CRACKS IN THE CURATE’S EGG

Now is the time for a reasonable review of the impact of the Human Rights Act 1998 - this publication, with its recent supplement, does just that. The main work was published just before the Act came into full force so the supplement provides the meat on the constitutional bones of the legislation as set out in the main work. The Act appeared to come in like a lion and I just wonder whether it will go out like a lamb because the constitutional revolution predicted by its exponents has failed to materialise in any dramatic form so far.

This work charts the Act’s rolling success as the issues unfold. What has surprised me are the areas where importance has been attached to the specific Articles of the Convention which I would not necessarily have thought of particular significance. I found the October 2001 Addendum in the supplement of great assistance because we are now seeing the teeth of the Act in action: see for instance the Shayler and Farrakhan decisions.

The Doctrine of Proportionality

One of the most important areas in volume one cover the doctrine of proportionality under the Convention. This is to be found in chapter 6 covering general principles. It examines proportionality in great and highly useful detail. It also looks at the effect on English administrative law, EU law and the law in other jurisdictions. It led me to consider once again the concept of a global legal system for certain substantive law issues and the possible conclusion that human rights will become such a fore-runner in the later part of this century.

Therefore, the significance of proportionality will grow as human rights themselves become more uniformly recognised - even possibly in the United States of America if they finally end capital punishment which can be seen as an affront to the protection of any person’s human rights.

The Human Rights Act exaggerated?

Whilst a detailed understanding of the Act has effectively been made compulsory for those who prosecute (and the Bar Council courses have been excellent), there is a feeling around some robing rooms that the whole issue of human rights continues to be over-blown. Notwithstanding the political dimension (such as previous Tory opposition to implementation) and New Labour’s love-affair with the Act, it is clearly a needed piece of legislation - this book establishes the extent of its importance. It has been a pity that some commentators and opinion formers have misguidedly seen the Act as a ‘cash cow’ for certain solicitors and specific sets of chambers.

How the work is structured

The work itself is in two volumes. The first volume covers the background, the general principles, the convention rights, and remedies and procedures whilst the second volume contains invaluable appendices dealing with UK, UN and European materials and a useful section on domestic Bills of Rights. The select bibliography at the back of volume two is exceptionally well researched and clearly provides the substance of the issues covering every aspect of human rights as they are currently perceived. So far so good then!

Now we get on to the more difficult bit. The main work gives an integrated approach to human rights law for practitioners and legal advisers and offers a detailed analysis of the Act. The supplement goes further and advances recent main points on the constitutional protection of human rights.

However, the real aim throughout seems to involve the campaign for a Bill of Rights and a general debate on the subject. I do feel that we should learn to walk before we can run with this one. There is no general intention of criticism here, express or implied of this worthy work. It is more a criticism of the blatant political implications of what is trying to be achieved by New Labour - I am sure that many barristers and solicitors do not want to be labelled in quite such a way.

John Wadham described ‘Clayton and Tomlinson’ (as it will inevitably become named) as ‘one of the very few essential textbooks on the subject’. Of course, he is slightly wrong because there is so much on the market which is seen as ‘essential’. Oxford University Press, who acquired Blackstone Press and integrated the two businesses at the end of 2001, continue to remain a high quality, good value publisher of a wide range of human rights material which contributes to the overall debate. Clayton & Tomlinson, in my view, stands out as the definitive work at the dawn of the new human rights case law era itself at the beginning of 21st century.

Fair Trial Rights

By far the most important chapter in the two volumes is Chapter 11 on ‘Fair Trial Rights’. Indeed, it was the first chapter I read in detail, probably because this area covers such a wide range of uses for defence counsel. There is a useful paragraph (11.135) on the rule against double jeopardy which I hope will be able to be re-written shortly when the current law is reformed. Also, I found the comparisons with other jurisdiction of great assistance although I realise that much of what is contained in Chapter 11 on this will not really be of great help in our own domestic trials. However, it does point the way and Chapter 11 is (deservedly) a long, highly detailed chapter which the reader should treat as a main priority when identifying which bits of this work to read first.

The Question of Remedies

No serious legal work can be assessed without an exposition of the issue of remedies available to the parties. Chapter 21 details the position on damages, judicial review proceedings, and criminal proceedings. Little is said about remedies in private law proceedings and I would expect that section to be expanded as the CPR case-law emerges in detail. The section on ‘just satisfaction’ was also rather thin and I suspect that many practitioners would like an expanded paragraph (21.39) on ‘just satisfaction in practice’ if only in order to advise clients.

The need for fuller European integration

I started this review by suggesting that the Act was like a curate’s egg only cracked. Perhaps that was harsh but a reading of any recent decisions illustrates that the first year or so of the Act’s operation has thrown up relatively few controversial decisions. The very least that can be said so far is that the UK is finally on the way towards fuller integration with Europe on main legal issues. I would expect ‘Clayton & Tomlinson’ to expand as it caters for the obvious increase in case-law reporting but I do draw the line over the issue of a Bill of Rights itself. It would appear that if we go down this particular road, yet another referendum will need to be held because the issue surely is one for the British people and not merely Parliament. ( )