Dignity, Fairness and Good Government: The Role of a Human Rights Act - Lord Bingham
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Dignity, Fairness and Good Government: The Role of a Human
Rights Act
Lord Bingham, former Senior Law Lord of the United Kingdom
Speech to Human Rights Law Resource Centre
Mallesons Stephen Jaques, Melbourne, 9 December 2008
It would clearly test to destruction the tolerance of the ordinary
red-blooded Australian to have a Pom getting off the plane from London and
telling them how to run their country. So I shall not presume to say how the
current human rights debate in this country should be resolved. But perhaps I
may contribute some thoughts, prompted by our own experience in the United
Kingdom, acknowledging as I do so that the Australian context, while in some
ways similar, is in others significantly different.
In the autumn of 1992 I was appointed Master of the Rolls – in effect,
the president of the civil Court of Appeal of England and Wales – and was
interviewed by a radio journalist who asked what single change I would most like
to see made in the law. I said my choice would be to incorporate into domestic
law the European Convention on Human Rights, to which the UK had formally
acceded in 1951, the first state to do so. This was not a novel or original
choice on my part. The former head of my chambers in the Temple (Lord Scarman)
had strongly argued for incorporation, in his Hamlyn Lectures of
1975[1] and even more particularly
after his retirement in 1986. Two Bills providing for incorporation had passed
through the House of Lords, only to fail in the Commons. In recent years
incorporation had been championed by a number of prominent advocates, among them
Lord Lester QC. But in 1992 both the main parties, for rather different
reasons, were adamantly opposed to the idea, which was supported only by the
numerically weak Liberal Democrats. On 2 March 1993 I developed my reasons for
favouring incorporation in a Denning Lecture entitled ‘The European
Convention on Human Rights: Time to
Incorporate’.[2] By then,
however, the political scene had had altered significantly: just before my
lecture, the late John Smith, then leader of the Labour Party in opposition,
encouraged (as I understand) by his shadow Lord Chancellor (Lord Irvine), had
adopted incorporation of the Convention as part of the Labour Party’s
programme. This, despite misgivings in some sections of the party, it
thereafter remained.
It is well-known that the European Convention, like the Universal Declaration
which it followed, found its genesis in the horrors which had afflicted much of
the world in the 1930s and 1940s. The victorious allies, Britain and France,
were prominent in promoting and drafting the Convention, wanting to share with
other less fortunate nations the rights and freedoms which they took for
granted. After all, we had grown up on Magna Carta and they on the Declaration
of the Rights of Man and the Citizen of 1789. I do not think either country
foresaw that its own laws and institutions would be subjected to scrutiny and
found wanting.
By the 1990s, however, there was no longer room for complacency in Britain
that we had nothing to learn. As early as the 1950s, complaints made by Greece
about British conduct in Cyprus had caused official
embarrassment.[3] One suspect had
been ‘subjected to the Chinese water torture’, or what we may now
refer to as
‘waterboarding’.[4] A
15-year old suspect had been whipped so severely as to require treatment in
hospital.[5] After the rather casual
grant by the British Government of a right of individual petition to the
European Court of Human Rights in Strasbourg in 1966, the rate of applications
to Strasbourg sharply increased and so did the incidence of decisions adverse to
the UK. Thus violations were found in relation to the right to
life[6], the right not to be subjected
to inhuman or degrading treatment[7],
the right to personal liberty[8], the
right to a fair trial[9], the right to
respect for private life,[10] the
right to freedom of expression[11],
the right to freedom of
association[12] and the right not to
be discriminated against in the enjoyment of Convention
rights.[13] Throughout this period
the orthodox rule was that, the Convention not being part of English law, no
notice could be taken of it by the British
courts[14], save interstitially, as
for instance where a statutory provision was found to be capable of bearing two
meanings, one consistent and one inconsistent with the international obligations
of the UK as expressed in the Convention, in which event preference was to be
given to the former.[15] The
context of course was that the United Kingdom was bound in international law to
observe the Convention and comply with Strasbourg decisions to which it was
party, and it was regarded as unthinkable to renounce the Convention.
It seemed to me in the early 1990s, and still does, that this orthodox
approach had at least four grave weaknesses. First, it meant that complaints
reached the European institutions at Strasbourg without the benefit of a
domestic judgment addressing the Convention issues. Sometimes such a judgement
would have made no difference; quite often it would. It is rather a sterile
process to exhaust domestic remedies when there are no domestic remedies to
exhaust. It was always my expectation that the UK’s record would improve
when the court in Strasbourg had the benefit of a British judgment, and so it
has proved.
Secondly, it seems to me hugely important that a domestic legal system should
command the confidence of the public as one which is inclusive, belongs to them
and affords a remedy for obvious wrongs. It is destructive of such confidence
if there is a justified belief that for a significant category of serious wrongs
the domestic court can offer no remedy and the disappointed litigant is obliged
to go away and seek this superior justice abroad. Such, until the Human
Rights Act 1998 came into force, was the position.
Thirdly, it was very undesirable that members of the public should have been
put to the expense and the very considerable delay of seeking redress in
Strasbourg for a Convention complaint which could, had the Convention been part
of domestic law, have been granted more inexpensively and much more quickly at
home.
The fourth weakness was the most serious of all. If the rights and freedoms
embodied in the Convention were, as described, ‘fundamental’, it was
a grave defect that they were not fully protected in domestic law. Of course,
many of them were protected by the common law and statute and a mixture of the
two, and the judges on the whole did their best to remedy perceived injustices.
But the coverage was piecemeal, as evident from the record of cases lost by the
UK at Strasbourg, and it is not easy to see why fundamental rights and freedoms
should not be directly and expressly recognised in domestic law without taxing
the ingenuity of the judges.
Perhaps I may give just one example to illustrate these weaknesses. In X
(Minors) v Bedfordshire County
Council[16] five child
plaintiffs complained that they had been the victims of maltreatment and neglect
which had been brought to the attention of the defendant council but on which,
for a long time, the council had failed to act. The facts, only assumed when
the strike-out application was heard in England, but established or accepted
when the claimants took their complaint to Strasbourg, were very strong. An
experienced and highly respected child psychiatrist described the
children’s experiences as ‘to put it bluntly, horrific’ and
added that it was the worst case of neglect and emotional abuse that she had
seen in her professional career.[17] The local authority’s failure to intervene, which had permitted the abuse
and neglect to continue, was held by a majority of the Court of Appeal and
unanimously in the House of Lords to afford the children no tortious remedy in
negligence against the local authority in English law. So the children applied
to Strasbourg under the Convention. It was there accepted that the neglect and
abuse suffered by the children reached the threshold of inhuman and degrading
treatment[18] and a violation of
article 3 of the Convention was found, arising from the failure of the system to
protect the children from serious, long-term neglect and
abuse.[19] The court awarded
compensation amounting to £320,000, a very large figure by Strasbourg
standards.[20]
So the Labour Government of 1997, fresh to office after a long period of
Conservative government, inspired by Lord Irvine, introduced what became the
1998 Act. The general thrust of that Act will be very familiar to this
well-armed audience, but perhaps I may comment on five features of it. First,
the cornerstone of the Act is the provision in section 6(1) which makes it
unlawful for any public authority, widely defined so as to include a court or
tribunal, to act in a way which is incompatible with a Convention right. Thus
Parliament was requiring compliance with the scheduled Convention rights across
the whole spectrum of government, Parliament itself, alone, excluded.
Second is the power conferred on the higher courts by section 4, if satisfied
that a provision of primary legislation is incompatible with a Convention right,
to make a declaration of incompatibility. This was not to affect the validity
of the statute and was not to be binding on the parties, but it would be a
formal statement of the court’s view. If a declaration was made,
ministers were empowered but not obliged to put it right. Thus there was to be
no power to annul, strike down or set aside primary legislation. The reason for
this unusual device was very clearly explained in the White Paper introducing
the Bill:
The Government has reached the conclusion that the courts should not have the
power to set aside primary legislation, past or future, on the ground of
incompatibility with the Convention. This conclusion arises from the importance
which the Government attaches to Parliamentary sovereignty. In this context,
parliamentary sovereignty means that Parliament is competent to make any law on
any matter of its choosing and no court may question the validity of any Act
that it passes. In enacting legislation, Parliament is making decisions about
important matters of public policy. The authority to make those decisions
derives from a democratic mandate. Members of Parliament in the House of
Commons possess such a mandate because they are elected, accountable and
representative. To make provision in the Bill for the courts to set aside Acts
of Parliament would confer on the judiciary a general power over the decisions
of Parliament which under our present constitutional arrangements they do not
possess, and would be likely on occasions to draw the judiciary into serious
conflict with Parliament. There is not evidence to suggest that they desire
this power, nor that the public wish them to have it. Certainly, this
Government had no mandate for any such
change.[21]
These closing sentences were, I think, completely accurate. There was no
judicial pressure for more sweeping powers, and had the Bill not preserved
parliamentary sovereignty, it is perhaps unlikely that it would have passed.
The Government’s expectation at the time was that there would be
relatively few declarations of incompatibility, and this has proved to be the
case.
The Government’s expectation in this regard was attributable to the
third feature of the Act to which I draw attention. This was the requirement in
section 3(1) of the Act that “So far as it is possible to do so, primary
legislation and subordinate legislation must be read and given effect in a way
which is compatible with the Convention rights.” I emphasise the
imperative “must”. This provision also was explained by the White
Paper:
2.7 The Bill provides for legislation – both Acts of Parliament and
secondary legislation – to be interpreted so far as possible so as to be
compatible with the Convention. This goes far beyond the present role which
enables the courts to take the Convention into account in resolving any
ambiguity in a legislative provision. The courts will be required to interpret
legislation so as to uphold the Convention rights unless the legislation itself
is so clearly incompatible with the Convention that it is impossible to do
so.2.8 This ‘rule of construction’ is to apply to past as well as to
future legislation. To the extent that it affects the meaning of a legislative
provision, the courts will not be bound by previous interpretations. They will
be able to build a new body of case-law, taking into account the Convention
rights.[22]
Thus the intention and the expectation were that use of this unusual
interpretative power would obviate the need for declarations of incompatibility
in all but a small minority of cases.
The fourth feature I would mention, less well known than the others I have
mentioned, is the obligation placed by section 19 on a Minister in charge of a
Bill in either House of Parliament, before its second reading, either to make a
statement that in his view the provisions of a Bill are compatible with the
Convention rights, or to make a statement to the effect that although he is
unable to make a statement of compatibility the Government nonetheless wishes
the House to proceed with the Bill. This second course was followed in relation
to what became the Communications Act 2003, because of doubt about the
effect of Strasbourg authority, but that was a rarity and the first course is
the norm. Thus a Government Bill is ordinarily presented to Parliament on the
premise that it is (in the jargon) Convention-compliant, reflecting the
intention of the Human Rights Act as a whole that the scheduled rights should be
reflected across the whole spectrum of public administration.
The fifth feature, which is well-known, is a requirement that British courts,
when determining questions which have arisen in connection with Convention
rights, must take into account any judgement, declaration or advisory opinion of
the European Court (or an opinion or decision of the Commission or the Council
of Ministers).[23] This has been
understood, in my view correctly, as meaning that Strasbourg authority is not
strictly binding on UK courts, like the law of the European Community, but that
UK courts should ordinarily follow it unless there is some good reason for not
doing so.
The UK, like Australia, is party to the International Covenant on Civil and
Political Rights, 1966, many of the articles of which (although differently
numbered) match corresponding provisions of the European Convention. But I
think it is true to say that in the UK the impact of the ICCPR and the rulings
of the Human Rights Committee of the UN have been very marginal compared with
those of the Strasbourg institutions. It is no doubt unwelcome, perhaps even a
little humiliating, for a proud sovereign state to be found by any respected
international body to have violated important human rights, but it must be very
doubtful whether the UK’s experience of reverses in the Human Rights
Committee would have impelled it to give domestic effect to the rights in the
ICCPR. To that extent at least, the situation in Australia differs from that in
the UK.
As is well known, the Human Rights Act 1998 has attracted much media
criticism in the UK, particularly in the tabloid and right-wing press and in
sections of the Conservative party. Much of this criticism has been the product
of misrepresentation and misunderstanding and there is a tendency to blame the
Act for almost anything of which the public disapprove. But among many
ill-directed criticisms are some points which are serious and call for
consideration. Whether these are points which have relevance in an Australian
context I do not know, and must leave you to judge.
First, it is sometimes argued that the Act is unnecessary, that common law
and statute can readily be interpreted and applied to provide the protection
that is needed. Up to a point this is true. There are well-known cases in
which, although the Convention is invoked, the courts find the common law and
the Convention jurisprudence to be in harmony and choose to base their decision
on the common law alone.[24] But
the common law and statute have not always provided adequate protection, as
evidenced by the British record of failure at Strasbourg before 2000, when the
Act came into force. As was explained in the White Paper, already referred to,
one of the reasons for this record of failure was that
There has simply been no framework within which the compatibility with the
Convention rights of an executive act or decision can be tested in the British
courts: these courts can of course review the exercise of executive discretion,
but they can do so only on the basis of what is lawful or unlawful according to
the law in the United Kingdom as it
stands.[25]
Thus the Act was necessary if, in accordance with the UK’s duty in the
international law under article 1 of the Convention, the rights embodied in the
Convention were to be secured to everyone within the jurisdiction of the UK in
the domestic courts, without the need for a journey to Strasbourg.
It is said, secondly, that the effect of the Act is to undermine the
sovereignty of Parliament. I do not find this point entirely easy to
understand. As I have tried to show, the Act was very carefully devised so as
to preserve parliamentary sovereignty. It was a surprise to many when, in the
course of e-mail exchanges with Henry Porter, an Observer journalist,
Tony Blair himself appeared to misunderstand this fundamental premise of the
Act.[26] But there is, I suggest,
no room for doubt. The courts cannot annul an Act of Parliament. They can
declare it to be incompatible with a Convention right, but that does not affect
its validity or effect. Ministers may act to rectify a provision declared to be
incompatible but are not obliged to do so and may, if they choose, leave the
complainant to try his luck in Strasbourg. And it cannot, I think he suggested
– nor, to my knowledge, has it been suggested – that Parliament
lacks the power to repeal the Act if the necessary majority favours that cause.
There are some statutes, like that giving equal voting rights to women, which
parliament is exceedingly unlikely to repeal, and the 1998 Act may be or become
one of them, although repeal would not free the UK of its international law duty
to comply with the Convention. But I think it clear that, domestically,
Parliament has maintained the whip hand, as was always intended.
A third criticism is that the process established by the Act is undemocratic,
since it permits decisions of the nation’s representatives in Parliament,
including particularly elected members of the House of Commons, to be challenged
by unelected judges. It is of course true that a declaration of incompatibility
questions the lawfulness of primary legislation, and exercise of the
interpretative power in section 3 of the Act may involve the interpretation of
legislation in a sense which it is acknowledged Parliament did not intend. This
has been described as a strong
obligation[27], and such it is. But
if one asks what authority these unelected judges have for departing from their
usual role of seeking to give the words of a statute the meaning which
Parliament intended its words to bear, the answer is clear: they have the
authority of a mandatory instruction issued to them by Parliament itself. To
determine whether it is possible to read and give effect to primary and
subordinate legislation in a way which is compatible with Convention rights of
course calls for what may be a difficult and controversial exercise of judgment,
but judgment is what judges are paid to exercise, even if unelected. It must
nonetheless be accepted that any Bill or Charter of Rights is, in one sense,
undemocratic in that it is counter-majoritarian. Its purpose is to give a
measure of protection to minorities who lack the strength and the representation
to obtain protection through the political process: prisoners, mental patients,
gypsies, homosexuals, asylum-seekers, despised racial or religious minorities
and the like. It was recognition by the American Founding Fathers that a
majority may exert its power to oppress a minority – a phenomenon amply
demonstrated in the country’s history – which inspired the 1791
amendments to the US Constitution, comprising the US Bill of Rights and such is
the inspiration of later instruments also. Chief Justice Sir John Latham made
the point very succinctly when he said that in Australia the popular minorities
can generally look after themselves; protective laws are basically needed for
minorities and especially unpopular
minorities.[28]
A fourth criticism of the HRA is that it gives too much power to the judges,
in particular, to make decision of a sensitive and personal nature. It is true,
I think, that the Act leads to judges making decision of a rather different kind
from those they were used to making. This was recognised in Parliament when the
Bill was debated, and was an intended consequence. But the judges are still
making what are distinctively judicial decisions. They have to establish the
facts, which are often crucial. They have a text, contained partly in the Act
and partly in the Convention rights scheduled to the Act. They have principles
of interpretation to apply, some of them deriving from domestic sources, some
from Strasbourg and other international sources. They have a body of precedent
to work on, some of it from Strasbourg, some domestic, some from other sources,
some of it binding, some not. The task which the judges perform is not
different in kind from their conventional role, and they have of course to give
reasons, based on the text, the principles of interpretation and the
authorities, for reaching whatever conclusion they do. They are not
metamorphosed into legislators. Nor is any decision made by a judge which is
not in the last resort made by a judge under the pre-existing regime. The
question, at least for the UK, was which judge should make the decision in the
first instance.
Then it is said – a fifth criticism – that the Act is a source of
mischief because it involves the judges in political controversy and makes for
conflict between the Government and the judiciary. It is certainly true that in
the UK the courts have given some decisions under the Act which have been very
unpopular with the Government. But that is also true of judicial review
decisions not given under the Act. There is, as I have suggested
elsewhere,[29] an inevitable and
proper tension between the two arms of government. Particularly when confronted
by serious threats such as terrorism, governments understandably seek to
exercise their powers to the limit of what is lawful. But in doing so they may
cross the line which divides the lawful from the unlawful, and then it is the
constitutional role of the courts so to hold. There are countries in the world
where all judicial decisions find favour with the powers that be, but they are
not countries where one would wish to live. Governments of course have no
greater appetite for losing cases that any other litigant, perhaps even less;
but most would recognise that losing cases on occasion is part of the price to
be paid for the rule of law.
A sixth criticism, sometimes made in the UK by those who generally favour a
bill or charter of rights, is that the HRA gives domestic effect to the wrong
rights, either because the Convention, now nearly 60 years old, is looking
rather dated, or because it does not give effect to distinctively British
rights. Neither of these criticisms is in my view at all persuasive. The age of
the Convention is not very relevant since the articles are expressed (like
chapter 39 of Magna Carta 1215) in very broad terms, and the Strasbourg court
has treated the Convention as a living
instrument:[30] the meaning of the
articles does not change but their application has been held to do so in
relation, for example, to the distinction between inhuman and degrading
treatment and torture and the treatment of
homosexuals[31] and
transsexuals.[32] The second point
is also misplaced. There is nothing un-British or foreign about the content of
the Convention rights, to which British negotiators made a great contribution.
Nor, in the land which gave birth to Magna Carta and the Bill of Rights 1689, is
there anything antithetical to the UK Constitution in the notion of a Bill or
Charter of Rights. There are, no doubt, rights which could be added to those
guaranteed by the European Convention and its protocols, but the Convention
imposes a minimum, not a maximum: any state which wishes to secure more
extensive rights than the Convention guarantees is not precluded from doing so.
The Act is also criticized, seventhly, not for doing too much but for doing
too little. For instance, Henry Porter, a respected Observer journalist,
has deplored the failure of the Act to stem the seemingly inexorable increase of
personal surveillance in
Britain,[33] making the British
perhaps the most watched people in the free democratic
world.[34] I share the
author’s concern. But I question whether this result can be attributed to
a defect in the Convention. The courts can, after all, only rule on complaints
which litigants choose to bring before them and it seems that on the whole the
British public is less concerned about official intrusion into their private
affairs than one might expect, perhaps because they do not appreciate the extent
to which it is going on.
I come to an eighth criticism. This is that the effect of the Convention is
to elevate the rights of the individual over those of the community to which he
or she belongs. I do not consider this to be a justified criticism. While some
of the Convention rights (such as the prohibition of torture) are expressed in
unqualified terms and have, on occasion, been applied in an unqualified
way,[35] it has repeatedly been held
in Strasbourg that ‘inherent in the whole of the Convention is a search
for a fair balance between the demands of the general interests of the community
and the requirements of the protection of the individual’s fundamental
rights’;[36] a theme loyally
echoed in the domestic cases.[37] To the extent that individual rights have been improperly preferred to community
rights, this is a perversion, not an implementation, of the Convention.
A ninth criticism of the Act is that it provides a field day, and rich
pickings, for lawyers. Before it came into force there was indeed a worry that
the courts would be swamped by an uncontrollable flood of claims. This has not
happened. There have been a considerable number of claims under the Act, but
they have been manageable and the pickings have not been rich. Under the
statute now in force in Victoria there has, as I understand, been a surprising
reluctance to rely on the Act.
The tenth and last criticism which I would mention is, if justified, the most
serious of all: that the Convention gives rise to much wrong decision making.
This must not be a matter of opinion. There are Strasbourg decisions which I
myself consider wrong,[38] and
domestic decisions also which I have been party to
overruling.[39] It is not, however,
uncommon that judicial decisions fail to command universal acceptance, and I do
not think that the incidence of aberrant decision-making is greater in this
field than in others. Challenged to identify decisions they criticise as
foolish or mischievous, most critics either falter or fall back on what turn out
to be not judicial decisions but misconceived interpretations of the Act by
official bodies. What is perhaps more remarkable, because more unusual, is the
development of a constructive dialogue between the UK courts and that at
Strasbourg. Where the Strasbourg court gives a judgment which the UK courts
venture to criticise, the Strasbourg court has on more than one occasion shown a
refreshing wiliness to modify its position.
These are, I think, the main criticisms directed at the Human Rights
Act and the European Convention. As will be obvious, they do not, in my
opinion, amount to very much. They do not begin to outweigh the very real
benefit which the Act confers by empowering the courts to uphold certain very
basic safeguards even – indeed, particularly – for those members of
society who are most disadvantaged, most vulnerable and least well-represented
in any democratic representative assembly. Decisions have undoubtedly been made
in the UK which have, in my view, been beneficial and which would not - in some
cases could not – have been made without the mandate given by the Act.
Examples are plentiful, but among those which spring readily to mind are the
ordering of a public enquiry into the beating to death of a young Asian detainee
by a rabidly racist and violent detainee put into the same cell at a young
offenders’ institution;[40] a
finding that the conditions in which prisoners were held at Barlinnie Prison in
Glasgow amounted to inhuman or degrading treatment or
punishment;[41] a finding that the
indefinite detention of a foreign national suspected of association with
terrorism without charge or trial was disproportionate, irrational and
discriminatory;[42] a finding that
an 18-hour curfew, coupled with stringent restrictions on where the subject
could go, whom he could meet and whom he might speak to, amounted to an unlawful
deprivation of liberty;[43] a
finding that temporary judges in Scotland lacked the security necessary to make
them appear to be an independent and impartial
tribunal;[44] an order restraining
the return of a mother and child to Lebanon, where the child would be required
to live with a violent father she had never
met;[45] a finding that the police
had unlawfully interfered with a demonstration against the Iraq war outside a
Royal Air Force base in
Gloucestershire;[46] and an order
condemning as discriminatory and disproportionate a scheme requiring immigrants
seeking to marry otherwise than under the rites of the Church of England to
obtain the consent of the Secretary of
State.[47] These examples could, as
I say, be multiplied. I do not for my part doubt that such decisions enhance
the fairness, decency and cohesiveness of the society in which we live in the
United Kingdom.
[1] English Law – The New
Dimension (Stevens & Sons, 1974), 10-21.
[2] 109 LQR (1993) 390-400; and see
Thomas Bingham, The Business of Judging (OUP, 2000), 131-140.
[3] See AW Brian Simpson, Human
Rights and End of Empire (OUP, 2001), chapters 18 and 19.
[4] Ibid, 930.
[5] Ibid, 946.
[6] Eg, McCann v United
Kingdom (1995) 21 EHRR 97.
[7] Eg, Ireland v United
Kingdom (1978) 2 EHRR 25; Tyrer v United Kingdom (1978) 2 EHRR 1.
[8] Eg, Ashingdane v United
Kingdom (1985) 7 EHRR 528.
[9] Eg, Golder v United
Kingdom (1975) 1 EHRR 524; Saunders v United Kingdom (1996) 23 EHRR
313.
[10] Eg, McGinley and Egan v
United Kingdom (1998) 27 EHRR 1; Dudgeon v United Kingdom (1981) 4
EHRR 149; Malone v United Kingdom (1984) 7 EHRR 14.
[11] Eg, Tolstoy-Miloslavsky v
United Kingdom (1995) 20 EHRR 442; The Observer and The Guardian v United
Kingdom (1991) 14 EHRR 229.
[12] Eg, Young, James and
Webster v United Kingdom (1981) 4 EHRR 38.
[13] Eg, Abdulaziz, Cabales
and Balkandali v United Kingdom (1985) 7 EHRR 471.
[14] R v Secretary of State
for the Home department, Ex p Brind [1991] 1 AC 696.
[15] Garland v British Rail
Engineering Ltd [1983] 2 AC 751, 771.
[16] [1995] 2 AC 633.
[17] Z v United Kingdom (2001) 34 EHRR 97, para 40.
[18] Para 74.
[19] Para 74-75.
[20] See D v East Berkshire
Community Health NHS Trust [2005] UKHL 23; [2005] 2 AC 373, para 22.
[21] “Rights Brought Home:
The Human Rights Bill”
[22] Ibid, chapter 2, paras
27-28.
[23] Section 2(1).
[24] Eg, Derbyshire County
Council v Times Newspapers Ltd [1993] AC 534, 551F; McCartan Turkington
Breen (A Firm) v Times Newspapers Ltd [2001] 2 AC 277, 299D; A and
others v Secretary of State for the Home Department (No. 2) [2005] UKHL 71;
[2006] 2 AC 221, para 52.
25] White Paper, above, para
1.16.
[26] ‘Britain’s
Liberties: the Great Debate’, The Observer (London), 23 April
2006.
[27] R v Director of Public
Prosecutions, Exp Kebilene [2000] 2 AC 326, 366A, 373F; R v A (No. 2)
[2001] UKHL 25, [2002] 1 AC 45, para 44; Ghaidan v Godin-Mendoza [2004]
UKHL 30, [2004] 2 AC 557, para 30.
[28] Adelaide Company of
Jehovah’s Witnesses Inc v The Commonwealth (1943) 67 CLR 116, 124.
[29] Thomas Bingham, ‘The
Rule of Law’ (2007) 66 Cambridge Law Journal 67, 79.
[30] Handyside v United
Kingdom (1979) 1 EHRR 737, para 49.
[31] Dudgeon v United
Kingdom (1982) 4 EHRR 149, para 60.
[32] Goodwin v United Kingdom (2002) 35 EHRR 18.
[33] The Observer (London), 9 March 2008, 33.
[34] Timothy Garton-Ash,
‘The Threat from Terrorism does not Justify Slicing Away our
Freedoms’, The Guardian (London), 15 November 2007, 33.
[35] Eg, Chahal v United
Kingdom (1996) 35 EHRR 413.
[36] Sporrong and Lonnroth v
Sweden (1982) 5 EHRR 35, para 69.
[37] R (Razgar) v Secretary of
State for the Home Department [2004] UKHL 27, [2004] 2 AC 368; Huang v
Secretary of State for the Home Department [2007] UKHL 11, [2007] 2
AC 167.
[38] Such as McCann v United
Kingdom (1995) 21 EHRR 97
[39] Such as A v Secretary of
State for the Home Department [2002] EWCA Civ 1502, [2004] QB 335
[40] R (Amin) v Secretary of
State for the Home Department [2003] UKHL 51; [2004] 1 AC 653.
[41] Napier v Scottish
Ministers 2005 1 SC 229.
[42] A and others v Secretary
of State for the Home Department [2004] UKHL 56; [2005] 2 AC 68.
[43] Secretary of State for
the Home Department v JJ [2007] UKHL 45, [2008] 1 AC 385.
[44] Starrs and Chalmers v
Procurator Fiscal, Linlithgow, Appeal Court, High Court of Justiciary,
Appeal No 1821/99.
[45] EM (Lebanon) v Secretary
of State for the Home Department (AF (A Child) and others intervening) [2008] UKHL 64; [2008] 3 WLR 931.
[46] R (Laporte) v Chief
Constable of Gloucestershire Constabulary [2006] UKHL 55; [2007] 2 AC
105.
[47] R (Baiai) v Secretary of
State for the Home Department (Nos 1 and 2) (Joint Council for the Welfare of
Immigrants intervening) [2008] UKHL 53; [2008] 3 WLR 549.