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Making Rights Real: The Courts, Remedies, and the Human Rights Act

Published online by Cambridge University Press:  01 November 1999

Ian Leigh  and
Laurence Lustgarten
Ian Leigh
Affiliation:
University of Durham
Laurence Lustgarten
Affiliation:
University of Southampton
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Extract

Dicey is not fashionable these days, and for understandable reasons. The cocktail of utilitarianism and positivism, the amalgam of Bentham and Austin, that he produced led inexorably to the proclamation of unlimited parliamentary supremacy. This is widely, though with much exaggeration, conceived to be the major prop of authoritarian government. It is also, more correctly, seen as hostile to the idea of human rights possessed by persons against governments. In one sense, the decision to incorporate the European Convention on Human Rights into UK domestic law is an authoritative repudiation of the Diceyian heritage.

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Articles
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The Cambridge Law Journal , Volume 58 , Issue 3 , November 1999 , pp. 509 - 545
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Copyright © The Cambridge Law Journal and Contributors, 1999

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References

1 A.V. Dicey, Law of the Constitution (10th ed. 1959), p. 199. Dicey devoted more than twenty pages of his chapter on “Liberty of the Person” (pp. 216–237), to the Habeas Corpus Acts, suspension and indemnity.

2 On the omission of Art. 13 of the Convention, in which this phrase appears, see n. 108 below.

3 G. Hoon (Parliamentary Secretary, Lord Chancellor's Department), HC Deb. vol. 313 col. 402 (3 June 1998).

4 The White Paper stated that strictly they will not be binding: Rights Brought Home, Cm. 3782 (1997), para. 2.4. Unsuccessful attempts were made to amend Cl. 2 in the Commons Committee Stage: HC Deb. vol. 313 cols. 388 ff. (3 June 1998).

5 The scope for UK judges to exercise independent judgment was conceded by ministers: Lord Irvine: HL Deb. vol. 584 col. 1271 (19 January 1998); G. Hoon, HC Deb. vol. 313 col. 392 (3 June 1998)

6 R v. Secretary of State for the Home Dept ex p Brind [1991] 1 A.C. 696, HL. The change will be more radical in Scotland where the courts have refused to allow reference to the Convention as a source of law: Kaur v. Lord Advocate 1981 S.L.T. 322 and Moore v. Secretary of State for Scotland 1985 S.L.T. 38; see Murdoch, J., “Scotland and the European Convention” in Dickson, B. (ed.), Human Rights and the European Convention (London 1997)Google Scholar.

7 Cf. Rights Brought Home, para. 2.7.

8 Per Lord Bridge in Brind, at 747–748.

9 See R v. Brown [1994] 1 A.C. 212, 256 per Lord Lowry.

10 E.g. Tyrer v. UK (1978) 2 EHRR 1, para. 31; Cossey v. UK (1990) 13 E.H.R.R. 622, para. 35.

11 Contrast X v. UK (1978) DR 11 with Dudgeon v. UK (1982) 4 E.H.R.R. 149.

12 G.Hoon, HC Deb. vol. 313 col. 405 (3 June 1998).

13 For example: in Rantzen v. MGN [1994] Q.B. 670, 694–695 Neill L.J. stated that the time was not right to allow reference before the jury to previous libel damages awards. However, in John v. MGN [1996] 2 All E.R. 35 the Court of Appeal revised this practice, purportedly independently of the intervening decision of the ECtHR in Tolstoy Miloslavsky v. UK (1995) 20 E.H.R.R. 442.

14 Camelot Group plc v. Centaur [1999] Q.B. 124, CA at 135–136 (Schiemann L.J.) and 138–139 (Thorpe L.J.) purporting to treat Goodwin v. UK (1996) 22 E.H.R.R. 123 and X v. Morgan-Grampian [1991] 1 A.C. 1, as taking the same approach to s. 10 of the Contempt of Court Act 1981, but explicable by different interpretations of the facts. Strasbourg, however, treats evidence and fact-finding as for the national court where the challenge is to a judicial decision.

15 Staines v. Morrissey (1997) 2 Cr. App. R. 426, holding that evidence obtained under s. 177(6) the Financial Services Act 1986 should not be excluded under s. 78 of the Police and Criminal Evidence Act 1984 (despite Saunders v. UK (1997) 23 E.H.R.R. 313 ruling that a similar procedure violated Art. 6).

16 See pp. 544–545 below [conclusion].

17 See: M. Hunt, [1998] P.L. 423; I. Leigh, (1999) 48 I.C.L.Q. 57; B. Markesinis, (1999) 115 L.Q.R. 47; N. Bamforth, [1999] C.L.J. 159; SirWade, W., in University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Oxford 1998)Google Scholar.

18 This has been anticipated in effect prior to the coming into force of the HRA by the Divisional Court judgment in R v. D.P.P., ex p. Kebilene, [1999] 3 W.L.R. 175.

19 For the relevance of Arts. 8 and 14 see Hoffmann v. Austria (1994) 17 E.H.R.R. 293.

20 See In re H-S (Minors) Protection of Identity [1994] 1 W.L.R. 1141; Re W (Wardship Discharge: Publicity) [1995] 2 F.L.R. 466; and cf. R v. Central Independent Television [1994] Fam 192.

21 See especially R v. Khan [1997] A.C. 558 where the House of Lords held that a trial judge, when exercising the discretion under s. 78 of the Police and Criminal Evidence Act 1984 to exclude evidence, could (but was not bound to) have regard to Arts. 6 and 8 of the Convention. Following incorporation, consideration of the Convention rights will be mandatory.

22 P. 518. In the discussion below we consider the implications for one important discretionary remedy the injunction (see pp. 531–536).

23 Tolstoy Miloslavsky v. UK (1995) 20 E.H.R.R. 442; Z v. Finland (1998) 25 E.H.R.R. 371.

24 Hokkanen v. Finland (1995) 19 E.H.R.R. 139; Airey v. Ireland Series A 32 (1979).

25 Where the Convention permits greater restrictions on rights than those currently available incorporation under the HRA should have no detrimental effect because section 13 (1) states that the Convention rights are without prejudice to other rights and freedoms conferred under UK law.

26 Handyside v. UK Series A, 24 (1976); Muller v. Switzerland (1991) 13 E.H.R.R. 212.

27 Dudgeon v. UK Series A, 45 (1981).

28 T.Jones, “The Devaluation of Human Rights under the European Convention” [1995] P.L. 430.

29 Cf. D. Pannick, “Comment: Principles of interpretation of Convention Rights under the Human Rights Act and the discretionary area of judgment” [1998] P.L. 545; R. Singh, M.Hunt and M.Demetriou, “Is there a role for the “Margin of Appreciation” in National Law after the Human Rights Act?” [1999] E.H.R.L.R. 15.

30 See p. 518 below.

31 [1996] Q.B. 517, 541 at first instance. Commended in the Court of Appeal by Henry L.J., ibid., 564, although, confusingly, he identified the Strasbourg court as exercising primary jurisdiction—a view difficult to reconcile with the margin of appreciation doctrine. The Court of Appeal doubted the usefulness of speculation by domestic courts on the merits of a Strasbourg application arising from the facts and pointed to the differing nature of the evidence and arguments which would then apply: Sir Thomas Bingham, M.R., 558, Henry L.J., 564 and Thorpe L.J. 564 (Contrast, however, R v. D.P.P., ex p. Kebilene, [1999] 3W.L.R. 175, where, following enactment but before implementation of the HRA, Lord Bingham gave advice to the D.P.P. on the probable application of Art. 6 to ss. 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989).

32 Sunday Times v. UK (1979) 2 E.H.R.R. 245.

33 Similarly, faced with a broad possible restriction under section 1 of the Charter of Rights “justifiable and reasonable limitation”, Canadian courts have considered legislative practice in other countries but ultimately confronted the question of what is necessary in Canadian democracy, e.g. Dagenais v. CBC [1994] 3 S.R.C. 835.

34 Cf. Jones, op cit., pp. 445–448.

35 R v. Oakes [1986] 1 S.R.C. 103. Cf, New Zealand Bill of Rights Act 1990 s. 5; and see Noort v. Minister of Transport [1992] 3 N.Z.L.R. 260.

36 This is not true, however, of legislation passed by the Scottish Parliament and the Northern Ireland Assembly, which remain subordinate law-making bodies.

37 However, incorporating the Convention jurisprudence under s. 2 means that official actions restricting rights, whose sole legal basis is a ministerial or other administrative circular might now be precarious in domestic law: see Malone v. UK (1984) 7 E.H.R.R. 14 and Silver v. UK (1983) 5 E.H.R.R. 347. The Strasbourg interpretation of “authorised by law” in these cases was seemingly overlooked in the treatment under Article 8 of the legality of disclosure of information by the police in R v. Chief Constable of North Wales, ex p. AB [1998] Q.B. 396, 414 (Lord Bingham) and 429 (Lord Woolf M.R.).

38 “The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby exceed legislative authority is essentially supervisory. It declares whether a balance struck by Parliament is within or without the range of legitimate legislative choices.” Lord Bingham of Cornhill, “The Way We Live Now: Human Rights in the New Millennium” [1998] 1 Web J.C.L.I.

39 Sir John Laws, “The Limitations of Human Rights” [1998] P.L. 254, 258. He argues that the difference between the two tests is following recent developments in the UK merely one of degree (ibid., 261–2).

40 The University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Oxford 1998), 102Google Scholar.

41 R v. Secretary of State for the Home Dept ex p Brind [1991] 1 A.C. 696, HL.

42 [1996] Q.B. 517.

43 R v. Secretary of State for Home Dept ex p Leech [1994] Q.B. 198.

44 Budgaycay v. Secretary of State for the Home Dept [1987] A.C. 514, esp. the well-known passage in which Lord Bridge refers to the courts giving administrative law decisions which interfere with fundamental rights “anxious scrutiny” (ibid, 531).

45 R v. Lord Chancellor ex p Witham [1998] Q.B. 575.

46 The Hon. Sir John Laws, “Is the High Court the Guardian of Fundamental Rights?” [1993] P.L. 63; see further Donson, F., “Civil Liberties and Judicial Review: Can the Common Law Really Protect Rights?” in Leyland, P. and Woods, T. (eds.), Administrative Law Facing the Future: Old Constraints and new Horizons (London 1997)Google Scholar.

47 Lord Irvine of Lairg, “Judges and Decision-Makers: The Theory and Practice of Wednesbury Review” [1996] P.L. 59.

48 Ibid., at p. 74.

49 [1998] P.L. 221, 232 ff..

50 Cf. M. Taggart, in Constitutional Reform in the UK, at p. 92, comparing the Bill with New Zealand administrative law.

51 An application by the journalists to Strasbourg was declared inadmissible on the grounds of being manifestly ill-founded on this basis: Brind v. UK. App. No. 18714/94; and cf. Purcell v. Ireland, App. No. 15404/89.

52 Dworkin, R., Taking Rights Seriously (London 1977)Google Scholar.

53 R v. Cambs. HA, ex p. B [1995] 1 W.L.R. 898.

54 R v. Secretary of State for the Home Dept., ex p. McQuillan [1995] 4 All E.R. 400.

55 It has been argued that Chahal v. UK (1997) 23 E.H.R.R. 413 already requires domestic courts to engage in an independent review of the evidence for themselves wherever Article 3 is raised in domestic proceedings: N.Blake, “Judicial Review of Discretion in Human Rights Cases” [1997] E.H.R.L.J. 391, 402; and cf. M. Hunt, op. cit., 317.

56 HL Debs., vol. 582, col. 1232 (3 November 1997), per Lord Irvine; HC Debs., vol. 314, cols. 406 ff. (17 June 1998) per Rt. Hon. Jack Straw.

57 cf. New Zealand Bill of Rights Act 1990, s. 3 referring to: “any person or body in performance of any public function, power, or duty conferred or imposed on that person or body by or pursuant to law”. See further R v. H [1994] 2 N.Z.L.R. 143.

58 Marshall shares our concern at the failure to define “public authority”: in Constitutional Reform in the UK, 79–80; Wade, however, treats the issue as unimportant, since he regards: the Act as equally binding on private persons: ibid., 62–64.

59 Legislative models already exist in the House of Commons (Disqualification) Act 1975, sched. 1 and the Parliamentary Commissioner Act 1967, sched. 2; the Cabinet Office also has a comprehensive listing of public bodies to which ministers make appointments.

60 The Home Secretary gave the following examples of “hybrid” public authorities: the Royal National Lifeboat Institute (charitable work private), Railtrack plc (commercial contracts private), Group 4 plc (private company, but acting as a public authority when running prison), the City TakeOver and Mergers Panel and the General Medical Council (professional regulatory functions public) and the British Board of Film Classification: HC Deb. vol. 314 cols. 407–413 (17 June 1998). The White Paper had referred only by way of example “to the extent that they are exercising public functions, companies responsible for areas of activity which ware previously within the public sector, such as the privatised utilities”. Right Brought Home, para. 2.2.

61 HC Deb. vol. 314 col. 409–410 (17 June 1998).

62 Contrast R v. Panel on Takeovers and Mergers, ex p. Datafin [1987] Q.B. 815 with R v. Disciplinary Committee of the Jockey Cub, ex p. Aga Khan [1993] 2 All E.R. 853.

63 He initially advised that the PCC would not be a public authority but later revised that opinion: The Times, Dec. 2, 1997. The Home Secretary expressed the considered view that the PCC would be public authority: HC Debs., vol. 314 col. 414 (17 June 1998). See also R v. Press Complaints Commission ex p. Stewart-Brady, The Times November 18, 1996. CA.

64 See e.g. Jack Straw: HC Deb. vol. 314 col. 406 (17 June 1998).

65 HC Deb. vol. 314 cols. 419 ff. (17 June 1998).

66 The expression “public authority” appears in Arts. 8(2) and 10(1) of the Convention, but the issue of which bodies a state should be liable for has been raised in other contexts; see, for example, Costello-Roberts v. UK (1993) 19 E.H.R.R. 112, under Art. 3. On admissibility decisions discussing compatibility with the Convention ratione personae see: Harris, O’Boyle and Warbrick, op. cit., 630–631.

67 s.7, discussed below.

68 A Cabinet Committee concluded that the BBC would fall within section 6: HC Deb. vol. 314 cols. col. 410 (17 June 1998). There is no certainty, however, that Strasbourg would regard the BBC as a public authority: this was left unresolved in Hilton v. UK, Appl. No. 12105/86, 57 DR 108. Equally, in BBC v. UK (1996) 21 E.H.R.R. CD 97, the Commission found that there was no need to determine whether the BBC was entitled to complain as a victim.

69 HL Deb. vol. 585 cols. 805 ff (5 February 1998); HC Deb. vol. 312 cols. 1014 (20 May 1998); for analysis: Leigh, I., “Towards a Christian Approach to Religious Liberty” in Beaumont, P., Christian Perspectives on Human Rights and Legal Philosophy (Carlisle 1998), 83–99Google Scholar.

70 See the Christian Institute briefing, “Hammering rights Home-How the Churches are Hit by the Human Rights Bill” (1998), 12.

71 ss. 7(1) and (6). See J. Marriott and D.Nicol, “The Human Rights Act, Representative Standing and the Victim Culture” [1998] E.H.R. L.R. 730.

72 See further D. Harris, M. O’Boyle and C. Warbrick, op. cit., pp. 630 ff.

73 For some particularly bold examples, see R v. HM Inspectorate of Pollution, ex p Greenpeace Ltd [1994] 4 All E.R. 329 and R v. Secretary of State for Foreign and Commonwealth Affairs, ex p World Development Movement Ltd [1995] 1 W.L.R. 386.

74 s. 7(4).

75 H.L.Debs., vol. 583 cols. 823 ff (24 November 1997); H.C.Debs., vol. 314 cols. 1058 ff (24 June 1998).

76 Northern Ireland Act 1998, ss. 68–71. Although the Commission has a power under s. 69(5)(b) to assist litigants, the victim requirement still applies under s. 71(1).

77 Also called “accommodation clauses”: see O’Donnell, “The Margin of Appreciation Doctrine: Standards in the Jurisprudence of the European Court of Human Rights” (1982) H.R.Q. 474, 477.

78 For a slightly different schematic structure of the Court's approach, see. Harris, O’Boyle and Warbrick, op. cit., p. 301. Our discussion here has benefited greatly from ch. 8 of this work.

79 This concept, much used in United States constitutional adjudication, notably under the First Amendment, involves parsimony of infringement: the court looks at whether some measure with a lesser adverse impact of the protected right could have been adopted. See, e.g. Tribe, L., American Constitutional Law (2d ed. 1988), ss. 12–2, 12–23Google Scholar. Without using the specific terminology, the ECtHR generally applies a test very similar to this in Art. 10 litigation, but not in relation to other rights.

80 For a recent example see R. v. CC of Warwickshire Constabulary, ex p. Fitzpatrick [1998] 1 All E.R. 65, (DC).

81 R. v. Sec. of State for the Home Department, ex p. Brind [1991] 1 A.C. 696.

82 Ibid., at p. 749 (Lord Bridge), at 754 and 759 (Lord Ackner), and at 763–764 (Lord Lowry).

83 Twomey, “Denying Terrorists the Oxygen of Publicity: Broadcasting Restrictions in the UK and the Republic of Ireland”, unpublished paper delivered to the WG Hart Workshop on Understanding Human Rights, July 1994.

84 As in Goodwin v. UK (1996) 23 E.H.R.R. 123, where an order to a journalist to divulge his source of leaked confidential information about the financial affairs of a private company was held to be disproportionate, though an injunction against publication of that information met the proportionality requirement.

85 Intervenors are sometimes permitted to participate as affected third parties, but normally at the appellate level rather than at first instance where issues of fact are determined. It is suggested that intervenors be allowed, even invited, at all stages of HRA cases where their contribution can enhance understanding of the issues.

86 G. de Burca, “Fundamental Rights and the Reach of EC Law” (1993) 13 O.J.L.S. 283, 314–316, comparing case 159/90 SPUC v. Grogan [1991] 3 C.M.L.R. 849, and Open Door Counselling Ltd. v. Ireland (1993) 15 E.H.R.R. 244.

87 Ibid. at p. 315.

88 This material was presented in an opinion by an Irish expert in public health; see (1993) E.H.R.R. at paras. 26, 76–77.

89 Ibid. at p. 316.

90 R. v. Sec. of State for Transport, ex p. Factortame Ltd. (Note) [1998] 1 All E.R. 736 (QBD). For valuable analysis from Professor Tridimas. See “Epilogue” in Beatson, J. and Tridimas, T. (eds.) New Directions in European Public Law (Oxford, Hart Publishers, 1998), 187–191Google Scholar. See further pp. 527–531 below on compensation for Convention rights violations.

91 Green, Nicholas, “Proportionality and the Supremacy of Parliament in the UK”, in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Oxford, Hart Publishers, 1999)Google Scholar.

92 Ibid., pp. 159–161. These points were critical because part of the plaintiffs’ case what that their registration would not have prejudiced any legitimate objectives of the Act.

93 Ibid., p. 160.

94 E.g. R. v. Arts Council of England, ex p. Women's Playhouse Trust, The Times, August 20, 1997, per Laws J.

95 Op. cit., p. 158.

96 Additionally, there will be some cases which raise a mixture of private law and Convention questions.

97 See also the suggestions offered by Wade, H.W.R. and Forsyth, C., Administrative Law (7th ed. 1994), pp. 684–686Google Scholar.

98 In Scotland the O’Reilly public/private procedural distinction has never existed.

99 Mercury Communications Ltd. v. DGT, [1996] 1 W.L.R. 48. See also Trustees of the Dennis Rye Pensions Fund v. Sheffield City Council [1998] 1 W.L.R. 840 (CA), where the Court emphasised practical consequences rather than technical distinctions in resolving disputed factual issues, leading it to conclude that the case was better dealt with by ordinary action.

100 There remain some potential procedural hurdles within the HRA itself, notably the section 7 requirement that proceedings alleging that a public authority has acted unlawfully should be brought “in the appropriate court or tribunal”; s.7 (2) promises rules of court to govern this and also counterclaims or similar proceedings against a public authority.

101 See also D. Feldman, “Remedies for Violations of Convention Rights Under the Human Rights Act” [1998] E.H.R.L.R. 691, 701–704.

102 HRA, s. 8 (2).

103 Ibid., s. 8 (3).

104 Ibid., s. 8 (4). The statute uses the revised numerology of the Convention, which came into force in November 1998, so Art. 41 corresponds to what was formerly Art. 50.

105 Art. 5 (5) requires that anyone who has been the victim of arrest or detention have an enforceable right to compensation. Art. 1 of the First Protocol in effect guarantees compensation for deprivation of possessions. These are the only such provisions in the text of the Convention itself.

106 Lawless v. Ireland, (admissibility decision) No. 332/57, 2 YB 308 (1958) See further Harris, O’Boyle and Warbrick, op. cit., 616–618.

107 Lester, “The Mouse That Roared: The Human Rights Bill 1995”, [1995] P.L. 198, 200–201.

108 The Home Secretary argued that the inclusion of Art. 13 would either duplicate other remedies under ss.3,4,7 and 8 of the HRA or might lead to damages being granted in circumstances beyond those envisaged: HC Deb. vol. 312 col. 979 (20 May 1998). However, the Lord Chancellor admitted that the courts can look at the Art. 13 jurisprudence for other purposes (for example under ss. 2 (1) or 8(4)): HL Deb. vol. 583 col. 477 (18 November 1997).

109 Simpson v. Attorney-General (Baigent's Case) [1994] 3 N.Z.L.R. 667.

110 The long title of the HRA states that it is “an Act to give further effect” to rights “guaranteed” under the Convention.

111 [1994] 3 N.Z.L.R. at 676–677.

112 H.L. Deb. vol 585 cols. 853–856 (24 November 1997).

113 [1993] A.C. 593.

114 See Handford, “Moral Damage in Germany” (1978) 27 I.C.L.Q. 849.

115 See van Dijk, P. and van Hooft, G., Theory and Practice of the ECHR (Kluwer, 2d ed. 1990), 179–182Google Scholar.

116 W, B, H, O and R v. UK (1987) 10 E.H.R.R. 29–95; O v. UK (Art. 50 Decision) Ser. A., 136, 9. “Feelings of frustration and helplessness” was identified as one head of compensatable damage.

117 Op. cit., n. 114, p. 179.

118 Though technically not bound by the Commission's findings, only once has the Court heard witnesses directly: see Harris, O’Boyle and Warbrick, op. cit., pp. 678–79.

119 Mowbray, “The European Court of Human Rights’Approach to Just Satisfaction” [1997] P.L. 647, 650.

120 AB v. South West Water Services [1993] Q.B. 507.

121 The ECtHR does not award aggravated or exemplary damages: Harris, O’Boyle and Warbrick, op. cit., p. 687.

122 Thompson v. Commissioner of Police for the Metropolis [1998] Q.B. 498.

123 Craig, P., Administrative Law (3rd ed., London 1994), 646–649Google Scholar.

124 This is quite separate from the question of exclusion of evidence as a remedy for Art. 8 violations; many incursions of privacy will not produce, and are not intended to produce, real evidence in criminal prosecutions. There is no other practical remedy except compensation once the injury has been inflicted.

125 R. v. Dep. Governor of Parkhurst Prison, ex p. Hague [1992] 1 A.C. 58.

126 Ibid. at p. 177, per Lord Jauncey of Tullichettle.

127 [1891] 2 Ch 269; and see Holley v. Smythe [1998] Q.B. 726 (CA).

128 Hubbard v. Pitt [1976] QB 142. The relevant part of Lord Denning's judgment is at 177–179.

129 Notably in A-G v. Guardian Newspapers, [1987] 1 W.L.R. 1248. There are however exceptions, such as Lion Laboratories Ltd. v. Evans [1985] QB 526, and R. v. Central Independent Television plc. [1994] Fam 192.

130 See Near v. Minnesota (1931) 283 US 697, and New York Times v. US, (1971) 403 US 713.

131 Pp. 512–513 above.

132 Guardian and Observer v. UK (1992) 14 E.H.R.R. 229, paras 66–71; Markt Intern v. Germany (1990) 12 E.H.R.R. 161, para. 27.

133 See Trade Union and Labour Relations (Consolidation) Act, ss. 219–225.

134 Notably Lord Goff in A-G v. Guardian Newspapers (No. 2) [1990] 1 A.C. 109, 283, approved by may Lord Keith in Derbyshire County Council v. Times Newspapers [1993] A.C. 534, 551.

135 See Lustgarten, L. and Leigh, I., In From the Cold: National Security and Parliamentary Democracy (Oxford 1994), 264–265Google Scholar.

136 American Cyanamid Co. v. Ethicon Ltd. [1975] A.C. 396.

137 cf. Auckland Area Health Board v. Television New Zealand [1992] 3 N.Z.L.R. 406, 407 per Cooke P., where s. 14 of the New Zealand Bill of Rights Act 1990 (protecting freedom of expression) was held to strengthen the common law's reluctance to grant an injunction to restrain an allegedly defamatory broadcast.

138 HC Deb. vol. 315 cols. 534 ff. (2 July 1998). Section 12 appears to be based on an earlier pattern for injunctions in labour disputes: Trade Union and Labour Relations (Consolidation) Act 1992, s. 221.

139 Criminal proceedings are excluded: s. 12 (5).

140 HC Deb. vol. 315 col. 536 (2 July 1998).

141 S. 12 (4). These might include the codes of practice of statutory bodies such as the Independent Television Commission and the Broadcasting Complaints Commission, the non-statutory code of the Press Complaints Commission and internal documents such as the BBC's programme code.

142 See further I. Leigh, “Horizontal Rights, the Human Rights Act and Privacy: Lessons from the Commonwealth?” (1999) 48 I.C.L.Q. 57.

143 E.g., Hokkinen v. Finland, (1995) 19 E.H.R.R. 139; A v. UK ECtHR, 23 Sept. 1998 (“reasonable chastisement” exception in law of assault: violation of Art. 3).

144 Kent v. Metropolitan Police Commissioner, The Times, 13 May 1981.

145 Khorasandjian v. Bush [1993] QB 727 partially over-ruled by Hunter v. Canary Wharf [1997] A.C. 655; Burris v. Adzani [1995] 1 W.L.R. 1372.

146 For example, in TV3 Network Ltd v. Evereday NZ Ltd [1993] N.Z.L.R. 435 the New Zealand Court of Appeal considered the possibility that recognition of human rights might justify issuing an injunction requiring a broadcaster to make a retraction or give a right of reply in a defamation action.

147 The term of art for the power of UK courts to refuse to apply Acts of Parliament contrary to European Community law; see R v. Sec. of State for Transport, ex p. Factortame (No. 2) [1991] 1 A.C. 603.

148 Marshall, “Interpreting interpretation in the Human Rights Bill” [1998] P.L. 167.

149 Hunt, M., Using Human Rights Law in the English Courts (Oxford 1997)Google Scholar, ch. 8.

150 The power to invalidate subordinate legislation comes impliedly from s.3 (which specifically saves only primary legislation) and from ss.6(1)–(3) which prevent public authorities (including courts) from acting in contravention of a person's Convention rights except where required by primary legislation. As well as Statutory Instruments, this would include Circulars, Guidance Notes, Rules of Court, Codes of Practice, byelaws, and many other forms of rulemaking. See the remarks of the Lord Chancellor, HL Deb. vol. 583 cols. 544–545 (18 November 1997).

151 Subordinate legislation which is incompatible with the Convention and cannot be made compatible because “the primary legislation concerned prevents the removal of the incompatibility” (see ss.4 (3) and (4)), and is treated as if it were primary legislation, in the manner described in the text: s.3 (2)(c).

152 Like all judicial declarations, this is a discretionary remedy, but since the DI is the only remedy the Act provides in these circumstances, refusal to issue it would be extraordinary.

153 HRA, s. 4(6).

154 This is less true if the litigant is an interest group concerned with wider and longer term issues, which amplifies the importance of the standing question discussed pp. 521–522 above.

155 We shall do so for these purposes. Wade has argued that, post-Factortame, Parliament could enact legislation empowering judges to hold future legislation invalid which conflicted with human rights guarantees: HWR Wade, “Sovereignty-Revolution or Evolution?” (1996) 112 L.Q.R. 568, 575. The desirability of so doing is a separate question. Andrew Butler argues in favour of incorporation by limitation of the implied repeal rule, so preserving the options of express repeal or amendment either prospectively (by a form of “notwithstanding” clause) or retrospectively: “The Bill of Rights Debate: Why the New Zealand Bill of Rights 1990 is a Bad Model for Britain” (1997) O.J.L.S. 324, 340 ff.

156 This power of remedial action, which must follow a carefully specified procedure, is laid down in s. 10 and Sch. 2. It is a Henry VIII clause, enabling a minister to amend a statute by subordinate legislation in order to remove conflict with the Convention.

157 Damages cannot be awarded either against a public authority in these circumstances, since, necessarily, the action in question will be lawful: ss.6(1) and (2) and 8(1).

158 Art. 13 requires what Harris, O’Boyle and Warbrick (op. cit., 454–455) call “remedial effectiveness”: the possibilities both that a court may decline to issue the DI under s. 4 of the HRA and that the government may choose to ignore it may tell against satisfying Art. 13.

159 Keith Ewing argues that Parliament will normally amend legislation following a DI and that the discretion not to do so is mainly symbolic: “The Human Rights Act and Parliamentary Democracy”, [1999] M.L.R. 79, 92–93.

160 A term first used by Lord Denning M.R. to describe the ECJ's approach to interpretation: see James Buchanan & Co. Ltd. v. Babco Forwarding and Shipping (U.K.) Ltd. [1977] Q.B. 208, 213.

161 HL Deb. vol 583 cols. 519–535 (18 November 1997).

162 [1980] A.C. 319, 329, per Lord Wilberforce. The instrument involved was the Constitution of Bermuda.

163 HL Deb. vol. 583 col. 535 (18 November 1997).

164 [1989] A.C. 66 and see Litster v. Forth Dry Dock and Engineering Co. Ltd. [1990] 1 A.C. 546.

165 [1989] A.C. 66, 125–128, per Lord Oliver of Aylmerton.

166 Marleasing SA v. La Comercial Internacional de Alimentacion SA [1990] ECR I-4135.

167 One example might be the Canadian practice of “reading down”—narrowing the scope of a statute to prevent a constitutionally incompatible application to a particular litigant e.g. Schachter [1992] S.C.R. 679.

168 HRA, s. 3(1), read together with ss. 6(1) and (3)(a).

169 HRA, s. 4 (5).

170 For example, in 1996, 39,794 appeals were heard by Immigration Adjudicators and the Immigration Appeal Tribunal, and 168,265 appeals were heard by Social Security Appeal Tribunals, with another 38,127 coming before Disability Appeal Tribunals. By contrast, in 1997 only 3,848 applications for judicial review were received by the courts, which allowed a total of 1,278. These figures may be found in the most recent reports of the Council on Tribunals (HC 376, 1997) and the Judicial Statistics Annual Report, Cm. 3980 (1998).

171 This statement is only true of Westminster statutes. See: Government of Wales Act 1998, s. 107 and sched. 8, Scotland Act 1998, s. 29(2)(d) and sched. 6; Northern Ireland Act 1998, s.. 6(2)(c) and sched. 10; R. Reed, “Devolution and the Judiciary” and Sir David Williams, “Devolution: the Welsh Perspective” in Constitutional Reform in the UK.

172 Thus, for example, an employment discrimination case with a HRA point will be heard in the first instance by an industrial tribunal, or a criminal prosecution for a summary offence by a magistrates court.

173 Cf Administration of Justice Act 1960, s. 1 (1)(a).

174 HL Deb. vol. 583 col. 1106 (27 November 1997). This merely reiterated a sentence in the White Paper, “Rights Brought Home: The Human Rights Bill” Cm. 3782, para. 2.9.

175 HRA s. 5(1) and (2).

176 Lord Irvine carefully refused to answer the question of who will bear the Crown's costs: HL Deb. vol. 582 cols. 555–562 (17 November 1997). As Lord Lester pointed out, the absence of a clear rule requiring the Crown to bear its own costs, may significantly deter the raising of arguable Convention points unless the plaintiff is supported by an interest group, or by some special fund to aid Convention litigants which the Lord Chancellor has on several occasions tantalisingly dangled before those pressing him on the general point of how such cases are to be supported: HL Deb. vol. 583 cols. 1091–93 (24 November 1997), repeated in the Debate on reform of legal aid: vol. 584, cols. 43–44 (9 December 1997).

177 Gearty, C. (ed.) European Civil Liberties and the European Convention on Human Rights: A Comparative Study (M. Nijhoff, 1997)Google Scholar.

178 Where, as with social security and employment litigation, the High Court is normally by-passed, the leapfrog would go to the Court of Appeal.

179 If the DI is subsequently held not to satisfy Art. 13 (see n. 158 above) then applicants may be able to complain to Strasbourg without having sought a DI, since the exhaustion of domestic remedies rule requires the domestic remedies to be adequate, sufficient and effective: Harris, O’Boyle and Warbrick, op. cit. pp. 618–619.

180 “The Impact on Judicial Reasoning” in Markesinis, B.S. (ed.), The Impact of the Human Rights Bill on English Law (Oxford 1998) p. 22Google Scholar.

181 Lord Steyn has suggested that in deciding between clashing Convention Rights: “A thousand dicta, and obiter dicta, on the concept of Wednesbury unreasonableness will not help. It may be more helpful to dip into Isaiah Berlin for an elegant exposition of the idea that we all doomed to choose but that every choice may entail an irreparable loss.” “Incorporation and Devolution: A Few Reflections on the Changing Scene” [1998] E.H.R.L.R. 153, 156.

182 Compare e.g. GATE v. Vancouver Sun [1979] 2 S.C.R. 435, Bliss v. AG Canada [1979] 1 S.C.R. 183, R. v. Wray, [1971] S.C.R. 272, and Harrison v. Carswell (1976) 62 D.L.R. (3d) 68, with Andrews v. Law Society of British Columbia [1989] 1 S.R.C. 143, R. v. Oakes [1986] 1 S.R.C. 103, Dagenais v. CBC [1994] 3 S.R.C. 835, Collins v. R., (1987) 38 D.L.R. (4th) 508, R. v. Duarte (1990) 65 D.L.R. (4th) 240, and R. v. Keegstra [1991] 2 W.W.R. 1.

183 Which appear in ss. 7, 15, and 1, respectively, of the Charter of Rights and Freedoms.

184 The Judicial Studies Board has allocated less than £5 million for training of every level of the judiciary.