<<

. 57
( 155 .)



>>

Reading of the Bill

(a) make a statement to the effect that in his view the provisions of the Bill are compatible
with the Convention rights (˜a statement of compatibility™); or
(b) make a statement to the effect that although he is unable to make a statement of
compatibility the government nevertheless wishes the House to proceed with the Bill.
273 The European dimensions


Section 10 raises concerns about ministerial powers to legislate (considered in
connection with the separation of powers in chapter 2); section 19 reminds us
that when we think about the impact of the Human Rights Act we must think
not only of its impact on the case law of the courts but also of its impact on
legislation and on parliamentary a¬airs generally (see below). Two points
are worth making about section 19: the ¬rst is that it applies only to primary
legislation. It does not apply to delegated legislation (although Explanatory
Memorandums accompanying a¬rmative instruments do, as a matter of
practice, include statements of ministerial views as to compatibility with
Convention rights). The second is that ministers do not have to give reasons as
to why they consider that a bill is or is not compatible with Convention rights.
As a matter of practice the explanatory notes that accompany bills do now
include such reasons, but this is not a requirement of the Human Rights Act.
(In this section we have endeavoured only to outline the broad scheme of the
Act. More detailed consideration of the relationship between human rights law
and the sovereignty of Parliament may be found in chapter 2; discussion of the
impact of the HRA on the law and practice of judicial review may be found in
chapter 10; and analysis of the contribution made by the Human Rights Act
to the protection of liberty in Britain may be found in chapter 11. For a thor-
ough exposition, see R Clayton and H Tomlinson, The Law of Human Rights
(2nd edn 2006).)

(iii) Impact thus far of the Human Rights Act 1998
In this section we will outline something of the overall impact of the Human
Rights Act thus far. We will start with its impact on legislation and on
Parliament, before moving on to consider its impact on case law.
While the section 19 statements (above) are undoubtedly important, the
more pressing reminder within Parliament of the importance of compliance
with European human rights standards has come from the impressive and per-
sistent work of Parliament™s Joint Committee on Human Rights. The commit-
tee was established with e¬ect from January 2001. Among other tasks, it
examines the compatibility with human rights of all bills introduced in
Parliament. The committee™s ¬rst legal adviser, David Feldman, has written
that, as a result of the section 19 statements and, even more, as a result of the
work of the Committee, ˜human rights are gaining in in¬‚uence, particularly at
the drafting stage of legislation™.

D Feldman, ˜The impact of human rights on the UK legislative process™
(2004) 25 Statute LR 91, 93

Fewer initiatives seemed to me to give rise to serious human rights concerns in Bills intro-
duced in the 2002“03 session of Parliament than was the case in 2000“01 or 2001“02. Fewer
provisions are now drafted in ways that leave rights subject, in my view, to inadequate
safeguards. Of course, this could be because of changes in the subject-matter of the Bills,
274 British Government and the Constitution


but even in relation to Bills operating in similar fields the position is, I think, improving. For
example, compare the Criminal Justice and Police Bill of 2000“01 with the Criminal Justice
Bill of the 2002“03 session, and two differences stand out: first, the relatively small propor-
tion of controversial policy initiatives in the later Bill as originally introduced that gave rise
to serious concerns of incompatibility with human rights (although other concerns arose as
a result of amendments during the passage of the Bill through the House of Commons); and
secondly, the greater clarity and facility with which Departments are now able to respond to
human rights queries. Both these features indicate to me that human rights are being more
fully considered, and planned into the Bill, at an earlier stage now than was the case four
years ago.


Feldman cites a number of examples of bills that were substantially amended as
a result of concerns expressed by, and pressure exerted by, the Committee. In
the Anti-terrorism, Crime and Security Bill 2001, the Government was forced
to concede that the Home Secretary must have reasonable grounds for suspect-
ing that someone is an international terrorist before ordering his inde¬nite
detention (following the House of Lords judgment in A v Secretary of State for
the Home Department [2004] UKHL 56, [2005] 2 AC 68 this procedure was
repealed and replaced with a regime of ˜control orders™ by the Prevention of
Terrorism Act 2005; for further analysis of the passage of the Anti-terrorism,
Crime and Security Act 2001, see Tomkins, ˜Legislating against terror™ [2002]
PL 205). In the Criminal Justice and Police Bill 2001 provisions permitting
various bodies to share information for the purposes of criminal investigations
had to be withdrawn in order for the Government to push the legislation
through before Parliament was dissolved in preparation for the general election
of that year. When similar provisions were reintroduced in the Anti-terrorism,
Crime and Security Bill they were attended with safeguards that had been absent
from the earlier Bill. Another accommodation was made in the Enterprise Bill
2002. As Feldman reports (pp 104“5):

The Bill made provision for courts to make interim enforcement orders (sometimes called
˜Stop Now orders™) to halt allegedly unlawful activities of traders in carrying on business in
breach of various legal requirements. In certain circumstances, the orders could be made
ex parte and without notice to the trader. Although an interim order would not determine
the trader™s civil rights and obligations [within the meaning of Article 6 ECHR], or any crim-
inal charge, it could disrupt the trader™s ability to carry on business. This would engage
the right to quiet enjoyment of possessions under Article 1 of Protocol 1 to the ECHR [an
Article which is incorporated into domestic law under the Human Rights Act]. The Joint
Committee on Human Rights considered the safeguards in the Bill. It was particularly
concerned that the Bill did not expressly require the person applying for an order to make
full disclosure to the judge of all relevant matters, including those favouring the trader. The
Department took the view that the judge would insist on such disclosure, treating the appli-
cation as analogous to an application for an injunction in civil proceedings. The Committee
275 The European dimensions


was not convinced . . . and therefore reported . . . that it was concerned that the safeguards
in the Bill would be insufficient to ensure respect for rights under Article 1 of Protocol 1. After
giving further consideration to the issue, the Department agreed to move an amendment to
the Bill, and the Act now expressly imposes an obligation on the applicant to make full dis-
closure to the judge.


As Feldman states, this is a ˜small™ example of making legislation responsive
to human rights. Where matters are more politically controversial, where
there is more, politically, at stake, or even where the matter is more high
pro¬le, Parliament and its human rights committee have found it considerably
more di¬cult to make a telling impact. The Government has shown itself to be
more receptive to taking on board human rights considerations earlier rather
than later in the legislative process. This has a welcome aspect, as Feldman
states, as ˜the growing trend towards public consultation, and particularly pub-
lishing Bills in draft for consultation before ¬nalizing them and introducing
them to Parliament, increases the possibility of making in¬‚uential contribu-
tions on the protection of human rights™ (p 107). Feldman cites two examples
of where this has worked well: with regard to the draft Extradition Bill and with
regard to the draft Mental Health Bill, both in 2002.
Assessing the impact of the Human Rights Act on domestic case law and on
the jurisprudence of the domestic courts is something of a treacherous exercise.
It is too soon, of course, to come to a de¬nitive conclusion. Early assessments,
respectively negative and positive, are o¬ered by two of the protagonists in the
argument preceding enactment of the HRA as to whether Britain needed a Bill
of Rights: see KD Ewing, ˜The futility of the Human Rights Act™ [2004] PL 829
and Lord Lester, ˜The utility of the Human Rights Act™ [2005] PL 249 (Professor
Ewing was opposed to Britain having a Bill of Rights modelled on the ECHR
while Lord Lester was in favour). See also B Dickson, ˜Safe in their hands?
Britain™s Law Lords and human rights™ (2006) 26 LS 329.
One impact that the Human Rights Act has already had is to alter the
grounds on which the courts will review the legality of government and admin-
istrative action. R (Daly) v Secretary of State for the Home Department [2001]
2 AC 532 is an important decision of the House of Lords, the e¬ect of which is
to incorporate into domestic law notions of proportionality derived from
European human rights law. Before this decision, proportionality was a ground
of judicial review that English courts were largely sceptical of, on the basis that
it is too intrusive into decisions that are better left to government (see eg, the
comments of Lord Donaldson MR in the Court of Appeal and Lord Ackner in
the House of Lords in R v Secretary of State for the Home Department, ex p Brind
[1991] 1 AC 696, 722 and 762, respectively). After Daly, however, proportion-
ality has come centre-stage, at least in cases in which it is argued that a
Convention right has been breached. This will be examined in more detail
in chapter 10.
276 British Government and the Constitution


A further impact that the Human Rights Act may well have is to increase the
availability of damages and compensation as judicial remedies in public law. As
we shall see later in this chapter, this is also a feature of EU law. Damages and
compensatory remedies have not traditionally played a major role in British
public law, which has tended to focus instead on remedies declaratory of the legal
position and on orders which seek to quash or to prevent unlawful administra-
tive action. Section 8 of the Human Rights Act, however, empowers courts to
award damages in respect of breaches of Convention rights where the court con-
siders it to be ˜just and appropriate™ (see Anufrijeva v Southwark LBC [2004] QB
1124 and R (Green¬eld) v Secretary of State for the Home Department [2005]
1 WLR 673 (HL); for commentary see Amos (2001) 21 LS 1, Fairgrieve [2001]
PL 695 and Clayton [2005] PL 429; see also Scotland Act 1998, section 100).
Another impact may come in the law of standing. At the moment, in English
law, litigants may seek judicial review whenever they have a ˜su¬cient interest™
in the matter. This requirement has been interpreted broadly by the English
courts (see further chapter 10; the position in Scots law is di¬erent, and the test
for standing in judicial review is considerably narrower “ see Lord Hope [2001]
PL 294). Under the Human Rights Act, s 7, litigants may bring proceedings only
if they are the ˜victim™ of a breach, or of a potential breach, of Convention rights.
This is the same test as is used in the Convention itself, and may result in a nar-
rowing of the English law of standing.
This is all very well, but the Human Rights Act was hardly enacted for the
principal purpose of altering either the law of remedies or the law of standing.
Such changes as these, important as they may be, are secondary in comparison
with the core purpose of the HRA, which was, of course, to enhance the
protection of the human rights or civil liberties which the Convention covers.
It is assessing the impact of the Human Rights Act on this score that is perhaps
most di¬cult. What di¬erence has the Act made? What value has it added to the
protection in Britain of rights and liberties?
There are some cases where the courts have gone out of their way to minimise
the Act™s impact. For example, the courts have been anxious to ensure that the
HRA may not be used to undermine or overturn Britain™s system of adminis-
trative justice. Much welfare provision, for example, is determined by local or
central government o¬cials, rather than by independent and impartial judges.
On one, arguably overly literalistic interpretation, such a position could be
seen to violate Article 6(1) of the Convention, which provides that ˜civil rights
and obligations™ are to be determined by an ˜independent and impartial
tribunal™, not by government o¬cials. In a pair of important House of Lords
judgments their Lordships were eager to construct a reading of Article 6
requirements which did not alter these sorts of schemes: R (Alconbury)
v Secretary of State for the Environment [2003] 2 AC 295 and Begum v Tower
Hamlets LBC [2003] 2 AC 430.
There are other cases where the HRA has not made the impact that the civil
liberties campaigners who argued that Britain needed a Bill of Rights might
277 The European dimensions


have hoped for. A good example is R v Shayler [2003] 1 AC 247. This case was
a challenge to the compatibility with Article 10 ECHR of certain provisions of
the O¬cial Secrets Act 1989. At the time of its enactment critics saw the 1989
Act as one of the Thatcher Government™s most obnoxious assaults on freedom
of political expression (see eg, Gri¬th (1989) 16 JLS 273). Section 1 of the 1989
Act makes it a criminal o¬ence for a member or former member of the security
and intelligence services to disclose any information relating to security or intel-
ligence which came into that person™s possession by virtue of his employment
in the services. No damage to Britain™s national security need actually (or even
potentially) be caused by the disclosure and it is no defence to a charge under
section 1 that the disclosure was in the public interest (on the ground that, for
example, it revealed corruption in the services). In Shayler the House of Lords
ruled that, notwithstanding the breathtaking scope of this section, it did not
breach the protection of freedom of expression a¬orded by Article 10. Another
case in the same category is R (Gillan) v Metropolitan Police Commissioner
[2006] UKHL 12, in which the House of Lords ruled that what had been
described in a lower court as the ˜extraordinary™ and ˜sweeping™ stop and search
powers contained in the Terrorism Act 2000 (ss 44“7) may lawfully be used
in the context of the police stopping apparently peaceful protesters from
approaching an international arms fair to protest against Britain™s involvement
in the arms trade. The appellants™ argument that the powers should be read
as being available only where there were reasonable grounds for considering
that their use was necessary and suitable for the prevention of terrorism was
dismissed.
In contrast to Shayler and Gillan, the best known and most important case to
date in which the Human Rights Act has been used to promote individual
liberty is, without doubt, the extraordinary decision of the House of Lords in
A v Secretary of State for the Home Department [2004] UKHL 56, [2005] 2 AC
68: ˜extraordinary™ because the case goes against a long line of case law dating
back to the First World War in which the courts have declined to overturn
government decisions made on the basis of perceived threats to national
security. In A the House of Lords, by a majority of eight to one, held that the
power contained in the Anti-terrorism, Crime and Security Act 2001 to detain
suspected international terrorists inde¬nitely without charge was in violation of
Articles 5 and 14 ECHR (respectively, the right to liberty and the right to
freedom from discrimination). The invasion of liberty was held to be dispro-
portionate, while the fact that only foreign nationals (and not British nationals)
could be detained in this manner was unlawfully discriminatory, their
Lordships ruled. The case has been heralded as a great vindication of the
Human Rights Act (see Lord Lester [2005] PL 249) but we should be wary of
premature celebration (for further analysis of the case, see Tomkins [2005]
PL 259 and the collection of articles at (2005) 68 MLR 654). Their Lordships™
decision was followed by further legislation (the Prevention of Terrorism Act
2005), which replaced the impugned power to detain with a broad range of
278 British Government and the Constitution


powers to impose ˜control orders™, orders which may be imposed by the gov-
ernment not only on foreign nationals but also on British nationals. A number
of control orders have since been found by the courts to have been unlawfully
made, although (at the time of writing) the statutory powers to make them
have not been declared to be incompatible with Convention rights (see Secretary
of State for the Home Department v JJ and others [2006] EWHC 1623 (Admin)
(Sullivan J), approved by the Court of Appeal at [2006] EWCA Civ 1141).
This is, however, a ¬‚uid area, which may well see further development in the
near future. (See further chapter 11.)


2 The European Union
For the remainder of this chapter we shall consider the impact on the British
constitution of the United Kingdom™s membership of the European Union. Our
discussion of this sometimes di¬cult but centrally important aspect of consti-
tutional law will be divided into four main parts. We start with a general
overview of the European Union, of its development and of its purposes. We
then consider the structure of the European Union, its institutions and its law-
making procedures. Thirdly, we outline some of the main principles of EU law
to have had an impact on the constitutional law of the Member States: here we
consider the principles of supremacy, of direct and indirect e¬ect and of state
liability, among other matters. In the ¬nal part we examine the key British
legislation and case law that has sought to address these issues and to accom-
modate them within the fabric of the British constitution. As we shall see, mem-
bership of the European Union has had an unprecedented impact on law and
administration in the United Kingdom, and has raised issues concerning such

<<

. 57
( 155 .)



>>