Parl Sov 2001 Afternote to Lectures.
In my lectures I drew attention to R v Lambert (CA 31/7/00), R v Offen (CA 9/11/00), and Brown v Procurator Fiscal (PC 5/12/00) as illustrating and confirming the thesis that judges will take the interpretive route (s 3 HRA 1998) in preference to the incompatibility route (s 4 HRA 1998)
However the first case of a declaration of incompatibility under s.4 suggests that perhaps that thesis may be overly cautious and the "Drybones" analogy from Canadian constitutional history1960-1982 perhaps inapt.
R(on the application of Holding and Barnes plc) v Secretary of State for the Environment, Transport and the Regions and other applications (DC 13/12/00) reported in New Law Journal 2/2/01 pp 135-6 and commented on at pp 125-6 will excite constitutional lawyers because it holds that the processes by which the Secretary of State reaches decisions under ss 77, 78, and 79 of the Town and Country Planing Act 1990, s 1 of the Transport and Works Act 1992 and provisions of the Highways Act 1980 and the Acquisition of Land Act 1981 are incompatible with the right to a fair hearing under Art 6(1) of the Convention.
This startling case is on its way, by leap-frog procedure, on appeal to the House of Lords and may be heard before the end of February 2001. Meanwhile a large number of planning appeals (to the SSETR) have been suspended (see New Law Journal 2/2/01 p 118). The full text of this significant case is accessible via Lawtel.