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Safe in their hands? Britain’s Law Lords and human rights

Published online by Cambridge University Press:  02 January 2018

Brice Dickson
Brice Dickson*
Affiliation:
Queen’s University Belfast
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Abstract

This paper, which is the revised text of the first Stephen Livingstone Memorial Lecture delivered in February 2006, surveys the human rights jurisprudence of the House of Lords over the past 10 years. It considers not just how the Law Lords have responded to the Human Rights Act 1998 but also how they have developed the law on equality, asylum and immigration. In assessing whether human rights are ‘safe’ in the hands of the Law Lords, it looks, first, at how willing the Law Lords have been to engage with human rights arguments, concluding that they have relished such discourse. The piece then examines how rigorously the Lords have protected rights guaranteed by the European Convention for the Protection of Human Rights and Fundamental Freedoms 1950. The conclusion reached is that the Law Lords have been doing a good job on that front. What is preventing them from adopting an even more rights-based approach to their work in general is the UK’s stubborn adherence to the ‘dualist’ theory of international law. The author agrees with Lord Steyn that the time has come to reconsider that position.

Type
Research Article
Information
Legal Studies , Volume 26 , Issue 3 , September 2006 , pp. 329 - 346
Copyright
Copyright © Society of Legal Scholars 2006

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References

1. Eg of the 74 cases decided in 2005, retired judges sat in eight, Lord Phillips of Worth Matravers MR sat in five and Lord Woolf CJ sat in one.

2. Cf N Roberts ‘The Law Lords and human rights: the experience of the Privy Council in interpreting Bills of Rights’ [2000] EHRLR 147. The Privy Council’s jurisdiction in the Caribbean may gradually shift to the newly established Caribbean Court of Justice; see D O’Brien ‘The Caribbean Court of Justice and reading down the independence constitutions of the Commonwealth Caribbean: the Empire strikes back’ [2005] EHRLR 607.

3. C Harvey ‘Talking about human rights’ [2004] EHRLR 500.

4. See, eg, Griffith, JAG The Politics of the Judiciary (London: Fontana Press, 5th edn, 1997).Google Scholar

5. See his ‘The Human Rights Act and parliamentary democracy’ (1999) 62 MLR 79 and ‘The futility of the Human Rights Act’ [2004] PL 829. For reactions see A Lester ‘The utility of the Human Rights Act: a reply to Keith Ewing’ [2005] PL 249; F Klug and K Starmer ‘Standing back from the Human Rights Act: how effective it is five years on?’ [2005] PL 716.

6. For an account of his recent views, see Gearty, C Principles of Human Rights Adjudication (Oxford: Oxford University Press, 2004)Google Scholar and Can Human Rights Survive? The Hamlyn Lectures 2005 (Cambridge: Cambridge University Press, 2006).

7. According to para 7 of the Bangalore Principles, first agreed by eminent judges and practitioners in 1988, ‘It is within the proper nature of the judicial process and well-established judicial functions for national courts to have regard to international obligations which a country undertakes – whether or not they have been incorporated into national law – for the purpose of removing ambiguity or uncertainty from national constitutions, legislation or common law’.

8. See the Judicial Statistics for England and Wales, published annually and available at http://www.judiciary.gov.uk/keyfacts/statistics/index.htm.

9. There were 70 in 2001; 50 in 2002; 71 in 2003; 56 in 2004; 73 in 2005. A ‘case’, here, is a discrete set of judgments; one case may embrace a number of conjoined appeals.

10. Eg R v Ahmed [2005] 1 WLR 122 (CA), [2005] 1 WLR 802 (pet dis); R (Nilsen) v Governor of HMP Full Sutton [2005] 1 WLR 1028 (CA), [2005] 1 WLR 1659 (pet dis); R (X) v Chief Constable of West Midlands Police [2005] 1 WLR 65(CA), [2005] 1 WLR 2004 (pet dis).

11. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 3) [2000] 1 AC 147. See, generally, D Turns ‘Pinochet’s fallout: jurisdiction and immunity for criminal violations of international law’ (2000) 20 LS 566.

12. R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte [2000] 1 AC 61. This decision was vacated because Lord Hoffmann was considered to have had a conflict of interest: R v Bow Street Metropolitan Stipendiary Magistrate, ex p Pinochet Ugarte (No 2) [2000] 1 AC 119.

13. By the Criminal Justice Act 1988, s 134(1).

14. Al-Adsani v Kuwait (1996) 107 ILR 536.

15. Al-Adsani v UK (2002) 34 EHRR 273; the decision on Art 3 was by 17 to 0; on Art 6 it was by 9 votes to 8. See, generally, the report by the Human Rights Committee of the International Law Association (British Branch) ‘Civil actions in the English courts for serious human rights violations abroad‘ [2001] EHRLR 129 and K Parlett ‘Immunity in civil proceedings for torture: the emerging exception‘ [2006] EHRLR 49.

16. [2002] 2 AC 883.

17. A v Secretary of State for the Home Department (No 2) [2005] 3 WLR 1249.

18. Ibid, at para [80]; this position was endorsed by Lord Bingham of Cornhill at para [62].

19. Nagarajan v London Regional Transport [2000] 1 AC 501.

20. Shamoon v Chief Constable of the RUC [2003] 2 All ER 26.

21. Chief Constable of West Yorkshire v Khan [2001] 1 WLR 1947.

22. Anyanwu v South Bank Student Union [2001] 1 WLR 638.

23. Glasgow City Council v Zafar [1997] 1 WLR 1659.

24. A v Secretary of State for the Home Department [2005] 2 AC 68.

25. S Fredman ‘From deference to democracy: the role of equality under the Human Rights Act 1998’ (2006) 122 LQR 53.

26. R (Ullah) v Special Adjudicator [2004] 2 AC 323 and R (Razgar) v Secretary of State for the Home Department [2004] 2 AC 368.

27. R (Bagdanavicius) v Secretary of State for the Home Department [2005] 2 WLR 1359; Horvath v Secretary of State for the Home Department [2001] 1 AC 489 (on which see D Fraser ‘To belong or not to belong: the Roma, state violence and the new Europe in the House of Lords’ (2001) 21 LS 569); R v Secretary of State for the Home Department, ex p Adan [2000] 1 WLR 1033.

28. The Convention Relating to the Status of Refugees 1951 (the Refugee Convention) has been incorporated into UK law through the Immigration and Asylum (Procedure) Rules 2003, so the Law Lords have no choice but to apply it. However, they still have considerable freedom as to whether or not to interpret the provisions of that convention in a human rights friendly manner.

29. R (Sivakumar) v Secretary of State for the Home Department [2003] 1 WLR 840.

30. R v Immigration Appeal Tribunal, ex p Shah [1999] 2 AC 629.

31. A well-founded fear of persecution owing to ‘membership of a particular social group’ is one of the defining characteristics of a refugee according to Art 1A of the Refugee Convention (as amended by a Protocol in 1967).

32. [2005] 3 WLR 1014, analysed by A Mackenzie at [2006] EHRLR 67.

33. Under Art 3 of the European Convention as well as under s 55(5)(a) of the Nationality, Immigration and Asylum Act 2002.

34. Sepet v Secretary of State for the Home Department [2003] 1 WLR 856. See, generally, H Gilbert ‘The slow development of the right to conscientious objection to military service under the European Convention on Human Rights‘ [2001] EHRLR 554.

35. R (Saadi) v Secretary of State for the Home Department [2002] 1 WLR 3131.

36. Januzi v Secretary of State for the Home Department [2006] 2 WLR 397.

37. Secretary of State for the Home Department v Rehman [2003] 1 AC 153.

38. [2005] 2 AC 296. See S Palmer ‘AIDS, expulsion and Article 3 of the European Convention on Human Rights‘ [2005] EHRLR 533.

39. (1997) 24 EHRR 423.

40. R (European Roma Rights Centre) v Immigration Officer at Prague Airport [2005] 2 AC 1.

41. Another example of this phenomenon is R (Smith) v Parole Board [2005] 1 WLR 350, where the question was whether the Parole Board had breached the rights of two prisoners who, having been recalled to prison under s 39 of the Criminal Justice Act 1991 for breaching the conditions of their release on licence, were denied an oral hearing by the Parole Board when it was considering whether to revoke their licences. The Lords held that there was no breach of Arts 5(1), 5(4) or 6(1) of the European Convention but that there was a breach of the common law duty of procedural fairness.

42. See, generally, A Lester and D Pannick (eds) Human Rights Law and Practice (London: LexisNexis, 2nd edn, 2004) ch 9.

43. [2004] 1 WLR 807.

44. JH Rayner (Mincing Lane) Limited v Department of Trade and Industry[1990] 2 AC 418. See, generally, Evatt, E The impact of international human rights law’ in Huscroft, G and Rishworth, P (eds) Litigating Rights: Perspectives from Domestic and International Law (Oxford: Hart Publishing, 2002) pp 281–303.Google Scholar

45. In Minister for Immigration and Ethnic Affairs v Teoh (1995) 183 CLR 273 a majority in the High Court of Australia suggested that decision makers at the federal level in that country may need to take account of international treaties ratified by Australia but not yet implemented by legislation (such as the UN Convention on the Rights of the Child 1989). However, this stance has not been supported by subsequent Australian governments and has not led to the abandonment of the dualist approach to international law in that country; see Williams, G Human Rights under the Australian Constitution (Melbourne: Oxford University Press, 1999) pp 20–21.Google Scholar

46. R (Daly) v Secretary of State for the Home Department [2001] 2 AC 532.

47. R v Ministry of Defence, ex p Smith [1996] QB 517.

48. R (Alconbury Developments Ltd) v Secretary of State for the Environment, Transport and the Regions [2003] 2 AC 295. For comments on this case and Daly, see I Leigh ‘Taking rights proportionately: judicial review, the Human Rights Act and Strasbourg‘ [2002] PL 265, and also M Poustie ‘The rule of law or the rule of lawyers? Alconbury, Article 6(1) and the role of courts in administrative decision making’ [2001] EHRLR 657.

49. Runa Begum v Tower Hamlets LBC [2003] 2 AC 430.

50. Roger Masterman has actually accused the House of Lords of adhering too closely to Strasbourg judgments: ‘Section 2(1) of the Human Rights Act 1998: binding domestic courts to Strasbourg’ [2004] PL 725.

51. Cf A Kavanagh ‘The elusive divide between interpretation and legislation under the Human Rights Act 1998’ (2004) 24 OJLS 259, where she demonstrates that there is a broad spectrum of judicial approaches to interpretation in this context, ranging ‘from the highly cautious and deferential, to the highly innovative and activist’ (at 285). See also R Edwards ‘Reading down legislation under the Human Rights Act’ (2000) 20 LS 353, where the experience of other Commonwealth jurisdictions is compared.

52. [2002] 1 AC 45.

53. For commentaries see Rose, D and Weir, C ‘Interpretation and incompatibility: striking the balance’ in Jowell, J and Cooper, J (eds) Delivering Rights: How the Human Rights Act is Working and for Whom (Oxford: Hart Publishing, 2003) p 46 Google Scholar; D Nicol ‘Statutory interpretation and human rights after Anderson[2004] PL 273; A Kavanagh ‘Statutory interpretation and human rights after Anderson; a more contextual approach’[2004] PL 537 and ‘Unlocking the Human Rights Act: the “radical” approach to section 3(1) revisited’[2005] EHRLR 259.

54. [2004] UKHL 30, [2004] 2 AC 557. See Starmer, K The Human Rights Act: review of the year 2004–05 2006 EHRLR 1 Google Scholar at 1–2; A Young ‘Ghaidan v Godin-Mendoza: avoiding the deference trap’[2005] PL 23.

55. Rent Act 1977, Sch 1, para 2(2).

56. Fitzpatrick v Sterling Housing Association Ltd [2000] 1 AC 27.

57. [2003] 2 AC 467.

58. The Bill eventually became the Gender Recognition Act 2004.

59. Re S (Minors) (Care Order: Implementation of Care Plan) [2002] 2 AC 291; analysed by N Mole and T Brown at [2003] EHRLR 336.

60. In R (Anderson) v Secretary of State for the Home Department [2003] 1 AC 837 at [30].

61. Re S (Minors), above n 59, at para [42] (per Lord Nicholls of Birkenhead). Tom Hickman notes that, although the House refused to apply either s 3 or s 4 of the Human Rights Act 1998 in this case, within a year relevant amendments had been made to the Children Act 1989 by the Adoption and Children Act 2002, ss 118 and 121: ‘Constitutional dialogue, constitutional theories and the Human Rights Act 1998’ [2005] PL 306 at 334.

62. Statutory provisions on how child witnesses are to give their evidence in criminal cases and on the police power to issue a warning to young offenders were both found to be compatible with Art 6 of the European Convention: R (D) v Camberwell Green Youth Court [2005] 1 WLR 393 and R (R) v Durham Constabulary [2005] 1 WLR 1184. The ban on corporal punishment in independent schools was found not to be a breach of parents’ rights to freedom of belief under Art 9: R (Williamson) v Secretary of State for Education and Employment [2005] 2 AC 246, and the denial of annual pension increases to some Britons living abroad was found not to be a breach of Art 14: R (Carson) v Secretary of State for Work and Pensions [2006] 1 AC 173.

63. R (Anderson), above n 60.

64. Especially Stafford v UK (2002) 35 EHRR 1121 and Benjamin and Wilson v UK (2003) 36 EHRR 1.

65. A v Secretary of State for the Home Department [2005] 2 AC 68; A Tomkins ‘Readings of A v Secretary of State for the Home Department’ [2005] PL 259; D Feldman ‘Proportionality and discrimination in anti-terrorism legislation’ [2005] CLJ 271, where (at 273) he refers to this decision as ‘perhaps the most powerful judicial defence of liberty since Leach v Money (1765) 6 Burr 1692 and Somersett v Stewart (1772) 20 St T 1’.

66. [1942] AC 206.

67. Fredman, above n 25, at 79.

68. See n 48 above. An application to Strasbourg was subsequently declared inadmissible: Holding and Barnes plc v UK (Application No 2352/02) 12 March 2002.

69. Matthews v Ministry of Defence [2003] 1 AC 1163.

70. An immunity conferred by s 10 of the Crown Proceedings Act 1947.

71. Wilson v First County Trust Ltd [2004] 1 AC 816. On this case, and on Matthews, above n 69, see T Hickman ‘The “uncertain shadow”: throwing light on the right to a court under Article 6(1) ECHR’ [2004] PL 122.

72. R (Hooper) v Secretary of State for Work and Pensions [2005] 1 WLR 1681.

73. R (H) v Secretary of State for Health [2005] 3 WLR 867.

74. It is perhaps worth noting that the only declaration of incompatibility issued by a High Court judge which has not been challenged on appeal anywhere in the UK is that issued by Kerr J, as he then was, in the Northern Irish case of Re McR [2003] NI 1.

75. [2003] 1 AC 419.

76. Pye v UK (Application No 44302/02) 15 November 2005. The European Court of Human Rights held by four votes to three that the English rules on adverse possession, as laid down in the Limitation Act 1980 and the Land Registration Act 1925, were in breach of Art 1 of Protocol 1 to the European Convention (the right to peaceful enjoyment of one’s possesions).

77. Although there are plenty of instances where this occurred in pre-Human Rights Act days and one or two very recent European Court of Human Rights decisions do cast implicit doubt on post-Human Rights Act decisions by the House of Lords (see, eg, Connors v UK (2005) 40 EHRR 189, which on one reading is difficult to reconcile with Harrow London Borough Council v Qazi [2004] 1 AC 983).

78. For an early judicial view, see Lord Woolf ‘Judicial review – the tensions between the executive and the judiciary’ (1998) 114 LQR 579. See too C Gearty ‘Reconciling parliamentary democracy and human rights’ (2002) 118 LQR 248 and R Clayton ‘Judicial deference and “democratic dialogue”: the legitimacy of judicial intervention under the Human Rights Act 1998’ [2004] PL 33.

79. Lester, A and Pannick, D (eds) Human Rights Law and Practice (London: Butterworths, 1st edn, 1999) at p 75.Google Scholar

80. Jowell, J Judicial deference: servility, civility or institutional capacity? 2003 PL 592 Google Scholar and ‘Judicial deference and human rights: a question of competence’ in P Craig and R Rawlings (eds) Law and Administration in Europe (Oxford: Oxford University Press, 2003).

81. Lord Hoffmann ‘Human rights and the House of Lords’ (1999) 62 MLR 159; ‘Bentham and human rights’ (2001) 54 CLP 61; ‘Separation of powers’ [2002] JR 137 and his judgment in R (ProLife Alliance) v BBC [2004] 1 AC 185 at [75]–[76].

82. Hunt, M ‘Sovereignty’s blight: why contemporary public law needs the concept of “due deference”’ in Bamforth, N and Leyland, P (eds) Public Law in a Multi-Layered Constitution (Oxford: Hart Publishing, 2003).Google Scholar

83. See his Judging the Judges, Judging Ourselves: Truth, Reconciliation and the Apartheid Legal Order (Oxford: Hart Publishing, 2003) and The Unity of Public Law (Oxford: Hart Publishing, 2004).

84. Lester and Pannick, above n 42, p 95.

85. Lord Steyn, ‘Dynamic interpretation amidst an orgy of statutes’ [2004] EHRLR 245 at 256: ‘So far as the courts desist from making decisions in a particular case it should not be on grounds of non-justiciability, separation of powers, or constitutional principle. The true justification for courts exceptionally declining to decide an issue is the relative institutional competence or capacity of the branches of government’. See too Lord Steyn ‘Deference: a tangled story’ [2005] PL 346.

86. Cf D Nicol ‘Are Convention rights a no-go zone for Parliament?’ [2002] PL 438.

87. [2005] 2 AC 68 at [88]–[97].

88. ‘An unfortunate outburst of Anglo-Saxon parochialism’ (2005) 68 MLR 673.

89. See, eg, Rowe and Davis v UK (2000) 30 EHRR 1 and Edwards and Lewis v UK (2005) 40 EHRR 593.

90. R v Director of Public Prosecutions, ex p Kebeline [2000] 2 AC 326.

91. This section criminalised the possession of any article in circumstances giving rise to a reasonable suspicion that this was for a purpose connected with the commission, preparation or instigation of acts of terrorism. By s 16A(3) it was a defence for a person charged with this offence to prove that at the time of the alleged offence the article in question was not in his or her possession for that purpose.

92. R v Lambert [2002] 2 AC 545.

93. Lords Steyn, Lloyd of Berwick and Hope of Craighead.

94. R v Kansal (No 2) [2002] 2 AC 69. When this case reached the European Court of Human Rights it held that Art 6 of the European Convention had been breached: Kansal v UK (2004) 39 EHRR 645.

95. Re McKerr [2004] 1 WLR 807.

96. [2003] NI 117.

97. R (Middleton) v West Somerset Coroner and R (Sacker) v West Yorkshire Coroner [2004] 2 AC 182. The principal earlier decision is R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653.

98. In Jordan v Lord Chancellor and McCaughey v Chief Constable of the PSNI, both presented on 17 November 2005.

99. Aston Cantlow and Wilmcote with Billesley Parochial Church Council v Wallbank [2004] 1 AC 546. See H Davis ‘Public authorities as “victims” under the Human Rights Act’ [2005] CLJ 315; H Quane ‘The Strasbourg jurisprudence and the meaning of a “public authority” under the Human Rights Act’ [2006] PL 106.

100. Also, to what extent is it different from the kind of entity which can be made the object of judicial review proceedings, and does the term embrace all those bodies which, according to Art 34, cannot themselves claim rights under the European Convention?

101. Joint Committee on Human Rights Seventh Report, 2003–04, especially para 74: ‘The disparities in human rights protection that arise from the current case-law on the meaning of public authority are unjust and without basis in human rights principles. Unless other avenues of redress can be found, this situation is likely to deprive individuals of redress for breaches of their substantive European Convention rights incorporated under the Human Rights Act 1998. The situation created by the current state of the law is unsatisfactory, unfair and inconsistent with the intention of Parliament’. See M Sunkin ‘Pushing forward the frontiers of human rights protection: the meaning of public authority under the Human Rights Act’ [2004] PL 643.

102. See, eg, R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673. See R Clayton ‘Damage limitation: the courts and the Human Rights Act’ [2005] PL 429, where he says (at 439) that ‘marginalising the role of Human Rights Act damages is unlikely to secure compliance with the Act or to promote a culture of rights’.

103. For a first instance view (by Stanley Burnton J) see R (KB) v South London and South and West Region Mental Health Review Tribunal [2004] QB 936.

104. See, eg, Bingham, T The Business of Judging: Selected Essays and Speeches (Oxford: Oxford University Press, 2000) Part IV.CrossRefGoogle Scholar

105. See the explanation he provides in Lord Steyn ‘2000–2005: Laying the foundations of human rights law in the United Kingdom’[2005] EHRLR 349 at 350, n 4. The challenge to his participation in the Belmarsh case was based on a sentence in his lecture ‘Human rights: the legacy of Mrs Roosevelt’[2002] PL 483 at 484, where he said: ‘In my view the suspension of Article 5 [of the European Convention]– which prevents arbitrary detention – so that people can be locked up without trial when there is no evidence on which they could be prosecuted is not in present circumstances justified’. It has also been speculated that the challenge was motivated by Lord Steyn’s lecture entitled ‘Guantanamo Bay: the legal black hole’, published in Steyn, J (ed) Democracy Through Law: Selected Speeches and Judgments (Aldershot: Ashgate Publishing, 2004) p 195.Google Scholar

106. R (Jackson) v Attorney General [2006] 1 AC 262.

107. See his ‘Human rights and the House of Lords’, above n 81, where he said (at 161): ‘On the whole, therefore, I would applaud the Human Rights Act and I think that there are areas of the law in which it will make a difference. But I do think that its potential impact has been greatly exaggerated’. He also intimated that the European Court of Human Rights was getting too big for its boots: ‘But the jurisprudence of the Strasbourg court does create a dilemma because it seems to me to have passed far beyond its original modest ambitions and is seeking to impose a Voltairean uniformity of values upon all member States. This I hope we shall resist’ (at 166). Cf Lord Hoffmann’s words in R (Alconbury Developments Ltd), above n 48, at para [129]: ‘The Human Rights Act was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers’.

108. See especially Attorney General’s Reference (No 2 of 2001) [2004] 2 AC 72, the first case since 1910 in which a bench of nine Law Lords was convened. The two Scottish Law Lords, Lords Hope of Craighead and Rodger of Earlsferry, dissented.

109. [2005] 1 AC 562. Despite Lord Bingham of Cornhill describing any such conclusion as ‘impossible’, and Lord Steyn saying the majority view was ‘inescapable’, Baroness Hale of Richmond upheld the appellant’s conviction for indecently assaulting a 13- or 14-year-old girl.

110. [2005] 3 WLR 252. Contrary to her four brethren, Baroness Hale of Richmond held that the Child Support Act 1991, in removing the right of a parent who has the care of a child to enforce the child’s right to maintenance from an absent parent, was breaching the European Convention, Art 6.

111. As in R v Kansal, above n 94. See too R v Bournewood Community and Mental Health NHS Trust, ex p L [1999] 1 AC 458, which was also ‘overturned’ by the European Court of Human Rights in HL v UK (2005) 40 EHRR 32. As Antje Pedain said of the Strasbourg ruling: ‘This decision necessitates a complete restructuring of the laws and practices which govern the detention of non-sectioned mental patients in the United Kingdom, and probably in other European countries too’. See now the Mental Capacity Act 2005.

112. [2003] 1 WLR 1763.

113. Lords Bingham of Cornhill and Steyn jointly dissented.

114. R v Begley [1997] 1 WLR 1475.

115. [2005] 2 AC 373.

116. Again, Lord Bingham of Cornhill dissented, on the basis that in his view Art 6 of the European Convention did require a duty of care to be imposed. But the House did unanimously agree that, as regards the duty of care owed to children, the House’s earlier decision in X (Minors) v Bedfordshire County Council [1995] 2 AC 633 could not survive the Human Rights Act 1998; see I Steele, ‘Public law liability – a common law solution?’ [2005] CLJ 543. Another important decision on Art 6 is R v Mushtaq [2005] 1 WLR 1513, where the Law Lords held that a judge is required to direct a jury, even after a voir dire has occurred, that if they conclude that an alleged confession may have been obtained by oppression they must disregard it (not just give it less weight). At the same time, the Law Lords have accepted that Art 6 is not absolute. This was made clear by the Privy Council in Brown v Stott [2003] 1 AC 681, where the obligation on the keeper of a car to say who was driving it at a particular time was held not to be a breach of the right not to incriminate oneself. I also think the House struck the right approach in two further controversial cases. One was R v Lyons [2003] 1 AC 976, where some of the defendants in the Guinness trial of a few years earlier argued unsuccessfully that because the European Court of Human Rights had found their trial to be unfair their convictions must therefore be automatically treated as unsafe for the purposes of domestic law. In the Attorney-General’s Reference, above n 108, where a bench of nine Law Lords was convened, largely because a difference of opinion had emerged between the Privy Council in a Scottish devolution case and the Court of Appeal in English criminal cases, it was held, by seven to two (the two Scottish judges defiant to the last), that an unreasonable delay in the conduct of criminal proceedings does not necessarily mean that the proceedings should be stayed. The majority of the Law Lords suggested that some other less drastic remedies could be made available, including perhaps a mere ‘apology’ for the delay. I think that is an eminently sensible approach to a difficult legal conundrum. If we are to avoid relatively minor breaches of human rights becoming excuses for the acquittal of defendants for serious crimes, in respect of which there is other ample evidence to prove their guilt, these sorts of ‘compromises’ are inevitable. On the difficulty English law has in general with accommodating the requirements of Art 6 of the European Convention, see P Craig ‘The Human Rights Act, Article 6 and procedural rights’ [2003] PL 753.

117. R (Pretty) v Director of Public Prosecutions [2002] 1 AC 800. But the European Court of Human Rights came to the same conclusion: Pretty v UK (2002) 35 EHPR 1.

118. Campbell v MGN Ltd [2004] 2 AC 457.

119. R (ProLife Alliance), above n 81; analysed by A Macdonald at [2003] EHRLR 651.

120. See n 118 above.

121. R v Secretary of State for the Home Department, ex p Simms [2000] 2 AC 115. See S Foster ‘Do prisoners have the right to free speech?’ [2000] EHRLR 393; M Elliott ‘Human rights in the House of Lords: what standard of review?’ [2000] CLJ 3.

122. Cream Holdings Ltd v Banerjee [2005] 1 AC 253.

123. Re S (A Child) (Identification: Restriction on Publication) [2005] 1 AC 593. For comments on the Court of Appeal’s decision (which was affirmed by the Lords), see H Fenwick ‘Clashing Rights, the welfare of the child and the Human Rights Act’ (2004) 67 MLR 889.