|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Australian Journal of Human Rights |
I might pause here to say that in terms of the substance of the paper, I shall at times draw some comparisons with Australia, and I shall point to some areas of the United Kingdom/Europe experience that, I believe, are particularly pertinent to the human rights debate that we are having in this country. I am, however, aware that there exist other issues of comparative relevance, but I shall leave those to be inferred by others.
In contemplating how I ought to approach this paper, I found myself being forced back to a couple of fundamental questions - the more I pondered on this the more I realised that upon the asking and answering of these questions rests the whole shape of the debate over the protection and promotion of human rights in Australia, as elsewhere. If there is one basic lesson that we can learn from the analogous experience of the United Kingdom it is that the answers to these base questions must be not be assumed or the questions overlooked. Should the direction in which the Australian human rights juggernaut be determined by default rather than by design, then once it gets going we will all have a mighty tough task stopping it or changing its direction should we see the need.
What are human rights?
Having said this much, I shall immediately duck the most fundamental of all questions in respect of human rights - namely, "what are they?"[1] This is not because this is an unimportant question - far from it, for example, whether or not economic and social rights ought not be included alongside civil and political rights in any charter of protected rights, for example, is clearly a matter of great controversy. Rather, my reason is based primarily on the fact that the United Kingdom/Europe experience has more to offer us in respect of another pair of basic questions. In this paper I shall restricting my discussion to civil and political human rights such as those contained in the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights and Fundamental Freedoms (ECHR).
Why must human rights be protected? and How should they be protected?
The two threshold questions that I wish initially to pose are: why must human rights be protected? and, how should they be protected? Asking these questions forces us to confront the nature of what it is we hope to achieve in this regard. In Europe these questions were raised and answered (even if with certain reservations, especially on the part of the United Kingdom[2]) in the immediate aftermath of the Second World War. Out of the Council of Europe (established in 1949) came the ECHR with its machinery of enforcement, including a Court. The ECHR entered into force in 1951.[3] In Australia today, we do not have to face such questions of human rights protection in anything like the same charged atmosphere as our European cousins did then; but nevertheless, face them we must. What, however, I believe, is imperative is that we must be sure to benefit both from the history that the United Kingdom/European experience provides and the relative calm in which we can deliberate.
In addressing the two questions (why and how to protect) we are immediately struck by the pincer-movement that they perform on the nature of our form of government. They strike at the heart of what we understand to be our system of `parliamentary democracy' or `constitutional government' or whatever we choose to call it. For, to answer the question why should human rights be protected we must articulate what fundamental values we wish to see our system of government secure and advance. To answer the question how are human rights to be protected we must rely on the devices existing in our system of government (or ones that can be supported by the system) that best promote those fundamental values. If there has to be a single, all-encompassing, fundamental value, expressed in a single word, that answers both of these questions (in the West, at least) then I suppose "democracy" would be a very strong candidate. There is perhaps no term more over-used or pregnant with (or bereft of?)[4] meaning than democracy (except perhaps `human rights') and I do not intend to enter that debate here. It is, however, fair to say that although its boundaries may be hotly disputed, its essential nature is universally understood and its preeminence in western democracies accepted. Certainly, in light of the current support given by the High Court to the notion of `representative government' (`democracy' by another name) our judges see it as one of the load-bearing walls of the Australian Constitution.
Human Rights and Democracy
The link between democracy and human rights is clear enough. The rights to liberty, privacy and fair trial; the rights to free assembly and free expression, conscience and religion and freedom from discrimination - all classic civil and political rights (central to both the ECHR and the ICCPR) - are the very building blocks of democratic society. Remove or curtail any number of these rights and you diminish the nature of democracy.[5] An essential prerequisite of democracy, therefore, is that human rights are guaranteed.
In the United Kingdom as well as Australia, we can say, in the broadest sense, that the reason for protecting human rights is so that ideal of democracy may be realised. It matters not in the present context that this ideal is never fully realised in practice; the point is that without the protection of basic human rights no progression at all would be made towards that goal.
Equally, in response to the second question (how do we protect human rights), we can say that the manner in which they are to be so protected must be by way of institutions and procedures that reflect democratic values.
At this point, therefore, it is possible to reach an interim conclusion - namely, that clearly the protection of human rights is a constitutional matter.
Constitutional Protection of Human Rights
Constitutional democracies are far from unanimous in their choice of constitutional means by which protection is provided.[6] It is at this point of the argument that an appreciation of the nature of one's own democratic system becomes crucial, for it is that which determines directly one's choice of model for the protection human rights. For example, the chosen constitutional vehicle for protection may be by (i) express provision in the Constitution (as in the United States or Canada); or (ii) by an `ordinary' statute which is in practice accorded special significance (as in New Zealand); or (iii) by implication in the Constitution (as in Australia), or (iv) by way of interpretation of domestic law in the light of international treaty provisions (as in Australia and the United Kingdom).
The models `chosen' by Australia and the United Kingdom have one clear thing in common - neither includes a domestic Bill of Rights. Among western democratic states the two countries are peculiar in this respect. Pressure in both countries to plug this perceived gap is ever-present, with periodic surges of interest in the matter (as is currently the case in both jurisdictions, albeit for different reasons). Indeed, it is fair to say that these facts alone the two countries warrant comparison.
I turn now to look squarely at the position in the United Kingdom.
United Kingdom and the ECHR
Out of all of the signatory states to the ECHR (now 31, after the accession of a number of former Eastern European States) the United Kingdom has encountered the greatest problems in coming to terms with the European human rights regime. Most of you will be only to well aware of the United Kingdom's unenviable record before the European Court of Human Rights (which is by far the worst, if one removes the inflated and substantively unimportant number of adverse decisions against Italy in respect of delayed court hearings).[7] The range of issues covered by the 30-odd violations by the United Kingdom is broad. No useful purpose is served in the present context detailing or even listing these cases. Rather, I shall quickly mention four areas.[8] I might just point out that the very deliberate basis upon which I have chosen these is that in respect of each area there exists a corresponding concern over human rights in Australia.[9] This constitutes a rather disturbing parallel.
(i) In Malone,[10] the European Court of Human Rights found that the United Kingdom police had unjustifiably infringed Mr Malone's privacy by tapping his telephone (compare the recent High Court decision in Coco).[11]
(ii) In the area of sexual preference, the archaic and draconian laws outlawing homosexual practice, even between consenting adults in private, that persisted in Northern Ireland (in contrast to the rest of the United Kingdom) were held to breach individual rights to privacy.[12] (Compare the corresponding legislation in Tasmania and the resultant Toonen case).[13]
(iii) The freedom of expression of a number of British newspapers was held in two cases (one in respect of the drug thalidomide; the other in respect of Peter Wright's Spycatcher)[14] to have been curtailed as a consequence court-enforced injunctions (compare the High Court's decision in Nationwide News and (more loosely) the Capital TV and Theophanous cases).[15]
(iv) The extended periods of detention without access to counsel or being brought to trial of suspected terrorists under British and Northern Irish legislation were held to be in breach of the right to individual liberty and the right to an expedited trial.[16] (Compare the prolonged detention of the Cambodian and Chinese asylum-seekers at Port Hedland, and the High Court's judgment in Lim[17] and the petition to the UN Human Rights Committee that followed).
There can be no doubt that a great many of the European Court's rulings against the United Kingdom have revealed ignorance or disdain (or both) on the part of the United Kingdom Government of its obligations under the Convention. This is abhorrent and inexcusable. However, it is symptomatic of a constitutional dilemma that the United Kingdom, almost alone amongst its co-signatories, has had to face in respect of the ECHR. The United Kingdom and the Republic of Ireland are the only two common law jurisdictions that are party to the Convention, all the other, Continental European States, are civil code jurisdictions. This distinction is of critical importance for the constitutional protection of human rights. For civil law jurisdictions invariably possess a `written' constitution, which almost always includes a set of human rights guarantees (in the present context the only exceptions are Iceland, Norway and Sweden and all three are likely to incorporate the Convention in the near future).[18] In common law countries, on the other hand, a written constitution is merely an option, and a charter of human rights a further option. Ireland has a written constitution; it also has a domestic human rights charter. The United Kingdom, therefore, is conspicuous in its possession of neither a written constitution nor a Bill of Rights.[19]
The Political Dimension
So, what exactly is the significance of this isolation. Well, it is this. In Civil Law countries matters of constitutional importance, including (indeed, especially) the protection of human rights, are seen as essentially legal problems, or at least ones that can be resolved by the courts. In so far as politics enters into the equation it does so by way of legal expression. In the United Kingdom, the constitution, precisely because it lacks exact legal expression, is defined in political terms. As the author of one of the most recent tomes on civil liberties in the United Kingdom proclaims:
"The Constitution has always been predominantly political rather than legal. To restrain parliamentary legislation which might interfere unduly with people's rights, the United Kingdom has generally been content to rely on the good sense of politicians and the conventions and social properties which they are expected to observe.[20]"
The lineage of this form of reasoning is long and illustrious, stretching back to the English constitutional settlement of the Seventeenth Century. It is, of course, nothing less than an expression of that fundamental, democratic principle of British constitutional law: Parliamentary Sovereignty.[21] The orthodoxy of this notion provides that Parliament is free to legislate on whatever it wills; it is subject to no legal limitations whatsoever, the only limitations to its power are purely political in form. Thus, to provide the classical illustration, Parliament may legislate so as to have all blue-eyed babies killed at birth. There exists in the United Kingdom no legal limitation on Parliament so doing - or rather, to be accurate, there exist no laws preventing such action that Parliament could not simply remove by way of an ordinary statute. The ECHR, as it now stands in United Kingdom law,[22] would present no obstacle to Parliament, despite the `blue-eyed babies' statute being in violation of a number of its articles.[23] What, however, does prevent Parliament passing such an Act is its manifest political (not to say moral) unacceptability. A more prosaic example (and one that has relevance to an argument I refer to later in this paper) concerns the United Kingdom's membership of the European Union. Legally, there is nothing to stop the United Kingdom from enacting legislation that revokes its membership[24], but it is at present politically unconscionable. One has to say, however, that for as long as the United Kingdom remains party to the European Union the sovereignty of its Parliament is legally attenuated.[25] But that is another debate.
Anyhow, as a result of its accession to the ECHR the United Kingdom - its government; its Parliament and, in particular, its judiciary - has always had trouble adapting to the requirements of express, if ill-defined, constitutional obligations in respect of human rights.
The Bill of Rights Debate
This constitutional awkwardness is nor more apparent than in the "stultifying intransigence" of the Bill of Rights debate in the United Kingdom. At the last count, nor more than 17 bills proposing the adoption of a Bill of Rights (almost invariably, by way of incorporation of the ECHR) have been presented to Parliament. They have all lacked government support (from both Labour and Conservative parties) and have therefore been defeated, or more usually have lapsed before being debated in Parliament.[26]
In terms of the dual matters of whether to protect human rights and how best to protect them, the Bill of Rights debate in the United Kingdom comprises the beginning, middle and end of the story. Little else, in the way of alternatives or complements to a Bill of Rights as means to protect and promote human rights, has had a look-in.[27] The preoccupation in the United Kingdom with the arguments for and against a Bill of Rights has, in other words, occurred at the expense of investigation of other means which might indeed better represent the nature of the United Kingdom's form of constitutional government. This is not to say that the Bill of Rights debate is unimportant, it is important, but it is (or at least ought to be) part of a wider debate. It can be fairly said of the United Kingdom that this much has not been appreciated. We, in Australia, must not allow the same thing to happen here.
Human Rights and the Role of Law in the United Kingdom
The traditional view in the United Kingdom of the role of the law in the protection of basic rights has centred on the power of the common law. As, for instance, Dicey, the father of modern constitutional law in the United Kingdom, said of the common law inspired Habeas Corpus Acts, although they "declare no principle and define no rights, they are for practical purposes worth a hundred constitutional articles guaranteeing individual liberty".[28] Though as demonstrated by the litany of cases over the years that have allowed the executive extremely broad powers of detention,[29] in practice the writ of habeas corpus offers far less protection to the individual than the article 5 of the ECHR (protection against unlawful detention).
Judicial Recognition of the ECHR
In more recent times, of course, reliance on the imperfect common law has been replaced, by a reliance on legislation. In the area of human rights, as in all other areas, the bulging library shelves of statutes and regulations are testimony to the increased activity of both the Parliament and the Executive (for example, the Race Relations Act 1976, the Sex Discrimination Act 1975, the Data Protection Act 1984 and the Public Order Act 1986).[30]. However, this development has not removed input from the judiciary - far from it. Now more than ever the courts are being called upon to define the meaning of legislation in the myriad of circumstances that it now covers. For British judges, steeped as they are in the traditions of the common law, this task was relatively straightforward so long as the legislative provisions that they are being asked to interpret were precisely drafted and comprehensively detailed. Unlike their civil law cousins, British judges have traditionally baulked at the task of interpreting and applying broadly drafted statements of principle - like human rights guarantees. The British judiciary's exposure to the provisions of the ECHR (the Convention), therefore, has not been a happy one. For decades, British judges have been saved from the task of directly implementing the articles of the Convention by the fact that under the dualist character of the United Kingdom's constitutional law a mere treaty has no direct force in domestic law. The facts of the Conventions's status as a treaty and the United Kingdom's dualist tradition remain, but the combined protection they now provide the judiciary from the rigours of interpreting the Convention has been significantly eroded.
On the one hand, the judiciary itself, slowly but surely, has taken more notice of the Convention in domestic law. An extensive survey conducted in 1991[31] showed that although the Convention was not judicially considered in a UK court until 1974 (more than 20 years after it came into force) it has since been referred in well over 200 cases, with the rate of mention accelerating over the last few years. The Convention has been used in judicial review of administrative action cases and, on occasion, it has been used as an aid to interpreting the common law.[32] Most often, however, it has been called in aid of statutory interpretation and to resolve ambiguities or inconsistencies in legislation.[33] And whilst it has been concluded (by the authors of the study mentioned), that the judiciary's use of the Convention has "made little or no difference to the result" of individual cases, being used merely to reinforce views already formed, there is no doubt that the judiciary's awareness of the Convention has been hightened. Indeed, this is a strong contributing factor to the impressive line-up of judges who expressly support the incorporation of the Convention into United Kingdom law: two Lord Chancellors (Hailsham & Gardiner); Lord Scarman; Lord Woolf, and the present Lord Chief Justice (Lord Taylor) and the present Master of the Rolls (Sir Thomas Bingham).[34]
A second, and potentially far more significant, reason why the domestic courts in the United Kingdom are having to face the prospect of directly implementing the Convention lies, in the United Kingdom's membership of the European Community (now Union). For more than 20 years now the Community's court (the European Court of Justice) has recognised and used the jurisprudence of its sister court (the European Court of Human Rights) in its own deliberations as to the meaning of European Community law.[35] Since the coming into force of the Treaty on European Union ( the "Maastricht Treaty"), furthermore, adherence to the ECHR is now expressly stated to be one of the fundamental objectives of the Union.[36] For many years there have also been various proposals for directly incorporating the Convention into Community law (by the European Union itself signing the Convention)[37] and currently a draft proposal for its very own `Human Rights Charter' as part of a new constitution for the European Union lies before the European Parliament.[38] The relevance of all of this for the United Kingdom is that law is directly effective in United Kingdom courts. Under the United Kingdom's own statute that effected its membership of the European Community this is expressly provided for;[39] no additional domestic legislation is necessary in order for United Kingdom courts to apply Community law. By means, therefore, of the direct effect of European Community law in the United Kingdom, the Human Rights Convention is already indirectly effective, even if only in the relatively limited field of Community law.[40]
The Duty of the Legislators
To a substantial degree, therefore, the United Kingdom already has a (modern) Bill of Rights. But it is implemented and enforced almost exclusively by the courts. In terms of the best and most appropriate means by which to protect and promote human rights this raises a fundamental question. In light of the United Kingdom's constitutional character that I talked about earlier, ought this crucial task be left in the hands of the judiciary alone, or even at all?[41]. Surely it is as much (if not more) a duty of those elected to government and to the legislature to ensure that such rights are safe-guarded. The heady democratic principle that backs this argument, is made all the more persuasive by the fact that of the 30 or so[42] occasions in which the United Kingdom has been found to have violated the ECHR, more than two-thirds have involved legislative provisions passed after the United Kingdom's ratification of the Convention. As I indicated earlier, none of these breaches are excusable, but the audacity of some is quite staggering. Perhaps the most conspicuous was the determination of the Government in 1980 to enact Immigration Rules in the face of extremely strong evidence presented to it that the Rules contravened the Convention, which, subsequently, was indeed found to be the case by the European Court of Human Rights.[43] After surveying all of the cases in which legislation it is hard not to conclude that the Government's disdain for the requirements of the Convention points to an almost institutional attitude of neglect.[44]
This situation has to be corrected so that, at the very least, parliamentary and governmental scrutiny of human rights is of the same intensity as that of the judiciary. With so many breaches of the Convention traceable to legislation it seems obvious that mechanisms by which legislative proposals can be scrutinised for compliance with human rights standards before they reach the statute book must be established.[45] It is both neglectful and wasteful on the part of legislators that the exposure and repair of legislative violations of human rights be left to the judiciary some years or even decades later - if they come before the courts at all!. Legislators above everyone else, ought to be concerned with the prevention of such breaches, rather than simply leaving it to others to treat the symptoms.
Despite my strong support for action to be taken along these lines, I am, nevertheless, a pragmatist. I appreciate that pre-legislative scrutiny alone is unlikely fully to protect human rights and that, in any case, the push for some sort of a Bill of Rights in both the United Kingdom and Australia will remain strong and may well prevail. If it does, however, I make this appeal. The Bill of Rights must work in conjunction with such a pre-legislative scrutiny scheme. Also, the Bill of Rights itself must be designed so as to reflect the continuing importance of an active `political' role in the protection and furtherance of human rights, to complement the judicial role.
This means, for example, that a Bill of Rights has to include a `notwithstanding' or `non-obstante' clause allowing the legislature the opportunity to enact legislation (possibly by way of a special majority) that overrides the Bill of Rights in specific circumstances, though it has it do so in express terms.[46] In terms of the protection of human rights this is by no means a retrograde step. Rights are not hermetically sealed. They overlap and sometimes contradict each other. It may be necessary, therefore, to state in advance which of two competing rights is to be given precedence. For example, it may be thought necessary to declare expressly in racial or gender discrimination legislation that the protection the legislation offers is to operate notwithstanding the claimed right freely to communicate racially or gender specific vilification.[47] The determination of what is best in the public interest in such situations is surely suited more to the world of politics and to elected representatives in Parliament, than to the court room - indeed, is this not a quintessential example of what political debate is all about?
A variation on this theme of pre-legislative scrutiny has also recently been suggested in the United Kingdom - namely a kind of `ouster clause'. Where, after a special parliamentary scrutiny committee and the two houses of Parliament themselves have confirmed a bill to be in compliance with the Bill of Rights (or the ECHR) then the courts are powerless to strike the subsequent Act down.[48]
Conclusion
Whatever the precise mix of institutions and processes established to defend human rights, it must, at the very least, be a mix. It cannot be by way of an orthodox, judicially enforced Bill of Rights alone. By and large (it is always possible to find individual exceptions) judiciaries schooled in the common law tradition (even if one, as in Australia, tempered by the existence of a `written' constitution) are ill-trained to take on alone the task of interpreting and applying broadly drafted human rights. If left to the judiciary alone, the finer details of depth and breadth of human rights provisions will be articulated in piece-meal fashion. The structural limitations within which the judiciary operates cannot be underestimated in this regard - only when cases come before the courts are judges able to fill in the details of rights, and even then only in respect of the specific circumstances of the case before them. The consequences of such limitations for the provision of constant and comprehensive protection of human rights standards can be only accentuated in the event of a judicially enforced Bill of Rights.
To provide effective protection of human rights in the United Kingdom or Australia, a Bill of Rights may or may not ultimately prove to be necessary. But in the event that it is, make no mistake that you rely on it alone at your peril. We in Australia, unlike the United Kingdom, are freer to determine the nature and the specifics of how to safeguard our human rights - we must do so with care and with at least one eye turned to the experiences of others. You may not agree with claim made recently in the United Kingdom that "to address the present problems of civil liberties with a Bill of Rights ... would be like treating a heart attack with a band-aid".[49] But the fact that this is said at all (and in the conclusion to a comprehensive study of the issue) is worth some serious thinking about.
Human rights are, essentially, political in nature. They may often be expressed in legal terms but that cannot be allowed to mean that the courts become the sole custodians of rights. The arena of human rights protection is bigger than that.
[*] Senior Lecturer in Law, Australian National University; currently on secondment as a Legal Specialist to the Australian Law Reform Commission. The following is the text of a paper delivered by the author at the Australian Rights Congress, Sydney, 16-18 February 1995.
[1]_ For an excellent recent critique of the jurisprudential nature of human rights, see C Adjei, "Human Rights Theory and the Bill of Rights Debate" (1995) Modern Law Review 17.
[2] See A Lester, "European Human Rights and the British Constitution" in J Jowell & D Oliver (eds), The Changing Constitution (1994, 3rd edn), pp.33-6.
[3] The United Kingdom was a founding signatory state - indeed, it was the first to sign the Convention
[4] JL Austin is reputed to have referred to the term as "notoriously useless".
[5] See K Ewing & C Gearty, Freedom Under Thatcher (1990), p.275.
[6] See generally, J Waldron, "A Rights Based Critique of Constitutional Rights" (1993) 13 Oxford Journal of Legal Studies 18.
[7] See A Lester, "The Mouse that Roared: The Human Rights Bill 1995" [1995] PL 198, 201, at footnote 19. See also Wilson Finnie's annual assessments of the of the European Court of Justice's jurisprudence for 1992 and 1993 in (1993) The Juridical Review, 193 and (1994) The Juridical Review, 328, respectively. (In order to repair the chronic backlog of criminal cases in the Italian courts, the Court of Cassation performed the remarkable feat of deciding 44,811 appeals in one year (1992))
[8] For a detailed review of all of the United Kingdom cases referred to in the following paragraph, refer to P van Dijk and GJH van Hoof, The European Convention on Human Rights (2nd edn, 1990).
[9] It is relevant here to note the importance for Australia of the jurisprudence of the European Court of Human Rights, especially where it concerns United Kingdom cases, see J Merrills, The Development of International Law by the European Court of Human Rights (1988), pp.17-18 and T Jones "Legal Protection for Fundamental Rights and Freedoms: European Lessons for Australia?" [1994] Federal Law Review 57.
[10] Malone v United Kingdom ECHR Series A No.82 (1984). See also the set of four `prison rules' cases in which repeated violations of, inter alia, the privacy provision (Art 8 of the Convention) were found to have occurred as detailed in D Kinley European Convention on Human Rights: Compliance Without Incorporation (1993), pp 67-82.
[11] [1994] HCA 15; (1994) 68 ALJR 401
[12] Dudgeon v United Kingdom ECHR Series A, No.45 (1981)
[13] See comment by Anna Funder in (1994) Public Law Review 156.
[14] Sunday Times v United Kingdom ECHR Series A No.30 (1979) and Sunday Times v United Kingdom (No.2) ECHR Series A No.217 (1991), respectively.
The so-called broadcasting ban, formally imposed on certain designated terrorist organizations (it was lifted late in 1994), was challenged both in the United Kingdom courts (see ex parte Brind [1991] UKHL 4; [1991] AC 696) and in the European Commission on the ground that it violated Art 10 of the ECHR (freedom of expression).
[15] [1992] HCA 46; (1992) 177 CLR 1; (1992) 177 CLR 106 and (1994) ALJR 713.
[16] Brogan v United Kingdom ECHR Series A, No.145 (1988) and McVeigh v United Kingdom Report of the European Commission on Human Rights (18 March 1981). The legislation relating to the former case is still current as the United Kingdom Government entered a Notice of Derogation (under Art 15 of the Convention) immediately after the Court's ruling against it.
[18] A Lester, n.2 above, p.40.
[19] See A Lester, "Fundamental Rights: The United Kingdom Isolated" [1984] Public Law 46
[20] D Feldman, Civil Liberties and Human Rights in England and Wales (1993), pp 62-3; see also, pp.86-7.
[21] This is the true nature of the Bill of Rights 1688; it has little to do with the contents of modern Bills of Rights.
For a discussion of the extent to which the notion of parliamentary sovereignty may be said to apply in Australia, see, D Kinley, "Constitutional Brokerage in Australia: Constitutions and the Doctrines of Parliamentary Supremacy and the Rule of Law" [1994] FedLawRw 7; (1994) 22 Federal Law Review 194.
[22] That is, as a mere Treaty with no direct legal force, but which in practice is given especial credence by the judiciary.
[23] Rights to life, to liberty and to a fair trial, and freedom from discrimination on grounds of race.
[24] Despite what the European Court of Justice says in, for example, Costa v ENEL [1964] EUECJ C-6/64; [1964] ECR 585 (Case 6/64).
[25] See N MacCormick, "Beyond the Sovereign State" (1993) Modern Law Review 1.
[26] The centre parties: Liberals/Social Democrats, now Liberal Democrats, have long supported the institution of a Bill of Rights ; the Labour party, under the late John Smith, became a recent convert to the cause having apparently overcome the its natural antipathy both to individually oriented human rights guarantees and their enforcement by a reactionary judiciary; and the Conservative Party have never formally backed a Bill of Rights.
[27] On which see generally, Adjei, above, n.1, 20-26.
[28] AV Dicey, Law and the Constitution p.199.
[29] See A Le Sueur, "Should we Abolish the Writ of Habeas Corpus" (1992) Public Law 13.
[30] Of course, in some cases this has extended the ambit of the relevant rights and in others the right has been curtailed.
[31] N Baratz "The Treatment and Interpretation of the European Convention on Human Rights: Aspects of Incorporation" in Gardner (ed), European Convention (forthcoming), cited in C McCrudden & G Chambers, Individual Rights and the Law in Britain (1994) p.573 at n.93.
[32] Ibid, et seq.. In respect of the former see R v Secretary of State for Home Dept, ex parte Brind [1991] UKHL 4; [1991] AC 696, and in respect of the latter, see Derbyshire CC v Times Newspapers Ltd [1992] 3 All ER 65
[33] Ibid.
[34] See Lester, n.2 above, pp.39-40.
[35] See, for example, Nold v Commission [1974] EUECJ C-4/73; [1974] ECR 491 (Case 4/73) and Rutiliv French Minister of the Interior [1975] EUECJ R-36/75; [1975] ECR 1219 (Case 36/75).
All 15 members of the European Union are also signatories to the ECHR.
[36] Art.F, Treaty on European Union (1993).
[37] See A Clapham, "The European Convention on Human Rights in the British Courts: Problems Associated with the Incorporation of International Human Rights" in P Alston (ed), Protecting Human Rights Through Bills of Rights (forthcoming).
[38] Report of the Committee on Institutional Affairs on the Constitution of the European Union (A3-0031/94) (27 January 1994).
[39] The European Communities Act 1972, s.2(1), which provides that "[a]ll such rights, powers, liabilities, obligations and restrictions from time to time created or arising by or under the [EC] Treaties ... are without further enactment to be given legal effect".
[40] One must qualify the use of "relatively" here, as the areas in which the writ of EC law now runs are greatly expanded, especially after the TEU, going way beyond purely "economic" concerns to encompass matters of political, social and environmental welfare.
[41] See J Waldron, "A Rights Based Critique of Constitutional Rights" (1993) 13 Oxford Journal of Legal Studies 18.
[42] This figure does not include one case in which a "potential" violation was found. See further, D Kinley, n.10 above, Appendix 1, pp.182-3; and for the most recent cases see Lester and Finnie, n.7 above.
[43] See Kinley, n.10 above, p.85.
[44] Ibid, chapters 3 and 4. It might be argued that the position is improving - at least the Government is now more aware of its Convention obligations, event if this is brought home to it by an acute desire to avoid any more adverse publicity from further negative rulings for the Court in Strasbourg (see Finnie (1994), n.7 above, 329).
[45] For detailed suggestions of the institutional apparatus that might deliver such scrutiny and what effect it might have see Kinley, n.10 above, chapters 7 and 8 in respect of the United Kingdom, and in respect of Australia, see D Kinley "Parliamentary Scrutiny of Human Rights: A Duty Neglected?", in P Alston (ed), n.37 above.
[46] See, for example, s.33 of the Canadian Charter of Rights and Freedoms.
[47] See the recently enacted amendments to the Anti-Discrimination Act (NSW) 1977 (s.20D) providing for the offence of racial vilification. See also the Commonwealth's proposed Racial Hatred Bill (Cth) 1994. See further and more generally[1994] AUJlHRights 8; , (1994) 1 Australian Journal of Human Rights 140-369.
[48] Liberty, A People's Charter (1991), p.96.
[49] Ewing & Gearty, n.5 above, p.275. The authors continue that it is on "proposals to redress the balance of political power, rather than in such cosmetic changes as a Bill of Rights, that the protection of civil liberties in [the United Kingdom] ultimately depends", ibid.
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/journals/AUJlHRights/1995/6.html