2
The Rule of Law and Human Rights

2.1 Introduction

This chapter considers two concepts that are not always, or indeed usually, dealt with in English Legal System textbooks: the two interrelated concepts are ‘the rule of law’ and ‘human rights’. However, it is the contention of the authors that ideas about the rule of law and human rights are, and always should have been, at the core of our understanding and assessment of any, and certainly our own, legal system, and further that they are assuming a more apparent and increased centrality and importance in relation to its operation and justification. However, it has to be recognised from the outset that any consideration of the specific ideas inherent in these general concepts cannot be approached satisfactorily from the purely ‘black letter’ legal perspective, but must engage the student in a related consideration of the socio-political context from which they derive and to which they relate and on which they operate. Further, the concepts themselves are fluid and, as will be seen, different commentators have adopted widely varying approaches to them.

2.2 The Rule of Law

The ‘rule of law’ represents a symbolic ideal against which proponents of widely divergent political persuasions measure and criticise the shortcomings of contemporary state practice. This varied recourse to the rule of law is, of course, only possible because of the lack of precision in the actual meaning of the concept; its meaning tends to change over time and, as will be seen below, to change in direct correspondence with the beliefs of those who claim its support and claim, in turn, to support it. It is undeniable that the form and content of law and legal procedure have changed substantially in the course of the twentieth and twenty-first centuries. It is usual to explain such changes as being a consequence of the way in which, and the increased extent to which, the modern state intervenes in everyday life, be it economic or social. As the state increasingly took over the regulation of many areas of social activity, it delegated wide-ranging discretionary powers to various people and bodies in an attempt to ensure the successful implementation of its policies. The assumption and delegation of such power on the part of the state brought it into potential conflict with previous understandings of the rule of law, which had entailed a strictly limited ambit of state activity. The impact of this on the understanding and operation of the principle of the rule of law and its implications in relation to the judiciary are traced out below and will be returned to in Chapter 12.

Some might consider that it is not appropriate to have a section such as this in a textbook on the English legal system and that its proper place would be in a text on constitutional law or legal theory. However, it is essential to appreciate the central importance of the concept of the rule of law to the whole structure and operation of the English legal system. The fundamental nature of the concept of the rule of law is and always has been central, although perhaps implicit, in all the aspects of the legal system that are considered in this text. However, the Constitutional Reform Act (CRA) 2005 has for the first time recognised this centrality in the form of a statutory provision. As s 1 of the Act simply and clearly states, it does not adversely affect:

This very point was taken up by the former most senior judge in the House of Lords, the late Lord Bingham, whose speech on the issue will be considered in detail below.

As has been stated, although the idea of the rule of law is difficult to give a substantive definition of, that has not prevented a number of legal and social theorists from attempting to do just that. However, as will be seen and as has already been hinted at, the various explanations of what is, or should be, understood by the concept differ considerably and are different in accord with the socio-political approach adopted by the individual writers.

2.2.1 AV Dicey

According to AV Dicey in An Introduction to the Study of the Law of the Constitution (1885), the UK had no such thing as administrative law as distinct from the ordinary law of the land. Whether he was correct or not when he expressed this opinion – and there are substantial grounds for doubting the accuracy of his claim even at the time he made it – it can no longer be denied that there is now a large area of law that can be properly called administrative, that is, related to the pursuit and application of particular state policies, usually within a framework of statutory powers.

According to the notoriously chauvinistic Dicey, the rule of law was one of the key features that distinguished the English constitution from its Continental counterparts. Whereas foreigners were subject to the exercise of arbitrary power, the Englishman was secure within the protection of the rule of law. Dicey suggested the existence of three distinct elements, which together created the rule of law as he understood it:

An absence of arbitrary power on the part of the state: the extent of the state’s power, and the way in which it exercises such power, is limited and controlled by law. Such control is aimed at preventing the state from acquiring and using wide discretionary powers, for, as Dicey correctly recognised, the problem with discretion is that it can be exercised in an arbitrary manner, and that above all else is to be feared, at least as Dicey would have us believe.

Equality before the law: the fact that no person is above the law, irrespective of rank or class. This was linked with the fact that functionaries of the state are subject to the same law and legal procedures as private citizens.

Supremacy of ordinary law: the fact that the English constitution was the outcome of the ordinary law of the land and was based on the provision of remedies by the courts rather than on the declaration of rights in the form of a written constitution.

It is essential to recognise that Dicey was writing at a particular historical period but, perhaps more importantly, he was writing from a particular political perspective that saw the maintenance of individual property and individual freedom to use that property as one chose as paramount. He was opposed to any increase in state activity in the pursuit of collective interests. In analysing Dicey’s version of the rule of law, it can be seen that it venerated formal equality at the expense of substantive equality. In other words, he thought that the law and the state should be blind to the real concrete differences that exist between people, in terms of wealth or power or connection, and should treat them all the same, as possessors of abstract rights and duties.

There is an unaddressed, and certainly unresolved, tension in Dicey’s work. The rule of law was only one of two fundamental elements of the English polity; the other was parliamentary sovereignty. Where, however, the government controls the legislative process, the sovereignty of parliament is reduced to the undisputed supremacy of central government. The tension arises from the fact that, whereas the rule of law was aimed at controlling arbitrary power, parliament could, within this constitutional structure, make provision for the granting of such arbitrary power by passing appropriate legislation.

This tension between the rule of law and parliamentary sovereignty is peculiar to the British version of liberal government. Where similar versions of government emerged on the Continent, and particularly in Germany, the power of the legislature was itself subject to the rule of law. This subordinate relationship of state to law is encapsulated in the concept of the Rechtsstaat.

This idea of the Rechtsstaat meant that the state itself was controlled by notions of law, which limited its sphere of legitimate activity. Broadly speaking, the state was required to institute general law and could not make laws aimed at particular people.

The fact that this strong Rechtsstaat version of the rule of law never existed in England reflects its particular history. The revolutionary struggles of the seventeenth century had delivered effective control of the English state machinery to the bourgeois class, who exercised that power through parliament. After the seventeenth century, the English bourgeoisie was never faced with a threatening state against which it had to protect itself; it effectively was the state. On the Continent, this was not the case and the emergent bourgeoisie had to assert its power against, and safeguard itself from, the power of a state machinery that it did not control. The development of Rechtsstaat theory as a means of limiting the power of the state can be seen as one of the ways in which the Continental bourgeoisie attempted to safeguard its position. In England, however, there was not the same need in the eighteenth and nineteenth centuries for the bourgeoisie to protect itself behind a Rechtsstaat version of the rule of law. In England, those who benefited from the enactment and implementation of general laws as required by Rechtsstaat theory – the middle classes – also effectively controlled parliament and could benefit just as well from its particular enactments. Thus, in terms of nineteenth-century England, as Franz Neumann stated, the doctrines of parliamentary sovereignty and the rule of law were not antagonistic, but complementary.

2.2.2 FA von Hayek

FA von Hayek followed Dicey in seeing the essential component of the rule of law as being the absence of arbitrary power in the hands of the state. As Hayek expressed it in his book The Road to Serfdom (1944):

Stripped of all technicalities the Rule of Law means that government in all its actions is bound by rules fixed and announced beforehand.

Hayek, however, went further than Dicey in setting out the form and, at least in a negative way, the content that legal rules had to comply with in order for them to be considered as compatible with the rule of law. As Hayek expressed it:

The Rule of Law implies limits on the scope of legislation, it restricts it to the kind of general rules known as formal law; and excludes legislation directly aimed at particular people.

This means that law should not be particular in content or application, but should be general in nature, applying to all and benefiting none in particular. Nor should law be aimed at achieving particular goals: its function is to set the boundaries of personal action, not to dictate the course of such action.

Hayek was a severe critic of the interventionist state in all its guises, from the fascist right wing to the authoritarian left wing and encompassing the contemporary welfare state in the middle. His criticism was founded on two bases:

Efficiency: from the microeconomic perspective – and Hayek was an economist – only the person concerned can fully know all the circumstances of their situation. The state cannot wholly understand any individual’s situation and should, therefore, as a matter of efficiency leave it to the individuals concerned to make their own decisions about what they want or how they choose to achieve what they want, so long as it is achieved in a legal way.

Morality: from this perspective, to the extent that the state leaves the individual less room to make individual decisions, it reduces their freedom.

It is apparent, and not surprising considering his Austrian background, that Hayek adopted a Rechtsstaat view of the rule of law. He believed that the meaning of the rule of law, as it was currently understood in contemporary English jurisprudence, represented a narrowing from its original meaning, which he believed had more in common with Rechtsstaat than it presently did. As he pointed out, the ultimate conclusion of the current weaker version of the rule of law was that, so long as the actions of the state were duly authorised by legislation, any such act was lawful, and thus a claim to the preservation of the rule of law could be maintained. It should be noted that Hayek did not suggest at any time that rules enacted in other than a general form are not laws; they are legal, as long as they are enacted through the appropriate and proper mechanisms; they simply are not in accordance with the rule of law as he understood that principle.

Hayek disapproved of the change he claimed to have seen in the meaning of the rule of law. It is clear, however, that, as with Dicey, his views on law and the meaning of the rule of law were informed by a particular political perspective. It is equally clear that what he regretted most was the replacement of a free market economy by a planned economy, regulated by an interventionist state. The contemporary state no longer simply provided a legal framework for the conduct of economic activity, but was actively involved in the direct coordination and regulation of economic activity in the pursuit of the goals that it set. This had a profound effect on the form of law. Clearly stated and fixed general laws were replaced by open-textured discretionary legislation. Also, whereas the Diceyan version of the rule of law had operated in terms of abstract rights and duties, formal equality and formal justice, the new version addressed concrete issues and addressed questions of substantive equality and justice.

Hayek’s views in relation to law and economics were extremely influential on conservative political thinking in the last quarter of the twentieth century and, in particular, on the Conservative government of Margaret Thatcher, which was elected in 1979 with the overt policy of reducing the impact and influence of the central state on economic activity and individuals. Thatcher was famous/infamous for, among other things, her declaration that there was no such thing as society, ‘only individuals and families’.

2.2.3 EP Thompson

The rule of law is a mixture of implied promise and convenient vagueness. It is vagueness at the core of the concept that permits the general idea of the rule of law to be appropriated by people with apparently irreconcilable political agendas in support of their particular political positions. So far, consideration has been given to Dicey and Hayek, two theorists on the right of the political spectrum who saw themselves as proponents and defenders of the rule of law; however, a similar claim can be made from the left. The case in point is EP Thompson, a Marxist historian, who also saw the rule of law as a protection against, and under attack from, the encroaching power of the modern state.

Thompson shared Hayek’s distrust of the encroachments of the modern state and he was equally critical of the extent to which the contemporary state intervened in the day-to-day lives of its citizens. From Thompson’s perspective, however, the problem arose not so much from the fact that the state was undermining the operation of the market economy, but from the way in which the state used its control over the legislative process to undermine civil liberties in the pursuit of its own concept of public interest.

In Whigs and Hunters (1975), a study of the manipulation of law by the landed classes in the eighteenth century, Thompson concluded that the rule of law is not just a necessary means of limiting the potential abuse of power, but that:

… the Rule of Law, itself, the imposing of effective inhibitions upon power and the defence of the citizen from power’s all-intrusive claims, seems to me an unqualified human good.

In reaching such a conclusion, Thompson clearly concurs with Hayek’s view that there is more to the rule of law than the requirement that law be processed through the appropriate legal institutions. He too argued that the core meaning of the rule of law involved more than mere procedural propriety and suggested that the other essential element is the way, and the extent to which, it places limits on the exercise of state power.

2.2.4 Joseph Raz

Some legal philosophers have recognised the need for state intervention in contemporary society and have provided ways of understanding the rule of law as a means of controlling discretion without attempting to eradicate it completely. Joseph Raz (‘The Rule of Law and its virtue’ (1977) 93 LQR 195), for example, recognised the need for the government of men as well as laws, and that the pursuit of social goals may require the enactment of particular, as well as general, laws. Indeed, he suggested that it would be impossible in practical terms for law to consist solely of general rules. Raz even criticised Hayek for disguising a political argument as a legal one in order to attack policies of which he did not approve. Yet, at the same time, Raz also saw the rule of law as essentially a negative value, acting to minimise the danger that could follow the exercise of discretionary power in an arbitrary way. In that respect, of seeking to control the exercise of discretion, he shares common ground with Thompson, Hayek and Dicey.

Raz claimed that the basic requirement from which the wider idea of the rule of law emerged is the requirement that the law must be capable of guiding the individual’s behaviour. He stated some of the most important principles that may be derived from this general idea:

It is evident that Raz saw the rule of law being complied with if the procedural rules of law-making were complied with, subject to a number of safeguards. It is of no little interest that Raz saw the courts as having an essential part to play in his version of the rule of law. This point will be considered further in section 13.5 in relation to judicial review.

2.2.5 Roberto Unger

In Law and Modern Society (1976), the American critical legal theorist Roberto Unger set out a typology of social order, one category of which is essentially the rule of law system. Unger distinguished this form of social order from others on the basis of two particular and unique characteristics. The first of these is autonomy: the fact that law has its own sphere of authority and operates independently within that sphere without reference to any external controlling factor. Unger distinguished four distinct aspects of legal autonomy, which may be enumerated as follows:

substantive autonomy: this refers to the fact that law is not explicable in other, non-legal terms. To use the tautological cliché – the law is the law. In other words, law is self-referential, it is not about something else; it cannot be reduced to the level of a mere means to an end, it is an end in itself;

institutional autonomy: this refers to the fact that the legal institutions such as the courts are separate from other state institutions and are highlighted in the fundamental principle of judicial independence;

methodological autonomy: this refers to the fact that law has, or at least lays claim to having, its own distinct form of reasoning and justifications for its decisions;

occupational autonomy: this refers to the fact that access to law is not immediate, but is gained through the legal professions, who act as gatekeepers and who exercise a large degree of independent control over the working of the legal system.

The second distinguishing feature of legal order, according to Unger, is its generality: the fact that it applies to all people without personal or class favouritism. Everyone is equal under the law and is treated in the same manner.

In putting forward this typology of social order, Unger recognised the advantages inherent in a rule of law system over a system that operates on the basis of arbitrary power, but he was ultimately sceptical as to the reality of the equality that such a system supports and questioned its future continuation. The point of major interest for this book, however, is the way in which each of the four distinct areas of supposed autonomy is increasingly being challenged and undermined, as will be considered at the end of the next section.

2.2.6 Max Weber

Unger saw the development of the rule of law as a product of Western capitalist society and, in highlighting the distinct nature of the form of law under that system, he may be seen as following the German sociologist Max Weber. Weber’s general goal was to examine and explain the structure and development of Western capitalist society. In so doing, he was concerned with those unique aspects of that society which distinguished it from other social formations. One such distinguishing characteristic was the form of law that he characterised as a formally rational system, which prefigured Unger’s notion of legal autonomy (see Weber, Wirtschaft und Gesellschaft (trans 1968)).

Weber’s autonomous legal system was accompanied by a state that limited itself to establishing a clear framework of social order and left individuals to determine their own destinies in a free market system. In the course of the twentieth century, however, the move from a free market to a basically planned economy, with the state playing an active part in economic activity, brought about a major change in both the form and function of law.

2.2.7 The Rule of Law and the Contemporary form of Law

While the state remained apart from civil society, its functions could be restricted within a limited sphere of activity circumscribed within the doctrine of the rule of law. However, as the state became increasingly involved in actually regulating economic activity, the form of law had by necessity to change. To deal with problems as and when they arose, the state had to assume discretionary powers rather than be governed by fixed predetermined rules. Such discretion, however, is antithetical to the traditional idea of the rule of law, which was posited on the fact of limiting the state’s discretion. Thus emerged the tension between the rule of law and the requirements of regulating social activity that FA von Hayek, for one, saw as a fundamental change for the worse in our society.

With specific regard to the effect of this change on law’s previous autonomy, there is clear agreement among academic writers that there has been a fundamental alteration in the nature of law. Whereas legislation previously took the form of fixed and precisely stated rules, now legislation tends be open-textured and to grant wide discretionary powers to particular state functionaries, resulting in a corresponding reduction in the power of the courts to control such activity. The courts have resisted this process to a degree, through the expansion of the procedure for judicial review, but their role in the area relating to administration remains at best questionable. The growth of delegated legislation, in which parliament simply passes enabling Acts, empowering ministers of state to make regulations, as they consider necessary, is a prime example of this process (considered in detail in section 3.5). In addition, once made, such regulations tend not to be general but highly particular, even technocratic, in their detail.

The increased use of tribunals with the participation of non-legal experts rather than courts to decide disputes, with the underlying implication that the law is not capable of resolving the problem adequately, also represents a diminishment in law’s previous power, as does the use of planning procedures as opposed to fixed rules of law in determining decisions. (Tribunals will be considered in Chapter 15.)

Legislation also increasingly pursues substantive justice rather than merely limiting itself to the provision of formal justice as required under the rule of law. As an example of this, consumer law may be cited: thus, in the Consumer Rights Act 2015, contract terms are to be evaluated on the basis of fairness and, under the Consumer Credit Act 1974, agreements may be rejected on the basis of their being extortionate or unconscionable. Such provisions actually override the market assumptions as to formal equality in an endeavour to provide a measure of substantive justice.

All the foregoing examples of a change can be characterised as involving a change from ‘law as end in itself’ to ‘law as means to an end’. In Weberian terms, this change in law represents a change from formal rationality, in which law determined outcomes to problems stated in the form of legal terms through the application of abstract legal concepts and principles, to a system of substantive rationality, where law is simply a mechanism to achieve a goal set outside of law.

In other words, law is no longer seen as completely autonomous as it once was. Increasingly, it is seen as merely instrumental in the achievement of some wider purpose, which the state, acting as the embodiment of the general interest, sets. Paradoxically, as will be seen later, even when the law attempts to intervene in this process, as it does through judicial review, it does so in a way that undermines its autonomy and reveals it to be simply another aspect of political activity.

The return to a more Hayekian, free-market-based economy and polity since the election of the Thatcher Conservative government in 1979, and its continuation by all other governments, of whatever persuasion, since then has certainly changed the rhetoric and ideology about the relationship of the individual and the state. It can hardly be denied that the pursuit of essentially cost-cutting measures, by the previous coalition and present Conservative governments, in response to the economic imperatives of a perceived economic imbalance, has had a significant, not to say damaging, impact on the operation of the legal system. Indeed some have gone so far as to suggest that by treating the legal system in the same way as any other emanation of state provision it has undermined not only the independence of law and the legal system but also its own commitment to the rules of law as established in s 1 of the CRA 2005.

2.3 The Rule of Law and the Judiciary

The commentators considered above came from a variety of academic backgrounds, but the essential practical importance of the concept of the rule of law was highlighted in a speech delivered by the former most senior Law Lord, the late Lord Bingham of Cornhill, in November 2006 under the deceptively simple title ‘The Rule of Law’ (the sixth Sir David Williams Lecture delivered at the Centre for Public Law at the University of Cambridge).

As has already been indicated, the Constitutional Reform Act (CRA) 2005 provides, in s 1, that the Act does not adversely affect ‘the existing constitutional principle of the rule of law’ or ‘the Lord Chancellor’s existing constitutional role in relation to that principle’. That provision is further reflected in the oath to be taken by Lord Chancellors under s 17(1) of the Act, to respect the rule of law and defend the independence of the judiciary. However, as Lord Bingham pointed out, the Act does not actually define what is meant by the rule of law, or indeed the Lord Chancellor’s role in relation to it. He also recognised the difficulty in fixing a single meaning or in fact any substantive content to the principle, citing various different academic references to it, some of which have been considered above, but nonetheless he felt it appropriate to offer his own understanding of the rule of law.

In Lord Bingham’s view, the authors of the 2005 Act apparently also recognised the difficulty of formulating a succinct and accurate definition suitable for inclusion in a statute, and consequently left the task of definition to the courts, if and when the occasion arose. The importance of such a task of definition cannot be underestimated, for it places an essential duty on, and considerable power in the hands of, the judiciary. If, as the CRA recognises, the rule of law is an existing constitutional principle, then the judges will be required to construe statutes in relation to that principle in such a way as to ensure that they do not infringe that constitutional principle. A further implication of the CRA is that the Lord Chancellor’s conduct, in relation to role and duty to the rule of law, would be open to judicial review, were they to be challenged in that regard. As the rule of law already is an existing constitutional principle of the UK and one that may be more contentious in the future, it becomes imperative to attempt to define what it actually means. It is this task that Lord Bingham sets himself in the lecture under consideration and he suggests that at its core is the idea that ‘all persons and authorities within the state, whether public or private, should be bound by and entitled to the benefit of laws publicly and prospectively promulgated and publicly administered in the courts’.

Bingham rests his basic understanding on John Locke’s dictum that ‘Wherever law ends, tyranny begins’. Yet, even in that regard, he demurs by admitting that in some proceedings justice can only be done if they are not dealt with in public.

However, the main importance is the detail that Lord Bingham introduces through his consideration of the eight implications, or sub-rules, that he holds are particular aspects of the general principle of the rule of law. These sub-rules are:

The reasoning behind this requirement is that if everyone is bound by the law they must be able without undue difficulty to find out what it is, even if that means taking advice from their lawyers. Equally the response should be sufficiently clear that a course of action can be based on it. However, for this to be achieved, there has to be an end to what Lord Bingham refers to as the ‘legislative hyperactivity which appears to have become a permanent feature of our governance’. This excessive legislation, exacerbated by baffling parliamentary draftsmanship, is particularly problematic in relation to the ‘torrent of criminal legislation’, not all of which is ‘readily intelligible’.

However, Lord Bingham does not leave his fellow judges in doubt about their responsibilities in the creation of legal uncertainty and criticises ‘the length, complexity and sometimes prolixity of modern common law judgments, particularly at the highest level’. However, on consideration he rejects the supposed benefit of single opinion decisions in the House of Lords, with only one judgment and four decisions in agreement with that, in favour of multiple judgments ‘where the well-considered committee of five or more, can bring to bear a diversity of professional and jurisdictional experience which is valuable in shaping the law’.

As Lord Bingham saw it, the benefit of multiple decisions in shaping the law was, however, subject to the three caveats:

Lord Bingham does not share Dicey’s complete antipathy to the exercise of discretion, and cites immigration law as an example where it has been advantageous. Nonetheless he does believe that the essential truth of Dicey’s insight stands and that ‘the broader and more loosely-textured a discretion is, whether conferred on an official or a judge, the greater the scope for subjectivity and hence for arbitrariness, which is the antithesis of the rule of law’. However, he is satisfied that the need for discretion to be narrowly defined, and its exercise to be capable of reasoned justification, are requirements which UK law almost always satisfies.

However, if the law is to apply to all, then governments should also accept the converse, that the rule of law does not allow for any distinction between British nationals and others. Unfortunately, the second part of the reciprocal link did not appear to have been considered when Parliament passed Part 4 of the Anti-terrorism, Crime and Security Act 2001, which was held to be incompatible with the Human Rights Act in the Belmarsh cases (see 2.5.2).

This sub-rule goes beyond the formalistic approaches of both Dicey and Raz to insist that the rule of law does in fact connote a substantive content, although Lord Bingham is less certain as to the particular detail of that content. In response to Raz he states:

A state which savagely repressed or persecuted sections of its people could not in my view be regarded as observing the rule of law, even if the transport of the persecuted minority to the concentration camp or the compulsory exposure of female children on the mountainside were the subject of detailed laws duly enacted and scrupulously observed. So to hold would, I think, be to strip the existing constitutional principle affirmed by section 1 of the 2005 Act of much of its virtue and infringe the fundamental compact which, as I shall suggest at the end, underpins the rule of law.

But he also recognises that this is a difficult area and that there is not even a standard of human rights universally agreed among ‘so-called’ civilised nations. However, although he admits to this element of vagueness about the content of this sub-rule, he maintains that ‘within a given state there will ordinarily be a measure of agreement on where the lines are to be drawn, and in the last resort (subject in this country to statute) the courts are there to draw them’.

Consequently, the rule of law must require the legal protection of such human rights as are recognised in that society.

As a corollary of the principle that everyone is bound by and entitled to the benefit of the law is the requirement that people should be able, in the last resort, to go to court to have their rights and liabilities determined. In stating this sub-rule Lord Bingham makes it clear that he is not seeking to undermine arbitration, which he sees as supremely important, rather he is looking to support the provisions of a properly funded legal aid scheme, the demise of which he clearly regrets, as may be seen from the following:

Whether conditional fees, various pro bono schemes and small claims procedures have filled the gap left by this curtailment I do not myself know. Perhaps they have, and advice and help are still available to those of modest means who deserve it. But I have a fear that tabloid tales of practitioners milking the criminal legal aid fund of millions, and more general distrust of lawyers and their rewards, may have enabled a valuable guarantee of social justice to wither unlamented.

Lord Bingham is equally concerned about the fact that successive governments have insisted that the civil courts, judicial salaries usually aside, should be self-financing: the cost of running the courts being covered by fees recovered from litigants. The danger with such an approach is that the cost of going to court in order to get redress may preclude some people from gaining access to the legal system.

As Lord Bingham saw it:

The historic role of the courts has of course been to check excesses of executive power, a role greatly expanded in recent years due to the increased complexity of government and the greater willingness of the public to challenge governmental (in the broadest sense) decisions. Even under our constitution the separation of powers is crucial in guaranteeing the integrity of the courts’ performance of this role.

This judicial role has of course been met through judicial review.

However, Lord Bingham is conscious, and unarguably so it would appear, of a shift away from the traditional relationship of the courts and the executive, under which the convention was that ministers, however critical of a judicial decision, and exercising their right to appeal against it or, in the last resort, legislate to reverse it retrospectively, did not engage in any public attack on the judiciary. In a muted, although nonetheless threatening, rejoinder to the present government Lord Bingham states his view that:

This convention appears to have worn a little thin in recent times, as I think unfortunately, since if ministers make what are understood to be public attacks on judges, the judges may be provoked to make similar criticisms of ministers, and the rule of law is not, in my view, well served by public dispute between two arms of the state.

The rule of law would seem to require no less. The general arguments in favour of open hearings are familiar, summed up on this side of the Atlantic by the dictum that justice must manifestly and undoubtedly be seen to be done and on the American side by the observation that ‘Democracies die behind closed doors’.

While he sees application of this sub-rule to ordinary civil processes to be largely unproblematic, he does recognise that there is more scope for difficulty where a person faces adverse consequences as a result of what he is thought or said to have done or not done, whether in the context of a formal criminal charge or in other contexts such as deportation, precautionary detention, recall to prison or refusal of parole. The question in those circumstances is what does fairness ordinarily require? Lord Bingham’s first response to the question is that, first and foremost, decisions must be taken by adjudicators who are:

independent and impartial: independent in the sense that they are free to decide on the legal and factual merits of a case as they see it, free of any extraneous influence or pressure, and impartial in the sense that they are, so far as humanly possible, open-minded, unbiased by any personal interest or partisan allegiance of any kind.

But additionally a second element is involved, which relates to the presumption that any issue should not be finally decided against a person until they have had an adequate opportunity for their response to the allegation to be heard. In effect this means that:

a person potentially subject to any liability or penalty should be adequately informed of what is said against him; that the accuser should make adequate disclosure of material helpful to the other party or damaging to itself; that where the interests of a party cannot be adequately protected without the benefit of professional help which the party cannot afford, public assistance should so far as practicable be afforded; that a party accused should have an adequate opportunity to prepare his answer to what is said against him; and that the innocence of a defendant charged with criminal conduct should be presumed until guilt is proved.

In the context of criminal law this raises two pertinent issues:

However, of much more concern to Lord Bingham in this regard was the increase in the instances, outside the strictly criminal sphere, in which Parliament has provided that the full case against a person, put before the adjudicator as a basis for decision, should not be disclosed to that person or indeed to their legal representative. One example of this procedure is of course the non-derogation control orders issued under the Prevention of Terrorism Act 2005. A further inroad in relation to this issue is to be found in the provisions of the Justice and Security Act 2013 (see p 73). In his Rule of Law lecture he expressed the view that:

Any process which denies knowledge to a person effectively, if not actually, accused of what is relied on against him, and thus denies him a fair opportunity to rebut it, must arouse acute disquiet. But these categories reflect the undoubted danger of disclosing some kinds of highly sensitive information, and they have been clearly identified and regulated by Parliament, which has judged the departure to be necessary and attempted to limit its extent.

In SSHD v E (2007) he was required to provide a practical consideration of and decision in relation to the concerns raised above.

This particular section of Lord Bingham’s lecture is interesting for the indirect way in which he examines the involvement of the UK in the ongoing war in Iraq while, as he said, ‘not for obvious reasons touch[ing] on the vexed question whether Britain’s involvement in the 2003 war on Iraq was in breach of international law and thus, if this sub-rule is sound, of the rule of law’.

The way he achieved this was through a comparison between the procedures followed in 2003 and those followed at the time of the Suez invasion of 1956. While he concluded that the comparison suggests that over the period the rule of law has gained ground in the UK, it also allowed him to make some pointed comments in relation to the way the current war was initiated. In this regard he considered the different roles assumed by the law officers in both situations, and while he welcomed the involvement of the Attorney General in providing legal advice to the government, he raised doubts about to whom the Attorney General ultimately owed his duty – the government, as the then Attorney General had seen it, or the public at large, which Lord Bingham, personally, appears to support, as is evident from the following passage (the role of the Attorney General will be considered further in section 12.3.2):

There seems to me to be room to question whether the ordinary rules of client privilege, appropriate enough in other circumstances, should apply to a law officer’s opinion on the lawfulness of war: it is not unrealistic in my view to regard the public, those who are to fight and perhaps die, rather than the government, as the client… [a]nd the case for full, contemporaneous, disclosure seems to me even stronger when the Attorney General is a peer, not susceptible to direct questioning in the elected chamber.

In conclusion Lord Bingham correlated the rule of law with a democratic society based on:

an unspoken but fundamental bargain between the individual and the state, the governed and the governor, by which both sacrifice a measure of the freedom and power which they would otherwise enjoy. The individual living in society implicitly accepts that he or she cannot exercise the unbridled freedom enjoyed by Adam in the Garden of Eden, before the creation of Eve, and accepts the constraints imposed by laws properly made because of the benefits which, on balance, they confer. The state for its part accepts that it may not do, at home or abroad, all that it has the power to do but only that which laws binding upon it authorise it to do. If correct, this conclusion is reassuring to all of us who, in any capacity, devote our professional lives to the service of the law. For it means that we are not, as we are sometimes seen, mere custodians of a body of arid prescriptive rules but are, with others, the guardians of an all but sacred flame which animates and enlightens the society in which we live

– a true Lockean view of the rule of law if there ever was one.

2.3.1 The Separation of Powers

Inherent in Lord Bingham’s speech is a tension between the judges and the other elements in the constitution – the executive/government and Parliament – with Lord Bingham seeing the role of the judges as protecting the society from unlawful inroads into its liberties and rights. This tension has been heightened by the enactment of the Human Rights Act 1998, to be considered in the following section; however, before that can be done it is necessary to examine the concept of the separation of powers and related concepts such as parliamentary sovereignty and judicial independence. Although the idea of the separation of powers can be traced back to ancient Greek philosophy, it was advocated in early modern times by the English philosopher Locke and the later French philosopher Montesquieu, and found its practical expression in the constitution of the United States. The idea of the separation of powers is posited on the existence of three distinct functions of government (the legislative, executive and judicial functions) and the conviction that these functions should be kept apart in order to prevent the centralisation of too much power. Establishing the appropriate relationship between the actions of the state and the legal control over those actions crucially involves a consideration of whether there is any absolute limit on the authority of the government of the day. Answering that question inevitably involves an examination of the general constitutional structure of the UK and, in particular, the interrelationship of two doctrines: parliamentary sovereignty and judicial independence. It also requires an understanding of the role of judicial review and the effect of the Human Rights Act 1998, and has caused no little friction between the judiciary and the executive, especially in the person of the Home Secretary.

There is, in any case, high judicial authority for claiming that the separation of powers is an essential element in the constitution of the UK (see R v Hinds (1979), p 212, in which Lord Diplock, while considering the nature of different Commonwealth constitutions in a Privy Council case, stated that ‘It is taken for granted that the basic principle of the separation of powers will apply…’). In any case, the point of considering the doctrine at this juncture is simply to highlight the distinction and relationship between the executive and the judiciary and to indicate the possibility of conflict between the two elements of the constitution. This relationship assumes crucial importance if one accepts, as some have suggested, that it is no longer possible to distinguish the executive from the legislature as, through its control of its majority in the House of Commons, the executive (that is, the government) can legislate as it wishes and in so doing, can provide the most arbitrary of party political decisions with the form of legality. The question to be considered here is to what extent the judiciary can legitimately oppose the wishes of the government expressed in the form of legislation, or to what extent they can interfere with the pursuit of those wishes. As will be seen below, the power of the judiciary in relation to legislative provisions has been greatly enhanced by the passage of the Human Rights Act 1998.

2.3.2 Parliamentary Sovereignty

As a consequence of the victory of the parliamentary forces in the English revolutionary struggles of the seventeenth century, Parliament became the sovereign power in the land. The independence of the judiciary was secured, however, in the Act of Settlement 1701. The centrality of the independence of the judges and the legal system from direct control or interference from the state in the newly established constitution was emphasised in the writing of John Locke, who saw it as one of the essential reasons for, and justifications of, the social contract on which the social structure was assumed to be based. It is generally accepted that the inspiration for Montesquieu’s Spirit of Law (De L’Esprit des Lois) was the English constitution, but if that is truly the case, then his doctrine of the separation of powers was based on a misunderstanding of that constitution, as it failed to take account of the express superiority of parliament in all matters, including its relationship with the judiciary and the legal system.

It is interesting that previous conservative thinkers have suggested that the whole concept of parliamentary sovereignty is itself a product of the self-denying ordinance of the common law. Consequently, they suggested that it was open to a subsequent, more robust, judiciary, confident in its own position and powers within the developing constitution, to reassert its equality with the other two elements of the polity. Just such an approach may be recognised as implicit in a number of the judgments of the augmented nine-person House of Lords in Jackson v HM Attorney General (2005). The case concerned the use of the Parliament Acts to pass legislation banning hunting with dogs, and in that respect it will be considered in detail in section 3.3, but in doing so it by necessity raised, without the requirement to deal definitively with, the essential constitutional question as to the relationship of the courts and parliament. While the majority of the judges, at the least, express reservations as to the power of the House of Commons under the Parliament Acts, the most overtly challenging statement can be seen in the judgment of Lord Steyn. His view of parliamentary sovereignty may be deduced from the following passage, in which he considers the argument of the Attorney General that the application of the Parliament Acts effectively is subject to no limitation:

If the Attorney General is right the 1949 Act could also be used to introduce oppressive and wholly undemocratic legislation… The classic account given by Dicey of the doctrine of the supremacy of Parliament, pure and absolute as it was, can now be seen to be out of place in the modern United Kingdom. Nevertheless, the supremacy of Parliament is still the general principle of our constitution. It is a construct of the common law. The judges created this principle. If that is so, it is not unthinkable that circumstances could arise where the courts may have to qualify a principle established on a different hypothesis of constitutionalism. In exceptional circumstances involving an attempt to abolish judicial review or the ordinary role of the courts, the Appellate Committee of the House of Lords or a new Supreme Court may have to consider whether this is a constitutional fundamental which even a sovereign Parliament acting at the behest of a complaisant House of Commons cannot abolish.

Lord Steyn’s reasoning was subsequently questioned, and the traditional view of parliamentary sovereignty was reasserted by the former Master of the Rolls and current President of the Supreme Court, Lord Neuberger, in his Weedon Lecture in April 2011. As he put it:

Ultimately, it might be said that Lord Steyn’s point that the courts had invented Parliamentary sovereignty and could therefore remove or qualify it involves an intellectual sleight of hand: Parliamentary sovereignty was acknowledged rather than bestowed by the courts. They acknowledged what had been clearly established by civil war, the Glorious Revolution of 1688, the Bill of Rights 1689 and the Act of Settlement 1701 (emphasis added).

Lord Neuberger went on:

[Parliament] can, if it chooses, and clearly and expressly states that it is so doing, enact legislation which is contrary to the rule of law… neither the Convention nor the Human Rights Act goes nowhere near to imposing a limit on Parliamentary legal sovereignty.

It is true that membership of the Convention imposes obligations on the state to ensure that judgments of the Strasbourg court are implemented, but those obligations are in international law, not domestic law. And, ultimately, the implementation of a Strasbourg, or indeed a domestic court judgment is a matter for Parliament. If it chose not to implement a Strasbourg judgment, it might place the United Kingdom in breach of its treaty obligations, but as a matter of domestic law there would be nothing objectionable in such a course. It would be a political decision, with which the courts could not interfere.

European Union Act 2011

In September 2011, Parliament passed the European Union Act 2011. The main purpose of the Act was to make provision for the application of the post-Lisbon treaties. However, s 18 of the Act, for the first time, placed the common law principle of parliamentary sovereignty on a statutory footing in stating that all EU law takes effect in the UK only by virtue of the will of Parliament, as provided in the European Communities Act (ECA) 1972. The issue of parliamentary sovereignty in relation to the European Union and the UK’s proposed exit therefrom will be considered in section 5.1.1.

R (Evans) v Attorney General (2015)

This case raises issues in relation to the interrelationship of the rule of law, the power of the judiciary and parliamentary sovereignty. Evans, a Guardian journalist, had made a request under the Freedom of Information Act (FOIA) 2000 for the release of correspondence between Prince Charles and various government ministers. As some of the letters related to environmental issues, a request was also made under the Environmental Information Regulations (EIR) 2004. Initially the request was refused, but was eventually approved after a six-day hearing before the Administrative Appeals Chamber of the Upper Tribunal. The government departments concerned did not appeal the UT decision, but on 16 October 2012 the Attorney General issued a certificate under s 53(2) of the FOIA 2000 and regulation 18(6) of the EIR 2004 stating that he had, on ‘reasonable grounds’, formed the opinion that the departments were entitled to refuse disclosure of the letters. Among his justifications for his action was ‘the potential damage that disclosure would do to the principle of the Prince of Wales’ political neutrality, which could seriously undermine the Prince’s ability to fulfil his duties when he becomes King’. Evans’s challenge to the issue of the certificate was ultimately decided by the Supreme Court, which decided by a majority of five to two that the certificate was unlawful under the 2000 Act (the court also decided by 6 to 1 that the certificate was contrary to EU law).

Lord Neuberger, with whom Lords Kerr and Reid agreed, concluded that ‘reasonable grounds’ could not mean that the Attorney General could issue a certificate merely because he would have reached a different conclusion to the Upper Tribunal.

A statutory provision which entitles a member of the executive (whether a Government Minister or the Attorney General) to overrule a decision of the judiciary merely because he does not agree with it would not merely be unique in the laws of the United Kingdom. It would cut across two constitutional principles which are also fundamental components of the rule of law. First,… it is a basic principle that a decision of a court is binding as between the parties, and cannot be ignored or set aside by anyone including (indeed it may fairly be said, least of all) the executive. Secondly, it is also fundamental to the rule of law that decisions and actions of the executive are,… reviewable by the court at the suit of an interested citizen (paras 51–52).

These passages may be seen as Lord Neuberger’s clarion call for the rights of the rule of law and the common law power of the judiciary in the face of executive and legislative power. However, his judgment actually rested on the unreasonable nature of the Attorney General’s decision in the circumstances of the case. In so doing it may be said to recognise the pre-eminence of parliamentary sovereignty: for he recognises that properly constructed legislation can supersede either the final authority of judicial decisions or the requirement of judicial review, or indeed both.

Perhaps after all there is not so great a distance between Lord Neuberger’s stance and the apparently contrary one expressed by Lord Hughes that:

The rule of law is of the first importance. But it is an integral part of the rule of law that courts give effect to Parliamentary intention. The rule of law is not the same as a rule that courts must always prevail, no matter what the statute says (para 154).

R v (Miller) v Secretary of State for Exiting the European Union [2017] UKSC 5

What is commonly referred to as the Brexit case related to the power of the government to give notice, under Article 50 of the Treaty on European Union, of the UK’s intention to withdraw from the European Union. The consideration of the court and the reasoning supporting its conclusions involved the interplay of a number of issues considered here: the separation of powers, parliamentary sovereignty, and the use of the royal prerogative (the residual powers of the crown, now effectively exercised by the government, to take particular decisions and enter into binding agreements in areas such as international relations (see further at 3.5)).

In Miller, the Supreme Court was at pains to make it clear that it was not acting in a political way but purely on legal grounds in line with the separation of powers within the UK constitution. Nonetheless it held by a majority of 8 to 3 that, under the UK’s constitutional arrangements, the government could not trigger Article 50 without the prior authorisation of an Act of Parliament. The fact that ministers were accountable to parliament for their actions was insufficient ground to legitimise the action of the government. Nor could the use of royal prerogative power sustain such action, as withdrawal from the EU would remove some substantive domestic rights of UK residents, an action well recognised as being beyond the scope of prerogative power.

2.3.3 Judicial Independence

The exact meaning of ‘judicial independence’ became a matter of debate when some members and ex-members of the senior judiciary suggested that the former Conservative Lord Chancellor, Lord Mackay of Clashfern, had adopted a too-restrictive interpretation of the term, which had reduced it to the mere absence of interference by the executive in the trial of individual cases. They asserted the right of the legal system to operate independently, as an autonomous system apart from the general control of the state, with the judiciary controlling its operation, or at least being free from the dictates and strictures of central control.

According to Lord Mackay, in the first of his series of Hamlyn lectures entitled ‘The Administration of Justice’ (1994):

The fact that the executive and judiciary meet in the person of the Lord Chancellor should symbolise what I believe is necessary for the administration of justice in a country like ours, namely, a realisation that both the judiciary and the executive are parts of the total government of the country with functions that are distinct but which must work together in a proper relationship if the country is to be properly governed… It seems more likely that the interests of the judiciary in matters within the concerns covered by the Treasury are more likely to be advanced if they can be pursued within government by a person with a lifetime of work in law and an understanding of the needs and concerns of the judiciary and who has responsibility as Head of the Judiciary, than if they were to be left within government as the responsibility of a minister with no such connection with the judiciary.

The tension inherent in the relationship between the courts and the executive government took on a more fundamental constitutional aspect with the passing of the Human Rights Act 1998. By means of that Act, the courts were given the right to subject the actions and operations of the executive and, indeed, all public authorities to the gaze and control of the law, in such a way as to prevent the executive from abusing its power. If the Human Rights Act represented a shift in constitutional power towards the judiciary, the Act was nonetheless sensitive to maintain the doctrine of parliamentary sovereignty. In the United States, with its written constitution, the judiciary in the form of the Supreme Court has the power to declare the Acts of the legislature unconstitutional and consequently invalid. No such power was extended to the UK courts under the Human Rights Act, although some commentators saw the Human Rights Act as eventually leading to a similar outcome in the UK. Such tension was further heightened when, in June 2003, the government announced its intention to radically alter the constitution, and the judges’ role within it, at an apparent single stroke by the expedient of removing the role of Lord Chancellor.

Given the judiciary’s suspicion of Lord Mackay as Lord Chancellor, it is not a little ironic that the government’s announcement of its intention to abolish the position of Lord Chancellor was met by strong judicial reaction, in language very similar to that used by that former holder of the office. The judges, supported by many parliamentarians and commentators, made it absolutely clear that they thought that their independence would best be protected by a strong, legally qualified, champion within the cabinet. Such a role had been performed by the Lord Chancellor. Consequently, the judiciary generally regretted, not to say resisted, the abolition of the office as originally provided for in the Constitutional Reform Bill 2003. Although such resistance succeeded in retaining the office of the Lord Chancellor, its functions were greatly reduced and s 2 of the Constitutional Reform Act 2005 provides that the holder of the office should be ‘qualified by experience’, which need not include legal experience. Neither will the holder of the office necessarily sit in the House of Lords. However, in recognition of the sensitivities of the judiciary, s 3 of the Act, for the first time, places a legal duty on government ministers to uphold the independence of the judiciary and specifically bars them from trying to influence judicial decisions through any special access to judges.

When Gordon Brown replaced Tony Blair as Prime Minister in the summer of 2007, the resulting Cabinet reshuffle resulted in the abolition of the Department for Constitutional Affairs and its being replaced by a new Justice Ministry headed by Jack Straw, who also replaced Lord Falconer as Lord Chancellor, although remaining a member of the House of Commons. The new ministry, which is ultimately responsible for looking after the interests of the judiciary and courts, also assumed responsibility for the prison service, which caused the judges great concern as they feared that their allocation from the joint ministerial budget would be under pressure from the ever-expanding prison budget.

Following the General Election of 2010, the new coalition Justice Minister was the extremely experienced MP Kenneth Clarke QC, although his experience did not save him from being replaced in the Cabinet reshuffle in September 2012. The replacement was Chris Grayling, who became the first non-lawyer to hold the office of Lord Chancellor, and was subsequently replaced by another non-lawyer, Michael Gove. The current Justice Minister is Liz Truss, the first female Lord Chancellor, but another non-lawyer.

2.4 Human Rights Discourse and the Rule of Law

In an article published in the London Review of Books and The Guardian newspaper in May 1995, three years before the enactment of the Human Rights Act, the High Court judge, as he then was, Sir Stephen Sedley, made explicit the links and tensions between the doctrine of the rule of law and the relationship of the courts and the executive, and the implications for the use of judicial review as a means of controlling the exercise of executive power. In his view:

Our agenda for the 21st century is not necessarily confined to choice between a ‘rights instrument’ interpreted by a judiciary with a long record of illiberal adjudication, and rejection of any rights instrument in favour of Parliamentary government. The better government becomes, the less scope there will be for judicial review of it.

But, for the foreseeable future, we have a problem: how to ensure that as a society we are governed within a law which has internalised the notion of fundamental human rights. Although this means adopting the Rule of law, like democracy, as a higher-order principle, we do have the social consensus which alone can accord it that primacy. And, if in our own society the Rule of law is to mean much, it must at least mean that it is the obligation of the courts to articulate and uphold the ground rules of ethical social existence which we dignify as fundamental human rights… There is a potential tension between the principle of democratic government and the principle of equality before the law… The notion that the prime function of human rights and indeed the Rule of law is to protect the weak against the strong is not mere sentimentality. It is the child of an era of history in which equality of treatment and opportunity has become perceived… as an unqualified good, and of a significant recognition that you do not achieve equality merely by proclaiming it… fundamental human rights to be real, have to steer towards outcomes which invert those inequalities of power that mock the principle of equality before the law.

Such talk of fundamental human rights denies the absolute sovereignty of parliament in its recognition of areas that are beyond the legitimate exercise of state power. It also recognises, however, that notions of the rule of law cannot be satisfied by the provision of merely formal equality as Dicey and Hayek would have it and previous legal safeguards would have provided. For Sedley, the rule of law clearly imports, and is based on, ideas of substantive equality that market systems and legal formalism cannot provide and in fact undermine. His version of the rule of law clearly involves a reconsideration of the relationship of the executive and the judiciary, and involves the latter in a further reconsideration of their own previous beliefs and functions.

2.5 The Human Rights Act 1998

As is evident in the quotation from Sir Stephen Sedley above, some judges, at least, saw their role in maintaining the rule of law as providing protection for fundamental human rights. In attempting to achieve this end, they faced a particular problem in relation to the way in which the unwritten English constitution was understood, and was understood to operate. The freedom of individual action in English law was not based on ideas of positive human rights which could not be taken away, but on negative liberties: that is, individual subjects were entitled to do whatever was not forbidden by the law. This was particularly problematic when it was linked to the doctrine of the sovereignty of parliament, which, in effect, meant that parliament was free to restrict, or indeed remove, individual liberties at any time merely by passing the necessary legislation.

It is generally accepted that the courts developed the procedure of judicial review, as an aspect of the rule of law, in an attempt to protect individuals from the excesses of an over-powerful executive (see below, 13.5, for a detailed consideration). But, in so doing, they were limited in what they could achieve by the very nature of the procedure available to them. They could not directly question the laws produced by parliament on the basis of substance, as constitutional courts in other systems could, but were restricted essentially to questioning the formal or procedural proprieties of such legislation. There was, however, an alternative forum capable of challenging the substance of English law, and one that was based on the assumption of positive rights rather than negative liberties. That forum was the European Court of Human Rights (ECtHR).

It has to be established and emphasised from the outset that the substance of this section has absolutely nothing to do with the European Union as such; the Council of Europe is a completely distinct organisation and, although membership of the two organ-isations overlap, they are not the same. The Council of Europe is concerned not with economic matters, but with the protection of civil rights and freedoms (the nature of these institutions and the operation of the ECtHR will be considered in detail in Chapter 15).

The UK was one of the initial signatories to the European Convention on Human Rights and Fundamental Freedoms (hereafter the ECHR) in 1950, which was instituted in post-war Europe as a means of establishing and enforcing essential human rights. In 1966, the UK recognised the power of the European Commission on Human Rights to hear complaints from individual UK citizens and, at the same time, recognised the authority of the ECtHR to adjudicate in such matters. It did not, however, at that time incorporate the ECHR into UK law.

The consequence of non-incorporation was that the Convention could not be directly enforced in English courts. In R v Secretary of State for the Home Department ex p Brind (1991), the Court of Appeal decided that ministerial directives did not have to be construed in line with the ECHR, as that would be tantamount to introducing the ECHR into English law without the necessary legislation. UK citizens were therefore in the position of having to pursue rights, which the state endorsed, in an external forum rather than through their own court system and, in addition, having to exhaust the domestic judicial procedure before they could gain access to that external forum. Such a situation was extremely unsatisfactory, and not just for complainants under the ECHR. Many members of the judiciary, including the then Lord Chief Justice Lord Bingham, were in favour of incorporation, not merely on general moral grounds, but equally on the ground that they resented having to make decisions in line with UK law which they knew full well would be overturned on appeal to the European Court. Equally, there was some discontent that the decisions in the European Court were being taken, and its general jurisprudence was being developed, without the direct input of the UK legal system. The courts, however, were not completely bound to decide cases in presumed ignorance of the ECHR, and did what they could to make decisions in line with it. For example, where domestic statutes were enacted to fulfil ECHR obligations, the courts could, of course, construe the meaning of the statute in the light of the ECHR. It was also possible that, due to the relationship of the ECHR with European Community (as it then was) law, the courts could find themselves applying the former in considering the latter. More indirectly, however, where the common law was uncertain, unclear or incomplete, the courts ruled, wherever possible, in a manner which conformed with the ECHR or, where statute was found to be ambiguous, they presumed that parliament intended to legislate in conformity with the UK’s international obligations under the ECHR. As the late Lord Bingham put it:

In these ways, the Convention made a clandestine entry into British law by the back door, being forbidden to enter by the front (Earl Grey Memorial Lecture, 1998).

Even allowing for this degree of judicial manoeuvring, the situation still remained unsatisfactory. Pressure groups did agitate for the incorporation of the ECHR into the UK legal system, but when in 1995 a Private Member’s Bill moving for incorporation was introduced in the House of Lords, the Home Office minister, Lady Blatch, expressed the then Conservative government’s view that such incorporation was ‘undesirable and unnecessary, both in principle and practice’. The Labour opposition, however, was committed to the incorporation of the ECHR into UK law and, when it gained office in 1997, it immediately set about the process of incorporation. This process resulted in the Human Rights Act (HRA) 1998.

Rights provided under the European Convention on Human Rights

The Articles incorporated into UK law, and listed in Sched 1 to the Act, cover the following matters:

The rights listed can be relied on by any person, non-governmental organisation or group of individuals. Importantly, they also apply, where appropriate, to companies that are incorporated entities and hence legal persons. However, they cannot be relied on by governmental organisations, such as local authorities.

The nature of rights under the Act, proportionality and derogation

The rights listed above are not all seen in the same way. Some are absolute and inalienable and cannot be interfered with by the state. Others are merely contingent and are subject to derogation, that is, signatory states can opt out of them in particular circumstances. The ECtHR also recognises the concept of ‘a margin of appreciation’, which allows for countries to deal with particular problems in the context of their own internal circumstances (see below, 5.4). The absolute rights are those provided for in Arts 2, 3, 4, 7 and 14. All the others are subject to potential limitations. In particular, the rights provided for under Arts 8, 9, 10 and 11 are subject to legal restrictions such as are:

… necessary in a democratic society in the interests of national security or public safety, for the prevention of crime, for the protection of health or morals or the protection of the rights and freedoms of others (Art 11(2)).

The UK entered such a derogation in relation to the extended detention of terrorist suspects without charge, under the Prevention of Terrorism (Temporary Provisions) Act 1989, subsequently replaced and extended by the Terrorism Act 2000. Those powers had been held to be contrary to Art 5 of the Convention by the ECtHR in Brogan v UK (1989). The UK also entered a derogation with regard to the Anti-terrorism, Crime and Security Act 2001, which was enacted in response to the attack on the World Trade Center building in New York on 11 September of that year. The Act allowed for the detention without trial of foreign citizens suspected of being involved in terrorist activity (see, further, below, 2.5.2).

In deciding the legality of any derogation, courts are required not just to be convinced that there is a need for the derogation, but they must also be sure that the state’s action has been proportionate to that need. In other words, the state must not overreact to a perceived problem by removing more rights than is necessary to effect the solution.

In the Supreme Court decision Bank Mellat (Appellant) v Her Majesty’s Treasury (Respondent) (No. 2) (2013) Lord Reed set out the determinant issues in relation to proportionality regarding any particular measure relating to the Human Rights Act. These were:

  • (1) whether the objective of the measure is sufficiently important to justify the limitation of a protected right;
  • (2) whether the measure is rationally connected to the objective;
  • (3) whether a less intrusive measure could have been used without unacceptably compromising the achievement of the objective; and
  • (4) whether, balancing the severity of the measure’s effects on the rights of the persons to whom it applies against the importance of the objective, to the extent that the measure will contribute to its achievement, the former outweighs the latter… In essence, the question at step four is whether the impact of the rights infringement is disproportionate to the likely benefit of the impugned measure.

With further regard to the possibility of derogation, s 19 of the 1998 Act requires a minister, responsible for the passage of any Bill through parliament, either to make a written declaration that it is compatible with the Convention or, alternatively, to declare that although it may not be compatible, it is still the government’s wish to proceed with it.

The structure of the Human Rights Act

The HRA has profound implications for the operation of the English legal system. However, to understand the structure of the HRA, it is essential to be aware of the nature of the changes introduced by the Act, especially in the apparent passing of fundamental powers to the judiciary. Under the doctrine of parliamentary sovereignty, the legislature could pass such laws as it saw fit, even to the extent of removing the rights of its citizens. The 1998 Act reflects a move towards the entrenchment of rights recognised under the Convention, but, given the sensitivity of the relationship between the elected parliament and the unelected judiciary, it has been thought expedient to minimise the change in the constitutional relationship of parliament and the judiciary.

Section 2 of the Act requires future courts to take into account any previous decision of the ECtHR. This provision impacts on the operation of the doctrine of precedent within the English legal system, as it effectively sanctions the overruling of any previous English authority that was in conflict with a decision of the ECtHR.

However, in Price v Leeds City Council (2006), the House of Lords held that where there were contradictory rulings from it and the European Court of Human Rights, English courts were required to follow the ruling of the House of Lords. The case is considered in detail at 4.4.

Section 3 requires all legislation to be read, so far as possible, to give effect to the rights provided under the Convention. As will be seen, this section provides the courts with new and extended powers of interpretation. It also has the potential to invalidate previously accepted interpretations of statutes that were made, by necessity, without recourse to the Convention (see Mendoza v Ghaidan (2002)).

Section 4 empowers the courts to issue a declaration of incompatibility where any piece of primary legislation is found to conflict with the rights provided under the ECHR. This has the effect that the courts cannot invalidate primary legislation, essentially Acts of Parliament but also Orders in Council, which are found to be incompatible; they can only make a declaration of such incompatibility, and leave it to the legislature to remedy the situation through new legislation. Section 10 provides for the provision of remedial legislation through a fast-track procedure, which gives a minister of the Crown the power to alter such primary legislation by way of statutory instrument.

Section 5 requires the Crown to be given notice where a court considers issuing a declaration of incompatibility and the appropriate government minister is entitled to be made a party to the case.

Section 6 declares it unlawful for any public authority to act in a way that is incompatible with the ECHR, and consequently the Human Rights Act does not directly impose duties on private individuals or companies unless they are performing public functions. Whether or not a private company is performing a public function can prove problematic; there are instances where they would clearly be considered as doing so: such as privatised utility companies providing essential services, or if a private company were to provide prison facilities then clearly it would be operating as a public authority. However, at the other end of an uncertain spectrum, it has been held that, where a local authority fulfils its statutory duty to arrange the provision of care and accommodation for an elderly person through the use of a private care home, the functions performed by the care home are not to be considered as of a public nature. At least that was the decision of the House of Lords by a majority of three to two in YL v Birmingham City Council (2007), a surprisingly conservative decision, and one that met with much dismay, given that there was the expectation that the public authority test would be applied generously.

Section 6(3), however, indirectly introduces the possibility of horizontal effect into private relationships. As s 6(3)(a) specifically states that courts and tribunals are public authorities they must therefore act in accordance with the Convention. The consequence of this is that although the HRA does not introduce new causes of action between private individuals, the courts, as public authorities, are required to recognise and give effect to their Convention rights in any action that can be raised.

In R v (on the application of Al-Skeini) v Secretary of State for Defence (2007), which related to the conduct of the armed forces in Iraq, the House of Lords held that s 6 applies to a public body even if it is acting outside the United Kingdom territory, as long as it is acting within the jurisdiction of the United Kingdom, and jurisdiction depends upon control of the relevant location.

Where a public authority is acting under the instructions of some primary legislation, which is itself incompatible with the ECHR, the public authority will not be liable under s 6.

Section 7 allows the ‘victim of the unlawful act’ to bring proceedings against the public authority in breach. However, this is interpreted in such a way as to permit relations of the actual victim to initiate proceedings.

Section 8 empowers the court to grant such relief or remedy against the public authority in breach of the Act as it considers just and appropriate.

Where a public authority is acting under the instructions of some primary legislation, which is itself incompatible with the ECHR, the public authority will not be liable under s 6.

Section 19 of the Act requires that the minister responsible for the passage of any Bill through parliament must make a written statement that the provisions of the Bill are compatible with ECHR rights. Alternatively, the minister may make a statement that the Bill does not comply with ECHR rights, but that the government nonetheless intends to proceed with it.

Reactions to the introduction of the HRA have been broadly welcoming, but some important criticisms have been raised. First, the ECHR is a rather old document and does not address some of the issues that contemporary citizens might consider as equally fundamental to those rights actually contained in the document. For example, it is silent on the rights to substantive equality relating to such issues as welfare and access to resources. Also, the actual provisions of the ECHR are uncertain in the extent of their application, or perhaps more crucially in the area where they can be derogated from, and at least to a degree they are contradictory. The most obvious difficulty arises from the need to reconcile Art 8’s right to respect for private and family life with Art 10’s freedom of expression. In Weller v Associated Newspapers Ltd (2015) the Court of Appeal upheld the judgment in the action by the musician Paul Weller against the proprietor of the Mail Online for publishing photographs of his young children. The court found that the children had a reasonable expectation of privacy and that their rights under Art 8 of the European Convention on Human Rights had outweighed the defendant’s right under Art 10 of the Convention. Newspaper editors have expressed their concern in relation to this particular issue, and fear the development, at the hands of the court, of an overly limiting law of privacy that would prevent investigative journalism. This leads to a further difficulty – the potential politicisation, together with a significant enhancement in the power, of the judiciary. Consideration of this issue will be postponed until some cases involving the HRA have been examined.

Perhaps the most serious criticism of the HRA was the fact that the government did not see fit to establish a Human Rights Commission to publicise and facilitate the operation of its procedures. Many saw the setting up of such a body as a necessary step in raising human rights awareness and assisting individuals, who might otherwise be unable to use the Act, to enforce their rights.

2.5.1 Judicial Interpretation and Application of the Human Rights Act

Before and subsequent to the coming into effect in England of the HRA on 2 October 2000, the newspapers were full of dire warnings as to the damaging effect that the Act would have on accepted legal principles and practices. However, an examination of some of the earliest cases to reach the higher courts may serve to dispel such a view.

Although the HRA was enacted in 1998, it did not come into force generally until October 2000. The reason for the substantial delay was the need to train all members of the judiciary, from the highest Law Lord to the humblest magistrate, in the consequences and implications of the new Act. However, the Act was in force before that date in Scotland as a consequence of the devolution legislation, the Scotland Act, which specifically applied the provisions of the HRA to the Scottish Parliament and executive. It is for that reason that the earliest cases under the Human Rights provisions were heard in the Scottish courts.

Restriction of non-absolute rights and proportionality

Road Traffic Act 1988

In Brown v Stott (2001), the claimant had been arrested at a supermarket on suspicion of the theft of a bottle of gin. When the police officers noticed that she smelled of alcohol, they asked her how she had travelled to the store. Brown replied that she had driven and pointed out her car in the supermarket car park. Later, at the police station, the police used their powers under s 172(2)(a) of the Road Traffic Act 1988 to require her to say who had been driving her car at about 2.30 pm, that is, at the time when she would have travelled in it to the supermarket. Brown admitted that she had been driving. After a positive breath test, Brown was charged with drink-driving, but appealed to the Scottish High Court of Justiciary for a declaration that the case could not go ahead on the grounds that her admission, as required under s 172, was contrary to the right to a fair trial under Art 6 of the ECHR.

In February 2000, the High Court of Justiciary supported her claim on the basis that the right to silence and the right not to incriminate oneself at trial would be worthless if an accused person did not enjoy a right of silence in the course of the criminal investigation leading to the court proceedings. If this were not the case, then the police could require an accused person to provide an incriminating answer which subsequently could be used in evidence against them at their trial. Consequently, the use of evidence obtained under s 172 of the Road Traffic Act 1988 infringed Brown’s rights under Art 6(1).

Even before the HRA was in operation in England, the Scottish case was followed by a similar ruling in Birmingham Crown Court in July 2000.

The implication of these decisions was extremely serious, not just in relation to drink-driving offences, but also in relation to fines following the capture of speeding cars by traffic cameras. As can be appreciated, the film merely identifies the car; it is s 172 of the Road Traffic Act that actually requires the compulsory identification of the driver. If Brown v Stott stated the law accurately, then the control of speeding cars and drink-driving was in a parlous state.

However, on 5 December 2000, the Privy Council reversed the judgment of the Scottish appeal court in Brown. The Privy Council reached its decision on the grounds that the jurisprudence of the ECtHR, established through previous cases, had clearly established that while the overall fairness of a criminal trial could not be compromised, the constituent rights contained in Art 6 of the ECHR were not themselves absolute and could be restricted in certain limited conditions. Consequently, it was possible for individual states to introduce limited qualification of those rights, so long as they were aimed at ‘a clear public objective’ and were ‘proportionate to the situation’ under consideration. The ECHR had to be read as balancing community rights with individual rights. With specific regard to the Road Traffic Act, the objective to be attained was the prevention of injury and death from the misuse of cars, and s 172 was not a disproportionate response to that objective.

Subsequently, in a majority decision in O’Halloran v UK (2007), the European Court of Human Rights approved the use of s 172 in order to require owners to reveal who had been driving cars caught on speed cameras.

See also the related decision of the House of Lords in Sheldrake v Director of Public Prosecutions (2004), which concerned s 5(2) of the Road Traffic Act 1988 relating to the offence of being in charge of a vehicle after consuming excess alcohol. The court held that s 5(2) did not require the prosecution to prove that the defendant was likely to drive while intoxicated. Rather, the effect of s 5(2) was to allow the defendant to escape liability if they could prove, on a balance of probabilities, that there was no likelihood of their driving in their intoxicated condition. The House accepted that this interpretation of s 5(2) infringed the presumption of innocence and introduced a reverse burden of proof, but it considered that such a provision was neither arbitrary nor did it go beyond what was reasonably necessary, given the need to protect the public from the potentially lethal consequences of drink-driving. As Lord Bingham explained the matter:

The defendant has a full opportunity to show that there was no likelihood of his driving, a matter so closely conditioned by his own knowledge and state of mind at the material time as to make it much more appropriate for him to prove on the balance of probabilities that he would not have been likely to drive than for the prosecutor to prove, beyond reasonable doubt, that he would. I do not think that imposition of a legal burden went beyond what was necessary.

Confiscation cases

Prior to the Proceeds of Crime Act 2002, a number of Acts of Parliament allowed for the property of individuals to be confiscated where it was assumed that such assets were the result of criminal activity. That legislation included the Criminal Justice Act 1988, as amended by the Proceeds of Crime Act 1995, the Drug Trafficking Act 1994 and the Terrorism Act 2000.

In allowing the court to make such an assumption, the Acts reversed the usual burden of proof to the extent that the person against whom the powers are used is required to demonstrate, on the balance of probabilities, that their assets are not the product of criminal activity. Section 1(1) of the Proceeds of Crime (Scotland) Act 1995 also allows for individuals’ assets to be confiscated on the basis of similar assumptions.

In October 2000, in McIntosh v AG for Scotland, it was argued that the assumption made under s 3(2) of the 1995 Act displaced the presumption of innocence in Art 6(2) of the ECHR and hence was unlawful. McIntosh had been convicted for supplying heroin and the Crown had applied for a confiscation order under the 1995 Act. The Crown submitted that, since confiscation orders did not constitute a separate criminal offence, Art 6(2) of the Convention could not grant him the presumption of innocence in respect of such an action.

The High Court of Justiciary, Lord Kirkwood dissenting, approved McIntosh’s submission and issued a declaration to that effect and, in so doing, threatened the efficacy of the whole confiscation policy.

In December 2000, the Court of Appeal in England, sitting with Lord Chief Justice Woolf on the panel, had the opportunity to consider the effect of the HRA on the assumptions relating to confiscation powers in the case of R v Benjafield and Others (2001). In the Court of Appeal’s opinion, the express reversal of the burden of proof in confiscation proceedings amounted to a substantial interference with the normal presumption of innocence. However, it held that parliament had adequately balanced the defendant’s interests against the public interest and cited the fact that the question of confiscation only arose after conviction and that the court should not make a confiscation order when there was a serious risk of injustice. It also considered that the court’s role in the appeal procedure ensured that there was no unfairness to the individual concerned. As in the Privy Council’s decision in Brown, the Court of Appeal held that where the discretion given to the court and prosecution was properly exercised, it was justifiable as a reasonable and proportionate response to a substantial public interest. In so doing, it declined to apply the High Court of Justiciary’s decision in McIntosh, preferring the approach of the Privy Council in Brown.

When the further appeal in the McIntosh case came before the Privy Council in February 2001, the decision of the Scottish appeal court was unanimously overturned on two grounds:

  • the confiscation order was not by way of a criminal action and therefore the assumptions were not in contravention of Art 6(2). An application for a confiscation order did not, of itself, lay a criminal charge against the convicted defendant. Although the court could assume that such a defendant had been involved in drug trafficking, there were no statutory assumptions as to a defendant’s guilt for drug-trafficking offences;
  • in addition, and more generally, Art 6(2) was not an absolute right and therefore, following Brown, could justifiably be encroached upon by the proportionate enactment of a democratically elected Parliament in the pursuit of its anti-crime policy.

In reaching this decision, the Privy Council expressly approved the Court of Appeal’s decision in R v Benjafield.

Subsequently, in Phillips v UK, decided in July 2001, the ECtHR concurred with the decision of the Privy Council in McIntosh by holding, by a majority of five to two, that the confiscation procedure under the Drug Trafficking Act 1994 was not contrary to European Convention rights and, unanimously, that in any event the provisions of the Act represented a proportionate response to the problem under consideration.

Finally, when R v Benjafield came on appeal to the House of Lords, it felt comfortable in following the decisions and reasoning in both McIntosh and Phillips. At the same time, the House of Lords also applied that reasoning to confiscation procedure under the Criminal Justice Act 1988 in R v Rezvi (2002).

The courts’ power to make confiscation orders was extended under the Proceeds of Crime Act (PCA) 2002, which came into full effect in March 2003.

Judicial interpretation of statutes under s 3 of the HRA

R v A (2001)

It has long been a matter of concern that in cases where rape has been alleged, the common defence strategy employed by lawyers has been to attempt to attack the credibility of the woman making the accusation. Judges had the discretion to allow questioning of the woman as to her sexual history where this was felt to be relevant, and in all too many cases this discretion was exercised in a way that allowed defence counsel to abuse and humiliate women accusers. Section 41 of the Youth Justice and Criminal Evidence Act (YJCEA) 1999 placed the court under a restriction that seriously limited evidence that could be raised in cross-examination of a sexual relationship between a complainant and an accused. Under s 41(3) of the 1999 Act, such evidence was limited to sexual behaviour ‘at or about the same time’ as the event giving rise to the charge that was ‘so similar’ in nature that it could not be explained as a coincidence.

In R v A, the defendant in a case of alleged rape claimed that the provisions of the YJCEA 1999 were contrary to Art 6 of the ECHR to the extent that they prevented him from putting forward a full and complete defence. In reaching its decision, the House of Lords emphasised the need to protect women from humiliating cross-examination and prejudicial but valueless evidence in respect of their previous sex lives; it nonetheless held that the restrictions in s 41 of the 1999 Act were prima facie capable of preventing an accused from putting forward relevant evidence that could be crucial to his defence.

However, rather than make a declaration of incompatibility, the House of Lords preferred to make use of s 3 of the HRA to allow s 41 of the YJCEA 1999 to be read as permitting the admission of evidence or questioning relating to a relevant issue in the case where it was considered necessary by the trial judge to make the trial fair. The test of admissibility of evidence of previous sexual relations between an accused and a complainant under s 41(3) of the 1999 Act was whether the evidence was so relevant to the issue of consent that to exclude it would be to endanger the fairness of the trial under Art 6 of the ECHR. Where the line is to be drawn is left to the judgment of trial judges. In reaching its decision, the House of Lords was well aware that its interpretation of s 41 did a violence to its actual meaning, but it nonetheless felt it within its power so to do. The words of Lord Steyn are illustrative of this process:

In this way, the House of Lords restored judicial discretion as to what can be raised in cross-examination in rape cases. It is to be hoped, sincerely but without much conviction on the basis of past history, that it is a discretion that will be exercised sparingly and sympathetically.

The acquittal of the footballer Ched Evans on a charge of rape brought the foregoing issues to prominence in October 2016. Evans had originally been found guilty of the offence and had served more than two years in prison, when he successfully applied to the Court of Appeal to have his case retried on the basis of the ‘similar facts’ defence, which allowed the alleged victim’s sexual history to be questioned in the court.

Re S (2002)

In Re S, the Court of Appeal used s 3 of the HRA in such a way as to create new guidelines for the operation of the Children Act 1989, which increased the courts’ powers to intervene in the interests of children taken into care under the Act. This extension of the courts’ powers in the pursuit of the improved treatment of such children was achieved by reading the Act in such a way as to allow the courts increased discretion to make interim rather than final care orders, and to establish what were referred to as ‘starred milestones’ within a child’s care plan. If such starred milestones were not achieved within a reasonable time, then the courts could be approached to deliver fresh directions. In effect, what the Court of Appeal was doing was setting up a new, and more active, regime of court supervision in care cases.

The House of Lords, however, although sympathetic to the aims of the Court of Appeal, felt that it had exceeded its powers of interpretation under s 3 of the HRA and, in its exercise of judicial creativity, it had usurped the function of parliament.

Lord Nicholls explained the operation of s 3:

The Human Rights Act reserves the amendment of primary legislation to Parliament. By this means the Act seeks to preserve parliamentary sovereignty. The Act maintains the constitutional boundary. Interpretation of statutes is a matter for the courts; the enactment of statutes are matters for Parliament… [but that any interpretation which] departs substantially from a fundamental feature of an Act of Parliament is likely to have crossed the boundary between interpretation and amendment.

Unfortunately, the Court of Appeal had overstepped that boundary.

Mendoza v Ghaidan (2002)

In Mendoza v Ghaidan (2002), the Court of Appeal used s 3 to extend the rights of same-sex partners to inherit a statutory tenancy under the Rent Act 1977. In Fitzpatrick v Sterling Housing Association Ltd (1999), the House of Lords had extended the rights of such individuals to inherit the lesser assured tenancy by including them within the deceased person’s family. It declined to allow them to inherit statutory tenancies, however, on the grounds that they could not be considered to be the wife or husband of the deceased as the Act required. In Mendoza, the Court of Appeal held that the Rent Act, as it had been construed by the House of Lords in Fitzpatrick, was incompatible with Art 14 of the ECHR on the grounds of its discriminatory treatment of surviving same-sex partners. The court, however, decided that the failing could be remedied by reading the words ‘as his or her wife or husband’ in the Act as meaning ‘as if they were his or her wife or husband’. Mendoza is of particular interest in the fact that it shows how the HRA can permit lower courts to avoid previous and otherwise binding decisions of the House of Lords. It also clearly shows the extent to which s 3 increases the powers of the judiciary in relation to statutory interpretation.

In spite of this potential increased power, the House of Lords found itself unable to use s 3 in Bellinger v Bellinger (2003). The case related to the rights of transsexuals and the court found itself unable, or at least unwilling, to interpret s 11(c) of the Matrimonial Causes Act 1973 in such a way as to allow a male to female transsexual to be treated in law as a female. Nonetheless, the court did issue a declaration of incompatibility (see below for explanation).

Declarations of incompatibility under s 4 of the HRA

As has been stated previously, the courts are not able to declare primary legislation invalid, but, as an alternative, they may make a declaration that the legislation in question is not compatible with the rights provided by the ECHR.

The first declaration of incompatibility was actually issued in R v (1) Mental Health Review Tribunal, North & East London Region (2) Secretary of State for Health ex p H in March 2001. In that case, the Court of Appeal held that ss 72 and 73 of the Mental Health Act 1983 were incompatible with Art 5(1) and (4) of the ECHR inasmuch as they reversed the normal burden of proof, by requiring the detained person to show that they should not be detained rather than the authorities to show that they should be detained.

R v Secretary of State for the Environment, Transport and the Regions ex p Holding & Barnes plc and others (2001)

In this case, the House of Lords overturned an earlier decision of the Administrative Court that had called into question the operation of the planning system under the Town and Country Planning Act 1990. Under the Act, the ultimate arbiter in relation to planning decisions was the Secretary of State. The Administrative Court held that, as a member of the executive, determining policy, the Secretary of State should not be involved in the quasi-judicial task of deciding applications. It followed, therefore, that the operation of the planning system was contrary to the right to a fair hearing by an independent tribunal as provided for under Art 6 of the ECHR.

In overturning that decision, the House of Lords unanimously decided that the planning process was human rights compatible. In their Lordships’ view, the possibility of judicial review was sufficient to ensure compliance with Art 6(1) of the ECHR, even though it could only remedy procedural rather than substantive deficiencies.

Indeed, their Lordships showed some displeasure at the manner in which Art 6 had been deployed in an attempt to undermine the democratically elected Secretary of State by seeking to pass the power to make policy decisions from him to the courts. Both Lords Slynn and Hoffmann quoted the words of the European Commission in ISKCON v UK (1994) with approval:

It is not the role of Article 6 of the Convention to give access to a level of jurisdiction which can substitute its opinion for that of the administrative authorities on questions of expediency and where the courts do not refuse to examine any of the points raised…

Even more pointedly, Lord Hoffmann commented that:

The Human Rights Act 1998 was no doubt intended to strengthen the rule of law but not to inaugurate the rule of lawyers.

2.5.1.4 The politics of the Human Rights Act

Historically, the Conservative Party argued against the enactment of the Human Rights Act (HRA) by the Labour government in 1998, on the grounds that it diminished the power of parliament and gave too much power to the unelected judiciary. In October 2009, in an article in the tabloid paper The Sun, the leader of the then opposition party, David Cameron, reaffirmed the Conservative Party’s opposition to the HRA and promised that, if elected, he would replace it with a British Bill of Rights. However, subsequently, in 2010, on forming a coalition government with the Liberal Democrat Party, which was committed to the HRA, Cameron appeared to drop any proposals to repeal the Act

Nonetheless, rumblings of discontent continued to emanate from some parts of the Tory party. Thus in October 2011, at the Conservative Party annual conference, the then Home Secretary, Theresa May, reasserted her party’s antagonism to the HRA, stating that it ‘had to go’. In her notorious ‘catgate’ speech she justified the attack on the Act as follows:

We all know the stories about the Human Rights Act. The violent drug dealer who cannot be sent home because his daughter – for whom he pays no maintenance – lives here. The robber who cannot be removed because he has a girlfriend. The illegal immigrant who cannot be deported because – and I am not making this up – he has a pet cat.

Regrettably for the Home Secretary and the truth, an examination of the transcripts of the case in point revealed that ownership of a cat was not actually the ground for refusing the deportation order and her claims were ridiculed as laughable by the then Justice Secretary Ken Clarke. Clarke subsequently had to apologise and was subsequently replaced by Chris Grayling, who, while in opposition – and like his leader David Cameron – famously announced that he was in favour of tearing up the HRA and replacing it with a British document.

At the Conservative Party annual conference in September 2013, Theresa May reasserted her attack on the Human Rights Act and even went as far as accusing the judiciary of using their powers under the Act ‘to put the law on the side of foreign criminals instead of the public’. She further promised that her party’s next manifesto would promise to scrap ‘Labour’s’[sic] Human Rights Act and that ‘if leaving the European Convention is what it takes to fix our human rights laws, that is what we should do.’

Given what had been stated previously, and no doubt as a way of reasserting its right of centre credentials in the face of the challenge from UKIP, it was not unexpected that at the Conservative Party conference of 2014 various statements were made by May, Grayling and Cameron that they were prepared to withdraw from the European Convention on Human Rights (ECHR) after the upcoming election in 2015.

However, following the victory of the Conservative Party in that election, the previous statements and proposals were discounted as pre-election hyperbole when the subsequent Queen’s speech on the opening of the new parliamentary session made only passing reference to the Human Rights Act. A subsequent plan to ‘fast-track’ a British Bill of Rights into UK law was not even attempted as the focus of political attention moved to the ‘Brexit’ referendum conducted in June 2016. The result of the referendum led to the appointment of a new Prime Minister, Theresa May and a new Justice Minister, Liz Truss. The latter confirmed the government’s commitment to replacing the Human Rights Act with a British Bill of Rights which she maintained would ‘protect our rights but in a better way’.

Few commentators shared the optimism of the new government as regards the likelihood of such a Bill securing an unobstructed passage through parliament, given the number of potential hazards in its way. Among these, in no particular order of danger, may be cited the government’s slender 12 vote majority in the House of Commons and the stated opposition of some of its own members to the proposal, its overall lack of a majority in an antagonistic House of Lords, the stated opposition of the Scottish parliament with its now overwhelmingly strong representation at Westminster, and the fact that the Human Rights Act was an integral part to the intergovernmental Good Friday agreement which saw the establishment of the current settlement in Northern Ireland. All of these problems will be compounded by the ongoing Brexit negotiations when they are eventually triggered.

2.5.2 Human Rights and Anti-Terrorism Legislation

It is almost commonplace that the recognition of human rights is most sorely tested when those claiming the protection of those rights might not otherwise meet with sympathetic treatment. Thus it is the argument of those who would repeal the Human Rights Act that it is used as a block on the pursuit of substantive law and order by shyster lawyers who recognise its utility as a means of protecting the rights of criminals, prisoners, illegal immigrants and other supposedly blameworthy or morally dubious individuals at the expense of the rights of the good, and no doubt God-fearing (in a non-Islamic way), moral majority. However, it is precisely the universality and non-contingent nature of human rights, the fact that they are, or at least should be, an attribute of every person, irrespective of status, class, race, gender, religion or political belief, that provides the foundation for the very theory of human rights. It might also be said that the extent to which the universality of human rights is recognised and applied to even ‘the undeserving’ is the test of the very humanity of a society and its legal system.

What follows requires a consideration of perhaps the most essential tension between the courts, in their recognition and application of human rights, and the state in its desire to protect what it perceives as the public interest through controlling those it considers a threat to that public interest: a tension between judiciary and legislature, and perhaps one that prefigures future tension between the fairly recently established Supreme Court and parliament.

Anti-terrorism, Crime and Security Act 2001

Following the terrorist attack on the World Trade Center on 11 September 2001, the UK parliament introduced the Anti-terrorism, Crime and Security Act (ACSA) 2001. This Act allowed for the detention, without charge, of non-UK citizens suspected of terrorist activities, but who could not be repatriated to their own countries because of fear for their well-being.

Such a provision was clearly contrary to Art 5 of the ECHR. Consequently, the government was required to enter a derogation from the Convention by virtue of the Human Rights Act 1998 (Designated Derogation) Order 2001, the justification for the derogation being that the prospect of terrorism following 11 September 2001 threatened the life of the nation.

SIAC hearings and special advocates

The Special Immigration Appeals Commission (SIAC) was empowered under the ACSA 2001 to hear appeals in relation to decisions taken under it. The SIAC originally had been established by the Special Immigration Appeals Commission Act 1997 in response to a decision of the ECtHR in Chahal v UK (1997), in relation to the political deportations. Hearings before the SIAC are conducted on both an open basis and a closed basis. In the former, anyone can attend, but in the latter, which deal with matters of state security, not only the public but also the detained persons and their lawyers are excluded and therefore have no access to, let alone the possibility of challenging, the evidence used against them. In closed session, the detainees are represented by special advocates who are lawyers with clearance to access secret and security documents. These special advocates are neither appointed by the people they represent, nor are they at liberty to divulge any information to them. (See, further, Justice and Security Act 2013, p 73).

The Belmarsh cases

This title refers to a number of cases that focused on the issues of the compatibility of ACSA 2001 with the European Convention on Human Rights and the compliance with the convention of orders made under its auspices.
A v Secretary of State for the Home Department (SIAC and the Court of Appeal) (2002)

In July 2002, the SIAC held that the ACSA 2001 was not in compliance with the anti-discriminatory provisions of Art 14 of the Convention to the extent that it treated non-nationals differently from UK nationals.

The then Home Secretary, David Blunkett, attacked the SIAC decision and it was subsequently overturned by the Court of Appeal. According to the Court of Appeal, the case concerned an example of what is referred to as the ‘area of due deference’ within which the courts will ‘defer on democratic grounds to the considered opinion of the elected body or person whose actual decision is said to be incompatible with the Convention’. As the Home Secretary was better qualified than the courts to decide what action had to be taken to safeguard national security, the courts should not intervene.

The approach of the Court of Appeal in this case was reminiscent of the quiescent attitude of previous courts when faced with the exercise of executive power. Perhaps the classic example of such subservience is to be found in Liversidge v Anderson (1942) in which a majority of the House of Lords approved the power of the Home Secretary to imprison a person without trial under wartime defence regulations. Lord Atkin, in the minority, famously railed against the granting of such uncontrolled power to the Home Secretary and accused his fellow members of the House of Lords of being ‘… more executive-minded than the executive’.

A v Secretary of State for the Home Department (House of Lords) (2004)

Somewhat surprisingly a further appeal to the House of Lords resulted in a crushing judgment against the Act and an undisguised and unmitigated rebuke to the government and its anti-terrorism policies. The strength of the decision was almost startling, especially in the light of the previously more accommodating decisions of the Court of Appeal in relation to state policy. The case was heard by a panel of nine Law Lords, Lord Steyn having stood down from the appeal because he had previously expressed the view that the derogation was unjustified, and it was decided by a majority of eight to one, only Lord Walker dissenting, that the ACSA was incompatible with the provisions of the ECHR.

Although the House of Lords recognised the deference due to the government and parliament and accepted that the government had been entitled to conclude that there was a public emergency, it nonetheless concluded that the response to the perceived threat had been disproportionate and incompatible with the rights under the ECHR.

The House pointed out the illogicality at the heart of the Act for, if the potential threat to the security of the UK by UK nationals suspected of being al-Qaida terrorists could be addressed without infringing their right to personal liberty, then why could not similar measures be used to deal with any threat presented by foreign nationals.

The House of Lords also held that ss 21 and 23 of the Act were disproportionate for the general reason that the provisions did not rationally address the threat to the security of the UK presented by al-Qaida terrorists.

As a result, the House of Lords decided that s 23 of the ACSA was incompatible with Art 5 and Art 14 of the ECHR and appropriately quashed the Derogation Order 2001, as it was secondary rather than primary legislation.

While the preceding report of A v Secretary of State for the Home Department provides an objective account of the House of Lords’ decision, it does little to reflect the intensity of feeling expressed in the individual judgments of those involved in the case, which can only be appreciated through the words of the judges involved. While the leading judgment of Lord Bingham, the senior Law Lord, was delivered in measured, if critical, terms, it cannot but be recognised that some of the other members of the judicial panel expressed themselves in such florid language as to lay themselves open to the accusation of ‘showboating’ – an expression used to indicate a mixture of self- and over-indulgence.

The most patently (over-)rhetorical judgment was delivered by Lord Hoffmann, of which the following quotation is merely one example:

95.… Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom. When Milton urged the government of his day not to censor the press even in time of civil war, he said:

‘Lords and Commons of England, consider what nation it is whereof ye are, and whereof ye are the governors’

96. This is a nation which has been tested in adversity, which has survived physical destruction and catastrophic loss of life. I do not underestimate the ability of fanatical groups of terrorists to kill and destroy, but they do not threaten the life of the nation. Whether we would survive Hitler hung in the balance, but there is no doubt that we shall survive Al-Qa’ida.

However, perhaps the most overtly political speech was that of Lord Scott, which contained the following passages:

142.… The making of such a declaration [of incompatibility] will not, however, affect in the least the validity under domestic law of the impugned statutory provision. The import of such a declaration is political not legal.

154.… The Secretary of State is unfortunate in the timing of the judicial examination in these proceedings of the ‘public emergency’ that he postulates. It is certainly true that the judiciary must in general defer to the executive’s assessment of what constitutes a threat to national security or to ‘the life of the nation’. But judicial memories are no shorter than those of the public and the public have not forgotten the faulty intelligence assessments on the basis of which United Kingdom forces were sent to take part, and are still taking part, in the hostilities in Iraq.

155.… Indefinite imprisonment in consequence of a denunciation on grounds that are not disclosed and made by a person whose identity cannot be disclosed is the stuff of nightmares, associated whether accurately or inaccurately with France before and during the Revolution, with Soviet Russia in the Stalinist era and now associated, as a result of section 23 of the 2001 Act, with the United Kingdom (emphasis added).

It is significant to note that these speeches were delivered before the murderous bombings in London on 7 July 2005, or perhaps the rhetorical flourishes might have been more controlled. In any event, the House of Lords’ decision, in what has become known as the Belmarsh case, represented a general exercise in judicial activism in relation to the executive power, but its declaration of incompatibility together with the quashing of the derogation order left the government with a particular problem: whether it would be able to renew the provisions of the ACSA in March 2005, as was required by the Act itself. When it became apparent that there was no such possibility, the government introduced new procedures for dealing with suspected terrorists under the Prevention of Terrorism Act 2005 (PTA 2005).

Prevention of Terrorism Act 2005 and control orders

The Act as eventually passed dealt with one of the shortcomings of the ACSA by widening the provisions of the previous legislation to control all terrorist-related activity, irrespective of nationality or indeed the particular cause the terrorists supported. But perhaps even more essentially, it did not attempt to continue the detention without trial regime under the ACSA, which was replaced with a new system of ‘control orders’. These control orders were to be of two distinct types; derogating and non-derogating in relation to the ECHR.

Derogating control orders

As its title suggests, this type of control order required derogation from ECHR because it deprived the person affected of their liberty by requiring them to remain in a particular place at all times. It was equivalent to house arrest and consequently it clearly infringes the person’s rights under Art 5 of the ECHR. In the event no derogation orders were ever sought.

Non-derogating control orders

This type of control order allowed the Home Secretary to impose a range of controls over people’s activities from a ban on the use of mobile phones or the internet, to control of the movement of the individuals including the imposition of curfews and the use of tagging for the purposes of monitoring those curfews.

The 2005 Act retained the role of the special advocate, who was expected to support the interests of the suspect in regard to material that neither the accused nor his chosen legal representatives were allowed access to.

Any breach of a control order, without reasonable excuse, was a criminal offence punishable on indictment by imprisonment of up to five years.

The legal effect of non-derogation control orders issued under the PTA 2005 were considered by the House of Lords in a series of related appeals, the decisions in which were delivered in three judgments at the end of October 2007.

The maximum length of control orders

In the first, Secretary of State for the Home Department v JJ and others (2007), the issue was whether an order imposing an 18-hour curfew, coupled with other restrictions on the activities of those subject to the orders, amounted to deprivation of liberty and consequently were contrary to Art 5 of the ECHR. In deciding the question, the court recognised the distinction between the unqualified right to liberty and the qualified rights of freedom of movement, communication and association provided under the ECHR as previously expressed by the ECtHR.

The general effect of the particular control orders in question were summarised by the Court of Appeal in para 4 of its judgment as follows:

The obligations imposed by the control orders are set out in annex I to Sullivan J’s judgment. They are essentially identical. Each respondent is required to remain within his ‘residence’ at all times, save for a period of six hours between 10 am and 4 pm. In the case of GG the specified residence is a one-bedroom flat provided by the local authority in which he lived before his detention. In the case of the other five respondents the specified residences are one-bedroom flats provided by the National Asylum Support Service. During the curfew period the respondents are confined in their small flats and are not even allowed into the common parts of the buildings in which these flats are situated. Visitors must be authorised by the Home Office, to which name, address, date of birth and photographic identity must be supplied. The residences are subject to spot searches by the police. During the six hours when they are permitted to leave their residences, the respondents are confined to restricted urban areas, the largest of which is 72 square kilometres. These deliberately do not extend, save in the case of GG, to any area in which they lived before. Each area contains a mosque, a hospital, primary health care facilities, shops and entertainment and sporting facilities. The respondents are prohibited from meeting anyone by prearrangement who has not been given the same Home Office clearance as a visitor to the residence.

In addition, the controlled persons were required to wear an electronic tag and to report to a monitoring company on first leaving their flat after a curfew period and on returning to it before a curfew period. They were forbidden to use or possess any communications equipment of any kind except for one fixed telephone line in their flat maintained by the monitoring company. They were at liberty to attend a mosque of their choice if it was in their permitted area and approved in advance by the Home Office. A request by JJ to study English at a college outside his area was refused.

At first instance Sullivan J held that the cumulative effect of the obligations placed on the respondents went far beyond the mere restriction of liberty, recognised as potentially legitimate by the ECtHR, and was such as to deprive them of their liberty in breach of Art 5 of the Convention. As a result, Sullivan J held that the Secretary of State had had no power to make an order that was incompatible with Art 5 of the ECHR and any such purported order had to be treated as a nullity and totally ineffective.

Sullivan J’s decision was subsequently approved by the Court of Appeal and, on further appeal to the House of Lords, it was decided by a majority of three to two that neither the judge at first instance nor the Court of Appeal had erred in their legal reasoning and the House of Lords expressly approved their rulings. In the view of the House, the effect of the 18-hour curfew, coupled with the effective exclusion of social visitors meant that the men subject to the control orders were practically in solitary confinement for an indefinite duration. Further, the House of Lords confirmed that as the control orders were a nullity, the defects in them could not be cured by the court simply amending the content of the provisions as was argued for by the Secretary of State.

Of the majority of the House of Lords who held that the control orders amounted to a deprivation of liberty, Lord Bingham and Baroness Hale were content simply to hold that the 18-hour curfew was contrary to Art 5 without considering the possibility of an alternative period that would count as merely a restriction on, rather than a deprivation of, liberty and hence be lawful. However, Lord Brown suggested that a 16-hour curfew period would be an acceptable limit.

The second of the linked cases, Secretary of State for the Home Department v MB & AF (2007) also concerned the issues considered in JJ and on this occasion the House of Lords unanimously held that a curfew of 14 hours with related restrictions did not amount to a deprivation of liberty. Consequently, if 14 hours did not count as a deprivation of liberty on the basis of AF, and 18 hours did amount to such a deprivation as in JJ, then Lord Brown’s 16 hours appeared to be the appropriate time limit for curfews under PTA 2005 control orders.

However, in Secretary of State for the Home Department v AP (2010), which concerned someone subject to a control order confined to a flat for 16 hours a day in a Midlands town 150 miles away from his family in London, Lord Brown subsequently clarified/retracted his original suggestion.

In AP the Supreme Court unanimously decided that conditions that might be proportionate restrictions upon Art 8 rights to respect for private and family life can ‘tip the balance’ in relation to Art 5, which guarantees the right to liberty and security. In other words, the court should take account of the effect of any restrictions in deciding whether a control order amounts to a deprivation of liberty. However, in the leading judgment Lord Brown stated that:

I nevertheless remain of the view that for a control order with a 16-hour curfew (a fortiori one with a 14-hour curfew) to be struck down as involving a deprivation of liberty, the other conditions imposed would have to be unusually destructive of the life the controlee might otherwise have been living (emphasis added).

The use of torture to extract evidence

After release from Guantanamo Bay, former detainees brought civil claims against UK ministers and intelligence agencies, alleging that the authorities had been complicit in their unlawful imprisonment and the abuse they received while in captivity. Initially, the High Court allowed the possibility of the state raising a defence to the civil action based on evidence that could not be openly disclosed to the claimants. However, the Court of Appeal forcefully rejected such a possibility as being a fundamental breach of the common law.

A v Secretary of State for the Home Department (2005)

During the hearing relating to the appeals against their detention under the provisions of ACSA in October 2003, SIAC stated that the fact that evidence against the detainees had, or might have been, obtained through torture inflicted by foreign officials, but without the complicity of the British authorities, could be used in determining the outcome of the cases. SIAC held that while the use of torture might affect the weight to be given to the evidence, its source did not render it legally inadmissible.

On appeal the Court of Appeal confirmed the approach previously taken by SIAC, holding by a majority that it would be contrary to the exercise of the statutory power and unrealistic to expect the Home Secretary to investigate each statement relied on, in order to determine whether it had been produced as a result of torture.

Subsequently a seven-strong panel of the House of Lords heard a further appeal on two issues. The first related to the question as to whether evidence produced through torture could be used in any circumstances. The second related to the burden of proof in relation to showing whether or not torture had been used to produce the evidence in question.

In relation to the first issue, the House was unanimous in its disapproval of the previous approaches of SIAC and the Court of Appeal. It was clear under the common law and under international law that no evidence obtained as a result of torture could be used, even if the torture was conducted by another state, without the complicity of the United Kingdom authorities. While parliament might have the power to approve the use of torture evidence, it had not done so through ACSA. This general view is encapsulated in the words of Lord Bingham at para 52:

… it would of course be within the power of a sovereign Parliament (in breach of international law) to confer power on SIAC to receive third-party torture evidence. But the English common law has regarded torture and its fruits with abhorrence for over 500 years, and that abhorrence is now shared by over 140 countries which have acceded to the Torture Convention. I am startled, even a little dismayed, at the suggestion (and the acceptance by the Court of Appeal majority) that this deeply-rooted tradition and an international obligation solemnly and explicitly undertaken can be overridden by a statute and a procedural rule which make no mention of torture at all.

However, as to the second issue the House of Lords divided 4:3, with the majority holding that SIAC should only not admit evidence if it concluded, on a balance of probabilities that it was obtained by torture. If SIAC was in doubt as to whether the evidence was obtained by torture, then it should admit it, but it should bear its doubt in mind when evaluating the evidence.

On the other hand, a strongly argued minority opinion held that SIAC should refuse to admit evidence if it was unable to conclude that there was not a real risk that the evidence had been obtained by torture. If it was in doubt whether the evidence had been procured by torture, then the commission should exclude the evidence.

The majority did, however, state that the individual defendant would not be expected to shoulder the entire burden of demonstrating that a particular piece of evidence stated to justify their certification and detention was obtained by torture. According to Lord Hope, the defendant would only be required to raise the issue that the information used against them might have come from a country suspected of practising torture, after which the task of assessing the matter would be passed to SIAC itself.

Lord Rodger, rather naïvely, described how ‘those in the relevant department who were preparing a case for a SIAC hearing would sift through the material, on the lookout for anything that might suggest torture had been used’, and as he later pointed out (para 143, emphasis added):

The Home Secretary accepted that he was under a duty to put any such material before the Commission. With the aid of the relevant intelligence services, doubtless as much as possible will be done. And SIAC itself will wish to take an active role in suggesting possible lines of inquiry.

Consequently defendants could rest assured, confident in the understanding that those who were seeking to have them detained would do everything in their power to ensure that the evidence against them was free from any taint of torture. Perhaps Lord Bingham deserves the final cutting comment on the flawed reasoning of the majority in the House of Lords:

My noble and learned friend Lord Hope proposes, in paragraph 121 of his opinion, the following test: is it established, by means of such diligent enquiries into the sources that it is practicable to carry out and on a balance of probabilities, that the information relied on by the Secretary of State was obtained under torture? This is a test which, in the real world, can never be satisfied. The foreign torturer does not boast of his trade. The security services, as the Secretary of State has made clear, do not wish to imperil their relations with regimes where torture is practised. The special advocates have no means or resources to investigate. The detainee is in the dark. It is inconsistent with the most rudimentary notions of fairness to blindfold a man and then impose a standard which only the sighted could hope to meet. The result will be that, despite the universal abhorrence expressed for torture and its fruits, evidence procured by torture will be laid before SIAC because its source will not have been ‘established’ (at para 59, emphasis added).

The Terrorism Prevention and Investigation Measures Act 2011

In January 2011 the Home Secretary announced the government’s intention with regard to the future of the control order regime, after some reportedly tense negotiations with her coalition partners in the Liberal Democrat party. The generally accepted assessment of the proposals was that they were a political compromise, which did little to live up to promises of the previous rhetorical claims as to a more liberal regime, with some commentators referring to the proposal as ‘control order lite’.

The subsequent Terrorism Prevention and Investigation Measures Act 2011 included the following provisions:

  • the new laws are permanent, doing away with the requirement for parliament to renew them on an annual basis;
  • the replacement for the control order regime are to be known as Terrorism Prevention and Investigation Measures (TPIMs);
  • there will be a two-year limitation on TPIMs, but they may be extended if new information emerges that leads the Home Secretary to believe that the person is still a danger;
  • the Secretary of State must now have ‘reasonable grounds to believe’ rather than ‘reasonable grounds to suspect’ that a person may pose a terrorist threat;
  • the Secretary of State is required to seek the court’s permission before imposing the measures, except in the most urgent cases where the notice must be referred immediately to the court for confirmation;
  • the previous curfew requirements were replaced by ‘overnight residence’ requirements;
  • electronic tagging and restrictions on travel were retained;
  • greater access to the internet, phones and personal meetings is allowed.

Nonetheless, the Terrorism Prevention and Investigation Measures Act 2011 retains the power to relocate individuals to another part of the country without consent under powers for the Secretary of State to impose enhanced TPIM notices. This, essentially emergency, power may only be used when Parliament is not in session, i.e. between the dissolution of a Parliament and the first Queen’s Speech of the next Parliament.

Protection of Freedoms Act 2012

This Act relaxed a number of provisions introduced by the previous government. Among other measures (it has 121 sections and 10 schedules), the Act:

  • introduced a new regime for police ‘stop and searches’ under the Terrorism Act 2000;
  • reduced the maximum pre-charge detention period under the Terrorism Act from 28 to 14 days;

The Justice and Security Act 2013

The embarrassment suffered by the government as a result of the consideration of sensitive security-related material in open court in actions taken against it by former prisoners imprisoned by the United States at Guantanamo Bay fostered its determination to prevent such embarrassment in the future. The result was a Justice and Security Green Paper issued in October 2011, which allowed a relatively short time for consultation, closing in January 2012. Although the Green Paper was subject to much criticism, rather than issue a White Paper to allow further consideration, the government preferred to publish its Justice and Security Bill in May 2012 which subsequently became an Act in 2013. The Act has three purposes:

  • the oversight of the Security Service, the Secret Intelligence Service, the Government Communications Headquarters and other activities relating to intelligence or security matters;
  • the provision for closed material procedure in relation to certain civil proceedings;
  • the prevention of making certain court orders for the disclosure of sensitive information; and for connected purposes.

Part 2 of the Act contains the most immediately controversial material, in that s 6 makes provision to enable the Secretary of State to apply to the court for a ‘closed material procedure’ (CMP) in certain civil proceedings in the courts. This is essentially an extension to other civil courts of the procedure previously considered in relation to SIAC under which the detained person and their legal representatives are prevented from hearing, and of course challenging, evidence presented to the court in their absence. Section 9 similarly allows for the appointment of special advocates to protect the interest of the detained person (see p 65). The minister triggers the process by deciding that a closed material procedure is needed, and applying to the judge, who decides whether to allow it or not. The judge must grant the application if one of the parties to the proceedings would be required to disclose material in the proceedings and the disclosure would be damaging to national security.

It has been suggested by supporters of the CMP that it will improve accountability and oversight on the ground that it will actually allow highly sensitive intelligence information to be heard in private as opposed to being completely excluded under a public interest immunity certificate, as is the case at present.

Section 17 relates to what are known as Norwich Pharmacal orders (NPOs). Such court orders apply in civil proceedings where one party seeks the disclosure of information from another party in order to identify the proper defendant, support their case or establish their defence to an action (Norwich Pharmacal Co. & Others v Customs and Excise Commissioners (1974)). The essential point, however, is that the involvement of the party required to provide the information may well be completely innocent, but nonetheless they are still required to supply the information, where it is deemed necessary in the interests of justice. It was on the basis of such a Norwich Pharmacal order that Binyam Mohamed, the leading Guantanamo Bay claimant, had gained access to the documents required to support his action against the UK security services.

Section 17 requires that a court may not order the disclosure of information sought if the information is sensitive information.

What is covered by the term ‘sensitive information’ is defined in sub-section 17(3) as information:

  • (a) held by an intelligence service;
  • (b) obtained from, or held on behalf of, an intelligence service;
  • (c) derived in whole or part from information obtained from, or held on behalf of, an intelligence service;
  • (d) relating to an intelligence service; or
  • (e) specified or described in a certificate issued by the Secretary of State, in relation to the proceedings, as information which should not [be] ordered to disclose[d].

Such a provision goes a very long way to completely emasculating the operation of Norwich Pharmacal orders in matters relating to state security, much, one can only imagine, to the great delight of the government and the security services.

In considering the potential effect of what is now s 1[7], Fiona de Londras of University College Dublin School of Law commented:

The collapse of Syria, the emergence of ISIL and ongoing instability in Iraq led to the enactment of the Counter-terrorism and Security Act 2015. The Act contains provisions aimed at disrupting those intending to join the fighting by:

Chapter Summary: The Rule of Law and Human Rights

Various writers have different understandings of what the concept actually means, but see it essentially as involving a control of arbitrary power – Dicey, Hayek, Thompson, Raz, Unger and Weber.

The essential question is whether the UK is still governed under the rule of law, and of course the conclusion depends on the original understanding of the rule of law: Hayek and Thompson would have said not; Raz would say it was. Sir Stephen Sedley has a view as to the continued operation of the rule of law, which is based on substantive equality and challenges previous legal thought. Current judicial thought may be taken from the detailed consideration of the rule of law provided by the late Lord Bingham.

Separation of Powers

The judges and the executive in the separation of powers have distinct but interrelated roles in the constitution. The question arises as to the extent to which the courts can act to control the activities of the executive through the operation of judicial review. The position of the Lord Chancellor as judge and member of the government has been questioned by many, including the current government.

The Human Rights Act 1998

The HRA incorporates the ECHR into domestic UK law. The Articles of the ECHR cover the following matters:

  • the right to life (Art 2);
  • prohibition of torture (Art 3);
  • prohibition of slavery and forced labour (Art 4);
  • the right to liberty and security (Art 5);
  • the right to a fair trial (Art 6);
  • the general prohibition of the enactment of retrospective criminal offences (Art 7);
  • the right to respect for private and family life (Art 8);
  • freedom of thought, conscience and religion (Art 9);
  • freedom of expression (Art 10);
  • freedom of assembly and association (Art 11);
  • the right to marry (Art 12);
  • prohibition of discrimination (Art 14).

The incorporation of the ECHR into UK law means that UK courts must decide cases in line with the above Articles. This has the potential to create friction between the judiciary and the executive/legislature.
The Structure of the Human Rights Act 1998

Section 2 requires future courts to take into account any previous decision of the ECtHR.

Section 3 requires all legislation to be read so far as possible to give effect to the rights provided under the Convention.

Section 4 empowers the courts to issue a declaration of incompatibility where any piece of primary legislation is found to conflict with the rights provided under the Convention.

Section 6 declares it unlawful for any public authority to act in a way that is incompatible with the Convention.

Section 7 allows the ‘victim of the unlawful act’ to bring proceedings against the public authority in breach.

Section 8 empowers the court to grant such relief or remedy against the public authority in breach of the Act as it considers just and appropriate.

Section 10 provides for fast-track remedial legislation where an Act of Parliament has been declared incompatible with Convention rights.

Section 19 of the Act requires that the minister responsible for the passage of any Bill through Parliament must make a written statement as to whether its provisions are compatible with Convention rights.

Cases Decided under the Human Rights Act 1998

Cases relating to s 3 powers:

  • R v A (2001);
  • Re S (2002);
  • Mendoza v Ghaidan (2003).

Cases relating to declarations of incompatibility:

  • R v (1) Mental Health Review Tribunal, North & East London Region (2001);
  • Wilson v Secretary of State for Trade and Industry (2003);
  • A v Secretary of State for the Home Department (2004).

Cases relating to sentencing:

  • R v Secretary of State for the Home Department ex p Anderson and Taylor (2002);
  • A v Secretary of State for the Home Department (2005).

Cases relating to anti-terrorism legislation:

  • A v Secretary of State for the Home Department (2002) & (2004);
  • Secretary of State for the Home Department v JJ and others (2007);
  • Secretary of State for the Home Department v AP (2010);
  • Secretary of State for the Home Department v MB & AF (2007);
  • Al Rawi & Ors v Security Service & Ors (2010);
  • A v Secretary of State for the Home Department (2005);
  • Mohamed, R (on the application of) v Secretary of State for Foreign & Commonwealth Affairs 1 & 2 (2010).

Food for Thought

  1. Consider what exactly is meant by the rule of law. Is it simply a matter of legal rules or does it connote something else? For example, Nazi Germany was notoriously legalistic, but were the legal rules it introduced and applied really the outcome of the rule of law?
  2. Consider the distinction between the form and substance of the law. Is law ‘right’ simply because it has been introduced in the appropriate manner? If not, what grounds are there for criticising such law?
  3. Consider the nature of human rights. What are they exactly and where do they come from? Would people have no human rights if there were no formal legal provisions, such as the Human Rights Act, recognising them?
  4. Is it ever justifiable to torture suspects to acquire information? If not, why not? If it is, what limits can/should be placed on its use and who should regulate its use?
  5. Some commentators and politicians complain that the Human Rights Act has increased the power of the judges. To what extent is this correct, and if it is correct, how has that been achieved, and is it a matter to be concerned about?
  6. Human rights are currently politically controversial, with many members of the Conservative Party actively seeking the repeal and replacement of the Human Rights Act with a purely domestic Bill of Rights. To what extent is this proposal welcome, or feasible, in the current political/social context?

Further Reading

Anti-Social Behaviour Orders: Analysis of the First Six Years, 2004, London: National Association of Probation Officers

Bennion, F, ‘A naked usurpation?’ (1999) 149 NLJ 421

Bingham, T (Lord), ‘The Way We Live Now: Human Rights in the New Millennium’, Earl Grey Memorial Lecture [1998] 1 Web JCLI

Bingham, T (Lord), The Rule of Law, 2010, London: Allen Lane

Dicey, AV, Introduction to the Law of the Constitution, 1885, London: Macmillan

Feldman, D, ‘The Human Rights Act and constitutional principles’ (1999) 19(2) JLS, June

Fenwick, H, Civil Liberties and Human Rights, 4th edn, 2007, Abingdon: Routledge-Cavendish

Fenwick, H, Masterman, R and Phillipson, G (eds), Judicial Reasoning under the UK Human Rights Act, 2011, Cambridge: CUP

Fine, R, Democracy and the Rule of Law, 1984, London: Pluto

Hayek, FA von, The Road to Serfdom, 1944, London: Routledge

Hill, C, Liberty Against the Law, 1996, Harmondsworth: Penguin

Horowitz, MJ, ‘The Rule of Law: an unqualified good?’ (1977) 86 Yale LJ 561

Kairys, D (ed), The Politics of Law: A Progressive Critique, 1990, London: Pantheon

Kavanagh, A, ‘Judging the judges under the Human Rights Act: deference, disillusionment and the “war on terror”’ [2009] PL 287–304

Keating, D, ‘Upholding the Rule of Law’ (1999) 149 NLJ 533

Laws, J (Sir), ‘Law and democracy’ [1995] PL 72

Locke, J, The Treatises of Government, 1988, Cambridge: CUP

Raz, J, ‘The Rule of Law and its virtue’ (1977) 93 LQR 195

Rozenberg, J, ‘Upholding the Rule of Law’ (2009) 106(6) Law Soc Gazette 8

Sedley, S (Sir), Freedom, Law and Justice, 1998, Hamlyn Lectures, London: Sweet & Maxwell

Sedley, S (Sir), ‘Human rights: a 21st century agenda’ [1995] PL 386

Steiner, H and Alston, P, International Human Rights in Context, 3rd edn, 2007, Oxford: OUP

Steyn (Lord), ‘Civil liberties in modern Britain’ [2009] PL 228–36

Thompson, A, ‘Taking the right seriously: the case of FA Hayek’, in Fitzpatrick, P (ed), Dangerous Supplements, 1991, London: Pluto

Thompson, E, Whigs and Hunters, 1975, Harmondsworth: Penguin

Wadham, J, ‘Rights and responsibilities’ (2009) 106(39) Law Soc Gazette 8

Young A, ‘R (Evans) v Attorney General – the Anisminic of the 21st Century?’, UK Const L Blog (31 March 2015) (available at http://ukconstitutionallaw.org)

Young, J, ‘The politics of the Human Rights Act’ (1999) 26(1) JLS 27

Zander, M, ‘The Prevention of Terrorism Act 2005’ (2005) 155 NLJ 438

Useful Websites

http://ukconstitutionallaw.org
The United Kingdom Constitutional Law Association (UKCLA) is the UK’s national body of constitutional law scholars affiliated to the International Association of Constitutional Law. Its object is to ‘encourage and promote the advancement of knowledge relating to United Kingdom constitutional law (broadly defined) and the study of constitutions generally’.

www.coe.int/en/
The Council of Europe site – it includes all the decisions of the Commission on Human Rights, the Court of Human Rights and the Committee of Ministers back to 1951.

www.equalityhumanrights.com
The official website for the Equality and Human Rights Commission.

www.lse.ac.uk/collections/LSEPublicLecturesAndEvents/pdf/20060222-Goldsmith.pdf
An online transcript of ‘Government and the Rule of Law in the Modern Age’, a lecture given in 2006 by The Rt Hon Lord Goldsmith QC, Attorney General.

Companion Website ifig0001

Now visit the companion website to:

www.routledge.com/cw/slapper