A Local Authority v AG (No. 2)

Since my first judgment given on 16 March 2020 (A Local Authority v AG and others [2020] EWFC 18) a lot has happened. I do not repeat the background facts; anyone unfamiliar with the factual detail should perhaps pause and read my first judgment at this point.

At paragraph 49 of my first judgment I referred to the potential remedy of a declaration of incompatibility pursuant to section 4(2) of the Human Rights Act 1998. That remedy had not by then been sought by the local authority. I expressed some very provisional views on the question of incompatibility but explained that they could hardly be regarded as definitive given that I had heard no argument on the subject.

The care proceedings have moved on. An interim care order has been made by me in respect of A; she is in foster care. G and S have returned with their parents to their homeland. Nonetheless, the local authority, supported by the Guardian, wishes to make and pursue an application for a declaration that the Diplomatic Privileges Act 1964 is incompatible with (at least) article 3 of the 1950 European Convention for the Protection of Human Rights and Fundamental Freedoms. This is opposed by the

The declaration application has not yet been made by the local authority. This is because, given its now academic status, an understanding has been reached between all parties that I should in effect conduct a permission hearing to decide whether it should be allowed to proceed.

The relevant facts leading to this state of affairs are as follows:

I have received extensive submissions on the law about academic claims although there is not any dispute about what it says.

Up until 1999 the law set its face against hearing any academic claim: see the decisions of the House of Lords in Sun Life Assurance Co. of Canada v Jervis [1944] AC 111, 113-114; and Ainsbury v Millington (Note) [1987] 1 WLR 379, 381. In the latter case Lord Bridge stated that it was a fundamental feature of the judicial system that the courts decide disputes between the parties before them; they do not pronounce on abstract questions of law when there is no dispute to be resolved.

However, in R v Secretary of State for the Home Department ex p Salem [1999] 1 AC 450, the House of Lords stipulated an exception to this absolute rule. Lord Slynn of Hadley stated at 456-457:

“My Lords, I accept, as both counsel agree, that in a cause where there is an issue involving a public authority as to a question of public law, your Lordships have a discretion to hear the appeal, even if by the time the appeal reaches the House there is no longer a lis to be decided which will directly affect the rights and obligations of the parties inter se. The decisions in the Sun Life case and Ainsbury v. Millington (and the reference to the latter in Rule 42 of the Practice Directions Applicable to Civil Appeals (January 1996) of your Lordships' House) must be read accordingly as limited to disputes concerning private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however, be exercised with caution and appeals which are academic between the parties should not be heard unless there is a good reason in the public interest for doing so, as for example (but only by way of example) when a discrete point of statutory construction arises which does not involve detailed consideration of facts and where a large number of similar cases exist or are anticipated so that the issue will most likely need to be resolved in the near future.”

Although I have had cited to me many subsequent authorities, all of them seem to me to be no more than illustrations of the Salem principle. This is straightforward. The court should exercise its discretion to hear an academic application in the public law field with caution. It should only hear such an application where there is a good reason in the public interest to do so.

It is clear to me that the exception is strictly confined to the public law field, and that in the private law field the prohibition endures. One of the cases cited to me (Hutcheson v Popdog Ltd (Practice Note) [2012] 1 WLR 782) suggests that, provided that the respondent is fully indemnified in costs, a private law academic appeal can be heard. I do not understand how this is consistent with the scope of the exception formulated in Salem. The case before me is, however, a public law case and falls potentially within the scope of the exception, so I do not need to grapple with that particular problem.

Lord Slynn gives as an example the situation where a discrete point of statutory interpretation arises which does not involve detailed consideration of facts and where a large number of similar cases are anticipated. In such circumstances there will be little difficulty in deciding that there is a good reason in the public interest to hear the academic claim. That seems obvious. However, I do not deduce from that illustration a rule that a good reason in the public interest for hearing the claim can only be shown if a large number of cases would be thereby affected. It all depends on the context.

In this case it is certainly true that there have not been many reported cases of proceedings under Part IV of the Children Act 1989 involving the children of serving diplomats. But so what? If the resolution of the academic issue helps to protect even one such child in peril, then that surely is a good reason in the public interest to hear it.

Sir James Eadie QC submits that the court should be “particularly cautious” when the sole purpose of an academic claim is to obtain a declaration of incompatibility under section 4(2) of the Human Rights Act 1998. He cites Lord Hoffmann in Secretary of State for the Home Department v Nasseri [2009] UKHL 23,[2010] 1 AC 1, at para 19 where he said that “such cases, in which the declaration is, so to speak, an obiter dictum not necessary for the decision of the case, will … be rare.”. That seems to me to be no more than a classic application of the Salem principle (which was in fact not cited). A cautious exercise of the discretion to hear an academic claim on the ground that there is a good reason in the public interest will, by definition, only happen rarely.

Sir James goes on to submit that the discretion should be exercised “especially cautiously” in this case because if the claim is allowed to go forward, and if it succeeds, then the:

“...conclusion that provisions of the VCDR are incompatible with the ECHR could have far reaching implications, particularly in the context of the UK’s diplomatic relations. The VCDR operates on the basis of reciprocity and is the foundation of the legal framework for the conduct of international relations. The practical impact of a divergence in the interpretation of the VCDR in this jurisdiction cannot be overstated. The likelihood is that any such interpretation by the UK will simply place the UK out on a limb in relation to the other 190 states.”

That does not seem to me to be a good reason in the public interest not to hear the claim. If the claim succeeds it may leave the Government and Parliament in a dilemma, the resolution of which might only be capable of being achieved by providing for an amendment to the Human Rights Act 1998 which excepts its reach to the children of serving diplomats. But will it succeed? Sir James has already prefigured powerful arguments as to why there is in fact no incompatibility.

All of these arguments are, in my judgment, for another day. They should be heard and considered on their merits, irrespective of the momentousness of their consequences.

I exercise my discretion cautiously, but I nonetheless conclude that there are good reasons in the public interest why the declaration of incompatibility application should be allowed to proceed. These are the reasons:

That is my judgment.