469 At 477, Lord Donaldson said that ‘you have to look long and hard

before you can detect any difference between the English common

law and the principles set out in the convention at least if you view the

convention through English judicial eyes.’ It is also claimed that the

reasoning methods in UK law are essentially the same as those of

the ECHR in that in both cases freedom can be overridden only in

specified circumstances. In A-G v. Guardian Newspapers Ltd (No. 2)

[1988] 3 All ER 545 at 660, Lord Goff, said: ‘I can see no inconsistency

between English law (freedom of expression) and (the ECHR). This is

scarcely surprising, since we may pride ourselves on the fact that

freedom of speech has existed in this country perhaps as long if not

longer than anywhere else in the world. The only difference is that

(the convention) . . . proceeds to state a fundamental right and then

to qualify it, we in this country (where everyone is free to do anything

subject only to the provisions of the law) proceed rather on an

426 General Principles of Constitutional and Administrative Law

assumption of freedom of speech, and turn to our law to discover the

established exceptions to it.’ Similarly in Derbyshire County Council

v. Times Newspapers (1993) and R. v. Secretary of State for the Home

Department ex parte Simms (1999), both concerning freedom of

expression, Lord Keith and Lord Steyn regarded the common law as

complying with the ECHR. In Simms, Lord Hoffman suggested that

the Human Rights Act confirms the existing state of English law

(below p. 433).

However, the two approaches are significantly different. Firstly, the

European Convention requires the special justification of proportion-

ality to override a right, whereas in the common law any clearly worded

statute and even a discretionary power will do. Secondly the common

law, sometimes described as unprincipled, is multi-factoral in the sense

that it depends on accumulating factors pointing to or against a par-

ticular conclusion, without necessarily organising these within a formal

hierarchy of principles. These factors include precedent, logical coher-

ence, social policy and morality. However, some values or interests

may be given greater weight than others and in this respect the com-

mon law method overlaps with that of the ECHR.

Proponents of the Human Rights Act argue that it has several

advantages (Irvine, 1998, White Paper (1997, 1–13)). These include the

following:

(i) The common law is too weak and vulnerable.

(ii) Most other European states have enacted human rights legisla-

tion so that the UK appears to be a persistent offender in the

European Court.

(iii) Minimise delays and costs.

(iv) A distinctively British approach to the development of human

rights jurisprudence.

(v) Encouraging closer scrutiny of new laws and policies.

(vi) Enhancing awareness of human rights among the people and

making remedies more directly accessible.

On the other hand the principle of equality means that power-

ful companies as well as individuals can claim the protection of the

Act (e.g. R.J.R. MacDonald Inc. v. Canada (A-G) (1995): freedom

of expression for tobacco advertising Wilson v. First County Trust

(below)). Furthermore, litigation is likely to become longer, more

complex and therefore more expensive, and judicial opinions more

prolix (see Ford, 1999). Confidence in the judiciary might be eroded by

the overtly political nature of the issues involved. On the other hand, a

427

Human Rights and Civil Liberties

more informed public might become more confident in the judiciary as

important issues are openly debated.

18.3 The European Convention on Human Rights

The European Convention on Human Rights was created by the

Council of Europe which currently has 41 members. It was a response

to the atrocities of the fascist era of the 1930s and 1940s. It therefore

concentrates upon the protection of individual freedom against state

interference rather than what are known as second- and third-

generation human rights, these being respectively social claims such as

housing, and community claims such as environmental quality.

The European Court of Human Rights sits in Strasbourg. The

judges are elected for six years by the Parliamentary Assembly of

the Council of Europe, there being one judge from each member state.

Originally there was a two-stage process involving an initial filtering

by a Commission partly on political grounds with some cases being

sent to the Committee of Ministers for resolution. Litigation was very

slow with cases often taking more than five years to be resolved and

the court’s workload has steadily increased. For example in 1976 it

decided five cases and in 1997 145 were pending.

The 11th Protocol abolishes the Commission and gives states, indi-

viduals and groups a permanent right to apply directly to the Court.

The Committee of Ministers retains a role in supervising the execu-

tion of the court’s rulings (Art. 46 (2)). The Court, now full-time, sits

in Chambers of seven judges and a Grand Chamber of 17 judges,

the latter dealing with cases that raise important general principles.

Applications are referred to a committee of three judges to decide on

admissibility. Remedies in the domestic courts must first be exhausted.

A decision that an application is inadmissible must be unanimous and

there is no appeal. This procedure is likely to speed up the process.

However, the absence of a political element might reveal flaws in the

notion of subjecting human rights to adversarial judicial determina-

tion by a large and disparate international tribunal.

The Court can make a declaration as to the rights of the individual

and award ‘just compensation’. However, its decisions are not legally

enforceable but depend on the political will of the member states. The

UK has long accepted the right of individuals to take proceedings in

the Strasburg Court, but unlike the other signatories, did not incorpo-

rate the Convention into its own law. One result of this was that the

UK was one of the most persistent defaulters in the European Court

428 General Principles of Constitutional and Administrative Law

since we had no domestic remedies. The Human Rights Act 1998 has

partially rectified this.

18.3.1 Convention rights

]The following rights embodied in the European Convention on

Human Rights are incorporated into UK law by the Human Rights

Act 1998 s. 1.

. Article 2: right to life: except for capital punishment following

criminal conviction, defence against unlawful violence, lawful arrest

or prevention of unlawful escape, lawful action for quelling riot or

insurrection. The right to life does not apparently include a right to

die (see R. (Pretty) v. DPP (2002) (below).

. Article 3: torture or inhuman or degrading treatment or punishment.

This cannot be overriden (see Tyrer v. UK (1978), Costello-Roberts

v. UK (1993) – corporal punishment; Soering v. UK (1989) – extra-

dition to USA with risk of long delays on death row; Ireland v. UK

(1978) – interrogation of suspected terrorists).

. Article 4: slavery, forced or compulsory labour. Exceptions are prison

or parole, military service, emergency or calamity, ‘normal civic

obligations’.

. Article 5: liberty and security of person. The main exceptions

are criminal convictions, disobedience to a court order, control of

children, infection, mental health, alcoholics, drug addiction or vag-

rancy. There are safeguards to ensure a speedy trial and adequate

remedies against unlawful detention. A person arrested must be