Human Rights in the UK Supreme Court

472 Pages·2013·4.433 MB·English

by  Brice Dickson

HUMAN RIGHTS AND THE UNITED KINGDOM
SUPREME COURT
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Human Rights and the
United Kingdom
Supreme Court
BRICE DICKSON
3
3
Great Clarendon Street, Oxford, OX2 6DP,
United Kingdom
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Foreword
Professor Dickson is an eager student of the Supreme Court of the United Kingdom
and is already the author of a number of articles and papers on its workings. In this
book his attention is focused directly on the way in which the Court has dealt with vari-
ous human rights issues and he has produced a work which is not only comprehensive
and magisterial but also incisive and signifi cant.
Many of the themes that have recently exercised the Court are painstakingly exam-
ined. Th e Court’s attitude to the extra-territorial reach of the European Convention on
Human Rights and Fundamental Freedoms, its decisions and those of its predecessor,
the Appellate Committee of the House of Lords, on the limits of the retrospective eff ect
of the Human Rights Act 1998, and the controversial subject of the ‘mirror’ or ‘ Ullah ’
principle are all closely analysed.
Commendably, the author is not reticent in voicing criticism of the Court’s approach
to human rights in a number of important areas. He castigates its members for their
conservatism on many issues. Happily, however, he is unstinting in his praise when he
thinks that the Court may on occasions have got it right.
Th is book will be essential reading not only for those who are interested in the juris-
prudence of the Supreme Court on many of the vital human rights questions that have
arisen in the past four years but also for those who are concerned about the direction of
travel of the fi nal court of appeal in the United Kingdom on issues that aff ect the lives
of so many of its citizens.
Lord Kerr of Tonaghmore

Justice of the Supreme Court
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Preface
Th is book is an attempt to provide an overview of where the United Kingdom’s top
court currently stands on a range of human rights issues, in particular those which
fall to be considered under the Human Rights Act 1998. It is unusual in focusing
on the output of a single court, albeit one which in 2009 was transformed from
the Appellate Committee of the House of Lords into the United Kingdom Supreme
Court. Th e justifi cation for the focus is twofold. Firstly, that in courts of the United
Kingdom it is the views of the Supreme Court – and of the House of Lords before
it – that matter most. All other courts and law enforcers are bound to follow the deci-
sions of the top national court in preference to any other more tempting authority.
Secondly, that it is primarily the Supreme Court which ‘converses’ with the European
Court of Human Rights on controversial human rights questions. Th e European
Court looks to the Supreme Court for explanations concerning the state of UK law
and the Supreme Court in turn communicates to the European Court whatever
reservations it might have about the guidance available from the European Court.
To a large extent, therefore, this book is a history of the interaction between the
United Kingdom’s top court and the European Court of Human Rights, particularly
since the coming into force of the Human Rights Act 1998 in 2000. Th at interaction
is oft en a hot topical issue for the media. Th e book is off ered as a contribution to the
debate about the extent to which the Supreme Court does, and should, conform to
the judgments issued by the court in Strasbourg.
Th e book has had a long gestation period, during which a large number of people,
whether knowingly or otherwise, have assisted in its development. I would particularly
like to thank Gordon Anthony, Sir Louis Blom-Cooper, David Feldman, John Jackson,
John Knowles, Philip Leach, James Lee, Andrew Le Sueur, Kate Malleson, Tom Obokata,
Rory O’Connell, Aidan O’Neill, Alan Paterson, Jenny Rowe, Jenny Steele, Cheryl
Th omas and David Wills. At Oxford University Press I have been very well served, as
before, by all concerned, especially Natasha Flemming and Srikanth. It is the OUP who
compared the Tables and Index. I am particularly grateful to Lord Kerr of Tonaghmore
for agreeing to write a Foreword. Most of all I must thank my wife, Patricia Mallon, for
her inexhaustible support. Th e book is dedicated to her.
I have endeavoured to state the relevant legal position as of early January 2013.
On the day when this Preface was fi nalised the names of the next three Justices to
be appointed to the Supreme Court were announced by Downing Street. Lord Justice
Hughes is to fi ll the vacancy created by Lord Dyson’s move in October 2012 to become
Master of the Rolls, Lord Justice Toulson will replace Lord Walker, who retires next
month, and Lord Hodge will become one of the two Scottish Justices when Lord Hope
retires in June 2013. Lords Hughes and Toulson will take up offi ce on 9 April 2013
and Lord Hodge will do so in October 2013. Before announcing who is to become
the Deputy President of the Supreme Court on Lord Hope’s retirement, expressions of
interest are to be invited from existing Justices and the selection process will be super-
vised by the selection commission which made the recommendations for the three
viii Preface
new Justices. Th e names of the new Justices can now be inserted at the appropriate
places on page 8 of this book. We wait with interest to see what contribution they will
make over the next few years to the development of human rights law in the United
Kingdom.
Brice Dickson, Queen’s University Belfast
27 February 2013
Contents
Table of Primary Legislation xiii
Table of Secondary Legislation xix
Table of Treaties xxi
Table of Cases xxv
1. Introduction 1
Th e new Supreme Court 2
Th e jurisdiction of the Supreme Court 4
Th e Supreme Court and Scotland 5
Th e composition of the Supreme Court 7
Th e appointment process 9
Th e characteristics of Supreme Court Justices 10
Infl uences on the processing of appeals 13
Subsequent chapters 15
2. Th e Supreme Court’s Conception of Human Rights 1 7
Introduction 17
Liberties, not rights 17
Does the Supreme Court recognize constitutional rights? 2 0
Pre- Th oburn authorities 2 2
Post-Th oburn authorities 26
Th e impact of the Human Rights Act 1998 30
Human rights under the common law 3 3
Human rights under legislation besides the Human Rights Act 34
Th e EU charter of fundamental rights 36
Th e U llah or ‘mirror’ principle 39
Th e S habina Begum or ‘outcome not process’ approach 43
Human rights and the rule of law 4 8
Conclusion 50
3. Approaches to the Human Rights Act 51
Introduction 51
Retrospectivity 51
Fair trial and commercial cases 5 2
Right to life cases 54
Taking account of Strasbourg jurisprudence 56
Th e defi nition of ‘public authority’ 59
Th e section 3 interpretative duty 63
Primary legislation 6 4
Secondary legislation 70
Declarations of incompatibility 72
Declarations issued or endorsed by the top court 7 3
Declarations overturned by the top court 77