Book Review: Frances Butler, Human Rights for the New Millennium

7 Colum. J. Eur. L. 147 (2001)

reviewed by Lisa Gambone. The Hague: Kluwer Law International, 2000. 260 pages.

On October 2, 2000 the Human Rights Act of 1998 (the Act) came into full force in the United Kingdom. The Act constitutes something that the common law tradition of the United Kingdom has lacked for many years – a bill of rights. It is thought that the Act, taking its cues from the European Convention on Human Rights, “will change the fundamental relationship between citizens and the state.” The introduction of a written set of human rights laws poses many difficult questions, ranging from the power of the judiciary to interpret the Act against the various decisions of a sovereign parliament, to how the Act may affect certain areas of law. In Human Rights for the New Millennium, Frances Butler brings together an interesting group of papers and lectures originally created for the British Institute of Human Rights, all of which illuminate various perspectives on how the Human Rights Act will in fact affect the United Kingdom’s laws, government and people.

With contributions from British barristers, academics, members of the public sector and the current Lord Chancellor, this work addresses the issue of the Human Rights Act from multiple perspectives. Although there are different viewpoints, the volume is primarily directed toward legal and governmental scholars and practitioners in the United Kingdom. This book is intended to educate these lawyers and academics about the possibilities and difficulties that may come into existence in the UK once the Human Rights Act becomes law. The topics include the Act’s history, its possible impact on the function of judicial interpretation and the common law, and its theoretical effect on criminal procedure, employment law, family law, and the UK’s international commitments.

The work is intuitively organized, beginning with essays of a general scope and continuing on to those addressing more specific issues. The first two chapters serve as general overviews of the Act and its place in society, touching on the Act’s history, judicial functioning, and possibilities for the future of its interpretation. The second two chapters constitute a more in-depth study of the Human Rights Act itself, describing both the history of various articles and their possible interpretations. Arguably, these two chapters may have been better placed at the very beginning of the work, since they give the reader an introduction to and explanation of the specific meaning of the Act. To one interested in learning about this particular area of law, reading these more Act-specific chapters first may give some helpful insight into the particulars before continuing on to the more general sections. The final four chapters create a more individual analysis of particular areas on which the Act may have an important impact. Finally, the work’s inclusion of full-text versions of both the Human Rights Act and the European Convention on Human Rights is extremely convenient, allowing the reader to refer immediately to the particular articles under discussion.

In the first section, Lord Irvine of Lairg, the current Lord Chancellor, examines the issue of judicial interpretation with regard to human rights. Interpretation is certainly not new to the British judiciary, as Lord Irvine points out; the problem, rather, is that the courts “will be confronted, for the first time, with an instrument that enumerates – in expansive terms which are the universal language of constitutional texts – the fundamental rights of people.” The issue of ambiguity in human rights texts obviously looms large in terms of statutory interpretation, and as Lord Irvine points out, this ambiguity creates a particular problem for the judiciary – to find a medium between stretching the document to its widest, most unreasonable limits and hesitantly applying the Act in a solely literal manner. What will eventually determine this issue, according to Lord Irvine, is “the prevailing conception of the constitutional role of the judiciary.” That is to say, whether the courts fancy themselves the protector of individual rights against the legislature or not. He concludes by basically coming to the straightforward conclusion that the United Kingdom should be on neither end of the spectrum of interpretation, but rather should find some easy point in the middle that neither loses sight of the individual’s rights nor the parliament’s sovereignty.

This ultimate conclusion is both very simple and very optimistic, as the reader finds in stark contrast when reading the second chapter of this work. Conor Gearty, a Professor of Human Rights Law at King’s College, London University, points out that although they both have their merits, “it is quite important not to view the Human Rights Act, incorporating as it does much of the European convention on Human Rights, as a panacea and therefore the be-all and end-all of rights.” The Act should be viewed as a foundation on which to build further conceptualizations of rights, not as the only standard that British officials must meet. Furthermore, Gearty points out various conflicting points with the implementation of the act, not attempting to resolve them in any manner, but merely to bring out the question of statutory conflict within the Act. This leaves the reader rather up in the air as to what the experts think may happen. His predictions for the future of the common law in the UK seem to be pessimistic (though perhaps rightly so), prophesizing categorization of cases based solely on the statutory Articles of the Act, rather than on the basis of a deep history of British common law. The overall attitude of the article is far less optimistic than Lord Irvine’s, summing up that “[i]f we are not careful, we are going to go back to … where the issues being litigated have nothing to do with the substance and everything to do with how the argument is made.”Both articles clearly address the general point of the impact the Act will have on society and make interesting arguments. Even though the editor juxtaposed these two arguments well, neither argument does more than allude to the provisions of the Act itself, leaving the reader guessing about what, in substance, the Act actually entails.

The next section picks up on this ambiguity and familiarizes the reader with some of the specifics of the Human Rights Act. Francesca Klug, a Senior Research Fellow at King’s College, London University School of Law, begins this section by answering some of the basic questions that one might have about the Act itself. For example, she explains that a bill of rights is important for the protection of individual freedoms, the mechanisms written into the Act that allow for continuance of parliamentary sovereignty while ensuring Human Rights compliance, and explains which rights were and were not included in the Act.7 She continues along these lines to create a basic (mostly favorable) outline of what exactly the Human Rights Act is, resulting in a firm understanding of at least a small part of this complicated issue. Gordon Nardell, a practicing barrister specializing in human rights, furthers this explanation with an emphasis on the furtherance of procedure and remedies contained in the Act. His overall purpose is to inform practitioners that they “must keep an eye out to its unstated points of contact with the Convention.” He breaks the Act into three distinct procedural “strands” – a new statutory cause of action (violation of Convention rights by public authority), the issue of statutory interpretation and the role of the judiciary. This article is particularly useful for understanding exactly which Articles in the Act pertain to which issues, something conspicuously absent in the book’s first section. The editor uses these two chapters to clarify the actual content and possible general usage of the Act, though, as argued above, this section may have been more helpful reading before the general discussions in the first section. Overall, however, this section poses many useful questions and hypothetical answers which have direct references to the Human Rights Act and the European Conventions. Ultimately, this section provides the most forthright and useful insights when considering both the Act’s general ramifications and its specific Articles.

Since the Human Rights Act requires that decisions and statutes must ultimately conform to those of the European Convention, specific areas of British law and policy will likely be affected in some way. Ben Emmerson, a practicing barrister with a specialization in human rights and criminal law, focuses on the various points withincriminal proceedings that may be affected by the Act. For example, it will become an allowable defense to “argue that particular offenses breach Convention rights” such that the actual provisions of substantive criminal law may be challenged. The rest of his essay is simply a list of twenty-four aspects of criminal procedure that the Act may challenge when applied to British law as it stands today. This article is useful solely to those specializing in the area of criminal law. In Chapter 6, Sandra Fredman, a Professor of Law at Oxford University, brings forth the interesting problem that many citizens are in fact wary of entrusting their rights to what has in the past proven to be a hostile judiciary.1� She focuses specifically on issues of equality and employment, coming to the ultimate conclusion that the Act will ultimately “patch up” some of the holes of positive rights in labor law, and that equality is essentially only applicable in that the Convention must be “secured without discrimination.”” Where the UK already has extensive sex and race discrimination litigation, the Act will have little effect. She interestingly posits arguments concerning how the Article could apply to family law. For example, she discusses its application in terms of changing the policy disallowing foreign spouses from joining their partners in the UK. She goes on to discuss religion and sexual orientation, and ultimately brings forth many fascinating ways in which these areas could be both advanced and stagnated under the Act. This article is by far the most informative and interesting approach to specificities within the volume.

Jonathan Herring, a Fellow of Law at Exeter College, Oxford University, focuses Chapter 7 on “the approach of the European Convention on Human Rights and the Children Act 1989 in cases where the interests of parents and children clash” and considers how such cases should be considered under the Human Rights Act.’2 Whereas the Convention focuses primarily on protecting the rights of both the parent and the child, in many conflicts leading to no solution, the Children Act focuses on the welfare principle, that is, the judgment takes into consideration the interests of all concerned, but only (with exceptions) as pertaining to the child’s welfare. The author ultimately concludes that the Human Rights Act has brought about a chance to reformulate these principles into a more workable concept of “relationship-based welfare”, a system wherein the rights of both parties are considered, and the court decides what combination is the best for the parent-child relationship. 13 Having read these three chapters, each dealing with its own specific area of the law and human rights, one may think that these topics have been randomly taken up at the possible exclusion of other important issues. Overall, the reader is left to wonder what other issues could be affected by the Act, and exactly what the criteria were for choosing these particular areas.

Chapter 8 turns from “looking at what the European Convention on Human Rights will do for the UK,” and instead “examines the UK’s compliance with its international commitments.” In particular, the Universal Declaration of Human Rights is considered.14 This final essay by Sarah Cooke, Director of the British Institute of Human Rights, is a nice addition to what would otherwise have been a mostly technical section applying the Act to various specific aspects of British law. She describes a trend in human rights issues within the UK, ranging from ratification of the International Criminal Court (ICC) statute to the necessity of ratifying the Convention Against Torture (CAT). Her essay touches on many interesting aspects of International Human Rights. The editor includes her essay to show that although the Human Rights Act is “a major step towards the UK making a serious human rights commitment,” the country needs to stop being selective about which rights it will enforce, and “embrace fully human rights enforcement mechanisms.”‘” This essay fits well as the final chapter, and leaves the reader to question the place of the Human Rights Act in the international sphere, and how the UK can improve its position with regard to human rights.

Overall, Human Rights for the New Millennium is a well-edited and comprehensive discussion of how the UK will react to the introduction of the Human Rights Act on October 2, 2000. The reader is led to an ultimate understanding that changes in the UK’s system are imminent, though the experts consulted in this work would argue to exactly what degree. The reader should note that this book is not intended as merely an introduction to the issue – some degree of specific knowledge about the machinations of the British legal system, as well as some previous knowledge about the Act itself, would be recommended for the reader. However, while specifics are enumerated about certain aspects of English law, other areas are conspicuously absent and not even alluded to, leaving the reader an expert in a few topics, but uninformed about many more. Within the essays themselves, on the other hand, the discussions are comprehensive and quite interesting, and present the reader with multiple viewpoints, illuminating the fact that no one right answer exists when one tries to predict the future. Altogether, the volume fits together sufficiently well, and the reader should be satisfied with a newfound understanding of the history of the Human Rights Act 1998, its implications for the laws of today, and possibilities for the future.