Ali v United Kingdom: Article 6(1) ECHR and administrative decision-making

To say that the extent to which Article 6(1) of the European Convention on Human Rights applies to administrative decision-making is a vexed issue would be something of an understatement. That it is such a problematic area is thanks in large part to the somewhat chaotic case law of the Strasbourg Court in this area. That difficulty was highlighted by Lord Collins in Ali v Birmingham City Council [2010] UKSC 8, who lamented the Strasbourg Court’s

reluctance to enunciate principles which will enable a line to be drawn between those rights in public law which are to be regarded as “civil rights” and those which are not to be so regarded.

(Whether a ‘civil right’ is at stake is crucial, because only decisions that are determinative of civil rights (or obligations) trigger Article 6(1).)

In Ali, the Supreme Court did rather a good job of supplying the kind of principled framework for grappling with this issue that has all too often been lacking in the jurisprudence of the European Court of Human Rights. The issue in Ali was whether certain decisions made under the homelessness provisions of the Housing Act 1996 determined civil rights. The Supreme Court unanimously held that they did not.

Lord Hope (with whom Lord Brown and Lady Hale agreed) and Lord Kerr placed a good deal of emphasis upon the fact that whether any entitlement arises under the relevant provisions turns, to a considerable degree, upon the making of evaluative judgments by the decision-maker (including as to whether the applicant is homeless—which requires an assessment to be made of the suitability of any accommodation the applicant is currently occupying—and whether the applicant is intentionally homeless). Those Justices, along with Lord Collins, also took it to be important that although the relevant provisions, provided the statutory preconditions are satisfied, confer an entitlement to accommodation, they do not confer an entitlement to any particular accommodation. As such, discretion must inevitably be exercised in determining precisely what the entitlement is to be taken to be to. Applying such considerations, the Supreme Court concluded that the homelessness provisions did not give rise to an ‘assertable right’—a concept upon which the Strasbourg Court relied, in order to delimit Article 6(1)’s scope of application, in its judgment in Loiseau v France (Application No 46809/99).

However, in its judgment in Ali v United Kingdom (Application No 40378/10), the Strasbourg Court did not accept the Supreme Court’s analysis. Instead, it said:

It is now well-established that disputes over entitlement to social security or welfare benefits generally fall within the scope of art.6(1) of the Convention … However, the present case differs from previous cases concerning welfare assistance, as the assistance to be provided under s.193 of the 1996 Act not only was conditional but could not be precisely defined … It concerns, as the Government noted, a “benefit in kind” and the court must therefore consider whether a statutory entitlement to such a benefit may be a “civil right” for the purposes of art.6(1). …

It is true that accommodation is a “benefit in kind” and that both the applicant’s entitlement to it and the subsequent implementation in practice of that entitlement by the Council were subject to an exercise of discretion. Nonetheless, the Court is not persuaded that all or any of these factors necessarily militate against recognition of such an entitlement as a “civil right”. For example, in Schuler-Zgraggen v Switzerland (A/263) 24 June 1993, in which the applicant’s entitlement to an invalidity pension depended upon a finding that she was at least 66.66% incapacitated, the court accepted that art.6(1) applied. In any case, the “discretion” in the present case had clearly defined limits: once the initial qualifying conditions under s.193(1) had been met, pursuant to s.206(1) the Council was required to secure that accommodation was provided by one of three means, namely by providing accommodation itself; by ensuring that the applicant was provided with accommodation by a third party; or by giving the applicant such advice and assistance to ensure that suitable accommodation was available from a third party.

Strasbourg has thus largely done away with the first of the two considerations, noted above, upon which the Supreme Court placed reliance—namely, the extent of discretion involved in determining whether the ‘entitlement’ in question has arisen. And while the European Court has not dismissed the relevance of the second such consideration—that is, the extent of discretion entailed in determining the content of the entitlement—it clearly takes a narrower view than the Supreme Court about the extent to which the presence of such discretion is incompatible with the existence of a civil right.

The European Court’s decision in Salesi v Italy (1993) 26 EHRR 187—in which Article 6(1) was extended to a non-contributory welfare scheme on the ground that what was at stake was an ‘individual, economic right flowing from specific rules laid down in a statute’—has often been considered the high-water mark of Strasbourg’s approach in this area. But Ali goes further still, not least because, as Lord Collins noted when the case was before the Supreme Court, it is very difficult to characterize the entitlement in Ali, relating as it does to a benefit in kind, as an ‘economic right’ in the Salesi sense.

The Supreme Court in Ali (as well as in R (A) v Croydon London Borough Council [2009] UKSC 8) offered the European Court something of a lifeline by providing a principled framework within which to contain and determine the reach of Article 6(1) in the administrative sphere. It is unfortunate, to say the least, that Strasbourg did not grasp that lifeline with both hands. What we are left with is another expansionist decision that leaves in its wake the limiting principle for which Salesi has generally been taken to stand, and that makes little, if any, effort to articulate any other serviceable principle that might guide future judicial decision-making in this troubled area.

All of that said, it ought to be pointed out that the European Court did not in the end conclude that Article 6(1) had been breached, because the degree of subsequent scrutiny to which homelessness decisions under the 1996 Act are subjected was considered sufficient to satisfy the ‘curative principle’. This raises a fundamental question about how the overall reach of Article 6(1) ought to be contained. The UK Supreme Court, in the Ali and Croydon cases, showed a preference for making the preliminary question—whether civil rights and obligations are engaged, so as to trigger Article 6(1) in the first place—do a good deal of the work. In contrast, the ECtHR’s judgment in Ali renders that gateway consideration a less muscular constraint, thereby placing greater reliance upon the curative principle.

This difference in emphasis that the two courts’ approaches reveals can be interpreted in one of two ways. If an uncharitable view of the ECtHR’s jurisprudence were to be adopted, it might be concluded that Ali is simply a further example of intellectual sloppiness in this area, as the Court freewheels from case to case, appearing to perceive no obligation to articulate a principled basis for determining the scope of Article 6(1). On another view, however, the distinct approaches adopted by the courts might be thought to reflect a readily comprehensible difference of perspective. In particular, it is perhaps unsurprising that the ECtHR’s instinct is to capture a broad range of administrative decision-making functions by stretching the scope of Article 6(1), only to conclude that vesting many such functions in non-independent, executive agencies discloses no breach of Article 6(1) by dint of the applicability of the curative principle. Such an approach enables the Court to ensure that administrative decision-making is subject to the sort of independent judicial oversight that is, at least within the UK’s legal system, taken to be a constitutional fundamental. Article 6(1) thus comes to serve a dual purpose. It ceases to supply (only) a right to have decisions that determine civil rights and obligations, narrowly conceived, taken by independent decision-makers, and becomes (in addition) a broader requirement that decisions that can be, and are, quite properly made by non-independent administrative bodies be subject to scrutiny by independent judicial tribunals.

Whether this reflects unfortunate ‘mission creep’ in the Court’s interpretation of Article 6(1) or a normatively warranted guarantee of administrative justice is debatable. (Indeed, those two interpretations are not necessarily mutually exclusive.) Either way, however, it is clear that the implications of decisions like Ali are likely to be felt most acutely in Council of Europe States in which curial oversight of administrative decision-making—whether through rights of appeal to tribunals or judicial review by ‘regular’ courts—is available less fulsomely than it is in the UK.