THE SECRETARY OF STATE FOR JUSTICE CLAIMANT S SKELETON ON PRELIMINARY ISSUE HEARING 7-8 MARCH 2018

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1 IN THE HIGH COURT OF JUSTICE ADMINISTRATIVE COURT B E T W E E N: THE QUEEN (on the application of) OMID T. v. THE SECRETARY OF STATE FOR JUSTICE CO/1319/2017 Claimant Defendant CLAIMANT S SKELETON ON PRELIMINARY ISSUE HEARING 7-8 MARCH 2018 A. Introduction 1. At a directions hearing before a Divisional Court (the President of the QBD and Whipple J) on 21 November 2017 the Claimant sought leave to cross-examine the Defendant s primary expert witness, Baroness Ilora Finlay. Judgment was reserved and by a judgment dated 7 December 2017 ([2017] EWHC 3181 (Admin)) the Divisional Court adjourned the application for cross-examination pending determination of a preliminary issue, namely (see Court Order of 20 December 2017) (the Preliminary Issue ): ls it appropriate and necessary in this case for the Court to hear first-hand evidence with cross-examination to seek to determine the mixed ethical, moral and social policy issues that underlie whether Parliament's prohibition on assisted suicide in s 2(1) Suicide Act 1961 is a justified interference with the Claimant's rights in this case? 2. In this Skeleton the term legislative facts (also known as constitutional facts ) will be used instead of the mixed ethical, moral and social policy issues referred to in the Preliminary Issue, for reasons explained at para below. 3. In giving its judgment the Divisional Court also observed that, if the Preliminary Issue is answered in the Claimant s favour the Court is likely to consider transferring the case out of the Administrative Court into the Queen s Bench Division, for hearing before a single first instance judge (para 43). The Court also indicated that it would be helpful for the Claimant to focus much more closely on the specific areas of dispute where cross- 1

2 examination would (on his case) assist in resolving this case (para 44). The Claimant sets out the specific areas of dispute at Section F, below. 4. The Preliminary Issue has been listed for a 2 day hearing on 7-8 March B. The Claimant 5. The Claimant, Omid T ( the Claimant or Omid), is in the advanced stages of multiple systems atrophy, a rare and devastating neurological disorder affecting the body's involuntary (autonomic) functions, including blood pressure, breathing, bladder function and muscle control. He has been effectively bedbound for the last two years; he is unable to attend to his personal needs; his speech is extremely difficult to comprehend and he has great difficulty communicating; he finds it very difficult to write, and his writing is difficult to decipher; his prognosis is a further gradual deterioration with death likely within 6 months to 2 years. Due to the unbearable suffering caused by his deteriorating physical condition, which cannot be cured or alleviated, life has become intolerable to him. He wishes to end his life and has been assessed as having capacity to do so. If and when he has the available funds he will travel to Lifecircle in Switzerland to end his life, although this might be earlier than he would otherwise choose if the law in the UK enabled him to have an assisted suicide in this jurisdiction. C. The nature of Omid s claim 6. Omid has brought this judicial review claim seeking a declaration of incompatibility in relation to the blanket ban on assisted suicide in s 2(1) Suicide Act 1961 which prevents him from obtaining the assistance he needs to end his life. 7. The Claimant s claim is that s 2(1) breaches his rights under Articles 2 and 8 of the Convention as protected by the Human Rights Act 1998, in so far as it prevents a person from obtaining assistance in suicide in the following circumstances (adapted from para [127] of the decision of the Canadian Supreme Court in Carter v AG of Canada [2015] SCC 5): (a) an adult patient with capacity who is free from coercion and undue influence; and (b) who has made a voluntary, clear, settled and informed decision to receive assistance to die; and (c) has a grievous and irremediable physical medical condition (including an illness, disease or disability) that causes enduring suffering that is intolerable to the individual in the circumstances of his or her condition. 2

3 8. Omid restricts his claim to persons with a physical, rather than a psychiatric or psychological, medical condition. 9. Omid submits that any potential risks to vulnerable people that may be caused by a relaxation of the law can be met by introducing the following safeguards: (a) The request for assistance must be adequately evidenced and witnessed, for example it must be in writing or by audio or video recording; (b) Two medical practitioners, who are independent of each other, one of whom with special expertise in the assessment of mental capacity, must be satisfied that the eligibility criteria outlined above are satisfied; (c) The assistance in suicide must be supervised by a medical practitioner; and (d) The circumstances of the death must be reported to a suitable monitoring body with powers to monitor, to investigate and to recommend criminal proceedings where the eligibility criteria or safeguards have not been met and a duty to publish an annual report on the cases reported to it, decisions reached and the reasons for those decisions. 10. In addition, Omid proposes a further safeguard that a High Court judge must also be satisfied of the eligibility criteria set out at para 6 above on the basis of evidence from the two medical practitioners referred to at para 9. This would mirror the procedure for seeking declaratory relief already available in the Family Division in cases involving the withdrawal or withholding of life-sustaining treatment, hydration or nutrition. 11. Omid accepts that any change in the law, including any regime of safeguards, can only be introduced by legislation. It will therefore be open to Parliament to introduce laws to meet other perceived risks of any relaxation of the prohibition on assisted suicide. In particular, the Defendant has put forward evidence that to permit assisted suicide will undermine the provision of palliative care in the UK, which is a world leader in this area. Omid disputes that legalisation will have this effect but observes that this concern could be met by the introduction of a statutory right to end-of-life care, as was done in Belgium and Luxembourg when the right to assisted dying was introduced in 2002 and 2009, respectively. These countries (along with the Netherlands) are now European leaders in the provision of palliative care (with Luxembourg in first place, the UK in second, Belgium third and the Netherlands fourth 1 ). 1 Woitha et al., Ranking of Palliative Care Development in the Countries of the European Union, Journal of Pain and Symptom Management, September 2016, Vol. 52 No. 3 p

4 D. Procedural history of Omid s case 12. The Claimant issued his claim on 10 March 2017 and was granted permission to apply for judicial review by Supperstone J on 22 May The judge refused his application to be heard alongside the case of Conway but gave directions for the future conduct of his case. The Claimant was ordered to file and serve the evidence upon which he relies by 24 July 2017 and the Defendant was ordered to serve his evidence in response, along with his detailed grounds, within 14 days of 1 October or the date of judgment in the Conway case, whichever is the later. The Claimant duly served his evidence on 24 July (summarised in the Annex, below). The Defendant served his grounds and evidence on 2 November 2017, with the exhibits served thereafter, including an expert report from Baroness Ilora Finlay which purports to set out a justification for the absolute ban on assisted suicide and to rebut the evidence relied upon by Omid that demonstrates the absolute ban is not justified. At the hearing on 21 November 2017 the Claimant sought an order permitting him to cross-examine Baroness Finlay; the application was adjourned pending determination of the Preliminary Issue. Once the Preliminary Issue has been determined, the Claimant intends to file evidence to rebut the Defendant s expert evidence. E. Omid s approach to the resolution of the claim: the use of evidence with crossexamination 13. Omid has obtained reports from a number of expert witnesses refuting the evidential basis for the underlying justification for an absolute ban on assisted suicide, all of whom (apart from Prof. Heleen Weyers) gave evidence in support of the successful appellants in the Carter case (summarised in the Annex). The evidence of Profs. Battin, McLean, Bernheim, Deliens, Ganzini, Owens, Starks and Lewis was accepted by Smith J, the trial judge in the Carter case, who, it should be added, did not accept the evidence of Baroness Finlay who gave evidence for the Canadian government and now gives evidence for the Defendant. Only Profs. Ganzini and Lewis also prepared reports in Mr. Conway s case and neither gave evidence. Prof. Lewis gives evidence in Omid s case on a much wider range of issues than she did in the Conway case. 14. These witnesses give evidence in support of Omid s case relating to the legislative facts that are central to the determination of whether the absolute prohibition on assisted suicide is proportionate: 4

5 14.1. that there is no a priori moral or ethical basis for the current blanket ban on assisted suicide based on the sanctity of life; that persons can make a competent and rational choice to end their lives, and that whether their decision is a competent one and free of any undue pressure can be reliably assessed; the empirical evidence from experts within the jurisdictions where the practice is legal, notably Oregon, the Netherlands and Belgium, show there is no so-called slippery slope towards involuntary euthanasia in those jurisdictions, and that the opposite is the case; that there is no appreciable risk to vulnerable groups from a carefully controlled legal regime; that legalisation improves access to palliative care rather than the contrary; that patient confidence in the medical profession is enhanced not undermined in permissive jurisdiction; that the legal safeguards, both substantive and procedural, in those jurisdictions have become enhanced, not eroded, over time; and evidence as to the harm that is caused by the current prohibition on assisted suicide in the United Kingdom, including the scale of the practice of euthanasia and assisted suicide notwithstanding the practice is illegal and the risk of persons taking their lives earlier than they would otherwise wish. 15. This evidence is directly relevant to the proportionality exercise at the heart of Omid s Article 8 claim. In addition, Omid has filed evidence as to his own condition, how it causes him unbearable suffering, the legal and practical mechanisms by which he proposes his life might be ended with assistance, and how the law disproportionately affects other people in the same or similar situation. F. The factual matters upon which cross-examination is sought 16. The Claimant seeks to cross-examine Baroness Ilora Finlay in relation to the underlying legislative facts relevant to the determination of the compatibility of the current ban on 5

6 assisted suicide (and any other witnesses that the Defendant may, in due course, seek to rely upon in relation to those matters), in particular (applying the Oakes criteria, see below para 37): the harmful impact of the absolute ban upon people in Omid s situation and the extent of the interference with their rights of autonomy and bodily integrity; whether there is a rational connection between the absolute ban in s 2(1) and the identified aims of protecting vulnerable people and the protection of morals; whether a less intrusive measure than an absolute ban (such as the scheme of safeguards relied upon by Omid) would still meet those aims without unacceptably comprising them; and whether an absolute ban strikes a fair and proportionate balance between the interference with rights of people in Omid s situation and any risks that might otherwise exist. 17. Put simply, can any identified risks associated with legalising assisted suicide be adequately met by the system of safeguards relied upon by Omid? 18. The facts that underpin this question relate to the validity of the costs, risks and benefits upon which, on the one hand, the Defendant relies for maintaining the absolute prohibition on assisting suicide and, on the other, the Claimant relies for relaxing the absolute prohibition on assisting suicide. Only by identifying these legislative facts can any balance be struck between the two. Expert evidence has been adduced from both sides to address these, with particular reference to empirical evidence available from more permissive jurisdictions such as the Netherlands, Belgium and Oregon. The costs, risks and benefits fall into the following categories: The harmful impact caused by the absolute ban in s 2(1) Suicide Act upon the autonomy, physical and psychological integrity of persons, like Omid, who suffer from incurable conditions that cannot be palliated and who are physically unable to end, and prevented by s 2(1) from obtaining assistance in ending, their lives at a time and in the manner of their choosing. 6

7 18.2. Whether vulnerable people are more or less at risk of premature death in a permissive or a prohibitive jurisdiction (like the UK), in particular: the risks of premature death of persons who have not made a competent choice (so-called life-ending acts without explicit authorisation (LAWER) in both permissive and prohibitive jurisdictions; the risks of premature death from end of life practices that are currently lawful in prohibitive jurisdictions such as the UK, in particular terminal sedation and the withdrawal of life-sustaining treatment, including the number of people who are or may be affected; the risks that persons in Omid s situation wishing to end their life do so earlier than they would if assisted suicide was lawful, either by taking their lives while physically able to do so or by travelling abroad for an assisted death earlier than they would otherwise choose The number of people who are likely to be affected by the Claimant s proposals Whether there is any causative link between the availability of palliative care and a jurisdiction being more permissive or prohibitive Whether a more permissive approach is likely to have a negative impact on doctor-patient relationships and public trust in the public health system Whether a more permissive approach is likely to have a negative impact upon the ethical principle of the sanctity of life, with particular emphasis on the ethical distinctions between end of life practices that are currently lawful and those that are unlawful Whether a more permissive approach is likely to have a beneficial effect of improved openness in end-of-life discussions in permissive jurisdictions and how this may contribute in a positive way to the patient s experience of dying Whether a more permissive approach is likely to have a beneficial effect of improved regulation and transparency of all end of life decision-making. 7

8 18.9. The nature and reliability of the safeguards proposed by the Claimant and whether these would meet the risks outlined in para 18.2 above, with particular reference to the operation of the safeguards in jurisdictions where assisted suicide is lawful and empirical evidence as to whether and to what extent those risks eventuate in those jurisdictions. 19. Baroness Finlay gives evidence that is directly relevant to most, if not all, of these issues. See, for example, her conclusions in her Expert Report of 1 November 2017 at paras 29 (vulnerability [3199]); 41 (Dutch experience [3204]); (suicide rates in permissive jurisdictions) [3205]; 46, 48, 49 (inadequacy of safeguards in permissive jurisdictions) [3206]; 54 (inadequate audit systems) [3209]; 69 (negative impact on palliative care in permissive jurisdictions) [3215], 78 [3219]; 88 (in appropriateness of suffering as a criteria for eligibility) [3221]; 113 (practice of terminal sedation in other countries) [3229]; 119 (practice of terminal sedation in UK) [3232]; 126 (doctor-patient conversations) [3237]; (whether other, lawful end-of-life decisions are comparable with assisted suicide) [3239]; 152 (capacity) [3248]. 20. The Claimant has identified the issues upon which he wishes to cross-examine Prof. Finlay with sufficient precision. He observes that the issues identified above were precisely the legislative facts upon which Smith J, the trial judge in the Carter v Canada case, heard evidence and made findings, from which she concluded that the ban on assisted suicide failed the proportionality test in s 1 of the Canadian Charter (the Oakes test ). These findings of fact, and her conclusion in relation to proportionality, were upheld by the Supreme Court at paras of its judgment. G. The relevance of Carter v Canada 21. Omid s approach to this claim has much in common, both substantively and procedurally, with the Canadian case of Carter v AG of Canada in which Smith J. in the Supreme Court of British Colombia [2012] BCSC 886 granted a declaration that the Canadian ban on physician assisted suicide and euthanasia breached s 7 and 15 of the Canadian Charter of Fundamental Rights and Freedoms. Her judgment was upheld by the Canadian Supreme Court on 15 October 2015 [2015] SCC 5. Omid will submit (contrary to the Divisional Court s judgment in Conway, para 123) that the decision in Carter is of strong persuasive value both as to outcome and as to the approach the UK Courts should take in assessing 8

9 the compatibility of s 2(1), particularly in its approach to the hearing and assessment of relevant evidence. That is because the approach of the UK Courts to the assessment of proportionality has always been informed by that of the Canadian Supreme Court (see para 37, 55, below). 22. Omid s case differs from Carter in two material respects; first, he is restricting his claim to persons suffering from a physical medical condition (above, para 8), whereas in Carter those with psychological conditions were included; and, second, he is not seeking voluntary euthanasia, so his claim affects a narrower class of persons. Accordingly he does not seek any declaration that the common law offence of murder is incompatible with his rights. His case is that assistance in suicide may still be given even when his condition has deteriorated to the point he cannot physically self-administer a lethal dose of medication by means of technology of the kind described in the witness statement of Dr. Phillip Nitschke (see also the Nicklinson judgment, at para 4, 110, 128). 23. The justices of the Supreme Court in Nicklinson were aware of the decision of Smith J (although the Supreme Court had yet to deliver its judgment). A majority of the Supreme Court ruled that the proportionality of the absolute ban on assisted suicide could only be determined by reference to first hand evidence that is tested by cross-examination: see further, paras 30, below. That is the approach that Omid has taken in this claim; in this respect his claim, among others 2, his claim differs from the case of R (Conway) v MOJ [2017] EWHC 2447 (Admin) and which is currently awaiting an appeal in the Court of Appeal. In particular, in Conway no application was made to cross examine the Defendant s experts. H. Submissions on the Preliminary Issue (1) Summary submissions 24. At the heart of Omid s case is the submission that the interference with his rights under Articles 2 and 8 of the European Convention on Human Rights is disproportionate. The Court must, in order to properly determine the substance of his challenge, be permitted to examine the objectives that are said by the Defendant to justify the interference with his rights and whether the absolute ban on assisted suicide is a proportionate means of 2 As detailed in the Claimant s Submissions dated 17 November 2017, at paras 25ff 9

10 achieving those objectives by reference to the Oakes criteria (see para 16, above). In most cases the Court can resolve these issues on the basis of written evidence and submissions, but in this case justice requires cross-examination of the evidence that founds the Defendant s justification. That follows directly from the judgment in Nicklinson and as a matter of principle. (2) General principles: cross-examination in judicial review proceedings 25. The Court s jurisdiction to order cross-examination in judicial review claims, although not commonly exercised, is well-established, particularly in human rights cases (R (Jedwell) v Denbighshire CC (CA) [2016] P.T.S.R. 715, paras 50-55; Al Sweady [2010] H.R.L.R. 2, paras As Stanley Burnton LJ said in R (Bancoult) v Secretary of State for Foreign and Commonwealth Affairs [2012] EWHC 2115 (Admin), para 12, approved in R (Jedwell) v Denbighshire CC (CA) [2016] P.T.S.R. 715, para 53: cross-examination should be permitted if cross-examination is necessary if the claim is to be determined, and is seen to be determined, fairly and justly. 26. If cross-examination is not ordered the Court may be obliged to accept the Defendant s evidence on the critical issues in Section F. As Stanley Burnton (then) J observed in R (S) v Airedale NHS Trust [2003] MHLR 63, para 18: 18. It is a convention of our litigation that at trial in general the evidence of a witness is accepted unless he is cross-examined and is thus given the opportunity to rebut the allegations made against him. There may be an exception where there is undisputed objective evidence inconsistent with that of the witness that cannot sensibly be explained away (in other words, the witness's testimony is manifestly wrong), but that is not the present case. The general rule applies as much in judicial review proceedings as in other litigation, although in judicial review proceedings it is relatively unusual for there to be a conflict of testimony and even more unusual for there to be cross-examination of witnesses. 27. That is the case even where there is a conflict of evidence: see Al Sweady, para 17, citing R. v Board of Visitors of Hull Prison Ex p. St Germain (No.2) [1979] 1 W.L.R The difficulty confronting us was that, as is well known, the usual procedure in judicial review cases is first for there to be no oral evidence and secondly, insofar as there are factual disputes between the parties, the court is ordinarily obliged to resolve them in favour of the defendant (see, for example, R. v Board of Visitors of Hull Prison Ex p. St Germain (No.2) [1979] 1 W.L.R at 1410H, per Geoffrey Lane L.J. (as he then was)). 10

11 28. In a HRA claim, however, once an interference with a Convention right has been established this presumption is shifted and it is for the State to justify the interference. The claimant must in those circumstances have the opportunity to properly test the evidence put forward by the defendant. 29. In the present case, the Claimant is also seeking to distinguish his case from that of Mr. Conway, who did not seek to test by way of cross-examination the justifications put forward by the Secretary of State, and whose claim failed. While there are a number of differences between the two cases 3, and it is open to a Court to reach a different conclusion on the compatibility of legislation on the basis of different facts 4, an order for cross-examination will be likely to have a very significant impact on the outcome of the claim, as the Divisional Court recognised when adjourning the application for crossexamination: 44. Having said that, we accept Mr Bowen s submission that the outcome of this application is likely to have a very significant impact on the outcome of the claim. If Mr Bowen is not able to cross-examine the witnesses proffered by the Secretary of State, his case will necessarily be limited to submissions on the written evidence, including the Secretary of State s expert evidence which will be unchallenged. Conway stands as an unhelpful precedent to him, and unless it is reversed on appeal, he would seek to distinguish it. There are, of course, differences between this case, and Mr Conway s case: the particular circumstances of each claimant are different, and the scope of the legal argument is different, not least because this case involves a challenge on grounds of Art. 2 as well as Art. 8. But, as Mr Bowen recognises, there are many similarities too. By contrast, if cross-examination is permitted, then this case takes on an entirely different shape and a range of arguments are likely to open up on the evidence. (3) The approach to evidence taken by the Supreme Court in Nicklinson 30. It is Omid s case that the Supreme Court in Nicklinson has already decided that the proportionality of the absolute prohibition on assisted suicide can only be determined by reference to first hand evidence that is tested by cross-examination, including in relation to the matters listed at para 16, above. The Claimant submits that this conclusion 3 See fn2 4 Nicklinson, para 174 per Lord Mance: it is in principle open to claimants in the position of the claimants to invite a court to revisit an issue of proportionality previously decided between different parties in the light of different evidence. Proportionality is here a judgment reached in the light of evidence, so that it is capable of being relitigated in this way, although courts should no doubt discourage such relitigation in the absence of fresh and significantly different evidence. 11

12 followed naturally from the Supreme Court s conclusion (by a majority of 5-4) that the Courts were institutionally competent to determine the proportionality of the absolute ban on assisted suicide. The majority would have gone on to decide the ultimate question in Nicklinson if it had not been for the fact that (a) Parliament was shortly due to reconsider the issue in the Assisted Dying Bill; (b) the evidence was not sufficient for the Court to determine proportionality. Now that Parliament has rejected the Assisted Dying Bill the first impediment to a fresh reconsideration of the issue on its merits has fallen away (as the Divisional Court rightly acknowledged in Conway, at para 90) 5. The Claimant submits that the fresh evidence is now available which can overcome the second hurdle. Consistent with the views of the Supreme Court, this should now be forensically tested in order for the Court to reach any conclusions on the merits of the claim. 31. The need for fresh evidence, tested by cross-examination, was articulated most clearly by Lord Mance, at paras , who concluded this part of his judgment in these terms: 182 It is in my view clear from the judgment at first instance in the Carter case 2012 BCSC 886 and from even the superficial examination of the evidence which the claimants now in effect invite as their primary case (para 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. 32. Lord Neuberger, at para 120, said this: 120 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 5 The Claimant also observes that Bill would only have applied to terminally ill persons with fewer than six months left to live, so no consideration has been given to those in his situation 12

13 requirement (c) or (d) in R (Aguilar Quila) v Secretary of State for the Home Department [2012] 1 AC 621 is satisfied. 33. At para 121 Lord Neuberger agreed with paras of Lord Mance s speech and he went on, at para 128, to set out the kinds of matters that would need to be addressed in any future challenge by way of evidence: 128 Thus, it appears to me that it would be necessary to consider purely factual matters, such as whether devices such as Dr Nitschke s 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. 34. Lord Wilson agreed with Lord Neuberger s speech (paras , ). Lord Sumption at para 224 referred to the obvious difficulties about reaching a concluded view on untested, incomplete and second-hand material of the kind before the Court. Lord Hughes (para 287), Lord Clarke (para 290) and Lord Reed (294) agreed with Lord Sumption. Although these four were in the minority in deciding that only Parliament should decide the compatibility of s 2(1) as a matter of principle, Lord Sumption s observation at para 224 (with which Lords Hughes, Clarke and Reed agreed) may be taken as support for the view that, if the Courts were to determine the compatibility of s 2(1) (which in his view, they should not), it should be done on the basis of complete, first-hand material that has been tested by cross-examination. 35. Accordingly, seven of the nine justices may be said to have supported the position that any re-litigation of the issue of compatibility of s 2(1) should only be done on the basis of primary evidence that may be tested by way of cross-examination. Baroness Hale and Lord Kerr were satisfied that there was a breach without the need for further evidence: Baroness Hale, at para 320, and Lord Kerr, para 351 considered it was for the Defendant to produce evidence justifying the interference, and had failed to do so. 13

14 (4) The need for evidence in Human Rights Act compatibility cases 36. The Claimant submits the Supreme Court s approach is consistent with principle and that fact-finding, including of legislative facts such as those in Section F (although that term was not used by the Supreme Court), is essential to the proper discharge of the Courts statutory and constitutional functions under the HRA. 37. In assessing the HRA compatibility of any public law decision, including a legislative provision, which interferes with a qualified Convention right such as Article 8 the Court must be satisfied (the burden being on the State 6 ) that the interference is in accordance with the law, necessary and proportionate. In assessing proportionality the Court applies the four-fold test developed by the UK Courts from Canadian case-law, hereafter the Oakes criteria from R v Oakes [1986] 1 SCR 103, pages , described by Lord Reed in Bank Mellat v Her Majesty's Treasury (No 2) [2014] A.C. 700, para 74, as the clearest and most influential judicial analysis of proportionality within the common law tradition of legal reasoning. This development began with De Freitas v. Ministry of Agriculture (P.C.) [1999] 1 A.C. 69, 80, where the first three Oakes criteria were adopted by Lord Clyde drawing on Canadian, South African and Zimbabwean jurisprudence. De Frietas was applied by the House of Lords in R (Daly) v Home Office [2001] 2 AC 532, para 27 and again in A v Home Secretary [2005] 2 AC 68, para 30. The fourth Oakes criteria was added by the House of Lords in Huang v Secretary of State for the Home Department [2007] 2 AC 167, para 19. The test in its final form may be found in a number of cases since 7, for example, in Bank Mellat, at para 20 per Lord Sumption (see also paras per Lord Reed): 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. 6 R (Quila) v SSHD [2012] 1 A.C. 621, para 44 7 See, of many, R (Quila) v SSHD [2012] 1 A.C. 621, para 44-45; R (Lord Carlile of Berriew and others) v Secretary of State for the Home Department [2015] A.C. 945, para

15 38. In addressing each of these steps and, indeed, in assessing whether there is, and the extent of, any interference in the first place - the Court must be satisfied of the underlying facts relevant to their determination, as the quoted extract from Lord Sumption s speech in Bank Mellat makes clear ( an exacting analysis of the factual case ). The same point is made in R v Shayler [2003] 1 A.C. 247, para 61 (Lord Hope at para 61, A close and penetrating examination of the factual justification for the restriction is needed ); R (Countryside Alliance) v AG [2008] 1 AC 719 (Lord Hope at para 78, If relative suffering had been the determinative issue, a close and careful examination of the factual basis for that decision would have been necessary to judge whether there was a sufficient justification for impairing the Convention right ); Sheldrake v DPP [2004] UKHL 43; [2005] 1 AC 264, per Lord Bingham, para 21, The justifiability of any infringement of the presumption of innocence cannot be resolved by any rule of thumb, but on examination of all the facts and circumstances of the particular provision as applied in the particular case ); R(B) v Governors of Denbigh High School [2007] 1 AC 100, (per Lord Bingham at para 30 The domestic court must now make a value judgment, an evaluation, by reference to the circumstances prevailing at the relevant time.proportionality must be judged objectively, by the court ); Tweed v Parades Commission for NI (HL(NI)) [2007] 1 A.C. 650, (per Lord Bingham at para 3, human rights decisions under the Convention tend to be very fact-specific and any judgment on the proportionality of a public authority's interference with a protected Convention right is likely to call for a careful and accurate evaluation of the facts ). (5) Adjudicative facts vs. legislative facts 39. That the Court must decide proportionality on the facts is likely to be uncontentious. The more contentious question is likely to be: what facts are relevant to the determination of proportionality? Plainly, those facts that are specific to the individual concerned and the individual circumstances that gave rise to the claim are relevant (what will be termed adjudicative facts, see below). However, in some circumstances the wider legislative facts which have - or should have - informed the policy decision or passage of the legislative provision will be relevant to the proportionality of any interference with a Convention right. Although the terms adjudicative and legislative facts have not been used by the UK Courts, those terms have been employed for many years by the common law Courts of the USA, Canada, Australia, South Africa and New Zealand when distinguishing between the usual fact-finding process of the Courts (adjudicative facts) 15

16 and the legislative facts that are relevant, in particular, in determining the constitutionality of legislation under their own constitutional systems 8 (and see further at para 47, below). The distinction between adjudicative and legislative facts, and the need for proof of both kinds of fact, was explained by Sopinka J in the Supreme Court of Canada in Danson v Ontario (Attorney-General) [1990] 2 SCR 1086, 1099: This Court has been vigilant to ensure that a proper factual foundation exists before measuring legislation against the provisions of the Charter, particularly where the effects of impugned legislation are the subject of the attack. It is necessary to draw a distinction at the outset between two categories of facts in constitutional litigation: "adjudicative facts" and "legislative facts". Adjudicative facts are those that concern the immediate parties: in Davis' words, "who did what, where, when, how, and with what motive or intent... " Such facts are specific, and must be proved by admissible evidence. Legislative facts are those that establish the purpose and background of legislation, including its social, economic h and cultural context. Such facts are of a more general nature, and are subject to less stringent admissibility requirements: 40. The Claimant submits that the adjudicative fact and legislative/ constitutional fact distinction is a useful one in the present context and that the term legislative fact accurately describes the mixed ethical, moral and social policy issues referred to in the Preliminary Issue and which are set out in Section F above. Other examples include: does a ban on fox-hunting reduce cruelty to foxes? Do advertising bans reduce the incidence of smoking? Often a legislative choice involves balancing several legislative facts which are potentially in conflict: for example, legalising abortion might both increase teenage pregnancy and reduce the incidence of deaths from backstreet abortions. The death penalty might reduce serious offending but may lead to the execution of innocent people and be applied disproportionately to marginalised groups. The proportionality of a legislative measure may turn on establishing these facts and the balance to be struck between them. 8 Often referred to as the original source for this distinction is a 1942 article by Prof. Kenneth Culp Davis, An Approach to Problems of Evidence in the Administrative Process, (1942) 55 Harvard Law Review 364, 402: When an agency finds facts concerning immediate parties what the parties did, what the circumstances were, what the background conditions were - the agency is performing an adjudicative function, and the facts may conveniently be called adjudicative facts. When an agency wrestles with a question of law or policy, it is acting legislatively, just as judges have created the common law through judicial legislation, and the facts which inform its legislative judgment may conveniently be denominated legislative facts. 16

17 (6) Legislative fact-finding and the UK Courts 41. The Courts of the United Kingdom had little need to resolve disputed legislative facts prior to the coming into force of the Human Rights Act 1998, although they were still relevant in a number of contexts. For example, when the Courts construe a legislative provision, the mischief that it is intended to address or the underlying objects and purposes of the act are both legislative facts. However, given our constitutional model with Parliament, rather than a written constitution, as sovereign, it has not been for the Courts 9 to question the evidence upon which a decision-maker, including Parliament, has chosen to act 10. But under the Human Rights Act 1998 (and the European Communities Act 1972) the Courts are charged with a duty to consider such evidence and determine whether it is sufficient to justify state interferences in fundamental rights and doing so does not undermine democracy or the role of Parliament 11. In limited circumstances, this will require them to resolve disputes of evidence in relation to legislative facts, including by way of cross-examination. 42. For example, in determining whether the risks of terrorism post 9/11 constituted a public emergency threatening the life of the nation (a legislative fact), their Lordships in A v Home Secretary [2005] 2 AC 68 were not prepared to simply accept the Secretary of State s say so that this state of affairs existed. Although, in the event (by a majority, Lord Hoffman rejecting the Secretary of State s case on this issue), their Lordships deferred to the political judgment made by the executive, this was after close analysis of all the evidence (open and closed) by SIAC (with cross-examination by special advocates), and close scrutiny of that evidence by their Lordships who made it clear that it was open to the House to reject it: see per Lord Bingham at paras 26 and 29; Lord Hoffman, paras 9 Other than the Privy Council when exercising its jurisdiction under written constitutional instruments: see, e.g., Pratt & Morgan v AG for Jamaica [1994] 2 AC 1, in which the Privy Council determined that for a prisoner to be on death row for more than 5 years constituted cruel and unusual punishment and was therefore unconstitutional,, contrary to s 17 of the Jamaican Constitution. The Court heard evidence as to the restrictive conditions of imprisonment and the emotional and psychological impact of being on death row (p. 17F), which was a legislative fact. However, the Court did not need to resolve any dispute in relation to that evidence because it only reveals that which is to be expected. 10 Similar policy issues (legislative facts) are relevant when the Court is considering developing the common law, for example as to whether it is fair, just and reasonable to extend a duty of care: see Thomas v Mowbray [2007] HCA 33 para 614; Alfange, Relevance of Legislative Facts in Constitutional Law, (1966) 114 University of Pennsylvania Law Review 637, A v Home Secretary [2005] 2 AC 68, para 42 (Lord Bingham); para 80 (Lord Nicholls); paras 90, 92 (Lord Hoffman); paras (Lord Hope); para 176 (Lord Rodger); para 196 (Lord Walker) 17

18 95-97; Lord Hope, para 116; Lord Scott, para 154; Lord Rodger, para 166, 177; Lord Walker, para Even so, the House still went on to find that the legislative response to that public emergency the derogation from Article 5 by way of Order under the HRA and the introduction of indefinite detention of foreign terrorist suspects under s 23 of the Antiterrorism, Crime and Security Act had been a disproportionate means of addressing that emergency. The terrorist threat did not justify the gravity of the interference with the Convention right to liberty that would be caused, not least as the legislation did not apply to British nationals who might present as great, if not a greater, risk than a foreign national (see per Lord Bingham, paras 30-44; Lord Nicholls, paras 81-85; Lord Hope, paras ; Lord Scott, para 155; Lord Rodger, paras 167, ; Baroness Hale and Lord Carswell gave concurring judgments (para 219, 240); Lord Walker dissented, with Lord Hoffman limiting his judgment to the threshold public emergency point). Thus the legislative fact of the degree of threat posed by terrorism was accepted by the Supreme Court as being sufficient to demonstrate a rational connection to a legitimate aim (see Bank Mellat, per Lord Reed at para 97), but insufficient to demonstrate that derogation from Article 5 was the least restrictive means of meeting that aim or that a fair balance was thereby struck between that aim and the right to liberty. 44. A more recent example is R (British American Tobacco) v Department of Health (Green J) [2016] E.T.M.R. 38, upheld by the Court of Appeal [2017] 3 WLR 225, involving a judicial review challenge to the Standardised Packaging of Tobacco Products Regulations 2015, which required all tobacco products to be sold in plain packaging. The claimants challenged the Regulations on the grounds they constituted a disproportionate interference with private property rights, contrary to Article 1 Protocol 1 ECHR, Article 17 EU Charter of Fundamental rights and the common law. 45. Green J affirmed that it was for the Court to decide, on evidence, whether the legislation was disproportionate, and that the Court can, and must, take into account evidence since the legislation was promulgated and may strike down a measure on the basis of that 12 Which provided for the detention of non-nationals if the Home Secretary believed that their presence in the United Kingdom was a risk to national security and he suspected that they were terrorists who, for the time being, could not be deported because of fears for their safety or other practical considerations. 18

19 evidence even if, at the time it was adopted, the legislature had acted lawfully (paras ). Evidence was admitted (including expert evidence) from both the Claimants and the Secretary of State as to the efficacy of a plain packaging requirement in reducing the incidence of tobacco-smoking as compared with the alternative (and less restrictive) measure of a requirement to include a health warning on tobacco products (see paras ). The judge found the evidence of the Secretary of State (para 592) to be cogent, substantial and overwhelmingly one-directional in its conclusion, which is that various types of advertising and branding are effective in influencing consumer reactions so that advertising and branding restrictions could be effective in reducing tobacco consumption. These were legislative facts. 46. The Court of Appeal, upholding Green J s judgment, referred to the approach of the ECJ affirming the need for the Courts to determine the proportionality of measures under EU law by reference to evidence, including evidence that has come to light since the measure was adopted: see para 250 and Scotch Whisky Association v Lord Advocate (ECJ) [2016] 1 WLR 2283, paras 59, 65. Moreover, although at paras of its judgment the Court of Appeal was critical of Green J s proposals (at paras ) as to how complex expert evidence in relation to economic and econometric analysis should be deployed in judicial review cases, they did not criticise the way in which he had examined that evidence in detail and affirmed that the resolution of disputed evidence, including by way of cross-examination, will sometimes (if not normally ) be necessary (para 252). Moreover, it will be a matter for first instance judges to determine the appropriate procedural steps consistently with the principles in the Scotch Whisky case (para 253). 19

20 (7) The approach to legislative fact-finding in other common law jurisdictions 47. The resolution of legislative facts is an issue that the courts of other jurisdictions, including the common law courts of the USA 13, Canada 14, Australia 15, South Africa 16 and New Zealand 17, have had to grapple with under their own constitutional systems. As noted, above, in these jurisdictions the distinction has been drawn between, on the one hand, adjudicative facts and, on the other, legislative facts or constitutional facts. 48. Although legislative facts are, by their nature, of much wider application than to the individual whose case is before the court, there has been an acceptance in these jurisdictions that such facts must be established in order for the Courts to discharge their duty of determining the necessity and proportionality of interferences with fundamental constitutional rights. 49. Thus, for example, the federal courts of the USA have for many years drawn a distinction between cases that do not touch upon fundamental rights, where legislation is presumed to be constitutional provided it has some rational basis; and those cases where fundamental constitutional rights are engaged where the Courts must be satisfied of the strict necessity of any interference to achieve a legitimate governmental objective 18. In the former case, legislative facts can be presumed; in the latter, they may have to be proved: see Alfange, Relevance of Legislative Facts in Constitutional Law, (1966) 114 University of Pennsylvania Law Review 637, 644: If the authority to enact a federal law is found within the delegated powers of Congress, and the law cannot reasonably be said to violate any of the constitutional prohibitions on congressional action, it is enough that Congress has seen a need and has acted to meet it. But where the exercise of legislative 13 See the discussion in Tran, C, Facts and Evidence in Litigation under the Charter of Human Rights (2012) 36(1) Melbourne University Law Review Danson v Ontario (Attorney-General) [1990] 2 SCR 1086, ; RJR-MacDonald Inc v Attorney General of Canada [1995] 3 SCR 199, p , (La Forest J), (Mclachlin J); R v Malmo-Levine (A- G of Ontario and Others intervening); R v Caine (A-G of Ontario and Others intervening) [2004] 3 LRC 382, paras 26-29; R v Spence [2006] 2 LRC 602, paras 48-67; Attorney General of Canada v Bedford [2014] 4 LRC 74; Carter v Canada [2015] SCC 5, para Breen v. Sneddon 106 C.L.R. 406 (1961); Woods v Multi-Sport Holdings Pty Ltd (2002) 208 CLR 460; Thomas v Mowbray [2007] HCA 33 para 260, 268, 296 (Kirby J), 403 (Hayne J), (Callinan J), (Heydon J) 16 Shoprite Checkers (Pty) Ltd [2015] ZACC 23, paras 85, Hansen v The Queen [2007] NZSC 7, paras United States v. Carolene Products Co., 304 US 144 (1938) (fn. 4); Roe v Wade 410 US 113 (1973); Brown v Board of Education 347 US