1. ‘It is now plain that the incorporation of the European Convention for the Protection of Human Rights and Fundamental Freedoms … into our domestic law will subject the entire legal system to a fundamental process of review and, where necessary, reform by the judiciary’, R v Director of Public Prosecutions, ex parte Kebilene and Others, R v Director of Public Prosecutions, ex parte Rechah, [2000] 2 AC 326, 374–5, [1999] 4 All ER 801, 838, Lord Hope.

2. R. Hazell, ‘Reinventing the Constitution: Can the State Survive?’, [1999] PL 84; J. Beatson, C. Forsyth and I. Hare (eds.) Constitutional Reform in the United Kingdom: Practice and Principles (1998); Lord Irvine, ‘Constitutional Reform and a Bill of Rights’ [1997] EHRLR 483.

3. See S. Grosz, J. Beatson and P. Duffy, Human Rights: The 1998 Act and the European Convention (1999), ch. 7. The Judicial Committee of the Privy Council has an important role in resolving devolution disputes, see Schedule 6 of the Act; Hoekstra and Others v Her Majesty's Advocate, The Times, 31 Oct. 2000, 18; Montgomery v Her Majesty's Advocate and the Advocate General for Scotland [2001] UKHRR 124 (PC) (disagreement about whether there was a devolution issue).

4. See Scotland Act 1998, ss. 29(2)(d), 57, 126(1), 129(2); A. Millar, ‘Human Rights and the Scottish Parliament’ [1998] EHRLR 260; Lord Hope, ‘Opinion: Scotland and Devolution’ [1998] EHRLR 367; The Scotland Bill, Devolution and Scotland's Parliament, House of Commons Research Paper 98/1 (7 Jan. 1998); C. Munro, ‘Scottish Devolution: Accommodating a Restless Nation’, 6 Int. J. on Minority and Group Rights', (1998/99) 95; N. Burrows, ‘Unfinished Business: The Scotland Act 1998’, 62 MLR (1999) 241; A. Roux (ed.), Human Rights and Scots Law: Comparative Perspectives on the Incorporation of the ECHR (2001). A detailed audit was carried out by the Scottish executive to identify potential ECHR challenges. Some legislation has been introduced to deal with incompatibilities.

5. See Government of Wales Act 1998, ss. 107, 108(1), 153(2); The Government of Wales Bill: Devolution and the National Assembly, House of Commons Research Paper 97/129 (14 Dec. 1998).

6. See B. Thompson, ‘Transcending Territory: Towards an Agreed Northern Ireland’, 6 Int. J. on Minority and Group Rights' (1999) 221.

7. On the extensive Scottish human rights jurisprudence see the website of the Scottish courts: <http://www.scotscourts.gov.uk>; Procurator Fiscal, Dunfermline and H.M. Advocate General for Scotland v Brown, PC [2001] UKHRR 333 (requirement to give evidence of identity of car driver did not violate Article 6 of Convention) H.M. Advocate v Little [1999] SLT 1145; Crummock (Scotland) Ltd v H.M. Advocate, The Times, 9 May 2000; ‘Human Rights in Scotland: The European Convention, the Scotland Act and the Human Rights Act’, (The Scottish Executive, <http:www.scotland.gov.uk)>.

8. See Northern Ireland Act 1998, ss. 6(2)(c), 24, 98(1), 100 and Schedule 14. See B. Dickson, ‘New Human Rights Protections in Northern Ireland’ (1999) 24 EL Rev., Human Rights Issue, 3; C. Harvey and S. Livingstone, ‘Human Rights and the Northern Ireland Peace Process’ [1999] EHRLR 162. A number of steps have been taken. Executive power was devolved in Dec. 1999.

9. HRA, s. 22(6).

10. For an explanation of their respective positions see HL Debs, 19 Jan. 1998, cols. 1307–8 (Lord Williams). Separate legislation will incorporate the ECHR in Jersey, Guernsey and the Isle of Man. The HRA also does not apply to any of the British Overseas Territories.

11. On the state of civil liberties in the UK prior to the HRA, but with a strong eye towards its entry see Halsbury's Laws of England, vol. 8(2), Constitutional Law and Human Rights (1996), separately reprinted as A. Lester and D. Pannick (eds.), Constitutional Law and Human Rights (1999). For post-HRA perspectives see D. Feldman, Civil Liberties and Human Rights in England and Wales (2nd edn) (forthcoming, 2001); H. Fenwick, Civil Rights—New Labour, Freedom and the Human Rights Act (2001). That the ‘liberty’ approach can still be of significance was evident in R v Secretary of State for Health exparte C [2000] UKHRR 639 (Department of Health's maintenance of a consultancy service index with the names of alleged child abusers was not unlawful).

12. See C. A. Gearty, ‘The United Kingdom’, in C. A. Gearty (ed.) European Civil Liberties and the European Convention on Human Rights, 53; R. Singh, The Future of Human Rights in the United Kingdom, ch. 2 (1997).

13. See J. Straw and P. Boateng, (both Members of Parliament), Bringing Rights Home, Consultation Paper [1997] EHRLR 71. ‘The commitment to introduce into domestic law a document devoted not to social and economic rights but to civil and political rights was … a significant step away from socialism and towards liberal constitutionalism’, Dignam and Allen, n. 270 below, 101. However, it is notable that it was Labour governments that negotiated and ratified the ECHR (1950) and accepted the right of individual petition (1965).

14. Cm 3782.

15. House of Lords, Bill 119 of 1997–8; The Human Rights Bill [HL], Bill 119 of 1997–8: The European Convention on Human Rights, House of Commons Research Paper 97/68 (27 May 1997). The Bill was a Home Office Bill. There was a Ministerial Sub-Committee on the Incorporation of the ECHR, chaired by Lord Irvine. See The Human Rights Bill [HL], Bill 119 of 1997–98: Some Constitutional and Legislative Aspects, House of Commons Research Paper 98/24 (13 Feb. 1998); B. Markesinis, (ed.), The Impact of the Human Rights Bill on English Law (1998); J. Wadham, ‘Bringing Rights Half-way Home’ [1997] EHRLR 141; F. Klug, ‘Rights Brought Home: A Briefing on the Human Rights Bill With Amendments’ (The Constitution Unit, Nov. 1997).

16. A significant factor in ensuring fulfilment was that the party leader, John Smith, who had given the commitment had died before Labour took power. Incorporation was seen as part of his personal legacy.

17. A leading critic is K. Ewing, ‘The Human Rights Act and Parliamentary Democracy’, 62 MLR (1999) 79. Some critics would assert that the Labour government did not fully realise the massive significance of the HRA on government and administration. It is difficult to substantiate that criticism. See also Clements, n. 307 below.

18. For the Parliamentary record see HL vol. 582, cols. 824, 1227; vol. 583, cols. 466, 490, 533, 754, 771, 823, 1091, 1138; vol. 584, cols. 1252, 1317; vol. 585, cols. 379, 747; vol. 593, col. 2084; HC vol. 306, col. 796; vol. 312, 975; vol. 313, col. 1294; J. Cooper and A. M. Williams (eds), Legislating for Human Rights (2000). See also C. A. Gearty, ‘The Impact of The Human Rights Act 1998’, in Roux n. 4 above.

19. See generally M. Hunt, Using Human Rights in English Courts (1997); M. Beloff and H. Mountfield, ‘Unconventional Behaviour? Judicial Uses of the European Convention on Human Rights in England and Wales’ [1996] EHRLR 476; M. Fordham, Judicial Review Handbook, (2 edn), 139–44 (1997); R. Clayton and H. Tomlinson, Law of Human Rights (2000), ch.2. Cf. F. Klug and K. Starmer, ‘Incorporation Through The Back Door‘[1997] PL 223;

20. R v Secretary of State for the Home Department, exparte Brind [1991] AC 696.

21. Se R. Singh, n. 12 above, ch. 1.

22. In 1996 the position in Scotland had been aligned to that in the rest of the UK, see A. Grotian, ‘The European Convention—A Scottish Perspective’ [1996] EHRLR 511.

23. See Lord Hoffman in R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 on the constitutional principle of ‘legality’.

24. Derbyshire County Council v Times Newspaper Ltd [1992] QB 770 at pp. 812 and 830. The House of Lords reached the same decision on the substance but without needing to rely on the ECHR [1993] AC 534; Reynolds v Times Newspapers [1999] 4 All ER 609; R v Secretary of State for the Home Department ex parte Q [2000] UKHRR 386. See also Turkington and Others v Times Newspapers [2001] UKHRR 184 (contemporary interpretation of a ‘public meeting’) on which see I. Loveland, ‘Freedom of Political Expression: Who Needs the Human Rights Act?’, PL [2001] 233.

25. Attorney-General v Guardian Newspapers [1987] 1 WLR 1248; R v Ministry of Defence, ex parte Smith [1996] QB 517; R v Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400; R v Khan [1997] AC 558 (on admissibility of evidence obtained through covert surveillance): the European Court of Human Rights found violations of Articles 8 and 13 but not Article 6(1) (12 May 2000); R v Gokal [1997] 2 Cr.App.R. 266 (on admissibility of hearsay evidence).

26. See R v Secretary of State, ex parte Norney [1995] 7 Admin.LR 48.

27. See Bugdaycay v Secretary of State for Home Department [1987] AC 514; N. Blake, ‘Judicial Review of Discretion in Human Rights Cases’ [1997] EHRLR 391; R v Secretary of State for the Home Department ex parte Simms [1999] 3 WLR 328 can be interpreted as going beyond the Brind approach.

28. See R v Chief Constable of Sussex, ex parte International Traders Ferry Ltd [1997] 2 All ER 65. Judicial review, even at the anxious scrutiny level, was insufficient to satisfy Article 13 ECHR in Lustig-Prean and Beckett v UK, Smith and Grady v UK (ECtHR, Sept. 1999).

29. See J. Laws, ‘Is the High Court the Guardian of Fundamental Constitutional Rights’, [1993] PL 59; Lord Irvine, ‘Judges and Decision-Makers: The Theory and Practice of Wednesbury Review’ [1996] PL 59; S. Sedley, ‘Human Rights: A Twenty First Century Agenda’, [1995] PL 39; id., ‘A Bill of Rights for Britain’ [1997] EHRLR 458; Lord Browne-Wilkinson, ‘The Infiltration of a Bill of Rights’ [1992] PL 397; Lord Bingham, ‘The European Convention on Human Rights: Time to Incorporate’, in R. Gordon and R. Wilmot-Smith (eds.), Human Rights in the United Kingdom, ch. 1 (1996); id., ‘Opinion: Should There Be A Law To Protect Rights of Personal Privacy?’ [1996] EHRLR 450. In the House of Lords debates on the HRA only Lord McCluskey was opposed.

30. See R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779; Young, n. 299 below.

31. Other routes by which the ECHR can be given effect are through EC and EU law, see Booker Aquaculture Ltd. v Secretary of State for Scotland [2000] UKHRR 1. See Grosz et al., n. 3 above, para. 1.18–1.23; M. Demetriou, ‘Using Human Rights Through EC Law’ [1999] EHRLR 484. More generally see P. Alston, (ed.), The EU and Human Rights (1999); D. McGoldrick, ‘The European Union After Amsterdam? An Organisation With General Human Rights Competence?’, in D. O'Keefe and P. Twomey (eds.), Legal Issues of the Amsterdam Treaty (1999); K. Feus (ed.), The EU Charter of Fundamental Rights (2000). The Council of Europe is extremely concerned at the risks of having two sets of fundamental rights. See Recommendation 1439 (2000), Resolution 1210 (2000) and Order No. 651 (25 Jan. 2000) of the Parliamentary Assembly of the Council of Europe. The Assembly has invited negotiations to enable the EU to accede to the ECHR as soon as possible, Resolution 1228, Recommendation 1479 and Order 567 (2000), 29 Sept. 2000.

32. The HRA does not diminish the pre-existing level of human rights protection, s. 11.

33. See J. Laws, ‘The Limitations of Human Rights’ [1998] PL 254.

34. See M. Taggert, ‘Tugging the Superman's Cape: Lessons from Experience with the New Zealand Bill of Rights Act 1990’ [1998] PL 266; A. S. Butler, ‘The Bill of Rights Debate: Why the New Zealand Bill of Rights Act 1990 is a Bad Model for Britain’, 17 OJLS (1997) 323; B. Emmerson, ‘Opinion: This Year's Model: The Options for Incorporation’ [1997] EHRLR 313.

35. ‘The Impact of the Human Rights Act: Lessons from New Zealand and Canada’, The Constitution Unit (London), (05 1999)Google Scholar; McLachlan, B., ‘The Canadian Charter and the Democratic Process’, in Gearty, C. A. and Tomkins, A. (eds.), Understanding Human Rights, ch. 2 (1996)Google Scholar; Ison, T., ‘A Constitutional Bill of Rights—The Canadian Experience’, 60 MLR (1997) 499CrossRefGoogle Scholar (critical of the ‘damage’ done by the Canadian Charter); G. W. Anderson (ed.) Rights and Democracy: Essays in UK/Canadian Constitutionalism (1999); Leigh, n. 202 below. On the use of Canadian jurisprudence see Part V below.

36. HL Debs, 3 Nov. 1997, col. 1228.

37. See Part VI below.

38. In this sense the HRA is an interpretative Act, see Part V below; S. Kentridge, ‘Parliamentary Supremacy and the Judiciary under a Bill of Rights: Some Lessons From the Commonwealth’ [1997] PL 96.

39. See the interesting contribution by Lord Hoffman, ‘Human Rights and the House of Lords’, 62 MLR (1999) 159 who points to significant differences in the history, culture, and political structures of the three countries. The idea of a constitutional court was similarly rejected in the devolution context, see D. Oliver, ‘The Lord Chancellor, the Judicial Committee of the Privy Council and Devolution’ [1999] PL 1.

40. In a sense, this mirrors the approach taken to EC law in the European Communities Act 1972 (as amended).

41. White Paper, n. 14 above, paras. 3.8–3.12. Note though that a Human Rights Commission and an Equality Commission have been established for Northern Ireland, see Northern Ireland Act 1998, ss. 68, 73.

42. See ‘A New Human Rights Committee for Westminster’ (The Constitution Unit, 1999); HC Debs., vol. 61, col. 146 (15 Jan. 2001). David Feldman is legal adviser to the Committee. In 2001 the Committee issued its first substantive reports questioning the compatibility of a number of bills with the EHCR. Other reports in 2001 concerned the Scrutiny of Bills, HL 73 and HC 448, and The Implementation of the HRA, HL 66-I, HC 332-I of Session 2000–01 (hereinafter Implementation Report).

43. The government did not intend to abolish the death penalty, see the White Paper, n. 14 above, para. 4.12. The result came from a backbench amendment. See D. Judge, ‘Capital Punishment: Burke and Dicey meet the European Convention on Human Rights’ [1999] PL 6. The UK subsequently ratified the Sixth Protocol on 20 May 1999. Acceptance extended to Guernsey, Jersey and the Isle of Man. As of 1 June 2001, the Sixth Protocol has been ratified by thirty-nine of the Council of Europe's forty-three members. See The Death Penalty—Abolition in Europe (Council of Europe, 1999).

44. Protocols 4 and 7 have not. Protocol 7 will be accepted after some amendments to existing laws to remove inconsistencies, see the White Paper, n.14 above, para. 4.14–15; government review, n. 46 below. Its provisions can then become part of the ‘Convention rights’ after an order by the Secretary of State, HRA, s. 1(4). Protocol 4 remains under review.

45. HRA, s. 1(2).

46. The reservation is concerned with resources. After a review of its position under international human rights instruments the government announced that it needed to retain this reservation (Mar. 1999, Home Office website).

47. For the background see Brogan v United Kingdom, Series A, no. 145, (1988) 11 EHRR 117; Brannigan and McBride v United Kingdom, Series A, No. 258–B (1993), (1993) 17 EHRR 539. The UK considered that the derogation needed to be retained until provisions for a judicial element were introduced, review n. 46 above. In Feb. 2001, the UK's derogation was withdrawn on the basis that the Terrorism Act 2000 introduced a system of judicial authority after forty-eight hours, see SI 2001/1216 Human Rights Information Bulletin, No. 52 (Council of Europe), pp. 3–4.

48. See HRA, ss. 14, 15.

49. HRA, s. 16.

50. HRA, s. 17.

51. Cf. Lord Wade's Bill of 1977 which would have done this.

52. HL Debs 29 Jan. 1998, cols 421–2. See also HL Debs, 18 Nov. 1997, col. 508.

53. For discussion of these omissions see Brooke LJ in Douglas and Zeta-Jones v Hello! Ltd, n. 209 below; C. A. Gearty, ‘The Human Rights Act 1998 and the Role of the Strasbourg Organs: Some Preliminary Reflections’, in Anderson, n. 35 above, at 171–5.

54. In Montgomery v Her Majesty's Advocate and the Advocate General for Scotland [2001] UKHRR Lord Hope stated that s. 57 and Sched 6 of the Scotland Act 1998 had the same intention.

55. HL Debs. 18 Nov. 1997, col. 475.

56. See also Home Secretary, 312 HC Debs. 981, 20 May 1998; F. Klug, ‘The Human Rights Act 1998, Pepper v Hart and All That’, [1999] PL 246. On Article 13 see Merrills, J. G., Human Rights in Europe (4th edn) (2001) 194–7.Google Scholar

57. This is remedied by Protocol 12 to the ECHR (2000). See its Explanatory Report. Protocol 12 enlarges to ‘any right set forth by law’ the non-discrimination clause in Article 14. Twenty-five States have signed the Protocol but the UK has no plans to ratify. See G. Moon, ‘The Draft Discrimination Protocol to the European Convention on Human Rights: A Progress Report’ [2000] EHRLR 49; A. Lester, ‘Equality and United Kingdom Law: Past, Present and Future’ [2001] PL 77. Cf. Article 13 of the Treaty of European Union. There is a general equality clause in Article 26 ICCPR and in the Canadian Charter, see C. J. M. Kimber, ‘Equality of Self-Determination’, in Gearty and Tomkins, n. 35 above, 266; P. Duffy, ‘A Case for Equality’ [1998] EHRLR 134.

58. Cf the 1977 amendment to the Swedish Social Security Act (s. 6) that specified in detail what was meant by the right to social assistance.

59. See K. Ewing, ‘The Human Rights Act and Labour Law’, 27 Industrial Law Journal (1998) 275; id., ‘Social Rights and Constitutional Law’, [1999] PL 104. Cf the EU Charter of Fundamental Rights, n. 31 above, which includes some social rights.

60. Cf Chapman v UK (2001) E Ct HR, paras. 71 ff. As of 29 Feb. 2000 there were thirty States Parties (including two non-Member States) to the Council of Europe's Framework Convention for the Protection of National Minorities. The first State reports were received in Feb. 1999. The fFirst UK report was received on 26 July 1999. Cf Article 27 of ICCPR. For ECHR applications related to minorities see S. Poulter, ‘The Rights of Ethnic, Religious and Linguistic Minorities’ [1997] EHRLR 254.

61. See A. McColgan, Women Under the Law (1999); M. Eberts, ‘The Canadian Charter of Rights and Freedoms: A Feminist Perspective’, in P. Alston (ed.), Promoting Human Rights Through Bills of Rights (1999), 241–82 (on balance, experience under the Charter was positive).

62. Azerbaijan became the forty-third member in 2001.

63. The practical effect may be different. Ireland announced its intention to incorporate in 1999. The outstanding Scaninavian States are also politically committed to incorporation. More generally see R. Blackburn and J. Polakiewicz (eds.), The European Convention on Human Rights—The Impact of the ECHR in the Legal and Political Systems of Member States over the Period, 1953–2000 (2001).

64. M. O'Boyle, ‘Establishing the New European Court of Human Rights: Progress to Date’ 4(3) Human Rights Law Review (Univ. of Nottingham), 3.

65. In force on 24 Nov. 1998, see SI 1998/2882. The other provisions indicated came into force with the HRA on 9 Nov. 1998, SI 2001/1851. See Clayton and Tomlinson, n. 19 above, 173–9.

66. See Implementation Report, n. 42 above.

67. See HL 5 May 1999, Written Answer, 93. The statement is reproduced in ‘The HRA 1998: Guidance for Departments’, 2nd edn (Home Office website), para. 36 and Annex A. See also para. 38 on good practice in relation to Private Members' Bills and para. 40 on secondary legislation.

68. Financial Services and Markets Bill (1999), Regulation of Investigatory Powers Bill (2000).

69. HRA, s. 19 (l)(b).

70. See ‘Core Guidance for Public Authorities’, Human Rights Task Force (on Home Office website), paras. 4, 6, 32, 39–42; Implementation Report n. 42 above (evidence of Home Secretary).

71. See Guidance to Departments, n. 67 above, para. 39 (broad lines of the argument should be identified). On practice in New Zealand see P. A. Joseph, ‘New Zealand's Bill of Rights Experience’, in P. Alston (ed.) Promoting Human Rights Through Bills of Rights (1999), 283–317.

72. HC Official Record (6th Series) (23 March 2000), 624W.

73. See SI 2000/1851.

74. £5 million was budgeted for judicial and tribunal training. The training on the HRA was the largest training exercise by the Judicial Studies Board in its history.

75. For general treatments of the HRA see J. Wadham and H. Mountfield, Blackstone's Guide to the Human Rights Act 1998, 2nd edn (2000); A. Lester and D. Pannick (gen. eds.), Human Rights Law and Practice (1998) and 1st Supplement (2000); K. Starmer, European Human Rights Law (1999); P. Duffy, A Guide to the Human Rights Act 1998 (1999); C. Baker (ed.) Human Rights Act 1998: A Practitioner's Guide (1998); P. Chandran, A Guide to the Human Rights Act 1998 (1999); R. De Mello (gen. ed.), The Human Rights Act 1998: A Practitioner's Guide (1999); M. Hunt and R. Singh, A Practitioner's Guide to the Impact of the Human Rights Act 1998 (forthcoming, 2001); Clayton and Tomlinson, n. 19 above; J. Simor and B. Emmerson, Human Rights Practice (loose-leaf, 2001); Grosz et al., n. 3 above; Markesinis, n. 15 above; S.Greer, ‘A Guide to the Human Rights Act 1998’, 24 E.L. Rev. (1999) 3; J. Coppel, The Human Rights Act 1998: Enforcing the ECHR in Domestic Courts (1999); K. Starmer and I. Byrne, Blackstone's Human Rights Digest (2001).

76. Two inter-departmental lawyers' groups were also established to discuss developments and to disseminate advice and good practice.

77. A specific Home Office web-site has the texts of published guidance, a study guide and reports on departmental progress: <www.homeoffice.gov.uk/hract>. See D. Feldman, ‘Whitehall, Westminster and Human Rights’, Public Policy and Management (July 2001) 19–24.

78. There was also a liaison group including representatives of the Bar Council, Law Society, the Scottish, Welsh and Northern Ireland Executives, and the Northern Ireland Human Rights Commission.

79. HRA, ss. 7(l)(b)and7(6).

80. See Shanshal v Al-Kishtaini, CA, The Times, 8 Mar. 2001; K. Kerrigan, ‘Unlocking the Human Rights Floodgates?’ [2000] Crim.L.R. 71.

81. See e.g. R v Lambert, Ali and Jordan [2000] UKHRR 864 (CA assumed that the HRA was in force because it could have delayed judgment until after its entry into force).

82. [2000] UKHRR 864.

83. In Kebilene, n. 1 above, the House of Lords rejected the view that s. 22(4) read with s.7(l)(b) only extended to the trial, 832, Lord Steyn. In R (Ben-Abdulaziz) v Haringey Borough Council and Another, The Times, 19 June 2001, the Court of Appeal held that proceedings for judicial review were not brought ‘by or at the instigation of a public authority’, namely the Crown, for the purposes of s. 22(4). In R v Kansal, The Times, 11 June 2001, the House of Lords expressed concern that the HRA could be used to found appeals on the basis that the law had changed and that this undermined the consistent practice of the Court of Appeal.

84. [1999] 4 All ER 801, DC and HL.

85. Lord Bingham, CJ, Laws, LJ, Sullivan, J.

86. Ibid., 812.

87. Ibid., 814. See also R v Francom, CA, The Times, 24 Oct. 2000, 19 (a judge's directions are designed to achieve the fairness required by Article 6).

88. Ibid., 815, Lord Bingham, CJ. Similarly Laws, LJ, at 826.

89. ‘In relation to the jurisdiction of the Crown court, other than its jurisdiction in matters relating to trial on indictment, the High Court shall have all such jurisdiction to make orders of mandamus, prohibition or certiorari as the High Court possesses in relation to the jurisdiction of an inferior court.’

90. Kebilene, n. 1 above, 856.

91. Ibid., 827, 833–6, 840.

92. Ibid. 834, Lord Steyn. See s. 9 HRA on proceedings in respect of judicial acts.

93. Ibid. 835–6, Lord Steyn.

94. More generally see P. Lewis, ‘The Human Rights Act 1998: Shifting the Burden’ [2000] Crim LR 667. In introducing the Terrorism Bill in December 1999, which retains the substance of the PTA's provisions, the Home Secretary made a statement of compatibility with Convention rights.

95. 14 Feb. 2000 (unreported).

96. G. Marshall, ‘Interpreting Interpretation in the Human Rights Bill’, [1998] PL 167; id., ‘Two Kinds of Compatibility: More about section 3 of the Human Rights Act 1998’ [1999] PL 377; Lord Lester, ‘The Art of the Possible—Interpreting Statutes under the Human Rights Act’ [1998] EHRLR 665; id., ‘Interpreting Statutes Under the Human Rights Act’ [1999] Stat.LR 218; R. A. Edwards, ‘Generosity and the Human Rights Act; the Right Interpretation’ [1999] PL 401(should be purposive rather than generous); Lord Irvine, ‘Activism and Restraints: Human Rights and the Interpretative Process’ [1999] EHRLR 350; Gearty, n. 18 above; Grosz et al., n. 3 above, ch. 3; Clayton and Tomlinson, n. 19 above, ch. 4.

97. For sophisticated analysis of the HRA in the context of the doctrine of implied repeal see Gearty, n. 18 above. Section 3 also applies to the HRA itself.

98. ‘In the event of an inconsistency, a UK court would be obliged to follow the ECJ rather than the Strasbourg court because of the overriding nature of E.C. law and the express direction in section 3(1) of the European Communities Act 1972 to determine the meaning and effect of the Community provisions and any qualifying national measures in accordance with any relevant decision of the ECJ. Once an inconsistency is revealed, it is not “possible” to comply with the interpretative obligation under section 3 of the 1998 Act in a way which is fully compatible with the Convention rights without derogating from the supremacy of community law which is achieved by section 2 of the 1972 Act. While compatible interpretation act may be possible from a linguistic point of view, the court's duty, derived from the supremacy of Community law, makes it a legal impossibility’, Grosz et al., n. 3 above, 1.22.

99. ‘The Human Rights Act is a statute of peculiar significance which either represents in its enactment, or has the potential to bring about, change in the order of a cultural transformation’, M. Hunt, ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’, 26 J Law & Soc. (1999) 86 at 87.

100. Rv A (Complainant's Sexual History), [2001] 3 All ER 1. Cf Brind, n. 20 above.

101. See F. Bennion, ‘What interpretation is “possible” under section 3(1) of the Human Rights Act 1998?’ [2000] Public Law 77 (‘Section 3(1) … should be taken as requiring the enactment in question to be construed according to the Developmental method, thus bringing it in the wider European system of purposive construction’, 91.

102. Kebilene, n. 1 above, 831. It is stronger than the interpretative obligation in s. 6 of the New Zealand Bill of Rights 1990, ‘whenever an enactment can be given a meaning that is consistent with [the Bill of Rights]. See Butler, A. S., ‘Declaration of Incompatibility or interpretation consistent with human rights in New Zealand’ [2001] PL 28 discussing R v Poumako [2000] NZL. 695Google Scholar (‘the traditional approaches to interpretation cannot be fully jettisoned if parliamentary sovereignty is to be meaningfully preserved’). Professor J. C. Smith observed that ‘Parliament will no longer, it seems be taken to have meant what it said’ [1999] Crim. LR 996.

103. The system of ‘declarations of incompatibility’ (see below) reinforces this point on implied repeal. See C. Munro, Studies in Constitutional Law, 2nd edn (1999), 169; Clayton and Tomlinson, n. 19 above, 170–1.

104. [2001] EWCA CIV 595, para. 75, [2001] 3 WLR 183.

105. Ibid., paras. 75–6. The CA would not insert the word ‘reasonable’ into the relevant statu tory provision because the effect would be very wide and would defeat Parliament's intention of providing certainty, Ibid., para. 77.

106. [2000] UKHRR 78.

107. Kebilene, n. 1 above, 817. Laws, J took the same view, 827.

108. [2001] UKHRR 184.

109. Ibid., 204.

110. [2001] HRLR 18, The Times, 6 Feb. 2001, 22.

111. [2001] HRLR 36, The Times, 2 Apr. 2001, 25.

112. See Gearty, n. 53 above, 175–91; Grosz et al., n. 3 above, ch. 2.

113. See HL Debs, 18 Nov. 1997, col. 513 (Lord Chancellor).

114. So it would include Articles 1 and 13.

115. The new European Court of Human Rights began in November 1998 but the old Commission continued to work for one more year. See A. R. Mowbray, ‘The Composition and Operation of the New European Court of Human Rights’ [1999] PL 219.

116. See HL Debs, 19 Jan. 1998, cols. 1268–72. Note that there is no system of binding precedent in Strasbourg jurisprudence. The Court tends to follow its own jurisprudence but there has been the appearance of reversal on a few occasions. Cf s. 3(1) European Communities Act 1972.

117. On transsexuals the European Court has indicated to States that they need to stay abreast of relevant medical and psychological understandings, see Sheffield and Horsham v UK, (1999) 27 EHRR 163. See Karsten, n. 278 below; Lord Chancellor, HL Debs, vol. 513, col. 514.

118. Fitzpatrick v Sterling Housing Association Ltd [2000] UKHRR 25, citing, inter alia, Brashi v Stahl Associates Co (1989) 544 NYS 2d 784.

119. [2001] HRLR33.

120. [2000] UKHRR 509.

121. Ibid., 513.

122. [2000] UKHRR 683.

123. 21 July 2000.

124. [2000] UKHRR 836.

125. The ECJ has such a doctrine. See also the discussion in Kleinwort Benson v Lincoln City Council [1999] 2 AC 349.

126. Kebilene, Ibid., 838–9, citing A-G of Hong Kong v Lee Kwong-Kut [1993] AC 951, Minister of Home Affairs v Fisher [1980] AC 319; A-G of The Gambia v Momodou Jobe [1984] AC 689.

127. [2000] UKHRR 864.

128. [1980] AC 319.

129. [2000] UKHRR 864 at 869.

130. See, eg, Starrs v Procurator Fiscal, Linlithgow [2000] UKHRR 78 (four Canadian judgments); Clancy v Caird [2000] UKHRR 509 (extensive discussion of Canadian decisions).

131. [2001] UKHRR 165.

132. Ibid., 179. The US case was Richmond Newspapers Inc v Virginia (1980) 448 US 555. A similar note of caution was sounded by Brooke LJ in Douglas and Zeta-Jones v Hello! Ltd, n. 209 below, para. 76, ‘This case vividly illustrates the rule that the courts in this country should be very cautious, now that the Human Rights Act is in force, when seeking to derive assistance from judgments in other jurisdictions founded on some different rights-based charter.’

133. Cf the broader jurisprudential linking of the Human Rights part of the South African Constitution, see D. Van Wyk, J. Dugard, B. De Villiers, and D. Davis, Rights and Constitutionalism—The New South African Legal Order (1996). Cf also B. Markesinis (ed.) The Gradual Convergence: Foreign Ideas, Foreign Influences, and English Law on the Eve of the 21st Century (1994).

134. Note, however, R v Havering Magistrates Court ex parte DPP, [2001] HRLR 23 in which Poole J referred to a clear and proper distinction between citations from case law and statute on the one hand and from academic commentary on the other.

135. Grosz et al., n. 3 above, paras. 3.43–3.51. The New Zealand Bill of Rights Act does not contain such a power but one was asserted by Thomas J in R v Poumako [2000] NZLR 695.

136. For details see HRA, s. 21(1) and for critical analysis see P. Billings and B. Pontin, ‘Prerogative Powers and the Human Rights Act’ [2001] PL 21 (noting the ‘profoundly arbitrary nature of the application of the Act to some prerogative powers, but not others’); Squires, D. B., ‘Judicial Review and the Prerogative after the Human Rights Act’, 116 LQR [2000] 572Google Scholar. An amendment that would have allowed courts to make a declaration of incompatibility where there was an absence of legislation was rejected by the government, See HL Debs, 24 Nov. 1997, cols. 15–16.

137. Ibid.

138. HRA, s. 4 (3)(4). See ‘The Impact of the Human Rights Act upon subordinate legislation promulgated before October 2, 2000’ [2000] PL 358–67; D. Squires, ‘Challenging Subordinate Legislation under the Human Rights Act’ (2000) EHRLR 116.

139. See HL Debs, 18 Nov. 1997, col. 546 (Lord Chancellor).

140. HRA, s. 5. See The Criminal Appeal (Amendment) Rules 2000, SI 2000/2036, The Civil Procedure Amendment No.4) Rules 2000, SI 2000/2092, Family Proceedings (Amendment) Rules 2000, SI 2000/2267, rule 10. R v A [2001] All ER (D) 215 (Home Secretary given leave to be joined as a party in an interlocutory appeal), see n. 146 below. In Donoghue v Poplar Housing and Regeneration Community Association Limited [2001] EWCA CIV 595, [2001] 3 WLR 183, the CA suggested that (i) the formal notice should always be given by the court with jurisdiction to make the declaration, (ii) a party should give as much informal notice to the Crown as possible, (iii) notices to the Crown should be given to a person named in the list published under s. 17 of the Crown Proceedings Act 1947.

141. UKHRR [2001] 270 (QBD).

142. [2001] 3 All ER 229.

143. [2001] HRCR 36.

144. [2001] 3 All ER 229.

145. [2000] UKHRR 439.

146. T[2001] 3 All ER 1. See also In ReWandB (Children: Care Plan, In Re W (Child: Care Plan), The Times, 7 June 2001, CA (no fundamental incompatibility between the Children Act 1989 and HRA but there needed to be adjustments and innovations in the construction and application of the Children Act in relation to care plans).

147. [2001] EWCA CIV 595, [2001] 3 WLR 183.

148. See text to n. 105 above.

149. HRA, s. 4 (6)(a).

150. HRA, s. 4 (6)(b).

151. Kebilene, n. 1 above, 815, LordBingham, CJ.

152. It is also easy to imagine some family cases in which it would be difficult for the court not to seek to affect the positions of the parties.

153. This aspect of the legislation received virtually no recognition or comment. It reflects the practice of the UK to comply with judgments of the European Court but it is a very important institutionalisation of it. See Recommendation R (2000) 2 (19 Jan. 2000) of the Committee of Ministers of the Council of Europe on ‘Re-examination or re-opening of certain cases at domestic level following judgments of the European Court of Human Rights, <http://www.coe.fr/cm/ta/rec/2000/2000r2.htm>.

154. Section 10 cannot be used in relation to a Measure of the Church Assembly or of the General Synod of the Church of England, s. 10(6).

155. The normal course will be to pass primary legislation through the normal Parliamentary processes.

156. There is a standard procedure and one for when matters are urgent, Schedule 2, para. 2(a)(b).

157. Schedule 2, para. (l)(l)(b). ‘no person is to be guilty of an offence solely as a result of the retrospective effect of a remedial order’, Ibid., para. 1 (4). On the implications for Parliamentary Sovereignty see Feldman, n. 293 below.

158. HL Deb., col. 840 (5 Feb. 1998). In R v A (Complainant's Sexual History), [2001] 3 All ER 1, Lord Steyn described a declaration of incompatibility as a measure of last resort‥

159. Such a statement might be used under the Pepper v Hart rule.

160. A suggested example of where a Government might resist is legislation on abortion. The example tends to be a tendentious one because there is no support in ECHR jurisprudence for a view that UK legislation on abortion is inconsistent with the ECHR.

161. Grosz et al., n. 3 above, ch. 4; Clayton and Tomlinson, n. 19 above, ch. 5.

162. See Bamforth, N., ‘The Application of the Human Rights Act to Public Authorities and Private Bodies’, 58(1) Cambridge LJ (1999), 159.Google Scholar

163. See s. 6(6) on ‘act’. See the discussion on failure to act in Clancy v Caird [2000] UKHRR 509.

164. The duty does not apply if the authority could not have acted differently because of primary legislation or was giving effect to primary legislation or provisions made under primary legislation which could not be read compatibly with the Convention rights, HRA, s.6(2).

165. See Lord Chancellor, HL Debs, 24 Nov. 1997, cols. 809–11. In R v Advertising Standards Authority Ltd and Another, exparte Matthias Rath BV and Another, [2001] HRLR 22, the ASA did not argue, but would not concede, that it was a public authority.

166. Cf. M.Colvin, Under Surveillance: Covert Policing and Human Rights Standards (JUSTICE, 1998).

167. See A. Finlay, ‘The Human Rights Act: The Lord Chancellor's Department's Preparations for Implementation’ [1999] EHRLR 512 (the first in a series of articles on government departments); Implementation Report n. 42 above.

168. HRA, s. 6(3)(a), Lord Chancellor, HL Debs, 24 Nov. 1997, cols. 810–11.

169. See D. Oliver, ‘The Frontiers of the State: Public Authorities and Public Functions under the Human Rights Act’ [2000] PL 476 (warning that ‘In effect broad interpretations of “public authority” and “public function” would roll forward the frontiers of the state and roll back the frontiers of civil society, not by any means a politically neutral process’, 477). However, the functional approach adopted by the HRA should mean that a private body exercising a public function could be subject to the s. 6 duty in one context but still be a victim of a Convention violation in another. Only governmental bodies cannot be a victim of an ECHR violation.

170. This does not include either House of Parliament or a person exercising functions in connection with proceedings in Parliament, s. 6 (3) (b). The rationale is the sovereignty of Parliament.

171. See, e.g., HL Debs. vol. 583, col. 812, 24 Nov. 1997 HRACee (HC), vol. 413, col. 407, 17 June 1998. Ewing, n. 17 above, 90, at n. 70, notes that ‘judicial review proceedings under Order 53 will not always be available against such bodies’.

172. In response to the question whether ‘a body that spends taxpayers’ money, or fulfils a statutory function, or has Government appointees on its governing body constitute a public authority for the purposes of the Bill' the response was that ‘That will be a matter for the courts, but it would appear likely to be so’, HC Debs, 16 Feb. 1998, col.860 (Mr O'Brien).

173. See Royal Society for the Prevention of Cruelty to Animals v Attorney-General and Another [2001] All ER (D) 188 (RSPCA not a public authority and had no public functions. The regulation of membership was a private act within s. 6(5)).

174. See D. Oliver, Common Values and the Public Private Divide (1999).

175. HL Debs vol. 583, col.796 (24 Nov. 1997). Compare the list in the Freedom of Information Act 2000.

176. HC Debs. vol. 314, cols. 406, 408, 410 (17 June 1998). Presumably analogies will also be made with EC jurisprudence on what constitutes an emanation of the State, see Foster v British Gas [1990] 3 All ER 897; National Union of Teachers v Governing Body of St Mary's Church of England (Aided) Junior School [1997] 3 CMLR 630.

177. See R v Panel on Take-Overs and Mergers, ex parte Datafin Plc [1987] QB 815; R v Advertising Standards Authority ex parte Insurance Services plc [1989] Tr LR 169; R v Football Association ex parte Football League [1993] 2 All ER 833; R v Disciplinary Committee of the Jockey Club ex parte Aga Khan [1993] 1 WLR 909; R v Cobham Hall School ex parte S [1988] ELR 389; Scott v National Trust for Places of Historic Interest or Natural Beauty [1998] 2 All ER 705. See HC Debs vol 314, cols. 408–10 (17 June 1998).

178. See ‘Core Guidance’, n.70 above, para. 20.

179. See Fordham, n. 19 above, 314–17. See, for example, the fine line drawn between employment matters in R v East Berkshire Health Authority, ex parte Walsh [1985] QB 152 and R v Prosecution Service, ex parte Hogg (1994) Admin.L.R. 778; Ewing, n. 59 above, p. 285 (on employees of mixed functions).

180. [2001] EWCA CIV 595, [2001] 3 WLR 183 (Lord Woolf CJ gave the judgment of the court).

181. [1987] QB 815.

182. QBD (Admin. Court), 15 June 2001 (unreported).

183. [2001] 3 All ER 393.

184. See SI 2000/2092. More generally RSC Order 53 is revoked and replaced by Part 54 (Judicial Review).

185. See Miles, J., ‘Standing Under the Human Rights Act 1998: Theories of Rights Enforcement & the Nature of Public Law Adjudiation’, 59 Camb.LJ (2000) 133.CrossRefGoogle Scholar

186. See Harris, D., O'Boyle, M., and Warbrick, C., Law of the ECHR, 632–8 (1995).Google Scholar

187. See Fordham, n. 19 above, 436–51; R v Secretary of State for Foreign Affairs, exparte World Development Movement [1995] 1 WLR 386; R v Sefton Metropolitan Borough Council, ex parte Help the Aged [1997] 4 All ER 532; R v Lord Chancellor, exparte Child Poverty Action Group [1998] 2 All ER 755.

188. The Lord Chancellor indicated that courts would be able to continue to allow third parties to file amicus briefs in human rights cases, notwithstanding the victim requirement, HL Debs. 27 Nov. 1997, col. 832–3.

189. R v Inspectorate of Pollution, exparte Greenpeace (No.2) [1994] 4 All ER 329.

190. See Grosz et al., n. 3 above, ch. 5. In Biggin Hill Airport Ltd v Bromley London Borough Council, The Times, 9 Jan. 2001, the issue of whether a group of residents of Bromley were victims was raised but not decided. Even assuming they were the judge considered that the court was not acting unlawfully in granting the declaration on the interpretation of a lease.

191. [2001] UKHRR 165.

192. See I. Leigh and L. Lustgarten, ‘Making Rights Real: The Courts, Remedies, and the Human Rights Act’, 58 CLJ 509; D. Feldman, ‘Remedies for Violations of Convention Rights under the Human Rights Act’, [1998] EHRLR 691; Grosz et al., n. 3 above, ch. 6; Clayton and Tomlinson, n. 19 above, chs 21–2.

193. See text to n. 56 above.

194. See M. Amos, ‘Damages for Breach of the Human Rights Act 1998’ [1999] EHRLR 179; Law Commission, No. 266, Damages under the Human Rights Act (2000).

195. HRA, s. 8 (2).

196. HRA, s. 8 (3).

197. See R v Secretary of State for the Home Department exparte Chahal (Karamjit Singh) [2000] UKHRR 215 (assessing the relevant factors in EUCT's discretion to award damages).

198. For a critical view see A. R. Mowbray, ‘The European Court of Human Rights’ Approach to Just Satisfaction' [1997] PL 647. See also R. Carnwath, ‘E.C.H.R. Remedies from a Common Law Perspective’, 49 ICLQ (2000) 517

199. HRA, s. 7 (5)(b).

200. HL Debs, 24 Nov. 1997, col 783 (Lord Chancellor). See also Ewing, n. 59 above.

201. See White Paper, n. 14 above, para. 2.8. See R v Central Criminal Court ex parte The Guardian, The Observer and Martin Bright [2000] UKHRR 796.

202. See generally ‘The Human Rights Bill [HL], Bill 119 of 1997–8: Privacy and the Press’, House of Commons Research Paper 98/25 (13 Feb. 1998); I. Leigh, ‘Horizontal Rights, the Human Rights Act and Privacy: Lessons From the Commonwealth’, 58 ICLQ (1999) 57; R. Mullender, ‘Privacy, Paedophilia and the European Convention on Human Rights: a Deontological Approach’ [1998] PL 384; Sir Jonathon Mance, ‘Privacy and Article 8 of the European Convention on Human Rights’ (1999); Markesinis, n. 219 below.

203. ‘Relief includes any remedy or order (other than in criminal proceedings), HRA, s. 12(4). Criminal proceedings were excluded because it was considered that it would make trials very complicated.

204. Among the bodies which have privacy codes are the British Broadcasting Corporation, the Broadcasting Standards Commission, the Independent Television Commission, and the Press Complaints Commission.

205. However, an amendment that would have given precedence to Article 10 over Article 8 rights was rejected. See J. Griffiths and T. Lewis, ‘The Human Rights Act s. 12—Press Freedom over Privacy?’, 10(2) Ent.L.R. (1999) 36.

206. See Part IX below.

207. [2001] 2 All ER 385.

208. [1975] AC 396.

209. [2001] UKHRR 270.

210. Ibid., para. 137.

211. [2001] FCR 541. See also BBC, Petitioners (No.2), The Times, 13 June 2000 (Article 10 of ECHR not breached by restricted television transmission of the Lockerbie trial).

212. [2000] UKHRR 875. See also Ashworth Security Hospital v MGN Ltd, The Times, 10 Jan. 2001. (order to newspaper to disclose identity of wrongdoers did not violate article 10).

213. [2001] 1 All ER 908.

214. Ibid., 6 Feb. 2001.

215. See Ewing, n. 17 above, 93–5; P. Cumper, ‘The Protection of Religious Rights under section 13 of the Human Right Act 1998’ [2000] PL 254.

216. Another response of the government was to amend the then School Standards and Framework Bill so as to explicitly cover such appointments.

217. Cf ‘Same-sex Marriage and Freedom From Discrimination in New Zealand’, [1998] PL 396 on Quilter v Attorney-General (no prima facie discrimination).

218. An amendment that would have given absolute priority to Article 9 was rejected. For an exceptional case where a Church Council was considered to be a public authority see n. 183 above.

219. M. Hunt, ‘The ‘Horizontal Effect’ of the Human Rights Act, [1998] PL 423 (Cited with appoval by Sedley LJ in Douglas and Zeta-Jones v Hello! Ltd, n. 209 above); H. W. R. Wade, ‘Human Rights and the Judiciary’, [1998] EHRLR 520; id., ‘Horizons of Horizontality’, 116 LQR (2000) 217Google Scholar; Phillipson, G., ‘The Human Rights Act, “Horizontal Effect” and the Common Law: A Bang or a Whimper?’, 62 MLR (1999) 824CrossRefGoogle Scholar; N. Bamforth, ‘The True Horizontal Effect of the Human Rights Act 1998’, PL [2001] 34; Markesinis, B., ‘Privacy, Freedom of Expression, and the Horizontal Effect of the Human Rights Bill: Lessons From Germany’, 115 LQR (1999) 47Google Scholar. More generally see A. Clapham, Human Rights in the Private Sphere (1996).

220. See text to n. 52 above.

221. Buxton, R., ‘The Human Rights Act and Private Law’, 116 LQR (2000), 48.Google Scholar

222. See Marckx v Belgium, (1979) 2 EHRR 330; X and Yv Netherlands (1985), 8 EHRR 235.

223. [2001] UKHRR 223.

224. Ibid., para. 91. See also Sedley LJ, Ibid., para. 130.

225. HRA, s. 6 (6).

226. HRA, s. 6 (3)(a).

227. HL Debs, 18 Nov. 1997, col 521.

228. See Lord Chancellor, text to n. 200 above; Lester and Pannick, n. 75 above, 31–2; id., ‘The Impact of the Human Rights Act on Private Law: The Knight's Move’, 116 LQR (2000) 380Google Scholar; Grosz and Beatson, Ibid., 385.

229. ‘Whether this is called direct or indirect effect or a new cause of action seems to be a matter of words and to make no intelligible difference’, Wade, n. 219 above (2000). Lester, and Pannick, , ‘The Impact of the Human Rights Act on Private Law: The Knight's Move’, 116 LQR (2000) 380Google Scholar, disagree and argue that full horizontality based on s. 6 would frustrate the scheme of the HRA.

230. [2001] 2 All ER 289; [2001] EMLR 9, para. 129. See also Royal Society for the Prevention of Cruelty to Animals v Attorney-General and Another [2001] All ER (D) 188 (status of a court as a public authority did not infringe upon the question whether one party to the proceedings before it has a convention right to which another party is bound to give effect).

231. [2001] UKHRR 184.

232. Ibid., 202.

233. The Times, 8 Mar. 2001. See also Biggin Hill Airport Ltd v Bromley London Borough Council, The Times, 9 Jan. 2000 (third parties could not be joined to an action on the basis that their right under the ECHR would be infringed when the contract was entered into before HRA came into force).

234. See Howell, J., ‘The Human Rights Act 1998: the “Horizontal Effect” on Land Law’, in E. Cooke (ed.), Modern Studies in Property Law (2001) 149–60.Google Scholar

235. The Times, 15 June 2001.

236. R. Singh, M. Hunt, and M. Demetriou, ‘Is there a Role for the “Margin of Appreciation” in National Law after the Human Rights Act’ [1999] EHRLR 15; D. Pannick, ‘Principles of Interpretation of Convention Rights under the Human Rights Act and the Discretionary Area of Judgment’ [1998] PL 545; Fenwick, H., ‘The Right to Protest, the Human Rights Act and the Margin of Appreciation’, 62 MLR (1999) 491.CrossRefGoogle Scholar

237. A common law rule can satisfy these tests. In R v Advertising Standards Authority Ltd and Another, ex parte Matthias Rath BV and Another, [2001] HRLR 22, adjudications published by the ASA under its non-statutory code were ‘prescribed by law’.

238. Many cases fall on this hurdle, see Goodwin v UK (1996) 22 EHRR 123. See Feldman, D., ‘Proportionality and the Human Rights Act 1998’, in E. Ellis (ed.) The Principle of Proportionality in the Laws of Europe (1999), 117.Google Scholar

239. The origins of the concept lie in the consideration to derogations under Article 15. It does not just apply to Articles with limitation clauses. See Osman v UK, 5 BHRC, para. 147 (1998) on access to court; C. A. Gearty, ‘Unravelling Osman’, 64 MLR (2001) 159. In T.P. and K.M. v UK, ECtHR, Grand Chamber, 10 May 2000: paras. 84–103 (on Article 6) and 104–110 (on Article 13), and Z v UK paras. 78–104 (on Article 6) and paras. 105–11 (on Article 13) the Court shifted the emphasis of analysis from Article 6 to Article 13.

240. Hutchinson, M. R., ‘The Margin of Appreciation Doctrine in the European Court of Human Rights’, 48 ICLQ (1999), 632CrossRefGoogle Scholar; C. Y. Yourow, The Margin of Appreciation Doctrine in the Dynamics of European Human Rights Jurisprudence (1996); ‘Seminar Report on the Margin of Appreciation: Its Legitimacy in Theory and Application in Practice’, 19 HRLJ (1998) 1–36;Google Scholar A. McHarg, ‘Reconciling Human Rights and the Public Interest: Conceptual Problems and Doctrinal Uncertainty in the Jurisprudence of the European Court of Human Rights’, 62 MLR (1999) 671; N. Lavender, ‘The Problem of the Margin of Appreciation’ [1997] EHRLR 380; Merrills, n. 56 above, 221–8.

241. See Harris et al., n. 186 above, 12–15, 290–301; P. Van Dijk and G. van Hoof, Theory and Practice of the European Convention on Human Rights, 92–3, 3rd edn (1998).

242. (1976) 1 EHRR 737.

243. This was the situation of the UK legislation on homosexuality in Northern Ireland in Dudgeon v UK (1981) 4 EHRR 149. Submissions relying on variations in law and practice of States in the Council of Europe would need to have supporting evidence. In Strasbourg the judges themselves can possess knowledge of variations.

244. ‘This technique is not available to the national court when they are considering convention issues arising within their own countries’, Kebilene, n.l above, 844, Lord Hope. See Laws, n. 33 above, 258; Beatson et al., n. 2 above 70 (Kentridge) 102 (Duffy), 107 (Lester), Grosz et al., n. 3 above, para. 2.05, CO-17.

245. See Lord Hope, Ibid., citing Lester and Pannick, n. 75 above, para. 3.21; Anderson, Doherty and Reid v The Scottish Ministers and the Advocate General for Scotland [2000] UKHRR 439 (in assessing balance between right of patients and perceived dangers to members of the public the courts should give due deference to the assessment which the democratically elected legislature has made of the policy issues involved); R v Stafford JJ. Ex parte Imbert [1999] 2 Cr.App.R. 276 (Buxton LJ); Guidance for Departments, n. 67 above, paras. 84–88; R v Lambert, CA, The Times, 5 Sept. 2000 (courts should pay a degree of deference to the view of Parliament as to what was in the interest of the public generally while upholding the rights of the individual under the Convention).

246. [2000] UKHRR 864.

247. Ibid., 871. See also Donoghue v Poplar Housing and Regeneration Community Association Limited, pp. 927–9 above.

248. [2000] UKHRR 403.

249. Ibid. 413.

250. The Times, 26 Oct. 2000 (QBD).

251. [2001] UKHRR 124 (PC).

252. Ibid. 142.

253. Ibid. 133.

254. Ibid. 165.

255. Ibid. 177.

256. See text to n. 245 above. See C. A. Gearty, ‘Democracy and Human Rights in the European Court of Human Rights: A Critical Appraisal’, 51 (3) NILQ (2000) 381 (failure distinctly to locate the margin of appreciation in a coherent theory of representative democracy is a missed opportunity’, 387).

257. This may be a matter of semantics. See D. McGoldrick and T. O'Donnell, ‘Hate-Speech Laws: Consistency with National and International Human Rights Law’, 18 Legal Studies (1998) 453 (considering in part the Human Rights Committee's decision in Faurisson v France).

258. Cf Hutchinson, n. 240 above, for two ways of understanding the margin. He accepts though that ‘we are only ever interested in the bottom end of the margin of appreciation’, 648.

259. The Home Office website contains a statistical analysis.

260. See nn. 3–8 above.

261. Over 600 cases, having a significant influence in sixty, estimate of K. Starmer.

262. Internet search of BAILLI.

263. Home Office Website.

264. See R v An Immigration Officer ex parte Quaquah [2000] UKHRR 375 (necessity for there to be identified countervailing circumstances which would compellingly outweigh an applicant's rights); R v Secretary of State for the Home Department ex parte Mahmood (Amjad), UKHRR [2001] 307 (on approach to judicial review in the light of HRA), followed in R v Secretary of State for the Home Department ex parte Peter Isiko and Susan and Shemo Isiko (CA) [2001] UKHRR 385; R (Daly) v Secretary of State for the Home Department, The Times, 25 May 2001 (see in particular the judgments of Lord Steyn (on differences between Wednesbury and Smith approaches) and of Lord Cooke (day would come when it would be more widely recognised that Wednesbury was an unfortunately regressive decision in English administrative law).

265. See G. Nardell, ‘Collateral Thinking: the Human Rights Act and Public Law Defences’ [1999] EHRLR 293; M. Supperstone and J. Coppel, ‘Judicial Review after the Human Rights Act’ [1999] EHRLR 301; C. A. Gearty, ‘Article 6(1) of the ECHR and Administrative Law’ (1999); R. Gordon and T. Ward, Judicial Review and the Human Rights Act (2001); Mare, T. de la, ‘The Human Rights Act 1998: The Impact on Judicial Review’ (1999) 4 Judicial Review (1999) 33Google Scholar (arguing that the victim test does not apply to an application for judicial review whose sole purpose is to seek a declaration of admissibility); K. Steyn and D. Wolfe, ‘Judicial Review and the Human Rights Act: Some Practical Considerations’ [1999] EHRLR 614; Austin, R. C., ‘The Impact of the Human Rights Act 1998 upon Administrative Law’, 52 Current Legal Problems (1999), 200.CrossRefGoogle Scholar

266. See M. Smyth, ‘The UK's Incorporation of the European Convention and its Implications for Business’ [1998] EHRLR 273; id., Business and the Human Rights Act 1998 (2000); N. Bratza, ‘The Implications of the Human Rights Act 1998 for Commercial Practice’ [2000] EHRLR 1.

267. See Morris, D., ‘Charities, Politics and Freedom of Speech’, 5 Charity Law and Practice Review (1999) 219Google Scholar; Warburton, J. and Cartwright, A., ‘Human Rights, Public Authorities and Charities’, 6 Charity Law and Practice Review (2000) 169Google Scholar; The Human Rights Bill [HL], Bill 119 of 1997–98: Churches and Religious Organisations, House of Commons Research Paper 98/26 (13 Feb. 1998).

268. See Fortin, J., ‘Rights Brought Home for Children’, 62 Modern L.R. (1999) 350CrossRefGoogle Scholar; Ghandhi, P. R. and James, J. A., ‘Parental Rights to Reasonable Chastisement and the European Court of Human Rights’, 3 Int.J.H.R. (1999) 97Google Scholar; U. Kilkelly, The Child and the ECHR (1999).

269. See S. Burn, ‘The Right to a Fair Hearing in Civil Disputes’, Human Rights (Mar. 2001, Jordans) 15.

270. See A. Dignam and D. Allen, Company Law and the Human Rights Act (2000).

271. S. Uglow, ‘Covert Surveillance and the European Convention on Human Rights’, Crim.L.R. (1999) 287.

272. See Riley, A. J., ‘The Human Rights Act 1998: Triple Trouble for the OFT?’, 8 (2) Nottingham LJ (1999) 1.Google Scholar

273. See Archbold, Criminal Pleading, Practice and Evidence (1999), ch. 16; D. Cheney, L. Dickson, J. Fitzpatrick and S. Uglow, Criminal Justice and the Human Rights Act 1998 (1999); B. Emmerson and A. Ashworth, Human Rights and Criminal Justice (2001); The Human Rights Act and the Criminal Justice and Regulatory Process (University of Cambridge Centre for Public Law, 1999)Google Scholar; K. Starmer et al. Criminal Justice, Police Powers and Human Rights (2001). A. T. H. Smith, ‘The Human Rights Act and the Criminal Lawyer: The Constitutional Context’ (1999) Crim. LR 251; A. Ashworth, Ibid., ‘Article 6 and the Fairness of Trials’, 261; S. D. Sharpe, ‘Article 6 and the Disclosure of Evidence in Criminal Trials’, Ibid., 273; P. Leach, ‘Automatic Denial of Bail and the European Convention’, Ibid., 300; R. Buxton, ‘The Human Rights Act and Substantive Criminal Law’, [2000] Crim.L 331 and reply by Ashworth, 564; T. Murphy and N. Whitty, ‘What is a Fair Trial? Rape Prosecutions, Disclosure and the Human Rights Act’, 8 Feminist Studies (2000) 113; Bail and the Human Rights Act (Law Commission, No. 157, 1999), which includes an Appendix by D. Feldman on the role of precedent in the ECHR case law and the potential impact of the HRA on the doctrine of stare decisis in English law.

274. See Young, A. L., ‘Fact, Opinion, and the Human Rights Act 1998: Does English Law Need to Modify its Definition of “Statements of Opinion” to Ensure Compliance with Article 10 of the European Convention on Human Rights’, 20 OJLS (2000) 89.CrossRefGoogle Scholar

275. See A. Bradley, ‘Scope for Review: The Convention Right to Education and the Human Rights Act 1998’ [1999] EHRLR 395 (on Schools, Heads, Universities).

276. See Morris, G. S., ‘The Human Rights Act and the Public/Private Divide in Employment Law’, 27 Industrial Law Journal (1998) 293;CrossRefGoogle Scholar id., ‘The ECHR and Employment: To Which Acts Does it Apply?’ [1999] EHRLR 469; Palmer, S., ‘Human Rights: The Implications for Labour Law’, 59 CLJ (2000) 168CrossRefGoogle Scholar; D. J. Christie, ‘Bringing Rights to the Workplace’, [2000] Juridical Review 74; V. Craig, ‘Employment Tribunals and the European Convention on Human Rights’, [2000] Juridical Review 129; D. O'Dempsey, A. Allen, S. Belgrave and J. Brown, Employment Law and the Human Rights Act 1998 (2001); Rideout, R. W., ‘The Enforcement of Human Rights in Employment’, 52 Current Legal Problems (1999), 239CrossRefGoogle Scholar; Ewing, n. 59 above.

277. See Garner's Environmental Law, Special Bulletin on Human Rights (2000).

278. See H. Swindells, M. Kushner, A. Neaves, and R. Skilbeck, Family Law and the Human Rights Act (1999); See M. Horowitz, G. Kingscote, and M. Nicolls, The Human Rights Act 1998—A Special Bulletin for Family Lawyers (Family Law Service, 1999); I. Karsten, ‘Atypical Families and the Human Rights Act: The Rights of Unmarried Fathers, Same Sex Couples and Homosexuals’ [1999] EHRLR 195; Family Proceedings (Amendment) Rules 2000, SI 2000/2267; Family and Civil Procedure Practice Directions, Part 16; Practice Direction (Family Proceedings: Human Rights), The Times, 12 Oct. 2000.

279. See N. Blake and L. Fransman (eds) Immigration, Nationality and Asylum under the Human Rights Act 1998 (1999). The Statement of Changes in Immigration Rules (Cm 4851) took account of a Departmental HRA preparatory review.

280. More generally see I. Cameron, National Security and the ECHR (Kluwer/ Iustus Forlag, 2000).

281. See M. Beloff and M. Hunt, ‘Current Topic: The Green Paper on Legal Aid and International Human Rights Law’ [1996] EHRLR 5.

282. See M. Supperstone, J. Goudie and J. Coppel, Local Authorities and the Human Rights Act 1988 (2000).

283. D. O'Sullivan, ‘The Allocation of Scarce Resources and the Right to Life under the European Convention on Human Rights’ [1998] PL 389. J. MacBride, ‘Protecting Life: A Positive Obligation to Help’, 24 ELRev. (1999) HR/43; M. Freeman, ‘Death, Dying, and the Human Rights Act 1998’, 52 Current Legal Problems (1999), 218. For a pre-HRA decision reflecting the importance of the right to life see R v Lord Saville of Newdigate and others, ex parte A and others [1999] 4 All ER 860. See also National Health Service Trust v D, [2000] 2 FLR 677 (approach of English courts on withholding medical treatment was consistent with the ECHR); NHS Trust A v M, NHS Trust B v H, The Times, 29 Nov. 2000 (principles in Airedale National Health Trust v Bland were not contrary to Articles 2 or 3 ECHR).

284. O. Thorold, ‘The Implications of the European Convention on Human Rights for UK Mental Health Legislation’, [1996] EHRLR 619 (pre-HRA assessment).

285. County Properties Ltd v The Scottish Ministers, The Times, 19 Sept. 2000 (violation of independence in planning process); I. Loveland, ‘The Compatibility of the Land Use Planning System with article 6 of the ECHR’ [2001] J.Planning Law 535.

286. Property law in its multifold dimensions may be more affected than expected for the right to property in the ECHR is one of the most fertile areas of development. See J. Howell, ‘Land and Human Rights’, [1999] Conveyancer 287.

287. See E. Palmer, ‘Resource Allocation, Welfare Rights—Mapping the Boundaries of Judicial Control in Public Administrative Law’, 20 OJLS (2000) 63.

288. See Graham, C., ‘Human Rights and Public Utilities’, 9 Utilities LR (1998) 52Google Scholar; Hamilton, S., ‘The Human Rights Act and the Regulation of Utilities’, 10 Utilities LR (1999) 115.3.0.CO;2-C>CrossRefGoogle Scholar

289. See Harris et al., n. 186 above, 630.

290. See Lord Irvine, ‘The Development of Human Rights in Britain under an Incorporated Convention on Human Rights’ [1998] PL 221.

291. See Lord Hoffman, n. 39 above, at 161, ‘its potential impact has been greatly exaggerated’.

292. See also C. A. Gearty, n. 18 above.

293. See Feldman, D., ‘The Human Rights Act 1998 and Constitutional Principles’, 19 Legal Studies 1999, 165CrossRefGoogle Scholar; Fredman, S., ‘Judging Democracy: The Role of the Judiciary Under the Human Rights Act’, 53 Current Legal Problems (2000) 99CrossRefGoogle Scholar; The Human Rights Bill [HL], Bill 119 of 1997–8: Some Constitutional and Legislative Aspects, House of Commons Research Paper 98/27 (13 Feb. 1998); R. Hazell (ed.) Constitutional Futures: A History of the Next Ten Years (1999); Klug, F., ‘Can Human Rights Fill Britain's Morality Gap?’, 68(2) Political Quarterly (1997), 143.CrossRefGoogle Scholar

294. ‘It is crystal clear that the carefully and subtly drafted 1998 Act reserves the principle of parliamentary sovereignty’, Kebilene, n. 1 above, 831, Lord Steyn. See N. Bamforth, ‘Parliamentary Sovereignty and the Human Rights Act’ (1999) PL 573.

295. See Feldman, nn. 293 above and 304 below.

296. Arguably there is a difference in international law terms if repeal of the EC Act was treated as necessarily violating EC treaties and the doctrine of supremacy in EC law. By contrast, repeal of the HRA would not violate the ECHR which has been interpreted as not requiring domestic incorporation.

297. See S. Kentridge, ‘Parliamentary Supremacy and the Judiciary under a Bill of Rights: Some Lessons From the Commonwealth’ [1997] PL 96.

298. See Sedley, S., Freedom, Law and Justice (Hamlyn Lectures, 1999).Google Scholar

299. See K. Ewing, ‘The Politics of the British Constitution’ [2000] PL 405 and reply by T. R. S. Allen at 374; J. Young, ‘The Politics of the Human Rights Act’, 26 J.Law & Soc. (1999) 27; T. Campbell, Ibid., 6; Implementation Report, n. 42 above (evidence from NGOs).

300. See Mrs Justice Arden, ‘Criminal Law at the Crossroads: The Impact of Human Rights from the Law Commission's Perspective and the Need for a Code’ [1999] Crim. Law Rev. 439.

301. See C. Harvey, ‘The Politics of Rights and Deliberative Democracy: The Process of Drafting a Northern Irish Bill of Rights’ [2001] EHRLR 48.

302. See L. Clements and J. Young (eds), ‘Human Rights: Changing the Culture’, 26 J.Law & Soc. (special edn., 1999) 1; Implementation Report, n. 42 above (evidence from government departments and NGOs on building a human rights culture).

303. See F. Klug, K. Starmer and S. Weir, The Three Pillars of Liberty (1996); J. Black-Branch, ‘Entrenching Human Rights Legislation under Constitutional Law: The Canadian Charter of Rights and Freedoms’ [1998] EHRLR 312.

304. See D. Feldman, ‘Human Dignity as a Legal Value’, [1999] PL 682 (Part I), [2000] PL 61 (Part II); F. Klug, Values for a Godless Age—the Story of the UK's New Bill of Rights (2000).

305. The HRA was expected to increase the length and number of contested cases coming before the courts. The first year did not produce an increase in cases overall or a longer average time for cases, see Implementation Report, n. 42 above (evidence from Lord Chancellor).

306. The HRA does not specifically address legal aid. The Lord Chancellor indicated that ‘proceedings related to rights under the Bill [would] receive their fair share of the money available under the reformed legal aid system’, HL Debs, 27 Nov. 1997 col. 1092. In many cases a HRA point will be an additional ground of challenge or argument. In terms of legal aid forms a human rights point is the second highest category for which priority is granted. See the Access to Justice Act 1999. The availability of legal aid in criminal cases facilitates the greater possibility of HRA challenges in that field.

307. For trenchant criticism see L. Clements, ‘The Human Rights Act—A New Equity or a New Opiate: Reinventing Justice or Repackaging State Control?’, 26 J.Law & Soc. (1999) 72. See Gayne v Vannet, High Court of Judiciary (Sc), (1999) SLT 1292 (fixed fee limitations on legal aid funding did not breach Article 6 ECHR); Procurator Fiscal, Fort William v Norman McLean and Peter McLean, The Times, 4 June 2001, PC, (no inconsistency with Article 6 ECHR on the facts of the case where legal aid for defence lawyer was a fixed sum, but possibility of inconsistency not excluded). Remedial regulations were being considered by the Scottish executive. There may be an increase in the number of special costs orders.

308. See Singh, n. 12 above, ch. 7.

309. See Disability Rights Commission Act 1999; B. Doyle, Disability Discrimination Law (3rd edn, 2001).

310. A report on ‘The Future of Multi-Ethnic Britain’ (Runnymede Trust, Oct. 2000) recommended the establishment of an Equality Commission.

311. See n. 42 above. The establishment of the Committee was suggested in the White Paper, n. 4 above, paras. 3.6–3.7.

312. In 2001 the Committee called for evidence on this issue. See S. Spencer and I. Bynoe, A Human Rights Commission: The Options for Britain and Northern Ireland (IPPR, 1998); S. Beckett and I. Clyde, ‘A Human Rights Commission for the United Kingdom: the Australian Experience’ [2000] EHRLR 131.

313. In 2002 human rights was explicitly included in the national curriculum.

314. Cf R v Greater Belfast Coroner ex parte Northern Ireland Human Rights Commission, The Times, 11 May 2001 (majority decision that Commission had no such powers).

315. See Hunt, M., ‘The Human Rights Act and Legal Culture: The Judiciary and the Legal Profession’, 26 J.Law & Soc. (1999) 86.CrossRefGoogle Scholar

316. See Barclays Bank v Ellis, CA, The Times, 24 Oct. 2000, on citing human rights law (argument needed to be formulated and advanced in a plausible way); Walker v Daniels [2000] UKHRR 648 (essential to take a responsible attitude as to when it is right to raise a human rights point so that HRA is not discredited; Article 6 ECHR added nothing to the issue on appeal; judges need to be robust in resisting ECHR arguments when inappropriate); R v Perry, CA, 3 Apr. 2000 (unnecessary references to ECHR could bring it into disrepute); Practice Direction (Justices: Clerk to Court) The Times, 11 Oct. 2000 (responsibility of Justices Clerk to raise ECHR points).

317. See Lord Irvine, n. 96 above; Falconer, Lord, ‘The Role of the Courts in the Devolution and Human Rights Arrangements’, 21 Liverpool LR (1999) 1Google Scholar; I. Loveland, ‘Incorporating the European Convention on Human Rights into UK law’, (1999) Parliamentary Affairs 113; Cf K. Martens, ‘Incorporating the European Convention: the Role of the Judiciary’, [1998] EHRLR 6.

318. Millennial Lecture, Liverpool Law School, 3 Oct. 2000. ‘Whilst there is some evidence of a more purposive and rights-centred approach in recent decisions, there have also been notable exceptions, and it is not difficult to find examples of cases in which the espousal of liberal canons of interpretation has been accompanied by disappointingly narrow decisions on the facts’, N. Roberts, ‘The Law Lords and Human Rights: The Experience of the Privy Council in Interpreting Bills of Rights’, [2000] EHRLR 147 at 179.

319. See S. Tierney, ‘Convention Rights and the Scotland Act: re-defining judicial roles’, [2001] PL 38; Griffith, J. A. G., ‘The Brave New World of John Laws’, 63 MLR (2000) 159CrossRefGoogle Scholar; id., ‘The Common Law and the Political Constitution’, 117 LQR [2001] 42Google Scholar and reply by S. Sedley at 68; Fredman, n. 293 above. See also the evidence and examination of Lords Bingham, Phillips and Woolf in Implementation Report, n. 42 above.

320. Another factor is a possible challenge under the HRA against the Lord Chancellor based on Article 6 ECHR and relying on McGonnell v UK, ECtHR, The Times, 22 Feb. 2000.

321. [2001] UKHRR 1.

322. Article 2 ECHR applied only to cases where the purpose of the prohibited action was to cause death. It did not import any prohibition of the proposed operation other than those which were found in the common law of England.

323. See R v H [1994] 2 NZLR 143, R v Grayson, NZ Court of Appeal, 26 Nov. 1996. See also R v Lambert, Ali and Jordan [2000] UKHRR 864 (there could not be different standards of fairness under Article 6 ECHR).

324. R v P and Others, HL, The Times, 19 Dec. 2000 (the fair use of intercept evidence at a trial was not a breach of Article 6 ECHR even if it had been unlawfully obtained); R v B, Attorney-General's Reference No.3 of 1999, The Times, 15 Dec. 2000 (there was no principle of Convention law that unlawfully obtained evidence was not admissible); Official Receiver v William George Stern and Mark Stephen Lawrence Stern [2000] UKHRR 332.

325. [2001] AC 91.

326. [2000] UKHRR 683 (on the facts the convictions were found to be unsafe). See also Locabail (UK) Ltd and Another v Waldorf Investment Corporation and Other (No.4), The Times, 13 June 2000 (a stay of proceedings would be granted pending an application to the European Court of Human Rights only where the remedy sought against the defendant State in that court would, if granted, lead to an alteration in the law directly affecting the rights of a party bearing upon the subject-matter of that litigation).

327. [2001] 3 All ER 463.

328. See Ewing, n. 59 above, Morris, n. 276 above, and Oliver, n. 174 above.

329. See Part IX above.

330. Clayton and Tomlinson, n. 19 above, 251–7.

331. See Lord Hoffman, n. 39 above, who supports such an approach partly out of fear of imposition of ‘Voltarean uniformity of values upon all member states’ (see his discussion of the Osman case).

332. See n. 239 above.

333. See P. Alston (ed.), Promoting Human Rights Through Bills of Rights (1999).

334. See ‘Mechanisms for Entrenchment and Protection of a Bill of Rights: The New Zealand Experience’ [1997] EHRLR 492 at 495. See also Lord Reid in Starrs v Chalmers, n. 106 above, ‘the Convention guarantees the protection of … rights through legal processes, rather than political processes’.