In the course of his judgment Laws L.J. threw a couple of digs, one at the UK Supreme Court and one at the European Court of Human Rights. Mark Elliott adjudges the dig aimed at London to have hit its mark, but in my view Laws L.J. at best grazed the cheek of Strasbourg.
Article 10 of the European Convention on Human Rights protects freedom of expression but as is well known it allows the state to impose limits that are "necessary in a democratic society". Less well known is the additional limitation that such limits must be "prescribed by law". The Strasbourg Court has said that "unfettered" discretion does not satisfy this requirement. Laws L.J. took umbrage:
83. Before leaving this aspect of the Article 10 issue, however, there is a more general point to make. As I have shown the Strasbourg court in Gillan stated (paragraph 77) that "[i]n 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". Schedule 7 is plainly not so expressed; but it is in any case worth having in mind that in English law the executive never enjoys unfettered power. All State power has legal limits, for it is conferred on trust to be exercised reasonably, in good faith, and for the purpose for which it was given by statute; and where a discretionary power touches a fundamental right, its use must fulfil the proportionality principle. It is always for the court to ascertain the statute's purpose as a matter of construction. It is not a general, certainly not an absolute, requirement of the law of human rights in England that the Act of Parliament must spell out the constraints upon the power which it confers. That is not to say that the disciplines of the common law will always save a statute couched in seemingly unfettered terms; I recognize of course that "[t]he exercise of power by public officials, as it affects members of the public, must be governed by clear and publicly-accessible rules of law" (Gillan (UK) per Lord Bingham at paragraph 34). But the position in this jurisdiction is with respect more nuanced than the Strasbourg court would appear to acknowledge in the passage cited.The Strasbourg Court's use of the term "unfettered" is infelicitous. In the common law tradition all statutory provisions have a "perspective" which operates as a limit on the exercise of any power granted. Thus "all State power" indeed "has legal limits", as Laws L.J. put it.
But Laws L.J.'s quotation proves to be a tad selective. Two paragraphs later on in Gillan, the Strasbourg Court noted that the nub of the applicants' complaint was that the statutory scheme "confer[s] an unduly wide discretion on the police, both in terms of the authorisation of the power to stop and search and its application in practice" (para. 79, emphasis added). There is a world of difference between an "unfettered" and an "unduly wide" discretion.
And the difference is important. The "prescribed by law" requirement imposes both a formal and substantive constraint. All state action must have a formal basis in law. Hence the importance of identifying "legal limits". Any action outside those limits is ultra vires, not prescribed by law and thus not capable of interfering with a protected right.
However, "prescribed by law" also imposes a substantive constraint. Where "an unduly wide discretion" is conferred upon the authorities, it should be hemmed in by guidelines so individuals' exercise of their protected rights is not 'chilled' by the prospect of running afoul of a broadly drawn discretionary power.
Indeed, Miranda is a good example of the need for both formal and substantive constraints. The Terrorism Act is drawn in very broad terms. Officers acting on a reasoned basis, in good faith and proportionately* may question anyone to determine if they appear to be a terrorist, a term which is very broadly defined. Laws L.J. held that the detention and questioning were lawful. The officers did not need to have reasonable suspicion that Miranda was a terrorist, or reasonable grounds to believe that questioning might reveal him as one (at paras. 32, 35).
But anyone transiting through Heathrow could be questioned under such a broadly drawn power! The formal constraint of the "prescribed by law" requirement is of limited value for it is virtually impossible to demonstrate that a particular use of the power is ultra vires. This discretion may not be "unfettered" but it is very wide, if not "unduly wide". Laws L.J. himself accepted that "the potential reach of [Schedule 7] is very wide" (at para. 28). It is precisely this sort of statutory scheme that the substantive constraint of the "prescribed by law" requirement is designed to combat.
I have no position on whether Schedule 7 is truly "prescribed by law" (see the brief discussion at para. 81) and if it is not precisely what sort of guidelines (internal or publicly available) would rectify its failings. But Laws L.J.'s dig did not really connect. If permission is granted, it will be interesting to see how the "prescribed by law" point is addressed (here are the grounds of appeal). The UK courts were admonished in Gillan and will be again if they continue to neglect the substantive constraint of the "prescribed by law" requirement.
* One may think that the proportionality test provides sufficient safeguards against the improper use of the Schedule 7 powers. But one only gets to the substance of the proportionality test after it has been determined that the power is "prescribed by law". I think Laws L.J. erroneously rolled proportionality into his analysis of whether the power was "prescribed by law" in a formal sense (exercised for a proper purpose, on a reasoned basis and in good faith and thus intra vires).
I discuss the "prescribed by law" requirement in Canadian law in this paper: Prescribing Greater Protection for Rights: Administrative Law and Section 1 of the Canadian Charter of Rights and Freedoms. The general discussion should be relevant to European readers.