Here is something that I wondered about when first reading Lady Hale’s judgment in Cheshire West. I haven’t asked it on here before because it’s hard to express (which usually means I’m barking up the wrong tree) but now that it’s back in the news I’ll give it another go.
The ECtHR always blithely recites a whole load of boilerplate from previous cases. To get round Guzzardi in particular (which states that “the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question”) Lady Hale said that the cases of P, MIG and MEG “are not about the distinction between a restriction on freedom of movement and the deprivation of liberty” as they were “not free to go anywhere without permission and close supervision” – so the focus was solely on what the ECtHR had found to be the “key” issues in similar cases, namely whether the person “was under continuous supervision and control and was not free to leave” (which applied in the three cases).
This feels like a sleight of hand. My dad used to talk about petitio principii and I wish now that I’d listened more, but I think it roughly is the same as begging the question, or relying on the conclusion being true as part of the argument. Lady Hale’s decision that the restrictions on P, MIG and MEG were serious enough to amount to Article 5 deprivations of liberty was at least partly based on her decision that those restrictions were so serious that the case wasn’t even about the restriction/deprivation distinction.
Could you expand on what you mean by the ‘sleight of hand’. After listening to the recent hearing I left with the feeling that what Lady Hale may have been attempting to do in Cheshire West was distil the relevant ECtHR case law into an ‘acid test’ that could be easily understood and applied fairly on the ground by professionals. Whereas it appeared to me that what the Attorney General for Northern Ireland and the Secretary of State for Health and Social Care were arguing is that there is no such thing as an ‘acid test’ within the ECtHR case law and that any determination of whether arrangements are merely restrictions or ‘were serious enough to amount to Article 5 deprivations of liberty’ would need to be determined through a ‘multifactorial assessment’ (NB: i am sure the Attorney General for Northern Ireland used the term ‘multifactorial assessment’ on day 1 of the hearing and it was used again at other times)… NB: I thought LPS wanted to remove needless bureaucracy?!
My simple worry would be that if we apply a multifactorial assessment model to DoL any Article 5 protections would be a postcode lottery and whilst the ‘acid test’ may be an oversimplification of the relevant ECtHR case law it is at least a model that, in principal, could be applied fairly and equally by professionals and a model that can be understood by families of P as well (in most cases).
The part of the case that worries me most is the arguments relating to ‘will and preferences’ and valid consent. In the Appellant’s written case they suggest a need to “looking to a wider concept of valid consent” and “address where the boundary between passive acquiescence and consent was to be drawn.” with the intention of “revise the Code so that these persons can give valid consent to their confinement, even though they lack capacity, through the expression of their wishes and feelings”… The muddying of the water of what any lay person understands as valid consent I find most troubling. And whilst I am not an expert in the MHA I am sure I heard Victoria Butler-Cole KC on behalf of the Charities in the case say that (I think this was on the morning of day 3), if the Supreme Court agree that expressions of will and preference could be taken as evidence of valid consent then this would also become a relevant factor for people deprived of their liberty under other legislative frameworks like the MHA. So interested in the hive minds views on that.
To be fair, I was only focussing on the odd way of going about things rather than the conclusion itself. In a sense the acid test was predictable. I wrote this in 2013 before the Supreme Court decision:
It can be seen that the classic ECtHR approach, in HL and Storck, and in the recent cases, is to state that the ‘key factor’ relates to whether there is ‘complete and effective control’, to set out salient facts in that regard, and to conclude on that basis whether there was ‘continuous supervision and control’ and whether the person was ‘free to leave’
Maybe we should have separate topics about the arguments in Cheshire West 2!
As a lay person interested in this area, the ‘acid test’ just made sense and seemed like an assessment that any frontline professional could assess and analyse on the ground, so to hear that others felt the ‘acid test’ would be a ‘predictable’ outcome is good to hear, because from listening to the 2 and a bit days of argument in Cheshire West 2 (what about ‘Cheshire West the Revenge’?) i was far from convinced that the judges thought it was predictable or a positive outcome.
‘Separate topics’ about the arguments in Cheshire West 2 would be great… Helpful for getting our heads around what is/isn’t being argued before the judgment of the SC is made.
For what it’s worth, I don’t think there was a sleight of hand. It’s noticeable she refers to MIG and MEG not being “about the distinction between a restriction on freedom of movement and the deprivation of liberty" (rather than between restriction and deprivation of liberty, which is what the ECtHR uses in its standard formulation about it being a matter of degree or intensity, rather than nature or substance).
I think all she’s saying is that this isn’t a case like Guzzardi where a key issue is how far and how often a person is allowed to move around if they want.
You are probably right… I’m expressing confusion more than anything else. But Guzzardi wasn’t just “about the distinction between a restriction on freedom of movement and the deprivation of liberty” either – it ended up mainly being about the distinction between “deprivation of and restriction upon liberty”, like Cheshire West.
The Court recalls that in proclaiming the “right to liberty”, paragraph 1 of Article 5 (art. 5-1) is contemplating the physical liberty of the person; its aim is to ensure that no one should be dispossessed of this liberty in an arbitrary fashion. As was pointed out by those appearing before the Court, the paragraph is not concerned with mere restrictions on liberty of movement; such restrictions are governed by Article 2 of Protocol No. 4 (P4-2) which has not been ratified by Italy. In order to determine whether someone has been “deprived of his liberty” within the meaning of Article 5 (art. 5), the starting point must be his concrete situation and account must be taken of a whole range of criteria such as the type, duration, effects and manner of implementation of the measure in question (see the Engel and others judgment of 8 June 1976, Series A no. 22, p. 24, par. 58-59).
The difference between deprivation of and restriction upon liberty is nonetheless merely one of degree or intensity, and not one of nature or substance. Although the process of classification into one or other of these categories sometimes proves to be no easy task in that some borderline cases are a matter of pure opinion, the Court cannot avoid making the selection upon which the applicability or inapplicability of Article 5 (art. 5) depends.
Isn’t the “objective element” in all Art 5(1) cases about whether the circumstances cross the line between restriction upon and deprivation of liberty ?
Guzzardi wasn’t special in that, it was just the first time the ECtHR’s (now) standard formula - which refers to liberty, not movement - was expressed so succinctly.
It looks like the more limited concept of “restriction of movement” was prominent in Guzzardi because the Commission (and then some dissenting judges) saw it as coming within the ambit of Article 2, Protocol 4 (“Freedom of Movement”) rather than Art 5.
Rather than rejecting restriction of movement as relevant to Art 5, I still think Lady Hale was probably just saying that the extent of such restrictions was self-evident in MIG & MEG’s cases and needed no further exploration - but that they were not determinative of a breach of Art 5.