Castan Centre for Human Rights Law

The Human Rights Act 1998

(Footnote 1)

The Human Rights Act 1998 provides that Convention rights may now be enforced in the domestic courts.2 Described as 'a constitutional instrument introducing into domestic law the relevant articles of the Convention',3 the Act is a culmination of a long campaign for the incorporation of the Convention in which senior judges played a leading part.4 Although the United Kingdom was the first country to sign and ratify the ECHR,5 and the first country to allow the right of individual petition to the European Court of Human Rights,6 the ECHR nevertheless could not be enforced in the British courts.7 This gave rise to concern about the fact that people had to take the long road to Strasbourg to enforce their rights, a concern which was fuelled by the delays in the Strasbourg system. There were also concerns that human rights were not adequately protected in British law, concerns which were vindicated for some by Britain's poor record before the Strasbourg court (on which see above). Successive governments were nevertheless opposed to incorporation, though it was supported by the Liberal Democrats.8 It was not until 1996 that the cause was adopted by the Labour Party which - while in Opposition - issued a consultation paper proposing incorporation to 'enable British people to enforce their rights in UK courts and enable our own judges to apply the ECHR in their jurisdictions'.9

The cause of those who campaigned vigorously for incorporation of the ECHR into domestic law was strengthened by the fact that several other countries in the common law tradition had adopted measures for the better protection of human rights. Two particularly influential but very different measures are the Canadian Charter of Rights and Freedoms 1982,10 and the New Zealand Bill of Rights 1990. The former empowers the courts to strike down legislation which conflicts with the Charter and generally to ensure that the administartive activities of public authorities comply with Charter rights and freedoms. Controversially, however, it does not apply to the common law and is not enforceable between private parties.11 The latter in contrast is an altogether weaker measure, imposing a duty on the courts only to interpret legislation consistently with its terms. The New Zealand courts have no power to strike down an Act of Parliament, though the Bill of Rights nevertheless has been particularly influential in the developing field of police powers.12 Apart from Canada and New Zealand, other jurisdictions which have recently moved to embrace the constitutional protection of human rights include Hong Kong and South Africa.13

The Convention Rights
For the purposes of the Human Rights Act, Convention rights are defined to mean articles 2-12 and 14 of the ECHR, articles 1-3 of the First Protocol, and articles 1 and 2 of the Sixth Protocol. These are to be read with articles 16 and 17 of the Convention: the former permits the imposition of restrictions on the political activities of aliens; while the latter deals with the abuse of rights by providing that no State, group or person has any right to engage in any activity or perform any act aimed at the destruction of any of the Convention rights (s 1(1)). The main exclusions are thus articles 1 and 13. Article 1 imposes a duty on the 'High Contracting Parties' to 'secure to everyone within their jurisdiction' the rights and freedoms set out in the Convention, an obligation which the government considers to have been met by the enactment of the Human Rights Act. The exclusion of article 13 in contrast is more controversial, this providing that everyone whose Convention rights and freedoms are violated 'shall have an effective remedy before a national court'. Not everyone is prepared to accept that the contents of the Act fully satisfy this requirement, as the government also claimed.14

Section 1 also provides that the Convention rights are to have effect for the purposes of the Act subject to any derogation or reservation. At the time the Human Rights Act was passed, a derogation had been made to protect the detention provisions of the terrorism legislation which had been found to breach the right to liberty as protected by article 5(3).15 There was also a qualification in place relating to article 2 of the First Protocol (dealing with education). Additional derogations or reservations may be made by ministerial order, subject to renewal every five years.16 It is this power which was used in November 2001 to derogate in order to protect the Anti - Terrorism, Crime and Security Bill 2001 which provides for the detention without trial of persons suspected by the Home Secretary of being international terrorists whose presence in the United Kingdom is a risk to national security, again in possible breach of article 5 of the Convention.17 There is no reason in principle why a derogation order should not be subject to judicial review as going beyond the grounds for which derogation is permitted by article 15 of the Convention; but it seems unlikely that the courts will wish to second guess ministers on what national security requires.18 Nevertheless the Joint Committee on Human Rights (on which see below) was not convinced that the derogation of November 2001 could be justified.19

The Human Rights Act and Parliamentary Sovereignty
The structure of the Human Rights Act reflects the government's desire that 'courts should not have the power to set aside primary legislation, past or future, on the ground of incompatibility with the Convention'. This reflects the importance 'which the Government attaches to parliamentary sovereignty'.20 In practice this is not a major qualification, given that many of the cases which have gone to Strasbourg in the past have not been concerned with legislative action, so much as with executive or administrative action, and in some cases judicial action (relating to the operation of the common law). But it does not follow from this that the courts have no powers in relation to legislation. In the first place they are required to interpret legislation (primary and secondary) where possible in a manner consistently with the Convention (s 3(1)).21 This is in effect 'a new rule of construction',22 which applies if the court has decided that there would otherwise be a breach of Convention rights.23 The duty operates where the construction in favour of Convention rights may not be the most obvious or the most reasonable construction:

the interpretive obligation under s 3 of the 1998 Act is a strong one. It applies even if there is no ambiguity in the language in the sense of the language being capable of two different meanings. It is an emphatic adjuration by the legislature. . . . The White Paper made clear that the obligation goes far beyond the rule which enabled the courts to take the Convention into account in resolving any ambiguity in a legislative provision'.24

Section 3 has been said by some to be a 'radical tool';25 but by others to contain a power which is a significant limitation of Parliament's sovereign will.26 This latter is a conclusion reinforced by Lord Steyn's observation that '[i]n accordance with the will of Parliament as reflected in s 3 it will sometimes be necessary to adopt an interpretation which linguistically may appear strained'.27 Where it is not possible to construe legislation in a manner which is consistent with Convention rights, the High Court and superior courts (but not tribunals or inferior courts) may, after giving the Crown an opportunity to take part in the proceedings (s 5),28 may make a declaration of incompatibility (s 4(2)). But this is a 'measure of last resort' which 'must be avoided unless it is plainly impossible to do so, as in the case where 'a clear limitation on convention rights is stated in terms' or where a contradiction arises by 'necessary implication'.29 Such a declaration is stated not to be binding on the parties, and does not affect the validity or operation of primary legislation (s 4(6)).

The first statutory provision to be found incompatible with Convention rights is the Mental Health Act 1983, s 73: in R(H) v Mental Health Review Tribunal, North and East London Region,30 found to breach article 5. The Act placed the burden of proof on the patient - who in this case had been convicted of manslaughter and was being detained at Broadmoor - to show that he was no longer suffering from a disorder to warrant his continued detention.

If a declaration of incompatibility is made, it is for the government and Parliament to decide how to proceed - whether to amend the legislation or not. Such a device goes as far as possible without undermining Parliament's sovereignty, and in introducing the Human Rights Bill, the Home Secretary indicated that there were circumstances where it would be unwilling to bring forward amending legislation, citing the area of abortion as an example.31 Nevertheless an Act of Parliament which carries a declaration of incompatibility is likely to be badly wounded, and some confusion may arise as a result. The first of two consequences which flow from a declaration is that it may be very difficult for any public authority to apply the provision that has been declared incompatible with Convention rights, since both the individual who obtained the declaration of incompatibility and the others affected by the incompatible provision will be encouraged by the declaration to apply to Strasbourg for a ruling on the matter. But on the other hand a public authority may be bound to apply the law until it is repealed, and may be challenged for not doing so. This dilemma of whether to apply legislation or not after a declaration of incompatibility seems destined for the courts at the highest level.

The second consequence of a declaration of incompatibility is that it may give rise to a new 'fast track' form of remedial action by means of delegated legislation. If a declaration of incompatibility is made the government will normally be expected to respond by introducing primary legislation to remove the incompatibility. But where the minister considers that there are 'compelling reasons' for doing so, the Act empowers the government to make a 'remedial order' for amending primary legislation so as to remove the incompatibility (s 10 and Sch 2). A remedial order may also be made after a decision by the Strasbourg court in proceedings against the United Kingdom has indicated that primary legislation in incompatible with the Convention (s 10(1)(b)), though again only if there are compelling reasons for doing so.32 The stated purpose of this procedure (which has been criticised as being a new Henry VIII clause) is to enable incompatibility with a Convention right to be removed from the statute book more quickly than if an amending Act of Parliament were needed.

The Human Rights Act and Public Authorities
Sections 6 and 7 of the Human Rights Act are particularly important for the enforcement of Convention rights in the courts. The Act makes it unlawful for public authorities (including courts and tribunals) to act in a way which is incompatible with Convention rights, unless primary legislation permits no other cause of action (s 6). This also applies to acts of persons other than public authorities, where those acts are done in exercise of 'functions of a public nature' but not if the 'nature of the act' is private (s 6(3)(b), (5)). It is seen by some as a major problem and by others as a great strength that there is no definition or list of public authorities for this purpose. Although some bodies define themselves obviously as public authorities (the police, the security service, government departments, local authorities, the Crown Prosecution Service, the Electoral Commission and the immigration authorities), there is uncertainty about others (the BBC, the Press Complaints Commission, the Advertising Standards Authority, the Jockey Club and the privatised utilities). Cases decided in European law (on the meaning of the State for the purposes of the direct effect of Directives) and administrative law (on the scope of judicial review) may give some guidance.33 But although the definition of public authority and public function should be given a 'generous interpretation',34 it is clear that the courts 'will need to weigh up a number of factors' to determine whether a body is a public authority for the purposes of the Human Rights Act35

By virtue of section 7 an actual or potential victim of an unlawful act may bring proceedings in respect of the unlawful act or may rely on Convention rights as a defence in legal proceedings (for example as a defence to a prosecution). In particular the actual or potential victim may apply for judicial review of the public authority's decision (s 7(3), (4)). By restricting applications to victims or potential victims, the Act effectively bars public interest groups and others who have standing (a 'sufficient interest') in judicial review proceedings from bringing claims that public authorities are violating Convention rights. A court or tribunal may provide 'such relief or remedy or make such order within its jurisdiction as it considers just and appropriate' (s 8(1)). However, damages for breach of Convention rights are available only in a civil court which otherwise has the power to award damages; and in assessing damages, the civil court must take account of Strasbourg decisions awarding 'just satisfaction ' under the Convention (s 8(2),(3)).36 The Act preserves the immunity of holders of judicial office from any liability in respect of judicial acts done in good faith, except to the extent that individuals who have been unlawfully detained have a Convention right under Article 5(5) to be compensated (s 9(3),(4)).

Uncertainty is calculated to be fuelled by the fact that courts and tribunals are expressly stated to be public authorities. This means that courts and tribunals must conduct their affairs in a way which is consistent with Convention rights (such as the right to a fair trial (art 6) and the right to freedom of expression (art 10). But it means much more, for it applies also to the remedies which a court may order. So it would not be possible for a court to issue an injunction if to do would violate the Convention rights of the defendant; or to fail to issue an injunction if to do so would violate the Convention rights of the applicant. In this way the Act may have implications for the common law and indeed for litigation between private parties. So although Convention rights are directly enforceable against only public authorities, it is impossible to rule out the likelihood that they could be enforced indirectly by one private party against another.37 This question - the so-called horizontal status of the Convention - has given risen to a great deal of analysis in the literature.38 The better view appears to be that (i) Convention rights may not be directly enforced by one private party against another; but that (ii) Convention rights may be relied upon in an established cause of action to extend the rights of either party. An example would be where the applicant brings an action against the defendant for breach of confidence and relies in the course of these proceedings on the article 8 right to privacy in order to extend the boundaries of the protection which the common law otherwise provides.39

Concerns that the Act might be used to extend existing or develop new causes of action in litigation between private parties gave rise to special measures relating to freedom of expression. There was concern in particular from the newspaper industry and its self-regulators about the possible implications of the right to privacy in article 8. These and other concerns led to s 12 which applies where a court is considering whether to grant any relief which might affect the exercise of the Convention right to freedom of expression. In these cirucmstances s 12 limits the circumstances in which a court may make interim injunctions, though in view of the inclusion of the courts as public authorities it may be questioned whether these special measures are strictly necessary. Unless there are compelling circumstances no interim injunction is to be granted without the respondent having been notified (s 12(2)); moreover no interim relief is to be granted unless the court is satisfied that the applicant is likely to succeed at the full trial (s 12(3)).40 Section 12(4) addresses in particular the threat to freedom of expression created by the right to privacy and is a remarkable testament to concerns about the latter. Thus a court is to have particular regard to the importance of the Convention right to freedom of expression and in proceedings relating to journalistic material to 'any relevant privacy code'. The idea here is that no injunction should be granted to restrain a publication on the ground that it violates the privacy of the applicant if the respondent can show that it complies with the Codes or Practice of the Press Complaints Commission or the Broadcasting Standards Commission respectively. Section 13 contains special protection for religious bodies from the application of Convention rights which might undermine their doctrine and practices.41

The Human Rights Act in Practice
The Human Rights Act came fully into force on 2 October 2000, though it was in force in Scotland and Wales before then in relation to devolution issues. The experience in Scotland in particular is that the Act is most likely to be felt in the field of criminal justice. A full spate of cases have raised questions about the extent to which Scottish criminal procedure complied in particular with the right to a fair trial as guaranteed by article 6 of the ECHR.42

In Starrs v Ruxton43 the accused raised as a devolution issue the question of whether their rights under article 6 were infringed by being tried by a temporary dheriff. They contended that a temporary sheriff was not independent and impartial on two grounds: under the Sheriff Courts (Scotland) Act 1971 temporary sheriffs could be recalled by the Secretary of State before the end of their appointments; and appointments were made for renewable periods of one year only. In accepting the contentions for the accused, the Lord Justice Clerk (Cullen) said that 'there is a real risk that a well - informed observer might think that a temporary sheriff might be influenced by his hopes and fears as to his prospective advancement'.44

Other cases (also under article 6) have challenged: (i) delay in the prosecution of offences; (ii) police questioning of a suspect in the absence of a solicitor; (iii) statutory violations of the right against self - incrimination; (iv) lack of sufficient information in the charge; and (v) the admission of evidence said to be prejudicial, and the implications of extensive pre-trial publicity. In most (though not all) of these cases the points relating to Convention rights did not succeed.45

The Human Rights Act has already generated a huge literature, as practitioners and others assess its impact. Much of the literature has been concerned with the implications of the Act for specific subjects, such as administrative law,46 criminal law,47 commercial law,48 company law,49 insolvency law, land law,50 family law,51 employment law,52 social security law, planning law,53 tort law54 and so on. But it is clear that many of the early predictions about the likely impact of the Human Rights Act have been greatly exaggerated, though it will take some time for its true impact to be fully clarified. Much will depend on how interventionist or restrained the courts choose to be. It is true that the first declaration of incompatibility was made within six months of the Act coming into force, but it is also the case that in Brown v Stott55 Lord Bingham has indicated that the courts will defer to 'the decisions of a representative legislature and a democratic government within the discretionary area of judgment accorded to those bodies'.56 He has also emphasised that the Convention is concerned with 'rights and freedoms which are of real importance in a modern democracy governed by the rule of law. It does not, as is sometimes mistakenly thought, offer relief from 'The heart-ache and the thousand natural shocks That flesh is heir to'.57

These observations of the senior law lord are a revealing insight into how the courts may see the role and function of the Convention: principally as an instrument in promoting rather than frustrating the principles and practices of representative government.58 In the same case, Lord Steyn referred to the ECHR as representing 'our Bill of Rights' but compared it to Bills of Rights in other constitutional systems, most notably the American where some of the rights (including in particular the right to freedom of expression are drafted in categorical terms). In his view the framers of the Convention -

realised only too well that a single - minded concentration on the pusuit of fundamental rights of individuals to the exclusion of the interests of the wider public might be subversive of the ideal of tolerant European democracies. The fundamental rights of individuals are of supreme importance but those rights are not unlimited: we live in communities of individuals who also have rights. The direct lineage of this ancient idea is clear: the conevntion is the direct descendant of the Universal Declaration of Human Rights which is art 29 expressly recognised the duties of everyone to the community and the limitation on rights in order to secure and protect respect for the rights of others.59

These considerations also point in the direction of judicial restraint in the application of Convention rights:60 they emphasise the view that individuals have responsibilities as well as rights; that rights are to be constrained by the interests of the Community as a whole; and that 'where difficult questions arise' in the event of a clash of rights (such as privacy and expression), 'a balance is to be struck'.61 But the point perhaps ought not to be pushed too far: it will be for the courts to determine the boundaries of Parliament's 'discretionary area of judgment', in the same way that it will be for the courts to determine the circumstances in which it is 'appropriate' to 'defer, on democratic grounds, to the considered opinion of the elected body as to where the balance is to be struck between the rights of the individual and the needs of society'.62

One likely effect of the Act in practice is that it will lead to a greater assessment of the human rights implications by the government in the drafting of legislation and by Parliament in considering government bills.63 This is a process which is formally encouraged by s 19 of the Human Rights Act which provides that a minister in charge of a Bill must make a statement to the effect that the Bill is either (i) in his or her view compatible with Convention rights; or (ii) the government wishes the Bill to proceed even though he or she is unbale to make a statement of compatibility.64 In practice Bills contain such a statement on their face, and at the time of writing no Bill has been introduced without bearing a statement of compatibility, though in some cases this seemed optimistic. Also important in terms of parliamentary oversight is the creation of the Joint Committee on Human Rights which came into operation in February 2001. This is an all - party committee with terms of reference which include (i) an examination of ministerial statements of compatibility and (ii) remedial orders made under s 10. There is also a power to consider human rights issues generally, including human rights treaties other than the ECHR. The Committee has addressed a number of issues, including the implementation of the Human Rights Act and a number of bills to determine whether they are compatible with human rights obligations.65 The Committee has not been unwilling to challenge ministers' claims that bills are compatible with the ECHR;66 nor has it been reluctant to test proposed legislation for compatibility with other international instruments.67

Conclusion
The Human Rights Act has been said to weave Convention right 'into the warp and woof of the common law and statute law'.68 While this is true, the impact of the Act should not be over-estimated. As a result of the general deference by the House of Lords and Privy Council to the principles of representative government, and a recognition that 'decisions as to what the general interest requires are made by democratically elected bodies or persons accountable to them',69 existing law has proved to be very robust, and not easy successfully to challenge. Even in the field of criminal justice, some controversial practices and procedures have been upheld, including (i) a statutory breach of the rule against self - incrimination;70 (ii) property confiscation orders under the Drug Trafficking Act 1994 and subsequent legislation;71 (iii) measures which placed the burden of proof on the defendant in criminal proceedings;72 and (iv) illegally obtained evidence to be used in such proceedings.73 There is also a realisation that in many cases the same result will be achieved by applying the normal principles of judicial review as may be achieved by applying the Human Rights Act,74 and indeed that in many cases these principles already provide protection where Convention rights overlap with the traditional principles of judicial review.75 It will not of course always necessarily be like this, and different patterns of judicial involvement may emerge as new governments are elected and different generations of judges occupy senior judicial office. Nor should it be overlooked that the boundaries of existing causes of action - in both public and private law - will be stretched by the need to comply with Convention rights.76 Yet the enactment of the Human Rights Act now raises questions about the incorporation of other human rights treaties, not the least of which is its sibling, the Council of Europe's Social Charter of 18 October 1961, in relation to which the United Kingdom has a very poor record of compliance.77

K D Ewing
King's College, London
4.12.01

1 There is a very full literature on the Act. See Clayton and Tomlinson, The Law of Human Rights; Lester and Pannick, Human Rights Law and Practice; and Wadham and Mountfield, Guide to the Human Rights Act 1998. Also K D Ewing (1999) 62 MLR 79; and D Feldman [1999] LS 165
2 Convention rights are set out in Schedule 1 of the Act, which is attached.
3 R v Offen [2001] 2 All ER 154, at p 174 (Lord Woolf, CJ)
4 See H L Debs, 25 January 1995, col 1136 (Lord Chief Justice, Lord Browne Wilkinson, Lord Lloyd of Berwick, Lord Woolf (by proxy)). See also T Bingham (1993) 109 LQR 390; Lord Woolf [1995] PL 57; J Laws [1993] PL 59 and [1995] PL 72. See also S Sedley [1995] PL 386. For comment on some of this, see J A G Griffith (2000) 63 MLR 159; (2001) 117 LQR 42
5 See A Lester [1984] PL 46
6 See L Lester [1998] PL 237
7 Malone v Metropolitan Police Commissioner [1979] Ch 244; R v Home Secretary, ex parte Brind [1991] 1 AC 696; and R v Ministry of Defence, ex parte Smith [1996] QB 517. But the courts might rely on it to construe ambiguous legislation (Waddington v Miah [1974] 1 WLR 683) or to resolve any uncertainties in the common law (Derbyshire County Council v Times Newspapers Ltd [1992] 1 QB 770 (CA); [1993] AC 534. In Rantzen v Mirror Group Newspapers Ltd [1994] QB 670 the Court of Appeal took into account guidance from the Strasbourg court in determining the level of damages in libel cases.
8 See also J A G Griffith (979) 42 MLR 1; T G Ison (1985) 10 Adelaide LR 1
9 J Straw and P Boateng, Bringing Rights Home (1996). See K D Ewing and C A Gearty [1997] EHRLR 146
10 The literature on the Charter is vast. See Hogg, Constitutional Law of Canada; also D Beatty (1997) 60 MLR 481; T Ison (1999) 60 MLR 499; and R Penner [199] PL 104
11 Retail, Wholesale and Department Store Union v Dolphin Delivery (1986) 33 DLR (4th) 174
12 See J Allan (2000) 9 Otago LR 613
13 On South Africa, see H Corder [1996] PL 291, and S Kentridge (1996) 112 LQR 257. Australia also appeared to take an important step in this direction when the High Court of Australia implied freedom of expresion restrictions into the federal constitution. But the step appears to have faltered in recent years. See Australian Capital Television Pty Ltd v Commonwealth of Australia (1992) 66 AJLR 695. See K D Ewing [1993] PL 256 and H P Lee [1993] PL 606. The case spawned a voluminous literature in the Australian law reviews, of which the (1994) 16 Sydney Law Review 145 - 305 is particularly interesting, and in which the piece by T D Campbell, p 195, is most valuable for a British audience. See generally, Alston (ed), Human Rights through Bills of Rights
14 See HL Debs, 18 November 1997, cols 475-7. For a fuller discussion of some of the points raised during the passing of the Act, see K D Ewing (1999) 62 MLR 79
15 During the Second Reading debates on the Terrorism Act 2000, the Home Secretary announced that the government hoped that this derogation could be withdrawn following enactment.
16 Human Rights Act 1998, ss 14-16
17 SI 2001/No 3644. The order was made on 11 November, laid before Parliament on 12 November, and brought into force on 13 November. It was not debated until 19 November. See H C Debs, 19 November 2001. The Joint Committee on Human Rights report on the Bill was published on the 14th and the Home Affairs Committee report on the 19th.
18 See Home Secretary v Rehman [2001] UKHL 47
19 HL 37; HC 372 (2001-2). Compare the Home Affairs Committee (HC 351 (2001-2))
20 Cm 3782 (1997), para 2.13. See A W Bradley, in Jowell and Oliver, The Changing Constitution, ch 2; and L Lester, in the same volume, ch 4; also Allan, Constitutional Justice
21 See L Lester [1998] EHRLR 520 and F Bennion [2000] PL 77. On the exercise of this obligation, see R v A [2001] 3 All ER 1 (Youth Justice and Criminal Evidence Act 1999, s 41 - sexual history evidence in rape cases); R v Lambert [2001] 3 All ER 577 (Misuse of Drugs Act 1971, s 28 - burden of proof on the accused), and R v Offen [2001] 2 All ER 154 (Crime Sentences Act 1997, s 2 (now Powers of Criminal Courts Sentencing Act 2000, s 109 - automatic life sentences for previous offenders)
22 R v Leeds Crown Court, ex parte Wardle [2001] UKHL/212
23 R v A [2001] 3 All ER 1, per Lord Hope. See Advocate General for Scotland v MacDonald, 2001 SLT 819 (Sex Discrimination Act 1975 not required by ECHR to apply to sexual orientation discrimination)
24 R v A, above, at p 17 (Lord Steyn)
25 F Klug and K Starmer [2001] PL 654, at p 664
26 T Campbell, in Campbell, Ewing and Tomkins (eds), Sceptical Essays on Human Rights, ch 2
27 R v A, above, at p 17
28 Wilson v First County Trust [20001] 3 All ER 229 (intervention by the Secretary of State for Trade and Industry)
29 R v A, above, per Lords Steyn and Hope respectively
30 The Times, 2 April 2000. The other case in which at the time of writing a declaration of incompatibility was issued is Wilson v First County Trust [20001] 3 All ER 229 (Consumer Credit Act 1974, s 127)
31 HC Debs, 21 October 1998, col 1301
32 For the view that 'exceptional' in this context should be widely read, see Loveland, Constitutional Law - A Critical Introduction, p 607
33 Aston Cantlow PCC v Wallbank [2001] 3 All ER 393
34 Poplar Housing Association Ltd v Donoghue [2001] 3 WLR 183, at p 199 (Lord Woolf MR)
35 D Oliver [2000] PL 476. See Poplar Housing Association Ltd v Donoghue, above (housing association a functional public authority); Marcic v Thames Water Utilities Ltd [2001] 3 All ER 698 (privatised water company a public body); and Aston Cantlow PCC v Wallbank, above (Parochial Parish Council a public authority, because 'it possesses powers which private individuals do not possess to determine how others should act' (p 402). But compare RSPCA v Attorney General [2001] 3 All ER 530 (RSPCA not a public authority).
36 See A R Mowbray [1997] PL 647
37 Cf RSPCA v Attorney General [2001] 3 All ER 530, at p 547 (Lightman J)
38 See M Hunt [1998] PL 423; G Phillipson (1999) 62 MLR 824; R Buxton (2000) 116 48; W Wade (2000) 116 LQR 217
39 Douglas v Hello! [2001] 2 All ER 289; Venables v News Group Newspapers Ltd [2001] 1 All ER 908
40 This qualifies the normal rules relating to interim injunctions as set out in American Cyanamid Ltd v Ethicon Co [1975] AC where the House of Lords held that in order to obtain interim relief the applicant need only show a serious issue and to be tried and that the balance of convenience lies in favour of granting the injunction sought. The interim injunction holds the ring until the full trial of the action which may not take place until some considerable time in the future. There is no need to show that a court is likely to grant the remedy sought at the trial of the action, with questions of legality being weighed against other factors in the balance of convenience. Such a procedure gives rise to interesting questions about the compatibility of procedural law with the principle of the rule of law, quite apart from its implications for human rights. Section 12(3) has been diminished in at least one case: Imutran Ltd v Uncaged Campaigns Ltd [2001] 2 All ER 385, at p 391. See also Douglas v Hello!, above.
41 See P Cumper [2000] PL 254
42 Questions have also been raised about other Convention rights: Burn (Petitioner), 2000 JC 403, and Smith v Donnelly 2001 SLT 1007. For an assessment, see S Tierney [2001] PL 38, and C M G Himsworth, in Campbell, Ewing and Tomkins (eds), Sceptical Essays on Human Rights, ch
43 2000 JC 208. See A O'Neill (2000) 63 MLR 429. On a different point, see Hoekstra v H M Advocate (No 2), 2000 SCCR 367
44 See subsequently Gibbs v Ruxton, 2000 JC 403, Clancy v Caird 2000 SLT 546, and Millar v Dickson 2001 SLT 988. See also Crummock (Scotland) Ltd v H M Advocate, 2000 JC 408 (on the independence of the jury)
45 Those which did include H M Advocate v Little, 1999 SLT 1145, Docherty v H M Advocate, 2000 JC 307, and H M Advocate v P, 2001 SLT 924
46 D Feldman, in Ellis (ed), The Principle of Proportionality in the Laws of Europe; also Craig, Administrative Law, and Wade and Forsyth, Administrative Law
47 Emerson and Ashworth, Human Rights and Criminal Proceedings
48 Smyth, Business and the Human Rights Act
49 Dignam and Allen, Company Law and the Human Rights Act 1998
50 J Howell [1999] 63 Conv 287
51 See Payne v Payne [2001] UKHRR 484
52 K D Ewing (1998) 27 ILJ 275; G S Morris (1998) 27 ILJ 293; S Palmer [2000] CLJ 168. See London Underground Ltd v RMT [2001] ICR 647; Advocate General for Scotland v MacDonald, 2001 SLT 819
53 M Grant [2000] JPL 1215
54 C Gearty (2001) 64 MLR 159; D Fairgrieve [2001] PL 695
55 Brown v Stott [2001] 2 All ER 97.
56 ibid, at p 114 (Lord Bingham). See also McIntosh, Petitioner, 2001 SC (PC) 89, at p 102
57 ibid
58 See also R v DPP, ex parte Kebilene [2000] 2 AC 326, at p 380 (Lord Hope)
59 ibid, at p 118. See also R v (Alconbury Ltd) v Environment Secretary [2001] 2 WLR 1389, esp per Lords Nolan and Hoffman. See further the remarkably robust position adoptec by Laws J in Mahmood v Home Secretary [2001] UKRR 307, at p 323
60 A point reinforced in McIntosh, Petitioner, above, at p 102 where Lord Bingham referred to the legislation which was being challenged in that case as being a statutory scheme 'approved by a democratically elected Parliament and should not be at all readily rejected'.
61 It is an approach which also emphasises the practical importance of the different drafting of different Bills of Rights. Given the 'categorical language' of the US Bill of Rights, it must be open to question whether the decisions of the US Supreme Court ought to be of much value in the construction of the Human Rights Act.
62 R v A [2001] 3 All ER 1, at p 21
63 On parliamentary scrutiny, see M Ryle [1994] PL 192; Kinley, The European Convention on Human Rights
64 The Ministerial Code already required ministers to consider the impact of the ECHR in preparing business for Cabinet.
65 See HL 66; HC 332 (2000-1); HL 69; HC 448 (2001-2)
66 See HL 37; HC 372 (2001-2) (Anti-Terrorism, Crime and Security Bill)
67 See HL 30; HC 314 (2001-2) (Homelessness Bill: consideration given to compatibility with International Covenant on the Elimination of Racial Discrimination, and International Covenant on Economic, Social and Cultural Rights)
68 L Lester, in Jowell and Oliver (eds), The Changing Constitution, ch 4
69 R v (Alconbury Ltd) v Environment Secretary [2001] 2 WLR 1389, per Lord Hoffman
70 Brown v Stott [2001] 2 All ER 97
71 R v Benjafield [2001] 2 All ER 609; McIntosh (Petitioner), above.
72 R v Lambert [2001] 3 WLR 206; also R v Forbes [2001] 1 All ER 686
73 Attorney General's Reference No 3 of 1999 [2001] 1 All ER 577
74 See R v Home Secretary, ex parte Daly [2001] 3 All ER 433
75 R v (Alconbury Ltd) v Environment Secretary, above.
76 See Douglas v Hello!, above, R v Home Secretary, ex parte Daly, above (doctrine of proportionality in judicial review), and Director General of Financial Trading v Proprietary Association of Great Britain [2001] UKHR 429 (the rule against bias had to be modified to meet Convention standards).
77 For the most recent position at the time of writing, see K D Ewing (2001) 30 ILJ 409