Introduction of judicial consent for extended periods of detention

(Sched. 8).

The Anti-Terrorism, Crime and Security Act 2001 substantially

extends powers of detention of suspected foreign terrorists and confers

powers to freeze the assets of persons who are reasonably believed to

be involved with external threats to the UK’s economy or to the life or

property of UK residents or nationals.

Section 21 authorises the Home Secretary to certify a person as a

suspected terrorist if he has reasonable ground to believe (a) that the

person’s presence is a risk to national security and (b) to suspect the

person to be a terrorist. Suspicion is of course a lower threshold than

belief. The Home Secretary can detain a certified person indefinitely as

an alternative to deportation (s. 27). This required a derogation from

the ECHR thus preventing challenge under the Human Rights Act

(see SI 2001 no. 3644). The derogation itself could be challenged in the

European Court, perhaps on the ground that there is no national

emergency. The derogation can also be challenged under the Human

Rights Act. However, this can only be before SAIC, the Special Immi-

gration Appeals Commission (s. 30). SIAC can also hear an appeal

against certification on the merits (s. 25) but not against the decision to

detain. SAIC must also review every certificate initially after 6 months

then every 3 months.

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Human Rights and Civil Liberties

SIAC was created in 1997 as a result of the case of Chahal v. UK

(1997) where it was held that the previous system of informal non-

statutory advisors was not an adequate safeguard in national security

cases (see SIAC Act 1997). SIAC’s decisions are binding and it has

the status of the High Court with full judicial review powers (s. 35).

There is an appeal to the Court of Appeal. SIAC’s three members

include a high court judge and one other member must either be a

chief adjudicator or a legally qualified member of the Immigration

Appeals Tribunal. However, its procedure is specialised. Most signifi-

cantly the person detained is not entitled to full particulars of the case

against him (SAIC 1997 s. 5 (3) (a)). Although judicial review is not

excluded, the derogation coupled with the margin of discretion nor-

mally given to national security matters makes a successful challenge

unlikely. The detention powers of the Act lapse after 15 months but

can be renewed.

18.5.5 Other principles of interpretation

. The Convention has been described as a ‘living tree’ meaning that the

rights themselves and their ranking against other factors change with

the times (e.g. Soering v. UK (1989) – present-day attitudes to death

penalty mean that extradition to death row in USA would violate

Art. 3). This is, however, limited by the language of the convention

(Brown v. Stott [2000] 2 WLR 817, 835). For example in Johnston v.

Ireland (1996) it was held that the language of the convention meant

that the right to marry does not include a right to divorce.

. ‘Systematic interpretation’, according to which the Convention must

be read as a whole (e.g. Abdulaziz v. UK (1985) specific treatment of

immigration in Protocol 4 did not exclude other parts of the Con-

vention from protecting immigration rights).

. Internal aids to interpretation. Article 16 permits states to restrict the

movement of aliens notwithstanding Arts. 10, 11 and 14. Article 17

(abuse of rights) prevents the convention being interpreted so as to

authorise acts intended to destroy or limit the exercise of other Con-

vention rights, for example by anti-democratic groups or terrorists

(see Lawless v. Ireland (1976); Purcell v. Ireland (1991)). Article 18

prevents the restrictions permitted by the Convention on its rights

and freedoms being used for purposes other than those prescribed.

. Teleological interpretation, according to which the court looks at the

purpose intended to be served by the Convention of protecting

liberal and democratic values and the rule of law and can take

account of changing state practices and attitudes (Soering v. UK

454 General Principles of Constitutional and Administrative Law

(1989); Handyside v. UK (1976); Golder v. UK (1975)). The court

can look at the preparatory documents (traveaux preparatoirs) used

in drafting the Convention (Marckx v. Belgium (1979), compare

Pepper v. Hart (1993)).

. The consensus principle. Widely shared state practices may be called in

aid. Conversely, divergent state practices may persuade the court

to allow a margin of appreciation particularly in respect of cultural

and religious practices (Cossey v. UK (1990), refusal to endorse tran-

sexual marriage). The court may also take into account international

instruments and general principles of international law, for example

sovereign immunity, the 1966 United Nations Covenant on Civil and

Political Rights and the International Convention on the Elimina-

tion of All Forms of Racial Discrimination (1965), (see Jersild v.

Denmark (1994), McElhinney v. Ireland (2001)).

Summary

18.1 The human rights debate involves attempts to accommodate fundamentally

competing and incommensurable values without any coherent overarching

principle to enable a choice to be made. It is therefore arguable that an

elected body rather than a court should have the last word. The Human

Rights Act 1998 has attempted a compromise by leaving Parliament the last

word but giving the court power to influence Parliament.

18.2 Freedom in the common law is residual in the sense that one can do any-

thing unless there is a specific law to the contrary. I suggested that this is an

inadequate method of safeguarding important liberties. There is a debate as

to the extent to which the common law embodies the principles of the ECHR

and it is suggested that there are important differences in the approach of

the two systems.

18.3 The ECHR as such is not strictly binding upon English courts but can be

taken into account where the law is unclear or where a judge has discretion-

ary powers.

18.4 The Human Rights Act 1998 while not incorporating the convention as such

has given the main rights created by the ECHR effect in domestic law.

UK legislation must be interpreted to be compatible with Convention rights,

and public bodies other than Parliament must comply with Convention

rights. The courts must take decisions of the ECHR into account but are not

bound by them. It is unlawful for public authority to act in a way that is

incompatible with a Convention right. Victims can bring proceedings under

the Act against a public authority and rely on Convention rights in any legal

proceedings.

18.5 The Act can be directly enforced only against public authorities and by a

‘victim’ defined in accordance with the case law of the European Court.

‘Public authority’ includes all the activities of government bodies proper and

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Human Rights and Civil Liberties

courts and tribunals but in relation to bodies that have a mixture of public

and private functions (e.g. social landlords) only to their public ‘acts’. The

courts seem to be taking a similar approach to the question of what is public

function as in judicial review cases.

18.6 ‘Horizontal effect’ may be direct, where the court is required to enforce a right

against a private person, or indirect, where the state is required to protect

against violations by private persons. It is not clear how far the Act has hori-

zontal effect although there are several devices that might enable it to do so.

18.7 Parliamentary supremacy is preserved in that Convention rights must give

way where they are incompatible with a statute. The courts have taken a

moderate approach in relation to the obligation to interpret statutes, ‘so far

as it is possible to do so’, to be compatible with Convention rights. However,

there are differences of emphasis between judges as to the assumptions on

which interpretation should be approached, in particular the extent to which

established English law should be respected.

18.8 Where primary legislation is incompatible the court can draw attention to

violations by making a declaration of incompatibility. There is a ‘fast-track’

procedure available in special circumstances to enable amendments to

legislation to be made. The government must be explicit as to any intention

to override Convention rights.

18.9 The accommodation between Convention rights and competing factors

depends on the circumstances of the particular case and cannot be formu-

lated in general terms. The courts are guided to some extent by concept of

‘fair balance’, established in accordance with proportionality. The balance, or

more accurately accommodation, must be struck between Convention rights

and public interest concerns and between competing Convention rights.

While these devices help to structure and rationalise decision making they do

not remove the need for the court to make a subjective political judgement.

18.10 The courts have also applied the notion of ‘margin of appreciation’ or margin

of discretion in the context of decisions made by elected officials. The width

of the margin of appreciation depends on various factors chief among which

is the importance and extent of the particular right that is violated in relation

to the seriousness of the public harm if the right were not overridden and to

extent to which the matter involves controversial political, social or econ-

omic choices.

Further Reading

Buxton, R. (2000) ‘The Human Rights Act and private law’ 116 Law Quarterly Review 8.

Ewing, K. (1999) ‘The Human Rights Act and parliamentary democracy’ 62 Modern

Law Review 79.

Feldman (1999) ‘The Human Rights Act and constitutional principles’ 19 Legal Studies

165.

Hoffman, Lord (1999) ‘Human Rights and the House of Lords’ 62 Modern Law Review

159.

Hope, Lord (2000) ‘Human Rights – where are we now’ European Human Rights Law

Review 443.

Hunt, M. (1998) ‘The ‘‘horizontal effect’’ of the Human Rights Act’ Public Law 423.

Klug (2000) htttp://www.charter88.org.uk/pubs/reinven/reincomm.html.

456 General Principles of Constitutional and Administrative Law

Klug, F., Staner, K. (2001) ‘Incorporation through the ‘‘front door’’: the first year of the

Human Rights Act’ Public Law 654.

Laws, Sir J. (1998) ‘The limitation of human rights’ Public Law 254.

Leigh, I., Lustgarten, L. (1999) ‘Making rights real: the courts, remedies and the

Human Rights Act’ 58 Cambridge Law Journal 507.

McHarg, E. (1999) ‘Reconciling human rights and the public interest: conceptual

problems and doctrinal uncertainty in the jurisprudence of the European Court of

Human Rights’ 62 Modern Law Review 671.

Oliver, D. (2000) ‘The frontiers of the state: public authorities and public functions

under the Human Rights Act 1998’ Public Law 476.

Pannick, D. (1998) ‘Principles of interpretation of Convention rights under the Human

Rights Act and the discretionary area of judgement’ Public Law 45.

Steyn, The Rt. Hon. Lord (2000) ‘The new legal landcape’ European Human Rights

Law Review 549.

Wade, W. (1998) ‘Human rights and the judiciary’ European Human Rights Law

Review 520.

Wade, W. (2000) ‘Horizons of horizontality’ 116 Law Quarterly Review 217.

Waldron, Law and Disagreement, Part III.

Waldron, J. (1993) ‘A rights based critique of constitutional rights’ Oxford Journal of

Legal Studies 132.

Exercises

18.1 ‘This is the trouble with fundamental values. Whichever one you take with

you as a guide, another one is waiting round the corner with a sock full of

sand’ (Sedley). Explain and discuss.

18.2 ‘The (Human Rights) Bill is a key component of our drive to modernise

our society and refresh our democracy in a way that will strengthen repre-

sentative and democratic government’ (Jack Straw). Do you agree?

18.3 ‘The striking of a fair balance lies at the heart of proportionality’ (Dyson LJ in

R. (Samaroo) v. Secretary of State (2001)). Discuss critically.

18.4 ‘The court will bear in mind that, just as individual states enjoy a margin of

appreciation which permits them to respond, within the law, in a manner that

is not uniform, so there will often be an area of discretion permitted to the

executive of a country before a response can be demonstrated to infringe

the Convention’ (Phillips LJ in R. (Mahmood) v. Secretary of State (2001).

Discuss critically.

18.5 Explain the constitutional significance of the Declaration of Incompatibility.

18.6 ‘For the constitutionalist, the explicit subjection of all law to the law of

fundamental human rights represents a further important step in the gradual

process whereby private law, instead of constitutionalising our entire legal

system by its all-pervasive influence on general principles of interpretation,

is itself becoming constitutionalised by generally applicable norms of public

law’ (Hunt). Explain and discuss.

18.7 ‘It may be that the cases that have been decided under the Human Rights

Act 1998 (below) would have been decided in the same way even if the Act

did not exist.’ Discuss. Consider whether Brind v. Secretary of State (1991)

and A-G. v. Associated Newspapers Ltd (1994) would be decided the same

way today.

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Human Rights and Civil Liberties

18.8 Mary lives near a large factory owned by a private company. She claims that

the incessant noise and pollution which the factory emits 24 hours per day

violates her rights to the peaceful enjoyment of property and respect for

family life. Advise Mary.

18.9 The ‘Road traffic (Zero Tolerance) Act 1999’ (imaginary) provides that a

constable may arrest ‘‘any person in charge of a motor vehicle whom he

has reason to suspect has recently driven in excess of a statutory speed

limit’’. The defendant is guilty of an offence ‘‘unless he can prove that he was

not driving the vehicle in question at the relevant time’’. In the Parliamentary

debates on the bill, a government spokesman declared that the need to

combat speeding is so important that even basic legal safeguards should

be overridden. In September 2000, Will was arrested but was subsequently

acquitted of an offence under the 1999 Act. In November 2000 the Attorney-

General successfully appealed and Will was convicted. Will now appeals to

the House of Lords. Will argues that his arrest is contrary to the Human

Rights Act 1998. How would you decide the appeal?

19 Freedom of Political Expression

19.1 Introduction: Justifications for Freedom

of Expression

Freedom of expression (including freedom of the press) has long been

identified as important by judges, politicians and commentators on the

constitution. Blackstone, for example, saw a free press as essential to

the nature of a free state (Blackstone, 1825; see also Dyzenhaus, 1991,

p. 201). This may explain why it is commonly assumed that the UK is a

country in which there have long existed adequate protections of free-

dom of expression. This perhaps rather complacent view was encour-

aged by Lord Goff where he declared that ‘freedom of expression has

existed in this country perhaps as long, if not longer, than it has existed

in any other country in the world’ (A-G v. Guardian Newspapers Ltd

(No. 2) (1998) p. 660.

Similarly in Derbyshire County Council v. Times Newspapers (1993),

the House of Lords relied on the common law independently of the

ECHR to protect press freedom, Lord Keith in particular being

pleased to discover that English law conformed to the ECHR (see also

Simms v. Secretary of State 1999 per Lord Steyn at 408).

This view is not universally endorsed. Professor John Griffith

describes Britain as a country in which a lacklustre commitment to

freedom of expression has been the norm (Griffith, 1997, p. 299). The

weight of historical evidence provides considerable support for this view

(Ewing, 2000). Consider Dicey’s writing on the constitution. He did not

regard freedom of expression as a fundamental right. Rather, he saw

it as a residual liberty that could be abrogated by the sovereign legis-

lature, subject only to the non-legal constraint of political opinion.

Thus we encounter a gap between the assumption that freedom of

expression has long enjoyed protection in Britain and constitutional

reality. This gap has prompted commentators in recent years to argue

for greater legal protection for freedom of expression (e.g., Feldman,

1993, p. 34 and p. 555). In other jurisdictions which embody rights-

based protection of expressive activity there has been considerable

judicial elaboration of the law. This point can perhaps best be exempli-

fied by reference to the law of the USA. The right to freedom of expres-

sion is guaranteed by the First Amendment to the US constitution.

It provides that ‘Congress shall make no law . . . abridging the freedom

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Freedom of Political Expression

of speech’. This provision has provided the basis for judicial develop-

ment of the law relating, inter alia, to expression in the electoral pro-

cess, offensive and provocative expression, and non-verbal conduct

that has symbolic significance. These developments have, moreover,

spawned a considerable academic literature on, inter alia, the moral

significance of freedom of expression.

Now that the UK courts have to give effect to Article 10 of the

ECHR, judges are beginning to close the gap referred to above and are

giving much greater consideration than in the past to the rationales

for freedom of expression (see, for example, R. v. Secretary of State

for the Home Department ex parte Simms (1999), p. 126, per Lord

Bingham and McCartan-Turkington Breen v. Times Newspapers Ltd

(2001), pp. 296–7, per Lord Bingham). A range of arguments can be

advanced in support of freedom of expression (Greenawalt, 1989; see

R. v. Secretary of State for the Home Department ex parte Simms

(1999), p. 408, per Lord Steyn). These include, self-fulfillment, the

testing of truth, democratic debate, checking the abuse of power and

exposing error in government. Freedom of expression reinforces the

fundamental principle of equality. These arguments can be placed

in two broad groups (Dworkin, 1996, pp. 199–200). Arguments in the

first group identify freedom of expression as intrinsically valuable

(cf. Fish, 1994, pp. 14–15, where it is argued that free expression cannot

plausibly be regarded as intrinsically valuable). By contrast, those in the

second group identify freedom of expression as instrumentally valuable:

i.e., valuable as a means by which to pursue some other valuable end.

Dworkin has recently argued that freedom of expression is valuable

in itself. On Dworkin’s account: [F]reedom of speech is valuable . . .

because it is an essential and ‘constitutive’ feature of a just political

society that government treat all its members, except those who are

incompetent, as responsible moral agents (Dworkin, 1996, p. 201).

This argument can be a little elusive. One way of capturing its gist is

by regarding provisions such as Article 10 of the European Conven-

tion as encoding a message about the intrinsic significance of granting

the right to freedom of expression. This message can be stated thus:

those upon whom the right to freedom of expression is conferred are

regarded as capable of ‘making up their own minds about what is good

or bad in life or in politics, or what is true and false in matters of justice

and faith’ (Dworkin, 1996, p. 201; see also p. 205). This is because

measures such as Article 10 give expression, inter alia, to the view that

those who enjoy the right to freedom of expression are properly entitled

to ‘participate in politics’ and to ‘contribute to the formation of [their]

moral or aesthetic climate’ (Dworkin, 1996, p. 201; see also Freeden,

460 General Principles of Constitutional and Administrative Law

1991, pp. 8–9, on the ‘worth’ or ‘status’ conferred on those who are

identified as rights-bearers).

Dworkin’s argument can easily be conflated with two arguments in

which freedom of expression is identified not as intrinsically valuable

but, rather, as a means to a valuable end. According to the first of these

arguments, freedom of expression is a means to the end of democracy.

According to the second, it is a means to the end of human self-

actualisation. Let us examine the first of these arguments. When we

speak of ‘democracy’ we refer to a mode of government in which the

people as a whole participate. Such participation can only occur in

circumstances where people are free to advance their views (Feldman,

1993, p. 550). Moreover, it can reasonably be argued that democracy

can only flourish in circumstances where the press are free to dissemin-

ate information on and offer comment concerning matters of political

significance. A particularly strong defence of the view that the right to

freedom of expression is a means to the end of democracy was set out

by the American commentator Alexander Meiklejohn (Meiklejohn,

1960; cf. Richards, 1999, pp. 18–22). Writing with regard to the First

Amendment, he argued that the framers of the US constitution were

interested in political freedom and in making democracy work. Hence,

they put in place a constitutional guarantee of free expression on mat-

ters of political significance. A corollary of Meiklejohn’s argument is

that commercial expression (e.g., advertising) and artistic expression

particularly of a pornographic kind merit less protection. Expressive

activity concerning matters of public concern can, of course, take a

wide variety of forms. It may involve the articulation of a new vision

of social organisation (as set out in a political party’s election mani-

festo). More modestly, it may involve the articulation of views critical

of the way in which public officials are conducting themselves. In this

latter connection, one commentator has identified free expression as

having a ‘checking function’ (Blasi, 1977).

Let us now turn to the argument that freedom of expression pro-