HUMAN RIGHTS AND THE UNITED KINGDOM SUPREME COURT This page intentionally left blank Human Rights and the United Kingdom Supreme Court BRICE DICKSON 3 3 Great Clarendon Street, Oxford, OX2 6DP, United Kingdom Oxford University Press is a department of the University of Oxford. It furthers the University’s objective of excellence in research, scholarship, and education by publishing worldwide. Oxford is a registered trade mark of Oxford University Press in the UK and in certain other countries © B Dickson 2013 Th e moral rights of the authors have been asserted First Edition published in 2013 Impression: 1 All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, without the prior permission in writing of Oxford University Press, or as expressly permitted by law, by licence, or under terms agreed with the appropriate reprographics rights organization. Enquiries concerning reproduction outside the scope of the above should be sent to the Rights Department, Oxford University Press, at the address above You must not circulate this work in any other form and you must impose this same condition on any acquirer Crown copyright material is reproduced under Class Licence Number C01P0000148 with the permission of OPSI and the Queen’s Printer for Scotland British Library Cataloguing in Publication Data Data available ISBN 978–0–19–969745–8 Printed and bound in Great Britain by CPI Group (UK) Ltd, Croydon, CR0 4YY Links to third party websites are provided by Oxford in good faith and for information only. Oxford disclaims any responsibility for the materials contained in any third party website referenced in this work. 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 This page intentionally left blank 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