Judgment Approved by the court for handing down
R (Bridges) v CCSWP and SSHD
legality. This is the test which any interference with or
derogation from a Convention right must meet if a
violation is to be avoided.”
80.
The general principles applicable to the “in accordance with the law” standard
are well-established: see generally per Lord Sumption in Catt, above, [11][14]; and in Re Gallagher [2019] 2 WLR 509 at [16] – [31]. In summary, the
following points apply.
(1) The measure in question (a) must have “some basis in domestic law”
and (b) must be “compatible with the rule of law”, which means that it
should comply with the twin requirements of “accessibility” and
“foreseeability” (Sunday Times v United Kingdom (1979) 2 EHRR
245; Sliver v United Kingdom (1983) 5 EHRR 347; and Malone v
United Kingdom (1984) 7 EHRR 14).
(2) The legal basis must be “accessible” to the person concerned, meaning
that it must be published and comprehensible, and it must be possible
to discover what its provisions are. The measure must also be
“foreseeable” meaning that it must be possible for a person to foresee
its consequences for them and it should not “confer a discretion so
broad that its scope is in practice dependent on the will of those who
apply it, rather than on the law itself” (Lord Sumption in Re
Gallagher, ibid, at [17]).
(3) Related to (2), the law must “afford adequate legal protection against
arbitrariness and accordingly indicate with sufficient clarity the scope
of discretion conferred on the competent authorities and the manner of
its exercise” (S v United Kingdom, above, at [95] and [99]).
(4) Where the impugned measure is a discretionary power, (a) what is not
required is “an over-rigid regime which does not contain the flexibility
which is needed to avoid an unjustified interference with a
fundamental right” and (b) what is required is that “safeguards should
be present in order to guard against overbroad discretion resulting in
arbitrary, and thus disproportionate, interference with Convention
rights” (per Lord Hughes in Beghal v Director of Public Prosecutions
[2016] AC 88 at [31] and [32]). Any exercise of power that is
unrestrained by law is not “in accordance with the law”.
(5) The rules governing the scope and application of measures need not be
statutory, provided that they operate within a framework of law and
that there are effective means of enforcing them (per Lord Sumption
in Catt at [11]).
(6) The requirement for reasonable predictability does not mean that the
law has to codify answers to every possible issue (per Lord Sumption
in Catt at [11]).
81.
In S v. United Kingdom (above), the Grand Chamber concluded, in the context
of proceedings challenging the legality of arrangements for the retention and