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Table of Contents

  1. Acknowledgments
  2. Chapter one: Defining the constitution
  3. Chapter two: Parliamentary sovereignty
  4. Chapter three: The rule of law and the separation of powers
  5. Chapter four: The royal prerogative
  6. Chapter five: The House of Commons
  7. Chapter six: The House of Lords
  8. Chapter seven: The electoral system
  9. Chapter eight: Parliamentary privilege
  10. Chapter nine: Constitutional conventions
  11. Chapter ten: Local government
  12. Chapter eleven: Parliamentary sovereignty within the European Union
  13. Chapter twelve: The governance of Scotland and Wales
  14. Chapter thirteen: Substantive grounds of judicial review 1: illegality, irrationality and proportionality
  15. Chapter fourteen: Procedural grounds of judicial review
  16. Chapter fifteen: Challenging governmental decisions: the process
  17. Chapter sixteen: Locus standi
  18. Chapter seventeen: Human rights I: Traditional perspectives
    1. Brutus v Cozens [1972] 2 All ER 1297
    2. Malone v Commissioner of Police of the Metropolis (No 2) [1979] 2 All ER 620
    3. R v Brown and other appeals [1993] 2 All ER 75
    4. R v Lemon; R v Gay News Ltd [1979] 1 All ER 898
    5. Attorney General v Times Newspapers Ltd [1973] 3 All ER 54
    6. Blackshaw v Lord and another [1983] 2 All ER 311
    7. Malone v Metropolitan Police Commissioner [1979] 2 All ER 620
    8. R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696
  19. Chapter eighteen: Human rights II: Emergent principles
  20. Chapter nineteen: Human rights III: New substantive grounds of review
  21. Chapter twenty: Human rights IV: The Human Rights Act 1998
  22. Chapter twenty-one: Human rights V: The impact of The Human Rights Act 1998
  23. Chapter twenty-two: Human rights VI: Governmental powers of arrest and detention
  24. Chapter twenty-three: Leaving the European Union

R v Home Secretary, ex parte Brind [1991] 1 All ER 720; [1991] 1 AC 696

LORD ACKNER:

(3) The minister failed to have proper regard to the European Convention for the Protection of Human Rights and Fundamental Freedoms and in particular art 10

Article 10 reads as follows:

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

The convention which is contained in an international treaty to which the United Kingdom is a party has not yet been incorporated into English domestic law. The appellants accept that it is a constitutional principle that if Parliament has legislated and the words of the statute are clear, the statute must be applied even if its application is in breach of international law. In Salomon v Customs and Excise Comrs [1966] 3 All ER 871 at 875, [1967] 2 QB 116 at 143 Diplock LJ stated:

"If the terms of the legislation are clear and unambiguous they must be given effect to whether or not they carry out Her Majesty's treaty obligations".

Much reliance was placed upon the observations of Lord Diplock in Garland v British Rail Engineering Ltd Case 12/81 [1982] 2 All ER 402 at 415, [1983] 2 AC 751 at 771 when he said:

"it is a principle of construction of United Kingdom statutes that the words of a statute passed after the treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it".

I did not take the view that Lord Diplock was intending to detract from or modify what he had said in Salomon's case.

It is well settled that the convention may be deployed for the purpose of the resolution of an ambiguity in English primary or subordinate legislation. R v Chief Immigration Officer, Heathrow Airport, ex p Salamat Bibi [1976] 3 All ER 843, [1976] 1 WLR 979 concerned a lady who arrived at London Airport from Pakistan with two small children saying that she was married to a man who was there and who met her. She was refused leave to enter and an application was made for an order of certiorari and also for mandamus on the ground that she ought to have been treated as the wife of the man who met her at the airport. During the course of argument a question arose about the impact of the convention and in particular art 8 concerning the right to private and family life and the absence of interference by a public authority with that right.

In his judgment Lord Denning MR said ( [1976] 3 All ER 843 at 847, [1976] 1 WLR 979 at 984):

"The position, as I understand it, is that if there is any ambiguity in our statutes or uncertainty in our law, then these courts can look to the convention as an aid to clear up the ambiguity and uncertainty. But I would dispute altogether that the convention is part of our law. Treaties and declarations do not become part of our law until they are made law by Parliament".

In his judgment Geoffrey Lane LJ said ( [1976] 3 All ER 843 at 850, [1976] 1 WLR 979 at 988):

"It is perfectly true that the convention was ratified by this country. Nevertheless the convention, not having been enacted by Parliament as an Act, does not have the effect of law in this country whatever persuasive force it may have in resolving ambiguities it certainly cannot have the effect of overriding the plain provisions of the 1971 Act and the rules made thereunder".

This decision was followed in Fernandez v Secretary of State for the Home Dept [1981] Imm AR 1, another case where art 8 of the convention was relied upon and where the Court of Appeal held that the Secretary of State in exercising his statutory powers was not obliged to take into account the provisions of the convention, it not being part of the law of this country. The convention is a treaty and may be resorted to in order to help resolve some uncertainty or ambiguity in municipal law. These decisions were most recently followed by the Court of Appeal in Chundawadra v Immigration Appeal Tribunal [1998] Imm AR 161.

Mr Lester contends that s 29(3) is ambiguous or uncertain. He submits that although it contains within its wording no fetter upon the extent of the discretion it gives to the Secretary of State, it is accepted that that discretion is not absolute. There is however no ambiguity in s 29(3). It is not open to two or more different constructions. The limit placed upon the discretion is simply that the power is to be used only for the purposes for which it was granted by the legislation (the so-called Padfield doctrine) and that it must be exercised reasonably in the Wednesbury sense. No question of the construction of the words of s 29(3) arises, as would be the case if it was alleged to be ambiguous, or its meaning uncertain.

There is yet a further answer to Mr Lester's contention. He claims that the Secretary of State before issuing his directives should have considered not only the convention (it is accepted that he in fact did so) but that he should have properly construed it and correctly taken it into consideration. It was therefore a relevant, indeed a vital, factor to which he was obliged to have proper regard pursuant to the Wednesbury doctrine, with the result that his failure to do so rendered his decision unlawful. The fallacy of this submission is however plain. If the Secretary of State was obliged to have proper regard to the convention, ie to conform with art 10, this inevitably would result in incorporating the convention into English domestic law by the back door. It would oblige the courts to police the operation of the convention and to ask itself in each case, where there was a challenge, whether the restrictions were 'necessary in a democratic society', applying the principles enunciated in the decisions of the European Court of Human Rights. The treaty, not having been incorporated in English law, cannot be a source of rights and obligations and the question(did the Secretary of State act in breach of art 10?(does not therefore arise.

As was recently stated by Lord Oliver in Maclaine Watson & Co Ltd v Dept of Trade and Industry [1989] 3 All ER 523 at 544(545, [1990] 2 AC 418 at 500 (the International Tin Council case):

"Treaties, as it is sometimes expressed, are not self-executing. Quite simply, a treaty is not part of English law unless and until it has been incorporated into the law by legislation. So far as individuals are concerned, it is res inter alios acta from which they cannot derive rights and by which they cannot be deprived of rights or subjected to obligations and it is outside the purview of the court not only because it is made in the conduct of foreign relations, which are a prerogative of the Crown, but also because, as a source of rights and obligations, it is irrelevant"