Human Rights - a British perspective
Britain's Human Rights Act comes into force this autumn. Its arrival is already highlighting the deeply ambivalent attitude that the UK, with is common law tradition, has to human rights. Here DAVID ROBERTSON explores these European ambiguities.
The British perspective on human rights, if there is such a thing, is best described as deeply ambivalent - ambivalent, but also, with the passing of the Human Rights Act 1998 (HRA) which formally comes into force this autumn, hopefully on the brink of transformation. On the one hand the British judiciary are fond of allusions to the way an Englishman's rights have been protected, since time immemorial, by the common law. Until very recently it was common to find the Law Lords taking great pride in resolving a case where a lower court had made reference to the European Convention on Human Rights (ECHR) entirely on common law principles and, rather smugly, pointing out that their ruling showed the superiority of that common law to such a rigid (and foreign) document. This attitude is characterised by a self serving version of English legal history of the sort pronounced by Lord Denning, as quoted by a current Law Lord in a modern human rights case:
This is a land in the words of the poet. `Where a man may speak the things he will. A land of settled government. A land of just and old renown where freedom broadens slowly down from precedent to precedent'. But it is a also a legal system capable of producing decisions like that in Liversidge v Anderson where the majority decision was described in one of the few famous dissents of English legal history as `more executive minded than the executive'.
Lord Atkin went on to say:
In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I. I protest, even if I do it alone, against a strained construction put on words with the effect of giving an uncontrolled power of imprisonment to the minister.
In that case the majority gave a definition of the English constitutional position on rights which is still correct today: Parliament is supreme. It can enact extraordinary powers of interfering with personal liberty. If an Act of Parliament is alleged to curtail the liberty of the subject or vest in the executive extraordinary powers of detaining the subject the only question is what is the precise extent of the powers given. . .. In the constitution of this country there are no guaranteed or absolute rights. The safeguard of British liberty is in the good sense of the people and in the system of representative and responsible government which has evolved.
It is important to remember that the passing of the Human Rights Act does not change this position in any way. If the same situation occurred tomorrow the most the Law Lords could do is to issue a declaration that the relevant legislation was not compatible with the rights contained in the HRA, and this declaration would empower, but would not require, the Home Secretary to use a special parliamentary procedure to amend the legislation. In the meantime the regulations would remain fully in force, and Mr Liversidge would remain in detention. This very basic point about the role of Parliamentary sovereignty cannot be too strongly made in any discussion of the UK's perspective on human rights. Indeed the point, obvious though it is, needs especial emphasis nowadays because there has of recent been somewhat of a fashion for doubting it. Although there have been, over the last few years, several occasions when senior judges have raised questions about the doctrine of absolute parliamentary sovereignty in print and in public lectures, it is noteworthy that some of the fiercest attacks on these doubts came from the man who is now Lord Chancellor. The Hobbesian nature of the UK constitution is still very firmly established.
A very good example comes from the very incorporation of the convention in the Human Rights Act. Absolutely no one doubted that fully fledged judicial review, in its American rather than English sense, was not going to be provided, but few perhaps realised how strongly the doctrine that one parliament cannot bind its successor would be taken. The Human Rights Act does not incorporate the whole of the convention; inter alia, it specifically does not incorporate Article 6 of the First protocol, which outlaws the death penalty. Britain was one of the first European nations to abandon its own use of the death penalty. There is a very strong majority of members of parliament against the death penalty, and an even stronger majority in the governing party. Yet under considerable pressure during the Commons debate on the HRA the government flatly refused to amend the bill to include article 6, precisely because this would hamper some future parliament from re-introducing capital punishment. The argument was very odd - most people think that the reason a country enshrines human rights in a constitutional document is, precisely, to prevent future governments trampling on them.
As long as parliamentary sovereignty remains so strongly entrenched in Britain's constitutional consciousness there is no full sense, of course, in which human rights can be secured. Part of the reason parliamentary sovereignty continues to be politically so important, (even amongst those prepared to yield some degree of national sovereignty), is the slightly odd historic alignment of attitudes to judicial control in Britain. In the UK it has been a feature both of the right of the Conservative Party and the left of the Labour party to oppose a judicially enforceable Bill of rights.
The right has opposed this because they have little philosophical attraction to the idea of rights — the mentor of British conservatism remains Edmund Burke, whose views on Tom Paine's Rights of Man are well known. But the left has always feared the consequences of judicial involvement in politics, seeing the judiciary as irremediably conservative, and expecting courts to be much more likely to restrict socialism through attachment to rights of property than to champion liberal values. The courts have always been seen as an enemy by the British left, who will point, for example, and with some justice, to judicial interpretation of labour relations legislation, as showing their true nature. Quite apposite to our topic here, Lord Wedderburn, a leading labour lawyer and member of the Labour Party is on record as regarding the incorporation of Article 11 of the convention as `dangerous in the hands of a British judiciary willing to give as great a latitude to the state as the Strasbourg court, if not more'.
It may be that expectations of majoritarianism in British politics are waning nowadays, along with assumptions about the naturalness of a two party system, but for the foreseeable future there will be strong political reasons to doubt the possibility of diminishing Parliamentary sovereignty. One important test of this aspect will be whether, in the next decade or so, there develops a constitutional convention that a Declaration of Incompatibility between the HRA and other legislation always does, in fact, trigger amending legislation. If it does a (very British) form of entrenchment of a Bill of Rights will have emerged de facto. We must hope so, because it will never emerge de jure.
Our initial comments on the Common Law as `rights protecting' were based on the admittedly extreme war time problems of detention of suspected alien sympathisers, and it is worth saying that the result in Wheeler, where the Denning quote was used, which was a freedom of speech case, is probably the one which the court in Strasbourg would have given. Even more recent examples of freedom of speech rights derived from the common law where the Law Lords have deliberately ignored the Convention can be given; one of them Derbyshire County Council v Times Newspapers Ltd involves a very explicit spelling out of the link between democracy and freedom of speech as powerful as any in the jurisprudence of any constitutional court, the us Supreme Court not excepted. In fact it is characteristic of much human rights litigation in Britain that it is often the rhetoric of rights, rather than the substance, which is missing. I return to this point, because a missing rhetoric is not a trivial matter.
Of course it is true that the UK has a bad record for losing cases in Strasbourg. Just this year in A v UK where corporal punishment even by parents was deemed to be in breach of the convention, the state having a duty to ensure such protection where an English jury had found a stepfather not guilty of exceeding `legitimate chastisement'. This is typical of a situations where not only the protection of a right, but the very recognition that there was a right in question was not available under UK law. Nothing like the result in McCann where the security forces were held to have used excessive force in killing three IRA activists on the streets of Gibraltar could possibly have emerged from the UK's own legal system. And in direct contrast to the Law Lords in Liversidge there are the string of cases which forced the UK government to enter a derogation to Article 5 so as to detain suspected terrorists without charging them longer than the convention will allow, which, given that the relevant authority was statute based, simply could not be challenged in UK courts. (Nor will similar situations for the foreseeable future, as the derogation is itself built into the Human Rights Act.)
However using The European Court of Human Rights as a yardstick is not particularly safe. It is less often admitted by those who have campaigned for so long to incorporate the convention into English law that there are plenty of civil rights cases which do go to Strasbourg after failure in the English courts only to receive the same answer. One problem in assessing the human rights capacity of the UK's legal system is that the holy grail of incorporating the convention has exercised so strong an influence on its believers that they have often been massively over optimistic about the likely consequences. It is by no means difficult to find cases where the cry `If only we could cite the European Convention ...' has turned out to be hollow. A very good example is the case in which the Civil Service unions challenged a Thatcher government ban on union membership at the Government Communications Head Quarters (The Signals Intelligence service). Counsel for the unions specifically sought to get the Law Lords to apply the convention, and they refused so to do, finding for the government. To the horror of civil rights and union activists the Commission, when faced with the unions' case threw it out as manifestly lacking any proper basis. This question of how much better off British citizens would be were European standards in Human Rights to apply, and how much better of they will be now one version of such a standard will apply is crucial, and I return to it in due course.
The Problem with the Common Law If we can separate for a moment two arenas of rights law in the UK, the common law and the law as regards statutes we can get somewhere nearer to understanding British ambivalence on matters of human rights. The common law, so proudly boasted of as rights protecting may at times be capable of living up to its adherents claims, though its successes are chancy and dependant on judicial ideology. More worrying is that though the system may depends on common law for rights protection, all the imperatives of legal development point to the ever shrinking domain of common law and its replacement with statute and codification. Recent common law rights-events have been highly ambiguous in themselves. Two examples suffice, especially as they also demonstrate the potential of Strasbourg jurisprudence as a measure of human rights. One might have thought that the ban on retrospective criminal legislation in the convention would have precluded the conviction of a man for raping his wife given that it had been a widely publicised understanding that, terrible though it might be, there was a lacuna in the law of rape specifically not penalising such an act.
Yet when the Law Lords re-wrote English criminal law on this matter the subsequent application to the Court of Human Rights failed, the argument there being that what looked like retrospective criminalisation was just a foreseeable development of common law. But there at least the English common law had done something which looked like upholding, or creating, a human right. But in the same year the Law Lords held a group of men guilty of assault for engaging in consensual homosexual sado-masochism, the police being unable, for technical reasons, to prosecute them under the Sexual Offences Act. Strasbourg upheld this much criticised assault on Article 8 (and possibly Article 7) under the necessity for protection of public health doctrine. Which decision is characteristic of the common law as protector of human rights?
The real problem with the idea of the common law as protecting `rights' is that it is untrue to the usually recognised historical logic of the common law, which has never been based on the idea of rights at all. The history of the English common law has been the history of remedies, of solutions crafted for problems faced by the powerful. One practising Barrister with an interest in the application of the HRA to commercial litigation has put it well, talking of an ongoing problem of retrospective legislation in the area of taxation:
The Treasury minister rides out on his fine white horse. He meets a judge riding the other way. These two great personages doff their hats to one another. Out of regard for the dignity of the moment, the Minister refrains from trampling down the miserable taxpayer peasant who clings to the judge's stirrup, momentarily under his protection. I do recognise that, as a matter of fact, this is exactly how all our common law freedoms did grow up, in the interstices between the accommodations of great men, like weeds between paving stones.
The common law has no generative mechanism for grounding rights. Although it is often said in a congratulatory way, the English doctrine is not that men and women have specified rights, but that anything is legal if it is not illegal. This approach has several failings. By itself it is of minimal use against the state, becoming only a strong interpretative rule on ultra vires questions. For example, there is no right of assembly in English law. There is the residual right to go anywhere in whatever company not forbidden by the Public Order Acts. As it happens, these acts are not very restrictive of assembly and protest, and the situation of political protesters is probably worse than in a country which has institutionalised a right of assembly. But as nothing could stop a more draconian intrusion into this residual freedom to do what is not forbidden.
The doctrine is also obviously weak in protecting citizens against the actions of other private actors except as far as the criminal law can be extended. This public/private distinction in the protection of human rights has been deeply entrenched into the HRA, and is likely to cause many problems. The common law can even deprive people of rights they might otherwise have. For example the right to take an employment dispute to the courts has been denied to, inter alia, university teachers on the grounds that they are employees of traditional charitable foundations whose founders historically were entitled to set up their own internal law as islands floating within the common law. The usual public law remedies of judicial review cannot apply within such special institutions. One need only read the twentieth century history of the ebb and flow in the extent of the law of liability for negligence to see the unwillingness of the judiciary to replace the purity of contact relations with general obligations to be unsurprised that such a legal system would be weak on rights.
But if there are no rights lying prior to the common law, there is, as I say, no theoretical generating mechanism for the recognition of rights inside it. This follows from the way the common law is, to a very large extent, not individualistic in orientation, so that rights, when they are constructed or developed, are largely the product of a systematic concern, not a concern to grant to individuals positions of protection from forces. Thus for example the logic in Times Newspapers v Derbyshire, the press freedom case mentioned earlier, has nothing to do with freedom of expression, as it is characterised in the Convention; the case forbids elected bodies to benefit from defamation law on the grounds that it is functionally necessary in a democracy to protect the freedom of the press. As such it is much more like the American orientation to freedom of the press as in the Sullivan case restricting the use of defamation by those who have put themselves into the public arena.
There is nothing wrong with this, either as a decision or as a judicial logic, but it has little to do with human rights in a fundamental sense. Consequently where a press freedom is manifestly `unnecessary', the merest hint of a state need to suppress it will win in the courts. A classic case was Brind where television journalists challenged a government rule forbidding the broadcast of the actual voices of IRA spokesmen - news reports were to use actors to `voice over' what the spokesman had said. The case is important largely because it was widely believed that a proper application of the European Convention would have enforced a different decision. Indeed the defeat of the journalists in Brind was a major cause of the earlier campaign to incorporate the Convention by a private member's bill in the Lords, the design of which became the HRA.
In fact common law cases which seem to protect human rights, and there are many of them, more than Britain's liberals might think, most often have this character — an individual is protected, as it were, incidentally to protecting a systemic value. I have no space for many examples, but one little known case may suffice in which the English courts showed themselves more rights conscious than, for example, us courts, but, I would argue, for the `wrong' reasons. This was Ex Parte Bennett, where a man wanted on fraud charges in the UK had fled to South Africa from where he could not be extradited. The Metropolitan Police colluded with South African police who agreed to deport him to New Zealand where he was also wanted, via Heathrow airport, not a very natural route, where he was arrested and brought under the jurisdiction of the English courts. The Lords upheld a Habeas corpus petition and freed him. Their arguments were entirely to do with preserving comity amongst legal systems and in protecting the reputation of English justice — it was the illegality of the police that concerned their Lordships, not Mr Bennett's rights of freedom of movement.
It should not be thought that I am arguing here that the common law is inherently conservative or that it is insensitive to people's needs. The idea of the law as protector of the weak can still operate very strongly, within a logic of system maintenance. But is human rights really about this type of patrimonial `protection'? Lord Browne-Wilkinson, now the senior Law lord and a man who will have much to do with the shaping of the impact of the HRA in many way can be seen as a fine example sensitive common law judging. He held against the public law rights of Mr Page in the university teachers case, and has developed a jurisprudence on welfare rights we will come to shortly. But he is also the author of a far-reaching decision protecting married women from losing their homes to banks through foreclosure when the husband has mortgaged it and defaulted. After his ruling in O'Brien v Barclays Bank banks are under very strong duties to ensure a wife really understands the risks if she co-signs a mortgage on the matrimonial home. It is doubtful that parliament would ever have legislated so strong a protection; indeed it is doubtful they would ever have noticed a problem.
Yet the language of the case has nothing to do with rights, and it is suffused with an awareness of the need to craft an answer which will not damage the needs of the economy for investment funds in an era where so much potential investment is tied up in domestic property. It is, in fact, a classic operation of what the common law does instead of recognising rights - it maximises the justice of a contract system. The real problem of the English common law for human rights is that the intellectual premises suffuse all judicial thinking, so that in the arena where rights might more plausibly enter judicial thinking they have little chance. That is, the public law is operated, under the doctrine of parliamentary supremacy, by those who do not naturally think of individual rights at all.
British citizens of course have many rights - all countries are flooded with rights if by this we mean, simply, legally enforceable entitlements. Indeed there used to be a caricature in English fiction of the truculent working class troublemaker whose cry was `You can't push me around like that - I know me rights!' But the rights in question would be the ad hoc creations of statute. In some areas it must be insisted that fundamental rights in the UK are very well protected by statutes which are enthusiastically enforced by the judiciary. Indeed in two areas at least, freedom from discrimination on grounds of sex or race, there is better protection than that provided by the ECHR, given that Article 14 is parasitic on the earlier articles which do not themselves provide for a fight to employment, perhaps the major single area of discrimination. As both acts prohibit indirect discrimination, as well as direct, and both operate objective tests rather than intentionality tests, which points are missing from Strasbourg jurisprudence, there is no problem in these areas for UK citizens as long as the statutes remain in force.
One at least, the Sex Discrimination Act, is effectively entrenched by European Union legislation and decisions of the ECJ. The Race Relations Act is probably an example of something one has to come to terms with dealing with a country without a formally written constitution. In such a country much depends on the working of shadowy `Constitutional Conventions', rules that are understood by all political actors as `the rules of the game' though being completely non justiciable. I would argue that it would amount to a breach of a constitutional convention seriously to weaken the scope of the Race Relations Act nowadays. Though it should be said that the Race Relations Act is actually the second passed by Parliament. The first act was so emasculated by unsympathetic judicial interpretation that the government found it necessary to replace it with a more robust act. It has been suggested that the judiciary found this a very cautionary experience, and were therefore all the more determined to interpret the subsequent gender protections in the Sex Discrimination Act in expansionist and liberal ways.
This is where the problem lies when considering human rights in the UK. So much, too much, depends on judicial interpretation. Of course the scope of fights in any system is dependent on judicial creativity and liberalism. In the end what is to count as a breach of a right to marry and found a family will depend on whether judges regard same-sex relations as equivalent to heterosexual pairings, and at bottom this can only be a moral judgement. But there is a crucial difference between demarcating the boundaries of a right when no one doubts that the core of the right has a fundamental existence in a legal system, and interpreting entitlements and protections granted, optionally, by a legislature. This is in part what I meant earlier by saying that, even if it was often the rhetoric rather than the substance of rights that was missing in England, rhetoric matters. Where rights are not fundamental parts of the legal system, any clash between convenience and entitlement is at risk to being resolved in favour of convenience. And where there is a doctrine of parliamentary sovereignty, this tendency becomes a matter of interpretative principle such that any act which, inter alia, grants individuals entitlements will be interpreted so as to maximise the efficiency of the act overall, `to make the act work', as one often hears in English judicial argument, to further the goal attainment of any institution set up by the act.
The entitlements the act may give to individuals become something more like desirable goals to be achieved if possible, rather than undeniable rights. Where, furthermore, as in the UK there is a complete fusion of the executive and legislative along with a doctrine of parliamentary sovereignty, the executive comes to be the beneficiary of this balance in favour of statute-efficiency. The judiciary assume the executive to be well intentioned and to be trying hard to achieve the social purposes of the act in question. The judges defer continually to the better judgement of the executive, conscious always of the problems, especially financial problems, that the executive faces in a complex world. I am talking about an approach to the area of discretion, or to what the European Court of Human Rights has called a `margin of appreciation'.
The European Convention is written in such a way as to take account of the problems created by the rights in recognises. So, for example, Article 11, after providing for the rights of freedom of association and peaceful assembly, does include a limiting term. `No restrictions shall be placed on the exercise of these rights other than such as... are necessary in a democratic society in the interests of national security...'. What I am trying to describe is an approach which would re-write Article 11 so that it read as follows: `Freedom of assembly and association are desirable things and the authorities must try to grant them as much as possible taking into account all the other desirable things and consequent problems they face.' I shall shortly give some examples of this orientation at work. Furthermore, given that any formulation that is not absolute grants some discretion to the authorities, the UK courts will be very unwilling indeed to form any judgement on the exercise of the discretion. Far from an American style `strict scrutiny', much of the work of English courts barely reaches the level of requiring a `rational connection' test of executive action.
This latter point is well known, and has indeed been the subject of consideration by the European Court of Human Rights several times, with rather mixed results. The problem is the doctrine of judicial review in UK law, which applies the well known Wednesbury Rationality test to questions of executive discretion. A huge amount has been written on this doctrine, much of it in judicial opinions, and this is no place to go into it in detail. Essentially the test is that a minister or other public authority to whom executive discretion is granted by a statute, and who is not acting ultra vires can only be checked by a court if his decision is so odd as be one that no rational decision maker could make. Above all it requires that the court not make a substantive decision itself, however strongly it feels the minister's judgement is wrong, morally or otherwise.
The problem the ECHR has faced is whether Article 13's requirements that there shall be an effective remedy before a national authority is satisfied by recourse to UK courts operating by the Wednesbury principle. On at least one occasion, dealing with prisoners' rights, the Court has found that an appeal to an English court, which could only check that the Home Secretary's decisions were in keeping with Wednesbury standards did not constitute an adequate protection under Article 13. In another case the rights of asylum seekers came into question because of the role of the Home Secretary and the limited review possible by courts which would apply Wednesbury.
The UK government cited several cases where the courts had been able to protect asylum seekers using the idea of a decision so extreme that a rational Home Secretary could not come to it. These were found by the Strasbourg Court to show that the UK system was adequate under Article 13. But the cases, especially the only one to go to the Law Lords, Bugdaycay, were very hard fought and tremendously dependant on the extreme fact situations. Indeed Bugdaycay was one of four similar appeals heard together, and it is very hard to find any legal difference between the one where the Lords did overturn the Home Secretary and the three where they did not, except for the especially outrageous facts of the one success. All I can do is to respectfully dissent from their judgement. And, to make my point, I shall briefly describe a more recent case, which at least equally well demonstrates the extent and nature of rights protection under the current UK understanding of public law controls.
In ex parte Abdi a refugee from Somalia had arrived in the UK from a third country and asked for asylum. The Home Office wanted to extradite him. They could not send him back to Somalia because there was no doubt that he would indeed be in serious danger of persecution there. But he could be extradited to the third country, Spain, on the grounds that he had not availed himself of the chance to ask for asylum there, and Spain could be expected to live up to its international law obligations not to deport him back to Somalia. His case was judged by the Home Office to qualify for the status of a `Without Foundation' claim, and subject to a special fast track process under the Asylum and Immigrations Appeals Act 1993. The Special Adjudicators under the act who hear such fast track appeals were expected to accept the Home Secretary's bald statement that:
The Secretary of State on the basis of his knowledge of the immigration policies and practices of Spain, and on previous experiences of returning passengers to Spain, has no reason to believe that, in the circumstances of your particular case, the authorities there would not comply with their obligations under the Convention.
Abdi appealed to the High Court on the grounds that the Home Secretary must be under some obligation of disclosure to provide the Special Adjudicators with the evidence on which he based his decision, because otherwise they were quite unable to form a judgement on the admissibility of his deportation - they had no information of their own. This was upheld by the High Court, which quashed the Home Secretary's order. But the High Court was overruled by the Court of Appeal, with one powerful dissent, and the Court of Appeal was upheld by the Law Lords, again with a very powerful dissent.
The argument throughout was one of convenience - the essence of the 1993 Act was speed, because unless an asylum seeker was very rapidly sent back to the third party country, that country itself might refuse to take him, forcing the English to grant the asylum claim. The majority of the House refused to interpret the act, as they perfectly well could have, as requiring at least some disclosure by the Home Secretary - for them no rules of natural justice required more than the bald assertion by the Home Secretary that he knew what he was talking about. (What actually triggered the cases was that the High Court Judge happened privately to have read an Amnesty International report suggesting Spain was far from following its international law obligations in such cases.) For the Lords the expediency of the act was enough. I leave it open to this audience to decide just how many Articles of the European Convention were probably broken in Mr Abdi's case.
One can never say whether specific cases are typical or not of a legal system but I suggest that Abdi is at least as typical of the English approach to the protection of Human Rights as any cases tending the same way. The point is very simple — all Mr Abdi could rely on was a grudging statutory entitlement, and not a right. There was plenty of common law material that could have been used, indeed was used, in the dissenting judgements, including a powerful dictum from Lord Bridge in Bugdaycay itself. Mr Abdi was just unlucky. But it is a form of bad luck much more likely where rights are seen as existing, if at all, in the context of executive discretion. I need to give some further examples to help demonstrate what I mean by saying that, because the rhetoric of rights is missing, the very thought processes of the judiciary tend towards administrative convenience, or systemic values. I cannot simply amass case after case to `prove' my point — the following two examples, drawn from different areas of public law are meant only as clarifying examples.
One of the points I have sought to make is that statutes are seen as institution creating rather than rights protecting. One set of statutes which has caused endless appeals to the court system are the various Housing Acts by which successive UK governments have tried to deal with the social problem of homelessness. These acts impose duties on Local Authorities to provide housing for those who are `unintentionally' homeless. As can be imagined Local Authorities short of funds make every possible effort to find that those who apply to them are homeless through their own fault.
The courts nearly always find for the Local Authorities. One case that demonstrates how far the authorities are allowed to go is that of Ferdous Begum, a 24-year-old deaf and dumb Bangladeshi women who came to the UK with her family. She was only able to communicate with members of her own family through a private sign language they had developed together. The family could not find housing, and asked Tower Hamlets London borough Council for housing. The father was found to be intentionally homeless because he had left Bangladesh where he and his family did have somewhere to live.
So Ferdous Begum applied in her own right for housing. The act itself requires housing to be provided for an applicant and those who could naturally be expected to live with the applicant, which in this case would mean her family - the whole point of the act is to prevent families being broken up. The Local Authority refused to handle the case on its merits. They argued instead that Ferdous Begun, who inevitably had to make the application through her father, being otherwise unable to communicate, simply did not constitute an applicant at all because of this, and they were not obliged to even receive an application, let alone grant it. She won, not only in the High Court, but in an unanimous Court of Appeal. The Law Lords however allowed the local authority's appeal under the Wednesbury doctrine that for them to find otherwise involved holding that the authority's decision was irrational. But, according to the Lords, it was not `Wednesbury irrational', not a decision a rational local authority simply could not come to. As ever, there were heartfelt acknowledgements both of the sadness of Ferdous Begurn's situation, but also of the great difficulties faced by hard pressed housing authorities.
My point in citing the case is that the essence of the judgement was (1) that the act must be interpreted to give the authorities maximum leeway to handle their difficult problem, but also (2) that it was all right to do so because other legislation existed to ensure that Ferdous Begum herself was not left without shelter. But that other legislation, which would provide some form of special needs housing for her as a seriously disabled person would not provide a home for her and her family. In other words a utilitarian decision was made as opposed to recognising that the acts were effectively about providing the infrastructure for something like the Article 8 right to respect for private and family life. Without doubt something like an Article 13 right was also denied, because allowing the local authority not even to adjudicate, but instead to deem no application to have been made at all is a long way from providing a remedy. And if an article 8 right was denied, so was the article 14 right not to be discriminated against. Of course the UK does not have a duty to provide homes - no one could read that into the Convention. But the UK parliament had actually set out to do something like that. Yet the application of the housing scheme simply cannot be seen as providing a statutory right - it does no more than suggest to local authorities what they should be doing.
This approach to statutory obligations runs through most judicial interpretation of the `institution creating' statutes on which the British citizen has to rely. My final example comes from a group of appeals against local authorities as social welfare and education agencies. Known as X and others the case involved (1) a situation where a child was wrongly taken into care by a local authority (2) a situation where a child should have been taken into care and was wrongly not so treated (3) two cases where children with special educational needs where placed instead in ordinary schools not adequate for their needs and (4) a case where a child who could have been educated in an ordinary school was allowed only a place in a special needs school. In other words X and others is a sample of the daily inefficiencies of local authorities as agents for entitlement granting social programmes. In all five cases the parents tried to sue for damages in negligence because of failures property to carry out statutory duties. In a single opinion, by Lord Browne-Wilkinson, it was held that such cases could not be allowed to succeed because for courts to entertain them would involve the courts making substantive decisions in areas where statutes granted discretion to executive agencies.
As none of the decisions were Wednesbury unreasonable, such involvement was unacceptable. But several other grounds were addressed, the most important being that, as a matter of public policy, such agencies must not be subject to the inconvenience and strain of having to worry about possible negligence actions which might distract them from fully utilising their executive discretion according to their own best judgement. What really stands out however is Lord Browne-Wilkinson's vision of the nature of such statutes. He makes clear the way he simply does not think in terms of individual rights in his judicial activities in at least two places in his judgement:
Although regulatory or welfare legislation affecting a particular area of activity does in fact provide protection to those individuals particularly affected by that activity, the legislation is not to be treated as being passed for the benefit of those individuals but for the benefits of society in general.
And, in his summing up:
... the courts should hesitate long before imposing a common law duty of care in the exercise of discretionary powers or duties conferred by Parliament for social welfare purposes. The aim of ... [the act] was to provide, for the benefit of society as a whole, an administrative machinery to help one disadvantaged section of society.
These really are remarkable conceptions of the nature of statutory entitlements. An extremely powerful critique of this decision by Jane Davis notes that while the European Convention was never apparently cited in argument, both Articles 8 and 13 and Article 2 of the 1st Protocol were almost certainly breached. Article 13 was breached not only by the very fact that the authorities were held to be immune, but by the existence of weak internal appeals tribunals for the Education system which were unable to deliver justice.
Even if one wanted to argue that statutory rights are not human rights as generally conceived, the performance of UK courts in the sorts of cases discussed here is relevant as displaying the general attitudes of the judiciary. It is this overall attitude that characterises at least the public law activities of UK judges, and, I strongly believe, the common law activities, and it is this that I mean by suggesting that our legal system does not conceive of rights at all, however benevolent it may be. Much of this orientation will have to change if the Human Rights Act is to work, and we have been assured by the Lord Chancellor that it is precisely in order to create a rights-based jurisprudence that the act has been brought forth. I will leave only one question hanging to indicate my doubts about the future. If we are really to see a change in the UK's orientation to rights, why has the government refused to incorporate Article 13? Actually there is no mystery. The Lord Chancellor in the House of Lords and the Home Secretary in the Commons were clear when challenged on this matter. Article 13 is omitted because it might otherwise encourage judges to fashion new remedies unknown to the UK legal system. But this is where we came in, because the whole strength of the common law lies in its history as a set of remedies created to solve problems. So I'll stop on another question. Why has the government refused to set up a Human Rights Commission, equivalent to the Equal Opportunities Commission, and similar to the one in existence in Northern Ireland?"
