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In December 1965, the first Wilson government decided to accept the right of individual peti-
tion and the jurisdiction of the European Court of Human Rights to rule on cases brought by
individuals against the United Kingdom. It was to prove to be a momentous decision, for it
meant that, in fact if not in a formal sense, political (if not legal) sovereignty was hence-
forth to be shared with the European institutions created by the Convention. In spite of the
importance of the decision and its controversial implications in making Acts of Parliament
subject to [the] judicial review [of the Court of Human Rights], the matter was not discussed
in Cabinet or in a Cabinet Committee. Unlike the decision to join the European Community
and make Community law directly effective in our courts, Parliament was not asked to
legislate . . .
In January 1966, when the right of individual petition was accepted for the United Kingdom,
the Convention was a sleeping beauty (or slumbering beast, depending upon one™s view-
point). The staff of the European Commission of Human Rights were building confidence in
the system among governments, overcoming objections based upon their concern to preserve
national sovereignty over domestic legal systems, so as to encourage them to accept the right
of individual petition. The European Court of Human Rights had by then decided only two
cases. No one foresaw how the Court™s jurisprudence would develop or what a powerful
impact its case law would have upon the British constitutional and legal system . . .
[Since that time] there have been [more than] one hundred and thirty judgments of the
European Court finding breaches by the UK, many of them controversial and far-reaching.
They include: the inhuman treatment of suspected terrorists in Northern Ireland; inadequate
safeguards against telephone tapping by the police; unfair discrimination against British
wives of foreign husbands under immigration rules; unjust restrictions upon prisoners™
correspondence and visits; corporal punishment in schools; corporal punishment by a
stepfather; criminal sanctions against private homosexual conduct; the exclusion of homo-
sexuals from the armed services; the lack of legal recognition of transsexuals; ineffective
judicial protection for detained mental patients, or would-be immigrants, or individuals
facing extradition to countries where they risk being exposed to torture or inhuman treat-
ment, or homosexuals whose private life is infringed; the dismissal of workers because of
the oppressive operation of the closed shop; interference with free speech by unnecessarily
maintaining injunctions restraining breaches of confidence, or because of a jury™s award of
excessive damages for libel, or by punishing a journalist for refusing to disclose his confi-
dential source; the right to have a detention order under the Mental Health Act reviewed;
parental access to children; access to child care records; review of continuing detention of
those serving discretionary life sentences and mandatory life sentences; access to legal
advice for fine and debt defaulters; unfair court martial procedures; lack of availability of
legal aid in some criminal cases; and lack of access to civil justice.
268 British Government and the Constitution


This is a somewhat breathless list, but it indicates the range of issues in
respect of which the United Kingdom has been required to alter its law “ or at
least its practice “ because of the in¬‚uence of European human rights law.
Conor Gearty, in a compelling analysis, has suggested that the core of the
ECHR™s in¬‚uence can be reduced to three main areas: the ¬rst is due process, or
the procedural safeguards a¬orded to individuals in criminal, civil or adminis-
trative law; the second is the protection of minority groups, most notably pris-
oners or those detained under mental health legislation, in respect of which
there has been a considerable volume of Strasbourg case law emanating from
the United Kingdom; and the third is what Gearty calls the protection of ˜tra-
ditional civil liberties™ such as privacy, freedom of expression and freedom of
assembly. In this category there are relatively few cases “ in the period Gearty
surveyed (from the earliest case law until 1995) there were only four cases from
the United Kingdom concerned with free speech, for example. (See C Gearty,
˜The United Kingdom™, in C Gearty (ed), European Civil Liberties and the ECHR:
A Comparative Study (1997).)
A good example of a case in Gearty™s ¬rst category is Brogan v United
Kingdom (1988) 11 EHRR 117, in which the Court held that a provision of the
(now repealed) Prevention of Terrorism Act 1984 allowing detention without
charge for up to seven days violated Article 5(3) of the Convention, which
provides that those arrested or detained should be brought ˜promptly before
a judge™. Unfortunately the British Government™s response to this judgment was
to derogate from the Convention, arguing that the troubles of Northern Ireland
rendered the requirements of Article 5(3) inapplicable. Equally unfortunately,
the European Court of Human Rights later upheld the legality of the deroga-
tion (see Brannigan and McBride v United Kingdom (1993) 17 EHRR 539;
on derogations from the Convention, see Article 15 ECHR and see further
chapter 11. On Brannigan and McBride, see Marks (1995) 15 OJLS 69). The
Government withdrew the derogation in February 2001 after the Terrorism Act
2000 had repealed the earlier legislation and made provision for extensions of
detention to be authorised by a judicial o¬cer.
Perhaps the best known example of a case in Gearty™s second category is
Golder v United Kingdom (1975) 1 EHRR 524. While Golder was an inmate in
a British jail he wished to sue a prison o¬cer for libel, but the authorities refused
him permission to consult a solicitor. After his release Golder took the case to
Strasbourg, where the Court ruled that the authorities™ action had infringed
both Golder™s right under Article 8(1) of the Convention to respect for his
correspondence (part of the right to privacy) and his right under Article 6(1) to
access to the courts (part of the right to a fair trial). The Government™s response
was to amend the Prison Rules so as to allow a prisoner ˜to correspond with
a solicitor for the purpose of obtaining legal advice concerning any cause of
action in relation to which the prisoner may become a party to civil proceed-
ings or for the purpose of instructing the solicitor to issue such proceedings™.
(In more recent times prisoners™ rights have received rather more robust
protection from the domestic courts than was normal at the time Golder was
269 The European dimensions


decided. A number of the more important cases decided in light of the Human
Rights Act 1998 have concerned prisoners™ rights, and may be seen to continue
the work started in Golder: see eg, R v Secretary of State for the Home
Department, ex p Simms [2000] 2 AC 115 (above, p 62) and R (Daly) v Secretary
of State for the Home Department [2001] 2 AC 532 (chapter 10).)
Finally, a good example of a case in Gearty™s last category is Sunday Times
v United Kingdom (1979) 2 EHRR 245. The Sunday Times wished to publish an
article alleging that Distillers, a pharmaceutical company, had taken insu¬cient
care before putting the drug thalidomide on the market. Thalidomide was
a sedative that had been prescribed to numerous pregnant women, many of
whom then gave birth to babies with severe deformities. At the material time
almost 400 negligence actions had been brought against Distillers. The Attorney
General brought proceedings seeking an injunction preventing the Sunday
Times from running its story. The House of Lords granted the injunction,
holding that it would be in contempt of court for a newspaper to publish an
article where there was a possibility that publication would prejudice legal pro-
ceedings (see Attorney General v Times Newspapers [1974] AC 273). The Sunday
Times took the matter to Strasbourg, where the European Court of Human
Rights ruled that the test applied by the House of Lords failed to give su¬cient
weight to the newspaper™s freedom of expression. The Government™s reaction
was to place much of the law of contempt of court (which had previously been
largely common law) on a statutory footing, the new Contempt of Court Act
1981 changing the test so that publication could be prevented in the future only
where there was a substantial risk of serious prejudice to legal proceedings
(s 2(2)). (Other important cases in this category include Malone v United
Kingdom (1984) 7 EHRR 14, concerned with telephone tapping and considered
in chapter 2, and the ˜Spycatcher™ cases, concerned with the restrictions sought
by the Thatcher Government on the publication of the memoirs of a former
Security Service (MI5) o¬cer: see Observer and Guardian v United Kingdom
(1991) 14 EHRR 153 and Sunday Times v United Kingdom (No 2) (1991)
14 EHRR 229.)
These examples illustrate something of the range of responses that the British
Government has taken to judgments of the European Court of Human Rights
where the Court has found a violation of the Convention. In the ¬rst, the
Government derogated and the o¬ensive provision of the Prevention of
Terrorism Act continued in force; in the second the defect was cured by a change
in the Prison Rules (delegated legislation made under the authority of the
Prison Act); and in the third a new Act of Parliament was passed. The Contempt
of Court Act 1981 is far from the only statute to have been directly in¬‚uenced
by a judgment of the European Court of Human Rights. Other examples
include the Interception of Communications Act 1985 (which followed the
ruling in Malone; see now the Regulation of Investigatory Powers Act 2000);
the Mental Health Act 1983, the Education (No 2) Act 1986, the Criminal Justice
Act 1991, the Special Immigration Appeals Commission Act 1997, as well as
numerous others. The Human Rights Act 1998, section 10, authorises the use
270 British Government and the Constitution


of ˜fast-track™ remedial action by ministerial order to amend legislation that has
been held to be incompatible with Convention rights.
It is also to be noted that not all of the cases outlined here concerned legisla-
tive violations of the Convention. It was the common law judgment of the House
of Lords that was found wanting in the Sunday Times case, as it was the
common law of breach of con¬dence that was found to be violative of the right
to freedom of expression in the ˜Spycatcher™ cases. For all their embracement of
human rights since the 1998 Act, British judges have not always been the keenest
practitioners of European human rights standards, as these cases illustrate.
When it is the common law that is found wanting in Strasbourg, the response
may be to enact legislation to replace the common law (as with the Contempt
of Court Act 1981) or it may be to issue a Practice Direction or some similar
instruction so that the common law may change course. Under the Human
Rights Act 1998, section 2, domestic courts are, in all cases concerning
Convention rights, required to take into account the judgments and decisions
of the European Court of Human Rights. Domestic courts are not required to
follow or to implement the judgments of the European Court, but they are at
least required to take them into account.


(b) Domestic influence of the ECHR
So much for the impact of decisions of the European Court of Human Rights
on our constitutional a¬airs. What remains to be considered is the in¬‚uence of
the Convention within the case law of the domestic courts. This is a matter that
has, of course, been completely transformed by the Human Rights Act 1998
(HRA). Accordingly, we will consider ¬rst the position within domestic law
before the HRA, before moving to consider the present position.

(i) Before the Human Rights Act 1998
The mere conclusion of a treaty by the Crown cannot itself e¬ect any alteration
in the domestic law of the United Kingdom. Since the Convention came into
force on 3 September 1953 its provisions have been binding on the United
Kingdom in international law, but prior to the entry into force of the Human
Rights Act 1998 they did not have direct internal legal e¬ect and were not
enforceable by the courts of this country: R v Secretary of State for the Home
Department, ex p Brind [1991] 1 AC 696.
Even though the domestic courts could not enforce the terms of the
Convention, however, this does not mean to say that the Convention had no indi-
rect e¬ect on domestic courts before the HRA. Indeed, in the period before the
HRA the English courts were neither oblivious of the existence of the Convention
nor unreceptive to the principles it embodies (Scots courts, by contrast, were
considerably more resistant to the in¬‚uence of the Convention: in Kaur v Lord
Advocate 1980 SC 319 it was ruled that Scots courts should not have regard to the
Convention even in cases of statutory ambiguity. This line was overturned only
271 The European dimensions


in 1997: see T, Petitioner 1997 SLT 724.) English courts applied the ˜prima facie
presumption that Parliament does not intend to act in breach of international
law, including therein speci¬c treaty obligations™: Salomon v Customs and Excise
Comrs [1967] 2 QB 116, 143 (Diplock LJ). Accordingly if a statutory provision
was ambiguous or unclear, the courts would interpret it in the sense that was
more consonant with the provisions of the Convention (see eg, Waddington
v Miah [1974] 1 WLR 683). As Lord Bridge remarked in R v Secretary of State for
the Home Department, ex p Brind, above, at 747“8, ˜it is already well settled that,
in construing any provision in domestic legislation which is ambiguous in the
sense that it is capable of a meaning which either conforms to or con¬‚icts with
the Convention, the courts will presume that Parliament intended to legislate in
conformity with the Convention, not in con¬‚ict with it™.
The courts also showed an increasing willingness to take account of the
European Convention in developing the common law, sometimes taking the
view that provisions of the Convention marched with or were an articulation
of principles underlying the common law (see eg, Rantzen v Mirror Group
Newspapers [1994] QB 670, 691). The Convention was seen as having a partic-
ular relevance when questions of legal or public policy had to be determined:
see, for example, Blathwayt v Lord Cawley [1976] AC 397, 425“6; Cheall
v APEX [1983] QB 126, 146; R v Chief Metropolitan Stipendiary Magistrate, ex p
Choudhury [1991] 1 QB 429. In Derbyshire County Council v Times Newspapers
[1992] QB 770 the Court of Appeal ruled that when developing a previously
unclear rule of common law, the courts must have regard to relevant provisions
of the Convention. The House of Lords, while agreeing with the Court of
Appeal in the result, did not expressly endorse this reasoning, however
(see [1993] AC 534). Further remarks about the relationship between domestic
law and the Convention were uttered in various of the ˜Spycatcher™ cases:
Attorney General v Guardian Newspapers [1987] 1 WLR 1248 and Attorney
General v Guardian Newspapers Ltd (No 2) [1990] 1 AC 109.
A limit was reached with the Brind case, however, in which the House of Lords
unanimously ruled that breach of the Convention did not, of itself, constitute a
ground of judicial review. That is to say, until the Human Rights Act it could not
be argued in a domestic court that government ministers or other public author-
ities had acted unlawfully solely because they had acted in a way that was in
breach of a Convention right: see R v Secretary of State for the Home Department,
ex p Brind [1991] 1 AC 696. Under domestic law as it stood before the HRA, judi-
cial review was available only where it could be shown that government ministers
or other public authorities had acted illegally, irrationally or procedurally
unfairly. (The law of judicial review is discussed in more detail in chapter 10.)

(ii) Human Rights Act 1998: its general scheme
The scheme of the HRA is to incorporate most of the substantive provisions of
the European Convention into domestic law, with the e¬ect that these become
directly enforceable by British courts. The Scotland Act 1998 likewise makes
272 British Government and the Constitution


Convention rights enforceable against the Scottish Parliament and against the
Scottish Ministers. It is to be noted that not quite all of the substantive provi-
sions of the Convention are incorporated: in particular, Article 13 of the
Convention, the right to an e¬ective remedy, is not incorporated (for the con-
sequences of this, see chapter 10). The provisions of the Convention are incor-
porated in two main ways. The ¬rst regards Parliament and the second
government and other public authorities. As we saw in chapter 2, sections 3
and 4 of the HRA govern the relationship between Convention rights and Acts
of Parliament. Section 3(1) provides that ˜So far as it is possible to do so,
primary legislation and subordinate legislation must be read and given e¬ect in
a way which is compatible with the Convention rights™. Section 4 provides that,
if a court is satis¬ed that a provision of primary legislation is incompatible with
a Convention right, the court ˜may make a declaration of that incompatibility™.
Such a declaration ˜does not a¬ect the validity, continuing operation or enforce-
ment of the provision in respect of which it is given™ (section 4(6)(a)). Thus, as
we saw in chapter 2, courts in the United Kingdom do not have the power, even
after the Human Rights Act, to strike down Acts of Parliament which they deem
to be incompatible with Convention rights. All they may do is ˜declare™ the
incompatibility. It is then a matter for Parliament to decide whether it wishes to
continue with the legislation, to amend it or to replace it.
Section 6 of the HRA governs the relationship between Convention rights
and the government and other public authorities. It provides that ˜It is unlawful
for a public authority to act in a way which is incompatible with a Convention
right™. This provision e¬ectively overturns the ruling in Brind (above) and
makes breach of a Convention right a ground of judicial review in domestic law.
It is to be noted that it is only the text of certain Convention Articles that is
incorporated under the HRA. The case law of the European Court of Human
Rights is not incorporated, although, as we saw above, section 2 of the HRA pro-
vides that domestic courts must take it into account in appropriate cases. This
means that the techniques of interpretation employed by the European Court
need not be followed by our domestic courts (see further on this matter chapter
10).
Two further provisions of the HRA should be noted at this stage: section 10,
which empowers ministers to make orders amending legislation where that leg-
islation has been found to be violative of a Convention right; and section 19,
which provides that:


A Minister of the Crown in charge of a Bill in either House of Parliament must, before Second

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