One feature of the current debate concerning the term “public authority” in the Human Rights Act 1998 is a rule to the effect that public authorities are not themselves capable of having and enforcing Convention rights. In what follows this will be referred to as the “rights-restriction rule”. The position was confirmed by the House of Lords in Aston Cantlow and has been given effect by the courts in relation to English local authorities and to NHS Trusts in Scotland. Despite this, doubts have been expressed. In particular the parliamentary Joint Committee has suggested, though without argument, that the denial of Convention rights to public authorities may be wrong in principle and that there are “circumstances in which public authorities have Convention rights”.

An inaugural lecture is the occasion when the University of Cambridge can look its gift horse in the mouth, weighing the new professor in the balance against his or her distinguished predecessors. The Rouse Ball Professorship of English Law has been held in the past by a long series of distinguished scholars, from Sir Percy Winfield to my immediate predecessor, Sir Jack Beatson whom we are delighted to welcome back today. Their work has influenced generations of lawyers. They certainly influenced me. Before I encountered Criminal Law: The General Part, a great little volume by Professor Glanville Williams, Learning the Law, was my “Guide, Philosopher and Friend” (as it still says on the cover of the latest edition, now edited by my colleague Professor Tony Smith) as I approached the study of law. Another Rouse Ball Professor, the late Sir William Wade, had a formative effect on my understanding of land law and administrative law both through his famous books, Megarry and Wade on the Law of Real Property (now edited by a former Fellow of Downing College, Dr. Charles Harpum) and Administrative Law (now in the hands of my colleague Dr. Christopher Forsyth), not to mention the lectures that I attended as an undergraduate in (softly be it said) the University of Oxford.

The British monarch has legal duties to perform, as well as ceremonial and representative functions to discharge. For example, the monarch’s assent is legally required before a Bill or an Order in Council can pass into law; some appointments only take effect when they are formally approved by the monarch, which is sometimes signified by the Queen’s personal signature, the royal sign manual, or at others by personal delivery by the monarch of seals of office. Some types of document require as a matter of law the affixing of the Great Seal, which can usually be done only by virtue of a warrant under the royal sign manual: examples include royal proclamations (say to dissolve Parliament), or Letters Patent (say to confer a peerage or to ratify a treaty). Because the monarch is part of the legal machinery of government it is essential that the monarch is always available to function as such; but because a monarch is only human there will be times when, because of absence or illness, this is impossible.

“Not only would it be a bold and brave judge … who would seek to interfere with the discretion of doctors acting under the Abortion Act 1967, but I think he would really be a foolish judge who would try to do any such thing, unless, possibly, where there is clear bad faith and an obvious attempt to perpetrate a criminal offence.” So said Sir George Baker P. in Paton v. B.P.A.S. and his view has been repeated at apposite judicial moments in subsequent cases. Recently, however, a legal attempt was indeed made to question the discretion of doctors in Jepson v. The Chief Constable of West Mercia Police Constabulary. Reverend Joanna Jepson asked the West Mercia Police to investigate doctors who had authorised an abortion for bilateral cleft lip and palate at 28 weeks under the disability ground of the Abortion Act 1967 (as amended by the Human Fertilisation and Embryology Act 1990). Abortion is legal under that section if two doctors have formed an opinion in good faith that “there is a substantial risk that if the child were born it would suffer from such physical or mental abnormalities as to be seriously handicapped”.