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Table of Contents
                            Preliminaries
Contents
The Origins of Human Rights Law
The European Convention on Human Rights
Bringing Rights Home
The Human Rights Act 1998
Recent Developments
                        
Document Text Contents
Page 2

CAVENDISH lawcards series®




Human Rights






Cavendish
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London • Sydney • Portland, Oregon

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3 Bringing Rrights Home

the long period of Conservative rule had seen many fundamental
rights eroded under broad ranging legislation. Those who argued
for giving fundamental rights a special status found
encouragement in the increasingly ‘Convention minded’ decisions
of some members of the judiciary in the years leading up to
incorporation—although a clear and common understanding of
what ‘constitutional rights’ meant and how they should be
protected remained lacking in the British system.

The ECHR in the British courts prior to
incorporation

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The approach of the UK courts towards the Convention has
been the traditional dualist approach to international treaties,
based on parliamentary sovereignty. They form no part of the
domestic law until incorporated (see Kaur v Lord Advocate
(1980)). Thus, in Malone v Metropolitan Police Commissioner
(1979), despite expressing the view that the safeguards
available against the ‘unbridled’ use of telephone tapping fell
‘far short’ of Convention principles, Sir Robert Megarry VC
was nonetheless obliged to state:


All that I do is to hold that the Convention does not, as
a matter of English law, confer any direct rights on the
plaintiff that he can enforce in the English courts.



Further confirming the principle of parliamentary sovereignty
in Re M and H (Minors) (1983), Lord Brandon stated:


English courts…are bound to give effect to statutes
which are free from ambiguity even if those statutes
may be in conflict with the Convention.



However, where an ambiguity arose in legislation for the court
to interpret, the ECHR could be used as an aid to establish
Parliament’s intention, but again that would not extend to a
jurisdiction to enforce rights and freedoms under the
Convention. Lord Bridge clarified the position in R v Secretary
of State for the Home Department ex p Brind (1990). The Home
Secretary had used his discretionary power under s 29(3) of
the Broadcasting Act 1981 to issue directives preventing
broadcasters using the actual voices of members of certain
proscribed organisations. The directives were challenged on
the basis that they breached Art 10 rights. First, Lord Bridge
enunciated the basic law of interpretation:


But it is already well settled that, in construing any
provision in domestic legislation which is ambiguous in
the sense that it is capable of a meaning which either

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5 Recent Developments

context ofexecutive and administrative decisions. The court
stated in that case that a full appeal on the merits would be
inappropriate, in that it would subsume the Secretary of State’s
role in policy making in a fashion that would be undemocratic
and contrary to established European jurisprudence. This
appears to have put a clear stop on any hopes for the
importation of merits-based criteria into judicial review, at least
in respect of executive decisions. The robust view of the Law
Lords was that the principles of the ECHR and the HRA 1998
make little difference to the long tradition of political and
administrative decision making in the UK. However, Strasbourg
has not been so unequivocal in its assessment of judicial
review as an effective remedy, finding violations of Art 13 on
several occasions in the past. And despite the importation of
new principles of proportionality into judicial review, it seems
inevitable that violations will continue to be found at Strasbourg.

Clearly there are those who will argue that the long-
established principles of deference to Parliament and the
executive, inherent in the traditional concepts of English public
law, must change in the face of modern developments in
government, but one could have anticipated that the law would
not develop too radically and all at once. As Professor Helen
Fenwick observes in Civil Liberties and Human Rights (2002):
‘These dual and conflicting aspects of judicial activism and of
sovereignty arise from the attempt to reconcile conflicting
constitutional aims which lie at the heart of the HRA.’ In any
event, there will be this continuing balance between minimalist
and activist approaches on the part of judges. It is still early
days for the Act, and the changes wrought by it are likely to
arrive by steady incremental growth rather than by revolution.

As Fenwick also observed, the Act provides an important
opportunity to reverse the erosion of fundamental freedoms

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that occurred under the last Conservative Government and
now under New Labour, particularly in the use of broad ranging
legislation in the contexts of public protest, state surveillance
and terrorist suspects’ rights. So whatever the cautiousness
of the judges’ approach so far, the opportunity remains for the
HRA 1998’s ever-increasing impact on domestic law. But the
effectiveness of the Act depends on three factors:

� The willingness of judges to defend rights robustly and to

challenge executive powers.
� The willingness of governments to make remedial orders

and to ensure that statements of compatibility are fully
considered.

� The vigour with which individual applicants are willing to
assert their rights in a court of law.


In an article in 1996 entitled ‘Does Britain need a Bill of
Rights?’, Ronald Dworkin lamented the loss of the culture of
liberty in Britain:


Great Britain was once a fortress for freedom. It claimed
the great philosophers of liberty—Milton and Locke and
Paine and Mill. Its legal tradition is irradiated with liberal
ideas: that people accused of crime are presumed to be
innocent, that no one owns another’s conscience, that a
man’s home is his castle, that speech is the first liberty
because it is central to all the rest. But now Britain offers
much less formal legal protection to central freedoms than
most democracies do, including most of Britain’s
neighbours in Europe. These democracies have written
constitutions that guarantee individual freedom, and their
judges are charged with ensuring that other public officials,
including legislators, respect those rights.


The HRA 1998 may be a crucial step towards Britain’s return
to the frontiers of liberty.

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