The Lord Chancellor
Lord Irvine of Lairg
THE TOM SARGANT MEMORIAL LECTURETHE DEVELOPMENT OF HUMAN RIGHTS IN BRITAINUNDER AN INCORPORATED CONVENTION ON HUMAN RIGHTS [1]
6:45pmTuesday, 16 December 1997 Law Society Hall London
On 23rd October I introduced the Human Rights Bill into Parliament. It will incorporate into the domestic law of the United Kingdom the rights and liberties guaranteed by the European Convention on Human Rights. It will mean that our citizens can secure their rights from our own UK courts. They will not have to take the long slow road to the Court in Strasbourg. It is one of the major constitutional changes which this Government is making.
I am sure Tom Sargant, in whose memory this Lecture is given, would have approved. Tom Sargant was not a lawyer. Nor even had he gone to University. His family's financial difficulties stood in his way. So he did not take up the scholarship he had won at Cambridge. His memorial is Justice, which he made the conscience of the legal profession. He was the first Secretary of Justice, for 25 years from its creation in 1957. It was he who took up - contrary to instructions - the cases of prisoners complaining of wrongful convictions. So began Justice's proud and successful tradition of case work. Tom Sargant demonstrated throughout his life a strong and firm belief in a just society. He always stood up for ordinary people. He would have applauded, I believe, the commitment to stand up for ordinary people, their rights and liberties, which the Government demonstrates in making the Human Rights Bill one of its first acts of legislation.
I want to speak this evening about the significance the Human Rights Bill has for individuals; but also to go beyond the extensive area in which the Act will bite and to consider how the Human Rights Bill will influence and mould the process of law making and the content of the law in other and wider areas. It will be a constutional change of major significance: protecting the individual citizen against evosion of liberties, either deliberate or grandual. It will also help develop a process of justice based on the promotion of positive rights.
I start with a little history.
Today we talk readily of Human Rights law. There is now a corpus of law, international and national, recognising fundamental freedoms. It is called International Human Rights law. Fifty years ago it would not have been possible to talk of such a body of law .Until then very few issues would have been regarded in any way as the province of international law. Piracy and slavery were the major exceptions. For many years the existence of internationally recognised norms of human rights was simply inconsistent with central propositions of international law, the positivist doctrines of State sovereignty and domestic jurisdiction.
This view was particularly expounded by John Austin in his Lectures on Jurisprudence, delivered at the newly founded University College London between 1828 and 1832. He brought together many of the ideas scattered through Bentham's own voluminous works [2]. Law, according to Austin's definition, was a body of rules fixed and enforced by a sovereign political authority. There could be no such thing as international law, it followed, since there was no sovereign political authority over the individual sovereign States themselves to set or enforce any rules of conduct. It also followed that under the doctrine of State sovereignty, individuals received no protection under International law. Their protection had to come in courts of purely domestic jurisdiction. It was a breach of international law for one State to intervene in another State's sphere of exclusive domestic jurisdiction, unless authorised by permissive rules to the contrary[3].
The idea of state sovereignty was not new. The Dutch lawyer, Hugo Grotius, usually, but not universally[4] recognised as the father of contemporary international law, had in his great work on the Law of War and Peace [5] accepted the sovereign State as the basic unit of international law over 200 years before. Yet the exaggerated importance Austin was to attach to the theory of sovereignty was easily exploitable by despots to justify resisting outside "interference" in their oppressive domestic conduct towards their own peoples. It can be powerfully argued that the acceptance by lawyers of this view of State sovereignty did much to hold back the development of international norms of human rights[6].
It took the horrors of the Second World War and the Holocaust to start a decisive transformation in international law. The United Nations Charter recognised specifically an international obligation to secure human rights. Its Preamble identifies one of the United Nations' own primary purposes as "Promoting and encouraging respect for human rights and for fundamental freedoms for all without distinction as to race, sex, language or religion" [7] The enlightened draftsmen of the Charter, determined to do all in their power to remove the threat of a return to conflict and genocide, saw the need for these fundamental freedoms not only as common justice but also as part of the process of guaranteeing peace. And so Article 55 of the Charter placed on the United Nations an obligation to promote "Universal respect for, and observance of, human rights and fundamental freedoms for all without distinction as to race, sex, language, or religion"[8]; and to do so, in the words of the Charter "With a view to the creation of conditions of stability and well being which are necessary for peaceful and friendly nations based on respect for the principle of equal rights and determination of peoples" The members themselves pledged co-operation with the United Nations and to take joint and separate action to achieve those purposes.[9]
In the five years that followed the agreement of the Charter, international law moved in a decisive new direction. The Genocide Convention [9a], the Geneva Conventions for the Protection of Victims of War,[10] Relative to the Protection of Civilian Persons in Time of War[11] and in relation to Condition of Wounded servicemen [12] were all promulgated and agreed during this fertile legislative period. So also was the Universal Declaration of Human Rights itself [13]. It celebrates its half centenary in 1998.
Two other important events occurred in the same period.
First, the judgement at the Nuremberg Trials, presided over by Lord Justice Lawrence, gave concrete evidence that victims of crimes against humanity committed even by their own Governments were entitled to the protection of international criminal law.[14] The significance of those trials cannot be underestimated. Yet the decision to stage them had not been lightly reached. Churchill, for one, had been against them. But the Allies had committed themselves in the Declarations of St James of 1942 and the Moscow Declarations of November 1943 [15]. The United Kingdom has been a strong supporter of the successors to that first international war crimes tribunal, now sitting to deal with events in the former Yugoslavia and Rwanda. The present Government showed our own strong commitment to this process when earlier this year British soldiers were involved in the arrest of suspected war criminals.
It was during the same fertile period that the Council of Europe, established as part of the Allies' programme to rebuild Europe, produced the European Convention on Human Rights.As the White Paper introducing the Human Rights Bill [16] records, the simple power of the language of its articles led Sir Edward Gardner Q.C., the Conservative M.P., to say in 1987, when introducing an earlier attempt to incorporate the Convention:
"It is language which echoes down the corridors of history. It goes deep into our history and as far back as the Magna Carta"[16a].
The history of the United Kingdom's quickness to ratify the Convention but slowness to adopt the jurisdiction of the Court of Human Rights for individual petition, and even greater slowness to incorporate its provision into domestic law, have been chronicled by Lord Lester of Herne Hill QC. I pay tribute to his long campaign to see the Convention given greater effect in the UK.
So, spurred by the urgent need to reconstruct civilisation after the winter of World War II, in this short period legal innovation had turned the individual citizen into a subject of international law. In 1950 the distinguished international lawyer, Hersch Lauterpacht, later Judge of the International Court of Justice, was able to assert that "The individual has now acquired a status and a stature which have transformed him from an object of international compassion into a subject of international right" [17].
I have dealt with this background because it is right to remind ourselves of our history and of the roots of the Convention. It is right to remind ourselves that these rights are part of the bedrock laid down after 1945 for a safe and just society. It is also right to remind ourselves of the strong justification for recognising in domestic law international human rights obligations.
A Rights Based System
Against this background, I turn to the Human Rights Bill and its effects.
A major change which the Act will bring flows from the shift to a rights based system. Under this system a citizen's right is asserted as a positive entitlement expressed in clear and principled terms. For example, under Article 5 of the Convention "Everyone has the right to liberty and security of person." Whilst there are reservations to that right, the reservations take effect as explicit exceptions and derogations which must be justified according to the terms of the Article. They represent exceptions which, in the public interest, are justified and reasonable. For example, the basic right in Article 5 is qualified by a list of the defined and circumscribed cases where a person may be deprived of his liberty. So, where a national authority wants to justify a detention, it will need to show how the facts fit into one of those defined categories and how it has met other requirements of the Convention; for example, the fair trial guarantees in Article 6.
This approach contrasts with the traditional common law approach to the protection of individual liberties. The common law approach, described by the great constitutional lawyer, Albert Venn Dicey, Vinerian Professor, in his Introduction to the Study of Law of the Constitution[18] first published in 1885, treats liberty only as a "negative" right. As explained by Lord Donaldson MR in one of the Spycatcher cases [19] this negative approach means that "the starting point of our domestic law is that every citizen has a right to do what he likes, unless restrained by the common law or by Statute." The liberty of the subject is therefore the "negative" right of what is left over when all the prohibitions have limited the area of lawful conduct. There are numerous examples of prohibitions either by the common law (for instance, the law of libel limiting the extent of free speech to prohibit defamatory statements or the law of nuisance limiting the activities in which a person may engage on his own land) or by Statute (of which the examples are too obvious to merit illustration).
Dicey saw merit in this negative approach. He believed that the absence of writing lent the common law a flexibility to develop to meet changing conditions. But the approach has disadvantages which are greater. By proposing this law the Government has decisively demonstrated its view that the more serious threat to liberty is an absence of written guarantees of freedom. For the negative approach offers little protection against a creeping erosion of freedom by a legislature willing to countenance infringement of liberty or simply blind to the effect of an otherwise well intentioned piece of law. As Professor Dworkin, Professor of Jurisprudence at the University of Oxford argued in an important article in 1988, the challenge to liberty is not only from despots. A Government may show "a more mundane but still corrupting insensitivity to liberty, a failure to grasp its force and place in democratic ideals." [20] The Human Rights Bill is our bulwark against that danger.
When he was Prime Minister John Major used to say:
"We have no need of a Bill of Rights because we have freedom."
What that demonstrated was an enervating insularity. The traditional freedom of the individual under an unwritten constitution to do himself that which is not prohibited by law gives no protection from misuse of power by the State, nor any protection from acts or omissions by public bodies which harm individuals in a way that is incompatible with their human rights under the Convention.
Our legal system has been unable to protect people in the 50 cases in which the European Court has found a violation of the Convention by the United Kingdom. The proposition that because we have liberty we have no need of human rights must be rejected.
The Implications of the Change
What then are the practical implications of this change to a rights based system within the field of civil liberties?
First, the Act will give to the courts the tools to uphold freedoms at the very time their infringement is threatened. Until now, the only remedy where a freedom guaranteed by the Convention is infringed and domestic law is deficient, has been expensive and slow proceedings in Strasbourg. They could not even be commenced until after all the domestic avenues of complaint and appeal had been exhausted. The courts will now have the power to give effect to the Convention rights in the course of proceedings when they arise in this country and to grant relief against an unlawful act of a public authority (a necessarily widely drawn concept). The courts will not be able to strike down primary legislation. But they will be able to make a declaration of incompatibility where a piece of primary legislation conflicts with a Convention right. This will trigger the ability to use in Parliament a special fast-track procedure to bring the law into line with the Convention.
This innovative technique will provide the right balance between the judiciary and Parliament. Parliament is the democratically elected representative of the people and must remain sovereign. The judiciary will be able to exercise to the full the power to scrutinise legislation rigorously against the fundamental freedoms guaranteed by the Convention but without becoming politicised. The ultimate decision to amend legislation to bring it into line with the Convention, however, will rest with Parliament. The ultimate responsibility for compliance with the Convention must be Parliament's alone.
That point illustrates the second important effect of our new approach. If there are to be differences or departures from the principles of the Convention they should be conscious and reasoned departures, and not the product of rashness, muddle or ignorance. This will be guaranteed both by the powers given to the courts but also by other provisions which will be enacted. In particular, Ministers and administrators will be obliged to do all their work keeping clearly and directly in mind its impact on human rights, as expressed in the Convention and the jurisprudence which attaches to it. For, where any Bill is introduced in either House, the Minister of the Crown, in whose charge it is, will be required to make a written statement that, either, in his view, the provisions of the Bill are compatible with the Convention rights; or that he cannot make that statement but the Government nonetheless wishes the House to proceed with the Bill. In the latter case the Bill would inevitably be subject to close and critical scrutiny by Parliament. Human rights will not be a matter of fudge. The responsible Minister will have to ensure that the legislation does not infringe guaranteed freedoms, or be prepared to justify his decision openly and in the full glare of Parliamentary and public opinion.
That will be particularly important whenever there comes under consideration those articles of the Convention which lay down what I call principled rights, subject to possible limitation. I have in mind Articles 8-11, dealing with respect for private life; freedom of religion; freedom of expression; and freedom of assembly and association; which confer those freedoms subject to possible limitations, such as, for instance in the case of Article 10 (freedom of expression):
"are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."
In such cases, administrators and legislators, will have to think clearly about whether what they propose really is necessary in a democratic society and for what object it is necessary. Quite apart from the concentration on the Convention and its jurisprudence this will require, the process should produce better thought-out, clearer and more transparent administration.
The important requirements of transparency on Convention issues that will accompany the introduction of all future legislation will ensure that Parliament knows exactly what it is doing in a human rights context. I regard this improvement in both the efficiency and the openness of our legislative process as one of the main benefits produced by incorporation of the Convention.
Substantive rights
Thirdly, the Convention will enable the Courts to reach results in cases which give full effect to the substantive rights guaranteed by the Convention. It would not be appropriate for me to deal with individual aspects of the law which may come up for decision in the Courts in future, but some general observations are possible.
The Courts have not ignored the Convention rights. As long ago as 1972 in Broome v Cassell Lord Kilbrandon referred to the Convention as supporting the existence of "A constitutional right to free speech" when warning against holding the profit motive to be sufficient to justify punitive damages for defamation.
But the courts have only had limited ability to give effect to those rights. Lord Bingham of Cornhill, in his maiden speech in the House of Lords on taking the office of Lord Chief Justice, enumerated six ways in which the Courts have been able to take the Convention rights into account.[21] Of these, the first and the most important has been as an aid to construction. "Where", as Lord Bingham explained, "A United Kingdom statute is capable of two interpretations, one consistent with the Convention and one inconsistent, then the courts will presume that Parliament did not intend to legislate in violation of international law." A further instance is in developing the common law where it is uncertain, unclear or incomplete.[22]
But the Courts are not enforcing the Convention when they act in this way. They are enforcing statutory or common law. It follows - and it is emphasised in all the authorities - that recourse cannot be had to the terms of he Convention unless the terms of the Statute, or the content of the common law [23] is uncertain or ambiguous.
If Parliament has spoken with sufficient certainty, in terms that exclude or contradict the Convention, the latter has no place. The decision of the House of Lords in ex parte Brind [24] is a case in point. That concerned a challenge by a group of broadcasters to the restrictions then imposed preventing the broadcast of the voices of members of proscribed organisations, notably Sinn Fein. The Secretary of State had acted under a power broadly drawn in the Broadcasting Act 1981 [25] empowering him to prohibit the broadcast of "any matter or classes of matter specified in the notice." The Applicants tried, unsuccessfully, to persuade the Court to impose a limitation on those words to make them consistent with the right of freedom of expression in Article 10 of the Convention. The House of Lords could find no ambiguity allowing them to read in such words of limitation.
It is moreover likely - although individual cases will be for the Courts to determine and I should not attempt to prejudge them- that the position will in at least some cases be different from what it would have been under the pre-incorporation practice. The reason for this lies in the techniques to be followed once the Act is in force. Unlike the old Diceyan approach where the Court would go straight to what restriction had been imposed, the focus will first be on the positive right and then on the justifiability of the exception. Moreover, the Act will require the Courts to read and give effect to the legislation in a way compatible with the Convention rights "so far as it is possible to do so.." [26] This, as the White Paper makes clear, goes far beyond the present rule. It will not be necessary to find an ambiguity. On the contrary 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. Moreover, it should be clear from the Parliamentary history, and in particular the Ministerial statement of compatibility which will be required by the Act, that Parliament did not intend to cut across a Convention right. Ministerial statements of compatibility will inevitably be a strong spur to the courts to find means of construing statutes compatibly with the Convention.
Whilst this particular approach is innovative, there are some precedents which will assist the Courts. In cases involving European Community law, decisions of our Courts already show that interpretative techniques may be used to make the domestic legislation comply with the Community law, even where this requires straining the meaning of words or reading in words which are not there. An illustrative case is Litster concerning the construction of the Transfer of Undertakings Regulations. The issue was whether protection in the Regulations, limited to those employed in the business "Immediately before" the time of the transfer, extended to employees unfairly dismissed very shortly before the transfer. The applicants had clearly not been employed in the business immediately before the transfer as those words would normally be interpreted. Nor were the words ambiguous. Yet the House of Lords interpreted the Regulations (so as to accord with the European Court's existing interpretation of the underlying Community obligation which the Regulations were intended to implement) by implying additional words "or would have been so employed if they had not been unfairly dismissed [by reason of the transfer]".
This implication of appropriate language into an apparently unambiguous provision is the sort of tool which could have led to a different result in a case like Brind. It shows the strong interpretative techniques that can be expected in Convention cases.
Guidance may also be found in the jurisprudence of the New Zealand Courts. Under the New Zealand Bill of Rights [27] a meaning consistent with the rights and freedoms contained in the Bill of Rights is to be given in preference to any other meaning "wherever an enactment can be given [such] a meaning.." The existing New Zealand decisions seem to show that the only cases where the legislation will not be interpreted consistently with the protected rights is where a statutory provision contains a clear limitation of fundamental rights. [28] The difference from the approach until now applied by the English courts will be this. The Court will interpret as consistent with the Convention not only those provisions which are ambiguous in the sense that the language used is capable of two different meanings but also those provisions where there is no ambiguity in that sense, unless a clear limitation is expressed. In the latter category of case it will be "possible" (to use the statutory language) to read the legislation in a conforming sense because there will be no clear indication that a limitation on the protected rights was intended so as to make it "impossible" to read it as conforming.
The Morality of Decisions
The fourth point may be shortly stated but is of immense importance. The Courts' decisions will be based on a more overtly principled, indeed moral, basis. The Court will look at the positive right. It will only accept an interference with that right where a justification, allowed under the Convention, is made out. The scrutiny will not be limited to seeing if the words of an exception can be satisfied. The Court will need to be satisfied that the spirit of this exception is made out. It will need to be satisfied that the interference with the protected right is justified in the public interests in a free democratic society. Moreover, the Courts will in this area have to apply the Convention principle of proportionality. This means the Court will be looking substantively at that question. It will not be limited to a secondary review of the decision making process but at the primary question of the merits of the decision itself.
In reaching its judgment, therefore, the Court will need to expand and explain its own view of whether the conduct is legitimate. It will produce in short a decision on the morality of the conduct and not simply its compliance with the bare letter of the law.
The Influence on other areas of law
I believe, moreover, that the effects of the incorporation of the Convention will be felt way beyond the sphere of the application of the rights guaranteed by the Convention alone. As we move from the traditional Diceyan model of the common law to a rights based system, the effects will be felt throughout the common law and in the very process of judicial decision-making. This will be a healthy and dynamic development in our law.
There is good precedent for this sort of influence on the common law in the effect which European Community law has already produced. Under the European Communities Act, the precedence accorded to European law can lead to legislation being suspended [29] or disapplied [30] or declared to be unlawful [31]. As I pointed out in a Lecture I delivered in October 1995 [32] British Courts are as a result now required to perform a number of tasks which would have been unthinkable even 20 years ago.
Although the legislative technique adopted under the Human Rights Bill is different from that under the European Communities Act, the effect on the general process of deciding cases will, I believe, be as influential. Courts will, from time to time be required to determine if primary or secondary legislation is incompatible with the Convention rights. [33] They will decide if the acts of public authorities are unlawful through contravention, perhaps even unconscious contravention, of those rights [34]. They may have to award damages as a result [35].
These are all new remedies for our courts to apply and, as they begin to develop the tools and techniques to apply them, an influence on other areas of law and judicial decision making is, I believe, inevitable.
This spillover effect has been seen already from the application here of European Community law. Cases may be seen where the very exposure of practitioners and judges to a new body of law presents new solutions even for purely domestic problems. A good example, was the reliance by Lord Goff of Chieveley on principles of German law in deciding in the House of Lords the question of the responsibility to the disappointed beneficiary of an English solicitor who failed to draw up a will before the demise of the would-be testators.[36] Another example is Woolwich Equitable Building Society v Inland Revenue Commissioners. [37] The House of Lords had to decide whether the Inland Revenue was liable to pay interest when it returned tax originally paid by the tax payer under regulations held to be invalid. This was a purely domestic question and no issue of Community law arose. Classic common law principles suggested interest would only be payable where the tax had been paid under compulsion or mistake of fact and not (as here) through a payment made voluntarily through a mistake of law. Yet the majority of the House concluded that interest was payable by the Revenue by extending the categories of obligation to repay money to cases where money was paid pursuant to an unlawful demand by a public authority. A comparison with community law seems to have played a part in this decision to change the common law of England.Lord Goff of Chieveley noted in terms that the European Court of Justice had held [38] that a person who pays charges levied by a member State contrary to community rules is entitled to repayment of the charge. He went on to say:
"...at a time when Community law is becoming increasingly important, it would be strange if the right of the citizen to recover overpaid charges were to be more restricted under domestic law than it is under European law".[39]
The spillover influence of Community law in the field of procedure and judicial decision making is as marked. In Pepper v Hart [40] the long established convention that the courts do not look at Hansard to discover the parliamentary intention behind legislation was reversed. It is strongly arguable that this was a consequence of the influence of Community law where it is common to look for the purpose of a law in order to interpret that law and to look for that purpose in the legislative history. That Community influence can be seen when examining how Pepper v Hart came to be decided. Its direct precursor was the earlier decision in Pickstone v Freemans. [41] That was a Community law case. There the House of Lords referred to passages in Hansard to understand national regulations made by the UK Parliament to give effect to Community law. The justification for that unusual approach was the special position of Community law. Yet the very basis of allowing that exceptional approach in Pickstone" was discarded in Pepper v Hart as being "logically indistinguishable from the similar exercise of statutory interpretation of purely national legislation. [42]
So too it is becoming increasingly hard not explicitly to recognise in English administrative law the Community law doctrine of proportionality.
That doctrine, drawn from German Administrative law principles, is a tool for judging the lawfulness of administrative action. It amounts to this. Excessive means are not to be used to attain permissible objects. Or, as it was more pithily put by Lord Diplock, "a steam hammer should not be used to crack a nut". [43]. There has been much argument whether this principle now forms a part of the criteria for review of public decisions generally since Lord Diplock opened that door in 1985 [44]. It seemed to have been slammed shut in Brind in 1991. This is not the occasion to trace those developments. Yet, by whatever name, it seems undeniable that the traditional common law concepts converge with their continental cousins. This is but another example of the inevitable incremental effects of introducing another system of law to be applied alongside traditional common law principles.
One other example will illustrate the point. In M v Home Office [45] a contempt application was made against the Secretary of State for failure to procure the return of an applicant for political asylum. The Court had to consider the extent of its powers over the Executive. In purely domestic cases these were traditionally narrow. But in cases where Community law obligations were at issue it had been shown that the powers were wider. They extend to granting interlocutory injunctions against the Crown as shown in the Factortame case [46]. This distinction troubled the Court. Although both the Court of Appeal (and ultimately the House of Lords [47]) found a way round the concerns, Lord Donaldson MR was driven to condemn as "anomalous and .... wrong in principle" distinctions in the powers of the court to hold the ring by interlocutory injunctions which depended on the identity of the defendant. And even more anomalous that the extent of those powers over central government should depend on whether the obligation in question arose under Community law or purely domestic law.
This illustrates the difficulty of maintaining a rigid distinction between two differing sets of principles of law, co-existing side by side.[48] Nor would I want in all cases to maintain rigid distinctions. The greatness of the common law lies in its flexibility and ability to adapt to changing economic and social conditions. It is enriched by drawing on the principles and solutions found in other developed legal systems.
The Emergence of a new approach
I have referred to the effect the introduction of European Community law has had on the development of our own domestic law. I believe that incorporating into our own law the Convention rights will have an equally healthy effect.
Any court or tribunal determining any question relating to a Convention Right will be obliged to take into account the body of jurisprudence of the Court and Commission of Human rights and of the Council of Ministers. [49] This is obviously right; it gives British courts both the benefit of 50 years careful analysis of the Convention rights and ensures British Courts interpret the Convention consistently with Strasbourg. The British courts will therefore need to apply the same techniques of interpretation and decision-making as the Strasbourg bodies. I have already mentioned recourse to Parliamentary materials such as Hansard - where we are now closer in line with our continental colleagues. I will mention three more aspects. As I do so, it should be remembered that the courts which will be applying these techniques will be the ordinary courts of the land; we have not considered it right to create some special human rights court alongside the ordinary system; the Convention rights must pervade all law and all the courts systems. Our courts will therefore learn these techniques and inevitably will consider their utility in deciding other non-Convention cases.
First there is the approach to statutory interpretation. The tools of construction in use in mainland Europe are known to be different from those the English courts have traditionally used. I will refer to just one: the so-called teleological approach which is concerned with giving the instrument its presumed legislative intent. It is less concerned with the textual analysis usual to the common law tradition of interpretation. [50] It is a process of moulding the law to what the Court believes the law should be trying to achieve. [51] It is undoubtedly the case that our own domestic approach to interpretation of statutes has become more purposive. Lord Diplock had already identified this trend 20 years ago when he noted that:
"If one looks back to the actual decisions of the [House of Lords] on questions of statutory construction over the last 30 years one cannot fail to be struck by the evidence of a trend away from the purely literal towards the purposive construction of statutory provisions" [52]
This trend has not diminished since then, although there are cases where the Courts have declined to adopt what was in one case described as an "over purposive" approach [53]
Yet as the Courts, through familiarity with the Convention jurisprudence, become more exposed to methods of interpretation which pay more heed to the purpose, and less to whether the words were felicitously chosen to achieve that end, the balance is likely to swing more firmly yet in the direction of the purposive approach.
Secondly, there is the doctrine of proportionality, to which I have already referred. This doctrine is applied by the European Court of Human Rights[54]. Its application is to ensure that a measure imposes no greater restriction upon a Convention right than is absolutely necessary to achieve its objectives. Although not identical to the principle as applied in Luxembourg, it shares the feature that it raises questions foreign to the traditional Wednesbury [55] approach to judicial review. Under the Wednesbury doctrine an administrative decision will only be struck down if it is so bad that no reasonable decision-maker could have taken it.
Closely allied with the doctrine of proportionality is the concept of the margin of appreciation. The Court of Human Rights has developed this doctrine which permits national courts a discretion in the application of the requirements of the Convention to their own national conditions. This discretion is not absolute, since the Court of Human Rights reserves the power to review any act of a national authority or court; and the discretion is more likely to be recognised in the application of those articles of the Convention which expressly include generally stated conditions or exceptions, such as Articles 8-11, rather than in the area of obligations which in any civilised society should be absolute, such as the rights to life, freedom from torture and freedom from slavery and forced labour that are provided by Articles 2-4.
This "margin of appreciation", was first developed by the Court in a British case, Handyside v U. [56] It concerned whether a conviction for possessing an obscene article could be justified under Article 10(2) of the Convention as a limitation upon freedom of expression that was necessary for the 'protection of morals'. The court said:
"By reason of their direct and continuous contact with the vital forces of their countries, state authorities are in principle in a better position than the international judge to give an opinion on the exact content of those requirements [of morals] as well as on the 'necessity' of a 'restriction' or penalty' intended to meet them ... [58]
Although there is some encouragement in British decisions for the view that the margin of appreciation under the Convention is simply the Wednesbury test under another [59] statements by the Court of Human Rights seem to draw a significant distinction. The Court of Human Rights has said in terms that its review is not limited to checking that the national authority "exercised its discretion reasonably, carefully and in good faith". It has to go further. It has to satisfy itself that the decision was based on an "acceptable assessment of the relevant facts" and that the interference was no more than reasonably necessary to achieve the legitimate aim pursued. [60]
That approach shows that there is a profound difference between the Convention margin of appreciation and the common law test of rationality. The latter would be satisfied by an exercise of discretion done "reasonably, carefully and in good faith" although the passage I have cited indicates that the Court of Human Rights' review of action is not so restricted. In these cases a more rigorous scrutiny than traditional judicial review will be required. An illustration of the difference may be found in the speech of Simon Brown LJ in ex p. Smith (the armed forces homosexual policy case)
"If the Convention for the Protection of Human Rights and Fundamental Freedoms were part of our law and we were accordingly entitled to ask whether the policy answers a pressing social need and whether the restriction on human rights involved can be shown proportionate to its benefits, then clearly the primary judgement (subject only to a limited 'margin of appreciation') would be for us and not for others; the constitutional balance would shift. But that is not the position. In exercising merely a secondary judgement, this court is bound, even though adjudicating in a human rights context, to act with some reticence".
The question I pose is how long the courts will restrict their review to a narrow Wednesbury approach in non-Convention cases, if used to inquiring more deeply in Convention cases? There will remain distinctions of importance between the two categories of case which should be respected. But some blurring of line may be inevitable.
I have expressed my views in my Administrative Law Bar Association Lecture in 1995 on how the Courts ought properly to regard the dividing line between their function and that of Parliament. But the process is not one way. British influence or the application of the Convention rights is likely to increase. British officials were closely involved in the drafting of the Convention. When our British courts make their own pronouncements on the Convention, their views will be studied in other Convention countries and in Strasbourg itself with great respect. I am sure that British judges' influence for the good of the Convention will be considerable. They will bring to the application of the Convention their great skills of analysis and interpretation. But they will also bring to it our proud British traditions of liberty.
The Shift from form to substance
So there is room to predict some decisive and far reaching changes in future judicial decision making. The major shift may be away from a concern with form to a concern with substance. Let me summarise the reasons.
In the field of review by judges of administrative action, the courts' decisions to date have been largely based on something akin to the application of a set of rules. If the rules are broken, the conduct will be condemned. But if the rules are obeyed, (the right factors are taken into account, no irrelevant factors taken into account, no misdirection of law and no out and out irrationality) the decision will be upheld, usually irrespective of the overall objective merits of the policy. In some cases much may turn - or at least appear to turn - on the form in which a decision is expressed rather than its substance. Does the decision as expressed show that the right reasons have been taken into account? Does it disclose potentially irrational reasoning? Might the court's review be different if the reasoning were expressed differently so as to avoid the court's Wednesbury scrutiny?
Now, in areas where the Convention applies, the Court will be less concerned whether there has been a failure in this sense but will inquire more closely into the merits of the decision to see for example that necessity justified the limitation of a positive right, and that it was no more a of a limitation than was needed [61] There is a discernible shift which may be seen in essence as a shift from form to substance. If, as I have suggested, there is a spillover into other areas of law, then that shift from form to substance will become more marked.
This may be seen as a progression of an existing and now long standing trend. In modern times, the emphasis on identifying the true substance at issue has been seen in diverse areas: in tax where new techniques have developed to view the substance of a transaction overall rather than to be mesmerised by the form of an isolated step, or in the areas of statutory control of leases, where the Courts are astute to prevent form being used to obscure the reality of the underlying transaction. In what may seem at first blush a very different area, that of interpretation of contracts, recent decisions also emphasise the need to cast away the baggage of older years where literal and semantic analysis was allowed to override the real intent of the parties. [62]
In a very broad sense we can see here a similarity of approach: to get to the substance of the issue and not be distracted by the form.
These are trends already well developed but I believe they will gain impetus from incorporation of the Convention. In addition the Courts will be making decisions founded more explicitly and frequently on considerations of morality and justifiability.
This Bill will therefore create a more explicitly moral approach to decisions and decision making; will promote both a culture where positive rights and liberties become the focus and concern of legislators, administrators and judges alike; and a culture in judicial decision making where there will be a greater concentration on substance rather than form.If that is so, we will more readily be able to refute T.S. Eliot's sardonic version of the lawyers' motto cited by one of my predecessors:
"The spirit killeth, the letter giveth life". [63 ]
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Endnotes:
1 I am indebted to Peter Goldsmith QC for the great assistance he has given me in the preparation of this Lecture.2 See Sabine A History of Political Theory 3rd ed Harrap p6843 Schwarzenberger op cit p 654 See for example Schwarzenberger A Manual of international law 5th ed. Stevens p195 Dr Jure Bellis ac Pacis (1625)6 For example by F.S. Nariman, Chairman of the Executive Committee of the International Commission of Jurists in an address to the International Bar Association given at the United Nations, New York in June 19777 Charter of the United Nations preamble 3; U.N.T.S. xvi; U.K.T.S. 67 (1946) cmd. 70158 Articles 55 and 56 ibid.9 Article 56 ibid9a Convention on the Prevention and Punishment of the Crime of Genocide 1948 78 UNTS 277; cmnd 290410 Geneva III, (1949) 75 UNTS 3111 Geneva IV (1949) 75 UNTS 31, Cmnd 55012 Convention for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field (1949); Convention for the Amelioration of the Condition of Wounded and Sick and Shipwrecked Members of Armed Forces at Sea (1949) Geneva II13 General Assembly Resolution 217A(III), UN Doc A/810 at 71 (1948)14 See generally Davies, Europe, A History, Pimlico 199715 ibid 16 Rights Brought Home: The Human Rights Bill Ch 387216a Hansard 6 February 1987, col 122417 Lauterpacht; International Law and Human Rights (1950)18 (10th ed), Macmillan 195919 AG v Guardian Newspapers (no 2) [1990] 1 AC 10920 I cited this in a speech in the House of Lords on 23 May 199021 3 July 1996, Hansard column 146522 See eg the Court of Appeal in R v Secretary of State for the Home Department ex p Brind [1991] 1 AC 69623 "Courts in the United Kingdom should have regard to the provision s of the [Convention ] ...where our domestic law is not firmly settled" AG v BBC [1981] AC 303 at p 352 per Lord Fraser.24 R v Home Secretary ex parte Brind [1991] 1 AC 69625 Section 29(3)26 Clause 3(1)27 New Zealand Statute 1990 no 10928 See especially R v Laugalis (1993) 10 CRNZ; and also Ministry of Transport v Noort [1992] 3 NZLR 260; R v Rangi [1992] 1 NZLR 38529 K v Secretary of State for Transport exp. Factortame Ltd (No 2) [1991] 1 AC 60330 For example Marshall v Southampton and South West Area Health Authority (No 2) [1994] 2 WLR 29231 R v Secretary of State for Employment ex parte Equal Opportunities Commission [1995] 1 AC 132 The 1995 Administrative Law Bar Association lecture published in [1996] Public Law 59 under the title Judges and Decision-makers - The Theory and Practice of Wednesbury Review33 under Clause 434 under Clause 635 under Clause 8(2)36 White v Jones37 Woolwich Equitable Building Society v IRC [1993] AC 7038 In case 199/82 Amministrazione delle Finanze dello Stato v SpA San Giorgio [1983] ECR 359539 Woolwich Equitable Building Society v IRC [1993] AC 70 at p 17740 [1993] AC 59341 Pickstone v Freemans plc [1989] AC 6642 Pepper v Hart[1993] AC 593 at p 635 per Lord Browne-Wilkinson43 In R v Goldstein[1983] 1 WLR 151 at 15544 In Council of Civil Services Unions v Minister for the Civil Service [1985] AC 37445 M v Home Office [1992] QB 27046 Op cit.47 M v Home Office 3 WLR 43348 See further on this topic the valuable discussion in O'Neill Decisions of the European Court of Justice and their Constitutional Implications 1994 Butterworths, Chapter 549 See Clause 250 The Court of Human Rights also adopts a dynamic approach which enables it to take account of changing social conditions. 51 See Lord Denning's description in James Buchanan v Babco [1977] 2 WLR 107 @ 11252 Carter v Bradbeer [1975] 1 WLR 1204 at 1206-120753 By Dillon LJ in r v Poplar Coroner ex p Thomas [1993] 2 All ER 381 @ 387; and see the criticism by Bennion in The All England Reports Annual Review 1996 of the House of Lords decision in R v Preddy [1996] 3 All ER 48154 See eg Soering v UK (1989) Series A, vol 16155 Associated Provincial Picture Houses v Wednesbury Corporation [1948] 1KB 22356 (1976), Series A, vol 2458 Ibid, paras [48] - [49]59 See eg -R v Home Secretary exp. Patel. [1995] Imm AR 223; R v Home Secretary exp. Mbatube [1996] Imm AR 18460 Vogt v Germany Series A, No 323 (1996) para 52; (1996) 21 EHRR 205, 23561 Albeit within the margin of appreciation left to the public authority62 See Mannai v Eagle Star Life Assurance Co Ltd [1997] 2 WLR 945 and Investors Compensation Scheme v West Bromwich Building Society 24 June 1997 (as yet unreported)63 The Brtish Legal System Today (1983 Hamlyn Lectures) p49End
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