Dicey is not fashionable these days, and for understandable reasons. The cocktail of utilitarianism and positivism, the amalgam of Bentham and Austin, that he produced led inexorably to the proclamation of unlimited parliamentary supremacy. This is widely, though with much exaggeration, conceived to be the major prop of authoritarian government. It is also, more correctly, seen as hostile to the idea of human rights possessed by persons against governments. In one sense, the decision to incorporate the European Convention on Human Rights into UK domestic law is an authoritative repudiation of the Diceyian heritage.
Type Articles Information The Cambridge Law Journal , Volume 58 , Issue 3 , November 1999 , pp. 509 - 545 Copyright © The Cambridge Law Journal and Contributors, 1999Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)
1 A.V. Dicey, Law of the Constitution (10th ed. 1959), p. 199. Dicey devoted more than twenty pages of his chapter on “Liberty of the Person” (pp. 216–237), to the Habeas Corpus Acts, suspension and indemnity.
2 On the omission of Art. 13 of the Convention, in which this phrase appears, see n. 108 below.
3 G. Hoon (Parliamentary Secretary, Lord Chancellor's Department), HC Deb. vol. 313 col. 402 (3 June 1998).
4 The White Paper stated that strictly they will not be binding: Rights Brought Home, Cm. 3782 (1997), para. 2.4. Unsuccessful attempts were made to amend Cl. 2 in the Commons Committee Stage: HC Deb. vol. 313 cols. 388 ff. (3 June 1998).
5 The scope for UK judges to exercise independent judgment was conceded by ministers: Lord Irvine: HL Deb. vol. 584 col. 1271 (19 January 1998); G. Hoon, HC Deb. vol. 313 col. 392 (3 June 1998)
6 R v. Secretary of State for the Home Dept ex p Brind [1991] 1 A.C. 696, HL. The change will be more radical in Scotland where the courts have refused to allow reference to the Convention as a source of law: Kaur v. Lord Advocate 1981 S.L.T. 322 and Moore v. Secretary of State for Scotland 1985 S.L.T. 38; see Murdoch , J. , “ Scotland and the European Convention ” in Dickson , B. (ed.), Human Rights and the European Convention ( London 1997 )Google Scholar .
7 Cf. Rights Brought Home, para. 2.7.
8 Per Lord Bridge in Brind, at 747–748.
9 See R v. Brown [1994] 1 A.C. 212, 256 per Lord Lowry.
10 E.g. Tyrer v. UK (1978) 2 EHRR 1, para. 31; Cossey v. UK (1990) 13 E.H.R.R. 622, para. 35.
11 Contrast X v. UK (1978) DR 11 with Dudgeon v. UK (1982) 4 E.H.R.R. 149.
12 G.Hoon, HC Deb. vol. 313 col. 405 (3 June 1998).
13 For example: in Rantzen v. MGN [1994] Q.B. 670, 694–695 Neill L.J. stated that the time was not right to allow reference before the jury to previous libel damages awards. However, in John v. MGN [1996] 2 All E.R. 35 the Court of Appeal revised this practice, purportedly independently of the intervening decision of the ECtHR in Tolstoy Miloslavsky v. UK (1995) 20 E.H.R.R. 442.
14 Camelot Group plc v. Centaur [1999] Q.B. 124, CA at 135–136 (Schiemann L.J.) and 138–139 (Thorpe L.J.) purporting to treat Goodwin v. UK (1996) 22 E.H.R.R. 123 and X v. Morgan-Grampian [1991] 1 A.C. 1, as taking the same approach to s. 10 of the Contempt of Court Act 1981, but explicable by different interpretations of the facts. Strasbourg, however, treats evidence and fact-finding as for the national court where the challenge is to a judicial decision.
15 Staines v. Morrissey (1997) 2 Cr. App. R. 426, holding that evidence obtained under s. 177(6) the Financial Services Act 1986 should not be excluded under s. 78 of the Police and Criminal Evidence Act 1984 (despite Saunders v. UK (1997) 23 E.H.R.R. 313 ruling that a similar procedure violated Art. 6).
16 See pp. 544–545 below [conclusion].
17 See: M. Hunt, [1998] P.L. 423; I. Leigh, (1999) 48 I.C.L.Q. 57; B. Markesinis, (1999) 115 L.Q.R. 47; N. Bamforth, [1999] C.L.J. 159; Sir Wade , W. , in University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles ( Oxford 1998 )Google Scholar .
18 This has been anticipated in effect prior to the coming into force of the HRA by the Divisional Court judgment in R v. D.P.P., ex p. Kebilene, [1999] 3 W.L.R. 175.
19 For the relevance of Arts. 8 and 14 see Hoffmann v. Austria (1994) 17 E.H.R.R. 293.
20 See In re H-S (Minors) Protection of Identity [1994] 1 W.L.R. 1141; Re W (Wardship Discharge: Publicity) [1995] 2 F.L.R. 466; and cf. R v. Central Independent Television [1994] Fam 192.
21 See especially R v. Khan [1997] A.C. 558 where the House of Lords held that a trial judge, when exercising the discretion under s. 78 of the Police and Criminal Evidence Act 1984 to exclude evidence, could (but was not bound to) have regard to Arts. 6 and 8 of the Convention. Following incorporation, consideration of the Convention rights will be mandatory.
22 P. 518. In the discussion below we consider the implications for one important discretionary remedy the injunction (see pp. 531–536).
23 Tolstoy Miloslavsky v. UK (1995) 20 E.H.R.R. 442; Z v. Finland (1998) 25 E.H.R.R. 371.
24 Hokkanen v. Finland (1995) 19 E.H.R.R. 139; Airey v. Ireland Series A 32 (1979).
25 Where the Convention permits greater restrictions on rights than those currently available incorporation under the HRA should have no detrimental effect because section 13 (1) states that the Convention rights are without prejudice to other rights and freedoms conferred under UK law.
26 Handyside v. UK Series A, 24 (1976); Muller v. Switzerland (1991) 13 E.H.R.R. 212.
27 Dudgeon v. UK Series A, 45 (1981).
28 T.Jones, “The Devaluation of Human Rights under the European Convention” [1995] P.L. 430.
29 Cf. D. Pannick, “Comment: Principles of interpretation of Convention Rights under the Human Rights Act and the discretionary area of judgment” [1998] P.L. 545; 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] E.H.R.L.R. 15.
30 See p. 518 below.
31 [1996] Q.B. 517, 541 at first instance. Commended in the Court of Appeal by Henry L.J., ibid., 564, although, confusingly, he identified the Strasbourg court as exercising primary jurisdiction—a view difficult to reconcile with the margin of appreciation doctrine. The Court of Appeal doubted the usefulness of speculation by domestic courts on the merits of a Strasbourg application arising from the facts and pointed to the differing nature of the evidence and arguments which would then apply: Sir Thomas Bingham, M.R., 558, Henry L.J., 564 and Thorpe L.J. 564 (Contrast, however, R v. D.P.P., ex p. Kebilene, [1999] 3W.L.R. 175, where, following enactment but before implementation of the HRA, Lord Bingham gave advice to the D.P.P. on the probable application of Art. 6 to ss. 16A and 16B of the Prevention of Terrorism (Temporary Provisions) Act 1989).
32 Sunday Times v. UK (1979) 2 E.H.R.R. 245.
33 Similarly, faced with a broad possible restriction under section 1 of the Charter of Rights “justifiable and reasonable limitation”, Canadian courts have considered legislative practice in other countries but ultimately confronted the question of what is necessary in Canadian democracy, e.g. Dagenais v. CBC [1994] 3 S.R.C. 835.
34 Cf. Jones, op cit., pp. 445–448.
35 R v. Oakes [1986] 1 S.R.C. 103. Cf, New Zealand Bill of Rights Act 1990 s. 5; and see Noort v. Minister of Transport [1992] 3 N.Z.L.R. 260.
36 This is not true, however, of legislation passed by the Scottish Parliament and the Northern Ireland Assembly, which remain subordinate law-making bodies.
37 However, incorporating the Convention jurisprudence under s. 2 means that official actions restricting rights, whose sole legal basis is a ministerial or other administrative circular might now be precarious in domestic law: see Malone v. UK (1984) 7 E.H.R.R. 14 and Silver v. UK (1983) 5 E.H.R.R. 347. The Strasbourg interpretation of “authorised by law” in these cases was seemingly overlooked in the treatment under Article 8 of the legality of disclosure of information by the police in R v. Chief Constable of North Wales, ex p. AB [1998] Q.B. 396, 414 (Lord Bingham) and 429 (Lord Woolf M.R.).
38 “The role of the court in judicially reviewing a law that is said to curtail the freedom unduly and thereby exceed legislative authority is essentially supervisory. It declares whether a balance struck by Parliament is within or without the range of legitimate legislative choices.” Lord Bingham of Cornhill, “The Way We Live Now: Human Rights in the New Millennium” [1998] 1 Web J.C.L.I.
39 Sir John Laws, “The Limitations of Human Rights” [1998] P.L. 254, 258. He argues that the difference between the two tests is following recent developments in the UK merely one of degree (ibid., 261–2).
40 The University of Cambridge Centre for Public Law , Constitutional Reform in the United Kingdom: Practice and Principles ( Oxford 1998 ), 102 Google Scholar .
41 R v. Secretary of State for the Home Dept ex p Brind [1991] 1 A.C. 696, HL.