Much ink has been spilt on an extensive shift of authority from the executive to the judiciary in the wake of the Human Rights Act, but in reality this has not happened yet. The constitutional revolution some had predicted is unlikely to be triggered by the presence of the European Convention on Human Rights in domestic law in the near or even distant future.
Asylum and immigration is a good place to start. Many of the early efforts by judges to ride roughshod over the Government’s immigration policy have been reversed: see, for example, the Court of Appeal’s decision in R v Secretary of State for the Home Department ex parte Saaid & ors , that the policy of detaining asylum seekers in reception centres was not a breach of the right to liberty under Article 5; or the same Court’s reversal, in R v Secretary of State for the Home Department ex parte Louis Farrakhan , of the judgment by Mr Justice Turner that the exclusion of Louis Farrakhan, the leader of the Nation of Islam, from this country breached his rights to free speech.
A few other examples from the immigration reports should suffice to show that the impact of the convention on this area of adjudication has been less than dramatic. In Henry and Eva Holub v Secretary of State for the Home Department , the Administrative Court ruled that the right to education was not absolute and could not be relied upon to buttress an immigration claim. In R v Secretary of State for the Home Department ex parte Peter Isiko and Susan and Shemy Isiko, the Court of Appeal ruled in December 2000 that valid considerations in respect of immigration controls were not outweighed by concerns over respect for family life. By way of warning to future judges, in that case, the court observed that a judge reviewing decisions that involved human rights issues could not substitute their own view for that of the executive.
This is hardly the talk of a victorious judiciary putting its boot into a crushed executive. Even the floodgates that were predicted to have been opened by the 1997 Strasbourg ruling in D v UK that aliens could not be deported to destination countries lacking the resources of the NHS, have been kept firmly closed by domestic courts hearing similar claims under Article 3 (prohibition of torture). In R v Chief Immigration Officer ex parte R (2001), it was held not to be a breach of Article 3 for the claimant, an HIV sufferer, to be returned to Columbia, as there was no evidence that there would be lack of medical care there.
Similarly, the much predicted impact of the convention on the planning system has not happened. Much of it has been reversed by the House of Lords ruling in Alconbury that there are vast areas of planning adjudication that are based on policy and that are, therefore, beyond the reach of the convention. See also R v English Nature and Secretary of State for the Environment ex parte Aggregate Industries UK Ltd in the Administrative Court; R v Camden Borough Council and the Secretary of State for the Environment ex parte Laura Cummins & ors in the Administrative Court; and R v Secretary of State for the Environment, ex parte Adlard & ors in the Court of Appeal.
The convention has had a significant impact on domestic law, but these repercussions are more subtle than predicted. Practitioners have deployed convention rights in an innovative fashion to draw to the attention of the general public, as well as the courts, the shortcomings of UK law compared with other convention states. Here the Human Rights Act has made its mark, even though individual cases may have failed. Such was the case of R v DPP ex parte Pretty , where it was argued that the criminalisation of assisted suicide was a breach of an individual’s right to autonomy under Article 8 and freedom of conscience under Article 9 and was unjustified given the unproblematic euthanasia regime in the Netherlands. The courts may have rejected her argument in the end, but the litigation has left our ears ringing. Such an exercise in comparative law would not have been initiated in an old-style judicial review hearing.
Some of the most exciting innovations in existing law have been forged by environmental practitioners relying on emergent environmental rights in the convention to extend the boundaries of common law liability. In general, such efforts have found sympathetic ears on the Bench. In McKenna & ors v British Aluminium Ltd, Mr Justice Neuberger ruled that non-proprietors may claim under Article 8 in respect of pollution or other invasive activities of neighbouring landowners in a way that they cannot pursue an action in Rylands v Fletcher or nuisance. In Peter Marcic v Thames Utilities Ltd , the Court of Appeal upheld the appellant’s argument that the failure of the public utility respondent to prevent flooding to his property grounded a claim in nuisance. Although the court concluded that Article 8 of the convention did not fall for consideration, it was no doubt influenced by the finding of Judge Richard Havery QC that the damage to the claimant’s home breached Article 8 and/or Protocol 1 Article 1 of the convention, and that he was entitled to damages accordingly. This ruling by the Court of Appeal overturns the position at common law, where the undertaker is not liable to a person in its area who suffers damage by flooding, where the claim is based on failure on the part of the undertaker to undertake works to fulfil its statutory duty of drainage of the area. Without the advent of Article 8, there would have been no impetus for such a change in the common law.
It may be that the convention has made an impact in those areas where rights talk was hitherto a relatively alien concept. It is noteworthy that in defamation law, for example, where notions of privacy and freedom of speech are long-established jurisprudential concepts, little headway has been made under either Articles 8 or 10 (freedom of expression), as the limits of both these rights have already been worked out. In Berezovsky & ors v Forbes and Micheals the Court of Appeal ruled that the requirement on a libel defendant to be able to justify not a diminished version of a damaging assault on a claimant’s reputation but the essence of that assault, was not a breach of Article 10 . In the “Blair nanny” case, Rosalyn Jayne Mark v Associated Newspapers Ltd, the same court ruled that defamation laws which prevent journalists from disseminating statements made by another person do not interfere with the freedom of the press if the repetition is truly defamatory. The convention has not made any difference to the insistence by the courts that journalists ferret out and disseminate their stories with a sense of responsibility to others.
As we can see, there is little more to be gained from the ongoing debate about judicial interventionism and the encroachment of the courts into policy. If anything, the judges have taken on the role of protecting existing law from the ingenious efforts of practitioners to deploy the convention in their clients’ cause, and where they have given way, it is perhaps in areas which needed a good dose of rights-based thinking, such as the patchwork of ancient common law rules and somewhat draconian legislation that make up the fairly novel area of environmental law.
Rosalind English is an associate tenant at One Crown Office Row and writes and coordinates the material provided on One Crown Office Row’s Human Rights Update at www.humanrights.org.uk.