R. (Lumba) v Secretary of State for the Home Department (JUSTICE and another intervening) [2011] UKSC 12, [2011] 2 W.L.R. 671, raised important questions about administrative law, tort, and the availability of damages. First, was it lawful for the Home Secretary, when deciding whether to detain someone with a view to deportation, to operate a presumption in favour of detention when her published policy was to favour release on bail? Secondly, if unlawful, did it make the subsequent detention a false imprisonment? Thirdly, if it did, was the claimant entitled to more than nominal damages when he would have been detained even under the published policy?
Walumba Lumba was a foreign national prisoner (“FNP”) serving a term of imprisonment in the UK. The Home Secretary notified him that, on completing his sentence in 2006, he would be detained for the purpose of deportation. Under the published Operational Enforcement Manual there was a presumption in favour of temporary release on bail pending deportation, and there had to be “strong grounds for believing that a person would not comply with conditions imposed on temporary release” for detention to be justified. In practice, however, the Home Secretary secretly operated what she called “a near blanket ban on release, regardless of whether removal can be achieved and the level of risk to the public linked to the nature of the FNP's original offence”. Lumba would have been detained under either policy.
When her real policy was revealed in 2008, the Home Secretary brought the published policy into line with it. Lumba, who was still awaiting deportation, claimed (inter alia) damages for false imprisonment. Davis J. declared (i) that the presumption in favour of detention was unlawful, and (ii) that in any event it had been unlawful to apply such a presumption in contravention of the published policy, but dismissed Lumba's claim for damages: [2008] EWHC 3166 (Admin); [2009] A.C.D. 22. The Court of Appeal set aside the first declaration, varied the second, and upheld the decision to dismiss the claim for damages: [2010] EWCA Civ 111; [2010] 1 W.L.R. 2168. Lumba appealed to the Supreme Court. By the time of the hearing, he had been detained for more than four years after completing his sentence.
A nine-judge panel of the Supreme Court held unanimously that a presumption in favour of detention is compatible both with the common law and with the right to liberty under Article 5 of the ECHR, as long as (a) “presumption” means “normal practice” and does not prevent the Home Secretary from considering in each case whether special circumstances make that practice inappropriate, and (b) the Home Secretary justifies the detention “with reasons that are closely connected to the statutory purpose of effecting deportation”. Eight Justices endorsed the principles explained in R. v Governor of Durham prison, ex parte Hardial Singh [1984] 1 W.L.R. 704, 706 (Woolf J.): the Home Secretary may lawfully detain FNPs if she intends to deport them, and uses the power for that purpose only and acts with reasonable diligence and expedition. If it becomes clear that deportation is impossible, the detainee must be released.
Nevertheless, the majority held that ordinary administrative law rules made Lumba's detention between 2006 and 2008 unlawful. First, the secret policy had admitted of no exception, so had unlawfully fettered the Home Secretary's discretion. Secondly, and more innovatively, the Home Secretary had a legal duty to apply the published policy, unless there were good reasons for not doing so (Lord Dyson at [26]). An unpublished policy could not be sufficient reason. This was not merely a legitimate expectation, which could be defeated by countervailing public interests; it was a matter of constitutional principle. At least where fundamental rights are affected, the rule of law requires the executive to say when a discretion will be exercised, and people have a right to know the operative policy and to have their cases considered under it if it is lawful (Lord Dyson at [34]–[35]).
Despite the fact that this breach of this principle had not “caused” Lumba to be detained, as he would have been detained in any event, six Justices went on to hold that it made the Home Secretary liable in false imprisonment, which is simply imprisonment without lawful authority (Lord Dyson at [65]). Nevertheless, none of the Justices thought that all forms of public-law unlawfulness would automatically found liability for false imprisonment, and they disagreed as to what additional elements are needed. Lord Dyson (at [68], with whom Baroness Hale agreed) required only that the breach of public law should “bear on and be relevant to the decision to detain”. Material unlawfulness which is capable of affecting the decision as to detention (which, as Baroness Hale pointed out, is not the same as actually affecting it) would always found a claim for false imprisonment. By contrast, the fact that detention was authorized by an official of a different rank from, or took place in less amenable conditions than, the policy described would not bear on the decision to detain. Lord Collins agreed with Lord Dyson, although he also emphasised that a catalogue of official misbehaviour had led to a “serious breach” which had affected fundamental rights (at [219]–[221]). It is not clear whether he regarded these facts as additional, cumulative requirements for establishing tort liability on the basis of public-law unlawfulness, as alternative requirements, or merely as adding colour to his reasoning but having no normative significance.
The other three Justices in the majority explicitly stated that in their view requirements in addition to public-law unlawfulness were required in order to generate liability for false imprisonment. Lord Walker (at [193], with whom Lord Hope and Lord Kerr agreed) would have limited liability to cases where there was either an absence of power, or a misuse of power which “amounted to an abuse of power (including but not limited to cases of misfeasance or other conscious misuse of power)”, despite Lord Dyson's concern (at [69]) that the term “abuse of power” has no clear meaning.
Lord Brown (at [351]–[358]), with whom Lord Rodger agreed (dissenting), started from the definition of the tort of false imprisonment rather than from public-law principles. It would be unjust to compensate someone who would have been detained even if the Border and Immigration Agency had acted lawfully. Yet false imprisonment, he thought, gives rise to a right to substantial, or more than nominal, damages, without proof of special damage. There should therefore be no liability for false imprisonment where it would be unjust to award substantial damages. He favoured limiting tort liability to cases where a decision had been taken without power to make it. Mere misuse of a power to detain would lead only to public law remedies.
Lord Dyson at [66], with whom Lord Kerr agreed at [246]–[247], rejected this idea, which, he thought, would re-introduce a distinction between legal errors which go to jurisdiction and those which do not. In his view, the House of Lords in Anisminic Ltd. v Foreign Compensation Commission [1969] 2 A.C. 147 had established that both acting without jurisdiction and legal errors when exercising jurisdiction “render an executive act ultra vires, unlawful and a nullity”. Lord Kerr, however, found the distinction between absence and misuse of power compelling; the latter would be tortious only if decision-makers depart from the statutory purpose (at [249]). Lord Walker (at [193]) pointed out that Anisminic was not concerned with the relationship between public and private law, and did not think it clear that it applied in the context of tort.
Thus six Justices concluded both that Lumba had been unlawfully detained as a matter of public law and that he could maintain an action for false imprisonment, but no rationale was supported by a majority of the nine Justices, or perhaps even by a majority of the majority. Furthermore, Justices' views on the effect of Anisminic do not always seem logically consistent with their conclusions about the circumstances in which public law unlawfulness leads to tort liability. The ratio decidendi on this point is opaque.
The Court decided unanimously not to award exemplary or aggravated damages. But Lords Hope and Walker and Baroness Hale thought that, on orthodox common law principles, more than nominal damages should be awarded (Lord Walker thought £1,000; Baroness Hale preferred £500), because there had been a serious violation of an important right and false imprisonment is actionable per se, without proof of special damage. The award would be analogous to “vindicatory” damages awarded in some other jurisdictions against officials who violated constitutional or quasi-constitutional rights. The majority of the Justices, however, decided that only nominal damages should be awarded, as Lumba would have been detained even under the lawful, published policy, and awarded him only £1. They rejected the use of vindicatory damages in English law where exemplary damages would be inappropriate, or thought that the scope for such damages would be very limited. Nominal damages or even a declaration could vindicate important rights. This is disappointing, and ignores Article 5(5) ECHR, giving an enforceable right to compensation for unlawful detention.
The majority accepted that an unreasonably long period of detention would be unlawful on Hardial Singh principles and entitle Lumba to more than nominal damages, so that issue was remitted to the High Court. In the meantime, Lumba remains in detention more than five years after the end of his sentence.
