-and-

Equally a special thanks to my younger son Matthew whose patience was beyond compare, as he allowed me time to complete my works at a cost of our extended time together.

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  Introduction and Overview The purpose of this dissertation will be to examine critically how the judiciary have, so far, approached their enforcement role under Sections 3(1) and 4(2) of the Human Rights Act 19981 and what problems and prospects lie ahead; in particular following the extremists who have created a dilemma upon the United Kingdom2, and America, which brought in swift laws in an effort to address detention of terrorist.3 In supporting this dissertation, a broad approach will be taken. This broad approach will draw not only on the case law but the constitutional relationship between judiciary and Parliament in settling human rights disputes.

The relationship between how the judiciary decides cases and how they perceive their role within a constitution cannot be underestimated. It cannot be ignored by the legal practioner, either, and has become a perennial field of study in many jurisdictions, and the implications on practice are immense.

1 Hereafter the HRA` 2 The Government, in realising that detaining suspected international terrorists while undertaking the process of arranging deportation, would be incompatible with Article 5(1)(f) have prepared the ground by making a derogation order 3 The policy changes were not limited to the United States, as a large number of countries responded to the threat of terrorism. With terrorist actions around the world, including in Madrid, Bali, Russia, Morocco, and Saudi Arabia. Terrorism politics is truly global.

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  The judiciary, it will be argued, do not reason to their decisions in a proverbial vacuum. It shall be argued that they are highly influenced by the surrounding constitutional context concerning contentious issues of Parliamentary democracy, equality, separation of powers and so on.

The approach of this dissertation, therefore, is to engage in case analysis and to consider surrounding constitutional issues that come to have a bearing upon judicial adjudication4. It will be the purpose of this dissertation to ascertain out of the case law the substantive commitments members of the judiciary make in deciding cases. This will enable a duly considered analysis of the judiciary`s enforcement role under Sections 3(1) and 4(2) and what factors are important in determining how they exercise this power.

Importantly the dilemma of terrorism has had a broad impact upon the decision maker and the Government and proportionally` have not always been the victor when looking to protect those of who saw the HRA as the corner stone to democracy.

4 For instance terrorism laws came under scrutiny both be the UK courts and the European Court of Human Rights, where detention without charge was a violation of the Convention on Human Rights.

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In particular in light of the Global threat through terrorism, it will be necessary to examine in great detail5 how the Convention on Human Rights;6 embraced or otherwise rejected any compromise. In particular the use of Torture has been at the forefront of the investigation in the way that the judiciary has failed in most cases to remedy the obvious violations of the HRA. We shall look at the newly formed Special Independent Appeals Tribunal,7 who it will be ventilated fail to adhere to the Convention in the procedure/s adopted8 It shall be argued that the use of closed` evidence before the SIAT is in its self a violation of the Convention/s as well as the HRA.

It shall be argued that the workings of the SIAC, in failing to adhere to the common law principles, let alone the HRA has caused concern to those who hold the HRA dearly, which even outraged a Senior Politician as degradable9. The secrecy deployed by the SIAC does to not lend itself to the spirit of the HRA, yet such deficiencies, almost go unchecked by the

5 Critically analysed in Chapter 8. 6 Hereafter the Convention 7 Hereafter SIAC 8 For instance the use of closed evidence and the restriction placed upon the Special Advocate in being unable to take proper and full instructions. 9 Mr. Jack Straw MP

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  judiciary. For completeness consideration will be given to a number of case studies, at the speed in which determinations are made by the SIAT10

Conversely, this dissertation selectively draws upon the case law of both the European Court of Human Rights11 and domestic courts, domestically, both post and pre HRA cases will be considered and analyzed to ascertain how the judiciary understands their role, precipitated by the statute itself.

On the pan-European level, European Court12 cases will be analyzed, with particular emphasis on how they have come to characterise rights in question, and the bearing this can have on domestic courts. Of course, the varying judicial approaches need to be put in context, and this dissertation will aim throughout to make this connection clear.

Detailed reference is required to the reasons behind the HRA, its legislative history and how Parliament settled on its key provisions, and again it should be borne in mind that the threats

10 Chapter 9 11 Hereafter the ECtHR` 12Discussed in Chapter 4

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  that society are now faced, were not within the contemplation of the Convention, nor was the global stage for terrorism.

This understanding plays an important part in locating the HRA in a constitutional context embracing many different (and in some cases, diametrically opposed) ideals. Particularly, it will be argued that there is an internal constitutional tension that itself brings to bear on how the judiciary operate under Sections 3(1) and 4(2); which leads to highly divergent and opposed views on determining what human rights is, when they are engaged, when they are breached, and how they are enforced, the latter being of immense importance to those suffering such violations.

However, this dissertation will go further than merely connecting the influence of constitutional context on the case law, and will make some claims as to how the judiciary should be approaching their role under Sections 3(1) and 4(2). This normative aspect of the dissertation, which calls for a new approach embracing greater Parliamentary scrutiny of human rights, is deemed entirely necessary to set new practical guidance on the judiciary`s enforcement role.

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It is because of the surrounding constitutional context, coupled with the HRA, which has distorted judicial decision making out of a definitive shape. A new approach is essential to provide practical guidance on the vexed enforcement mechanisms under Sections 3(1) and 4(2).

In support of this broad approach, this dissertation will be divided into eleven chapters. Chapter 1, provides an overview, whilst chapter 2, visits the background and takes a historically survey the passage of the HRA and why it was considered necessary, what it sets out to achieve, whom it protects and whom it is enforceable against; given that the statute effectively incorporates the Human Rights and Fundamental Freedoms13, time will be spent analysing how the Convention operates, the obligations it places on member states, and how aggrieved parties can seek redress to the European Court.

Moreover, the judicial method of the European Court, as resonant in the case law, will be given some consideration. Particularly, it will be examined; how human rights are characterised ¬ whether they confer a negative or positive14

13 Hereafter the Convention` 14 Discussed in Chapter 1

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obligation or both, whether they are absolute or subject to qualification as necessary in a democratic society`, whether they afford a wide or margin of appreciation. Thereafter, it will be stressed that the success of any human rights regime depends crucially on the strength of its enforcement mechanisms. Further consideration shall be given whether the HRA is a political compromise15 existing to protect both Parliamentary sovereignty and respect for human rights. The problem of trading this middle group is epitomized both in Section 3(1) and the subsequent case law. Particularly, it will be argued that there is some difficulty resonant in the case law in restricting what is constructively possible` in Section 3(1).

How this uncertainty is open for manipulation will be considered by examining a number of cases and judicial reasoning thereto. It is however noteworthy that despite the intentions and the approaches taken, that the problems now faced with world domination of terrorism and safety of others that despite the intention, a balance will have to [and is] be drawn in balancing the rights of all16 whilst ensuring that the place of travel is not so restricted by the threat of violence against those the HRA

15 Considered in Chapter 5 16 This would be in accordance with the HRA, whilst dealing with the safety of citizens when balanced with the constant threat of terrorism.

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was meant to protect. It follows that this was never a feature either in the early fifties and proceeding years. Judicial enforcement will be considered and the uncertainty in perspective ¬ to seek to explain the constitutional context in which the Human Rights Act operates, and why Section 3(1) could reasonably be open to quite intensive interpretation amounting to effective entrenchment of human rights. This point will be supported through the examination of judicial case law where judicial members have adopted broad and narrow perspectives on controversial social problems17.

Chapter four will then consider the important issue of how human rights are characterised, will aim to demonstrate judicial enforcement under Sections 3(1) and 4(2) is on uncertain ground, so too are the concepts expressed in the Convention. Given this human rights uncertainty, the courts are frequently adjudicating on open textured questions with them articulating what is necessary in a democratic society. Given the need for a certain enforcement mechanism, and taking into account the flimsy nature of human rights jurisprudence, four different models will then be presented. These models will present

17 For instance the recent case of YL ¬v- Birmingham City Council, where the dilemma remains in the meaning of Public Authority`.

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different ways in which the judiciary can approach their interpretative obligation, and the purpose here will be to outline a preferred model to guide future enforcements in accordance with Sections 3(1) and 4(2).

Having dealt with the problems faced by the judiciary as well as the dilemma caused in protecting the rights and obligations of the state, it is necessary to consider in chapter 8 whether there is any place for the HRA, and whether Terrorism has now diminished the hope of a codified set of rules which were meant to protect the foundation of a civilized society of which such protection could lead to the withdrawal from the Convention18, based upon the need to protect, detain and draw a balance in both protecting the rights of the populace whilst maintaining the powers to detain those who may be intent upon causing mass destruction upon those the HRA was meant to protect.

It is upon the checks and balance that should be incorporated in protecting society, upon those wishing to destroy the fabrication of society itself. In essence this raises the issue whether we can have a system that looks to protect the rights of all, whilst failing to allow periods of detention in order to establish

18 This is permitted on six months Notice to the Secretary-General of the Council of Europe.

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cogency of those held in detention? We shall look at the approach of the judiciary in attempting to address the imbalance whilst maintaining the spirit of the HRA.

Having made a case for greater use of Section 4(2) it will then be argued on the practical side in chapter 10 that the development of a Human Rights Commission19 would improve human rights law by enabling a finer textured debate and deliberation on what human rights actually consist of, thus bringing a greater understand to the conceptual problems that may have arisen.

The commission, it will be argued, could compliment greater Parliamentary debate on human rights, and how legislation should be drafted so as to be Convention compatible. Indeed this shall be the remit for the new Commission, and therefore close examination shall be focused upon in ascertaining its value and worth. Final deliberations will be left to Fairness and Freedom, from the final report of the equalities review20

19 Coming into force in October 2007 20 The Final Report of the Equalities Review

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CHAPTER 1 HUMAN RIGHTS BACKGROUND AND CONTEXT The European Convention on Human Rights (hereafter the Convention) treaties passed by the Council of Europe21 in an effort to stop any reoccurrence of the atrocities and acts of cruelty ever happening again following the Second World War. Of course the aftermath was immense and the need to protect ones rights had never been at the forefront as this period of time in history. The Convention was heavily influenced by British values. The debate over the Convention was British inspired. The drafting of the Convention was British led. The values entrenched in the Convention were British through and through. The Convention itself was ratified first by Britain. We exported our values and our rights to Europe. And in the HRA, for the first time brought them home to Britain, and therefore Human rights are British rights. The HRA sets out a framework of common standards by which we expect to be treated. It represents the freedoms, which a

21 Which was a group of Nations invited by Sir Winston Churchil , following the Second World War

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pluralist society accepts - freedom of speech, freedom of thought, freedom to have a private life, freedom from death, from unfair imprisonment, from degrading or inhuman treatment or torture. Many myths have developed about what the HRA does, and the nonsense decisions it causes. Myths which damage public confidence in the HRA and which can cause decision makers to forget their common sense22 Of course terrorism was not a focal point when the treaties were passed and as we shall see below, that the courts along with the Government have found great difficulty in balancing one person`s rights against another, when contrasted with the need to protect against the atrocities, such as 9/11, a period thereafter which experienced legislative changes in the shortness of time, and never experienced before only during times of hostilities. Such changes were never envisaged during the pre-ratification of the Convention, and yet the legislators in those early years, could have never envisaged the self-destruction of minority parties, prepared to cause maximum damage upon society,

22 Lord Faulkner; addressing the National Association of Head Teachers Annual Conference 2007

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which remains subject to political debate on an almost weekly basis. The fundamental responsibility of the state to protect its citizens against terrorism should not in itself pose a problem as the states should be able to take appropriate steps23 to take appropriate action to protect the safety of it citizens in the balancing exercise and therefore will not offend against some rights which of course are absolute what ever the circumstances24 As we shall see although the courts are ready to apply proportionality25, and this can only be applied to achieve a legitimate aim. A New Constitutional Era On 14th May 1997, the Labour Government announced in the Queen`s Speech that it intended to effectively incorporate into domestic law Convention Rights. It then set out its proposals for incorporation of the Convention in 1997 in a White Paper, Rights Brought Home. The Human Rights Bill, described as what was probably the greatest change in legislative history: The

23 Arising from Article 2 of the Convention itself. 24 For instance Article 3, prohibition of torture and see Z ¬v- United Kingdom (2001) failure to protect children from abuse and neglect over a 4 year period. 25 Although proportionality does not appear anywhere in the text of the Convention.

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language of the Articles, within the Convention is [was] so embracing that one MP commented... It is language which echoes right down the corridors of history. It goes deep into our history and as far back as Magna Carta26 The Human Rights Act came into force on 2nd October 2000 and effectively incorporated27 into the United Kingdom (hereafter the UK) law certain rights and freedoms set out within the body of the Convention. The HRA covers England, Wales, Scotland and Northern Ireland.

From the outset this Convention is a binding international agreement that the UK assisted to draft and has sought to comply with for over half a century28. The Convention enshrines fundamental civil and political rights; however until the HRA it did not form or was incorporated as part of the UK law29.

26 (Hansard, 6 February 1987, col.1224). Sir Edward Gardner MP QC, commented on the language of the Articles in the Convention

27 This has not been fully incorporated because Article 13 on the requirement of an effective remedy is not included in the statutory scheme. 28 Ratified in March 1951 and entered into force on 3 September of that year it has now been ratified by all forty-one States of the Council of Europe.

29 Rights Brought Home: The Human Rights Bill @ Para 1.10 CM 3782

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Human Rights Enshrined in Protocols The Convention30 outlines a broad range of rights available to state citizens that are enforceable against the government. For example, Article 2 provides for the right to life. Article 3 protects from torture and inhumane or degrading treatment or punishment. Article 4 protects from slavery and forced or compulsory Labour. Article 6 provides the right for a fair trial. Traditional ideas of civil liberties are also enshrined. Article 9 provides for freedom of thought, conscience and religion, Article 10 for freedom and expression and Article 11 for freedom of association and assembly.

There are also numerous protocols that member-states signed subsequently to the Convention. For completeness Section 1, of the Convention (Articles 1-18) sets out the rights and freedoms of individuals under the Convention, now supplemented by several Protocols31 providing further rights, with further Protocols dealing merely with procedural and organisational matters.

30 Convention rights" means the rights and fundamental freedoms set out in: (a) Articles 2 to 12 and 14 of the Convention, (b) Articles 1 to 3 of the First Protocol, and (c) Articles 1 and 2 of the Sixth Protocol, as read with Articles 16 to 18 of the Convention

31 A protocol is a later addition to the Convention, so as to be more flexible and clear. For instance, Article 1 of Protocol 13; abolition of the death penalty.

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These cover, for example, matters such as right to property (article 1), the right to education (article 2), the right to free and fair elections, the abolition of the death penalty in peacetime (articles 1 and 2 of the sixth protocol), restrictions on political activity of aliens (article 16) and prohibition of abuse of rights (article 17).

These rights are known as Convention rights and have a domestic impact on areas of law such as crime, family, housing, employment and education. By Article 1 of the Convention, countries who have signed up to the Convention must secure the above rights for everyone in their jurisdiction and individuals must also have an effective remedy to protect those rights in the country's courts32 without the need to go to the ECtHR33.

Characterization of human rights Of great importance is how the human rights in question are characterised. The strength of particular human rights depends upon the extent to which member states must ensure compliance. Whether member states can depart from human

32 Unlike post HRA, when one need to make an application direct to the European Court 33 Hereafter referred to as the European Court

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rights depends on whether the right in question provides for a derogation or qualification. Under Article 15, member states can derogate from the Convention where this is necessary for national security34.

Further, many human rights are subject to qualifications. These rights are defined in two stages, the first provides the right and the second defines the permissible qualifications to that right.

This enables a member state to argue that the abridgment of a human right is necessary, for example, for quelling a riot or insurrection, public safety, economic-well being, and the protection of health or morals. Qualifications of this type are to be found, for example in Article 2 on the right to life, Articles 8 on privacy and 10 on freedom of expression. This list is by no means exhaustive, but illustrative of the manner in which rights can be subject to qualification to take into account wider social factors.

34 The exceptions to this are Article 3, 4(1) and 7.

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When looking to the qualifications, the European Court will take into account that the Convention is a living instrument`35. Further, there is a need for proportionality that requires the member state doing no more than is necessary in order to achieve a result, which is itself lawful and reasonable. In essence there must be a reasonable relationship between the means used and the end result.

However, Articles 3, 4, 6 and 7 have no such qualifications. They are absolute rights where the primary consideration for the European Court is establishing whether the right has been engaged or breached, rather than arguments for the Respondent government that the Article in question should not justifiably apply.

Another important way to characterize the scope of human rights is in terms of the duty they place upon member states. This duty can be either negative` or positive`, or even both36. Negative rights involve the classic examples of freedom from` torture37, or freedom to` express and form political associations.

35 A term employed in Salmouni v France [2000] 29 EHRR @ 403, and subsequently as the basis for an argument extending privacy rights to environmental rights in the lower chamber decision in Hatton v UK. 36 This distinction may be considered crude and characterised, and it is recognised that in many scenarios the distinction collapses, but for the purposes of this introduction into human rights law, it wil suffice. 37 This is a good example of an absolute` rights

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The member state is expected to refrain from activity that would run contrary to these rights. Positive rights, on the other hand, are a lot more problematic in that they require the member state to be proactive in not only protecting the rights, but also securing them. Osman v UK38 tested the limits of this positive obligation, where the European Court found that the UK government failed to provide adequate protection to murdered parents after receiving repeated information about the dangerousness of the murderer.

The European Court described this case as an extreme example of police failure, and therefore perhaps not applicable where the consequence of their inaction was not so obvious.

This distinction between positive` and negative` rights will be returned to in Chapter 4 when discussing how desirable it is for courts to be adjudicating on these matters. In the meanwhile suffice to say this is a judicial device to establish the extent of a member state`s duty under the Convention.

38 Osman-v-UK (1998) 29 EHRR 245

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Member State Obligation The role of the European Court will be to determine whether the member state has complied with the terms of the Convention, and the member state is constructed to include all branches of government39. The UK government, too, have created executive and judicial provisions with regarded to the Convention and human rights generally. By Section 2 of the Human Rights Act, all national courts and tribunals must take into account the case law of the European Court. Section 6 binds public authorities40 from government departments and courts to functional public bodies running nursing and residential homes. Section 641 therefore adds a new head of review ¬ human rights illegality - to the traditional approach of illegality, irrationality and procedural impropriety.42

39 For example, in Price v UK (2002) 34 EHRR @ 53; the European Court stated that both the sentencing judge and the prison service (both the executive and judicial branches) were at fault in incarcerating disabled women without taking her disability into consideration. 40 That is pure public authorities or bodies undertaking a function of a public nature. See Section 6. 41 The meaning of public authority has caused substantial problems and subjected to debates by the Lords see Seventh Report of Session 2003¬04- HL Paper 39 HC 382 42 See: Associated Provincial Picture Houses Ltd. v. Wednesbury Corporation (1948) 1 K.B. 223, 229, Lord Greene M.R. pointed out that different grounds of review "run into one another." A modern commentator has demonstrated the correctness of the proposition that grounds of judicial review have blurred edges and tend to overlap with comprehensive reference. See Fordham, Judicial Review Handbook, 2nd Ed, pp. 514-521.

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A point arises to the extent to which the HRA has horizontal effect that is, enabling individuals to bring claims against other individuals43. The courts have hesitantly developed limited horizontal effect by applying the HRA to the common law44. Locus Standi In 1966 the UK accepted that an individual person45, and not merely another State, could bring a case against the UK to the European Court. Successive administrations in the UK have maintained these arrangements46. From the outset it should be noted that a finding by the ECtHR of a violation of a Convention right does not have the effect of automatically changing UK law and it shall canvassed that any remedy is a matter for the UK government and Parliament alone to amend or otherwise deal with the offending legislation.

43 Douglas and Others v. Hello! Ltd. [2001] Q.B. 967; Campbell v MGN Ltd [2004] UKHL 22; Venables and Another v News Group Newspapers and Others 8 January 2001, [2001] 9 BHRC 587, (2001) -- Human Rights Act 1998, s 12, Sch 1, arts 2, 3, 8 10 44 As in Douglas v Hello Ltd, [2001] Q.B. @ 967. The argument goes as follows ¬ the HRA requires domestic law to be Convention compliant, so therefore in the context of privacy, the common law right of breach of confidence` was upgraded to encompass Article 8 rights. By introducing Article 8 tangential y through the common law, individuals can in limited circumstance bring a claim against other individuals. 45 Person includes Companies, under the HRA, as without this it would infringe Articles 6, & 14 respectively 46 White paper on The Human Rights Bil CM 3782

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However the UK has agreed to abide by the decisions of the Court47. It follows that, in cases where a violation has been found, the State concerned must ensure that any deficiency in its internal laws is rectified48 so as to bring them into line with the Convention49. In essence: - The incorporation of the Convention on Human Rights into domestic law is perhaps the most significant element in the government`s programme of constitutional reform. It will give birth to a major new jurisprudence, borne out of challenges brought by lawyers; and over time, a culture of respect for human rights will permeate the whole of our society50. Proportionality has throughout the decades placed a part in common law and therefore it is useful to visit the former decisions in light of the procedure now adopted in ensuring compatibility with the HRA. The cases below will demonstrate the courts in interpretation and or attempting to strike a balance between policy, decisions have maintained a balance of natural justice, involving the rights of prisoners, balanced with

47 Like al other States who are parties to the Convention. 48 Subject to certain caveat`s discussed below. 49Rights Brought Home: The Human Rights Bil @ Para 1.10 50 Lord Chancellor Lord Irvine of Lairg addressed the implication of the Human Rights Act In his Keynote Address, at the Annual Conference of the Bar 9th October 1999.

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proportionality, which gave way to the Convention on Human Rights, following a number of decisions from the ECtHR. A thread throughout is to protect prisoners from disapportionate policies affecting those rights, rather than to adhere to a blanket policy`, which on the face of it may violate ones human rights. The courts have focussed substantially in striking out offensive policies, which fall foul of the HRA, whilst attempting to strike a balance between security and the need to protect those at risk through abusive policies as touched upon below. Unsurprisingly the courts have been drawn to the rights of prisoners, who at one stage were thought to have very few given their incarceration within the prison system. It is upon this premises that we shall focus below upon proportionality, and striking a fair balance. Whilst throughout this dissertation we shall focus upon the rights under the HRA, it may be useful for elucidation to consider a number of propositions concerning rights, and these can be expressed as absolute` as will appear throughout along with limited` and qualified` rights.

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In summary not all rights are the same and some call upon adhering to some more than others, providing qualification is given for any departure from those rights51 In essence rights and any departure thereto is solely dependant upon the right/s in question, that the HRA looked to protect. Terrorism for instance has featured a great deal in recent times, and the various decisions surrounding incarceration of the suspects for substantial periods of time without charge or trial has arguably run foul of the HRA. Whilst we shall focus upon the problems encountered in great detail within the body of this dissertation, for now we shall visit three types of rights outlined above. In essence not all Convention rights operate in the same way. It is now useful to look at the ramifications of absolute`, limited` or qualified` in nature. In chapter 5 we shall demonstrate the problems of derogation. In the case of absolute rights; States cannot opt out of these rights under any` circumstances; not even during war or public emergency. There cannot be any justification for interference

51 For instance abolition of the death penalty is not subject to any qualification to depart from it, as it is absolute, however self defence of a police officer may be under Article 2.

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with these rights and they cannot be balanced against public` interest. Such rights are prohibition of torture and inhumane or degrading treatment52 and the prohibition of slavery53 Limited rights; are rights that are not balanced against the rights others, but which are limited under the explicit and finite circumstances. An example is the right to liberty and security54 Qualified rights; are rights that can be interfered with in order to protect the rights of other people or the public interest. An inference with qualified rights may be justified where the state can show that the restriction is lawful` in accordance with the law, which must be established, accessible and sufficiently clear.

With regard to a legitimate aim, the restriction must pursue a permissible aim as set out in the relevant Article. Public authorities may only rely on the expressly stated legitimate aim when restricting the right in question.

52 Article 3. 53 Article 4(1) 54 Article 5.

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Some of the protected interests are national security55 the protection of health and morals, the prevention of crime and the protection of the rights of others.

In essence this raises the issue whether the restriction is necessary in a democratic society. The answer is simply for a restriction to be necessary in a democratic society there must be a rational between the legitimate aim to be achieved and the policy/ decision, which restricts person`s rights.

Perhaps a good example of this is simply that if the restriction would make no difference in achieving the aim, then the restriction would be unlawful. In cases, which fall outside this ambit, then a policy/decision should be no more restrictive than it needs to be in order to achieve its objective, otherwise known as the proportionality`.

This means that the exercise of the rights guaranteed under the Convention and their protection by the courts has to be done in a way that is proportional to the needs of society. Limiting the rights may be permitted only if it is genuinely done to meet an

55 Of which we shal see has come under substantial pressure in attempts to deal with detainees under the Terrorism Act 2000.

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objective which is of general interest recognised by the European Union or the need to protect the rights and freedoms of others. What this does is offer a defence against the state overriding an individual's rights through disproportionate action.

In essence the use of proportionality raises the issues whether the restriction itself is necessary in a democratic society. To this end the restriction must fulfill a pressing social need and if so must be proportionate to that need.

The principle of proportionality is at the heart of the qualified rights are interpreted, although; the word itself does not appear anywhere, in the text of the Convention.

The principle can perhaps most easily be understood by saying don`t t use a sledgehammer to crack a nut`. When taking decisions that may affect any of the qualified rights, a public authority must interfere with the right as little as possible, only as far as is necessary to achieve the desired aim.

In essence one must look to inquire what is the restriction being applied and or sought to determine whether the restriction

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is proportionate or not. This for example can be carried out by applying the following test: -

(1) What is the problem that is being addressed by the restriction? (2) Will the restriction in fact lead to a reduction in that problem? (3) Does a less restrictive alternative exist, and has it been tried? (4) Does the restriction involve a blanket policy or does it allow for different cases to be treated differently? (5) Has sufficient regard been paid to the rights and interest of those affected? (6) Do safeguards exist against error or abuse? (7) Does the restriction in questions destroy the very essence of the Convention rights at issue?

It is the above are issues that the judiciary will take into account when considering whether ones rights have been violated.

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In the case of R ¬v- Secretary of State for the Home Department ex parte Daly;56 on 31 May 1995 the Home Secretary introduced a new policy ("the policy") governing the searching of cells occupied by convicted and remand prisoners in closed prisons in England and Wales. The policy was expressed in the Security Manual as an instruction to prison governors in these terms57: -

"17.69: - Staff must accompany all searches of living accommodation in closed Prisons with a strip search of the resident prisoner.

17.70:- Staff must not allow any prisoner to be present during a search of living accommodation (although this does not apply to accommodation fabric checks).

17.71:- Staff must inform the prisoner as soon as practicable whenever objects or containers are removed from living accommodation for searching, and will be missing from the accommodation on the prisoner's return.

56 2001 UKHL-26 57 HM Chief Inspector of Constabulary was at once set up, fol owing an escape from prison of a number of category A prisoners. . The report of the inquiry, presented to Parliament in December 1994 (Cm 2741)

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17.72:- Subject to paragraph 17.73, staff may normally read legal correspondence only if the Governor has reasonable cause to suspect that their contents endanger prison security, or the safety of others, or are otherwise of a criminal nature. In this case the prisoner involved shall be given the opportunity to be present and informed that their correspondence is to be read.

17.73:- But during a cell search staff must examine legal correspondence thoroughly in the absence of the prisoner. Staff must examine the correspondence only so far as necessary to ensure that it is bona fide correspondence between the prisoner and a legal adviser and does not conceal anything else.

17.74:- When entering cells at other times (e.g. when undertaking accommodation fabric checks) staff must take care not to read legal correspondence belonging to prisoners unless the Governor has decided that the reasonable cause test in 17.72 applies."

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The origin and background of the policy On 9 September 1994 six categories A` prisoners, classified as presenting an exceptional risk, escaped from the Special Security Unit at HMP Whitemoor. An inquiry led by Sir John Woodcock, formerly HM Chief Inspector of Constabulary, was at once set up. The report of the inquiry;58 revealed` extensive mismanagement; malpractice at Whitemoor. The escape had been possible only because prisoners had been able, undetected, to gather a mass of illicit property and equipment. This in turn had been possible because prisoners' cells and other areas had not been thoroughly searched at frequent but irregular intervals, partly because officers seeking to make such searches had been intimidated and obstructed by prisoners, and partly because relations between officers and prisoners had in some instances become unacceptably familiar so that staff had been manipulated or "conditioned" into being less vigilant than they should have been in security matters.

58 Ibid

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In its report59 the inquiry team made a number of recommendations. One of these was that cells and property should be searched at frequent but irregular intervals. In other words, there was to be no standard or pattern to be established which would put the prisoners on notice. Following a strip search each prisoner was to be excluded from his cell, during the search, this was to avoid intimidation. The inquiry team gave no consideration at any stage to legal professional privilege or confidentiality. The policy was introduced to give effect to the inquiry team's recommendation on searching of cells. The legal background of which this policy was made can best be summarized as follows: - Any custodial order inevitably curtails the enjoyment, by the person confined, of rights enjoyed by other citizens. He cannot move freely and choose his associates as they are entitled to do. It is indeed an important objective of such an order to curtail such rights, whether to punish him or to protect other members of the public or both.

59 Ibid

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But the order does not wholly deprive the person confined of all rights enjoyed by other citizens. Some rights, perhaps in an attenuated or qualified form, survive the making of the order, and it may well be that the importance of such surviving rights is enhanced by the loss or partial loss of other rights. Among the rights which, in part at least, survive are three important rights, closely related but free standing, each of them calling for appropriate legal protection: the right of access to a court; the right of access to legal advice; and the right to communicate confidentially with a legal adviser under the seal of legal professional privilege. As we shall see below, the UK has fallen short in certain circumstances in comply with the above. Such rights may be curtailed only by clear and express words, and then only to the extent reasonably necessary to meet the ends, which justify the curtailment. A number of decisions had been made on diverse occasions some at odds with each other. In R v Board of Visitors of Hull Prison, Ex p St Germain60 Shaw LJ stated "despite the deprivation of his general liberty, a prisoner remains invested with residuary rights appertaining to

60 [1979] QB 42

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the nature and conduct of his incarceration . . . An essential characteristic of the right of a subject is that it carries with it a right of recourse to the courts unless some statute decrees otherwise." In a further case of Raymond v Honey61 a point arose from the action of a prison governor who blocked a prisoner's application to a court. The House of Lords affirmed, 62that "under English law, a convicted prisoner, in spite of his imprisonment, retains all civil rights which are not taken away expressly or by necessary implication . . ." It was held in the above case that Section 47 was held to be quite insufficient to authorise hindrance or interference with so basic a right as that of access to a court. To the extent that rules were made fettering a prisoner's right of access to the courts and in particular his right to institute proceedings in person they were ultra vires. Further consideration was given in R v Secretary of State for the Home Department, Ex p Anderson63 the prisoner's challenge

61 [1983] A.C.; 1, at p. 10H.

62 At page 10 63 1984] QB 778

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was directed to a standing order which restricted visits by a legal adviser to a prisoner contemplating proceedings concerning his treatment in prison when he had not at the same time made any complaint to the prison authorities internally. Reiterating the principle that a prisoner remains invested with all civil rights, which are not taken away expressly or by necessary implication, Robert Goff LJ,64 held........."At the forefront of those civil rights is the right of unimpeded access to the courts; and the right of access to a solicitor to obtain advice and assistance with regard to the initiation of civil proceedings is inseparable from the right of access to the courts themselves.65" His Lordship continued ........."As it seems to us, a requirement that an inmate should make . . . a complaint as a prerequisite of his having access to his solicitor, however desirable it may be in the interests of good administration, goes beyond the regulation of the circumstances in which such access may take place, and does indeed constitute an impediment to his right of access to the civil court."

64 Giving the judgment of the Queen's Bench Divisional Court, said, at p 790 65 The standing order in question was held to be ultra vires. At pp 793-794 the court observed:

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In Campbell v United Kingdom66 issues concerned the compatibility with the European Convention of rule 74(4) of the Prison (Scotland) Rules 1952 67which provided that "every letter to or from a prisoner shall be read by the Governor . . . and it shall be within the discretion of the Governor to stop any letter if he considers that the contents are objectionable."68 The European Court held that the interference with the applicant's correspondence violated article 8 of the Convention69, the court said....."Admittedly, as the Government pointed out, the borderline between mail concerning contemplated litigation and that of a general nature is especially difficult to draw and correspondence with a lawyer may concern matters, which have little or nothing to do with litigation. Nevertheless, the Court saw no reason to distinguish between the different categories of correspondence with lawyers which, whatever their purpose, concerned matters of a private and confidential character. In principle, such letters are privileged under Article 8. In essence prison authorities may open a letter from a lawyer to a prisoner when they have reasonable` cause to believe that it

66 (1992) 15 EHRR 137 67 (SI 1952/565) 68 The Court of Session had earlier upheld this rule as valid: Leech v Secretary of State for Scotland, 1991 SLT 910. 69 At p 161, Para 48 of its judgment

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contains an illicit enclosure which the normal means of detection have failed to disclose.

The letter should, however, only be opened and should not be read. Suitable guarantees preventing the reading of the letter should be provided, e.g. opening the letter in the presence of the prisoner.

The reading of a prisoner's mail to and from a lawyer, on the other hand, should only be permitted in exceptional circumstances when the authorities have reasonable cause to believe that the privilege is being abused in that the contents of the letter endanger prison security or the safety of others or are otherwise of a criminal nature.

What may be regarded as 'reasonable cause' will depend on all the circumstances but it presupposes the existence of facts or information which would satisfy an objective observer that the privileged channel of communication was being abused." The above decision was later applied in R v Secretary of State for the Home Department, Ex p Leech;70 which concerned rule

70 [1994] QB 198.

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33(3) of the Prison Rules 196471, which were in terms similar, although not identical, to rule 74(4) of the Scottish Rules. The decision is important for several reasons. First, it re-stated the principles that every citizen has a right of unimpeded access to the court, that a prisoner's unimpeded access to a solicitor for the purpose of receiving advice and assistance in connection with a possible institution of proceedings in the courts forms an inseparable part of the right of access to the courts themselves and that section 47(1) of the 1952 Act which did not authorise the making of any rule which created an impediment to the free flow of communication between a solicitor and a client who contemplated legal proceedings. Legal professional privilege was described as an important auxiliary principle serving to buttress the cardinal principles of unimpeded access to the court and to legal advice. Secondly, it was accepted that section 47(1) did not expressly authorise the making of a rule such as rule 33(3), and the court observed,72 that a fundamental right such as the common law right to legal professional privilege would very rarely be held to

71 (SI 1964/388) 72 at p 212,

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be abolished by necessary implication; however the court accepted that section 47(1) should be interpreted as conferring power to make rules for the purpose of preventing escapes from prison, maintaining order in prisons, detecting and preventing offences against the criminal law and safeguarding national security. Rules could properly be made to permit the examining and reading of correspondence passing between a prisoner and his solicitor in order to ascertain whether it was in truth bona fide correspondence and to permit the stopping of letters which failed such scrutiny. The crucial question was whether rule 33(3) was drawn in terms wider than necessary to meet the legitimate objectives of such a rule73. "The question therefore is whether there is a self-evident and pressing need for an unrestricted power to read letters between a prisoner and a solicitor and a power to stop such letters on the ground of prolixity and objectionability." The court concluded that there was nothing, which established objectively that there was a need in the interests of the proper regulation of prisons for a rule of the width of rule 33(3).

73 As it was put, at p 212:

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While section 47(1) of the 1952 Act by necessary implication authorised some screening of correspondence between a prisoner and a solicitor, such intrusion had to be the minimum necessary to ensure that the correspondence was in truth bona fide legal correspondence: since rule 33(3) created a substantial impediment to exercise by the prisoner of his right to communicate in confidence with his solicitor the rule was drawn in terms which were needed. In the light of the decisions in Campbell and Leech, a new prison rule was made, now rule 39 of the Prison Rules 199974, which provides, so far as material: (1) A prisoner may correspond with his legal adviser and any court and such correspondence may only be opened, read or stopped by the governor in accordance with the provisions of this rule.

(2) Correspondence to which this rule applies may be opened if the governor has reasonable cause to believe that it contains an illicit enclosure and any such

74 (SI 1999/728).

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enclosures shall be dealt with in accordance with the other provision of these Rules.

(3) Correspondence to which this rule applies may be opened, read and stopped if the governor has reasonable cause to believe its contents endanger prison security or the safety of others or are otherwise of a criminal nature.

(4) A prisoner shall be given the opportunity to be present when any correspondence to which this rule applies is opened and shall be informed if it or any enclosure is to be read or stopped." This rule, is now accepted, applies only to correspondence in transit from prisoner to solicitor or vice versa75. The references to opening and stopping make plain that it has no application to legal correspondence or copy correspondence received or made by a prisoner and kept by him in his cell. Moreover the Court of Appeal decision in Leech was endorsed and approved by the House of Lords in R v Secretary of State for the Home Department, Ex p

75 Thus al eviating the excuse say through a cel search of which the prisoner should be present discussed below

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Simms,76 which arose from a prohibition on visits to serving prisoners by journalists seeking to investigate whether the prisoners had, as they claimed, been wrongly convicted, save on terms which precluded the journalists from making professional use of the material obtained during such visits. The House considered whether the Home Secretary's evidence showed a pressing need for a measure, which restricted prisoners' attempts to gain access to justice, and found none. The more substantial the interference with fundamental rights, the more the court would require by way of justification before it could be satisfied that the interference was reasonable in a public law sense. In this as in other cases there was applied the principle succinctly stated by Lord Browne-Wilkinson in R v Secretary of State for the Home Department, ex parte Pierson 77

76 2000] 2 AC 115 77 [1998] AC 539, 575:

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The House in R ¬v- Secretary of State for the Home Department ex parte Daly78 Stated....."From these authorities I think the following proposition is established. A power conferred by Parliament in general terms is not to be taken to authorise the doing of acts by the donee of the power which adversely affect the legal rights of the citizen or the basic principles on which the law of the United Kingdom is based unless the statute conferring the power makes it clear that such was the intention of Parliament The Lords then continued... It is then necessary to ask whether, to the extent that it infringes a prisoner's common law right to privilege, the policy can be justified as a necessary and proper response to the acknowledged need to maintain security, order and discipline in prisons and to prevent crime.

Mr. Daly's challenge at this point was directed to the blanket nature of the policy, applicable as it was to all prisoners of whatever category in all closed prisons in England and Wales, irrespective of a prisoner's past or

78 Ibis Para 40

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present conduct and of any operational emergency or urgent intelligence. The Home Secretary's justification rests firmly on the points already mentioned: the risk of intimidation, the risk that staff may be conditioned by prisoners to relax security and the danger of disclosing searching methods.

The Lords did not agree with the proposition in which Lord Steyn...held [I] have reached the conclusions so far expressed on an orthodox application of common law principles derived from the authorities and an orthodox domestic approach to judicial review. But the same result is achieved by reliance on the European Convention. Article 8.1 which gives Mr. Daly a right to respect for his correspondence.

While interference with that right by a public authority may be permitted only in accordance with the law and necessary in a democratic society in the interests of national security, public safety, the prevention of disorder or crime or for protection of the rights and freedoms of others, the policy interferes with Mr. Daly's exercise of

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his right under article 8.1 to an extent much greater than necessity requires.

In this instance, therefore, the common law and the Convention yield the same result, this need not always be the case.

Conversely in Smith and Grady v United Kingdom79 the European Court held that the orthodox domestic approach of the English courts had not given the applicants an effective remedy for the breach of their rights under article 8 of the Convention because the threshold of review had been set too high.

Moreover following the incorporation of the Convention by the HRA and the bringing of that Act fully into force, domestic courts must themselves form a judgment whether a Convention right has been breached (in conducting such inquiry as is necessary to form that judgment) and, so far as permissible under the HRA, grant an effective remedy.

79 1999) 29 EHRR 493,

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Finally on this point it is interesting to note that the Prisons Ombudsman carried out a full inquiry which was reported in November 1996. In his report the Ombudsman commented: "I entirely support the main thrust of Woodcock's recommendations regarding cell searching. It is apparent that prisoner intimidation was precluding the effective searching of prisoner accommodation in many establishments, and that this searching, which is essential for the safety and security of both staff and prisoners, is carried out far more effectively when the prisoner is absent.

This procedure has also been assisted by the introduction of the volumetric control of prisoners' in-possession property.

However, the legal privilege which must protect the confidentiality of correspondence between a solicitor and his client is too important to be sacrificed for the sake of expediency; whilst it would undoubtedly be easier for staff to search a prisoner's legal documents in his

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absence; this allows legal privilege to be compromised to an unacceptable degree... "It is clear that, in complaining about the Prison Service's cell searching policy; [the prisoner] has raised a matter which has far-reaching consequences. I believe that his complaint is a valid one and that, in searching prisoners' legal papers in their absence, the Prison Service is compromising the legal privilege, which ensures that correspondence between a solicitor and his client will remain confidential. I therefore uphold [the prisoner's] complaint. Security Group has previously drafted a revised version of section 68.3 of the Security Manual.

This revised version allowed the prisoner to remain in the cell while his legal documents are being searched, after which the documents are sealed in a box or bag, thus avoiding any possible compromise of legal privilege. I consider that the Security Manual should be amended to incorporate this revised method of cell searching." The Ombudsman's investigations revealed that, following a complaint by a prisoner confined in HMP Full Sutton, a procedure had been developed in that prison to meet the

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wishes of prisoners who objected to the searching of their legal documents in their absence. The procedure was simply ... "If the prisoner objects to his legal documents being searched in his absence DST80 staff place the documents in a bag, seal the bag using a numbered reception seal and give the prisoner a copy of the seal number. The bag is left in the prisoner's cel while the search is being carried out. When the prisoner returns, he checks the seal on the bag to ensure that it has not been tampered with and the documents are searched in his presence." In essence the importance of proportionality` is the thread throughout the above illustrations within the body of the case law. The contours of the principle of proportionality are familiar, as in de Freitas v Permanent Secretary of Ministry of Agriculture, Fisheries, Lands and Housing81 the Privy Council adopted a three-stage test. Lord Clyde observed;82 that in determining whether a limitation is

80 [Dedicated search team] 81 [1999] 1 AC 69 82 , at p 80

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arbitrary83 or excessive the court should ask itself... "Whether:- the legislative objective is sufficiently important to justify limiting a fundamental right; the measures designed to meet the legislative objective are rationally connected to it; -and- the means used to impair the right or freedom are no more than is necessary to accomplish the objective." Clearly, these criteria are more precise and more sophisticated than the traditional grounds of review. What is the difference for the disposal of concrete cases? Academic public lawyers have in remarkably similar terms elucidated the difference between the traditional grounds of review and the proportionality approach: see for instance Professor Jeffrey Jowell QC, "Beyond the Rule of Law: Towards Constitutional Judicial Review"84; Craig, Administrative Law85 Professor David Feldman, "Proportionality and the Human Rights Act 1998", essay in The Principle of Proportionality in the Laws of Europe86

83 (by an act, rule or decision) 84 [2000] PL 671 85 4th ed (1999), 561-563; 86 (1999), pp 117, 127 et seq.

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The starting point is therefore to address the issue whether there is an overlap between the traditional grounds of review and the approach of proportionality`. Most cases would be decided in the same way whichever approach is adopted. But the intensity of review is somewhat greater under the proportionality approach. Making due allowance for important structural differences between various Convention rights, which I do not propose to discuss, a few generalisation`s are perhaps permissible. I would mention three concrete differences without suggesting that my statement is exhaustive. First, the doctrine of proportionality87 may require the reviewing court to assess the balance, which the decision maker has struck, not merely whether it is within the range of rational or reasonable decisions. Secondly, the proportionality` test may go further than the traditional grounds of review inasmuch as it may

87 Ibid

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require attention to be directed to the relative weight accorded to interests and considerations. Thirdly, even the heightened scrutiny test developed in R v Ministry of Defence; Ex p Smith [1996]88 is not necessarily appropriate to the protection of human rights. It will be recalled that in Smith the Court of Appeal reluctantly felt compelled to reject a limitation on homosexuals in the army. The challenge based on article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms89 foundered on the threshold required even by the anxious scrutiny test. The European Court of Human Rights came to the opposite conclusion: Smith and Grady v United Kingdom90. The court concluded, 91..."the threshold at which the High Court and the Court of Appeal could find the Ministry of Defence policy irrational was placed so high that it effectively excluded any consideration by the

88 QB 517, 554 89 (The right to respect for private and family life) 90 (1999) 29 EHRR 493 91 at p 543, Para 138:

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domestic courts of the question of whether the interference with the applicants' rights answered a pressing social need or was proportionate to the national security and public order aims pursued, principles which lie at the heart of the court's analysis of complaints under article 8 of the Convention." In other words, the intensity of the review, in similar cases, is guaranteed by the twin requirements that the limitation of the right was necessary in a democratic society, in the sense of meeting a pressing social need, and the question whether the interference was really proportionate to the legitimate aim being pursued.

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Chapter 3

Human rights and common law understandings of freedom and liberty An important consideration of how the judiciary receive the HRA is how they themselves perceive their common law role with regards to freedom and liberty. For instance over the years there has been a birth of a specialist administrative Court Office, of the High Court dealing with applications by way of judicial review which very often dealt with procedure irregularities along with a failure to carry out a statutory duty. Remedies such mandamus and certiorari92, are a main daily feature within the Administrative courts. A regular feature is immigration, housing, and such other matters that call for the courts to consider cases in finite detail including statutory interpretation, rights and remedies.

92 Now Mandatory Order and quashing Order

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In essence it is the role of the judiciary experienced in considering whether a government or local authority have carried out their obligation and or statutory duty within the terms of the statutory provisions being called in to question. Such rights, and obligation are a feature within the HRA, and the courts over the years have been creative when justice required.93 It is from this breed of judiciary that are now deliberating in the Court of Appeal and the House of Lords. It is noteworthy that the judiciary in these specialist courts would not substitute the decision, but merely grant or otherwise their deliberations upon the failure or otherwise of the decision reached based upon a procedural` irregularity94 It will however be seen that the judiciary very often apply the same test to the HRA as they did and do when hearing matters outlined above. Consideration of pre and post Act, will demonstrate that the approach is not necessarily compatible with the HRA95.

93 ;Ridge v Baldwin [1964] AC. @ 40, 94 For instance the procedure adopted may have offended against he notion of Natural Justice, or the fettering of discretion to name a few, as in the case of Ridge ¬v- Baldwin Ibid. 95 Discussed below.

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In contrast the HRA instils within the UK a new approach both to be taken in the procedure to be adopted in both civil and criminal cases96. Tribunals and committees and other decision and administrative bodies are called upon to adhere to principals of natural justice prevails both against procedure and bias97. A right to a fair trial is a feature within the HRA; some would say such a right is a landmark itself; however this has been built within the body of our Common Law, upon the premises of fair play` and justice98. Applicants faced with appealing decisions involving housing benefits, and going before the Housing Benefit Review Board, were often left in doubt as to fairness of the procedure and decision making body, as those presenting the authorities case was employees of the members sitting in judgment. Conversely the same system applied to many Tribunals and Committees who sat to hear complaints against

96 Article 6 HRA for instance 97 Bryan v UK 21 EHRR @ 342, Held a developer could chal enge an enforcement notice as a breach of Article 6. "In the context of planning appeals the very existence of this power available to the executive, whose own policies may be in issue, is enough to deprive the inspector of the requisite appearance of independence, notwithstanding the limited exercise of the power in practice and irrespective of whether its exercise was or could have been in issue in that case 98 Ridge ¬v- Baldwin. Ibis

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refusal of a school place for their child, only to find that the make up of the Committee included a council member, who may be best placed of fielding his council`s position, by finding that parents objecting to an allocated school99 upon the ground/s that the school so allocated fails to meet that academic excellence, is in itself underpinning the council`s position on education100 This not to say that the administration was tainted, however to those appealing such decisions would leave the Committee room pondering whether any decision may be tainted,101 as the councillor/s reminded the parents that like schools; were available within the catchment area,102 and effectively they should not be so judgemental. Of course it was unwise to decry the allocated school as this would often lead to refusal of the appeal and of course the parents appealing their preferred school would only want to feel that their case had been decided

99 Under the Education Act. 100 This was a constant complaint of many parents that the writer acted for, when appearing before the Committee of the LEA. 101 R ¬v- Lancashire County Council ex parte R, was a case in which the education authority had put in place a restriction on a popular school who could accommodate more children in the school but had put the policy` in place to fil under achieving schools within the area. 102 This is within the terms of the Education Act 1980 (as amended) when al ocating schools.

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upon its merits; rather than a policy` decision which was merely being upheld by the appeal committee. Fair play and adherence103 was the main requirement in such circumstances and therefore the judiciary are reminded of the above principal104 for all within the context of the rules that they have to administer. It follows therefore that the courts themselves will have to adopt a new approach [and many have] and aspire in considering the matters before them. Article 6 relates entirely to procedure and applies wherever there is a determination of person`s civil rights. In, Condron v The United Kingdom the Court of Appeal considered cases on appeal, the ECtHR held that the Court of Appeal; in merely considering the safety of the applicants` conviction was in breach of their fundamental rights within the HRA105.

103 To fair play and Natural Justice. 104 The civil procedure rules in part one tells judges that they have got to deal with cases justly and that goes on to say that not only must they try and get the right result they must also ensure that there is a level playing ground, that they are dealt with equal y. 105 Condon v. The United Kingdom. Application. No. 35718/97. Judgment given at Strasbourg, May 2, 2000

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The Court of Appeal was concerned with the safety of the applicants106` conviction, rather than had he received a fair trial.... The question whether or not the rights...guaranteed to an accused under Article 6 of the Convention was secured cannot be assimilated to a finding that his conviction was safe....107 The decision was later followed and endorsed by the Court of Appeal, Lord Woolf C.J: ... It would be unfortunate if the approach of the European Court of Human Rights and the approach of the Court of Appeal were to differ. Section 3 of the Human Rights Act now required all acts of the UK Parliament to be read in a way that was compatible with Convention rights108 Such a task is not easily defined because those seeking remedies may be faced with further ambiguities as those entrusted by Parliament to administer the terms within the body of the HRA, which may be as inconsistent as the issue being challenged.

106 Classified as victims` under the HRA 107 Condron v The United Kingdom. Application No. 35718/97 @ Paragraph 65 108 The Times (London), November 21, [2000]

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The creativity of the judiciary at times has interoperated a particular meaning in order to do justice; however justice to one is very often an injustice to another. It is upon this creativity that has caused inconsistencies within the HRA. This can be demonstrated when consideration is given to the core of the HRA.

In essence the in order to enforce a right` the only redress under section 6 of the HRA is against a public authority, it is upon this premises that the following chapter will focus upon. It will be seen however a greater dilemma is caused in trying to tackle this task, as many arguments are canvassed in order to catch other elements and bring them into the body of the HRA, to offer greater protection to those relying upon the rights. Whether such an ambit is necessary is a bone of contention as far as the writer is concerned, and therefore a great deal of analytical exploration is called for to explore other remedies prevalent within other Statutory provisions, available as safeguards.

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Chapter 4 Enforcement Uncertainty

Public Authority [the Dilemma] The meaning of Public Authority has caused untold difficulty in ascertaining who or what is a Public Authority in days of contracting out ones duty. It is somewhat surprising that as the HRA refers throughout to Public Authority` the government failed to include any definition within the HRA109. It may have been thought that given monumental change over the past thirty years in reorganising government that the HRA should not be narrowly defined110. It should be noted that Section 6(1) of the HRA states that [i] t is unlawful for a public authority to act in a way

109