Modern human rights law invites political challenges to law or policy and politicises adjudication in turn. The risks were on full display a year ago when the High Court roundly declared sections 20-37 of the Immigration Act 2014 to be racially discriminatory. I argued at the time that this was an incredible judgment and should be reversed on appeal or, if need be, by legislation. The High Court had mishandled complex questions of fact, misunderstood Parliament’s reasoning in enacting the statutory scheme, and had wrongly concluded that the scheme could not be justified. Happily, the Court of Appeal has now allowed the government’s appeal, resisting in strong terms this challenge to Parliament’s decision to prohibit private landlords from renting property to anyone unlawfully in the UK and require them to check the immigration status of any and every prospective tenant.
The challenge to the statutory scheme was not brought by anyone who alleged being subjected to unlawful discrimination, but by the Joint Council for the Welfare of Immigrants with support from the Residential Landlords Association and from Liberty. The High Court held that in requiring landlords to check immigration status the legislation had caused landlords to discriminate against those who had a right to rent – persons who were not in the UK unlawfully – and yet were not (white) British citizens. Such discrimination was unlawful but nonetheless, the judge reasoned, the statutory scheme made it “rational” and “logical” for landlords to discriminate.
In reaching its findings of fact about causation, the High Court relied uncritically on statistical evidence put before it by the claimants and put the onus on the government to prove the scheme did not cause discrimination. The Court of Appeal was much more careful. Lord Justice Hickinbottom, with whom Lord Justice Henderson agreed, had reservations about the High Court’s approach to the evidence. Still, given that in cases alleging discrimination contrary to ECHR Article 14, the European Court of Human Rights recognises difficulties of proof and takes a broad-brush approach to evidence, he was willing to accept that as a result of the scheme some landlords discriminated against would-be tenants lawfully in the UK but without a British passport. That is: but for the scheme, there would have been less discrimination of this nationality- and/or race-based kind. Lord Justice Davis shared the majority’s reservations about the High Court’s approach to evidence, evidence he found simply inconclusive.
In any event, was it rational for the hypothesised discriminating landlords to discriminate? The Court of Appeal categorically ruled it was not. It rejected both High Court’s premise that landlords have only one interest, to maximise rental income, and its conclusion that discrimination was therefore rational or logical. Such discrimination was obviously wrong and obviously unlawful. The rational landlord, Davis LJ firmly said, is law-abiding, not a profit-driven automaton. There was no evidence before the court that rational landlords are caused to discriminate by the statutory scheme, which from the outset included a Code of Practice emphasizing that it is illegal to discriminate (including discrimination in the ways detected in surveys or hypothesized).
If Article 14 applies to this statutory scheme at all – a question made ever more murky by the jurisprudence of the European Court of Human Rights, and assumed by the Court of Appeal only for the sake of argument – it would be breached only if Parliament’s decision to discourage illegal immigration by a method that, despite statutory precautions, creates for some landlords an incentive or opportunity to unlawfully discriminate was unjustifiable. I argued a year ago that this was not a proper question for a court to be asked to decide. It calls for a political evaluation of how Parliament ought to respond to the risk of discrimination in the context of measures taken to maintain the coherence of the country’s immigration policy. As Hickinbottom LJ noted, the legislation neither intended nor encouraged discrimination. He rejected the High Court’s finding that the scheme had proved ineffective because only a small number of persons unlawfully in the country have been removed. He took seriously the proposition that courts can declare such a scheme unjustified only if it was “manifestly without reasonable foundation”.
Davis LJ was even more direct. This was a misconceived challenge. The statutory scheme did not discriminate. It did not cause, and could not be held responsible for, the unlawful decision of some private landlords to discriminate. The risk that they would was a fully foreseen side-effect which Parliament carefully considered and took pains to discourage and avoid. It is for Parliament not the courts to decide how severe this risk is and whether the scheme, given the risk that its precautions would not be 100% effective, should nonetheless be adopted.
He went further. “I view this case as potentially a challenge to the rule of law… the courts must not countenance it.” Some landlords object to the burdens the scheme places on them; hence the Residential Landlords Association support for the claim. But their logic is that the legislation unlawfully discriminates because they unlawfully fail to comply.
Along the way, Davis LJ observed that this litigation, brought explicitly in the interests of a subclass of persons lawfully entitled to rent, may reasonably be regarded as having a collateral aim of advancing the interests of persons notlawfully entitled to rent, by bringing down the entire scheme (and any scheme) for discouraging illegal immigration by restricting availability of accommodation. Unlawful action by some landlords (or the risk of such action; recall that the claim was not brought by anyone in fact subject to discrimination) is thus being weaponised to denounce and discredit any such scheme. In fact, as Davis LJ was too polite to say, this was exactly what the High Court had held, giving the claimants the political victory they had sought.
The case will now head to the Supreme Court. Whether the Court of Appeal’s powerful judgment is overturned is likely to depend on which Justices hear the appeal and on whether they are inclined to both favour a wide understanding of the reach of Article 14 and replace the “manifestly without reasonable foundation” test with some less deferential standard. There are signs enough in recent Supreme Court case law of such inclinations. It is to be hoped that, whatever the panel, there will be careful attention to what Parliament chose, to its ends, its means, and to its foresight of and precautions against side effects. Meantime, the Court of Appeal’s judgment is an important defeat for those for whom litigation just is politics by other means.
Richard Ekins is Head of Policy Exchange’s Judicial Power Project and Professor of Law and Constitutional Government, University of Oxford