Informed promptly of the reasons for the arrest and be brought

promptly before a court (see Brogan (below)). The court proceedings

must be fair and reasonably speedy. This overlaps with Art. 6 (below)

and is similar to the flexible common law rules of natural justice

(above Chapter 16). However, Art. 5 includes matters such as bail

and parole which do not strictly fall within Art. 6 (see R. (DPP) v.

Havering Magistrates Court (2001), Hirst v. United Kingdom (2001)).

. Article 6: ‘In relation to civil rights and obligations and the deter-

mination of any criminal charges against him there is a right to a

fair trial in public before an independent and impartial tribunal

established by law.’ Civil rights include administrative law rights,

at least where the existing rights of citizens are at stake (see Bentham

v. Netherlands (1985)). However, it is not sufficient that a decision

disadvantages the claimant. It must actually affect a legal right or

entitlement as opposed to a discretionary benefit (see R. v. Secretary

of State for Social Services ex parte C (2000); McLellan v. Bracknell

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Human Rights and Civil Liberties

Forest BC (2002)). Article 6 requires procedural safeguards asso-

ciated with the rule of law, namely the right to silence, ‘equality of

arms’ between the parties as regards time, access to witnesses

and information, legal representation, and sometimes legal aid (see

Rowe v. United Kingdom (2001), Airey v. Ireland (1979), Van Der

Musselle v. Belgium (1983), Brown v. Stott (2001)).

Article 6.2 requires a presumption of innocence where a person is

charged with a criminal offence although this does not rule out

a burden to prove particular facts being placed on the accused

(R. v. DPP ex parte Kebilene (1999), R. v. Lambert (2001)). In a

criminal case there must be further safeguards. These include a right

‘to be informed promptly and in a language he understands and in

detail, of the nature and cause of the accusation’, adequate time and

facilities to prepare a defence, a right to choose a lawyer and free

legal assistance ‘when the interests of justice so require’, a right to

call witnesses and to examine opposing witnesses on equal terms, a

right to an interpreter. However, ‘charged with a criminal offence’

has been defined narrowly to exclude matters relating to sentencing

and bail. These are protected only by the general provisions of

Arts. 5 and 6 (Phillips v. United Kingdom (2001), R. v. Havering

Magistrates Court (2001)).

The right to a fair trial as such is not subject to exceptions and

cannot be overridden by public interest concerns such as blanket

claims to immunity (see Osman v. UK (1998)). However its individual

ingredients such as a right to see information held by the other side

can be overridden. The matter depends on the political circum-

stances. The process as a whole must be looked at and the scope of

any appeal or judicial review will be taken into account. For example

in Brown v. Stott (2001), the Privy Council held that the requirement

of the Road Traffic Act 1998 s. 172 (2), to disclose the name of the

driver was not in breach of the right against self-incrimination. The

reason for this was the clear public interest in reducing the high rate

of death and injury on the roads. Nevertheless any shortfall in one

respect should either be compensated by scrupulous fairness in

others (e.g. Phillips v. United Kingdom (2001): onus of establishing

facts on accused must be subject to safeguards) or heard by an appeal

or judicial review (see McLellan v. Bracknell Forest BC (2002)).

However, in Porter v. Magill [2001] 1 All ER 465, 501, Lord Hope

asserted that Art. 6 breaks down into distinct rights so that a failure

in one cannot be compensated by the others. These include, a fair

hearing, a public hearing, a hearing within a reasonable time and

a hearing before an independent tribunal established by law.

430 General Principles of Constitutional and Administrative Law

Article 6 applies differently in relation, on the one hand to politi-

cal decisions such as land use planning matters which are are usually

taken by politicians sometimes following a public hearing, and on

the other hand to judicial decisions, the primary purpose of which is

to determine the legal entitlements of individuals (Zumtabel v.

Austria (1993)). In the case of political decisions, individual rights

may be affected, for example in the case of a compulsory pur-

chase order to build a new road but this is part of a larger public

˚

interest concern.

In the case of a political decision, where the decision maker is

unlikely to be impartial, the primary decision need not satisfy Art. 6’s

requirements of independence and equality of arms, although even

here there must be safeguards for the individual in relation to factual

and legal issues. Judicial review may suffice to comply with Art. 6

(see R. (Alconbury) v. Secretary of State (2001)). In the case of a

judicial decision, either the initial decision maker must be indepen-

dent or, if the decision depends on establishing particular facts,

there must be provision for a full rehearing on appeal. Independence

is particularly difficult to establish in the context of military tri-

bunals and other disciplinary bodies within an organisation (see

Ghosh v. GMC (2001); Findlay v. UK (1997) and in cases involving

‘internal review’ of decisions (see Adam v. Newham BC (2002);

McLellan v. Bracknell Forest DC (2002)).

Judgement shall be pronounced publicly. The press and public

may be excluded from all or any part of the proceedings in the

interests of morals, public order, national security in a democratic

society, where the interests of juveniles or the protection of the

private lives of the parties so require, or the extent strictly necessary

in the opinion of the court in special circumstances where publicity

would prejudice the interests of justice (see R. v. Bow County Court

ex parte Pelling (1999)).

. Article 7: no retrospective criminal laws except in respect of acts

which were criminal when committed according to the general prin-

ciples of law recognised by civilised nations.

. Article 8: respect for privacy, family life, home and correspond-

ence. This seems to be treated as worthy of a ‘less high degree of

constitutional protection’ than at least freedom of expression and

access to the courts, and is therefore more easily overridden (see

e.g. R. (Samaroo) v. Secretary of State for the Home Department

(2000)). Privacy and family life are vague open-ended concepts

so that, in addition to concerns with state and media surveillance

and intrusion, there is room for considerable development into the

431

Human Rights and Civil Liberties

areas of personal identity and relationships, life-style and cultural

matters and environmental pollution (see Feldman, 1997, 1999a).

The eviction of local authority tenants both on social grounds

and because of anti-social behaviour may also override Art. 8

(R. (McLellan) v. Bracknell Forest DC (2002)).

. Article 9: freedom of thought, conscience and religion.

. Article 10: freedom of expression. This is given an especially high

level of protection particularly in respect of the media.

. Article 11: freedom of assembly and association. This should also

be given high protection being closely related to freedom of expres-

sion. However, public order issues are related to freedom of associa-

tion, in respect of which the executive is often conceded a wide

discretion (below).

. Article 12: the right to marry and found a family according to

national laws governing the exercise of the right. This has been inter-

preted as referring only to traditional marriages between biological

men and women (Rees v. UK (1987); transsexuals).

. Article 13: effective remedies before a national authority (not

included in the Human Rights Act).

. Article 14: the rights under the convention must be secured with-

out discrimination on the grounds of sex, race, colour, language,

religion, opinion, national or social origin, association with a national

minority, property, birth or other status. However, there is no general

right against discrimination (see e.g. Abdulaziz v. UK (1985)). The

Court of Appeal has interpreted Art. 14 widely. In Aston Cantlow and

Wilmcote with Billesley Parochial Church Council v. Wallbank (2001)

it was held that a duty imposed under ecclesiastical law on the owner

of glebe land (land originally part of a clergyman’s benefice) in the

form of an obligation to pay for the upkeep of a church was dis-

criminatory in that it was an unfair burden compared with burdens

imposed on property owners generally.

. Article 15: states can derogate or reserve from most of the Conven-

tion in times of war or other public emergency threatening ‘the life

of the nation’. Article 2, the right to life, cannot be derogated from

except in respect of deaths resulting from lawful acts of war, nor can

Arts. 3 (torture), 4 (1) (slavery), or 7 (retrospective punishment). The

state must show firstly that the threat is current or imminent,

secondly that the threat must affect the whole population involv-

ing a breakdown in the normal machinery of law and order, thirdly

that the measures must be intended as a necessary response to the

needs of the situation and fourthly there must be the safeguard

of judicial review. This is stricter than the ‘fair balance’ approach

432 General Principles of Constitutional and Administrative Law

taken in other contexts (see Lawless v. Ireland (1961), Brannigan and

McBride v. UK (1994), Askoy v. Turkey (1996)). However, protec-

tion ultimately depends on the extent to which the Court is prepared

to accept the government‘s word as to the needs of the situation.

Both the UK courts and the European Court give considerable

deference to the government in relation to emergency and security

matters (see R. v. Secretary of State for the Home Department ex

parte McQuillan (1995); Marks, 1995).

. Article 16. Articles 10, 11 and 14 shall not prevent a state from

imposing restrictions on the political activities of aliens.

. Article 17 (abuse of rights): ‘Nothing in this Convention may be

interpreted as implying for any State, group or person any right

to engage in any activity or perform any act aimed at the destruction

of any of the rights and freedoms set forth herein or at their

limitation to greater extent than is provided for in the Convention.’

This intended to prevent for example racist groups from exploiting

Convention rights such as freedom of expression or association in

order to damage other rights such as religious freedom or privacy

(see Lawless v. Ireland (No. 3) (1961), Gough v. Chief Constable of

the Derbyshire Constabulary (2001)).

. Article 18: ‘The restrictions permitted under this Convention . . .

Shall not be applied for any purpose other than those for which they

have been prescribed.’

. Protocol 1, Article 1: ‘Every natural or legal person is entitled to the

peaceful enjoyment of his possessions. No one shall be deprived of his

possessions except in the public interest and subject to the conditions

provided for by law and by the general principles of international

law. The preceding provisions shall not, however, in any way impair

the right of a State to enforce such laws as it deems necessary to

control the use of property in accordance with the general interest

or to secure the payment of taxes and or other contributions or

penalties.’ This protects property rights against confiscation with-

out compensation, including the right to dispose of property, but

does not confer a positive right to acquire property (see Marckx v.

Belgium (1979)). It also protects against restrictions on the use of

property, even if they take the form of other property rights, which

are confiscatory because they are uncertain in extent (see Aston

Cantlow and Wilmcote with Billesley Parochial Church Council v.

Wallbank (2001)). Lesser restrictions on the use of property, for

example planning and rent controls, are valid without compensation

although the line between use and confiscation may be difficult to

draw (Mellacher v. Austria (1989), Fredin v. Sweden (1991)).

433

Human Rights and Civil Liberties

. Protocol 1, Article 2: education – including parental choice in rela-

tion to religious and philosophical convictions. (The UK has made a

reservation in respect of this, namely, ‘only so far as compatible with

‘the provision of efficient instruction and training and the avoid-

ance of unreasonable public expenditure’.)

. Protocol 1, Article 3: free elections to the legislature at reasonable

intervals by secret ballot.

. Protocol 6, Articles 1 and 2: outlaws the death penalty except in

times of war or where there is an imminent threat of war. The

Human Rights Act 1998 s. 21 (5) abolished the last remaining death

penalty provisions in the UK.

18.4 The Human Rights Act 1998

18.4.1 The structure of the Human Rights Act 1998

The Human Rights Act does not incorporate the ECHR as such into

UK law but, by virtue of s. 1, gives the main rights embodied in the

European Convention on Human Rights the status of ‘Convention

rights’ having specific consequences in UK law. According to Lord

Hoffmann, (R. v. Secretary of State for the Home Department ex parte

Simms [1999] 3 All ER 400 at 412), the Act has three aims. These are

firstly to provide a specific text much of it, in his view, reflecting exist-

ing common law principles, secondly to enact the existing ‘principle

of legality’ according to which fundamental rights can be overridden

only by explicit statutory language or necessary implication, thirdly to

force Parliament to face squarely what it is doing. Lord Hoffmann‘s

approach is relatively cautious, reminiscent of the ‘power-sharing’

constitution mentioned in Chapter 1.

The Act has increased the political power of the judges and may

stimulate a wider political culture of rights although not necessarily of

a radical kind. For example in Gough v. Chief Constable of Derbyshire

Constabulary [2001] 4 All ER 289 at 321, Laws LJ said, adopting a

communitarian philosophy, that ‘rights are divisive, harmful, ulti-

mately worthless, unless their possession is conditional upon the public

good.’ This is rather stronger than the widely accepted proposition

that rights are rarely absolute but must sometimes yield to a greater

public good.

In R. (Pretty) v. DPP (2002) the House of Lords also took a

cautious approach in which the right to life was interpreted in a nar-

row way so as not to include a right to assisted voluntary euthenasia.

434 General Principles of Constitutional and Administrative Law

Lord Steyn explained that the ECHR was intended to embody a body

of values that commanded wide international acceptance and not

to invite the judges to embark upon morally and politically contro-

versial lawmaking. In Brown v. Stott (2001) paras 834, 839, 841, it was

emphasised that Convention rights foster democracy in that they

require compromise between competing claims.

If the view that English law already substantially conforms to the

European Convention on Human Rights is correct, successful chal-

lenges are likely to be relatively few. In one respect however the Act

has already made a difference, namely in intensifying the traditional

Wednesbury level of judicial review in favour of an a approach based

on proportionality. However, even this reinforces a trend that already

existed (above 16.5).

Convention rights do not include rights from which the UK has

derogated or reserved (s. 14). Nor does the Act include the duties under

Art. 1 to secure to everyone within the jurisdiction the rights and

freedoms under the Convention, and Art. 13 which requires effective

domestic remedies for breach of the Convention. These duties would be

relevant, for example, to an argument whether the police must protect

freedom of expression and assembly at a public meeting. However,

Arts. 10 and 11 may themselves imply positive duties to protect free-

dom of expression and assembly (see Chapters 19 and 20). Moreover

adequate safeguards and remedies are implicit in the overall require-

ment that inroads on convention rights must be prescribed by law.