Before the Human Rights Act: The Role of the Judiciary in Protecting Human Rights in Britain

This is the first of a series of talks I gave between 1997 and 2000 in an effort to explain, in reasonably intelligible terms, the changes which the explicit introduction of human rights law into our national law were likely to bring about.

It is difficult to remember now how rapidly we had to adjust to a new way of looking at those issues in the public law field which raised human rights considerations. I remember that when Lord Denning, unprompted by any argument by counsel, cited Article 11 of the European Convention on Human Rights (“ECHR”) to justify allowing an officer of an unincorporated trade union to address the Court of Appeal[1], I was very unfamiliar with the contents of the Convention and its possible effect on judicial decision-making in our national courts.

This 1997 talk, composed the year after I joined the Court of Appeal in 1996, shows how rapidly I had moved up the learning curve in the ensuing 15 years. At that time I was a member of the British Council’s Law Advisory Committee which advised the Council on the best ways of advancing “rule of law” based projects through their overseas offices.  Every year the Council would invite very able young European lawyers to undertake a familiarisation course in the UK, and this conference, held at a castle outside Cologne was an annual gathering of about 30 German alumni from this series of courses.

It was at about the same time that the Judicial Studies Board organised a seminar on human rights law for the senior judiciary in the Lord Chief Justice’s court, when the three seats on the Bench were occupied by the Norwegian president of the European Court of Human Rights, a judge from the Netherlands who was very familiar with Strasbourg and Luxembourg jurisprudence, and our own Lord Scarman, who had fought a lonely battle in favour of incorporating the ECHR into our national law and who was now, like Moses on Mount Pisgah, wondering whether he would reach the Promised Land in his lifetime. The Lord Chief Justice occupied the seat usually occupied by the clerk of his court.

I did not need any special skills in prophecy when I said in December 1997 that when the new Human Rights Bill became law there would from time to time be a political explosion about a judicial decision, and a lot of fur and feathers would start flying about on the topic of judges getting too big for their boots.

An address given near Cologne in 13th December 1997 at a reunion of German lawyers who had attended one of the British Council courses for young lawyers in England

I am a judge of the Court of Appeal in England and Wales, and I will be talking to you today about the role of the judiciary in protecting human rights in that jurisdiction. Law and procedure in Scotland and Northern Ireland are slightly different in places, although we have a single supreme court in the House of Lords, but in general the role of the judges in those two countries is similar to that of the judges in England.

To-day I am in the middle of a very fast-moving scene. There can be no doubt that when we hear appeals in England to-day we are much more conscious of the value of a rights-based approach to solving legal problems than our predecessors were a generation ago, even if we cannot always give effect to it. A Bill to incorporate the European Convention of Human Rights into our national law is now before Parliament, and in two years’ time every court in Britain will have the duty of giving effect to the Convention in cases where British citizens claim that their Convention rights have been violated. A £3.5 million training programme is being planned to help our judges and magistrates to understand the effect of the different articles of the Convention and the way they will have to learn to balance the rights of the individual on the one hand against the needs of society on the other. And my court and the House of Lords will be in the thick of things in the early years of this new legal regime in explaining in the context of real appeals involving real people how the Convention should be applied in a British context.

That is all in the future. I will come back to it at the end of my talk, but in the meantime I want to concentrate on the past and the present.

The law of England has always been a freedom based law, not a rights based law. This does not mean that a person’s individual rights have not had an important role to play, particularly in the way our common law judges have shaped the common law. As a law student 30 years ago, for example, I learned about great cases like Entick v Carrington[2] and Christie v Leachinsky.[3]

In Entick v Carrington the Court of King’s Bench ruled in 1765 that the executive could not interfere with people’s privacy and raid their homes under the authority of what was called a general warrant. The chief justice, Lord Camden, said this:

“With respect to the argument of state necessity, or a distinction which has been arrived at between state offences and others, the common law does not understand that kind of reasoning, nor do our books take notice of any such distinction”.

If they wanted to invade a man’s house armed with a search warrant, the police first had to explain to a court the special reason why an invasion of privacy was justified on this particular occasion.

In Christie v Leachinsky the House of Lords ruled in 1947 that the police could not detain a man against his will for even a few seconds without explaining why they were doing so in language which he could understand. In their judgments the five law lords went back deep into English legal history to explain the basis of this rule. One old textbook, Dalton’s County Justice, said:

“The liberty of a man is a thing specially favoured by the common law”.

I mention these things to show you that there is nothing in the concepts of a rights-based system of law which cuts across the grain of the English common law. Indeed, before so much of our law was codified in statutes and statutory rules this century, much of the work of English common law judges was concerned with staking out the appropriate boundaries between the rights of the individual and the needs of the state. English common lawyers helped to draft the European Convention on Human Rights, and on a number of occasions in recent years English judges have pointed out in their judgments that there is no essential difference between Article 6 or Article 10 of the European Convention and our English national law as it stands today before incorporation.[4]

There is another reason why our national law is increasingly taking an explicit rights-based form. This is because Article 13 of the European Convention requires that everyone whose rights and freedoms as set forth in the Convention are violated shall have an effective remedy before a national authority, even if the violation has been committed by persons acting in an official capacity. This has meant that whenever the Court at Strasbourg makes a ruling against the British Government, the government will take whatever steps are necessary to ensure that our national law, whether primary or secondary, is changed. This is done to ensure that similar violations will not take place in future in circumstances where they cannot be remedied by our national courts. The only time it has not done so was when it exercised its right of derogation under Article 15, so that the police could continue to detain suspected terrorists for up to a week without having to charge them or let them go free, in spite of the Strasbourg’s court’s ruling that this practice violated the Convention.[5] It is not simply reasons of pragmatism – to save themselves from paying a lot of compensation – which have led successive governments to take this course. It is because they are bound by international treaty to ensure that appropriate remedies for human rights violations are available in our own courts once the court at Strasbourg has pointed out that as it stands our law does not comply with Convention requirements.

For all these reasons judges in England are now giving effect to law which balances individual rights against national needs every day of the week without necessarily being aware that this is what they are doing. English judges are not, on the whole, great cerebral thinkers. They are, however, very familiar, by cultural inclination as well as by learning, with their role of defending the citizen against the state. They will interfere on behalf of the citizen unless an officer of the state has a clear, explicit right to interfere with what are regarded as the citizen’s basic rights – freedom from arbitrary arrest, privacy at home, freedom of speech, the right to access to a court, and so on.

In his great speech in the Spycatcher case[6] Lord Goff, who is now the senior English law lord, explained in 1987 why he was not surprised that he could see no inconsistency between English law on freedom of expression and Article 10 of the European Convention. He said that freedom of speech has existed in England perhaps as long as, if not longer than, it has existed in any other country in the world. The only difference, he said, is that under the Convention Article 10 proceeds to state a fundamental right and then to qualify it. In England, on the other hand, where we are all free to do anything, subject only to the provisions of the law, we proceed on an assumption of freedom of speech and then turn to our law to discover the established exceptions to it.

It follows that in most areas of the law we judges have traditionally given precedence to individual rights, unless we were prevented from doing so. We might give precedence to the needs of the state because the common law itself has worked out the appropriate balancing mechanisms, or because Parliament has told us what rules we should be applying. Sometimes Parliament has made it clear that the needs of the state must take precedence. In the leading case of Brind [7] , for instance, the House of Lords decided in 1991 that Parliament had unquestionably given the Home Secretary power to ban members of certain proscribed organisations from being heard expressing their views about the emergency in Northern Ireland on television and radio. The law lords said that common law or Article 10 considerations about freedom of speech could not really feature in their ruling on the legality of what he had done.

If, then, we have a reasonably sound rights-based structure of law even if we are not really conscious of it, why has Britain been in the dock at the court at Strasbourg so much over the last 30 years? One reason, I think, is that a system of law which says that everyone is free to do what he or she likes unless there is a law against it, does not always have the fine tuning needed to ensure that the scale of interference with individual rights is always proportionate to the societal end that is sought to be achieved. Another reason is that common law judges are sometimes bound by earlier precedents to decide cases in a way which is not in tune with modern thinking about the best place at which to strike the balance between the individual and the state.

A good example of the former type of case is the Strasbourg case of Dudgeon.[8] In Northern Ireland in the late 1970s homosexual activity between consenting adults in private still constituted a criminal offence, even though people were seldom prosecuted for it. Although the court recognised that the general aim of the legislation was the protection of morals and moral standards in Northern Ireland, a blanket ban could not be justified. It constituted a continuing interference with Mr Dudgeon’s right to respect for his private life, which included his sexual life, within the meaning of Article 8(1) of the Convention. The court then considered the defence in Article 8(2), but ruled that it could not be maintained that there was a pressing social need to make such acts criminal offences, when it took into account changes in attitudes, understanding and tolerances of homosexual behaviour in the other member States of the Council of Europe. Mr Dudgeon won his case and the law of Northern Ireland was changed.

Other examples of the excessive rigidity of blanket bans come from the field of prisoners’ rights. In 1969 one of the Prison Rules, made under the authority of the 1953 Prisons Act, provided that a prisoner could not write letters to his solicitor about the way he was being treated in prison unless he had first aired his complaints through official channels. A Mr Golder complained to the Court of Strasbourg about this blanket ban, and the Court ruled that the interference with his correspondence constituted a breach of Article 8(1) of the European Convention, when read with Article 6, which could not be justified by the saving provisions of Article 8(2).[9] Mr Golder should be allowed to consult his solicitor as a preparatory step to the possible institution of civil legal proceedings for libel. The interference with his private correspondence could not be justified as being necessary in a democratic society for any of the purposes listed in Article 8(2), such as the prevention of disorder or crime. Mr Golder could not have succeeded in an English court at the time, because the wording of the Prison Rule was clear, however unreasonable an English judge might have thought it. He won his case in Strasbourg, the Prison Rules were changed as a result, and today our judges can give prisoners a remedy if they complain that their correspondence with their solicitors is being blocked.

These are two examples of cases where the rigidity of British statute-based law proved inadequate to uphold the rights of members of unpopular minorities – homosexuals and prisoners – where a rights-based system of law proved to be a more flexible tool for achieving justice. I will now give two examples of cases where our common law was found equally inadequate.

The first was the Sunday Times thalidomide case.[10] The claims of the thalidomide victims were taking a very long time to process through the courts, and the Sunday Times embarked on a newspaper campaign to shame the Distillers’ company into paying more compensation than the Plaintiffs were otherwise likely to achieve. In those days the law relating to contempt of court was entirely judge-made, and there was a lack of clarity about the circumstances in which a newspaper could be held to be in contempt of court in the context of pending proceedings. The House of Lords held that the legal proceedings were still active, and that the newspaper’s conduct might prejudice the conduct of Distillers’ defence by improperly imposing pressure on them to settle.[11] By a narrow majority the Court at Strasbourg held that the interference complained of did not correspond to a social need sufficiently pressing to outweigh the public interest in freedom of expression which is recognised by Article 10. As a result of this case, our Contempt of Court Act 1981 now sets out in clear terms the ground rules which permit judges to interfere with the freedom of the Press in appropriate cases where legal proceedings are close to trial.

The other example I will give you is concerned with the corporal punishment of children. It could almost be said to be part of British national culture that children should be beaten when they were naughty. Parents were allowed to beat children. Schoolmasters were allowed to beat children. Indeed, in the school I attended less than 50 years ago, senior schoolboys were allowed to beat other schoolboys.[12] In a leading case in 1860,[13] Chief Justice Cockburn said that moderate and reasonable parental chastisement, administered “for the purpose of correcting what is evil in the child” was not unlawful. Things would be different, however, if force was administered for reasons of “gratification of passion or of rage”, or if it is “immoderate and excessive in its nature and degree”, whatever that means.

English law concentrated, therefore, on what were regarded as the rights of the parent. It took a rights-based system of law to focus equally clearly on the rights of the child. Article 3 of the European Convention provides that no one shall be subjected to degrading punishment and it is the influence of this article, and not anything which British judges have said or done, which has led British educational authorities to ban the use of corporal punishment in all our state-maintained schools.[14]

There are other ways in which the influence of rights-based systems of law and particularly the European Convention, is making itself felt in the way we decide cases. I have told you that where the words of an Act of Parliament are clear, English judges must apply them, however much we believe that the complainant may eventually succeed at Strasbourg. If there is any ambiguity, however, we must interpret or apply the law in such a way that our country is more likely to comply with its international obligations under the Convention.

I will give you four examples from cases which have been decided in the Court of Appeal in the last two years. In each case the court applied English law, but it then checked its decision by making sure that it was not out of line with the Convention.

The first related to a complaint by a number of homosexual men and women that the Ministry of Defence had acted unlawfully in excluding them from the armed forces once their homosexual leanings were known.[15] They claimed that as a matter of English administrative law this decision was unlawful, and they called in aid, among other things, the provisions of Articles 8 and 14 of the European Convention on Human Rights.

The court said that it was unable to interfere with the exercise of an administrative discretion on substantive grounds unless it was satisfied that this decision was unreasonable. By this it meant that the decision in question was outside the range of responses open to a reasonable decision-maker. It added, however, that in judging whether the decision-maker exceeded this margin of appreciation the human rights context was important. The more substantial the interference with human rights, the more the court would require by way of justification before it was satisfied that the decision was reasonable in the sense I have mentioned.

It considered, however, that appropriate justification had been provided, and the court would not interfere with the Ministry’s decision. It was not an irrational or perverse decision at the time it was made. This was a time when changes in professional and public attitudes to homosexuality had not advanced as far as they had more recently. And the Court could not itself apply the European Convention directly since it did not form part of our national law. This case has now gone on to Strasbourg, where it looks like being settled by the new Government. A case like this might be decided rather differently by our courts once the new Human Rights Bill is in force.

The second case related to night-flying at Heathrow Airport.[16] The Minister approved arrangements by which more planes were to be allowed to take off and land from 6am onwards. Other major European airports did not have the same restrictions on night-flying as we did, and he was concerned that airlines might transfer more of their business to Frankfurt and Paris. There was also the consideration that very large aircraft were now flying in from the Far East much faster than they had in the past, and there was perceived to be a need to allow more of them to land from 6 o’clock onwards in the early morning than had been necessary a few years ago.

Local authorities who represented hundreds of thousands of people who lived near Heathrow challenged the minister’s decision. One of their arguments was that his decision would violate the right to respect people’s home and family life. Both the English common law and the jurisprudence at Strasbourg provide that this right includes the right to the enjoyment of nights at home undisturbed by unreasonable nuisance from noise. We applied the principles laid down in the earlier case. We took the view that the minister had provided appropriate justification for his decision, despite the interference with people’s sleep, and that it was within the boundaries of his discretion to make this decision, unpopular though it was with many people.

The third case was about freedom of speech.[17] The 1990 Broadcasting Act created a body called the Radio Authority which has power to control certain aspects of commercial broadcasting. In particular it must do all it can to ensure that there is no advertising on the radio by anybody whose objects are wholly or mainly of a political nature, and no advertising which is directed towards any political end. The Authority used this power to prevent Amnesty International from appealing for funds over the radio for its work of providing awareness of human rights. Amnesty had wanted to broadcast a short advertisement drawing attention to the atrocities in Rwanda and Burundi as an illustration of the work it did. The Authority banned the broadcast because it considered that although Amnesty did a lot of educational and research work which could not properly be called political, its objects were wholly or mainly of a political nature.

We had to decide, among other things, what was meant by these words “wholly or mainly of a political nature”. There was no dispute that a fair amount of Amnesty International’s work was of a political nature, and it accepted that it could not advertise directly towards political ends. But it objected to the blanket ban which was being imposed on its advertisements. We ruled that since the word “mainly” was ambiguous – it could mean 51% or 90% or more – and the case was concerned with a limitation on freedom of expression the word should be given the meaning which afforded the smallest constriction on that freedom which was consistent with a natural meaning of the word. Lord Woolf, the Master of the Rolls, said that this meant 75% or more, and I agreed with him.

We did not however quash the decision of the Authority, since it was an Authority of lay members doing its best to apply a difficult section of an Act to some rather confusing evidence provided by Amnesty, who had put its case far too high. We suggested, however, that Amnesty might do well to make a fresh application, setting out its case more clearly, so that the Authority would then be able to apply the law as we had explained it. They did so, and I heard recently that Amnesty is now allowed to advertise on the radio, provided the advertisements are not directly political. I doubt if this case would have been decided in the same way 30 years ago, and it is a good example of the way that rights law – in this case the right of freedom of expression – is having a more powerful influence in English courts today.

The fourth case was a case in which two fathers were complaining that decisions of the Home Secretary would mean that they were never likely to see their children again. They said that this constituted a breach of their own and their children’s right to respect for their family life, and that the Home Secretary had completely ignored the human rights aspects of the case. The children were both born in England, but they were not British citizens because their mothers were both illegal immigrants at the time the children were born. The children were already six years old when the court made its final ruling. Because the mothers had no right to be in England, the Home Secretary had ordered that they should be deported back to India and Pakistan, taking their children with them. Although the mothers’ relationships with the children’s fathers had broken down in each case, the fathers had kept in touch with their children, and they told the court they would never be able to afford the fares to go and visit their children in their new homes if the deportation orders were carried out.

The Home Office now has a policy for its Immigration Officers to follow in family cases as a means of ensuring that their decisions do not violate the European Convention. Under this policy it was reasonable to make the deportation orders, because the families in question were not stable family units before deportation action was first considered against the mothers. The court considered the Strasbourg case-law very carefully before it decided not to interfere with the deportation orders. It considered that Article 8(2) would provide an arguable justification for the Home Secretary’s actions when he had to balance the interests of the two families against the need to maintain a firm, fair and consistent immigration policy. In any event, as the law now stands, it was sufficient for the court to be satisfied that the minister had taken the requirements of the Convention into account, and he clearly had.

In two years’ time, when our Human Rights Bill becomes law, the English courts will be making this kind of judgment directly themselves. If parents in a case like this come to an English court and complain that their right to respect for their family life is being violated, it will be for the court itself to make the direct judgment whether in its opinion the Government’s decision is necessary in a democratic society for one of the reasons set out in Article 8(2). Until now, the courts have played only a supervisory role. Provided that an administrative decision is within a minister’s legal powers, the procedure was fair, an appropriate justification was given for any violation of rights the decision might involve, and the decision was not completely perverse, the courts have no power to interfere. This will all change, and we are in for some quite interesting times.

It has been no secret that some of our most senior judges have been calling for some years for the incorporation of the European Convention into our national law. This is because the existence of these two systems of law side by side, with English citizens having the right to switch to the other once their route through the English courts is at an end, was getting more and more unmanageable. It is also no secret that the same judges have been keen to see what is called a comparatively weak form of incorporation, one in which they will have no power to refuse to apply an Act of Parliament. The reason for this rather timid approach is that in our unwritten constitution Parliament is regarded as sovereign, so far as law-making is concerned. Against our historical background it would be breaking quite new ground if unelected judges were to declare that they will not enforce laws which Parliament has made. If they were to be able to do so, it would give them a much more openly political role, and one which none of the three arms of government would want to see. They are already having to do this in relation to European Union law, and it is not making for easy relationships with Parliament.

What the new Human Rights Bill is providing is a typically pragmatic British compromise. Nobody expects that an English Act of Parliament will often be found to breach the Convention, because for quite a long time all our new legislation has been inspected to make sure it complies with the Convention, and it will be examined even more critically in future. But if it does happen, and if a senior English judge is satisfied that a provision of an Act of Parliament is clearly inconsistent with the Convention, he or she will be able to make what will be called a declaration of incompatibility. This does not mean that the plaintiff will win the case. What it does mean is that unless the judge’s order is set aside on appeal, Parliament will have to do something to put the law right as quickly as possible. For this purpose special fast-track procedures are to be introduced to enable corrective measures to go quickly through Parliament without having to go through the slow processes of a normal Parliamentary Bill.

About ten years ago, most human rights campaigners were worried that if human rights law was introduced into our national law, the English judges would not be up to it. They had not been trained that way, they came from comfortable backgrounds, and they would be too prone to favour the executive against the citizen. I remember Professor Ronald Dworkin saying in a lecture in London in about 1990 that he did not think that was a good enough reason for abandoning the campaign.

“The judges”, he said, “can only disappoint us.”

A lot of very tough decisions by senior judges over the last ten years ago has changed that perception a bit, although it will still be a problem getting all the judges and magistrates used to exercising new powers which they have never had to use before, despite all the training they will receive. I dare say some silly decisions, and some downright wrong decisions, will be made before the new Bill settles down, and we all get more accustomed to understanding how to make it work. And from time to time there will be a political explosion about some judicial decision, and a lot of fur and feathers will start flying about on the topic of  judges getting too big for their boots. Encountering explosions like this is an occupational hazard for judges in a democracy.

Once the early teething troubles with the new Act are over, I do not think it will make a very great difference in practice, because of the essential nature of English law which I have already described to you. It will certainly make a difference in the cases I have already mentioned: cases involving members of unpopular or vulnerable minorities, where our national law is still rather too rigid in places. In those cases we will be able to do justice properly in our own courts at last, instead of consigning the complainants to a long and expensive wait for justice in Strasbourg. And that must be a good thing.

[1]            In Engineers’ and Managers’ Association v ACAS [1979] 1 WLR 1113.

[2]             Entick v Carrington (1765) 19 St Tr 1030.

[3]             Christie v Leachinsky [1947] AC 573.

[4]             The decision of the House of Lords in Derbyshire County Council v Times Newspapers Ltd [1993] AC 534 is a good example of this.

[5]             In Brogan v UK (1988) 11 EHRR 117.

[6]             Attorney-General v Guardian Newspapers (No 2) [1990] 1 AC 109.

[7]             R v Home Secretary ex p Brind [1991] AC 696.

[8]             Dudgeon v UK (1981) 4 EHRR 149.

[9]             Golder v UK (1979-80) 1 EHRR 524.

[10]             Sunday Times v UK (1979) 2 EHRR 245.

[11]            [1974] AC 273.

[12]            Marlborough College. The practice was more or less universal in independent secondary schools at that time.

[13]            R v Hopley (1860) 2 F & F 202.

[14]            See Campbell & Cosans v UK (1982) 4 EHRR 293; and Costello-Roberts v UK (1993) 19 EHRR 112.

[15]            R (Smith) v Ministry of Defence [1996] QB 517.

[16]            R v Secretary of State for Transport ex p Richmond-upon-Thames LBC (No 4) [1996] 1 WLR 1460.

[17]            R v Radio Authority ex p Bull [1996] QB 294.

One thought on “Before the Human Rights Act: The Role of the Judiciary in Protecting Human Rights in Britain

  1. Pingback: Law and religion round-up – 15th November | Law & Religion UK

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