In Hounga v Allen [2014] UKSC 47 the Supreme Court took the opportunity to overrule one of the most controversial Court of Appeal decisions on employment rights in recent times, where the Court of Appeal held that the doctrine of illegality barred the race discrimination claim of a trafficked migrant worker, Ms Hounga. (See previous post here outlining the facts and case history.) 

The Supreme Court reversed the Court of Appeal on the illegality point and upheld Ms Hounga’s race discrimination claim. This means that ‘illegal’ migrants now enjoy (some) employment rights in (some) circumstances, rather than being outlaws deprived of their fundamental human rights in every circumstance.  In so doing, it puts to an end a short but shameful episode in the life of the English common law. It is a result that is to be applauded. How enduring this judgment will prove to be is, however, an open question. While all of the Justices concurred in the result, Hounga offers two approaches to the illegality enquiry in race discrimination claims. Lord Wilson (with whom Lady Hale and Lord Kerr agreed) delivered a speech that was ripe with promise for a progressive development of the law on illegality in respect of employment claims. Lord Hughes (with whom Lord Carnwath agreed) delivered a speech that would have preferred a much narrower approach to the disposal of the case.

Essentially, Lord Wilson appears to suggest a three-stage approach to the determination of the illegality issue. First, was the claimant’s illegality ‘inextricably bound up’ with the tort claim? While Lord Wilson emphasized that this enquiry could not be purged of subjective considerations, thereby deprecating approaches that purported to offer an objective causation-based analysis, he nevertheless concluded that the Court of Appeal had fallen into error in concluding that there was an inextricable link. The illegality was part of the context, the circumstances that went to constitute her vulnerability to racial abuse, rather than integral to her tort claim that she had been treated less favourably because of her race. Lord Hughes agreed that the ‘inextricable’ link between the illegality and the tort claim has not been satisfied.

Secondly, there is a need for an enquiry into the public policy basis of illegality to ascertain whether or not the reasons in favour of denying the claim are sufficiently strong. According to Lord Wilson, the overarching value in this area of the common law is the preservation of the ‘integrity of the legal system’, though this encompasses a range of more specific concerns: would allowing her claim permit her to profit from her own wrong? Would it permit the evasion of a criminal penalty? Would it appear to condone Ms Hounga’s illegality and encourage others like her to break the law? Conversely, would denying the claim encourage other unscrupulous employers to employ and abuse migrants with irregular status through the promise of impunity? All of these reasons gave little or no support to the denial of her claim on the grounds of illegality. Ms Hounga was not profiting from her own wrong; she was not evading a criminal penalty; there was no evidence that others might be deterred by disallowing her claim (though it would seem a rather unpalatable prospect for counsel in subsequent cases to argue that since unremedied racial harassment would deter illegal migrants the claim should be barred); and it was not implausible that other employers might be attracted to employing ‘illegal’ migrants if it meant that they could be employed cheaply and without needing to worry about their employment rights.

Thus far, the speeches of Lord Wilson and Lord Hughes are substantially in alignment. The speeches diverge, however, on the third point. Lord Wilson suggested that public policy might sometimes countervail against the denial of tort claims on the basis of illegality. This is new and significant, for public policy has generally been regarded as a doctrine that defeats contract and tort claims. In Hounga, Lord Wilson drew upon international human rights norms, as developed by the ILO and the European Court of Human Rights, to conclude that Ms Hounga had been trafficked. Since it formed part of the public policy of the English common law to afford protection to the victims of trafficking, permitting illegality to operate would be an affront to that public policy. Putting it differently, we might say that the integrity of the English legal system would have been damaged if the trafficked victim in Hounga had forfeited her human right not to be subjected to racial discrimination. Indeed, this is precisely what had happened in the Court of Appeal decision itself.

It is tempting to react with frustration to Hounga. In tailoring its protection to trafficked migrants, it has regrettable exclusionary effects on non-trafficked but nevertheless vulnerable migrants. In countenancing the balancing of public policy reasons even in human rights claims, it may be regarded as a betrayal of the universality of human rights norms in allowing illegality to figure at all. The temptation should be resisted, however. The Supreme Court decision in Hounga is an example of the common law working as well as can be expected of it, within the institutional constraints of incremental adjudication. The challenge for human rights lawyers is to plot the next steps after Hounga. In particular, Lord Wilson’s category of public policy operating against the defeasibility of human rights claims by illegality is a Trojan Horse. It brings international human rights law into the very breast of the English common law, and it is fraught with subversive potential. The next move is to consider which other aspects of international human rights law might impede the operation of the illegality doctrine, especially where its effects on vulnerable workers are most pernicious.