Clift, R (on the application of) v Secretary of State for the Home Department

The House of Lords considered whether differential treatment in the statutory early‑release/parole regime fell within the ambit of article 5 of the European Convention on Human Rights so as to engage the non‑discrimination guarantee in article 14. The court held that the right to seek early release, where domestic law provides for it, falls within the ambit of article 5 and that differential treatment in that context can therefore give rise to an article 14 complaint. The Lords differed as to whether classification by length of determinate sentence amounted to a prohibited ground under article 14; the appeal of Mr Clift (serving a determinate sentence of 15 years or more) was dismissed on that point. By contrast the appeals of Mr Hindawi and Mr Headley (foreign nationals liable to removal) were allowed: sections 46(1) and 50(2) of the Criminal Justice Act 1991 were declared incompatible with article 14 taken with article 5 insofar as they denied prisoners liable to removal the same Parole Board review as other long‑term prisoners.

Background and parties:

• The appellants were long‑term prisoners (Clift a British national; Hindawi and Headley foreign nationals liable to deportation) who complained that the statutory early‑release/parole regime treated them less favourably than other long‑term prisoners.
• The central statutory material included provisions of the Criminal Justice Act 1991, the Parole Board (Transfer of Functions) Order 1998 and transitional provisions in the Criminal Justice Act 2003. Proceedings reached the House of Lords on appeal from the Court of Appeal.

Nature of relief sought and issues:

• The applicants sought relief under the Human Rights Act 1998, alleging discrimination contrary to article 14 of the European Convention on Human Rights taken with article 5: they sought either a declaration of incompatibility or that their treatment be held unlawful.
• The parties agreed three issues for determination: (1) whether applications for early release fell within the ambit of article 5 so as to engage article 14; (2) whether the differential treatment complained of was on a ground listed or covered by article 14 (the "proscribed ground" question); and (3) whether any differential treatment was objectively and proportionately justified.

Court’s reasoning and conclusions:

• On issue one the House held that, although article 5 does not require states to create early‑release schemes, where domestic law provides for early release the right to seek such release is within the ambit of article 5 because it relates to the core value of liberty; consequently article 14 may apply to discriminatory operation of that scheme.
• On issue two the Lords differed as to the scope of "other status" in article 14. By a majority the court held that liability to removal (national origin/immigration status) is a proscribed ground and thus engaged article 14, but that classification solely by length of determinate sentence (as in Mr Clift's case) did not clearly amount to a personal characteristic covered by article 14 and so his complaint failed that preliminary threshold.
• On issue three the court assessed objective justification. The majority found that the retained ministerial discretion over release for prisoners liable to removal (and for those serving determinate terms of 15 years or more) lacked a continuing rational justification in light of developments (including the Parole Board's expertise and practice and subsequent legislative change). Accordingly, the court declared sections 46(1) and 50(2) of the Criminal Justice Act 1991 incompatible, insofar as they prevented prisoners liable to removal receiving the same Parole Board review as other long‑term prisoners; Mr Clift’s differential treatment based on sentence length was, however, not held to be a prohibited ground under article 14.

Remedy and wider observations: The House made a declaration of incompatibility in the Hindawi and Headley appeals and dismissed Clift's appeal. The judgment emphasises that article 14 has no independent existence and its application requires that the disadvantage fall within the ambit of a substantive Convention right; the decision also notes the rarity and care with which courts should extend the class of prohibited grounds under article 14.

The House held that the right to seek early release where domestic law provides for it falls within the ambit of article 5, so discriminatory application of such a scheme can engage article 14. The appeal of Mr Clift was dismissed because the classification by sentence length was not regarded as a recognised "status" under article 14; the appeals of Messrs Hindawi and Headley were allowed and a declaration of incompatibility was made as sections 46(1) and 50(2) of the Criminal Justice Act 1991 prevented prisoners liable to removal from obtaining Parole Board review in the same way as other long‑term prisoners and could not be objectively justified.

Appeals from the Court of Appeal ([2004] EWCA Civ 514 and related appeals such as [2004] EWCA Civ 1309) to the House of Lords, culminating in judgment [2006] UKHL 54.