424 General Principles of Constitutional and Administrative Law

necessary implication is required to override fundamental rights (see

R. v. Secretary of State ex parte Piersen (1997) per Lord Steyn and

Lord Browne-Wilkinson; R. v. Secretary of State for the Home Depart-

ment ex parte Simms [1999] 3 All ER 400 at 411, 412).

The common law approach might overlook the creeping erosion

of liberty by the accumulation of statutes which, taken individually,

are relatively innocuous but which add up to a formidable armoury of

state powers. For example, over 200 statutory provisions authorise

officials other than the police to enter private property so that the

residual freedom promoted in Entick v. Carrington (1765) is somewhat

frail (see R. v. IRC ex parte Rossminister Ltd (1980)). Public order

law is especially vulnerable to this kind of erosion in that particular

threats, such as football hooliganism, harassment and anti-social

conduct in residential areas can be combated by draconian legislation

which is more likely to be overinclusive than precisely targeted. Thus

the rule of law’s insistence on general principles might be counter

productive. In this respect the Anti-Terrorism, Crime and Security Act

2001, which is aimed at the legitimate target of terrorism contains

provisions, concerning for example intimidation and powers to require

identification, that go well beyond the case of terrorism. Similarly, the

Treason Felony Act 1848 remains on the statute book. Intended to

deal with violent threats to the constitution s. 3 outlaws any writing

advocating the abolition of the monarchy, thus restricting debate

about republicanism. Moreover legislation enacted to deal with a par-

ticular urgent problem is rarely repealed but remains in force to be

used in other contexts.

The courts’ record has been mixed. In some contexts notably the

defence of property rights they have on the whole been libertarian.

In other contexts, notably political dissent, they have been less protec-

tive and readily deferred to government claims based on confidenti-

ality, national security and public order (see Whitty et al., 2001, p. 39

et seq.). Moreover there has been no consensus as to what liberties

are fundamental in the common law. Sometimes the very notion of

a constitutional right has been rejected. In Home Office v. Harman

(1983), the question arose whether the defendant, (who is currently the

Solicitor General), could be punished for revealing information to a

journalist that had been read out in court but which the judge had

asked not to be further published. Lord Diplock said (at 543) ‘[The

case] is not about freedom of speech’, whereas Lord Scarman com-

mented that [the case] must recognise ‘the important constitutional

right to freedom of expression’ (543), see also Secretary of State v.

425

Human Rights and Civil Liberties

Guardian Newspapers Ltd [1984] 3 All ER 601 at 603 and 615), A-G v.

Associated Newspapers Ltd (1994).

Although the UK has been a party to the European Convention on

Human Rights since 1952 and indeed played a major role in its draft-

ing, Convention rights have become binding in English law only after

the Human Rights Act 1998 came into force in November 2000. Before

the 1998 Act, it was not clear how far our treaty obligations under the

European Convention on Human Rights should be taken into account

in domestic courts. However, in recent years there has been a trend in

favour of interpreting the law in the light of international obligations.

This is of great importance in relation to treaties such as those relating

to genocide, terrorism, the environment and the rights of the child that

have not been formally incorporated into the law.

Even before the Human Rights Act, the courts had begun to place

greater emphasis on fundamental rights, notably in relation to pris-

oners and press freedom (e.g. Derbyshire County Council v. Times

Newspapers Ltd (1993), Piersen v. Secretary of State (1997), R. v. Secre-

tary of State for the Home Department ex parte Simms (1999), cf. R. v.

Secretary of State for the Home Department ex parte Hindley (2000)).

Judges have also written extra-judicially, in favour of fundamental

rights, and of incorporating the European Convention on Human

Rights into English law or of interpreting the law to give effect to

fundamental rights (e.g. Browne-Wilkinson, 1992; Laws, 1993, 1998;

Bingham, 1993, cf. Hooper, 1998; Hoffmann, 1999).

Judges sometimes claim that the ECHR reflects the common law.

For example, in R. v. Secretary of State ex parte Brind [1990] 1 All ER