Judicial Reasoning under the UK Human Rights Act

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Overview

Judicial Reasoning under the UK Human Rights Act is a collection of essays written by leading experts in the field, which examines judicial decision-making under the UK's de facto Bill of Rights. The book focuses both on changes in areas of substantive law and the techniques of judicial reasoning adopted to implement the Act. The contributors therefore consider first general Convention and Human Rights Act concepts – statutory interpretation, horizontal effect, judicial review, deference, the reception of Strasbourg case-law – since they arise across all areas of substantive law. They then proceed to examine not only the use of such concepts in particular fields of law (privacy, family law, clashing rights, discrimination and criminal procedure), but also the modes of reasoning by which judges seek to bridge the divide between familiar common law and statutory doctrines and those in the Convention.
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Editorial Reviews

From the Publisher
Review of the hardback: '[A] significant asset is the experience and thoroughness of this book's editors, recognised HRA experts Helen Fenwick, Gavin Phillipson and Roger Masterman, each of whom also contributes at least one chapter. … Each chapter can stand alone as a comprehensive, remarkably current take on HRA case law and the judicial reasoning behind it. … this book was created to facilitate discussion between academics studying this unique and controversial statute. However, this book also offers such a comprehensive look at the HRA that it could be of value to law students who wish to learn more about the HRA or issues surrounding the United Kingdom's constitution.' Westlaw UK

Review of the hardback: 'The value of the book for the practitioner lies in the opportunity to deepen one's thinking about, and understanding of, Convention law. It deserves and demands to be read slowly, savoured and considered carefully and critically. … [It] will be of great value to anyone who thinks that the title 'human rights lawyer' is more than a synonym for 'one who is paranoid about the State'. … recommended without reservation or hesitation.' The Journal Online

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Product Details

  • ISBN-13: 9780521176590
  • Publisher: Cambridge University Press
  • Publication date: 3/3/2011
  • Pages: 484
  • Product dimensions: 5.98 (w) x 9.02 (h) x 1.06 (d)

Meet the Author

Professor Helen Fenwick is Joint Director of the Human Rights Centre and Convenor of the SLS Civil Liberties and Human Rights Group.

Gavin Phillipson is Professor of Law at the University of Durham.

Roger Masterman is a Lecturer in Law in the Human Rights Centre at the University of Durham.

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Read an Excerpt

Cambridge University Press
9780521876339 - Judicial Reasoning under the UK Human Rights Act - Edited by Helen Fenwick, Roger Masterman and Gavin Phillipson
Excerpt


1
The Human Rights Act in contemporary context

HELEN FENWICK, ROGER MASTERMAN, AND GAVIN PHILLIPSON

Introduction

A number of commentators have pointed out that the inception of Bills of Rights tends to have the effect, as in Canada, of requiring courts to grapple with justifications for rights and freedoms, taking a more philosophical approach to legal reasoning as they attempt to resolve conflicts between individual rights and competing societal and individual interests.1 When countries adopt a document setting out a list of human rights with special constitutional status (‘a Bill of Rights’), the effect on judicial reasoning tends to be dramatic – as it was in Canada when it adopted the Charter of Rights. In 2000, the Human Rights Act came into force – affording the European Convention on Human Rights further effect in domestic law – and, while it does not have the entrenched status of other Bills of Rights, there is agreement that it does have what ‘constitutional’ status UK law allows.2

Academics and lawyers agree that the introduction of the Act was one of the most significant developments in the public law field in the last 100 years. The Act did not create a home-grownBill of Rights for the UK; instead, it gave further legal effect to the European Convention on Human Rights. Thus, its impact on judicial reasoning was less predictable than was the case in the broadly equivalent situation in Canada. This requires a word of explanation, since at first sight the effect on judicial reasoning in the UK was more predictable since the judges could rely on an already large and developed body of jurisprudence interpreting the Convention – that of the European Court of Human Rights (and previously the Commission) at Strasbourg. But judicial receptivity to the ECHR under the Human Rights Act was less consistent than was the case in Canada: broadly speaking, the Canadian judges gave the Charter quite a warm reception, given the widespread popular support for its adoption, whereas, among British judges, some resistance to the Convention was evident.3 The judges had become accustomed to the Convention as an international instrument, while at the same time they were proud of their long-established common law and constitutional traditions, including deference to parliament and to the executive in judicial review cases, as manifested in the Wednesbury doctrine.4 Many of them appeared to take the view that the common law was already providing an effective protection for human rights – and could continue to develop in ways that would strengthen the protection.5 Indeed, a number of judges continue to take this view,6 and it is possible to discern further developments in a common law human rights tradition, running parallel to the HRA and engaging in an uneasy and uncertain relationship with it. This resistance to the Convention can be noted in particular, albeit to varying degrees, in the chapters in the book by Gavin Phillipson,7 Ian Leigh, Sonia Harris-Short and Paul Roberts. There is thus a certain ambivalence in the attitude of the judiciary to the HRA,8 which is not paralleled in Canada where there is a patriotic attachment among the judiciary, the people and policy-makers to the Charter as a home-grown, specifically Canadian achievement. As Peter Hogg has put it:

[The Charter’s] adoption in 1982 was the product of a widespread public debate, in which the inevitable risks of judicial review played a prominent role. Admittedly, the Charter was never put to and approved by a popular referendum, but it has always commanded widespread popular support. A poll taken in 1999, on the heels of two controversial Charter decisions by the Supreme Court of Canada, showed 82 per cent of those polled saying that the Charter was ‘a good thing’, and 61 per cent saying that the courts, not the legislatures, should have the last word when the courts decide that a law is unconstitutional.9

In contrast, the lack of solidly based political and popular support for the HRA is quite possibly also something which affects judicial responses to it. To say that popular backing for the HRA does not reach that evident in relation to the Canadian Charter or, for example, the Scotland Act, passed after a referendum, is to understate the matter.10 Indeed, at the time of completing this Introduction, the HRA is in the midst of a firestorm of criticism, coming not only from the Prime Minister, but also from the main Opposition party, and Britain’s most popular newspaper, The Sun, which has launched a campaign for the repeal of the HRA,11 with, it claims, 35,000 readers giving immediate support.12 Tony Blair appears to be increasingly frustrated with the constraints upon deporting foreign prisoners and terrorist suspects imposed by Article 3.13 The leader of the main Opposition party, David Cameron, having pledged that the Conservatives would ‘scrap, reform or replace’ the Act,14 repeating the manifesto pledge they gave at the 2005 General Election, announced, as one of his first solid policy pledges since becoming leader that the Conservatives now sought to repeal the Act and replace it with a British Bill of Rights;15 the reform appears to be aimed at least in part at freeing the government from some of the more ‘inconvenient’ requirements of the Convention16 thought to be hampering the ‘war on terror’ and the fight against crime. It is clear that Mr Cameron regards this is a popular stance: it is fair to say that the attack on the HRA in the pages of certain best-selling newspapers, particularly recently, has been quite relentless, and filled with damaging myths and misconceptions.

Certainly, the HRA currently exists in a climate very different from that prevailing in 2000. We no longer feel that we are at the beginning of a new dawn for civil liberties in the UK. The emphasis of policy-makers is often no longer on the benefits of the HRA; the post-9/11 debate tends to concern methods of avoiding its effects. Thus, the current Labour government derogated from Article 5 between 2001 and 2005,17 and has actively floated the possibility of withdrawal from the ECHR, followed by re-entry, but with a reservation in relation to the Chahal18 principle deriving from Article 3, which the government claims is hindering its fight against international terrorism.19 Tony Blair, in an open letter to the new Home Secretary, John Reid, spoke of the need to ‘look again at whether primary legislation is needed to address the issue of court rulings which overrule the Government in a way that is inconsistent with other EU countries’ interpretation of the European Convention on Human Rights’.20 The desire to free the executive from the handcuffs of human rights principles may be seen at present most vividly in the Government’s attempt to have the Chahal principle overturned at Strasbourg,21 so that it will be able to deport suspected terrorists even to countries where there is a risk of their being subject to torture.22 Amongst commentators also, there is doubt not only as to the basic desirability of incorporation of the Convention,23 but more importantly as to the approach that should be taken to its interpretation, in terms of the balance to be struck between the power of the judiciary and that of Parliament and the executive.24 It is plausible to suggest that this lack of popular support may affect the attitude of the judiciary – there may be some awareness among them of the fact that, if they adopt too expansive an approach to interpreting and enforcing the HRA, it might be radically modified or even repealed. It is impossible to tell whether the current storm of criticism surrounding the Act is mere journalistic and Westminster froth, which will evaporate in a few weeks or months, leaving judicial attitudes untouched: the Prime Minister’s calls for a ‘profound rebalancing of the civil liberties debate’25 certainly suggests that he sees this issue as a serious policy priority, rather than just short-term populist rhetoric.26

The HRA project: problems, complexities and judicial responses

In addition to the somewhat precarious political position of the HRA, this book as a whole sets out to show that the position of the UK in relation to the ECHR under the HRA does not parallel the position in jurisdictions such as Canada, for a number of other important reasons. The application of the ECHR via the HRA is highly problematic on a number of levels. Strasbourg’s jurisprudence is often notably under-theorised. The reasoning is frequently brief, and lacking in rigour. In particular, the effects of the doctrine of the margin of appreciation result in some decisions in an almost complete failure to examine in any meaningful way the proportionality of restrictions upon individual rights adopted by states.27 Great variation in the intensity of review may be discerned; indeed, no single account of proportionality can be derived from the Strasbourg jurisprudence.28 The purpose of the Strasbourg system is to provide a basic level of protection for human rights – a ‘floor’ not a ‘ceiling’ of rights – across a vast and disparate geographical area, one with hugely differing cultural sensitivities and governmental concerns. It is important, therefore, to be realistic about the limitations of the Strasbourg jurisprudence, lest it be thought that its ‘application’ in English law can cure all our current ills in human rights terms. Indeed, importation of the case-law without a keen awareness of its limitations, in particular the effect of the margin of appreciation doctrine, can actually have the effect of legitimising areas of law that were previously seen as increasingly untenable.29 Certainly, application of the Strasbourg jurisprudence simpliciter, will not by itself necessarily result in a rights-driven reform of UK law.

It is also the case that, in addition to the difficulties inherent in the Strasbourg jurisprudence, the HRA itself is highly problematic. Intense normative and doctrinal debate continues around the balance to be struck between the enhanced power of the judiciary under the Act and that of Parliament and the executive.30 The Act is also analytically and doctrinally ambiguous in some key areas – those of horizontal effect,31 the ambit of s.3(1)32 and the public authority definition33 in particular. These points are explored in greater detail in subsequent chapters of this book, but, briefly, the HRA, as an incorporating instrument, gives rise to interpretative difficulties on a number of levels. First of all, there is the need to interpret the Strasbourg jurisprudence itself, to draw out the principles to be applied, by no means an easy task in many instances, given the characteristics of that jurisprudence described above. Secondly, there is sometimes a question whether to apply the case-law in domestic law at all: it is non-binding and there may be arguments in particular cases that it should not be followed.34 These issues are explored in detail by Roger Masterman in Chapter 3, but, in brief, a particular problem may arise where a Strasbourg decision follows and appears to contradict a decision of an appellate court on the same point of interpretation of Convention articles. As discussed by Gavin Phillipson in Chapter 9, precisely this problem is raised in relation to the crucial decision on privacy in Von Hannover v. Germany,35 which immediately followed, and appears inconsistent in some respects with, the decision of the House of Lords in Campbell v. MGN Ltd.36 A further potential clash became evident in relation to the House of Lords decision in Qazi,37 on the scope of Article 8, which was rapidly contradicted on point by the decision of the Strasbourg court in Connors v. United Kingdom.38 The question in subsequent litigation39 was whether a lower court should follow the potentially incompatible House of Lords decision, or whether that court might be discharged from applying strict rules of precedent due to the possible conflict with more recent Strasbourg authority. The House of Lords ruled that lower courts remained bound to follow the precedents set by the Appellate Committee.40 Thirdly, even if agreement can be reached as to the principles to be applied from the Strasbourg jurisprudence, there is still the vexed question as to the extent that the courts should defer to a ‘discretionary area of judgment’, enjoyed by the executive and/or Parliament, and as to its relation (if any) with the international law doctrine of the margin of appreciation, an issue discussed further by Ian Leigh in Chapter 7. If the area of law in question is common law governing private relations, the role of the Convention rights remains unclear.41 Finally, if dealing with a statute, there is the question whether its wording and overall scheme allows the courts to change its interpretation to achieve compliance, or whether instead a declaration of incompatibility should be made. This involves determining the scope of s.3(1) HRA, the crucial duty to interpret legislation compatibly with the Convention rights, if possible. As discussed in Chapters 3 and 4, the proper approach to this provision has given rise to a great deal of academic and judicial disagreement. Even where the judges agree in deciding that existing domestic law is incompatible as it stands, there still remains the question of the extent to which it needs to change in order to become compatible.42

We would therefore suggest that the HRA, through these layers of complexity, allows the judges plenty of scope to adopt either an ‘activist’ or ‘minimalist’ approach to judicial reform of domestic law:43 broadly speaking, the latter would seek merely to achieve minimal compliance with the Strasbourg case-law; the former would seek to build upon it, and deploy more general Convention principles, in order to construct something much more like a Bill of Rights approach. Moreover, while the former approach would tend to emphasise deference to the role of Parliament and the executive, the latter would tend to exhibit a more muscular and expansive conception of the judicial role under the Act.

As observed above, different levels of enthusiasm are discernible towards the HRA by different members of the judiciary. It might appear possible therefore to place the senior judges in two different ‘camps’, depending on their attitude to the HRA – broadly the minimalist and activist camps. In fact, it is not possible to discern a neat polarisation between them, although some broad trends are evident. As the book indicates, certain senior members of the judiciary have been activist in one context but minimalist in another. For example, Lord Hoffmann’s strikingly activist approach in the Belmarsh case,44 in which he was prepared, alone amongst a seven-strong panel, to find that there was no ‘state of emergency threatening the life of the nation’ in the UK, differed markedly from the much-criticised45 minimalist and deferential posture he adopted in Prolife Alliance.46

The above remarks are intended to indicate the main issues that this book seeks to address. It seeks to encapsulate, at this early point in the post-HRA era, after it has been in force for six years, the interaction that is occurring between the Convention rights and sometimes repressive legislation, between the rights and the common law and indeed between the rights and a more developed version of themselves – a nascent Bill of Rights based upon, but going further than, the Convention as interpreted at Strasbourg. If the HRA is to be utilised to create such a Bill of Rights, judges will have to look beyond the often meagre and un-theorised Convention jurisprudence in doing so.47 The book thus focuses on both content and process since it considers changes in the substantive law and the new processes of judicial reasoning being adopted. Thus it asks: which strategies of judicial reasoning are the judges adopting under the Act? Are the judges responding to the Act in a minimalist fashion – which is arguably all that the European Convention demands? Or are they using the Act to create – in effect – a domestic Bill of Rights?

The judiciary at present shows, albeit in a patchy, inconsistent manner, some signs of taking the view that the HRA authorises the UK courts to develop their own approach to the interpretation and application of the Act in a manner that promotes Convention rights rather than merely respects them. The book will seek to determine whether these early signs indicate a deeper trend. If at least some of the judges see the HRA as more than simply a Convention implementation Act, how do they regard it? Are the standards of the Convention to be regarded as a domestic Bill of Rights to be given a national gloss, through a ‘constitutional’ approach to interpretation? Since there might be complications if this were the case, is the effect collateral in the sense that it will inspire the development of an indigenous, informal Bill of Rights? On the basis that the ‘Bill of Rights’ approach to the HRA has at least some support amongst certain members of the senior judiciary as the proper one, experience elsewhere suggests the need for some grounding for the whole process in which the courts are engaged – a shared understanding of the enterprise in which the judges are involved. This book sets out to make a contribution to providing that grounding. It also seeks to point up the areas in which the judiciary, through the resistance they are exhibiting to a thorough and clear-cut acceptance of the interpolation of Convention standards into areas of law which they themselves have constructed, are, in effect, preserving a wide measure of discretion as to how great a role to give to Convention standards in individual cases: the case studies examining the judicial attitude towards horizontal effect48


© Cambridge University Press

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Table of Contents

1. Judicial Reasoning and the Human Rights Act 1998 Helen Fenwick, Roger Masterman and Gavin Phillipson; Part I. The Interpretation of the Human Rights Act 1998: 2. The System of the European Convention on Human Rights and the Human Rights Act: The View from the Outside Colin Warbrick; 3. Aspiration or Foundation? The Status of Strasbourg Jurisprudence and the 'Convention Rights' in Domestic Law Roger Masterman; 4. Institutional Roles and Meanings of 'Compatibility' under the Human Rights Act 1998 David Feldman; 5. Choosing between Sections 3 and 4 Human Rights Act 1998: Judicial Reasoning after Ghaidan v Mendoza Aileen Kavanagh; 6. Clarity postponed? Horizontal Effect after Campbell and Re. S. Gavin Phillipson; 7. The Standard of Judicial Review and Legal Reasoning after the Human Rights Act Ian Leigh; 8. Principles of Deference under the Human Rights Act Sir David Keene; Part II. The Human Rights Act and Substantive Law: 9. The Common Law, Privacy and the Convention Gavin Phillipson; 10. Judicial Reasoning in Clashing Rights Cases Helen Fenwick; 11. Family Law and the Human Rights Act 1998: Judicial Restraint or Revolution? Sonia Harris-Short; 12. Article 14: A Protector, Not a Prosecutor Aaron Baker; 13. Criminal Procedure, The Presumption of Innocence and Judicial Reasoning under the Human Rights Act Paul Roberts; 14. Concluding remarks Ian Leigh.
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