many other professions will find themselves in the same position. It may be that patent agents did in 1984 when the Court of Appeal held in Wilden Pump Engineering Co v Fusfeld [1985] FSR 159 that their legal advice did not attract privilege. But so far as this decision is based on the proposition that communications for the purpose of giving or receiving legal advice are never capable of being privileged if given by non lawyers, I think that it was wrong. As far as patent and trade mark attorneys are concerned, the point no longer matters. Their position has since been regulated by statute. I would allow the appeal and remit the case to the High Court to decide whether the material requisitioned by the respondent would have been privileged if a solicitor or barrister had performed the functions that the accountants performed, and a direction to quash the notices if it would have been. LORD CLARKE (dissenting) I have read the judgments of Lord Neuberger, Lord Sumption and Lord Hope with great interest. I agree with Lord Sumption that the appeal should be allowed, essentially for the reasons he gives. I briefly summarise my reasons for reaching that conclusion because the true position at common law does seem to me to be a matter of some importance and I hope that the whole issue will be considered by Parliament as soon as reasonably practicable. The striking feature of the judgments of Lord Neuberger and Lord Sumption, and indeed of Lord Hope, is to my mind that they agree what the common law is or should be if the issue is treated as one of principle. As I see it, that principle can readily be seen by taking a simple example. Suppose that two individuals, A and B, have the same problem, the solution to which depends upon an application of the legal principles of taxation law to the same, or substantially the same, facts. Suppose that A seeks advice from, say, Freshfields, and that B seeks advice from, say, PricewaterhouseCoopers. Each asks the same question and gives an account of what are substantially the same facts to the person from whom the advice is sought. Each is receiving legal advice. The question for decision in this appeal is whether the information given and the advice received are privileged as legal advice. Are both A and B entitled to claim the privilege and refuse to disclose to HMRC the information and the advice? In my opinion, the only principled answer to that question is yes. It is accepted on all sides that the privilege is that of the client, that is A and B, and not that of either the solicitors or the accountants. It is also accepted that, as recently confirmed in R (Morgan Grenfell & Co Ltd) v Special Commissioner of Income Tax [2002] UKHL 21, [2003] 1 AC 563, the privilege is a fundamental human right long established in the common law, which was a necessary corollary of the right of any person to obtain skilled advice about the law: per Lord Hoffmann, with whom the other members of the House of Lords agreed, at para 7. As Lord Sumption says at para 122, the privilege depends upon the public interest in promoting A and Bs access to legal advice on the basis of absolute confidence. It seems to me to follow that, if the common law treats the information and advice as privileged in the case of A, principle requires that it must do the same in the case of B. The advice is the same legal advice in both cases and the expertise of the adviser in each case is broadly similar, if not the same. Indeed some accountants may be able to give more specialised legal advice than some solicitors. I agree with Lord Sumption, for the reasons he gives (at para 122), that the privilege is conferred in support of the clients right to consult a skilled professional adviser and not in support of a right to consult the members of any particular professional body. On the respondents case, as Lord Sumption describes at para 123, the privilege extends to advice given by salaried legal advisers and to foreign lawyers. According to Lord Neuberger at para 29, it also extends to members of CILEX. The privilege also applied historically to scriveners. It is thus clear that it is not limited to advice given by solicitors and barristers. If it extends to foreign lawyers, it is to my mind impossible to see how it can properly be denied in the case of advice given by an accountant qualified to give advice on the law of tax. It is important to note that the issue in this appeal relates only to legal advice privilege and not litigation privilege. It is thus not directly related to the administration of the courts by judges. Lord Scott put it clearly in Three Rivers District Council v Governor and Company of the Bank of England (No 6) [2005] 1 AC 610 at para 34: None of these judicial dicta tie the justification for legal advice privilege to the conduct of litigation. They recognise that in the complex world in which we live there are a multitude of reasons why individuals, whether humble or powerful, or corporations, whether large or small, may need to seek the advice or assistance of lawyers in connection with their affairs; they recognise that the seeking and giving of this advice so that the clients may achieve an orderly arrangement of their affairs is strongly in the public interest; they recognise that in order for the advice to bring about that desirable result it is essential that the full and complete facts are placed before the lawyers who are to give it; and they recognise that unless the clients can be assured that what they tell their lawyers will not be disclosed by the lawyers without their (the clients) consent, there will be cases in which the requisite candour will be absent. It is obviously true that in very many cases clients would have no inhibitions in providing their lawyers with all the facts and information the lawyers might need whether or not there were the absolute assurance of non disclosure that the present law of privilege provides. But the dicta to which I have referred all have in common the idea that it is necessary in our society, a society in which the restraining and controlling framework is built upon a belief in the rule of law, that communications between clients and lawyers, whereby the clients are hoping for the assistance of the lawyers legal skills in the management of their (the clients) affairs, should be secure against the possibility of any scrutiny from others, whether the police, the executive, business competitors, inquisitive busybodies or anyone else (see also paras 15.8 to 15.10 of Zuckermans Civil Procedure (2003) where the author refers to the rationale underlying legal advice privilege as the rule of law rationale). I, for my part, subscribe to this idea. It justifies, in my opinion, the retention of legal advice privilege in our law, notwithstanding that as a result cases may sometimes have to be decided in ignorance of relevant probative material. That same analysis seems to me to lead to the conclusion that where advice on tax law is sought from and given by an accountant it should be subject to legal advice privilege in the same way and that there is no difference between the positions of A and B in my example. It was no doubt considerations of this kind that led Charles J to say in this case at first instance (at paras 64 65), in my opinion correctly, that there is a compelling, indeed unanswerable, case that in modern conditions accountants have the expertise to advise on tax law and that it is firms of accountants rather than firms of solicitors who give such advice and represent clients in disputes with the HMRC on many aspects of their tax affairs. He concluded that the respondents had shown that accountants do what lawyers are described as doing in the cases that establish legal advice privilege. Lord Neuberger has demonstrated that the ambit of the privilege as widely understood is that it is limited to lawyers and does not extend to accountants. He has not, however, been able to point to any principled analysis of the reason why it is so limited. The decided cases do not provide such an analysis. For example, in a case entitled Dormeuil Trade Mark [1983] RPC 131, in which privilege was claimed in respect of the disclosure of correspondence between the plaintiffs and their trade mark agents, although Nourse J rejected the claim, he did not give any principled basis for doing so. He noted at page 136 that historically cases had been conducted only by solicitors and counsel and added this: [Counsel for the defendants] says that in those days it was never necessary for anybody to consider whether the privilege should apply in a case where other professional men, far less non professional men, were concerned in advising clients, or indeed in conducting litigation on their behalf. He says that in these days the rule should be different. Like the learned Master, I see great force in that submission. It does seem to me to be a little odd and possibly perverse, that if a trade mark agent is entitled to advise a client in relation to certain legal matters and to conduct certain legal proceedings on his behalf, the same privilege should not apply as would certainly apply in a case where the advice was being given and the proceedings were being conducted by a solicitor. Nevertheless I do not think it is open to me in this court to fly in the face of the established rule, as enunciated in Wheeler v Le Marchant, the statement of Chitty J in Moseley v Victoria Rubber Company, and the fact that in 1968 the legislature seemed to think it was necessary expressly to extend the privilege to the case of patent agents. In the circumstances Nourse J made the order with some reluctance. He certainly did not identify the principle behind the rule. Nor did either of the cases he referred to. In Wheeler v Le Marchant (1881) 17 Ch D 675 the Court of Appeal made it clear that the privilege was limited to legal advice obtained from professional persons, by which was meant, as Nourse J put it at p 135, persons who have a full legal qualification here or abroad. In Moseley v Victoria Rubber Company (1886) 55 LT 482 Chitty J had said that it was quite clear that communication between a man and his patent agent were not privileged. He did not identify the rationale for such a rule. Nor to my mind did Wilden Pump Engineering Co v Fusfeld [1985] FSR 159. In any event, I agree with Lord Sumption (at para 137) that, to the extent that that decision was based on the proposition that communications for the purpose of giving or receiving legal advice are never capable of being privileged if given to non lawyers, it was wrong. Legal advice privilege is a creature of the common law. As such it should be capable of redefinition to cater for changed conditions. If principle requires that it should apply to situations to which it was previously thought not to apply, I can see no reason why this court should not so state, unless prevented from doing so, either expressly or necessary implication, by statute. We have been referred to no such statute. Attention has been drawn to a number of areas in which Parliament may have assumed that the common law was different. However, in my opinion the principle identified by Lord Slynn in Woolwich Equitable Building Society v Inland Revenue Comrs [1993] AC 70, at p 200C E (and quoted by Lord Sumption at para 134 above) applies equally to the issue for decision in this appeal. He put the point thus: I do not consider that the fact that Parliament has legislated extensively in this area means that no principle of recovery at common law can or should at this stage of the development of the law be found to exist. If the principle does exist that tax paid on a demand from the Crown when the tax was the subject of an ultra vires demand can be recovered as money had and received then, in my view, it is for the courts to declare it. In so doing they do not usurp the legislative function. I regard the proper approach as the converse. If the legislature finds that limitations on the common law principle are needed for reasons of policy or good administration then they can be adopted by legislation. If principle requires the court to hold that legal advice privilege extends to advice given by accountants on a professional basis, the court should in my opinion so declare. As Lord Slynn put it, if the legislature finds that limitations on that principle are required for reasons of policy they can be adopted by legislation. It is of interest to note that when the Keith committee considered the position, it could not identify a rationale for the distinction advanced on behalf of the respondents and it did not recommend the continuation of the status quo. As Lord Sumption observes at para 135, it recommended that the privilege should extend to at least some tax advisers but that it should be subject to a limitation in all cases. As Lord Sumption says, the matter was only cursorily discussed in Parliament. In all the circumstances, I do not think that any of the pragmatic considerations identified by Lord Neuberger and Lord Hope are sufficient to confer the privilege on A in my example and to deny it to B. I agree with Lord Sumptions striking conclusion at the end of para 131 that fundamental rights should not be left to depend on capricious distinctions unrelated to the legal policy which makes them fundamental. Lord Sumption expresses the view in para 114 that the privilege extends to advice given by members of a profession which has as an ordinary part of its function the giving of skilled legal advice. I would expect that criterion to be satisfied only where, and to the extent, that they are members of a properly regulated professional body. For these reasons, which are essentially the same as those of Lord Sumption, I would allow the appeal and make the order which he proposes.

This appeal concerns the scope of legal advice privilege. Legal advice privilege applies to all communications passing between a client and its lawyers, acting in their professional capacity, in connection with the provision of legal advice. The specific issue raised by this appeal is whether, following receipt of a statutory notice from an inspector of taxes to produce documents in connection with its tax affairs, a company is entitled to refuse to comply on the ground that the documents are covered by legal advice privilege, in a case where the legal advice was given by accountants in relation to a tax avoidance scheme. The more general question raised by this issue is whether legal advice privilege extends, or should be extended, so as to apply to legal advice given by someone other than a member of the legal profession, and, if so, how far legal advice privilege thereby extends, or should be extended. In 2004, PricewaterhouseCoopers (PwC) devised a marketed tax avoidance scheme (the scheme). PwC adapted the scheme for the benefit of the Prudential group of companies, who implemented the scheme through a series of transactions (the transactions). The inspector of taxes considered it necessary to look into the details of the transactions. To that end, he served notices under section 20B(1) of the Taxes Management Act 1970 on Prudential (Gibraltar) Ltd and Prudential plc (together Prudential) giving them the opportunity to make available specified classes of documents. Prudential refused to disclose certain documents (the disputed documents) on the ground that Prudential was entitled to claim legal advice privilege in respect of them, because they related to the seeking (by Prudential) and the giving (by PwC) of legal advice in connection with the transactions. The inspector obtained authorisation from the Special Commissioners to require Prudential to disclose the disputed documents. Prudential issued an application for judicial review challenging the validity of those notices. Charles J rejected the application on the ground that, although the disputed documents would have attracted legal advice privilege if the advice in question had been sought from, and provided by, a member of the legal profession, no such privilege extended to advice, even if identical in nature, provided by a professional person who was not a qualified lawyer. His decision was upheld, substantially for the same reasons, by the Court of Appeal (Mummery, Lloyd and Stanley Burnton LJJ). The Supreme Court, by a majority of five to two (Lord Clarke and Lord Sumption dissenting), dismisses the appeal. Lord Neuberger gives the lead judgment for the majority. The majority hold that legal advice privilege should not be extended to communications in connection with advice given by professional people other than lawyers, even where that advice is legal advice which that professional person is qualified to give [51]. To do so would extend legal advice privilege beyond what are currently, and have for a long time been, understood to be its limits [37], [80]. It is universally believed that legal advice privilege only applies to communications in connection with advice given by members of the legal profession [29]. There are clear judicial statements of high authority to that effect [30]. The current editions of textbooks on privilege and evidence, as well as more than one significant official report, have proceeded on this basis [32], [33]. Extending legal advice privilege to any case where legal advice is given by a person who is a member of a profession which ordinarily includes the giving of legal advice would be likely to lead to a clear and well understood principle becoming uncertain, because it is unclear which occupations would be members of a profession for this purpose [52] [55], [80], [100]. There would be room for uncertainty, expenditure, and inconsistency, if the court had to decide whether a group constitutes a profession for the purposes of legal advice privilege [56]. It is also unclear how a court would decide whether a profession is one which ordinarily includes the giving of legal advice [57], [91]. Where members of other professions give legal advice, it will often not represent the totality of the advice, so it may also be difficult to decide how to deal with documents which contain legal and non legal advice [59]. Further, the extension of legal advice privilege to cases where legal advice is given from professional people who are not qualified lawyers raises questions of policy which should be left to Parliament [52], [81], [92]. The consequences of extending legal advice privilege should be considered through the legislative process, with its wide powers of inquiry and consultation and its democratic accountability [62]. The extension of legal advice privilege to professions other than lawyers may only be appropriate on a conditional or limited basis, which cannot appropriately be assessed, let alone imposed, by the courts [65]. Parliament has on a number of occasions legislated in this field on the assumption that legal advice privilege only applies to advice given by lawyers. Therefore it would be inappropriate for the Supreme Court to extend the law [52]. The minority consider that legal advice privilege extends to advice given by members of a profession which has as an ordinary part of its function the giving of skilled legal advice [114], [148], and that recognising the privilege attaching to the legal advice of accountants would not be extending the scope of legal advice privilege [128]. English law has always taken a functional approach to legal advice privilege [123]. On this view, the availability of legal advice privilege depends on the character of advice which the client is seeking and the circumstances in which it is given, and not on the advisers status, provided that the advice is given in a professional context [114], [142]. Lord Reed adds some observations about the case from a Scottish perspective, without intending to pre empt a full discussion on the matter should the issue arise in Scottish proceedings [102] [113]. These observations are made on the basis that the general principle, its fundamental importance, and the considerations of public policy which underlie it, are common to both Scots law and English law. Lord Reed concludes that if the question were to arise in Scotland whether the common law privilege should be extended to legal advice given by accountants, the courts would have to make a policy decision [113].

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This case concerns the framework which will govern an application for the grant of development consent for the construction of a third runway at Heathrow Airport. This is a development scheme promoted by the appellant, Heathrow Airport Ltd (HAL), the owner of the airport. As a result of consideration over a long period, successive governments have come to the conclusion that there is a need for increased airport capacity in the South East of England to foster the development of the national economy. An independent commission called the Airports Commission was established in 2012 under the chairmanship of Sir Howard Davies to consider the options. In its interim report dated 17 December 2013 the Airports Commission reached the conclusion that there was a clear case for building one new runway in the South East, to come into operation by 2030. In that report the Airports Commission set out scenarios, including a carbon traded scenario under which overall carbon dioxide (CO) emissions were set at a cap consistent with a goal to limit global warming to 2C. The Commission reduced the field of proposals to three main candidates. Two of these involved building additional runway capacity at Heathrow Airport, either to the north west of the existing two runways (the NWR Scheme) or by extending the existing northern runway (the ENR Scheme). The third involved building a second runway at Gatwick airport (the G2R Scheme). The Airports Commission carried out an extensive consultation on which scheme should be chosen. In its final report dated 1 July 2015 (the Airports Commission Final Report) the Commission confirmed that there was a need for additional runway capacity in the South East by 2030 and concluded that, while all three options could be regarded as credible, the NWR Scheme was the best way to meet that need, if combined with a significant package of measures which addressed environmental and community impacts. The Government carried out reviews of the Airports Commissions analysis and conclusions. It assessed the Airports Commission Final Report to be sound and robust. On 14 December 2015 the Secretary of State for Transport (the Secretary of State) announced that the Government accepted the case for airport expansion; agreed with, and would consider further, the Airports Commissions short list of options; and would use the mechanism of a national policy statement (NPS) issued under the Planning Act 2008 (the PA 2008) to establish the policy framework within which to consider an application by a developer for a development consent order (DCO). The announcement also stated that further work had to be done in relation to environmental impacts, including those arising from carbon emissions. In parallel with the development of national airports policy, national and international policy to combat climate change has also been in a state of development. The Climate Change Act 2008 (the CCA 2008) was enacted on the same day as the PA 2008. It sets a national carbon target (section 1) and requires the Government to establish carbon budgets for the UK (section 4). There are mechanisms in the CCA 2008 to adjust the national target and carbon budgets (in sections 2 and 5, respectively) as circumstances change, including as scientific understanding of global warming develops. In 1992, the United Nations adopted the United Nations Framework Convention on Climate Change. 197 states are now parties to the Convention. Following the 21st Conference of the parties to the Convention, on 12 December 2015 the text of the Paris Agreement on climate change was agreed and adopted. The Paris Agreement set out certain obligations to reduce emissions of greenhouse gases, in particular CO2, with the object of seeking to reduce the rate of increase in global warming and to contain such increase to well below 2oC above, and if possible to 1.5oC, above pre industrial levels. On 22 April 2016 the United Kingdom signed the Paris Agreement and on 17 November 2016 the United Kingdom ratified the Agreement. An expansion of airport capacity in the South East would involve a substantial increase in CO2 emissions from the increased number of flights which would take place as a result. The proposals for such expansion have therefore given rise to a considerable degree of concern as to the environmental impact it would be likely to have on global warming and climate change. This is one aspect of the proposals for expansion of airport capacity, among many others, which have made the decision whether to proceed with such expansion a matter of controversy. On 25 October 2016, the Secretary of State announced that the NWR Scheme was the Governments preferred option. In February 2017 the Government commenced consultation on a draft of an Airports NPS which it proposed should be promulgated pursuant to the PA 2008 to provide the national policy framework for consideration of an application for a DCO in respect of the NWR Scheme. A further round of consultation on a draft of this NPS was launched in October 2017. There were many thousands of responses to both consultations. In June 2018 the Government published its response to the consultations. It also published a response to a report on the proposed scheme dated 1 November 2017 by the Transport Committee (a Select Committee of the House of Commons). On 5 June 2018 the Secretary of State laid before Parliament the final version of the Airports NPS (the ANPS), together with supporting documents. As is common ground on this appeal, the policy framework set out in the ANPS makes it clear that issues regarding the compatibility of the building of a third runway at Heathrow with the UKs obligations to contain carbon emissions and emissions of other greenhouse gases could and should be addressed at the stage of the assessment of an application by HAL for a DCO to allow it to proceed with the development. As is also common ground, the ANPS makes it clear that the emissions obligations to be taken into account at the DCO stage will be those which are applicable at that time, assessed in the light of circumstances and the detailed proposals of HAL at that time. On 25 June 2018 there was a debate on the proposed ANPS in the House of Commons, followed by a vote approving the ANPS by 415 votes to 119, a majority of 296 with support from across the House. On 26 June 2018 the Secretary of State designated the ANPS under section 5(1) of the PA 2008 as national policy. It is the Secretary of States decision to designate the ANPS which is the subject of legal challenge in these proceedings. Objectors to the NWR Scheme commenced a number of claims against the Secretary of State to challenge the lawfulness of the designation of the ANPS on a wide variety of grounds. For the most part, those claims have been dismissed in the courts below in two judgments of the Divisional Court (Hickinbottom LJ and Holgate J) in the present proceedings, [2019] EWHC 1070 (Admin); [2020] PTSR 240, and an associated action ([2019] EWHC 1069 (Admin)) and in the judgment of the Court of Appeal in the present proceedings: [2020] EWCA Civ 214; [2020] PTSR 1446. The Divisional Court dismissed all the claims brought by objectors, including those brought by the respondents to this appeal (Friends of the Earth FoE and Plan B Earth). FoE is a non governmental organisation concerned with climate change. Plan B Earth is a charity concerned with climate change. However, the Court of Appeal allowed appeals by FoE and Plan B Earth and granted declaratory relief stating that the ANPS is of no legal effect and that the Secretary of State had acted unlawfully in failing to take into account the Paris Agreement in making his decision to designate the ANPS. The Court of Appeal set out four grounds for its decision: (i) The Secretary of State breached his duty under section 5(8) of the PA 2008 to give an explanation of how the policy set out in the ANPS took account of Government policy, which was committed to implementing the emissions reductions targets in the Paris Agreement (the section 5(8) ground); (ii) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, to have regard to the desirability of mitigating and adapting to climate change, in that he failed to have proper regard to the Paris Agreement (the section 10 ground); (iii) The Secretary of State breached his duty under article 5 of the Strategic Environmental Assessment Directive (the SEA Directive, Directive 2001/42/EC of the European Parliament and of the Council on the assessment of the effects of certain plans and programmes on the environment) to issue a suitable environmental report for the purposes of public consultation on the proposed ANPS, in that he failed to refer to the Paris Agreement (the SEA Directive ground); and (iv) The Secretary of State breached his duty under section 10 of the PA 2008, when promulgating the ANPS, in that he failed to have proper regard to (a) the desirability of mitigating climate change in the period after 2050 (the post 2050 ground) and (b) the desirability of mitigating climate change by restricting emissions of non CO impacts of aviation, in particular nitrous oxide (the non CO2 emissions ground). The Court of Appeal also rejected a submission by HAL, relying on section 31 of the Senior Courts Act 1981, that it should exercise its discretion as to remedy to refuse any relief, on the grounds that (HAL argued) it was highly likely that even if there had been no breach of duty by the Secretary of State the decision whether to issue the ANPS would have been the same. HAL appeals to this court with permission granted by the court. HAL is joined in the proceedings as an interested party. It has already invested large sums of money in promoting the NWR Scheme and wishes to carry it through by applying for a DCO in due course and then building the proposed new runway. The Secretary of State has chosen not to appeal and has made no submissions to us. However, HAL is entitled to advance all the legal arguments which may be available in order to defend the validity of the ANPS. Prior to the Covid 19 pandemic, Heathrow was the busiest two runway airport in the world. The pandemic has had a major impact in reducing aviation and the demand for flights. However, there will be a lead time of many years before any third runway at Heathrow is completed and HALs expectation is that the surplus of demand for aviation services over airport capacity will have been restored before a third runway would be operational. Lord Anderson QC for HAL informed the court that HAL intends to proceed with the NWR Scheme despite the pandemic. The Planning Act 2008 We are grateful to the Divisional Court for their careful account of the PA 2008, on which we draw for this section. The PA 2008 established a new unified development consent procedure for nationally significant infrastructure projects defined to include certain airport related development including the construction or alteration of an airport that is expected to be capable of providing air passenger services for at least 10m passengers per year (sections 14 and 23). Originally, many of the primary functions under the Act were to be exercised by the Infrastructure Planning Commission, established under section 1. However, those functions were transferred to the Secretary of State by the Localism Act 2011. The mischiefs that the Act was intended to address were identified in the White Paper published in May 2007, Planning for a Sustainable Future (Cm 7120) (the 2007 White Paper). Prior to the PA 2008, a proposal for the construction of a new airport or extension to an airport would have required planning permission under the Town and Country Planning Act 1990. An application for permission would undoubtedly have resulted in a public inquiry, whether as an appeal against refusal of consent or a decision by the Secretary of State to call in the matter for his own determination. As paragraph 3.1 of the 2007 White Paper said: A key problem with the current system of planning for major infrastructure is that national policy and, in particular, the national need for infrastructure, is not in all cases clearly set out. This can cause significant delays at the public inquiry stage, because national policy has to be clarified and the need for the infrastructure has to be established through the inquiry process and for each individual application. For instance, the absence of a clear policy framework for airports development was identified by the inquiry secretary in his report on the planning inquiry as one of the key factors in the very long process for securing planning approval for Heathrow Terminal 5. Considerable time had to be taken at the inquiry debating whether there was a need for additional capacity. The Government has since responded by publishing the Air Transport White Paper to provide a framework for airport development. This identifies airport development which the Government considers to be in the national interest, for reference at future planning inquiries. But for many other infrastructure sectors, national policy is still not explicitly set out, or is still in the process of being developed. Paragraph 3.2 identified a number of particular problems caused by the absence of a clear national policy framework. For example, inspectors at public inquiries might be required to make assumptions about national policy and national need, often without clear guidance and on the basis of incomplete evidence. Decisions by Ministers in individual cases might become the means by which government policy would be expressed, rather than such decisions being framed by clear policy objectives beforehand. In the absence of a clear forum for consultation at the national level, it could be more difficult for the public and other interested parties to have their say in the formulation of national policy on infrastructure. The ability of developers to make long term investment decisions is influenced by the availability of clear statements of government policy and objectives, and might be adversely affected by the absence of such statements. The 2007 White Paper proposed that national policy statements would set the policy framework for decisions on the development of national infrastructure. They would integrate the Governments objectives for infrastructure capacity and development with its wider economic, environmental and social policy objectives, including climate change goals and targets, in order to deliver sustainable development. The role of Ministers would be to set policy, in particular the national need for infrastructure development (para 3.4). Paragraph 3.11 envisaged that any public inquiry dealing with individual applications for development consent would not have to consider issues such as whether there is a case for infrastructure development, or the types of development most likely to meet the need for additional capacity, since such matters would already have been addressed in the NPS. It was said that NPSs should have more weight than other statements of policy, whether at a national or local level: they should be the primary consideration in the determination of an application for a DCO (para 3.12), although other relevant considerations should also be taken into account (para 3.13). To provide democratic accountability, it was said that NPSs should be subject to Parliamentary scrutiny before being adopted (para 3.27). In line with the 2007 White Paper recommendation, Part 2 of the PA 2008 provides for NPSs which give a policy framework within which any application for development consent, in the form of a DCO, is to be determined. Section 5(1) gives the Secretary of State the power to designate an NPS for development falling within the scope of the Act; and section 6(1) provides that [t]he Secretary of State must review each [NPS] whenever the Secretary of State thinks it appropriate to do so. The content of an NPS is governed by section 5(5) (8) which provide that: set out the relative weight to be given to specified (5) The policy set out in [an NPS] may in particular (a) set out, in relation to a specified description of development, the amount, type or size of development of that description which is appropriate nationally or for a specified area; (b) set out criteria to be applied in deciding whether a location is suitable (or potentially suitable) for a specified description of development; (c) criteria; (d) identify one or more locations as suitable (or potentially suitable) or unsuitable for a specified description of development; (e) identify one or more statutory undertakers as appropriate persons to carry out a specified description of development; (f) set out circumstances in which it is appropriate for a specified type of action to be taken to mitigate the impact of a specified description of development. [An NPS] must give reasons for the policy set out in the (6) If [an NPS] sets out policy in relation to a particular description of development, the statement must set out criteria to be taken into account in the design of that description of development. (7) statement. (8) The reasons must (in particular) include an explanation of how the policy set out in the statement takes account of Government policy relating to the mitigation of, and adaptation to, climate change. As is made clear, the NPS may (but is not required to) identify a particular location for the relevant development. provides (so far as relevant to these claims): In addition, under the heading Sustainable development, section 10 (1) This section applies to the Secretary of States functions under sections 5 and 6. (2) The Secretary of State must, in exercising those functions, do so with the objective of contributing to the achievement of sustainable development. (3) For the purposes of subsection (2) the Secretary of State must (in particular) have regard to the desirability of (a) mitigating, and adapting to, climate change; The process for designation of an NPS is also set out in the Act. The PA 2008 imposed for the first time a transparent procedure for the public and other consultees to be involved in the formulation of national infrastructure policy in advance of any consideration of an application for a DCO. The Secretary of State produces a draft NPS, which is subject to (i) an appraisal of sustainability (AoS) (section 5(3)), (ii) public consultation and publicity (section 7), and (iii) Parliamentary scrutiny (sections 5(4) and 9). In addition, there is a requirement to carry out a strategic environmental assessment under the SEA Directive as transposed by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633) (the SEA Regulations) (see regulation 5(2) of the SEA Regulations). The consultation and publicity requirements are set out in section 7, which so far as relevant provides: (1) This section sets out the consultation and publicity requirements referred to in sections 5(4) and 6(7). (2) The Secretary of State must carry out such consultation, and arrange for such publicity, as the Secretary of State thinks appropriate in relation to the proposal. This is subject to subsections (4) and (5). (3) In this section the proposal means (a) the statement that the Secretary of State proposes to designate as [an NPS] for the purposes of this Act or (b) (as the case may be) the proposed amendment. (4) The Secretary of State must consult such persons, and such descriptions of persons, as may be prescribed. (5) If the policy set out in the proposal identifies one or more locations as suitable (or potentially suitable) for a specified description of development, the Secretary of State must ensure that appropriate steps are taken to publicise the proposal. (6) The Secretary of State must have regard to the responses to the consultation and publicity in deciding whether to proceed with the proposal. A proposed NPS must be laid before Parliament (section 9(2) and (8)). The Act thus provides an opportunity for a committee of either House of Parliament to scrutinise a proposed NPS and to make recommendations; and for each House to scrutinise it and make resolutions (see section 9(4)). An NPS is not the end of the process. It simply sets the policy framework within which any application for a DCO must be determined. Section 31 provides that, even where a relevant NPS has been designated, development consent under the PA 2008 is required for development to the extent that the development is or forms part of a nationally significant infrastructure project. Such applications must be made to the relevant Secretary of State (section 37). Chapter 2 of Part 5 of the Act makes provision for a pre application procedure. This provides for a duty to consult pre application, which extends to consulting relevant local authorities and, where the land to be developed is in London, the Greater London Authority (section 42). There are also duties to consult the local community, and to publicise and to take account of responses to consultation and publicity (sections 47 49; and see also regulation 12 of the Infrastructure Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/572), which makes provision for publication of and consultation on preliminary environmental information). Any application for a DCO must be accompanied by a consultation report (section 37(3)(c)); and adequacy of consultation is one of the criteria for acceptance of the application (section 55(3) and (4)(a)). Part 6 of the PA 2008 is concerned with Deciding applications for orders granting development consent. Once the application has been accepted, section 56 requires the applicant to notify prescribed bodies and authorities and those interested in the land to which the application relates, who become interested parties to the application (section 102). The notification must include a notice that interested parties may make representations to the Secretary of State. Section 60(2) provides that where a DCO application is accepted for examination there is a requirement to notify any local authority for the area in which land, to which the application relates, is located (see section 56A)) and, where the land to be developed is in London, the Greater London Authority, inviting them each to submit a local impact report (section 60(2)). The Secretary of State may appoint a panel or a single person to examine the application (the Examining Authority) and to make a report setting out its findings and conclusions, and a recommendation as to the decision to be made on the application. The examination process lasts six months, unless extended (section 98); and the examination timetable is set out in the Infrastructure Planning (Examination Procedure) Rules 2010 (SI 2010/103) (the Examination Rules). In addition to local impact reports (section 60), the examination process involves written representations (section 90), written questions by the Examining Authority (rules 8 and 10 of the Examination Rules), and hearings (which might be open floor and/or issue specific and/or relating to compulsory purchase) (sections 91 93). As a result of the examination process, the provisions of the proposed DCO may be amended by either the applicant or the Examination Authority, eg in response to the representations of interested parties; and it is open to the Secretary of State to modify the proposed DCO before making it. Section 104 constrains the Secretary of State when determining an application for a DCO for development in relation to which an NPS has effect, in the following terms (so far as relevant to these claims): (2) In deciding the application the Secretary of State must have regard to (a) any [NPS] which has effect in relation to development of the description to which the application relates (a relevant [NPS]), any local impact report , (b) (c) any matters prescribed in relation to development of the description to which the application relates, and (d) any other matters which the Secretary of State thinks are both important and relevant to the Secretary of States decision. (3) The Secretary of State must decide the application in accordance with any relevant [NPS], except to the extent that one or more of subsections (4) to (8) applies. (4) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would lead to the United Kingdom being in breach of any of its international obligations. (5) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would lead to the Secretary of State being in breach of any duty imposed on the Secretary of State by or under any enactment. (6) This subsection applies if the Secretary of State is satisfied that deciding the application in accordance with any relevant [NPS] would be unlawful by virtue of any enactment. (7) This subsection applies if the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits. (8) This subsection applies if the Secretary of State is satisfied that any condition prescribed for deciding an application otherwise than in accordance with [an NPS] is met. (9) For the avoidance of doubt, the fact that any relevant [NPS] identifies a location as suitable (or potentially suitable) for a particular description of development does not prevent one or more of subsections (4) to (8) from applying. (1) In deciding an application for an order granting development consent, the Secretary of State may disregard representations if the Secretary of State considers that the representations (a) (b) NPS]. In this section representation includes evidence. relate to the merits of policy set out in [an (2) Section 104 is complemented by section 106 which, under the heading Matters which may be disregarded when determining an application, provides (so far as relevant to these claims): That is also reflected in sections 87(3) and 94(8), under which the Examining Authority may disregard representations (including evidence) or refuse to allow representations to be made at a hearing if it considers that they relate to the merits of the policy set out in [an NPS] . By section 120(1), a DCO may impose requirements in connection with the development for which consent is granted, eg it may impose conditions considered appropriate or necessary to mitigate or control the environmental effects of the development. Section 120(3) is a broad provision enabling a DCO to make provision relating to, or to matters ancillary to, the development for which consent is granted including any of the matters listed in Part 1 of Schedule 5 (section 120(4)). That schedule lists a wide range of potentially applicable provisions, including compulsory purchase, the creation of new rights over land, the carrying out of civil engineering works, the designation of highways, the operation of transport systems, the charging of tolls, fares and other charges and the making of byelaws and their enforcement. Section 13 concerns Legal challenges relating to [NPSs]. Section 13(1) provides: A court may entertain proceedings for questioning [an NPS] or anything done, or omitted to be done, by the Secretary of State in the course of preparing such a statement only if the proceedings are brought by a claim for (a) judicial review, and (b) the claim form is filed before the end of the period of six weeks beginning with the day after (i) the day on which the statement is designated as [an NPS] for the purposes of this Act, or (ii) published. (if later) the day on which the statement is It was under section 13 that the claims by objectors to the ANPS were brought. The Climate Change Act 2008 Again, we gratefully draw on the account given by the Divisional Court. As they explain, the UK has for a long time appreciated the desirability of tackling climate change, and wished to take a more rigorous domestic line. In the 2003 White Paper, Our Energy Future Creating a Low Carbon Economy, the Government committed to reduce CO2 emissions by 60% on 1990 levels by 2050; and to achieve real progress by 2020 (which equated to reductions of 26 32%). The 60% figure emanated from the EU Council of Ministers Community Strategy on Climate Change in 1996, which determined to limit emissions to 550 parts per million (ppm) on the basis that to do so would restrict the rise in global temperatures to 2C above pre industrial levels which, it was then considered, would avoid the serious consequences of global warming. However, by 2005, there was scientific evidence that restricting emissions to 550ppm would be unlikely to be effective in keeping the rise to 2C; and only stabilising CO2 emissions at something below 450ppm would be likely to achieve that result. Parliament addressed these issues in the CCA 2008. Section 32 established a Committee on Climate Change (the CCC), an independent public body to advise the UK and devolved Governments and Parliaments on tackling climate change, including on matters relating to the UKs statutory carbon reduction target for 2050 and the treatment of greenhouse gases from international aviation. Section 1 gives a mandatory target for the reduction of UK carbon emissions. At the time of designation of the ANPS, it provided: It is the duty of the Secretary of State [then, the Secretary of State for Energy and Climate Change: now, the Secretary of State for Business, Enterprise and Industrial Strategy (BEIS)] to ensure that the net UK carbon account for the year 2050 is at least 80% lower than the 1990 baseline. The figure of 80% was substituted for 60% during the passage of the Bill, as evolving scientific knowledge suggested that the lower figure would not be sufficient to keep the rise in temperature to 2C in 2050. Therefore, although the CCA 2008 makes no mention of that temperature target, as the CCC said in its report on the Paris Agreement issued in October 2016 (see para 73 below): This 2050 target was derived as a contribution to a global emissions path aimed at keeping global average temperatures to around 2C above pre industrial levels. The statutory target of a reduction in carbon emissions by 80% by 2050 was Parliaments response to the international commitment to keep the global temperature rise to 2C above pre industrial levels in 2050. Since the designation of the ANPS, the statutory target has been made more stringent. The figure of 100% was substituted for 80% in section 1 of the CCA 2008 by the Climate Change Act 2008 (2050 Target Amendment) Order 2019/1056. The Secretary of State for BEIS has the power to amend that percentage (section 2(1) of the CCA 2008), but only: (i) if it appears to him that there have been significant developments in scientific knowledge about climate change since the passing of the Act, or developments in European or international law or policy (section 2(2) and (3)): the Explanatory Note to the Act says, as must be the case, that this power might be used in the event of a new international treaty on climate change; (ii) after obtaining, and taking into account, advice from the CCC (section 3(1)); and (iii) subject to Parliamentary affirmative resolution procedure (section 2(6)). Section 1 of the CCA 2008 sets a target that relates to carbon only. Section 24 enables the Secretary of State for BEIS to set targets for other greenhouse gases, but subject to similar conditions to which an amendment to the section 1 target is subject. In addition to the carbon emissions target set by section 1 and to ensure compliance with it (see sections 5(1)(b) and 8) the Secretary of State for BEIS is also required to set for each succeeding period of five years, at least 12 years in advance, an amount for the net UK carbon account (the carbon budget); and ensure that the net UK carbon account for any period does not exceed that budget (section 4). The carbon budget for the period including 2020 was set to be at least 34% lower than the 1990 baseline. Section 10(2) sets out various matters which are required to be taken into account when the Secretary of State for BEIS sets, or the CCC advises upon, any carbon budget, including: (a) scientific knowledge about climate change; (b) technology relevant to climate change; (c) economic circumstances, and in particular the likely impact of the decision on the economy and the competitiveness of particular sectors of the economy; (d) fiscal circumstances, and in particular the likely impact of the decision on taxation, public spending and public borrowing; (e) of the decision on fuel poverty; (f) (h) (i) international aviation and international shipping circumstances at European and international level; the estimated amount of reportable emissions from social circumstances, and in particular the likely impact Therefore, although for the purposes of the CCA 2008 emissions from greenhouse gases from international aviation do not generally count as emissions from UK sources (section 30(1)), by virtue of section 10(2)(i), in relation to any carbon budget, the Secretary of State for BEIS and the CCC must take such emissions into account. The evidence for the Secretary of State explains that the CCC has interpreted that as requiring the UK to meet a 2050 target which includes these emissions. The CCC has advised that, to meet the 2050 target on that basis, emissions from UK aviation (domestic and international) in 2050 should be no higher than 2005 levels, ie 37.5 megatons (million tonnes) of CO2 (MtCO2). This is referred to by the respondents as the Aviation Target. However, the Aviation Policy Framework issued by the Government in March 2013 explains that the Government decided not to take a decision on whether to include international aviation emissions in its carbon budgets, simply leaving sufficient headroom in those budgets consistent with meeting the 2050 target including such emissions, but otherwise deferring a decision for consideration as part of the emerging Aviation Strategy. The Aviation Strategy is due to re examine how the aviation sector can best contribute its fair share to emissions reductions at both the UK and global level. It is yet to be finalised. The SEA Directive Again, in this section we gratefully draw on the careful account given by the Divisional Court. As they explain, Directive 2011/92/EU of the European Parliament and of the Council of 13 December 2011 on the assessment of the effects of certain public and private projects on the environment as amended (the EIA Directive), as currently transposed by the Town and Country Planning (Environmental Impact Assessment) Regulations 2017 (SI 2017/571), requires a process within normal planning procedures. (For the purposes of these claims, the transposing regulations have not materially changed over the relevant period; and we will refer to them collectively as the EIA Regulations.) The SEA Directive as transposed by the SEA Regulations concerns the environmental impact of plans and programmes. The SEA Directive and Regulations applied to the ANPS. The EIA Directive would apply when there was a particular development for which development consent was sought, at the DCO stage. Recital (1) to the SEA Directive states: Article 174 of the Treaty provides that Community policy on the environment is to contribute to, inter alia, the preservation, protection and improvement of the quality of the environment, the protection of human health and the prudent and rational utilisation of natural resources and that it is to be based on the precautionary principle. Article 6 of the Treaty provides that environmental protection requirements are to be integrated into the definition of Community policies and activities, in particular with a view to promoting sustainable development. As suggested here, the SEA Directive relies upon the precautionary principle where appropriate. Recital (4) states: Environmental assessment is an important tool for integrating environmental considerations into the preparation and adoption of certain plans and programmes which are likely to have significant effects on the environment in the member states, because it ensures that such effects of implementing plans and programmes are taken into account during their preparation and before their adoption. Recital (9) states: This Directive is of a procedural nature, and its requirements should either be integrated into existing procedures in member states or incorporated in specifically established procedures. With a view to avoiding duplication of the assessment, member states should take account, where appropriate, of the fact that assessments will be carried out at different levels of a hierarchy of plans and programmes. Thus, the requirements of the SEA Directive are essentially procedural in nature; and it may be appropriate to avoid duplicating assessment work by having regard to work carried out at other levels or stages of a policy making process (see article 5(2) (3) below). Recital (17) states: The environmental report and the opinions expressed by the relevant authorities and the public, as well as the results of any transboundary consultation, should be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure. The objectives of the SEA Directive are set out in article 1: The objective of this Directive is to provide for a high level of protection of the environment and to contribute to the integration of environmental considerations into the preparation and adoption of plans and programmes with a view to promoting sustainable development, by ensuring that, in accordance with this Directive, an environmental assessment is carried out of certain plans and programmes which are likely to have significant effects on the environment. Article 3(1) requires an environmental assessment to be carried out, in accordance with articles 4 to 9, for plans and programmes referred to in article 3(2) (4) which are likely to have significant environmental effects. Article 3(2) requires strategic environmental assessment generally for any plan or programme which is prepared for (inter alia) transport, town and country planning or land use and which sets the framework for future development consent for projects listed in Annexes I and II to the EIA Directive. Strategic environmental assessment is also required for other plans and programmes which are likely to have significant environmental effects (article 3(4)). By virtue of sections 104 and 106 of the PA 2008, the ANPS designated under section 5 sets out the framework for decisions on whether a DCO for the development of an additional runway at Heathrow under Part 6 of that Act should be granted. That development would, in due course, require environmental impact assessment under the EIA Directive and Regulations; and there is no dispute that the ANPS needed to be subjected to strategic environmental assessment under the SEA Directive and the SEA Regulations. Article 2(b) of the SEA Directive defines environmental assessment for the purposes of the Directive: environmental assessment shall mean the preparation of an environmental report, the carrying out of consultations, the taking into account of the environmental report and the results of the consultations in decision making and the provision of information on the decision in accordance with articles 4 to 9. Article 4(1) requires environmental assessment to be carried out during the preparation of a plan or programme and before its adoption . , which in this instance would refer to the Secretary of States decision to designate the ANPS. Article 5 sets out requirements for an environmental report. By article 2(c): environmental report shall mean the part of the plan or programme documentation containing the information required in article 5 and Annex I. In the case of the ANPS the environmental report was essentially the AoS. Article 5(1) provides: Where an environmental assessment is required under article 3(1), an environmental report shall be prepared in which the likely significant effects on the environment of implementing the plan or programme, and reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme, are identified, described and evaluated. The information to be given for this purpose is referred to in Annex I. Annex I states, under the heading, Information referred to in article 5(1): The information to be provided under article 5(1), subject to article 5(2) and (3), is the following: the environmental characteristics of areas likely (a) an outline of the contents, main objectives of the plan or programme and relationship with other relevant plans and programmes; (b) the relevant aspects of the current state of the environment and the likely evolution thereof without implementation of the plan or programme; (c) to be significantly affected; (d) any existing environmental problems which are relevant to the plan or programme including, in particular, those relating to any areas of a particular environmental importance, such as areas designated pursuant to [the Habitats and Birds Directives]; (e) the environmental protection objectives, established at international, Community or member state level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation; (f) the likely significant effects on the environment, including on issues such as biodiversity, population, human health, fauna, flora, soil, water, air, climatic factors, material assets, cultural heritage including architectural and archaeological heritage, landscape and the interrelationship between the above factors; (g) the measures envisaged to prevent, reduce and as fully as possible offset any significant adverse effects on the environment of implementing the plan or programme; (h) an outline of the reasons for selecting the alternatives dealt with, and a description of how the assessment was undertaken including any difficulties (such as technical deficiencies or lack of know how) encountered in compiling the required information; (i) a description of the measures envisaged concerning monitoring in accordance with article 10; (j) a non technical summary of the information provided under the above headings. (2) The environmental report prepared pursuant to paragraph 1 shall include the information that may reasonably be required taking into account current knowledge and methods of assessment, the contents and level of detail in the plan or programme, its stage in the decision making process and the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. (3) Relevant information available on environmental effects of the plans and programmes and obtained at other levels of decision making or through other Community legislation may be used for providing the information referred to in Annex I. (Emphasis added) Thus, the information required by the combination of article 5(1) and Annex I is subject to article 5(2) and (3), which provide: Accordingly, the information which is required to be included in an environmental report, whether by article 5(1) itself or by that provision in conjunction with Annex I, is qualified by article 5(2) and (3) in a number of respects. First, the obligation is only to include information that may reasonably be required, which connotes the making of a judgment by the plan making authority. Second, that judgment may have regard to a number of matters, including current knowledge and assessment methods. In addition, the contents and level of detail in a plan such as the ANPS, the stage it has reached in the decision making process and the ability to draw upon sources of information used in other decision making, may affect the nature and extent of the information required to be provided in the environmental report for the strategic environmental assessment. The stage reached by the ANPS should be seen in the context of the statutory framework of the PA 2008, as set out above (see paras 19 38). Section 5(5) authorises the Secretary of State to set out in an NPS the type and size of development appropriate nationally or for a specified area and to identify locations which are either suitable or unsuitable for that development. In addition, the Secretary of State may set out criteria to be applied when deciding the suitability of a location. Section 104(3) requires the Secretary of State to decide an application for a DCO in accordance with a relevant NPS, save in so far as any one or more of the exceptions in section 104(4) (8) applies, which include the situation where the adverse impacts of a proposal are judged to outweigh its benefits (section 104(7)). Section 106(1) empowers the Secretary of State to disregard a representation objecting to such a proposal in so far as it relates to the merits of a policy contained in the NPS. In the present case, the Secretary of State made it plain in the strategic environmental assessment process that the AoS drew upon and updated the extensive work which had previously been carried out by, and on behalf of, the Airports Commission, including numerous reports to the Airports Commission and its own final report. It is common ground that the Secretary of State was entitled to take that course. Article 6 of the SEA Directive sets out requirements for consultation. Article 6(1) requires that the draft plan or programme and the environmental report be made available to the public and to those authorities designated by a member state under article 6(3) which, by virtue of their specific environmental responsibilities, are likely to be concerned by the environmental effects of implementing plans and programmes. In England, the designated authorities are Natural England, Historic England and the Environment Agency (see regulation 4 of the SEA Regulations). In the case of the ANPS, the Secretary of State also had to consult those designated authorities on the scope and level of detail of the information to be included in the environmental report (article 5(4)). In relation to the consultation process, article 6(2) provides: The authorities referred to in para 3 and the public referred to in para 4 shall be given an early and effective opportunity within appropriate time frames to express their opinion on the draft plan or programme and the accompanying environmental report before the adoption of the plan or programme or its submission to the legislative procedure. The public referred to in [article 6(4)] is a cross reference to the rules made by each member state for defining the public affected, or likely to be affected by, or having an interest in the decision making on the plan. Regulation 13(2) of the SEA Regulations leaves this to be determined as a matter of judgment by the plan making authority. Article 8 requires the environmental report prepared under article 5, the opinions expressed under article 6, and the results of any transboundary consultations under article 7 to be taken into account during the preparation of the plan or programme and before its adoption or submission to the legislative procedure. In Cogent Land LLP v Rochford District Council [2012] EWHC 2542 (Admin); [2013] 1 P & CR 2, Singh J held that a defect in the adequacy of an environmental report prepared for the purposes of the SEA Directive may be cured by the production of supplementary material by the plan making authority, subject to there being consultation on that material (see paras 111 126). He held that articles 4, 6(2) and 8 of the Directive, along with their transposition in the SEA Regulations, are consistent with that conclusion; and that none of the previous authorities on the SEA Directive (which he reviewed) suggested otherwise. He held that SEA is not a single document, still less is it the same thing as the environmental report. Rather, it is a process, during the course of which an environmental report must be produced (see para 112). The Court of Appeal endorsed this analysis in No Adastral New Town Ltd v Suffolk Coastal District Council [2015] EWCA Civ 88; [2015] Env LR 28, in deciding that SEA failures in the early stages of an authoritys preparation of its Core Strategy (a statutory development plan) were capable of being, and were in fact, cured by the steps taken in subsequent stages (see paras 48 54). We agree with this analysis. It follows that strategic environmental assessment may properly involve an iterative process; and that it is permissible for a plan making authority to introduce alterations to its draft plan subject to complying with the information requirements in article 5 and the consultation requirements in articles 6 and 7. Regulation 12 of the SEA Regulations transposes the main requirements in article 5 of the Directive governing the content of an environmental report as follows (emphasis added): (2) The report shall identify, describe and evaluate the likely significant effects on the environment of implementing the plan or programme; and (a) (b) reasonable alternatives taking into account the objectives and the geographical scope of the plan or programme. (3) The report shall include such of the information referred to in Schedule 2 to these Regulations as may reasonably be required, taking account of current knowledge and methods of assessment; the contents and level of detail in the plan or (a) (b) programme; (c) decision making process; and (d) the extent to which certain measures are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. the stage of the plan or programme in the Schedule 2 replicates the list of items in Annex I to the SEA Directive. No issue is raised as to the adequacy of that transposition. As the Divisional Court observed, it is plain from the language as may reasonably be required that the SEA Regulations, like the SEA Directive, allow the plan making authority to make a judgment on the nature of the information in Schedule 2 and the level of detail to be provided in an environmental report, whether as published initially or in any subsequent amendment or supplement. Factual background At the heart of the challenge to the ANPS is the Paris Agreement (para 7 above) which acknowledged that climate change represents an urgent and potentially irreversible threat to human societies and the planet (Preamble to the Decision to adopt the Paris Agreement). In article 2 the Paris Agreement sought to enhance the measures to reduce the risks and impacts of climate change by setting a global target of holding the increase in the global average temperature to well below 2C above pre industrial levels and pursuing efforts to limit the temperature increase to 1.5C above pre industrial levels. Each signatory of the Paris Agreement undertook to take measures to achieve that long term global temperature goal so as to achieve a balance between anthropogenic emissions by sources and removals by sinks of greenhouse gases in the second half of this century (article 4(1)). Each party agreed to prepare, communicate and maintain successive nationally determined contributions (NDCs) that it intended to achieve and to pursue domestic mitigation measures with the aim of achieving the objectives of such NDCs (article 4(2)). A partys successive NDC was to progress beyond its current NDC and was to reflect its highest possible ambition (article 4(3)). Notwithstanding the common objectives set out in articles 2 and 4(1), the Paris Agreement did not impose an obligation on any state to adopt a binding domestic target to ensure that those objectives were met. The specific legal obligation imposed in that regard was to meet any NDC applicable to the state in question. So far as concerns the United Kingdom, it is common ground that the relevant NDC is that adopted and communicated on behalf of the EU, which set a binding target of achieving 40% reduction of 1990 emissions by 2030. This is less stringent than the targets which had already been set in the fourth and fifth carbon budgets issued pursuant to section 4 of the CCA 2008, which were respectively a 50% reduction on 1990 levels for the period 2023 2027 and a 57% reduction for the period 2028 2032. Before the United Kingdom had signed or ratified the Paris Agreement two Government Ministers made statements in the House of Commons about the Governments approach to the Paris Agreement. On 14 March 2016 the Minister of State for Energy, Andrea Leadsom MP, told the House of Commons that the Government believe we will need to take the step of enshrining the Paris goal of net zero emissions in UK law the question is not whether, but how we do it, and there is an important set of questions to be answered before we do. Ten days later (24 March 2016) Amber Rudd MP, Secretary of State for Energy and Climate Change, responded to an oral question on what steps her department was taking to enshrine the net zero emissions commitment of the Paris Climate Change Conference by stating that the question is not whether we do it but how we do it. The Government received advice from the CCC on the UKs response to the Paris goal. At a meeting on 16 September 2016 the CCC concluded that while a new long term target would be needed to be consistent with the Paris goal, the evidence was not sufficient to specify that target now. In October 2016 the CCC published a report entitled UK Climate Action following the Paris Agreement on what domestic action the Government should take as part of a fair contribution to the aims of the Paris Agreement. In that report the CCC stated that the goals of the Paris Agreement involved a higher level of global ambition in the reduction of greenhouse gases than that which formed the basis of the UKs existing emissions reduction targets. But the CCC advised that it was neither necessary nor appropriate to amend the 2050 target in section 1 of the CCA 2008 or alter the level of existing carbon budgets at that time. It advised that there would be several opportunities to revisit the UKs targets in the future and that the UK 2050 target is potentially consistent with a wide range of global temperature outcomes. In its executive summary (p 7) the CCC summarised its advice: Do not set new UK emissions targets now The five yearly cycle of pledges and reviews created by the Paris Agreement provides regular opportunities to consider increasing UK ambition. In October 2017 the Government published its Clean Growth Strategy which set out its policies and proposals to deliver economic growth and decreased emissions. In Annex C in its discussion of UK climate action it acknowledged the risks posed by the growing level of global climate instability. It recorded the global goals of the Paris Agreement and that global emissions of greenhouse gases would need to peak as soon as possible, reduce rapidly thereafter and reach a net zero level in the second half of this century. It recorded the CCCs advice in these terms: In October 2016 the [CCC] said that the Paris Agreement target is more ambitious than both the ambition underpinning the UK 2050 target and previous international agreements, but that the UK should not set new UK emissions targets now, as it already had stretching targets and achieving them will be a positive contribution to global climate action. The CCC advised that the UKs fair contribution to the Paris Agreement should include measures to maintain flexibility to go further on UK targets, the development of options to remove greenhouse gases from the air, and that its targets should be kept under review. In December 2017 Plan B Earth and 11 other claimants commenced judicial review proceedings against the Secretary of State for BEIS and CCC alleging that the Secretary of State had unlawfully failed to revise the 2050 target in section 1 of the CCA 2008 in line with the Paris Agreement. The Secretary of State pleaded: [While] the Government is fully committed to the objectives in the Paris Agreement, the legal obligation upon the Parties is to prepare, communicate and maintain nationally determined contributions to reduce net emissions, with a view to achieving the purpose of holding global average temperature increases to well below 2C above pre industrial levels and pursuing efforts to limit them to 1.5C. This is not the same as a legal duty or obligation for the Parties, individually or collectively, to achieve this aim. (Emphasis in original) The CCC also explained its position in its written pleadings: The CCC recommended no change to the existing UK 2050 target (at that time, October 2016), not because a more ambitious target was unfeasible, but rather because the existing UK target was potentially consistent with more ambitious global temperature goals, including that in the Paris Agreement. At an oral hearing ([2018] EWHC 1892 (Admin); [2019] Env LR 13), Supperstone J refused permission to proceed with the judicial review, holding among other things that the Paris Agreement did not impose any legally binding target on each contracting party, that section 2 of the CCA 2008 gave the Secretary of State the power, but did not impose a duty, to amend the 2050 target in the event of developments in scientific knowledge or European or international law or policy, and that on the basis of the advice of the CCC, the Secretary of State was plainly entitled to refuse to change the 2050 target. Asplin LJ refused permission to appeal on 22 January 2019. In January 2018 the CCC published An independent assessment of the UKs Clean Growth Strategy. In that report the CCC explained that the aim of the Paris Agreement for emissions to reach net zero in the second half of the century was likely to require the UK to revise its statutory 2050 target to seek greater reductions and advised that it is therefore essential that actions are taken now to enable these deeper reductions to be achieved (p 21). The CCC invited the Secretary of State for BEIS to seek further advice from it and review the UKs long term emissions targets after the publication of the report by the Intergovernmental Panel on Climate Change (IPCC) on the implications of the Paris Agreements 1.5C goal. In January 2018 the Government published A Green Future: Our 25 Year Plan to Improve the Environment in which it undertook to continue its work in providing international leadership to meet the goals of the Paris Agreement (for example, p 118). In early 2018 governments, including the UK Government, were able to review a draft of the IPCC report and in early June 2018 the UK Government submitted final comments on the draft of the IPCC report. On 17 April 2018 the Government announced at the Commonwealth Heads of Government Meeting that after the publication of the IPCC report later that year, it would seek the advice of the CCC on the implications of the Paris Agreement for the UKs long term emissions reductions targets. At the same time the Government was working to develop an aviation strategy which would address aviation emissions. In April 2018, after public consultation, the Department for Transport published Beyond the Horizon: The Future of UK Aviation Next Steps towards an Aviation Strategy in which it undertook to investigate technical and policy measures to address aviation emissions and how those measures related to the recommendations of the CCC. It stated (para 6.24): The government will look again at what domestic policies are available to complement its international approach and will consider areas of greater scientific uncertainty, such as the aviations contribution to non carbon dioxide climate change effects and how policy might make provision for their effects. On 1 May in response to an oral parliamentary question concerning the offshore wind sector Claire Perry MP, Minister of State for Energy and Clean Growth, stated that the UK was the first developed nation to have said that it wanted to understand how to get to a zero carbon economy by 2050. On 5 June 2018, the Government issued its response to the consultation on the draft ANPS and the Secretary of State laid the proposed ANPS before Parliament. On the same day, the Secretary of State presented a paper on the proposed ANPS to a Cabinet sub committee giving updated information on the three short listed schemes and the Governments preference for the NWR scheme. In relation to aviation emissions it stated that it was currently uncertain how international carbon emissions would be incorporated into the Governments carbon budget framework, that policy was developing and would be progressed during the development of the Aviation Strategy. The Governments position remained that action to address aviation emissions was best taken at an international level. On 14 June 2018 the Chair of the CCC (Lord Deben) and Deputy Chair (Baroness Brown) wrote to the Secretary of State expressing surprise that he had not referred to the legal targets in the CCA 2008 or the Paris Agreement commitments in his statement to the House of Commons on the proposed ANPS on 5 June and stressing the need for his department to consider aviations place in the overall strategy for UK emissions reduction. They stated that the Government should not plan for higher levels of aviation emissions since this would place an unreasonably large burden on other sectors. The Secretary of State responded on 20 June 2018 stating that the Government remained committed to the UKs climate change target and that the proposed ANPS made it clear that an increase in carbon emissions that would have a material impact on the Governments ability to meet its carbon reduction targets would be a reason to refuse development consent for the NWR. He stated that the Government was confident that the measures and requirements set out in the proposed ANPS provided a strong basis for mitigating the environmental impacts of expansion. He explained that the forthcoming Aviation Strategy would put in place a framework for UK carbon emissions to 2050, which ensures that aviation contributes its fair share to action on climate change, taking into account the UKs domestic and international obligations. After the Parliamentary debate on 25 June 2018 (para 11 above), the Secretary of State designated the ANPS as national policy on 26 June 2018 (para 12 above). Section 5 of the ANPS focused on the potential impacts of the NWR Scheme and the assessments that any applicant would have to carry out and the planning requirements which it would have to meet in order to gain development consent. In its discussion of greenhouse gas emissions the ANPS stated that the applicant would have to undertake an environmental impact assessment quantifying the greenhouse gas impacts before and after mitigation so that the project could be assessed against the Governments carbon obligations. In para 5.82 the ANPS stated: Any increase in carbon emissions alone is not a reason to refuse development consent, unless the increase in carbon emissions resulting from the project is so significant that it would have a material impact on the ability of Government to meet its carbon reduction targets, including carbon budgets. As in this appeal a challenge has been made as to the factual basis of the Secretary of States decision not to consider the possible new domestic emissions targets which might result from the Paris Agreement, it is necessary to mention the evidence before the Divisional Court on this matter. In her first witness statement Ms Caroline Low, the Director of the Airport Capacity Programme at the Department for Transport, stated (para 458): In October 2016 the CCC said that the Paris Agreement is more ambitious than both the ambition underpinning the UK 2050 target and previous international agreements but that the UK should not set new UK emissions targets now, as it already has stretching targets and achieving them will be a positive contribution to global climate action. Furthermore, the CCC acknowledged in the context of separate legal action brought by Plan B against the Secretary of State for Business, Energy and Industrial Strategy that it is possible that the existing 2050 target could be consistent with the temperature stabilization goals set out in the Paris Agreement. Subsequently, in establishing its carbon obligations for the purpose of assessing the impact of airport expansion, my team has followed this advice and considered existing domestic legal obligations as the correct basis for assessing the carbon impact of the project, and that it is not appropriate at this stage for the government to consider any other possible targets that could arise through the Paris Agreement. Her account was corroborated by Ms Ursula Stevenson, an engineering and project management consultant whom the Secretary of State retained to deal with the process for consideration of the environmental impacts of the NWR Scheme. She stated (witness statement para 3.128) that the Department had followed the CCCs advice when preparing the AoS required by the PA 2008 (see para 28 above) and accordingly had considered existing domestic legal obligations to be the correct basis for assessing the carbon impact of the project. She added: At this stage, it is not possible to consider what any future targets [sic] might be recommended by the CCC to meet the ambitions of the Paris Agreement. It is expected that, should more ambitious targets be recommended and set through the carbon budgets beyond 2032, then government will be required to make appropriate policy decisions across all sectors of the economy to limit emissions accordingly. She emphasised (para 3.129) that the obligations under the CCA 2008 could be made more stringent in future, should that prove necessary, and that the ANPS provided that any application for a DCO would have to be assessed by reference to whatever obligations were in place at that time. The IPCC Special Report on Global Warming of 1.5C was published on 8 October 2018. It concluded that limiting global warming to that level above pre industrial levels would significantly reduce the risks of challenging impacts on ecosystems and human health and wellbeing and that it would require deep emissions reductions and rapid, far reaching and unprecedented changes to all aspects of society. To achieve that target global net emissions of CO would need to fall by about 45% from 2010 levels by 2030, reaching zero by 2050. The Government commissioned the CCC to advise on options by which the UK should achieve (i) a net zero greenhouse gas target and/or (ii) a net zero carbon target in order to contribute to the global ambitions set out in the Paris Agreement, including whether now was the right time to set such a target. In December 2018 the Department for Transport published consultation materials on its forthcoming Aviation Strategy. In Aviation 2050: The future of UK aviation the Department stated (paras 3.83 3.87) that it proposed to negotiate in the International Civil Aviation Organisation (the UN body responsible for tackling international aviation climate emissions) for a long term goal for international aviation that is consistent with the temperature goals of the Paris Agreement and that it would consider appropriate domestic action to support international progress. It stated that the Government would review the CCCs revised aviation advice and advice on the implications of the Paris Agreement. In the same month, in a paper commissioned and published by the Department and written by David S Lee, International aviation and the Paris Agreement temperature goals the author acknowledged that the Paris Agreement had a temperature based target which implied the inclusion of all emissions that affect the climate. The author stated that aviation had significant climate impacts from the oxides of nitrogen, particle emissions, and effects on cloudiness but that those impacts were subject to greater scientific uncertainty than the impacts of CO. It recorded that examples of CO emission equivalent metrics indicated up to a doubling of aviation CO equivalent emissions to account for those non CO effects. On 1 May 2019 Parliament approved a motion to declare a climate and environmental emergency. On the following day, the CCC published a report entitled Net zero: The UKs contribution to stopping global warming, in which they recommended that legislation should be passed as soon as possible to create a new statutory target of net zero greenhouse gases by 2050 and the inclusion of international aviation and shipping in that target (p 15). That recommendation, so far as it related to the CO target, was implemented on 26 June 2019 when the Climate Change Act (2050 Target Amendment) Order 2019 amended section 1(1) of the CCA 2008. On 24 September 2019 the CCC wrote to the Secretary of State for Transport advising that the international aviation and shipping emissions should be brought formally within the UKs net zero statutory 2050 target. The statutory target has not yet been changed to this effect but international aviation and shipping are taken into account when the carbon budgets are set against the statutory target: section 10(2)(i) of the CCA 2008. On 25 June 2020 the CCC published its 2020 Progress Report to Parliament entitled Reducing UK emissions, in which it recommended that international aviation and shipping be included in the UK climate targets when the Sixth Carbon Budget is set (which should be in 2021) and net zero plans should be developed (p 22). It recommended that the UKs airport capacity strategy be reviewed in the light of COVID 19 and the net zero target and that action was needed on non CO effects from aviation (p 180). The parties to this appeal have stated in the agreed Statement of Facts and Issues that it was expected that the Governments Aviation Strategy will be published before the end of 2020. From this narrative of events it is clear that the Governments response to the targets set in the Paris Agreement has been developing over time since 2016, that it has led to the amendment of the statutory CO target in section 1(1) of the CCA 2008 approximately one year after the Secretary of State designated the ANPS, and that the Government is still in the process of developing its Aviation Strategy in response to the advice of the CCC. Before turning to the legal challenges in this appeal it is also important to emphasise that, as we have stated in para 10 above, HAL, FoE and Plan B Earth agree that should the NWR Scheme be taken forward to a DCO application, the ANPS would not allow it to be assessed by reference to the carbon reduction targets, including carbon budgets, that were in place when the ANPS was designated in June 2018. The ANPS requires that the scheme be assessed against the carbon reduction targets in place at the time when a DCO application is determined: para 5.82 of the ANPS which we have set out in para 87 above. There is therefore no question of the NWR Scheme being assessed in future against outdated emissions targets. The judgments of the Divisional Court and the Court of Appeal A number of objectors to the NWR Scheme and the ANPS brought a large number of disparate claims in these proceedings to challenge the ANPS. The Divisional Court heard the claims on a rolled up basis, that is to say by considering the question of whether to grant permission to apply for judicial review at the same time as considering the merits of the claims should permission be granted. The hearing lasted for seven days and involved a full merits consideration of all the claims by the Divisional Court. In a judgment of high quality, described by the Court of Appeal as a tour de force, the Divisional Court dismissed all of the claims. For some claims it granted permission to apply for judicial review and then dismissed them on the merits. For others, it decided that they were not reasonably arguable on the merits and refused to grant permission. After thorough examination, the Divisional Court reached the conclusion that none of the claims which form the subject of grounds (i) to (iv) in the present appeal were reasonably arguable, and accordingly refused permission to apply for judicial review in relation to each of them. In relation to those claims, the Court of Appeal decided that they were both arguable and that they were made out as good claims. Accordingly, the Court of Appeal granted permission in relation to them for the respondents to apply for judicial review of the decision to designate the ANPS and then held that the ANPS was of no legal effect unless and until a review was carried out rectifying the legal errors. Analysis Ground (i) the section 5(8) ground This ground raises a question of statutory interpretation. Section 5(7) and (8) of the PA 2008, which we set out in para 25 above, provide that an NPS must give reasons for the policy set out in the statement and that the reasons must explain how the policy in the NPS takes account of Government policy relating to the mitigation of, and adaptation to, climate change. Mr Crosland for Plan B Earth presented this argument. Mr Wolfe QC for FoE adopted his submissions. Mr Crosland submits that it was unlawful for the Secretary of State when stating the reasons for the policy in the ANPS in June 2018 to have treated as irrelevant the Governments commitment to (a) the temperature target in the Paris Agreement and (b) the introduction of a new net zero carbon target. The Governments commitment to the Paris Agreement targets constituted Government policy within the meaning of section 5(8) of the PA 2008 and so should have been addressed in giving the reasons for the ANPS. Plan B Earth advanced this argument before the Divisional Court, which rejected the submission. The Divisional Court held that the Paris Agreement did not impose an obligation on any individual state to implement its global objective in any particular way, Parliament had determined the contribution of the UK towards global targets in section 1 of the CCA 2008 as a national carbon cap which represented the relevant policy in an entrenched form, and the Secretary of State could not change that carbon target unless and until the conditions set out in that Act were met. The Court of Appeal disagreed with the approach of the Divisional Court and held that Government policy in section 5(8) was not confined to the target set out in the CCA 2008. The words Government policy were words of the ordinary English language. Taking into account the consequences of the Paris Agreement involved no inconsistency with the provisions of the CCA 2008. Based on the Secretary of States written pleadings the Court of Appeal concluded that the Secretary of State had received and accepted legal advice that he was legally obliged not to take into account the Paris Agreement and the court characterised that as a misdirection of law. We address that conclusion in the next section of this judgment at paras 124 129 below. The court held that section 5(8) of the PA 2008 simply required the Government to take into account its own policy. The statements of Andrea Leadsom MP and Amber Rudd MP in March 2016 (para 72 above) and the formal ratification of the Paris Agreement showed that the Governments commitment to the Paris Agreement was part of Government policy by the time of the designation of the ANPS in June 2018. The principal question for determination is the meaning of Government policy in section 5(8) of the PA 2008. We adopt a purposive approach to this statutory provision which expands upon the obligation in section 5(7) that an NPS give reasons for the policy set out in it and interpret the statutory words in their context. The purpose of the provision is to make sure that there is a degree of coherence between the policy set out in the NPS and established Government policies relating to the mitigation of and adaptation to climate change. The section speaks of Government policy, which points toward a policy which has been cleared by the relevant departments on a government wide basis. In our view the phrase is looking to carefully formulated written statements of policy such as one might find in an NPS, or in statements of national planning policy (such as the National Planning Policy Framework), or in government papers such as the Aviation Policy Framework. For the subsection to operate sensibly the phrase needs to be given a relatively narrow meaning so that the relevant policies can readily be identified. Otherwise, civil servants would have to trawl through Hansard and press statements to see if anything had been said by a minister which might be characterised as policy. Parliament cannot have intended to create a bear trap for ministers by requiring them to take into account any ministerial statement which could as a matter of ordinary language be described as a statement of policy relating to the relevant field. In our view, the epitome of Government policy is a formal written statement of established policy. In so far as the phrase might in some exceptional circumstances extend beyond such written statements, it is appropriate that there be clear limits on what statements count as Government policy, in order to render them readily identifiable as such. In our view the criteria for a policy to which the doctrine of legitimate expectations could be applied would be the absolute minimum required to be satisfied for a statement to constitute policy for the purposes of section 5(8). Those criteria are that a statement qualifies as policy only if it is clear, unambiguous and devoid of relevant qualification: see for example Inland Revenue Comrs v MFK Underwriting Agents Ltd [1990] 1 WLR 1545, 1569 per Bingham LJ; R (Gaines Cooper) v Comrs for Her Majestys Revenue and Customs [2011] UKSC 47; [2011] 1 WLR 2625, paras 28 and 29 per Lord Wilson of Culworth, delivering the judgment with which the majority of the court agreed, and para 70 per Lord Mance. The statements of Andrea Leadsom MP and Amber Rudd MP (para 72 above) on which the Court of Appeal focused and on which Plan B Earth particularly relied do not satisfy those criteria. Their statements were not clear and were not devoid of relevant qualification in this context. They did not refer to the temperature targets at all and they both left open the question of how the Paris Agreement goal of net zero emissions would be enshrined in UK law. Andrea Leadsom went out of her way to emphasise that there is an important set of questions to be answered before we do. The statements made by these ministers were wholly consistent with and plainly reflected the fact that there was then an inchoate or developing policy being worked on within Government. This does not fall within the statutory phrase. We therefore respectfully disagree with the Court of Appeal in so far as they held (para 224) that the words Government policy were ordinary words which should be applied in their ordinary sense to the facts of a given situation. We also disagree with the courts conclusion (para 228) that the statements by Andrea Leadsom MP and Amber Rudd MP constituted statements of Government policy for the purposes of section 5(8). Although the point had been a matter of contention in the courts below, no party sought to argue before this court that a ratified international treaty which had not been implemented in domestic law fell within the statutory phrase Government policy. Plan B Earth and FoE did not seek to support the conclusion of the Court of Appeal (para 228) that it followed from the solemn act of the United Kingdoms ratification of [the Paris Agreement] that the Governments commitment to it was part of Government policy. The fact that the United Kingdom had ratified the Paris Agreement is not of itself a statement of Government policy in the requisite sense. Ratification is an act on the international plane. It gives rise to obligations of the United Kingdom in international law which continue whether or not a particular government remains in office and which, as treaty obligations, are not part of UK law and give rise to no legal rights or obligations in domestic law (R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61, para 55). Ratification does not constitute a commitment operating on the plane of domestic law to perform obligations under the treaty. Moreover, it cannot be regarded in itself as a statement devoid of relevant qualification for the purposes of domestic law, since if treaty obligations are to be given effect in domestic law that will require law making steps which are uncertain and unspecified at the time of ratification. Before applying these conclusions to the facts of this case, it is necessary to consider another argument which HAL advances in this appeal. HAL renews an argument which the Divisional Court had accepted at least in part. HAL argues that because Parliament had set out the target for the reduction of carbon emissions in section 1 of the CCA 2008 and had established a statutory mechanism by which the target could be altered only with the assent of Parliament, Government policy was entrenched in section 1 and could not be altered except by use of the subordinate legislation procedure in sections 2 and 3 of the CCA 2008. The statutory scheme had either expressly or by necessary implication displaced the prerogative power of the Government to adopt any different policy in this field. In support of this contention HAL refers to the famous cases of Attorney General v De Keysers Royal Hotel Ltd [1920] AC 508 and R v Secretary of State for the Home Department, Ex p Fire Brigades Union [1995] 2 AC 513, to which this court referred in R (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5; [2018] AC 61. The short answer to that submission is that it is possible for the Government to have a policy that it will seek Parliamentary approval of an alteration of the carbon target, which is to be taken into account in section 5(8) of the PA 2008. The ousting of a prerogative power in a field which has become occupied by a corresponding power conferred or regulated by statute is a legal rule which is concerned with the validity of the exercise of a power, and to the extent that exercise of powers might require reference to the target set out in section 1 of the CCA 2008 it would not be open to the Government to make reference to a different target, not as yet endorsed by Parliament under the positive resolution procedure applicable to changes to that statutory target. However, the rule does not address what is Government policy for the purposes of section 5(8) of the PA 2008. If at the date when the Secretary of State designated the ANPS, the Government had adopted and articulated a policy that it would seek to introduce a specified new carbon target into section 1 of the CCA 2008 by presenting draft subordinate legislation to that effect for the approval of Parliament, the Secretary of State could readily record in the ANPS that the Government had resolved to seek that change but that it required the consent of Parliament for the new target to have legal effect. Further, questions such as how to mitigate non CO emissions fell outside the carbon emissions target in the CCA 2008. Turning to the facts of the case, it is clear from the narrative of events in paras 70 96 above that in June 2018, when the Secretary of State for Transport designated the ANPS, the Governments approach on how to adapt its domestic policies to contribute to the global goals of the Paris Agreement was still in a process of development. There was no established policy beyond that already encapsulated in the CCA 2008. The Government followed the advice of the CCC. The CCCs advice in 2016 was that the evidence was not sufficient to specify a new carbon target and that it was not necessary to do so at that time (paras 73 74 above). In early 2018 the CCC invited the Government to seek further advice from it after the publication of the IPCCs report (para 79 above). During 2018 the Governments policy in relation to aviation emissions was in a process of development and no established policy had emerged on either the steps to be taken at international level or about which domestic measures would be adopted; it was expected that the forthcoming Aviation Strategy would clarify those matters (paras 83 and 86 above). The Governments consultation in December 2018 confirmed that the development of aviation related targets was continuing and in 2020 the Governments Aviation Strategy is still awaited (paras 92 and 96 above). Against this background, the section 5(8) challenge fails and HALs appeal on this ground must succeed. It is conceded that the Paris Agreement itself is not Government policy. The statements by Andrea Leadsom MP and Amber Rudd MP in 2016, on which Plan B Earth principally founds, do not amount to Government policy for the purpose of section 5(8) of the PA 2008. The statements concerning the development of policy which the Government made in 2018 were statements concerning an inchoate and developing policy and not an established policy to which section 5(8) refers. Mr Crosland placed great emphasis on the facts (i) that the Airports Commission had assessed the rival schemes against scenarios, one of which was that overall CO emissions were set at a cap consistent with a worldwide goal to limit global warming to 2C, and (ii) that that scenario was an input into Secretary of States assessment of the ANPS at a time when the UK Government had ratified the Paris Agreement and ministers had made the statements to which we referred above. But those facts are irrelevant to the section 5(8) challenge. It is not in dispute that the internationally agreed temperature targets played a formative role in the development of government policy. But that is not enough for Plan B Earth to succeed in this challenge. What Mr Crosland characterised as a policy commitment to the Paris Agreement target did not amount to Government policy under that subsection. Finally, Mr Crosland sought to raise an argument under section 3 of the Human Rights Act 1998 that interpreting section 5(8) so as to preclude consideration of the temperature limit in the Paris Agreement would tend to allow major national projects to be developed and that those projects would create an intolerable risk to life and to peoples homes contrary to articles 2 and 8 of the European Convention on Human Rights (ECHR). This argument must fail for two reasons. First, as Lord Anderson for HAL submits, the argument was advanced as a separate ground before the Divisional Court and rejected, that finding was not appealed to the Court of Appeal, and is therefore not before this court. Secondly, even if it were to be treated as an aspect of Plan B Earths section 5(8) submission and thus within the scope of the appeal (as Mr Crosland sought to argue), it is in any event unsound because any effect on the lives and family life of those affected by the climate change consequences of the NWR Scheme would result not from the designation of the ANPS but from the making of a DCO in relation to the scheme. As HAL has conceded and the respondents have agreed, the ANPS requires the NWR Scheme to be assessed against the emissions targets which would be current if and when an application for a DCO were determined. Ground (ii): the section 10 ground Mr Wolfe for FoE presented the submissions for the respondents on this ground and grounds (iii) and (iv). Mr Crosland for Plan B Earth adopted those submissions. Section 10 of the PA 2008 applies to the Secretary of States function in promulgating an NPS. In exercising that function the Secretary of State must act with the objective of contributing to the achievement of sustainable development. Sustainable development is a recognised term in the planning context and its meaning is not controversial in these proceedings. As explained in paras 7 and 8 of the National Planning Policy Framework (July 2018), at a very high level the objective of sustainable development involves meeting the needs of the present without compromising the ability of future generations to meet their own needs; it has three overarching elements, namely an environmental objective, an economic objective and a social objective. For a major infrastructure project like the development of airport capacity in the South East, which promotes economic development but at the cost of increased greenhouse gases emissions, these elements have to be taken into account and balanced against each other. Section 10(3)(a) provides that the Secretary of State must, in particular, have regard to the desirability of mitigating, and adapting to, climate change. Unlike in section 5(8) of the PA 2008, this is not a factor which is tied to Government policy. As it transpired, very little divided the parties under this ground. The basic legal approach is agreed. A useful summation of the law was given by Simon Brown LJ in R v Somerset County Council, Ex p Fewings [1995] 1 WLR 1037, 1049, in which he identified three categories of consideration, as follows: [T]he judge speaks of a decision maker who fails to take account of all and only those considerations material to his task. It is important to bear in mind, however, that there are in fact three categories of consideration. First, those clearly (whether expressly or impliedly) identified by the statute as considerations to which regard must be had. Second, those clearly identified by the statute as considerations to which regard must not be had. Third, those to which the decision maker may have regard if in his judgment and discretion he thinks it right to do so. There is, in short, a margin of appreciation within which the decision maker may decide just what considerations should play a part in his reasoning process. The three categories of consideration were identified by Cooke J in the New Zealand Court of Appeal in CREEDNZ Inc v Governor General [1981] NZLR 172, 183: What has to be emphasised is that it is only when the statute expressly or impliedly identifies considerations required to be taken into account by the [relevant public authority] as a matter of legal obligation that the court holds a decision invalid on the ground now invoked. It is not enough that a consideration is one that may properly be taken into account, nor even that it is one which many people, including the court itself, would have taken into account if they had to make the decision. Cooke J further explained at p 183 in relation to the third category of consideration that, notwithstanding the silence of the statute, there will be some matters so obviously material to a decision on a particular project that anything short of direct consideration of them by [the public authority] would not be in accordance with the intention of the Act. These passages were approved as a correct statement of principle by the House of Lords in In re Findlay [1985] AC 318, 333 334. See also R (Hurst) v London Northern District Coroner [2007] UKHL 13; [2007] 2 AC 189, paras 55 59 (Lord Brown of Eaton under Heywood, with whom a majority of the Appellate Committee agreed); R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] 1 AC 756, para 40 (Lord Bingham of Cornhill, with whom a majority of the Appellate Committee agreed); and R (Samuel Smith Old Brewery (Tadcaster)) v North Yorkshire County Council [2020] UKSC 3; [2020] PTSR 221, paras 29 32 (Lord Carnwath, with whom the other members of the court agreed). In the Hurst case, Lord Brown pointed out that it is usually lawful for a decision maker to have regard to unincorporated treaty obligations in the exercise of a discretion (para 55), but that it is not unlawful to omit to do so (para 56). As the Court of Appeal correctly held in Baroness Cumberlege of Newick v Secretary of State for Communities and Local Government [2018] EWCA Civ 1305; [2018] PTSR 2063, paras 20 26, in line with these other authorities, the test whether a consideration falling within the third category is so obviously material that it must be taken into account is the familiar Wednesbury irrationality test (Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223; Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374, 410 411 per Lord Diplock). It is possible to subdivide the third category of consideration into two types of case. First, a decision maker may not advert at all to a particular consideration falling within that category. In such a case, unless the consideration is obviously material according to the Wednesbury irrationality test, the decision is not affected by any unlawfulness. Lord Bingham deals with such a case in Corner House Research at para 40. There is no obligation on a decision maker to work through every consideration which might conceivably be regarded as potentially relevant to the decision they have to take and positively decide to discount it in the exercise of their discretion. Secondly, a decision maker may in fact turn their mind to a particular consideration falling within the third category, but decide to give the consideration no weight. As we explain below, this is what happened in the present case. The question again is whether the decision maker acts rationally in doing so. Lord Brown deals with a case of this sort in Hurst (see para 59). This shades into a cognate principle of public law, that in normal circumstances the weight to be given to a particular consideration is a matter for the decision maker, and this includes that a decision maker might (subject to the test of rationality) lawfully decide to give a consideration no weight: see, in the planning context, Tesco Stores Ltd v Secretary of State for the Environment [1995] 1 WLR 759 (HL), 780 (Lord Hoffmann). The Divisional Court (para 648) and the Court of Appeal (para 237) held that the Paris Agreement fell within the third category identified in Fewings. In so far as it is an international treaty which has not been incorporated into domestic law, this is correct. In fact, however, as we explain (para 71 above), the UKs obligations under the Paris Agreement are given effect in domestic law, in that the existing carbon target under section 1 of the CCA 2008 and the carbon budgets under section 4 of that Act already meet (and, indeed, go beyond) the UKs obligations under the Paris Agreement to adhere to the NDCs notified on its behalf under that Agreement. The duties under the CCA 2008 clearly were taken into account when the Secretary of State decided to issue the ANPS. At para 5.69 of the ANPS the Secretary of State stated: The Government has a number of international and domestic obligations to limit carbon emissions. Emissions from both the construction and operational phases of the [NWR Scheme] project will be relevant to meeting these obligations. This statement covered the Paris Agreement as well as other international treaties. At para 5.71 the ANPS correctly stated that [t]he UKs obligations on greenhouse gas emissions are set under the [CCA 2008]. As explained above, the relevant NDCs required to be set under the Paris Agreement were covered by the target in the CCA 2008 and the carbon budgets set under that Act. At paras 5.72 5.73 of the ANPS it was explained how aviation emissions were taken into account in setting carbon budgets under the CCA 2008 in accordance with the advice given by the CCC. We have set out the evidence of Ms Low and Ms Stevenson regarding this topic (paras 88 and 89 above) which confirms that, in acting for the Secretary of State in drawing up the ANPS, they followed the advice of the CCC that the existing measures under the CCA 2008 were capable of being compatible with the 2050 target set by the Paris Agreement. The CCC did not recommend adjusting the UKs targets further at that stage. They were to be kept under review and appropriate adjustments could be made to the emissions target and carbon budgets under the CCA 2008 in future as necessary. According to that advice, therefore, sufficient account was taken of the Paris Agreement by ensuring that the relevant emissions target and carbon budgets under the CCA 2008 would be properly taken into account in the construction and operation of the NWR Scheme. The ANPS ensured that this would occur: see para 5.82 (set out at para 87 above). Therefore, on a correct understanding of the ANPS and the Secretary of States evidence, this is not a case in which the Secretary of State omitted to give any consideration to the Paris Agreement; nor is it one in which no weight was given to the Paris Agreement when the Secretary of State decided to issue the ANPS. On the contrary, the Secretary of State took the Paris Agreement into account and, to the extent that the obligations under it were already covered by the measures under the CCA 2008, he gave weight to it and ensured that those obligations would be brought into account in decisions to be taken under the framework established by the ANPS. On proper analysis the question is whether the Secretary of State acted irrationally in omitting to take the Paris Agreement further into account, or give it greater weight, than in fact he did. In its judgment, the Divisional Court recorded (para 638) that the Secretary of State accepted that, in designating the ANPS, he took into account only the CCA 2008 carbon emission targets and did not take into account either the Paris Agreement or otherwise any post 2050 target or non CO2 emissions (these latter points are relevant to ground (iv) below). However, this way of describing the position masks somewhat the way the Paris Agreement did in fact enter into consideration by the Secretary of State. In the same paragraph, the Divisional Court summarised two submissions advanced by counsel for the Secretary of State as to why the Secretary of States approach was not unlawful: (i) on its proper construction, and having regard to the express reference to the UKs international obligations in section 104(4) of the PA 2008, the PA 2008 requires the Secretary of State to ignore international commitments except where they are expressly referred to in that Act; alternatively, (ii) even if not obliged to ignore such commitments, the Secretary of State had a discretion as to whether to do so and was not obliged to take them into account. The Divisional Court rejected the first argument but accepted the second. It noted that the Secretary of State was bound by the obligations in the CCA 2008, which effectively transposed international obligations into domestic law (para 643). Beyond that, the Secretary of State had a discretion whether to take the Paris Agreement further into account, and had not (even arguably) acted irrationally in deciding not to do so. It therefore refused to give permission for judicial review of the ANPS on this ground. The Court said (para 648): In our view, given the statutory scheme in the CCA 2008 and the work that was being done on if and how to amend the domestic law to take into account the Paris Agreement, the Secretary of State did not arguably act unlawfully in not taking into account that Agreement when preferring the NWR Scheme and in designating the ANPS as he did. As we have described, if scientific circumstances change, it is open to him to review the ANPS; and, in any event, at the DCO stage this issue will be re visited on the basis of the then up to date scientific position. Mr Wolfe sought to support the judgment of the Court of Appeal in relation to this ground. He argued that the evidence for the Secretary of State had to be read in the light of the first submission made by his counsel in the Divisional Court, and that the true position was that the Secretary of State (acting by his officials and advisers) had been advised that he was not entitled to have regard to the Paris Agreement when deciding whether to designate the ANPS and had proceeded on that basis, with the result that he had not in fact exercised any discretion in deciding not to have further regard to the Paris Agreement. He also submitted that it was obvious that it was a material consideration. Mr Wolfe was successful in persuading the Court of Appeal on these points (paras 203 and 234 238 of its judgment). The Court of Appeal accepted his submissions that there was an error of law in the approach of the Secretary of State because he never asked himself the question whether he could take into account the Paris Agreement pursuant to his obligations under section 10 and [i]f he had asked himself that question the only answer that would reasonably have been open to him is that the Paris Agreement was so obviously material to the decision he had to make in deciding whether to designate the ANPS that it was irrational not to take it into account. With respect to the Court of Appeal, they were wrong to overturn the judgment of the Divisional Court on this ground. Mr Wolfes submissions conflated a submission of law (submission (i) above) made by counsel for the Secretary of State as recorded in para 638 of the judgment of the Divisional Court and the evidence of fact given by the relevant witnesses for the Secretary of State. In making his submission of law, counsel was not giving evidence about the factual position. There is a fundamental difference between submissions of law made by counsel and evidence of fact. Clearly, if the Secretary of State had been correct in submission (i) that would have provided an answer to the case against him whatever the position on the facts. This explains why counsel advanced the submission. But it is equally clear that if that submission failed, the Secretary of State made an alternative submission that he had a discretion whether to take the Paris Agreement further into account than was already the case under the CCA 2008 and that there had been no error of law in the exercise of that discretion. That was the submission accepted by the Divisional Court. In our view, both the submissions of Mr Wolfe which the Court of Appeal accepted are unsustainable. The Divisional Courts judgment on this point is correct. On the evidence, the Secretary of State certainly did ask himself the question whether he should take into account the Paris Agreement beyond the extent to which it was already reflected in the obligations under the CCA 2008 and concluded in the exercise of his discretion that it would not be appropriate to do so. As mentioned above, this case is in the class referred to in para 121 above. Mr Wolfe sought to suggest that in deciding the case as it did, the Court of Appeal had acted as a first instance court (since the Divisional Court had refused to give permission for judicial review on this ground) and that it had made factual findings to contrary effect which this court was not entitled to go behind. He also submitted that HAL, in its notice of appeal, had not questioned the factual position as it was taken to be by the Court of Appeal and was therefore not entitled to dispute it on this appeal. Neither of these submissions has any merit. The Divisional Court considered the claims brought against the Secretary of State at a rolled up hearing lasting many days and considered each claim in full and in depth. In respect of all aspects of the Divisional Courts decision, both in relation to those claims on which it granted permission for judicial review but then dismissed the claim and in relation to those claims (including those relating to grounds (i) to (iv) in this appeal) on which after full consideration it decided they were unarguable and so refused to grant permission for judicial review, the Court of Appeal correctly understood that its role was the conventional role of an appellate court, to examine whether the Divisional Court had erred in its decision. In any event, this court can read the undisputed evidence of Ms Low and Ms Stevenson for itself and has the benefit of an agreed Statement of Facts and Issues which makes it clear what the true factual position was. The Court of Appeal was wrong to proceed on the basis of a different assessment of the facts. On a fair reading of HALs notice of appeal, it indicated that its case under this ground was to be that the Secretary of State had a discretion whether to have regard to the Paris Agreement, which discretion had been exercised lawfully. In any event, that was put beyond doubt by HALs written case. FoE and Plan B Earth have been on notice of HALs case under this ground for a long time and are in no way prejudiced by it being presented in submissions to this court. The view formed by the Secretary of State, that the international obligations of the UK under the Paris Agreement were sufficiently taken into account for the purposes of the designation of the ANPS by having regard to the obligations under the CCA 2008, was in our judgment plainly a rational one. Mr Wolfe barely argued to the contrary. The Secretary of States assessment was based on the advice of the CCC, as the relevant independent expert body. The assessment cannot be faulted. Further, the ANPS itself indicated at para 5.82 that the up to date carbon targets under the CCA 2008, which would reflect developing science and any change in the UKs international obligations under the Paris Agreement, would be taken into account at the stage of considering whether a DCO should be granted. That was a necessary step before the NWR Scheme could proceed. Moreover, as observed by the Divisional Court, there was scope for the Secretary of State to amend the ANPS under section 6 of the PA 2008, should that prove to be necessary if it emerged in the future that there was any inconsistency between the ANPS and the UKs obligations under the Paris Agreement. It should also be observed that the carbon emissions associated with all three of the principal options identified by the Airports Commission (that is, the NWR Scheme, the ENR Scheme and the G2R Scheme) were assessed to be broadly similar. Accordingly, reference to the Paris Agreement does not provide any basis for preferring one scheme rather than another. To the extent the obligations under the Paris Agreement have a bearing on the decision to designate the ANPS, therefore, they are only significant if it is to be argued that there should not be any decision to meet economic needs by increasing airport capacity by one of these schemes. But in light of the extensive work done by the Airports Commission about the need for such an increase in capacity it could not be said that the Secretary of State acted irrationally in considering that the case for airport expansion had been sufficiently made out to allow the designation of the ANPS. The respondents did not seek to argue that this aspect of his reasoning was irrational. As we have noted above, the concept of sustainability in section 10 of the PA 2008 includes consideration of economic and social factors as well as environmental ones. In light of the factual position, it is not necessary to decide the different question whether, if the Secretary of State had omitted to think about the Paris Agreement at all (so that this was a case of the type described in para 120 above), as an unincorporated treaty, that would have constituted an error of law. That is not a straightforward issue and we have not heard submissions on the point. We say no more about it. Ground (iii): the SEA Directive ground The SEA Directive operates along with the EIA Directive to ensure that environmental impacts from proposals for major development are properly taken into account before a development takes place. The relationship between the Directives was explained by Lord Reed in Walton v Scottish Ministers [2012] UKSC 44; [2013] PTSR 51, paras 10 30. The SEA Directive applies upstream, at the stage of preparation of strategic development plans or proposals. The EIA Directive requires assessment of environmental impacts downstream, at the stage when consent for a particular development project is sought. Although the two Directives are engaged at different points in the planning process for large infrastructure projects such as the NWR Scheme, they have similar objects and have to deal with similar issues of principle, including in particular the way in which regard should be had to expert assessment of various factors bearing on that process. These points indicate that a similar approach should apply under the two Directives. The SEA Directive is implemented in domestic law by the SEA Regulations. It is common ground that the SEA Regulations are effective in transposing the Directive into domestic law. Accordingly, it is appropriate to focus the discussion of this ground on the SEA Directive itself. The structure of the SEA Directive appears from its provisions, set out and discussed above. The Directive requires that an environmental assessment of major plans and proposals should be carried out. The ANPS is such a plan, which will have a significant effect in setting the policy framework for later consideration of whether to grant a DCO for implementing the NWR Scheme. Therefore the proposal to designate it under section 5 of the PA 2008 required an environmental assessment as defined in article 2(b). The environmental assessment had to include the preparation of an environmental report and the carrying out of consultations. An environmental report for the purposes of the Directive is directed to providing a basis for informed public consultation on the plan. The decision making framework under the SEA Directive is similar to that under the EIA Directive for environmental assessment of particular projects. Under the EIA Directive, an applicant for planning consent for particular projects has to produce an environmental statement which, among other things, serves as a basis for consultation with the public. Under the SEA Directive, the public authority which proposes the adoption of a strategic plan has to produce an environmental report for the same purpose. In due course, any application by HAL for a DCO will have to go through the process of environmental assessment pursuant to the EIA Directive and the EIA Regulations. FoE and Plan B Earth complain that the environmental report which the Secretary of State was required under the SEA Directive to prepare and publish was defective, in that it did not make reference to the Paris Agreement. Mr Wolfe pointed out that the Secretary of State did not include the Paris Agreement in the long list of legal instruments and other treaties appended to the scoping report produced in March 2016 (ie after the Paris Agreement was adopted in December 2015 but before it was signed by the UK in April 2016 and ratified by it in November 2016) for the purposes of preparing the draft AoS which was to stand as the Secretary of States environmental report for the purposes of the SEA Directive for the consultation on the draft ANPS. No reference to the Paris Agreement was included in the AoS used for the February 2017 consultation on the draft ANPS, nor in that used for the October 2017 consultation on the draft ANPS. Against this, HAL points out that the carbon target in the CCA 2008 and the carbon budgets set under that Act were referred to in the AoS, as well as in the draft ANPS itself, so to that extent the UKs obligations under the Paris Agreement were covered in the environmental report. Beyond that, the evidence of Ms Stevenson (who led the team who prepared the AoS on behalf of the Secretary of State) makes it clear that the Secretary of State followed the advice of the CCC in deciding that it was not necessary and would not be appropriate to make further reference to the Paris Agreement in the AoS. The existing domestic legal obligations were considered to be the correct basis for assessing the carbon impact of the project, and it would be speculative and unhelpful to guess at what different targets might be recommended by the CCC in the future. Therefore, despite its omission from the scoping report, when the AoS actually came to be drafted the Paris Agreement (which had been ratified by the UK after the scoping report was issued) had been considered and the Secretary of State, acting by Ms Stevenson and her team, had decided in the exercise of his discretion not to make distinct reference to it. As regards the law, the parties are in agreement. Any obligation to make further reference to the Paris Agreement in the environmental report depended on the application of three provisions of the SEA Directive. Under paragraph (e) of Annex I, the AoS had to provide information in the form of the environmental protection objectives, established at international, Community or member state level, which are relevant to the plan or programme and the way those objectives and any environmental considerations have been taken into account during its preparation. But, as stated in the introduction to Annex I, this was subject to article 5(2) and (3) of the Directive, set out at para 58 above. It is common ground that the effect of article 5(2) and (3) is to confer on the Secretary of State a discretion regarding the information to include in an environmental report. It is also common ground that the approach to be followed in deciding whether the Secretary of State has exercised his discretion unlawfully for the purposes of that provision is that established in relation to the adequacy of an environmental statement when applying the EIA Directive, as set out by Sullivan J in R (Blewett) v Derbyshire County Council [2003] EWHC 2775 (Admin); [2004] Env LR 29 (Blewett). Blewett has been consistently followed in relation to judicial review of the adequacy of environmental statements produced for the purposes of environmental assessment under the EIA Directive and endorsed at the highest level. In Shadwell Estates Ltd v Breckland District Council [2013] EWHC 12 (Admin) Beatson J held that the Blewett approach was also applicable in relation to the adequacy of an environmental report under the SEA Directive. The Divisional Court and the Court of Appeal in the present case endorsed this view (at paras 401 435 and paras 126 144 of their respective judgments). The respondents have not challenged this and we see no reason to question the conclusion of the courts below on this issue. As Sullivan J held in Blewett (paras 32 33), where a public authority has the function of deciding whether to grant planning permission for a project calling for an environmental impact assessment under the EIA Directive and the EIA Regulations, it is for that authority to decide whether the information contained in the document presented as an environmental statement is sufficient to meet the requirements of the Directive, and its decision is subject to review on normal Wednesbury principles. Sullivan J observed (para 39) that the process of requiring that the environmental statement is publicised and of public consultation gives those persons who consider that the environmental statement is inaccurate or inadequate or incomplete an opportunity to point out its deficiencies. The EIA Directive and Regulations do not impose a standard of perfection in relation to the contents of an environmental statement in order for it to fulfil its function in accordance with the Directive and the Regulations that it should provide an adequate basis for public consultation. At para 41 Sullivan J warned against adoption of an unduly legalistic approach in relation to assessment of the adequacy of an environmental statement and said: The [EIA] Regulations should be interpreted as a whole and in a common sense way. The requirement that an [environmental impact assessment] application (as defined in the Regulations) must be accompanied by an environmental statement is not intended to obstruct such development. As Lord Hoffmann said in R v North Yorkshire County Council, Ex p Brown [2000] 1 AC 397, at p 404, the purpose is to ensure that planning decisions which may affect the environment are made on the basis of full information. In an imperfect world it is an unrealistic counsel of perfection to expect that an applicants environmental statement will always contain the full information about the environmental impact of a project. The Regulations are not based upon such an unrealistic expectation. They recognise that an environmental statement may well be deficient, and make provision through the publicity and consultation processes for any deficiencies to be identified so that the resulting environmental information provides the local planning authority with as full a picture as possible. There will be cases where the document purporting to be an environmental statement is so deficient that it could not reasonably be described as an environmental statement as defined by the Regulations , but they are likely to be few and far between. Lord Hoffmann (with whom the other members the Appellate Committee agreed on this issue) approved this statement in R (Edwards) v Environment Agency [2008] UKHL 22; [2008] 1 WLR 1587, para 38. As the Divisional Court and the Court of Appeal held in the present case, the discretion of the relevant decision maker under article 5(2) and (3) of the SEA Directive as to whether the information included in an environmental report is adequate and appropriate for the purposes of providing a sound and sufficient basis for public consultation leading to a final environmental assessment is likewise subject to the conventional Wednesbury standard of review. We agree with the Court of Appeal when it said (para 136): The courts role in ensuring that an authority here the Secretary of State has complied with the requirements of article 5 and Annex I when preparing an environmental report, must reflect the breadth of the discretion given to it to decide what information may reasonably be required when taking into account the considerations referred to first, current knowledge and methods of assessment; second, the contents and level of detail in the plan or programme; third, its stage in the decision making process; and fourth the extent to which certain matters are more appropriately assessed at different levels in that process in order to avoid duplication of the assessment. These requirements leave the authority with a wide range of autonomous judgment on the adequacy of the information provided. It is not for the court to fix this range of judgment more tightly than is necessary. The authority must be free to form a reasonable view of its own on the nature and amount of information required, with the specified considerations in mind. This, in our view, indicates a conventional Wednesbury standard of review as adopted, for example, in Blewett. A standard more intense than that would risk the court being invited, in effect, to substitute its own view on the nature and amount of information included in environmental reports for that of the decision maker itself. This would exceed the proper remit of the court. The EIA Directive and the SEA Directive are, of course, EU legislative instruments and their application is governed by EU law. However, as the Court of Appeal observed (paras 134 135), the type of complex assessment required in compiling an environmental report for the purposes of environmental assessment is an area where domestic public law principles have the same effect as the parallel requirements of EU law. As Advocate General Lger stated in his opinion in Upjohn Ltd v Licensing Authority Established Under Medicines Act 1968 (Case C 120/97) [1999] 1 WLR 927, para 50, [the] court has always taken the view that when an authority is required, in the exercise of its functions, to undertake complex assessments, a limited judicial review of the action which that authority alone is entitled to perform must be exercised, since otherwise that authoritys freedom of action would be definitively paralysed . The appropriateness of this approach is reinforced in the present context, having regard to the function which an environmental report is supposed to fulfil under the scheme of the SEA Directive. It is intended that such a report should inform the public by providing an appropriate and comprehensible explanation of the relevant policy context for a proposed strategic plan or project to enable them to provide comments thereon, and in particular to suggest reasonable alternatives by which the public need for development in accordance with the proposed plan or project could be met. As article 6(2) states, the public is to have an early and effective opportunity to express their opinion on a proposed plan or programme. It is implicit in this objective that the public authority responsible for promulgating an environmental report should have a significant editorial discretion in compiling the report to ensure that it is properly focused on the key environmental and other factors which might have a bearing on the proposed plan or project. Absent such a discretion, there would be a risk that public authorities would adopt an excessively defensive approach to drafting environmental reports, leading to the reports being excessively burdened with irrelevant or unfocused information which would undermine their utility in informing the general public in such a way that the public is able to understand the key issues and comment on them. In the sort of complex environmental report required in relation to a major project like the NWR Scheme, there is a real danger that defensive drafting by the Secretary of State to include reference to a wide range of considerations which he did not consider to be helpful or appropriate in the context of the decision to be taken would mean that the public would be drowned in unhelpful detail and would lose sight of the wood for the trees, and their ability to comment effectively during the consultation phase would be undermined. The appositeness of Sullivan Js analysis in Blewett at para 41, quoted above, has been borne out in this case. The draft ANPS issued with the AoS for the purposes of consultation included the statement that it was compatible with the UKs international obligations in relation to climate change. Concerns about the impact of the expansion of Heathrow on the UKs ability to meet its climate change commitments were raised in representations made during the consultation. In the Governments response to the consultation published on 5 June 2018 these representations were noted and the Governments position in relation to them was explained (paras 8.18 8.19 and 8.25). The Governments view was that the NWR Scheme was capable of being compatible with the UKs international obligations and that there was no good reason to hold up the designation of the ANPS until future policy in relation to aviation carbon emissions, which was in a state of development internationally and domestically, was completely fixed. Accordingly, it is clear that the public was able to comment on the Paris Agreement in the course of the consultation and that their comments were taken into account in the environmental assessment required by the SEA Directive. It again appears from this material that the Secretary of State did have regard to the Paris Agreement when deciding to designate the ANPS. As we have said, Mr Wolfe did not challenge the legal framework set out above. In particular, he did not challenge the appropriateness of applying the Wednesbury standard in relation to the exercise of discretion under article 5(2) and (3). Instead, in line with his submission under ground (ii) above, his submission was that the Secretary of State had decided that the Paris Agreement was not a relevant statement of international policy falling within Annex I, paragraph (e), because he had been advised that it was legally irrelevant to the decision he had to take as to whether to designate the ANPS. Thus, according to Mr Wolfe, the Secretary of State had never reached the stage of exercising his discretion whether to include a distinct reference to the Paris Agreement in the AoS. The Secretary of States decision that the Paris Agreement was irrelevant as a matter of law was wrong, and therefore the Secretary of State had erred in law because he simply did not turn his mind to whether reference to it should be included in the environmental report (the AoS). This was the argument which the Court of Appeal accepted at paras 242 to 247. The Court of Appeals reasoning on this point was very short because, as it pointed out, it followed its reasoning in relation to the respondents submissions in relation to section 10 of the PA 2008 (ground (ii) above). In our view, as with the ground (ii) above, Mr Wolfes submission and the reasoning of the Court of Appeal cannot be sustained in light of the relevant evidence on the facts. As we have explained, the Secretary of State did not treat the Paris Agreement as legally irrelevant and on that basis refuse to consider whether reference should be made to it. On the contrary, as Ms Stevenson explains in her evidence, in compiling the AoS as the environmental statement required under the SEA Directive the Secretary of State decided to follow the advice of the CCC to the effect that the UKs obligations under the Paris Agreement were sufficiently taken into account in the UKs domestic obligations under the CCA 2008, which were referred to in the ANPS and the AoS. Further reference to the Paris Agreement was not required. As we have already held above, this was an assessment which was plainly rational and lawful. Therefore, we would uphold this ground of appeal as well. Having regard to the evidence regarding the factual position, the Divisional Court was right to reject this complaint by the respondents (paras 650 656). The Secretary of State did not act in breach of any of his obligations under the SEA Directive in drafting the AoS as the relevant environmental report in respect of the ANPS, and in omitting to include any distinct reference in it to the Paris Agreement. Ground (iv) the post 2050 and non CO emissions grounds This ground concerns other matters which it is said that the Secretary of State failed to take into consideration in the performance of his duty under section 10(2) and (3) of the PA 2008. Those provisions, as we have said, obliged the Secretary of State in performing his function of designating the ANPS to do so with the objective of contributing to sustainable development and in so doing to have regard to the desirability of mitigating, and adapting to, climate change. FoE has argued and the Court of Appeal (paras 248 260) has accepted that the Secretary of State failed in his duty under section 10 to have regard to (i) the effect of emissions created by the NWR Scheme after 2050 and (ii) the effect of non CO emissions from that scheme. The Divisional Court dealt with this matter together with the matter which has become ground (ii) in this appeal, namely whether the Secretary of State failed to have regard to the Paris Agreement in breach of section 10, as issue 19 in the rolled up hearing (paras 633 648, 659(iv)) and held that that FoEs case was not arguable. The Court of Appeal (para 256) correctly treated this issue as closely bound up with what is now ground (ii) in this appeal. It is not in dispute in this appeal that in assessing whether the Secretary of State was bound to address the effect of the post 2050 emissions and the effect of the non CO emissions in the ANPS we are dealing with the third category of considerations in Simon Brown LJs categorisation in R v Somerset County Council, Ex p Fewings (para 116 above). The Secretary of State had a margin of appreciation in deciding what matters he should consider in performing his section 10 duty. It is also not in dispute that it is appropriate to apply the Wednesbury irrationality test to that decision (para 119 above). The task for the court therefore is one of applying that legal approach to the facts of this case. We address first the question of post 2050 emissions before turning to the non CO emissions. (i) post 2050 emissions FoEs argument on the relevance to the objectives of the Paris Agreement of the impacts of emissions after 2050 was straightforward. An assessment of the impact of the emissions from aircraft using the North West Runway by reference to a greenhouse gas target for 2050 fails to consider whether it would be sustainable for the additional aviation emissions from the use of the North West Runway to occur after 2050 given the goal of the Paris Agreement for global emissions to reach net zero in the second half of the century. HAL submitted that the Secretary of States approach is entirely rational. Lord Anderson points out, and FoE accepts, that the Airports Commission assessed the carbon emissions of each of the short listed schemes over a 60 year appraisal period up to 2085/2086 and that the same appraisal period was used in the AoS which accompanied the ANPS. The Secretary of State therefore did take into account the fact that there would be carbon emissions from the use of the North West Runway after 2050 and quantified those emissions. It was not irrational to decide not to attempt to assess post 2050 emissions by reference to future policies which had yet to be formulated. It was rational for him to assume that future policies in relation to the post 2050 period, including new emissions targets, could be enforced by the DCO process and mechanisms such as carbon pricing, improvements to aircraft design, operational efficiency improvements and limitation of demand growth. In our view, HAL is correct in its submission that the Secretary of State did not act irrationally in not attempting in the ANPS to assess post 2050 emissions against policies which had yet to be determined. It is clear from the AoS that the Department for Transport modelled the likely future carbon emissions of both Heathrow and Gatwick airports, covering aircraft and other sources of emissions, to 2085/2086 (paras 6.11.1 6.11.3, 6.11.13 and Table 6.4). As we have set out in our discussion of ground (i) above, policy in response to the global goals of the Paris Agreement was in the course of development in June 2018 when the Secretary of State designated the ANPS and remains in development. Further, as we have already pointed out (paras 10 and 98 above), the designation of the NWR Scheme in the ANPS did not immunise the scheme from complying with future changes of law and policy. The NWR Scheme would fall to be assessed against the emissions targets which were in force at the date of the determination of the application for a DCO. Under section 120 of the PA 2008 (para 37 above) the DCO may impose requirements corresponding to planning conditions and requirements that the approval of the Secretary of State be obtained. Under section 104 (para 35 above), the Secretary of State is not obliged to decide the application for the DCO in accordance with the ANPS if (i) that would lead the United Kingdom to be in breach of any of its international obligations, (ii) that would lead the Secretary of State be in breach of any duty imposed by or under any other enactment, (iii) the Secretary of State is satisfied that deciding the application in accordance with the ANPS would be unlawful by virtue of any enactment and (iv) the Secretary of State is satisfied that the adverse impact of the proposed development would outweigh its benefits. There are therefore provisions in place to make sure that the NWR Scheme complies with law and policy, including the Governments forthcoming Aviation Strategy, at the date when the DCO application is determined. There are also mechanisms available to the Government, as HAL submits (para 155 above), by which the emissions from the use of the North West Runway can be controlled. (ii) non CO emissions To understand FoEs argument in relation to non CO emissions, it is necessary first to identify what are the principal emissions which give rise to concern. Mr Tim Johnson, of the Aviation Environmental Federation, explained in his first witness statement that aircraft emit nitrogen oxides, water vapour and sulphate and soot aerosols, which combine to have a net warming effect. Depending on atmospheric humidity, the hot air from aircraft exhausts combines with water vapour in the atmosphere to form ice crystals which appear as linear condensation trails and can lead to cirrus like cloud formation. Using the metric of radiative forcing (RF), which is a measure of changes in the energy balance of the atmosphere in watts per square metre, it is estimated that the overall RF by aircraft is 1.9 times greater than the forcing by aircraft CO emissions alone, but the RF metric is not suitable for forecasting future impacts. He recognised that there is continuing uncertainty about the impacts of non CO emissions, which tend to be short lived, but he stated that there is high scientific consensus that the total climate warming effect of aviation is more than that from CO emissions alone. Scientists are exploring metrics to show how non CO impacts can be reflected in emission forecasts for the purpose of formulating policy. There is substantial agreement between the parties that there is continuing uncertainty in the scientific community about the effects of non CO emissions. The Department for Transport acknowledged this uncertainty in the AoS (para 6.11.11): The assessment undertaken is based on CO emissions only There are likely to be highly significant climate change impacts associated with non CO emissions from aviation, which could be of a similar magnitude to the CO emissions themselves, but which cannot be readily quantified due to the level of scientific uncertainty and have therefore not been assessed. There are also non CO emissions associated with the operation of the airport infrastructure, such as from refrigerant leaks and organic waste arisings, however, evidence suggests that these are minor and not likely to be material. The AoS returned to this topic (Appendix A 9, para 9.11.5): In addition, there are non carbon emissions associated with the combustion of fuels in aircraft engines while in flight, which are also thought to have an impact on climate change. As well as CO, combustion of aviation fuel results in emission of water vapour, nitrogen oxides (NO) and aerosols. NO are indirect greenhouse gases, in that they do not give rise to a radiative effect themselves, but influence the concentration of other direct greenhouse gases With the exception of sulphate aerosols, all other emissions cause warming. In addition, the flight of aircraft can also cause formation of linear ice clouds (contrails) and can lead to further subsequent aviation induced cloudiness. These cloud effects cause additional warming. Evidence suggests that the global warming impact of aviation, with these sources included, could be up to two times that of the CO impact by itself, but that the level of scientific uncertainty involved means that no multiplier should be applied to the assessment. For these reasons the [Airports Commission] did not assess the impact of the non CO effects of aviation and these have not been included in the AoS assessment. This position is kept under review by DfT but it is worth noting that non CO emissions of this type are not currently included in any domestic or international legislation or emissions targets and so their inclusion in the assessment would not affect its conclusion regarding legal compliance. It is recommended that further work be done on these impacts by the applicant during the detailed scheme design, according to the latest appraisal guidance. (Emphasis added) This approach of addressing the question of capacity by reference to CO emissions targets, keeping the policy in relation to non CO emissions under review and requiring an applicant for a DCO to address such impacts by reference to the state of knowledge current at the time of the determination of its application was consistent with the advice of the CCC to the Airports Commission and to the Secretary of State. The Airports Commission recorded that advice in its interim report in December 2013: because of the uncertainties in the quantification of the impact of non CO emissions, the target for constraining CO emissions remained the most appropriate basis for planning future airport capacity. The approach of reconsidering the effect of all significant emissions when determining an application for a DCO is reflected in the ANPS which addressed the CO emissions target and stated (para 5.76): Pursuant to the terms of the Environmental Impact Assessment Regulations, the applicant should undertake an assessment of the project as part of the environmental statement, to include an assessment of any likely significant climate factors. The applicant should quantify the greenhouse gas impacts before and after mitigation to show the impacts of the proposed mitigation. (Emphasis added) The approach remains consistent with the CCCs advice since the designation of the ANPS. In its letter of 24 September 2019 to the Secretary of State recommending that international aviation and shipping emissions be included in a net zero CO emissions target, the CCC stated: Aviation is likely to be the largest emitting sector in the UK by 2050, even with strong progress on technology and limiting demand. Aviation also has climate warming effects beyond CO, which it will be important to monitor and consider within future policies. (Emphasis added) The Government in its response to consultations on the ANPS (para 11.50) stated that it will address how policy might make provision for the effects of non CO aviation emissions in its Aviation Strategy. That strategy is due to be published shortly. The Secretary of State when he designated the ANPS was aware that the applicant for a DCO in relation to the NWR Scheme would have to provide an environmental assessment which addressed, and would be scrutinised against, the then current domestic and international rules and policies on aviation and other emissions. He would have been aware of his power to make requirements under section 120 of the PA 2008 and to depart from the ANPS in the circumstances set out in section 104 of that Act (para 157 above). The Court of Appeal (para 258) upheld FoEs challenge stating the precautionary principle and common sense suggested that scientific uncertainty was not a reason for not taking something into account at all, even if it could not be precisely quantified at this stage. The Court did not hold in terms that the Secretary of State had acted irrationally in this regard but said (para 261) that, since it was remitting the ANPS to the Secretary of State for reconsideration, the question of non CO emissions and the effect of post 2050 emissions would need to be taken into account as part of that exercise. We respectfully disagree with that approach. The precautionary principle adds nothing to the argument in this context and we construe the judgment as equating the principle with common sense. But a courts view of common sense is not the same as a finding of irrationality, which is the only relevant basis on which FoE seeks to impugn the designation in its section 10 challenges. In any event we are satisfied that the Secretary of States decision to address only CO emissions in the ANPS was not irrational. In summary, we agree with the Divisional Court that it is not reasonably arguable that the Secretary of State acted irrationally in not addressing the effect of the non CO emissions in the ANPS for six reasons. First, his decision reflected the uncertainty over the climate change effects of non CO emissions and the absence of an agreed metric which could inform policy. Secondly, it was consistent with the advice which he had received from the CCC. Thirdly, it was taken in the context of the Governments inchoate response to the Paris Agreement. Fourthly, the decision was taken in the context in which his department was developing as part of that response its Aviation Strategy, which would seek to address non CO emissions. Fifthly, the designation of the ANPS was only the first stage in a process by which permission could be given for the NWR Scheme to proceed and the Secretary of State had powers at the DCO stage to address those emissions. Sixthly, it is clear from both the AoS and the ANPS itself that the applicant for a DCO would have to address the environmental rules and policies which were current when its application would be determined. Conclusion It follows that HAL succeeds on each of grounds (i) to (iv) of its appeal. It is not necessary therefore to address ground (v) which is concerned with the question whether the court should have granted the relief which it did. We would allow the appeal.

This appeal concerns the lawfulness of the Airports National Policy Statement (the ANPS) and its accompanying environmental report. The ANPS is the national policy framework which governs the construction of a third runway at Heathrow Airport. Any future application for development consent to build this runway will be considered against the policy framework in the ANPS. The ANPS does not grant development consent in its own right. Successive governments have considered whether there is a need for increased airport capacity in the South East of England. The Secretary of State for Transport (the Secretary of State) declared that the Government accepted the case for airport expansion in 2015. He announced that the North West Runway (NWR) scheme was the preferred scheme in October 2016. The UK was separately developing its policy on environmental issues and climate change. On 22 April 2016 the UK signed the Paris Agreement under the United Nations Framework Convention on Climate Change (the Paris Agreement). The UK ratified the agreement on 17 November 2016. The agreement sets out various targets for the reduction of greenhouse gas emissions, particularly carbon dioxide, and the reduction of temperature increases resulting from global warming (the Paris Agreement Targets). Two Government ministers Andrea Leadsom MP and Amber Rudd MP made statements about the Governments approach to the Paris Agreement in March 2016. Against this background, the Secretary of State designated the ANPS as national policy on 26 June 2018. Objectors to the NWR scheme, including Friends of the Earth Ltd (FoE) and Plan B Earth, challenged the lawfulness of the Secretary of States designation on a number of grounds. The Divisional Court dismissed all of the objectors various claims in two separate judgments. The Court of Appeal upheld the main parts of these judgments on appeal but allowed some of FoE and Plan B Earths grounds. It held the Secretary of State had acted unlawfully in failing to take the Paris Agreement into account when designating the ANPS. Accordingly, the ANPS was of no legal effect. The Secretary of State does not appeal the Court of Appeals decision. However, the company which owns Heathrow Airport, Heathrow Airport Ltd (HAL), is a party to the proceedings and has been granted permission to appeal to the Supreme Court. HAL has stated that it has already invested a large sum of money in promoting the NWR scheme and wishes to make an application for development consent to carry the project through. The Supreme Court unanimously allows the appeal. Lord Hodge and Lord Sales give the main judgment (with which Lord Reed, Lady Black and Lord Leggatt agree). Government policy The Secretary of State designated the ANPS under section 5(1) of the Planning Act 2008 (the PA 2008) [12]. Section 5(7) of the PA 2008 provides that national policy frameworks such as the ANPS must give reasons for the policy adopted. Section 5(8) states that these reasons must include an explanation of how that policy takes account of existing Government policy relating to the mitigation of and adaptation to climate change [25]. The Court rejects Plan B Earths argument that the reasons in the ANPS needed to refer to the Paris Agreement Targets in order to comply with section 5(8). The March 2016 statements of Andrea Leadsom MP and Amber Rudd MP and the formal ratification of the Paris Agreement do not mean that the Governments commitment to the Paris Agreement constitutes Government policy in the sense in which that term is used in the statute [102]. The meaning of Government policy is a matter of interpretation of the statutory provision [101]. The phrase needs to be construed relatively narrowly in context to allow section 5(8) to operate sensibly. Otherwise it would create a bear trap for civil servants and ministers, who would have to consider all ministerial statements given in any context which might be characterised as policy in a broad sense [105]. The Court explains that Government policy in the context of section 5(8) refers to carefully formulated written statements of policy which have been cleared by the relevant departments on a Government wide basis [105]. The epitome of Government policy is a formal written statement of established policy. The absolute minimum standard is a statement which is clear, unambiguous, and devoid of relevant qualification [106]. The Court does not consider that the statements of Andrea Leadsom MP and Amber Rudd MP meet this minimum standard. They were not clear, did not refer to the Paris Temperature Targets at all, and did not explain how the Paris Agreement goal of net zero emissions would be incorporated into UK law [106]. The lower courts were asked to consider whether international treaties which have been formally ratified but have not been incorporated into domestic law such as the Paris Agreement are Government policy. FoE and Plan B Earth did not maintain that argument in the Supreme Court. As the Court explains, international treaties are binding only as a matter of international law and do not have an effect in domestic law. Treaty commitments continue whether or not a particular Government remains in office and do not constitute a statement of Government policy for the purposes of domestic law [108]. Section 1 of the Climate Change Act 2008 (the CCA 2008) sets a national carbon target. Section 4 obliges the Government to establish carbon budgets for the UK [6]. These are already more demanding than the limits which the UK is currently obliged to have in place under the Paris Agreement [71]. The Court holds that, at the point the ANPS was designated in June 2018, there was no established Government policy on climate change beyond that already reflected in the CCA 2008 [111]. Sustainable development Section 10(2) and (3) of the PA 2008 requires the Secretary of State to designate national policy frameworks with the aim of contributing to the achievement of sustainable development. He has to take into account the environmental, economic and social objectives that make up sustainable development. He must, in particular, have regard to the desirability of mitigating and adapting to climate change [26],[115]. The Court dismisses FoEs argument that the Secretary of State breached this duty on the ground that he failed to have proper regard to the Paris Agreement when designating the ANPS. The evidence shows that the Secretary of State took the Paris Agreement into account and, to the extent that its obligations were already covered by the measures in the CCA 2008, ensured that these were incorporated into the ANPS framework [123] [125]. Insofar as the Paris Agreement might in future require steps going beyond the current measures in the CCA 2008, the Secretary of State took it into account but decided that it was not necessary to give it further weight in the ANPS [126],[129]. The weight to be given to a particular consideration is a matter which falls within the discretion of the decision maker, in this case the Secretary of State. His exercise of discretion is lawful unless the decision made is so unreasonable that no reasonable decision maker would have made it [121]. That could not be said to be the case here [128]. The ANPS was carefully structured to ensure that when HAL applied for development consent to construct the runway, it would have to show at that stage that the development would be compatible with the up to date requirements under the Paris Agreement and the CCA 2008 measures as revised to take account of those requirements [87] [89], [123] [124]. Post 2050 and non CO emissions The Court dismisses FoEs argument that the Secretary of State separately breached his section 10 duty by failing to have regard to, firstly, the effect of greenhouse gas emissions created by the NWR scheme after 2050 and, secondly, the effect of non CO emissions [151],[156],[166]. The UKs policy in respect of the Paris Agreements global goals, including the post 2050 goal for greenhouse gas emissions to reach net zero, was in the course of development in June 2018 [154]. The Secretary of State did not act irrationally in deciding not to assess post 2050 emissions by reference to future policies which had yet to be formulated [155]. The Secretary of States department was also still considering how to address the effect of non CO emissions in June 2018 [166]. The Court further holds that future applications for development consent regarding the NWR scheme will be assessed against the emissions targets and environmental policies in force at that later date rather than those set out in the ANPS [157], [166]. Environmental report Section 5(3) of the PA 2008 requires the Secretary of State to produce an appraisal of sustainability in respect of frameworks such as the ANPS [28]. This is also required by EU law. Council Directive 2001/42/EC of 27 June 2001 (the SEA Directive) as transposed into domestic law by the Environmental Assessment of Plans and Programmes Regulations 2004 (SI 2004/1633), requires the Secretary of State to produce an environmental report in respect of major plans and proposals such as the ANPS [28]. The report must include information about relevant environmental protection objectives established at the international, EU or domestic level and the way that they have been taken into account during the preparation of the plan as may reasonably be required (Article 5 and Annex I to the SEA Directive) [57],[58]. The appraisal of sustainability accompanying the ANPS was intended to meet both the domestic and EU requirements for an appraisal of sustainability and environmental report respectively. The Court dismisses the respondents complaint that the appraisal of sustainability accompanying the ANPS was defective because it did not refer to the Paris Agreement [139]. Emphasising that the purpose of these reports is to provide the basis for informed public consultation [137], it holds that an unduly legalistic approach should not be taken when assessing their adequacy [143]. Whether a report provides a sound and sufficient basis for public consultation is a matter that falls within the Secretary of States discretion and the exercise of this discretion will only be found unlawful if it is one that no reasonable decision maker would have made [144]. Were this discretion removed, public authorities might adopt an excessively defensive and counterproductive approach by including so much detail that the public would be unable to comment effectively, contrary to the object of the SEA Directive [146]. In this instance, the targets set out in the CCA 2008, which were referred to in the appraisal of sustainability, took the UKs obligations under the Paris Agreement sufficiently into account [149]. The Court therefore upholds this ground of appeal as well [150].

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This appeal is about the distribution of European Structural Funds among the regions of the United Kingdom. It arises out of the complaint of a number of local authorities in Merseyside and South Yorkshire about the way in which it is proposed to distribute funds allocated to the United Kingdom for the years 2014 to 2020. The appellants say that they should receive more and other regions correspondingly less. Article 174 of the Treaty on the Functioning of the European Union requires the European Union to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Article 175 requires Member States to conduct their economic policy in such a way as to further this objective and the Union to support it by distributions from the European Structural and Investment Funds (or ESI Funds). These funds are the European Regional Development Fund, the European Social Fund, the Cohesion Fund, the European Agricultural Fund for Rural Development and the European Maritime and Fisheries Fund. For present purposes the most significant of them are the Social Fund and the Regional Development Fund. The Social Fund was established under article 162 of the Treaty, whose terms identify its purpose: In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living, a European Social Fund is hereby established in accordance with the provisions set out below; it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining. Article 176 established the Regional Development Fund. This fund, which is much the largest of the Structural Funds, is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions. The distribution of money from the EU Structural Funds is a shared responsibility of the Commission and the authorities of the Member States. The Commission is solely responsible for the allocation of funds to each Member State. The money is then used to co finance programmes, the Union contribution currently varying between 50% and 85% and the rest being met from national budgets. The expenditure of sums allocated by the Commission within a Member State is jointly determined by the Commission and the Member State. In the United Kingdom this is the responsibility of the Secretary of State for Business, Innovation and Skills. Regulation (EU) 1303/2013 Funds are allocated from the EU budget to programmes co financed by the European Structural Funds for successive seven year funding periods. The transition to a new funding period will commonly involve a measure of disruption. Funding budgets rise and fall. Strategic priorities both at Union and at national level change. The number and definition of the various categories of region entitled to funding support also change. Statistical tests for funding support, which commonly depend on the relationship between indices of regional development and the corresponding EU averages, may be significantly affected by the accession of new Member States. There may or may not be transitional provisions to ease the passage from one funding period to the next. The allocation of funds for programmes co financed by the European Structural Funds for 2014 2020 is governed by Regulation (EU) 1303/2013, which I shall call the 2013 Regulation. The legal base of the 2013 Regulation is article 177 of the Treaty on the Functioning of the European Union, which requires the European Parliament and the Council to make regulations to define the tasks, priority objectives and the organisation of the Structural Funds. So far as the current period is concerned, these objectives are summarised in the recitals to the 2013 Regulation. The overall objective is succinctly expressed in Recital (3). It is to provide a framework within which the Union and Member States should implement the delivery of smart, sustainable and inclusive growth, while promoting harmonious development of the Union and reducing regional disparities. This recital reflects one of the main features of the scheme, which is that it has been designed on the footing that there is a close interaction between the reduction of regional imbalances and the promotion of growth generally. This is reflected in the drafting of the 2013 Regulation, which is directed not just to the reduction of regional disparities but to economic development in its broadest sense. Under article 89(1) of the 2013 Regulation, the Structural Funds are required to contribute to two missions. One is the actions of the Union leading to strengthening of its economic, social and territorial cohesion in the broad sense envisaged in article 174 of the Treaty. The other is the delivery of the Union strategy for smart, sustainable and inclusive growth. Both missions are to be fulfilled by pursuing two goals identified in article 89(2), namely investment for growth and jobs in Member States and regions, and European territorial co operation. Of the two goals, the first is much the most important. Article 91 provides for an overall budget of (in round figures) EUR 322 billion, representing the global resources allocated for the years 2014 2020 to the Social Fund and the Regional Development Fund (together with the Cohesion Fund from which the United Kingdom does not benefit). Under article 92, 96.33% of this global amount is allocated to the Investment for growth and jobs goal and of this, specified proportions are allocated to three categories of region: less developed, transition and more developed. The regions in question are standard geographical units used for statistical purposes by the Commission and known as NUTS2 regions (Nomenclature of Territorial Units for Statistics, Level 2). The categorisation of regions depends on the ratio of their average GDP per capita to that of the Union as a whole: see article 90 of the 2013 Regulation. Less developed regions have a GDP per capita below 75% of the EU average; transition regions have a GDP per capita between 75% and 90% of the EU average; and more developed regions have a GDP per capita over 90% of the EU average. To calculate a Member States allocation from the Structural Funds, the Commission notionally allocates an annual amount of funding to each region within that state in accordance with a methodology prescribed for each of the three categories of region by Annex VII of the 2013 Regulation. In each category, the calculation is based mainly on the regions GDP per capita relative to the EU average. The Commission uses the resulting figures to calculate an aggregate amount for each of the three categories of region in that Member State. The sum of the three categories is then allocated to the Member State, plus a sum from the Cohesion Fund in the case of those Member States (not including the United Kingdom) which are supported by that fund. In contrast to the allocation of Structural Funds among Member States, which is prescribed by the 2013 Regulation in detail, there is no formula for the allocation of funds among regions within Member States. Instead, what is prescribed is a detailed administrative procedure for arriving at the internal regional allocations under a scheme of shared management involving the Commission, the Member States, and local entities. The initiative, or right of proposal, belongs to the Member State. Article 4.4 provides: Member States, at the appropriate territorial level, in accordance with their institutional, legal and financial framework, and the bodies designated by them for that purpose shall be responsible for preparing and implementing programmes and carrying out their tasks, in partnership with the relevant partners referred to in Article 5, in compliance with this Regulation and the Fund specific rules. The critical instrument is the Partnership Agreement, which determines the allocation of resources between regions and programmes to be co financed. It is defined by article 2.20 as a document prepared by a Member State with the involvement of partners in line with the multi level governance approach, which sets out that Member State's strategy, priorities and arrangements for using the ESI Funds in an effective and efficient way so as to pursue the Union strategy for smart, sustainable and inclusive growth, and which is approved by the Commission following assessment and dialogue with the Member State concerned. The function of the Partnership Agreement is described by Recital (20). It is to translate the elements set out in the [Common Strategic Framework] into the national context and set out firm commitments to the achievement of Union objectives through the programming of the ESI Funds. The Partnership Agreement should set out arrangements to ensure alignment with the Union strategy for smart, sustainable and inclusive growth as well as with the Fund specific missions pursuant to their Treaty based objectives, arrangements to ensure effective and efficient implementation of the ESI Funds and arrangements for the partnership principle and an integrated approach to territorial development. A distinction should be made between the essential elements of the Partnership Agreement which are subject to a Commission decision and other elements which are not subject to the Commission decision and can be amended by the Member State. The preparation of the Partnership Agreement is governed by article 14. The agreement shall cover all support from the ESI funds in the Member State concerned. It is to be prepared by Member States in dialogue with the Commission and in accordance with their institutional and legal framework, and then submitted to the Commission in draft by 22 April 2014. The Commissions functions in relation to the draft are to be found in article 16. The Commission is required to assess the consistency of the Partnership Agreement with this Regulation and with other Union instruments, and to make observations within three months of submission. The Member State is required to provide any additional information required of it and to make such revisions as are required in the light of the Commissions observations. Finally, the Commission must within four months of submission adopt a decision by means of implementing acts, approving all the elements of the Partnership Agreement which are required by the 2013 Regulation to be included. A similar process governs the Commissions approval of any amendments that may subsequently be proposed by a Member State. In the absence of specified criteria for the internal allocation of strategic funding, it is clear that the role of the Commission, as a party to the dialogue leading to the submission of the draft Partnership Agreement and the body charged with commenting on and approving it, is not simply to rubber stamp the proposals of Member States. It calls for a scrutiny of the proposals which is at once expert and exacting. It constitutes the main machinery of compliance envisaged by the legislator. It is an important feature of the 2013 Regulation that the criteria to be applied by both the Commission and the Member States in finalising the Partnership Agreement are not based on the amounts calculated by the Commission for each region when arriving at their national allocations. Indeed, these amounts are not even published, although they can be estimated from the methodology described in Annex VII of the 2013 Regulation. Nor are allocations within a Member State based, as the Commissions calculations are, on GDP per capita or other measures of deprivation. Instead, the proposals in the Partnership Agreement are governed by broadly based criteria that are purely qualitative. Recital (21) declares that Member States should concentrate support to ensure a significant contribution to the achievement of Union objectives in line with their specific national and regional development needs. The Union objectives are identified by article 9. The overall objective is to support the Union strategy for smart, sustainable and inclusive growth. This is defined by article 2.1 as meaning the targets and shared objectives guiding the action of Member States and the Union identified in three documents adopted by the European Council. The first is the Strategy for Jobs and Growth at Annex I of the Conclusions of the European Council of 17 June 2010. This identifies a number of Headline Targets, which can be summarised as an increase in the rate of employment, an improvement in the conditions for research and development, a reduction in greenhouse gas emissions, the improvement of educational levels and the promotion of social inclusion. The second is the Council Recommendation of 13 July 2010 on guidelines for the economic policies of Member States. These deal with the quality and sustainability of public finances, macroeconomic imbalances, research and development, resource efficiency and the reduction of greenhouse gas emissions, and the business and consumer environment. The third document is Council Decision 2010/707/EU on guidelines for the employment policies of Member States. These deal with labour market participation, skills, education and social inclusion. The thematic objectives mentioned in article 9 are set out in the article itself, which provides as follows: Thematic objectives In order to contribute to the Union strategy for smart, sustainable and inclusive growth as well as the Fund specific missions pursuant to their Treaty based objectives, including economic, social and territorial cohesion, each ESI Fund shall support the following thematic objectives: (1) strengthening research, technological development and innovation; (2) enhancing access to, and use and quality of, ICT; (3) enhancing the competitiveness of SMEs, of the agricultural sector (for the EAFRD) and of the fishery and aquaculture sector (for the EMFF); (4) supporting the shift towards a low carbon economy in all sectors; (5) promoting climate change adaptation, risk prevention and management; (6) preserving and protecting the environment and promoting resource efficiency; (7) promoting sustainable transport and removing bottlenecks in key network infrastructures; (8) promoting sustainable and quality employment and supporting labour mobility; (9) promoting social inclusion, combating poverty and any discrimination; (10) investing in education, training and vocational training for skills and lifelong learning; (11) enhancing institutional capacity of public authorities and stakeholders and efficient public administration. Thematic objectives shall be translated into priorities that are specific to each of the ESI Funds and are set out in the Fund specific rules. The thematic objectives are complemented by strategic guiding principles contained in a Common Strategic Framework at Annex I, which provide guidance as to how they are to be achieved, and by certain conditions (ex ante conditionalities) to be satisfied by Member States in relation to each thematic objective, which are identified in articles 18 and 19 and Annex XI. It will be apparent that, as foreshadowed by Recital (3), not all of the thematic objectives are directly concerned with reducing regional disparities. A few of these criteria are directed to traditional indices of deprivation such as employment and skill levels. Most are directed to specific developmental needs such as technical research capacity, training, information technology, business start ups or transport infrastructure, the need for which will vary even among regions with comparable levels of poverty or deprivation. Some are directed to more general policy objectives with no necessary connection to either deprivation or developmental needs, such as climate change adaptation. Articles 14 and 15, which lay down the required contents of the Partnership Agreement, closely reflect the objectives identified in article 9 and its incorporated instruments. The treatment of the United Kingdom NUTS2 regions There are 37 NUTS2 regions in the United Kingdom. Thirty are in England, four in Scotland, two in Wales and one in Northern Ireland, which constitutes a region in itself. In order to understand the way that Merseyside and South Yorkshire have been treated in the current Partnership Agreement, it is necessary to refer to the way that they had been treated in the two previous periods, 2000 2006 and 2007 2013. In 2000 2006, there were three categories of region called Objective 1, Objective 2 and Objective 3 regions. Objective 1 corresponded to the current less developed category, comprising regions with a GDP per capita less than 75% of the EU average. Regions in this category received the most generous funding. Merseyside and South Yorkshire were both Objective 1 regions in 2000 2006. The allocations for the next period, 2007 2013, were fixed shortly after the enlargement of the European Union by the admission of ten new members, mostly in Eastern Europe. The new members had lower levels of GDP per capita, which depressed the EU average and meant that a number of regions which had previously been in the bottom category of development and received the most generous treatment were now in a higher category. The Regulation for 2007 2013 ((EC) 1083/2006), which I shall call the 2006 Regulation, provided for two main categories of region: convergence regions, which broadly corresponded to the current less developed regions with a GDP per capita less than 75% of the EU average, and competitiveness regions which were above the 75% threshold and broadly corresponded to the current transition and more developed categories. Article 8 of the 2006 Regulation carved out of the competitiveness category two intermediate categories of region which had previously had a GDP per capita below 75% and would have been particularly badly affected by the move into a higher category. These came to be known as phasing in regions and phasing out regions, although the terms themselves are not used in the 2013 Regulation. Phasing out regions were regions which would have been convergence regions in 2007 2013 (the least developed category) but for the expansion of the EU, but moved above the 75% threshold because of the statistical impact of enlargement: see article 8.1. Phasing in regions were regions which had moved from less than 75% to more than 75% of the EU average GDP per capita and would have done so even without enlargement. That is their development status had improved. To ease their passage into the competitiveness category, phasing in and phasing out regions were both eligible for additional financial support on what was described as a transitional and specific basis, over and above the support that they would have received as competitiveness regions. In the United Kingdom, the only phasing in regions in 2007 2013 were Merseyside and South Yorkshire. They were entitled under Annex II, para 6(b) of the 2006 Regulation to an allocation of 75% of the 2006 level in 2007, tapering down to the national average level for competitiveness regions by 2011. The only phasing out region was Highlands & Islands. It was entitled under Annex II, para. 6(a) to an allocation of 80% of the 2006 level in 2007, tapering down to the national average level of funding support for competitiveness regions in 2013. The new categorisation for 2014 2020 had three categories, as we have seen. In effect, the old competitiveness category for regions with a GDP per capita over 75% of the EU average was divided into two new categories, transition and more developed. According to the Secretary of States evidence, the transition category was devised against the background of tight budgetary constraints to provide an increased level of funding notwithstanding the reduction of the overall budget for the Structural Funds. But in the course of negotiations in the European Council, the budget for transition regions originally proposed by the Commission was cut, thus reducing the value of the new category to those whom it was intended to benefit. In the current categorisation, the United Kingdom has two less developed regions, West Wales and Cornwall. There are 11 transition regions: Northern Ireland; Highlands & Islands in Scotland; and nine English regions including Merseyside and South Yorkshire. The other 24 regions are all classified as more developed. The Commissions allocation to the United Kingdom for 2014 2020 represented a 5% reduction at 2011 prices on the allocation for the previous funding period. The Secretary of States proposals for its allocation were formulated in two stages. The first covered the distribution of the United Kingdoms national allocation between its four component countries and the second covered allocations to regions within each country. At each stage the Secretary of States approach was to assess the allocation of each country or region by reference to its allocation for the previous funding period. This approach was adopted so as to limit as far as possible the scope for disruptive change in the new period. It was possible because the governments regional allocations for the previous period had been carried out using a basket of economic and social indicators, and the Secretary of State considered that there had been no significant change of the economic and social geography of the country in the interval. The Secretary of States first decision, which was announced on 26 March 2013, was that each of the four countries comprising the United Kingdom would have its overall allocation reduced by the same proportion, about 5%. The second decision, which was announced on 27 June 2013, distributed the allocations of each country among its NUTS2 regions. In the case of Northern Ireland, the allocation automatically followed from the first decision, because it was a region in itself. For present purposes, the critical points decided on the second occasion were that the nine English transition regions should receive an allocation per year for the current funding period representing an increase of 15.7% (at 2011 prices) on its allocation for 2013, the last year of the previous funding period, while Highlands & Islands (the only Scottish transition region) should receive an allocation per year of 95% of its average annual allocation over the whole of the previous funding period. The applicants have two fundamental complaints about this way of doing things. The first complaint is that although the allocation for Merseyside and South Yorkshire had risen by 15.7% from the base year of 2013, this represented a 61% reduction (at 2011 prices) on its allocation for the previous funding period as a whole. This was because in the previous funding period, although they would otherwise have ranked as competitiveness regions, they had received the special transitional and specific support provided for by article 8 of the 2006 Regulation. Under the terms of the 2006 Regulation it had tapered down to nil by 2011. In 2007 2013 as a whole, Merseyside and South Yorkshire had received substantially more than competitiveness regions because of the article 8 funding. But by taking 2013 as the base year for the uplift of 15.7%, the Secretary of State chose the year in which Merseyside and South Yorkshire had been entitled to no special transitional funding and had received no more than the national average for competitiveness regions. By comparison, the other English transition regions had received no special article 8 funding in the previous period and their allocations profile in that period had been flat in real terms. The second complaint is that Merseyside and South Yorkshire have done badly by comparison with Highlands & Islands and Northern Ireland. This, it is said, is because the first decision had protected the allocations to Scotland and Northern Ireland by guaranteeing them 95% of their allocations in the previous funding period. Highlands & Islands had then been allowed by the second decision to base the calculation of the 95% on its average annual allocation in the previous period, notwithstanding that, as a phasing out region in the previous period, part of its allocations in 2007 2013 had also represented transitional additional funding tapering down to zero over the period. In other words, Highlands & Islands was not limited to the relevant proportion of its last and lowest year in 2007 2013. The net result, the appellants say, was that their regions fared worse than other transition regions in spite of having higher levels of deprivation than most of them. What they want is a principle of allocation more closely related to levels of relative deprivation. Preliminary observations Three points should be made at the outset. The first is that the Secretary of States allocation is a discretionary decision of a kind which the courts have traditionally been particularly reluctant to disturb. There is no right answer prescribed by the EU Treaty or the 2013 Regulation to the question how EU Structural Funds should be distributed within a Member State. There is not even any clear principle on which this should be done. Instead, the Secretary of State was required to make a complex evaluation of a wide range of overlapping criteria, all of which involved difficult and sometimes technical judgments about matters of social and economic policy. Secondly, it was a judgment of a particularly delicate kind, involving the distribution of finite resources, including domestic taxpayers funds as well as EU funds, between the four countries and the distinctive regions of the United Kingdom. In such cases, the Secretary of State is in reality arbitrating between different public interests affecting different parts of our community. It is an exercise in which the legitimacy of the decision making process depends to a high degree on the fact that ministers are answerable politically to Parliament. As Lord Hoffmann observed in a lecture given in 2001, Separation of Powers, 7 JR 137 (2002)), at paras 19 20: there are certain areas in which, although the decision is formally justiciable because it involves the interpretation of statute or the common law, the outcome is likely to have an important impact upon public expenditure. The allocation of public expenditure whether we should spend more or less on defence, health, education, police and so forth, whether at a national or local level is very much a matter for democratic decision. Furthermore, a court deciding a case which will affect one form of public expenditure for example, impose a burden of expenditure upon education authorities has no way of being able to decide whether such expenditure should or should not have a prior claim over other forms of expenditure. It may consider that, viewed in isolation, it is fair and reasonable that children in schools should receive certain benefits or financial compensation for not having received other benefits. But because it can only view the matter in isolation, it has no way of knowing whether this means that other people dependent upon social security, police protection and so on will have to make sacrifices because there is less money for them. The only people who can make such decisions are the democratically elected bodies who are in charge of the budget as a whole. This means that even when a case appears to involve no more than the construction of a statute or interpretation of a common law rule, the courts are very circumspect about giving an answer which would materially affect the distribution of public expenditure. The third preliminary observation is that the disputed allocations are not a matter for the sole decision of the United Kingdom or the Secretary of State as its representative. Under the 2013 Regulation, the United Kingdom has the right of proposal, but its proposals must be embodied in a Partnership Agreement before they can be adopted. The Partnership Agreement is made with the Commission, acting as the relevant organ of the European Union. Once approved by the Commission it is implemented by a Commission decision. It then takes effect as an instrument of the Union. At the time when the present proceedings were brought, there was no Partnership Agreement in existence. There were only proposals which had been announced by the Secretary of State. At a number of stages (I shall return to this point) these had been prepared in consultation with the Commissions officials. Ultimately, they were embodied in a draft Partnership Agreement which was submitted by the Secretary of State to the Commission on 22 April 2014. It is a long, elaborate and highly technical document. We were referred to it in the form published on the United Kingdom governments website. The Commission was certainly aware of these proceedings and in general terms of the nature of the appellants complaints, not least because according to Mr Eyres evidence they lobbied the relevant commissioner about them. The Commission made a number of observations on the draft, which have not been disclosed because the Commission regards them as confidential. Finally the document was agreed by a Commission decision notified on 29 October 2014, shortly after this appeal was argued. I make these points not in order to suggest that the present issues are beyond the scope of judicial review in the English courts. The Secretary of States proposals are amenable to judicial review like any other decision of the executive. If his proposals were unlawful, he may be obliged to reconsider them and if necessary to propose an amendment. I am prepared to assume that the Commission would adopt the amendment, as it has indicated that it is in principle willing to do if it is consistent with the objectives of the Funds. However, the Commissions involvement has a broader significance. It is, as I have pointed out, the main mechanism of compliance envisaged in the 2013 Regulation. The Commission is an expert administrative body at arms length from the Secretary of State, with considerable experience of the economic and social issues involved. It is able to review the economic merits of the Secretary of States judgments and if necessary substitute its own evaluation in a way that is beyond the institutional competence of any court, let alone a national court. The Commission is evidently satisfied that the Partnership Agreement complies with the 2013 Regulation. That does not rule out the possibility that it may be equally satisfied with some alternative proposal. But a national court should be extremely cautious before accepting that a proposal is inconsistent with the 2013 Regulation which the Commission charged with applying it has found to be consistent with it. Grounds of review The appellants case is that taking the Secretary of States two decisions together, the allocation to Merseyside and South Yorkshire which resulted was unlawful. Mr Coppel QC, who appeared for them, submitted that the Secretary of State treated Merseyside and South Yorkshire differently from Northern Ireland and Highlands & Islands when they were for practical purposes in the same position, and in the same way as other English transition regions when they were in a materially different position. This, he said, was contrary to the general principle of equality in EU law as well as ordinary principles of English public law which require a decision maker to have regard only to legally relevant considerations. He submits that to make his case good, it is enough to demonstrate that Merseyside and South Yorkshire were comparable to Highlands & Islands or different from the other English transition regions. The Secretary of State had no discretion or margin of judgment on that question. His discretion or margin of judgment related only to the question whether the discrimination was objectively justifiable, and according to Mr Coppel QC the Secretary of State has never set out to satisfy that test. Before turning to the Secretary of States decisions, I should make it clear that I do not accept the rigid scheme of analysis by which Mr Coppel QC seeks to confine us. The general principle of equality in EU law is that comparable situations are not to be treated differently or different situations comparably without objective justification. This is not a principle special to the jurisprudence of the European Union. It is fundamental to any rational system of law, and has been part of English public law since at least the end of the nineteenth century. As Lord Hoffmann pointed out when delivering the advice of the Privy Council in Matadeen v Pointu [1999] 1 AC 98, para 109: Is it of the essence of democracy that there should be a general justiciable principle of equality? Their Lordships do not doubt that such a principle is one of the building blocks of democracy and necessarily permeates any democratic constitution. Indeed, their Lordships would go further and say that treating like cases alike and unlike cases differently is a general axiom of rational behaviour. It is, for example, frequently invoked by the courts in proceedings for judicial review as a ground for holding some administrative act to have been irrational. Unequal treatment, Baroness Hale explained in Ghaidan v Godin Mendoza [2004] 2 AC 557, para 132, is the reverse of the rational behaviour we now expect of government and the state. Power must not be exercised arbitrarily. If distinctions are to be drawn, particularly upon a group basis, it is an important discipline to look for a rational basis for those distinctions. The two stage process by which courts in discrimination cases distinguish between comparability and objective justification is a useful tool of analysis and probably indispensable in dealing with allegations of discrimination on ground of gender, race or other personal characteristics. More generally, a rigid distinction between the two stages was implicit in the four stage test proposed by Brooke LJ in Wandsworth London Borough Council v Michalak [2003] 1 WLR 617, para 20, for cases arising under article 14 of the European Convention on Human Rights. But a tool of analysis should not be transformed into a rule of law. As Lord Hoffmann pointed out in R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, paras 29 31, the question whether two situations are comparable will often overlap with the question whether the distinction is objectively justifiable: If an analogous situation means that the two cases are not relevantly different (no two cases will ever be exactly the same) then a relevant difference may be the justification for the difference in treatment [T]his division of the reasoning into two stages is artificial. People don't think that way. There is a single question: is there enough of a relevant difference between X and Y to justify different treatment? [T]he invocation of the rational and fair minded person (who is, of course, the judge) suggests that the decision as to whether the differences are sufficient to justify a difference in treatment will always be a matter for the judge. Baroness Hale, making a very similar point in Ghaidan v Godin Mendoza at para 134, deprecated a formulaic approach for precisely this reason. The problem about Mr Coppel QCs scheme of analysis as applied to the allocation within a Member State of EU Structural Funds is that there is no clear measure of comparability, whether between different regions or between different ways of treating them. The appellants say that Merseyside, South Yorkshire, Highlands & Islands and Northern Ireland are comparable by virtue of being transition regions under the classification, and that they have been treated differently by virtue of receiving an allocation for 2014 2020 which represents a smaller proportion of what they received in 2007 2013 than the rest. But neither proposition is coherent in the context of this particular scheme. The four regions are transition regions only because they all have an average GDP per capita between 75% and 90% of the EU average. But that only means that they are all eligible to participate in the pool of money allocated by the Commission for United Kingdom transition regions. The mere classification by GDP per capita is consistent with significant differences in other respects which are relevant to the allocation of EU Structural Funding. The criterion for the allocation is not GDP per capita but contribution to the EUs policy objectives as set out in article 9 and its incorporated instruments. To paraphrase Lord Hoffmann, there is only one question: is there enough of a relevant difference between Merseyside and South Yorkshire on the one hand and the remaining transition regions on the other to justify any difference in their treatment? The answer to that question may ultimately be for the court, but the nature of the question requires a particularly wide margin of judgment to be allowed to the decision maker. That is partly because the questions posed by the 2013 Regulation, whether they come under the heading of comparability or justification, call for a complex policy judgment based on a broad range of economic and social factors which the court is not competent to carry out and could not legitimately carry out. And it is partly because the discretion allowed to Member States and the Commission by the 2013 Regulation is itself very wide, and the courts cannot confine it more narrowly. There are many solutions consistent with the Regulation, none of which is any more right than the next. It follows, in my opinion, that the appellants cannot succeed on this appeal simply by pointing to the classification of Merseyside and South Yorkshire as transition regions, and denouncing the outcome of the Secretary of States two decisions as more burdensome to them than to others in the same category. They must show that there was something unlawful about the process or reasoning by which that outcome was arrived at. Against that background, I turn to the Secretary of States two decisions. The first decision The first decision was to allocate to each of the four countries comprising the United Kingdom 95% of what they had received from the Structural Funds in the previous funding period (at 2011 prices). Instead of applying the 5% reduction in the United Kingdoms national allocation to the United Kingdom as a whole, he applied it separately to each component country. The Secretary of States reasons for this decision are explained in a witness statement of Dr Susan Baxter, a senior official in his department. It is clear from her evidence that Ministers chief concern was that the radical reclassification of European regions in the current Regulation should not lead to an excessively abrupt change in the funding allocated to the United Kingdoms regions. Although the Commission had not disclosed how much it had allowed for each region when calculating its allocations to Member States, the department was able to estimate the Commissions regional figures from the formula in the 2013 Regulation. This revealed that if the Secretary of State were to allocate funds to regions according to the same GDP based methodology as the Commission had used to allocate funds to the United Kingdom, England would have received an increase of 7% on its allocation for 2007 2013 (at 2011 prices), with the largest increases going to the south of England. The three other countries comprising the United Kingdom would have received substantially less than their allocation for 2007 2013: 22% in the case of Wales, 32% in the case of Scotland and 43% in the case of Northern Ireland. The Secretary of State considered allocating funds within the United Kingdom on this basis, but rejected the idea in order to protect the devolved administrations from sudden and significant cutbacks to funding. His reasons were described by Dr Baxter as follows: 41. Ministers were aware that the decision to equalise the cuts meant that there was proportionately less for England than the EUs notional calculation methodology would have rendered. Accordingly Ministers were fully aware that both (a) that this approach to the allocation of funds (rather than allocation on the basis of the EU Commissions approach) would reduce the amount of money available for regions in England; and (b) that it would limit the funding available for distribution for the Transition regions in England and the allocation for Northern Ireland and Highlands & Islands regions would come out of the transition budget. However, this was seen in the context of an overall cut in the funding for Northern Ireland and Scotland. 42. There were a number of reasons for applying the cut equally as between the nations, including: Transparency a decision that was easy for non experts to understand; Simplicity a single number applied to each Devolved Administration; Consistency the same approach was taken to all four Devolved Administrations; and Balanced it took account of the status of the Devolved Administrations under the UK's constitutional settlement. 43. The Government was not, at this stage, looking at the detailed effects at NUTS 2 level. Ministers were aware that increasing the funding for the Devolved Administrations would mean less for certain regions in England, as allocations had be [sic] made from a set budget category for each category of region. However, it was decided that this would be dealt with at the next stage of the allocation process and that only the big picture within the UK would be looked at when trying to distribute the cut fairly as between the UK nations. In these passages, references to the English regions getting less mean less than they would have got if the Secretary of State had replicated the notional regional allocations which it was estimated that the Commission had made. In my opinion the Secretary of State was entitled to adopt this approach. The EU Structural Funds are primarily concerned with economic development, which is a devolved responsibility. It is true that the relevant entity in international law is the United Kingdom, and that, as regards the institutions of the European Union, the United Kingdom is the Member State. England and the devolved administrations of Scotland, Wales and Northern Ireland have no formal status in the EU legal order. But it does not follow that their status within the United Kingdom is irrelevant. EU law is not insensitive to the relationship between Member States and their internal federal or regional units of government and will not necessarily treat regional variations arising from the distribution of constitutional responsibility within a Member State as discriminatory. In (Case C 428/07) R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I 6355, the Court of Justice was concerned with the Memorandum of Understanding between the United Kingdom government and the Scottish Government which assigned to the devolved administration of Scotland responsibility for the implementation of Community law concerning the common agricultural policy. The relevant EC Regulation empowered Member States to set minimum standards of compliance at national or regional level. Mr Horvath complained that regulations requiring the maintenance by landowners of public rights of way over agricultural land infringed the Community law principle of equality because equivalent obligations had not been imposed by the devolved administration in Scotland. The Advocate General, in her Opinion, had advised that differences in the way that Community obligations were implemented by different devolved administrations could not be regarded as discriminatory because they cannot be attributed to the conduct of the same public authority (para 112). The Grand Chamber reached the same conclusion, but on a broader basis, namely that such differences were inherent in the distribution of responsibility for implementing Community law among distinct territorial units of government within a Member State. They were therefore no more discriminatory than differences in the way that EU law was implemented by different Member States: 48. As a preliminary point, it should be pointed out that, in conferring on Member States the responsibility of defining minimum GAEC requirements, the Community legislature gives them the possibility of taking into account the regional differences which exist on their territory. 49. It should be recalled that, when provisions of the Treaty or of regulations confer power or impose obligations upon the States for the purposes of the implementation of Community law, the question of how the exercise of such powers and the fulfilment of such obligations may be entrusted by Member States to specific national bodies is solely a matter for the constitutional system of each State (Joined Cases 51/71 to 54/71 International Fruit Co and Others [1971] ECR 1107, para 4). 50. Thus, it is settled case law that each Member State is free to allocate powers internally and to implement Community acts which are not directly applicable by means of measures adopted by regional or local authorities, provided that that allocation of powers enables the Community legal measures in question to be implemented correctly (Case C 156/91 Hansa Fleisch Ernst Mundt [1992] ECR I 5567, para 23). 51. The Court has, in addition, held that, where a regulation empowers a Member State to take implementing measures, the detailed rules for the exercise of that power are governed by the public law of the Member State in question (see (Case 230/78) Eridania Zuccherifici nazionali and Societ italiana per lindustria degli zuccheri [1979] ECR 2749, para 34, and Case C 313/99 Mulligan and Others [2002] ECR I 5719, para 48). 54. It must nevertheless be examined whether, in those circumstances, the mere fact that the rules establishing GAEC laid down by the regional authorities of the same Member State differ constitutes discrimination contrary to Community law. 57. Where, as in the main proceedings, it is the devolved administrations of a Member State which have the power to define the GAEC minimum requirements within the meaning of article 5 of and Annex IV to Regulation No 1782/2003, divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination. Those measures must, as is clear from para 50 of this judgment, be compatible with the obligations on the Member State in question which stem from that regulation. 58. In the light of the foregoing, the answer to the second question is that, where the constitutional system of a Member State provides that devolved administrations are to have legislative competence, the mere adoption by those administrations of different GAEC standards under article 5 of and Annex IV to Regulation No 1782/2003 does not constitute discrimination contrary to Community law. The decision is significant not just for the answer that was given to the particular question posed by the High Court, but because it necessarily followed from the reasoning that the mere fact that the United Kingdom was a unitary state in international law did not mean that regional differences in the way that Community law was applied called for objective justification. The present case differs from Horvath. The sole decision maker was the Secretary of State. It was not the devolved administrations. However, this seems to me to be a largely formal distinction which avoids the substance of the matter. The 2013 Regulation requires a Partnership Agreement to be agreed between the Commission and the United Kingdom. Proposals for inclusion in that agreement are therefore necessarily prepared for submission to the Commission on behalf of the United Kingdom. But internally, the Secretary of State was entitled to give effect to the wishes of the devolved administrations in areas such as these where they would be constitutionally responsible for implementation, notwithstanding that that might introduce differences between the different countries of the United Kingdom. Article 5(1) of the 2013 Regulation provides that a Member State must in accordance with its institutional and legal framework organise a partnership with the competent regional and local authorities. Article 5(2) provides: In accordance with the multi level governance approach, the partners referred to in para 1 shall be involved by Member States in the preparation of Partnership Agreements and progress reports and throughout the preparation and implementation of programmes What the Secretary of State did when making his first decision was to treat the four countries comprising the United Kingdom as if they were separate entities for the purpose of implementation of the 2013 Regulation, and to divide the United Kingdoms allocation from the Structural Funds between them on a consistent basis, pro rata to their allocations in the previous funding period. In my opinion, he was entitled to have regard in this way to the constitutional settlement of the United Kingdom, provided (i) that the basis on which he did so did not unjustifiably discriminate between the four countries, and (ii) that the financial implications for the individual regions of the United Kingdom were consistent with the 2013 Regulation. The Secretary of States first decision was in my opinion within his margin of judgment in both of these respects. There is no material before us to suggest that the relative positions of England, Wales, Scotland and Northern Ireland had changed so radically since the last funding period that a distribution between them proportionate to their previous allocations could be regarded as in itself discriminatory. The argument of Merseyside and South Yorkshire is directed entirely to the financial impact of the decision on individual regions within the four countries, in other words to the second of the two provisos which I have mentioned. But the first decision did not mean that English transition regions such as Merseyside and South Yorkshire would necessarily fare worse than Highlands & Islands or Northern Ireland. The appellants do not suggest that the first decision necessarily meant that Highlands & Islands and Northern Ireland would get a larger proportion of the United Kingdoms transition region pot than they would have done if the 5% reduction, instead of being applied to the four countries separately, had been applied to the United Kingdom as a whole. That would depend on how the allocations to individual regions were dealt with in the second decision, both in Scotland and in England. Indeed, Mr Eyres, whose witness statements constitute the appellants evidence, says that Merseyside and South Yorkshire assumed in the light of the first decision that they would receive a similar degree of protection to that received by the devolved regions when it came to allocating funds among the regions of England at the second stage. The appellants evidence is not that the first decision reduced the total amount available for allocation to English transition regions below what it would have been if the 5% reduction had been applied across the United Kingdom as a single entity. It is that it reduced the total amount below what it would have been if the Secretary of State had simply allocated funds between the regions in accordance with the notional regional allocations made by the Commission when calculating the allocation of the United Kingdom. But that could not possibly make the first decision unlawful. This is because under the 2013 Regulation the calculation of national allocations by the Commission depended on a precise formula based primarily on regional GDP per capita, whereas the allocation of the funds within a Member State are based on criteria that are qualitative and altogether wider. Developmental needs in the respects covered by the thematic objectives cannot be measured simply by reference to general measures of poverty such as GDP per capita. The Secretary of State cannot therefore have been obliged to replicate the methodology of the Commission or to employ some other GDP based formula in his decision about how to allocate the funds among the regions of the United Kingdom, provided that he respected the thematic objectives and that his proposals were agreed by the Commission in the Partnership Agreement. It is not suggested that he failed to respect the thematic objectives, and the Partnership Agreement has been agreed by the Commission. The second decision The appellants, as I have pointed out, recognised that the first decision did not prevent the Secretary of State from protecting them against a sudden and significant cutback. Their real target is the Secretary of States second decision in which he failed to do so. Their complaint is that it did not protect them against a sudden and significant cutback by comparison with the 2007 2013 allocations, because the selection of 2013 as the base year meant that their uplift was based on the year in which their funding in the previous funding period had been lowest. This was because under article 8.1 and Annex II, para 6(b), their funding had been tapered down by 2013 to the national average level for competitiveness regions. Moreover, the national average for competitiveness regions was exactly that, an average. It did not take account of the special needs of those competitiveness regions in the north and midlands of England which were below the average and had relatively low GDP per capita and high levels of deprivation. The appellants argue that in order to avoid unjustifiable discrimination the Secretary of State should, when making his second decision, have based the uplift of the English transition regions for 2014 2020 on their average allocations over the whole of the previous funding period. As it was, his decision to use 2013 as the base year discriminated against them, (i) by comparison with other English transition regions, which had had a flat annual allocations profile in the previous period, and (ii) by comparison with Highlands & Islands whose annual allocations for the new period were calculated by reference to the average of its annual allocations in 2007 2013 instead of just 2013. 39. The Secretary of State did not overlook these factors. He considered that Merseyside and South Yorkshire were not comparable to other English transition regions or to Highlands & Islands. I shall deal first with the question of comparability to the other English transition regions. In her witness statement (at paras 47 55), Dr Baxter says that ministers considered four main options: Option A was to replicate the notional regional allocations made by the Commission in arriving at the national allocation of the United Kingdom. This would have resulted in allocations which were proportionate to regional GDP per capita, but would have resulted in a significant shift of funding from the north of England to the south. They considered that there had been no fundamental change in the economic landscape in the last few years such as to justify a shift of allocations of this kind, which would have reduced the funding available for the poorest parts of England. Officials consulted the Commission. The Commission said that it would be uncomfortable about the use of their methodology, which had been designed for the calculation of national, not regional allocations. Option B was to apply a standard uplift to each regions allocations for 2013. Option C was the same as Option B, but with the allocations of Merseyside and South Yorkshire being based on their average allocations over the whole of the period 2007 2013. (This was already the case for the other English transition regions, whose allocations profile had been flat over the previous funding period). Option C would have resulted in Merseyside and South Yorkshire receiving a higher allocation than under Option B, but it would have involved a reduction of 22% in the allocations of all English transition regions, including Merseyside and South Yorkshire, compared to 2007 2013. This was because the high cost of funding Merseyside and South Yorkshire on the basis of their allocations over the whole of the previous funding period would have had to come out of the pot available to transition regions generally. It was considered that for this reason Option C would be inconsistent with the thinking which lay behind the creation of the transition category for 2014 2020, and would have caused difficulty in agreeing the allocations with the Commission. This was because the transition category had been specifically introduced to provide enhanced levels of funding for regions at an intermediate stage of development notwithstanding the reduction of the total budget. Option D was a hybrid scheme using the Commissions notional allocations for all transition regions combined with what is described as a UK specific formula for more developed regions. For transition regions this would have been the same as Option A. Ministers also considered a fifth method, which involved using a basket of economic indicators together with a suitable safety net. They thought that there was a strong case for this, but rejected it because, like Option A, it would have produced a large drop in funding for the midlands and north of England, in favour of the south. 40. As Dr Baxter points out, no solution was wholly satisfactory from every point of view: 48. Given the funding reductions to the overall programme, and the limitations imposed by the EU Regulations, there was no outcome possible which would not have resulted in funding reductions to some regions. The advantages and disadvantages of a range of options had to be considered and Ministers had to take a range of considerations into account in determining their preferred solution. Ministers, she notes, had to make difficult decisions: 87. Officials presented them with a range of options after undertaking very detailed and comprehensive analysis and Ministers chose those options which they felt in sum were fairest to all. The available budget was set by the EU and so it was always unlikely that a single option would satisfy all regions. Giving Merseyside and South Yorkshire a larger allocation would have meant reducing the allocations to the other UK Transition regions. Decisions over the Transition allocations were particularly problematic as the negotiations in the European Council had resulted in significant cuts to the budget for Transition regions compared to the European Commission proposal. This level of reduced funding at EU meant that any decision was going to come as a disappointment for some. 41. The Secretary of State chose Option B, fixing the uplift at 15.7%. His reasons are described as follows by Dr Baxter: 54. A key aspect of the decision, of course, was the status of Merseyside and South Yorkshire as phasing in regions for the 2007 2013 period, thus receiving additional payments in 2007, 2008, 2009, 2010 on a specific and transitional basis, as explained above. Ministers decided to make the allocations using 2013 allocations as a baseline because such a baseline: maintained higher levels of funding in the North of England, where need is greatest; avoided large drops in funding levels as between 2013 and 2014 (even in relation to South Yorkshire and Merseyside); treated all English Transition regions in the same way, whilst taking account of the phased in status of South Yorkshire and Merseyside by basing allocations on the jumping off point from the 2007 2013 allocation; and treated all More Developed regions in the same way. 55. Had allocations been calculated based on a 2007 2013 average or overall quantum, then Ministers felt that Merseyside and South Yorkshire would have been unduly advantaged in relation to other English Transition areas, in so far as their boosted allocations in the period 2007 2010 were expressly intended to be transitional and specific rather than to be enshrined into future allocations. 42. In the light of this reasoning it is impossible to say that the Secretary of States decision was outside the broad range of decisions that he could lawfully make. Merseyside and South Yorkshire had already received additional funding over and above that available to other regions with a GDP per capita exceeding 75% of the EU average during the previous funding period. Article 8.2 and Annex II, para 6(b) of the 2006 Regulation had provided for the level of funding to taper down to the national average for competitiveness regions by 2011. Mr Eyres, the appellants witness, says that this had not been enough to lift Merseyside and South Yorkshire into the category of competitiveness regions (in the 2007 2013 categorisation) or the category of more developed regions (in the categorisation of 2014 2020). That is so, but it misses the point, which is that it was of the essence of the transitional and specific additional funding allowed by article 8 of the 2006 Regulation that it was temporary. Once it had expired, the 2006 Regulation 43. envisaged in terms that the regions which had benefitted should be funded only at the national average aid intensity level for competitiveness regions. In the new categorisation for 2014 2020, these regions would be assisted by being included in the intermediate category of transition regions created for regions with a GDP per capita between 75% and 90% of the EU average. However, the budget for transition regions was tight. If the Secretary of State had based the uplift in 2014 2020 on the average allocations for the whole of the previous period, the effect would have been to continue the impact of the transitional additional funding provided for the years 2007 2011 into 2014 2020. This represented a very significant difference between Merseyside and South Yorkshire on the one hand and the other English transition regions on the other. In practice it is difficult to see what else the Secretary of State could have done. Unlike pay discrimination cases, where it is possible to level up to match the highest paid, the distribution of EU Structural Funds within each category of regions is a zero sum game. One regions gain is anothers loss. Since the fund available for transition regions is ring fenced the additional cost of providing Merseyside and South Yorkshire with allocations based on the whole of the previous period would have had to come out of the allocations of the other English transition regions and would have left all of them with 22% less than they had had in 2007 2013 instead of 15.7% more. The Secretary of State was entitled to take the view that this would be contrary to the purpose for which this intermediate category had been created. I do not find it in the least surprising that the Secretary of State anticipated difficulty in getting the Commissions agreement to such a scheme, and I can see no basis on which his judgment of the Commissions likely reaction can be challenged. 44. Much of the evidence before the court is devoted to a technical and ultimately inconclusive dispute arising from Mr Eyres assertion that if, hypothetically, Merseyside and South Yorkshire had been competitiveness regions in 2007 2013 rather than phasing in regions, they would have received a higher allocation in 2013, and therefore a higher allocation in 2014 2020 as well. Dr Baxter challenges his methodology and produces alternative figures of her own, based on rerunning the original calculations made for 2007 2013 on Mr Eyres hypothesis. The value of this exercise is diminished by the fact that both witnesses agree that if Merseyside and South Yorkshire had actually been competitiveness regions in 2013, the methodology used to calculate allocations in 2014 2020 would in fact have been different. They disagree about what the differences would have been. It is neither necessary nor possible for a court of review to resolve this issue. It is not in fact true that Merseyside and South Yorkshire were at the bottom of the transition category. At 80.14% of the EU average GDP per capita, Merseyside was the third poorest of the nine English transition regions, according to the 45. 46. governments figures, while South Yorkshire at 84.46% was somewhere in the middle of the range. But it is unquestionably true that the result of the allocations process was to inflict a very large reduction on two of the poorer regions of the United Kingdom. However, the only way that that problem could have been addressed on a common basis for all transition regions would have been to use a formula based on GDP per capita, as the Commission had done when calculating national allocations, or else some other formula more closely related to measures of poverty and deprivation. It is impossible for this court to say that the Secretary of State was bound in law to adopt some such formula. In the first place, under the 2013 Regulation allocations within Member States are not based on GDP per capita and are only to a limited extent based on other measures of deprivation. Secondly, the evidence is that the Commission when approached discouraged the use of their own methodology as inappropriate to an internal allocation. And, third, concentration on GDP per capita would have produced an overall shift of funding towards the south which the Secretary of State was entitled to regard as even more anomalous. I turn to the argument that the appellants allocation was discriminatory by comparison with Highlands & Islands. It is correct that Highlands & Islands funding was reduced by 5% (at 2011 prices) by comparison with 2007 2013, as against a much larger reduction for Merseyside and South Yorkshire, even though as a phasing out region it had also received transitional additional funding on a tapered basis in the earlier period. Dr Baxter draws attention to three differences between former phasing in regions like Merseyside and South Yorkshire and a former phasing out region like Highlands & Islands. As a phasing out region, Highlands & Islands had previously been funded under the convergence objective in recognition of its greater developmental challenges. Its tapering profile had been more gradual in 2007 2013. And its co financing rate had been higher (75% against 50% for phasing in regions) so that allocations to it represented better value for money for UK taxpayers. I doubt whether the different tapering profile really differentiates Highlands & Islands from the two English phasing in regions. There may be more in the other two points. So far as the Secretary of State attached weight to these factors, it was very much a matter of judgment for him. In fact, however, the evidence suggests that the treatment of Highlands & Islands was not due to these factors. It was the combined result of the first decision, which treated Scotland as a separate territorial unit with its own 5% reduction, and of wishes of the Scottish Government, which naturally preferred to base Highlands & Islands allocations on the average of its annual allocations in the previous period than to limit it to 95% of its 2013 allocation and spend the rest on its more developed regions. So far as it arose from the treatment of Scotland as a separate territorial unit, I have already explained why I regard that treatment as defensible. So far as the decision about Highlands & Islands arose from the preferences of the Scottish Government, it seems to me to be the natural and legitimate result of the decentralisation of the United Kingdom under its current constitutional settlement. No doubt if the 5% reduction had been applied to the United Kingdom as a whole, Highlands & Islands would have got less than in the event they did, and the saving would have left a bit more in the pot for the nine English transition regions. But there is nothing in the evidence to suggest that the dilemmas affecting allocations to English transitional regions, which I have already discussed, would have been any less acute or that the outcome for Merseyside and South Yorkshire would have been significantly better. Proportionality 47. The appellants advance an alternative case based on proportionality, which I can deal with quite shortly, for I agree with the Court of Appeal that it adds nothing to the case based on alleged discrimination. The appellants say that the effect of the Secretary of States decision was to impose upon them a disproportionate burden. The problem about this submission is that it fails to answer the question: disproportionate to what? Proportionality is a test for assessing the lawfulness of a decision makers choice between some legal norm and a competing public interest. Baldly stated, the principle is that where the act of a public authority derogates from some legal standard in pursuit of a recognised but inconsistent public interest, the question arises whether the derogation is worth it. In this case the only legal standard by which the treatment of Merseyside and South Yorkshire can be regarded as disproportionately onerous to them is provided by the terms of the 2013 Regulation and the principle of equality. The two regions have no entitlement to support from the Structural Funds except what they can derive from these two sources. If the Secretary of States decisions are consistent with both, as I consider them to have been, their treatment cannot be regarded as disproportionate. Lord Mances judgment 48. I have naturally revisited my views in the light of the judgments of Lord Mance and Lord Carnwath. To some extent, the differences between us relate to the supposedly anomalous consequences of the first decision, in particular on the different treatment of Merseyside and South Yorkshire on the one hand and Highlands and Islands on the other. I do not feel that I can usefully add anything to what I have already said about the first decision, which I regard as justifiable. Two other differences do, however, call for further comment. The first concerns the purpose of the structural funds, which is central to the analysis of Lord Mance. The second is his analysis of the relationship between the allocations for 2014 2020 and those of the previous funding period. 49. We may all agree that the distribution within the United Kingdom of EU structural funds must be consistent with their purpose. Where I part company with Lord Mance is that he appears to me to take too narrow a view of the purposes of the funds and the means by which those purposes may legitimately be achieved. The Social Fund is not directly concerned with the reduction of regional imbalances, but with the promotion of employment and geographical and occupational mobility. The Regional Development Fund is concerned with the reduction of regional imbalances, but not only by the direct improvement of GDP per capita and other measures of deprivation. The purpose of both funds is to support the action of the Union in these areas. The action of the Union is guided by the targets and shared objectives referred to in the three Council policy documents of 2010 identified in article 2.1, and summed up generally in the concept of smart, sustainable and inclusive growth. This concept runs through the whole of the 2013 Regulation, and the thematic objectives in article 9 are mainly directed to promoting it. They involve a wide range of economic criteria, which will not directly diminish regional divergences, even if they can be expected to do so indirectly in the long term. Lord Mance and Lord Carnwath both consider that the allocations to Merseyside and South Yorkshire were not based on their actual needs. But that is a conclusion which they appear to have reached solely by reference to standard measures of deprivation such as GDP per capita. This assumes that there must necessarily be a close correlation between these measures of relative deprivation and the distribution of EU structural funds. But since the reduction of such differences is only one purpose of the structural funds, and even that purpose may be achieved indirectly by promoting growth through the thematic objectives, that assumption is on the face of it unjustified. 50. The second major difference arises out of Lord Mances rejection of the view of both the judge and the Court of Appeal about the justification for taking allocations for 2013 as the reference point for the uplift applied in 2014 2020. The same point appears to be implicit in the analysis of Lord Carnwath. In the absence of any complaint about the distribution of allocations in the previous funding period, and in the absence of any material change in the economic geography of the United Kingdom since then, the mere fact that allocations were made for 2014 2020 by reference to those in the previous period is unobjectionable. The objection is specifically to the choice of 2013 as the reference year. It is in my opinion clear that it was this decision which accounts for the differences between Merseyside and South Yorkshire on the one hand, and the remaining transition regions in the current funding period on the other. It was certainly not the decision to reduce the allocations to the four countries comprising the United Kingdom by a flat 5%. This first decision did not in fact, as Lord Mance suggests, diminish the pot available for the nine English transition regions. The government could have distributed the overall allocation to the English transition regions in such a way as to ensure that all of them received a flat 5% reduction on their total allocations for the previous period. It could have distributed them in such a way as to ensure that Merseyside and South Yorkshire received no more than a 5% reduction even if the others did not. Some such solution is what the appellants say that they hoped and expected would happen after the first decision had been announced. Their real complaint is that it did not happen. The reason why it did not is that the purpose of the 2013 Regulation in dividing the former competitiveness category into a transition category and a more developed category was to enable the former to receive an uplift. The reason why Merseyside and South Yorkshire did worse than that was that their uplift, although the same as that of the other transition regions, was based on the 2013 funding allocation and ignored the fact that they had been receiving tapered transitional funding between 2007 and 2011. The same problem would have existed, and would have been equally acute, if the 5% reduction in the total funds for distribution had been applied across the whole of the United Kingdom, instead of to each of the four countries separately. I have set out earlier in this judgment my reasons for agreeing with the courts below that disregarding the tapered transitional funding was justifiable. Lord Mance disagrees (i) because he considers that the tapered transitional funding which they received under article 8 of the 2006 Regulation in that period should be regarded as no different in character from the rest of their funding in that period; and (ii) because the allocation for the previous period had tapered down to the average for allocations for competitiveness regions, and Merseyside and South Yorkshire were worse off than the average competitiveness region. The problem about the first of these points is that but for article 8 of the 2006 Regulation, they would have been competitiveness regions in 2007 2013. The tapered funding was a temporary increase in their allocations designed to ease their path from Objective 1 status in 2000 2006 to competitiveness status in 2007 2013. Its function could properly be treated as spent by 2013. The problem about the second point is one that I have already pointed out in another context, namely that it assumes a more precise correlation between relative deprivation and allocations than anything required by the 2013 Regulation. Conclusion 51. I would dismiss the appeal. LORD NEUBERGER: Introductory: the background and the issues 52. This appeal arises out of a challenge to the decision of the Secretary of State relating to the distribution between various regions of the United Kingdom of money allocated by the European Commission to the UK. The money in question (the UK allocated funds) emanates from the European Structural Funds, and is payable in respect of the years 2014 2020, pursuant to Regulation (EU) 1303/2013 (the 2013 Regulation). 53. The background to the appeal is set out by Lord Sumption in paras 2 19, 30 31 and 37 41, and by Lord Mance in paras 113 148 below, and it is unnecessary to repeat much of what they have said. In particular, the relevant provisions of the 2013 Regulation are explained by Lord Sumption in his paras 5 to 13. 54. The Secretary of State for Business, Innovation and Skills decided to distribute the UK allocated funds by reference to a two stage process. First, they were apportioned between each territory (for want of a better word) of the United Kingdom. This apportionment was effected on the basis that, for 2014, Northern Ireland (which was one region), Wales (which was divided into two regions), Scotland (which was divided into four regions) and England (which was divided into 30 regions) would each receive an annual sum which was 5% less than the they had received in the last year of the previous period, 2013. This was because the UK allocated funds for 2014 were 5% less than they had been for 2013 (in 2011 prices). Secondly, the distribution of the English portion between the 30 English regions involved each of the nine English regions designated under the 2013 Regulations as transition regions, (ie regions which have a GDP between 75% and 90% of the average of the 27 EU member states) receiving a 15.7% increase in their distribution over 2013. It is to be noted in this connection that, while there is practically no freedom to distribute funds allocated by the Commission for transition regions to other regions (and vice versa), there are no specific provisions in the 2013 Regulations as to how the funds allocated for transition regions of a member state should be distributed between those regions. 55. The grounds upon which the decision of the Secretary of State is challenged can be expressed in a number of ways. I have found the most helpful approach to analyse the challenge as having four lines of attack, the first two of which are aimed at the procedure whereby the UK allocated funds were distributed amongst the 37 regions of the UK, and the third and fourth of which are aimed at the outcome. Each of the attacks has been advanced on the grounds of (i) breach of the EU principles of equality or proportionality and/or (ii) breach of domestic public law principles. However, the essence of each of the attacks is that the process adopted by the Secretary of State and/or the outcome of that process was unlawful on the grounds that it was (i) not in accordance with the 2013 Regulation, and/or (ii) so unreasonable as to be unlawful. In practice, these two grounds march together very closely, and it is hard to envisage circumstances in which only one of them was satisfied (cf Kennedy v The Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, paras 51 56 in relation to domestic law and Human Rights law). 56. The four attacks all effectively involve contending that the approach that the Secretary of State adopted to the distribution of the UK allocated funds wrongly failed to have proper regard to the relative economic stages of development of the 37 regions of the UK, or the nine transition regions of England. It may seem somewhat artificial to treat the attacks as having separate procedural and substantive aspects, but I have found it helpful to consider whether each of the two stages of the process was in accordance with the law as a matter of principle, before addressing the question of whether the outcome of those processes was in accordance with the law. If the procedure is not in accordance with the law, then it would be very difficult, but probably not inconceivable, for the outcome of the procedure to stand. On the other hand, if the procedure was lawful, it would nonetheless be quite possible for the outcome to be unlawful. After all, one could expect a person responsible for the allocation of such funds to consider, where appropriate, the outcome of the procedure which was proposed before finally adopting it. Such an exercise of distribution may frequently involve a degree of iteration in terms of determining a procedure, considering the outcome, and then adjusting the procedure if appropriate. 57. 58. The procedural attack on the first stage is based on the proposition that, in the light of the terms of the 2013 Regulation, there can be no justification for apportioning the UK allocated funds on the basis that the four territories, England, Scotland, Wales and Northern Ireland, should each suffer the same reduction in funding from 2013. Such a division, runs the argument, pays no regard to the disparities in the stages of development between individual regions, or groups of regions, and it is that with which the 2013 Regulation is concerned. 59. The procedural attack on the second stage is based on the proposition that, by adopting a 2013 baseline for all nine English transition regions, the Secretary of State wrongly disregarded the status of Merseyside and South Yorkshire (regions which for convenience I will call the appellants) as phasing in regions in the previous, 2007 2013, period. Because of the tapering provisions applicable to such regions during that period, it is said that the appellants are significantly and unjustifiably disadvantaged as against the other seven transition English regions, as those other regions had not been phasing in regions during the 2007 2013 period. 60. The two attacks on outcome are founded on what are said to be indefensible discrepancies between the 2014 2020 payments to the appellants and those made to a number of other transition regions in the UK. The first such attack relies in particular on Highlands & Islands in Scotland (as well as on Northern Ireland) and essentially arises from the first procedural stage. The second attack on outcome focuses on the difference between the appellants and most of the other seven transition regions in England, and arises only from the second procedural stage. The proper approach for the court to adopt 61. The courts have no more constitutionally important duty than to hold the executive to account by ensuring that it makes decisions and takes actions in accordance with the law. And that duty applies to decisions as to allocation of resources just as it applies to any other decision. However, whether in the context of a domestic judicial review, the Human Rights Act 1998, or EU law, the duty has to be exercised bearing in mind that the executive is the primary decision maker, and that it normally has the information, the contextual appreciation, the expertise and the experience which the court lacks. The weight to be given to such factors will inevitably depend on all the circumstances. That is clear from a number of cases, including the decisions of this court in Bank Mellat v Her Majestys Treasury (No 2) [2013] UKSC 39, [2014] AC 700, paras 20 21 and 68 76, and in R (Lord Carlile of Berriew QC) v Secretary of State for the Home Department [2014] UKSC 60, [2014] 3 WLR 1404, paras 19 22, 67 68, and 111, where the judicial review and Human Rights aspects were considered. In the EU law context, the same sort of point was made in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, para 200. 62. The importance of according proper respect to the primary decision making function of the executive is particularly significant in relation to a high level financial decision such as that under consideration in the present case. That is because it is a decision which the executive is much better equipped to assess than the judiciary, as (i) it involves an allocation of money, a vital and relatively scarce resource, (ii) it could engage a number of different and competing political, economic and social factors, and (iii) it could result in a large number of possible outcomes, none of which would be safe from some telling criticisms or complaints. 63. Therefore, like Lord Carnwath, I agree with the Court of Appeal that the Secretary of States decision under consideration in this case is in the classic territory where the courts afford the decision maker a wide margin of discretion [2014] EWCA Civ 1080, [2014] PTSR 1387, para 57. This is a particularly forceful factor in the present case, which concerns a decision which involves the distribution of funds between different parts of the United Kingdom, in respect of which the relevant legislation is very imprecise as to the criteria to be adopted. I am not so sure that I get much assistance from the test of manifestly wrong (although I acknowledge that it is used by the Court of Justice), unless the expression means that no reasonable government could have taken the decision. I agree with the thrust of what Lord Sumption says on this aspect in his paras 22 23, but, although there is obvious force in the passage which he quotes from Lord Hoffmanns speech, I think the issue is susceptible to somewhat more subtle and discriminating analysis than might be inferred from reading that passage. To say that the allocation of public expenditure is very much a matter for democratic decision takes matters very little further at least in connection with a decision made by the executive. The fact that the legislature assigns such a decision to the executive does not alter the fact that it is the executives decision and not that of the legislature. In any event, the legislature will obviously have intended the rule of law to apply, so that such a decision, as with any executive decision, must be susceptible to judicial oversight. 64. 65. Nonetheless, a court should be very slow about interfering with a high level decision as to how to distribute a large sum of money between regions of the UK. But the degree of restraint which a court should show must depend on the purpose of the allocation, the legal framework pursuant to which the resources are allocated, and the grounds put forward to justify the allocation. The line between judicial over activism and judicial timidity is sometimes a little hard to tread with confidence, but it is worth remembering that, while judicial bravery and independence are essential, the rule of law is not served by judges failing to accord appropriate respect to the primary policy making and decision making powers of the executive. Some other preliminary points 66. Particularly in the light of the differences of opinion in this court, I think it is right to mention that the statutory purpose of the distribution of the UK allocated funds does not appear to me to be by any means solely to reduce imbalances or inequalities between different UK regions. The 2013 Regulation refers in article 2.1 to three documents adopted by the European Council, which are identified by Lord Sumption in his para 11, and recital (3) states that the Structural Funds are intended to achieve economic growth, promote harmonious development, and reduc[e] regional disparities, which, according to article 89 are to be achieved through strengthening [of the EUs] economic, social and territorial cohesion and the delivery [of] smart, sustainable and inclusive growth, by investing in growth and jobs and working towards EU wide co operation. Accordingly, while the reduction of inter regional imbalances is an important factor when deciding on distribution, a point which is underlined by article 176 of TFEU (which is directed to cohesion), it is by no means the only factor and it is a long term one. The 2013 Regulation is concerned not only with articles 174 176, but also article 162 (which is concerned with promoting employment), a point underlined by the thematic objectives in article 9 of the 2013 Regulations, which also demonstrate that economic convergence is simply one of the purposes of the Funds. 67. Turning to the exercise of distributing the UK allocated funds for the 2014 2020 period, each of the two stages of that exercise was based on the distribution which had taken place in the previous, 2007 2013, period. This approach was apparently adopted partly for reasons of transparency, convenience and simplicity, but there were two further reasons. The first was to minimise the risk of a disruptive change in any region or territory in 2014, by ensuring that it did not receive a substantial reduction compared with the payment it received for 2013. The second reason was that the distribution for the 2007 2013 period had been effected by reference to a number of different indicators, and the Secretary of States view was that there had not been any significant change from 2006/2007 to 2013/2014 in the economic or other relevant differentials between the regions of the UK. It is significant that there has, rightly in my view, been no challenge to this approach as a matter of broad principle (although, for the reasons discussed below, the two specific stages, and their consequences, are challenged). To take the payments for the previous period as the baseline may well not be the ideal basis for distribution of funds for the current period, but I find it hard to see how it could be said to be unreasonable, unless it can be shown to be so by reference to specific facts or reasons. 68. Another point that should be mentioned is that, as Lord Sumption says, the Commission appears to be content with the Secretary of States distribution process, and has, we were told, adopted it. That is a point which has some traction, particularly in the context of a regulation which envisages (in articles 14 17) that a member states proposed distribution between its regions will be submitted to the Commission for the purpose of its entering into a partnership agreement with the member state, and that, before adopting the proposed agreement the Commission will assess [its] consistency with this Regulation. However, that does not alter the fact that the courts of this country have a fundamental constitutional duty to apply their view of the law to a decision or action of the executive, when it is challenged. In addition, of course, the attack made by the appellants is not only based on EU law, but also on domestic common law. 69. Two other factors deserve comment. First, the absence of any prior consultation between the Secretary of State and individual regions (as opposed to the devolved governments). In my view, if such consultation had occurred and the Secretary of State had taken what had been said into account in a reasonable way (even if he had ultimately rejected it), that would have assisted his case. However, the fact that there were no such consultations does not undermine his case as a matter of principle, although it may, of course, in practice have assisted him in avoiding errors. In that sense, it makes it easier for the appellants to attack his decision, but in the end the decision has to be assessed on its own merits. In some circumstances, a failure to consult can of itself render a decision unlawful, but that will, at least normally, only be where there is a specific obligation or commitment to consult (see for instance R (Bhatt Murphy) v The Independent Assessor [2008] EWCA Civ 755). However, it has not been suggested that such an argument could be advanced here. 70. Secondly, it is clear from the evidence that a fair amount of thought was involved in the decision making process and four options were considered in relation to the second stage see paras 30 31 and 39 41 of Lord Sumptions judgment. That is of some assistance to the Secretary of State, because (i) a considered decision deserves more judicial respect than a relatively unconsidered one, and (ii) it underlines the reasons why the court should be very reluctant to overturn the decision. However, it is not very likely to be a determinative point. The ultimate decision is either in accordance with the law or it is not. Furthermore, the fact that the process adopted is better than three others which were rejected merely shows that there are worse processes, not that the adopted process is acceptable. The procedural attack on the first stage: distribution between the four territories 71. The first stage of the Secretary of States decision involved distributing the UK allocated funds between the four territories in precisely the proportions which reflected their respective shares in 2013. Accordingly, as already explained, because the UKs allocation in 2014 2020 was reduced by 5% from what it had been in 2007 2013, each territorys share was reduced by 5%. This aspect of the decision is attacked by the appellants because (i) it was not based on consideration of the relative economic and development demands and needs of individual regions, or even of the four individual territories, and (ii) it limited the Secretary of States freedom of manoeuvre so far as distributions to individual regions were concerned. 72. The concern of the appellants, as English regions, is easy to understand. It is not really in dispute that, if the approach of the Commission to the assessment of the UK allocated funds had simply been reflected by the Secretary of State when effecting the distribution of those funds between the four territories in 2014 2020, England as a whole would have seen an overall increase of about 7% over 2007 2013, whereas Scotland, Wales and Northern Ireland would respectively have seen decreases of around 32%, 22% and 43%. However, these percentages have been arrived at by retrospective, informal analysis of the sum allocated. The Commission has been anxious to emphasise that the basis upon which each member states allocation was fixed should not be disclosed and that any guesses as to how the allocations were fixed should be avoided. In my view, the appellants objection to the first stage adopted by the Secretary of State should be rejected. In the first place, it is inappropriate to equate the function of the Secretary of State, when deciding how to distribute the UK allocated funds among the regions, with the function of the Commission, when deciding how to allocate the funds among the member states. The terms of the 2013 Regulation, and the documents to which it refers, are obviously relevant when considering the Secretary of States approach to distribution. However, in contrast to the position relating to the assessment of the funds to be allocated to a member state, the 2013 Regulation includes no formula as to how those funds should be distributed among the regions of a member state. 73. 74. Thus, Annex VII to the 2013 Regulation sets out a detailed Allocation Methodology governing the allocation of funds by the Commission among member states. The allocation is assessed by aggregating a sum for each region, which sum is assessed on a per capita basis, with the per capita amount being greatest for regions with less than 75% of the EU average GDP per capita and least for those with more than 90%, with the transition regions being in the middle (see paragraphs 1 4 of the Annex). However, this rather precise methodology does not apply to the distribution of those funds within member states. And the fact that the Commission refuses to say how a member states allocation was determined serves to show that no specific approach by a member state to the distribution of its funds among its regions is encouraged in practice. 75. There is no provision which expressly limits the freedom of a member state when deciding how to distribute its allocated funds between regions. It is true that article 176 TFEU refers to redress[ing] the main regional imbalances and structural adjustments of regions whose development is lagging behind, but it does not require convergence and it has nothing to say about timing. Having said that, in the light of the terms of the 2013 Regulation, I accept that the level of economic development of each of its regions must be a point of real relevance when a member state decides how to distribute its allocated funds between them. Thus, if it could be shown that it was treated as irrelevant by a state, then the decision would be likely to be held unlawful. However, as I have sought to explain in para 66 above, it appears clear that a member state is not required to base the distributions of its allocated funds between regions solely by reference to their relative stages of economic development, let alone to their GDP per capita. Further, the thematic objectives referred to in article 9 of the 2013 Regulation have to be taken into account. 77. 76. The fact that, by contrast with the detailed directions with regard to allocation between member states, there are no express constraints on member states as to how they should distribute their allocated funds renders it difficult to justify a substantial degree of constraint as to the manner of distribution. While article 93 of the 2013 Regulation limits transfers between the three types of region, it does nothing to limit transfers between regions of the same type, which again suggests a relatively high degree of freedom when the state is deciding how to distribute allocated funds between regions with the same status. The fact that such transfers would be notional, as the Commission does not reveal the split between individual regions in its allocation, itself suggests that it cannot have been intended that member states were to be very limited in their scope for deciding how to distribute between regions. In the course of his impressive judgment, Stewart J said that, essentially for the reasons discussed in paras 73 76 above, the appellants attack on the Secretary of States decision to adopt what I have called the first stage falls at first base [2014] EWHC 232, [2014] LGR 389, para 73. I agree that those reasons establish that the attack faces an insurmountable problem in so far as it relies on the point that the distribution of payments among the regions of the United Kingdom does not simply reflect their relative state of economic development. However, it can still be argued that the apportionment between the four territories is arbitrary and inconsistent with the purpose of the 2013 Regulation, because the UK allocated funds were a lump sum for the United Kingdom as a whole, and the apportionment between the four territories pays no regard to the relative claims of the 37 regions of the United Kingdom, and unjustifiably ties the hands of the Secretary of State in relation to the distribution of the funds between those individual regions. I accept that there is real force in that point, but the decision that the 5% reduction in the United Kingdoms allocation should be visited equally on, or pro rata between, England, Scotland, Wales and Northern Ireland is very much a policy decision, or a politically based decision, which is therefore 78. particularly difficult for a court to evaluate and therefore to criticise, and therefore to condemn. The decision reflects both the increasingly decentralised nature of UK administration and the political realities of the devolution process. As I see it, neither of those two features is an illegitimate factor for the Secretary of State to take into account, and neither is a factor whose importance a court is well placed to assess, let alone to dispute. I agree with Lord Sumption that the decision of the Grand Chamber in (Case C 428/07) R (Horvath) v Secretary of State for the Environment, Food and Rural Affairs [2009] ECR I 6355 supports the notion that the first stage of the decision was justifiable under EU law. 79. Apportioning the UK allocated funds between the four territories on this pro rata approach based on the 2007 2013 payments may not be a course which most people would expect, or even which many ministers would have adopted. But I do not consider that it can be said that it is contrary to the 2013 Regulation, particularly as it contains no express restriction as to how nationally allocated funds are distributed; nor do I consider that it could be said to be irrational. Indeed, I think that there is some force in the point that the Secretary of States view that each territory should be protected in the 2014 2020 period against a substantial overall reduction from the amount it received in the 2007 2013 period accords with the inclusion in Appendix VII of a ceiling on any increase (para 13), and a floor on any decrease (para 16), in a member states allocation in the 2014 2020 period as against the 2007 2013 period. The procedural attack on the second stage: distribution between English regions 80. The complaint of the appellants about the second stage of the distribution process is that they should not have been treated in the same way as the other seven English transition regions because, unlike the other seven regions, the appellants were phasing in regions in the 2007 2013 period. This means that, although the appellants will receive a 15.7% increase in 2014 on what they had received the previous year, they are due to receive in the 2014 2020 period around 61% less than they received over the previous 2007 2013 period, whereas the seven other transition regions will receive rather more in the 2014 2020 period than they received for the 2007 2013 period. 81. The explanation for the fact that the appellants will receive a year on year increase between 2013 (the last year of the previous period) and 2014 (the first year of the current period), but a substantial overall aggregate decrease between the two periods, is that they were phasing in regions for the 2007 2013 period. In other words they were regions, which during the 2000 2006 funding period had had GDPs per capita of below 75% of the average of the EU member states (and hence were Objective 1 regions), but by 2007 were no longer in that category, but were competitiveness regions (ie regions having GDPs per capita of between 75 90% of the EU average), owing to their relative economic growth. This meant that during the 2007 2013 period their allocation of funds had started at a higher level than the other competitiveness regions, which had had GDPs per capita of 75 90% of the average of the member states during the 2000 2006 period (and therefore had been Objective 2 regions in that period). However, as the name suggests, the level of funds allocated to phasing in regions in 2007 tapered down over the next four years, so that by 2011 it was at the national average level per capita as other competitiveness regions. 83. 82. By contrast, the seven other English regions were not only competitiveness regions during the 2007 2013 period, but they were effectively in the same category (namely Objective 2 regions) during the 2000 2006 period, as they each had a GDP per capita between 75 90% of the EU average in 2000. In my view, the attack on the second stage should also be rejected. The appellants cannot logically invoke the fact that they received more in the 2007 2013 period than other competitiveness regions to justify their being treated more favourably than the other competitiveness regions for the 2014 2020 period. This is because the only reason that they were treated better in the earlier period was to smooth the passage from having been Objective 1 regions in the 2000 2006 period to being competitiveness regions in the 2007 2013 period. From 2011, when the tapering stopped, the appellants received aid at the average rate per capita for competitiveness regions between 2011 and 2013, and there is no reason why the Secretary of State should be expected to treat them any differently for the 2014 2020 period. As Stewart J said in para 78(iii) of his judgment, if the Secretary of State had adopted the approach suggested by the appellants, it would have unduly advantaged the [appellants] in relation to the other English transition regions. 84. However, the appellants raise a separate argument based on the point that the annual payments for the 2007 2013 period made to the appellants, as phasing in regions, were, exceptionally and unlike the payments to other competitiveness regions, determined by the Commission rather than by the UK government. Accordingly, runs the argument, using the payment received in 2013 as the base for determining the 2014 payment for each transition region in England involved treating the appellants differently from the other seven English transition regions. There is undoubted force in this argument, particularly given that (reflecting the UK governments distribution decision in 2006) the 2013 payments to the other transition regions in the north and midlands of England were increased above what they would otherwise have been, owing to the UK governments decision to favour the north and midlands over the south, whereas this did not apply to the 2013 payments to the appellants. 85. This point has force. None the less, given (i) the fact that it was a reasonable decision in principle to take the 2013 payments for each region as the basis for calculating the 2014 payments, (ii) the wide margin of discretion accorded to member states when deciding how to distribute allocated funds nationally, (iii) the large number of factors which are potentially relevant, (iv) the long term nature of the aims of the 2013 Regulation and its predecessors, (v) the fact that the Secretary of State appreciated and addressed the level of payment per capita received by the appellants, and (vi) the perceived desirability of maintaining a degree of continuity for each region, I have reached the conclusion that this point should also be rejected. The relevant Ministers and civil servants in the Department of Business, Innovation and Skills were aware of the fact that the proposed distribution would result in the appellants receiving a relatively low sum per capita when compared with other transition regions, they considered the possibility of increasing the appellants share of the UK allocated funds. However, they decided that such a course would be unfair on other transition regions, especially as the appellants had fared better than those other regions, as competitiveness regions, thanks to phasing, during the years 2007 2010. The procedural attacks: summary 86. For the reasons given in paras 71 85 above, I consider that the appellants attacks on the two stages adopted by the Secretary of State for deciding how to distribute the UK allocated funds in 2014 2020 fail, in so far as they are considered as a matter of principle. However, as explained in paras 56 60 above, the fact that the procedure adopted by the Secretary of State was defensible in principle is not the end of the matter. It is still necessary to examine the outcome in the light of the criticisms raised by the appellants. The attack on outcome: Highlands & Islands and Northern Ireland 87. The first attack on outcome is primarily based on a comparison between the appellants and the Scottish region of Highlands & Islands, and it largely results from the first stage. As explained above, although the appellants will receive a 15.7% increase in 2014 on what they had received in 2013, the total amount they are due to receive in the 2014 2020 period would be over 60% less than they received over the previous 2007 2013 period, whereas Highlands & Islands would suffer no decrease in the 2014 2020 period as against the 2007 2013 period. In actual euros per capita, Highlands & Islands will receive about three times as much as the appellants will receive (around 400 per capita as against around 130 per capita). 88. The status of the appellants as phasing in regions in the period 2007 2013 is explained in para 81 above. The status of Highlands & Islands is slightly different. Like the appellants, it is a transition region under the current, 2014 2020, regime, but, unlike the appellants, it was a phasing out (rather than phasing in) region, during the 2007 2013 period. This meant that (i) like the appellants, it had been an Objective 1 region, with a GDP per capita of below 75% of the average of the EU member states in the 2000 2006 period, and by 2007 it was no longer in that category, but (ii) unlike the appellants, its exit from the category arose not because of an improvement in GDP per capita, but because of the accession of ten new (and, on average, poorer) member states to the EU between 2000 and 2007. Accordingly, Highlands & Islands was subject to a rather different tapering regime under the allocation arrangements for 2007 2013, which only reached the level for competitiveness regions in 2013. 89. On that ground, the courts below considered that it was simply inappropriate to compare Highlands & Islands with the appellants, and therefore that any attack by the appellants on the outcome of the Secretary of States decision based on the Highlands & Islands 2014 2020 payment was misconceived. That may be right, but, at least if one confines oneself to the reason for, and consequences of, the difference between phasing in and phasing out regions, I am not particularly impressed with that view, because all three regions were competitiveness regions, and any phasing had ended by 2013. However, the differences in co financing (ie the extent of the domestic contribution, as briefly explained by the Judge in para 50(c) of his judgment) may conceivably justify the view taken by the courts below. It is unnecessary to decide that rather nice point: even if one assumes that it is relevant that Highlands & Islands had a different status from the appellants in the 2007 2013 period, the difference in outcome between its 2014 2020 aggregate payment and those for the appellants is striking. As already mentioned, the appellants will receive around 130 per capita, whereas Highlands & Islands will receive around 400 per capita. This follows from the combination of (i) the fact that Scotland was more favourably treated than England at the first stage, and (ii) the fact that Highlands & Islands is the only transition region in Scotland, and it was thought to be wrong to reduce its 2014 payment to bring it more into line with the English transition regions as that would benefit the other three, richer, regions in Scotland. 90. 91. A somewhat similar, if less forceful, point can be made by the appellants about Northern Ireland, also a transition region in 2014 2020, which is to receive around 260 per capita in 2014. Again, it is true that it was a competitiveness region in 2006 2013 period, and therefore was not strictly comparable with the appellants (or with Highlands & Islands), but I doubt that that point has much force (subject to the co financing point referred to at the end of para 89 above). But, even if it does, the fact that in 2014 Northern Ireland receives twice the amount per capita that the appellants receive is rather striking. 93. 92. These disparities do give one pause for thought. Many people in the position of the Secretary of State might well have taken the view that the disparities such as those discussed in paras 90 91 above would have justified making adjustments as between the payments which would otherwise be made to each region, or even reconsidering the whole methodology. However, bearing in mind the wide margin of discretion which should be accorded to the Secretary of State in the distribution of the funds, I do not consider that this justifies the conclusion that the distribution scheme which he adopted was unlawful. I start with the point that the disparities arise primarily from the first stage of the distribution process, which, as already mentioned, does not seem to me to be objectionable in principle. The first stage almost inevitably will result in a degree, and no doubt often a significant degree, of disparity between a region in one territory and a very similar region in another. The same sort of problem could arise between similarly developed (or undeveloped) regions in different member states. Particularly bearing in mind that the apportionment of the UK allocated funds between the four territories of the UK was based on a high level political decision which is lawful in principle, it would require a compelling case on the outcome before a court could rule the decision unlawful in practice. I do not consider that a compelling case has been made. 94. When considering the disparities relied on by the appellants, it is a mistake to assume that, merely because a region has in 2014 and/or had in 2013 the same status as, or had reached the same stage of economic development as, another region, that the two regions should be accorded a similar level of distribution. The purpose of distributing the funds is not only to improve the growth, or relative growth, of poorer regions: it is also to achieve the multifarious thematic objectives. Accordingly, it is dangerous to focus, and inappropriate to focus exclusively, on GDP per capita when comparing different regions. 95. The selection of a regions GDP per capita figure as governing the appropriate level of payment may well reflect the Commissions overall assessment of the UK allocated funds under the provisions of the 2013 Regulation. However, as already mentioned, (i) the Regulation has no such provisions in relation to the distribution of the UK allocated funds between individual regions, and (ii) the payments in 2007, on which the 2014 payments are based, were arrived at by reference to a basket of indicators, which were assumed to be equally valid in 2013, on the basis that there had been no significant shift in the social geography of the United Kingdom. To take obvious examples which are admittedly speculation on my part, Highlands & Islands with its low population density and its meteorological and geographical character must be a relatively expensive region to service, and Northern Ireland has unique social issues. 96. The danger of focussing on GDP per capita can be demonstrated by comparing two sets of regions which were both English competitiveness regions in 2007 2013 and are both English transition regions in 2014 2020, and have very similar GDP per capita. First, Devon receives a payment for 2014 2020 of 67 per capita, whereas Cumbria receives 166; secondly, Lincolnshire receives 137 per capita, whereas Tees Valley & Durham receives 280 per capita. Given that these two examples do, on any view, involve comparing like with like, and that the 2014 payments are based on those for the 2007 2013 period, it underlines the point that the Secretary of State has not based his distribution, even within a territory, simply on the basis of a regions GDP per capita. Indeed, that is clear from the Secretary of States evidence, which, as mentioned in para 67 above, explains that the distribution for the 2007 2013 period, on which the 2014 payments were based, (i) was not effected simply by reference to a regions GDP per capita but was based on much more material, and (ii) was intentionally loaded in favour of regions in the north and midlands of England as against those in the south (hence Devons payment per capita is much lower than Cumbrias). 97. Furthermore, as is clear from what I have just said and is discussed more fully in paras 100 103 below, it is not by any means necessarily the case that the appellants would have been treated better, or that Highlands & Islands or Northern Ireland would have been treated worse, than they have been treated, if there had been no first stage. There are many ways in which the distribution of the UK allocated funds could have been effected. 98. Particularly in the light of these features, I consider that the Secretary of State was entitled to take the view that, whatever scheme he adopted would prove objectionable to some regions, and that if he adhered to the two stage system he did adopt and made adjustments, that too would cause problems and give rise to complaints. Accordingly, he was entitled to decide that it was simpler and politically advisable to stick with the scheme and not make adjustments. 99. This brings one back to the point that the Secretary of States decision involved a substantial measure of political judgment. Accordingly, his decision to adhere to a distribution scheme which was clear, simple and transparent, rather than one which was nuanced, subjective and complex is one which it is difficult for a court to challenge unless of course the outcome appears to be inconsistent with the 2013 Regulations or simply unreasonable. When one considers the figures mentioned in paras 90 91 above together with the reasons summarised in paras 94 98 above, it appears to me that it cannot fairly be said that the appellants have managed to establish either ground. The attack on the outcome: the other English transition regions 100. The second attack on outcome is based on a comparison between the 2014 payments to the appellants and the other seven English transition regions in the light of their relative stages of economic development. This attack is effectively based solely on the second stage of the distribution decision in relation to the 2014 2020 period. In my opinion, the attack should be rejected for very similar reasons to those given in paras 93 99 above. However, it is fair to say that the starting point, namely the nature of the decision in principle, is somewhat less of a formidable hurdle for the appellants. The decision how to distribute the UK allocated funds between the English transition regions was a more workaday, relatively less high level political, decision than the first stage decision. Nonetheless, as already explained, it was a defensible policy decision at least in principle and it must inevitably carry with it a degree of inevitable rough justice. 101. However, although the initial hurdle may be lower for the appellants attack on the outcome for English transition regions than it is in relation to Highlands & Islands and Northern Ireland, I consider that, when one examines the appellants case on this fourth aspect, it should be rejected. 102. In a nutshell, the principal criticism raised by the appellants is that, given that he based the 2014 2020 distributions on the distributions in the previous period, the Secretary of State should have assessed the allocation for the English transition regions by reference to the average annual distribution which they received for the 2007 2013 period rather than the 2013 distribution which they received. On the face of it, at least, I do not consider that the Secretary of States decision on this point can be criticised. The difference arising from the choice of the 2013 distribution only affects regions which were phasing in regions during the 2007 2013 period, and the appellants are the only English regions which can claim to suffer in this way. However, there is, at the very least a real argument that it would be wrong to take the benefit of their tapering payments for the years 2007 2013, into account when assessing their 2014 distributions, given that these payments were intended to soften the blow of their having become competitiveness regions, a softening which was intended to be spent by 2013, and therefore, a fortiori, by 2014. 103. Quite apart from this, as already mentioned, it is apparent that there is no direct or simple correlation between the level of economic development of an English transition region and its 2014 payment, and there is no clear reason to think that the appellants would be better off under another scheme. 104. The relevant figures for the nine English transition regions are set out in para 55.4.2 of Stewart Js judgment, and I have already discussed some of the figures in para 96 above. More specifically, the appellants, each of whom receive around 130 per capita during 2014 2020 (123 in the case of South Yorkshire, and 135 in the case of Merseyside), fare better than Devon (67 per capita, as already mentioned), but worse than five of the other six English transition regions, if one looks simply at the payment per capita and the level of the regions GDP per capita. Ignoring Devon, the other six English transition regions received between (i) slightly more than the appellants, Lincolnshire at 137 per capita, and (ii) a little more than twice as much as the appellants, Tees Valley & Durham at 280 per capita. Ignoring the two outliers, Devon and Tees Valley & Durham, the figures vary between 137 per capita for Lincolnshire and 167 for Shropshire & Staffordshire. Lincolnshires GDP per capita is lower than either South Yorkshires or Merseysides, whereas Shropshire & Staffordshires is a little lower than South Yorkshires and somewhat higher than Merseysides. 105. Ignoring Devon, which receives less per capita because it is in the south (see paras 84 and 96 above), it is noteworthy that Lincolnshire (which in terms of GDP per capita is somewhat worse off than either of the appellants), receives a payment which is very similar on a per capita basis to that of the appellants, whereas Tees Valley & Durham (which in terms of GDP per capita is only slightly lower than Lincolnshire) receives twice as much. On the other hand, Cumbria (which is richer than any other English transition region) receives a payment per capita significantly more than Lincolnshire. 106. Thus, the figures demonstrate that there is no reliable correlation between payment per capita and GDP per capita for 2014 2020, even for English regions which were ordinary (ie not phasing in or phasing out) competitiveness regions in 2013 and transition regions in 2014. That does not mean, of course, that any level of payment for the appellants would be justified. However, the important point for present purposes is that, on a GDP per capita basis, (i) the appellants plainly fare better than one region, Devon, and, more significantly, fare consistently with another region, Lincolnshire, and (ii) there is nothing like a precise correlation with the 2014 payments per capita. 107. This analysis of the distributions to the other English transition regions thus leads to the conclusion that criticism of the outcome of the Secretary of States method of distributing the UK allocated funds is not soundly based, if it rests on the presumption that each English transition region (or even each transition region in the north and midlands) should get the same payment per capita, or the same payment per capita adjusted to take account of the regions 2014 GDP per capita. Indeed, as mentioned in para 96 above, that conclusion is consistent with the Secretary of States evidence, which states that the 2014 payment for transition regions was arrived at by a fixed percentage uplift on the 2013 payment, which itself had been arrived at by reference to a number of different indicators in 2007. 108. Furthermore, it appears to be very difficult, at least on the evidence in these proceedings, to assess what difference it would have made if the appellants 2014 2020 payments had been determined by reference to what they would have received in 2013, or in the period 2007 2013, had they been ordinary competitiveness regions, rather than phasing in regions. Conclusion 109. In these circumstances, I have come to the conclusion that this appeal fails. I must, however, confess that I have reached this conclusion with some hesitation. Although I do not agree by any means entirely with the approach adopted by Lord Mance (who places more emphasis than I do on the criteria and limits imposed by the 2013 Regulation on the Commission, when considering a member states freedom of movement when distributing allocated funds) or by Lord Carnwath (who considers that the Secretary of State has a greater duty to justify his distributions between individual regions than I believe is mandated by the 2013 Regulation), I see force in much of their reasoning, and indeed I was at one time persuaded that they had reached the right conclusion. 110. While I would dismiss this appeal, it is right to re affirm the courts duty to declare that decisions of the executive, whether relating to the distribution of funds or otherwise, are unlawful if they are insufficiently justified or do not accord with the lawful aims or requirements pursuant to which the distributions in question are made. I appreciate that the decision under consideration in this case was difficult and potentially complex, and that it involved many competing factors, political and social as well as economic. However, with the expertise and information available to the Secretary of State, one would have hoped for a more sophisticated and considered, and a more consultative, approach to the question of how to apportion such a large sum of money between different regions of the United Kingdom. I note from the evidence put in by the Secretary of State that it does appear that a much more careful approach was adopted in relation to the distribution for the 2007 2013 period. 111. In summary, then, while the decision as to how to distribute the UK allocated funds between the 37 regions of the United Kingdom may have been unimpressive in some respects, it was not unlawful. LORD CLARKE: 112. I have read the other judgments in this appeal with great interest (and no little admiration). I have throughout been inclined to agree with Lord Sumption. It does seem to me that the court should be very reluctant to interfere with decisions of the kind under scrutiny here because they raise questions of policy which are essentially matters for the executive. I recognise that in an appropriate case it is the duty of the court to interfere. However, I agree with Lord Neuberger at para 66 that the decisions under review involved a range of different policy considerations and that it cannot fairly be said that the choices made by the Government were unlawful. Like Lord Neuberger I have had some doubts in the course of the argument, especially in the light of the judgment of Lord Mance. However, again like Lord Neuberger, I prefer the reasoning of Lord Sumption to that of Lord Mance. I do not detect any significant difference between the reasoning of Lord Sumption and that of Lord Neuberger. I agree with them and Lord Hodge that the appeal should be dismissed. LORD MANCE: (with whom Lady Hale agrees) Introduction 113. The European Union (EU) has a set of structural and investment funds (the ESI funds), of which the three main elements relate to the Common Agricultural Policy, the Cohesion Fund and the Structural Funds. The Structural Funds, defined by article 1 of Council Regulation (EC) No 1303/2013, consist of the Regional Development Fund (ERDF) and the somewhat smaller Social Fund (ESF). The ERDF is established under article 176 TFEU, and the ESF under articles 162 to 164 TFEU. The EU makes available the Structural Funds on the basis of its overall assessment of each Member States regional development needs, but their allocation within each Member State is, subject to limits, the responsibility of that State. The EU operates on the basis of seven year budgets, each of which determines the Structural Funds available for the next seven year period. The budget for the years 2014 2020 was thus agreed in 2013. 114. On this appeal various local authorities in the Merseyside and South Yorkshire regions challenge the defendant Secretary of States allocation of the Structural Funds within the United Kingdom during the EU budgetary period of 2014 2020. The challenge focuses on two successive decisions taken by the Secretary of State. The first was to allocate the funds received in respect of the period 2014 2020 between the individual territories or nations of the United Kingdom (that is England, Scotland, Wales and Northern Ireland) in the same proportions as in the previous seven year period 2007 2013. The second was to base the allocations for English transitional regions in the period 2014 2020 on the amounts each such region received in 2013 under the scheme in place during that previous seven year period. These decisions, taken individually or in combination, are alleged to have affected Merseyside and South Yorkshire in a manner which, it is submitted, is not supported by the relevant EU Regulations and involves anomalies and inequalities of treatment which cannot be and have not been justified. 115. Structural funding is made available by reference to the NUTS level 2 (NUTS 2) regions. NUTS 2 regions are second tier regions corresponding broadly to large counties in the United Kingdom. They are defined by the Nomenclature of Territorial Units for Statistics (NUTS 2006/EU27) (NUTS) established pursuant to article 1 and Annex I of regulation (EC) 1059/2003. There are 30 NUTS 2 regions in England (including Merseyside and South Yorkshire), 4 in Scotland and 2 in Wales while Northern Ireland is a single NUTS 2 region. For the purposes of structural funding, the EU also identifies categories of NUTS 2 regions. It determines the total funding which each Member State receives from the ERDF and ESF by reference to its own assessment of regional development needs within each such category. The categorisation adopted has changed from seven year period to seven year period, as has the extent to which the relevant regulations define at an EU level the amount which each region is to receive, or leave this to the relevant Member State to determine. All Structural Funds funding has to be co financed or matched by domestic investment in a defined percentage. 116. The broad purposes for which the Structural Funds are made available are defined in article 174 TFEU in the case of the ERDF and article 162 in the case of the ESF. Article 174 is part of a title consisting of articles 174 178, headed Economic, Social and Territorial Cohesion. It provides: In order to promote its overall harmonious development, the Union shall develop and pursue its actions leading to the strengthening of its economic, social and territorial cohesion. In particular, the Union shall aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions. Among the regions concerned, particular attention shall be paid to rural areas, areas affected by industrial transition, and regions which suffer from severe and permanent natural or demographic handicaps such as the northernmost regions with very low population density and island, cross border and mountain regions. Article 176 further provides that the ERDF is intended to help to redress the main regional imbalances in the Union through participation in the development and structural adjustment of regions whose development is lagging behind and in the conversion of declining industrial regions. 117. Article 162 provides that the ESF is established: In order to improve employment opportunities for workers in the internal market and to contribute thereby to raising the standard of living and that it shall aim to render the employment of workers easier and to increase their geographical and occupational mobility within the Union, and to facilitate their adaptation to industrial changes and to changes in production systems, in particular through vocational training and retraining. 118. Articles 164 and 178 provide for the European Parliament and Council to adopt implementing regulations relating to, respectively, the ESF and the ERDF, while article 177 confers further more generally worded power to make regulations defining the tasks, priority objectives and organisation of such funds. 2000 2006 119. During the period 2000 2006 regions were classified in three categories, which have been described as Objectives 1, 2 and 3. Objective 1 (the most needy) contained five UK regions, namely Cornwall and the Scillys, West Wales and the Valleys, Highlands & Islands, Merseyside and South Yorkshire, plus the whole of Northern Ireland. 2007 2013 120. During the period 2007 2013, Regulation (EC) No 1083/2006 provided for a different categorisation. The most needy and the least needy regions were the two main categories, and have been described as respectively convergence and competitiveness regions. But in between them, under articles 8.1 and 8.2 of the regulation, were two sub categories to which support was allocated on a transitional and specific basis, and these have been described as phasing out and phasing in regions. 121. Regulation No 1083/2006 determined the precise amounts allocated to particular regions falling within the convergence and the two transitional categories. All that was left to the United Kingdom was to determine the allocation between competitiveness regions of the funds allocated by the EU to United Kingdom competitiveness regions. There was no scope for any transfer of funds between categories. The allocation between competitiveness regions was done on a basis which, because of the use of NUTS 1 as distinct from NUTS 2 criteria and a safety net limiting any reduction by reference to the prior period of 2000 2006 to 6.7%, did not necessarily correspond precisely with but nonetheless reflected (in the words of counsel for the Secretary of State, Mr Jonathan Swift QC) an approximation of each such competitiveness regions economic needs. The indicators and safety net used by the Government to determine regional allocations within the competitiveness category also had the intended effect of channelling relatively high levels of funding to northern regions, compared with southern regions with similar economic profiles. 122. Under article 8, read with para 6 of Annex II, of Regulation 1083/2006, the transitional support for phasing out regions was 80% of their individual 2006 per capita aid intensity level in 2007 and a linear reduction thereafter to reach the national average per capita aid intensity level for the Regional competitiveness and employment objective in 2013. For phasing in regions, it was 75% of their individual 2006 per capita aid intensity level in 2007 and a linear reduction thereafter to reach the national average per capita aid intensity level for the Regional competitiveness and employment objective by 2011. 123. The purpose of transitional support was thus to smooth the relevant regions movement from the most needy category to full competitiveness by the linear reduction of funding. However, the final figure, based on the national average per capita aid intensity level for competitiveness regions was necessarily aspirational. In other words, whether or not any phasing in or phasing out region actually achieved the same level of development as the average for all competitiveness regions was something that could only be determined with time. There was no guarantee that any of such regions would do so. 124. In the case of the United Kingdom the convergence regions (those with less than 75% of the GDP of the 25 EU member states) were Cornwall and the Scillys and West Wales and the Valleys. The only phasing out region (ie with more than 75% of the GDP of the 25 EU member states, but less than 75% of the GDP of the 15 member states) was Highlands & Islands. The only phasing in regions (those which had been old Objective 1 regions, but with GDP now exceeding 75% of the average of that of the 25 EU Member States) were Merseyside and South Yorkshire. 125. The linear reduction prescribed by the regulation led both phasing out and phasing in regions to receive a flow of funds tapering sharply downward during the seven year period. The tapering extended in the case of phasing out regions over the full seven year period, but took in the case of phasing in regions only four years, leading to the receipt of monies based on the national average per capita aid intensity level for competitiveness regions during each of the last three years, 2011 2013. Taking rounded figures, Merseyside thus received some 161m in 2007, 129m in 2008, 95m in 2009, 60m in 2010 and 23m in each of the three years 2011 to 2012, while South Yorkshire received some 142m in 2007, reducing each year to 52m in 2010 and then remaining stable at 21m in each of the last three years. The phasing out regions only received monies based on the national average per capita aid intensity level for competitiveness regions in the last year, 2013. 2014 2020 126. For the period 2014 2020, Regulation (EU) No 1303/2013 applies. This is expressed to have been made with particular regard to article 177. Recital 1 records that article 174 TFEU provides that, in order to strengthen its economic, social and territorial cohesion, the Union is to aim at reducing disparities between the levels of development of the various regions and the backwardness of the least favoured regions or islands Recital 77 recites that in order to promote the TFEU objectives of economic, social and territorial cohesion, the investment for growth and jobs goal should support all regions and that to provide balanced and gradual support and reflect the level of economic and social development, resources under that goal should be allocated from the ERDF and the ESF among the less developed regions, the transition regions and the more developed regions according to their GDP per capita in relation to the EU 27 average. 127. The regulation states both common or general principles (article 1) and thematic objectives (article 9) which are to apply to all ESI funds and fund specific, general rules governing the two Structural Funds and the Cohesion Fund (articles 1, 2(4) and 4 and Part 3). In relation to the Structural Funds, article 89 (the first in Part 3) identifies one mission and two goals to be pursued for the purpose of that mission. The mission is stated in article 89(1): 89(1). The Funds shall contribute to developing and pursuing the actions of the Union leading to strengthening of its economic, social and territorial cohesion in accordance with article 174 TFEU. The actions supported by the Funds shall also contribute to the delivery of the Union strategy for smart, sustainable and inclusive growth. The goals are defined as follows: 89(2). For the purpose of the mission referred to in paragraph 1, the following goals shall be pursued: (a) Investment for growth and jobs in Member States and regions, to be supported by the Funds; and (b) European territorial cooperation, to be supported by the ERDF. 128. The thematic objectives which under article 9 all ESI Funds should support do not alter or detract from the fund specific mission and goals identified in the case of the Structural Funds in Part 3. On the contrary, article 9 makes clear that they are introduced in order to contribute to the Union strategy for smart, sustainable and inclusive growth as well as the Fund specific missions pursuant to their Treaty based objectives, including economic, social and territorial cohesion They represent, in short, ways in which the fund specific mission and goals may be promoted. They are identified as strengthening research, technological development and innovation; enhancing access to, and use and quality of ICT; enhancing the competitiveness of SMEs and of the agricultural, fishery and aquaculture sectors; supporting the shift towards a low carbon economy; promoting climate change adaptation, risk prevention and management; preserving and protecting the environment and promoting resource efficiency; promoting sustainable transport and removing bottlenecks in key network infrastructures; promoting sustainable and quality employment and supporting labour mobility; promoting social inclusion, combating poverty and any discrimination; investing in education, training and vocational training for skills and lifelong learning; enhancing institutional capacity of public authorities and stakeholders and efficient public administration. Article 9 concludes by stating that these thematic objectives are to be translated into priorities that are specific to each of the ESI Funds and are set out in the Fund specific rules. 129. Article 91 provides that, for the purposes of the mission identified in article 89(1), the resources available for the Structural Funds and the Cohesion Fund are some 322,000m in 2011 prices, 96.33% (some 313,000m) of which is under article 92(1) for the growth and jobs goal, while only 2.75% is under article 92(9) for the territorial cooperation goal. 130. Critically, for present purposes, article 90 introduces a new three fold categorisation for the period 2014 2020. This is quite different from the categorisation used in the prior period 2007 2013. It identifies less developed regions (those with less than 75% of the GDP of the now 27 Member States), transition regions (those with GDP between 75% and 90% of the average of the 27 Member States) and more developed regions (those with more than 90% of the average GDP of the 27 Member States). Article 90(4) provides for the Commission to decide which regions fall within each category, by a list valid for the whole period 2014 2020. 131. Further, a fixed percentage of the total resources of 313,000m available for the growth and jobs goal is under article 92(1) allocated to each of the defined categories of region viz 52.45% for less developed regions, 10.24% for transition regions and 15.67% for more developed regions (with 21.19% also going to the Cohesion Fund and 0.44% for additional funding for outermost regions). The fixed nature of these allocations is identified in article 93.1: The total appropriations allocated to each Member State in respect of less developed regions, transition regions and more developed regions shall not be transferable between those categories of regions. Article 93.2 gives Member States a very limited possibility of altering these fixed allocations. It allows the Commission in duly justified circumstances which are linked to the implementation of one or more thematic objectives to accept a Member States proposal to transfer up to 3% of the total appropriation for a category of regions to other categories of regions. 132. Annex VII prescribes the allocation method for each Member States entitlement in respect of less developed, transition and more developed regions (basically, in each case, the sum of allocations or shares calculated for each of its individual NUTS level 2 regions, on bases taking into account specified factors including GDP). The total allocated to the United Kingdom for less developed regions was some 2.118 billion, for transition regions some 2.3266 billion and for more developed regions some 5.126 billion. The Commissions calculations of individual regional needs are not published (though the parties have been able to work out what they approximately were), and they have no domestic application. 133. The overall funds allocated to the United Kingdom for the period 2014 2020 were (after allowing for inflation) reduced by 5% compared with 2007 2013. The Secretary of State was under article 93.2 permitted to transfer to the two less developed regions in the United Kingdom, that is Cornwall and the Scillys and West Wales and the Valleys, 3% of the budget which the EU had assigned to transition and more developed regions, and to split the amount so transferred between these two regions, achieving thereby an equal 16% cut in funding compared with the prior seven year period. The Partnership Agreement 134. Within the above parameters, it is for the United Kingdom to adopt national rules on the eligibility of expenditure (see Recital 61), by preparing a Partnership Agreement, to be approved by the Commission. Partnership Agreement is defined in article 2 as: Partnership Agreement means a document prepared by a Member State with the involvement of partners in line with the multi level governance approach, which sets out that Member State's strategy, priorities and arrangements for using the ESI Funds in an effective and efficient way so as to pursue the Union strategy for smart, sustainable and inclusive growth, and which is approved by the Commission following assessment and dialogue with the Member State concerned. 135. Article 4(4) and 5 provide: 4(4). Member States, at the appropriate territorial level, in accordance with their institutional, legal and financial framework, and the bodies designated by them for that purpose shall be responsible for preparing and implementing programmes and carrying out their tasks, in partnership with the relevant partners referred to in article 5, in compliance with this Regulation and the Fund specific rules. 5(1). For the Partnership Agreement and each programme, each Member State shall in accordance with its institutional and legal framework organise a partnership with the competent competent urban and other public authorities; regional and local authorities. The partnership shall also include the following partners: (a) (b) economic and social partners; and (c) relevant bodies representing civil society, including environmental partners, non governmental organisations, and bodies responsible for promoting social inclusion, gender equality and non discrimination. 136. Any Partnership Programme prepared for the purposes of articles 4(4) and 5(1) must self evidently comply with, and be prepared on the basis of considerations relevant to, the fund specific mission and goals of the regulation. It must also comply with more general principles of European and domestic law, including those of equality and rationality. The present challenges were brought at a stage when the programme submitted by the United Kingdom to the Commission had not yet been approved. The Commission was kept informed about the challenge, but regarded it as an internal issue for the United Kingdom to resolve. It stated that, if this Courts ruling required the United Kingdom Government to review the Partnership Agreement after it had been adopted, this could be done through the mechanism of article 16 of the regulation. Article 16(4) enables a Member State to propose an amendment, whereupon the Commission will carry out a (re )assessment and, where appropriate, adopt a decision within three months. In the event, the Commission has, since the oral hearing, issued a decision dated 29 October 2014 approving the Partnership Programme proposed by the United Kingdom. Given the Commissions stance, the United Kingdom Government also, successfully, resisted a claim for disclosure of the communications between it and the Commission about the Partnership Agreement, as not relevant to any issue in this appeal. 137. No submission has been made to the Supreme Court at any stage that the Commission should be regarded as the judge of the present challenge made to the Secretary of States decisions, or that any decision that the Commission might make, or has now made, approving the Partnership Programme in its present form has or could have any effect on the challenge, if otherwise valid, to such decisions. Lord Sumptions statements in paras 10 and 24 of his judgment that the Commission is the mechanism of compliance envisaged in the Regulation is not based on any argument which was or could in the circumstances fairly be put before the Court. I am also unable to accept the further assertion that the Commission is able to review the merits of the Secretary of States value judgments in a way that is beyond the institutional competence of any court. There is no information at all whether or how the Commission has looked into the subject matter of the present challenges. The suggestion that it is beyond the institutional competence of any court, let alone a national court to review the merits of the Secretary of States value judgments furthermore begs the question whether the appellants present challenges are to value judgments. Courts, national and international, have a significant role in reviewing the conformity of administrative decisions with the legislative framework within which they are made. It is their role to consider the relevance of the considerations on the basis of which such decisions are taken, and their compliance with fundamental principles of equality and rationality. The Secretary of State and the Commission were both fulfilling administrative functions, the former at the national, the latter at a supranational level. The issue in detail 138. The critical issue on this appeal is whether the Secretary of States decisions were in conformity with the legislative framework. The appellants case on this falls under three heads: (i) the Secretary of State was obliged when making such decisions to take as their basis the relative economic needs and disparities of the regions, but in fact reached the decisions on a different basis; (ii) the decisions were in breach of the general EU principle of equality; (iii) the decisions were in breach of the general EU principle of proportionality. 139. In relation to (i), the Secretary of State accepts that the underlying purpose of Structural Funds is to reduce development disparities between regions and the Court of Appeal was, in my view correctly, content to assume that the objective of reducing economic disparities was a mandatory relevant consideration and that the Secretary of State was therefore required to have regard to the relative economic needs of the transition regions (para 88). The fund specific mission of the Structural Funds is under article 89(1) of the regulation the strengthening of economic, social and territorial cohesion in accordance with article 174 TFEU. This is to be pursued overwhelmingly through the goal of investment for growth and jobs (articles 89(2)(a) and 92(1) of the regulation) with reference to the specified thematic objectives set out in article 9 of the regulation. 140. In relation to (ii), the Secretary of State accepts that the principle of equality applies. The Court of Appeal stated the position before it as follows (para 65): 65. The equal treatment principle requires that comparable situations must not be treated differently and different situations must not be treated in the same way unless such treatment is objectively justified: see, for example, the Arcelor Atlantique case [2008] ECR I 9895, para 23. Justification is not in issue in this case. Accordingly, the only question is whether there was a failure to treat like cases alike and unlike cases differently. Later, in para 82, the Court of Appeal again noted that the Secretary of State does not rely on justification, but added: We acknowledge that, as a matter of legal analysis, there is a clear distinction between the fact of differential treatment and its justification. But in the circumstances of this case, as is clear from the evidence of Dr Baxter the dividing line is not easy to maintain. I will revert to Dr Baxters evidence later in this judgment. 141. In relation to (iii), the Secretary of State submits and the Court of Appeal agreed that proportionality can add nothing to a challenge based on the principle of equality or rationality, in the absence of some specific legal standard in the light of which it can gain greater content. This seems to me correct, and I shall proceed on that basis. 142. With regard to the two principal grounds which are therefore open to the appellants, the Secretary of State submits that both the challenged decisions involved complex evaluative judgments, which can only attract what may be described as a light standard of review. Referring to its previous decision in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437, [2012] QB 394, the Court of Appeal said (para 70) that: In principle, the more complex and the more judgment based the decision, the greater the margin of discretion [that] should be afforded to the decision maker. That too is a proposition which I accept as relevant, in any context where different institutions of the State, the administration and the courts, have different institutional competence and the courts are asked to review the administrations decision making in an area which is with the administrations particular competence. But that does not apply to, or exclude closer review of, a decision which is based on irrelevant considerations or fails to treat like cases alike. Further, the lack of prior consultation with the appellants, or with Merseyside and South Yorkshire, and the informality of the process by which the Secretary of State made his decisions, take this case outside the most extreme category of cases in which courts have expressed reluctance judicially to review public funding decisions. The first decision 143. Against this background, it is necessary to examine more closely the Secretary of States two impugned decisions. The first arose as follows. During the period 2014 2020, the only less developed regions are the two former convergence regions. Transition regions include not only the three former phasing out and phasing in regions, but also eight former competitiveness regions, including Northern Ireland. The total EU funding for the ERDF and ESF was divided between the three categories of region as follows. The total allocated to the United Kingdom for less developed regions was some 2.118 billion, for transition regions some 2.3266 billion and for more developed regions some 5.126 billion. 144. The overall funds allocated to the United Kingdom for the period 2014 2020 were (after allowing for inflation) reduced by 5% compared with 2007 2013. The Secretary of State was under article 93.2 permitted to transfer to the two less developed regions in the United Kingdom, that is Cornwall and the Scillys and West Wales and the Valleys, 3% of the budget which the EU had assigned to transition and more developed regions, and to split the amount so transferred between these two regions, achieving thereby an equal 16% cut in funding compared with the prior seven year period. The Secretary of State then took the amounts allocated to each of the four territorial units making up the United Kingdom that is England, Wales, Scotland and Northern Ireland in the period 2007 2013 and determined that each such territorial unit should receive the same amount as in that period, less a 5% reduction. 145. At this stage, Dr Baxter confirms in her first witness statement, that Ministers did not consider the split of funding within Scotland or England and that Ministers were aware that increasing the funding for the Devolved Administrations [ie in comparison with that which would have resulted from a region by region assessment] would mean less for certain regions in England, as allocations had to be made from a set budget category for each category of region. However, it was decided that this would be dealt with at the next stage of the allocation process and that only the big picture within the UK would be looked at when trying to distribute the cut fairly between the UK nations. 146. The first decision was taken after the Department of Business Innovation and Skills had calculated that an allocation to all United Kingdom regions on a basis similar to that used by the Commission to arrive at the figures set out in para 132 above would lead to England receiving 439m more than in the period 2007 2013, while Wales, Scotland and Northern Ireland would receive, respectively, 494m, 272m and 216m less. 147. As a result of the first decision: (a) Northern Ireland, a unit consisting of one transition region which had previously been a competitiveness region, received the same as it had received both in 2013 and (because it had been receiving monies on a flat line basis) in each year during the period 2007 2013 less 5%. (b) Highlands & Islands received the yearly average of its total receipts during the period 2007 2013, less 5%. This was effectively inevitable. The only other regions in Scotland were competitiveness regions, and the Secretary of State was not likely to (and after discussion with the Scottish Ministers did not) increase their allocation in order to reduce that of Highlands & Islands. (c) The allocation for West Wales and the Valleys was set as described in para 144, with the effect of allocating to the one remaining Welsh region, East Wales, a more developed region, the whole of the remaining amount allocated to Wales. The second decision 148. The second decision arose as follows. Within England there are in all nine transition regions. Seven of these are former competitiveness regions, and two are former phasing in regions, Merseyside and South Yorkshire. The Secretary of State determined that, taking the amount that each region has received in the year 2013 (not the annual average it had received over the whole period 2007 2013), each should receive a 20% uplift, reduced by 4.3% for technical assistance and for funding of the national offenders programme, making a final uplift of 15.7%. Regions in the more developed category received a 5% uplift, reduced again by 4.3% making a 0.7% uplift, while Cornwall and the Scillys received a 16% reduction. The effects of the two decisions 149. The combined effect of the two decisions was that, while Northern Ireland was guaranteed an allocation based, albeit not exactly, on an assessment of its actual needs during the prior period and while Highlands & Islands would receive an allocation based on the average of its receipts as a transitional region over the whole of the prior period, Merseyside and South Yorkshire received an allocation which was, in contrast, not referable to any assessment of its actual needs or its average receipts during the prior period, but based on the average of the aid which had been estimated as required by competitiveness regions in the prior period (since that was the basis of Merseysides and South Yorkshires receipt of aid in the year 2013). 150. By any measure of development and need, however, Merseyside and South Yorkshire still fall well below the average for competitiveness regions. The indicators of economic development selected by the Government itself for allocating funding in 2007 2013 were per capita business expenditure on research and development, start ups, qualifications, GVA per workforce job, percentages of working age population unemployed or inactive, percentages of working age population without qualifications and with NVQ level 1 qualifications. Applying such indicators, Merseyside and South Yorkshire are ranked third and sixth most deprived out of the total of 34 regions not falling into the convergence and phasing out categories in 2007 2013. Using the Commissions methodology, Merseyside and South Yorkshire would have received about 315m and 236m respectively, while on the Governments current approach, they would receive only 202m and 178m respectively, in each case for the whole period 2014 2020. It is common ground that, even on the basis of the calculation most favourable to the United Kingdom Government that the Secretary of State has been able to support, Merseyside and South Yorkshire would, if their entitlement during the period 2014 2020 were computed as if they had then been competitiveness regions, receive at least 10.3m and 24.1m more than they would be under the Governments present intended allocation. They submit that the figures would be much greater. GDP is not of course the only possible measure of any regions entitlement, and Lord Neuberger has identified variations in funding even between regions whose funding was arrived at on a comparable basis. But the use of inconsistent bases to arrive at the level of funding is on its face likely to lead to distortions, unless it can be justified by considerations relevant under Regulation 1303/2013. The combined effect of the two decisions was in my view to preclude this. 151. The further combined effect of the two decisions is that Merseyside and South Yorkshire will as transition regions receive funding calculated, as a matter of substance, on a different basis from that received by other English transition regions which were formerly competitiveness regions. First, by taking the year 2013 as the base for the seven former English competitiveness regions, the Secretary of State was taking as his base for those seven regions funding which applied in each of the years 2007 2013 and was calculated on a basis with a relationship to each such regions needs and characteristics. Second, the 2013 base reflected in the case of the seven former competitiveness regions the Governments deliberate policy of favouring northern regions over southern regions, which it was free to adopt in the period 2007 2013 in relation to regions which fell in that period into the competitiveness category. 152. In contrast, the 2013 base taken for Merseyside and South Yorkshire was derived from an average for United Kingdom competitiveness regions, which these two regions do not match. Secondly, their 2013 base was pre determined by the EU by Regulation (EC) No 1083/2006. It was not a figure which was (or could have been) uplifted to cater for the United Kingdom Government policy of favouring northern over southern regions. Yet on the evidence Merseyside and South Yorkshire are among the neediest of northern regions. 153. In the light of the above, the appellants are therefore right, I consider, when they observe that (a) the first decision committed a significant part of the transition funding to two particular transition regions (Northern Ireland and Highlands & Islands) on a basis which continued to give, subject only to a 5% reduction, the average level of funding received throughout the whole of the prior seven year period, (b) it did this without regard to the extent to which this would impact on the funding available for the new range of English transition regions (including seven former competitiveness regions) formed by the Commissions re categorisation of regions for the period 2014 2020 and (c) in reality there would be an adverse impact, since effectively preserving the pot for Northern Ireland and Highlands & Islands (less 5%) was bound to diminish the pot available for the nine English transition regions, including not only Merseyside and South Yorkshire, but also seven former competitiveness regions now entitled to enhanced funding as transition regions in the period 2014 2020. Lord Sumptions contrary view in paras 35 and 50 ignores the reduced size of the pot for the new category of transition regions embracing seven former competitiveness regions, once the previous allocation to Northern Ireland and Highlands & Islands was effectively ring fenced (less 5%), compared with the average funding they received throughout the whole prior seven year period, by the Secretary of States first decision. As to the second decision, the appellants are also right, in my opinion, in submitting that this allocated monies to Merseyside and South Yorkshire on a basis which, although superficially similar, was in fact fundamentally different from that applied to other English transition regions, as well as Northern Ireland and Highlands & Islands. 154. In her first witness statement, Dr Baxter identified the reasons for dividing the United Kingdoms Structural Fund allocation between the four territories constituting the United Kingdom. She stated that they were transparency, simplicity, consistency and a balance taking account of the status of the devolved administrations under the United Kingdoms constitutional settlement. However, none of these reasons relates directly to the fund specific mission of strengthening economic and social cohesion and the reduction in that connection of development disparities between regions or indeed with delivery of the Union strategy for smart, sustainable and inclusive growth or the thematic objectives introduced to contribute thereto (see paras 126 128 above). On the contrary, they involve an initial four way division, essentially for political reasons, which operates irrespective of the position in individual regions, and potentially and actually to the detriment of one or more English regions. Dr Baxters witness statement effectively accepts this (para 145 above). Regional disparities, and consideration of the mission and goal identified in article 89 of Regulation 1303/2013 were displaced by territorial and political considerations deriving from the United Kingdoms devolution settlements. In so far as she goes on to suggest that any adverse effect would or might be addressed at the second stage of decision making, I have already noted in para 153(c) that this would not have been practicable and in any event it was not done. 155. The Secretary of State seeks to make good this approach by reference to his view that there had been no significant change from the years 2006 2007 to the years 2013 2014 in the economic or other relevant differentials between different United Kingdom regions. Lord Sumption endorses this response in para 35, as does Lord Neuberger in para 67. But the response could only have been relevant, had the categorisation of and treatment of regions introduced by Regulation No 1303/2013 remained the same as it was in the previous period 2007 2013 under Regulation No 1083/2006. This was not the case. A division of total available funding between the four territories of the United Kingdom in the period 2014 2020 in the same totals (less 5%) as had applied throughout the whole period 2007 2013 was bound to lead to anomalies in the light of (a) the re categorisation of regions under Regulation No 1303/2013, (b) the recognition of seven former competitiveness regions as meriting enhanced treatment as transition regions, along with Merseyside and South Yorkshire, and (c) the different bases and levels of funding which different transition regions would necessarily enjoy in the period 2014 2020 compared with the period 2007 2013. The consistency and balance involved in giving each devolved administration the same amount (less 5%) were in fact bound to lead to inconsistency and imbalance. Two unlike situations (those existing in the periods 2007 2013 and 2014 2020) were treated alike, in a manner and with results that none of Dr Baxters four reasons justifies. 156. Reference was made in argument to the Court of Justices decision in (Case C 428/07) R (Horvath) v Secretary of State for Environment, Food and Rural Affairs [2009] ECR I 6355. But that decision turned on the constitutional settlement involved in devolution. It was of its essence that the devolved administrations had under the relevant devolution arrangements the primary responsibility for implementing the common agricultural policy, and on that basis the Court of Justice held that divergences between the measures provided for by the various administrations cannot, alone, constitute discrimination (para 57). In para 56 the Court distinguished discrimination resulting from a measure adopted by that Member State implementing a Community obligation, referring in this regard to its decision in Joined Cases 201/85 and 202/85. Further, the relevant measure expressly required and permitted Member States to define, at national or regional level, minimum requirements for funding support, a provision which the court interpreted as expressly recognising the possibility for the Member States, to the extent authorised by their constitutional system or public law, to permit regional or local authorities to implement Community law measures, by defining such minimum requirements. 157. The present case is critically different. The Structural Funds are allocated to the United Kingdom, primarily to strengthen its social and economic cohesion. The Secretary of State retains responsibility for the internal allocation of the Structural Funds within the United Kingdom. That he consulted with the devolved administrations in relation to the decisions which he took does not affect this, or alter his duty to avoid discrimination between those affected by his decisions. If he chose to divide up the total funding available between territories of the United Kingdom, he was obliged to do so in a way which was consistent with the fund specific mission of cohesion and the goal of growth and jobs set by Regulation No 1303/2013, and would lead to like cases being treated alike, and unlike cases differently, across the whole United Kingdom. The mathematical division between the four territories of the funding allocated to the United Kingdom for the period 2014 2020 was, as noted in para 155 above, bound to lead to discrepancies detrimental to cohesion, in particular when arrived at in disregard of the re categorisation of regions effected by Regulation No 1303/2013. 158. The appellants challenge to the Secretary of States decisions, on the basis of the discrepancies to which they lead between the bases of allocation to Merseyside and South Yorkshire and to other regions within the United Kingdom is, I consider, also made good. All transition regions must in my view be regarded as comparable, and on this basis differences in treatment between them require to be considered and justified. The Secretary of State appears to have foregone any case of justification in the courts below, but, even if justification is treated as a live issue or an issue which is in the present context inextricably linked with comparability, I do not consider that the difference in treatment has been shown to be legitimate. 159. Merseyside and South Yorkshire were given an allocation which took as relevant funding they received in 2013 by reference to an average for competitiveness regions, which clearly did not reflect their position or needs. Highlands & Islands on the other hand received funding based on the average of the tapered funding they received over the whole 2007 2013 period. They were both transitional regions. Their funding reduced in each case to the same level in 2013. Highlands & Islands was admittedly a phasing out region, of whom it could be said that in 2006 their GDP had been less than 75% of that of the original 15 EU Member States. This could not be said of Merseyside and South Yorkshire and they were only transitional regions because they had been Objective 1 regions in the period 2000 2006. But, nevertheless, funding in the period 2007 2013 was in each case arranged on the basis that it reduced to the average for competitiveness regions by 2013. There was no reason to assume, without analysis, that the needs of Highlands & Islands merited a complete preservation (subject only to a 5% reduction) of their average funding in the period 2007 2013, whereas Merseyside and South Yorkshire required no more than the preservation with a 15.7% uplift of their very low level funding in the year 2013, based on an average which did not on any view reflect their actual position. There is (with respect to Lord Sumptions comment in para 42 about additional funding) no basis for concluding that Merseyside and South Yorkshire received (but Highlands & Islands did not) some sort of uncovenanted bonus through the higher early funding allocated to them during the prior period 2007 2013 which should now be carried forward as a form of debit to their account in respect of the period 2014 2020. Differences in the co financing received in the period 2007 2013 between phasing out regions (which had only to find 33.33p for every pound of EU funding) and phasing in regions (which had to match EU funding pound for pound) play against rather than for continuing to award Highlands & Islands funding on a more favourable basis than Merseyside and South Yorkshire during the period 2014 2020 when both are now transition regions. 160. Lord Sumptions reference to additional funding and much of paras 20, 28, 37 and 42 44 of his judgment are focused on a case which was originally advanced by the appellants that Merseyside and South Yorkshire should, like Highlands & Islands, have received funding by reference to an average of what they had received in the period 2007 2013. However, save to highlight the obvious disparity with the funding of Highlands & Islands, the appellants in their case before the Supreme Court focused on the disparity arising from the use of the base year 2013. In that respect, in my opinion, the appellants have made good their challenge to the Secretary of States decisions. There was no good reason for awarding funding on the basis of the same 15.7% uplift over the 2013 level both in relation to English transition regions which had been competitiveness regions and to Merseyside and South Yorkshire which had not been, but whose funding in 2013 had been based on an average which did not reflect their actual position. Contrary to Dr Baxters statement in para 54 of her first witness statement, the result was not to treat all English Transition regions in the same way, since the nature of the 2013 base differed significantly between them. 161. Dr Baxter states, in her first witness statement, para 49, that attention was given to the possibility of using, indeed that Ministers did see a strong case for using, a basket of indicators based on the latest economic data to determine the allocations within England during the period 2014 2020, together with applying a suitable safety net. She says that this option was rejected because it would have led to too great a shift of resources from north to south, and would have had to be countered by a safety net which, she suggests, would have taken one back to the present position. But an assessment of actual development needs would have avoided the use of 2013 allocations as a base for transition regions, and would have meant that Merseyside and South Yorkshire would have been treated on the same basis as other English transition regions. Further, in circumstances where, as a matter of general policy, a shift in funding from south to north was desired, that could and would then have been given effect in relation to all English regions, including Merseyside and South Yorkshire. The actual basis of allocation fails to give Merseyside and South Yorkshire the benefit of any such policy. Any additional safety net could also have been applied on a basis which affected all English transition regions in like fashion. 162. In proceeding as he did, therefore, the Secretary of State in my view gave priority to irrelevant considerations (the maintenance in the period 2014 2020 of similar funding, less 5%, for each United Kingdom territory to that which obtained in the period 2007 2013, when the re categorisation of regions during the current period makes the comparison inappropriate), failed to treat like situations alike (although all were transition regions, Merseyside and South Yorkshire were treated quite differently from Northern Ireland and Highlands & Islands) and treated unlike situations alike (by taking 2013 as an appropriate base for funding for all English transition regions, although it had been arrived at in the case of Merseyside and South Yorkshire on a quite different basis bearing no relationship to their actual needs, in contrast to the basis on which it had been arrived at in the case of other transition regions). Whether the matter is viewed under EU law or at common law, these are manifest flaws which are neither problems of value judgment nor fall within the margin of discretion undoubtedly due when value judgments are in issue. 163. I would only add that, even if I had arrived at a different view with regard to the legitimacy of the first decision, the discrepancy in the bases on which funding was allocated to different English transition regions would still have led me to conclude that the second decision was illegitimate. 164. I have also had the benefit of reading the judgment prepared by Lord Carnwath, who reaches the same conclusions as I do and with whose reasoning in paras 176 187 I find myself in substantial agreement. 165. It follows that, in my opinion, the appeal should be allowed, and the Secretary of State required to reconsider and re determine the allocations between all the transition regions within the United Kingdom in the light of the guidance given in this judgment. LORD CARNWATH: 166. I agree with Lord Mance that this appeal should be allowed, substantially for the reasons given by him. While I agree also with much of Lord Sumptions analysis, I am not persuaded that he provides an adequate answer to the essential complaints made by Mr Coppel QC. In the circumstances I will confine myself to some comments on the correct general approach, and a short explanation of my reasons for disagreeing with the majority. General approach 167. Equal treatment and proportionality are of course well established principles of EU law, but they are not the starting point. Whether under European or domestic law, such general principles have to be seen in the context of the legislative scheme in question. I agree with the Court of Appeal (para 57) that these decisions were concerned with matters of broad economic, social and political judgment, for which the objectives were widely defined. As they said, it is classic territory for affording the decision maker a wide margin of discretion (or appreciation), where the court should only interfere if satisfied that the decisions were manifestly inappropriate or manifestly wrong. On the other hand, the lack of formality in the decision making process distinguishes the case, for example, from domestic authorities where public funding decisions have been subject to review in Parliament, and the courts have accordingly a very restrictive view of the scope for judicial review (see R v Secretary of State for Environment, Ex p Hammersmith and Fulham London Borough Council [1991] 1 AC 521). 168. The Court of Appeal referred to the exhaustive review of the relevant European and domestic authorities by all three members of the Court of Appeal in R (Sinclair Collis Ltd) v Secretary of State for Health [2012] QB 169. I do not find it necessary to analyse the differences of emphasis between the three judgments in that case, nor to enter into discussion about different formulations of the test. I agree with Lord Neuberger of Abbotsbury MR (para 200): The breadth of the margin of appreciation in relation to any decision thus depends on the circumstances of the case and, in particular, on the identity of the decision maker, the nature of the decision, the reasons for the decision, and the effect of the decision. Further, because the extent of the breadth cannot be expressed in arithmetical terms, it is not easy to describe in words which have the same meaning to everybody, the precise test to be applied to determine whether, in a particular case, a decision is outside the margin. It is therefore unsurprising that in different judgments, the same expression is sometimes used to describe different things, and that sometimes different expressions are used to mean the same thing. As the Court of Appeal said of the present case, the context is one where the treaty and the regulation together confer a wide area of policy choice on both the Commission and the member states, within the objectives set by them. Further, since responsibility is shared between the European and national agencies, there is no reason for any material differences in the approach of the courts to their respective decisions. 170. For similar reasons, it is unhelpful in the present context to look for a clear cut distinction between issues of comparability on the one hand and justification on the other. As the regulation makes clear (and as Mr Coppel QC ultimately accepted), the Secretary of State had a wide discretion as to the factors he could properly take into account in comparing the various regions for the purpose of allocating funds. This exercise cannot be equated to a simple comparison (as in R (Chester) v Secretary of State for Justice [2014] AC 271) between prisoners and non prisoners, or the issue of equality between men and women (specifically addressed in article 7 of the regulation). 171. None of the cases relied on by Mr Coppel QC seems to me sufficiently close to the present context to advance his argument for a more stringent test. For example he cites Franz Egenberger GmbH Molkerei und Trockenwerk v Bundesanstalt fr Landwirtschaft und Ernhrung (Case C 313/04) [2006] ECR I 6331 para 33, for the proposition that the general principle of equality requires that comparable situations must not be treated differently and different situations must not be treated alike unless such treatment is objectively justified. The case itself related to the narrow issue of where applications for butter import licences should be lodged, and provides no assistance in the present case. 172. The highpoint of his argument perhaps is in Socit Arcelor Atlantique et Lorraine v Premier Ministre (Case C 127/07) [2008] ECR I 9895, where the equal treatment principle was treated by the European court as applicable to a scheme for trading in greenhouse gas emission allowances. The issue was whether that principle had been breached by a scheme which applied to the steel sector but not to the plastics or aluminium sectors (para 24). The court accepted that the emissions from all these activities were in principle in a comparable situation, since they all contributed to greenhouse emissions and were capable of contributing to the functioning of a trading allowance scheme (para 34). It went on, first, to accept that the different treatment had caused disadvantage to the steel sector (paras 42 44), but, secondly, to hold that it was justifiable (not manifestly less appropriate than other measures), taking account of the broad discretion allowed to the Commission (paras 57 59), and the difficulties of managing a novel and complex scheme with too great a number of participants (paras 60ff). 173. The case offers some help to Mr Coppel QCs argument, to the extent that even in an area of broad policy discretion the court adopted a three stage analysis comparability, disadvantage, justification. The margin of discretion was applied only at the last stage. However, there the issue of comparability turned on a narrow view of the purpose of the scheme, which applied equally to all industrial emissions whatever the form of the industry. There is no parallel with the much more varied objectives of the present scheme, which allow a broad discretion at all stages, and make it impossible to draw a meaningful distinction between comparability and justification. 174. The Secretary of State no doubt needed to adopt rational and consistent criteria for his allocations, within the objectives set by the regulation, and he needed to be able to justify those criteria and their application as between the regions. But nothing is gained for this purpose by treating justification as a separate stage in the legal analysis. The court must look at the reasoning as a whole to decide whether it was affected by legal error, or otherwise manifestly inappropriate. Issues of equal or unequal treatment and proportionality may play a part in that assessment, in both European and domestic law (see Kennedy v Charity Commission [2014] UKSC 20, [2014] 2 WLR 808, para 54, per Lord Mance). 175. The danger of the formulaic approach advocated by Mr Coppel QC is that it may make it more difficult to separate the wood from the trees, and distract attention from the ultimate question, under EU law or domestic law: whether something has gone seriously wrong with the decision making process such as to justify the intervention of the court. The two decisions 176. It is unnecessary to repeat Lord Sumptions description of the two decisions. The essential complaint against the first decision is simply stated. The decision to start by dividing the UK allocation between the four jurisdictions had the effect of limiting the Secretary of States options to achieve fairness at the second stage, in a way which was not justified by anything in the scheme or objectives set out by the regulation. 177. The complaint against the second decision turns on the adoption of 2013 as a base for all transition regions. The appellant authorities from the two regions say that, by taking the 2013 figure as a base for all, the Secretary of State was not comparing like with like. In the previous round all the other transition regions had been competitiveness regions, but their allocations had been determined by reference to their relative economic and social circumstances, rather than the application of a single formula, and the allocations were constant throughout the period. By contrast the allocations of the two regions, as phasing in regions, had been determined, not by reference to their relative circumstances, but by a special formula set by the regulations; the last year was based on the national average for all competitiveness regions throughout the UK (regardless of relative strength). That meant that their last year did not reflect either their own circumstances relative to the other transition regions, nor in particular the extra funding allowed to the north in the previous period, to reflect its greater development needs a balance which had not changed in the interim. 178. This is explained most clearly in the evidence of Mr Eyres (para 33). Although the precise methodology for calculating allocations to the competitiveness regions in the previous period had not been disclosed, the government had confirmed that it took account of the greater development needs of the North and Midlands, and, as he understood, it had used a basket of indicators reflecting the relative deprivation of those areas. Had the allocations for 2013 been calculated on the same basis as the neighbouring regions they would have been allocated far in excess of the amounts resulting from the phasing in formula. He adds (para 50(3)): The Secretary of State seems to assume that the additional, transitional funding was awarded between 2007 2010, leaving the funding for 2011, 2012 and 2013 as the correct funding allocation for Merseyside and South Yorkshire. Yet this ignores the fact that the funds allocated in 2011, 2012 and 2013 were significantly below the level for Competitiveness regions in the North and Midlands, which had no protected status. This is because the allocation for 2013 was based on the 'national average for Competitiveness regions and takes no account of the GDP and high levels of deprivation within individual Competitiveness regions in North and Midlands, including within Merseyside and South Yorkshire themselves (which the Government did take into account when making 2007 2013 allocations to Competiveness regions). 179. In short, the appellants case can be reduced to two apparent anomalies which required explanation: (a) Alone of all the transition regions in the UK (including Highland & Islands, which had been also subject to a tapered funding regime in the previous period), the two regions were given no protection from a substantial reduction in funding (65%) as compared with the previous period taken as a whole; (b) Alone of all the English transition regions, their funding was fixed by reference to a base which had taken no account of their relative economic and other circumstances in the previous period. I will take them in turn. 180. The first, as respects the comparison with Highlands & Islands, was in large part attributable to the prior decision to adopt a two stage process. In itself there could be no objection to the Secretary of State taking account of the territorial divisions and governance arrangements within the UK. The provisions of the regulation confer a wide discretion on member states to take account of local structure at all levels. Although the decisions on funding were not themselves devolved, the devolved administrations had a clear interest in the process, both as partners, and (presumably) as possible sources of co financing. 181. I note also that no objection was taken on behalf of the two regions to the two stage process at the time of the first decision. On the contrary Mr Eyres records (para 40) that the Mayor of Liverpool, as Chair also of the Liverpool partnership, wrote to the minister welcoming the decision to amend the EU formula to provide a 95% safety net for devolved areas provided the same principles were applied in England. 182. However, the judge was wrong with respect to treat this as a socio economic decision by the Secretary of State which thereby absolved him of the need for further comparisons between different parts of the UK (para 72). That would in my view be contrary to the scheme of the EU regulation (and indeed to the devolution settlement), which gives him responsibility for the fairness and consistency of the distribution as between all the regions in the UK, so far as not predetermined by the Commission. Rightly, that was not how the case was argued by Mr Swift QC in the Court of Appeal or before us. As has been seen, his submission, in substance accepted by the Court of Appeal, turned on lack of comparability between phasing in and phasing out regions. 183. I agree that there were significant differences of detail between the two categories, as explained by Dr Baxter, although it is not clear why some of them were reasons for less favourable treatment for the two regions. For example, the fact that the co financing regime was more onerous for them seems on its face a point going the other way. However, none of these points addresses the main complaint. The reasons which led the Secretary of State to include Highlands & Islands in the 95% safety net by reference to the 2007 2013 funding as a whole, were apparently no less applicable to the two regions. That indeed was the point made by the Mayor of Liverpool at the time. Conversely, the main reason which led the Secretary of State to treat the two regions differently in this respect from the other English transition regions (that is, the higher funding for 2007 2013 overall, tapered down to the average competitiveness level) was in principle no less applicable to Highlands & Islands. 184. As Dr Baxter indicates, the Secretary of State was aware of this apparent discrepancy, but as far as Scotland was concerned he felt constrained (in practice if not in law) by the overall budget envelope that had already been set (para 62 of her witness statement). The idea of a safety net for the two regions was rejected because of the negative impact on the other transition regions. That with respect is little more than a statement of the obvious. If I take from Peter to give to Paul, it will no doubt have an adverse impact on Peter, but that says nothing about the balance of fairness as between the two. 185. Similar issues arise in respect of the second decision. Viewed by reference simply to a comparison with the other English transition regions (and ignoring Highlands & Islands), he was entitled to take account of the different funding regime in the previous period. Since the overall funding for the two regions in that period had been on a more generous basis than for the others, and since that was by definition special and transitional, there was no reason to carry it forward into the exercise for 2014 2020. Furthermore, if their figure for 2013 had been related in some way to their own circumstances (as was the case with the other transition regions), it might have formed a suitable base for the subsequent period. However, that was not the case. The 2013 figure for the two regions (as for Highlands & Islands) reflected the average of all the former competitive regions, a category which had included even the most prosperous regions (that is, those now categorised as more developed). 186. The Secretary of State was faced with a difficulty in that the transition regions were a new intermediate category, encompassing a relatively wide range of relative development (between 75% and 90% of the EU average). Had his distribution been based, as in the previous period, on a comparison of economic or other factors, within the scope of the regulation, it would have been very difficult to challenge. It is perhaps understandable that he preferred a more simple blanket approach to the new category, particularly as his view of the general economic balance had not changed. However, that could only be justified if he took steps to ensure that the two regions were dealt with on a comparable basis. His principal reason for his not doing so was, not a view as to the relative needs of the two regions as compared to the others, but again the negative impact for them of a 22% cut where they (and probably the Commission) had expected enhanced levels of funding. This, by implication, assumed a finite budget for England, in effect predetermined by the first decision. 187. I conclude that the criticisms made by the two regions of the decision making process, including both decisions, have not been satisfactorily answered. I do so with some hesitation in view of the risk of over simplification of some very complex issues and material. It matters not, in my view, whether this is expressed as an issue of unequal treatment or lack of proportionality under European law, or inconsistency and irrationality under domestic law, the anomalies are in my view sufficiently serious to have required explanation which has not been given, and which renders the resulting decisions manifestly inappropriate under EU and domestic principles. 394. The term manifestly inappropriate in European jurisprudence was traced back by Arden LJ (para 115ff) to R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023, a case relating to decisions implementing the Common Agricultural Policy. She showed that it has been treated as applicable also in appropriate cases to decisions of national legislatures or other decision makers (para 129).

The European Union distributes money from European Structural Funds to Member States in order to promote the overall harmonious development of the EU and in particular to reduce disparities between the levels of development of the various regions and the backwardness of the least favoured regions (Article 174 TFEU). Funds are allocated in seven year cycles. The previous two rounds were for 2000 2006 and 2007 2013. The most recent round was for 2014 2020 and took place pursuant to Regulation (EU) 1303/2013 (the 2013 Regulation). Regions within Member States are classified based on the relationship between their GDP per head and the EU average, with different categories used in each round. The European Commission notionally allocates funds to Member States according to a formula based on how many regions in each category they have, but there is no formula setting out how allocations are to be made within Member States. That decision is jointly determined under a Partnership Agreement which must be proposed by the Member State and approved by the Commission. In the UK this is the responsibility of the Respondent, the Secretary of State for Business, Innovation and Skills. In 2000 2006, Merseyside and South Yorkshire were both Objective 1 regions, corresponding to the current less developed category, with a GDP per head less than 75% of the EU average. They received the most generous level of funding under the UKs Partnership Agreement. In 2007 2013, there were two principal categories, convergence regions (with a GDP per head less than 75% of the EU average), and competitiveness regions (with a GDP per head greater than 75% of the EU average). However, the EU average GDP per head decreased due to the accession of 10 new Member States. There were carved out of the category of competitiveness regions two special categories commonly referred to as phasing out and phasing in regions. Phasing out regions were regions which would have been convergence regions but moved above the 75% threshold as a result of the reduction of the EU average. Phasing in regions were regions which moved above the 75% threshold and would have done so in any event. Merseyside and South Yorkshire were both phasing in regions in 2007 2013. Highlands & Islands was a phasing out region. In order to ease the transition to the higher category and the consequent reduction of support, both phasing in and phasing out regions were eligible for additional support from the Commission on a transitional and specific basis. That support tapered down over the course of the seven year period to the national average level of support for competitiveness regions in 2013. In 2014 2020, Merseyside and South Yorkshire became transition regions, with a GDP per head between 75% and 90% of the EU average. The UK received 5% less money overall for 2014 2020 than it had for 2007 2013. The Secretary of State had to decide how to allocate it. First, he decided that each of the four countries comprising the UK would have its overall funding reduced by 5% compared with the previous period. Northern Ireland, a single region, therefore had its funding cut by 5% altogether. Second, he decided that each English transition region would receive an allocation per year for 2014 2020 representing an increase of 15.7% on its allocation for 2013, the last year of the previous period. For Merseyside and South Yorkshire, these decisions resulted in a 61% cut in funding altogether compared with the whole of the 2007 2013 period. This was because the new allocations were based on allocations for 2013, and therefore took no account of the transitional funding received in the earlier period. In Scotland, Highland & Islands had its funding cut by 5% altogether. This was the result of a decision made by the Secretary of State in consultation with the Scottish Ministers. The Commission has now approved the Secretary of States proposals. The Appellants say that Merseyside and South Yorkshire have unfairly been treated differently from: (i) the non English transition regions of Northern Ireland and Highland & Islands; and (ii) other English transition regions. Their arguments failed before Stewart J and in the Court of Appeal. They now appeal to the Supreme Court. The Court dismisses the appeal by a 4 3 majority (Lord Mance, Lord Carnwath and Lady Hale dissenting). Lord Sumption and Lord Neuberger both give reasoned judgments for the majority. Lord Hodge agrees with Lord Sumption and Lord Clarke agrees with both Lord Sumption and Lord Neuberger. Lord Mance and Lord Carnwath give dissenting judgments. Lady Hale agrees with Lord Mance and Lord Carnwath. The majority judgments Lord Sumption notes that the allocation made by the Secretary of State is amenable to judicial review, but a court should be cautious about intervening because it: (i) was a discretionary decision of a kind courts have traditionally been reluctant to disturb; (ii) involved particularly delicate questions about the distribution of finite domestic and EU resources, in which the legitimacy of the decision making process depends to a high degree on ministers political accountability; and (iii) has been approved by the Commission [21 24]. Lord Neuberger agrees that this is classic territory where executive decisions should be afforded a wide margin of discretion, but emphasises that the fact that a matter is one for democratic decision does not remove the need for judicial oversight [61 65]. Lord Sumption holds that the ultimate question for the court is whether there is enough of a relevant difference between Merseyside and South Yorkshire on the one hand and the remaining transition regions on the other to justify any difference in treatment [25 29]. Lord Neuberger analyses the Appellants objections as comprising two procedural attacks and two outcome attacks [52 60]. As to the first decision, to allocate to each of the UKs four countries 95% of what they had received for the previous period, Lord Sumption says that the Secretary of State did not unjustifiably discriminate. He was entitled to have regard to the constitutional settlement as between the component countries of the United Kingdom; nothing suggested that any countrys position had significantly changed since the last allocation; and a decision based on broad qualitative considerations rather than purely GDP per head is consistent with the 2013 Regulation [30 36]. Lord Neuberger agrees that it was procedurally legitimate for the Secretary of State to take into account the increasingly decentralised nature of UK administration and the political realities of devolution [75 78]. The disparities in outcome between Merseyside and South Yorkshire on the one hand and Highland & Islands and Northern Ireland on the other give pause for thought, but, bearing in mind the Secretary of States margin of discretion and the relevance of factors other than GDP per head, those disparities do not make the decision unlawful [87 99]. As to the second decision, to use 2013 as a baseline for the 2014 2020 allocations for English transition regions, Lord Sumption and Lord Neuberger both point out that the additional funding given to Merseyside and South Yorkshire in the previous period was transitional and specific and provided to smooth the passage to their being treated as competitiveness regions, so that basing the 2014 2020 allocations on their average allocations for the whole of 2007 2013 would have continued the impact of that funding beyond the period envisaged [37 44, 80 83]. For Lord Neuberger, there is force to the point that the use of the 2013 baseline deprives Merseyside and South Yorkshire of the uplift given to other northern regions, but this is outweighed by the discretionary and complex context and the legitimacy of the Secretary of States goals [84 85]. As a matter of outcome, he notes that other English transition regions received varying amounts unrelated to their GDP per head and that some allocations were less than or comparable to those of Merseyside and South Yorkshire [100 108]. Overall the Secretary of States approach is less considered and consultative than one would have hoped, but not unlawful [109 111]. The minority judgments Lord Mance and Lord Carnwath observe that the principle that a greater margin of discretion should be afforded where a decision is complex and judgment based does not exclude closer review of a decision which is based on irrelevant considerations or fails to treat like cases alike, particularly in light of the informality of the decision making process and (per Lord Mance) the lack of consultation in this case [142, 167]. Lord Mance explains that the combined effect of the two decisions was that Northern Ireland was guaranteed an allocation based on an assessment of its actual needs over the prior period, Highland & Islands received an allocation based on the average of its receipts as a transition region throughout the prior period, and the other English transition regions received allocations based on previous allocations calculated on the basis of each regions needs, including uplifts for northern regions. Merseyside and South Yorkshire, by contrast, received allocations without any uplift and not referable to any assessment of their actual needs or receipts over the prior period, even though by any measure they still fall well below the competitiveness region average [149 152]. The Secretary of States decision was unlawful because he took irrelevant considerations into account and treated like cases unalike and unlike cases alike [162]. Lord Carnwath agrees with Lord Mance [166]. He considers it illogical to deny to Merseyside and South Yorkshire the safety net protection given to Highland & Islands on the basis that it would lead to a 22% cut for the other English transition regions [180 186].

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These are three of five conjoined appeals which were heard by the Court of Appeal in Salford City Council v Mullen [2010] EWCA Civ 336, [2010] LGR 559. They are concerned with possession proceedings brought by a local authority in circumstances where the occupier is not a secure tenant under Part IV of the Housing Act 1985. Two of them, Leeds City Council v Hall (Hall) and Birmingham City Council v Frisby (Frisby), are cases where the claims for possession were made against tenants occupying under introductory tenancies entered into under Chapter 1 of Part V of the Housing Act 1996. In the third, London Borough of Hounslow v Powell (Powell), the claim for possession was made against a person who was granted a licence of property under the homelessness regime in Part VII of the 1996 Act. Permission to appeal was given in a fourth case, Salford City Council v Mullen. But the proceedings in that case were stayed to await the outcome of these appeals. Common to all three cases is the claim by each of the appellants that the property which is the subject of the proceedings for possession against them is their home for the purposes of article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides: Everyone has the right to respect for his private and family life, his home and his correspondence. Their case is that, to avoid a breach of article 8, the interference must be justified under article 8(2) as being necessary in a democratic society and that this means that it must be in accordance with the law, it must be for a legitimate aim and it must be proportionate to the aim that the local housing authority is seeking to achieve. They maintain that, as the court did not assess the proportionality of making the orders against them, there was a breach of their article 8 rights. The Court had the opportunity in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441 (Pinnock) of considering the application of article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti social Behaviour Act 2003). It held that article 8 requires a court which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 against a person occupying premises under a demoted tenancy as his home to have the power to consider whether the order would be necessary in a democratic society: para 2. Although Mr Arden QC submitted forcefully that it should not apply to introductory tenancies in view of their probationary nature, I would hold that this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a persons home for the purposes of article 8. There is a difference of view between the parties, however, as to its consequences, and in particular as to how cases of this kind should be dealt with in practice by the courts and local authorities. The Court recognised that cases of the type that was examined in Pinnock arise relatively rarely and that cases of the kind represented by these appeals, which involve possession orders in different and more common circumstances, were likely to provide a more appropriate vehicle for the giving of general guidance: paras 58 59. It was expected that the lawyers preparing for these appeals would have the opportunity of giving particular attention to the guidance that might usefully be given where possession is sought against introductory tenants and against applicants under the homelessness regime where there is no provision for the kind of procedure envisaged in Chapters 1 and 1A of Part V of the 1996 Act for introductory and demoted tenancies. I wish to pay tribute to counsel on all sides for the way in which they have taken full and careful advantage of that opportunity. The issues The Court of Appeal delivered its judgment in Salford City Council v Mullen [2010] EWCA Civ 336 on 30 March 2010. As Waller LJ explained in para 4, the court held that it was bound by what was said in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, para 110, as to the circumstances in which a county court might decline to make a possession order. They were limited to two situations: first, if it was seriously arguable that the law which enables the county court to make the possession order is itself incompatible with article 8 (which the Court of Appeal in Doherty v Birmingham City Council [2006] EWCA Civ 1739, [2007] LGR 165, para 28 called gateway (a)); and second, if it was seriously arguable that the decision of the public authority was (regardless of the tenants Convention rights) an improper exercise of its powers because it was a decision that no reasonable person would consider justifiable (which the Court of Appeal in Doherty called gateway (b)). So, where the local authority had fulfilled the requirements for the recovery of possession contained in the ordinary domestic law, a defence which did not challenge the law under which the order was sought as being incompatible with article 8 but was based on the proposition that the interference with the persons home was disproportionate should be struck out. Writing extrajudicially, Lord Bingham of Cornhill said of the Strasbourg jurisprudence that its strength lies in its recognition of the paramount importance to some people, however few, in some circumstances, however rare, of their home, even if their right to live in it has under domestic law come to an end: Widening Horizons, The Hamlyn Lectures (2009), p 80. There has never been any dispute about gateway (a). It can be traced back to Kay v Lambeth London Borough Council [2006] 2 AC 465, para 39 where, in head (3)(a) of his summary of the practical position, Lord Bingham described the first of the two grounds on which the court might consider not making a possession order as being that the law which required the court to make the order despite the occupiers personal circumstances was Convention incompatible. But gateway (b), albeit widened to some degree by what was said in Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, para 55, has always been controversial. The central issue which divided the parties in Pinnock was whether the proposition which was encapsulated in it should still be applied in the light of subsequent decisions of the European Court of Human Rights in McCann v United Kingdom (2008) 47 EHRR 913, osi v Croatia (Application No 28261/06) (unreported) given 15 January 2009, Zehentner v Austria (Application No 20082/02) (unreported) given 16 July 2009 and Pauli v Croatia (Application No 3572/06) (unreported) given 22 October 2009. This Court held that those cases, together with Kay v United Kingdom (Application No 37341/06) given 21 September 2010, The Times 18 October 2010, provided a clear and constant line of jurisprudence to the effect that any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to question the proportionality of the measure and to have it determined by an independent tribunal in the light of article 8: para 45. The decision in Doherty v Birmingham City Council had shown that our domestic law was already moving in that direction, and the time had come to accept and apply the jurisprudence of the European court. So, where a court is asked to make an order for possession of someones home by a local authority, the court must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact: para 49. It is against the background of that decision that the issues that arise in the present appeals must be considered. They can be summarised briefly at this stage as follows. (1) What is the form and content of the proportionality review that article 8 requires? (2) What procedural protections are implicit in article 8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced? (3) Can the court defer the delivery of possession for a period in excess of the maximum permitted by section 89 of the Housing Act 1980 if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility? (4) Can section 127(2) of the 1996 Act be read compatibly with the introductory tenants article 8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right? These issues are dealt with in paras 33 64. The correct disposal of each appeal will also have to be considered, having regard to the facts of each case. This is dealt with in paras 65 70. The statutory background As was explained in paras 5 7 of Pinnock, most residential occupiers of houses and flats owned by local authorities are secure tenants under Part IV of the Housing Act 1985. In those cases the tenant must be given a notice setting out the reasons why possession is sought, the tenant cannot be evicted unless the landlord establishes that one of the grounds for possession listed in Schedule 2 to the 1985 Act applies and, except in some specified categories of case where suitable alternative accommodation is available, the court is satisfied that it is reasonable to make the order. But certain types of tenancy are excluded from this regime. They are listed in Schedule 1 to the 1985 Act. They include two types of tenancy that were included in that Schedule by amendment: introductory tenancies referred to in paragraph 1A, added by paragraph 5 of Schedule 14 to the 1996 Act; and demoted tenancies referred to in paragraph 1B, added by paragraph 2(4) of Schedule 1 to the Anti social Behaviour Act 2003. In addition, paragraph 4 of Schedule 1 to the 1985 Act (as substituted by paragraph 3 of Schedule 17 to the 1996 Act) provides that a tenancy granted in pursuance of any function under Part VII of the 1996 Act, which deals with homelessness, is not a secure tenancy unless the local housing authority concerned has notified the tenant that the tenancy is to be regarded as a secure tenancy. The legislature has excluded these types of tenancy from the statutory scheme which applies to secure tenancies for very good reasons, which are firmly rooted in social policy. In seeking democratic solutions to the problems inherent in the allocation of social housing, Parliament has sought to strike a balance between the rights of the occupier and the property rights and public responsibilities of the public authority. The regimes that apply to introductory tenancies and demoted tenancies have been designed to address the problem of irresponsible or disruptive tenants whose presence in social housing schemes can render life for their neighbours in their own homes intolerable. The homelessness regime provides the local housing authority with the flexibility in the management of its housing stock that it needs if it is to respond quickly and responsibly to the demands that this pressing social problem gives rise to. Measures which would have the effect of widening the protections given to the occupiers by the statutes must be carefully tested against Parliaments choice as to who should, and should not, have security of tenure and when it should be given to them, if at all. Social housing law draws a clear distinction between cases where security of tenure has been given, and those where it has not. There are clear policy reasons why Parliament has denied security to certain classes of occupier. It is with this in mind that the homelessness and introductory tenancy regimes must now be described in more detail. (a) homelessness The duties of local authorities in relation to homeless persons are set out in Part VII of the 1996 Act. Ms Powell was provided with accommodation under section 193(2). That section applies where the local housing authority is satisfied that an applicant is homeless, eligible for assistance and has a priority need, and is not satisfied that he became homeless intentionally. In these circumstances section 193(2) imposes a duty on the local housing authority to secure that accommodation is available for occupation by the applicant. The duty ceases in various circumstances, such as if the applicant became homeless intentionally from the accommodation that was made available for his occupation or otherwise voluntarily ceases to occupy that accommodation as his only or principal home. Where the local housing authority decides that its duty under section 193(2) has ceased, the applicant has the right to request that it reviews its decision: section 202(1)(b). If the applicant is dissatisfied with the decision on review he may appeal to the county court on any point of law arising from the decision on review or, as the case may be, the original decision: section 204(1). Where an applicant has been found to be homeless and eligible for assistance but the local housing authority is also satisfied that he became homeless intentionally and has a priority need, it is under a duty to secure that accommodation is available for his occupation for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: section 190(2). As already noted, tenancies granted under Part VII of the 1996 Act are not secure tenancies unless the local housing authority has notified the tenant that the tenancy is to be regarded as a secure tenancy. So the local authority is not required under domestic law to establish any particular ground for the termination of the tenancy when seeking possession from a tenant on whom it has served a notice to quit who has not been so notified. The only procedural protections are to be found in the requirement under sections 3 and 5 of the Protection from Eviction Act 1977 that an order of the court must be obtained in order to recover possession and the requirement to give notice to quit in the form stipulated by that Act. Section 89 of the Housing Act 1980 provides that, when the court makes an order for the possession of any land (except in the circumstances set out in section 89(2)), the giving up of possession may not be postponed for more than 14 days or, in cases of exceptional hardship, to a date no later than six weeks after the making of the order. (b) introductory tenancies Mr Hall and Mr Frisby were tenants under introductory tenancies when the possession orders were sought against them. The regime under which they were granted these tenancies is set out in Chapter 1 of Part V of the 1996 Act. It was created in response to concerns among social landlords about anti social behaviour among their tenants. In April 1995 a consultation paper was issued in which views were sought on what were then described as probationary tenancies. The idea was that, as a probationary tenancy would be converted automatically into a secure tenancy only if it was completed satisfactorily, a clear signal would be given to new tenants that anti social behaviour was unacceptable and would result in the loss of their home: para 3.2. The White Paper Our Future Homes: Opportunity, Choice, Responsibility (Cm 2901, June 1995) identified the governments aims as being to encourage responsible social tenants and to protect the quality of life for the majority by supporting effective action against the minority of anti social tenants. Social landlords were to be given the means to act rapidly to remove tenants in the worst cases, as a measure of last resort. Section 124 of the 1996 Act provides that a local housing authority or a housing action trust may elect to operate an introductory tenancy regime. Section 124(2), prior to its amendment by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010 (SI 2010/866), provided : (2) When such an election is in force, every periodic tenancy of a dwelling house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was (a) a secure tenant of the same or another dwelling house, or (b) an assured tenant of a registered social landlord (otherwise than under an assured shorthold tenancy) in respect of the same or another dwelling house. The duration of an introductory tenancy is defined by section 125. The tenancy remains as an introductory tenancy until the end of the trial period which, unless shortened because the tenant was formerly a tenant under another introductory tenancy, lasts for the period of one year: section 125(2). It does not become a secure tenancy until the end of the trial period: Housing Act 1985, Schedule 1, paragraph 1A. The conversion then takes place automatically unless the introductory tenancy has been terminated. Section 127 deals with proceedings for possession of a property which is subject to an introductory tenancy. It provided (prior to its amendment by the Housing and Regeneration Act 2008): (1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling house. (2) The court shall make such an order unless the provisions of section 128 apply. (3) Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order. Section 128(1) provides that the court shall not entertain proceedings for the possession of a dwelling house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with that section. The notice must state that the court will be asked to make an order for possession, set out the reasons for the landlords decision to apply for such an order, specify a date after which proceedings may be begun, inform the tenant of his right to request a review of the landlords decision to seek a possession order and inform him that he can receive help or advice about the notice from a Citizens Advice Bureau, a housing aid centre or a solicitor: subsections (2) (7). Section 129 provides that a request for a review of the landlords decision to seek an order for possession of the dwelling house must be made within no more than 14 days of service of the notice of proceedings under section 128. The procedures of the demoted tenancy regime, which is the regime with which the Court was concerned in Pinnock, are closely based on the regime for introductory tenancies. The procedure governing the landlords right to recover possession during the probationary period is set out in sections 143D, 143E and 143F which, as was noted in Pinnock, para 13, are virtually identical to sections 127, 128 and 129 of the 1996 Act. But there is one important difference. A tenant under a demoted tenancy was previously a tenant under a secure tenancy, that tenancy having been brought to an end by a demotion order under section 82A of the Housing Act 1985 (as inserted by section 14 of the Anti social Behaviour Act 2003). The social purpose of the introductory tenancy regime is to allow local authorities to grant tenancies to new tenants without conferring security of tenure upon them until they have demonstrated that they are responsible tenants during the introductory period. This is a factor which will always be highly relevant in any assessment of the proportionality of the landlords claim for possession, as the effect of denying the claim will be that an introductory tenant who may not deserve a secure tenancy will automatically obtain one. The facts (a) Ms Powell As already noted, the local housing authority was satisfied that Ms Powell was homeless, eligible for assistance and had a priority need, and was not satisfied that she had become homeless intentionally. She was given a licence by the London Borough of Hounslow (Hounslow) to occupy a two bedroom ground floor flat at 15 Pine Trees Close, Cranford from 2 April 2007. She and her two sons Zaid, born on 3 April 2005, and Nour, born on 14 April 2006, were noted on the agreement as the occupiers. A claim for housing benefit was received by Hounslow on 4 April 2007 in which Ms Powell indicated that she had a partner named Mr Ahmad Sami who normally resided with her. By letter dated 11 May 2007 Hounslow wrote to Ms Powell stating that there were arrears of rent and warning her that this could lead to termination of her licence to occupy the property. But on 14 May a credit of housing benefit was received which reduced the arrears to zero. There was a further period when the payments fell into arrears, but they were fully cleared by a payment of housing benefit on 3 December 2007. On 5 February 2008 Hounslows housing benefit section wrote to Ms Powell asking her to provide it with information in connection with her claim. On 7 March 2008 it wrote to her stating that the information which it had asked for had not been provided. As a result the housing benefit claim was terminated from 23 December 2007. On 10 March 2008 Hounslows income recovery officer wrote to Ms Powell informing her that there were arrears of licence payments and asking her to attend for an interview on 17 March 2008. Ms Powell did not attend as she had an interview at about the same time and on the same day with the Department of Work and Pensions. On 17 March 2008 Hounslow sent a letter to Ms Powell with a notice to quit. On 20 March 2008 she attended its offices and discussed the arrears with one of its officers. On the same day a letter was sent to her setting out the possible effect on Hounslows homelessness duty towards her were she to be evicted due to rent arrears. On 28 April 2008 Hounslows housing benefit section sent Ms Powell a housing benefit form. It was received on 12 May 2008 and payment of housing benefit was resumed on 26 May 2008. But there were substantial arrears of rent, represented by some 11 weeks rent, which were not covered by the initial credit of housing benefit and which remained unpaid. On or about 19 September 2008 Hounslow issued a claim for possession of the premises, relying on the notice to quit dated 17 March 2008. It was explained that there were arrears as at 30 June 2008 of 3,536.39. The matter came before Deputy District Judge Shelton on 14 May 2009, who heard evidence from witnesses, including Ms Powell. He found that the measures that had been taken by Hounslow were reasonable and proportionate (in the Doherty sense), and granted possession of the premises to Hounslow. Having heard submissions as to her personal circumstances, he required Ms Powell to give possession of the property on or before a date 14 days after the date when the order was made. Ms Powell was granted permission to appeal against the judges order by Mummery LJ on 2 July 2009, with a stay of execution on condition that Ms Powell paid off the arrears at 5 per week. Her appeal was heard as one of five appeals by the Court of Appeal in March 2010. It held that the decision in Ms Powells case was lawful, as the circumstances were not highly exceptional in the context of the homelessness legislation: [2010] EWCA Civ 336, para 76. Her appeal was dismissed and the judges order was stayed pending the filing of a notice of appeal to this Court. Ms Powells current position is that she is 23 years old and that her household consists of herself, her partner Mr Ahmad Sami and their four children, Zaid who is now 5, Nour who is now 4, Taysier who was born on 13 July 2007 and is now 3, and Laila who was born in July 2009 and is now 1. The family is in receipt of various benefits including housing benefit which covers all of the rental liability. In December 2009 the family was moved from 15 Pine Tree Close so that disrepair within the premises could be dealt with. Work was completed in April 2010, and the family returned to the premises and has remained in occupation ever since. (b) Hall Mr Hall became an introductory tenant of property at 147 Leeds and Bradford Road, Bramley, Leeds of which he was granted a sole tenancy by Leeds City Council (Leeds) on 21 April 2008 and where he lives alone. Allegations were made of noise nuisance and anti social behaviour by Mr Hall and by visitors to the property. The behaviour which was complained of was mainly of noise nuisance from loud music and television and the banging and slamming of doors. Mention was also made of shouting, screaming and arguing, banging on the communal door and ringing a neighbours doorbell at night and in the early hours of the morning. It was also said that Mr Hall had engaged in threatening and intimidating behaviour and had been verbally abusive towards his neighbours. On 1 July 2008 a noise abatement notice was served on him. He did not appeal against this notice, and he appears to have disregarded it as complaints continued to be received. On 28 November 2008 Leeds served a notice of proceedings for possession on him under section 128 of the 1996 Act. A review was sought, and the notice was withdrawn following the review. Leeds continued nevertheless to receive allegations of noise nuisance and anti social behaviour, so on 6 March 2009 it served a further notice of proceedings for possession on Mr Hall. He again requested a review, but this time the review hearing upheld the service of the notice. When the claim for possession came before His Honour Judge Spencer QC in the county court on 6 August 2009 the appropriateness of the notice was not challenged, nor was its validity. Mr Hall accepted in a statement that was produced for the trial that there may have been occasions when he had played loud music and that, when his now ex girlfriend visited him and they drank alcohol together, they would sometimes argue. He claimed that he had been drinking excessively because he had been suffering from depression and said that he had been receiving support from an organisation which supports vulnerable people who were having difficulty in maintaining their tenancies. He asked the court to consider whether matters occurring after the review could provide a basis for challenging Leeds decision to seek possession. The judge held that he could not consider anything occurring after the date of the review because section 127(2) of the 1996 Act provides that when, as happened in this case, the tenant has been served with a notice of proceedings that complies with section 128, the court shall make the order. He made an order for possession, the effect of which was that Mr Hall was required to give possession of the property on or before a date 28 days after the date when the order was made. He gave Mr Hall permission to appeal, and stayed execution of the order for possession pending the appeal. On 21 September 2009 Mr Hall lodged a notice of appeal and his appeal was heard together with that of Ms Powell and Mr Frisby as one of five appeals by the Court of Appeal (Waller, Arden and Patten LJJ) in March 2010. The court said that the judge ought to have considered whether the facts that had become known after the review made it arguable that the decision to pursue the proceedings was unlawful and in fact held that this was unarguable. This was because tenants are on probation under the introductory tenancy scheme, because the review was not challenged and because there was no basis for arguing that it was unlawful for a local authority to refuse to change its mind by reference to facts which simply sought to demonstrate that the occupiers behaviour had improved: [2010] EWCA Civ 336, para 79. The appeal was dismissed and the judges order was stayed for pending the filing of a notice of appeal to this Court. Mr Hall remains in occupation of the property. (c) Mr Frisby Mr Frisby became an introductory tenant of property at 9 Hebden Grove, Hall Green, Birmingham under a tenancy agreement with Birmingham City Council (Birmingham) dated 23 April 2007. Birmingham received complaints of excessive noise, including singing, music and banging emanating from the property. It served a noise abatement notice on Mr Frisby on 19 November 2007 which permitted proceedings to be brought for a warrant to confiscate sound producing equipment. On 4 February 2008 it served a notice under section 125A of the 1996 Act which had the effect of extending the trial period of the tenancy by six months to 22 October 2008. Mr Frisby was advised of his right to seek a review of the decision to extend his introductory tenancy but he did not do so. Having received further complaints of noise, Birmingham executed a warrant under the Environmental Protection Act 1990 and seized and removed sound producing equipment from the property. On 2 May 2008 Birmingham served a notice of proceedings for possession on Mr Frisby under section 128 of the 1996 Act. He requested a review of the decision to seek the order. When the review panel convened he raised a number of issues and the panel decided to adjourn the hearing as they needed further information. He did not attend the resumed hearing which proceeded in his absence, and the decision to commence proceedings was upheld. On 17 September 2008 Birmingham commenced proceedings for possession in Birmingham County Court. Mr Frisby filed a defence in which it was averred that Birmingham was amenable to judicial review and that the decision to seek possession was an improper exercise of its common law powers and an interference with his rights under article 8. The possession claim was heard by District Judge Gailey on 3 July 2009. He held in favour of Birmingham and struck out Mr Frisbys defence. But he acceded to an application that he should not make a possession order there and then but should first hear argument as to whether or not he should adjourn the proceedings to enable an application for a judicial review to be brought in the administrative court. On 27 October 2009 Mr Frisby was given permission to appeal against the judges decision, and the matter was referred to the Court of Appeal under CPR 52.14. As in the cases of Ms Powell and Mr Hall, his appeal was heard as one of five appeals by the Court of Appeal in March 2010. Having allowed certain additional expert evidence to be admitted, it dismissed the appeal: [2010] EWCA Civ 336, para 80. The judges order was stayed pending the filing of a notice of appeal to this Court. Mr Frisby remains in occupation of the property. The form and content of the proportionality review The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupiers eviction is a proportionate means of achieving a legitimate aim. But it will, of course, be necessary in each case for the court first to consider whether the property in question constitutes the defendants home for the purposes of article 8. This is because it is only where a persons home is under threat that article 8 comes into play: Pinnock, para 61. It is well established in the jurisprudence of the Strasbourg court that an individual has to show sufficient and continuing links with a place to show that it is his home for the purposes of article 8: Gillow v United Kingdom (1986) 11 EHRR 335, para 46; Buckley v United Kingdom (1996) 23 EHRR 101, 115, para 54; see also Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, paras 9, 61 68. In Pauli v Croatia, para 33 the court said: Home is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a home which attracts the protection of article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place. This issue is likely to be of concern only in cases where an order for possession is sought against a defendant who has only recently moved into accommodation on a temporary or precarious basis. The Leeds appeal in Kay v Lambeth London Borough Council [2006] 2 AC 465, where the defendants had been on the recreation ground in their caravan for only two days without any authority to be there, provides another example of a situation where it was not seriously arguable that article 8 was engaged: see para 48. In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8. (a) homelessness The first question is whether in a case where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession, there is a requirement for an independent determination by a court of the issue of proportionality. In Pinnock it was held that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a persons home: para 63. This is so even if the defendants right of occupation has come to an end: Pinnock, para 45, applying McCann v United Kingdom, para 50; osi v Croatia, para 22; Zehentner v Austria, para 59; Pauli v Croatia, para 43; and Kay v United Kingdom, para 68. But it was also held that, as a general rule, article 8 need only be considered if it is raised by or on behalf of the residential occupier, and that if an article 8 point is raised the court should initially consider it summarily and if it is satisfied that, even if the facts relied on are made out, the point would not succeed it should be dismissed. Only if it is satisfied that it is seriously arguable that it could affect the order that the court might make should the point be further entertained: para 61. I would hold that these propositions apply as much in principle to homelessness cases as they do to demoted tenancies. It follows that in the great majority of cases the local authority need not plead the precise reasons why it seeks possession in the particular case. But if an article 8 defence is raised it may wish to plead a more precise case in reply. Mr Luba QC accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so: see also Pinnock, para 54. Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlords public responsibilities. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order. If the threshold is crossed, the next question is what legitimate aims within the scope of article 8(2) may the claimant authority rely on for the purposes of the determination of proportionality and what types of factual issues will be relevant to its determination. The aims were identified in Pinnock, para 52. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement. So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupiers personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44. Mr Underwood QC drew attention to the fact that there was no express provision in Part VII of the 1996 Act which empowers a court to refuse to grant a possession order to the local authority where the occupier is accommodated following an exercise of the authoritys functions under that Part of the Act. He said that this was because Parliament had taken a positive decision not to provide secure tenancies to persons who were accommodated under the homelessness provisions unless the local authority chooses otherwise. Part VII was intended to be a life line for those who had nowhere to live; it uses accommodation which may be needed quickly for other cases; an occupier who is evicted through no fault of her own will be accommodated elsewhere; and if there is an issue about fault there is a right of review and of appeal. The thrust of this part of his argument was that it was not possible under the scheme of Part VII to meet the article 8 procedural requirement in a way that was called for by the decision in Pinnock. The answer to this argument is to be found in the fact that there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. Mr Luba then said that each of the exceptions to the security of tenure regime was there for a particular social housing reason. It was material to a consideration of the issue of proportionality, therefore, for the court to know whether the local authoritys reason for seeking a possession order was relevant in that context. In the case of an occupier who had been provided with accommodation under Part VII, seeking a possession order to enable the local authority to perform its homelessness functions, such as moving a family whose numbers had reduced to smaller accommodation, the case for granting the order would in the overwhelming number of cases be proportionate. But if the local authoritys decision was based on other factors such as rent arrears which were not related to the performance of its homelessness functions, it was not enough to tell the court that it was the local housing authority and to rely on the two legitimate aims. He said that a structured approach was required to the issue of proportionality so that the interests of the local authority could be balanced against that of the occupier: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, paras 19 20. Support for this was to be found in Zehentner v Austria, para 56 where the court said that, while it was for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to its review for conformity with the requirements of the Convention. A structured approach of the kind that Mr Luba was suggesting may be appropriate, and indeed desirable, in some contexts such as that of immigration control which was the issue under discussion in Huang v Secretary of State for the Home Department. But in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of social policy, so as not to provide the occupier with a secure tenancy it would be wholly inappropriate. I agree with Mr Stilitz QC for the Secretary of State that to require the local authority to plead its case in this way would largely collapse the distinction between secured and non secure tenancies. It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area. In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court. The decision of the local authority to seek possession in a homelessness case will, of course, have been taken against the background of all the advice and assistance that the provisions of Part VII of the 1996 Act require to be given to the applicant. It is unlikely, as the course of events in Ms Powells case demonstrates, that the reason why it has decided to take proceedings for eviction will not be known to the tenant. The right to request a review of the decisions listed in section 202 and the right of appeal under section 204 are further factors to be taken into account. They provide the tenant with an opportunity to address any errors or misunderstandings that may have arisen and to have them corrected. She will have a further opportunity to raise such issues as a judicial review challenge by way of a defence in the county court. But that is a matter for the tenant, not for the local authority. There is no need for the court to be troubled with these issues unless and until, at the request of the tenant, it has to consider whether it should conduct a proportionality exercise. There may, as was pointed out in Pinnock, para 53, be cases where the local authority has a particularly strong or unusual reason for wanting to obtain possession of the property. It may think it desirable to inform the court of this fact so that it can take account of it in addition to the two given legitimate aims when it is determining the issue of proportionality. There is no reason why it should not ask for this to be done. But, if it wishes to do so, it must plead the reason that it proposes to found upon and it must adduce evidence to support what it is saying. The particular grounds on which it relies can then be taken into account in the assessment. No point can be taken against the local authority, however, if it chooses not to take this course and to leave it to the tenant to raise such points as she wishes by way of a defence. (b) introductory tenancies The above analysis applies equally to introductory tenancies. It cannot be said in their case that there is nothing in the statutory scheme which prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. Section 127(2) is a direction to the contrary. But, for the reasons set out in paras 50 56 below, that subsection can be read and given effect so as to enable the county court judge to deal with a defence that relies on an alleged breach of the defendants rights under article 8. As to what this entails, the twin legitimate aims that were held in Pinnock to justify seeking a possession order in the case of demoted tenancies are just as relevant in the case of introductory tenancies. The question for the court will always be whether the making of an order for possession in their case too would be lawful and proportionate. The question as to what the procedural requirements are in the case of introductory tenancies must be judged against the fact that the tenant has a statutory right to request a review of the local authoritys decision to seek possession under section 129 of the 1996 Act. This strengthens the grounds for rejecting the structured approach to the issue of proportionality contended for by Mr Luba. As has already been stressed, the regime that applies to introductory tenancies has been deliberately designed by Parliament so as to withhold enjoyment of the right to a secure tenancy until the end of the trial period. In the ordinary case, as in cases of homelessness, the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances, and it is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration. If this test is not met, the order for possession should be granted. Procedural protections The Court was invited to answer a series of practical questions which were designed to obtain advice as to the course that should be followed in homelessness cases to enable the occupier to make representations before or after service of a notice to quit and to enable the tenant to know the reasons why possession was being sought. Drawing upon the practice of pre action protocols, Mr Luba said that the procedural dimensions of article 8 could best be satisfied by requiring that, before possession proceedings are begun, the non secure occupier knows why the proceedings are being initiated and has an opportunity to make representations to the official charged with making the decision whether to bring proceedings. The Court was also invited to answer a series of questions directed to the way claims for possession in the case of introductory tenancies should be dealt with procedurally in the county court. Detailed questions as to the way claims should be dealt with procedurally are best addressed in the light of facts and circumstances arising from the way proceedings are actually being handled in practice. Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve. The statutory regimes that are in place must also be taken into account. These are not cases where the defendants were granted secure tenancies. There is no statutory obligation to give reasons with the notice to quit in homelessness cases, and the local authority does not have to justify its motives for seeking a possession order. It is not obvious that pre action protocols have a place in proceedings of this kind. Furthermore, on the facts of the present cases there is no real issue that needs to be addressed. Ms Powell was given warnings about her rent arrears and an opportunity to attend for interview and she discussed the problem of arrears with one of Hounslows officers. The notice to quit was accompanied by a letter giving reasons, and the claim for possession explained that there were arrears. The common law requirement of fair notice was, very properly, observed in her case by Hounslow and none of the steps that they took have been criticised as inadequate. As for the cases of Mr Hall and Mr Frisby, the local authorities told them that they had received complaints of excessive noise, noise abatement notices were served on them against which they did not appeal and in Mr Frisbys case offending equipment was removed from the property. The reasons for the decision to apply for a possession order were set out in the notice of proceedings as required by section 128(3) and the tenants were informed of their right to request a review, all as required by section 128(6). In R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, para 103 Waller LJ said that where a review has taken place it should be the norm for the local authority to spell out in affidavits before the county court how the procedure was operated, how the hearing was conducted and the reason for taking the decision to continue with the proceedings. As Mr Luba pointed out, that suggestion was directed at the task of enabling the judge to decide whether to adjourn the claim so that a judicial review of the decision might be sought in the High Court. He invited the Court to set out a revised list of requirements that had to be satisfied in the context of a case which might raise issues of proportionality. I would, with respect, decline that invitation. Matters of that kind are more appropriate for a practice direction. In any event it is not for this court to give directions on matters of practice where the points at issue in the case do not require this to be done. Section 127(2) of the 1996 Act As already noted (see para 17, above), section 127(1) of the 1996 Act provides that the landlord may only bring an introductory tenancy to an end by obtaining an order of the court for possession of the dwelling house. Section 127(2) provides that the court shall make such an order unless the provisions of section 128 apply. That section directs the court not to entertain proceedings for possession unless the landlord has served on the tenant a notice complying with its requirements. One of the things that the notice must do is inform the tenant of his right to request a review of the landlords decision to seek a possession order: section 128(6). Section 129 provides that, so long as the request for a review is made no later than 14 days after the service of the possession order, the landlord must review its decision and that the review shall be carried out and the tenant notified before the date specified in the notice as the date after which proceedings for the possession of the dwelling house may be begun. On the face of it, the court has no discretion under section 127(2) as to whether or not it should make the order for possession. Its ordinary meaning is not in doubt. If the requirements of section 128 and by implication section 129 (see para 56, below) are met, the court must make the order whether or not it considers it proportionate to do so. The question that this issue raises is whether section 127(2) can nevertheless be read and given effect under section 3 of the Human Rights Act 1998 so as to permit the tenant to raise his article 8 Convention right by way of a defence to the proceedings in the county court and enable the judge to address the issue of proportionality. In Pinnock, paras 68 79, the Court addressed the proper interpretation of section 143D(2) of the 1996 Act, as amended, which together with sections 143E and 143F are so similar to those of sections 127 to 129 as to indicate that they were modelled on what those sections provide. Like section 127(2) in the case of a dwelling house let under an introductory tenancy, section 143D(2) provides when the court is asked to make an order for the possession of a dwelling house let under a demoted tenancy that the court must make the order (the word shall is not used, but the sense is the same) if the notice and review requirements have been complied with. As the Court noted in para 68, if section 143D was construed in accordance with the traditional approach to interpretation, it was hard to see how the court could have the power either to investigate for itself the facts relied on to justify the decision to seek possession, or to refuse to make an order for possession if it considered that it would be disproportionate to do so. The same problem arises with regard to section 127(2). Unless a solution can be found under section 3 of the 1998 Act, the language of that section appears to deprive the court of almost any ability to stand in the way of a landlord who had decided to seek possession against an introductory tenant: see Pinnock, para 69. In Pinnock it was held that it is open to a tenant under a demoted tenancy to challenge the landlords decision to bring possession proceedings on the ground that it would be disproportionate and therefore contrary to his article 8 Convention rights: para 73. This finding applies just as much in the case of introductory tenancies, so it must be concluded that, wherever possible, the traditional review powers of the court should be expanded to permit it to carry out that exercise in their case too. The courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering the facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view: Pinnock, para 74. As was observed in that case, however, much the more difficult question is whether it is possible to read and give effect to section 127(2) in a way that would permit the county court judge to do this. It is difficult because the wording of the subsection indicates that its purpose is to ensure that the court does nothing more than check whether the procedure has been followed. An introductory tenancy, after all, has been deliberately deprived of the protections that apply to a secure tenancy. It could be argued, as it was in Pinnock, that for the court to assess the proportionality of the decision to bring and continue the possession proceedings would go against the whole import of the section. It would amount to amending it rather than interpreting it: para 75. The Court decided in Pinnock to reject that argument for the reasons set out in paras 77 81. The question in this case is whether there is any good reason for not applying that decision to the regime that the 1996 Act has laid down for introductory tenancies. There are some differences between the two regimes. There is no demotion stage, as a tenancy becomes an introductory tenancy upon its commencement and it remains an introductory tenancy until the end of the trial period. And, while the language of sections 127 129 is for the most part reproduced, mutatis mutandis, in sections 147D 147F, there is one difference between them. Section 127(2) does not refer to section 129, unlike section 143D(2), which states: The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Furthermore, as Mr Underwood pointed out, Parliament had made a clear choice that introductory tenants were not to have the protection from eviction that secure tenants have. He said that there were many ways in which section 127(2) could be made compatible with article 8, and that it should be left to Parliament to choose between them. The fact that there is no mention in section 127(2) of the review procedure under section 129 can be seen to be of no consequence, in view of the direction in section 128(6) that the tenant must be informed of his right to request a review. The fact that there is no demotion stage in the case of an introductory tenancy does not affect the reasoning on which the decision in Pinnock was based. It was that, as lawfulness must be an inherent requirement of the procedure for seeking a possession order, it must equally be open to the court to consider whether that procedure has been lawfully followed having regard to the defendants article 8 Convention rights: para 77. It was by this route, and by the application of sections 3(1) and 7(1)(b) of the 1998 Act, that the Court held that section 143D(2) could be read and given effect to enable the county court judge to deal with a defence that relies on an alleged breach of the defendants rights under article 8. There is a sufficient similarity between section 127(2) and section 143D(2) to apply the reasoning in Pinnock to introductory tenancies also. Although the word procedure is not used in section 127(2), it does refer to the procedural requirements in section 128. So it should be read and given effect in the same way, and it is not necessary to resort to the making of a declaration of incompatibility. Section 89 of the 1980 Act The question raised by this issue is whether, if the argument is made out that the proportionate course would be to defer the delivery of possession for a period such as three months or to make a suspended order for possession, this can be done in the face of the provisions of section 89(1) of the Housing Act 1980. That section provides: (1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. (2) The restrictions in subsection (1) above do not apply if (a) the order is made in an action by a mortgagee for possession; or (b) the order is made in an action for forfeiture of a lease; or (c) the court had power to make the order only if it considered it reasonable to make it; or (d) the order relates to a dwelling house which is the subject of a restricted contract (within the meaning of section 19 of the [Rent Act 1977]); or (e) the order is made in proceedings brought as mentioned in section 88(1) above [proceedings for possession of a dwelling house let under a rental purchase agreement]. None of the exceptions listed in section 89(2) apply to tenancies which are not secure tenancies. The effect of subsection (1) of that section is to remove from the court the discretion which it had at common law to select whatever length of postponement it thought fit: see McPhail v Persons Unknown [1973] Ch 447. In his commentary on this section in Current Law Statutes Mr Andrew Arden (as he then was) suggested that the section did not prevent a greater period being allowed by consent. But it is difficult to see how the consent of the parties could confer a discretionary power on the court which has been removed from it by the statute. The question whether the section permits the court to allow a longer period on grounds of article 8 proportionality was left open in Pinnock, para 63. It did not need to be addressed on the facts of that case. It does not arise in any of the cases that are before this Court either, as it has not been suggested in any of them that an order postponing possession for a period in excess of six weeks is necessary to meet the requirements of article 8. In Ms Powells case the giving up of possession was postponed by 14 days. In Mr Halls case the period allowed was 28 days. In Mr Frisbys case the judge decided not make a possession order, so that an application could be made to the administrative court. But as the point was fully argued, and as it is a matter of some importance to know what scope there is for departing from the strict timetable on grounds of proportionality in cases of exceptional hardship, it is appropriate that the Court should deal with it. Two possible ways of enabling the court to depart from the strict timetable were suggested in argument. One was to read down the section under the power that the court is given by section 3(1) of the Human Rights Act 1998. The other was to exercise powers of case management by adjourning the proceedings if the six week period was likely to be insufficient to enable the tenant to remove from the property without incurring exceptional hardship, for such length of time as might be necessary to avoid it. The timetable is very precise as to the limit to the power to postpone. The words shall not in any event could hardly be more explicit. Its language is in sharp contrast to that of section 87 of the 1980 Act (now contained in section 85 of the Housing Act 1985, as amended), the first two subsections of which provided: (1) Where proceedings are brought for possession of a dwelling house let under a secure tenancy on any of grounds 1 to 6 or 10 to 13 in Part I of Schedule 4 to this Act, the court may adjourn the proceedings for such period or periods as it thinks fit. (2) On the making of an order for possession of such a dwelling house on any of those grounds, or at any time before the execution of the order, the court may (a) stay or suspend execution of the order, or (b) postpone the date of possession, for such period or periods as the court may think fit. The scheme of the 1980 Act, as the contrast between sections 87 and 89 illustrates, was to confer protection on secure tenants but to restrict it in relation to non secure tenants. Its long title states that among the Acts purposes was to restrict the discretion of the court in making orders for possession. Section 89 contains an express prohibition against exercising the extended powers given by section 85 in the case of secure tenancies. In the face of such strong statutory language, any reading down of the section to enable the court to postpone the execution of an order for possession of a dwelling house which was not let on a secure tenancy for a longer period than the statutory maximum would go well beyond what section 3(1) of the 1998 Act permits. As Lord Nicholls of Birkenhead said in Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 33, for the courts to adopt a meaning inconsistent with a fundamental feature of legislation would be to cross the constitutional boundary that section 3 of the 1998 Act seeks to demarcate and preserve. Section 89 of the 1980 Act does not, of course, take away from the court its ordinary powers of case management. It would be perfectly proper for it, for example, to defer making the order for possession pending an appeal or to enable proceedings to be brought in the administrative court which might result in a finding that it was not lawful for a possession order to be made, as was contemplated by the judge in the case of Mr Frisby but is now no longer necessary. An adjournment would also be a permissible exercise of the courts discretion if more information was needed to enable it to decide what order it should make. But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum. The question then is whether the Court should make a declaration of incompatibility under section 4 of the 1998 Act. This would be appropriate if there was good reason to believe that the time limit that the section sets is likely in practice to be incompatible with the article 8 Convention right of the person against whom the order for possession is made. Mr Ardens comment in Current Law Statutes indicates that at the time when section 89 of the 1980 Act was enacted postponements of orders for possession for periods of four to six weeks was normal. No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blei v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility. The disposal of these appeals (a) Ms Powell Mr Underwood informed the Court that Hounslow had decided, in the light of the decision in Pinnock, to offer Ms Powell suitable alternative accommodation. As before, this accommodation was to be provided on a non secure basis. Her rent arrears would be carried forward to the new tenancy on the basis that she continued to pay off the arrears at 5 per week, subject to any changes in her circumstances which would enable her to pay more. Mr Luba said that he was grateful for this offer, and he submitted that in any event the order that had been made against his client should not stand. Evidence had been heard by the district judge in her case. But this was not a full proportionality hearing of the kind contemplated by Pinnock, and her personal circumstances had not been examined. He invited the court to allow Ms Powells appeal. In view of the offer that had been made, Mr Underwood did not oppose this invitation in his oral argument. But in his written case, in which he invited the court to dismiss the appeal, he pointed out that the judge observed that the action taken by Hounslow was proportionate. Had it not been for the offer of suitable alternative accommodation, there might have been grounds for remitting Ms Powells case to the county court for consideration of article 8 proportionality. Giving effect to the order for possession would have the inevitable consequence of making Ms Powell homeless again so that the local authoritys duties to her will continue, unless she were to be found to be intentionally homeless or not to have a priority need. Had there been a live issue to be examined, it would have been preferable for her to be given an opportunity for the proportionality of the order to be considered in the light of her personal circumstances. As it is, it is not necessary to reach a view on this point. An offer of suitable alternative accommodation having been made, no good purpose would be served by maintaining the order for possession or the notice to quit which preceded it. I would allow this appeal for this reason and set the order and the notice to quit aside. (b) Mr Hall Mr Underwood informed the Court that Leeds had decided, in the light of the decision in Pinnock and as there had been no recent reports of his having caused a nuisance, to offer Mr Hall a secure tenancy of his current accommodation. Mr Luba said that he was grateful for this offer, but he submitted that the order that had been made against his client should not stand in any event as the judge had been wrong to refuse to consider anything occurring after the date of the review. He invited the court to dispose of the matter by allowing Mr Halls appeal. Mr Underwood acknowledged that Mr Hall did not have a proportionality hearing. But he submitted that under the introductory tenancy scheme it had no power to give him one, so the appeal should be dismissed. Mr Underwoods submission that the county court had no power to consider whether it was proportionate to make the order must be rejected. For the reasons set out in paras 50 56 above, it has that power. So, if there were grounds for thinking that it was seriously arguable that the making of the order was disproportionate, I would have remitted his case to the county court to enable him to present that argument. But the reasons given by the Court of Appeal for holding that it was unarguable that the decision was unlawful apply with equal force to the question whether, on the facts presented by Mr Hall, the decision was disproportionate. No grounds have been put before this Court for thinking that he could present a case which was seriously arguable. Had it not been for the offer of a secure tenancy, I would have dismissed his appeal. As it is, no good purpose would be served by maintaining the order for possession. I would, for this reason only, allow this appeal. (c) Mr Frisby Birmingham has not made any offer of settlement in Mr Frisbys case and Mr Arden indicated that it was not minded to do so. Mr Luba submitted that, as the district judge had considered only the question of venue and had adjourned the proceedings so that an application could be made for judicial review, the proper course was for this Court to allow the appeal so that proceedings could be resumed in the county court. Mr Arden, on the other hand, invited the Court to dismiss the appeal as Mr Frisby did not take advantage of the adjournment to take proceedings for judicial review and had given no indication of what the issues were that he wanted to raise. He said that he had had his chance, and that he should not be given a further opportunity. He pointed out that Mr Frisby did not appeal against the noise abatement notice, and it appeared that he was not in position to say that the notice of proceedings had not been properly served on him. In view of the way the case was dealt with in the county court, Mr Frisby did not have an opportunity to present his arguments on proportionality in that court. But I do not think that there is any reason for thinking that it is seriously arguable that the making of an order for possession in his case was disproportionate. As already noted (see para 30 and 31, above), when Mr Frisby was advised of his right to seek a review of the decision to extend his introductory tenancy he did not do so and, having requested a review of the decision to seek an order for possession, he did not attend the resumed hearing. The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate. I would dismiss this appeal. LORD PHILLIPS Introduction I am grateful to Lord Hope for setting out the facts and issues raised by these appeals with such clarity. I agree with his conclusions, but in relation to some of these I wish to add some comments of my own. I propose to do this, after an introductory overview, by addressing, in some cases very shortly, the issues set out in the Statements of Facts and Issues agreed by the parties. Article 8(1) of the Convention confers on everyone a right to respect for his home. It does not impose on a state, or a public authority within a state, a duty to provide a home or to sort out a persons housing problems see the comment of Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465, at para 28 and the Strasbourg authorities cited by him. English law, and public authorities acting pursuant to that law, have gone further than the Convention requires. The law lays down a complex framework dealing with rights and obligations in relation to housing. Under this public authorities are under an obligation to provide accommodation for the homeless in the circumstances described by Lord Hope at para 11. The law also regulates the manner in which public authorities provide housing for those requiring this. Article 8, together with section 6 of the Human Rights Act 1998 (HRA), imposes on a public authority which has provided a person with a home a duty to have respect for that home. This imposes a fetter on the right of the authority to dispossess the occupier of his home. As a matter of substance, article 8(2) requires that dispossession should be pursuant to one or more of the specified legitimate aims and that it should be a proportionate means of achieving that aim. As a matter of procedure, the occupier is entitled to have any issue as to whether article 8(2) is satisfied determined by an independent tribunal. Parliament has gone a long way towards satisfying these requirements by express statutory provisions. It has created a class of secure tenants who cannot be dispossessed unless a court is satisfied, inter alia, that it is reasonable that they should be. Parliament has also, however, deliberately created classes of tenants who do not have security of tenure (non secure tenants). Parliament has conferred on some of these a degree of substantive and procedural protection, but has sought to place the decision on whether or not they should be dispossessed fairly and squarely on the local authorities themselves. It has sought to avoid, in so far as possible, questions of proportionality being pursued before the courts. The policy behind this approach is not in doubt. It is to prevent the delay and expense that may occur if those who are not entitled to security of tenure are permitted to resist the grant of possession orders by the courts by attacking the reasons that have led the local authorities to claim possession. The Strasbourg Court has made it plain that ousting the powers of the court to consider the proportionality of dispossessing a non secure tenant is not compatible with the procedural requirements of article 8. In Manchester City Council v Pinnock [2010] 3 WLR 1441 this Court held that it was possible to read section 143D(2) of the Housing Act 1996 as permitting a demoted tenant to raise the issue of proportionality by way of defence to an application for a possession order. These appeals require the Court to decide whether the reasoning in Pinnock applies where a local authority seeks, pursuant to section 127 of that Act, to recover possession of a property occupied by an introductory tenant or where possession is sought of property occupied pursuant to Part VII of the Act after the tenancy, or licence, has been terminated by a notice to quit. More generally, these appeals raise a number of questions which are not clearly answered by the decision in Pinnock. Foremost among these is the question of the matters to which the court must pay regard when an issue of proportionality is raised. INTRODUCTORY TENANCIES Mr Frisby, which arise in relation to introductory tenancies. Issue 1: Does article 8 apply at all to a claim for possession of premises held on an introductory tenancy? All parties were agreed that, in normal circumstances, the premises occupied by an introductory tenant constitute his home for the purposes of article 8. I endorse that agreement. When a tenant enters into occupation under an introductory tenancy the common intention is that, provided that the probationary period passes without incident, the tenancy will become secure. The tenant enters into the premises with the intention of making them his home and, for the purposes of article 8, they normally become his home. I shall start by considering the issues agreed in the appeals of Mr Hall and Issue 2: Must repossession of property that is occupied under an introductory tenancy be subject to an independent determination of proportionality under article 8(2)? It might have been thought that an affirmative answer to the first issue would necessarily require a similar answer to this issue. Counsel for the appellants, for Leeds City Council, and for the Secretary of State were agreed that this was so. Mr Andrew Arden QC, for Birmingham City Council, submitted to the contrary. He accepted that the premises occupied by an introductory tenant were his home for the purposes of article 8. He submitted, however, that the Strasbourg Court had never laid down an absolute requirement for an independent determination of proportionality. The grant of a non secure tenancy for a probationary period was properly to be considered as part of the process of allocating accommodation, or of the selection of tenants. This was a matter for the local authority, not for the courts. The existence of this probationary scheme was plainly in the interest of other tenants. In these circumstances, and having regard to the requirement that local authorities should be able to act swiftly, economically and decisively in allocating accommodation, there was, exceptionally, no requirement for an independent determination of proportionality. The exigencies of the introductory tenancy scheme outweighed the need for the tenant to be able to challenge proportionality before an independent tribunal. Pinnock could be distinguished because it dealt with demoted tenancies, which were not an integral part of the scheme of allocation. While I was initially attracted by this argument, I have not been persuaded by it. The provisions of Part V of the 1996 Act that relate to demoted tenancies closely mirror the provisions that relate to introductory tenancies. Each set of provisions has the effect of placing the tenant on probation, with good behaviour likely to earn the reward of a secure tenancy. I can see no principled basis for distinguishing between the two so far as concerns the manner of application of article 8. I would give an affirmative answer to the second issue. Issue 3: What legitimate aims may the local authority invoke when seeking to justify under article 8(2) the dispossession of an introductory tenant? This issue, and issue 4 which follows, arise on the premise that an affirmative answer is given to issue 5, a premise which, as I shall explain, I consider to be valid. I agree with Lord Hope (para 36) that the answer to this issue is provided by para 52 of the judgment of this Court in Pinnock. The legitimate aims itemised in article 8(2) include the protection of the rights and freedoms of others. This phrase is wide enough to embrace (i) the vindication of the authoritys ownership rights in the property and (ii) the compliance by the authority with its duties in relation to the distribution and management of the housing stock for the benefit of other tenants. A public authority can properly seek to justify its actions in dispossessing an introductory tenant by asserting that this was reasonably necessary to achieve these legitimate ends. I do not understand any of the parties to dissent from this conclusion which reflects the views expressed by the Strasbourg Court in McCann v United Kingdom (2008) 47 EHRR 913, at para 48. Issue 4: In the light of the legitimate aims, what types of factual issue will be relevant to any proportionality determination? This substantive question is distinct from the procedural question of how the relevant factual issues are to be brought before the court. The contentions of the parties. On this issue there was a wide variety of submissions. At one extreme was the case advanced by Mr Stilitz QC on behalf of the Secretary of State. He submitted that each of the two legitimate aims was individually so cogent that the particular reasons that motivated the local authority to seek to recover possession were an irrelevance. A local authoritys right to recover its own property from a recipient who had no legal right to remain in possession did not require to be supported by reference to the reasons which motivated the authority in seeking to exercise this right. This is how this proposition was expressed in para 50.1 of the Secretary of States written case in relation to homelessness cases: When assessing proportionality by reference to this legitimate aim, it is not necessary or appropriate for the court to investigate the factual merits of the local authoritys reasons for serving the notice to quit, as the merits of the local authoritys reasons are irrelevant to the assessment of proportionality against this particular legitimate aim. So far as the second legitimate aim was concerned, the Secretary of State submitted that it should be assumed that possession proceedings were brought in the proper, and (in terms of domestic public law) lawful discharge of the local authoritys housing duties. Similar submissions were advanced at para 64 of the Secretary of States case in relation to introductory tenancies: Unless the local authority specifically seeks to invoke the particular reasons for seeking possession given to the occupier under the statutory scheme, the factual inquiry on an article 8 challenge in the county court will be confined to the determination of the occupiers personal circumstances. At the other extreme, Mr Luba QC for Mr Frisby submitted that there was no restriction or inhibition on the factual matters that either party might deploy in relation to an issue of proportionality raised in possession proceedings. In relation to an introductory tenancy he submitted that the local authority could properly rely on anti social behaviour or rent arrears, indeed on any breach of the terms of the tenancy other than those which had no adverse impact on third parties, such as a modest failure to maintain the garden or the keeping of an innocuous pet. The tenant could raise any matters that he wished in support of his contention that dispossession was disproportionate. Mr Arden did not adopt the extreme case of the Secretary of State. He contended that it was open to the local authority to rely on a presumption that it was acting in proper pursuance of its duties in relation to the management and distribution of housing. It could, however, if it chose, rely upon specific reasons for seeking to recover possession. He accepted that it was open to a tenant to raise at the hearing of the possession application any of the matters previously raised in opposition to the dispossession on the statutory review under section 129 of the 1996 Act. Lord Hopes analysis Lord Hope deals with issues 3 and 4 together. He does so first in relation to homelessness cases, but goes on to apply the same reasoning to introductory tenancies. So far as issue 3 is concerned, I have agreed with Lord Hopes identification of the legitimate aims. He deals very shortly with the factual issues that may be relevant to the issue of proportionality. He states at para 37 that in the overwhelming majority of cases no issue will arise as to whether the authority is pursuing legitimate aims, for this will be presumed. The only factual issue that may arise will be whether, in the light of the occupiers personal circumstances, the order is lawful and proportionate. At para 41, dealing with homelessness, and again at para 45, when dealing with introductory tenancies, he states that in the ordinary case the relevant facts will be encapsulated in the two legitimate aims that were identified in Pinnock and that it is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what he has to say about his personal circumstances. Discussion I agree with Lord Hopes analysis. In seeking an order for possession, the local authority is not required to advance a positive case that this will accord with the requirements of article 8(2). This will be presumed by reason of the authoritys ownership of the property and duties in relation to the management of the housing stock. Ownership alone is not enough to satisfy article 8(2), where the owner is a social landlord, as Lord Hope observes at para 36, citing Kryvitska and Kryvitsky v Ukraine (Application No 30856/03) given 2 December 2010. Article 8(2) requires that the authority should be seeking possession in order to further the performance of its housing duties but, unless the tenant raises a challenge, this will be presumed. The question raised by issue 4 is, however, the nature of the challenge that it is open to the tenant to make. This is an important question. If article 8(2) requires that repossession of accommodation let on an introductory tenancy should be in furtherance of the authoritys housing duties, the same is true of the independent requirements of English public law. If the latter are satisfied, then, so it seems to me, it will almost inevitably follow that the requirements of article 8(2) are also satisfied. The policy behind the introductory tenancy scheme is not in doubt. It was well summarised in three short quotations at para 28 of Mr Ardens printed case, one from a consultation paper on Probationary Tenancies and two from parliamentary debates on the Housing Bill 1996. Introductory tenancies place the tenant on probation. They require the tenant to demonstrate that he is a good tenant, both as regards his behaviour towards his neighbours and as regards his contractual obligations to his landlord, before he is granted a tenancy that is secure for life. When deciding whether to dispossess a tenant who has been granted an introductory tenancy, a local authority must have regard to this policy. The authority cannot simply rely upon the fact that it owns the property and that the tenant has no security of tenure. The decision to dispossess the tenant must be a reasoned decision. Section 128(3) of the 1996 Act requires the tenant to be given notice of the reasons for the landlords decision to seek a possession order and section 129 entitles the tenant to a review of the decision and to the reasons for its confirmation if, indeed, it is confirmed. Under the Introductory Tenants (Review) Regulations 1997 (SI 1997/72) made pursuant to section 129(3) of the 1996 the tenant is entitled to an oral hearing of the review, carried out by a person who was not involved in the original decision and (where the decision makers are officers) senior to that person. He is entitled to be represented at that hearing. It is implicit in this scheme that the reasons for terminating the introductory tenancy before it becomes secure will be that, in one way or another, the tenant has proved unsatisfactory. That has certainly been the position in the cases of Mr Hall and of Mr Frisby. It is possible to envisage a proportionality challenge before the judge being based on exceptional personal circumstances which have nothing to do with the reasons for seeking the possession order. Normally, however, any attack on the proportionality of dispossession is likely to amount to an attack on the reasons given to the tenant for seeking the possession order. Either the tenant will argue that the facts relied upon by the authority to justify seeking the order do not do so, or he will contend that those facts were not accurate. In paras 51 to 53 this Court in Pinnock commented on the proposition that it will only be in very highly exceptional cases that it will be appropriate for the court to consider a proportionality argument. I believe that this proposition is an accurate statement of fact in relation to introductory tenancies. This is because the judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this. Two factors make it extremely unlikely that the defendant will be in a position to do this. The first is the relatively low threshold that the authority has to cross to justify terminating the introductory tenancy. The second is the significant procedural safeguards provided to the tenant that I have described in para 90 above. As to the threshold, the arguments advanced by Mr Arden that I have considered at para 78 above are of some relevance. The introductory scheme is designed to enable a local authority to select as long term secure tenants those who demonstrate that they are unlikely to pose problems for the authority or for their neighbours. The authority can properly require a high standard of behaviour by the tenant during the probationary period. Thus I do not accept Mr Lubas suggestion that the authority could not properly rely upon a breach of the tenancy condition if it had no adverse impact on any third party. Furthermore, if a tenancy has given rise to complaints by neighbours of anti social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy. As Waller LJ remarked in R(McLellan) v Bracknell Forest Borough Council [2002] QB 1129, at para 97: Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. As to the procedural safeguards, they may not be enough in themselves to satisfy article 8(2) in that the decision makers are representatives of the authority and thus not independent. None the less, they have no axe to grind when deciding whether or not an introductory tenant has shown himself to be a suitable candidate for a secure tenancy. It is likely to be a rare case, particularly as the defendant has a right to a review, where the defendant will be in a position to demonstrate that there are substantial grounds for attacking the authoritys findings of fact, or the decision based on them. I note that in McCann at para 54 the Strasbourg Court accepted that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which would require the court to examine the issue and that in the great majority of cases it would be possible for possession orders to continue to be made in summary proceedings. Issue 5: Can section 127(2)of the 1996 Act be read compatibly with the occupiers article 8 rights so as to allow him to defend a claim for possession of premises held on an introductory tenancy in the county court? Mr Luba and Mr Stilitz submitted that this question should be answered in the affirmative on the ground that the reasoning of this Court in Pinnock in relation to section 143D(2) of the 1996 Act applied equally to section 127(2). Mr Arden and Mr Underwood submitted to the contrary. Mr Arden advanced two reasons for distinguishing the reasoning in Pinnock. The first was that demoted tenancies are relatively rare whereas introductory tenancies are the norm for all new lettings nationally and amount to tens of thousands a year. The second was that, syntactically it was not possible, as it had been in Pinnock, to imply the word lawfully into the statutory conditions precedent to making the possession order. Mr Underwood QC advanced a further argument against applying the reasoning in Pinnock to section 127(2). Section 143D(2) was inserted into the 1996 Act by amendment after the HRA came into force. Accordingly the construction of the subsection was subject to section 3 of the latter Act. The same was not true of section 127(2), which predated the HRA. Consequently the latter subsection had to be given its natural meaning. I have not found any of these arguments persuasive. Mr Arden himself accepted that, in principle, the volume of cases affected had no obvious impact on construction. As to the syntactical argument, the precise formulation of the proviso required by article 8 is of no significance. Compatibility can be achieved in the case of either subsection by implying the phrase provided that article 8 is not infringed. As to Mr Underwoods argument, section 3 of the HRA applies to all legislation, whether enacted before or after the HRA came into force. Insofar as this alters the construction given to legislation before the HRA came into force, the HRA has the effect of amending legislation: see Ghaidan v Godin Mendoza [2004] 2 AC 557. For the reasons given by Lord Hope in paras 50 to 56 I would give an affirmative answer to Issue 5. Issues 6 and 8: Procedural questions The parties agreed a considerable list of procedural questions which would arise if an affirmative answer were given to Issue 5. There is no doubt that the affirmative answer that I would give to that issue creates a requirement for some procedural rules in order to provide an orderly process by which (i) an introductory tenant can raise a proportionality issue by way of defence to a claim for a possession order in respect of his home and (ii) the authority seeking possession can respond to such a defence. I agree with Lord Hope that it is not appropriate for this Court to attempt to give directions or guidance in relation to the appropriate procedures. These are much better formulated in the form of rules of court, practice directions or protocols by those who are normally responsible for producing these. There is, however, one important matter of principle upon which I wish to comment. This is whether the local authority should be required to give notice of the reasons that have led it to seek possession of the defendants home. In the case of introductory tenancies this question is academic, for sections 128 and 129 of the 1996 Act expressly require reasons to be given. Accordingly I propose to deal with this question in the context of homelessness cases. Section 89 of the Housing Act 1980 Section 89 of the 1980 Act is of general application, so that it applies in relation to both introductory tenancies and homelessness cases. In Pinnock, at para 63, this Court raised, but did not answer, the question of whether article 8 of the Convention impacts on, or is incompatible with, the true construction of section 89. Lord Hope has dealt with this question at paras 57 to 64 of his judgment. I agree with his conclusions, but wish to add a word on the question of incompatibility, which he has considered at para 64. In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. The clear limit on the judges discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged. Issue 7 This does not arise Issue 9: Disposal. For the reasons that he gives I would make the orders proposed by Lord Hope in respect of the appeals in the cases of both Mr Hall and Mr Frisby. HOMELESSNESS CASES I now turn to consider the position of those who, like Rebecca Powell, are provided with accommodation by a local authority pursuant to its duties under Part VII of the 1996 Act, which deals with homelessness. Lord Hope has summarised the essential features of this scheme at paras 11 to 13 of his judgment. The first two issues that I have considered in relation to introductory tenancies have not been raised in relation to tenancies under Part VII, for all parties have accepted, correctly in my view, that accommodation provided to the homeless will normally become their homes for the purposes of article 8 and that a judge, usually a district judge, who is considering an application for a possession order under Part VII, is entitled to entertain by way of defence to the application a submission that to make the order will infringe article 8. Issue 1: What special features, if any, apply to the determination of an article 8 defence in the context of accommodation provided under Part VII? Mr Luba has helpfully set out in his printed case six reasons why a person may be accommodated by a local authority under Part VII: (1) the authority has not yet reached a decision on the homelessness application but the applicant is being accommodated in the interim because he may be eligible, homeless and have a priority need: Housing Act 1996, section 188; (2) the authority is in the process of referring the application to a different local housing authority but accommodating the applicant until that process is resolved: Housing Act 1996, section 200; (3) the authority has determined the application but the applicant has invoked a statutory review or statutory appeal and the authority is accommodating until the review/appeal is determined: Housing Act 1996, sections 188 and 204(4); (4) the authority has decided to exercise its power to accommodate an applicant who is eligible, homeless, not intentionally homeless but not in priority need: Housing Act 1996, section 192(3); (5) the authority has decided that because the applicant is eligible, homeless, and in priority need but has become homeless intentionally it is under a duty to accommodate for such time as gives the applicant a reasonable opportunity of securing his own accommodation: Housing Act 1996, section 190(2)(b); or (6) the authority has decided that the applicant is eligible, homeless, in priority need and did not become homeless intentionally (the main housing duty): Housing Act 1996, section 193. It is apparent from this list why it is that a local authority will not normally be prepared to grant security of tenure where accommodation is provided under Part VII. The scheme is concerned with the provision of temporary accommodation while a persons claim under Part VII is addressed. The housing stock from which the authority provides this temporary accommodation may well not all be owned by the authority. Often it will have been obtained from a housing association or a private landlord. It is important that the authority should have the maximum flexibility to move, where necessary, a tenant from one unit of accommodation to another. Nevertheless, a tenant may be permitted to remain in accommodation provided under Part VII for a considerable period and the local authority may wish to remove the tenant from that accommodation not simply in the interests of the more efficient management of the housing stock, but because of shortcomings in the tenants behaviour, such as anti social activity or a failure to pay rent. Issue 2: What legitimate aims may the local authority invoke when seeking to justify under article 8 (2) the dispossession of a tenant who is in occupation of premises pursuant to Part VII? This issue is the same as Issue 3 in relation to introductory tenancies and the answer is the same (see para 80 above). The difference in practice is that the local authoritys decision under Part VII is more likely to be dictated by the practical requirements of making the best allocation of a limited and fluctuating housing stock. Issue 3: In the light of the legitimate aims what type of factual issues will be relevant to any such proportionality determination? Just as in the case of introductory tenancies, the factual issues that will be relevant if a defendant makes a proportionality challenge to the making of a possession order are likely to depend upon the reasons that have led the local authority to seek the order. As Mr Luba accepted, where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge. In this context it is relevant that section 202 of the 1996 Act gives a statutory right to a review of the suitability of accommodation offered to a person pursuant to a local authoritys duties under Part VII. Where the reason for seeking possession is alleged shortcomings on the part of the tenant, such as failure to pay rent, it will be open to the tenant to seek to challenge the facts upon which the decision is based. The position will be similar to that considered in relation to introductory tenancies. The defendant will have to show that he has substantial grounds for the challenge if he is to avoid the summary imposition of the possession order. As Mr Luba pointed out, where the reason is non payment of rent there is not likely to be much scope for bona fide issues of fact. For these reasons the statement that it will only be in rare cases that a valid proportionality challenge can be raised by way of defence to a possession order applies equally to repossession of accommodation provided under Part VII. Issue 4: Does article 8 require the local authority to give notice of its reasons for seeking possession? Mr Luba submitted that the procedural protections implicit in article 8 required that the tenant should be informed of the authoritys intention to seek possession and the reasons for it before service of the notice to quit, or at least before the commencement of the possession proceedings, in order to permit the tenant the opportunity to challenge those reasons and the authoritys decision. This raises an important question of principle. Sometimes a local authority will wish to recover possession of premises in the interests of a more effective allocation of the housing stock. Sometimes the authority will be reacting to the behaviour, or perceived behaviour of the tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aims of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authoritys action will serve a legitimate aim. I do not believe that the Strasbourg Court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair. In Connors v United Kingdom (2004) 40 EHRR 189, at para 94 the Strasbourg Court said: The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal . The references to flexibility or administrative burden have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid. The Court was there dealing with gipsies but those words are equally applicable in the present context. I do not suggest that there is any burden on a local authority, in the first instance, to justify to the court its application for a possession order or to plead the reason for seeking this. What I do suggest is that the tenant must be informed of the reason for the authoritys action so that he can, if so minded, attempt to raise a proportionality challenge. I do not believe that recognition of this obligation will have any significant practical consequences for I find it inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so. Mr Luba told the Court that tenants under Part VII who are relocated by the local authority usually agree to this course. I would expect the local authority to inform the tenant of the reason for the proposed relocation, in order to procure this consent. Where it is the conduct of the tenant that has led to the authoritys action, I would equally expect the authority to make this plain. Certainly Hounslow did so in the case of Rebecca Powell. Mr Luba urges that notice of the authoritys reasons should be given before service of a notice to quit. I suspect that this is precisely what does happen in practice, but I would not, without further consideration, rule that article 8 requires this. It is possible that article 8 will be satisfied provided that the occupier is given the information he needs in time to decide whether or not to raise a challenge in the possession proceedings. Issue 5: When and how should notice of the authoritys reasons be given? These are matters of procedure on which I do not propose to comment. Mr Luba has referred the Court to a paper prepared by HH Judge Madge on Article 8 la lutta continua? (2009), JHL 2009, 12(3), 43 47, which has been approved by the Housing and Land Committee of the Civil Justice Council. I consider that Judge Madge and that Committee are better placed to decide upon the appropriate procedural changes required by Pinnock and by the decision on these appeals than am I. Issue 6 This raises the point on section 89 that I have already considered in the context of introductory tenancies. Issue 7: Should the judge hearing the application for possession also rule on the validity of the notice to quit? Mr Luba draws attention to the fact that if the judge refuses to make a possession order on article 8 grounds, but does not also rule that the notice to quit was unlawful, the defendant will remain in possession as a tolerated trespasser rather than as a non secure tenant. He urges that this court should endorse the view expressed by Lord Scott in Doherty v Birmingham City Council [2008] UKHL 57; [2009] AC 367, at para 84 that the judge hearing a challenge to the claim for a possession order should also be prepared to entertain an article 8 challenge to the validity of the notice to quit. This issue interrelates with the point that I have considered under Issue 4. I can, in principle, see no reason why, if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge. Issue 8: Disposal I agree, for the reasons that he gives, that Rebecca Powells appeal should result in the order proposed by Lord Hope. LORD RODGER, LORD WALKER, LADY HALE, LORD BROWN LORD COLLINS For the reasons given by Lord Hope and Lord Phillips, with which we entirely agree, we too would make the orders proposed by Lord Hope.

These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]

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These are three of five conjoined appeals which were heard by the Court of Appeal in Salford City Council v Mullen [2010] EWCA Civ 336, [2010] LGR 559. They are concerned with possession proceedings brought by a local authority in circumstances where the occupier is not a secure tenant under Part IV of the Housing Act 1985. Two of them, Leeds City Council v Hall (Hall) and Birmingham City Council v Frisby (Frisby), are cases where the claims for possession were made against tenants occupying under introductory tenancies entered into under Chapter 1 of Part V of the Housing Act 1996. In the third, London Borough of Hounslow v Powell (Powell), the claim for possession was made against a person who was granted a licence of property under the homelessness regime in Part VII of the 1996 Act. Permission to appeal was given in a fourth case, Salford City Council v Mullen. But the proceedings in that case were stayed to await the outcome of these appeals. Common to all three cases is the claim by each of the appellants that the property which is the subject of the proceedings for possession against them is their home for the purposes of article 8(1) of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which provides: Everyone has the right to respect for his private and family life, his home and his correspondence. Their case is that, to avoid a breach of article 8, the interference must be justified under article 8(2) as being necessary in a democratic society and that this means that it must be in accordance with the law, it must be for a legitimate aim and it must be proportionate to the aim that the local housing authority is seeking to achieve. They maintain that, as the court did not assess the proportionality of making the orders against them, there was a breach of their article 8 rights. The Court had the opportunity in Manchester City Council v Pinnock [2010] UKSC 45, [2010] 3 WLR 1441 (Pinnock) of considering the application of article 8 to a claim for possession brought against a demoted tenant under Chapter 1A of Part V of the 1996 Act (as inserted by paragraph 1 of Schedule 1 to the Anti social Behaviour Act 2003). It held that article 8 requires a court which is being asked to make an order for possession under section 143D(2) of the Housing Act 1996 against a person occupying premises under a demoted tenancy as his home to have the power to consider whether the order would be necessary in a democratic society: para 2. Although Mr Arden QC submitted forcefully that it should not apply to introductory tenancies in view of their probationary nature, I would hold that this proposition applies to all cases where a local authority seeks possession in respect of a property that constitutes a persons home for the purposes of article 8. There is a difference of view between the parties, however, as to its consequences, and in particular as to how cases of this kind should be dealt with in practice by the courts and local authorities. The Court recognised that cases of the type that was examined in Pinnock arise relatively rarely and that cases of the kind represented by these appeals, which involve possession orders in different and more common circumstances, were likely to provide a more appropriate vehicle for the giving of general guidance: paras 58 59. It was expected that the lawyers preparing for these appeals would have the opportunity of giving particular attention to the guidance that might usefully be given where possession is sought against introductory tenants and against applicants under the homelessness regime where there is no provision for the kind of procedure envisaged in Chapters 1 and 1A of Part V of the 1996 Act for introductory and demoted tenancies. I wish to pay tribute to counsel on all sides for the way in which they have taken full and careful advantage of that opportunity. The issues The Court of Appeal delivered its judgment in Salford City Council v Mullen [2010] EWCA Civ 336 on 30 March 2010. As Waller LJ explained in para 4, the court held that it was bound by what was said in Kay v Lambeth London Borough Council [2006] UKHL 10, [2006] 2 AC 465, para 110, as to the circumstances in which a county court might decline to make a possession order. They were limited to two situations: first, if it was seriously arguable that the law which enables the county court to make the possession order is itself incompatible with article 8 (which the Court of Appeal in Doherty v Birmingham City Council [2006] EWCA Civ 1739, [2007] LGR 165, para 28 called gateway (a)); and second, if it was seriously arguable that the decision of the public authority was (regardless of the tenants Convention rights) an improper exercise of its powers because it was a decision that no reasonable person would consider justifiable (which the Court of Appeal in Doherty called gateway (b)). So, where the local authority had fulfilled the requirements for the recovery of possession contained in the ordinary domestic law, a defence which did not challenge the law under which the order was sought as being incompatible with article 8 but was based on the proposition that the interference with the persons home was disproportionate should be struck out. Writing extrajudicially, Lord Bingham of Cornhill said of the Strasbourg jurisprudence that its strength lies in its recognition of the paramount importance to some people, however few, in some circumstances, however rare, of their home, even if their right to live in it has under domestic law come to an end: Widening Horizons, The Hamlyn Lectures (2009), p 80. There has never been any dispute about gateway (a). It can be traced back to Kay v Lambeth London Borough Council [2006] 2 AC 465, para 39 where, in head (3)(a) of his summary of the practical position, Lord Bingham described the first of the two grounds on which the court might consider not making a possession order as being that the law which required the court to make the order despite the occupiers personal circumstances was Convention incompatible. But gateway (b), albeit widened to some degree by what was said in Doherty v Birmingham City Council [2008] UKHL 57, [2009] AC 367, para 55, has always been controversial. The central issue which divided the parties in Pinnock was whether the proposition which was encapsulated in it should still be applied in the light of subsequent decisions of the European Court of Human Rights in McCann v United Kingdom (2008) 47 EHRR 913, osi v Croatia (Application No 28261/06) (unreported) given 15 January 2009, Zehentner v Austria (Application No 20082/02) (unreported) given 16 July 2009 and Pauli v Croatia (Application No 3572/06) (unreported) given 22 October 2009. This Court held that those cases, together with Kay v United Kingdom (Application No 37341/06) given 21 September 2010, The Times 18 October 2010, provided a clear and constant line of jurisprudence to the effect that any person at risk of being dispossessed of his home at the suit of a local authority should in principle have the right to question the proportionality of the measure and to have it determined by an independent tribunal in the light of article 8: para 45. The decision in Doherty v Birmingham City Council had shown that our domestic law was already moving in that direction, and the time had come to accept and apply the jurisprudence of the European court. So, where a court is asked to make an order for possession of someones home by a local authority, the court must have the power to assess the proportionality of making the order and, in making that assessment, to resolve any relevant dispute of fact: para 49. It is against the background of that decision that the issues that arise in the present appeals must be considered. They can be summarised briefly at this stage as follows. (1) What is the form and content of the proportionality review that article 8 requires? (2) What procedural protections are implicit in article 8 in homelessness cases before service of a notice to quit and after service but before possession proceedings are commenced? (3) Can the court defer the delivery of possession for a period in excess of the maximum permitted by section 89 of the Housing Act 1980 if it considers that it would be the proportionate course to do so and, if not, should there be a declaration of incompatibility? (4) Can section 127(2) of the 1996 Act be read compatibly with the introductory tenants article 8 Convention right so as to allow him to defend a claim for possession on the grounds recognised in Pinnock, or must there be a declaration that section 127(2) is incompatible with the Convention right? These issues are dealt with in paras 33 64. The correct disposal of each appeal will also have to be considered, having regard to the facts of each case. This is dealt with in paras 65 70. The statutory background As was explained in paras 5 7 of Pinnock, most residential occupiers of houses and flats owned by local authorities are secure tenants under Part IV of the Housing Act 1985. In those cases the tenant must be given a notice setting out the reasons why possession is sought, the tenant cannot be evicted unless the landlord establishes that one of the grounds for possession listed in Schedule 2 to the 1985 Act applies and, except in some specified categories of case where suitable alternative accommodation is available, the court is satisfied that it is reasonable to make the order. But certain types of tenancy are excluded from this regime. They are listed in Schedule 1 to the 1985 Act. They include two types of tenancy that were included in that Schedule by amendment: introductory tenancies referred to in paragraph 1A, added by paragraph 5 of Schedule 14 to the 1996 Act; and demoted tenancies referred to in paragraph 1B, added by paragraph 2(4) of Schedule 1 to the Anti social Behaviour Act 2003. In addition, paragraph 4 of Schedule 1 to the 1985 Act (as substituted by paragraph 3 of Schedule 17 to the 1996 Act) provides that a tenancy granted in pursuance of any function under Part VII of the 1996 Act, which deals with homelessness, is not a secure tenancy unless the local housing authority concerned has notified the tenant that the tenancy is to be regarded as a secure tenancy. The legislature has excluded these types of tenancy from the statutory scheme which applies to secure tenancies for very good reasons, which are firmly rooted in social policy. In seeking democratic solutions to the problems inherent in the allocation of social housing, Parliament has sought to strike a balance between the rights of the occupier and the property rights and public responsibilities of the public authority. The regimes that apply to introductory tenancies and demoted tenancies have been designed to address the problem of irresponsible or disruptive tenants whose presence in social housing schemes can render life for their neighbours in their own homes intolerable. The homelessness regime provides the local housing authority with the flexibility in the management of its housing stock that it needs if it is to respond quickly and responsibly to the demands that this pressing social problem gives rise to. Measures which would have the effect of widening the protections given to the occupiers by the statutes must be carefully tested against Parliaments choice as to who should, and should not, have security of tenure and when it should be given to them, if at all. Social housing law draws a clear distinction between cases where security of tenure has been given, and those where it has not. There are clear policy reasons why Parliament has denied security to certain classes of occupier. It is with this in mind that the homelessness and introductory tenancy regimes must now be described in more detail. (a) homelessness The duties of local authorities in relation to homeless persons are set out in Part VII of the 1996 Act. Ms Powell was provided with accommodation under section 193(2). That section applies where the local housing authority is satisfied that an applicant is homeless, eligible for assistance and has a priority need, and is not satisfied that he became homeless intentionally. In these circumstances section 193(2) imposes a duty on the local housing authority to secure that accommodation is available for occupation by the applicant. The duty ceases in various circumstances, such as if the applicant became homeless intentionally from the accommodation that was made available for his occupation or otherwise voluntarily ceases to occupy that accommodation as his only or principal home. Where the local housing authority decides that its duty under section 193(2) has ceased, the applicant has the right to request that it reviews its decision: section 202(1)(b). If the applicant is dissatisfied with the decision on review he may appeal to the county court on any point of law arising from the decision on review or, as the case may be, the original decision: section 204(1). Where an applicant has been found to be homeless and eligible for assistance but the local housing authority is also satisfied that he became homeless intentionally and has a priority need, it is under a duty to secure that accommodation is available for his occupation for such period as it considers will give him a reasonable opportunity of securing accommodation for his occupation: section 190(2). As already noted, tenancies granted under Part VII of the 1996 Act are not secure tenancies unless the local housing authority has notified the tenant that the tenancy is to be regarded as a secure tenancy. So the local authority is not required under domestic law to establish any particular ground for the termination of the tenancy when seeking possession from a tenant on whom it has served a notice to quit who has not been so notified. The only procedural protections are to be found in the requirement under sections 3 and 5 of the Protection from Eviction Act 1977 that an order of the court must be obtained in order to recover possession and the requirement to give notice to quit in the form stipulated by that Act. Section 89 of the Housing Act 1980 provides that, when the court makes an order for the possession of any land (except in the circumstances set out in section 89(2)), the giving up of possession may not be postponed for more than 14 days or, in cases of exceptional hardship, to a date no later than six weeks after the making of the order. (b) introductory tenancies Mr Hall and Mr Frisby were tenants under introductory tenancies when the possession orders were sought against them. The regime under which they were granted these tenancies is set out in Chapter 1 of Part V of the 1996 Act. It was created in response to concerns among social landlords about anti social behaviour among their tenants. In April 1995 a consultation paper was issued in which views were sought on what were then described as probationary tenancies. The idea was that, as a probationary tenancy would be converted automatically into a secure tenancy only if it was completed satisfactorily, a clear signal would be given to new tenants that anti social behaviour was unacceptable and would result in the loss of their home: para 3.2. The White Paper Our Future Homes: Opportunity, Choice, Responsibility (Cm 2901, June 1995) identified the governments aims as being to encourage responsible social tenants and to protect the quality of life for the majority by supporting effective action against the minority of anti social tenants. Social landlords were to be given the means to act rapidly to remove tenants in the worst cases, as a measure of last resort. Section 124 of the 1996 Act provides that a local housing authority or a housing action trust may elect to operate an introductory tenancy regime. Section 124(2), prior to its amendment by the Housing and Regeneration Act 2008 (Consequential Provisions) Order 2010 (SI 2010/866), provided : (2) When such an election is in force, every periodic tenancy of a dwelling house entered into or adopted by the authority or trust shall, if it would otherwise be a secure tenancy, be an introductory tenancy, unless immediately before the tenancy was entered into or adopted the tenant or, in the case of joint tenants, one or more of them was (a) a secure tenant of the same or another dwelling house, or (b) an assured tenant of a registered social landlord (otherwise than under an assured shorthold tenancy) in respect of the same or another dwelling house. The duration of an introductory tenancy is defined by section 125. The tenancy remains as an introductory tenancy until the end of the trial period which, unless shortened because the tenant was formerly a tenant under another introductory tenancy, lasts for the period of one year: section 125(2). It does not become a secure tenancy until the end of the trial period: Housing Act 1985, Schedule 1, paragraph 1A. The conversion then takes place automatically unless the introductory tenancy has been terminated. Section 127 deals with proceedings for possession of a property which is subject to an introductory tenancy. It provided (prior to its amendment by the Housing and Regeneration Act 2008): (1) The landlord may only bring an introductory tenancy to an end by obtaining an order of the court for the possession of the dwelling house. (2) The court shall make such an order unless the provisions of section 128 apply. (3) Where the court makes such an order, the tenancy comes to an end on the date on which the tenant is to give up possession in pursuance of the order. Section 128(1) provides that the court shall not entertain proceedings for the possession of a dwelling house let under an introductory tenancy unless the landlord has served on the tenant a notice of proceedings complying with that section. The notice must state that the court will be asked to make an order for possession, set out the reasons for the landlords decision to apply for such an order, specify a date after which proceedings may be begun, inform the tenant of his right to request a review of the landlords decision to seek a possession order and inform him that he can receive help or advice about the notice from a Citizens Advice Bureau, a housing aid centre or a solicitor: subsections (2) (7). Section 129 provides that a request for a review of the landlords decision to seek an order for possession of the dwelling house must be made within no more than 14 days of service of the notice of proceedings under section 128. The procedures of the demoted tenancy regime, which is the regime with which the Court was concerned in Pinnock, are closely based on the regime for introductory tenancies. The procedure governing the landlords right to recover possession during the probationary period is set out in sections 143D, 143E and 143F which, as was noted in Pinnock, para 13, are virtually identical to sections 127, 128 and 129 of the 1996 Act. But there is one important difference. A tenant under a demoted tenancy was previously a tenant under a secure tenancy, that tenancy having been brought to an end by a demotion order under section 82A of the Housing Act 1985 (as inserted by section 14 of the Anti social Behaviour Act 2003). The social purpose of the introductory tenancy regime is to allow local authorities to grant tenancies to new tenants without conferring security of tenure upon them until they have demonstrated that they are responsible tenants during the introductory period. This is a factor which will always be highly relevant in any assessment of the proportionality of the landlords claim for possession, as the effect of denying the claim will be that an introductory tenant who may not deserve a secure tenancy will automatically obtain one. The facts (a) Ms Powell As already noted, the local housing authority was satisfied that Ms Powell was homeless, eligible for assistance and had a priority need, and was not satisfied that she had become homeless intentionally. She was given a licence by the London Borough of Hounslow (Hounslow) to occupy a two bedroom ground floor flat at 15 Pine Trees Close, Cranford from 2 April 2007. She and her two sons Zaid, born on 3 April 2005, and Nour, born on 14 April 2006, were noted on the agreement as the occupiers. A claim for housing benefit was received by Hounslow on 4 April 2007 in which Ms Powell indicated that she had a partner named Mr Ahmad Sami who normally resided with her. By letter dated 11 May 2007 Hounslow wrote to Ms Powell stating that there were arrears of rent and warning her that this could lead to termination of her licence to occupy the property. But on 14 May a credit of housing benefit was received which reduced the arrears to zero. There was a further period when the payments fell into arrears, but they were fully cleared by a payment of housing benefit on 3 December 2007. On 5 February 2008 Hounslows housing benefit section wrote to Ms Powell asking her to provide it with information in connection with her claim. On 7 March 2008 it wrote to her stating that the information which it had asked for had not been provided. As a result the housing benefit claim was terminated from 23 December 2007. On 10 March 2008 Hounslows income recovery officer wrote to Ms Powell informing her that there were arrears of licence payments and asking her to attend for an interview on 17 March 2008. Ms Powell did not attend as she had an interview at about the same time and on the same day with the Department of Work and Pensions. On 17 March 2008 Hounslow sent a letter to Ms Powell with a notice to quit. On 20 March 2008 she attended its offices and discussed the arrears with one of its officers. On the same day a letter was sent to her setting out the possible effect on Hounslows homelessness duty towards her were she to be evicted due to rent arrears. On 28 April 2008 Hounslows housing benefit section sent Ms Powell a housing benefit form. It was received on 12 May 2008 and payment of housing benefit was resumed on 26 May 2008. But there were substantial arrears of rent, represented by some 11 weeks rent, which were not covered by the initial credit of housing benefit and which remained unpaid. On or about 19 September 2008 Hounslow issued a claim for possession of the premises, relying on the notice to quit dated 17 March 2008. It was explained that there were arrears as at 30 June 2008 of 3,536.39. The matter came before Deputy District Judge Shelton on 14 May 2009, who heard evidence from witnesses, including Ms Powell. He found that the measures that had been taken by Hounslow were reasonable and proportionate (in the Doherty sense), and granted possession of the premises to Hounslow. Having heard submissions as to her personal circumstances, he required Ms Powell to give possession of the property on or before a date 14 days after the date when the order was made. Ms Powell was granted permission to appeal against the judges order by Mummery LJ on 2 July 2009, with a stay of execution on condition that Ms Powell paid off the arrears at 5 per week. Her appeal was heard as one of five appeals by the Court of Appeal in March 2010. It held that the decision in Ms Powells case was lawful, as the circumstances were not highly exceptional in the context of the homelessness legislation: [2010] EWCA Civ 336, para 76. Her appeal was dismissed and the judges order was stayed pending the filing of a notice of appeal to this Court. Ms Powells current position is that she is 23 years old and that her household consists of herself, her partner Mr Ahmad Sami and their four children, Zaid who is now 5, Nour who is now 4, Taysier who was born on 13 July 2007 and is now 3, and Laila who was born in July 2009 and is now 1. The family is in receipt of various benefits including housing benefit which covers all of the rental liability. In December 2009 the family was moved from 15 Pine Tree Close so that disrepair within the premises could be dealt with. Work was completed in April 2010, and the family returned to the premises and has remained in occupation ever since. (b) Hall Mr Hall became an introductory tenant of property at 147 Leeds and Bradford Road, Bramley, Leeds of which he was granted a sole tenancy by Leeds City Council (Leeds) on 21 April 2008 and where he lives alone. Allegations were made of noise nuisance and anti social behaviour by Mr Hall and by visitors to the property. The behaviour which was complained of was mainly of noise nuisance from loud music and television and the banging and slamming of doors. Mention was also made of shouting, screaming and arguing, banging on the communal door and ringing a neighbours doorbell at night and in the early hours of the morning. It was also said that Mr Hall had engaged in threatening and intimidating behaviour and had been verbally abusive towards his neighbours. On 1 July 2008 a noise abatement notice was served on him. He did not appeal against this notice, and he appears to have disregarded it as complaints continued to be received. On 28 November 2008 Leeds served a notice of proceedings for possession on him under section 128 of the 1996 Act. A review was sought, and the notice was withdrawn following the review. Leeds continued nevertheless to receive allegations of noise nuisance and anti social behaviour, so on 6 March 2009 it served a further notice of proceedings for possession on Mr Hall. He again requested a review, but this time the review hearing upheld the service of the notice. When the claim for possession came before His Honour Judge Spencer QC in the county court on 6 August 2009 the appropriateness of the notice was not challenged, nor was its validity. Mr Hall accepted in a statement that was produced for the trial that there may have been occasions when he had played loud music and that, when his now ex girlfriend visited him and they drank alcohol together, they would sometimes argue. He claimed that he had been drinking excessively because he had been suffering from depression and said that he had been receiving support from an organisation which supports vulnerable people who were having difficulty in maintaining their tenancies. He asked the court to consider whether matters occurring after the review could provide a basis for challenging Leeds decision to seek possession. The judge held that he could not consider anything occurring after the date of the review because section 127(2) of the 1996 Act provides that when, as happened in this case, the tenant has been served with a notice of proceedings that complies with section 128, the court shall make the order. He made an order for possession, the effect of which was that Mr Hall was required to give possession of the property on or before a date 28 days after the date when the order was made. He gave Mr Hall permission to appeal, and stayed execution of the order for possession pending the appeal. On 21 September 2009 Mr Hall lodged a notice of appeal and his appeal was heard together with that of Ms Powell and Mr Frisby as one of five appeals by the Court of Appeal (Waller, Arden and Patten LJJ) in March 2010. The court said that the judge ought to have considered whether the facts that had become known after the review made it arguable that the decision to pursue the proceedings was unlawful and in fact held that this was unarguable. This was because tenants are on probation under the introductory tenancy scheme, because the review was not challenged and because there was no basis for arguing that it was unlawful for a local authority to refuse to change its mind by reference to facts which simply sought to demonstrate that the occupiers behaviour had improved: [2010] EWCA Civ 336, para 79. The appeal was dismissed and the judges order was stayed for pending the filing of a notice of appeal to this Court. Mr Hall remains in occupation of the property. (c) Mr Frisby Mr Frisby became an introductory tenant of property at 9 Hebden Grove, Hall Green, Birmingham under a tenancy agreement with Birmingham City Council (Birmingham) dated 23 April 2007. Birmingham received complaints of excessive noise, including singing, music and banging emanating from the property. It served a noise abatement notice on Mr Frisby on 19 November 2007 which permitted proceedings to be brought for a warrant to confiscate sound producing equipment. On 4 February 2008 it served a notice under section 125A of the 1996 Act which had the effect of extending the trial period of the tenancy by six months to 22 October 2008. Mr Frisby was advised of his right to seek a review of the decision to extend his introductory tenancy but he did not do so. Having received further complaints of noise, Birmingham executed a warrant under the Environmental Protection Act 1990 and seized and removed sound producing equipment from the property. On 2 May 2008 Birmingham served a notice of proceedings for possession on Mr Frisby under section 128 of the 1996 Act. He requested a review of the decision to seek the order. When the review panel convened he raised a number of issues and the panel decided to adjourn the hearing as they needed further information. He did not attend the resumed hearing which proceeded in his absence, and the decision to commence proceedings was upheld. On 17 September 2008 Birmingham commenced proceedings for possession in Birmingham County Court. Mr Frisby filed a defence in which it was averred that Birmingham was amenable to judicial review and that the decision to seek possession was an improper exercise of its common law powers and an interference with his rights under article 8. The possession claim was heard by District Judge Gailey on 3 July 2009. He held in favour of Birmingham and struck out Mr Frisbys defence. But he acceded to an application that he should not make a possession order there and then but should first hear argument as to whether or not he should adjourn the proceedings to enable an application for a judicial review to be brought in the administrative court. On 27 October 2009 Mr Frisby was given permission to appeal against the judges decision, and the matter was referred to the Court of Appeal under CPR 52.14. As in the cases of Ms Powell and Mr Hall, his appeal was heard as one of five appeals by the Court of Appeal in March 2010. Having allowed certain additional expert evidence to be admitted, it dismissed the appeal: [2010] EWCA Civ 336, para 80. The judges order was stayed pending the filing of a notice of appeal to this Court. Mr Frisby remains in occupation of the property. The form and content of the proportionality review The basic rules are not now in doubt. The court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and it has crossed the high threshold of being seriously arguable. The question will then be whether making an order for the occupiers eviction is a proportionate means of achieving a legitimate aim. But it will, of course, be necessary in each case for the court first to consider whether the property in question constitutes the defendants home for the purposes of article 8. This is because it is only where a persons home is under threat that article 8 comes into play: Pinnock, para 61. It is well established in the jurisprudence of the Strasbourg court that an individual has to show sufficient and continuing links with a place to show that it is his home for the purposes of article 8: Gillow v United Kingdom (1986) 11 EHRR 335, para 46; Buckley v United Kingdom (1996) 23 EHRR 101, 115, para 54; see also Harrow London Borough Council v Qazi [2003] UKHL 43, [2004] 1 AC 983, paras 9, 61 68. In Pauli v Croatia, para 33 the court said: Home is an autonomous concept which does not depend on classification under domestic law. Whether or not a particular premises constitutes a home which attracts the protection of article 8(1) will depend on the factual circumstances, namely, the existence of sufficient and continuous links with a specific place. This issue is likely to be of concern only in cases where an order for possession is sought against a defendant who has only recently moved into accommodation on a temporary or precarious basis. The Leeds appeal in Kay v Lambeth London Borough Council [2006] 2 AC 465, where the defendants had been on the recreation ground in their caravan for only two days without any authority to be there, provides another example of a situation where it was not seriously arguable that article 8 was engaged: see para 48. In most cases it can be taken for granted that a claim by a person who is in lawful occupation to remain in possession will attract the protection of article 8. (a) homelessness The first question is whether in a case where domestic law imposes no requirement of reasonableness and gives an unqualified right to an order for possession, there is a requirement for an independent determination by a court of the issue of proportionality. In Pinnock it was held that the court must have the ability to assess the article 8 proportionality of making a possession order in respect of a persons home: para 63. This is so even if the defendants right of occupation has come to an end: Pinnock, para 45, applying McCann v United Kingdom, para 50; osi v Croatia, para 22; Zehentner v Austria, para 59; Pauli v Croatia, para 43; and Kay v United Kingdom, para 68. But it was also held that, as a general rule, article 8 need only be considered if it is raised by or on behalf of the residential occupier, and that if an article 8 point is raised the court should initially consider it summarily and if it is satisfied that, even if the facts relied on are made out, the point would not succeed it should be dismissed. Only if it is satisfied that it is seriously arguable that it could affect the order that the court might make should the point be further entertained: para 61. I would hold that these propositions apply as much in principle to homelessness cases as they do to demoted tenancies. It follows that in the great majority of cases the local authority need not plead the precise reasons why it seeks possession in the particular case. But if an article 8 defence is raised it may wish to plead a more precise case in reply. Mr Luba QC accepted that the threshold for raising an arguable case on proportionality was a high one which would succeed in only a small proportion of cases. I think that he was right to do so: see also Pinnock, para 54. Practical considerations indicate that it would be demanding far too much of the judge in the county court, faced with a heavy list of individual cases, to require him to weigh up the personal circumstances of each individual occupier against the landlords public responsibilities. Local authorities hold their housing stock, as do other social landlords, for the benefit of the whole community. It is in the interests of the community as a whole that decisions are taken as to how it should best be administered. The court is not equipped to make those decisions, which are concerned essentially with housing management. This is a factor to which great weight must always be given, and in the great majority of cases the court can and should proceed on the basis that the landlord has sound management reasons for seeking a possession order. If the threshold is crossed, the next question is what legitimate aims within the scope of article 8(2) may the claimant authority rely on for the purposes of the determination of proportionality and what types of factual issues will be relevant to its determination. The aims were identified in Pinnock, para 52. The proportionality of making the order for possession at the suit of the local authority will be supported by the fact that making the order would (a) serve to vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. Various examples were given of the scope of the duties that the second legitimate aim encompasses the fair allocation of its housing, the redevelopment of the site, the refurbishing of sub standard accommodation, the need to move people who are in accommodation that now exceeds their needs and the need to move vulnerable people into sheltered or warden assisted housing. In Kryvitska and Kryvitskyy v Ukraine (Application No 30856/03) (unreported) given 2 December 2010, para 46 the Strasbourg court indicated that the first aim on its own will not suffice where the owner is the State itself. But, taken together, the twin aims will satisfy the legitimate aim requirement. So, as was made clear in Pinnock, para 53, there will be no need, in the overwhelming majority of cases, for the local authority to explain and justify its reasons for seeking a possession order. It will be enough that the authority is entitled to possession because the statutory pre requisites have been satisfied and that it is to be assumed to be acting in accordance with its duties in the distribution and management of its housing stock. The court need be concerned only with the occupiers personal circumstances and any factual objections she may raise and, in the light only of what view it takes of them, with the question whether making the order for possession would be lawful and proportionate. If it decides to entertain the point because it is seriously arguable, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order that is being sought by the local authority: Kryvitska and Kryvitskyy v Ukraine, para 44. Mr Underwood QC drew attention to the fact that there was no express provision in Part VII of the 1996 Act which empowers a court to refuse to grant a possession order to the local authority where the occupier is accommodated following an exercise of the authoritys functions under that Part of the Act. He said that this was because Parliament had taken a positive decision not to provide secure tenancies to persons who were accommodated under the homelessness provisions unless the local authority chooses otherwise. Part VII was intended to be a life line for those who had nowhere to live; it uses accommodation which may be needed quickly for other cases; an occupier who is evicted through no fault of her own will be accommodated elsewhere; and if there is an issue about fault there is a right of review and of appeal. The thrust of this part of his argument was that it was not possible under the scheme of Part VII to meet the article 8 procedural requirement in a way that was called for by the decision in Pinnock. The answer to this argument is to be found in the fact that there is nothing in Part VII of the 1996 Act which either expressly or by necessary implication prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. In contrast to Pinnock, where the court was faced with a direction by the statute that, if the procedural requirements were satisfied, it must grant the order for possession, no equivalent provision is set out anywhere in Part VII. There is, of course, an important difference between Part VII and the regimes that apply to introductory and demoted tenancies, in that it is likely in homelessness cases that the occupier will be the subject of a continuing duty if she is still homeless, eligible for assistance and has a priority need and will be entitled to contest a finding that she became homeless intentionally. But the legitimate aims that justify seeking a possession order are just as relevant in homelessness cases. The question for the court will always be whether the making of an order for possession would be lawful and proportionate. Mr Luba then said that each of the exceptions to the security of tenure regime was there for a particular social housing reason. It was material to a consideration of the issue of proportionality, therefore, for the court to know whether the local authoritys reason for seeking a possession order was relevant in that context. In the case of an occupier who had been provided with accommodation under Part VII, seeking a possession order to enable the local authority to perform its homelessness functions, such as moving a family whose numbers had reduced to smaller accommodation, the case for granting the order would in the overwhelming number of cases be proportionate. But if the local authoritys decision was based on other factors such as rent arrears which were not related to the performance of its homelessness functions, it was not enough to tell the court that it was the local housing authority and to rely on the two legitimate aims. He said that a structured approach was required to the issue of proportionality so that the interests of the local authority could be balanced against that of the occupier: Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, paras 19 20. Support for this was to be found in Zehentner v Austria, para 56 where the court said that, while it was for the national authorities to make the initial assessment of necessity, the final evaluation as to whether the reasons cited for the interference are relevant and sufficient remains subject to its review for conformity with the requirements of the Convention. A structured approach of the kind that Mr Luba was suggesting may be appropriate, and indeed desirable, in some contexts such as that of immigration control which was the issue under discussion in Huang v Secretary of State for the Home Department. But in the context of a statutory regime that has been deliberately designed by Parliament, for sound reasons of social policy, so as not to provide the occupier with a secure tenancy it would be wholly inappropriate. I agree with Mr Stilitz QC for the Secretary of State that to require the local authority to plead its case in this way would largely collapse the distinction between secured and non secure tenancies. It would give rise to the risk of prolonged and expensive litigation, which would divert funds from the uses to which they should be put to promote social housing in the area. In the ordinary case the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances. It is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration of the issues of lawfulness or proportionality. If this test is not met, the order for possession should be granted. This is all that is needed to satisfy the procedural imperative that has been laid down by the Strasbourg court. The decision of the local authority to seek possession in a homelessness case will, of course, have been taken against the background of all the advice and assistance that the provisions of Part VII of the 1996 Act require to be given to the applicant. It is unlikely, as the course of events in Ms Powells case demonstrates, that the reason why it has decided to take proceedings for eviction will not be known to the tenant. The right to request a review of the decisions listed in section 202 and the right of appeal under section 204 are further factors to be taken into account. They provide the tenant with an opportunity to address any errors or misunderstandings that may have arisen and to have them corrected. She will have a further opportunity to raise such issues as a judicial review challenge by way of a defence in the county court. But that is a matter for the tenant, not for the local authority. There is no need for the court to be troubled with these issues unless and until, at the request of the tenant, it has to consider whether it should conduct a proportionality exercise. There may, as was pointed out in Pinnock, para 53, be cases where the local authority has a particularly strong or unusual reason for wanting to obtain possession of the property. It may think it desirable to inform the court of this fact so that it can take account of it in addition to the two given legitimate aims when it is determining the issue of proportionality. There is no reason why it should not ask for this to be done. But, if it wishes to do so, it must plead the reason that it proposes to found upon and it must adduce evidence to support what it is saying. The particular grounds on which it relies can then be taken into account in the assessment. No point can be taken against the local authority, however, if it chooses not to take this course and to leave it to the tenant to raise such points as she wishes by way of a defence. (b) introductory tenancies The above analysis applies equally to introductory tenancies. It cannot be said in their case that there is nothing in the statutory scheme which prevents the court from refusing to make an order for possession if it considers it would not be proportionate to do so. Section 127(2) is a direction to the contrary. But, for the reasons set out in paras 50 56 below, that subsection can be read and given effect so as to enable the county court judge to deal with a defence that relies on an alleged breach of the defendants rights under article 8. As to what this entails, the twin legitimate aims that were held in Pinnock to justify seeking a possession order in the case of demoted tenancies are just as relevant in the case of introductory tenancies. The question for the court will always be whether the making of an order for possession in their case too would be lawful and proportionate. The question as to what the procedural requirements are in the case of introductory tenancies must be judged against the fact that the tenant has a statutory right to request a review of the local authoritys decision to seek possession under section 129 of the 1996 Act. This strengthens the grounds for rejecting the structured approach to the issue of proportionality contended for by Mr Luba. As has already been stressed, the regime that applies to introductory tenancies has been deliberately designed by Parliament so as to withhold enjoyment of the right to a secure tenancy until the end of the trial period. In the ordinary case, as in cases of homelessness, the relevant facts will be encapsulated entirely in the two legitimate aims that were identified in Pinnock, para 52. It is against those aims that the court must weigh up any factual objections that may be raised by the defendant and what she has to say about her personal circumstances, and it is only if a defence has been put forward that is seriously arguable that it will be necessary for the judge to adjourn the case for further consideration. If this test is not met, the order for possession should be granted. Procedural protections The Court was invited to answer a series of practical questions which were designed to obtain advice as to the course that should be followed in homelessness cases to enable the occupier to make representations before or after service of a notice to quit and to enable the tenant to know the reasons why possession was being sought. Drawing upon the practice of pre action protocols, Mr Luba said that the procedural dimensions of article 8 could best be satisfied by requiring that, before possession proceedings are begun, the non secure occupier knows why the proceedings are being initiated and has an opportunity to make representations to the official charged with making the decision whether to bring proceedings. The Court was also invited to answer a series of questions directed to the way claims for possession in the case of introductory tenancies should be dealt with procedurally in the county court. Detailed questions as to the way claims should be dealt with procedurally are best addressed in the light of facts and circumstances arising from the way proceedings are actually being handled in practice. Otherwise there is a risk that such guidance as this Court can give will create more problems than it will solve. The statutory regimes that are in place must also be taken into account. These are not cases where the defendants were granted secure tenancies. There is no statutory obligation to give reasons with the notice to quit in homelessness cases, and the local authority does not have to justify its motives for seeking a possession order. It is not obvious that pre action protocols have a place in proceedings of this kind. Furthermore, on the facts of the present cases there is no real issue that needs to be addressed. Ms Powell was given warnings about her rent arrears and an opportunity to attend for interview and she discussed the problem of arrears with one of Hounslows officers. The notice to quit was accompanied by a letter giving reasons, and the claim for possession explained that there were arrears. The common law requirement of fair notice was, very properly, observed in her case by Hounslow and none of the steps that they took have been criticised as inadequate. As for the cases of Mr Hall and Mr Frisby, the local authorities told them that they had received complaints of excessive noise, noise abatement notices were served on them against which they did not appeal and in Mr Frisbys case offending equipment was removed from the property. The reasons for the decision to apply for a possession order were set out in the notice of proceedings as required by section 128(3) and the tenants were informed of their right to request a review, all as required by section 128(6). In R (McLellan) v Bracknell Forest Borough Council [2001] EWCA Civ 1510, [2002] QB 1129, para 103 Waller LJ said that where a review has taken place it should be the norm for the local authority to spell out in affidavits before the county court how the procedure was operated, how the hearing was conducted and the reason for taking the decision to continue with the proceedings. As Mr Luba pointed out, that suggestion was directed at the task of enabling the judge to decide whether to adjourn the claim so that a judicial review of the decision might be sought in the High Court. He invited the Court to set out a revised list of requirements that had to be satisfied in the context of a case which might raise issues of proportionality. I would, with respect, decline that invitation. Matters of that kind are more appropriate for a practice direction. In any event it is not for this court to give directions on matters of practice where the points at issue in the case do not require this to be done. Section 127(2) of the 1996 Act As already noted (see para 17, above), section 127(1) of the 1996 Act provides that the landlord may only bring an introductory tenancy to an end by obtaining an order of the court for possession of the dwelling house. Section 127(2) provides that the court shall make such an order unless the provisions of section 128 apply. That section directs the court not to entertain proceedings for possession unless the landlord has served on the tenant a notice complying with its requirements. One of the things that the notice must do is inform the tenant of his right to request a review of the landlords decision to seek a possession order: section 128(6). Section 129 provides that, so long as the request for a review is made no later than 14 days after the service of the possession order, the landlord must review its decision and that the review shall be carried out and the tenant notified before the date specified in the notice as the date after which proceedings for the possession of the dwelling house may be begun. On the face of it, the court has no discretion under section 127(2) as to whether or not it should make the order for possession. Its ordinary meaning is not in doubt. If the requirements of section 128 and by implication section 129 (see para 56, below) are met, the court must make the order whether or not it considers it proportionate to do so. The question that this issue raises is whether section 127(2) can nevertheless be read and given effect under section 3 of the Human Rights Act 1998 so as to permit the tenant to raise his article 8 Convention right by way of a defence to the proceedings in the county court and enable the judge to address the issue of proportionality. In Pinnock, paras 68 79, the Court addressed the proper interpretation of section 143D(2) of the 1996 Act, as amended, which together with sections 143E and 143F are so similar to those of sections 127 to 129 as to indicate that they were modelled on what those sections provide. Like section 127(2) in the case of a dwelling house let under an introductory tenancy, section 143D(2) provides when the court is asked to make an order for the possession of a dwelling house let under a demoted tenancy that the court must make the order (the word shall is not used, but the sense is the same) if the notice and review requirements have been complied with. As the Court noted in para 68, if section 143D was construed in accordance with the traditional approach to interpretation, it was hard to see how the court could have the power either to investigate for itself the facts relied on to justify the decision to seek possession, or to refuse to make an order for possession if it considered that it would be disproportionate to do so. The same problem arises with regard to section 127(2). Unless a solution can be found under section 3 of the 1998 Act, the language of that section appears to deprive the court of almost any ability to stand in the way of a landlord who had decided to seek possession against an introductory tenant: see Pinnock, para 69. In Pinnock it was held that it is open to a tenant under a demoted tenancy to challenge the landlords decision to bring possession proceedings on the ground that it would be disproportionate and therefore contrary to his article 8 Convention rights: para 73. This finding applies just as much in the case of introductory tenancies, so it must be concluded that, wherever possible, the traditional review powers of the court should be expanded to permit it to carry out that exercise in their case too. The courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering the facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view: Pinnock, para 74. As was observed in that case, however, much the more difficult question is whether it is possible to read and give effect to section 127(2) in a way that would permit the county court judge to do this. It is difficult because the wording of the subsection indicates that its purpose is to ensure that the court does nothing more than check whether the procedure has been followed. An introductory tenancy, after all, has been deliberately deprived of the protections that apply to a secure tenancy. It could be argued, as it was in Pinnock, that for the court to assess the proportionality of the decision to bring and continue the possession proceedings would go against the whole import of the section. It would amount to amending it rather than interpreting it: para 75. The Court decided in Pinnock to reject that argument for the reasons set out in paras 77 81. The question in this case is whether there is any good reason for not applying that decision to the regime that the 1996 Act has laid down for introductory tenancies. There are some differences between the two regimes. There is no demotion stage, as a tenancy becomes an introductory tenancy upon its commencement and it remains an introductory tenancy until the end of the trial period. And, while the language of sections 127 129 is for the most part reproduced, mutatis mutandis, in sections 147D 147F, there is one difference between them. Section 127(2) does not refer to section 129, unlike section 143D(2), which states: The court must make an order for possession unless it thinks that the procedure under sections 143E and 143F has not been followed. Furthermore, as Mr Underwood pointed out, Parliament had made a clear choice that introductory tenants were not to have the protection from eviction that secure tenants have. He said that there were many ways in which section 127(2) could be made compatible with article 8, and that it should be left to Parliament to choose between them. The fact that there is no mention in section 127(2) of the review procedure under section 129 can be seen to be of no consequence, in view of the direction in section 128(6) that the tenant must be informed of his right to request a review. The fact that there is no demotion stage in the case of an introductory tenancy does not affect the reasoning on which the decision in Pinnock was based. It was that, as lawfulness must be an inherent requirement of the procedure for seeking a possession order, it must equally be open to the court to consider whether that procedure has been lawfully followed having regard to the defendants article 8 Convention rights: para 77. It was by this route, and by the application of sections 3(1) and 7(1)(b) of the 1998 Act, that the Court held that section 143D(2) could be read and given effect to enable the county court judge to deal with a defence that relies on an alleged breach of the defendants rights under article 8. There is a sufficient similarity between section 127(2) and section 143D(2) to apply the reasoning in Pinnock to introductory tenancies also. Although the word procedure is not used in section 127(2), it does refer to the procedural requirements in section 128. So it should be read and given effect in the same way, and it is not necessary to resort to the making of a declaration of incompatibility. Section 89 of the 1980 Act The question raised by this issue is whether, if the argument is made out that the proportionate course would be to defer the delivery of possession for a period such as three months or to make a suspended order for possession, this can be done in the face of the provisions of section 89(1) of the Housing Act 1980. That section provides: (1) Where a court makes an order for the possession of any land in a case not falling within the exceptions mentioned in subsection (2) below, the giving up of possession shall not be postponed (whether by the order or any variation, suspension or stay of execution) to a date later than fourteen days after the making of the order, unless it appears to the court that exceptional hardship would be caused by requiring possession to be given up by that date; and shall not in any event be postponed to a date later than six weeks after the making of the order. (2) The restrictions in subsection (1) above do not apply if (a) the order is made in an action by a mortgagee for possession; or (b) the order is made in an action for forfeiture of a lease; or (c) the court had power to make the order only if it considered it reasonable to make it; or (d) the order relates to a dwelling house which is the subject of a restricted contract (within the meaning of section 19 of the [Rent Act 1977]); or (e) the order is made in proceedings brought as mentioned in section 88(1) above [proceedings for possession of a dwelling house let under a rental purchase agreement]. None of the exceptions listed in section 89(2) apply to tenancies which are not secure tenancies. The effect of subsection (1) of that section is to remove from the court the discretion which it had at common law to select whatever length of postponement it thought fit: see McPhail v Persons Unknown [1973] Ch 447. In his commentary on this section in Current Law Statutes Mr Andrew Arden (as he then was) suggested that the section did not prevent a greater period being allowed by consent. But it is difficult to see how the consent of the parties could confer a discretionary power on the court which has been removed from it by the statute. The question whether the section permits the court to allow a longer period on grounds of article 8 proportionality was left open in Pinnock, para 63. It did not need to be addressed on the facts of that case. It does not arise in any of the cases that are before this Court either, as it has not been suggested in any of them that an order postponing possession for a period in excess of six weeks is necessary to meet the requirements of article 8. In Ms Powells case the giving up of possession was postponed by 14 days. In Mr Halls case the period allowed was 28 days. In Mr Frisbys case the judge decided not make a possession order, so that an application could be made to the administrative court. But as the point was fully argued, and as it is a matter of some importance to know what scope there is for departing from the strict timetable on grounds of proportionality in cases of exceptional hardship, it is appropriate that the Court should deal with it. Two possible ways of enabling the court to depart from the strict timetable were suggested in argument. One was to read down the section under the power that the court is given by section 3(1) of the Human Rights Act 1998. The other was to exercise powers of case management by adjourning the proceedings if the six week period was likely to be insufficient to enable the tenant to remove from the property without incurring exceptional hardship, for such length of time as might be necessary to avoid it. The timetable is very precise as to the limit to the power to postpone. The words shall not in any event could hardly be more explicit. Its language is in sharp contrast to that of section 87 of the 1980 Act (now contained in section 85 of the Housing Act 1985, as amended), the first two subsections of which provided: (1) Where proceedings are brought for possession of a dwelling house let under a secure tenancy on any of grounds 1 to 6 or 10 to 13 in Part I of Schedule 4 to this Act, the court may adjourn the proceedings for such period or periods as it thinks fit. (2) On the making of an order for possession of such a dwelling house on any of those grounds, or at any time before the execution of the order, the court may (a) stay or suspend execution of the order, or (b) postpone the date of possession, for such period or periods as the court may think fit. The scheme of the 1980 Act, as the contrast between sections 87 and 89 illustrates, was to confer protection on secure tenants but to restrict it in relation to non secure tenants. Its long title states that among the Acts purposes was to restrict the discretion of the court in making orders for possession. Section 89 contains an express prohibition against exercising the extended powers given by section 85 in the case of secure tenancies. In the face of such strong statutory language, any reading down of the section to enable the court to postpone the execution of an order for possession of a dwelling house which was not let on a secure tenancy for a longer period than the statutory maximum would go well beyond what section 3(1) of the 1998 Act permits. As Lord Nicholls of Birkenhead said in Ghaidan v Godin Mendoza [2004] UKHL 30; [2004] 2 AC 557, para 33, for the courts to adopt a meaning inconsistent with a fundamental feature of legislation would be to cross the constitutional boundary that section 3 of the 1998 Act seeks to demarcate and preserve. Section 89 of the 1980 Act does not, of course, take away from the court its ordinary powers of case management. It would be perfectly proper for it, for example, to defer making the order for possession pending an appeal or to enable proceedings to be brought in the administrative court which might result in a finding that it was not lawful for a possession order to be made, as was contemplated by the judge in the case of Mr Frisby but is now no longer necessary. An adjournment would also be a permissible exercise of the courts discretion if more information was needed to enable it to decide what order it should make. But what the court cannot do, if it decides to proceed to make the order, is play for more time by suspending or staying its effect so as to extend the time limit beyond the statutory maximum. The question then is whether the Court should make a declaration of incompatibility under section 4 of the 1998 Act. This would be appropriate if there was good reason to believe that the time limit that the section sets is likely in practice to be incompatible with the article 8 Convention right of the person against whom the order for possession is made. Mr Ardens comment in Current Law Statutes indicates that at the time when section 89 of the 1980 Act was enacted postponements of orders for possession for periods of four to six weeks was normal. No evidence has been put before the Court to show that in practice the maximum period of six weeks is insufficient to meet the needs of cases of exceptional hardship. Furthermore, this is an area of law where the judgment of Parliament as to what was necessary to achieve its policy of restricting the discretion of the court in the case of non secure tenancies should be respected, unless it was manifestly without reasonable foundation: Blei v Croatia (2004) 41 EHRR 13, para 65. In these circumstances, as no obvious need for the section to be revisited has been demonstrated, I would decline to make a declaration of incompatibility. The disposal of these appeals (a) Ms Powell Mr Underwood informed the Court that Hounslow had decided, in the light of the decision in Pinnock, to offer Ms Powell suitable alternative accommodation. As before, this accommodation was to be provided on a non secure basis. Her rent arrears would be carried forward to the new tenancy on the basis that she continued to pay off the arrears at 5 per week, subject to any changes in her circumstances which would enable her to pay more. Mr Luba said that he was grateful for this offer, and he submitted that in any event the order that had been made against his client should not stand. Evidence had been heard by the district judge in her case. But this was not a full proportionality hearing of the kind contemplated by Pinnock, and her personal circumstances had not been examined. He invited the court to allow Ms Powells appeal. In view of the offer that had been made, Mr Underwood did not oppose this invitation in his oral argument. But in his written case, in which he invited the court to dismiss the appeal, he pointed out that the judge observed that the action taken by Hounslow was proportionate. Had it not been for the offer of suitable alternative accommodation, there might have been grounds for remitting Ms Powells case to the county court for consideration of article 8 proportionality. Giving effect to the order for possession would have the inevitable consequence of making Ms Powell homeless again so that the local authoritys duties to her will continue, unless she were to be found to be intentionally homeless or not to have a priority need. Had there been a live issue to be examined, it would have been preferable for her to be given an opportunity for the proportionality of the order to be considered in the light of her personal circumstances. As it is, it is not necessary to reach a view on this point. An offer of suitable alternative accommodation having been made, no good purpose would be served by maintaining the order for possession or the notice to quit which preceded it. I would allow this appeal for this reason and set the order and the notice to quit aside. (b) Mr Hall Mr Underwood informed the Court that Leeds had decided, in the light of the decision in Pinnock and as there had been no recent reports of his having caused a nuisance, to offer Mr Hall a secure tenancy of his current accommodation. Mr Luba said that he was grateful for this offer, but he submitted that the order that had been made against his client should not stand in any event as the judge had been wrong to refuse to consider anything occurring after the date of the review. He invited the court to dispose of the matter by allowing Mr Halls appeal. Mr Underwood acknowledged that Mr Hall did not have a proportionality hearing. But he submitted that under the introductory tenancy scheme it had no power to give him one, so the appeal should be dismissed. Mr Underwoods submission that the county court had no power to consider whether it was proportionate to make the order must be rejected. For the reasons set out in paras 50 56 above, it has that power. So, if there were grounds for thinking that it was seriously arguable that the making of the order was disproportionate, I would have remitted his case to the county court to enable him to present that argument. But the reasons given by the Court of Appeal for holding that it was unarguable that the decision was unlawful apply with equal force to the question whether, on the facts presented by Mr Hall, the decision was disproportionate. No grounds have been put before this Court for thinking that he could present a case which was seriously arguable. Had it not been for the offer of a secure tenancy, I would have dismissed his appeal. As it is, no good purpose would be served by maintaining the order for possession. I would, for this reason only, allow this appeal. (c) Mr Frisby Birmingham has not made any offer of settlement in Mr Frisbys case and Mr Arden indicated that it was not minded to do so. Mr Luba submitted that, as the district judge had considered only the question of venue and had adjourned the proceedings so that an application could be made for judicial review, the proper course was for this Court to allow the appeal so that proceedings could be resumed in the county court. Mr Arden, on the other hand, invited the Court to dismiss the appeal as Mr Frisby did not take advantage of the adjournment to take proceedings for judicial review and had given no indication of what the issues were that he wanted to raise. He said that he had had his chance, and that he should not be given a further opportunity. He pointed out that Mr Frisby did not appeal against the noise abatement notice, and it appeared that he was not in position to say that the notice of proceedings had not been properly served on him. In view of the way the case was dealt with in the county court, Mr Frisby did not have an opportunity to present his arguments on proportionality in that court. But I do not think that there is any reason for thinking that it is seriously arguable that the making of an order for possession in his case was disproportionate. As already noted (see para 30 and 31, above), when Mr Frisby was advised of his right to seek a review of the decision to extend his introductory tenancy he did not do so and, having requested a review of the decision to seek an order for possession, he did not attend the resumed hearing. The facts on which that decision was based are compelling, and no notice has been given of any grounds on which it might be suggested that the making of the order was disproportionate. I would dismiss this appeal. LORD PHILLIPS Introduction I am grateful to Lord Hope for setting out the facts and issues raised by these appeals with such clarity. I agree with his conclusions, but in relation to some of these I wish to add some comments of my own. I propose to do this, after an introductory overview, by addressing, in some cases very shortly, the issues set out in the Statements of Facts and Issues agreed by the parties. Article 8(1) of the Convention confers on everyone a right to respect for his home. It does not impose on a state, or a public authority within a state, a duty to provide a home or to sort out a persons housing problems see the comment of Lord Bingham in Kay v Lambeth London Borough Council [2006] 2 AC 465, at para 28 and the Strasbourg authorities cited by him. English law, and public authorities acting pursuant to that law, have gone further than the Convention requires. The law lays down a complex framework dealing with rights and obligations in relation to housing. Under this public authorities are under an obligation to provide accommodation for the homeless in the circumstances described by Lord Hope at para 11. The law also regulates the manner in which public authorities provide housing for those requiring this. Article 8, together with section 6 of the Human Rights Act 1998 (HRA), imposes on a public authority which has provided a person with a home a duty to have respect for that home. This imposes a fetter on the right of the authority to dispossess the occupier of his home. As a matter of substance, article 8(2) requires that dispossession should be pursuant to one or more of the specified legitimate aims and that it should be a proportionate means of achieving that aim. As a matter of procedure, the occupier is entitled to have any issue as to whether article 8(2) is satisfied determined by an independent tribunal. Parliament has gone a long way towards satisfying these requirements by express statutory provisions. It has created a class of secure tenants who cannot be dispossessed unless a court is satisfied, inter alia, that it is reasonable that they should be. Parliament has also, however, deliberately created classes of tenants who do not have security of tenure (non secure tenants). Parliament has conferred on some of these a degree of substantive and procedural protection, but has sought to place the decision on whether or not they should be dispossessed fairly and squarely on the local authorities themselves. It has sought to avoid, in so far as possible, questions of proportionality being pursued before the courts. The policy behind this approach is not in doubt. It is to prevent the delay and expense that may occur if those who are not entitled to security of tenure are permitted to resist the grant of possession orders by the courts by attacking the reasons that have led the local authorities to claim possession. The Strasbourg Court has made it plain that ousting the powers of the court to consider the proportionality of dispossessing a non secure tenant is not compatible with the procedural requirements of article 8. In Manchester City Council v Pinnock [2010] 3 WLR 1441 this Court held that it was possible to read section 143D(2) of the Housing Act 1996 as permitting a demoted tenant to raise the issue of proportionality by way of defence to an application for a possession order. These appeals require the Court to decide whether the reasoning in Pinnock applies where a local authority seeks, pursuant to section 127 of that Act, to recover possession of a property occupied by an introductory tenant or where possession is sought of property occupied pursuant to Part VII of the Act after the tenancy, or licence, has been terminated by a notice to quit. More generally, these appeals raise a number of questions which are not clearly answered by the decision in Pinnock. Foremost among these is the question of the matters to which the court must pay regard when an issue of proportionality is raised. INTRODUCTORY TENANCIES Mr Frisby, which arise in relation to introductory tenancies. Issue 1: Does article 8 apply at all to a claim for possession of premises held on an introductory tenancy? All parties were agreed that, in normal circumstances, the premises occupied by an introductory tenant constitute his home for the purposes of article 8. I endorse that agreement. When a tenant enters into occupation under an introductory tenancy the common intention is that, provided that the probationary period passes without incident, the tenancy will become secure. The tenant enters into the premises with the intention of making them his home and, for the purposes of article 8, they normally become his home. I shall start by considering the issues agreed in the appeals of Mr Hall and Issue 2: Must repossession of property that is occupied under an introductory tenancy be subject to an independent determination of proportionality under article 8(2)? It might have been thought that an affirmative answer to the first issue would necessarily require a similar answer to this issue. Counsel for the appellants, for Leeds City Council, and for the Secretary of State were agreed that this was so. Mr Andrew Arden QC, for Birmingham City Council, submitted to the contrary. He accepted that the premises occupied by an introductory tenant were his home for the purposes of article 8. He submitted, however, that the Strasbourg Court had never laid down an absolute requirement for an independent determination of proportionality. The grant of a non secure tenancy for a probationary period was properly to be considered as part of the process of allocating accommodation, or of the selection of tenants. This was a matter for the local authority, not for the courts. The existence of this probationary scheme was plainly in the interest of other tenants. In these circumstances, and having regard to the requirement that local authorities should be able to act swiftly, economically and decisively in allocating accommodation, there was, exceptionally, no requirement for an independent determination of proportionality. The exigencies of the introductory tenancy scheme outweighed the need for the tenant to be able to challenge proportionality before an independent tribunal. Pinnock could be distinguished because it dealt with demoted tenancies, which were not an integral part of the scheme of allocation. While I was initially attracted by this argument, I have not been persuaded by it. The provisions of Part V of the 1996 Act that relate to demoted tenancies closely mirror the provisions that relate to introductory tenancies. Each set of provisions has the effect of placing the tenant on probation, with good behaviour likely to earn the reward of a secure tenancy. I can see no principled basis for distinguishing between the two so far as concerns the manner of application of article 8. I would give an affirmative answer to the second issue. Issue 3: What legitimate aims may the local authority invoke when seeking to justify under article 8(2) the dispossession of an introductory tenant? This issue, and issue 4 which follows, arise on the premise that an affirmative answer is given to issue 5, a premise which, as I shall explain, I consider to be valid. I agree with Lord Hope (para 36) that the answer to this issue is provided by para 52 of the judgment of this Court in Pinnock. The legitimate aims itemised in article 8(2) include the protection of the rights and freedoms of others. This phrase is wide enough to embrace (i) the vindication of the authoritys ownership rights in the property and (ii) the compliance by the authority with its duties in relation to the distribution and management of the housing stock for the benefit of other tenants. A public authority can properly seek to justify its actions in dispossessing an introductory tenant by asserting that this was reasonably necessary to achieve these legitimate ends. I do not understand any of the parties to dissent from this conclusion which reflects the views expressed by the Strasbourg Court in McCann v United Kingdom (2008) 47 EHRR 913, at para 48. Issue 4: In the light of the legitimate aims, what types of factual issue will be relevant to any proportionality determination? This substantive question is distinct from the procedural question of how the relevant factual issues are to be brought before the court. The contentions of the parties. On this issue there was a wide variety of submissions. At one extreme was the case advanced by Mr Stilitz QC on behalf of the Secretary of State. He submitted that each of the two legitimate aims was individually so cogent that the particular reasons that motivated the local authority to seek to recover possession were an irrelevance. A local authoritys right to recover its own property from a recipient who had no legal right to remain in possession did not require to be supported by reference to the reasons which motivated the authority in seeking to exercise this right. This is how this proposition was expressed in para 50.1 of the Secretary of States written case in relation to homelessness cases: When assessing proportionality by reference to this legitimate aim, it is not necessary or appropriate for the court to investigate the factual merits of the local authoritys reasons for serving the notice to quit, as the merits of the local authoritys reasons are irrelevant to the assessment of proportionality against this particular legitimate aim. So far as the second legitimate aim was concerned, the Secretary of State submitted that it should be assumed that possession proceedings were brought in the proper, and (in terms of domestic public law) lawful discharge of the local authoritys housing duties. Similar submissions were advanced at para 64 of the Secretary of States case in relation to introductory tenancies: Unless the local authority specifically seeks to invoke the particular reasons for seeking possession given to the occupier under the statutory scheme, the factual inquiry on an article 8 challenge in the county court will be confined to the determination of the occupiers personal circumstances. At the other extreme, Mr Luba QC for Mr Frisby submitted that there was no restriction or inhibition on the factual matters that either party might deploy in relation to an issue of proportionality raised in possession proceedings. In relation to an introductory tenancy he submitted that the local authority could properly rely on anti social behaviour or rent arrears, indeed on any breach of the terms of the tenancy other than those which had no adverse impact on third parties, such as a modest failure to maintain the garden or the keeping of an innocuous pet. The tenant could raise any matters that he wished in support of his contention that dispossession was disproportionate. Mr Arden did not adopt the extreme case of the Secretary of State. He contended that it was open to the local authority to rely on a presumption that it was acting in proper pursuance of its duties in relation to the management and distribution of housing. It could, however, if it chose, rely upon specific reasons for seeking to recover possession. He accepted that it was open to a tenant to raise at the hearing of the possession application any of the matters previously raised in opposition to the dispossession on the statutory review under section 129 of the 1996 Act. Lord Hopes analysis Lord Hope deals with issues 3 and 4 together. He does so first in relation to homelessness cases, but goes on to apply the same reasoning to introductory tenancies. So far as issue 3 is concerned, I have agreed with Lord Hopes identification of the legitimate aims. He deals very shortly with the factual issues that may be relevant to the issue of proportionality. He states at para 37 that in the overwhelming majority of cases no issue will arise as to whether the authority is pursuing legitimate aims, for this will be presumed. The only factual issue that may arise will be whether, in the light of the occupiers personal circumstances, the order is lawful and proportionate. At para 41, dealing with homelessness, and again at para 45, when dealing with introductory tenancies, he states that in the ordinary case the relevant facts will be encapsulated in the two legitimate aims that were identified in Pinnock and that it is against those aims, which should always be taken for granted, that the court must weigh up any factual objections that may be raised by the defendant and what he has to say about his personal circumstances. Discussion I agree with Lord Hopes analysis. In seeking an order for possession, the local authority is not required to advance a positive case that this will accord with the requirements of article 8(2). This will be presumed by reason of the authoritys ownership of the property and duties in relation to the management of the housing stock. Ownership alone is not enough to satisfy article 8(2), where the owner is a social landlord, as Lord Hope observes at para 36, citing Kryvitska and Kryvitsky v Ukraine (Application No 30856/03) given 2 December 2010. Article 8(2) requires that the authority should be seeking possession in order to further the performance of its housing duties but, unless the tenant raises a challenge, this will be presumed. The question raised by issue 4 is, however, the nature of the challenge that it is open to the tenant to make. This is an important question. If article 8(2) requires that repossession of accommodation let on an introductory tenancy should be in furtherance of the authoritys housing duties, the same is true of the independent requirements of English public law. If the latter are satisfied, then, so it seems to me, it will almost inevitably follow that the requirements of article 8(2) are also satisfied. The policy behind the introductory tenancy scheme is not in doubt. It was well summarised in three short quotations at para 28 of Mr Ardens printed case, one from a consultation paper on Probationary Tenancies and two from parliamentary debates on the Housing Bill 1996. Introductory tenancies place the tenant on probation. They require the tenant to demonstrate that he is a good tenant, both as regards his behaviour towards his neighbours and as regards his contractual obligations to his landlord, before he is granted a tenancy that is secure for life. When deciding whether to dispossess a tenant who has been granted an introductory tenancy, a local authority must have regard to this policy. The authority cannot simply rely upon the fact that it owns the property and that the tenant has no security of tenure. The decision to dispossess the tenant must be a reasoned decision. Section 128(3) of the 1996 Act requires the tenant to be given notice of the reasons for the landlords decision to seek a possession order and section 129 entitles the tenant to a review of the decision and to the reasons for its confirmation if, indeed, it is confirmed. Under the Introductory Tenants (Review) Regulations 1997 (SI 1997/72) made pursuant to section 129(3) of the 1996 the tenant is entitled to an oral hearing of the review, carried out by a person who was not involved in the original decision and (where the decision makers are officers) senior to that person. He is entitled to be represented at that hearing. It is implicit in this scheme that the reasons for terminating the introductory tenancy before it becomes secure will be that, in one way or another, the tenant has proved unsatisfactory. That has certainly been the position in the cases of Mr Hall and of Mr Frisby. It is possible to envisage a proportionality challenge before the judge being based on exceptional personal circumstances which have nothing to do with the reasons for seeking the possession order. Normally, however, any attack on the proportionality of dispossession is likely to amount to an attack on the reasons given to the tenant for seeking the possession order. Either the tenant will argue that the facts relied upon by the authority to justify seeking the order do not do so, or he will contend that those facts were not accurate. In paras 51 to 53 this Court in Pinnock commented on the proposition that it will only be in very highly exceptional cases that it will be appropriate for the court to consider a proportionality argument. I believe that this proposition is an accurate statement of fact in relation to introductory tenancies. This is because the judge should summarily dismiss any attempt to raise a proportionality argument unless the defendant can show that he has substantial grounds for advancing this. Two factors make it extremely unlikely that the defendant will be in a position to do this. The first is the relatively low threshold that the authority has to cross to justify terminating the introductory tenancy. The second is the significant procedural safeguards provided to the tenant that I have described in para 90 above. As to the threshold, the arguments advanced by Mr Arden that I have considered at para 78 above are of some relevance. The introductory scheme is designed to enable a local authority to select as long term secure tenants those who demonstrate that they are unlikely to pose problems for the authority or for their neighbours. The authority can properly require a high standard of behaviour by the tenant during the probationary period. Thus I do not accept Mr Lubas suggestion that the authority could not properly rely upon a breach of the tenancy condition if it had no adverse impact on any third party. Furthermore, if a tenancy has given rise to complaints by neighbours of anti social behaviour the authority does not have to be in a position to prove that these are well founded in order to justify terminating the tenancy. As Waller LJ remarked in R(McLellan) v Bracknell Forest Borough Council [2002] QB 1129, at para 97: Under the introductory tenancy scheme it is not a requirement that the council should be satisfied that breaches of the tenancy agreement have in fact taken place. The right question under the scheme will be whether in the context of allegation and counter allegation it was reasonable for the council to take a decision to proceed with termination of the introductory tenancy. As to the procedural safeguards, they may not be enough in themselves to satisfy article 8(2) in that the decision makers are representatives of the authority and thus not independent. None the less, they have no axe to grind when deciding whether or not an introductory tenant has shown himself to be a suitable candidate for a secure tenancy. It is likely to be a rare case, particularly as the defendant has a right to a review, where the defendant will be in a position to demonstrate that there are substantial grounds for attacking the authoritys findings of fact, or the decision based on them. I note that in McCann at para 54 the Strasbourg Court accepted that it would only be in very exceptional cases that an applicant would succeed in raising an arguable case which would require the court to examine the issue and that in the great majority of cases it would be possible for possession orders to continue to be made in summary proceedings. Issue 5: Can section 127(2)of the 1996 Act be read compatibly with the occupiers article 8 rights so as to allow him to defend a claim for possession of premises held on an introductory tenancy in the county court? Mr Luba and Mr Stilitz submitted that this question should be answered in the affirmative on the ground that the reasoning of this Court in Pinnock in relation to section 143D(2) of the 1996 Act applied equally to section 127(2). Mr Arden and Mr Underwood submitted to the contrary. Mr Arden advanced two reasons for distinguishing the reasoning in Pinnock. The first was that demoted tenancies are relatively rare whereas introductory tenancies are the norm for all new lettings nationally and amount to tens of thousands a year. The second was that, syntactically it was not possible, as it had been in Pinnock, to imply the word lawfully into the statutory conditions precedent to making the possession order. Mr Underwood QC advanced a further argument against applying the reasoning in Pinnock to section 127(2). Section 143D(2) was inserted into the 1996 Act by amendment after the HRA came into force. Accordingly the construction of the subsection was subject to section 3 of the latter Act. The same was not true of section 127(2), which predated the HRA. Consequently the latter subsection had to be given its natural meaning. I have not found any of these arguments persuasive. Mr Arden himself accepted that, in principle, the volume of cases affected had no obvious impact on construction. As to the syntactical argument, the precise formulation of the proviso required by article 8 is of no significance. Compatibility can be achieved in the case of either subsection by implying the phrase provided that article 8 is not infringed. As to Mr Underwoods argument, section 3 of the HRA applies to all legislation, whether enacted before or after the HRA came into force. Insofar as this alters the construction given to legislation before the HRA came into force, the HRA has the effect of amending legislation: see Ghaidan v Godin Mendoza [2004] 2 AC 557. For the reasons given by Lord Hope in paras 50 to 56 I would give an affirmative answer to Issue 5. Issues 6 and 8: Procedural questions The parties agreed a considerable list of procedural questions which would arise if an affirmative answer were given to Issue 5. There is no doubt that the affirmative answer that I would give to that issue creates a requirement for some procedural rules in order to provide an orderly process by which (i) an introductory tenant can raise a proportionality issue by way of defence to a claim for a possession order in respect of his home and (ii) the authority seeking possession can respond to such a defence. I agree with Lord Hope that it is not appropriate for this Court to attempt to give directions or guidance in relation to the appropriate procedures. These are much better formulated in the form of rules of court, practice directions or protocols by those who are normally responsible for producing these. There is, however, one important matter of principle upon which I wish to comment. This is whether the local authority should be required to give notice of the reasons that have led it to seek possession of the defendants home. In the case of introductory tenancies this question is academic, for sections 128 and 129 of the 1996 Act expressly require reasons to be given. Accordingly I propose to deal with this question in the context of homelessness cases. Section 89 of the Housing Act 1980 Section 89 of the 1980 Act is of general application, so that it applies in relation to both introductory tenancies and homelessness cases. In Pinnock, at para 63, this Court raised, but did not answer, the question of whether article 8 of the Convention impacts on, or is incompatible with, the true construction of section 89. Lord Hope has dealt with this question at paras 57 to 64 of his judgment. I agree with his conclusions, but wish to add a word on the question of incompatibility, which he has considered at para 64. In any situation where the judge dealing with an application for a possession order has power to refuse to make the order on the ground that it would infringe article 8, no question of incompatibility can arise in relation to section 89. That section merely increases the options open to the judge. He can (i) make an immediate order for possession; (ii) make an order the operation of which is postponed up to the limit permitted by section 89; (iii) refuse to make the order on the ground that it would infringe article 8. The clear limit on the judges discretion to postpone the operation of the order may thus, in rare cases, have the consequence that the order is refused, whereas it would otherwise have been granted, subject to postponement of its operation for a greater period than section 89 permits. This is not a consequence that Parliament can have envisaged. Issue 7 This does not arise Issue 9: Disposal. For the reasons that he gives I would make the orders proposed by Lord Hope in respect of the appeals in the cases of both Mr Hall and Mr Frisby. HOMELESSNESS CASES I now turn to consider the position of those who, like Rebecca Powell, are provided with accommodation by a local authority pursuant to its duties under Part VII of the 1996 Act, which deals with homelessness. Lord Hope has summarised the essential features of this scheme at paras 11 to 13 of his judgment. The first two issues that I have considered in relation to introductory tenancies have not been raised in relation to tenancies under Part VII, for all parties have accepted, correctly in my view, that accommodation provided to the homeless will normally become their homes for the purposes of article 8 and that a judge, usually a district judge, who is considering an application for a possession order under Part VII, is entitled to entertain by way of defence to the application a submission that to make the order will infringe article 8. Issue 1: What special features, if any, apply to the determination of an article 8 defence in the context of accommodation provided under Part VII? Mr Luba has helpfully set out in his printed case six reasons why a person may be accommodated by a local authority under Part VII: (1) the authority has not yet reached a decision on the homelessness application but the applicant is being accommodated in the interim because he may be eligible, homeless and have a priority need: Housing Act 1996, section 188; (2) the authority is in the process of referring the application to a different local housing authority but accommodating the applicant until that process is resolved: Housing Act 1996, section 200; (3) the authority has determined the application but the applicant has invoked a statutory review or statutory appeal and the authority is accommodating until the review/appeal is determined: Housing Act 1996, sections 188 and 204(4); (4) the authority has decided to exercise its power to accommodate an applicant who is eligible, homeless, not intentionally homeless but not in priority need: Housing Act 1996, section 192(3); (5) the authority has decided that because the applicant is eligible, homeless, and in priority need but has become homeless intentionally it is under a duty to accommodate for such time as gives the applicant a reasonable opportunity of securing his own accommodation: Housing Act 1996, section 190(2)(b); or (6) the authority has decided that the applicant is eligible, homeless, in priority need and did not become homeless intentionally (the main housing duty): Housing Act 1996, section 193. It is apparent from this list why it is that a local authority will not normally be prepared to grant security of tenure where accommodation is provided under Part VII. The scheme is concerned with the provision of temporary accommodation while a persons claim under Part VII is addressed. The housing stock from which the authority provides this temporary accommodation may well not all be owned by the authority. Often it will have been obtained from a housing association or a private landlord. It is important that the authority should have the maximum flexibility to move, where necessary, a tenant from one unit of accommodation to another. Nevertheless, a tenant may be permitted to remain in accommodation provided under Part VII for a considerable period and the local authority may wish to remove the tenant from that accommodation not simply in the interests of the more efficient management of the housing stock, but because of shortcomings in the tenants behaviour, such as anti social activity or a failure to pay rent. Issue 2: What legitimate aims may the local authority invoke when seeking to justify under article 8 (2) the dispossession of a tenant who is in occupation of premises pursuant to Part VII? This issue is the same as Issue 3 in relation to introductory tenancies and the answer is the same (see para 80 above). The difference in practice is that the local authoritys decision under Part VII is more likely to be dictated by the practical requirements of making the best allocation of a limited and fluctuating housing stock. Issue 3: In the light of the legitimate aims what type of factual issues will be relevant to any such proportionality determination? Just as in the case of introductory tenancies, the factual issues that will be relevant if a defendant makes a proportionality challenge to the making of a possession order are likely to depend upon the reasons that have led the local authority to seek the order. As Mr Luba accepted, where the local authority simply wishes to relocate the defendant in alternative accommodation in the interests of the more efficient allocation of limited and fluctuating housing stock, it is not easy to envisage any issue of fact that the defendant could raise that would constitute a substantial ground for making a proportionality challenge. In this context it is relevant that section 202 of the 1996 Act gives a statutory right to a review of the suitability of accommodation offered to a person pursuant to a local authoritys duties under Part VII. Where the reason for seeking possession is alleged shortcomings on the part of the tenant, such as failure to pay rent, it will be open to the tenant to seek to challenge the facts upon which the decision is based. The position will be similar to that considered in relation to introductory tenancies. The defendant will have to show that he has substantial grounds for the challenge if he is to avoid the summary imposition of the possession order. As Mr Luba pointed out, where the reason is non payment of rent there is not likely to be much scope for bona fide issues of fact. For these reasons the statement that it will only be in rare cases that a valid proportionality challenge can be raised by way of defence to a possession order applies equally to repossession of accommodation provided under Part VII. Issue 4: Does article 8 require the local authority to give notice of its reasons for seeking possession? Mr Luba submitted that the procedural protections implicit in article 8 required that the tenant should be informed of the authoritys intention to seek possession and the reasons for it before service of the notice to quit, or at least before the commencement of the possession proceedings, in order to permit the tenant the opportunity to challenge those reasons and the authoritys decision. This raises an important question of principle. Sometimes a local authority will wish to recover possession of premises in the interests of a more effective allocation of the housing stock. Sometimes the authority will be reacting to the behaviour, or perceived behaviour of the tenant. In the latter event the authority may be proceeding on the basis of a factual assumption that is unsound. If the only reason that the authority is seeking possession is that the tenant has been guilty of bad behaviour, obtaining possession will not further the legitimate aims of the authority if that factual premise is unsound. If the defendant is not informed of the reason why the authority is seeking possession he will be denied the opportunity of displacing the presumption that the authoritys action will serve a legitimate aim. I do not believe that the Strasbourg Court would tolerate a regime under which a person can be deprived of his home by a public authority without being told the reason for this. Nor would I, for it is fundamentally unfair. In Connors v United Kingdom (2004) 40 EHRR 189, at para 94 the Strasbourg Court said: The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal . The references to flexibility or administrative burden have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid. The Court was there dealing with gipsies but those words are equally applicable in the present context. I do not suggest that there is any burden on a local authority, in the first instance, to justify to the court its application for a possession order or to plead the reason for seeking this. What I do suggest is that the tenant must be informed of the reason for the authoritys action so that he can, if so minded, attempt to raise a proportionality challenge. I do not believe that recognition of this obligation will have any significant practical consequences for I find it inconceivable that local authorities are, in practice, seeking possession orders against tenants accommodated pursuant to Part VII without telling them why they are doing so. Mr Luba told the Court that tenants under Part VII who are relocated by the local authority usually agree to this course. I would expect the local authority to inform the tenant of the reason for the proposed relocation, in order to procure this consent. Where it is the conduct of the tenant that has led to the authoritys action, I would equally expect the authority to make this plain. Certainly Hounslow did so in the case of Rebecca Powell. Mr Luba urges that notice of the authoritys reasons should be given before service of a notice to quit. I suspect that this is precisely what does happen in practice, but I would not, without further consideration, rule that article 8 requires this. It is possible that article 8 will be satisfied provided that the occupier is given the information he needs in time to decide whether or not to raise a challenge in the possession proceedings. Issue 5: When and how should notice of the authoritys reasons be given? These are matters of procedure on which I do not propose to comment. Mr Luba has referred the Court to a paper prepared by HH Judge Madge on Article 8 la lutta continua? (2009), JHL 2009, 12(3), 43 47, which has been approved by the Housing and Land Committee of the Civil Justice Council. I consider that Judge Madge and that Committee are better placed to decide upon the appropriate procedural changes required by Pinnock and by the decision on these appeals than am I. Issue 6 This raises the point on section 89 that I have already considered in the context of introductory tenancies. Issue 7: Should the judge hearing the application for possession also rule on the validity of the notice to quit? Mr Luba draws attention to the fact that if the judge refuses to make a possession order on article 8 grounds, but does not also rule that the notice to quit was unlawful, the defendant will remain in possession as a tolerated trespasser rather than as a non secure tenant. He urges that this court should endorse the view expressed by Lord Scott in Doherty v Birmingham City Council [2008] UKHL 57; [2009] AC 367, at para 84 that the judge hearing a challenge to the claim for a possession order should also be prepared to entertain an article 8 challenge to the validity of the notice to quit. This issue interrelates with the point that I have considered under Issue 4. I can, in principle, see no reason why, if the validity of the notice to quit is challenged by way of defence to the claim for possession, the judge should not be entitled to deal with that challenge. Issue 8: Disposal I agree, for the reasons that he gives, that Rebecca Powells appeal should result in the order proposed by Lord Hope. LORD RODGER, LORD WALKER, LADY HALE, LORD BROWN LORD COLLINS For the reasons given by Lord Hope and Lord Phillips, with which we entirely agree, we too would make the orders proposed by Lord Hope.

These appeals concern the making of orders for possession of a persons home in favour of a local authority. The issue is whether, in circumstances where the occupier is not a secure tenant, the court that makes the order must consider the proportionality of making it. Most residential occupiers of property owned by local authorities are secure tenants under the Housing Act 1985. This restricts the circumstances in which they can be evicted. Certain types of tenancy, however, are excluded from that regime. The case of London Borough of Hounslow v Powell involved one such type: accommodation provided under the homelessness regime in Part VII of the Housing Act 1996. In order to regain possession of such accommodation, domestic law requires only that the local authority must give notice to quit and obtain a court order. Ms Powell, as a homeless person to whom the local authority owed a duty to provide accommodation, had been given a licence to occupy property under Part VII. Rent arrears of over 3,500 accumulated and the local authority issued a claim for possession of the property. The court hearing the claim made an order requiring Ms Powell to give up possession. The cases of Leeds City Council v Hall and Birmingham City Council v Frisby involved a second type of non secure tenancy: introductory tenancies entered into under Part V of the Housing Act 1996. This type of tenancy is designed to provide an initial period of probation. It remains introductory for a period of one year, after which it becomes secure unless the introductory tenancy has been terminated. If the local authority decides to terminate the introductory tenancy the tenant is entitled to a review of that decision, but once the relevant procedures have been gone through section 127(2) of the 1996 Act provides that the court shall make a possession order. Mr Hall and Mr Frisby had both been granted introductory tenancies, by Leeds and Birmingham City Councils respectively. Allegations were made against them of noise nuisance and anti social behaviour. The local authorities served notices indicating their intention to seek possession, which were upheld on review. In possession proceedings the courts found in favour of the local authorities. The three occupiers appealed to the Court of Appeal. They argued that Article 8 of the European Convention on Human Rights, which provides that Everyone has the right to respect for his home, required that the court hearing the possession proceedings must be able to assess the proportionality of making the orders against them. As the court did not do this, there was a breach of their Article 8 right. The Court of Appeal dismissed the appeals and the occupiers appealed to the Supreme Court. The Supreme Court unanimously holds that a court must have power to consider the proportionality of making possession orders under the homelessness and introductory tenancy schemes. In the cases of Powell and Hall the Court allows the appeals and, having considered the facts in the case of Frisby, it dismisses his appeal. Lord Hope and Lord Phillips give judgments. These cases were a sequel to the case of Manchester City Council v Pinnock [2010] UKSC 45. There the Supreme Court held that Article 8 of the European Convention on Human Rights requires that a court, which is being asked to make a possession order against a person occupying under the demoted tenancy scheme in Part V of the Housing Act 1996, must be able to consider whether it would be proportionate to do so. The present cases raised the question of whether that principle applied to the homelessness and introductory tenancy schemes and, if so, how cases of this kind should be dealt with in practice by the courts. The Court held that the principle from Pinnock applied to the homelessness and introductory tenancy schemes: in all cases where a local authority seeks possession of a property that constitutes a persons home under Article 8, the court must be able to consider the proportionality of making the order. [3] The Court then set out general guidance on meeting this requirement. A court will only have to consider whether the making of a possession order is proportionate if the issue has been raised by the occupier and has crossed the high threshold of being seriously arguable. The threshold will be crossed in only a small proportion of cases. The question then will be whether making an order for possession is a proportionate means of achieving a legitimate aim. Two legitimate aims should always be taken for granted: the making of the order will (a) vindicate the authoritys ownership rights; and (b) enable the authority to comply with its public duties in relation to the allocation and management of its housing stock. The authority is not required to plead in advance any more particularised reasons or to advance a positive case that possession would accord with the requirements of Article 8: such a requirement would collapse the distinction between secure and non secure tenancies. Where the local authority has a particularly strong or unusual reason for seeking possession, however, it is entitled to ask the court to take that reason into account and it should plead the reason if it wishes the court to do so. If a court entertains a proportionality argument, it must give a reasoned decision as to whether or not a fair balance would be struck by making the order sought. [33] [49] On the face of it, section 127(2) of the Housing Act 1996 gives the court no discretion in the case of an introductory tenancy. But this does not prevent the court considering proportionality. Given that lawfulness is an inherent requirement of the procedure for seeking a possession order, it is open to the court to consider whether that procedure has been lawfully followed in respect of the defendants Article 8 rights. [56] Section 89 of the Housing Act 1980, however, does restrict the courts discretion as to the period for which the taking effect of the order can be deferred. The section provides that a court making a possession order cannot postpone the date for possession for more than fourteen days or, in the case of exceptional hardship, six weeks. The Supreme Court held that the mandatory language of the section prevents a court allowing a longer period to comply with the requirements of proportionality. There was, however, no indication that proportionality requires a longer period and therefore no reason to declare section 89 incompatible with Article 8. [64]

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As is common knowledge, the whole system of funding higher education was reformed, broadly in accordance with the recommendations of Lord Brownes Report, Securing a Sustainable Future for Higher Education (October 2010), in 2011. The aims were further to widen participation in higher education, so that everyone who had the potential to do so should be able to benefit from it; to increase student choice and therefore competition between institutions; and to produce more investment for higher education. The fees which universities were allowed to charge their students would increase to something closer to what it cost to educate them; the fees paid by the students, and a sum for their maintenance, would be financed by loans from Government (through an arms length entity); these loans would only be repaid when the students could afford to do so and at a rate which they could afford. This case is about the criteria for eligibility for those loans, which exclude young people who have been settled here for many years in the factual sense but are not so settled in the legal sense. In order to qualify for a loan, a student must (a) be resident in England when the academic year begins; (b) have been lawfully ordinarily resident in the United Kingdom for the three years before then; and (c) be settled in the United Kingdom on that day. The issue is whether either criterion (b) or criterion (c) breaches the appellants right to education, under article 2 of the First Protocol to the European Convention on Human Rights, or unjustifiably discriminates against her in the enjoyment of that right. The Facts The appellant is a national of Zambia, born in 1995. She came to this country with her parents in 2001, at the age of six. Her father had a student visa and she and her mother came with him, lawfully, as his dependants. Her father left the UK in 2003, but she and her mother stayed on after their visas had expired. The appellant has lived in the UK since 2001. She has been educated here, through reception, primary, secondary and sixth form studies, has worked hard and has done very well. She was Head Girl of her secondary school and went on to the sixth form at Archbishop Holgates School in York. She has obtained seven GSCEs and the equivalent of three A levels with grades of A*, A, and C. These would have been sufficient to enable her to take up the place she had been offered by Northumbria University to read for a degree in International Business Management in the academic year 2013 2014; but in order to do so she needed a student loan. Hayden J was perfectly satisfied that outside the loan scheme there is no other realistic option for her to fund university education (para 7). Accordingly, on 20 April 2013, she applied on line to Student Finance England (the trading name of the Student Loans Company Ltd, which administers the scheme). They requested further information about her immigration status. She took legal advice and discovered that she was not eligible for a student loan. Her mother had taken no steps to regularise their immigration status after her father had left in 2003, but the appellant states that growing up, I had no idea what my immigration status was, which seems likely. In September 2010, the UK Border Agency (UKBA) served upon her mother and her (as her mothers dependant) forms notifying them that they were over stayers and thus liable to removal from the UK, but at the same time granting them temporary admission to the UK. On 30 January 2012, the UKBA granted them both discretionary leave to remain (DLR) until 29 January 2015. The letter stated that You are free to take a job and do not need the permission of any Government Department before doing so. You are free to use the National Health Service and the social services and other services provided by local authorities as you need them. The grant of DLR was not subject to a condition that she did not have recourse to public funds. Accordingly, she is not excluded from state benefits such as income based job seekers allowance and housing benefit (Immigration and Asylum Act 1999, section 115). On 29 January 2015, the appellant applied for a further grant of DLR, using the correct form for doing so. On 30 April 2015, this was granted until 30 April 2018. Her covering letter asked that the Secretary of State also consider granting her indefinite leave to remain (ILR), but this was subsequently rejected on the ground that she had not shown compelling reasons for dispensing with the normal qualifying period of DLR. Under the terms of a published Home Office policy, which applies to those like the appellant who were granted DLR before 9 July 2012, she will be entitled to apply for ILR after six years of DLR, that is, in 2018. For those granted DLR after that date, however, consecutive periods of ten years of limited leave to remain are required before a person in her position is eligible to apply for ILR. Applications can be made for ILR to be granted outside the Rules, but the current guidance makes it clear that the Home Office does not regard the desire to qualify for a student loan as a good reason for granting ILR (Immigration Directorate Instruction, Family Migration: Appendix FM, section 1.0b, para 11.3.1). These proceedings were launched in June 2013, but delayed while the proceedings in R (Kebede) v Secretary of State for Business, Innovation and Skills [2013] EWHC 2396 (Admin), [2014] PTSR 92, which raised the same issues, were continuing. They were renewed after the appeal against the refusal of relief in that case was withdrawn. Meanwhile, the appellant did not take up the offered place at Northumbria, but applied through clearing for a place closer to her home in York. She was offered a place and started the course at the University of Hull in October 2013, with the aid of a commercial student overdraft facility and her mother, who took a better paid job in London in order to help her. But it soon became apparent that she would not be able to afford the travelling costs and so she withdrew after two weeks. She made another attempt to start a course at Middlesex University in the academic year 2014 2015, again with the help of her mother and her mothers partner, but withdrew from that after the first term, because of her concerns about the financial pressures on her mother and the quality of the course. She still hopes to be able to start again in the academic year 2015 2016 and has unconditional offers from five universities, including Manchester Metropolitan University, her top choice. Whether this is a realistic possibility depends upon the outcome of these proceedings. The appellant is not alone in her predicament. The Coram Childrens Legal Centre and the interveners, Just for Kids Law, are aware of many other young people who have been in this country for years, have studied alongside their British classmates, and have planned and qualified to go on to university when their classmates do. Often they were unaware of their immigration status and the barrier it would pose to achieving their academic potential and ambitions. Save (perhaps) for those who arrived as unaccompanied asylum seeking children, their immigration status is not their fault, but that of their parents or those responsible for their welfare (such as the local authority looking after the claimants in Kebede). Some of these young people have set up their own campaign group, under the auspices of Just for Kids Law, called Let us Learn. Alison East, of the Coram Childrens Legal Centre, describes the impact upon them thus: Our experience suggests that young people find not being able to go to university, when that would be a natural educational progression alongside their peers, incredibly difficult. They have worked hard to do well at school and at college, and aspire to achieve the best they can. Seeing their friends and peers go to university when they cannot, and being aware of being held back for as long as ten years in pursuing qualifications that are essential in a competitive job market, inevitably causes these young people to feel marginalised. They feel that it is deeply unfair as they are not asking for a grant of money but only to be loaned the money which will allow them to progress, alongside their peers, into well paid work so that they can pay that loan back. No one knows how many such young people there are. In his first witness statement on behalf of the Secretary of State, Paul Williams assumed that there might be 2,400 extra applicants for student loans in any one year. In his second witness statement this had come down to around 2000. In fact, the Home Office statistics reveal that in 2013, a total of just over 2000 people aged 16 to 23 were granted either DLR or its replacement, limited leave to remain (LLTR). These grants are, of course, for 30 months or two years. But not all of these young people will aspire to go to university or apply for student loans. It is perhaps fair to say that the numbers affected are not insignificant but a tiny proportion of the student loans which are made each year. It is also relevant to note that the cap on the number of home and EU undergraduate students who may be admitted to read for first degrees has been progressively relaxed and is to be removed completely in the academic year 2015 2016. Professor Ian Walker, of the Department of Economics at Lancaster University, was commissioned by the Department for Business, Innovation and Skills (BIS) to write a report on The Impact of University Degrees on the Life Cycle of Earnings: Some Further Analysis (BIS Research Report No 112, 2013). This concludes that the average net financial benefit of a degree to the individuals concerned is of the order of 168,000 for men and 252,000 for women. The benefit to the government is even larger, of the order of 264,000 from men graduates and 318,000 from women. These calculations take into account the two elements of taxpayers subsidy involved in the student loan scheme: first, the small difference between the interest rate levied on the loans and the cost to the government of borrowing the money; and second, the more important element of forgiveness, in that repayments outstanding after 30 years are written off. This benefits graduates who do not do so well in the labour market and are not required to repay at the rates required of the higher earning graduates. These are purely financial calculations, leaving out all the other benefits of higher education, not only to the individuals but also to society: see The Benefits of Higher Education Participation for Individuals and Society: Key Findings and Reports: The Quadrants (BIS Research Paper No 146, October 2013), where they are graphically displayed with links to the supporting evidence. As Mr Williams accepts, the benefits of higher education have never been in dispute. Professor Walker was asked, for the purpose of these proceedings, to explain the relevance of his research to the group of young people with DLR or LLTR who are currently ineligible for student loans. He points out that the incentives for them to move to another country are likely to be small, that there is no reason to think that they would perform less well, on average, in higher education and the labour market than their eligible peers: The implication is that there would be sizeable gains to the Exchequer in the long run to extending student loans provisions to this relatively small group. It must, however, be borne in mind that gains to the Exchequer do not necessarily translate into gains for BIS, the Department which is responsible for funding the scheme. These proceedings The appellant claimed that both the settlement criterion and the lawful ordinary residence criterion constituted unjustified and discriminatory restrictions on her right to education under both article 2 of the First Protocol and article 14. Her claim was heard in July 2014 by Hayden J who held that her rights had been violated by the application to her of the settlement criterion but not by the application of the lawful ordinary residence criterion: [2014] EWHC 2452 (Admin). He did not grant any specific relief and gave both parties permission to appeal. The appeal was expedited and heard only two weeks later, on the last day of the legal year. The Secretary of States appeal against the judges decision on the settlement criterion was allowed and the appellants appeal against his decision on the lawful ordinary residence criterion was dismissed: [2014] EWCA Civ 1216. Laws LJ (with whom Floyd LJ agreed) held that the Secretary of State was justified in making, and might even be rationally required to make, a bright line rule and he was entitled to adopt a criterion based on settlement as defined from time to time by the Home Office. In the view of Vos LJ, however, what saved the requirement was the possibility that the Home Office might exercise its discretion to grant ILR to children in accordance with the Secretary of States duty under section 55(1) of the Borders, Citizenship and Immigration Act 2009 to ensure that her functions are discharged having regard to the need to safeguard and promote the welfare of children in the United Kingdom. Neither side supports that view on the appeal to this court, not least because the Home Secretary does not regard the need to qualify for a student loan as a reason to make an exception to the Rules. The law on eligibility for student loans The parent statute is the Teaching and Higher Education Act 1998. So far as relevant, section 22 provides that: (1) Regulations shall make provision authorising or requiring the Secretary of State to make grants or loans, for any prescribed purpose, to eligible students in connection with their [undertaking] (a) higher education courses, which are designated for the purposes of this section by or under the regulations. (2) Regulations under this section may, in particular, make provision (a) for determining whether a person is an eligible student in relation to any grant or loan available under this section. The Secretary of State for this purpose is the Secretary of State for Business, Innovation and Skills, and not the Secretary of State for Education, who is responsible for primary and secondary education, or the Secretary of State for the Home Department, who is responsible for immigration. The relevant Regulations are the Education (Student Support) Regulations 2011 (SI 2011/1986) (the Regulations). Regulation 4(2) defines an eligible student as a person whom the Secretary of State determines falls within one of the categories set out in Part 2 of Schedule 1. Part 2 of Schedule 1 has 12 paragraphs, listing some 20 categories of person. Six of these are to observe the UKs obligations in international law towards refugees and people granted humanitarian protection and their family members. Thirteen are to observe the UKs obligations towards people from the European Economic Area, Switzerland and Turkey, and towards people settled in the UK who have exercised their rights of residence within the EEA or Switzerland. That leaves paragraph 2, which contains the basic category: (1) A person who on the first day of the first academic year of the course (a) (b) (c) has been ordinarily resident in the United Kingdom and Islands throughout the three year period preceding the first day of the first academic year of the course; and (d) whose residence in the United Kingdom and Islands has not during any part of the period referred to in para (c) been wholly or mainly for the purpose of receiving full time education. is settled in the United Kingdom ; is ordinarily resident in England; In para 1(1) Part I of Schedule 1, settled is defined as having the meaning given in section 33(2A) of the Immigration Act 1971. This provides that references to a person being settled in the United Kingdom are references to his being ordinarily resident there without being subject under the immigration laws to any restriction on the period for which he may remain. This of course includes UK nationals with the right of abode, but for others it means that they have been granted indefinite leave to remain in the United Kingdom. Other forms of leave to enter or remain in the United Kingdom, including DLR and LLTR, are granted for specific periods. In most cases, a persons immigration status will be readily ascertainable from his passport, if he has one. The persons to whom, and the circumstances in which, ILR will be granted are determined by the Immigration Rules made by the Secretary of State for the Home Department and her policies. Like all immigration policy, they are subject to change, as the facts of this case show: a person like the appellant, who was granted DLR before 9 July 2012, will normally be granted ILR after six years of DLR, whereas a person granted DLR after that date will have to wait for ten years. There is no reason to suppose that the Home Secretary takes the educational rights or aspirations of applicants into account in determining these criteria. By para 1(2A) Part I of Schedule 1 to the Regulations, for the purpose of that Schedule, a person is not to be treated as ordinarily resident in a place unless that person lawfully resides in that place. This was no doubt inserted out of an abundance of caution, despite the observation in R v Barnet London Borough Council, Ex p Shah [1983] 2 AC 309, at p 343, that, at least for educational purposes, ordinary residence did not include a person whose residence in a particular place or country was unlawful. However, there are contexts in which lawfulness is not implied (for example, in relation to habitual residence for the purpose of jurisdiction in matrimonial causes, see Mark v Mark [2006] 1 AC 98), and the implication had been challenged, albeit unsuccessfully, in R (Arogundade) v Secretary of State for Business, Innovation and Skills [2013] EWCA Civ 823, [2013] ELR 466. At an earlier stage in this litigation, it was argued that the grant of temporary admission in 2010 was sufficient to make the appellants residence lawful for this purpose, but that suggestion was rejected by the Court of Appeal (para 60) and is no longer pursued. It is common ground, therefore, that the appellant did not achieve three years lawful ordinary residence until January 2015. It is perhaps worth noting that the three years ordinary residence test dates at least as far back as the University and Other Awards Regulations 1962 (SI 1962/1689), made under the Education Act 1962, which introduced the system of mandatory grants for university education (from which so many of my generation of students benefitted). The settlement criterion, on the other hand, was not introduced until the Education (Mandatory Awards) Regulations 1997 (SI 1997/431). This was not only 35 years after a system of mandatory student finance had been introduced, but also 14 years after the House of Lords decision in Shah, which had defined ordinary residence as a mans abode in a particular place or country which he has adopted voluntarily and for settled purposes as part of the regular order of his life for the time being, whether of short or of long duration (p 343). This may have been a broader definition than had hitherto been thought, but principally because it included people who had come here wholly or mainly for the purpose of study. It cannot be suggested that before this time, ordinary residence was necessarily equated with ILR or any particular immigration status. For completeness, it should be noted that in 1980, before the introduction of the settlement criterion, the requirement of three years ordinary residence was removed for refugees (SI 1980/1352). For reasons which the Secretary of State is unable now to explain, in 1981, the definition of refugee was enlarged to include a person who enjoys asylum in the United Kingdom in pursuance of a decision of Her Majestys government though not so recognised (that is, recognised as a refugee for the purpose of the 1951 Geneva Convention on the status of refugees). When the settlement criterion was introduced in 1997, a similarly worded category of failed asylum seekers continued to be exempted from both the settlement and the residence requirements. Not surprisingly, when challenged, the Secretary of State conceded that the distinction drawn between those people with DLR who had applied unsuccessfully for asylum and those who had not done so was irrational (see the account given by McCombe LJ in Arogundade at para 10). Thus, for a short time, all persons with DLR/LLTR were treated as eligible for student loans under this category. It was, however, soon abolished (see SI 2011/87). It is fair to say that, just as there is no evidence of the reasons for including failed asylum seekers within the categories of eligible persons, there is also no evidence that thought was given to the impact of removing eligibility from all people with DLR or LLTR, irrespective of the strength of their connections with the United Kingdom. (There is evidence that the Department considered, but rejected, making an exception for unaccompanied asylum seeking children, who are routinely granted DLR/LLTR until the age of 171/2.) An Equality Impact Assessment of Student Funding Policy for Holders of Discretionary Leave to Remain in the UK was completed in 2011, but this was concerned only with the impact of the policy upon people with the characteristics protected by the Equality Act 2010 and not with the impact upon education rights under the European Convention. Finally, it should be emphasised that we are concerned only with the law in relation to students who are ordinarily resident in England on the day when the academic year begins. Financial support for students ordinarily resident in Wales, Scotland and Northern Ireland is a devolved function, and the regulations in each place are different from those in England. Under challenge in these proceedings, therefore, are (a) the settlement criterion, and (b) the lawfulness element in the three year residence criterion. This litigation is concerned only with eligibility for student loans, but such eligibility is also a passport to the right to be charged the fees applicable to home students; without it a university is free to charge the fees applicable to overseas students (often significantly higher), although it does not have to do so. Convention rights Under article 2 of the First Protocol to the European Convention on Human Rights (A2P1), Everyone has the right to education. This does not, however, oblige Member States to provide any particular system of state education. Rather, as was stated in the Belgian Linguistics case (No 2) (1968) 1 EHRR 252, at p 281, it affords people the right in principle to avail themselves of the means of instruction existing at a given time. Hence, in ahin v Turkey (2005) 44 EHRR 99, at para 137, the Grand Chamber explained that [a]lthough [A2P1] does not impose a duty on the contracting states to set up institutions of higher education, any state doing so will be under an obligation to afford an effective right of access to them. So fundamental is the role that education plays in the furtherance of human rights in a democratic society that the article should not be given a restrictive interpretation. The United Kingdom has indeed established a large and flourishing higher education sector, which, although technically consisting of private institutions, is to a large extent supported, either directly or indirectly, from public funds. Furthermore, as the court reiterated, It is of crucial importance that the Convention is interpreted and applied in a manner which renders its rights practical and effective, not theoretical or illusory (para 136). Making it prohibitively expensive for some students to gain access to higher education would make that right theoretical or illusory. Hence the Secretary of States accepts that in certain circumstances eligibility for financial support is capable of coming within A2P1 (and see R (Kebede) v Secretary of State for Business, Innovation and Skills [2013] EWHC 2396 (Admin), [2014] PTSR 92, para 33). The appellant complains that denial of access to a student loan has denied her access to the higher education provided in this country. But her real complaint is that some people get student loans and others do not, in short of discrimination. Article 14 provides: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. It is now conceded that immigration status is another status for this purpose. It is therefore unnecessary for us to consider whether, even if it were not, the denial of a student loan to this appellant, when such loans are made available to other university students, would constitute and unjustified denial of her right to education. Whether considered under A2P1 alone or under article 14, taken together with A2P1, the issue is justification. There has been some debate before us as to the approach which we should take to scrutinising a governmental decision in this area. On the one hand, in Strasbourg, a wide margin of appreciation is usually allowed to the state under the Convention when it comes to general measures of political, economic or social strategy, and the court generally respects the legislatures policy choice unless it is manifestly without reasonable foundation: see, for example, Gogitidze v Georgia (Application No 36862/05), (unreported) given 12 May 2015 para 97. This test was first developed when considering whether an interference with the rights of property guaranteed by article 1 of the First Protocol (A1P1) was in the public interest: see James v United Kingdom (1986) 8 EHRR 123. That test has also been employed in Strasbourg and domestically when considering the justification for discrimination in access to cash welfare benefits, themselves a species of property right protected by A1P1: see Humphreys v Revenue and Customs Comrs [2012] UKSC 18, [2012] 1 WLR 1545; R (SG) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] UKSC 16, [2015] 1 WLR 1449. On the other hand, education is rather different. Both sides in this case rely upon the language of the Strasbourg court in Ponomaryov v Bulgaria (2011) 59 EHRR 799. This concerned two boys, born to Russian parents in what is now Kazakhstan. After their parents divorce, their mother married a Bulgarian and they all came to live in Bulgaria. The mother was granted a permanent residence permit and the boys were entitled to residence on the basis of her permit. They were educated at Bulgarian primary and secondary schools. There came a time when they should have had permanent residence permits of their own. Although both eventually succeeded in obtaining these, they complained that they had for a while been charged fees for their secondary education, whereas Bulgarian nationals and aliens having permanent residence permits were not. The issue was whether, having decided to provide such education free of charge, the state could deny that benefit to a distinct group of people: the notion of discrimination includes cases where a person or group is treated, without proper justification, less favourably than another, even though the more favourable treatment is not called for by the Convention (para 53). The court started by observing that a state may have legitimate reasons for curtailing the use of resource hungry public services such as welfare programmes, public benefits and health care by short term and illegal immigrants, who, as a rule, do not contribute to their funding. It may also, in certain circumstances, justifiably differentiate between different categories of aliens residing in its territory (para 54). However, Although similar arguments apply to a certain extent in the field of education which is one of the most important public services in a modern state they cannot be transposed there without qualification. It is true that education is an activity that is complex to organise and expensive to run, whereas the resources that the authorities can devote to it are necessarily finite. It is also true that in deciding how to regulate access to education, and in particular whether or not to charge fees for it and to whom, a state must strike a balance between, on the one hand, the educational needs of those under its jurisdiction and, on the other, its limited capacity to accommodate them. However, the court cannot overlook the fact that, unlike some other public services, education is a right that enjoys direct protection under the Convention. It is also a very particular type of public service, which not only directly benefits those using it but also serves broader societal functions. Indeed, the court has already had occasion to point out that [i]n a democratic society, the right to education is indispensable to the furtherance of human rights [and] plays a fundamental role . Moreover, in order to achieve pluralism and thus democracy, society has an interest in the integration of minorities (para 55). The court went on to say that the states margin of appreciation increased with the level of education. University education remained optional and higher fees for aliens seemed to be almost universal and were fully justified. The opposite went for primary education, which provided basic skills and integration into society and was compulsory in most countries (para 56). Secondary education fell between the two extremes, but with more and more countries now moving towards what has been described as a knowledge based society, secondary education plays an ever increasing role in successful personal development and in the social and professional integration of the individuals concerned (para 57). In the particular circumstances of the case, requiring these boys, who had come to Bulgaria lawfully as young children, had no choice in the matter, and were fully integrated into Bulgarian society, to pay fees on account of their nationality and immigration status was not justified. Nowhere in that case do the words manifestly without reasonable foundation appear, nor did the Court of Appeal adopt that test, which Laws LJ described as a blunt instrument (para 30). As the appellant points out, education (unlike other social welfare benefits) is given special protection by A2P1 and is a right constitutive of a democratic society. Nevertheless, we are concerned with the distribution of finite resources at some cost to the taxpayer, and the court must treat the judgments of the Secretary of State, as primary decision maker, with appropriate respect. That respect is, of course, heightened where there is evidence that the decision maker has addressed his mind to the particular issue before us (see, for example, Belfast City Council v Miss Behavin Ltd [2007] UKHL 19, [2007] 1 WLR 1420), or that the issue has received active consideration in Parliament (see R (SG) v Secretary of State for Work and Pensions). Both are lacking in this case: there is no evidence that the Secretary of State addressed his mind to the educational rights of students with DLR/LTTR when making these regulations, which were laid before Parliament subject to the negative resolution procedure. With those considerations in mind, I turn to the issue of justification. It is now well established in a series of cases at this level, beginning with Huang v Secretary of State for the Home Department [2007] UKHL 11, [2007] 2 AC 167, and continuing with R (Aguilar Quila) v Secretary of State for the Home Department (AIRE Centre intervening) [2011] UKSC 45, [2012] 1 AC 621, and Bank Mellat v HM Treasury (No 2) [2013] UKSC 39, [2014] AC 700, that the test for justification is fourfold: (i) does the measure have an legitimate aim sufficient to justify the limitation of a fundamental right; (ii) is the measure rationally connected to that aim; (iii) could a less intrusive measure have been used; and (iv) bearing in mind the severity of the consequences, the importance of the aim and the extent to which the measure will contribute to that aim, has a fair balance been struck between the rights of the individual and the interests of the community? As to (i), the evidence presented on behalf of the Secretary of State suggests that settled students are in a better position to make a significant economic contribution and have a right to remain and work in the United Kingdom. They are thus regarded as more deserving of the limited funds available. The appellant accepts that it is legitimate to target resources on those students who are not only likely to stay here to complete their education but also to stay on afterwards and contribute to the United Kingdom economy through their enhanced skills and the taxes they pay. If they stay, it will also be simpler and easier to collect the repayments due on the loans through the taxation system. But (ii) are the means chosen rationally connected to those aims? The appellant argues that people in her situation are just as likely to stay here, to complete their education, to contribute to the economy and to repay their loans as are people who are settled here within the meaning of the Regulations. The reality is that even though she does not yet have ILR, her established private life here means that she cannot be removed from the UK unless she commits a serious criminal offence and she will almost inevitably secure ILR in due course. She is just as closely connected with and integrated into UK society as are her settled peers. She has no obvious alternative. As Professor Walker puts it graduate wages in the UK labour market are large, relative to the wages reigning in those countries where DLR/LLRs are likely to have been born so the incentives to move are likely to be small except for high flyers who would face relatively low subsidies (because they would quickly repay) if they remained in the UK. He concluded that it seems unlikely that the overwhelming majority would emigrate which is what it would take to make the net benefits to the UK fall to zero. But even if there is no sufficient rational connection between the aim and the rule, is the Secretary of State nevertheless justified in adopting a bright line rule which enables those administering the scheme quickly and easily to identify those who qualify? The Strasbourg jurisprudence is not altogether clear on this question. On the one hand, it tends to disapprove of a blanket exclusionary rule, such as that on prisoners voting (Hirst v United Kingdom (No 2) (2005) 42 EHRR 849), or a blanket inclusionary rule, such as that governing the retention of DNA profiles (S and Marper v United Kingdom (2008) 48 EHRR 1169). On the other hand, it recognises that sometimes lines have to be drawn, even though there may be hard cases which sit just on the wrong side of it (see, for example, Animal Defenders International v United Kingdom (2013) 57 EHRR 607). The need for bright line rules in administering social security schemes has been recognised domestically, for example in R (RJM) v Secretary of State for Work and Pensions [2008] UKHL 63, [2009] 1 AC 311. Nevertheless, it was the absence of any possibility of taking the particular circumstances of the case into account which led to the finding of a violation in Ponomaryov (para 62). The issue is therefore two fold. First, even if a bright line rule is justified in the particular context, the particular bright line rule chosen has itself to be rationally connected to the aim and a proportionate way of achieving it: see, for example, R (T) v Chief Constable of Greater Manchester Police (Liberty intervening) [2014] UKSC 35, [2015] AC 49. Secondly, however, it is one thing to have an inclusionary bright line rule which defines all those who definitely should be included. This has all the advantages of simplicity, clarity and ease of administration which are claimed for such rules. It is quite another thing to have an exclusionary bright line rule, which allows for no discretion to consider unusual cases falling the wrong side of the line but equally deserving. Hitherto the evidence and discussion in this case has tended to focus on whether there should be a bright line rule or a wholly individualised system. There are obvious intermediate options, such as a more properly tailored bright line rule, with or without the possibility of making exceptions for particularly strong cases which fall outside it. There are plenty of precedents for such an approach, including in immigration control. Could therefore a bright line rule have been chosen which more closely fitted the legitimate aims of the measure? I quite accept that the settlement rule is a good rule of thumb for identifying those who definitely should be eligible for student loans. They are the people with the right to stay and work here for as long as they please. (The risk that high flyers will move abroad applies to the settled and not settled alike.) But there are also people such as the appellant who have lived here for many years and cannot in reality be removed from the country unless they commit a serious crime. The appellant points to the criteria currently used in the Immigration Rules for the grant of leave to remain on grounds of private life. Paragraph 276ADE (1) includes a person who (iv) is under the age of 18 years and has lived continuously in the UK for at least seven years (discounting any period of imprisonment) and it would not be reasonable to expect to leave the UK; or (v) is aged 18 years or above and under 25 years and has spent at least half his life living continuously in the UK (discounting any period of imprisonment). To this might be added an exceptional cases discretion. Given the comparatively small numbers involved, in the total scheme of things, it has not been shown that this would be administratively impracticable. Indeed, in principle, different fees could be charged for processing different applications, based on the administrative costs of doing so. Finally, there is (iv) the fair balance to be struck between the effect upon the person whose rights have been infringed and the interests of the community, or, to put it another way, between the means and the ends. The Secretary of State argues that the effects upon the students denied loans until they have achieved ILR are not so great access is not denied but merely delayed. Nevertheless, the impact upon the appellant and others in her position is clearly very severe. As Vos LJ put it, she will be deprived of higher education at the time in her life when her primary and secondary education has led her reasonably to expect that she will go with her peers to university. She has no intention of leaving the United Kingdom. Her life was made here from the age of six and she is culturally and socially integrated into British society. Moreover, under article 8 her removal is simply not an option. The fact that she falls foul of the twin requirements of the 2011 Regulations is no fault of hers. (paras 74, 75). One does not need to have been a university teacher to appreciate that it is important to keep up the momentum of ones studies, to maintain the habits and skills learned at A level, and in many cases (particularly the sciences) to retain the knowledge gained there. A voluntary gap year is one thing, but an enforced gap of several years is quite different. These young people will also find it hard to understand why they are allowed access to all the public services, including cash welfare benefits, but are denied access to this one benefit, which is a repayable loan. Furthermore, in considering the overall balance, alongside the harm done to the individuals must be set the harm done to the community by such delay. Some of these young people may be lost to higher education forever. Others will not join the productive higher skilled workforce until much later than they otherwise would have done. The overall benefits to the exchequer and the economy, described in Professor Walkers unchallenged evidence, will be reduced. These harms to both the individuals concerned and the community as a whole cannot be outweighed by the administrative benefits of this particular bright line rule, which could be achieved in other ways. Any short term savings to the public purse by denying these students finance, by way of loans, not grants, are just that, as most of them will eventually qualify for loans, and in the meantime the benefit their enhanced qualifications will bring to the exchequer and the economy have been lost. Furthermore, the additional short term cost of enabling these students to have loans pales into insignificance compared with the costs of removing the cap on home student numbers. I conclude, therefore, that the application of the settlement rule to this appellant could not be justified and was incompatible with her Convention rights. The lawful ordinary residence criterion The appellants challenge is directed towards the lawfulness element in the requirement of three years ordinary residence in the United Kingdom. Once again, the Secretary of State has not clearly articulated its aim, but the appellant accepts that it is reasonable to restrict benefits to those who are genuinely integrated into the society and a period of residence can be a reasonable proxy for such belonging: see R (Bidar) v Ealing London Borough Council [2005] QB 812, para 57. The established rationale for insisting that residence cannot be ordinary unless it is lawful is that a person should not be permitted to benefit from his own unlawful conduct: see Shah [1983] 2 AC 309, p 343; Arogundade (No 2), para 37. That being so, it is argued that this appellant (unlike the appellant in Arogundade) is in no way to blame for the fact that her residence was not lawful. That was the result of decisions taken by her parents over which she had no control. The Secretary of State argues that lawful residence is not a status for the purpose of article 14. A fortiori the reason why that residence was not lawful cannot be such a status. Justification therefore does not arise. But even if it does, the rule is fully justified. In Ponomaryov the court said this: the applicants were not in the position of individuals arriving in the country unlawfully and then laying claim to the use of its public services, including free schooling. Any considerations relating to the need to stem or reverse the flow of illegal immigration clearly did not apply to the applicants case (para 60). There are indeed strong public policy reasons for insisting that any period of ordinary residence required before a person becomes entitled to public services be lawful ordinary residence. Furthermore, if the requirement were to be relaxed for people in the position of the appellant it would also have to be relaxed for all the other categories of persons eligible for student loans to whom the requirement of three years ordinary residence (here or in the EEA) applies, who are just as likely as the appellant to be the victims of their parents decisions rather than their own. The administrative burden involved in making the moral judgments required would be intolerable. And the overall balance of harm involved in a delay of up to three years is of a different order from the balance involved in a six or ten year delay. I would therefore prefer not to enter into the knotty problem of whether lawful residence is a status and whether lawful and unlawful residents are in an analogous situation for this purpose (questions which are analytically difficult to separate). There is ample justification for the rule. I conclude therefore that the application of the lawful ordinary residence criterion was compatible with the appellants Convention rights. Conclusion The application of the settlement rule to this particular appellant violated her Convention right to be afforded access to education on equal terms with her peers. What remedy should flow from this? The primary relief sought by the appellant is (i) a declaration that the impugned criteria breach her Convention rights, and (ii) that the Regulations should be read down so as to give effect to this, by inserting into regulation 4(2) (see para 15 above) or where the grant of support is necessary in order to avoid a breach of the persons Convention rights within the meaning of the Human Rights Act 1998. Alternatively, if it is not possible to read down the Regulations in this way, she seeks an order quashing the impugned provision and requiring the Secretary of State to put in place a Convention compatible basic criterion. The problem with quashing the settlement criterion in its entirety is that there must be cases in which it is not incompatible with the Convention rights. The problem with reading down the regulation as suggested is that it would leave the Department with little guidance as to when the refusal of finance would be a breach of the Convention rights. But the appellant is clearly entitled to a declaration that the application of the settlement criterion to her is a breach of her rights under article 14, read with article A2P1, of the Convention. Such a declaration was granted, for example, in In re G (Adoption: Unmarried Couple) [2008] UKHL 38, [2009] AC 173, where it was held that the provision of the Adoption (Northern Ireland) Order 1987 excluding unmarried couples from applying jointly to adopt was incompatible with the appellants Convention rights. A declaration was granted that it is unlawful for the Family Division of the High Court of Justice in Northern Ireland to reject the applicants as prospective adoptive parents on the ground only that they are not married. Such a declaration would leave the department in no doubt that this appellant is entitled to a student loan, while leaving it open to the Secretary of State to devise a more carefully tailored criterion which will avoid breaching the Convention rights of other applicants, now and in the future. LORD HUGHES: I agree with Lady Hale that this appeal should be allowed, but would make what seems to me a significant qualification in granting a declaration that the present settlement rule unlawfully infringes the appellants Convention rights, whilst my reasoning is not exactly the same as hers. This appeal was presented on the basis that there was both an infringement of A2P1 and unlawful discrimination. It was always accepted by the appellant that these two legal arguments went together. On inspection, I agree with Laws LJ in the Court of Appeal that the case depends upon a complaint of unlawful discrimination only. The jurisprudence of the Strasbourg court, and in particular Ponomaryov, makes it quite clear that, whatever may be the uncertain ambit of A2P1, it does not impose on any state an obligation to provide, or to fund, tertiary education. If, therefore, the UK were simply to decline to provide any university funding, that, whilst it would clearly not be acceptable publicly, would not entail any infringement of A2P1. Equally, it follows that A2P1 does not impose a requirement on the UK to fund tertiary education at any particular level or in any particular way, and whether or not it were to be asserted that such education had become prohibitively expensive for some individuals. This is an example of the UKs social and political realities being more exacting upon the state than the ECHR (and the Human Rights Act) require; it is not the only one. The law is not the only, nor even the principal, regulator of the provision of public services. The complaint in this appeal therefore relates not to an infringement of A2P1 but to the fact that funding is provided on a basis which is discriminatory in that it excludes the appellant, and others in a comparable position, on the grounds of their immigration status. It was not disputed that her immigration status is a status for the purposes of article 14 ECHR. It follows that the discrimination must be justified. Certain groups of European Union citizens have separate rights under EU law which are duly recognised in the eligibility rules set out in the Regulations. So also, under international obligations, do those accepted as legitimate refugees. Subject to that, the plain objectives of the government in promulgating the eligibility rules under consideration are: (a) principally, to target the not inconsiderable subsidy represented by the student loan scheme (about 45% of 9 billion per annum) on those who are properly part of the community (in this case of England, for there are separate and different rules for the other parts of the UK); thereby to target the subsidy on those who are likely to remain in (b) England (or at least the UK) indefinitely, so that the general public benefits of their tertiary education will enure to the countrys advantage; (c) thereby to increase the likelihood that, because the recipients of the loans will probably remain here, the public will receive repayment; and (d) to provide a rule which is easy to understand and apply, and inexpensive to operate, so that the minimum part of the available funds are taken up in administration costs. Those are, as it seems to me, plainly legitimate objectives. The course which has been taken in pursuit of these objectives has been to define eligibility for student loans in part in terms of the immigration position of the applicant. This produces the two rules which are in question in the present appeal: (i) the rule which requires the student to have been lawfully resident in the UK for three years immediately preceding the start of the University course; and (ii) by section 33(2A) of the Immigration Act 1971. It is readily understandable why the Secretary of State for Business, Innovation and Skills should have looked to the immigration rules for a convenient definition of those who are sufficiently connected with this country to justify receipt of the subsidy. But if he is to take that course, he needs to consider whether those rules do in fact adequately identify those who are sufficiently connected when it comes to University funding, and exclude those who are not. The purposes served by the immigration rules are not identical to the purposes of the regulations governing eligibility for student loans. In most respects, these two importations of the rule which requires the student to be settled in the UK as defined immigration concepts do sensibly identify those who are to be made eligible for student loan funding. But in one respect they do not, and the framers of the Regulations appear not to have considered the case of such as the appellant, where they do not. I entirely agree with Lady Hale that the rule requiring lawful residence for three years is plainly justified. Special rules for refugees and EU citizens apart, no one queries, nor could they query, a rule requiring a period of UK residence before entitlement to receipt of a loan on advantageous terms from the state. The only challenge is to the additional requirement that such residence be lawful. But that also is plainly justified. It must be open to the state to exclude from its generosity those whose residence here is illegal or has not been legal for a qualifying period. It may be true that young people such as the appellant may become and remain illegal immigrants through the actions of their parents and at a time when they were not personally responsible for their movements. But whilst this is so, it is plainly open to the state to say that a parent cannot obtain for his children subsidised University education by entering or overstaying illegally in this country and choosing to keep quiet about what s/he is doing. Children are inevitably affected in many ways by decisions made for them by their parents when they were young; this is one such. The settlement rule, insofar as it affects the cohort of which this appellant is an example, is different. Those in this cohort do not meet this rule but have these characteristics. They have lived in this country for the majority of their lives. They have passed through the education system, secondary certainly and often primary. Some, such as the present appellant, have done very well, but whether they have or have not, all have been treated throughout as members of UK society and have behaved as such. Their length of residence is such that no one doubts that there could be no question of removing them from the UK, at least in the absence of grave misconduct. They are, in any ordinary language, settled in the UK. They are, however, not settled for the purposes of the immigration legislation, because that defines settlement in terms of indefinite leave to remain (ILR). Increasingly, it is the practice of the Home Secretary to require a longer period of probationary limited leave to remain than was formerly the case, before ILR is granted. Until recently, and for this appellant, it was six years from the time when the unlawful presence is discovered, whilst for the future it will be ten years. At any time, the Home Secretary may alter this practice, whether by requiring a longer period of probation or by shortening it, or by imposing different conditions on grants of limited leave. The merits of this practice from the point of view of immigration administration have, correctly, not been debated in these proceedings, but I see no difficulty in understanding that it may have benefits when considered from that standpoint. For example, the grant of ILR brings other consequences in its train, such as family settlement rights for others. In any event, there is no doubt a case for a probationary period of limited leave. I see no grounds for criticising the Home Secretary for operating this practice. But what it brings with it, when invoked as a criterion for eligibility for student funding, is increasing separation of the immigration concept of settlement from the question of whether the young person is in fact tied by long residence, habit and community membership to UK society. The reality is that young people such as the appellant are members of UK society as much as most others. They have been brought up here in the English system. They are as connected to the UK as most others and, like them, they can be expected to remain here indefinitely. There are therefore the same reasonable prospects of society benefitting from the contribution which tertiary education will equip them to make, and of it obtaining repayment of loans made, as there are in relation to the home grown student population generally. It follows that in respect of this cohort of people, the settlement rule, whilst no doubt intended to serve the first three objectives set out in para 53 above, does not in fact do so. It goes further than is needed to serve those objectives. In consequence, it excludes people who meet the criteria which those objectives are designed to include. It fails to strike a fair balance between the states interests and those of the cohort concerned. There is little sign in the evidence lodged by the Department that this cohort was expressly considered. The adoption of the rule in relation to this cohort creates discrimination which is outside the legitimate range of administrative decisions available to the Secretary of State, and whether the test is correctly characterised as a decision manifestly without reasonable foundation or as some less stringent criterion. There is evidence that the view was taken that a simply stated and applied rule had great merit. To an extent, whenever a rule draws a simple line, there may be hard cases which fall the wrong side of it. The Secretary of States case, fully argued by Mr Kovats QC, is that the exclusion of the cohort of aspiring students of which this appellant is an example is the unavoidable consequence of this truth. If this were so, I would myself have concluded that the settlement rule falls well within the ambit of lawful decisions which are available to the Secretary of State in framing the eligibility rules, and that the discrimination was thus justified. Like Laws LJ in the Court of Appeal in this case, and like Burnett J in the similar case of Kebede [2013] EWHC 2396 (Admin), [2014] PTSR 92, I agree that this is an area in which a rule which is simply stated, readily understood and easily applied is legitimate, and indeed advisable. Such rules tend to be described, when objection is taken to them, as blanket rules, or, when conversely their virtues are recognised, as bright line rules. But these descriptions, one pejorative and the other approving, obscure the reality which is that all rules are blanket rules, in the sense that those who meet them are included and those who are outside them are excluded. All such rules are both inclusionary and exclusionary; if one grafts onto them a residual discretion they cease to be rules based on readily ascertainable facts and become rules based in part on an evaluative exercise. The truth is that clear rules, based on readily ascertainable facts, which are simple to state, to understand and to apply, have a merit of their own. An applicant can see comparatively easily whether she will qualify or not. The administrators can process a very large number of applications (approaching a million and a half in 2013 2014 with an increase to be expected now that the cap on student numbers has been lifted) in the relatively short time available each year for matching applicants to places. Some of the processing can be automated. The cost of administering the scheme can thus be kept down and the maximum possible proportion of the available budget preserved for loans. As Lady Hale observes, the argument in this case has tended to proceed astride the fault line between individualised consideration of every case on the one hand and the existing settlement rule on the other. On behalf of the appellant, the primary submission advanced by Miss Mountfield QC remains that the court should read down the eligibility rule pursuant to section 3 of the Human Rights Act 1998, so as to require individual consideration in every case not plainly within the stated categories. The contention is that words should be added to the parent eligibility regulation 4(2) which directs one towards the several categories of eligibility set out in Schedule 1, Part 2. That would involve reading regulation 4(2) as follows, adding the words shown in bold: Subject to paragraph (3) a person is an eligible student in connection with a designated course if (a) in assessing that persons application for support the Secretary of State determines that the person falls within one of the categories set out in Part 2 of Schedule 1 or (b) where the grant of support is necessary in order to avoid a breach of the persons Convention rights (within the meaning of the Human Rights Act 1998). If applied to regulation 4(2) this qualification would operate upon not only the settlement rule (Schedule 1, Part 2, para 2(1)(a)) but also all the other categories of eligibility, including the three year lawful residence rule (para 2(1)(c) and elsewhere). Even if only para 2(1)(a) were to have these or similar words attached, the problem would still be the same. It would mean that individualised assessment of a persons article 8 rights would have to be made by the Secretary of State in order to determine eligibility for a student loan. Such a determination is highly fact sensitive. It does not depend by any means only on length of residence in the UK. Even if that were the only consideration it would inevitably lead to inconsistent decisions as between apparently similar cases adjudicated upon on different occasions. But it would be likely also to entail consideration of, inter alia, family connections, dependants, community and other ties, employment, commitments and plans. It would require an entirely different skillset for those administrators charged with running the student loan scheme. There would be the unavoidable prospect of challenge to such individualised decisions by way of judicial review, at considerable cost in time and money. Meanwhile, the prospect would be opened up of inconsistent decisions upon article 8 as between on the one hand the Secretary of State for Business, Innovation and Skills and his student loan administrators, and on the other the Secretary of State for the Home Department and the highly sophisticated system of tribunal appeals in the administration of immigration control. It seems to me clear that such a system would have very powerful disadvantages when considered as a matter of public policy. It is impossible to say that the Secretary of State acts unlawfully in not adopting it. If, therefore, this were the inevitable consequence of recognising the position of the appellants cohort of aspiring students, their exclusion from the eligibility criteria could not be held to be unlawful. It is, however, clear to me, as to Lady Hale, that this consequence is not inevitable. There would be no difficulty in formulating a rule, as clear as the existing and as simple to operate, which recognises the position of this cohort of students. It is not for the court to devise such a scheme, but for the Secretary of State. The role of the court is limited to determining whether the justification for the present rule which is advanced is or is not made out. That suggested justification is, as the evidence of Mr Williams and the submissions of Mr Kovats make clear, that any alternative would involve either individual assessment of each applicants ties with the UK, or if not that, at least checks on the length of residence. As to the former, for the reasons already given I agree entirely that the objection is well taken and the justification for the discrimination accordingly made out. As to the latter, Mr Williams draws attention to the possibility that checking whether an applicant had been through the UK school system would result in checks being made with schools or education authorities and might require permission from other Government departments, and possibly changes in the law to allow the SLC to access such information. This protests too much. Whilst it is for the Secretary of State to devise his own rule, one which extended eligibility on the basis of long (although not necessarily lawful) residence would be a simple rule, based on ascertainable fact rather than evaluative assessment. This would be so whether the length of residence were defined by reference to a set period of years, or to a proportion of the applicants life. As it happens, there exists within the immigration rules a possible template which might be adopted, with or without modification. Immigration Rule 276ADE(1) creates just such a long residence rule for entitlement to the grant of limited leave to remain. It does so by reference to readily ascertainable factual criteria of residence, (a) for those under 18, seven years, (b) for those between 18 and 25, half ones life, and (c) in any event 20 years. It is true that if such a rule, modified or otherwise, were to be adopted, the applicant whose passport did not show UK citizenship and who did not have ILR would no doubt have to demonstrate whatever long residence was stipulated. The onus can perfectly well be put upon such an applicant to provide confirmation from an authoritative source, such as a general practitioner or head teacher, rather as at present she is required to submit documentary evidence of household income. She could perfectly properly be required to consent to any confirmatory enquiries with education or health authorities which the student loan administrators might wish to make, and no delicate inter departmental relations or changes in the law ought to be involved. If necessary, one would have thought that it would be very easy to insist on the certifier sending the confirmation direct, to minimise any risk of forgery, but these are details which could be worked out by those framing any new rule. It can no doubt be said that if such a long residence rule were to be adopted, that would not entirely eliminate the risk of hard cases falling on the wrong side of it. Whilst that is true, it is not a justification for the present rule which fails altogether to address the position of those such as this appellant whose long residence is such that they are in reality home grown students. As Lady Hale observes, there is no sign that the Department did address this cohort at any stage, although it has done so since through the evidence of Mr Williams, referred to above. One can understand the difficulties of the Department, which had its eye in part on eliminating the entirely anomalous failed asylum seeker position exposed in Arogundade, but infringement of Convention rights has resulted, even if accidentally. It follows that I agree that the appellant is entitled to the declaration of this court that the settlement rule infringes her Convention rights because the discrimination involved has not been justified. Since it is for the Secretary of State to devise a rule which does not thus infringe, it is of course open to him to adopt one which incorporates an elastic exceptional case discretion. But for my part I am wholly satisfied that if he should elect not to include such a discretion, that decision could not result in any infringement of Convention rights. That is the qualification to which I referred at the outset of this judgment, and which seems to me to be called for. LORD SUMPTION AND LORD REED: (dissenting) The position of persons whose legal right to be in the United Kingdom has not been definitively determined gives rise to difficult problems when it comes to deciding on the conditions of eligibility for state financial support. There are a number of considerations, financial, economic, administrative and political, which can point in different directions. No solution is satisfactory from every point of view or equally appropriate for every kind of support. Under section 22 of the Teaching and Higher Education Act 1998, the conditions of eligibility for student loans are determined by the Secretary of State by regulation. In our opinion the current regulations represent a lawful policy choice by the Secretary of State and a proper exercise of his statutory powers. Other criteria could have been chosen. There is room for argument about which would have been the best choice. But within broad limits, which have not been exceeded in this case, these are matters for the Secretary of State, who is politically responsible for his decisions about them. The Court of Appeal recognised that they were beyond the proper limits of the competence of the courts, and for our part we would have upheld their decision and dismissed the present appeal. Since a majority of the court takes a different view, we will be as brief as we may in explaining our reasons. The English legislative framework In England, direct public financial support to students in higher education has never been dependent upon nationality. But except in the case of refugees and persons entitled under EU law to be treated as favourably as nationals, the criteria for eligibility have always included a sufficient and enduring connection with the United Kingdom. Under the system of discretionary state scholarships introduced by the Education Act 1944, the practice was to treat all persons ordinarily resident in England and Wales as eligible. This principle became statutory when a more comprehensive system of grants was introduced under the Education Act 1962. Regulations under that Act fixed the period of ordinary residence required at three years. A significant change to the criteria was made in 1997, when the Education (Mandatory Awards) Regulations (SI 1997/431) introduced an additional requirement of settlement which depended on the applicants immigration status. The Regulations adopted the definition of settlement in the Immigration Act 1971. Section 33(2A) of that Act defined a person as settled if he was ordinarily resident in [the United Kingdom] without being subject under the immigration laws to any restriction on the period for which he may remain. In other words, he had to have indefinite leave to remain. These criteria were retained when the Teaching and Higher Education Act 1998 introduced tuition fees and began the progressive replacement of student grants with loans. This remains the position today. The current regulations are the Education (Student Support) Regulations 2011 (SI 2011/1986). Schedule 1, paragraph 2 makes it a condition of eligibility that the applicant should be (i) settled in the United Kingdom, within the meaning of section 33(2A) of the Immigration Act 1971; and (ii) ordinarily and lawfully resident in the United Kingdom at the beginning of the academic year and for three years before that. Under Schedule 1, paragraph 2 of the Education (Fees and Awards) (England) Regulations 2007 (SI 2007/779), the same criteria govern eligibility to be charged fees at the controlled rates for home and EU students, with the result that those who are ineligible for a student loan will usually also pay the substantially higher fees. The immigration status of applicants for student loans is not a matter for the Department of Business, Innovation and Skills, which is responsible for higher education, but for the Home Office and the UK Border Agency. The Home Office grants leave to remain in the United Kingdom outside the Immigration Rules for limited periods on a discretionary basis. According to its current guidance document, published in May 2014, this power is used sparingly in limited categories of case, on what can broadly be described as humanitarian grounds. The practice has now been largely incorporated in the Immigration Rules, which provide for the grant of limited leave to remain for standard periods, generally three years until 2013 and thirty months thereafter. Discretionary or limited leave to remain is in principle renewable. Those such as Ms Tigere, who first obtained discretionary leave before 9 July 2012, will become entitled to apply for indefinite leave to remain after six years of discretionary leave. Those who first obtained it after that date must, under the current policy, wait for ten years. The Home Office has a discretion to accelerate the timetable in individual cases, but its policy is not to do so for the purpose of enabling an applicant to qualify for financial support for higher education. Article 14 of the Human Rights Convention Article 2 of the First Protocol to the Human Rights Convention provides that no person shall be denied the right to education. It is well established that the negative formulation of article 2 means that it does not import a right to public financial support: Belgian Linguistics Case (No 2) (1968) 1 EHRR 252, at para B3. But such public support as is available must be offered on a Convention compliant basis. In particular, article 14 of the Convention prohibits discrimination in the enjoyment of the rights within the scope of the Convention on grounds of sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. These rights include the right not to be denied education. The same principle applies as regards nationals of other member states under EU law, by virtue of TFEU article 18. The current eligibility criteria unquestionably discriminate on the ground of immigration status. The Strasbourg court has accepted that a persons immigration status can be an other status for the purpose of article 14: Bah v United Kingdom (2011) 54 EHRR 773, paras 45 46. But it also made it clear that, because immigration status is not an immutable characteristic of the individual affected, the state should be accorded a correspondingly wide margin of appreciation when determining whether discrimination based upon that status is justifiable and proportionate to its objective: The nature of the status upon which differential treatment is based weighs heavily in determining the scope of the margin of appreciation to be accorded to Contracting States. Immigration status is not an inherent or immutable personal characteristic such as sex or race, but is subject to an element of choice. While differential treatment based on this ground must still be objectively and reasonably justified, the justification required will not be as weighty as in the case of a distinction based, for example, on nationality. Furthermore, given that the subject matter of this case the provision of housing to those in need is predominantly socio economic in nature, the margin of appreciation accorded to the Government will be relatively wide (see the Grand Chamber judgment in Stec v United Kingdom (2006) 43 EHRR 1017, para 52). (para 47) Student loans are provided out of public funds on terms which are much more advantageous to students than any commercial alternative. They are a form of state benefit. Such benefits are almost invariably selective and the criteria for selection necessarily involve decisions about social and economic policy and the allocation of resources. For this reason, discrimination in their distribution gives rise to special considerations in the case law of the Strasbourg court. The test is to be found in the decision of the Grand Chamber of the European Court of Human Rights in Stec v United Kingdom, at para 52: a wide margin is usually allowed to the state under the Convention when it comes to general measures of economic or social strategy. Because of their direct knowledge of their society and its needs, the national authorities are in principle better placed than the international judge to appreciate what is in the public interest on social or economic grounds, and the court will generally respect the legislatures policy choice unless it is manifestly without reasonable foundation. Commenting on this test in R (RJM) v Secretary of State for Work and Pensions [2009] AC 311, Lord Neuberger (with whom Lord Hope, Lord Walker and Lord Rodger agreed) remarked on its practical implications, observing that the fact that there are grounds for criticising, or disagreeing with, these views does not mean that they must be rejected. Equally, the fact that the line may have been drawn imperfectly does not mean that the policy cannot be justified. Of course, there will come a point where the justification for a policy is so weak, or the line has been drawn in such an arbitrary position, that, even with the broad margin of appreciation accorded to the state, the court will conclude that the policy is unjustifiable. The test was reviewed and reaffirmed by this court in Humphreys v Revenue and Customs Comrs [2012] 1 WLR 1545, at paras 15 21 (Baroness Hale). It has recently been applied by this court in R (SG and others) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] 1 WLR 1449, at paras 11, 69 (Lord Reed). Lady Hale suggests that in the context of education, the test is not whether the justification for discrimination in the provision of state financial support was manifestly without foundation but a different and more exacting test. In our opinion, there is no justification for this critical departure from a test which has been consistently endorsed by the Strasbourg court and at the highest level by the courts of the United Kingdom. There is no principled reason why state benefits in the domain of education should be subject to any different test from equally important state benefits in other domains. The problems associated with the judicial scrutiny of criteria for the award of selective benefits are the same. The manifestly without foundation test was adopted in Stec notwithstanding that it was a sex discrimination case, a context in which very weighty reasons have always been required: see para 52. It has been applied by the Strasbourg court to discrimination in other contexts, including the provision of housing, affecting the applicants right under article 8 to respect for her private and family life (Bah v United Kingdom (2012) 24 EHRR 773), and the grant of leave to enter the United Kingdom to the spouses of immigrants, again affecting article 8 rights (Hode and Abdi v United Kingdom (2012) 56 EHRR 960). It was applied by this court to basic subsistence benefits in R (SG and others) v Secretary of State for Work and Pensions [2015] 1 WLR 1449, notwithstanding the indirect effect on the welfare of children of the gender discrimination considered in that case: see paras 81 91. The majority has not advanced a single reason in support of abandoning it in the case of state financial support for education except that the words manifestly without foundation do not appear in the judgment of the Strasbourg court in Ponomaryov v Bulgaria (2011) 59 EHRR 799, a case in which the nature of the test was not discussed and does not appear to have been in issue. We will return to Ponomaryov below. For our part, we would accept that the more fundamental the right which is affected by discrimination in the provision of financial support, the readier a court may be to find that the reasons for discrimination are manifestly without foundation. But to discard the test would go well beyond anything that the Strasbourg jurisprudence requires. The Convention refers generally to education, but the limits of what is justifiable in the distribution of financial support by the state are not necessarily the same at every level of the educational system. In England, full time education is compulsory and available free in state institutions to the age of 17 (18 from September 2015). University education is not compulsory but a matter of choice. And it is not free but fee based. According to the most recent figures published by the Department for Business, Innovation and Skills, in the academic year 2012/13 the Higher Education Initial Participation Rate among English domiciled people aged 17 to 30 was 43%. The corresponding figure is 24% for 18 year olds, Ms Tigeres age at the time of her first application in January 2013. University education is an aspiration for very many young people. It has a high cultural and economic value. But it is not indispensable to social or economic participation, as primary and secondary education are. Still less is it indispensable to social or economic participation that an applicant should be able to go to university at the age of 18 or 19, instead of at the age of 23 when Ms Tigere seems likely to obtain indefinite leave to remain. The same figures suggest that 12%, ie rather more than a quarter of the 43%, are aged between 20 and 30 when they go to university. Considerations of this kind, which apply in many if not all countries of the Council of Europe, were central to the analysis of the European Court of Human Rights in Ponomaryov v Bulgaria 59 EHRR 779. The case concerned a rule of Bulgarian law which limited the provision of free secondary education to Bulgarian nationals and those with Bulgarian residence permits. Others were required to pay. This was held to violate article 14 of the Convention in the particular circumstances of the applicants case. For present purposes, its significance is that the European Court of Human Rights distinguished between discrimination in financial provision on grounds of national origin, according to the level of education involved and its significance for social participation. The court began by observing (para 54) that a state may have legitimate reasons for curtailing the use of resource hungry public services such as welfare programmes, public benefits and health care by short term and illegal immigrants, who, as a rule, do not contribute to their funding. It went on to point out that this principle could not be applied to education without qualifications, partly because education was specifically protected by article 2 of the First Protocol and partly because of its fundamental cultural significance (para 55). However, the force of these considerations was not the same at every level. The court observed, at para 56: at the university level, which to this day remains optional for many people, higher fees for aliens and indeed fees in general seem to be commonplace and can, in the present circumstances, be considered fully justified. The opposite goes for primary schooling, which provides basic literacy and numeracy as well as integration into and first experiences of society and is compulsory in most countries. Accordingly, the margin of appreciation increased with the level of education. That approach was endorsed by the Grand Chamber in Catan v Moldova and Russia (2012) 57 EHRR 99, para 140. It is clear from the decision in Ponomaryov that the present case would have been most unlikely to succeed in Strasbourg. That conclusion is fortified by the decision in Bah v United Kingdom, where the court cited Ponomaryov in support of its conclusion that immigration status was a justifiable basis for differential treatment in the allocation of social housing. Do the eligibility criteria have a legitimate objective? The formulation of criteria for giving financial support to university students raises a classic question of social and financial priorities. It is common ground between the parties to this appeal that university education has very substantial economic advantages not only for graduates but for the society in which they live and work. That cannot, however, be the only relevant consideration in decisions about its funding. Student loans have a substantial element of public subsidy, currently estimated at about 45% of the total annual outlay. This is because the rate of interest is below the market rate, the loan is only conditionally repayable and not all repayable sums are collectable. There are finite funds available for providing this subsidy, and funding for higher education must itself compete with other potential uses of the money which may also have a high social or economic value. As the Strasbourg court put it in Ponomaryov, at para 55, the state must strike a balance between, on the one hand, the educational needs of those under its jurisdiction, and, on the other, its limited capacity to accommodate them. There is no direct evidence of the thought processes of ministers and officials as they resolved upon the current criteria. This is hardly surprising in the case of a policy which has been in place, in the case of the residence test since 1962 and in the case of the settlement test since 1997. Nor is such evidence necessary. In the first place, a challenge to a public authoritys decision under the Convention is not a judicial review of the decision making process. As Lord Bingham put it in R (SB) v Governors of Denbigh High School [2007] 1 AC 100, at para 31, what matters in any case is the practical outcome, not the quality of the decision making process that led to it; cf Lord Hoffmann at para 68. Secondly, the objectives of the current eligibility rules for student loans are tolerably clear from the regulations themselves, and from the two witness statements of Paul Williams, Head of Student Funding Policy at the Department of Business, Innovation and Skills. Leaving aside the special cases of refugees and persons protected by EU and international law, the objectives of the current eligibility criteria are (i) to concentrate finite resources on those who (a) have a lawful and close personal connection with the United Kingdom and are therefore more deserving of assistance, and (b) are most likely to remain here permanently and use their enhanced qualifications to the benefit of the economy; and (ii) to do so according to criteria which are based on rules rather than case by case discretion, in the interests of clarity, consistency and administrative practicality, and in order to maximise the proportion of available funds that goes to support students as opposed to administering the system. In framing the criteria in substantially their current form in 1997, the Secretary of State cannot possibly have been unaware that some of those adversely affected would include some young people who were well integrated in British society. That was the obvious consequence of adding to the existing residence test a settlement test based on indefinite leave to remain, and thereby requiring young people of university age to satisfy the extended residence requirement imposed by the immigration authorities. It is common ground that it is in principle legitimate for the state to prioritise funding to those who can be shown to have a genuine, substantial and enduring connection with British society. The residence test and the settlement test are both approximate measures of the strength of that connection. Although the majority seeks to distinguish between the two tests, both of them in reality depend on a minimum period of past lawful residence, three years in the case of the residence test and six in the case of the settlement test. The settlement test serves in addition as a measure of the connections likely permanence, which not only implies a closer connection with Britain but increases the economic value of the applicants university education to society as a whole. R (Bidar) v Ealing London Borough Council (Case C 209/03) [2005] QB 812 concerned a French national who had had been educated for four years in the UK secondary education system but was refused a maintenance grant to study at university under an earlier version of the same eligibility criteria. The criteria were challenged as constituting unjustifiable discrimination on grounds of nationality, contrary to what was then article 12 EC. The Grand Chamber of the Court of Justice of the European Union held, at paras 56 57, that even in the case of an EU citizen it was permissible for a member state to ensure that the grant of assistance to cover the maintenance costs of students from other member states does not become an unreasonable burden which could have consequences for the overall level of assistance which may be granted by that state. In the case of assistance covering the maintenance costs of students, it is thus legitimate for a member state to grant such assistance only to students who have demonstrated a certain degree of integration into the society of that state. The court accepted that this justified the residence test: para 60. It also accepted (para 61) that the settlement test could admittedly, like the requirement of three years residence referred to in the preceding paragraph, correspond to the legitimate aim of ensuring that an applicant for assistance has demonstrated a certain degree of integration into the society of that state. The only reason why the settlement test was rejected was that applicants were unable to satisfy the residence test if at any time in the three year period the applicant had been here wholly or mainly for the purpose of receiving full time education: see Schedule 1, paragraph 2(1)(d). The effect of this requirement, as the court pointed out (para 18), was that a national of another member state cannot, in his capacity as a student, obtain the status of being settled in the United Kingdom. Bidar was distinguished on this ground in Frster v Hoofddirectie van de Informatie Beheer Groep (Case C 158/07) [2009] 1 CMLR 32. The imposition under Dutch law of a requirement of five years prior residence in the Netherlands was held to be justified because the qualification was attainable by someone who had come to the Netherlands to study. Paragraph 2(1)(d) of Schedule 1 has since been modified to make it inapplicable to students from other EU member states. Whether its continued application to nationals of non EU states is lawful is not a question that arises on this appeal, because Ms Tigere has never been here wholly or mainly for the purpose of receiving full time education. Unlike Mr Bidar, she can acquire settled status, albeit only after six years lawful residence. The qualification that periods of unlawful residence should be excluded from the qualifying period of residence for the purpose of the Immigration Rules was established by the decision of the House of Lords in R v London Borough of Barnet, Ex p Shah [1983] 2 AC 309. The statement of principle in the leading speech of Lord Scarman at 340E, 349C, is obiter, but has always been treated as authoritative and has recently been endorsed by the Court of Appeal in R (Arogundade) v Secretary of State for Business, Innovations and Skills [2013] ELR 466. The reasons were that unlawful residence could not be regarded as ordinary residence, and that a person cannot rely on his own unlawful act to qualify himself for an advantage. These were reasons for having such a rule even at a time when it was not expressly stated in the Regulations. But the justification in Convention terms of applying the rule to the criteria of eligibility for student loans is altogether more straightforward. The financial obligations of the state to those who are not its citizens and ought not to be on its territory cannot be of the same order as those which it owes to others. They are less deserving of support when it comes to claiming on the finite funds available for the purpose. Proportionality and bright line rules In these circumstances, the real issue on this appeal turns on the second of the two objectives which we have summarised at para 81 above, namely the use of a bright line rule to distinguish between those who do and those who do not qualify. The appellants case, which is substantially accepted by the majority, is that many young people who do not satisfy the eligibility criteria, because they have not been lawfully resident in the United Kingdom for the requisite period, or because they have not been granted the right to remain in the United Kingdom indefinitely, nevertheless have a connection with the United Kingdom which is just as strong as that of others who do satisfy them. They may have spent most of their lives here, attending British schools. They may have no subsisting social or cultural connection with any other country. Their connection with the United Kingdom, it is said, is not only just as strong, but is bound to endure after the expiry of their discretionary leave, because article 8 of the Convention would make it impossible to deport them. It follows, so the argument goes, that the distinction fails the test of proportionality. It is disproportionate, first, because it cannot be rationally related to the professed objective of requiring applicants to have a sufficient and enduring connection with the United Kingdom; and, secondly, because a more inclusive rule would not unreasonably compromise that objective. Both of these are integral parts of the test of proportionality: see Bank Mellat v HM Treasury (No 2) [2014] AC 700, at para 20 (Lord Sumption), at para 73 (Lord Reed). In the present context they are in reality different ways of saying the same thing. This argument has been cogently advanced by Ms Mountfield QC, who appeared for the appellant, and is accepted by the majority. But in our opinion it is fallacious. Those who criticise rules of general application commonly refer to them as blanket rules as if that were self evidently bad. However, all rules of general application to some prescribed category are blanket rules as applied to that category. The question is whether the categorisation is justifiable. If, as we think clear, it is legitimate to discriminate between those who do and those who do not have a sufficient connection with the United Kingdom, it may be not only justifiable but necessary to make the distinction by reference to a rule of general application, notwithstanding that this will leave little or no room for the consideration of individual cases. In a case involving the distribution of state benefits, there are generally two main reasons for this. One is a purely practical one. In some contexts, including this one, the circumstances in which people may have a claim on the resources of the state are too varied to be accommodated by a set of rules. There is therefore no realistic half way house between selecting on the basis of general rules and categories, and doing so on the basis of a case by case discretion. The case law of the Strasbourg court is sensitive to considerations of practicality, especially in a case where the Convention confers no right to financial support and the question turns simply on the justification for discrimination. In Carson v United Kingdom (2010) 51 EHRR 369, which concerned discrimination in the provision of pensions according to the pensioners country of residence, the Grand Chamber observed, at para 62: as with all complaints of alleged discrimination in a welfare or pensions system, it is concerned with the compatibility with article 14 of the system, not with the individual facts or circumstances of the particular applicants or of others who are or might be affected by the legislation. Much is made in the applicants submissions and in those of the third party intervener of the extreme financial hardship which may result from the policy However, the court is not in a position to make an assessment of the effects, if any, on the many thousands in the same position as the applicants and nor should it try to do so. Any welfare system, to be workable, may have to use broad categorisations to distinguish between different groups in need the courts role is to determine the question of principle, namely whether the legislation as such unlawfully discriminates between persons who are in an analogous situation. This important statement of principle has since been applied by the European Court of Human Rights to an allegation of discrimination in the distribution of other welfare benefits such as social housing: Bah v United Kingdom at para 49. And by this court to an allegation of discrimination in the formulation of rules governing the benefit cap: R (SG and others) v Secretary of State for Work and Pensions (Child Poverty Action Group intervening) [2015] 1 WLR 1449, at para 15 (Lord Reed). The second reason for proceeding by way of general rules is the principle of legality. There is no single principle for determining when the principle of legality justifies resort to rules of general application and when discretionary exceptions are required. But the case law of the Strasbourg court has always recognised that the certainty associated with rules of general application is in many cases an advantage and may be a decisive one. It serves to promote legal certainty and to avoid the problems of arbitrariness and inconsistency inherent in weighing, on a case by case basis: Evans v United Kingdom (2007) 46 EHRR 728, at para 89. The Court of Justice of the European Union has for many years adopted the same approach to discrimination cases, and has more than once held that where a residence test is appropriate as a test of eligibility for state financial benefits, it must be clear and its application must be capable of being predicted by those affected: Collins v Secretary of State for Work and Pensions (Case C 138/02) [2004] 2 CMLR 8, at para 72, Frster v Hoofddirectie van de Informatie Beheer Groep (Case C 158/07) [2009] 1 CMLR 861, at para 56. As Advocate General Geelhoed acknowledged in considering these very regulations in Bidar (para 61), Obviously a member state must for reasons of legal certainty and transparency lay down formal criteria for determining eligibility for maintenance assistance and to ensure that such assistance is provided to persons proving to have a genuine connection with the national educational system and national society. In that respect, and as the court recognised in Collins, a residence requirement must, in principle, be accepted as being an appropriate way to establish that connection. The advantages of a clear rule in a case like this are significant. It can be applied accurately and consistently, and without the element of arbitrariness inherent in the discretionary decision of individual cases. By simplifying administration it enables speedy decisions to be made and a larger proportion of the available resources to be applied to supporting students. Young people considering applying to universities need to know whether they will get a student loan or not. The Student Loan Company, which administers the scheme, needs to process a very large number of applications for loans in the relatively short interval between the acceptance of a student by a university and the start of the academic year. None of this is seriously disputed by the appellant. Yet once it is accepted, the challenge cannot be to the application of the eligibility criteria to the appellant. It must be to the eligibility criteria themselves. In the last analysis, the appellants case depends on the proposition that even on the footing that a rule is required, this particular rule draws the line in the wrong place. In relation to this type of argument, it was noted in Bank Mellat at para 75 (Lord Reed) that courts must accord a measure of discretion to the primary decision maker, and therefore exercise corresponding self restraint, if there is to be any prospect of legislative and executive choices being respected. As the present case illustrates, it will almost always be possible for the courts to conclude that a more precisely tailored bright line rule might have been devised than the one selected by the body to which the choice has been democratically entrusted and which, unlike the courts, is politically accountable for that choice. But, in the words of Dickson CJ in R v Edwards Books and Art Ltd [1986] 2 SCR 713, pp 781 782, the courts are not called on to substitute judicial opinions for legislative or executive ones as to the place at which to draw a precise line. In a case concerned with the allocation of public expenditure in order to fulfil objectives of social and economic policy, the degree of respect paid by the court to the judgment of the legislature or executive, and the consequent width of the discretion afforded to the primary decision maker, must be substantial. That is reflected in the test of whether the policy choice is manifestly without reasonable foundation. The need to accord a measure of discretion to the legislator when considering the proportionality of general rules has been recognised by the European Court of Human Rights. In its judgment in Animal Defenders International v United Kingdom (2013) 57 EHRR 607, concerned with the prohibition on political advertising in this country, the Grand Chamber rejected the argument that a general prohibition was unduly restrictive of freedom of expression, and that a less restrictive rule should have been adopted. It referred at paras 106 109 to its earlier case law recognising that member states could adopt general measures which applied regardless of the facts of individual cases, even if this might result in individual hard cases; that, in order to determine the proportionality of such a measure, the court must assess the choices underlying it; that it was relevant to take into account the risk of abuse if a general measure were to be relaxed; and that a general measure had been found to be a more feasible means of achieving the legitimate aim than a provision allowing a case by case examination when the latter would give rise to a risk of uncertainty, expense and delay, as well as of discrimination and arbitrariness. It continued (para 110): The central question as regards such measures is not, as the applicant suggested, whether less restrictive rules should have been adopted or, indeed, whether the state could prove that, without the prohibition, the legitimate aim would not be achieved. Rather, the core issue is whether, in adopting the general measure and striking the balance it did, the legislature acted within the margin of appreciation afforded to it. In the circumstances of the present case, the argument that the rule which was chosen fell outside the area of discretionary judgment accorded to the Secretary of State appears to us to be particularly difficult to sustain. Wherever the line is drawn, there will be many young people on the wrong side of it whose connection with the United Kingdom will be just as strong and enduring as that of many others who find themselves on the right side. The point may be tested by taking the illustrative example commended by the appellant herself and adopted by Lady Hale and Lord Hughes. Rule 276ADE(1)(v) of the Immigration Rules draws the line in a different place for the purpose of determining the eligibility of persons aged between 18 and 25 to apply for limited leave to remain under article 8 of the Convention on account of their right to private and family life. It authorises applications by those have continuously resided in the United Kingdom for at least half their lives. It is not subject to the exclusion of periods of unlawful residence which apply to the tests of ordinary residence. The adoption of such a test as a criterion for student loans would mean that the present appellant would qualify. But the Secretary of State has to take a broader view and consider the functioning of the system as a whole. The policy considerations relevant to a decision whether to grant limited leave to remain on account of the applicants article 8 rights are not the same as those which bear on a decision whether to grant financial support for higher education. Moreover, the difficulty, delay and administrative cost of requiring the Student Loan Company to assess evidence of the duration of actual residence, as opposed to the duration of leave to remain, should not be under estimated. We cannot close our eyes to the fact that candour cannot always be assumed in this field. However, the real objection to proposed alternative tests is more fundamental. They do not resolve the problem which is said to justify them. The adoption of a rule like rule 276ADE(v) would put the cut off point for eligibility in a different place, but it would be equally open to the objection that it left many young people on the wrong side of it whose connections with the United Kingdom were just as strong and enduring as those on the right side. This is because characteristics such as the strength and enduring character of a persons connection with the United Kingdom are not absolute values but questions of degree. An element of arbitrariness is inherent in any rule based scheme designed to address that situation. It cannot therefore be a proper objection to say that the line could have been drawn somewhere else where it would have excluded fewer people. The point may be tested by reference to the residence test, which the majority regard as justified. If the sole qualification were the current residence test of three years, some people in the position of the appellant, who is plainly well integrated into British society, would be enabled to qualify; but, correspondingly, eligibility would be extended to many others who were barely integrated at all. There is no one right balance between these competing considerations. If the qualifying period of residence were to be extended to six years, it would be difficult to challenge on the ground that the period of lawful residence should have been shorter (a five year period was accepted in Frster). Both periods would exclude some people with the same characteristics as those who were included. Yet the effect of a six year qualifying period would be substantially the same as the settlement test as far as persons in Ms Tigeres position are concerned, since six years residence would qualify her to apply for indefinite leave to remain. In reality, as Lady Hales judgment implicitly acknowledges, the appellant is driven to argue that there should not be a bright line rule at all. That appears to us to be the implication of the distinction drawn by Lady Hale between inclusionary and exclusionary rules, and of her suggestion that an exceptional cases discretion might be added. As we have explained, and as Lord Hughes acknowledges, a bright line rule, in relation to eligibility for a benefit, is both inclusionary and exclusionary: by defining those who are eligible, it necessarily excludes those who fall outside the definition. A discretion to include persons who fall outside the rule necessitates the consideration of cases on an individual basis in order to determine whether they are exceptional, defeating the purpose of having a bright line rule in the first place. The answer to such arguments is that in a case where a line has to be drawn at some point in a continuous spectrum, proportionality cannot be tested by reference to outlying cases. The Secretary of State estimates that the exclusion of persons with discretionary or limited leave to remain from eligibility for student loans affects about 2,400 people. The appellant suggests that the number is only about 534. Both acknowledge the imprecision of their figures, but on any view it is a small proportion of the cohort of some 1.45m applying for loans annually. In R (Reynolds) v Secretary of State for Work and Pensions (reported sub nom. R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173, at para 41 Lord Hoffmann (with whom Lord Nicholls, Lord Rodger and Lord Carswell agreed), put the point very clearly in answer to the argument that that the payment of jobseekers allowances at a lower rate to those under 25 years of age was unjustified, because there was no substantial difference between those just over and just under that age: Mr Gill emphasised that the twenty fifth birthday was a very arbitrary line. There could be no relevant difference between a person the day before and the day after his or her birthday. That is true, but a line must be drawn somewhere. All that is necessary is that it should reflect a difference between the substantial majority of the people on either side of the line. If one wants to analyse the question pedantically, a person one day under 25 is in an analogous, indeed virtually identical, situation to a person aged 25 but there is an objective justification for such discrimination, namely the need for legal certainty and a workable rule. The argument is not fortified, as it seems to us, by suggesting, as Ms Mountfield did, that the appellant is in substance settled in the United Kingdom because even without indefinite leave to remain she could not be removed consistently with article 8 of the Convention. The argument is that this affects the position because it means that she is likely to remain in the United Kingdom and contribute with her enhanced qualification to the national economy. This seems to us to be a point of some, but limited relevance. In the first place, the likelihood that applicants for student loans will contribute in future to the economy is only one of a number of considerations underlying the current eligibility rules. Secondly, there is a world of difference between a person who has a legal right to remain in the United Kingdom and a person with no such right who nevertheless cannot be deported. Thirdly, while it is probably true that the appellant could not be removed consistently with article 8, there is no reason to believe that it is true of the generality of the people denied student loans under the current eligibility criteria. Article 8 does not automatically protect persons resident here from deportation as illegal immigrants. That will depend on a careful analysis of the infinitely variable facts of individual cases. Relevant considerations include, in particular, the duration of the applicants residence, the significance of any family or social relationships that he has formed in the United Kingdom, the circumstances in which those relationships were formed, the availability of any alternative countries of residence where it would be reasonable to expect the applicant to reside, the best interests of any children involved, and the strength of any special justification advanced by the executive. This court has always emphasised that however intensive the judicial scrutiny of a public authoritys decision, it is not open to the courts to take the decision making function out of the hands in which Parliament has placed it and assume that function themselves: see in particular R (Corner House Research) v Director of the Serious Fraud Office [2008] UKHL 60; [2009] AC 756, at para 41 (Lord Bingham), Bank Mellat v HM Treasury (No 2) [2014] UKSC 39, [2014] AC 700, at paras 21 (Lord Sumption), 71, 93 (Lord Reed); R (Lord Carlile of Berriew QC and ors) v Secretary of State for the Home Department [2014] UKSC 60; [2014] 3 WLR 1404, paras 31, 34 (Lord Sumption). In a case where a range of rational and proportionate policy options is open to the decision maker, the decision which provides the best allocation of scarce resources is a question of social and economic evaluation. These are matters of political and administrative judgment, which the law leaves to those who are answerable to Parliament. They are not questions for a court of law. It is enough to justify the Secretary of States choice in this case that discrimination on the basis of residence and settlement are not manifestly without foundation.

In 2011 the fees charged by universities were increased. The cost of fees and maintenance are generally financed by loans from the Government, which are only repaid when students can afford to do so and at an affordable rate. In order to qualify for a loan under Regulation 4(a) of the Education (Student Support) Regulations 2011 (the Regulations) a student must have been lawfully ordinarily resident in the UK for three years before the day the academic year begins (the lawful residence criterion); and be settled in the UK on that day (the settlement criterion). The effect of the settlement criterion is that all students with limited or discretionary leave to remain in the UK are ineligible for student loans. The Appellant is a Zambian national, now aged 20, who came to this country in 2001 at the age of six. Her mother overstayed and the Appellant was unlawfully present in the country until 2012 when she regularised her immigration status. She presently has discretionary leave to remain in the UK. She will be able to apply for indefinite leave to remain in 2018. She has received her entire education in the UK, obtained good grades and wishes to go to university. She has been unable to take up the university places offered her as she is not eligible for a student loan because of her immigration status. The issue in the appeal is whether either the lawful residence criterion or settlement criterion breaches the Appellants right to education under Article 2 of the First Protocol to the European Convention on Human Rights (A2P1), or unjustifiably discriminates against her in the enjoyment of that right. The High Court found that the blanket exclusion from eligibility for student loans based on the Appellants immigration status was a disproportionate interference with her right of access to education under A2P1 and unjustifiable discrimination linked to national origin contrary to Article 14 ECHR. The Court of Appeal allowed the Secretary of States appeal on the basis that this was an area of national strategic policy related to the distribution of scarce resources and so a broad margin of appreciation should be afforded to government policy. The Appellant appealed to the Supreme Court. The Supreme Court allows the appeal by a majority of 3:2. Lady Hale writes the leading judgment, with which Lord Kerr and Lord Hughes agree. Lord Hughes writes a concurring judgment. Lord Sumption and Lord Reed write a joint dissenting judgment. A2P1 does not oblige a state to provide any particular system of education. However, if the state sets up higher educational institutions it will be under an obligation to provide a right of access to them [23]. The Appellant complains that the denial of access to a student loan prevents her from undertaking higher education in the UK and that she has been discriminated against on the basis of her immigration status, contrary to Article 14 ECHR. Whether considered under A2P1 alone or in conjunction with Article 14 ECHR, the question is whether this discrimination is justified [25 26]. The relevant test is not whether the decision was manifestly without reasonable foundation. As this is a question of the distribution of finite resources, respect must be accorded to the primary decision maker. However, greater deference is not warranted as the Respondent Secretary of State did not address his mind to the educational rights of students with discretionary or limited leave to remain when making these regulations [32]. The Regulations pursue a legitimate aim, namely targeting resources on those students who are likely to stay in the UK to complete their education and afterwards contribute to the UK economy through their enhanced skills and the taxes they pay [34]. The means chosen to pursue that aim, however, were not rationally connected to it. Although the Appellant does not yet have indefinite leave to remain, her established private life in the UK means that she cannot be removed unless she commits a serious criminal offence [35]. Even if a bright line rule is justified in the particular context, the particular rule chosen has to be rationally connected to the aim and a proportionate way of achieving it. Exclusionary rules, which allow for no discretion to consider unusual cases falling the wrong side of the line but equally deserving, are harder to justify [37]. In this case, a bright line rule which more closely fitted the legitimate aims of the measure could have been chosen. Given the comparatively small numbers involved, it has not been shown that it would be administratively unworkable to provide student loans to at least some of those with discretionary or limited leave to remain [38]. The denial of student loans has a very severe impact upon those it affects [40]. Denying or delaying higher education for these individuals also harms the community and the economy [41]. Therefore, the settlement criterion unjustifiable infringes the Appellants Convention rights [42]. The lawful residence criterion is compatible with the Appellants Convention rights. There are strong public policy reasons for insisting on a period of lawful ordinary residence before a person become entitled to public services. If the requirement were to be relaxed it would involve an intolerable administrative burden. The overall balance of harm involved in a delay of up to three years is of a different order from that resulting from the settlement criterion [45]. The court makes a declaration that the application of the settlement criterion to the Appellant is a breach of her rights under Article 14 ECHR read with A2P1 [49]. In his concurring judgment Lord Hughes argues that all rules are blanket rules and are both inclusionary and exclusionary. Clear rules of this sort are useful [60]. While the settlement criterion is unjustifiably discriminatory, the Secretary of State is not necessarily required to construct a rule which allows for a discretion to consider exceptional cases [68]. Lord Reed and Lord Sumption would have dismissed the appeal. A2P1 does not import a right to public financial support [73]. Given that this is a question of state benefits, the test for justification is manifestly without reasonable foundation [77]. The discriminatory effect of the Regulations is justified as it is legitimate to discriminate between those who do and those who do not have a sufficient connection with the UK [88]. A clear rule such as this can be applied accurately and consistently, without the element of arbitrariness inherent in the discretionary decision of individual cases. It simplifies administration and allows for faster decision making [91]. The court must also accord a measure of discretion to the primary decision maker [93].

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The issue surrounds out of country appeals. These are appeals against immigration decisions made by the Home Secretary which immigrants are entitled to bring before the First tier Tribunal (Immigration and Asylum Chamber) (the tribunal) but only if they bring them when they are outside the UK. Mr Kiarie, the first appellant, has Kenyan nationality. He is aged 23 and has lived in the UK with his parents and siblings since 1997, when he was aged three. In 2004 he was granted indefinite leave to remain in the UK. He has been convicted of serious offences in relation to drugs. Sent to him under cover of a notice dated 10 October 2014 was an order made by the Home Secretary for his deportation to Kenya. Mr Byndloss, the second appellant, has Jamaican nationality. He is aged 36 and has lived in the UK since the age of 21. In 2006 he was granted indefinite leave to remain in the UK. He has a wife and their four children living here; and he has three or four other children also living here. He has been convicted of a serious offence in relation to drugs. Sent to him under cover of a notice dated 6 October 2014 was an order made by the Home Secretary for his deportation to Jamaica. In deciding to make deportation orders against them, the Home Secretary rejected the claims of Mr Kiarie and Mr Byndloss that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (the Convention). Mr Kiarie and Mr Byndloss have a right of appeal to the tribunal against her rejection of their claims and they propose to exercise it. But, when making the deportation orders, the Home Secretary issued certificates, the effect of which is that they can bring their appeals only after they have returned to Kenya and Jamaica. As I will explain in paras 33 and 55, it may well, for obvious reasons, be difficult for Mr Kiarie and Mr Byndloss to achieve success in their proposed appeals. But the question in these proceedings is not whether their appeals should succeed. It is: are the two certificates lawful? Yes, said the Court of Appeal (Richards LJ, who gave the substantive judgment, and Elias and McCombe LJJ, who agreed with it) on 13 October 2015, [2015] EWCA Civ 1020, [2016] 1 WLR 1961, when dismissing the applications of Mr Kiarie and Mr Byndloss for judicial review of the certificates. B: CERTIFICATION A requirement that some appeals against immigration decisions be brought out of country has been a feature of the legal system referable to immigration ever since the Immigration Act 1971 (the 1971 Act) came into force. An obvious example is when people abroad apply unsuccessfully to entry clearance officers in British embassies and High Commissions for entry clearance, ie permission to be admitted to the UK. They often have a right of appeal to the tribunal against the refusal of entry clearance and they are required to bring their appeals from abroad. But such appellants are already abroad; indeed their appeals are often in a narrow compass which surrounds their ability to satisfy the evidential (in particular the documentary) requirements of the Immigration Rules; their appeals do not usually include human rights claims and it is the oral evidence of their sponsors in the UK, rather than of themselves, which is often the more important. The situation is different when the proposed appeal is based on human rights and when the requirement to bring it from abroad is imposed on an appellant who is in the UK and who must therefore leave before he can bring it. The Home Secretary issued the two certificates which precipitated the present proceedings pursuant to a power conferred on her on 28 July 2014, when section 94B of the Nationality, Immigration and Asylum Act 2002 (the 2002 Act), which had been inserted into it by section 17(3) of the Immigration Act 2014 (the 2014 Act), came into force. Until 30 November 2016, section 94B provided: (1) This section applies where a human rights claim has been made by a person (P) who is liable to deportation under (a) section 3(5)(a) of the Immigration Act 1971 (Secretary of State deeming deportation conducive to public good), or (b) (2) The Secretary of State may certify the claim if the Secretary of State considers that, despite the appeals process not having been begun or not having been exhausted, removal of P to the country or territory to which P is proposed to be removed, pending the outcome of an appeal in relation to Ps claim, would not be unlawful under section 6 of the Human Rights Act 1998 (public authority not to act contrary to Human Rights Convention). (3) The grounds upon which the Secretary of State may certify a claim under subsection (2) include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the country or territory to which P is proposed to be removed. With effect from 1 December 2016, section 94B of the 2002 Act (to which I will refer simply as section 94B) has been amended by section 63 of the Immigration Act 2016 so as to extend the Home Secretarys power to certify under the section. Since then she has had power to certify any human rights claim irrespective of whether the claimant is liable to deportation. The extended power does not fall to be considered in these appeals but our decision today will surely impact on the extent of its lawful exercise. C: THE STATUTORY CONTEXT OF SECTION 94B Section 3(5)(a) of the 1971 Act provides that a person who is not a British citizen is liable to deportation from the UK if the Home Secretary deems his deportation to be conducive to the public good. Section 32(4) of the UK Borders Act 2007 (the 2007 Act) provides that, for the purpose of section 3(5)(a) of the 1971 Act, the deportation of a foreign criminal is conducive to the public good. Section 32(1) and (2) defines a foreign criminal as a person who is not a British citizen and who is convicted in the UK of an offence for which he is sentenced to a period of imprisonment of at least 12 months. My future references to a foreign criminal will be to a person as thus defined. Section 32(5) of the 2007 Act provides that, unless an exception specified in section 33 applies and therefore, in particular, unless his removal would breach his rights under the Convention, the Home Secretary must make a deportation order in respect of a foreign criminal. At the material times, section 82(1) and (3A) of the 2002 Act provided that, where a deportation order in respect of a person was stated to have been made in accordance with section 32(5) of the 2007 Act, he might appeal to the tribunal. By section 82(4), however, the right of appeal was subject to limitations. One limitation, relevant to the present appeals, arose in the conjunction of section 92(1) and (4)(a) of the 2002 Act with section 94(1) and (2) of it. Section 92(1) provided that an appeal under section 82 could not be brought while the appellant was in the UK unless it fell within one of the exceptions specified in later subsections. Subsection (4)(a) specified one exception, namely where the appellant had made a human rights claim while in the UK. Section 94(1) and (2), however, provided that an appellant could not rely on section 92(4)(a), ie in order to be entitled to bring his appeal from within the UK, if the Home Secretary certified that his human rights claim was clearly unfounded. But another limitation is of even greater relevance to the present appeals. This was the provision which accompanied the coming into force of section 94B on 28 July 2014. The provision was that, where under that section the Home Secretary certified a human rights claim made by a person liable to deportation, his appeal could be brought only from outside the UK. In relation to the deportation orders made in relation to Mr Kiarie on 10 October 2014 and to Mr Byndloss on 6 October 2014, such was the effect of article 4 of the Immigration Act 2014 (Commencement No 1, Transitory and Saving Provisions) Order 2014 (SI 2014/1820), continued by article 15 of a third commencement order (SI 2014/2771). In relation to deportation orders made on or after 20 October 2014, such was the effect of section 92(3)(a) of the 2002 Act. There is no right of appeal to the tribunal against a certification under section 94B. As these proceedings show, the challenge is by way of judicial review. D: MR KIARIE In January 2014, when aged 20, Mr Kiarie received a suspended sentence of imprisonment for two years for the offence of possessing Class A drugs with intent to supply. In May 2014 the suspended sentence was activated following further convictions for possession of Class A and Class B drugs. By letter dated 22 July 2014, the Home Secretary informed Mr Kiarie, who was detained in a Young Offender Institution, that his deportation to Kenya would be conducive to the public good, that he was therefore liable to deportation and that she was required to make a deportation order against him unless one of the exceptions in section 33 of the 2007 Act applied. She enclosed a questionnaire and invited him to complete and return it. Mr Kiarie did so: he claimed that his deportation would breach his human rights because it would separate him from his family and remove him to a place where he had no family, no place of residence and no means of fending for himself. By the notice to Mr Kiarie dated 10 October 2014, the Home Secretary rejected his claim that deportation would breach his human rights, in particular under article 8 of the Convention. She said that she accepted neither that he was socially and culturally integrated into the UK nor that there would be significant obstacles to his reintegration into Kenya nor that there were any very compelling circumstances which outweighed the public interest in his deportation. Nevertheless she did not certify that Mr Kiaries claim was clearly unfounded; the length of his life in the UK was probably thought to preclude her doing so. Prior to 10 October 2014 the Home Secretary had not invited Mr Kiarie to address whether she should exercise her new power under section 94B. In the notice of that date, however, she said as follows: 45. Consideration has been given to whether your article 8 claim should be certified under section 94B The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring It is acknowledged that your parents and siblings are in 46. the United Kingdom. However, any relationships you may have with family members can be continued through modern means of communication upon your return to Kenya. There is nothing to suggest that you would be unable to obtain employment in Kenya. You are 20 years old and have no serious medical conditions. Furthermore, any skills/qualifications you have gained in the United Kingdom can only serve to assist you in finding employment in Kenya. It is noted that English is one of the official languages of Kenya and therefore it is considered that there would be no communication barriers upon your return. 47. For all the above reasons, it is not accepted that you face a real risk of serious irreversible harm if removed to Kenya while you pursue your appeal against deportation, should you choose to exercise that right. Therefore, it has been decided to certify your article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom. E: MR BYNDLOSS In May 2013, when aged 32, Mr Byndloss was sentenced to imprisonment for three years for the offence of possessing Class A drugs with intent to supply. By letter dated 21 June 2013, the Home Secretary informed Mr Byndloss, who was in prison, that he was liable to deportation and that she was required to make a deportation order against him unless one of the exceptions in section 33 of the 2007 Act applied. She enclosed the same questionnaire later sent to Mr Kiarie. Under cover of a letter to the Home Office dated 4 October 2013, solicitors for Mr Byndloss returned the questionnaire which he had partially completed. He said little more than that in 2004 he had married a British woman living in England, by whom he had sons then aged eight, six and two and a daughter whose age he did not identify; that, by a second partner living here, he had sons then aged three and eight months and a daughter then aged two; and that, by a third partner living here, he had a daughter whose age he did not identify. The solicitors also enclosed letters from Mr Byndloss and from two of the mothers of his children and other witnesses, and birth certificates relating to six of the children; and the solicitors explained that they had had only a limited opportunity to assist Mr Byndloss and that he was claiming that deportation would breach his rights under article 8 of the Convention. It was more than a year later, namely on 6 October 2014, that the Home Secretary sent notice of her decision to Mr Byndloss, who remained in prison and who in the interim had sent further information to her. By the notice, she rejected his claim that deportation would breach his rights under article 8; and she enclosed the deportation order. She acknowledged that he was the father of the seven children by his wife and by his second partner but did not accept that he had a genuine and subsisting relationship with any of them. She said that, pursuant to section 55(1) and (2) of the Borders, Citizenship and Immigration Act 2009 (the 2009 Act), she had, in making her decision, had regard to the need to safeguard and promote the welfare of the children, including also that of the eighth child in case, which had not been demonstrated, she was indeed his daughter. Nevertheless the Home Secretary did not certify that Mr Byndloss claim was clearly unfounded; the existence of his children in the UK was probably thought to preclude her doing so. One of the consequences of the long unexplained delay in the Home Secretarys determination of Mr Byndloss claim was that in the interim section 94B had come into force. Although she had not at any time invited him to address whether she should exercise the new power, she explained in the notice dated 6 October 2014 that she had decided to do so. She concluded her reference to the section as follows: Consideration has been given to whether your article 8 claim should be certified under section 94B The Secretary of State has considered whether there would be a real risk of serious irreversible harm if you were to be removed pending the outcome of any appeal you may bring. The Secretary of State does not consider that such a risk exists. Therefore, it has been decided to certify your article 8 claim under section 94B and any appeal you may bring can only be heard once you have left the United Kingdom. In November 2014 Mr Byndloss issued an application for judicial review of the certificate under section 94B. He filed witness statements which gave further details about his relationship with the eight children; but at that time he was still detained, albeit in an immigration removal centre following completion of his sentence. Permission to apply for judicial review was refused in the High Court but he secured permission to appeal against the refusal; and the hearing of his appeal, together with that of Mr Kiarie who had also been refused permission to apply for judicial review of the certificate referable to him, was fixed to take place in the Court of Appeal on 23 September 2015. Less than three weeks before that hearing, namely on 3 September 2015, the Home Secretary sent to Mr Byndloss a 21 page letter which she described as supplementary to the decision dated 6 October 2014 but which she claimed to incorporate her entire reasoning. In effect it replaced the earlier notice and amounted to a fresh, up to date, decision to reject Mr Byndloss claim. She noted that in April 2015 he had been released from immigration detention and that he had therefore been incarcerated, in all, for 705 days. She maintained, contrary to prison records by then already provided to her, that there was no evidence that the four children of the marriage had visited him in prison. Following a detailed analysis she maintained her refusal to accept that he had a genuine or subsisting relationship with any of the eight children or that he played any meaningful parental role in their lives. In the letter dated 3 September 2015 the Home Secretary also reiterated her decision to certify Mr Byndloss claim under section 94B. But she expressed her reasons for doing so differently. She expanded her explanation in order to address the alleged difficulties in bringing an appeal from Jamaica to which Mr Byndloss had referred in the proceedings. She said that if necessary he could give evidence from there by video link; that the proposed evidence about his relationship with the children could be given orally by their mothers and in a written statement by himself; and that his concern to be able to react to whatever might be said against him at the hearing could be met by his study of her skeleton argument, by which he could in advance discern what would be said. She referred, as before, to her duty under section 55 of the 2009 Act; but she now placed her reference to it in the specific context of her function under section 94B. Her central conclusion was as follows: The Secretary of State does not consider that your removal pending the outcome of any appeal would be unlawful under section 6 of the Human Rights Act 1998 and considers that there is no real risk of serious irreversible harm in your case. It is considered that your removal pending your appeal would be proportionate in all the circumstances. In the days between receipt of the letter dated 3 September 2015 and the hearing in the Court of Appeal Mr Byndloss, by his solicitors, filed a mass of evidence intended to contradict some of what the Home Secretary had said in the course of it. In particular he filed a lengthy report by an independent social worker to the effect that following his release Mr Byndloss had had frequent contact with all eight children; had resumed a loving and committed relationship with each of them; and had maintained a good relationship with their mothers. In the event the Court of Appeal resolved to treat the Home Secretarys letter dated 3 September 2015 as the decision under challenge in Mr Byndloss appeal but not to consider the evidence filed subsequently on his behalf. In this connection it accepted an offer by the Home Secretary that, were his appeal dismissed, she would consider the new evidence when making yet a further determination whether to certify the claim under section 94B. On any view, however, the courts treatment of the letter dated 3 September 2015 as the decision under challenge cut away aspects of the argument proposed to be advanced on behalf of Mr Byndloss, including in particular an argument that the certification dated 6 October 2014 had run counter to published policy which had governed the use of section 94B during the initial 11 weeks for which it had been in force. Following delivery of the judgments of the Court of Appeal in the present case, a different constitution of that court has delivered valuable judgments relating to the difficulty which confronts courts and tribunals when deciding how to treat supplementary decision letters sent by the Home Secretary, often shortly before a hearing: R (Caroopen) v Secretary of State for the Home Department [2016] EWCA Civ 1307. Mr Byndloss does not suggest, and has never suggested, that it was wrong for the Court of Appeal to treat the letter dated 3 September 2015 as the more material decision by then under challenge; but, had the guidance in the Caroopen case been available to it, the court might have been more concerned to address the disadvantage which he had suffered as a result of the Secretary of States last minute reconstitution of the issues. F: OBJECTIVES OF SECTION 94B On 30 September 2013, at the Conservative Party Conference, the Home Secretary said: Where there is no risk of serious and irreversible harm, we should deport foreign criminals first and hear their appeals later. An Immigration Bill was swiftly laid before Parliament and clause 12 of it provided for the insertion of section 94B into the 2002 Act. The Bill had not been preceded by a green paper or other form of consultation. An Impact Assessment of the Bill, dated 14 October 2013, described the objective of the proposed insertion as the removal of unnecessary delay in the determination of appeals. On 22 October 2013, in proposing the second reading of the Bill, the Home Secretary said (HC Deb, vol 569, col 161): Foreign criminals will not be able to prevent deportation simply by dragging out the appeals process, as many such appeals will be heard only once the criminal is back in their home country. It cannot be right that criminals who should be deported can remain here and build up a further claim to a settled life in the United Kingdom. On 5 November 2013, when attending on the Public Bill Committee, the Minister for Immigration said (Immigration Bill Deb 5, cols 205, 206): The new power is to help to speed up the deportation of harmful individuals, including foreign criminals many people use the appeal mechanism not because they have a case but to delay their removal from the United Kingdom. In some cases, they attempt to build up a human rights based claim under article 8, which they subsequently use, sometimes successfully, to prevent their departure. Thus the specific, linked objectives of section 94B were alleged to have been to reduce delay in the determination by the tribunal of human rights appeals and to prevent an appellants abuse of the system by seeking to strengthen his claim during the pendency of his appeal. But, as the Secretary of State no doubt correctly submits, there was also a more fundamental objective, arising from the very fact that the potential subjects of certification were very largely, like the two appellants, foreign criminals. The deportation of a foreign criminal is conducive to the public good. So said Parliament in enacting section 32(4) of the 2007 Act: see para 11 above. Parliaments unusual statement of fact was expressed to be for the purpose of section 3(5)(a) of the 1971 Act so its consequence was that every foreign criminal became automatically liable to deportation. Parliaments statement exemplifies the strong public interest in the deportation of foreign nationals who have committed serious offences: Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799, para 14, Lord Reed. In the Ali case the court was required to identify the criterion by reference to which the tribunal should determine an appeal of a foreign criminal on human rights grounds against a deportation order. The decision was that the public interest in his deportation was of such weight that only very compelling reasons would outweigh it: see paras 37 and 38, Lord Reed. The Home Secretary submits that the strong public interest in the deportation of foreign criminals extends to their deportation in advance of their appeals. Her submission found favour in the Court of Appeal. In para 44 of his judgment Richards LJ observed that the very fact of Parliaments enactment of section 94B exemplified the public interest in deportation even in that situation; that therefore substantial weight must be attached to that public interest in that context too; and that, in assessing the proportionality of a certificate, the public interest is not a trump card but it is an important consideration in favour of removal. Notwithstanding the respect which over many years this court has developed for the opinions of Richards LJ, particularly in this field, I disagree with his observations. I have explained in para 31 above that one aspect of this public interest is said to be a concern that, if permitted to remain in the UK pending his appeal, a foreign criminal might seek to delay its determination in order to strengthen his personal and family connections here. But the tribunal will be alert not to allow objectively unwarranted delay. A somewhat stronger aspect of the public interest is the risk that, if permitted to remain pending his appeal, the foreign criminal would, however prejudicially to its success, take that opportunity to re offend. To that extent there is a public interest in his removal in advance of the appeal. But in my view that public interest may be outweighed by a wider public interest which runs the other way. I refer to the public interest that, when we are afforded a right of appeal, our appeal should be effective. To be set alongside Parliaments enactment of section 94B was its enactment of section 82(1) and (3A) of the 2002 Act, by which it gave a foreign criminal a right of appeal against the deportation order: see para 13 above. In published guidance to her case workers the Home Secretary has made clear that there is no need to consider certification of a claim under section 94B if it can be certified under section 94, as to which see para 14 above. So, as exemplified in the cases of Mr Kiarie and Mr Byndloss, a certificate under section 94B is of a human rights claim which is not clearly unfounded, which in other words is arguable. In my view therefore the public interest in a foreign criminals removal in advance of an arguable appeal is outweighed unless it can be said that, if brought from abroad, the appeal would remain effective: as to which, see section I below. G: ANALYSIS OF SECTION 94B It is clear, for example from the Home Secretarys announcement to her partys conference set out at para 31 above, that the initial conception was of a power to require a foreign criminal to bring his appeal from abroad in all cases in which his removal created no risk that he would suffer serious irreversible harm. The criterion of serious irreversible harm was drawn from the practice of the European Court of Human Rights (the ECtHR) when it considers whether to indicate an interim measure under rule 39 of its Rules of Court: if, for, example, an applicant who is challenging a decision to deport or extradite him would face an imminent risk of irreparable damage if removed in advance of determination of the application, the ECtHR may indicate that it should not take place: Mamatkulov v Turkey (2005) 41 EHRR 494, para 104. There is clearly a parallel between the power of the ECtHR under rule 39 and the Home Secretarys power of certification under section 94B; but the parallel is not exact, if only because the demands made of an appellant in adducing evidence to a UK tribunal in an appeal against a deportation order, to which I will refer in para 55 below, have no parallel in those made of an applicant in pursuing an application before the ECtHR. For whatever reason, Parliament wisely decided that the overarching criterion for certification under section 94B should be that removal pending appeal would not breach the claimants human rights and that the real risk of serious irreversible harm should be only an example of when such a breach would occur. Subsections (2) and (3) might be thought to have made this clear but unfortunately it was made far from clear to case workers. Guidance issued by the Home Office entitled Section 94B certification guidance for Non European Economic Area deportation cases, in both its first version dated July 2014 and its second version dated 20 October 2014, stated: Section 94B allows a human rights claim to be certified where the appeal process has not yet begun or is not yet exhausted where it is considered that the person liable to deportation would not, before the appeal process is exhausted, face a real risk of serious irreversible harm if removed to the country of return. So it is easy to understand why the certification of Mr Kiaries claim on 10 October 2014 and the first certification of Mr Byndloss claim on 6 October 2014 were both expressly based on a conclusion that they would not face a real risk of serious irreversible harm if removed to Kenya and Jamaica in advance of any appeal: see paras 20 and 25 above. In the Court of Appeal Richards LJ inevitably held that those two certifications were based on a legal misdirection. He proceeded to hold, however, that the misdirection in Mr Kiaries case had not been material because, even had she applied the overarching criterion, the Home Secretary would still have certified his claim; and that the misdirection in the first certification of Mr Byndloss claim had been cured by a correct direction in the second certification of it. Earlier Richards LJ had observed: There may in practice be relatively few cases where removal for an interim period pending an appeal would be in breach of Convention rights in the absence of a risk of serious irreversible harm, but it is a possibility which must be focused on as a necessary part of the decision making process. With respect, I would not associate myself with this observation of Richards LJ. It would lull case workers into thinking that they would be safe to concentrate on weighing a real risk of serious irreversible harm to the prospective appellant himself. But, as I will explain, a specific focus on the risk of serious harm to the prospects of his appeal might very well ground a conclusion that his removal in advance of it would breach his Convention rights. Any analysis of section 94B must also include reference to the discretion which it confers on the Home Secretary not to certify the claim even when she concludes that to do so would not breach Convention rights. No doubt its exercise will be rare. H: JUDICIAL REVIEW OF CERTIFICATION In their proposed appeals to the tribunal Mr Kiarie and Mr Byndloss will argue that their deportation would breach their rights under article 8. In the present proceedings for judicial review they argue analogously that their deportation in advance of their proposed appeals would breach their rights under article 8. Although the focus of the two inquiries is different, should the judicial approach to the Home Secretarys respective decisions be different? After all, both the tribunal when it hears the appeals and the court or tribunal when it hears the applications for judicial review are public authorities, which act unlawfully if they act in a way which is incompatible with a Convention right: section 6(1) of the Human Rights Act 1998 (the 1998 Act). When on an appeal the tribunal considers an argument that deportation would breach the appellants Convention rights, for example under article 8, its approach to the Home Secretarys decision is not in doubt. It was recently explained by Lord Reed in the Ali case, cited at para 33 above, in paras 39 to 50. In summary, the tribunal must decide for itself whether deportation would breach the appellants Convention rights; in making that decision, it can depart from findings of fact made by the Home Secretary and indeed can hear evidence and make findings even about matters arising after her decision was made (section 85(4) of the 2002 Act); and, in making that same decision, it must assess for itself the proportionality of deportation, albeit attaching considerable weight to the considerations of public policy upon which the Home Secretary has relied and to any other part of her reasoning which, by virtue of her position and her special access to information, should carry particular authority. There is no doubt that, in proceedings for judicial review of a certificate under section 94B, the court or tribunal must also decide for itself whether deportation in advance of the appeal would breach the applicants Convention rights. There is no doubt that, in making that decision, it must assess for itself the proportionality of deportation at that stage. As Lord Neuberger of Abbotsbury said in the proceedings for judicial review in R (Lord Carlile of Berriew) v Secretary of State for the Home Department [2014] UKSC 60, [2015] AC 945, at para 67: where human rights are adversely affected by an executive decision, the court must form its own view on the proportionality of the decision, or what is sometimes referred to as the balancing exercise involved in the decision. Lord Neuberger proceeded, however, to add a qualification referable to the degree of respect to be afforded to the judgment in that regard of the primary decision maker; and he did so along the lines of the last part of my summary in para 42 above. The issue which arises relates to the courts treatment of the Home Secretarys findings of fact when it comes to decide for itself whether deportation in advance of the appeal would breach the applicants human rights. To what extent should it inherit and adopt them? In the Court of Appeal Richards LJ said of the Home Secretary: In my judgment, her findings of fact are open to review on normal Wednesbury principles, applied with the anxious scrutiny appropriate to the context: R (Giri) v Secretary of State for the Home Department [2015] EWCA Civ 784 In the Giri case, now reported at [2016] 1 WLR 4418, the issue was whether the Home Secretary had been entitled to refuse to grant the applicant leave to remain in the UK. She had been entitled to do so if, in making his application for leave, he had failed to disclose a material fact. She found as a fact that he had failed to do so. The Court of Appeal applied the Wednesbury criterion in holding that her finding of fact had not been unreasonable. The difficulty is that the Giri case did not engage the courts duty under section 6 of the 1998 Act. In Manchester City Council v Pinnock (Nos 1 and 2) [2010] UKSC 45, [2011] UKSC 6, [2011] 2 AC 104, a tenant of a house owned by a local authority argued that possession of the house pursuant to the order which it sought against him would breach his rights under article 8. This court held at para 74 that: where it is required in order to give effect to an occupiers article 8 Convention rights, the courts powers of review can, in an appropriate case, extend to reconsidering for itself the facts found by a local authority, or indeed to considering facts which have arisen since the issue of proceedings, by hearing evidence and forming its own view. In the Lord Carlile case, cited at para 43 above, Lord Sumption said, more broadly, at para 30: when it comes to reviewing the compatibility of executive decisions with the Convention, there can be no absolute constitutional bar to any inquiry which is both relevant and necessary to enable the court to adjudicate. Even when elevated by the protean concept of anxious scrutiny, application of the Wednesbury criterion to the right to depart from the Home Secretarys findings of fact (including any refusal to make such findings) in the course of a judicial review of her certificate under section 94B is in my opinion inapt. If it is to discharge its duty under section 6 of the 1998 Act, the court may need to be more proactive than application of the criterion would permit. In many cases the court is likely to conclude that its determination will not depend on the Home Secretarys findings of fact or that, if it does, her findings are demonstrably correct and should not be revisited. Take the case of Mr Byndloss. He contends that, even by reference only to the evidence before her on 3 September 2015, she was wrong, by her letter of that date, to refuse to accept his contention that he had a genuine or subsisting relationship with any of his children. I will explain why, in my view, his application for judicial review can be determined without the need for a court to inquire into the correctness of her refusal to accept his contention. But, even in the course of a judicial review, the residual power of the court to determine facts, and to that end to receive evidence including oral evidence, needs to be recognised. I: THE REQUIREMENTS OF ARTICLE 8 At last I can begin to address the central issue. But, in answering the question did the certificates breach the rights of the appellants under article 8?, the first task is to identify what, in this context of proposed deportation in advance of an appeal, article 8 requires. In Al Nashif v Bulgaria (2003) 36 EHRR 655 the Bulgarian authorities had deported the first applicant to Syria on grounds of national security. When prior to his deportation he had sought to appeal against the deportation order, the court had ruled that, inasmuch as it was on grounds of national security, the order was not open to appeal. The ECtHR held that the deportation had interfered with the first applicants right to respect for his family life and that it followed from the absence of any facility to appeal against the order that the interference was not in accordance with the law within the meaning of article 8(2). It held: 123. Even where national security is at stake, the concepts of lawfulness and the rule of law in a democratic society require that measures affecting fundamental human rights must be subject to some form of adversarial proceedings before an independent body competent to review the reasons for the decision and relevant evidence, if need be with appropriate procedural limitations on the use of classified information. So the court held that Bulgaria had breached the first applicants rights under article 8. It proceeded to hold, separately, that it had breached his rights under article 13 of the Convention in conjunction with article 8. Article 13 provides: Everyone whose rights and freedoms as set forth in [the] Convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity. When domestic UK courts are asked to determine allegations of breach of Convention rights, it is of no consequence to them that article 13 was omitted from the articles included in Schedule 1 to the 1998 Act. The right to an effective remedy for breaches of the substantive Convention rights is generally recognised elsewhere in the 1998 Act (Brown v Stott (Procurator Fiscal, Dunfermline) [2003] 1 AC 681, 715, Lord Hope of Craighead) and indeed, in the case of the present appellants, has been specifically recognised by the grant of a right of appeal under section 82 of the 2002 Act. In subsequent decisions the ECtHR seems to have preferred to locate the right to an effective remedy for breach of article 8 within article 13 rather than within the phrase in accordance with the law in article 8(2). The leading authority, recently indorsed in Khlaifia v Italy, Application No 16483/12, is De Souza Ribeiro v France (2014) 59 EHRR 454. A Brazilian man was arrested in French Guiana and ordered to be removed on the basis that his presence there was illegal. On the day following his arrest he filed an application for judicial review of the order but, later on that very day, he was removed to Brazil. The Grand Chamber of the ECtHR held that France had breached his right under article 13 in conjunction with article 8. He had argued that, whenever an order for removal was challenged by reference to article 8, article 13 required an automatic suspension of the removal pending determination of the challenge, just as when the challenge was by reference to articles 2 or 3. But the Grand Chamber declined to go so far. It held: 83. By contrast [to challenges under articles 2 or 3], where expulsions are challenged on the basis of alleged interference with private and family life, it is not imperative, in order for a remedy to be effective, that it should have automatic suspensive effect. Nevertheless, in immigration matters, where there is an arguable claim that expulsion threatens to interfere with the aliens right to respect for his private and family life, article 13 in conjunction with article 8 of the Convention requires that states must make available to the individual concerned the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality. There was a powerful concurring opinion to the effect that article 13 did require automatic suspension of the order when removal would allegedly put migrants in danger of irreversible damage to their family lives (para OII 21). But the jurisprudence of the ECtHR seems to be clear that the facility for challenge has to be effective; an effective facility for challenge will not automatically require (a) (b) suspension of the removal order; and (c) whether its suspension is required in order to make the facility effective will depend on the circumstances. In R (Gudanaviciene) v Director of Legal Aid Casework [2014] EWCA Civ 1622, [2015] 1 WLR 2247, the Court of Appeal, by a judgment delivered by Lord Dyson MR, also, albeit by a different route, reached the conclusion that article 8 required that an appeal against a deportation order by reference to it should be effective. The court (a) cited at para 65 the decision of the ECtHR in W v United Kingdom (1987) 10 EHRR 29, para 64, to the effect that article 8 required that parents who had sought contact with a child in care should have been involved in the decision making process to a degree sufficient to provide the requisite protection of their interests; (b) held at para 69 that the same requirement applied to article 8 claims by immigrants; and (c) to the tribunal should be effective. concluded at para 70 that it amounted to a requirement that their access J: BACKGROUND TO THE CIRCUMSTANCES The relevant circumstances must be considered against four features of the background. The first is that the proposed deportations would be events of profound significance for the future lives of Mr Kiarie, his parents and siblings; and of Mr Byndloss and, to the extent that he has or might otherwise develop a genuine relationship with them, also of his children. In the absence of exceptional circumstances the Home Secretary would not even consider whether to readmit either of the appellants to the UK within ten years of the date of the deportation orders: para 391(a) of the Immigration Rules, HC 395 (as amended). The second is that, in the absence of certificates that they are clearly unfounded, the proposed appeals of these appellants must be taken to be arguable: see para 35 above. The third is that, particularly in the light of this courts decision in the Ali case, every foreign criminal who appeals against a deportation order by reference to his human rights must negotiate a formidable hurdle before his appeal will succeed: see para 33 above. He needs to be in a position to assemble and present powerful evidence. I must not be taken to be prescriptive in suggesting that the very compelling reasons which the tribunal must find before it allows an appeal are likely to relate in particular to some or all of the following matters: the quality of his relationship with any child, partner or other family the depth of the appellants integration in UK society in terms of (a) family, employment and otherwise; (b) member in the UK; the extent to which any relationship with family members might (c) reasonably be sustained even after deportation, whether by their joining him abroad or otherwise; (d) welfare of any child in the UK; (e) the country of his nationality; and, surely in every case, (f) any significant risk of his re offending in the UK, judged, no doubt with difficulty, in the light of his criminal record set against the credibility of his probable assertions of remorse and reform. the impact of his deportation on the need to safeguard and promote the the likely strength of the obstacles to his integration in the society of The fourth is that the authority responsible for having directed the dramatic alteration in the circumstances of the appellant even in advance of his appeal is the respondent to the appeal herself. In R (Detention Action) v First tier Tribunal (Immigration and Asylum Chamber) [2015] EWCA Civ 840, [2015] 1 WLR 5341, the Court of Appeal upheld the quashing of Fast Track Rules which, in particular, required asylum seekers, if detained by the Home Secretary at specified locations, to present any appeal against the refusal of asylum within seven days of the refusal. Having referred in para 27 of his judgment to the principle that only the highest standards of fairness will suffice in the context of asylum appeals, Lord Dyson explained at para 38 that the timetable for the conduct of the appeals was so tight that a significant number of appellants would be denied a fair opportunity to present them. He explained at paras 46 to 48 that in those circumstances the court had no need to address a further argument that it had been in breach of natural justice for the Home Secretary, as the respondent to any appeal, to have been able, by detaining the asylum seeker at a specified location, to cause him to be placed into the fast track. Lord Dyson suggested, however, that, had the rules for the fast track been fair, it would have been irrelevant that it was the Home Secretary who had caused them to be engaged. I respectfully agree. But the role of the respondent to the proposed appeals in seeking to achieve the removal of the appellants in advance of their determination, taken in conjunction with the first three of the background features set out above, requires this court to survey punctiliously, and above all realistically, whether, if brought from abroad, their appeals would remain effective. For that is what their human rights require. K: WEAKENING THE ARGUMENTS ON THE APPEAL On an appeal against a deportation order the overarching issue for the tribunal will be whether the deportation would be lawful. But, if the certificate under section 94B is lawful, the appellant will already have been deported. In determining the overarching issue the tribunal will be likely to address in particular the depth of his integration in UK society and the quality of his relationships with any child, partner or other family member: see para 55 (a) and (b) above. But, were the certificate under section 94B lawful, his integration in UK society would already have been cut away; and his relationships with them ruptured. Statistics now produced by the Home Secretary, which the appellants consider to be surprisingly optimistic, suggest that an appeal brought from abroad is likely to be determined within about five months of the filing of the notice. So, by the time of the hearing, an appellant, if deported pursuant to a certificate, will probably have been absent from the UK for a minimum of five months. No doubt the tribunal will be alert to remind itself of its duty to set aside the deportation order and thus to enable an appellant to re enter the UK if his human rights were so to require. But, by reason of his deportation pursuant to a certificate, his human rights are less likely so to require! It is one thing further to weaken an appeal which can already be seen to be clearly unfounded. It is quite another significantly to weaken an arguable appeal: such is a step which calls for considerable justification. The Home Secretary argues that, by definition, the foreign criminal will have been in prison, perhaps also later in immigration detention, in the UK and so he will already have suffered both a loosening of his integration, if any, in UK society and, irrespective of any prison visits, an interruption of his relationship with family members. I agree; but in my view the effect of his immediate removal from the UK on these two likely aspects of his case would probably be significantly more damaging than that of his prior incarceration here. For present purposes, however, I put these substantial concerns aside. In my view what is crucial to the disposal of these appeals is the effect of a certificate under section 94B in obstructing an appellants ability to present his appeal. L: OBSTRUCTING PRESENTATION OF THE APPEAL The first question is whether an appellant is likely to be legally represented before the tribunal at the hearing of an appeal brought from abroad. Legal aid is not generally available to an appellant who contends that his right to remain in the UK arises out of article 8: para 30, Schedule 1 to the Legal Aid, Sentencing and Punishment of Offenders Act 2012. So, in order to obtain legal aid, he must secure an exceptional case determination under section 10 of that Act. Although an appeal brought from abroad is in principle as eligible for such a determination as an appeal brought from within the UK, the determination cannot be made unless either the absence of legal aid would breach his rights under article 8 or it might breach them and provision of it is appropriate in all the circumstances: section 10(3). It suffices to say for present purposes that it is far from clear that an appellant relying on article 8 would be granted legal aid. One can say only that, were he required to bring his appeal from abroad, he might conceivably be represented on legal aid; that alternatively he might conceivably have the funds to secure private legal representation; that alternatively he might conceivably be able to secure representation from one of the specialist bodies who are committed to providing free legal assistance to immigrants (such as Bail for Immigration Detainees: see para 70 below); but that possibly, or, as many might consider, probably, he would need to represent himself in the appeal. Even if an appellant abroad secured legal representation from one source or another, he and his lawyer would face formidable difficulties in giving and receiving instructions both prior to the hearing and in particular (as I will explain) during the hearing. The issue for this court is not whether article 8 requires a lawyer to be made available to represent an appellant who has been removed abroad in advance of his appeal but whether, irrespective of whether a lawyer would be available to represent him, article 8 requires that he be not removed abroad in advance of it. The next question is whether, if he is to stand any worthwhile chance of winning his appeal, an appellant needs to give oral evidence to the tribunal and to respond to whatever is there said on behalf of the Home Secretary and by the tribunal itself. By definition, he has a bad criminal record. One of his contentions will surely have to be that he is a reformed character. To that contention the tribunal will bring a healthy scepticism to bear. He needs to surmount it. I have grave doubts as to whether he can ordinarily do so without giving oral evidence to the tribunal. In a witness statement he may or may not be able to express to best advantage his resolution to forsake his criminal past. In any event, however, I cannot imagine that, on its own, the statement will generally cut much ice with the tribunal. Apart from the assistance that it might gain from expert evidence on that point (see para 74 below), the tribunal will want to hear how he explains himself orally and, in particular, will want to assess whether he can survive cross examination in relation to it. Another strand of his case is likely to be the quality of his relationship with others living in the UK, in particular with any child, partner or other family member. The Home Secretary contends that, at least in this respect, it is the evidence of the adult family members which will most assist the tribunal. But I am unpersuaded that the tribunal will usually be able properly to conduct the assessment without oral evidence from the appellant whose relationships are under scrutiny; and the evidence of the adult family members may either leave gaps which he would need to fill or betray perceived errors which he would seek to correct. When the power to certify under section 94B was inserted into the 2002 Act, an analogous power was inserted into the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations), now recently replaced. Regulation 24AA(2) enabled the Home Secretary to add to an order that an EEA national be deported from the UK a certificate that his removal pending any appeal on his part would not be unlawful under section 6 of the 1998 Act. But regulation 24AA(4) enabled him to apply to the appropriate court or tribunal (whether by means of judicial review or otherwise) for an interim order to suspend enforcement of the removal decision. In Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC), the Upper Tribunal (Blake J and UTJ Goldstein) observed at para 22 that, on an application for an order to suspend enforcement, the court or tribunal would take due account of four factors. The fourth was that in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact finding process It is also worthwhile to note that, even if an EEA national was removed from the UK in advance of his appeal, he had, save in exceptional circumstances, a right under regulation 29AA of the 2006 Regulations (reflective of article 31(4) of Directive 2004/58/EC) to require the Home Secretary to enable him to return temporarily to the UK in order to give evidence in person to the tribunal. The Home Secretary submits to this court that the fairness of the hearing of an appeal against deportation brought by a foreign criminal is highly unlikely to turn on the ability of the appellant to give oral evidence; and that therefore the determination of the issues raised in such an appeal is likely to require his live evidence only exceptionally. No doubt this submission reflects much of the thinking which led the Home Secretary to propose the insertion of section 94B into the 2002 Act. I am, however, driven to conclude that the submission is unsound and that the suggested unlikelihood runs in the opposite direction, namely that in many cases an arguable appeal against deportation is unlikely to be effective unless there is a facility for the appellant to give live evidence to the tribunal. But in any event, suggests the Home Secretary, there is, in each of two respects, a facility for an appellant in an appeal brought from abroad to give live evidence. The first suggested respect was the subject of a curious submission on the part of the Home Secretary to the Court of Appeal. It was that from abroad the appellant could apply for, or that the tribunal could on its own initiative issue, a summons requiring his attendance as a witness at the hearing pursuant to rule 15(1) of the Tribunal Procedure (First tier Tribunal) (Immigration and Asylum Chamber) Rules 2014 (SI 2014/2604) (the 2014 Rules). The curiosity of the submission is that such a summons is not enforceable in respect of a person outside the UK. Nevertheless the Court of Appeal held that the issue of a summons would be a legitimate way of putting pressure on the Home Secretary to allow the appellant to return to the UK to give oral evidence. Before this court the Home Secretary does not continue to contend for the suitability of a summons under rule 15(1). She nevertheless suggests that the tribunal could, by direction, stress the desirability of the appellants attendance before it and that, were she thereupon to fail to facilitate his attendance, the appellant could seek judicial review of the certificate under section 94B and, if successful, a consequential order for his return at least pending the appeal. But whether the tribunal could, or if so would, give such a direction in the teeth of a subsisting certificate is doubtful; and in any event it seems entirely impractical for an appellant abroad to apply first for the unenforceable direction and then for judicial review of any failure to comply with it. The second suggested respect has been the subject of lengthy and lively argument. The suggestion is that the appellant can seek to persuade the tribunal to permit him to give live evidence from abroad by video link or, in particular nowadays, by Skype. There is no doubt that, in the context of many appeals against immigration decisions, live evidence on screen is not as satisfactory as live evidence given in person from the witness box. The recent decision of the Upper Tribunal (McCloskey P and UTJ Rintoul) in R (Mohibullah) v Secretary of State for the Home Department [2016] UKUT 561 (IAC) concerned a claim for judicial review of the Home Secretarys decision to curtail a students leave to remain in the UK on the grounds that he had obtained it by deception. The Upper Tribunal quashed the decision but, in a footnote, suggested that the facility for a statutory appeal would have been preferable to the mechanism of judicial review and that it would be preferable for any statutory appeal to be able to be brought from within the UK. It said: (90) Experience has demonstrated that in such cases detailed scrutiny of the demeanour and general presentation of parties and witnesses is a highly important factor. So too is close quarters assessment of how the proceedings are being conducted for example, unscheduled requests for the production of further documents, the response thereto, the conduct of all present in the courtroom, the taking of further instructions in the heat of battle and related matters. These examples could be multiplied. I have found the mechanism of evidence by video link to be quite unsatisfactory in other contexts, both civil and criminal. It is not clear whether the aforementioned essential judicial exercises could be conducted satisfactorily in an out of country appeal. Furthermore, there would be a loss of judicial control and supervision of events in the distant, remote location, with associated potential for misuse of the judicial process. Although the Home Secretary stresses that the Upper Tribunal was addressing the determination of issues relating to deception, its reservations about the giving of evidence by electronic link seem equally apt to appeals under article 8 against deportation orders. Indeed one might add that the ability of a witness on screen to navigate his way around bundles is also often problematic, as is his ability to address cross examination delivered to him remotely, perhaps by someone whom he cannot properly see. But, although the giving of evidence on screen is not optimum, it might well be enough to render the appeal effective for the purposes of article 8, provided only that the appellants opportunity to give evidence in that way was realistically available to him. Inquiry into the realistic availability of giving evidence on screen to the tribunal gets off to a questionable start: for in her report entitled 2016 UK Judicial Attitude Survey, Professor Thomas, UCL Judicial Institute, records that 98% of the judges of the First tier Tribunal throughout the UK responded to her survey and that, of them, 66% rated as poor the standard of IT equipment used in the tribunal. In Secretary of State for the Home Department v Nare [2011] UKUT 443 (IAC) the Upper Tribunal (Mr CMG Ockelton VP, UTJ Grubb and IJ Holmes), in the course of considering an allegation that a judge of the First tier Tribunal had too readily allowed a witness to give evidence by telephone, gave guidance as to how the tribunal should approach any application for a direction that evidence be given by electronic link. At that time the rules specifically provided for such a direction to be given; now, by rules 1(4) and 14(1)(e) of the 2014 Rules, provision for it is encompassed in the definition of a hearing, together with the power to direct the manner in which any evidence or submissions are to be provided [including] orally at a hearing. The Upper Tribunal prefaced its guidance by observing at para 17 that departure from the usual model of oral evidence given directly in the courtroom was likely to reduce the quality of evidence and the ability both of the parties to test it and of the judge to assess it. Its guidance, given in para 21, included: that the application should be made and determined well before the (a) substantive hearing; (b) that the application should not only explain the reason for evidence to be given on screen and indicate the arrangements provisionally made at the distant site but also include an undertaking to be responsible for any expenses incurred; (c) that, were the evidence to be given from abroad, the applicant should be able to inform the tribunal that the foreign state raised no objection to the giving of evidence to a UK tribunal from within its jurisdiction; (d) that the applicant should satisfy the tribunal that events at the distant site were, so far as practicable, within its observation and control, that the evidence would be given there in formal surroundings and be subject to control by appropriate officials and that nothing could happen off camera which might cast doubt on the integrity of the evidence; and (e) suitable facilities. that a British Embassy or High Commission might be able to provide Bail for Immigration Detainees (BID), a charity which provides a small minority of those facing deportation with free legal advice and even representation and which intervenes in the appeals before the court, provides a helpful example of how the tribunal seeks to implement the guidance given in the Nare case. In 2016 BID represented a Nigerian citizen in his appeal against a deportation order by reference to his rights under article 8. His claim had been certified under section 94B so he had been removed to Nigeria in advance of the appeal. On his application, through BID, to give evidence on the appeal from Nigeria by Skype, the tribunal sought to implement the guidance summarised at para 69(d) above by the following direction: The tribunal must be advised in advance of the hearing of the arrangements made to enable the appellant to give evidence in a secure location, attended by a local agent or representative instructed by the appellants solicitors and whose identity has at the time of such advice been provided to the tribunal. In the same order the tribunal also sought to implement the guidance summarised at para 69(b) above by the following direction: All necessary equipment and Skype link must be provided and paid for by the appellant but must include: (i) Projection equipment (ii) Audio equipment (iii) Wi fi link to enable all present to see and hear the appellant give evidence. As is apparent from this direction, the tribunal requires an applicant to pay for provision of the necessary equipment not only at the distant end but also at the hearing centre itself. When, in a letter written in response to the direction, BID requested the tribunal to buy, install and maintain its own equipment for the purpose of hearing evidence from abroad, one of its judges replied: Unfortunately, the Tribunal has no funds to provide equipment or technical ability, hence the onus in that regard we have to place upon appellants and their representatives. In the event the appellant represented by BID was furnished by a friend with the equipment necessary for his use in Nigeria in giving evidence by Skype; and, since the friend was a lawyer, he was able and willing also to exercise free of charge the degree of control required by the tribunal. But the appellant could not afford to purchase the equipment for use at the hearing centre; and so it was BID which bought a laptop computer (240), a projector (252) and a 3G mobile telephone contract (33.97 per month), for use there at the hearing of his appeal. The researches of the solicitors for Mr Kiarie indicate that it would cost the equivalent of 240 per hour to rent a video conference room for his use in Nairobi and that therefore a rental for say seven hours, so as to enable counsel to conduct a pre hearing conference with him as well as to cover the probable length of the hearing, would cost 1,680. The researches of the solicitors for Mr Byndloss indicate that the hourly cost of renting a video conference room for his use in Kingston would be marginally less but they estimate that it would be necessary to rent it for 11 hours in order to cover the probably lengthier hearing of his appeal. It is already clear however that the cost of hiring the necessary equipment for use at the distant end of any evidence given by video link or Skype is only part of the cost which an appellant must bear. He must also bear the cost of providing the equipment for use at the hearing centre and he may well have to pay for the attendance beside him of someone able and willing to exercise the degree of control required by the tribunal. Apart, however, from having to meet the overall costs of giving evidence in that way, an appellant has to confront formidable technical and logistical difficulties. Powerful evidence is given by the appellants solicitors and other legal specialists in the field to the effect that: it can be a slow and tortuous process to obtain the consent of the (a) foreign state for evidence to be given from within its jurisdiction; (b) it can be difficult to achieve compatibility between the system adopted at the distant end and the system installed at the hearing centre, with the result that a bridging service sometimes needs to be engaged and funded; it can be difficult to alight upon a time for the link to begin and end (c) which is both acceptable to the tribunal and practicable at the distant end in the light of the time difference; and (d) if, as is not uncommon, the link fails during the hearing and cannot then and there be restored, the tribunal can prove reluctant to grant an adjournment to another date. Apart from the difficulty surrounding his giving live evidence to the tribunal, an appellant deported in advance of the appeal will probably face insurmountable difficulties in obtaining the supporting professional evidence which, so this court is told, can prove crucial in achieving its success. In support of his claim to present no significant risk of re offending, an appellant is likely to wish to submit evidence from his probation officer; but, upon his deportation, his probation officer will have closed his file and will apparently regard himself as no longer obliged to write a report about him. An appellant may also wish to submit evidence from a consultant forensic psychiatrist about that level of risk. But the evidence in these proceedings of Dr Basu MRC Psych, Clinical Director at Broadmoor Hospital, is that he has never sought to assess the risk posed by a person visible to him only on screen and that any such assessment would have to be treated with considerable caution. In support of an appellants likely claim to have a close and active relationship with a child, partner or other family member in the UK, an appellant will not uncommonly adduce, as in these preliminary proceedings Mr Byndloss has already sought to do, a report by an independent social worker who, so he hopes, will speak of the quality, and in particular for the family the importance, of the relationship. But a report compiled in the absence of the social workers direct observation of the appellant and the family together is likely to be of negligible value. It was more than 30 years ago that, in the appellate committee which preceded the creation of this court, concern was first expressed about the value of an appeal which was required to be brought from abroad. In R (Khawaja) v Secretary of State for the Home Department [1984] AC 74 Lord Fraser of Tullybelton observed at pp 97 98: in spite of [a] decision that the illegal immigrant be removed from this country, it will still be open to him to appeal under section 16 of [the 1971 Act] to an adjudicator against the decision to remove him. The fact that he is not entitled to appeal so long as he is in this country section 16(2) puts him at a serious disadvantage, but I do not think it is proper to regard the right of appeal as worthless. At least the possibility remains that there may be cases, rare perhaps, where an appeal to the adjudicator might still succeed. Today, however, this court is invested with responsibility for deciding whether two foreign criminals who, by reference to article 8, each have arguable appeals against the deportation orders made against them and who have rights thereunder for their appeals to be effective, would suffer a breach of those rights if they were to be deported in advance of the hearing of the appeals. I conclude that, for their appeals to be effective, they would need at least to be afforded the opportunity to give live evidence. They would almost certainly not be able to do so in person. The question is: as a second best, would they be able to do so on screen? The evidence of the Home Secretary is that in such appeals applications to give evidence from abroad are very rare. Why? Is it because an appellant has no interest in giving oral evidence in support of his appeal? I think not. It is because the financial and logistical barriers to his giving evidence on screen are almost insurmountable. In this case the Court of Appeal has indorsed a practice in which, so it seems, the Home Secretary has, not always but routinely, exercised her power under section 94B to certify claims of foreign criminals under article 8. But she has done so in the absence of a Convention compliant system for the conduct of an appeal from abroad and, in particular, in the absence of any provision by the Ministry of Justice of such facilities at the hearing centre, and of some means by which an appellant could have access to such facilities abroad, as would together enable him to give live evidence to the tribunal and otherwise to participate in the hearing. Between 28 July 2014 and 31 December 2016 the Home Secretary issued 1,175 certificates pursuant to section 94B in relation to foreign criminals, all, therefore, with arguable appeals. Of those 1,175 persons, the vast majority were no doubt duly deported in advance of their appeals. But by 31 December 2016 only 72 of them had filed notice of appeal with the tribunal from abroad. It may well be that on 13 February 2017 a few of those appeals remained undetermined. The fact remains, however, that, as of that date, not one of the 72 appeals had succeeded. It remains only to re cast the reasoning expressed in this judgment within its proper context of a claim that deportation pursuant to the two certificates under section 94B would breach the procedural requirements of article 8. The appellants undoubtedly establish that the certificates represent a potential interference with their rights under article 8. Deportation pursuant to them would interfere with their rights to respect for their private or family lives established in the UK and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The burden then falls on the Home Secretary to establish that the interference is justified and, in particular, that it is proportionate: specifically, that deportation in advance of an appeal has a sufficiently important objective; that it is rationally connected to that objective; that nothing less intrusive than deportation at that stage could accomplish it; and that such deportation strikes a fair balance between the rights of the appellants and the interests of the community: see R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45, [2012] 1 AC 621, para 45. The alleged objectives behind the power to certify a claim under section 94B have been set out in section F above. I will not prolong this judgment by addressing whether the power is rationally connected to them and as to whether nothing less intrusive could accomplish them. I therefore turn straight to address the fair balance required by article 8 and I conclude for the reasons given above that, while the appellants have in fact established that the requisite balance is unfair, the proper analysis is that the Home Secretary has failed to establish that it is fair. I agree with Lord Wilson that these two appeals should be allowed, but my M: CONCLUSION So I would allow the appeals and quash the certificates. LORD CARNWATH: emphasis is rather different. The starting point is section 94B(2) of the 2002 Act, under which it is a precondition of certification that the Secretary of State considers that removal of P to the relevant country in advance of the hearing of the appeal would not be unlawful under section 6 of the Human Rights Act 1998 Given the important consequences of certification, I would read the section 6 precondition as implying a requirement for the Secretary of State to satisfy herself, on adequate information, that there will be no breach of section 6. In this case the alleged breaches relate to the appellants respective rights under article 8 of the Convention. If the section 6 precondition is satisfied, then (under subs (3)) the Secretary of State may certify, on grounds which include (in particular) that P would not, before the appeals process is exhausted, face a real risk of serious irreversible harm if removed to the (relevant) country The drafting is awkward. Although the power is discretionary, and the grounds are stated to include absence of risk of irreversible harm, there is no indication what other grounds there might be for exercise of the power, or indeed for declining to exercise it. Indeed, absence of such risk might be more readily understood as a pre condition to certification (under subs (2)) rather than as a positive ground for exercising the power. It is not clear why in this respect a distinction is drawn between the pre condition and the grounds. In any event, the policy of the Secretary of State at the relevant time, as stated in the then current guidance (dated 29 May 2015), and as confirmed by the evidence of Mr Kenneth Welsh (the Departmental witness), was that the power to certify should normally be exercised whenever the statutory criteria were satisfied: The Governments policy is that the deportation process should be as efficient and effective as possible. Case owners should therefore seek to apply section 94B certification in all applicable cases where doing so would not result in serious irreversible harm. (Guidance para 3.2) Mr Welsh tells us that applicable cases were intended to be confined to those which would satisfy the precondition of compliance with section 6 of the Human Rights Act 1998, although he accepts that the clarity of the guidance could be improved. It is unfortunate that, whether because of the awkward drafting of the section or lack of clarity in the guidance, the existence of the section 6 precondition was wholly overlooked at the time of the original decisions in both cases (made in October 2014). There was no express consideration whether removal pending any appeal would be consistent with the appellants rights under article 8. Nor had the appellants been given any notice of, or chance to comment on, the proposed certification. For those reasons, as the Court of Appeal correctly held, the decisions were legally flawed. They accordingly fell to be quashed, unless (in the case of Mr Byndloss) the error was remedied in the supplementary letter of 3 September 2015; or (in Mr Kiaries case, where there was no such supplementary letter) it was clear that the errors were immaterial, in the sense that proper consideration would have yielded the same result. The Court of Appeal so concluded in each case. In considering the reasoning of Richards LJ, it is necessary to distinguish as he did (para 39) between the substantive and the procedural aspects of rights afforded by article 8; or as Lord Wilson puts it (para 39) between harm to the prospective appellant himself, and harm to the prospects of his appeal. As to the former I see no reason to disagree with Richards LJs conclusion that the appellants substantive rights would not be disproportionately infringed by temporary removal pending a decision on their appeals, and that the Secretary of State was entitled so to find. On that aspect, I do not understand Lord Wilson ultimately to take a different view. His conclusions (para 78) focus on the procedural requirements of article 8. In fairness to Richards LJ, however, (and in respectful disagreement with Lord Wilson at para 35) I should add that, in the context of substantive rights, I would not criticise him for according weight to the public interest attached by Parliament to the removal of a foreign criminal, even in the interim period pending an appeal. Lord Wilson observes that the limited risk of reoffending in the period before appeal is not outweighed by the public interest in ensuring that any appeal is effective. However, that was not the issue. No one disputed that the appeal mechanism needed to be effective. On the other hand, the objectives of the new provision, indicated by the Ministerial statements quoted by Lord Wilson (para 31), were directed, not specifically to the risk of offending in the interim period, but rather to speeding up the process of deportation both as an end in itself, and for the purpose of reducing what was seen as abuse by building up further claims to a settled life. The emphasis given by Richards LJ to the public interest in deportation can be seen as a natural extension of this courts reasoning in Ali v Secretary of State for the Home Department [2016] UKSC 60, [2016] 1 WLR 4799 (see para 38) recognising the great weight attached to the public interest in the deportation of foreign offenders. That is now given statutory form in section 117C of the 2002 Act, introduced at the same time as section 94B by the Immigration Act 2014. I turn to the more difficult issue concerning the procedural aspects of article 8: whether (as Richards LJ put it para 40) the Secretary of State took the necessary steps to satisfy herself that the procedural guarantees of article 8 would be met by an out of country appeal before certifying under section 94B. He was right in my view to emphasise the duty of the Secretary of State in this respect. Under section 94B the responsibility for certification entrusted by Parliament to the Secretary of State carries with it the responsibility to satisfy herself (if necessary with the co operation of the Secretary of State for Justice, as the minister responsible for supporting the tribunal system) that the procedural mechanisms to ensure an effective appeal will (not may) be in place. Lord Wilson (para 50) has summarised the relevant Strasbourg jurisprudence. He refers in particular to the Grand Chamber decision in De Souza Ribeiro v France (2014) 59 EHRR 454, as establishing that, while suspension of removal is not a necessary requirement, the opportunity to challenge the removal decision must be effective, that is, at para 83 the effective possibility of challenging the deportation or refusal of residence order and of having the relevant issues examined with sufficient procedural safeguards and thoroughness by an appropriate domestic forum offering adequate guarantees of independence and impartiality. I note that the Chamber in IR v United Kingdom [2014] ECHR 340; [2014] 58 EHRR SE14 cited De Souza as illustrating the proposition that an effective remedy in this context is to be read as meaning a remedy that is as effective as can be having regard to the restricted scope for recourse inherent in the particular context (para 62). I agree with Richards LJ (para 64) that it is not enough that the out of country appeal may be less advantageous in some respects than an in country appeal; article 8 does not require access to the best possible procedure, but access to one which meets, as he puts it, the essential requirements of effectiveness and fairness. The relevant issues for this purpose will depend on the circumstances of each case. They will have to be considered within the framework explained by Lord Reed in Ali (paras 26, 38) (based on the so called Boultif v Switzerland (2001) 33 EHRR 50 criteria, as developed in later Strasbourg cases), and having regard to the need to show a very compelling case to outweigh the presumption in favour of deportation. It is not in dispute that judged by those criteria each of the appellants has at least an arguable case: for Mr Kiarie based on his relative youth, his dependence on his family in this country, and his lack of any significant connection with Kenya; for Mr Byndloss based principally on his ties with his various children and the need to safeguard their interests. I agree with Lord Wilson (para 7) that the issues in such cases, depending as they do primarily on evidence of the life, conduct and relationships of the appellants in this country, are quite different in kind from other more established forms of out of country appeal. As already noted, the need to consider this issue was overlooked at the time of the original decisions. By the time the appeals came before the Court of Appeal (23 September 2015) the issue had been given some consideration, albeit only very recently. The material available to the Secretary of State, and her consideration of this issue, are apparent from the witness statement of Mr Welsh (sworn on 14 September 2015), and in the case of Mr Byndloss, the supplementary letter sent (under Mr Welshs signature) a few days before. It is convenient to start with the latter. The letter, extending to 21 pages, contained a very detailed consideration of Mr Byndloss substantive case under article 8, but the procedural arguments were dealt with relatively shortly. The writer noted Mr Byndloss stated wish to participate in the hearing: by giving evidence of his remorse for his crimes and his reasons for committing them, and to show that he was a good father and was trying to maintain contact with his children; by listening to the Home Offices evidence and submissions; and by assisting his representatives with preparation for the hearing and reading. The response was that he would be able to submit a written statement of his own evidence, supported by evidence from the mothers of the children; and that he would be able to read the Home Offices statements and give instructions to his legal advisers by email. Further: It is open to you to apply to the Tribunal to give evidence by video link if you and your legal representatives consider that this is essential to the fair determination of the appeal. Alternatively, if the Tribunal considers that oral evidence from you on this point is essential to the fair determination of the appeal, it can order that you give evidence by video link. There appears to have been no equivalent letter in relation to Mr Kiaries procedural rights. However, Mr Welshs witness statement was addressed to both appeals. It was designed to provide evidence about the practice and procedure followed by the Secretary of State and the tribunals when dealing with out of country appeals. In respect of the latter he drew on statements said to have been obtained from resident judges of the FTT and UT on an informal basis, based on their vast experience of out of country appeals. Before the Court of Appeal it was accepted for the Secretary of State that such statements could not properly be relied on. But in any event both the statements, and Mr Welshs reliance on them, are open to the criticism that they did not adequately address the distinctive features of an article 8 appeal in a deportation case. On the other hand, Mr Welsh fairly noted the practical limitations of use of video link particularly in the First tier Tribunal, including the lack of facilities in some centres and competing demands from other priorities (such as bail hearings), the need for compatibility with overseas equipment, the need for the appellant to bear the costs, and the need to co ordinate timings with appeal hearings. As Richards LJ explained (para 56), in addition to evidence on this aspect for the appellants, the Court of Appeal received a joint note agreed by counsel providing an outline of out of country appellate procedures, including guidance from the Upper Tribunal on the use of video facilities. At the heart of the Court of Appeals reasoning, in line with the submissions of the Secretary of State, was the proposition that the tribunal, whose independence and impartiality were not in doubt, could be relied on to provide the necessary procedural safeguards to ensure a fair process. As Richards LJ said, at para 65: They will be alert to the fact that out of country appeals are a new departure in deportation cases, and they will be aware of the particular seriousness of deportation for an appellant and his family. All this can be taken into account in the conduct of an appeal. If particular procedures are needed in order to enable an appellant to present his case properly or for his credibility to be properly assessed, there is sufficient flexibility within the system to ensure that those procedures are put in place. That applies most obviously to the provision of facilities for video conferencing or other forms of two way electronic communication or, if truly necessary, the issue of a witness summons so as to put pressure on the Secretary of State to allow the appellants attendance to give oral evidence in person. He acknowledged the difficulties for any appellant, particularly when unrepresented, in preparing evidence for an appeal and presenting it to the tribunal. But he did not regard these as sufficient to amount to a denial of effective participation in the decision making process: In these days of electronic communications, an out of country appellant does not face serious obstacles to the preparation or submission of witness statements or the obtaining of relevant documents for the purposes of an appeal. He can instruct a lawyer in the UK if he has the funds to do so. If he does not have the funds to instruct a lawyer but the case is so complex that an appeal cannot properly be presented without the assistance of a lawyer, he will be entitled to legal aid under the exceptional funding provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework (para 66) In considering that reasoning, in my view, it is necessary to distinguish between two separate elements: first, the ability of the appellant from abroad to assemble evidence and prepare and present his case; secondly, his ability to give oral evidence if required. In doing so we have the advantage of the new evidence (in the form of a witness statement by Mr Makhlouf, Assistant Director of BID), submitted by Mr Fordham without objection from the Secretary of State, as to the practical problems for appellants of conducting effective appeals from abroad. On the first element, as Lord Wilson explains (para 60), it is at best uncertain what assistance will be available to an appellant without resources of his own when conducting his appeal from abroad. Richards LJ, at para 66, referred to the potential availability of exceptional legal aid funding under the provisions considered in R (Gudanaviciene) v Director of Legal Aid Casework. However, Mr Makhlouf refers to the difficulties in practice for those in the position of the appellants to obtain legal aid under these provisions. Without such assistance, or assistance from a body such as BID, it is difficult to see how an appellant from abroad can realistically prepare and present an effective appeal. Even if such legal assistance were available (as it appears to be in the present cases), there are likely to be major logistical problems in ensuring that documents are made available and instructions obtained in the run up and during the course of the hearing. With regard to the second element, there is a dispute between the parties as to the likely importance of such direct oral evidence from the appellant in person. Mr Drabble submits that in deportation appeals, as contrasted with entry clearance appeals, such evidence is likely to be of central importance. He relies on comments of the Upper Tribunal (Blake J and Judge Goldstein) in Secretary of State for the Home Department v Gheorghiu [2016] UKUT 24 (IAC) para 22(iv): in cases where the central issue is whether the offender has sufficiently been rehabilitated to diminish the risk to the public from his behaviour, the experience of immigration judges has been that hearing and seeing the offender give live evidence and the enhanced ability to assess the sincerity of that evidence is an important part of the fact finding process (see for example the observations of this Tribunal as to the benefits of having heard the offender in Masih (Pakistan) [2012] UKUT 46 (IAC) at para 18; see also Lord Bingham in Huang [2007] 2 AC 167 at para 15). By contrast Lord Keen for the Secretary of State, at para 90 of his case, submits that the issues raised in a deportation appeal brought by a foreign criminal are unlikely to require live evidence from the appellant: The nature and extent of the foreign criminals ties to the UK, including his length of residence and relationship with family members, is rarely in dispute. In those rare cases in which there is a dispute concerning, for example, the extent of a foreign criminals relationship with a partner and/or her children, it is usually the evidence of the partner that is of most significance in resolving that dispute. The critical and determinative question is whether the interests of the foreign criminal and/or any affected family members are sufficient to outweigh the public interest in deportation. That resolves to a matter of judgment for the Tribunal, and very rarely turns on issues of disputed fact. He points out correctly that Gheorghiu was concerned with different legislation (Immigration (EEA) Regulations 2006, regulation 21(5)(c)) under which the issue was whether the applicant represented a present and sufficiently serious threat (judgment para 9), thus raising directly the issue of his propensity to reoffend. There is no equivalent in the Ali criteria. Indeed, the Upper Tribunal in Gheorghiu had expressly distinguished the decision of the Court of Appeal in the present case. Lord Wilson attaches weight in particular to the need, as he sees it, for the appellant to demonstrate by direct evidence (subject to cross examination) his remorse and that he is a reformed character (paras 55(f), 61). For my part I have considerable doubts whether an effective appeal is likely to turn on such subjective issues. I see force in Lord Keens submission that in general application of the Ali criteria is likely to turn on the evaluation of factual matters which are either not in dispute, or capable of proof by evidence other than of the appellant in person. It is true that one of the Boultif criteria concerns the time elapsed since the commission of the offences and the applicants conduct in during that period. As the Grand Chamber explained in Maslov v Austria [2008] ECHR 546, [2009] INLR 47, para 90, a significant period of good conduct since the offence has a certain impact on the assessment of the risk which that person poses to society. However, there is no suggestion in the courts own consideration of that issue in Maslov (paras 91 95) that it was seen as depending on subjective evidence as to the state of mind of the appellant, as opposed to objective evidence as to his actual conduct in the relevant period. So far as I am aware, there is nothing in the Strasbourg case law to support a general view that oral evidence by the appellant is a necessary part of an effective appeal in the sense explained in De Souza Ribeiro. However, I would be cautious about reaching a firm view on that issue, given my very limited practical experience of dealing with such issues at first hand, and I do not think it is necessary to do so. The problem for the Secretary of State seems to me more fundamental. As Lord Keen I think would accept, it would be wrong in principle for the Secretary of State, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely. There may, as Mr Welsh acknowledges, be cases where the appellant fairly believes that direct oral evidence is necessary, and in any event he may reasonably wish to participate actively in the appeal by hearing and responding to the evidence as it emerges. Lord Keen relies on the appellants ability to apply to the tribunal to give evidence by video link, and on the tribunals power, if it considers the request well founded, to give effect to it by use of its extensive case management powers. That response only works if the Secretary of State is able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided. She cannot afford to wait until the case comes before the tribunal, since by then it may be too late. I see no reason in principle why use of modern video facilities should not provide an effective means of providing oral evidence and participation from abroad, so long as the necessary facilities and resources are available. (Things have moved a long way since the comments of Lord Fraser in R (Khawaja) v Secretary of State for the Home Department [1984] AC 74, to which Lord Wilson refers: para 75.) However, the evidence of Mr Welsh shows how far the material before the Secretary of State at the time of the relevant decisions fell short of demonstrating how that objective was to be achieved. The agreed note before the Court of Appeal (para 56) did not take things much further. That put the burden on the applicant to make all the necessary arrangements at his own cost, as was arguably appropriate for a party seeking an indulgence to depart from the norm. It did not address the problem of a party who, due to his forced removal the country, and with limited resources, is unable to present his evidence or participate in the hearing in any other way. The problems are underlined by the unchallenged evidence of BID described by Lord Wilson (paras 70 73). There is no evidence that any serious consideration had been given by the Secretary of State, at the time of certification or later, to how those problems were to be overcome in practice. Without such consideration I do not see how she could satisfy herself that the appeal would be effective. Conclusion It is unfortunate that these appeals have come to us by a less than ideal route. They started with decisions by the Secretary of State on a flawed basis and without regard to what has become the critical issue. They proceeded to the Court of Appeal without any detailed consideration of this issue by the Upper Tribunal. Finally, some of the most compelling evidence (now available from BID) has come in very late in the day, and without time for evaluation by the tribunal or the Court of Appeal. With hindsight, it might have been better if the Court of Appeal, having decided to grant permission, had remitted the substantive application to be dealt with by a specially convened panel of the Upper Tribunal. That would have enabled it to look in detail at what is required to ensure an effective appeal in cases such as this. We are therefore lacking assistance from the body which is best equipped, and will ultimately be responsible, for determining what a fair and effective procedure requires. Neither the Court of Appeal, nor still less this court, has equivalent expertise or experience. It may be that the best way to clarify these issues would be some form of a test case before the Upper Tribunal, at which the practicalities can be looked at in more detail, and guidance developed for the future. For the moment, we have to deal with the appeals as best we can on the available material. As I have said, having made the initial decisions on a flawed basis it was for the Secretary of State to satisfy us that the error was immaterial. Her problem is that there is no real evidence of consideration of the practical problems involved in cases such as these in preparing and presenting a case from abroad. I am far from saying that those problems cannot be overcome. However, the evidence before us does not show that the Secretary of State had the material necessary to satisfy herself, before certification, that the procedural rights of these appellants under article 8 would be protected. On that limited basis I would allow the appeal.

Mr Kiarie has Kenyan nationality. He came to the UK in 1997 with his family at the age of three. Mr Byndloss has Jamaican nationality. He has lived in the UK since the age of 21 and has a wife and children living in the UK. Following their separate convictions for serious drug related offences, in October 2014 the respondent made orders for their deportation to Kenya and Jamaica respectively and rejected the appellants claims that deportation would breach their right to respect for their private and family life under article 8 of the European Convention on Human Rights (ECHR). When making the deportation orders, the Home Secretary issued certificates under section 94B of the Nationality, Immigration and Asylum Act 2002. In certifying the appellants claims under section 94B, the respondent chose not to instead certify their human rights claims as clearly unfounded under section 94, indicating that their appeals were arguable. The effect of section 94B certification is that the appellants can bring their appeals against the respondents immigration decisions only after they have returned to Kenya and Jamaica. Until 30 November 2016, section 94B provided that where a human rights claim had been made by a person liable to deportation, the Secretary of State may certify the claim if she considers that the removal of the person pending the outcome of their appeal would not be unlawful under section 6 of the Human Rights Act 1998 and that the person would not face a real risk of serious irreversible harm if removed to that country. The court stresses that this appeal is not about the circumstances in which a person can successfully resist deportation by reference to his private or family life. It recently addressed that question in the case of Ali and ruled that he can do so only if the circumstances are very compelling. The question in this appeal is: where the law gives such a person a right to appeal to a tribunal against a deportation order, then, however difficult it may be for him to succeed, does the Home Secretary breach his human rights by deporting him before he can bring the appeal and without making proper provision for him to participate in the hearing of it? The Court of Appeals answer was no. The Supreme Court unanimously allows the appeal of Mr Kiarie and Mr Byndloss and quashes the certificates. Lord Wilson gives the lead judgment, with which Lady Hale, Lord Hodge and Lord Toulson agree. Lord Carnwath gives a concurring judgment. The fundamental objective of section 94B arises from the fact that the appellants are foreign criminals and, by virtue of section 32(4) of the UK Borders Act 2007, the deportation of a foreign criminal is conducive to the public good [32 33]. However, Parliament gave foreign criminals a right of appeal against a deportation order by enacting section 82(1) and (3A) of the Nationality, Immigration and Asylum Act 2002. The public interest in the removal of an appellant in advance of his appeal is outweighed by the public interest that a right of appeal should be effective [35]. In proceedings for judicial review of a section 94B certificate, the tribunal must decide for itself whether deportation in advance of appeal would breach the appellants ECHR rights. It must assess for itself the proportionality of deportation at that stage, albeit attaching considerable weight to public policy considerations relied on by the respondent [42 43]. The application of the Wednesbury criterion to the right to depart from the Home Offices findings of fact, even when heightened to anxious scrutiny, is inapt. Under section 6 of the Human Rights Act 1998, the court may require to be more proactive than application of that criterion would permit. The residual power of the court to determine facts, and to receive evidence including oral evidence, needs to be recognised [47]. Article 8 requires that an appeal against a deportation order by reference to a claim in respect of private and family life should be effective [51 52]. While the effect of an appellants immediate removal from the UK is likely to significantly weaken his arguable appeal [58], what is determinative of these appeals is whether the issue of a section 94B certificate obstructs an appellants ability to effectively present his appeal against the deportation order [59]. In an appeal brought from abroad, the appellants ability to present his case is likely to be obstructed in a number of ways. Even if he is able to secure legal representation, the appellant and his lawyer would face formidable difficulties in giving and receiving instructions prior to and during the hearing [60]. Further, the effectiveness of an arguable appeal is likely to turn on the ability of the appellant to give live evidence to assist the tribunal in its assessment of whether he is a reformed character and the quality of his relationships with others in the UK, in particular with any child, partner or other family member [61, 63]. An effective appeal requires that the appellants are afforded the opportunity to give live evidence [76]. While the giving of evidence on screen is not optimum, it might be enough to render the appeal effective for the purposes of article 8, provided that the opportunity to give evidence in that way is realistically available to them [67]. However, the financial and logistical barriers to their giving evidence on screen from abroad are almost insurmountable. The respondent has therefore certified article 8 claims of foreign criminals under section 94B in the absence of a ECHR compliant system for the conduct of an appeal from abroad. The Ministry of Justice has failed to make provision for facilities at the hearing centre, or for access to such facilities abroad, as would allow the appellants to give live evidence and participate in the hearing [76]. Deportation pursuant to the certificates would therefore interfere with the appellants rights to respect for their private and family life in the UK pursuant to article 8 and, in particular, with the aspect of their rights which requires that their challenge to a threatened breach of them should be effective. The respondent has failed to establish that deportation in advance of appeal strikes a fair balance between the rights of the appellants and the interests of the community and therefore the decisions to issue the certificates were unlawful [78]. In a concurring judgment, Lord Carnwath concludes that an effective appeal for the purposes of article 8 is unlikely to turn on subjective issues requiring the appellant to give direct evidence, such as whether the appellant is a reformed character [100]. However, it is wrong in principle for the respondent, as the opposing party to the appeal, to be allowed to dictate the conduct of the appellants case or the evidence on which he chooses to rely. The respondent must be able, at the time of certification, to satisfy herself that the necessary facilities can and will be provided [102].

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This appeal by the Secretary of State for the Home Department concerns five individuals, the respondents, who arrived in the United Kingdom illegally and claimed asylum. Inquiries revealed that they had travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum and so the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 (the Dublin III Regulation, Dublin III or the Regulation). Ultimately each such state agreed to take the relevant respondent back for that purpose. The respondents were all detained for a period of time pending their removal pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971. The Secretary of State had published her policy in relation to detention pending removal in Chapter 55 of her Enforcement Instructions and Guidance (23 October 2015) (the EIG). This appeal now gives rise to important questions concerning the requirements imposed on member states by the Dublin III Regulation, whether the policy in Chapter 55 of the EIG meets those requirements and, so far as it fails to do so, the consequences of that failure. The particular questions which must be decided are: i) whether the detention of each respondent was lawful given that article 28 of the Dublin III Regulation permits detention where there is a significant risk of absconding, risk of absconding being defined in article 2(n) as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond; and, if the detention was not lawful, ii) whether damages are payable either under domestic law for false imprisonment or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Federal Republic of Germany; R v Secretary of State for Transport; Ex p Factortame Ltd No 4 (Joined Cases C 46/93 and C 48/93) [1996] QB 404. The facts Ms Hoda Hemmati, the first respondent, is a national of Iran and arrived in the United Kingdom illegally by lorry. On 11 February 2015 she presented herself to the authorities and claimed asylum. A check revealed that she had already claimed asylum in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 17 April 2015 Bulgaria agreed to do so. On 8 June 2015 she was detained in order to effect her removal to Bulgaria and, according to the evidence of the Secretary of State, on the basis she posed a risk of absconding. Removal directions were set for 7 July 2015. These were cancelled when she gave notice that she had issued judicial review proceedings to challenge the decision to remove her. She contended that removal would give rise to a real risk of a violation of her rights under article 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (the ECHR). She was released on 17 July 2015. She was therefore detained from 8 June 2015 to 17 July 2015. Mr Fawad Khalili, the second respondent, is a national of Afghanistan. He arrived in the United Kingdom illegally by lorry. On 20 November 2014 he presented himself to the authorities and claimed asylum. He was initially released on temporary admission. On 6 January 2015 he attended a screening interview and made a formal in country claim for asylum. He was detained on the basis that his removal was imminent, that he had behaved deceptively and, according to the evidence of the Secretary of State, that he posed a risk of absconding. A check revealed that he too had already made an asylum claim in Bulgaria. The United Kingdom proceeded formally to request Bulgaria under the Dublin III procedure to take responsibility for the asylum claim and on 12 February 2015 Bulgaria agreed to do so. Removal directions were set for 23 February 2015. In the meantime, on 5 February 2015, the second respondent made submissions to the Secretary of State that his removal would breach his rights under article 3 of the ECHR and on 20 February 2015 he issued a claim for judicial review to prevent his scheduled removal. The removal directions were cancelled and on 9 March 2015 he was granted bail by the First tier Tribunal (the FTT). He claims that his detention became unlawful on 5 February 2015, the date he complained that his removal to Bulgaria would be incompatible with article 3 of the ECHR. The relevant period of his detention was therefore 5 February 2015 to 9 March 2015. Mr Jamal Abdulkadir, the third respondent, is a national of Iraq. On 18 August 2015 he arrived in the United Kingdom illegally by lorry. Upon arrival in Kent, he ran from the lorry but was apprehended and detained. The Secretary of State maintains that the evidence he produced of his identity was inadequate and that there was a risk he would abscond. A check revealed that he had made an asylum claim in Austria in July 2015. At this point he claimed asylum in the United Kingdom. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. On 28 September 2015 removal directions were set but later cancelled at Austrias request. Further removal directions were set for 23 October 2015. On 22 October 2015 the third respondent issued judicial review proceedings challenging the decision to remove him on the basis that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He made an application for bail which the FTT refused on 13 November on the basis that there was a risk he would abscond and that it was likely he would be removed in a short time. On 27 November 2015 he was given permission to apply for judicial review and on 8 December 2015, upon review of his detention, he was released. He was therefore detained from 18 August 2015 to 8 December 2015. Mr Jwytar Mohammed, the fourth respondent, is also a national of Iraq. On 8 September 2015 he arrived in the United Kingdom illegally by lorry. He ran off when the lorry doors were opened but was apprehended later that day. He claimed asylum and, according to the evidence of the Secretary of State, was detained on the basis he posed a risk of absconding. A check revealed that he had previously claimed asylum in Austria. The United Kingdom proceeded formally to request Austria under the Dublin III procedure to take responsibility for the asylum claim and on 15 September 2015 Austria agreed to do so. Removal directions were set for 12 October 2015 but on 2 October 2015 he began proceedings for judicial review claiming, among other things, that in Austria he would be exposed to a real risk of violation of his rights under article 3 of the ECHR. He was released from detention on 4 November 2015. He was therefore detained from 8 September 2015 to 4 November 2015. SS, the fifth respondent, is a national of Afghanistan. On 15 September 2015 he arrived in the United Kingdom illegally and by hiding in the back of a train. Upon arrival he claimed asylum and pretended to be a child. A check revealed he had already claimed asylum in Bulgaria, Hungary and Germany. He was detained on that same day on the basis that it was reasonably likely that he would be accepted by another member state under the Dublin III procedure. A month later a notice of detention review stated that it had been decided he should remain in detention because there was reason to believe he would not comply with any conditions of release. The United Kingdom proceeded formally to request Bulgaria, Hungary and Germany under the Dublin III procedure to take responsibility for the asylum claim and on 27 October 2015 Germany agreed to do so. Removal directions were set for 30 November 2015 but were cancelled when he began proceedings for judicial review. He was released from detention on 10 December 2015. He was therefore detained from 15 September 2015 to 10 December 2015. The proceedings The judicial review claims brought by the first and second respondents were listed for hearing together with claims brought by three other individuals. The first and second respondents challenged both the lawfulness of their removal and the lawfulness of their detention. The claims were heard by Garnham J who dealt first with their challenges to removal. He gave judgment on 18 April 2016 dismissing all of the claims ([2016] EWHC 857 (Admin)) and an appeal to the Court of Appeal was subsequently dismissed ([2017] EWCA Civ 1871). There has been no further appeal against that decision. Garnham J gave a further judgment on 15 June 2016 dealing with the claims for unlawful detention ([2016] EWHC 1394 (Admin); [2016] 1 WLR 4243). He allowed two of the claims but not those of the first and second respondents. The judicial review claims brought by the third and fourth respondents were listed for hearing together. Again, they both challenged the lawfulness of their removal and their detention. These claims were heard by Irwin J who dismissed them all for reasons given in his judgment of 28 June 2016 ([2016] EWHC 1504) (Admin)). The judicial review claim brought by the fifth respondent came on for hearing before Mr John Howell QC, sitting as a deputy High Court judge. The original grounds of claim focused on the assertion by the fifth respondent that he was a child and therefore could not be removed to Germany under the Dublin III scheme. But at the hearing he was permitted to amend his claim to introduce a further claim that he was unlawfully detained because his detention was contrary to articles 28(2) and 2(n) of the Dublin III Regulation. The deputy judge gave judgment on 26 May 2017 ([2017] EWHC 1295 (Admin); [2017] 1 WLR 3641). He found that that the fifth respondent was not a child when he was detained. However, he also found that the fifth respondent had been detained to secure his transfer to the responsible member state under the Dublin III scheme; that it had to be established that he posed a significant risk of absconding; and that his detention was unlawful because, even if he posed a significant risk of absconding, his detention was in conflict with articles 28(2) and 2(n). The Court of Appeal The first to fourth respondents in the first four claims and the Secretary of State in the fifth appealed to the Court of Appeal. The principal issues before the court concerned the meaning and effect of articles 28 and 2(n) of the Dublin III Regulation and, in particular, whether the application of the principles explained in R v Governor of Durham Prison, Ex p Hardial Singh [1984] 1 WLR 704 or the Secretary of States policy set out in Chapter 55 of the EIG satisfied the requirements of those articles; and, if not, whether damages were payable in respect of the respondents detention either under domestic law for false imprisonment or under European Union law pursuant to the Factortame principle. It is important to note that the Court of Appeal was asked to decide these issues on the agreed assumption that the only ground for detaining the respondents was that the Secretary of State wished to remove them using the Dublin III procedure. The position remains the same on this further appeal. The first and second respondents also raised as a separate issue whether their detention was unlawful because of a failure by the Secretary of State to comply with the Hardial Singh principles. The Court of Appeal, by a majority (Sir Terence Etherton MR and Peter Jackson LJ), allowed the appeals of the first to fourth respondents and dismissed the appeal of the Secretary of State in the case of the fifth respondent. Critical to the reasoning of the majority was the decision of the second chamber of the Court of Justice of the European Union (the CJEU) in Policie R, Krajsk editelstv policie steckho kraje, odbor cizineck policie v Al Chodor (Case C 528/15) [2017] 4 WLR 125. This decision post dated the decisions of Garnham J and Irwin J but predated that of Mr John Howell QC. The majority held that the touchstone applied by the CJEU in Al Chodor for assessing compliance with articles 28(2) and 2(n) of the Dublin III Regulation was whether the provisions relied upon for detention had the requisite legal basis and the safeguards of clarity, predictability, accessibility and protection against arbitrariness within a framework of certain predetermined limits. The majority also held that it was clear that neither the Hardial Singh principles nor the Secretary of States published policy in Chapter 55 of the EIG satisfied these requirements. It followed that the detention of all of the respondents was in breach of article 28(2). The majority of the Court of Appeal went on to hold that each of the respondents had established all of the necessary ingredients of the common law cause of action for wrongful imprisonment. They had all been detained and that detention was unlawful because it was effected pursuant to the policy in Chapter 55 of the EIG, and that was itself unlawful in so far as it failed to give effect to articles 28(2) and 2(n) of the Regulation. The respondents were therefore entitled to damages for false imprisonment. The Factortame principle had no relevance because the individual right of each person to liberty existed save in so far as it is legitimately cut down by law. The appeals did not concern infringement of rights which were to be found only in European Union law. Further, it was not necessary to consider the additional and discrete claims by the first and second respondents for false imprisonment based upon the alleged breach by the Secretary of State of the Hardial Singh principles. Sales LJ, dissenting, held that a policy statement such as that contained in Chapter 55 of the EIG was in principle capable of satisfying the requirements of articles 28(2) and 2(n) of the Dublin III Regulation, and that here it did satisfy those requirements. However, conscious that he was in the minority on this issue, he went on to consider whether, on the footing that he was wrong, the respondents were entitled to damages. He concluded that they were not. In his view, the claim turned on the alleged failure by the United Kingdom to adopt a particular form of law when implementing articles 28(2) and 2(n). In these circumstances the proper approach in considering whether the Secretary of State was liable for damages was to ask whether the relevant criteria for an award of damages in respect of a breach of European law had been satisfied and, in particular, whether the breach was sufficiently serious within the meaning of the decision of the CJEU in Factortame, that is to say whether the member state had manifestly and gravely disregarded the limits of its discretion. Here, any breach of articles 28(2) and 2(n) did not satisfy that sufficiently serious test. Sales LJ also addressed the separate claims by the first and second respondents for false imprisonment based upon a breach of the Hardial Singh principles. In his view there was nothing in them, and in this regard he agreed with the decision of Garnham J: the first and second respondents were detained for proper reasons; they were assessed as posing a risk of absconding and that assessment was rational and justified; and throughout the period of their detention, there remained a real prospect that they would be removed eventually. Issues of principle This further appeal therefore raises the following important issues of principle concerning the limits of the permission conferred by the Dublin III Regulation upon member states to detain an applicant for international protection in order to secure the transfer of that applicant to another member state in accordance with the transfer procedures laid down in the Regulation: i) Does the policy published by the Secretary of State in Chapter 55 of the EIG satisfy the requirements imposed by articles 28 and 2(n) of the Regulation for a measure setting out objective criteria defined by law for believing that an applicant for international protection who is subject to a transfer procedure may abscond? ii) If not, are damages payable to an applicant whose detention pursuant to article 28(2) was authorised by the Secretary of State pending such transfer: under domestic law for the tort of false imprisonment, or pursuant to European Union law under the Factortame a) b) principle? European Union law The European Union has for some time sought to establish an area of freedom, security and justice which is open to those who, forced by circumstances, legitimately seek its protection. To this end the Union has harmonised the procedures and substantive rules of refugee law and, as part of that harmonisation, established a body of law within what is known as the Common European Asylum System (the CEAS). A well functioning Dublin system is seen as essential to the CEAS in ensuring the rapid identification of the member state responsible for examining an application for international protection, and in this way guaranteeing effective access to the procedures for determining refugee status. The Dublin III Regulation replaced Council Regulation (EC) No 343/2003 of 18 February 2003 establishing the criteria and mechanisms for determining the member state responsible for examining an asylum application lodged in one of the member states by a third country national (the Dublin II Regulation). Dublin III lays down, in Chapter III, a hierarchy of criteria for identifying the member state responsible for deciding the claim. If the member state where an asylum claim has been lodged considers that another member state is responsible then it may ask the other member state to take charge of the applicant. If the other member state agrees to this request, the first member state will transfer the applicant there in accordance with the procedure laid down in the Regulation. The Dublin III Regulation permits, subject to strict safeguards, the detention of an applicant for international protection in order to ensure that the Dublin III procedure is implemented effectively. In this regard, recital 20 provides, so far as relevant: The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection. Detention should be for as short a period as possible and subject to the principles of necessity and proportionality. In particular, the detention of applicants must be in accordance with article 31 of the Geneva Convention. The procedures provided for under this Regulation in respect of a detained person should be applied as a matter of priority, within the shortest possible deadlines. As regards the general guarantees governing detention, as well as detention conditions, where appropriate, member states should apply the provisions of Directive 2013/33/EU also to persons detained on the basis of this Regulation. The terms of this recital are reflected in article 28 of the Regulation which authorises member states to detain applicants subject to various conditions. It provides: 1. Member states shall not hold a person in detention for the sole reason that he or she is subject to the procedure established by this Regulation. 2. When there is a significant risk of absconding, member states may detain the person concerned in order to secure transfer procedures in accordance with this Regulation, on the basis of an individual assessment and only in so far as detention is proportional and other less coercive alternative measures cannot be applied effectively. 3. Detention shall be for as short a period as possible and shall be for no longer than the time reasonably necessary to fulfil the required administrative procedures with due diligence until the transfer under this Regulation is carried out. Where a person is detained pursuant to this article, the period for submitting a take charge or take back request shall not exceed one month from the lodging of the application. The member state carrying out the procedure in accordance with this Regulation shall ask for an urgent reply in such cases. Such reply shall be given within two weeks of receipt of the request. Failure to reply within the two week period shall be tantamount to accepting the request and shall entail the obligation to take charge or take back the person, including the obligation to provide for proper arrangements for arrival. Where a person is detained pursuant to this article, the transfer of that person from the requesting member state to the member state responsible shall be carried out as soon as practically possible, and at the latest within six weeks of the implicit or explicit acceptance of the request by another member state to take charge or to take back the person concerned or of the moment when the appeal or review no longer has a suspensive effect in accordance with article 27(3). When the requesting member state fails to comply with the deadlines for submitting a take charge or take back request or where the transfer does not take place within the period of six weeks referred to in the third subparagraph, the person shall no longer be detained. Articles 21, 23, 24 and 29 shall continue to apply accordingly. 4. As regards the detention conditions and the guarantees applicable to persons detained, in order to secure the transfer procedures to the member state responsible, articles 9, 10 and 11 of Directive 2013/33/EU shall apply. Article 28(2) therefore permits, subject to the other provisions of the article, the detention of applicants in order to secure their transfer in accordance with the Regulation, but only where there is a significant risk of absconding; that risk has been identified on the basis of an individual assessment; and the detention is proportional and other less coercive measures cannot be applied effectively. Article 2(n) defines risk of absconding as: the existence of reasons in an individual case, which are based on objective criteria defined by law, to believe that an applicant or a third country national or a stateless person who is subject to a transfer procedure may abscond. I must also refer to another of the group of instruments forming the CEAS body of law: Parliament and Council Directive 2013/33/EU of 26 June 2013 (the recast Reception Directive), referred to in recital 20 of the Dublin III Regulation. The United Kingdom has not opted in to this Directive and remains governed by its predecessor, Council Directive 2003/9/EC of 27 January 2003. Nevertheless, its terms do shed some light on the meaning of the relevant terms of the Dublin III Regulation. Recital 15 of the recast Reception Directive provides: The detention of applicants should be applied in accordance with the underlying principle that a person should not be held in detention for the sole reason that he or she is seeking international protection, particularly in accordance with the international legal obligations of the member states and with article 31 of the Geneva Convention. Applicants may be detained only under very clearly defined exceptional circumstances laid down in this Directive and subject to the principle of necessity and proportionality with regard to both to [sic] the manner and the purpose of such detention. Where an applicant is held in detention he or she should have effective access to the necessary procedural guarantees, such as judicial remedy before a national judicial authority. Article 8 of the recast Reception Directive provides, so far as relevant: 1. Member states shall not hold a person in detention for the sole reason that he or she is an applicant in accordance with Directive 2013/32/EU of the European Parliament and of the Council of 26 June 2013 on common procedures for granting and withdrawing international protection. 2. When it proves necessary and on the basis of an individual assessment of each case, member states may detain an applicant, if other less coercive alternative measures cannot be applied effectively. 3. An applicant may be detained only: in accordance with article 28 of [the Dublin III (f) Regulation]. The grounds for detention shall be laid down in national law. Al Chodor The meaning of these provisions of the Dublin III Regulation was considered by the CJEU in Al Chodor on a reference from the Nejvy sprvn soud, the Supreme Administrative Court of the Czech Republic. This decision is of great importance to the issues arising on this appeal and so I must deal with it in some detail. The case concerned a family of Iraqi nationals, the Al Chodors, who were stopped by police in the Czech Republic and interviewed. They claimed to be of Kurdish origin and it emerged that they had travelled to the Czech Republic via Turkey, Greece and then Hungary, where they had claimed asylum. The Foreigners Police Section of the Czech police force decided to place the family in detention pending their transfer to Hungary under the Dublin system. They took the view, for perfectly sensible reasons, that there was a serious risk that, unless detained, the Al Chodors would abscond before their transfer. The relevant Czech legislation conferred on the police force the power to detain a foreign national who had entered the Czech Republic illegally for the period of time necessary to secure the transfer of that person in accordance with, among other measures, the Dublin III Regulation. Upon a challenge by the Al Chodors, the Czech Regional Court annulled the decision to detain on the basis that the objective criteria for assessing the risk of absconding were not defined by Czech legislation as required by article 2(n) of the Regulation. The police force then brought an appeal on a point of law before the Supreme Administrative Court, which made the reference to the CJEU. The referring court was unsure whether the relevant Czech legislation, read together with articles 28(2) and 2(n) of the Dublin III Regulation, provided a sufficient legal basis for detention given that it did not lay down any objective criteria for assessing the risk of absconding. The court was also unsure whether the recognition of such criteria in case law which confirmed a consistent administrative practice of the police could meet the requirement of criteria defined by law within the meaning of article 2(n). It was pointed out by the referring court that the various language versions of article 2(n) diverged and that while the French and German versions required a definition, laid down in legislation, of the objective criteria for the purposes of absconding, other versions required a definition of those criteria by law in the general sense. As a result, the meaning of the term defined by law did not follow clearly from the wording of the provision. The referring court therefore asked, in substance, whether articles 2(n) and 28(2) of the Dublin III Regulation require member states to establish, in a national law, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond, and whether the absence of those criteria in a national law leads to the inapplicability of article 28(2). The Czech and United Kingdom Governments argued that, according to the case law of the European Court of Human Rights (the ECtHR), the concept of law as referred to in the ECHR was not limited to legislation but also included other sources of law provided they possessed the qualities of precision, foreseeability and accountability. They contended that the Czech case law and relevant administrative practice possessed those qualities in this case. The Greek Government and the Commission disagreed. Advocate General Saugmandsgaard e delivered his Opinion on 10 November 2016 EU:C:2016:865; [2017] 3 CMLR 24. He considered that the concept of law as referred to in article 2(n) of Dublin III, read in context and in light of its purpose, had a meaning which was different from that of the concept of law in the ECHR; that the provisions of the ECHR established a minimum level of protection and did not exclude the possibility that European Union law might provide more extensive protection; that the European Union legislature had indeed chosen to provide more extensive protection than that arising from article 5(1) of the ECHR; and that the criteria had to be laid down in legislation (Opinion, paras 42 45). He then proceeded to explain his reasons for these views. The Advocate General began with his reasons for believing that the Dublin III Regulation and the recast Reception Directive were intended to extend the protection afforded to applicants (Opinion, paras 46 58). He pointed out that before these instruments there was only minimal regulation of applicants detention. By contrast and as stated in recital 15 of the recast Reception Directive, the European Union legislature intended that detention of such persons under the new regime should be limited to exceptional circumstances. He also explained that the freedom of member states to detain applicants was already subject to the restrictions imposed by article 5(1)(f) of the ECHR and that the compliance of a detention measure with this provision was not conditional on there being a risk of absconding or the absence of other less restrictive measures enabling the removal of the person concerned. In his view, in adopting the Dublin III Regulation and the recast Reception Directive, the legislature intended to provide more extensive protection than that arising from article 5(1)(f). His reasons were twofold: first, article 28(2) of Dublin III permitted detention only where there was a significant risk of absconding; and secondly, article 28(2) of Dublin III and article 8(2) of the recast Reception Directive provided that detention was a measure of last resort and might be taken only in the absence of less coercive alternative measures. Two objectives of the requirement that the criteria for assessing the risk of absconding must be defined by law were identified by the Advocate General (Opinion, paras 59 70). The first was to ensure that the criteria offered sufficient guarantees of legal certainty, as that concept is understood in European Union law (Opinion, para 62). The second was to ensure that the discretion enjoyed by the individual authorities responsible for applying the criteria was exercised within a framework of certain pre determined markers (Opinion, para 63). In the Advocate Generals view, the achievement of each of these objectives was dependent on the objective criteria for the assessment of the risk of an applicant absconding being defined in a legislative text. Legal certainty demanded that individuals should be able to ascertain the scope of their rights and obligations and foresee the consequences of their actions. This requirement had not been satisfied in the instant case because the Czech case law was fragmentary, and the relevant administrative practice could be altered at will and had not been publicised (Opinion, paras 72 80). As for the objective of circumscribing the discretion of the administrative and judicial authorities, the adoption of legislation, in addition to providing advantages in terms of legal certainty, offered additional assurances in terms of external control of the discretion of the administrative and judicial authorities responsible for assessing the risk of absconding and, where appropriate, ordering detention (Opinion, para 81). Interference with liberty should be limited to exceptional circumstances; the discretion of the authorities should be circumscribed in such a way as to guard applicants against arbitrary deprivations of liberty; and, from this perspective, it was important that the criteria and their application should be determined by institutionally separate authorities (Opinion, para 82). The twofold requirement inherent in article 2(n), for an individual assessment and for the assessment to be based upon pre defined, objective criteria, required the administrative and judicial authorities to take the circumstances of each case into consideration; and further, it ensured that the discretion of the individual authority was channelled by means of general, abstract criteria that have been determined in advance by a third authority (Opinion, para 83). The CJEU gave judgment on 15 March 2017 [2017] 4 WLR 125. It dealt first with a submission that the Dublin III Regulation was directly applicable in member states and did not require transposition into national law. Thus, it was argued, article 2(n) did not require national legislatures to implement the objective criteria in national law. The court rejected this submission, observing, at para 28, that article 2(n) required that objective criteria defining the existence of a risk of absconding be defined by law. Since these criteria had been established neither by Dublin III nor in any other European Union legal act, the elaboration of those criteria was a matter for national law. The CJEU turned next to the question whether law in article 2(n) included settled case law which confirmed a consistent administrative practice. It explained, at paras 30 to 32, that a textual analysis did not provide an answer and that the provision had to be interpreted by reference to the purpose and the general scheme of the rules of which it formed a part. Here, the court continued, at paras 34 and 35, it was relevant that the Regulation was intended to make improvements to the effectiveness of the Dublin system but also to the protection afforded to applicants. Indeed, the high level of protection now afforded to applicants was apparent from the terms of articles 28 and 2(n), the requirement in article 2(n) that a finding of a risk of absconding must be based upon objective criteria defined by law and applied on a case by case basis, and the fact that its predecessor, the Dublin II Regulation, did not contain any provision relating to detention. The CJEU also thought it relevant that, by authorising the detention of applicants in order to secure their effective transfer under the Dublin III regime, the Regulation was authorising a limitation on the fundamental right to liberty enshrined in article 6 of the Charter of Fundamental Rights of the European Union (the Charter), and account also had to be taken of article 5 of the ECHR as providing the minimum threshold of protection. The court reasoned that any law authorising the deprivation of liberty must therefore be sufficiently accessible, precise and foreseeable in its application to avoid all risk of arbitrariness (para 38); that there must be no element of bad faith or deception on the part of the authorities (para 39); and that the detention of applicants, constituting, as it does, a serious interference with their liberty, is subject to strict safeguards, namely the presence of a legal basis, clarity, predictability, accessibility and protection against arbitrariness (para 40). There followed an analysis by the CJEU of the safeguard of legal basis and the type of provision needed to satisfy the other safeguards of clarity, predictability, accessibility and protection against arbitrariness. Here the courts reasoning is of particular importance and so I set it out in full: 41. With regard to the first of those safeguards, it must be recalled that the limitation on the exercise of the right to liberty is based, in the present case, on article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, which is a legislative act of the European Union. The latter provision refers, in turn, to national law for the definition of the objective criteria indicating the presence of a risk of absconding. In that context, the question arises as to what type of provision addresses the other safeguards, namely those of clarity, predictability, accessibility and protection against arbitrariness. In that regard, as was noted by the Advocate General in 42. point 63 of his Opinion EU:C:2016:865, it is important that the individual discretion enjoyed by the authorities concerned pursuant to article 28(2) of the Dublin III Regulation, read in conjunction with article 2(n) thereof, in relation to the existence of a risk of absconding, should be exercised within a framework of certain predetermined limits. Accordingly, it is essential that the criteria which define the existence of such a risk, which constitute the basis for detention, are defined clearly by an act which is binding and foreseeable in its application. 43. Taking account of the purpose of the provisions concerned, and in the light of the high level of protection which follows from their context, only a provision of general application could meet the requirements of clarity, predictability, accessibility and, in particular, protection against arbitrariness. 44. The adoption of rules of general application provides the necessary guarantees in so far as such wording sets out the limits of the flexibility of those authorities in the assessment of the circumstances of each specific case in a manner that is binding and known in advance. Furthermore, as the Advocate General noted in points 81 and 82 of his Opinion EU:C:2016:865, criteria established by a binding provision are best placed for the external direction of the discretion of those authorities for the purposes of protecting applicants against arbitrary deprivations of liberty. It follows that article 2(n) and article 28(2) of the Dublin 45. III Regulation, read in conjunction, must be interpreted as requiring that the objective criteria underlying the reasons for believing that an applicant may abscond must be established in a binding provision of general application. In any event, settled case law confirming a consistent administrative practice on the part of the Foreigners Police Section, such as in the main proceedings in the present case, cannot suffice. 46. In the absence of those criteria in such a provision, as in the main proceedings in the present case, the detention must be declared unlawful, which leads to the inapplicability of article 28(2) of the Dublin III Regulation. Accordingly, the CJEU ruled as follows: Article 2(n) and article 28(2) of Parliament and Council Regulation (EU) No 604/2013 of 26 June 2013 establishing the criteria and mechanisms for determining the member state responsible for examining an application for international protection lodged in one of the member states by a third country national or a stateless person, read in conjunction, must be interpreted as requiring member states to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. The absence of such a provision leads to the inapplicability of article 28(2) of that regulation. It is striking that, although the CJEU plainly adopted aspects of the reasoning of the Advocate General, it did not in terms endorse his conclusion that the criteria for assessing the risk of absconding must be embodied in legislation. I must return to this decision in addressing the issues arising on this appeal but first I must say something about our domestic law. Domestic law Paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (the 1971 Act) confers powers on immigration officers to detain an individual who is held within the immigration system pending a decision whether to give directions for his or her removal, and pending removal pursuant to any such directions. Similar powers are conferred on the Secretary of State by section 62(1) and section 62(2)(c) and (d) of the Nationality, Immigration and Asylum Act 2002. Paragraph 1(3) of Schedule 2 to the 1971 Act provides that, in exercising their functions under the 1971 Act, immigration officers must act in accordance with such instructions as may be given to them by the Secretary of State. It is rightly accepted by the Secretary of State that there are limits to these powers to detain. First, they are subject to the Hardial Singh principles. These are well known and may be summarised as follows: (i) the Secretary of State must intend to deport the person and can only use the power to detain for that purpose; (ii) the person may only be detained for a period that is reasonable in all the circumstances; (iii) if, before the expiry of the relevant period, it becomes apparent that the Secretary of State will not be able to effect deportation within a reasonable period, he should not seek to exercise the power of detention; and (iv) the Secretary of State should act with reasonable diligence and expedition to effect the removal: see R (I) v Secretary of State for the Home Department [2002] EWCA Civ 888; [2003] INLR 196; affirmed as common ground in R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, paras 22 and 171. These principles reflect the basic public law duties to act consistently with the purpose of the legislation and reasonably in the Wednesbury sense: Associated Provincial Picture Houses Ltd v Wednesbury Corpn [1948] 1 KB 223. But, as Lord Dyson observed in Lumba at para 30, they are not exhaustive. Were it otherwise, there would be no room for a public law duty of adherence to a published policy, to which I will come in a moment. We have also been referred by counsel for the Secretary of State to the decision of this court in R (Nouazli) v Secretary of State for the Home Department [2016] UKSC 16; [2016] 1 WLR 1565. There this court accepted (at para 75) that the primary responsibility to comply with the Hardial Singh principles lies with the Secretary of State but that the courts provide supervision of their application and that challenges are brought to secure release and not just for damages after the event. The Secretary of States policy in relation to detention to effect removal was set out in Chapter 55 of the EIG. Paragraph 55.1.1 states: The power to detain must be retained in the interests of maintaining effective immigration control. However, there is a presumption in favour of immigration bail and, wherever possible, alternatives to detention are used (see 55.20 and chapter 57). Detention is most usually appropriate: to effect removal; initially to establish a person's identity or basis of claim; or where there is reason to believe that the person will fail to comply with any conditions attached to a grant of immigration bail. To be lawful, detention must not only be based on one of the statutory powers and accord with the limitations implied by domestic and Strasbourg case law but must also accord with stated policy. Paragraph 55.1.3 provides: Detention must be used sparingly, and for the shortest period necessary. Paragraph 55.1.4 addresses the implied limitations on the statutory powers to detain and provides: In order to be lawful, immigration detention must be for one of the statutory purposes for which the power is given and must accord with the limitations implied by domestic and ECHR case law. Paragraph 55.1.4.1 then sets out what are, in substance, the Hardial Singh principles: To comply with article 5 [ECHR] and domestic case law, the following should be borne in mind: a) The relevant power to detain must only be used for the specific purpose for which it is authorised. This means that a person may only be detained under immigration powers for the purpose of preventing his unauthorised entry or with a view to his removal (not necessarily deportation). Detention for other purposes, where detention is not for the purposes of preventing unauthorised entry or effecting removal of the individual concerned, is not compatible with article 5 and would be unlawful in domestic law (unless one of the other circumstances in article 5(1)(a) to (e) applies); b) The detention may only continue for a period that is reasonable in all the circumstances for the specific purpose; c) If before the expiry of the reasonable period it becomes apparent that the purpose of the power, for example, removal, cannot be effected within that reasonable period, the power to detain should not be exercised; and d) The detaining authority (be it the immigration officer or the Secretary of State), should act with reasonable diligence and expedition to effect removal (or whatever the purpose of the power in question is). Paragraph 55.3 is also concerned with decisions to detain: Decision to detain (excluding fast track and criminal casework cases) 1. There is a presumption in favour of temporary admission or temporary release there must be strong grounds for believing that a person will not comply with conditions of temporary admission or temporary release for detention to be justified. 2. All reasonable alternatives to detention must be considered before detention is authorised. 3. Each case must be considered on its individual merits, including consideration of the duty to have regard to the need to safeguard and promote the welfare of children involved. Of particular significance is paragraph 55.3.1 which provides: Factors influencing a decision to detain All relevant factors must be taken into account when considering the need for initial or continued detention, including: What is the likelihood of the person being removed and, if so, after what timescale? Is there any evidence of previous absconding? Is there any evidence of a previous failure to comply with conditions of temporary release or bail? Has the subject taken part in a determined attempt to breach the immigration laws? (For example, entry in breach of a deportation order, attempted or actual clandestine entry). Is there a previous history of complying with the requirements of immigration control? (For example, by applying for a visa or further leave). What are the persons ties with the UK? Are there close relatives (including dependants) here? Does anyone rely on the person for support? If the dependant is a child or vulnerable adult, do they depend heavily on public welfare services for their daily care needs in lieu of support from the detainee? Does the person have a settled address/employment? What are the individuals expectations about the outcome of the case? Are there factors such as an outstanding appeal, an application for judicial review or representations which might afford more incentive to keep in touch than if such factors were not present? (See also 55.14). Is there a risk of offending or harm to the public (this requires consideration of the likelihood of harm and the seriousness of the harm if the person does offend)? Does the subject have a history of torture? Does the subject have a history of physical or mental ill health? Is the subject under 18? (See also sections 55.3.2 Further guidance on deciding to detain in criminal casework cases, 55.6 detention forms, 55.7 detention procedures, 55.9 special cases and 55.10 persons considered unsuitable for detention). Once detention has been authorised, it must be kept under close review to ensure that it continues to be justified. A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute and so that the individual can make appropriate representations in relation to that exercise in relation to him. In Lumba, Lord Dyson explained its importance in these terms at para 34: The rule of law calls for a transparent statement by the executive of the circumstances in which the broad statutory criteria will be exercised. Just as arrest and surveillance powers need to be transparently identified through codes of practice and immigration powers need to be transparently identified through the immigration rules, so too the immigration detention powers need to be transparently identified through formulated policy statements. It is also submitted on behalf of the Secretary of State, and I accept, that the executive must follow this stated policy unless there are good grounds for not doing so. Further, and as Lord Dyson explained in Lumba, at para 66, a purported lawful authority to detain may be impugned either because the defendant has acted in excess of jurisdiction or because the jurisdiction has been wrongly exercised. Both species of error render an executive act ultra vires, unlawful and a nullity. There is in this context no difference between a detention which is unlawful because there was no statutory power to detain and a detention which is unlawful because the decision to detain, although authorised by the statute, was made in breach of a rule of public law. The same point emerges from the decision of this court in R (Kambadzi) v Secretary of State for the Home Department [2011] UKSC 23; [2011] 1 WLR 1299. As Lord Hope of Craighead said at para 42, the published policy in that case narrowed the power of the executive to detain by requiring that any detention be reviewed regularly, and so it was an abuse of the power for any person to be detained if that detention was not reviewed at regular intervals. Lord Hope continued, at paras 51 and 52, that the policy was designed to give practical effect to the Hardial Singh principles and to meet the requirement that, to be lawful, the measures had to be transparent and not arbitrary; that the policy contained a set of instructions with which officials were expected to comply; that the policy and the principles went hand in hand; and that the discretion to continue detention had to be exercised in accordance with the principles but also in accordance with the policy. Does Chapter 55 of the EIG satisfy articles 28(2) and 2(n)? To summarise the position under European Union law, a member state may not hold in detention a person who is subject to the Dublin III procedure unless there are reasons in that individual case, based on objective criteria defined by law and an individual assessment, to believe that person may abscond. In addition, detention must be proportional, is justified only where other less coercive alternative methods cannot be applied effectively and must be for as short a period as possible. Further and as interpreted by the CJEU in Al Chodor and consistently with the ECHR and the Charter, articles 28(2) and 2(n) of the Dublin III Regulation demand that the detention of applicants, constituting, as such detention does, a serious interference with their right to liberty, is subject to compliance with the strict safeguards of legal basis, clarity, predictability, accessibility and protection against arbitrariness (Al Chodor, para 40). The first of these safeguards requires national law to define objective criteria indicating the presence of a risk of absconding (Al Chodor, para 41). The others demand that the assessment is carried out within a framework of certain predetermined limits and that the objective criteria are defined clearly by an act which is binding and foreseeable in its application (Al Chodor, para 42) and are established in a binding provision of general application (Al Chodor, para 45). The adoption of such a provision of general application provides the necessary safeguards in so far as its wording sets out the limits of the flexibility of [the] authorities in the assessment of the circumstances of each specific case in a manner which is binding and known in advance (Al Chodor, para 44). The CJEU accordingly ruled that member states are required to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a transfer procedure may abscond. These requirements are of great importance. As we have seen, the Dublin III Regulation was intended to improve not only the effectiveness of the Dublin system but also to confer a high level of protection upon those subject to Dublin III transfers and to impose significant limitations on the powers of member states to detain them. The Regulation was also intended to provide greater guarantees in relation to detention than its predecessor, the Dublin II Regulation. The Secretary of State accepts that, within the taxonomy of English law, Chapter 55 of the EIG cannot be described as legislation but contends that it nevertheless includes rules and that decision makers have legal obligations, imposed by settled case law, to comply with them. It is submitted that the policy contained in Chapter 55 constitutes a clear statement by the executive of the circumstances in which the statutory criteria will be exercised; that they are objective and publicly accessible; and that their meaning will, if necessary, be determined by the court. It is also argued that Chapter 55 and domestic case law are integral parts of the law that governs and limits the power to detain and that together they define how the power to detain must be exercised and set out the objective criteria which decision makers must apply when exercising that power. Consequently, the submission continues, the combination of Chapter 55 and domestic case law ensures that any decision to detain is exercised within a framework of certain predetermined limits and according to criteria established by binding provisions of general application which meet the requirements of clarity, predictability, accessibility and protection against arbitrariness explained by the CJEU in Al Chodor. These submissions are all directed to the issues set out in para 18(i) above. The majority of the Court of Appeal addressed those issues in two stages. They considered first, whether the contents of Chapter 55 of the EIG met the requirement that the criteria for the assessment of the risk of absconding must be clear, predictable and accessible, and whether they constituted a framework of certain predetermined limits; and secondly whether Chapter 55, though not legislation and even though capable of being changed at any time by the Secretary of State without being subject to parliamentary scrutiny or consultation, provided the necessary predictability and amounted to a binding provision of general application as referred to by the CJEU in Al Chodor and constituted a defining law as required by article 2(n). I propose to adopt the same course. Does Chapter 55 of the EIG constitute a framework of certain predetermined limits? As we have seen, Chapter 55 of the EIG contains the Secretary of States policy in relation to detention pending removal. However, it is not a policy which is specifically directed to the detention of persons subject to a Dublin procedure. Indeed, as the majority in the Court of Appeal observed, it contains no reference to Dublin III at all. In these circumstances it comes as no surprise that it makes no reference to the requirement that a person is not to be detained for the sole reason that he or she is subject to a Dublin procedure; nor does it say that the only permissible basis for detaining such a person is that there is a significant risk of absconding. Further, there is no direction that detention must be proportional. I accept that paragraph 55.1.1 of Chapter 55 states that, in considering the power to detain, there is a presumption in favour of immigration bail and that, where possible, alternatives to detention should be used. It also states that detention is most usually appropriate to effect removal, initially to establish a persons identity or basis of claim or where there is reason to believe that a person will fail to comply with any conditions attached to the grant of immigration bail. So too, paragraph 55.1.3 makes clear that detention must be used sparingly and for the shortest necessary period; and paragraph 55.1.4 says that detention must be for one of the statutory purposes for which the power is given and must comply with the limitations imposed by domestic and ECHR case law. But all of this amounts to no more than general guidance as to how the power to detain is to be exercised and does not constitute a set of objective criteria against which the risk of absconding is to be assessed. Nor does it set out the limits of the flexibility of the authorities in the assessment of the particular circumstances of each case in a manner which is binding and known in advance. Paragraph 55.1.4.1 of Chapter 55 sets out the Hardial Singh principles but, as the majority of the Court of Appeal explained at paras 167 to 169, by the end of the hearing before them it appeared not to be in dispute that these principles were insufficient to satisfy the requirements of articles 28(2) and 2(n). Nevertheless, the majority in the Court of Appeal went on to explain why that was in any event their view, and it is a view which I share. In short, the Hardial Singh principles require the power to detain to be exercised reasonably and for the prescribed purpose of facilitating deportation: see, for example, Lumba, para 30, per Lord Dyson. But they do not constitute objective criteria on the basis of which an assessment may be made as to the likelihood that a person who is subject to a transfer procedure may abscond. The Secretary of State places particular reliance on paragraphs 55.3 and 55.3.1 of the EIG. Paragraph 55.3 does no more than set out further general guidance to the effect that, for detention to be justified, there must be strong grounds for believing a person will not comply with conditions of temporary admission or temporary release; that all reasonable alternatives to detention have been assessed; and that each case has been considered on its merits, with due regard to the need to safeguard and promote the welfare of any children involved. The Secretary of State therefore focuses on the criteria set out in paragraph 55.3.1 and contends these are objective and publicly accessible and that their meaning will, if necessary, be determined by the court. It is also argued that they have formed the basis of detention decisions for many years and are well known and well understood by asylum seekers and the courts. So too, the argument continues, binding guidance as to the application of these criteria is set out in case law, and the courts have ensured that the decision making process is transparent. The Secretary of State accepts that this list relates not just to Dublin III cases but also to all other cases in which it may be appropriate to consider detention for immigration purposes but contends this is not incompatible with article 2(n). It is submitted that this article does not say that the objective criteria have to be set out in a separate stand alone document focused exclusively on article 28, nor that there has to be an express reference to that provision. Further, an individual who is subject to the Dublin III procedure can readily identify which of the criteria in the list are relevant to any assessment of whether he poses a risk of absconding. I do not find these submissions persuasive. Paragraph 55.3.1 sets out 11 factors which may be relevant in considering the need for initial or continued detention. It does not purport to be a list of criteria for assessing whether a person in a Dublin III procedure may abscond. Further, it is not an exhaustive list for, as its opening words make clear, all relevant factors are to be taken into account. As for the list itself, only one factor, the second, refers in terms to absconding. Some of the others might be relevant to a risk of absconding but might also be relevant to the need for detention for different purposes underpinned by different policy considerations. In the case of the last three (whether the subject is under 18, whether the subject has a history of torture and whether the subject has a history of physical or mental ill health), it is hard to see their relevance to a risk of absconding at all. In the result, persons subject to a Dublin III procedure cannot know which criteria will be used for the basis of an assessment whether they are likely to abscond and cannot identify the limits of the flexibility of the relevant authorities in carrying out their evaluation. In my judgement a provision such as this does not constitute a framework of certain predetermined limits for assessing whether a person in a Dublin III procedure is likely to abscond, does not identify the criteria which are to form the basis of the assessment and does not set out the limits of the flexibility of the authorities in a manner which is binding and known in advance. Nor is there any evidence or finding that asylum seekers were aware of the provisions of the Dublin III Regulation or the existence or significance of the Al Chodor decision and so could in some way factor these matters into their understanding of the assessment processes to which they were subjected. The Secretary of State also points to the subsequent legislative history and submits this shows how little difference formal compliance with any requirement for secondary legislation would make. On the 15 March 2017, the day the CJEU gave judgment in Al Chodor, the Secretary of State made the Transfer for Determination of an Application for International Protection (Detention) (Significant Risk of Absconding Criteria) Regulations 2017 (SI 2017/405) (the 2017 Regulations). These set out, at regulation 4, the criteria to be considered when deciding whether a person (P) poses a significant risk of absconding for the purposes of article 28(2): When determining whether P poses a significant risk of absconding for the purposes of article 28(2) of the Dublin III Regulation, the Secretary of State must consider the following criteria (a) whether P has previously absconded from another participating state prior to a decision being made by that participating state on an application for international protection made by P, or following a refusal of such an application; (b) whether P has previously withdrawn an application for international protection in another participating state and subsequently made a claim for asylum in the United Kingdom; (c) whether there are reasonable grounds to believe that P is likely to fail to comply with any conditions attached to a grant of temporary admission or release or immigration bail; (d) whether P has previously failed to comply with any conditions attached to a grant of temporary admission or release, immigration bail, or leave to enter or leave to remain in the United Kingdom granted under the Immigration Act 1971, including remaining beyond any time limited by that leave; (e) whether there are reasonable grounds to believe that P is unlikely to return voluntarily to any other participating state determined to be responsible for consideration of their application for international protection under the Dublin III Regulation; (f) whether P has previously participated in any activity with the intention of breaching or avoiding the controls relating to entry and stay set out in the Immigration Act 1971; (g) Ps ties with the United Kingdom, including any network of family or friends present; (h) when transfer from the United Kingdom is likely to take place; (i) whether P has previously used or attempted to use deception in relation to any immigration application or claim for asylum; (j) whether P is able to produce satisfactory evidence of identity, nationality or lawful basis of entry to the UK; (k) whether there are reasonable grounds to consider that P has failed to give satisfactory or reliable answers to enquiries regarding Ps immigration status. The Secretary of State contends that these criteria reflect the relevant bullet points referred to in paragraph 55.3.1 and observes that paragraph 55.3.1 could have been drafted in precisely these terms. This, so it is said, shows how technical and formal the following argument of the respondents is: promulgation of the criteria by means of a policy such as the EIG does not comply with articles 28(2) and 2(n), yet the making of secondary legislation in the same terms by the Secretary of State alone and without any Parliamentary scrutiny does comply with them. It will be appreciated that this argument is primarily directed at the second stage of the analysis as explained at para 56 above, and I address this below. But in my view the 2017 Regulations are also relevant to the first stage. The contrast between regulation 4 of the 2017 Regulations and paragraph 55.3.1 of the EIG is striking. Paragraph 55.3.1 contains a non exhaustive list of criteria, only some of which may be relevant to an assessment of the risk of an applicant absconding for the purposes of article 28(2). Regulation 4, on the other hand, says that the Secretary of State must consider the factors which are identified and the potential relevance of them all to such an assessment is plain. In summary and for the reasons I have given, I am satisfied that Chapter 55 of the EIG does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond; its contents do not constitute a framework with certain predetermined limits; and it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. It follows that Chapter 55 of the EIG cannot satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation and the majority of the Court of Appeal were right so to hold. Does Chapter 55 of the EIG constitute a binding provision of general application and amount to a defining law within the meaning of article 2(n)? In the light of the foregoing it is not strictly necessary to deal with this further stage of the analysis. Nevertheless, since we heard argument about it, I will address it. The Secretary of State contends that the circumstances of these appeals are very different from those of Al Chodor. It is argued that Chapter 55 of the EIG is not mere administrative practice and that in reality it is prescriptive and imposes restrictions on the executive power to detain that go beyond the Hardial Singh principles. Compliance with the provisions of Chapter 55 is enforceable by individuals before the courts and an unlawful failure to comply will result in the detention being held to be unlawful and lead to an order for the release of the person concerned or an award of compensation, or both. It is also contended that, in English law, settled case law defines the legal powers which limit the statutory power to detain and permits enforcement of the criteria which restrict the power of the executive to detain and which in other legal systems might exist only in legislation. As such, case law and Chapter 55 EIG are integral components of the law that governs and limits the power to detain and together define how the power to detain must be exercised. Therefore, Chapter 55 constitutes the kind of non legislative instrument that the CJEU contemplated would satisfy article 28(2) and 2(n). Indeed, the submission continues, if a non legislative instrument like Chapter 55 does not constitute the kind of non legislative instrument that the CJEU contemplated would satisfy articles 28(2) and 2(n) then it is difficult to imagine what the CJEU was contemplating when it departed from the Advocate Generals view. The circumstances of the Al Chodor case were plainly very different from those the subject of these appeals. It will be recalled that Czech law conferred on the police force a wide power to detain. Nevertheless, the national court had laid down in a series of judgments some criteria for assessing the risk of absconding. However, as the Advocate General explained, the presentation of these criteria was fragmentary. In addition, there was doubt as to whether that administrative practice had been publicised and it was alterable at will. There can also be no doubt that in this jurisdiction a policy statement such as Chapter 55 of the EIG has significant legal effects. I have referred to these at paras 50 51 above. In broad terms and as Laws LJ explained in R (Nadarajah) v Secretary of State for the Home Department [2005] EWCA Civ 1363, para 68, where a public authority has issued a promise or adopted a practice which represents how it proposes to act in a given area, the law requires that promise or practice to be honoured unless there is good reason not to do so. Moreover, the court is the final arbiter of what a policy means: Kambadzi, at para 36, per Lord Hope; Mandalia v Secretary of State for the Home Department [2015] UKSC 59; [2015] 1 WLR 4546, para 31, per Lord Wilson of Culworth. It is also well established that compliance with such a policy is enforceable by individuals before the courts. Moreover, the word law is used in articles 5(1)(f), 8(2), 9(2), 10(2) and 11(2) of the ECHR which require that any interference with the rights affirmed by these provisions be in accordance with a procedure prescribed by law, in accordance with the law or prescribed by law. The meaning of each of these expressions is the same and the word law within them encompasses not only legislation but also case law. As the ECtHR explained in Sunday Times v United Kingdom (1979) 2 EHRR 245, para 47, were it otherwise it would deprive a common law state which was party to the ECHR of the protection of article 10(2) and strike at the roots of that states legal system. Indeed, the applicants in that case did not argue that the expression prescribed by law required legislation in every case; they contended that legislation was required only where the common law rules were so uncertain that they did not satisfy the requirement of legal certainty. The court went on to explain, at para 49, that two of the requirements that flow from the expression prescribed by law are that a law must be accessible and sufficiently precise to enable a person adequately to foresee the consequences of his actions and so regulate his conduct. But, the court continued, the consequences need not be foreseeable with absolute certainty; that was unattainable and might carry with it excessive rigidity, preventing the law from keeping pace with changing circumstances. Similarly, R (Munjaz) v Mersey Care NHS Trust [2005] UKHL 58; [2006] 2 AC 148 concerned a policy adopted by an authority for the seclusion of detained psychiatric patients. The House of Lords held any interference with the article 8 rights of patients was justified under article 8(2). Seclusion under the policy was necessary for, among other things, the prevention of disorder, the protection of health and the protection of the rights and freedoms of others, and if properly used it would not be disproportionate. The procedure adopted by the authority did not permit arbitrary or random decision making and the rules were accessible, foreseeable and predictable. In these circumstances, it could not be said that they were not in accordance with or prescribed by law. Lord Bingham of Cornhill, with whom Lord Hope and Lord Scott of Foscote agreed, rejected a submission that the interference was not in accordance with the law because it was not prescribed by a binding general law: 34. I cannot for my part accept this. The requirement that any interference with the right guaranteed by article 8(1) be in accordance with the law is important and salutary, but it is directed to substance and not form. It is intended to ensure that any interference is not random and arbitrary but governed by clear pre existing rules, and that the circumstances and procedures adopted are predictable and foreseeable by those to whom they are applied. Nevertheless, in my view it does not follow that Chapter 55 of the EIG and domestic case law constitute law within the meaning of article 2(n) of Dublin III. That is so because a provision can only amount to a law within the meaning of article 2(n) if it has the necessary quality of certainty and that is something that Chapter 55 does not have. To ignore the need for certainty would be impermissibly to remove the word law from its context. As I have explained, the Advocate General identified the two objectives of the requirement that the criteria for assessing the risk of absconding be defined by law as being first, to ensure that those criteria offer sufficient guarantees in terms of legal certainty, that is to say that the measures adopted by member states enable the individuals concerned to ascertain the scope of their rights and obligations and to foresee the consequences of their actions; and secondly, to ensure that the discretion enjoyed by the individual authorities responsible for applying those criteria is exercised within a framework of pre determined limits. All of this reasoning is echoed in the judgment of the CJEU, in particular at paras 41 to 43. The CJEU also explained, at para 44, that the adoption of rules of general application would provide the necessary guarantees in so far as they set out the limits of the flexibility of the authorities in a manner which is binding and known in advance, and further, that the criteria are best placed for the external direction of the discretion of those authorities for the purpose of protecting applicants against arbitrary decision making. In this latter connection it referred, with apparent approval, to the observations of the Advocate General at paras 81 and 82 of his Opinion (see para 33 above). In my judgement and for the reasons I have given at paras 57 65 above, it is clear that Chapter 55 does not satisfy these requirements. It does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance and so lacks the necessary qualities of certainty and predictability. Therefore, it does not constitute a law for the purposes of articles 28(2) and 2(n). A broader question is whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n). The Secretary of State maintains that it can for the reasons summarised at paras 67 71 above. Reliance is also placed on the 2017 Regulations. It is said that the respondents argument that promulgation of the criteria set out in the 2017 Regulations by means of a policy would not comply with articles 2(n) and 28(2) whereas the making of secondary legislation in the same terms would so comply, shows how technical and formal the objection is. The respondents have advanced powerful arguments to the contrary, however. First, it is a feature of the policy adherence principle that the decision maker is entitled for good reason to depart from the policy: see, for example, Lumba at para 54, per Lord Dyson (with whom Lord Hope, Lord Walker of Gestingthorpe and Lord Collins of Mapesbury agreed); at para 202, per Baroness Hale of Richmond; at para 245, per Lord Kerr of Tonaghmore; at para 351, per Lord Brown of Eaton Under Heywood (with whom Lord Rodger of Earlsferry agreed); and at para 312, per Lord Phillips of Worth Matravers. Hence, the respondents continue, a statement of policy cannot be a principle of general application. The respondents second argument focuses on the view expressed by the Advocate General in Al Chodor [2017] 3 CMLR 24, paras 81 and 82 of his Opinion that the discretion of the authorities should be circumscribed in such a way as would best guard applicants against arbitrary deprivations of liberty, and so the content of the criteria and their application in a particular case should be decided by institutionally separate authorities (see para 33 above). Further, in explaining why a provision of general application is required, the CJEU referred to this aspect of the Advocate Generals Opinion with apparent approval (Al Chodor [2017] 4 WLR 125, para 44). The respondents also point out that, under United Kingdom constitutional arrangements, a statement of immigration policy and the common law principle of policy adherence do not involve external direction and that, as a matter of constitutional theory, under the Carltona doctrine (Carltona Ltd v Comrs of Works [1943] 2 All ER 560), the decisions of the Secretary of States officials count as his. It follows, say the respondents, that a statement of policy cannot be a binding general law. The third argument advanced by the respondents is directed at the reliance by the Secretary of State upon the position under the ECHR that interferences with human rights must be prescribed by law, and how this requirement has been interpreted. The respondents contend that this reliance is misplaced because articles 28(2) and 2(n) require more than the conventional ECHR standards of prescription. They also say, fairly in my view, that what is needed is a high level of protection (Al Chodor [2017] 4 WLR 125, paras 34 and 43), that there are to be strict safeguards (Al Chodor, para 40), and that there are to be greater guarantees than applied under Dublin II (Al Chodor, para 35). They contend that, in giving this guidance and contrary to the position taken by the Secretary of State, the CJEU plainly had in mind the settled case law of common law systems and that such is apparent from its reference (Al Chodor, para 21) to the decision of the ECtHR in Kruslin v France (1990) 12 EHRR 547 in which that court discussed the role of case law in both civil law and common law systems. It is not necessary to resolve these rival contentions in this appeal and in my judgement the question whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n) should be decided in a case in which it is necessary to do so. Conclusion on issue 1 For the reasons I have given, the policy published by the Secretary of State in Chapter 55 of the EIG does not satisfy the requirements of articles 28(2) and 2(n) of the Dublin III Regulation. Are damages payable to a person whose detention pursuant to Chapter 55 of the EIG is authorised by the Secretary of State? The right to personal freedom is of fundamental importance and is reflected in the guarantees contained in articles 5(4) and 5(5) of the ECHR. A person who is unlawfully detained in this jurisdiction has (a) a right to be released; and (b) a right to damages for the tort of false imprisonment. This tort has just two ingredients: the fact of imprisonment and the absence of lawful authority to justify it: R v Deputy Governor of Parkhurst Prison, Ex p Hague [1992] 1 AC 58, 162C D per Lord Bridge of Harwich. All that a claimant has to prove in order to establish false imprisonment is that he was directly and intentionally detained by the defendant, whereupon the burden shifts to the defendant to show that there was lawful justification for doing so: Lumba, para 65, per Lord Dyson. Here the Secretary of State relies upon the discretionary power to detain which is conferred by paragraph 16(2) of Schedule 2 to the 1971 Act. But that reliance can only assist the Secretary of State so far as the power to detain was exercised in accordance with the 1971 Act. As we have seen, the power is limited in various ways. It is limited by the Hardial Singh principles such that a failure by the Secretary of State to comply with those principles will render the detention unlawful. So too, a failure by the Secretary of State to adhere to a published policy under the 1971 Act without good reason can amount to an abuse of power which will render the detention unlawful: Kambadzi, paras 41 42, per Lord Hope. The respondents primary submission, which the majority of the Court of Appeal accepted, is that the exercise by the Secretary of State of the power to detain under the 1971 Act is also constrained by any applicable obligations under European Union law by operation of section 2(1) of the European Communities Act 1972. The respondents were detained pursuant to the policy in the EIG which was unlawful in so far as it failed to give effect to articles 28(2) and 2(n) of the Dublin III Regulation. Put another way, nothing in the 1971 Act authorised an exercise of the power to detain in breach of European Union law. The detention of the respondents under the 1971 Act and pursuant to the policy in the EIG was in breach of Union law. It follows that they were detained without lawful authority and their detention amounted to false imprisonment, and they are entitled to damages. This argument is clear and, in my opinion, compelling. However, the Secretary of State argues that it is simplistic and that, were it to be accepted, it would ride roughshod over the careful balance of interests that is inherent in the principles of European Union law which govern and restrict the availability of damages as a remedy for breach by a member state of Union law, particularly where the precise effect of that law is unclear until it has been established by a decision of the CJEU. There are three limbs to the Secretary of States submissions. The first limb Francovich It is contended first, that there are only two ways in which a claimant in domestic proceedings is entitled to damages payable by a member state for a breach of European Union law: either where the law specifies the penalties to be imposed or the compensation to be provided in the event of breach, or under the principles established by the CJEU in Francovich v Italian Republic (Joined Cases C 6/90 and C 9/90) [1995] ICR 722. Here, the Secretary of State continues, the Dublin III Regulation does not provide for compensation for its breach and so the respondents only possible claim under Union law is for Francovich damages. Francovich was a case concerning the obligation upon a member state to take, within a given period, the measures necessary to implement a Directive. The court explained that it is a principle of European Union law that member states are obliged to pay compensation for harm caused to individuals by breaches of the law for which they can be held responsible, but that the conditions under which that liability gives rise to a right to compensation depend upon the nature of the breach giving rise to the claim. This issue and in particular the approach to be adopted where the legislature of the member state has a wide discretion when acting in a field governed by Union law, was explored further by the court in Factortame. The court explained that Union law confers a right to reparation where: the rule of law infringed is intended to confer rights on individuals; the breach of the obligation resting on the state is sufficiently serious; and there is a direct causal link between the breach and the damage sustained by the injured parties: Factortame, para 51. The decisive test for determining whether the breach is sufficiently serious is whether the member state manifestly and gravely disregarded the limits on its discretion: Factortame, para 55. The factors which the national court may take into consideration include the clarity and precision of the rule breached; the measure of discretion left by the rule to the national authority; whether the infringement and the damage caused was intentional or involuntary; whether any error of law was excusable or inexcusable; the fact that the position taken by a European Union institution may have contributed towards the omission; and the adoption or retention of national measures contrary to European Union law: Factortame, para 56. On any view, a breach of European Union law will be sufficiently serious if it is persisted in once it is clear that the impugned conduct constitutes an infringement: Factortame, para 57. The Secretary of State has invoked all of these principles on this appeal. It is contended that European Union law was impenetrable before the decision of the CJEU in Al Chodor and that this is highly relevant to the question whether any breach by the United Kingdom of Union law was intentional or voluntary, or excusable or inexcusable, and therefore sufficiently serious to trigger a liability for Francovich damages. The Secretary of State also points to the wide margin of discretion given to member states in giving effect to articles 28(2) and 2(n), and contends that in circumstances such as those of this appeal a manifest and grave disregard of the limits of the discretion must be established before damages are available; and that the same criteria should inform, if not govern, a claim for damages for false imprisonment under common law. There can be no dispute about the correctness of the principles of European Union law which I have summarised in para 86. I accept too that it is by reference to these principles that any claim by the respondents for damages under Union law must be judged. But it does not follow that the same principles constrain the claim by the respondents for damages for wrongful imprisonment and in my judgement and for the reasons which follow, they do not. First, the consequence of a failure by a member state to establish, in a binding provision of general application, objective criteria underlying the reasons for believing that an applicant for international protection who is subject to a Dublin III procedure may abscond, is that article 28(2) of the Regulation does not apply. This in turn means that the detention of such an applicant in such a state is unlawful and he or she must be released: see Al Chodor, paras 17 and 46. In this appeal, it has the consequence that the decision to detain the respondents lay outside the boundaries of any permissible exercise of the power to detain conferred by paragraph 16(2) of Schedule 2 to the 1971 Act. Secondly and as I have explained, the right to liberty is a fundamental human right enshrined in article 5 of the ECHR. Immigration detention is only in accordance with article 5(1)(f) in so far as it is in accordance with a procedure prescribed by law. Moreover, a person who is detained unlawfully must be released: article 5(4); and is entitled to compensation: article 5(5). These principles are also general principles of European Union law: article 6(3) of the Treaty on European Union. Thirdly, the right to compensation is provided in domestic law by the right at common law to claim damages for false imprisonment. Generally, damages for false imprisonment are awarded as compensation and so the level of damages will depend on the circumstances and degree of harm the claimant has suffered by reason of his or her wrongful detention. There is no reason to believe that the impact of loss of liberty is likely to be affected by whether lack of legal authority for the detention is the consequence of a failure to comply with European Union or domestic legislation, and in my judgement the source of the lack of legal authority does not justify treating those who have been wrongfully detained differently from one another. The second limb Lumba The second limb to the Secretary of States submissions is founded on the decision of this court in Lumba. It is argued that in Lumba this court rejected the submission that any public law error in a decision to detain would result in the subsequent detention being unlawful, regardless of any of the circumstances of that public law error, and instead adopted an approach which involved the weighing of a number of countervailing considerations, such as the nature and extent of the public law error, the absence of procedural safeguards which are normally available in cases of judicial review but are not available in a private law action for damages for false imprisonment, and the discretionary nature of judicial review remedies. We are urged to adopt the same approach in this appeal in considering the elements of the tort of false imprisonment and correct approach to the assessment of damages, if liability is established. It is submitted that such an approach echoes that of the CJEU in Factortame when formulating the necessary elements of a claim for damages for a breach of European Union law. Lumba was a case in which the Secretary of State applied an unpublished policy of detention for all foreign national prisoners on completion of their sentences of imprisonment and pending the making of deportation orders against them. This court held that the unpublished policy was unlawful because it was a blanket policy which admitted of no exceptions and was inconsistent with the Secretary of States published policy. It also held that a public law error can found a claim for damages for false imprisonment but recognised that not all public law errors will have this effect. The majority expressed themselves in slightly different ways. Lord Dyson explained, at para 68, that the error must be material to the decision to detain: the error must be one which is material in public law terms. It is not every breach of public law that is sufficient to give rise to a cause of action in false imprisonment. In the present context, the breach of public law must bear on and be relevant to the decision to detain. Lord Hope considered, at para 175: that there was here a serious abuse of power which was relevant to the circumstances of the appellants detention. Baroness Hale put it this way, at para 207: the breach of public law duty must be material to the decision to detain and not to some other aspect of the detention and it must be capable of affecting the result which is not the same as saying that the result would have been different had there been no breach. Lord Kerr stated the test in these terms, at para 251: Breach of a public law duty which has the effect of undermining the achievement of the statutory purpose will therefore, in my opinion, render the continued detention invalid. All of these formulations have at their heart a recognition that a public law error will not render detention unlawful unless that error bears upon and is relevant to the decision to detain, and so is capable of affecting the result. Similar expressions were adopted subsequently in Kambadzi at paras 41 42 (Lord Hope), para 69 (Baroness Hale) and para 88 (Lord Kerr). In my judgement, there can be no doubt that the test laid down in Lumba and Kambadzi, however expressed, is met in the circumstances of the cases before us in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it can make no difference whether the source of that requirement lay in European Union or domestic legislation. The third limb choice of law The third limb to the Secretary of States submissions adopts the reasoning in the dissenting judgment of Sales LJ in the Court of Appeal at paras 132 to 147. The essential elements of that reasoning are these: The Dublin III Regulation does not stipulate that damages are to be i) awarded for detention in breach of its terms. ii) The test laid down in Factortame for attaching liability to a state to pay damages to an individual for a breach of European Union law reflects the fact that Union legislation is frequently not clear. iii) The domestic tort of false imprisonment was framed without reference to the particular problems to which the Dublin III Regulation gives rise, and ignores the fair balance of interests which the Regulation aims to achieve. iv) In effect, a choice of law question arises when assessing whether a person within article 28 of Dublin III who has been wrongfully detained is entitled to substantial damages, and the appropriate law to govern that question is Union law. v) A person who is subject to a Dublin III procedure and who has been wrongfully detained must be released but such a person is only entitled to damages if there has been a sufficiently serious breach of article 2(n), and any other approach would be disproportionate. Put another way, article 28 excludes any application of the power to detain conferred by Schedule 2 of the 1971 Act. The detention of such a person is therefore completely covered by Union law and that person is only entitled to damages under Union law. vi) The disconnection between Union law as set out in articles 28(2) and 2(n) of the Regulation and the domestic law of false imprisonment is illustrated by the case of the third respondent who was refused bail and so was detained by order of the court, and could not claim damages for false imprisonment in respect of his detention thereafter. However, he could still claim damages for breach of Union law if the breach was sufficiently serious. vii) The Secretary of States position is also supported by the fact that damages for a breach of article 6 of the ECHR fall to be assessed by reference to ECtHR authority. These arguments overlap to a considerable extent with those I have already addressed. I of course accept that the Dublin III Regulation does not require member states to confer a right to damages on persons who have been detained in breach of its terms. So too I recognise that one of the matters informing the formulation by the CJEU of the conditions under which a member state may incur liability for damage caused to individuals by a breach of Union law is whether the state concerned manifestly and gravely disregarded the limits on its discretion, and that one of the factors which may be relevant to this issue is the clarity and precision of the rule breached: Factortame, paras 55 56. I also accept that the domestic tort of false imprisonment was framed without reference to the particular problems to which the Dublin III Regulation gives rise. These points aside, however, I cannot agree with Sales LJs analysis. The power to detain applicants for international protection who are subject to a Dublin III procedure is conferred, not by the Dublin III Regulation, but by Schedule 2 to the 1971 Act. That power to detain is constrained in various ways, three of which I have discussed: the Hardial Singh principles, the policy adherence principle and the provisions of the Dublin III Regulation. Here the Secretary of States published policy in Chapter 55 of the EIG did not comply with articles 28(2) and 2(n) of the Dublin III Regulation with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. In these circumstances, the two ingredients of the tort of wrongful imprisonment were undoubtedly present. As the respondents submit and I accept, the right under domestic law to claim damages for wrongful imprisonment is not dependent on the law being clear. Nor is it dependent upon the nature of the illegality, that is to say whether it is the consequence of a failure to comply with European Union legislation, as in this case, or has some other cause, as it did in Lumba. Further, there is no disconnection between a failure to comply with articles 28(2) and 2(n) of Dublin III Regulation and the tort of false imprisonment in circumstances such as those of the cases before us. Nor can the Secretary of State derive any assistance from the position of the third respondent. He was not detained pursuant to an order of the court. He was simply denied bail. A decision on a bail application is not a determination of whether or not the detention is lawful, whether at common law or for the purposes of article 5(4) of the ECHR: see, for example, Lumba at para 118. The approach adopted in this jurisdiction to claims for damages for violations of article 6 of the ECHR does not assist the Secretary of State either. Sales LJ referred to the decision of the House of Lords in R (Greenfield) v Secretary of State for the Home Department [2005] UKHL 14; [2005] 1 WLR 673. In that case Mr Greenfield, a prisoner, failed a mandatory drug test and was charged with a drugs offence under the relevant prison rules. The charge was heard by the deputy controller, a Crown servant, for whom the Secretary of State was responsible. The deputy controller refused a request by Mr Greenfield that he be legally represented. The charge was proved and Mr Greenfield was ordered to serve an extra 21 days of imprisonment. He applied for judicial review of the decision, alleging that his rights under article 6 of the ECHR had been violated. In due course the Secretary of State conceded there had been a breach of article 6 on the basis that the proceedings involved a criminal charge, that the deputy controller was not an independent tribunal and that Mr Greenfield had been denied legal representation of his own choosing. Mr Greenfield nevertheless pursued his claim for damages for the violations of article 6 which had taken place. The House of Lords held that, in deciding whether an award of damages was necessary, it was appropriate to look to the jurisprudence of the ECtHR for guidance, and in the great majority of cases in which that court had found a breach of article 6 it had treated the finding of violation as, in itself, just satisfaction under article 41, and that it would only award monetary compensation where it was satisfied that the loss or damage was caused by the violation. The important point of difference between Greenfield and the cases before us on this appeal is that, in Greenfield, the claim for damages was based entirely on the breach of article 6. There was no claim for damages for wrongful imprisonment or for any other tort and Mr Greenfield had not suffered any loss. Indeed, as Lord Bingham of Cornhill explained at paras 27 to 29, the hearing had been conducted in an exemplary manner and, while it could be accepted that Mr Greenfield thought that the authorities were biased against prisoners and that he would not receive a fair hearing, the manner of his adjudication had been the norm, he had been treated no differently from any other prisoner and there was no feature of the case which justified an award of damages. In my judgement the majority in the Court of Appeal were therefore right to hold that the respondents were wrongfully detained. The respondents are also entitled to compensation for any loss their wrongful detention has caused them. Causation and nominal damages The Secretary of State contends that the respondents should be awarded no more than nominal damages. It is said that it is inevitable that the respondents would have been detained lawfully, had the Secretary of State appreciated the unlawfulness of Chapter 55 of the EIG. That is demonstrated by the 2017 Regulations, which came into force on 15 March 2017, the day the CJEU gave judgment in Al Chodor. Further, the argument continues, these regulations meet all of the criteria set out in articles 28(2) and 2(n) of the Dublin III Regulation as interpreted by the CJEU in Al Chodor, and their application would have resulted in the same outcome: the respondents would have been detained. The Secretary of State relies in support of this contention upon the decision of this court in Lumba. One of the issues in that appeal was whether the appellants had suffered any loss as a result of their wrongful imprisonment. The majority of the court held they had not because, had the Secretary of State acted lawfully and applied her published policy on detention as opposed to her unpublished policy of blanket detention, it was inevitable that the appellants would have been detained. In other words, the detention of the appellants was at all times justifiable. The same point emerges from the decision of this court in Kambadzi. There the claimants detention pending deportation was unlawful because it had not been reviewed in accordance with the Secretary of States published policy and rule 9(1) of the Detention Centre Rules 2001 (SI 2001/238). Although it could be no defence to a claim for false imprisonment to demonstrate that, if reviews had been carried out, the claimant would still have been detained, this would be relevant to the claim for damages. Lord Hope said this at para 55: As for the question of damages, the decision on this point in Lumba was that the appellants were entitled to no more than nominal damages as their detention was at all times justifiable. But this cannot be assumed to be so in every case, and in this case the facts have still to be established. So I would not foreclose entirely the possibility that the appellant in this case is entitled to no more than a purely nominal award. Baroness Hale of Richmond summed up the position this way at para 74: False imprisonment is a trespass to the person and therefore actionable per se, without proof of loss or damage. But that does not affect the principle that the defendant is only liable to pay substantial damages for the loss and damage which his wrongful act has caused. The amount of compensation to which a person is entitled must be affected by whether he would have suffered the loss and damage had things been done as they should have been done. Similarly, Lord Kerr said this at para 89: As the majority in Lumba also held, however, causation is relevant to the question of the recoverability of damages. I consider that if it can be shown that the claimant would not have been released if a proper review had been carried out, this must have an impact on the quantum of compensation and that nominal damages only will be recoverable. These principles were subsequently applied by the Court of Appeal in Parker v Chief Constable of Essex Police [2018] EWCA Civ 2788; [2019] 1 WLR 2238, another decision on which the Secretary of State relies. Here the claimant was arrested on suspicion of murder and rape. The investigating officer was delayed by traffic so the arrest was carried out by a surveillance officer who was present at the scene but did not personally have reasonable grounds for suspecting the claimant was guilty of an offence, as required by section 24(2) of the Police and Criminal Evidence Act 1984. It was perfectly clear that, had this requirement been appreciated, it could and would have been met, either by waiting for the investigating officer to arrive or by properly briefing the officer who carried out the arrest. Accordingly, the claimant could only recover nominal damages. In my view the Secretary of State is seeking to apply these principles well beyond their proper limits. In Lumba, this court considered what would have happened had the Secretary of State applied his published policy. In Kambadzi, the question was whether the claimant would have been detained had regular reviews been carried out. In Parker, it was established that, had things been done as they should have been, the claimant could and would have been arrested lawfully. In other words, a claimant will be awarded nominal damages if it is established that the detention could have been effected lawfully under the existing legal and policy framework. Article 5(1) of the ECHR requires any deprivation of liberty to have a legal basis in domestic law, and that law must be sufficiently precise and accessible in order to avoid all risk of arbitrariness: see Dougoz v Greece (2002) 34 EHRR 61, para 55. Similarly, a person is entitled to know what the law and any policy made under it is, so he or she can make relevant representations in relation to it: see Lumba, at paras 34 36, per Lord Dyson. It can be no answer to a claim for damages for unlawful imprisonment that the detention would have been lawful had the law been different. Damages for a breach of European Union law The respondents say that they are also entitled to damages pursuant to European Union law in the light of the principles explained by the CJEU in Francovich and Factortame. It is not contended that any award of damages for such a breach would exceed those payable for false imprisonment. It is therefore not necessary to consider this alternative claim in this appeal. Consequences The respondents claims do not require remittal for any further consideration of the lawfulness of their detention. They were all detained unlawfully and are entitled to damages under domestic law for false imprisonment. I would transfer these proceedings to the County Court for the assessment of the quantum of those damages, if that quantum cannot be agreed. Overall conclusion I would dismiss this appeal.

The five respondents arrived in the United Kingdom illegally and claimed asylum. They had all travelled to the United Kingdom via at least one other member state of the European Union in which they had already claimed asylum. In each case, the Secretary of State requested those states to take responsibility for examining the asylum claims pursuant to Parliament and Council Regulation (EU) No 604/2013 of 2013 (Dublin III or the Regulation). Each member state ultimately agreed to that request. Each of the respondents was detained for a period of time pending his or her removal from the United Kingdom pursuant to paragraph 16(2) of Schedule 2 to the Immigration Act 1971 (the 1971 Act). In 2015, the Secretary of State had published a policy in relation to such detention in Chapter 55 of her Enforcement Instructions and Guidance (the EIG). The respondents challenged the lawfulness of their detention by bringing claims against the Secretary of State for the Home Department. The High Court dismissed the challenges of the first to fourth respondents, but the detention of the fifth respondent was found to have been unlawful. The first to fourth respondents appealed to the Court of Appeal. In the case of the fifth respondent, the Secretary of State appealed to the Court of Appeal. By a majority, the Court of Appeal allowed the appeals of the first to fourth respondents and dismissed the Secretary of States appeal. The Secretary of State now appeals to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Kitchin gives the sole judgment, with which Lady Hale, Lord Reed, Lord Wilson and Lady Arden agree. There were two particular questions before the Supreme Court [2]. First, was the detention of each respondent lawful, given that article 28 of the Regulation permits detention where there is a significant risk of absconding? The phrase risk of absconding is defined in article 2(n) of the Regulation as the existence of reasons in an individual case, based on objective criteria defined by law, to believe that the person might abscond. Secondly, if the detention was not lawful, are damages payable either under domestic law for false (or wrongful) imprisonment, or pursuant to what is known as the Factortame principle established in Brasserie du Pecheur SA v Germany; R v Transport Secretary; Ex p Factortame Ltd No 4 (Joined Cases C 46/93 and C 48/93) [1996] QB 404? A policy such as that embodied in Chapter 55 of the EIG is published so that an individual affected by it knows the criteria by which the executive has chosen to exercise the power conferred upon it by statute. Its publication also allows the individual to make appropriate representations in relation to that exercise of power as it affects him or her [49]. The executive must follow its stated policy unless there are good grounds for not doing so [50]. Chapter 55 does not establish objective criteria for the assessment of whether an applicant for international protection who is subject to a Dublin III transfer procedure may abscond. Its contents do not constitute a framework with certain predetermined limits. Further, it does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance. Therefore, the Court of Appeal was right to hold that Chapter 55 cannot satisfy the requirements of articles 28(2) and 2(n) of the Regulation [65]. Chapter 55 does not satisfy the requirements laid down by the Court of Justice of the European Union in Policie R, Krajsk editelstv policie steckho kraje, odbor cizineck policie v Al Chodor (Case C 528/15) [2017] 4 WLR 125. Because Chapter 55 does not set out the limits of the flexibility of the relevant authorities in assessing the circumstances of each case in a manner which is binding and known in advance, it lacks the necessary qualities of certainty and predictability. It therefore does not constitute a law for the purposes of articles 28(2) and 2(n) [74]. A broader question is whether a statement of policy and public law adherence to it can ever amount to a binding provision of general application and so a law within the meaning of article 2(n) [75]. That question should be decided in a case in which it is necessary to do so [79]. Any claim by the respondents for damages under European Union law must be judged by reference to the principles established in Francovich v Italy (Case C 6/90) [1993] 2 CMLR 66 and Factortame. However, those principles do not constrain the claim by the respondents for damages for wrongful imprisonment [88]. In R (Lumba) v Secretary of State for the Home Department [2011] UKSC 12; [2012] 1 AC 245, the Supreme Court considered the test for when a public law error bearing upon and relevant to a decision to detain can found a claim for damages for false imprisonment. That test is met in the cases in this appeal. There was a requirement for a binding provision of general application containing objective criteria underlying the reasons for believing that an applicant might abscond, and that requirement was not satisfied. This was fundamental to the decision to detain and it makes no difference whether the source of that requirement lay in European Union or domestic legislation [98]. Chapter 55 did not comply with articles 28(2) and 2(n) of the Regulation, with the consequence that, in the case of each of the respondents, the decision to detain lay outside the scope of any legitimate exercise of the discretion conferred by Schedule 2 to the 1971 Act. The ingredients of the tort of wrongful imprisonment were undoubtedly present. The right under domestic law to claim damages for wrongful imprisonment is not dependent on the law being clear. Nor is it dependent upon whether the illegality is the consequence of a failure to comply with European Union legislation (as in this case) or has some other cause [101]. The majority in the Court of Appeal were right to hold that the respondents were wrongfully detained. The respondents are entitled to compensation under domestic law for any loss that the wrongful detention has caused them [105, 114]. The Secretary of States submission that the respondents should only be entitled to nominal damages is rejected [106 112]. It is not necessary in this appeal to consider the respondents alternative claim for damages under European Union law, since it is not contended that any such damages would exceed those payable for false imprisonment under domestic law [113]. The County Court will assess the amount of damages, if it cannot be agreed [114].

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This appeal concerns the question whether the provisions of Part 4 of the Children and Young People (Scotland) Act 2014 lie within the legislative competence of the Scottish Parliament. Before considering the issues that arise (summarised in para 26 below), it is helpful to begin with an account of the background to the legislation. A suitable starting point is the consultation paper, A Scotland for Children, published by the Scottish Government in July 2012. In general terms, two ideas underlay many of the proposals. The first was a shift away from intervention by public authorities after a risk to childrens and young peoples welfare had been identified, to an emphasis on early intervention to promote their wellbeing, understood as including all the factors that could affect their development. The second was a shift away from a legal structure under which the duties of statutory bodies to cooperate with one another (under, for example, section 13 of the National Health Service (Scotland) Act 1978 and section 21 of the Children (Scotland) Act 1995) were linked to the performance of their individual functions, to ensuring that they work collaboratively and share relevant information so that all relevant public services can support the whole wellbeing of children and young people (para 73). In that regard, the consultation paper stated that it was essential that information is shared not only in response to a crisis or serious occurrence but, in many cases, information should be shared about relevant changes in a child's and young persons life. There was, however, no commonly agreed process for routine information sharing about concerns about wellbeing (para 110). The establishment of a new professional role, that of named person, was proposed in order to address those concerns (para 111). On its introduction in April 2013, the Children and Young People (Scotland) Bill was accompanied by a Policy Memorandum which was similar in content to the consultation paper. It stated, in relation to named persons: They can monitor what children and young people need, within the context of their professional responsibilities, link with the relevant services that can help them, and be a single point of contact for services that children and families can use, if they wish. The named person is in a position to intervene early to prevent difficulties escalating. The role offers a way for children and young people to make sense of a complicated service environment as well as a way to prevent any problems or challenges they are facing in their lives remaining unaddressed due to professional service boundaries. (para 68) The Bill aimed to ensure that every child in Scotland had a named person (para 70). It provided for a wide ranging duty on all relevant public authorities to cooperate with the named person in the conduct of their duties. This would be of particular importance in the area of information sharing, since the role of the named person will depend on the successful sharing of information between relevant public authorities (para 73). The memorandum explained that concern had been expressed about the existing legal framework for information sharing. This was felt to be confusing and potentially insufficient to enable the role of the named person to operate as well as anticipated. In particular, there were concerns regarding sharing information about children where consent was not given (para 75). The memorandum continued: Currently, information about a child may be shared where the child is at a significant risk of harm. However, the role of the named person is based on the idea that information on less critical concerns about a childs wellbeing must be shared if a full picture of their wellbeing is to be put together and if action is to be taken to prevent these concerns developing into more serious issues. Without the necessary power to share that kind of information, the named person will not be able to act as effectively as is intended Specific provisions in the Bill, therefore, set out arrangements on information sharing, to give professionals and named persons the power to share information about those concerns. (paras 76 77) It appears, therefore, that one of the principal purposes of Part 4, as envisaged at that stage, was to alter the existing law in relation to the sharing of information about children and young people, so as to enable information about concerns about their wellbeing, held by individual bodies, to be pooled in the hands of named persons and shared with other bodies, with the ultimate aim of promoting their wellbeing. The provisions of Part 4 Part 4 of the Act begins with section 19, which defines a named person service as the service of making available, in relation to a child or young person, an identified individual who is to exercise the functions listed in subsection (5): (a) doing such of the following where the named person considers it to be appropriate in order to promote, support or safeguard the wellbeing of the child or young person (i) advising, informing or supporting the child or young person, or a parent of the child or young person, (ii) helping the child or young person, or a parent of the child or young person, to access a service or support, or (iii) discussing, or raising, a matter about the child or young person with a service provider or relevant authority, and such other functions as are specified by this Act or any (b) other enactment as being functions of a named person in relation to a child or young person. In relation to section 19(5)(a)(iii), the expression service provider is defined by section 32 as meaning, in a context of this kind, each health board, local authority, directing authority, and the Scottish Ministers. The expression directing authority is defined by section 32 as meaning the managers of each grant aided school, the proprietor of each independent school, and the local authority or other person who manages each residential establishment which comprises secure accommodation. The expression relevant authorities is defined by section 31 and Schedule 2 as including a wide variety of public bodies, including NHS 24, NHS National Services Scotland, the Scottish Ambulance Service Board, the Scottish Sports Council, the Scottish Police Authority, and the Scottish Fire and Rescue Service. Under sections 20 and 21, responsibility for the provision of a named person service lies with health boards in relation to all pre school children residing within their area, and generally with local authorities in relation to all other children residing within their area. There are exceptions in relation to pupils at independent and grant aided schools, where responsibility lies with the directing authority; children kept in secure accommodation, where responsibility lies with the directing authority; children kept in custody, where responsibility lies with the Ministers; and children (as defined) who are members of the armed forces. Under section 22, named person services must also be provided in relation to all young people over 18 who remain at school. Responsibility for making provision for them in that situation lies with the local authority, except in relation to young people at independent or grant aided schools, where responsibility lies with the directing authority. Section 23 deals with the communication of information following a change in the identity of the service provider in relation to a child or young person (defined by section 32, in this context, as meaning the person whose function it is to make arrangements for the provision of a named person service in relation to the child or young person). That will occur, for example, when a child first goes to school, and the service provider ceases to be the health board and becomes the local authority or directing authority, or when a child goes from a local authority school to an independent or grant aided school, and the service provider ceases to be the local authority and becomes the directing authority of the school. In terms of section 23(2)(b), the outgoing service provider must provide the incoming service provider with: Information falls within section 23(3) if the outgoing service provider considers that: the name and address of the child or young person and (i) each parent of the child or young person (so far as the outgoing service provider has that information), and (ii) all information which the outgoing service provider holds which falls within subsection (3). (a) (b) it is likely to be relevant to (i) the exercise by the incoming service provider of any functions of a service provider under this Part, or (ii) the future exercise of the named person functions in relation to the child or young person, it ought to be provided for that purpose, and (c) its provision would not prejudice the conduct of a criminal investigation or the prosecution of any offence. In considering for the purpose of section 23(3)(b) whether information ought to be provided, the outgoing service provider is, so far as reasonably practicable, to ascertain and have regard to the views of the child or young person, taking account of the childs age and maturity: section 23(4) and (5). In terms of section 23(6), the outgoing service provider may decide for the purpose of section 23(3)(b) that information ought to be provided only if the likely benefit to the wellbeing of the child or young person outweighs any likely adverse effect on that wellbeing. Section 23(7) provides: Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law. Section 24 imposes on service providers a duty to publish information about the operation of the named person service, and to provide children and young people and their parents with information about the arrangements for contacting named persons. Section 25 imposes on service providers and relevant authorities a duty to help in the exercise of named person functions. Section 26 is concerned with the sharing of information, and is expressed in similar language to section 23. It imposes two duties to disclose information, and also confers a power. First, under section 26(1), a service provider or relevant authority (or any person exercising a function on their behalf, such as an independent contractor: section 26(10)) must provide to the service provider in relation to a child or young person any information which falls within subsection (2). Information falls within section 26(2) if the information holder considers that: (a) it is likely to be relevant to the exercise of the named person functions in relation to the child or young person, it ought to be provided for that purpose, and (b) (c) its provision to the service provider in relation to the child or young person would not prejudice the conduct of any criminal investigation or the prosecution of any offence. Secondly, under section 26(3) the service provider in relation to a child or young person must provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which falls within subsection (4). Information falls within section 26(4) if the information holder considers that: it is likely to be relevant to the exercise of any function (a) of the service provider or relevant authority which affects or may affect the wellbeing of the child or young person, (b) it ought to be provided for that purpose, and (c) its provision to the service provider or relevant authority would not prejudice the conduct of any criminal investigation or the prosecution of any offence. In considering for the purpose of section 26(2)(b) and the corresponding provision in section 26(4)(b) whether information ought to be provided, the information holder is, so far as reasonably practicable, to ascertain and have regard to the views of the child or young person, taking account of the childs age and maturity: section 26(5) and (6). In terms of section 26(7), the information holder may decide for the purpose of section 26(2)(b) and (4)(b) that information ought to be provided only if the likely benefit to the wellbeing of the child or young person outweighs any likely adverse effect on that wellbeing. Thirdly, section 26(8) confers an additional power: the service provider in relation to a child or young person may provide to a service provider or relevant authority any information which falls within subsection (9). Information falls within section 26(9) if the information holder considers that its provision to the service provider or relevant authority is necessary or expedient for the purpose of the exercise of any of the named person functions. Finally, in relation to section 26, subsection (11) provides: Other than in relation to a duty of confidentiality, this section does not permit or require the provision of information in breach of a prohibition or restriction on the disclosure of information arising by virtue of an enactment or rule of law. Section 27 makes further provision in relation to the disclosure of information in breach of a duty of confidentiality: where a person by virtue of Part 4 provides information in breach of such a duty and informs the recipient of that breach, the recipient may not provide the information to another person unless its provision is permitted or required by virtue of any enactment or rule of law. Section 28 imposes a duty on local authorities, health boards, directing authorities and relevant authorities to have regard to guidance issued by the Ministers about the exercise of functions conferred by Part 4. Section 29 imposes a duty on the same bodies to comply with any direction issued by the Ministers. Section 30 confers on the Ministers a power to make provision about complaints concerning the exercise of functions conferred by or under Part 4. These provisions confirm that one of the central purposes of Part 4 is to establish new legal powers and duties, and new administrative arrangements, in relation to the sharing of information about children and young people, so as to create a focal point, in the form of named persons, for the pooling and sharing of such information, and the initiation of action to promote their wellbeing. The terms in which sections 23 and 26 define the information which is subject to those powers and duties indicate an intention that the range of information to be shared will depend on the exercise of judgement by the information holder, and is potentially very wide. That is consistent with the emphasis in the consultation paper on collaborative working and routine information sharing. Thus, under sections 23(3) and 26(2), the duty to share information does not depend on whether it is objectively relevant or necessary that it should be shared, but on whether the information holder considers that the information is likely to be relevant to the exercise of the named person functions (or, as the case may be, the functions of a service provider under Part 4): functions which are defined by section 19(5) by reference to what the named person considers to be appropriate in order to promote, support or safeguard wellbeing. Section 26(4)(a) is equally wide: the duty again applies to information which the information holder considers is likely to be relevant to the exercise of a function, and in addition the function need not be one which actually affects the wellbeing of a child or young person, but merely one which the information holder considers may affect their wellbeing. Section 26(9) is wider still: the power of disclosure conferred by section 26(8) can be exercised in relation to information whose disclosure the information holder considers to be necessary or expedient for the purpose of the exercise of any of the named person functions. Wellbeing is not defined. The only guidance as to its meaning is provided by section 96(2), which lists eight factors to which regard is to be had when assessing wellbeing. The factors, which are known under the acronym SHANARRI, are that the child or young person is or would be: safe, healthy, achieving, nurtured, active, respected, responsible, and included. These factors are not themselves defined, and in some cases are notably vague: for example, that the child or young person is achieving and included. The identification of a wellbeing need does not of itself give rise to compulsory measures. Part 5 of the Act introduces the childs plan and targeted interventions. Section 33(2) defines wellbeing need broadly: a child has a wellbeing need if the childs wellbeing is being, or is at risk of being, adversely affected by any matter. Where the responsible authority considers that a child has a wellbeing need and that that need cannot be met, or met fully, without a targeted intervention which is capable of meeting the need to some extent, it is to prepare a childs plan for a targeted intervention or interventions. A targeted intervention is the provision of services for the child to meet needs which are not capable of being fully met by the general services to children which the relevant authority provides (section 33(4)). The childs plan identifies the relevant authority which is to provide the service, the manner in which it is to be provided and the outcome which the targeted intervention is intended to achieve (section 34(1)). This does not involve any compulsion. Further, in deciding whether a child requires a childs plan the responsible authority is required to consult the named person and, so far as reasonably practicable, to ascertain and have regard to the views of the child and the childs parents, among others (section 33(6)). The Scottish Governments revised draft statutory guidance Section 28(1) of the Act provides that a local authority, a health board, a directing authority and a relevant authority must have regard to guidance issued by the Scottish Ministers about the exercise of functions under Part 4. The Scottish Government in performance of its duty under section 96(3) published revised draft statutory guidance (RDSG) in December 2015. The RDSG is aimed at the strategic leaders and operational managers of health boards, local authorities, directing authorities and relevant authorities, which are responsible for operating Parts 4, 5 and 18 of the Act. It provides that the organisations must have regard to the guidance in carrying out those functions (para 1.2.2). It states (para 1.2.5) that separate practice materials will be made available for practitioners. It records the success of the pathfinder project set up in the Highland council area in 2006, which achieved the better coordination of assessment and planning in support of childrens needs by establishing common procedures and processes for sharing concerns about a child (para 1.3.3). It states: The pathfinder brought significant improvements to children and young people and their families, reducing the need for statutory intervention in childrens and families lives by resolving potential problems at an earlier stage. The improvements included greater clarity about whom families should go to when they needed help, falls in the number of referrals to the Childrens Reporter, a reduced number of children placed on the Child Protection Register, and the focussing of resources on the children who needed most support (para 1.3.3). It records that the approach had been adopted to varying degrees across Scotland (para 1.3.4). The RDSG provides a useful insight into the context in which the named person is expected to operate. It explains that wellbeing is multidimensional (para 2.3.4) and that wellbeing is a broader, more holistic concept than welfare (para 2.3.5). It advises on the relationship between child protection and wellbeing in these terms at para 2.3.6: child protection is not something which sits separately from wellbeing. Indeed a series of low level indicators of wellbeing need (whether obviously related or not) taken together can amount to a child protection issue. Child protection requires taking prompt action to safeguard a child where an assessment indicates that the child may be at risk of significant harm. The childs wider wellbeing should also be assessed to ensure their current and future holistic needs are considered. In para 2.4.2, it gives guidance on the interpretation of the eight wellbeing indicators in section 96(2) as follows: Safe protected from abuse, neglect or harm at home, at school and in the community. Healthy having the highest attainable standards of physical and mental health, access to suitable healthcare, and support in learning to make healthy, safe choices. Achieving being supported and guided in learning and in the development of skills, confidence and self esteem, at home, in school and in the community. Nurtured having a nurturing place to live in a family setting, with additional help if needed, or, where this is not possible, in a suitable care setting. Active having opportunities to take part in activities such as play, recreation and sport, which contribute to healthy growth and development, at home, in school and in the community. Respected having the opportunity, along with carers, to be heard and involved in decisions that affect them. Responsible having opportunities and encouragement to play active and responsible roles at home, in school and in the community, and where necessary, having appropriate guidance and supervision, and being involved in decisions that affect them. Included having help to overcome social, educational, physical and economic inequalities, and being accepted as part of the community in which they live and learn. The RDSG observes (at para 2.5.4) that the views of the child, young person or parents may differ from the practitioners view of wellbeing needs and states that a holistic assessment should take account of all views. It recognises that children can thrive in different environments and counsels respect for their and their parents culture and beliefs (para 2.5.5). It advises that a referral to the Childrens Reporter should be made where the wellbeing assessment reveals that a child needs protection, guidance, treatment or control and that a compulsory supervision order might be needed (para 2.5.6). It continues (at para 2.5.7): Early intervention and a compulsory supervision order are not mutually exclusive in promoting, supporting and safeguarding the wellbeing of a child or young person. The use of compulsion at an early stage may help to ensure compliance with interventions, and prevent wellbeing needs escalating. Parental capacity and willingness to change should be considered in order to assess whether the childs wellbeing needs are likely to be met by voluntary support or whether a compulsory supervision order might be necessary. A named person, on becoming aware of a wellbeing need, should use professional judgement in deciding how to respond. Seeking and considering the views of the child and parent should be a key part of the process unless doing this is likely to be detrimental to the childs wellbeing (para 4.1.28). The RDSG also gives guidance on the information sharing duties contained in sections 23, 26 and 27 of the Act. It records (para 10.1.2) that Part 4 of the Act does not change the type of information being shared and received by service providers and relevant authorities but expresses the view that the Act will increase consistency in practice which in turn is likely to mean that more information will be shared. It advises that the Information Commissioners Office (ICO) Guide to Data Protection and its Data Sharing Code of Practice should be used to support the governance of data sharing (para 10.1.4). On article 8 of the European Convention on Human Rights (ECHR) it states (para 10.3.1): The right to privacy in article 8 is a qualified rather than an absolute right. Public authorities can share information if it is lawful and proportionate to do so, but each case must be considered carefully to assess what is lawful and proportionate in the particular circumstances. The RDSG refers to the three tests for the sharing of information in section 26(2) and (4), namely (i) that the information is likely to be relevant to the exercise of the functions in question, (ii) that it ought to be provided for that purpose, and (iii) that the sharing of the information would not prejudice the conduct of a criminal investigation or the prosecution of any offence. In its discussion of the second test (para 10.7.4) it states: It is routine good practice to seek parents views about information shared, unless it would be against the childs wishes, where they are considered capable of making that decision, or where seeking the views of the parent may be detrimental to the childs wellbeing. It states that in all but exceptional situations, the child or young person, and, as appropriate, their parents will be involved in the decision to share information (para 10.10.3) (emphasis added). It does not make the involvement of the parents a requirement in all but exceptional circumstances. It says, without elaborating, that there must be no other legal restrictions (paras 10.7.1 and 10.8.1). It explains the discretionary power of a named person service provider to share information under section 26(8) and (9) in para 10.11: where the named person service has identified a wellbeing need or has been made aware of a likely wellbeing need they have the opportunity to share information in order to explore options for support or to make enquiries on behalf of the child, young person or parents. It states in relation to this discretionary sharing of information (para 10.11.2): Any information shared must be legal and considered in terms of the principles and boundaries of data protection, human rights and childrens rights, again without elaboration. It explains section 26(11) in these terms (paras 10.13.2 10.13.4): This sub section of the Act permits health professionals and others governed by a professional or common law duty of confidentiality to legally disclose relevant information without the information providers consent where disclosure of that information has been considered and meets the tests set out in the relevant sub sections of section 26. Section 26(11) does not permit or require the sharing of information in breach of any other legal restriction such as the [Data Protection Act 1998 (DPA)], the Human Rights Act 1998, an order of the court or a decision by a Childrens Hearing specifying non disclosure of specific information. In all but exceptional situations, the child or young person, and as appropriate their parents, will be involved in the decision to share information and will be told what information has been shared in breach of a duty of confidentiality. (emphasis added) Finally, the RDSGs guidance on section 27 (disclosure of information provided in breach of confidentiality) is as follows (para 10.14.2): If the person receiving the information believes it is necessary to share all or part of it in order to promote, support or safeguard the childs wellbeing, then the considerations in section 26 must be applied. This would include taking into account the childs views and understanding the likely effect of sharing on the childs wellbeing. Other legal requirements must also be considered, including the DPA and the childs right to private and family life under article 8 of the ECHR. Decisions to share information in these situations will need to be evidenced, and the rationale recorded. (emphasis added) The reserved matters challenge The challenges to legislative competence Section 29(1) of the Scotland Act 1998 provides that an Act of the Scottish Parliament is not law so far as any provision of the Act is outside its legislative competence. In terms of section 29(2), a provision is outside its competence so far as any of the following paragraphs apply. Paragraph (b) applies where the provision relates to reserved matters. We address that challenge in section I (paras 27 to 66 below). Paragraph (d) applies where the provision is incompatible with any of the Convention rights or with EU law. We address the Convention rights challenge and comment briefly on the EU law challenge in sections II and III (paras 67 to 105 below). The appellants are four registered charities with an interest in family matters and three individual parents. They challenge the lawfulness of the data sharing and retention provisions in the Act on the ground that they relate to reserved matters, with the consequence that section 29(2)(b) of the Scotland Act applies. They have focused on sections 26 and 27 of the 2014 Act, but their arguments apply also in relation to section 23(2). In terms of section 29(3) of the Scotland Act, the question whether a provision relates to a reserved matter is to be determined (subject to subsection (4), which has no bearing on the present case) by reference to the purpose of the provision, having regard (among other things) to its effect in all the circumstances. Section 30 of the Scotland Act gives effect to Schedule 5, in which reserved matters are defined. In particular, paragraph 1 of Part II of Schedule 5 provides that the matters to which the Sections in that Part apply are reserved matters. As was pointed out by Lord Hope in Imperial Tobacco Ltd v Lord Advocate [2012] UKSC 61; 2013 SC (UKSC) 153, in a judgment with which the other members of the court agreed, the matters listed have a common theme: It is that matters in which the United Kingdom as a whole has an interest should continue to be the responsibility of the UK Parliament at Westminster. They include matters which are affected by its treaty obligations and matters that are designed to ensure that there is a single market within the United Kingdom for the free movement of goods and services. (para 29) Amongst the matters listed in Schedule 5 is Section B2: B2. Data protection The subject matter of the Data Protection Act 1998, and (a) (b) Council Directive 95/46/EC (protection of individuals with regard to the processing of personal data and on the free movement of such data). Paragraph 5 of Part III of Schedule 5 provides that references in the schedule to the subject matter of any enactment are to be read as references to the subject matter of that enactment as it had effect on the principal appointed day, which was 1 July 1999. It is therefore the version of the Data Protection Act (DPA) which was in force on that date which is relevant. This court has had to apply section 29(2)(b) and (3) on a number of occasions, and the approach to be adopted is now well established. In Martin v Most [2010] UKSC 10; 2010 SC (UKSC) 40, para 49, Lord Walker said that the expression relates to was familiar in this sort of context, indicating more than a loose or consequential connection, and the language of section 29(3), referring to a provisions purpose and effect, reinforces that. That approach was endorsed by Lord Hope in Imperial Tobacco (para 16). Whether a provision relates to a reserved matter, in the sense explained by Lord Walker, is determined by reference to the purpose of the provision in question. That purpose is to be ascertained having regard to the effect of the provision, amongst other relevant matters. As was said in relation to the similar provisions in the Government of Wales Act 2006 in In re Agricultural Sector (Wales) Bill [2014] UKSC 43; [2014] 1 WLR 2622, para 50: As the section requires the purpose of the provision to be examined it is necessary to look not merely at what can be discerned from an objective consideration of the effect of its terms. Determining the purpose of a provision may not be an easy matter. For example, must a single predominant purpose be identified, or will the provision relate to a reserved matter provided one purpose which can properly be attributed to it justifies that conclusion? That question was considered, obiter, by Lord Hope in Imperial Tobacco. The legislation in issue imposed restrictions upon the advertising and sale of tobacco products, and was challenged as relating to reserved matters, namely consumer protection and product safety. Lord Hope stated: I do not see this as a case which gives rise to the problem which may need to be dealt with if the provision in question has two or more purposes, one of which relates to a reserved matter. In such a situation the fact that one of its purposes relates to a reserved matter will mean that the provision is outside competence, unless the purpose can be regarded as consequential and thus of no real significance when regard is had to what the provision overall seeks to achieve. (para 43) This approach should not be confused with the pith and substance test developed to resolve problems in a number of federal systems, to which the Court of Session referred in the present case. Although in Martin v Most Lord Hope mentioned cases applying that test as forming part of the background to the scheme applied in the Scotland Act, he went on to point out that the phrase did not appear in the Act, and that the rules which had to be applied were those laid down in the Act (para 15). In Imperial Tobacco, Lord Hope emphasised the latter point: [T]he intention was that it was to the 1998 Act itself, not to decisions as to how the problem was handled in other jurisdictions, that one should look for guidance. So it is to the rules that the 1998 Act lays down that the court must address its attention. (para 13) So, in the present case, the Second Divisions finding that the pith and substance of the 2014 Act are child protection does not answer the question whether any of its provisions relate to the subject matter of the DPA and Directive 95/46/EC (the Directive). It is necessary only to add that the question whether a provision of an Act of the Scottish Parliament relates to a reserved matter is different from the question whether such a provision modifies the law on reserved matters. The latter question is addressed by section 29(2)(c) of the Scotland Act and Schedule 4, paragraph 2. The subject matter of the Directive The Directive was made under article 100a of the EC Treaty, which authorises measures for the harmonisation of national laws with the aim of achieving the internal market. The subject matter of the Directive is described in general terms in its title: it is a directive on the protection of individuals with regard to the processing of personal data, and the free movement of such data. The link between these two subjects is explained in the recitals. In particular, recital 7 states that the difference in levels of protection of the rights and freedoms of individuals, notably the right to privacy, with regard to the processing of personal data afforded in the member states may . constitute an obstacle to the pursuit of a number of economic activities at Community level, distort competition and impede authorities in the discharge of their responsibilities under Community law. The recital continues by noting that this difference in levels of protection is due to the existence of a wide variety of national laws, regulations and administrative provisions. Accordingly, recital 8 states that in order to remove the obstacles to flows of personal data, the level of protection of the rights and freedoms of individuals with regard to the processing of such data must be equivalent in all member states. The intended result, as recital 9 states, is that given the equivalent protection resulting from the approximation of national laws, the member states will no longer be able to inhibit the free movement between them of personal data on grounds relating to protection of the rights and freedoms of individuals, and in particular the right to privacy. The scope of application of the Directive is not, however, restricted to situations involving free movement: Bodil Lindquist (Case C 101/01) [2003] ECR I 12971, paras 40 44. Turning to the substantive articles of the Directive, Chapter I sets out general provisions. In particular, article 1 defines the twofold object of the Directive: In accordance with this Directive, member states shall 1. protect the fundamental rights and freedoms of natural persons, and in particular their right to privacy with respect to the processing of personal data. 2. Member states shall neither restrict nor prohibit the free flow of personal data between member states for reasons connected with the protection afforded under paragraph 1. Article 2 defines certain terms, and article 3 describes the scope of the Directive. In terms of article 3(1), it applies to the processing of personal data wholly or partly by automatic means, and to the processing otherwise than by automatic means of personal data which form part of a filing system or are intended to form part of a filing system. Personal data is defined by article 2(a) as meaning any information relating to an identified or identifiable natural person (data subject). Processing of personal data is defined by article 2(b) as meaning any operation or set of operations which is performed upon personal data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction. Article 3(2) lists certain circumstances in which the Directive is not to apply. It has not been argued that any of those circumstances applies in the present case. Chapter II sets out general rules on the lawfulness of the processing of personal data. Article 5 requires member states, within the limits of the provisions of that Chapter, to determine more precisely the conditions under which the processing of personal data is lawful. Article 6 sets out five general principles, somewhat misleadingly described as principles relating to data quality, to which member states must give effect. For example, the second principle is that personal data must be collected for specified, explicit and legitimate purposes and not further processed in a way incompatible with those purposes. Article 7 sets out six general conditions, described as criteria for making data processing legitimate, which member states must apply to the processing of personal data, so that at least one of the conditions is satisfied. Article 8 sets out particular rules in relation to the processing of what are described as special categories of data, including data revealing racial or ethnic origins, and data concerning health or sex life. Article 8(1) requires member states to prohibit the processing of such data. The remaining paragraphs of article 8 then disapply article 8(1) in a number of specified circumstances, to which it will be necessary to return. Articles 10 and 11 require member states to provide that the data controller must provide the data subject with information about the processing of his personal data. Article 12 requires member states to guarantee certain rights of data subjects in relation to data controllers. Article 13 permits member states to adopt legislation restricting the scope of certain of these rights and obligations where specified conditions are met. Article 14 requires member states to grant the data subject the right to object to the processing of his personal data in certain circumstances. Most of the remaining provisions of Chapter II are concerned with the regulation of data controllers. Chapter III is concerned with judicial remedies, liability, and sanctions. Chapter IV is concerned with the transfer of personal data to third countries. Chapter V is concerned with codes of conduct, and Chapter VI with the establishment of national supervisory authorities and of an EU working party. Finally, Chapter VII is concerned with Community implementing measures. Put shortly, therefore, the Directive was designed to harmonise the laws of the member states relating to the protection of individuals interests in relation to the use of their personal data. Its provisions specify the standards of protection which the laws of the member states must afford, and the methods by which those standards are to be secured and enforced. The subject matter of the DPA The DPA is the measure implementing the Directive in the UK. One would therefore expect its subject matter to be the same as that of the Directive, and so it proves. The subject matter of the DPA is described in general terms in its short title: the regulation of the processing of information relating to individuals, including the obtaining, holding, use or disclosure of such information. Part I of the DPA defines some of the critical terms, broadly following the definitions in the Directive. Part I also contains some other fundamental provisions of the DPA. Section 4 imposes on a data controller an obligation to comply with the data protection principles set out in Part I of Schedule 1, to which it will be necessary to return. Section 6 establishes the office of Information Commissioner, known in 1999 (cf para 28 above) as the Data Protection Commissioner. Part II of the DPA confers various rights on individuals relating to information concerning themselves, including rights to access personal data (section 7), to prevent processing which is likely to cause damage or distress (section 10), and to apply for the rectification or destruction of inaccurate data (section 14). Part III contains provisions relating to the regulation of data controllers by the Commissioner. Part IV makes provision for exemptions from the data protection principles, and from Parts II and III. Part V concerns enforcement by the Commissioner, and Part VI contains miscellaneous and general provisions. It is apparent that the DPA is intended to secure equivalent standards of protection of the rights of individuals in relation to the processing of personal data throughout the UK, and equivalent methods of securing and enforcing those standards. That is as one would expect, given the aims of the Directive. Accordingly, the DPA applies to data controllers throughout the UK: section 5. It establishes a single regulatory authority for the whole of the UK: section 6. (Somewhat confusingly, a separate Scottish Information Commissioner exercises functions under the Freedom of Information (Scotland) Act 2002, but has no regulatory role in relation to data protection). The Commissioner is the designated authority in the UK for the purposes of the 1981 Council of Europe Convention for the Protection of Individuals with regard to Automatic Processing of Personal Data, and is also the supervisory authority in the UK for the purposes of the Directive: section 54(1). He is accountable to the UK Parliament, and must lay before it reports and codes of practice: section 52. His accounts are examined by the Comptroller and Auditor General: Schedule 5, Part I, paragraph 10. His power to issue codes of practice is exercisable as directed by the Secretary of State: section 51(3). The powers to make orders, regulations and rules under the DPA are exercisable only by the Secretary of State, and only by means of a statutory instrument approved by the UK Parliament: see, for example, sections 30, 38, 54, 64 and 67. The power to designate codes of practice, for the purpose of exemptions relating to journalism, literature and art, is similarly conferred on the Secretary of State: section 32(3). Appeals under the DPA lie to the First tier and Upper Tribunals (in 1999, to the Data Protection Tribunal) throughout the UK: section 70(1). The DPA allows scope for derogation from certain of its requirements by enactments either of the UK Parliament or of the Scottish Parliament. An example relevant to the present case, to which it will be necessary to return, is section 35(1), under which personal data are exempt from certain provisions relating to the disclosure of information where the disclosure is required by or under any enactment, an expression which is defined by section 70(1) as including any enactment comprised in, or in any instrument made under, an Act of the Scottish Parliament. Put shortly, therefore, the DPA was designed to implement the Directive by establishing standards of protection of individuals interests in relation to the use of their personal data, and methods by which those standards are to be secured and enforced, which are equivalent in effect throughout the UK. In particular, it imposes obligations on data controllers in relation to the processing of data, and creates rights on the part of data subjects. It also creates a system for the regulation of data controllers by the Commissioner. It allows scope, however, for derogation from certain of its requirements by legislation which need not be UK wide in application. The effect of Part 4 of the 2014 Act in relation to the DPA The bodies described in Part 4 of the 2014 Act as service providers, relevant authorities and directing authorities are currently subject, prior to the entry into force of that Act, to a variety of legal duties in relation to the disclosure of information, including duties imposed by the DPA. In particular, as mentioned earlier, section 4 of that Act imposes on a data controller an obligation to comply with the data protection principles set out in Part I of Schedule 1. Those principles include the following: 1. Personal data shall be processed fairly and lawfully and, in particular, shall not be processed unless at least one of the conditions in Schedule 2 is met, (a) and in the case of sensitive personal data, at least one (b) of the conditions in Schedule 3 is also met. 2. Personal data shall be obtained only for one or more specified and lawful purposes, and shall not be further processed in any manner incompatible with that purpose or those purposes. 3. Personal data shall be adequate, relevant and not excessive in relation to the purpose or purposes for which they are processed. Section 2 of the DPA defines sensitive personal data as including (amongst other matters) information as to a persons racial or ethnic origins, his physical or mental health or condition, his sexual life, or the commission or alleged commission by him of any offence. Those principles are supplemented by the provisions of Part II of Schedule 1 to the DPA, which indicate how they are to be interpreted. For example, Part II contains provisions specifying circumstances in which a data subject is to be provided with information, and the nature of that information, in order for the data to be regarded as having been processed fairly for the purposes of the first principle. In relation to the conditions referred to in the first principle, Schedule 2 sets out the following conditions, so far as material to the present case: 1. The data subject has given his consent to the processing. 3. The processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. 4. The processing is necessary in order to protect the vital interests of the data subject. 5. The processing is necessary . for the exercise of any functions conferred on any (b) person by or under any enactment . 6. (1) The processing is necessary for the purposes of legitimate interests pursued by the data controller or by the third party or parties to whom the data are disclosed, except where the processing is unwarranted in any particular case by reason of prejudice to the rights and freedoms or legitimate interests of the data subject. It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland can disclose information about a child or young person without her consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary to protect her vital interests (condition 4), a test which requires more than that it is likely to benefit her wellbeing; or if the disclosure is necessary for the exercise of a statutory function (condition 5(b)), but not merely because it considers that the information is likely to be relevant to the exercise of that function. The data controller is also, of course, obliged to comply with the other data protection principles so far as relevant, and with any requirements arising from Part II of Schedule 1. In particular, it is required to comply with the third data protection principle, in terms of which personal data must be relevant (and not merely considered by the data controller to be likely to be relevant) in relation to the purpose or purposes for which they are processed. conditions, so far as material: In relation to sensitive data, Schedule 3 sets out the following additional 1. The data subject has given his explicit consent to the processing of the personal data. 3. The processing is necessary in order to protect the vital interests of the data (a) subject or another person, in a case where consent cannot be given by or on behalf of (i) the data subject, or (ii) the data controller cannot reasonably be expected to obtain the consent of the data subject, or in order to protect the vital interests of another (b) person, in a case where consent by or on behalf of the data subject has been unreasonably withheld. 7. (1) The processing is necessary for the exercise of any functions conferred on any (b) person by or under an enactment . 8. The processing is necessary for medical purposes and is undertaken by a health professional, or (a) (b) a person who in the circumstances owes a duty of confidentiality which is equivalent to that which would arise if that person were a health professional. It follows from those conditions that, prior to the entry into force of the 2014 Act, a data controller in Scotland of sensitive data can disclose information about the health or sexual life of a child or young person, without his or her explicit consent (assuming, in the case of a statutory body, that the disclosure is otherwise within its powers), if the disclosure is necessary in order to protect his or her vital interests (and not merely because it is likely to benefit her wellbeing) and, in addition, it is either impossible for him or her to give consent or the data controller cannot reasonably be expected to obtain it (condition 3). The information can also be disclosed if its disclosure is necessary for the exercise of a statutory function (condition 7(1)(b)), but not merely because the data controller considers that the information is likely be relevant to the exercise of that function. It can also be disclosed for medical purposes, but only where a duty of confidentiality is owed (condition 8): a requirement which gives rise to a difficulty (not discussed in this appeal) where disclosure is liable to be made under Part 4 of the 2014 Act, since sections 23(7) and 26(11) of the 2014 Act override duties of confidentiality. It is in addition necessary to comply with the other data protection principles, and with any requirements arising from Part II of Schedule 1. The effect of Part 4 of the 2014 Act on the requirements of the DPA is extremely complex. Numerous difficult questions are liable to arise, which were not discussed in detail, if at all, in the present appeal. A sufficient idea of the effect of Part 4 can, however, be obtained to enable the issue arising in relation to reserved matters to be determined. It may be helpful to explain at the outset that much of the difficulty arises from sections 23(7) and 26(11) of the 2014 Act, in terms of which sections 23 and 26 do not permit or authorise the provision of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment or rule of law (other than in relation to a duty of confidentiality). This means that the powers and duties of disclosure set out in sections 23 and 26 cannot be taken at face value. To the extent that their terms may be inconsistent with the requirements of the DPA, they have no effect. The DPA itself, however, contains provisions which confer exemptions from some of its requirements where they are inconsistent with another enactment, or which treat some of its requirements as satisfied where disclosure is necessary for compliance with a statutory obligation. In these circumstances, it is necessary for anyone wanting to understand the effect of sections 23 and 26 on the disclosure of information to have the 2014 Act in one hand and the DPA in the other, to determine the priority which their provisions have vis vis one another notwithstanding the logical puzzle created by sections 23(7) and 26(11) of the 2014 Act when read with the DPA, and to try, by cross reference, to work out their cumulative effect. One potentially significant effect follows from section 35(1) of the DPA, in terms of which personal data are exempt from the non disclosure provisions where the disclosure is required by or under any enactment. A provision of an Act of the Scottish Parliament is an enactment for this purpose: section 70(1). The non disclosure provisions are defined by section 27(3) of the DPA as meaning the provisions specified in section 27(4) of that Act, to the extent to which they are inconsistent with the disclosure in question. Those provisions are the first data protection principle, except to the extent to which it requires compliance with the conditions in Schedules 2 and 3, the second, third, fourth and fifth data protection principles, section 10 (the right to prevent processing likely to cause damage or distress) and section 14(1) to (3) (the rectification, blocking, erasure and destruction of data). Sections 23(2), 26(1) and 26(3) of the 2014 Act require the disclosure of personal data, subject to sections 23(7) and 26(11). Accordingly, if those provisions are within devolved competence, and if the logical puzzle as to whether section 35(1) of the DPA prevails over sections 23(7) and 26(11) of the 2014 Act is resolved in favour of section 35(1) (a point which was not the subject of argument in this appeal, but was the implicit basis on which the arguments proceeded), then it follows that disclosure as required by sections 23 and 26 is exempt from the non disclosure provisions, as defined, to the extent that the non disclosure provisions are inconsistent with the disclosure. For example, the third data protection principle is inconsistent with the disclosure required by sections 23(2), 26(1) and 26(3) of the 2014 Act, since those provisions require disclosure of information which is considered by the data processor to be likely to be relevant, whereas the third principle requires any personal data disclosed to be relevant, as well as adequate and not excessive in relation to the purpose or purposes for which they are processed. On the other hand, the fifth principle (that data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes) is not inconsistent with sections 23 and 26 of the 2014 Act, and therefore continues to apply. The duties of disclosure imposed by sections 23 and 26 remain subject to numerous other provisions of the DPA, including the first data protection principle, to the extent to which it requires compliance with the conditions in Schedules 2 and 3. The power conferred by section 26(8) of the 2014 Act, on the other hand, does not require disclosure, and therefore cannot benefit from the exemption conferred by section 35(1) of the DPA. The discussion in this appeal focused on only one aspect of the complex inter relationship between Part 4 of the 2014 Act and the DPA, namely the question whether disclosure in accordance with the duties imposed by Part 4 of the 2014 Act would comply with the conditions imposed by Schedules 2 and 3 to the DPA. It was argued on behalf of the Ministers that conditions 3 and 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, would be met. Condition 3 is satisfied where the processing is necessary for compliance with any legal obligation to which the data controller is subject, other than an obligation imposed by contract. Condition 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, are satisfied where the processing is necessary . for the exercise of any functions conferred on any person by or under any [or an] enactment. The imposition of a statutory duty of disclosure by sections 23(2), 26(1) and 26(3) of the 2014 Act has the consequence that condition 3 in Schedule 2 to the DPA is satisfied. The terms in which that duty is imposed do not, on the other hand, meet the requirements of condition 5(b) in Schedule 2 and condition 7(1)(b) in Schedule 3. In each case, the data controller is required by the 2014 Act to disclose personal data to a third party if he considers that the data are likely to be relevant to the exercise of certain statutory functions by the third party and ought to be provided for that purpose. The test imposed by condition 5(b) in Schedule 2 and condition 7(1)(b) in Schedule 3 to the DPA requires that disclosure must be necessary for the exercise of statutory functions (which must again refer to the functions of the person to whom the disclosure is made, given that section 35(1), read with section 27, requires that a data processor who is under a statutory duty to make the disclosure must comply with Schedules 2 and 3: a requirement which would be pointless if it were met ex hypothesi). The meaning of necessary was considered by this court in South Lanarkshire Council v Scottish Information Comr [2013] UKSC 55; 2014 SC (UKSC) 1; [2013] 1 WLR 2421. As was explained there at paras 25 27, it is an expression whose meaning depends on the context in which it falls to be applied. Where the disclosure of information constitutes an interference with rights protected by article 8 of the ECHR, as in the present context (as explained at paras 75 77 below), the requirement that disclosure is necessary forms part of a proportionality test: the disclosure must involve the least interference with the right to respect for private and family life which is required for the achievement of the legitimate aim pursued. Disclosure where the data processor considers that the information is likely to be relevant cannot be regarded as necessary if the legitimate aim could be achieved by something less. It cannot be necessary, in that sense, to disclose information merely on the ground that it is objectively relevant, let alone on the ground that a particular body considers that it is likely to be relevant. Relevance is a relatively low threshold: information may be relevant but of little significance. A test of potential relevance fails to recognise the need to weigh the importance of the disclosure in achieving a legitimate aim against the importance of the interference with the individuals right to respect for her private and family life. That deficiency is not made good by the requirement that the data controller considers that the information ought to be provided. It will be necessary to return to the question of proportionality when we consider the challenge to the legislation under article 8. So far as the power conferred by section 26(8) is concerned, a data controller may disclose information to a third party if he considers that to do so is necessary or expedient for the purpose of the exercise of any of the named person functions. Those conditions are less demanding than any of the conditions in Schedules 2 and 3 to the DPA that are relied on by the Ministers. Condition 3 in Schedule 2 is not satisfied, since the disclosure does not have to be necessary for compliance with any legal obligation imposed on the data controller. Condition 5(b) in Schedule 2, and condition 7(1)(b) in Schedule 3, are not satisfied, since the processing does not have to be necessary for the exercise of any of the named person functions. Nor is the third data protection principle met, since there is no requirement that the information should be relevant. The first data protection principle is therefore complied with, in so far as the duties of disclosure imposed by Part 4 of the 2014 Act apply to non sensitive data, but not in so far as they apply to sensitive data or in so far as Part 4 confers a power to disclose information rather than imposing a duty. Sections 23(7) and 26(11) therefore apply, with the consequence that the duties imposed by sections 23(2), 26(1) and 26(3) in respect of sensitive data, and the power conferred by section 26(8) in respect of data of all kinds, cannot be taken at face value. Instead, the duties imposed by sections 23(2), 26(1) and 26(3) in respect of sensitive data must be understood as being conditional upon compliance with at least one of the conditions in Schedule 3 to the DPA, and therefore as being subject to more stringent criteria than those which appear on the face of the 2014 Act. The power conferred by section 26(8) must likewise be understood as being conditional upon compliance with at least one of the conditions in Schedule 2 to the DPA, and also, if the information in question is sensitive data, upon compliance with at least one of the conditions in Schedule 3. In addition, it is subject to compliance with the requirements arising in relation to the first data protection principle under Part II of Schedule 1 to the DPA, and also to compliance with the other data protection principles and the other duties imposed by the DPA. The effect of Part 4 of the 2014 Act in relation to the Directive As explained earlier, the Directive requires member states to establish a number of principles relating to the processing of data, which find their counterpart in the data protection principles laid down in the DPA. The principles set out in the Directive are complex and raise numerous issues of interpretation, like their UK counterparts. For present purposes, it is sufficient to focus on the provisions corresponding to Schedules 2 and 3 to the DPA. As explained earlier, article 7 sets out six general criteria which member states must apply to the processing of personal data, so that at least one of the criteria is satisfied. The criteria which the Ministers maintain are satisfied by the terms of Part 4 of the 2014 Act are the following: (c) processing is necessary for compliance with a legal obligation to which the controller is subject; or . (e) processing is necessary for the performance of a task carried out in the public interest or in the exercise of official authority vested in the controller or in a third party to whom the data are disclosed. These criteria are almost identical to those set out in conditions 3 and 5(b) in Schedule 2 to the DPA. For the reasons explained earlier, sections 23(2), 26(1) and 26(3) meet the requirements of criterion (c), but section 26(8) does not meet the requirements of any of the criteria. As explained earlier, article 8(2) permits specified exemptions from the general prohibition imposed by article 8(1) on the processing of personal data revealing racial or ethnic origin, political opinions, religious or philosophical beliefs, trade union membership, and the processing of data concerning health or sex life. The exemptions, so far as potentially relevant, are as follows: (a) the data subject has given his explicit consent to the processing of those data, except where the laws of the member state provide that the prohibition referred to in paragraph 1 may not be lifted by the data subjects giving his consent; or . (c) processing is necessary to protect the vital interests of the data subject or of another person where the data subject is physically or legally incapable of giving his consent. Article 8(3) disapplies the prohibition in article 8(1) where processing of the data is required for the purposes of preventive medicine, medical diagnosis, the provision of care or treatment or the management of health care services, and where those data are processed by a health professional subject . to the obligation of professional secrecy or by another person also subject to an equivalent obligation of secrecy. Article 8(4) of the Directive permits member states to lay down additional exemptions for reasons of substantial public interest, subject to the provision of suitable safeguards. Any such additional exemptions must be notified to the Commission. Sections 23(2) and 26(1), (3) and (8) of the 2014 Act do not meet the requirements of the exemptions in article 8(2). The provisions of Part 4 of the 2014 Act have not been notified to the Commission, and it is not suggested that there has been any other relevant notification. Nor has it been argued that the provisions of Part 4 would meet the other requirements of article 8(4). It follows for this reason also that, applying sections 23(7) and 26(11), sections 23 and 26 cannot be taken at face value. The performance of the powers and duties created by those provisions, in respect of data falling within the scope of article 8, must be understood as being permissible only where either one of the exemptions listed in article 8(2) applies, or the processing falls within the scope of article 8(3). Discussion Does it follow, for the purposes of Section B2 of Schedule 5 to the Scotland Act, that any of the provisions of Part 4 of the 2014 Act relate to the subject matter of the DPA and the Directive? The fact that a provision of an Act of the Scottish Parliament requires or authorises the disclosure of personal data does not in itself mean that the provision is outside legislative competence: as explained earlier, the DPA envisages in section 35(1), read with section 70(1), that the disclosure of personal data may be required by an enactment comprised in an Act of the Scottish Parliament. In view of that provision, the Scotland Act cannot sensibly be interpreted as meaning that an enactment relates to the subject matter of the DPA, and is therefore outside the powers of the Scottish Parliament, merely because it requires or authorises the disclosure of personal data. On the other hand, an enactment does not have to modify the DPA in order to relate to the subject matter of that Act. That follows from the distinction between section 29(2)(b) and (c) of the Scotland Act. The question whether an enactment relates to the subject matter of the DPA and the Directive has to be decided by following the approach described in paras 29 to 31 above. Following that approach, it was argued on behalf of the Ministers that the purpose of Part 4 is to promote the wellbeing of children and young people, and that the provisions concerning the processing of personal data are merely consequential upon, or incidental to, that purpose. It is true that the ultimate aim of Part 4 is to promote the wellbeing of children and young people. Its more specific objective is to alter the institutional arrangements, and the legal structure of powers and duties, governing cooperation between the different agencies which deal with children and young people, so that they work collaboratively, with the named person playing a coordinating role. That objective reflects the concern, noted in the background material to the 2014 Act, that a weakness in the existing arrangements was that information was not shared until the stage had been reached where a child or young person was at risk of harm. Part 4 is designed to address that concern by ensuring that information is shared between the relevant agencies, and acted on where appropriate, before that stage is reached. Accordingly, although Part 4 contains provisions whose objective is to ensure that information relating to children and young people is shared, that objective is not truly distinct from the overall purpose of promoting their wellbeing, but can be regarded as consequential upon it. It is also important to bear in mind the central aim of the provisions in the Scotland Act concerning reserved matters, explained at para 28 above: that matters in which the UK as a whole has an interest should continue to be the responsibility of the UK Parliament. As explained at para 44 above, the DPA deals with matters in which the UK as a whole has an interest, because it implements the Directive, in accordance with the UKs treaty obligations, by establishing standards of protection of individuals interests in relation to the use of their personal data, and methods by which those standards are to be secured and enforced, which are equivalent in effect throughout the UK. But it also, in section 35 and elsewhere, leaves scope for derogation from certain of its requirements by the UK Parliament and by the Scottish Parliament. To the extent that Part 4 of the 2014 Act affects the way in which the data protection regime under the DPA applies to matters falling within its scope, that possibility is contemplated by the DPA itself, in section 35. Part 4 does not detract from the regime established by the DPA and the Directive, even if that is only by reason of the fail safe provisions of sections 23(7) and 26(11). For these reasons, we are not persuaded that the provisions of Part 4 relate to the subject matter of the DPA and the Directive. The appellants challenge the compulsory appointment of a named person as a breach of the rights of the parents of children under article 8 of the ECHR. Article 8 provides: The human rights challenge 1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic wellbeing of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others. The appellants challenge proceeds on both a broad basis and a narrower basis. The broad challenge is that the compulsory appointment of a named person to a child involves a breach of the parents article 8 rights unless the parents have consented to the appointment or the appointment is necessary to protect the child from significant harm. The narrower challenge focusses on the provisions in sections 26 and 27 for the sharing of information about a child. Before the Inner House, the appellants narrower challenge, as recorded by the Lord Justice Clerk, raised article 8 of the ECHR but concentrated on EU law. That was also the appellants focus in this court. The intervener, Community Law Advice Network, challenges only the information sharing provisions, arguing that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the article 8 rights of children and young people. As a result there was more focus on article 8 of the ECHR in the narrower challenge than there had been in the debates both in the Inner House and before the Lord Ordinary. In our view these challenges raise the following four questions: (i) what are the interests which article 8 of ECHR protects in this context, (ii) whether and in what respects the operation of the Act interferes with the article 8 rights of parents or of children and young people, (iii) whether that interference is in accordance with the law, and (iv) whether that interference is proportionate, having regard to the legitimate aim pursued. (i) The interests protected by article 8 In the context of this legislation, the interests protected by article 8 include both family life and privacy. The relationship between parent and child is an integral part of family life. As the European Court of Human Rights (ECtHR) stated in, among others, Olsson v Sweden (No 1) (1988) 11 EHRR 259, [t]he mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life (para 59). Family life also encompasses a broad range of parental rights and responsibilities with regard to the care and upbringing of minor children, enabling parents to take important decisions on their behalf, and article 8 protects the rights of parents to exercise such parental authority: Nielsen v Denmark (1988) 11 EHRR 175, para 61. As is well known, it is proper to look to international instruments, such as the UN Convention on the Rights of the Child 1989 (UNCRC), as aids to the interpretation of the ECHR. The Preamble to the UNCRC states: the family, as the fundamental group of society and the natural environment for the growth and wellbeing of all its members and particularly children, should be afforded the necessary protection and assistance so that it can fully assume its responsibilities within the community. Many articles in the UNCRC acknowledge that it is the right and responsibility of parents to bring up their children. Thus article 3(2) requires States Parties, in their actions to protect a childs wellbeing, to take into account the rights and duties of his or her parents or other individuals legally responsible for him or her; article 5 requires States Parties to respect the responsibilities, rights and duties of parents or, where applicable, other family or community members or others legally responsible for the child to provide appropriate direction and guidance to the child in the exercise of his or her rights under the Convention; article 14(2) makes similar provision in relation to the childs right to freedom of thought, conscience and religion; article 27(2) emphasises that the parents have the primary responsibility to secure, within their abilities and financial capabilities, the conditions of living necessary for the childs development; article 18(1) provides that: States Parties shall use their best efforts to ensure recognition of the principle that both parents have common responsibilities for the upbringing and development of the child. Parents or, as the case may be, legal guardians, have the primary responsibility for the upbringing and development of the child. The best interests of the child will be their basic concern. (Emphasis supplied) Articles 27(3) and 18(2) make it clear that the states role is to assist the parents in carrying out their responsibilities, although article 19(1) requires the state also to take appropriate measures to protect the child from all forms of abuse or neglect. This represents the detailed working out, for children, of the principle established in article 16(3) of the Universal Declaration of Human Rights and article 23(1) of the International Covenant on Civil and Political Rights that the family is the natural and fundamental group unit of society and is entitled to protection by society and the state. There is an inextricable link between the protection of the family and the protection of fundamental freedoms in liberal democracies. The noble concept in article 1 of the Universal Declaration, that all human beings are born free and equal in dignity and rights is premised on difference. If we were all the same, we would not need to guarantee that individual differences should be respected. Justice Barak of the Supreme Court of Israel has put it like this (in El Al Israeli Airlines Ltd v Danielowitz [1992 4] IsrLR 478, para 14): The factual premise is that people are different from one another, no person is completely identical to another Every person is a world in himself. Society is based on people who are different from one another. Only the worst dictatorships try to eradicate these differences. Individual differences are the product of the interplay between the individual person and his upbringing and environment. Different upbringings produce different people. The first thing that a totalitarian regime tries to do is to get at the children, to distance them from the subversive, varied influences of their families, and indoctrinate them in their rulers view of the world. Within limits, families must be left to bring up their children in their own way. As Justice McReynolds, delivering the Opinion of the Supreme Court of the United States famously put it in Pierce v Society of Sisters 268 US 510 (1925), 534 535: The fundamental theory of liberty upon which all governments in this Union repose excludes any general power of the state to standardize its children by forcing them to accept instruction from public teachers only. The child is not the mere creature of the state; those who nurture him and direct his destiny have the right, coupled with the high duty, to recognize and prepare him for additional obligations. Thus it is not surprising that the ECtHR, in Neulinger and Shuruk v Switzerland (2012) 54 EHRR 31, interpreted article 8 in the context, among other instruments, of the UNCRC and explained the concept of the childs best interests in this way: The childs interest comprises two limbs. On the one hand, it dictates that the childs ties with its family must be maintained, except in cases where the family has proved particularly unfit. It follows that family ties may only be severed in very exceptional circumstances and that everything must be done to preserve personal relations and, if and when appropriate, to rebuild the family (see Gnahor, cited above, para 59). On the other hand, it is clearly also in the childs interest to ensure its development in a sound environment, and a parent cannot be entitled under article 8 to have such measures taken as would harm the childs health and development (see, among many other authorities, Elsholz v Germany (2002) 34 EHRR 58 at [50], and Marlek v the Czech Republic, no 8153/04, at [71], 4 April 2006). (para 136) The privacy of a child or young person is also an important interest. Article 16 of the UNCRC provides: 1. No child shall be subjected to arbitrary or unlawful interference with his or her privacy, family, home or correspondence, nor to unlawful attacks on his or her honour and reputation. 2. The child has the right to the protection of the law against such interference or attacks. The concept of private life in article 8 covers the disclosure of personal data, such as information about a persons health, criminal offending, sexual activities or other personal matters. The notion of personal autonomy is an important principle underlying the guarantees of the ECHR. See, for example, Gillan v United Kingdom (2010) 50 EHRR 1105, para 61. Article 8 protects confidential information as an aspect of human autonomy and dignity: Campbell v MGN Ltd [2004] 2 AC 457, Lord Hoffmann paras 50 51, Lady Hale para 134. Thus in Z v Finland (1998) 25 EHRR 371, para 95, a case concerning the disclosure by a court of a persons identity and medical data, the ECtHR stated: the protection of personal data, not least medical data, is of fundamental importance to a persons enjoyment of his or her right to respect for private and family life as guaranteed by article 8 of the Convention. Respecting the confidentiality of health data is a vital principle in the legal systems of all the Contracting Parties to the Convention. It is crucial not only to respect the sense of privacy of a patient but also to preserve his or her confidence in the medical profession and in the health services in general. Without such protection, those in need of medical assistance may be deterred from revealing such information of a personal and intimate nature as may be necessary in order to receive appropriate treatment and, even, from seeking such assistance, thereby endangering their own health and, in the case of transmissible diseases, that of the community. The domestic law must therefore afford appropriate safeguards to prevent any such communication or disclosure of personal health data as may be inconsistent with the guarantees in article 8 of the Convention. (para 95) More recently, in a case concerning a complaint that a hospital had failed to guarantee the security of a persons data against unauthorised access, the ECtHR repeated that statement and again confirmed that the processing of information relating to an individuals private life comes within the scope of article 8 and that personal information relating to a patient undoubtedly belongs to his or her private life: I v Finland (2009) 48 EHRR 740, paras 35 38. Similarly, the Court of Justice of the European Union in X v Commission [1994] ECR I 4347 has opined (para 17) that the right to respect for private life, embodied in article 8, includes in particular a persons right to keep his state of health secret. (ii) Whether Part 4 of the 2014 Act interferes with article 8 rights The provisions of Part 4 of the 2014 Act by which the state may intervene in family life and private life engage article 8. But, while article 8 is engaged, not all that may be done under Part 4 would involve an interference with a persons article 8 rights. There are elements of the role of the named person which are unlikely, by themselves, to involve any interference with the right of a parent, child or young person to respect for his or her private and family life. Thus, by themselves, the functions in section 19(5)(a)(i) and (ii) of providing advice, information and support and helping the parent, child or young person to access a service or support would not normally constitute an interference with the article 8 rights of either the child or his or her parents. But it is clear from the consultation paper, A Scotland for Children and the Policy Memorandum, which we discussed in paras 1 to 3 above, that the sharing of personal data between relevant public authorities is central to the role of the named person. As we have explained, this may well constitute an interference with the article 8 rights of those to whom the information relates. We are therefore satisfied that the operation of the information sharing provisions of Part 4 (in particular, sections 23, 26 and 27) will result in interferences with rights protected by article 8 of the ECHR. The question therefore arises whether such interferences can be justified under article 8(2). (iii) In accordance with the law In order to be in accordance with the law under article 8(2), the measure must not only have some basis in domestic law which it has in the provisions of the Act of the Scottish Parliament but also be accessible to the person concerned and foreseeable as to its effects. These qualitative requirements of accessibility and foreseeability have two elements. First, a rule must be formulated with sufficient precision to enable any individual if need be with appropriate advice to regulate his or her conduct: Sunday Times v United Kingdom (1979) 2 EHRR 245, para 49; Gillan v United Kingdom (2010) 50 EHRR 1105, para 76. Secondly, it must be sufficiently precise to give legal protection against arbitrariness: it must afford a measure of legal protection against arbitrary interferences by public authorities with the rights safeguarded by the Convention. In matters affecting fundamental rights it would be contrary to the rule of law for a legal discretion granted to the executive to be expressed in terms of an unfettered power. Consequently, the law must indicate with sufficient clarity the scope of any discretion conferred on the competent authorities and the manner of its exercise. The level of precision required of domestic legislation which cannot in any case provide for every eventuality depends to a considerable degree on the content of the instrument in question, the field it is designed to cover and the number and status of those to whom it is addressed. Gillan v United Kingdom, para 77; Peruzzo v Germany (2013) 57 EHRR SE 17, para 35. Recently, in R (T) v Chief Constable of Greater Manchester Police [2015] AC 49 this court has explained that the obligation to give protection against arbitrary interference requires that there must be safeguards which have the effect of enabling the proportionality of the interference to be adequately examined. This is an issue of the rule of law and is not a matter on which national authorities are given a margin of appreciation. In deciding whether there is sufficient foreseeability to allow a person to regulate his or her conduct and sufficient safeguards against arbitrary interference with fundamental rights, the court can look not only at formal legislation but also at published official guidance and codes of conduct: Silver v United Kingdom (1983) 5 EHRR 347 (paras 88 90); Gillan v United Kingdom (paras 35, 36 and 78) and MM v United Kingdom (Application no 24029/07). In R (Roberts) v Comr of Police of the Metropolis [2015] UKSC 79; [2016] 1 WLR 210 this court took into account as constraints on the power of the police to stop and search not only the limits on that power in section 60 of the Criminal Justice and Public Order Act 1994 and the legal protection provided by both section 6 of the Human Rights Act 1998 and the Equality Act 2010, but also the requirements of the Metropolitan Polices Standard Operating Procedures. That statutory document, which was published on the Metropolitan Polices website, regulated the authorisation of stop and search, the operation and also the individual encounter between a police officer and a member of the public on the street. In relation to the exercise on the street of the stop and search power it not only gave officers detailed instructions, which were designed to ensure their proportionate use of such power, but also required them to explain to the individual who was to be searched the reason for the search, to record that reason in writing and make available to the affected individual a copy of that written record. These provided adequate safeguards to enable the courts to examine the proportionality of any interference with fundamental rights: see the judgment of Lady Hale and Lord Reed at paras 43 48. Thus in assessing whether Part 4 of the 2014 Act is in accordance with the law this court has been invited to take into account not only the terms of the Act but also, proleptically, the RDSG, which we have discussed in paras 18 to 25 above. As we have stated (in para 18 above), the RDSG is directed to specified public authorities, which under section 28(1) of the Act are required to have regard to it. In contrast with, for example, the Metropolitan Polices Standard Operating Procedures which we have mentioned, there is no compulsion to follow the guidance. The RDSG gives very little guidance as to the requirements of the DPA or article 8 of the ECHR but envisages that separate practice materials will be made available to practitioners. As we explained in paras 52 to 62 above when we discussed the effect of the Act in relation to the DPA and the Directive, the powers and duties of disclosure set out in sections 23 and 26 cannot be taken at face value. In several crucial respects, the scope of the duties and powers to disclose or share information set out on the face of the Act are, in reality, significantly curtailed by the requirements of the DPA and the Directive. To recap: (1) Although section 23(2)(b) purports to impose on the outgoing service provider a duty to provide the incoming service provider with all information which it holds which falls within subsection (3), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 23(3) (6) of the 2014 Act not in themselves ensuring their satisfaction). (2) Although section 26(1) purports to impose on a service provider or relevant authority (or any person exercising a function on their behalf) a duty to provide to the service provider in relation to a child or young person any information which the person holds which falls within subsection (2), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 26(2) and (5) (7) of the 2014 Act not in themselves ensuring their satisfaction). (3) Although section 26(3) purports to impose on the service provider in relation to a child or young person a duty to provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which the person holds which falls within subsection (4), in reality no such duty exists in relation to sensitive data as defined in the DPA, unless at least one of the conditions set out in Schedule 3 to the DPA is satisfied (the conditions set out in section 26(4) and (5) (7) of the 2014 Act not in themselves ensuring their satisfaction). (4) Although section 26(8) purports to confer on the service provider in relation to a child or young person the power to provide to a service provider or relevant authority (or any person exercising a function on their behalf) any information which the person holds which falls within subsection (9), in reality no such power can lawfully be exercised unless the requirements of the DPA are satisfied (the condition set out in section 26(9) of the 2014 Act not in itself ensuring their satisfaction). Those requirements include, but are not limited to, compliance with at least one of the conditions in Schedule 2 to the DPA, and also, if the information in question is sensitive data, compliance with at least one of the conditions in Schedule 3. They also include compliance with the requirements arising in relation to the first data principle under Part II of Schedule 1 to the DPA, and also the other data protection principles and the other duties imposed by the DPA. That is not a comprehensive account of the requirements imposed by the DPA: as explained above, those requirements were not fully discussed at the hearing of the appeal. The relationship between the Act and the DPA is rendered particularly obscure by what we have described as the logical puzzle arising from sections 23(7) and 26(11) when read with section 35(1) of the DPA. It is also necessary to ensure that the requirements of articles 7 and 8 of the Directive are met, so far as information falls within its scope. There are thus very serious difficulties in accessing the relevant legal rules when one has to read together and cross refer between Part 4 of the Act and the DPA and work out the relative priority of their provisions. Of even greater concern is the lack of safeguards which would enable the proportionality of an interference with article 8 rights to be adequately examined. Section 26(5) requires an information holder, when considering whether information ought to be provided in the exercise of the duties in section 26(1) or (3), so far as reasonably practicable to ascertain and have regard to the views of the child or young person. But there is no such requirement in relation to a service providers discretionary power to share information under section 26(8). There the test is merely that the provision of the information is necessary or expedient for the purposes of the exercise of any of the named person functions. Moreover, there is no statutory requirement, qualified or otherwise, to inform the parents of a child about the sharing of information. The RDSG is only guidance, speaks of routine good practice, and leaves it to the discretion of the information holder whether to involve the parent or parents. It is thus perfectly possible that information, including confidential information concerning a child or young persons state of health (for example, as to contraception, pregnancy or sexually transmitted disease), could be disclosed under section 26 to a wide range of public authorities without either the child or young person or her parents being aware of the interference with their article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to ascertain and have regard to their views. While para 10.14.2 of the RDSG advises that a record should be kept of the rationale behind a decision to share information, such a record will not assist a child, young person or parent who is not informed that the information is to be or has been shared. We conclude therefore that the information sharing provisions of Part 4 of the Act and the RDSG as currently drafted do not meet the article 8 criterion of being in accordance with the law. (iv) Whether the interference is proportionate The fourth question is whether Part 4 of the Act, when considered along with section 6 of the Human Rights Act 1998, the DPA and the RDSG, will give rise to interferences with the article 8 rights of children, young persons or parents which are proportionate, having regard to the legitimate aim pursued. In assessing proportionality it is necessary to distinguish between the Act itself and its operation in individual cases. The Act gives the named person three principal functions in section 19(5). As we have said (para 78 above), the first two would not normally constitute an interference with the right to respect for private or family life. The third, which itself involves the sharing of information, may more readily do so. The information sharing provisions in sections 23, 26 and 27 are, as we have said, limited by the DPA, particularly in relation to the disclosure of sensitive personal data. Separately, the operation of the Act in individual cases will involve the exercise of powers in many different circumstances which may entail more or less serious interferences with private and family life and which may provide stronger or weaker justification for such interference. This court has explained that an ab ante challenge to the validity of legislation on the basis of a lack of proportionality faces a high hurdle: if a legislative provision is capable of being operated in a manner which is compatible with Convention rights in that it will not give rise to an unjustified interference with article 8 rights in all or almost all cases, the legislation itself will not be incompatible with Convention rights: R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055, paras 2 and 60 per Lady Hale, para 69 per Lord Hodge. The proportionality challenge in this case does not surmount that hurdle. Nonetheless, it can readily be foreseen that in practice the sharing and exchange of information between public authorities are likely to give rise to disproportionate interferences with article 8 rights, unless the information holder carries out a scrupulous and informed assessment of proportionality. In their submissions, the Ministers treated the promotion of childrens wellbeing as being in itself a legitimate aim under article 8. They relied on international instruments in which the term wellbeing is used, although possibly not in quite as wide a sense as in the 2014 Act. For example, article 3(2) of the UNCRC provides: States Parties undertake to ensure the child such protection and care as is necessary for his or her wellbeing, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. Similarly, article 24(1) of the EU Charter of Fundamental Rights (CFR) provides: Children shall have the right to such protection and care as is necessary for their wellbeing The promotion of the wellbeing of children and young people is not, however, one of the aims listed in article 8(2) of the ECHR. At the most general level, it can be said to be linked to the economic wellbeing of the country, as the Ministers submissions emphasised. The extent to which an individual intervention is likely to promote the achievement of such a general aim is however very limited. Individual interventions may make a greater contribution towards achieving other legitimate aims, such as the prevention of disorder or crime, or the protection of health or morals, depending on the circumstances. However, the more tenuous the link between the objective pursued by the intervention (eg that a child or young person should be achieving, nurtured, active, respected, responsible and included) and the achievement of one of the legitimate aims listed in article 8(2), the more difficult it will be to justify a significant interference with the individuals private and family life. For example, if (contrary to our view) the 2014 Act as currently enacted had enabled the disclosure of sensitive personal data without the consent of the affected party, the disclosure by health professionals of information that a young person was being prescribed contraceptives or had contracted a sexually transmitted disease would be a major interference with private life which could only be justified on very compelling grounds. questions when it considers the question of proportionality: It is now the standard approach of this court to address the following four (i) whether the objective is sufficiently important to justify the limitation of a protected right, (ii) whether the measure is rationally connected to the objective, (iii) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective, and (iv) whether, balancing the severity of the measures effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter (ie whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure). See Huang v Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 AC 167, para 19 per Lord Bingham of Cornhill; R (Aguilar Quila) v Secretary of State for the Home Department [2011] UKSC 45; [2012] 1 AC 621, para 45 per Lord Wilson; Bank Mellat v HM Treasury (No 2) [2013] UKSC 39; [2014] AC 700, para 74 per Lord Reed; and R (Bibi) v Secretary of State for the Home Department [2015] UKSC 68; [2015] 1 WLR 5055, para 29 per Lady Hale. As to the first of those questions, it can be accepted, focusing on the legislation itself rather than on individual cases dealt with under the legislation, that Part 4 of the 2014 Act pursues legitimate aims. The public interest in the flourishing of children is obvious. The aim of the Act, which is unquestionably legitimate and benign, is the promotion and safeguarding of the wellbeing of children and young persons. As the Dean of Faculty submitted, the policy of promoting better outcomes for individual children and families is not inconsistent with the primary responsibility of parents to promote the wellbeing of their children. Improving access to, and the coordination of, public services which can assist the promotion of a childs wellbeing are legitimate objectives which are sufficiently important to justify some limitation on the right to respect for private and family life. Secondly, Part 4 of the Act is rationally connected to the legitimate aims pursued. As the Scottish Governments consultation paper, A Scotland for Children showed, the aims of the legislation are to move public bodies with responsibility for children towards early intervention to promote childrens wellbeing rather than only responding to a serious occurrence and to ensure that those public bodies collaborated and shared relevant information concerning the wellbeing of individual children. As the Second Division stated (para 63), the named person is at the heart of the Scottish Governments proposals. That person is tasked with advising on the wellbeing of a child, helping a child or parent to access a service or support, and being the single point of contact for public services in relation to the child in order to promote, support or safeguard the childs wellbeing. The third question (whether a less intrusive measure could have been used) does not involve a court in identifying the alternative legislative measure which was least intrusive. The court allows the legislature a margin of discretion and asks whether the limitation on the fundamental right is one which it was reasonable for the legislature to impose: Bank Mellat v HM Treasury (No 2), para 75. If, as the appellants submitted in their broader challenge, a named person should be appointed in relation to a child only if the parents consented or, absent such consent, if the appointment was necessary to protect the welfare of a child who was at risk of harm, the scope for early intervention to resolve problems and for the coordination of public services in support of a childs wellbeing would be diminished. Separate questions will arise as to whether, in an individual case, early intervention and coordination of services could be achieved by less intrusive means. That issue can be considered under the final question of fair balance. The fourth question is whether the impact of the rights infringement may be disproportionate to the likely benefit of the impugned measure. This requires consideration of the operation of Part 4 of the Act in particular cases, since it cannot be said that its operation will necessarily give rise to disproportionate interferences in all cases. In that regard, the named persons functions to give advice, information and support (section 19(5)(a)(i)) and to help the child, young person or parent to access a service or support (section 19(5)(a)(ii)) are, as we have said, less likely to give rise to any question of disproportion in a particular case. The provision of access to services could involve the creation of a childs plan under Part 5 of the Act, but that involves no compulsion. The Act does not alter the statutory criteria of any compulsory measures in relation to children and young people. Thus the criteria for making a child assessment order in section 36(2) or a child protection order in sections 38 and 39 of the Childrens Hearings (Scotland) Act 2011 require (put shortly) reasonable grounds to suspect that the child is likely to suffer significant harm. The long list of grounds upon which a child may come before a childrens hearing with a view to making a compulsory supervision order (which can include taking the child away from home) in section 67 of that Act remain focused upon the risk of harm to the child or the childs own misconduct. Nevertheless, there must be a risk that, in an individual case, parents will be given the impression that they must accept the advice or services which they are offered, especially in pursuance of a childs plan for targeted intervention under Part 5; and further, that their failure to co operate with such a plan will be taken to be evidence of a risk of harm. An assertion of such compulsion, whether express or implied, and an assessment of non cooperation as evidence of such a risk could well amount to an interference with the right to respect for family life which would require justification under article 8(2). Given the very wide scope of the concept of wellbeing and the SHANARRI factors, this might be difficult. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help which are offered under section 19(5)(a)(i) and (ii) and the Guidance should make this clear. The function, in section 19(5)(a)(iii), of discussing or raising a matter about a child or young person with a service provider or relevant authority, involves the disclosure of information. It and the information sharing provisions in sections 23, 26 and 27 raise difficult questions of proportionality in particular cases, where the information holder, when considering whether the information ought to be provided (section 26(2)(b) and (4)(b)) or whether to provide information under section 26(8), will have to consider carefully whether the particular circumstances justify the disclosure of the particular information. In our view, given this role of the information holder, it cannot be said that the operation of the information sharing duties and powers in relation to any of the named persons functions will necessarily amount to a disproportionate interference with article 8 rights. But for the problem in relation to the requirement that the Act be in accordance with the law (paras 79 85 above), we consider that the Act would be capable of being operated in a manner which is compatible with the Convention rights. But the task facing the information holder is a daunting one because the Act does not address the factors to be considered in an assessment of proportionality and the RDSG gives exiguous guidance on that issue. The provisions of the Act appear to point toward a more relaxed approach to disclosure than is compatible with article 8. Section 26(1) and (3) oblige the information holder to provide information which meets the criteria set out in subsections (2) and (4). Those criteria include an assessment of whether the information is likely to be relevant to the exercise of functions which may affect the wellbeing of the child or young person. In turn, the assessment of that wellbeing under section 96, as explained by the RDSG, involves the use of very broad criteria which could trigger the sharing of information by a wide range of public bodies (as to which see para 5 above) and also the initiation of intrusive inquiries into a childs wellbeing. In our view, the criteria in sections 23(3), 26(2) and 26(4) by themselves create too low a threshold for disclosure (as explained at para 56 above), and for the overriding of duties of confidentiality in relation to sensitive personal information. Under sections 23(4) and 26(5) the information holder, when deciding whether information ought to be provided under sections 23(2) and 26(1) or (3), is obliged so far as is reasonably practicable to ascertain and have regard to the views of the child or young person. But those provisions do not require that persons consent, or require that there be any good reason for dispensing with her consent, before what may be highly personal information, imparted in confidence, is shared. Further, the information holder is under no obligation to ascertain the views of the child or young person, or her parents, when exercising a discretion under section 26(8), in which the test is whether the provision of the information is considered to be necessary or expedient for the purposes of the exercise of any of the named person functions. Thus the exercise of the section 26(8) power could involve the overriding of duties of confidentiality without any obligation even to consult the child, young person or parent. The RDSG (at paras 4.1.28 and 10.7.4) presents such consultation as good practice but it is not obligatory, even on a qualified basis. Further, there is no provision imposing even a qualified requirement that the child or young person or her parents be warned that confidential information may be disclosed, or informed after the event that it has been shared. In many circumstances the Acts intended overriding of the duty of confidentiality may not be achieved. In our discussion of reserved matters (paras 27 to 66 above) we showed that, because of the terms of sections 23(7) and 26(11), the DPA and the Directive impose significant restrictions on the ability of public authorities in the performance of their duties under sections 23(2), 26(1) and (3) to share information which is sensitive personal data, such as information about a persons health or sexual life, without the explicit consent of the data subject. We showed that, for the same reasons, the power under section 26(8) to share information remains subject to all of the restrictions of the DPA against disclosure, thus normally requiring consent of the data subject, in relation also to non sensitive personal data. Thus some of the concerns of the appellants and the interveners in relation to the criteria for the sharing of information are, on a proper interpretation of the legislation, addressed by the continued operation of the DPA and the Directive, which in many cases will require the consent of the data subject to the sharing of the information. Nonetheless, there may be information which is not sensitive personal data which is nonetheless confidential. Even with the restrictions of the DPA, the Act does not point towards a fair balance in relation to the disclosure of such confidential information in the performance of duties under sections 23(2), 26(1) and 26(3). The central problems are the lack of any requirement to obtain the consent of the child, young person, or his or her parents to the disclosure, the lack of any requirement to inform them about the possibility of such disclosure at the time when the information is obtained from them, and the lack of any requirement to inform them about such disclosure after it has taken place. Such requirements cannot, of course, be absolute: reasonable exceptions can be made where, for example, the child is unable to give consent, or the circumstances are such that it would be inappropriate for the parents consent to be sought, or the childs best interests might be harmed. But, without such safeguards, the overriding of confidentiality is likely often to be disproportionate. In order to reduce the risk of disproportionate interferences, there is a need for guidance to the information holder on the assessment of proportionality when considering whether information should be provided. In particular, there is a need for guidance on (a) the circumstances in which consent should be obtained, (b) those in which such consent can be dispensed with and (c) whether, if consent is not to be obtained, the affected parties should be informed of the disclosure either before or after it has occurred. Also relevant is whether the recipient of the information is subject to sufficient safeguards to prevent abuse: MS v Sweden (1997) 28 EHRR 313. Further, if the guidance is to operate as law for the purposes of article 8, the information holder should be required to do more than merely have regard to it. III The EU Law challenge The appellants also challenge the information sharing provisions of sections 26 and 27 of the Act on the ground that they are incompatible with EU law. Counsel referred to the following articles of the CFR: article 7 (respect for private and family life), article 8 (protection of personal data), article 14 (right to education) particularly 14(3): respect for the right of parents to ensure that the education of their children conforms with their convictions and article 33(1) (family and professional life). In short, they submitted that the sharing of personal data without consent and absent strict necessity infringed one or more of those articles of the CFR. It is not suggested that the DPA fails to transpose the Directive or is contrary to the CFR. In so far as the appellants complaint relates to the sharing of what the DPA describes as sensitive personal data, we have, in large measure in agreement with the Inner House and the Lord Ordinary, interpreted the relevant provisions of the DPA and the 2014 Act as preserving the stringent restrictions in Schedule 3 to the DPA and having the effect that condition 7(1)(b) of Schedule 3 is not met (paras 49 to 58 above). In so far as the DPA allows the 2014 Act to authorise the disclosure of (non sensitive) personal data which are not subject to any duty of confidentiality, we do not see a separate issue arising under EU law. In so far as the challenge relates to the over riding of confidentiality of personal data (whether or not sensitive), we have addressed this in our discussion of article 8 of the ECHR. In Volker und Marcus Schecke GbR and Hartmut Eifert v Land Hessen (Cases C 92/09 and C 93/09) [2010] ECR I 11063, the Court of Justice of the European Union (Grand Chamber) held (para 52) that the limitations which may lawfully be placed on the right to the protection of personal data correspond to those tolerated in relation to article 8 of the ECHR. We are therefore satisfied that there is no additional incompatibility with EU law beyond that which we have found in relation to article 8 of the ECHR. The appellants also submit that the Act contravenes EU law because there is no provision enabling a parent or child to seek the removal of information concerning a child from a named persons database once the data are no longer needed for the purposes for which they were collected or processed. Reference was made to Google Spain SL v Agencia Espaola de Proteccin de Datos (Case C 131/12) [2014] QB 1022, paras 93 97. We do not accept this submission. In our view the data retained by public authorities in the exercise of powers under the Act are subject to the fifth data protection principle in Part I of Schedule 1 to the DPA, namely that personal data processed for any purpose or purposes shall not be kept for longer than is necessary for that purpose or those purposes. This is because this provision is not inconsistent with the disclosure which sections 23(2), 26(1) and 26(3) of the 2014 Act allows: DPA section 27(3) & (4) (paras 53 and 54 above). Part V of the DPA empowers the Information Commissioner, whether at the request of a data subject or otherwise, to enquire into a data controllers compliance with the data protection principles. Under section 40 of the DPA, the Information Commissioner is empowered to serve an enforcement notice on a data controller to require such compliance. The DPA thus has protections for a data subject, who can also, if necessary, seek judicial review of a decision of the Information Commissioner. In our view, the data subject is thereby given a legal remedy and judicial protection as required by Schrems v Data Protection Comr (Case C 362/14) [2016] QB 527, para 95. IV Remedy In summary, we conclude that the information sharing provisions of Part 4 of the Act (a) do not relate to reserved matters, namely the subject matter of the DPA and the Directive, (b) are incompatible with the rights of children, young persons and parents under article 8 of the ECHR because they are not in accordance with the law as that article requires, (c) may in practice result in a disproportionate interference with the article 8 rights of many children, young persons and their parents, through the sharing of private information, and (d) are not incompatible with EU law in any way which goes beyond their incompatibility with article 8 of the ECHR. We are satisfied that it is not possible to remedy this defect by reading down the provisions under section 101 of the Scotland Act 1998. Conclusion (b) therefore means that the information sharing provisions of Part 4 of the Act are not within the legislative competence of the Scottish Parliament. It would not be appropriate for this court to propose particular legislative solutions. But we can properly say the following. We do not think that amendment of the RDSG will get round the problem in conclusion (b) or be sufficient in itself to prevent many instances of disproportionate interference to which we refer in conclusion (c). Section 28 requires the specified public authorities merely to have regard to the guidance. In relation to conclusion (b), it is necessary to address the lack of clarity as to the relationship between the Act and the DPA, arising from the conflict between the provisions of sections 23, 26 and 27 of the Act and the non disclosure provisions of the DPA, and, in particular, the confusion caused by sections 23(7) and 26(11) when read together with provisions of the DPA such as section 35(1). Further, in relation to conclusion (c), the Act, subordinate legislation, or binding guidance, should address the circumstances in which (i) the child, young person or parent should be informed of the sharing of information or (ii) consent should be obtained for the sharing of information, including confidential information. If the resolution of the problem in conclusion (b) leads to the authorisation of the disclosure of sensitive personal data, the problem identified in conclusion (c) will become even more acute as the sharing of such data will require a compelling justification. In short, changes are needed both to improve the accessibility of the legal rules and to provide safeguards so that the proportionality of an interference can be challenged and assessed. The reconsideration of the terms of the Act and the RDSG also provides an opportunity to minimise the risk of disproportionate interferences with the article 8 rights of children, young persons and parents. Consideration of these matters will involve policy questions which are the responsibility of the Scottish Ministers and the democratic legislature. Section 102 of the Scotland Act 1998 provides: (1) This section applies where any court or tribunal decides that an Act of the Scottish Parliament or any (a) provision of such an Act is not within the legislative competence of the Parliament (2) The court or tribunal may make an order suspending the effect of the decision for any (b) period and on any conditions to allow the defect to be corrected. We are of the view that this court should consider making an order under section 102(2)(b) of the Scotland Act 1998 to allow the Scottish Parliament and the Scottish Ministers an opportunity, if so advised, to correct the defects which we have identified. We do not think that it is appropriate to set out the possible terms of such an order until we have received written submissions from the parties on the terms of the order, including both the period of suspension and any conditions which should be attached to the order. As was said in Salvesen v Riddell 2013 SC (UKSC) 236 (Lord Hope at para 57), if such an order is made, it may be appropriate to give permission to the Lord Advocate to return to the court for any further orders under section 102(2)(b) as may be required. The court which is best placed to make such further orders may be the Court of Session. In the meantime, since the defective provisions are not within the legislative competence of the Parliament, they cannot be brought into force. Conclusion We would allow the appeal and invite the parties to produce written submissions on the terms of a section 102 order within 42 days of the date of this judgment.

The Children and Young People (Scotland) Act 2014 (the 2014 Act) makes provision for a named person service (the NPS) in relation to children and young people (C&YP) in Scotland. The NPS establishes the new professional role of the named person, and envisages that all C&YP in Scotland will be assigned a named person. The NPS aims to achieve two policy aims: first, a shift away from intervention by public authorities after a risk to welfare has been identified, to an emphasis on early intervention to promote wellbeing. Secondly, moving from a legal structure under which the duties of statutory bodies to cooperate were linked to the performance of their individual functions, to one which ensures that they work collaboratively and share information in order to support wellbeing. The 2014 Act is supplemented by revised statutory guidance (the Guidance), which is still in draft. Part 4 of the 2014 Act (Part 4) provides that named persons will exercise certain functions in relation to C&YP. These include: (a) advising, informing or supporting them or their parents; (b) helping them or their parents access a service or support; and (c) discussing or raising a matter about them with a service provider (e.g. health boards and local authorities) or relevant authority (e.g. the NHS and Scottish Police Authority). The authority responsible for the provision of the NPS (the NPS Provider) changes depending on the age and circumstances of the child or young person. Part 4 also sets out powers and duties relating to information sharing, including (in s.23) conditions for when information must be shared following a change in NPS Provider, and (in s.26) conditions for when information must be shared between service providers or relevant authorities, and the NPS Provider. Section 26(8) includes an additional power of disclosure where the NPS Provider holds information and it considers that providing it to a service provider or relevant authority is necessary or expedient (s.26(9)) for the purpose of the exercise of any of the named person functions. The powers and duties of disclosure under ss.23 and 26 cannot, however, be exercised where the information would be provided in breach of a prohibition or restriction under an enactment. The appellants are four registered charities with an interest in family matters, and three individual parents. They challenged Part 4 by way of judicial review on the basis that it is outside the legislative competence of the Scottish Parliament under the Scotland Act 1998 (the Scotland Act) because: (a) it relates to matters which are reserved under the Scotland Act to the UK Parliament (the Reserved Matters Challenge); (b) it is incompatible with rights under the European Convention on Human Rights (the ECHR Challenge); and/or (c) it is incompatible with EU law (the EU Law Challenge). The appellants challenges were dismissed in both the Outer House and the Inner House of the Court of Session. They now appeal to the Supreme Court. The Supreme Court unanimously allows the appeal on the basis of the ECHR Challenge and the EU Law Challenge (to the extent it mirrors the ECHR Challenge). The Court invites written submissions as to the terms of its order under s.102 of the Scotland Act in order to give the Scottish Parliament and Scottish Ministers an opportunity to address the matters raised in the judgment. In the meantime, since the defective provisions of Part 4 of the 2014 Act are not within the legislative competence of the Scottish Parliament, they cannot be brought into force. Lady Hale, Lord Reed and Lord Hodge (with whom Lord Wilson and Lord Hughes agree) give the joint leading judgment. The Reserved Matters Challenge Part 4 is challenged on the ground that the data sharing provisions relate to the reserved matter of the Data Protection Act 1998 (the DPA) and Council Directive 95/46/EC (the Directive). Whether a provision relates to a reserved matter under the Scotland Act is determined by reference to its purpose [27 33]. The subject matter of the Directive (and therefore the DPA, which implemented the Directive in the UK) is the standards of protection which must be afforded to data and the methods by which those standards are secured [34 39]. The DPA imposes obligations on data controllers in relation to data processing, and creates rights for data subjects and a system for the regulation of data controllers. Section 35 of the DPA allows scope for derogation from certain of its requirements by legislation, which may include devolved legislation [44]. The bodies described in Part 4 as service providers and relevant authorities are currently subject to legal duties in relation to the disclosure of information as data controllers under the DPA [45 47]. The result of these duties is that information about C&YP can currently be disclosed, without their consent, if the disclosure is necessary in order to protect their vital interests, or if the disclosure is necessary for the exercise of a statutory function. These thresholds are higher than those under Part 4 which (respectively) refer to disclosure being likely to benefit wellbeing, and being likely to be relevant to the exercise of statutory functions. Data controllers are also obliged to comply with other data protection principles under the DPA [48]. Further protections are included in relation to sensitive data (e.g. health and sexual life) under Schedule 3 to the DPA [49 50]. The effect of Part 4 on the requirements of the DPA is extremely complex and was not fully discussed at the hearing. Sections 23 and 26 of Part 4 do not permit disclosure of information in breach of a prohibition or restriction on its disclosure arising by virtue of an enactment. At first sight, that means that disclosure under Part 4 is subject to compliance with the requirements of the DPA, since the DPA is an enactment. However, under sections 27 and 35 of the DPA, personal data are exempt from some of the requirements of the DPA where the disclosure is required by or under any enactment. An Act of the Scottish Parliament is an enactment for this purpose. The result is a logical puzzle [51 54]. It is, however, clear that the powers and duties of disclosure under Part 4 cannot be taken at face value; in several respects, they are significantly curtailed by the DPA and the Directive [55 58]. However, although Part 4 contains powers and duties the objective of which is to ensure that information is shared, that objective is not distinct from the overall purpose of promoting the wellbeing of C&YP [64]. Part 4 also does not detract from the regime established by the DPA and the Directive [65]. Part 4 does not therefore relate to the subject matter of the DPA and the Directive for the purposes of the Scotland Act, and the Reserved Matters Challenge cannot succeed [66]. The ECHR Challenge The appellants claim that the NPS breaches Article 8 ECHR rights. This is both (a) on the broad basis that compulsory appointment of a named person without parental consent amounts to a breach of the parents Article 8 rights, and (b) on the narrow basis that the information sharing provisions under Part 4 amount to breaches of parents and C&YPs Article 8 rights [67 68]. The Community Law Advice Network, as intervener, also challenged the information sharing provisions on the basis that they impose too low a threshold for the disclosure of confidential information and amount to an infringement of the Article 8 rights of C&YP. This meant that there was more focus on Article 8 in the appeal before this Court than there had been before the Court of Session below [69]. In the context of the 2014 Act, the interests protected by Article 8 include both family life [71 74] and privacy [75 77], and the operation of the information sharing provisions of Part 4 will result in interferences with those interests [78]. In accordance with the law In order for that interference to be in accordance with the law (for the purposes of Article 8(2)), the measures must not only have some basis in domestic law but also be accessible to the person(s) concerned and foreseeable as to their effects. This means rules must be formulated with sufficient precision to give legal protection against arbitrariness [79 81]. In assessing the legality of Part 4, regard must be had to the Guidance [82]. As is clear from the Courts findings on the Reserved Matters Challenge, there are difficulties in accessing the relevant rules for information sharing. An information holder would need to read together and cross refer between Part 4, the DPA and the Directive in order to work out the priority of their provisions. Of even greater concern is the lack of safeguards which would enable the proportionality of any interference with Article 8 to be adequately examined [83 84]. For example, information, including confidential information concerning a child or young persons state of health (e.g. as to contraception, pregnancy or sexually transmitted disease), could be disclosed to a wide range of authorities without either the child or young person or their parents being aware of the interference with their Article 8 rights, and in circumstances in which there was no objectively compelling reason for the failure to inform them. Accordingly, as currently drafted, the information sharing sections of Part 4 and the Guidance do not satisfy the requirement of being in accordance with the law [85]. Proportionality In assessing whether the operation of Part 4 would give rise to interferences with Article 8 which are disproportionate having regard to the legitimate aim pursued, it is necessary to distinguish between the 2014 Act and its operation in individual cases [86 88]. Focusing on the proportionality of the legislation itself, Part 4 undoubtedly pursues legitimate policy aims and is clearly rationally connected to those aims [91 92]. Allowing the legislature the appropriate margin of discretion, Part 4 is also a reasonable measure for the legislature to impose in order to achieve those legitimate aims. It is for this reason that the appellants broad challenge cannot succeed. If a named person could be appointed only with parental consent, the scope for early intervention would be diminished [93]. However, the operation of Part 4 may well give rise to disproportionate interferences in particular cases: First, there is a risk that parents will be given the impression that they must accept advice in relation to the services offered by a named person in the exercise of the named person functions, and that their failure to cooperate would be taken as evidence of risk of harm. Care should therefore be taken to emphasise the voluntary nature of the advice, information, support and help offered by the named person [94 95]. Secondly, the information holder will have to address difficult questions of proportionality in relation to the disclosure of confidential information with the help of only the Guidance, which is limited, and the Part 4 criteria, which set too low a threshold for overriding duties of confidentiality [96 100]. There is therefore a need for clear guidance to information holders as to how to assess proportionality when considering whether information should be shared [101]. The EU Law Challenge In relation to the EU Law Challenge, there is no incompatibility additional to that identified in relation to the ECHR Challenge [102 105].

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The central issue in this case is whether Ms Tamara Gubeladze (the respondent), a Latvian national living in the United Kingdom, is entitled to receive state pension credit, a means tested benefit. She relies on regulation 5(2) of the Immigration (European Economic Area) Regulations 2006 (SI 2006/1003) (the 2006 Regulations), which implements article 17(1)(a) of Directive 2004/38/EC (the Citizens Directive), as a worker or self employed person who has ceased activity. By a Treaty signed at Athens on 16 April 2003 (the Athens Treaty), ten Accession States became member states of the EU with effect from 1 May 2004. The Act of Accession, annexed to the Athens Treaty, set out the conditions of admission and the adjustments to the [EU] Treaties on which the Union is founded, entailed by such admission (article 1(2)). The Act of Accession permitted the existing member states to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (the A8 States) which included Latvia. Annex VIII of the Act of Accession required the existing member states to apply for an initial period of two years from the date of accession national measures or those resulting from bilateral agreements, regulating access to their labour markets by Latvian nationals. The existing member states were permitted to continue to apply such measures until the end of the five year period following the date of the accession (para 2). An existing member state maintaining national measures or measures resulting from bilateral agreements at the end of the five year period was permitted, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission to continue to apply these measures until the end of the seven year period following the date of accession (para 5). Other annexes contained identical provisions in respect of nationals of the other A8 States. The Act of Accession was given effect in the domestic law of the United Kingdom by the European Union (Accessions) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the 2004 Regulations). The 2004 Regulations established the Worker Registration Scheme (WRS) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of 90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the United Kingdom. The WRS ran initially for five years, from 1 May 2004 to 30 April 2009. In Zalewska v Department for Social Development (Child Poverty Action Group intervening) [2008] UKHL 67; [2008] 1 WLR 2602, the House of Lords considered the legality of the WRS. The House of Lords held unanimously that any requirements of the WRS were imposed pursuant to provisions permitting derogation from EU rights and so had to be proportionate to a legitimate aim. It held further, by a majority, that the requirements of the WRS met that test and were, therefore, lawful. In 2009 HM Government asked the Migration Advisory Committee (MAC) to advise it in relation to the continuation of the WRS. In the light of the MACs advice, the Government decided to exercise the power conferred by the Act of Accession to extend the derogations applicable to nationals of the A8 States for a further two years. Having notified the Commission, it made the Accession (Immigration and Worker Registration) (Amendment) Regulations 2009 (SI 2009/892) (the Extension Regulations) which extended the operation of the WRS for a period of two years from 1 May 2009 to 30 April 2011. The respondent is a national of Latvia who came to the United Kingdom in 2008 and worked for various employers here between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010. Her employment before that date was not covered by the certificate. On 24 October 2012, the respondent made a claim for state pension credit. Entitlement was conditional on her having a right to reside in the United Kingdom. The basis of her claim was that she had a right of residence in the United Kingdom under regulation 5(2) of the 2006 Regulations as a person who had retired, having pursued activities as a worker for at least a year in the United Kingdom, and having resided continuously in the United Kingdom for three years. The Secretary of State for Work and Pensions (the Secretary of State) rejected her claim on the ground that the requirement of three years continuous residence required three years continuous legal residence which meant a right of residence under the Citizens Directive. Since the respondents asserted right of residence during that time was as a worker, but she had not been registered under the WRS for part of that period, the Secretary of State considered that she had not resided in the United Kingdom pursuant to a right of residence conferred by the Citizens Directive and therefore did not meet the three year residence requirement in regulation 5(2) of the 2006 Regulations. Her claim for state pension credit was accordingly refused. The respondents appeal to the First tier Tribunal was dismissed on jurisdictional grounds. On appeal to the Upper Tribunal, it held that the First tier Tribunal had had jurisdiction to hear the appeal but, with the consent of the parties, the Upper Tribunal retained the appeal and itself re made the substantive decision. It allowed the respondents appeal on two grounds. First, it held that article 17 of the Citizens Directive, and therefore regulation 5(2)(c) of the 2006 Regulations, did not require that the three years continuous residence be in exercise of rights under the Citizens Directive. Actual residence was sufficient. Secondly, the decision to extend the WRS in 2009 was disproportionate and therefore unlawful. Accordingly, the respondent was not disqualified by her failure to meet the requirements of the WRS from demonstrating three years continuous residence with a right of residence under the Citizens Directive. The Secretary of State appealed to the Court of Appeal (Rupert Jackson, Lindblom and Peter Jackson LJJ) which on 7 November 2017 dismissed the appeal [2017] EWCA Civ 1751; [2018] 1 WLR 3324: (1) The Secretary of State succeeded on the construction of the Citizens Directive. The word reside in article 17(1)(a) meant legally reside which in this context meant residence in the exercise of rights under the Citizens Directive. As a result, the Court of Appeal did not need to rule on a new argument advanced by the respondent for the first time in the Court of Appeal, namely that even if resided in article 17(1)(a) of the Citizens Directive means legally resided, that word has a wider meaning in regulation 5(2)(c) of the 2006 Regulation where it means actual residence, with or without any right to remain. The Court of Appeal was, however, inclined to the view that resided in regulation 5(2)(c) of the 2006 Regulations has the same meaning as in the Citizens Directive. (2) There was no error of law in the Upper Tribunals conclusion that the extension of the WRS was disproportionate and therefore incompatible with EU law. On 19 June 2018 the Supreme Court granted permission to appeal on condition that the Secretary of State pay the respondents costs in any event. Permission to the Secretary of State to appeal included permission to argue a new ground which had not been advanced in the Court of Appeal, namely that a national measure adopted pursuant to a transitional provision in the Act of Accession is not subject to proportionality review at all. So to hold would involve departing from the reasoning of the House of Lords in Zalewska. Accordingly, a seven Justice panel has been convened for this appeal. The following issues therefore arise for decision on this appeal: Is the decision to extend the WRS open to challenge on grounds of (1) proportionality? (2) If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue? (3) If the Secretary of State succeeds on Issue (1) or Issue (2), does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under the Citizens Directive? (4) actual residence sufficient for the purposes of the 2006 Regulations? If article 17 of the Citizens Directive requires lawful residence, is Relevant EU instruments Treaty establishing the European Community At the material time, the Treaty establishing the European Community (TEC) provided in relevant part: Within the scope of application of this Treaty, and without prejudice to any special provisions contained therein, any discrimination on grounds of nationality shall be prohibited. 1. Citizenship of the Union is hereby established. Every person holding the nationality of a member state shall be a citizen of the Union. Citizenship of the Union shall complement and not replace national citizenship. Article 12 Article 17 2. Citizens of the Union shall enjoy the rights conferred by this Treaty and shall be subject to the duties imposed thereby. 1. Every citizen of the Union shall have the right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in this Treaty and by the measures adopted to give it effect. Article 18 Article 39 Freedom of movement for workers shall be secured 1. within the Community. Such freedom of movement shall entail the abolition of 2. any discrimination based on nationality between workers of the member states as regards employment, remuneration and other conditions of work and employment. 3. It shall entail the right, subject to limitations justified on grounds of public policy, public security or public health: to accept offers of employment actually made; to move freely within the territory of member (a) (b) states for this purpose; (c) to stay in a member state for the purpose of employment in accordance with the provisions governing the employment of nationals of that state laid down by law, regulation or administrative action; (d) to remain in the territory of a member state after having been employed in that state, subject to conditions which shall be embodied in implementing regulations to be drawn up by the Commission. Article 49 Within the framework of the provisions set out below, restrictions on freedom to provide services within the Community shall be prohibited in respect of nationals of member states who are established in a state of the Community other than that of the person for whom the services are intended. Regulation (EEC) No 1612/68 Regulation (EEC) No 1612/68 of the Council of 15 October 1968 on freedom of movement for workers within the Community (Regulation 1612/68) sets out in articles 1 to 6 within Title I EU rules on eligibility for employment. Within Title II (Employment and Equality of Treatment) article 7 provides in relevant part: Article 7 1. A worker who is a national of a member state may not, in the territory of another member state, be treated differently from national workers by reason of his nationality in respect of any conditions of employment and work, in particular as regards remuneration, dismissal, and should he become unemployed, reinstatement or re employment; The Accession Treaty The Athens Treaty states in the sixth recital that the Contracting States: HAVE DECIDED to establish by common agreement the conditions of admission and the adjustments to be made to the Treaties on which the European Union is founded, Article 1(1) provides that the Accession States: hereby become members of the European Union and Parties to the Treaties on which the Union is founded as amended or supplemented. Article 1 continues: 2. The conditions of admission and the adjustments to the Treaties on which the Union is founded, entailed by such admission, are set out in the Act annexed to this Treaty. The provisions of that Act shall form an integral part of this Treaty. 3. The provisions concerning the rights and obligations of the member states and the powers and jurisdiction of the institutions of the Union as set out in the Treaties referred to in paragraph 1 shall apply in respect of this Treaty. Article 2(2) provides that the Treaty shall enter into force on 1 May 2004. The Act of Accession annexed to the Athens Treaty provides in relevant part: From the date of accession, the provisions of the original Treaties and the acts adopted by the institutions and the European Central Bank before accession shall be binding on the new member states and shall apply in those states under the conditions laid down in those Treaties and in this Act. The application of the original Treaties and acts adopted by the institutions shall, as a transitional measure, be subject to the derogations provided for in this Act. Article 2 Article 10 Article 24 The measures listed in Annexes V, VI, VII, VIII, IX, X, XI, XII, XIII and XIV to this Act shall apply in respect of the new member states under the conditions laid down in those Annexes. Annex VIII to the Act of Accession sets out the transitional measures in respect of Latvia. Section 1 of Annex VIII, which deals with free movement of persons, provides in relevant part: 1. Article 39 and the first paragraph of article 49 of the EC Treaty shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers as defined in article 1 of Directive 96/71/EC between Latvia on the one hand, and [the existing member states] on the other hand, subject to the transitional provisions laid down in paragraphs 2 to 14. 2. By way of derogation from articles 1 to 6 of Regulation (EEC) No 1612/68 and until the end of the two year period following the date of accession, the present member states will apply national measures, or those resulting from bilateral agreements, regulating access to their labour markets by Latvian nationals. The present member states may continue to apply such measures until the end of the five year period following the date of the accession. Latvian nationals legally working in a present member state at the date of accession and admitted to the labour market of that member state for an uninterrupted period of 12 months or longer will enjoy access to the labour market of that member state but not to the labour market of other member states applying national measures. Latvian nationals admitted to the labour market of a present member state following accession for an uninterrupted period of 12 months or longer shall also enjoy the same rights. The Latvian nationals mentioned in the second and third subparagraphs above shall cease to enjoy the rights contained in those subparagraphs if they voluntarily leave the labour market of the present member state in question. Latvian nationals legally working in a present member state at the date of accession, or during a period when national measures are applied, and who were admitted to the labour market of that member state for a period of less than 12 months shall not enjoy these rights. 3. Before the end of the two year period following the date of accession the Council shall review the functioning of the transitional provisions laid down in paragraph 2, on the basis of a report from the Commission. On completion of this review, and no later than at the end of the two year period following the date of accession, the present member states shall notify the Commission whether they will continue applying national measures or measures resulting from bilateral agreements, or whether they will apply articles 1 to 6 of Regulation (EEC) No 1612/68 henceforth. In the absence of such notification, articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply. 4. Upon Latvias request one further review may be held. The procedure referred to in paragraph 3 shall apply and shall be completed within six months of receipt of Latvias request. 5. A member state maintaining national measures or measures resulting from bilateral agreements at the end of the five year period indicated in paragraph 2 may, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission, continue to apply these measures until the end of the seven year period following the date of accession. In the absence of such notification, articles 1 to 6 of Regulation (EEC) No 1612/68 shall apply. The Citizens Directive The preamble to the Citizens Directive provides in material part: Citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in the Treaty and to the measures adopted to give it effect. (recital (1)) The free movement of persons constitutes one of the fundamental freedoms of the internal market, which comprises an area without internal frontiers, in which freedom is ensured in accordance with the provisions of the Treaty. (recital (2)) Union citizenship should be the fundamental status of nationals of the member states when they exercise their right of free movement and residence. It is therefore necessary to codify and review the existing Community instruments dealing separately with workers, self employed persons, as well as students and other inactive persons in order to simplify and strengthen the right of free movement and residence of all Union citizens. (recital (3)) Enjoyment of permanent residence by Union citizens who have chosen to settle long term in the host member state would strengthen the feeling of Union citizenship and is a key element in promoting social cohesion, which is one of the fundamental objectives of the Union. A right of permanent residence should therefore be laid down for all Union citizens and their family members who have resided in the host member state in compliance with the conditions laid down in this Directive during a continuous period of five years without becoming subject to an expulsion measure. (recital (17)) In order to be a genuine vehicle for integration into the society of the host member state in which the Union citizen resides, the right of permanent residence, once obtained, should not be subject to any conditions. (recital (18)) Certain advantages specific to Union citizens who are workers or self employed persons and to their family members, which may allow these persons to acquire a right of permanent residence before they have resided five years in the host member state, should be maintained, as these constitute acquired rights, conferred by Commission Regulation (EEC) No 1251/70 of 29 June 1970 on the right of workers to remain in the territory of a member state after having been employed in that state and Council Directive 75/34/EEC of 17 December 1974 concerning the right of nationals of a member state to remain in the territory of another member state after having pursued therein an activity in a self employed capacity. (recital (19)) The Directive lays down the conditions governing the exercise of the right of free movement and residence within the territory of the member states by Union citizens and their family members, their right of permanent residence in the territory of the member states and the limits placed on these rights on grounds of public policy, public security or public health (article 1). Within Chapter III, article 6 confers a right of residence on the territory of another member state for up to three months without any conditions or any formalities other than the requirement to hold a valid identity card or passport. Article 7 confers on all Union citizens the right of residence on the territory of another member state for a period of longer than three months if, inter alia, they are workers or self employed persons in the host member state. Article 14 provides that Union citizens and their family members shall have the right of residence provided for in article 6, as long as they do not become an unreasonable burden on the social assistance system of the host member state (article 14(1)), and the right of residence provided for in article 7 as long as they meet the conditions set out therein (article 14(2)). Article 16 provides: General rule for Union citizens and their family members 1. Union citizens who have resided legally for a continuous period of five years in the host member state shall have the right of permanent residence there. This right shall not be subject to the conditions provided for in Chapter III. Article 16 Article 17 provides in material part: Article 17 2. Paragraph 1 shall apply also to family members who are not nationals of a member state and have legally resided with the Union citizen in the host member state for a continuous period of five years. 3. Continuity of residence shall not be affected by temporary absences not exceeding a total of six months a year, or by absences of a longer duration for compulsory military service, or by one absence of a maximum of 12 consecutive months for important reasons such as pregnancy and childbirth, serious illness, study or vocational training, or a posting in another member state or a third country. 4. Once acquired, the right of permanent residence shall be lost only through absence from the host member state for a period exceeding two consecutive years. Exemptions for persons no longer working in the host member state and their family members 1. By way of derogation from article 16, the right of permanent residence in the host member state shall be enjoyed before completion of a continuous period of five years of residence by: (a) workers or self employed persons who, at the time they stop working, have reached the age laid down by the law of that member state for entitlement to an old age pension or workers who cease paid employment to take early retirement, provided that they have been working in that member state for at least the preceding 12 months and have resided there continuously for more than three years. Article 18 provides: Article 18 Acquisition of the right of permanent residence by certain family members who are not nationals of a member state Without prejudice to article 17, the family members of a Union citizen to whom articles 12(2) and 13(2) apply, who satisfy the conditions laid down therein, shall acquire the right of permanent residence after residing legally for a period of five consecutive years in the host member state. In order to understand the Citizens Directive it is also relevant to set out certain parts of Commission Regulation (EEC) No 1251/70 on the right of workers to remain in the territory of a member state after having been employed in that state (Regulation 1251/70), which is one of the instruments referred to in recital (19) to the Citizens Directive. Regulation 1251/70 provides as follows: Whereas it is important, in the first place, to guarantee to the worker residing in the territory of a member state the right to remain in that territory when he ceases to be employed in that state because he has reached retirement age or by reason of permanent incapacity to work; whereas, however, it is equally important to ensure that right for the worker who, after a period of employment and residence in the territory of a member state, works as an employed person in the territory of another member state, while still retaining his residence in the territory of the first state (recital (4)) Article 1 The provisions of this Regulation shall apply to nationals of a member state who have worked as employed persons in the territory of another member state and to members of their families, as defined in article 10 of Council Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community. Article 2 1. The following shall have the right to remain permanently in the territory of a member state: (a) a worker who, at the time of termination of his activity, has reached the age laid down by the law of that member state for entitlement to an old age pension and who has been employed in that state for at least the last 12 months and has resided there continuously for more than three years; Article 4 1. Continuity of residence as provided for in article 2(1) may be attested by any means of proof in use in the country of residence. It shall not be affected by temporary absences not exceeding a total of three months per year, nor by longer absences due to compliance with the obligations of military service. Regulation 1251/70 was repealed by Commission Regulation (EC) No 635/2006 of 25 April 2006 (Regulation 635/2006) with effect from 30 April 2006, in anticipation of the implementation of the Citizens Directive into national laws with effect from the following day. We set out recital (1) to Regulation 635/2006 in our discussion of Issue (3) below. Relevant domestic legislation The Accession (Immigration and Worker Registration) Regulations 2004 The 2004 Regulations, as in force on 30 April 2007, provided in relevant part: 2. accession state worker Accession state worker requiring registration (1) Subject to the following paragraphs of this regulation, requiring registration means a national of a relevant accession state working in the United Kingdom during the accession period. (2) A national of a relevant accession state is not an accession state worker requiring registration if on 30 April 2004 he had leave to enter or remain in the United Kingdom under the 1971 Act and that leave was not subject to any condition restricting his employment. 4. Right of residence of work seekers and workers from relevant acceding states during the accession period (1) This regulation derogates during the accession period from article 39 of the Treaty establishing the European Community, articles 1 to 6 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community and Council Directive 2004/38/EC of the European Parliament and of the Council on the right of citizens of the Union and their family members to move and reside freely within the territory of the member states, insofar as it takes over provisions of Council Directive (EEC) No 68/360 on the abolition of restrictions on movement and residence within the Community for workers of member states and their families. (2) A national of a relevant accession state shall not be entitled to reside in the United Kingdom for the purpose of seeking work by virtue of his status as a work seeker if he would be an accession state worker requiring registration if he began working in the United Kingdom. (3) Paragraph (2) is without prejudice to the right of a national of a relevant accession state to reside in the United Kingdom under the 2006 Regulations as a self sufficient person whilst seeking work in the United Kingdom. (4) A national of a relevant accession state who is seeking employment and an accession state worker requiring registration shall only be entitled to reside in the United Kingdom in accordance with the 2006 Regulations as modified by regulation 5. 5. Application of 2006 Regulations in relation to accession state worker requiring registration (1) The 2006 Regulations shall apply in relation to a national of a relevant accession state subject to the modifications set out in this regulation. (2) A national of a relevant accession state who is seeking employment in the United Kingdom shall not be treated as a jobseeker for the purpose of the definition of qualified person in regulation 6(1) of the 2006 Regulations and an accession state worker requiring registration shall be treated as a worker for the purpose of that definition only during a period in which he is working in the United Kingdom for an authorised employer. 7. Requirement for an accession state worker requiring registration to be authorised to work (1) By way of derogation from article 39 of the Treaty establishing the European Community and articles 1 to 6 of Regulation (EEC) No 1612/68 on freedom of movement for workers within the Community, an accession state worker requiring registration shall only be authorised to work in the United Kingdom for an authorised employer. (2) An employer is an authorised employer in relation to a worker if (c) the worker has received a valid registration certificate authorising him to work for that employer and that certificate has not expired under paragraph (5); Regulation 7(5)(b) provided that a registration certificate expired on the date on which the worker ceased working for that employer. The Immigration (European Economic Area) Regulations 2006 The 2006 Regulations transposed some of the provisions of the Citizens Directive into domestic law. At the relevant time they provided in material part: Worker or self employed person who has ceased 5. activity (1) In these Regulations, worker or self employed person who has ceased activity means an EEA national who satisfies the conditions in paragraph (2), (3), (4) or (5). (2) A person satisfies the conditions in this paragraph if he terminates his activity as a worker or self (a) employed person and has reached the age at which he is (i) entitled to a state pension on the date on which he terminates his activity; or (ii) in the case of a worker, ceases working to take early retirement; (b) pursued his activity as a worker or self employed person in the United Kingdom for at least 12 months prior to the termination; and (c) the United Kingdom in resided continuously for more than three years prior to the termination. 15. Permanent right of residence (1) The following persons shall acquire the right to reside in the United Kingdom permanently (c) a worker or self employed person who has ceased activity; The State Pension Credit Act 2002 provides for conditions of entitlement to state pension credit, including a condition that the claimant is in Great Britain (section 1(2)(a)). The State Pension Credit Regulations 2002 (SI 2002/1792) made under that Act set out detailed provisions regarding who qualifies as a person in Great Britain for these purposes. According to those Regulations, so far as relevant, a person so qualifies if she is habitually resident in the United Kingdom pursuant to a right to reside which is not expressly excluded as a relevant right (regulation 2). A right of residence arising pursuant to article 17 of the Citizens Directive is not excluded. Accordingly it is common ground that if the respondent enjoyed a right of permanent residence pursuant to article 17 she would be entitled to claim state pension credit. Issue (1): Is the decision to extend the WRS open to challenge on grounds of proportionality? It is common ground between the parties that decisions to apply transitional measures under the Act of Accession, such as the decision to extend the WRS, cannot be challenged by A8 nationals as a disproportionate restriction on their free movement rights under the EU Treaties or legislation made under them. That is not the basis of the respondents case. On the contrary, she seeks to challenge the proportionality of the measures adopted by the United Kingdom within the context of the transitional provisions established in EU law. In particular, she challenges as disproportionate the decision of the United Kingdom in April 2009 to make the residence rights of A8 nationals contingent on compliance with the WRS beyond the expiry of the initial five year accession period. Before the Court of Appeal, it was accepted on behalf of the Secretary of State in the light of Zalewska that the decision to extend the requirement of compliance with the WRS was subject to proportionality review. However, before the Supreme Court and with its permission Mr Martin Chamberlain QC, who has argued the case for the Secretary of State with great skill and determination, now maintains that the decision cannot be challenged on grounds of proportionality and identifies this as the central question in this appeal. He accepts that the transitional provisions in Annex VIII were designed to protect the labour markets in the existing member states from the impact of large numbers of nationals arriving from the eight most populous new member states and that this was to be achieved by a derogation from the ordinary application of the relevant Treaty provisions on free movement of workers (Vicoplus SC PUH v Minister van Sociale Zaken en Werkgelegenheid (Joined Cases C 307/09 to C 309/09) [2011] ECR I 453 at para 34; Prefeta v Secretary of State for Work and Pensions (Case C 618/16) [2019] 1 WLR 2040 at para 41). As a result, the Accession Treaty established a carefully calibrated and comprehensive suite of derogations from the ordinary operation of the provisions in the EU Treaties governing free movement of workers. However, he submits, nationals of the A8 States had never enjoyed rights under the Treaties or under EU legislation and the effect of the derogations was to place substantive limits, which in some cases depended on decisions by member states, on the rights they would acquire by virtue of accession. In circumstances where the primary provisions of EU law did not apply to nationals of the new member states, they had, for the purposes of EU law, no protected interest in that respect during the transitional period. Accordingly, he submits, the extension of the WRS did not interfere with or derogate from any pre existing protected interest and it was, therefore, not subject to any requirement of proportionality. It was sufficient that it fell within the scope of the permitted derogation in paragraph 5 of Annex VIII to the Act of Accession and was notified to the Commission. The respondent submits that the Secretary of States submission is wrong as a matter of EU law and of national law. The decision to extend the WRS is a national decision to limit fundamental EU law rights of free movement pursuant to a transitional provision in the Act of Accession and is, therefore, subject to proportionality review as a matter of EU law. In addition, the decision to limit enjoyment of state pension credit for those who would otherwise enjoy it, by reason of extension of the WRS, is a discriminatory infringement of the rights to property of an A8 national, and falls to be justified under article 14 of the European Convention of Human Rights (ECHR) read with article 1 Protocol 1 to that Convention (A1P1) by virtue of section 6 of the Human Rights Act 1998. The Secretary of States submission is in direct conflict with the decision of the House of Lords in Zalewska v Department for Social Development which upheld the legality of the WRS in the initial phase of its operation from 2004. That appeal related to the provisions in Annex XII to the Act of Accession concerning national measures regulating access to labour markets within existing member states by Polish nationals. The House of Lords approached the matter on the basis that derogation by the United Kingdom from article 39 pursuant to paragraph 2 of Part II of Annex XII to the Act of Accession precluded direct reliance on article 39 by nationals of Poland and instead required compliance during the transitional period with the national measures governing such access. However, the House unanimously concluded that the powers in the United Kingdom to impose conditions on Polish nationals were required to be exercised in accordance with the Community principle of proportionality. It proceeded on the basis that the UK measures were a derogation from the rights which would otherwise be enjoyed. Lord Hope of Craighead stated the matter in the following terms (at para 30): The proposition that I cannot accept however is that the national measures that the United Kingdom selects have nothing to do with Community law, so the issue as to whether they are proportionate is irrelevant. The only authority that the United Kingdom has to introduce national measures to give access to nationals of an A8 state to its labour market in place of article 39 EC and Title I of Council Regulation (EEC) No 1612/68 is that which is given to it by paragraph 2 of Part 2 of Annex XII. As article 10 of the Act of Accession makes clear, this derogation from the application of the original Treaties and Acts adopted by the institutions of the Community was agreed to by the member states under the umbrella of Community law. Furthermore, the fact that the derogation does not extend to article 7 of the Regulation shows that where the national measures of an existing member state give the status of worker to an A8 state national he is entitled to all the rights in that state that Community law gives to workers. It is not possible to detach the opportunity that is given to the member states to apply national measures from its Community law background. The conclusion that any national measures that the member states introduce under the authority of paragraph 2 must be compatible with the authority given to them by the Treaty of Accession and with the Community law principle of proportionality seems to me to be inescapable. Similarly, Baroness Hale of Richmond explained (at para 46) that the appeal was concerned with the restrictive effect of national measures implementing EU law on the fundamental right of free movement of workers. The national implementing regulations had been made under section 2(2) of the European Communities Act 1972 for the purpose of implementing Community law and in the exercise of powers conferred by section 2 of the European Union (Accessions) Act 2003, which is headed Freedom of movement for workers. As a result, any national measures had to be compatible with the principle of proportionality in EU law. The House held by a bare majority that the national measures there under consideration (namely, requirements under the WRS that nationals of A8 accession states apply for a registration certificate for their first employment in the United Kingdom and re register if they changed employment within a stipulated period) were not disproportionate. Mr Chamberlain does not shrink from submitting that Zalewska was wrongly decided. He does not suggest, as was submitted in Zalewska, that the national measures have nothing to do with EU law. He accepts that the national measures fall within the scope of EU law and that they are required to comply with the terms of the derogations permitted by EU law. He suggests, rather, that Lord Hopes underlying premise in para 30 of his speech, set out above, is flawed in that the EU principle of proportionality can have no application where there is no antecedent interest requiring protection. On his case, nationals of the A8 States enjoyed no rights at all under the EU Treaties at the point of accession and the only rights they enjoyed in this regard during the transitional period were those permitted by the UK measures. On this basis he submits that it is circular to argue that the national measures affect the interests of Latvian nationals in free movement and entitlement to social security payments as workers because these are not conferred until the requirements of the national measures have been met. Mr Chamberlain is correct in his submission that the principle of proportionality necessarily involves, as an essential component, an assessment of the degree to which the impugned measure interferes with a protected interest. Thus, in R (British Sugar plc) v Intervention Board for Agricultural Produce (Case C 329/01) [2004] ECR I 01899 the Court of Justice of the European Union observed (at para 59): It cannot be maintained that rules which do not themselves interfere with protected interests are capable of infringing the principle of proportionality. As a result, a measure the sole purpose of which was to allow the correction of errors did not give rise to any interference with the manufacturers interests in issue in that case and could not, therefore, constitute a breach of the principle of proportionality. The British Sugar case was referred to by Lord Reed and Lord Toulson in R (Lumsdon) v Legal Services Board [2015] UKSC 41; [2016] AC 697 (at para 25) where they reiterated that the principle of proportionality only applies to measures interfering with protected interests. The point is also well made by Professor Tridimas in The General Principles of EU Law (2nd ed, OUP: 2006) where he states (at p 139): The court assesses the adverse consequences that the measure has on an interest worthy of legal protection and determines whether those consequences are justified in view of the importance of the objective pursued. Similarly, Professors Craig and De Brca in EU Law: Text, Cases, and Materials (6th ed, OUP: 2015) state (at p 551): In any proportionality inquiry the relevant interests must be identified, and there will be some ascription of weight or value to those interests, since this is a necessary condition precedent to any balancing operation. The question arises whether the Act of Accession created relevant protectable interests by conferring rights of EU citizenship on the new EU citizens from the A8 States subject to initial, tapering exceptions imposed by the existing member states, or whether it should be regarded as providing for only such rights as may be conferred by the existing member states during the transitional period. This question lies at the heart of Issue (1). The House of Lords in Zalewska took the former view. This reading is supported by the scheme of the relevant instruments. The Treaty of Accession provides (article 1(1)) that the Accession States hereby become members of the European Union and Parties to the Treaties on which the Union is founded as amended or supplemented. The Act of Accession provides (article 2) that [f]rom the date of accession, the provisions of the original Treaties shall be binding on the new member states and shall apply in those states under the conditions laid down in those Treaties and in this Act. Article 10 of the Act of Accession then provides that [t]he application of the original Treaties and acts adopted by the institutions shall, as a transitional measure, be subject to the derogations provided for in this Act. Article 24 provides that the measures listed in Annex VIII shall apply in respect of Latvia under the conditions there laid down. Paragraph 1 of Annex VIII provides that articles 39 and 49(1) TEC shall fully apply only, in relation to the freedom of movement of workers and the freedom to provide services involving temporary movement of workers as defined in article 1 of Directive 96/71/EC between Latvia and the existing member states, subject to the transitional provisions laid down in paragraphs 2 to 14. Paragraph 2 then provides that, during the initial two year period, the existing member states will apply national measures, or those resulting from bilateral agreements regulating access to their labour markets by Latvian nationals [b]y way of derogation from articles 1 to 6 of Regulation (EEC) No 1612/68. The use of the word derogation in this context is itself an indication that A8 nationals are regarded as having significant relevant interests under EU law from the moment of accession, subject to limitation only by action taken by member states which will be subject to the general principle of proportionality in the usual way. The transitional provisions are a derogation from the principle that the provisions of EU law apply immediately and fully to new member states and their nationals (see Vicoplus per Advocate General Bot at para 46). The provisions of the Citizens Directive are also relevant in this regard. The preamble emphasises in recitals (1) to (3) that citizenship of the Union confers on every citizen of the Union a primary and individual right to move and reside freely within the territory of the member states, subject to the limitations and conditions laid down in or pursuant to the Treaty; that such a right of free movement is one of the fundamental freedoms of the internal market; and that Union citizenship should be the fundamental status of nationals of the member states as regards the exercise of their right of free movement and residence. Every A8 national became a citizen of the EU on 1 May 2004 and these recitals indicate that it is by virtue of their status as such that EU law contemplates that they have a protectable interest which came into existence on that date so far as concerns rights of free movement. The Directive lays down the conditions governing the exercise of the right of free movement and residence within the territory of the member states by Union citizens and their family members (article 1). It seems clear, therefore, that the effect of Annex VIII to the Act of Accession is, during the transitional period, to derogate from the rights which Latvian nationals would otherwise enjoy in their newly established status as EU citizens. The application of these derogating provisions is clearly subject to the principle of proportionality in EU law. The same conclusion is arrived at when one has regard to the substance of the matter. Nationals of the A8 States were to enjoy rights as EU citizens from accession, subject to the derogating transitional provisions. The purpose of the transitional provisions was to protect labour markets in existing member states from the impact of large numbers of workers arriving from the eight most populous new member states. This aim was to be achieved by requiring or permitting existing member states to derogate temporarily from the normal application of EU rules on free movement of workers. There was no intention to confer an unfettered right to derogate from general principles of freedom of movement. On the contrary, derogation must be subject to the principle of proportionality in EU law. In the course of his submissions, Mr Chamberlain placed considerable reliance on the decision of the CJEU in Vicoplus, which post dated the decision of the House of Lords in Zalewska and which, he maintained, demonstrated that the EU principle of proportionality had no application in circumstances such as the present. That case concerned Annex XII to the Act of Accession, relating to Poland, which was materially identical to Annex VIII. The appellants had been fined for posting Polish workers to the Netherlands without having first obtained work permits. On a reference for a preliminary ruling the Raad van State (Netherlands) asked whether, with a view to protecting the domestic labour market, the requirement of a work permit under national law for the provision of a service consisting in making workers available was a proportionate measure in the light of articles 56 and 57 TFEU, in view also of the reservation in Chapter 2, paragraph 2 of Annex XII to the Act of Accession with regard to the free movement of workers. At paras 21 25 of its judgment the Second Chamber of the CJEU reformulated the question. It explained (at para 24) that if national legislation is justified pursuant to that transitional measure in Annex XII, the question of compatibility with articles 56 and 57 TFEU can no longer arise. It observed (at para 25) that it was therefore necessary to examine whether legislation such as that at issue in the main proceedings is covered by that transitional measure. The Chamber considered that an undertaking which was engaged in making labour available, although a supplier of services, carried on activities which were specifically intended to enable workers to gain access to the labour market of the host member state. In its view, it followed that the national legislation in issue must be considered to be a measure regulating access of Polish nationals to the labour market of the Netherlands within the meaning of Chapter 2, paragraph 2 of Annex XII. Moreover, a purposive interpretation of that provision led to the same conclusion. Mr Chamberlain submits that notwithstanding a reference clearly framed in terms of proportionality, the CJEU reformulated the question and failed entirely to address the issue of proportionality. This, he submits, demonstrates that proportionality has no part to play when deciding whether the subject matter was covered by that transitional measure. In his submission it is simply necessary to determine that the measure falls within the scope of the derogating provision. The difficulty with this submission is that, although the question referred to proportionality, the case seems to have had nothing to do with proportionality. The essential question was whether the express exception in Chapter 2, paragraph 2 of Annex XII to the Act of Accession permitted an existing member state to make the hiring out of manpower on its territory conditional on having a licence during the transitional period. The CJEU focused on this issue and concluded that the derogation extended so as to permit both measures with regard to employment and measures with regard to the provision of services which made labour available. It was assumed in the circumstances of that case that if the Dutch measure fell within the scope of the derogation, as properly interpreted, then it was of a character which would satisfy the principle of proportionality. This explains the shift in the language used in the judgment from explaining that the referring court was unsure whether the permit regime for Polish workers can be justified in the light of [the derogation in Chapter 2, paragraph 2 of Annex XII] (para 23) and the statement (in para 24) that if national legislation is justified pursuant to that transitional derogation then the question of the compatibility of that legislation with articles 56 and 57 TFEU can no longer arise, to asking (in para 25) whether the legislation in question is covered by that transitional derogation. The word justified indicates that the Chamber in fact considered that a usual process of justification according to the principle of proportionality is applicable, whereas the language used in para 25 indicates that it assumed that in the circumstances of the particular case the justification issue would be resolved if the Dutch regime fell within the scope of the transitional derogation, as properly interpreted. In this respect the judgment follows the approach of Advocate General Bot in his opinion. The case was concerned with the compatibility of a work permit regime with the transitional provision in Chapter 2, paragraph 2 of Annex XII. A work permit regime is inherently capable of having a major effect as a national measure restricting or preventing access to the labour market of the host member state which adopts it, by contrast with the monitoring regime adopted by the UK. The Advocate General treated the case as concerned simply with the interpretation of Chapter 2, paragraph 2 of Annex XII (see points 3 5, 25 and 57 of his opinion) and in addressing that question emphasised that both in the case of direct access to the employment market of member states of A8 nationals as workers and in the case of the access of such nationals to that market through their employment by an undertaking which hires out manpower there are potentially large movements of workers which, following new accessions, risk disturbing the employment market of the member states and that the transitional provision should be interpreted as covering both kinds of access in order to preserve its effectiveness (points 51 52). The judgment and the Advocate Generals opinion give no support to the submission that there is no scope for the application of the principle of proportionality in the context of adoption of national measures by a member state in reliance on the transitional derogating provisions in the Annexes to the Act of Accession. In particular, neither the judgment nor the opinion refers to the absence of any relevant protectable interest. If it had been the intention of the CJEU or the Advocate General to rule that the principle of proportionality had no part to play in the context of derogation under the transitional provisions in the Annexes to the Act of Accession, they would surely have said so in terms and would have explained that that was why the question referred proceeded on a false basis. The Secretary of State also relies on a passage in the judgment of the Second Chamber of the CJEU in Valeko v Klagenfurt (Case C 140/05) [2006] ECR I 10025. That case concerned another provision in the Act of Accession which provided a transitional derogation from EU Treaty provisions and legislation governing excise duties. Austrian legislation purportedly made under that derogation limited the exemption for the import of cigarettes in personal luggage to 25 cigarettes. On a preliminary reference, the Independent Finance Tribunal, Klagenfurt Division, asked whether the Austrian legislation was compatible with Treaty provisions governing the free movement of goods and customs duties (now contained in articles 28, 30 and 31 TFEU). Mr Chamberlain places particular reliance on the following passage in the judgment of the court (at para 74): Since that national legislation is justified in the light of one of the measures referred to in article 24 of the Act of Accession, in this case the transitional measure provided for in section 6(2) of Annex XIII to that Act, the question of the compatibility of that legislation with other provisions of primary law, such as articles 23 EC, 25 EC and 26 EC, can no longer arise. Here, the court was saying no more than that once national legislation is justified for the purposes of the derogating transitional measures, it is not necessary to justify it in addition in the wider context of the principles governing free movement of goods. Again, we consider that the courts use of the word justified is significant. It indicates that the court contemplated that a usual process of justification under EU law, including by reference to the principle of proportionality, would be required in relation to reliance on the transitional provision referred to. We were also referred by Mr Chamberlain to the decision of the Supreme Court in Mirga v Secretary of State for Work and Pensions [2016] UKSC 1; [2016] 1 WLR 481. There the claimants failed to establish that domestic regulations violated their rights under article 18 and article 21(1) TFEU, respectively. Lord Neuberger of Abbotsbury, with whom the other members of the Supreme Court agreed, held that those rights were qualified and, in particular, that those of Ms Mirga under article 21(1) were subject to the limitations and conditions laid down in the Treaties and the measures adopted to give them effect. Those measures included the 2003 Accession Treaty and the Citizens Directive. Clearly, the more general Treaty provisions must be read subject to those qualifications or derogations arising under transitional provisions such as those in the Act of Accession. Lord Neuberger then rejected a further submission founded on a lack of proportionality. Mr Chamberlain drew our attention in particular to the following passage (at para 69): Where a national of another member state is not a worker, self employed or a student, and has no, or very limited, means of support and no medical insurance , it would severely undermine the whole thrust and purpose of the [Citizens] Directive if proportionality could be invoked to entitle that person to have the right of residence and social assistance in another member state, save perhaps in extreme circumstances. It would also place a substantial burden on a host member state if it had to carry out a proportionality exercise in every case where the right of residence (or indeed the right against discrimination) was invoked. As appears from its final words, however, this passage appears in the context of a submission by the claimants that the determination of the authorities, courts and tribunals below had failed to give consideration to the proportionality of refusing each of them social assistance on a case by case basis, taking into account all the particular circumstances of their respective cases. It has no bearing on the issue of whether national legislation derogating from rights or prospective rights under EU law is required to be proportionate and it provides no support for the Secretary of States case on this issue. Mr Chamberlain is correct in his submission that, if a national measure is adopted pursuant to a transitional provision in the Act of Accession, no question of its compatibility with any provision of EU primary law can arise. In the present case, the compatibility of national measures with EU law will have to be assessed, not in the wider context of the principles of free movement of workers, but in the particular context of the transitional provisions. However, it does not follow that the national measure does not have to satisfy the EU principle of proportionality. On the contrary, measures adopted pursuant to a temporary derogation from the law and the rights of EU citizens which would otherwise apply do require to be justified in accordance with the principle of proportionality. Furthermore, there is no basis for the submission on behalf of the Secretary of State that this would confer in substance the same rights of free movement which the Act of Accession provides do not apply during the transitional period; rather, it will simply require that the measure is suitable and necessary to achieve the particular objective identified by the provision authorising the transitional derogation and that the burden imposed is, having regard to that specific objective, not excessive. We consider, therefore, that there is no good reason to depart from the decision of the House of Lords in Zalewska as regards the applicability of the principle of proportionality in the present context. As Lord Reed and Lord Toulson pointed out in their judgment in the Lumsdon case, at para 24, proportionality is a general principle of EU law. There is no basis for saying that it has no application in the context of reliance by a member state on a derogating provision such as that in paragraph 5 of Annex VIII. We consider that it is clear to the acte clair standard that the measures taken by the United Kingdom in issue in this case are required to satisfy the EU principle of proportionality. In these circumstances there is no need to address the respondents alternative submission based on article 14 of the ECHR, A1P1 and the Human Rights Act 1998. Issue (2): If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue? In April 2009 the Secretary of State had a limited, binary choice to make pursuant to paragraph 5 of Annex VIII. The UK had instituted the WRS at the time the Accession Agreements came into effect as its sole relevant national measure regulating access to its labour market under paragraph 2 of Annex VIII, by way of derogation from articles 1 to 6 of Regulation 1612/68. The UK had exercised its discretion under paragraph 2 of Annex VIII to continue to apply that measure until the end of the five year period following the date of the accession and had notified the EU Commission of this under paragraph 3 of that Annex. It is common ground that in 2009 there were serious disturbances of the UKs labour market or threat thereof, owing to the financial crisis. Accordingly, pursuant to paragraph 5 of Annex VIII the Secretary of State had to consider whether to continue to apply the WRS for an additional two years, as the sole relevant national measure in place at the time, or not. The question of the proportionality of the WRS as extended in 2009 has to be assessed in this context, as Judge Ward in the Upper Tribunal and the Court of Appeal correctly understood. The WRS had originally been introduced in 2004 as a measure to allow the monitoring of the impact of migration into the UK of workers who were A8 nationals and to safeguard the UKs social security system from exploitation by people who wished to come to the UK not to work but to live off benefits: see Zalewska at paras 34 35 per Lord Hope. It was as a measure having those objectives that it was held to be proportionate and lawful by a bare majority in the House of Lords in the Zalewska case. However, in 2009 the Secretary of State had to consider under paragraph 5 of Annex VIII whether the WRS could properly be maintained in place for an additional two years as a measure to address and ameliorate serious disturbances of the UKs labour market or the threat thereof. Put shortly, in 2009 did the WRS have a deterrent effect to moderate the in flow of A8 nationals as workers which might exacerbate the serious disturbance of the labour market then being experienced and, if so, would it be proportionate to continue to maintain it in place for that purpose? In the context of the decision to be made pursuant to paragraph 5 of Annex VIII, Mr Chamberlain accepts that the protection of the benefits system was not itself any longer a valid objective. Although the MAC in its report stated that it thought there might be a small impact of savings in spending on benefits if the WRS was retained, it also made it clear that its recommendation that the WRS be retained was not based on this. It is significant that for her case on proportionality of the extension of the WRS in 2009 for two years, the Secretary of State has simply relied upon what is said in the MAC report of April 2009. In effect she has adopted the MACs reasoning. She has not filed evidence to explain any distinct reasoning of her own as to why the extension of the WRS was justified, nor to point to any additional relevant factors other than those taken into account by the MAC in its report. This poses problems for the Secretary of State. The MAC was not asked to consider whether an extension of the WRS would be proportionate in terms of EU law and it expressed no view about that. Instead, the MAC was asked to consider, first, whether there was at the time a serious disturbance to the UK labour market. It concluded that there was a serious disturbance, as the UK economy was in recession and there had been a rise in unemployment and redundancies. That conclusion is not put in issue in these proceedings. The MAC was also asked to consider what the likely labour market impact of relaxing transitional measures [for A8 nationals] would be and whether it would be sensible to do so. In addressing these questions the MAC summarised its views at the start of its report as follows (pp 6 7): Would retaining the WRS help to address the disturbance? A8 immigration has increased rapidly since the date of accession and studies show that its impact on UK employment and unemployment rates to date has been negligible. These studies relate to a period of sustained economic growth prior to the current recession. Examination of the potential labour market impacts and review of the evidence available suggests that removing the WRS would not result in substantial increases in flows of A8 immigrants. It is, however, plausible to argue that it would probably result in a small positive impact on immigration flows relative to what would happen otherwise. In the current economic climate, we are concerned that these additional flows would have a small negative impact on the labour market, thus exacerbating the serious labour market disturbance already occurring. We emphasise that any effects of ending the WRS would be small in relation to the overall negative labour market consequences of the economic downturn. Nonetheless, we believe that it would be sensible to retain the WRS for two more years due to the possibility of small but adverse labour market impacts from abolishing it. In the body of the report the MAC emphasised problems with the available evidence base and the difficulties this posed for analysis of what was likely to happen if the WRS was not extended (para 5.3). However, it considered that there was sufficient information available for it to draw broad conclusions regarding the advisability, or otherwise, of retaining the WRS (para 5.4). At para 5.16 the MAC said this: In conclusion, it is very unlikely that removing the WRS would result in any substantial change in A8 immigrant inflows. However, it is possible that some factors, including the 90 registration fee, could have a small effect at the margin. The effect of maintaining the WRS will be to slightly reduce flows relative to what would otherwise be observed. We argue in this report that this slight dampening effect on flows is a positive phenomenon in the current economic circumstances, which is why we have not given detailed consideration to the option of relaxing the WRS by keeping the scheme but abolishing the 90 fee. It is right to observe that the conclusion of the MAC regarding the impact of removal of the WRS on the flow of workers into the UK from the A8 States was tentative and hedged about with qualifications. But on a fair reading of the report the MAC was clear that such removal would have a small effect in increasing the likely flow of such workers into the UK and that this would exacerbate the prevailing serious disturbance of the labour market. The MAC was a body with the relevant experience and expertise to make an assessment of this kind. This was a legitimate conclusion for it to reach. Although the WRS had originally been introduced for the purpose of monitoring rather than deterring the flow of workers from the A8 States, that does not mean that in the circumstances obtaining in 2009 the scheme was incapable of having the small deterrent effect which the MAC found that it did. In Chapter 6 of the report, entitled Conclusions, the MAC stated that it recognised that the Government would want to weigh the slight reduction in the inward flow to the UK of A8 nationals as workers if the WRS were retained against the longer term aim of free movement of labour within the EU and the spirit of the Treaty of Accession (para 6.7). It also said (para 6.8): it is clear that the WRS creates burdens for employers and immigrants. While we do not wish to trivialise these, they need to be assessed against the benefits of the scheme. This was not an exercise the MAC attempted to undertake itself. The Secretary of State has not adduced any evidence as to how she sought to balance the small impact on the labour market in the UK from retention of the WRS against the significant detriments resulting from the continued implementation of the WRS for employers and A8 nationals in the UK as workers. Whilst we do not consider that this disables the Secretary of State from contending that the retention of the WRS is to be regarded as a proportionate measure, it does mean that it is difficult to say that any significant weight or respect should be given to the Secretary of States (unexplained) assessment that it was right to extend the WRS when conducting a proportionality review. The leading decision of this court on the principle of proportionality in EU law is now Lumsdon. The judgment of Lord Reed and Lord Toulson, with which the other members of the court agreed, authoritatively sets out the approach to be adopted. At para 33 Lord Reed and Lord Toulson summarised the test of proportionality in EU law as follows: Proportionality as a general principle of EU law involves a consideration of two questions: first, whether the measure in question is suitable or appropriate to achieve the objective pursued; and secondly, whether the measure is necessary to achieve that objective, or whether it could be attained by a less onerous method. There is some debate as to whether there is a third question, sometimes referred to as proportionality stricto sensu: namely, whether the burden imposed by the measure is disproportionate to the benefits secured. In practice, the court usually omits this question from its formulation of the proportionality principle. Where the question has been argued, however, the court has often included it in its formulation and addressed it separately, as in R v Minister for Agriculture, Fisheries and Food, Ex p Fedesa (Case C 331/88) [1990] ECR I 4023. For reasons which appear below, it should be emphasised that Lord Reed and Lord Toulson in this passage have made it clear that the third question, regarding proportionality stricto sensu, does indeed constitute an aspect of the EU law principle of proportionality. It is identified as such by the Court of Justice whenever it is necessary for it to do so. Lord Reed and Lord Toulson then went on at paras 34 and following to give guidance regarding the appropriate intensity of review in applying the proportionality standard. This depends on context. It ranges from intervening on the basis that a measure is manifestly inappropriate (the usual standard applied in proportionality review of measures taken by EU institutions or of national measures implementing EU measures, at least where these reflect political, economic or social choices and a complex assessment of such factors: paras 40 and 73 respectively) to more demanding standards of review which may be relevant in relation to national measures falling within the scope of EU law which derogate from fundamental freedoms, including free movement of workers (paras 50 72). Also, as Lord Reed and Lord Toulson point out at para 74, where a member state relies on a reservation or derogation in a Directive in order to introduce a measure which is restrictive of one of the fundamental freedoms guaranteed by the Treaties, the measure is likely to be scrutinised in the same way as other national measures which are restrictive of those freedoms. As a result of this analysis, at paras 75 82 Lord Reed and Lord Toulson were critical of the reasoning of the English Court of Appeal in R (Sinclair Collis Ltd) v Secretary of State for Health [2011] EWCA Civ 437; [2012] QB 394, in which the less intrusive manifestly inappropriate standard of review was applied in relation to a national measure restricting the free movement of goods. As we have held above, Judge Ward correctly concluded that it was necessary to conduct a proportionality review of the 2004 Regulations at the time when they were given extended effect in 2009 for a further two years. His judgment was delivered before the decision in the Lumsdon case was handed down. In the section of his judgment in which he carried out this review, Judge Ward first considered at paras 82 to 103 the appropriate intensity of review to be applied, particularly in the light of the decision of the Court of Appeal in the Sinclair Collis case. Following the guidance given by Lord Neuberger MR in that case regarding factors which affect the intensity of proportionality review, Judge Ward characterised the decision as one involving economic or social choice, as a factor tending to expand the area of discretion available to the Secretary of State under the proportionality test, albeit the choice was limited in its range by the binary nature of the decision to be made and was not one involving a political dimension to any significant degree (since the Secretary of State had in effect sub contracted consideration of the issue of extension of the WRS to a technical body, the MAC, and there was only limited Parliamentary scrutiny of the extension decision under the negative resolution procedure) (para 98); and the judge had regard to the difficulties of assessment of the evidence regarding the effects of maintaining the WRS in place, as a factor again tending to expand the area of discretion for the Secretary of State (para 99). But Judge Ward also took into account a series of factors which in his view tended to reduce that area of discretion: that the measure was adopted by delegated legislation and subject only to the negative resolution procedure, and in reliance on a report which the MAC itself considered to be rushed (para 100); that the Secretary of State adduced no evidence of having conducted his own proportionality analysis, despite the limitations in the question put to the MAC and the need, identified by the MAC, for its answer to the Secretary of State to be weighed against other factors (para 101); and the fact that the measure in question was a national measure in derogation from the principle of the free movement of workers, in relation to which a court should be astute to ensure that the national government has not unduly sought to favour its national interest at the expense of EU principles (para 102). His conclusion was that the relevant degree of intensity of review was not confined to the manifestly appropriate test which appears in some cases, but was significantly more intrusive than that, albeit with allowance for some margin of appreciation for the Secretary of State (para 103). In the next section of his judgment, at paras 104 to 121, Judge Ward considered whether the Extension Regulations promulgated in 2009 in relation to the WRS passed the proportionality test. He came to the conclusion that the fee and registration requirements in those Regulations were disproportionate and contrary to EU law. He reached this conclusion on two distinct grounds: i) the fee was set to defray the costs of an administrative scheme aimed at monitoring migrant inflows which does not itself materially help to address the disturbance [of the labour market], so the WRS could not be regarded as an appropriate tool for proportionality purposes for addressing the serious disturbance to the UK labour market in that it relies effectively on payment of a sum of money by A8 nationals, while not otherwise affecting their access to it (para 112). Therefore, the Secretary of States case on proportionality failed to satisfy the first stage of the proportionality test; and in any event, even if that was wrong, ii) the WRS failed to comply with proportionality stricto sensu, at the third stage of the test. Regulation 9 of the 2004 Regulations created a criminal offence if an employer employed an A8 national who was not registered as required under the WRS, subject to certain defences. Accordingly, the judge found that the WRS created a burden on employers, even if little research had been done to examine its scale (para 114). In addition, the judge referred at para 115 to the impact of the WRS in relation to A8 nationals who came to work in the UK, paid taxes here and participated actively in UK society. He noted that the MAC report indicated that for language and other reasons there was a significant rate of non registration by A8 nationals working in the UK which could be up to 33%, and further noted that failure by an A8 national to register under the WRS had significant adverse consequences for such a person in terms of exclusion from welfare benefits, no matter how unforeseeable the circumstances which have caused them to be in need of them, and it prevented them from relying on time spent working in the UK whilst unregistered as a contribution to the five years needed to establish a right of permanent residence here under article 16 of the Citizens Directive. The judge found that these detriments constituted a very real downside for A8 nationals who did not register, noting that this had been characterised as severe by Baroness Hale at para 57 of her speech in Zalewska. Moreover, for those A8 nationals who did comply with the registration requirement under the WRS, the fee they had to pay was a sum equivalent to around 1% of annual gross pay for someone working at the national minimum wage for a 35 hour week for 48 weeks (as noted in para 5.9 of the MAC report). The judge found that the small and speculative advantage in respect of reducing the inward flow of A8 nationals as workers from extending the WRS was wholly outweighed by the disadvantage to A8 nationals and employers in the UK and the limitation on Treaty principles of free movement (para 117). That was the judges view in light of the conclusion he had reached at para 103 regarding the appropriate intensity of review, as referred to above. But he went on to hold that even if the appropriate standard of review was the manifestly inappropriate test, which allows a wider margin of discretion to the relevant decision maker, he would have come to the same conclusion (para 118). The Secretary of State challenged this assessment in the Court of Appeal. The Lumsdon judgment had now been handed down and the Court of Appeal analysed the position with reference to the guidance it contains. Rupert Jackson LJ gave the leading judgment, with which the other members of the court agreed. At paras 57 to 63 he accepted a submission for the Secretary of State that Judge Ward at para 98 of his judgment had gone too far in discounting the political aspect of the decision to promulgate the Extension Regulations when he assessed the intensity of review to be applied; but Rupert Jackson LJ still held that whilst the degree of scrutiny should not be intense, it was not a case in which the more generous manifestly disproportionate test applied (para 63). In the event, the modest difference between Rupert Jackson LJ and Judge Ward regarding the precise intensity of review to be applied was immaterial, because Judge Ward had come to the view that the Extension Regulations were disproportionate even if the manifestly disproportionate test was applied. Rupert Jackson LJ pointed out that the Upper Tribunal is a specialist tribunal whose decision deserves respect, and that it can only be interfered with if the tribunal has erred in law: see section 13 of the Tribunals, Courts and Enforcement Act 2007. He set out paras 111 to 115 in the judgment of Judge Ward and said that he could find no fault with his reasoning in those paragraphs. Therefore, Rupert Jackson LJ dismissed the Secretary of States challenge to the Upper Tribunals assessment that the Extension Regulations were disproportionate. The Secretary of State appeals to this court on this issue. Mr Chamberlain submits that Judge Ward erred in relation to both the grounds on which he found that the Extension Regulations were disproportionate and that the Court of Appeal erred in endorsing his assessment. We consider that there is force in Mr Chamberlains criticism of the first ground relied on by Judge Ward at paras 112 and 113 of his judgment, in relation to the first question that arises on a proportionality review (whether the measure is suitable or appropriate to achieve the objective pursued). Mr Chamberlain submits that, as found by the MAC in its report, extending the WRS in 2009 would have a small effect in reducing the inward flow of workers as compared to what would happen if it were not extended, and to that (admittedly small) extent it would prevent the then existing serious disturbance of the labour market from getting worse. Therefore, the extension of the WRS pursuant to paragraph 5 of Annex VIII was a measure appropriate to achieve the relevant objective, namely alleviation of the disturbance in the labour market as compared with the position which would obtain if the WRS were not extended, even if only to a small degree. Moreover, under paragraph 5 of Annex VIII, by virtue of the binary choice that it imposed on the UK in 2009, that was the only measure available to the Secretary of State to take at that time to alleviate the general disturbance in the national labour market. It could not be said that there was any less onerous method of achieving that objective. Mr Thomas de la Mare QC for the Interveners submitted that in order for the Secretary of State to satisfy the first stage of the proportionality test he had to be able to show that the extension of the WRS was materially capable of tackling or mitigating the serious disturbances to the labour market referred to in paragraph 5 of Annex VIII. He further submitted that the Secretary of State could not show that this was the case. We did not understand Mr Chamberlain to dispute the first of these submissions, save that he emphasised that the idea of materiality in this context is not a demanding one, and would only exclude measures which were immaterial or wholly de minimis in relation to their effect in tackling or mitigating the serious disturbances to the labour market in question. We agree. Mr Chamberlain took issue with the second submission. He was right to do so. The MAC report showed that extending the WRS would have a material, though small, effect in mitigating the serious disturbances to the UK labour market by reducing the flow of workers from A8 States which would otherwise occur, which would have the effect of exacerbating those disturbances. However, we cannot accept Mr Chamberlains wider submission that Judge Ward and the Court of Appeal erred in their assessment regarding the third stage of the proportionality analysis (proportionality stricto sensu). The position was stark. The extension of the WRS would have only a small and rather speculative mitigating effect in relation to the serious disturbances in the UKs labour market, as found by the MAC, whereas the burdens and detriments it would impose on employers and A8 nationals working in the UK were substantial and serious. We should say that we have some reservations about whether Rupert Jackson LJ was right to criticise the level at which Judge Ward pitched the intensity of review which he considered to be appropriate in this case. Although, obviously, Judge Ward did not have the benefit of the analysis by this court in Lumsdon when he made his assessment, we think that in broad terms the level of intensity he judged to be appropriate in this case is compatible with the guidance given in Lumsdon. In particular, the extension of the WRS was rightly regarded by Judge Ward as a national measure which was restrictive of the fundamental freedom of movement for A8 nationals as protected by the Treaties, taken in reliance on a reservation or derogation in an EU instrument, in relation to which a relatively demanding intensity of review is appropriate: see Lumsdon at para 74. However, this is not a case which turns on the precise calibration of the intensity of review to be applied in relation to the decision to extend the WRS in 2009. Both Judge Ward and the Court of Appeal considered that this measure failed to pass muster even if the markedly more generous manifestly inappropriate test was applied. In our view, they were plainly entitled to come to that conclusion in the circumstances of this case, particularly in the absence of any attempt by the Secretary of State to explain why the very limited and rather speculative benefits associated with the extension of the WRS in addressing labour market disturbances outweighed the considerable detriments for employers and workers from A8 States associated with the scheme. We agree with their conclusion. In arriving at this view, we have noted that in the Zalewska case in the House of Lords it was held, by a majority, that it was not disproportionate for the WRS to be introduced and implemented from 2004 as a monitoring measure in the initial phase of the expansion of the European Union by the accession of the A8 States. That conclusion does not provide a relevant guide for the outcome of the proportionality analysis in the present case. By contrast with the proportionality review in Zalewska, the analysis in this case has to be undertaken in the very different legal context set out in paragraph 5 of Annex VIII. In order to justify the extension of the WRS in 2009, the Secretary of State has to be able to say that this is a measure which is proportionate having regard to the objective of mitigating serious disturbances in the labour market. Factors which were relevant to the assessment in the Zalewska case, including a desire to protect against additional and inappropriate demands on the UKs social security system (see paras 35 36 per Lord Hope), are no longer relevant in the present context. In Zalewska, the Governments position was that the WRS was intended to be a monitoring measure and was not expected to be a barrier to those who wanted to work (see para 34 per Lord Hope), whereas in the present context this position is reversed: the justification of the extension of the WRS is said to be that it does provide, to a degree, a barrier to A8 nationals who might otherwise come to work in the UK and the justification does not rely upon the effect of the WRS as a monitoring measure. The result of the analysis relevant in the present case is that the extension of the WRS in 2009 was a disproportionate measure which was unlawful under EU law. As we have come to the clear conclusion that the decision to extend the WRS in 2009 was required to conform with the principle of proportionality in EU law and as the CJEU would take the view that the application of that principle to the facts is a matter for the national court, these matters are acte clair and this court is not required to make a preliminary reference to the CJEU. Issue (3): If the Secretary of State succeeds on Issue 1 or Issue 2, does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under that Directive? The conclusion on the proportionality issue above means that the Secretary of States appeal falls to be dismissed, as happened in the Court of Appeal. However, Ms Helen Mountfield QC on behalf of the respondent contends that there is another, alternative reason why the Secretary of States appeal should be dismissed, even if the extension of the WRS in 2009 was proportionate and lawful. On her alternative case the respondent submits that as a result of her residence in the UK from 2008 and working here from 14 September 2009 she had acquired the right of permanent residence by virtue of article 17(1)(a) of the Citizens Directive and regulation 5(2)(c) of the 2006 Regulations by the time she made her claim for state pension credit on 24 October 2012 and was for that reason entitled to claim that benefit. Although, on the hypothesis that the extension of the WRS was lawful, she did not qualify as a worker with a right of residence under article 7 of the Citizens Directive in the period before she registered for a certificate to work on 20 August 2010, that does not matter. Article 17(1)(a) confers the right of permanent residence on workers or self employed persons who reach the age of retirement provided that they have been working in that member state for at least the preceding 12 months and have resided there continuously for more than three years; the relevant requirement of residence in this provision is residence in fact, rather than residence pursuant to the provisions set out in the Citizens Directive; and the respondent can show that by the time of her claim for state pension credit she had resided in the UK for more than three years. The Secretary of State disputes this alternative argument of the respondent. She submits that the concept of residence in article 17(1)(a) is to be read in the light of article 16(1) of the Citizens Directive, from which it is said to derogate. Article 16(1) provides that Union citizens who have resided legally in a host member state for a stipulated continuous period will acquire a right of permanent residence there. Similarly, although article 17(1)(a) uses the term resided without the adverb legally, it should be taken to be referring to the same concept of legal residence. The case law of the CJEU has established that legal residence in the context of article 16(1) means residence in accordance with article 7 of the Citizens Directive: see, in particular, the judgment in Ziolkowski v Land Berlin (Joined Cases C 424/10 and C 425/10) EU:C:2011:866; [2014] All ER (EC) 314, paras 31 51. The respondent cannot show that her period of residence in the UK was legal in this sense; in particular, since she did not comply with the requirement of registration under the WRS until 20 August 2010, she cannot show that before that date she was resident here as a worker or self employed person within the scope of article 7(1)(a) of the Citizens Directive. On this issue, Judge Ward accepted the submission of the respondent, whereas the Court of Appeal accepted the submission of the Secretary of State. Resolution of the dispute on this issue is not necessary for the determination of the present appeal, because the Secretary of State has lost on the proportionality issue in relation to the extension of the WRS. However, since the issue regarding the interpretation of article 17(1)(a) may be important in other cases and we are of the view the Court of Appeal has erred on this point, we consider that we should deal with it. It is unnecessary to decide whether the position is acte clair, because by reason of our conclusion on the proportionality issue there is no need for a reference to the CJEU. Recital (17) to the Citizens Directive explains the purpose of article 16. Recital (19) explains the purpose of article 17. Recital (17) is explicit in stating that the right of permanent residence which article 16 provides for should be laid down for all Union citizens and their family members who have resided in the host member state in compliance with the conditions laid down in this Directive during a continuous period of five years . Recital (19) is in different terms. It does not refer to residence in compliance with the conditions laid down in the Citizens Directive. It refers to, among others, workers who have resided in the host member state who have acquired rights under Regulation 1251/70. Article 1 of Regulation 1251/70 stipulates that the Regulation shall apply to nationals of a member state who have worked as employed persons in the territory of another member state, and it uses the term worker in this sense. Article 2(1)(a) of Regulation 1251/70 provides for a right to remain permanently in the territory of a host member state for a worker who satisfies certain conditions, including where she has been employed in that state for at least the last 12 months and has resided there continuously for more than three years. Article 4 provides that continuity of residence may be attested by any means of proof in use in the country of residence. Accordingly, Regulation 1251/70 uses the term worker in a simple factual sense and similarly refers to continuous residence in a simple factual sense. By contrast with the Citizens Directive, the Regulation contains no reference to lawful residence which could be taken to inform the meaning of continuous residence. The reference in Recital (19) to the Citizens Directive to rights of permanent residence acquired under Regulation 1251/70 is a strong indication that the EU legislature intended the concept of continuous residence as used in article 17(1)(a) of the Directive to reflect the concept of continuous residence as used in article 2(1)(a) of the Regulation. Accordingly, both in its text, which contrasts with the text of recital (17), and by reason of its reference back to rights acquired under Regulation 1251/70, Recital (19) indicates that the concept of residence as referred to in article 17(1)(a) is factual residence, as the respondent contends. We consider that recital (3) to the Citizens Directive reinforces this interpretation of article 17(1)(a). It explains that the EU legislature intended to codify and review the existing EU instruments dealing with workers and others in order to simplify and strengthen the right of free movement and residence of all Union citizens. Thus, it was part of the purpose of the Directive to enhance existing rights of free movement and residence, such as those which had arisen under Regulation 1251/70, and not to subject them to new restrictive conditions. The same point emerges from recital (1) to Regulation 635/2006, which repealed Regulation 1251/70, as follows: [The Citizens Directive] consolidated in a single text the legislation on the free movement of citizens of the Union. Article 17 thereof includes the main elements of [Regulation 1251/70] and amends them by granting beneficiaries of the right to remain a more privileged status, namely that of the right of permanent residence. There are in addition two textual features of article 17(1)(a) which in our view point strongly in favour of the interpretation arrived at by Judge Ward. First, the text in article 17(1) essentially tracks that in article 2 of Regulation 1251/70, with appropriate minor modifications. Secondly, the language used in article 17 (residence; have resided continuously) is in marked contrast to that used in article 16 and again in article 18 (have resided legally and after residing legally). This has every appearance of being deliberate, and the underlying purpose of article 17 as set out in recital (19) and the correspondence of its text with article 2 of Regulation 1251/70 confirms that impression. It is also noteworthy that in the CJEUs analysis in the Ziolkowski judgment of the meaning of legal residence in article 16 and article 18, which itself turns on a close textual analysis of the Directive, the court did not suggest that the term residence in article 17 had to be interpreted as having the same meaning. Furthermore, since article 17(1) is concerned with preserving and protecting rights already acquired under Regulation 1251/70, it seems impossible to read it as referring to legal residence in the sense given by the Ziolkowski judgment. When the Citizens Directive first came into force in 2004 and when it was first implemented at national level throughout the EU within two years after that as required by article 40, no one could have built up any period of continuous residence pursuant to their rights under article 7 of the Directive, let alone the three years of continuous residence referred to in article 17(1)(a). Yet individuals could in principle have rights under article 17(1) as soon as implementation of the Directive took effect. Accordingly, it seems necessary to interpret the concept of continuous residence in article 17(1)(a) as referring to factual residence rather than legal residence as that term is used in article 16. The meaning of continuous residence in article 17 cannot change over time, so it is no answer to the respondents claim to be entitled to a right of permanent residence in the UK under article 17(1)(a) that she had not herself acquired rights under Regulation 1251/70 in the UK prior to the coming into force of the Citizens Directive and the domestic regulations which implemented it in domestic law. Mr Chamberlain emphasised the introductory sentence in article 17(1), which states that the provision applies By way of derogation from article 16 and refers to acquisition of a right of permanent residence before completion of a continuous period of five years of residence by the persons then specified in the sub paragraphs. He submitted that the reference back to article 16 meant that residence in article 17(1) was being used in the same sense as residence in article 16, that is to say legal residence. However, we do not consider that the opening words of article 17(1) can bear the weight which Mr Chamberlain sought to place on them. In itself the use of the word residence in the opening part of article 17(1) is neutral on the question of what form of residence is referred to in the sub paragraphs which follow. It is those sub paragraphs which set out positively the conditions which have to be satisfied for an individual to acquire the right of permanent residence under that provision. For a right of permanent residence to arise under article 16(1) a five year period of residence which has the quality of being legal in the requisite sense is required. In order to indicate that article 17(1) sets out a right of permanent residence which departs from, and is more generous than, the right conferred under article 16(1), it was sufficient for the drafter to state that the right under article 17(1) arises where there is a period of residence of less than five years, without needing to refer also to whether the residence in question had to be legal or not. Further, it is natural for the drafter simply to speak of residence in the opening words of article 17(1) if it is the concept of factual residence rather than legal residence which is employed in the following sub paragraphs in that provision. In any event, the indications from the text of article 17(1) and its purpose as set out in recital (19), as discussed above, appear to us to have far greater weight than any indication to be derived from the opening words of the provision. Mr Chamberlain also relied on other judgments of the CJEU, but they were not concerned with the interpretation of article 17(1), nor did they involve any attempt to examine the purpose of that provision. In particular, Mr Chamberlain referred to the judgments in Alarape v Secretary of State for the Home Department (Case C 529/11) [2013] 1 WLR 2883 and in FV (Italy) v Secretary of State for the Home Department and B v Land Baden Wrttenberg (Joined Cases C 424/16 and C 316/16) [2019] QB 126. However, these judgments do not support his interpretation of article 17(1). In the Alarape case the CJEU addressed the question whether periods of residence completed pursuant to article 12 of Regulation 1612/68, which provides a right for the child of a worker to be admitted to educational courses in the host member state, could count towards the five years of legal residence required for acquisition of a right of permanent residence under article 16(1) of the Citizens Directive. The CJEU applied its ruling in the Ziolkowski judgment regarding the meaning of legal residence in article 16(1) and held that residence pursuant to article 12 of Regulation 1612/68, but which did not comply with article 7 of the Citizens Directive, did not count for the purposes of article 16(1). In our view, this does not support Mr Chamberlains interpretation of article 17(1) of the Citizens Directive. If anything, it tends to support Judge Wards interpretation of that provision. That is because, following the guidance in the judgments in Ziolkowski and Alarape, residence in a host member state pursuant to rights under Regulation 1251/70 and Directive 75/34/EEC likewise would not count as legal residence for the purpose of article 16(1) of the Citizens Directive; but it is rights acquired by residence pursuant to Regulation 1251/70 and Directive 75/34/EEC which are intended to be respected and protected by article 17 of the Citizens Directive: see recital (19) to that Directive. FV (Italy) concerned the interpretation of article 28(3)(a) of the Citizens Directive, which provides for enhanced protection against expulsion of EU citizens if they have resided in the host member state for the previous ten years: in such a case the host member state may only decide to expel them on imperative grounds of public security. The CJEU held that article 28 had to be read as a whole, as creating steadily increasing protection for EU citizens according to their integration in the society of the host member state. Therefore, the protection in article 28(3) was to be taken to be conditional on the EU citizen having a right of permanent residence in the host member state, as referred to in article 28(2): see paras 40 61 in the judgment. In answer to the first question referred by this court, the CJEU held at para 61 that article 28(3)(a) must be interpreted as meaning that it is a prerequisite of eligibility for the protection against expulsion provided for in that provision that the person concerned must have a right of permanent residence within the meaning of article 16 and article 28(2) of [the Citizens] Directive. Again, the ruling in Ziolkowski regarding the interpretation of article 16(1) was applied: see para 59. In FV (Italy) there was no question of acquisition of a right of permanent residence pursuant to article 17 of the Citizens Directive, so the question referred did not mention that provision: see para 39. The CJEU made no reference to it in its judgment. Since article 28(2) refers in general terms to Union citizens or their family members who have the right of permanent residence, if an individual had acquired such a right by virtue of article 17 rather than by virtue of article 16 of the Citizens Directive it seems entirely possible that by extension of its reasoning in FV (Italy) the CJEU would hold that such an individual likewise enjoys enhanced protection under article 28(3)(a). The important point, however, is that the judgment in FV (Italy) does not support Mr Chamberlains submission regarding the proper interpretation of article 17(1). Mr Chamberlain also relied on observations by Advocate General Trstenjak in her opinion in Secretary of State for Work and Pensions v Lassal (Case C 162/09) [2011] 1 CMLR 31, at points 68 69, to the effect that article 16(1) and article 17(1) of the Citizens Directive are closely connected and that therefore it must in principle be assumed that the two factual elements whose wording is almost identical a continuous period of five years of residence in the host member state in article 16(1) of the Directive and resided continuously in the host member state for more than two years in article 17(1)(b) of the Directive are to be interpreted in the same way. However, this part of the Advocate Generals reasoning was not endorsed by the CJEU in its judgment. Moreover, as Judge Ward pointed out in his judgment at para 58, the Advocate Generals recitation of the text in the two provisions contains an unfortunate and highly significant misquotation, in that she omits the critical phrase, have resided legally, in article 16(1). Also, the Advocate Generals view is not supported by any positive reasoning, other than to point out the linkage between article 16 and article 17(1) which appears from the opening sentence of article 17(1) as to which, see above. Accordingly, we do not consider, with respect, that Advocate General Trstenjaks opinion on this point represents a sound guide to the interpretation of article 17(1). For the reasons set out above, in our judgment the Court of Appeal erred in its interpretation of article 17(1). Judge Ward arrived at a correct interpretation of that provision, in holding that residence in article 17(1) refers to factual residence rather than legal residence as required under article 16(1), as interpreted by the CJEU in the Ziolkowski judgment. Issue (4): If article 17 of the Citizens Directive requires legal residence in the relevant sense, is actual residence sufficient for the purposes of the 2006 Regulations? As we would hold that the term residence in article 17(1)(a) has the meaning set out above, no question arises regarding a possible difference of meaning between article 17(1)(a) and regulation 5(2)(c) of the 2006 Regulations which implements that article in domestic law by using the phrase resided in the United Kingdom continuously for more than three years prior to the termination [of employment or self employment]. Therefore the fourth issue on the appeal does not arise. Conclusion For the reasons we have set out, we would dismiss the Secretary of States appeal.

By a Treaty signed at Athens on 16 April 2003 (the Athens Treaty), ten Accession States became member states of the EU. The Act of Accession, annexed to the Athens Treaty, permitted the existing member states to apply national measures regulating access to their labour markets by nationals of the eight most populous Accession States (the A8 States) which included Latvia. It required the existing member states to apply measures, for an initial period of two years from the date of accession, regulating access to their labour markets by Latvian nationals. The existing member states were permitted to continue to apply such measures until the end of the five year period following the date of the accession. An existing member state maintaining such measures at the end of the five year period was permitted, in case of serious disturbances of its labour market or threat thereof and after notifying the Commission to continue to apply these measures until the end of the seven year period following the date of accession. The Act of Accession was given effect in the domestic law of the UK by the European Union (Accessions) Act 2003 and the Accession (Immigration and Worker Registration) Regulations 2004 (SI 2004/1219) (the 2004 Regulations). The 2004 Regulations established the Worker Registration Scheme (WRS) which obliged any national of an A8 State to register before starting employment and before taking up any new employment. Each registration incurred a fee of 90 and the obligation to register continued until the worker had worked for 12 months. Failure to register work in accordance with the WRS would mean that the individual would not derive from that work a right to reside in the UK. In 2009 HM Government asked the Migration Advisory Committee (MAC) to advise it in relation to the continuation of the WRS. In the light of the MACs advice, the Government decided to extend the measures applicable to nationals of the A8 States for a further two years. The central issue in this case is whether Ms Tamara Gubeladze (the respondent), a Latvian national living in the UK, is entitled to receive state pension credit. The respondent came to the UK in 2008 and worked for various employers between September 2009 and November 2012. In the periods when she was not working she was a jobseeker. She was issued with a registration certificate under the WRS on 20 August 2010. Her employment before that date was not covered by the certificate. On 24 October 2012, the respondent made a claim for state pension credit. The basis of her claim was that she had a right of residence in the UK under regulation 5(2) of Immigration (European Economic Area) Regulations 2006 (SI 2006/1003), (the 2006 Regulations), which implement article 17(1)(a) of Directive 2004/38/EC (the Citizens Directive), as a person who had retired, having pursued activities as a worker for at least a year in the UK, and having resided continuously in the UK for three years. The Secretary of State for Work and Pensions (the Secretary of State) rejected her claim on the ground that the requirement of three years continuous residence required three years continuous residence which meant a right of residence under the Citizens Directive. Since the respondents asserted right of residence during that time was as a worker, but she had not been registered under the WRS for part of that period, the Secretary of State considered that she had not resided in the UK pursuant to a right of residence conferred by the Citizens Directive and therefore did not meet the three year residence requirement in regulation 5(2) of the 2006 Regulations. The respondents appeal to the First tier Tribunal was dismissed on jurisdictional grounds. On appeal to the Upper Tribunal, it held that the First tier Tribunal had had jurisdiction to hear the appeal and it re made the substantive decision. It allowed the respondents appeal on two distinct grounds. First, it held that article 17 of the Citizens Directive, and therefore regulation 5(2)(c) of the 2006 Regulations, did not require that the three years continuous residence be in exercise of rights under the Citizens Directive. Actual residence was sufficient. Secondly, it held that the decision to extend the WRS in 2009 was disproportionate and therefore unlawful. On that footing, the respondents residence in the UK at the relevant time had not involved any breach of any applicable valid domestic law and so was to be regarded as legal residence for the purposes of the 2006 Regulations. The Secretary of State appealed to the Court of Appeal which dismissed the appeal. In the Court of Appeal, the Secretary of State succeeded in her appeal in relation to the first point, with the Court holding that the word reside in article 17(1)(a) of the Citizens Directive meant legally reside in the requisite sense; but the Court held that the extension of the WRS was disproportionate and therefore incompatible with EU law. The Secretary of State appealed to the Supreme Court. The Supreme Court unanimously dismisses the appeal. Lord Lloyd Jones and Lord Sales give the sole judgment with which the other Justices agree. (1) Is the decision to extend the WRS open to challenge on grounds of proportionality? The Secretary of State submits that the extension of the WRS did not interfere with or derogate from any pre existing protected interest, so it was not subject to any requirement of proportionality under EU law [27]. The Court considers that the question at the heart of this issue is whether the Act of Accession created relevant protectable interests by conferring rights of EU citizenship on the new EU citizens from the A8 States subject to initial, tapering exceptions imposed by the existing member states, or whether it should be regarded as providing for only such rights as may be conferred by the existing member states during the transitional period. The House of Lords in Zalewska v Department for Social Development [2008] UKHL 67 took the former view [32]. The Court agrees. It considers that there was no intention under the Act of Accession to confer an unfettered right to derogate from general principles of freedom of movement. On the contrary, derogation from those principles must be subject to the principle of proportionality in EU law [35]. This conclusion is supported by the scheme of the relevant instruments [33] and the purpose of the measures [35]. (2) If the decision to extend the WRS is open to challenge on grounds of proportionality, did the Upper Tribunal and the Court of Appeal err in their approach and conclusion on this issue? It is significant that the Secretary of State has simply relied upon what is said in the MAC report of April 2009. She has not filed evidence to explain any distinct reasoning as to why the extension of the WRS was justified, nor to point to any additional relevant factors other than those taken into account by the MAC in its report [49]. This poses problems for the Secretary of State because the MAC was not asked to consider whether an extension of the WRS would be proportionate in terms of EU law and it expressed no view about that [50]. The leading decision of this Court on the principle of proportionality in EU law is now R (Lumsdon) v Legal Services Board [2015] UKSC 41 [57]. This explains that the principle applies according to a three stage test. As regards the first stage of this test, the Court considers that the continuation of the WRS is suitable or appropriate to achieve the objective pursued [66]. The MAC report showed that extending the WRS would have a material, though small, effect in mitigating the serious disturbances to the UK labour market by reducing the flow of workers from A8 States which would otherwise occur [68]. No issue arises in relation to the second stage. However, the Court finds that the third stage of the proportionality analysis (sometimes called proportionality stricto sensu) is not satisfied. According to the assessment in 2009 the extension of the WRS would have only a small and rather speculative mitigating effect in relation to the serious disturbances in the UKs labour market, as found by the MAC, whereas the burdens and detriments it would impose on employers and A8 nationals working in the UK were substantial and serious [70]. The result is that the extension of the WRS in 2009 was a disproportionate measure which was unlawful under EU law [74]. On the basis of the Courts rulings on Issues 1 and 2, the appeal falls to be dismissed. (3) If the Secretary of State succeeds on Issue 1 or Issue 2, does article 17(1)(a) of the Citizens Directive require a person to show that, throughout the period of continuous residence, she enjoyed a right of residence under that Directive? Although resolution of this issue is not necessary for the determination of the present appeal, the Court considers that it should deal with it since the interpretation of article 17(1)(a) may be important in other cases [79]. The Court concludes that, on a textual interpretation of the relevant provisions, the concept of residence as referred to in article 17(1)(a) is factual residence [81]. This interpretation is reinforced by the purpose of the Citizens Directive, which is to enhance existing rights of free movement and residence and not to subject them to new restrictive conditions [82]. For these reasons, the Upper Tribunal arrived at a correct interpretation of article 17(1) in holding that residence in article 17(1) refers to factual residence rather than legal residence in the specific sense which that term bears in the context of the Citizens Directive [92]. (4) If article 17 of the Citizens Directive requires legal residence in the relevant sense, is actual residence sufficient for the purposes of the 2006 Regulations? As the Court holds that the term residence in article 17(1)(a) has the meaning set out above, this issue does not arise [93]. For the reasons set out in the judgment, the Court would dismiss the Secretary of States appeal [94].

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