Adam Wagner, editor of the excellent UK Human Rights Blog, is in the process of launching a new Human Rights Information Project, as part of which he is crowdsourcing “50 human rights cases absolutely everyone needs to know about“. Adam has asked for suggestions to be sent to firstname.lastname@example.org by 5.00 pm on Friday 27 February 2015, so you still have a couple of days to get your suggestions to him.
Here are my three nominations. In line with my own areas of interest, I have limited myself to decisions by UK courts, and have focussed on cases that relate to the protective mechanisms found in the Human Rights Act and the way in which they interact with our domestic law and constitution. I have also approached the matter from my perspective as a teacher, and have thought about the cases I would want to use in order to convey to my students fundamental matters about human-rights adjudication in the UK. I am not suggesting that the three cases I have nominated are the top three cases. I do, however, think that they should form part of the #50cases, not least because — in different ways — each has had a significant effect on the development of the law in this area.
The Belmarsh Prison case
This case would surely be in anyone’s top 50. Protestations that the government knows best when it comes to national security notwithstanding, the House of Lords held that post-9/11 legislation sanctioning detention without trial of foreign terror suspects was contrary to the ECHR and not justified by reference to a “public emergency”. As well as showing a (perhaps) surprising level of judicial assertiveness in a context in which great deference had been the norm, Belmarsh eloquently illustrates the counter-majoritarian potential of human-rights law, the sacrifice of an unpopular minority’s rights having been waved through by a complacent Parliament. It also showcases the bite that judicial review can have under the Human Rights Act: although the Law Lords were assiduous in pointing out that it was for Parliament to decide what, if anything, to do in response to the declaration of incompatibility they issued, politicians’ awareness of the fact that a binding judgment in Strasbourg was likely to be around the corner doubtless influenced the decision to repeal the offending provisions. (Whether the replacement legislation was much better is a distinct question, and one for another day.) For more information about Belmarsh, see this series of short videos that I recorded for the Cambridge HE+ Project.
The Daly case
This is perhaps a less obvious choice than Belmarsh. It might be thought to warrant inclusion as very early decision in which the House of Lords cut its teeth in the matter of HRA adjudication. However, my reason for proposing Daly is somewhat different. Although often seen as a formative HRA case, Daly is in fact primarily a case that concerns the protection of a common-law constitutional right (to legal professional privilege). This makes Daly significant for two reasons. First, although it is a signal early endorsement of proportionality as a judicial-review tool available to UK courts in non-EU cases, it is striking, if sometimes overlooked, that the House of Lords adopted such an approach principally in relation to a common-law right. This suggests that Daly should not be understood as evidence of the HRA having worked constitutional magic by ushering in an approach to judicial review that, only a decade earlier in Brind, the House of Lords had regarded as constitutionally subversive. Rather, it indicates that proportionality has the potential to operate as a ground of review at common law, the HRA having served, at most, to unlock the common law’s potential in this regard. Second, Daly highlights the capacity of the common law in a further respect. Lord Cooke explained that “some rights are inherent and fundamental to democratic civilised society”, and that “Conventions, constitutions, bills of rights and the like respond by recognising rather than creating them”. In this regard, Daly blazed a trail that the Supreme Court — by placing renewed emphasis on the common law as a repository of fundamental rights and values — is now pursuing. That trail will prove highly significant if, as is now conceivable, the HRA is repealed and the ECHR withdrawn from.
The Ghaidan case
My final choice, Ghaidan, deserves a place in the list of 50 cases because it serves as a graphic illustration of the potential potency of a “merely” interpretative approach to human-rights protection. As is well known, the House of Lords in Ghaidan took provisions in the Rent Act which appeared to extend protection only to opposite-sex couples, and read them such that their protective effect extended to same-sex couples. As well as demonstrating the potential of the HRA as an instrument for securing equality, Ghaidan evidences the considerable extent to which fundamental rights can be protected by means of statutory construction. Of course, however far the courts are prepared to go in terms of interpretation, if the system is a genuinely interpretative one then it must be possible for Parliament to re-enact the relevant provision in terms clear enough to defy rights-compatible interpretation. Doing so, however, may involve a considerable political cost. In this way, Ghaidan, as a leading example of an interpretative approach to the protection of rights, illustrates the way in which an interpretative system — whether applied to a bill of rights or to common-law rights — harnesses the relationship between legal and political modes of constitutionalism. The interpretative model does not give judges the final say, but it places the executive and legislature under a heavy political burden of justifying why legislation that has been judicially construed so as to be consistent with the relevant right should be legislatively rendered inconsistent. The courts’ construction of legislation by reference to legal standards thus sounds also, and ultimately, in the political realm.