LECTURE THREE

FORMULA ONE CONTINUED

EUROPEAN CONVENTION; INTERNATIONAL LAW; DELEGATED LEGISLATION



The European Convention of Human Rights and Fundamental Freedoms was signed in Rome in 1950 and ratified by the United Kingdom in 1951. It came into effect amongst these states which had ratified it in 1953. The Convention is a treaty under international law and its authority derives only from the consent of the states who are parties to it.



The Convention seeks to protect ceratin named basic human rights such as a right to life (Art 2); freedom from torture, or inhumane or degrading treatment (Art 3); freedom from slavery (Art 4); the right to liberty (Art 5); the right to a fair trial (Art 6); the prohibition of retrospective criminal liability (Art 7); the right to respect for an individual's private and family life (Art 8); freedom of thought, conscience and religion (Art 9); freedom of expression (Art 10); freedom of Association (Art 11) the right to marry and found a family (Art 12).



Even if the Convention was already part of our law which, despite the dicta of Lord Denning and Lord Scarman, it is not, it would, perhaps, not be so effective a protection as is sometimes thought because many of these rights, freedoms, prohibitions and protections are qualified to allow such "interference as in accordance with law" and is "necessary in a democratic society in the interests of national security, public safety or economic well-being, the prevention of crime or disorder, the protection of health and morals", etc.



Of course to allow such interference "as is in accordance with law" full stop would fail to establish any test for legislation because any legislative interference will, by definition, interfere with the defined rights. That requirement, on its own, can be understood as supportive of the Rule of Law but it dos not seriously challenge the Sovereignty of Parliament. However it is important to treat the "and" and a very strong conjunction rather than as any kind of "or" i.e. disjunction. Thus, to conform with the Convention, a constraint on or restriction of freedom must not only be "in accordance with law" but also "necessary in a democratic society ..." This additional requirement could constitute a restriction on the unlimited legislative authority of Parliament but clearly, exactly what is "necessary in a democratic society" is a highly contested matter. For example, both the means and the ends are open to argument. The protection of "health or morals" or the "prevention of crime or disorder" are clearly objectives which a government may , perhaps must pursue but there is much debate about the meaning and scope of such aspirations and debate, too, about how best to realise such ideals. The question is: How far may freedom be restricted in order to achieve such objectives. The standard answer is the "minimum necessary" but that, too, obvious calls judgment into play and, like our watches, though none go exactly the same, we each trust our own. The point is that these clauses provided a very wide basis for the justification of legislation that might appear prima facie suspect under the Convention. Consequently, some of the protections appear to be rather weak. That said, such weak protection, might well be better than no protection at all.



The Convention has been extended by a series of Protocols:-

1st - right to peaceful enjoyment of possessions

2nd - right of parents to have their children educated in accordance with their religious and philosophical beliefs

3rd - right to take part in free elections by secret ballot



4th - guarantees freedom of movement within a state and freedom to leave any country: it precludes a state from expelling its own nationals. This fourth protocol was not been ratified by the United Kingdom because under out immigration laws not all citizens have the right to enter the United Kingdom.



Each state who is party to the convention must so arrange its affairs that all within its jurisdiction enjoy the rights declared and by Art 13 "shall have an effective remedy notwithstanding that the violation has been committed by persons acting in an official capacity". Clearly there is an international obligation. What is less clear is whether a state must incorporate the Convention into its domestic law. Several states, e.g. France, Germany, and Italy have done so. Other states, including the UK have not, the primary argument having been that human rights are adequately protected without such incorporation.



That view is not shared by Amnesty International, in a 1991 report, United Kingdom: Human Rights Concerns [The Times, June 8, 1991]. This report claims that against a whole range of benchmarks, from the treatment of terrorist suspects and trial procedures through to the handling of asylum applications, human rights in Britain are under threat. The report accuses Ministers of wilfully and persistently failing even to address human rights concerns. I quote from the report: "The issues of concern are of such gravity as to seriously undermine confidence in human rights safeguards in the United Kingdom". Concerns include the alleged "shoot-to-kill" policies adopted by security forces in Northern Ireland (RUC) and beyond (Gibraltar - SAS) and mounting public disquiet about the effectiveness and probity of the criminal justice system. The report confidently asserts that there can be no doubt that many suspected terrorists held by the Royal Ulster Constabulary have been ill-treated, although cases confirmed by the courts represent only the tip of the iceberg.



Certainly the United Kingdom has been the state most frequently appearing before the European Court of Human rights and the many cases involving the United Kingdom do suggest that the official position up to the change in government in1997, that human rights are adequately protected already is altogether too complacent. Some of the issues adjudicated include, the right of convicted prisoners in English prisons to have access to lawyers (Golder's case); the Government's refusal to admit East African Asians though they has British passports; somewhat inevitably, internment and interrogative procedures in Northern Ireland; the refusal of entry permits to scientologists; birching in the Isle of Man; and the celebrated Thalidomide decision wherein the House of Lords refused the Sunday Times permission to publish articles on the issue because of pending litigation involving the Distillers Company. The decision of the European Court, five years later, being that our law of contempt, as measured by the Convention was not satisfactory. This decision led in turn to the passing of the Contempt of Court Act, 1981, but one may question, in the light of a later decision of the House of Lords (Lords Diplock, Elwyn-Jones, Scarman, Keith and Brandon) in A G v English, the extent to which any significant change actually occurred.



The prosecution of the editor of the Daily Mail for contempt of court arose out of the publication in his newspaper, two days after the start of the trial at Leicester Crown Court of Dr Arthus on a charge of murdering a three-day old mongoloid baby boy, of an address that Mr Malcolm Muggeridge proposed to give in support of a physically handicapped Pro-Life candidate at a forthcoming by-election in Croydon. This article, though it expressed strong views about euthanasia and abortion made no reference whatsoever to Dr Arthur's trial. The issues for the House of Lords was whether under section 2(2) of the Contempt of Court Act, 1981 the article created a substantial risk that the course of justice in the proceedings in question would be seriously impeded or prejudiced and thereby constituted contempt and whether the editor of the Daily Mail could establish under section 5 that the publication was made as part of a discussion of a matter of general public interest, was made in good faith, , and that any risk of impediment of prejudice that the article created to the trial of Dr Arthur was merely incidental to the discussion and that therefore the article did not constitute a contempt of court under the strict liability rule. The House of Lords held the article did create a substantial risk that the course of justice would be seriously prejudiced but it did not constitute contempt because it was made in goof faith on a matter of general public interest and the risk was merely incidental to the discussion of the matter with which the article dealt.



Of course it is easy to agree with Lord Diplock that "Trial by newspaper or ... trial by the media is not to be permitted in this country" and that no publication should be allowed to affect the outcome of any judicial proceedings. But the application of this principle to the facts of the case in hand is less easy to accept. How could the article in question prejudice

the jury in Dr Arthur's case given that the article did not expressly or by implication refer to the trial? Moreover section 2(2) requires a substantial risk of serious prejudice. The section was intended to remove or narrow the "prejudgment" test in the Sunday Times case. There it was held that anything in the nature of a prejudgment constituted contempt and it was also intended to relax the law so that in order to constitute contempt, a publication had to create a real risk as opposed to a remote possibility of prejudice. The Divisional Court thought this difference purely semantic. It would now appear that the words "a substantial risk that the course of justice in the proceedings will be seriously impeded or prejudiced" means "a real risk as opposed to a remote possibility of prejudice". In other words on this particular point the law now appears to be exactly the same as it was before the enactment of the legislation.



The article in this case was "in nearly all respects the antithesis of the article which his House held to be a contempt of court in Attorney-General v Times Newpapers Ltd" (L Diplock). In that case the whole subject of the article was the pending civil trial and the whole purpose was to put pressure on Distillers. So the conclusion is that bona fide discussion on a matter of general public interest is permissible and will not be contempt if it merely incidentally touches upon contemporaneous legal proceedings, but discussion is not permissible and will be contempt if it attempts to comment on those proceedings. The Act was specifically designed in response to the judgment of the European Court of Human Rights in the Thalidomide case that English Law as it then stood infringed ECHR. That case held that the restriction on publication of articles commenting on pending proceeding was too wide. The new legislation ought too have brought English Law into line with the convention as interpreted by ECHR. It was intended to do so. However on this specific point the legislation does not achieve its purpose because the House of Lords reached an interpretation consistent with the prior existing law. This case is double edged: against it is the fact that it appears to reinstate the old law under the guise of interpretation and thereby sustain the prohibition on publishing any comment on pending litigation. In its favour is the fact that it gives a liberal interpretation to the section 5 defence. (New Law Journal July 22, 1982, pp 693-694). [legitimate state purposes - minimum means necessary; delay - circularity - get it wrong again]



A further weakness in the enforcement procedures is that states have to recognise the right of individual petition and although the United Kingdom has done so, the right of individual petition is contingent upon exhausting domestic remedies - which mean exhausting domestic procedures - and thus an aggrieved individual will have to proceed through all the appropriate domestic courts - including appellate courts - with all the consequent expense and delay before any attempt can be made at vindication in the European Court of Human Rights.



Despite its shortcomings, some regard the European Convention as a better protection of human rights than anything currently operative in the United Kingdom and there have been periodic attempts to incorporate it directly into our law (e.g. the ill-fated Human Rights Bill of 1986). Its chances of being incorporated depend upon its being acceptable to Government and being supported in the Commons. But it is by no means clear that the Conservative Government has any enthusiasm for such reform. [Hailsham-Mackay - dinner]. Clearly incorporation would at least overcome some of the procedural difficulties and delays and would, perhaps, give the courts something authoritative to hang their arguments as a basis for assessing the validity of Acts of Parliament.



Despite the powerful dicta of Lord Scarman and Lord Denning, cited at the end of my second lecture, the Convention is not part of our domestic law. How, then, did such able, eminent, and influential judges come to express such apparently extravagant opinions ? The starting point is with an important maxim of statutory interpretation, namely, that it may be assumed that Parliament does nor intend to enact legislation contravening treaty obligations of the United Kingdom and only express and unmistakable words to that effect will be applied by the courts. This maxim is obviously narrower than the dicta already cited. It applies only where a statute is ambiguous and of the two possible interpretations one is, and the other is not, consistent with a treaty obligation. In such circumstances the courts will - and should - adopt the interpretation which is consistent with a treaty obligation.



The point is very well explained by Lord Reid, speaking for the whole House, in R v Miah [1974] 1 WLR 683, 694, a case which raised the question whether legislation relating to immigration was intended to be retrospective in effect. He said, referring to Art 7, "... it is hardly credible than any Government Department would promote, or Parliament would pass, retrospective criminal legislation"



Let us return to the dicta of Lord Denning in Birdi and Lord Scarman in Pan-American Airways. The first case which next attracts attention is R v Home Secretary ex parte Bhajan Singh [1976] QB 198, 207-208, where Lord Denning said, "What is the position of the Convention in our English Law ? I would not depart in the least from what I said in the recent case of Birdi ... The Court can and should take the Convention into account. They should take it into account wherever interpreting a statute which affects the rights and liberties of the individual. It is to be assumed that the Crown, in taking part in legislation, would do nothing which is in conflict with treaties. So the Court should now construe the Immigration Act, 1971 so as to be in conformity with a convention and not against it ... I would, however, like to correct one sentence in my judgment in Birdi's case. I said that if an Act of Parliament did not conform to the convention, I might be inclined to hold that it was invalid. That was a very tentative statement, but it went too far. There are many cases in which it has been said as plainly as could be, that a treaty does not become part of our law except and insofar as it is made so by Parliament. If an Act of Parliament contains any provisions contrary to the Convention, the Act of Parliament must prevail. But I hope that no Act of Parliament will ever be contrary to the Convention. So the point should not arise. (Pious hope !). I would repeat that when anyone is considering a problem concerning human rights, we should seek to solve it in the light of the Convention and in conformity with it"



Lord Denning then prays Lord Reid's dicta in R v Miah in aid and continues, "So I will say that it is hardly credible, that any Government Department or Parliament will do anything contrary to Art. 12 ... In addition, I would add that the immigration officers and the Secretary of State, in exercising their duties ought to bear in mind the principles stated in the Convention. they ought, consciously or subconsciously, to have ragard to the principles in it".



The next relevant case in this discussion is R v Chief Immigration Officer, es parte Salamat Bibi [1976] 3 All E R 843, 847-848. Here Lord Denning observes, "We have, again, been invited to consider how far this Convention is part of the law of this country. Counsel for the applicant drew our attention to some declarations which have been made by the Government of the United Kingdom. This country has declared, in accordance with Art 25 of the Convention, that the European Commission is competent to receive petitions from pursuers who complain that the rights set forth in the Convention have been violated. If a person has exhausted all remedies available to him in England, he can apply to the European Commission so as to get a remedy there. Counsel for the applicant submits that, in consequence of those declarations, every person is given by Art 8 a right which the courts must recognise and enforce. I cannot accept that submission..."



The position as I understand it is that if there is any ambiguity in our statutes or uncertainty in our law, then these courts can look to the convention as an aid to clear up the ambiguity and uncertainty, seeking always to bring them into harmony with it. Furthermore, when Parliament is enacting a statute, or the Secretary of State is framing rules, the court will assume that they had regard to the provisions of the Convention and intended to make the enactment accord with the Convention, and will interpret them accordingly. But I would disspuste altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made so by Parliament.



I desire, however, to amend one of the statements I made in Bhajan Singh. I said there that the immigration officer ought to bear in mind the principles stated in the Convention. I think that would be asking too much of the immigration officers. They cannot be expected to know, or apply the Convention. They must go simply by the immigration rules laid down by the secretary of state and not by convention. The convention is drafted in a style very different from the way we are used to in legislation. It contains wide general statements of principle. They are apt to lead to much difficulty in application because they give rise to uncertainty. They are not the sort of thing that we can easily digest. Article 8 is an example. It is so wide as to be incapable of practical application. So it is much better for us to stick to our own statutes and principles and only look to the convention in cases of doubt".



Roskill L J added his views about the European Convention of Human Rights, "Like Lord Denning MR I am of the view that this convention is not part of the law of England... a treaty does not become part of the municipal law of this country unless and until it is subject of legislation in the ordinary way. That is axiomatic. It has been laid down for many years. What is said is that the immigration officers should, in exercising their powers under the rules, which I have already said are part of the law of this country, take into account the provisions of the Convention, which is not. With respect, I am unable to agree".



Roskill L J then turned his attention to what Lord Scarman had said: "In R v Secretary of State for home Affairs, ex parte Phansopkar [1975] 3 All E R 497 and again in Pan-American World Airways Inc v Dept of Trade [1976] 1 Lloyd's Reports 257 .. "Scarman L J ... went, if I may most respectfullyl say so, rather [too far]. In the Phansopkar case, Scarman LJ said, after reference to Magna Carts: 'This hallowed principle of our law is now reinforced by the European Convention for the protection of Human Rights, 1950 to which it is now the duty of our public authorities in administering the law, including the Immigration Act, 1971, and of our courts in interpreting and applying the law, including the Act, to have regard...' With respect, that dictum was obiter. As i venture to think, it is somewhat too wide and may call for reconsideration hereafter"... Lord Roskill then cites Scarman's dicta in the Pan-am case, and continues, "There again, with great respect, I think the matter is too widely expressed. Lord Denning MR has already said that perhaps he went somewhat too far in ... Singh, I most respectfully agree with that view".



So, although the European Convention may provide some guidance in the interpretation of statutes , English judges - including the most radical devotees of judicial review and a Bill of Rights for Britain - shied away from regarding the Convention as already being an established legal basis for pronouncing upon the validity of Acts of Parliament.



Under the Human Rights Act 1998, those proposing legislation as well as later the courts will have a duty to asses the legislation for compliance with the convention. Non compliance can arise in surprising ways. Thus rules about custody, surveillance,bugging in police stations, and duties of disclosure may give rise to challenge: Confidentiality; Legal representation; Right to fair trial as in S v Switzerland (1992) 14 E.H.R.R. 670. S was arrested and charged, inter alia, with explosives offences and remanded in custody. Almost all S's communications with his lawyer were under surveillance or intercepted by the Swiss police. He claimed that his inability to consult his lawyer out of the hearing of third parties and in confidence infringed his right to defend himself by way of legal assistance contrary to Art.6(3) and prevented him from speedily being able to challenge the lawfulness of his detention within the European Convention on Human Rights 1950 s.5(4) . Held, that (1) Art.6(3)(c) had been violated; being able to consult a lawyer of one's choice out of the hearing of others was a basic requirement of a fair trial. {What Bill 1997 give or take a year was in NLJ on this point ?)

Also Osman v United Kingdom November 5 (Case No 87/1997/871/1083) where the European Court of Human Rights (Judgment October 28, 1998) held that the effect of police immunity from action sounding in tort was disproportionate; and that in turn may give rise to a reconsideration of the barristers' immunity. Patel v Yazdani an unreported Court of Appeal 22 May 1996 (available on Lexis) is, I understand, now pending for the attention of the ECHR.



International Law

And this is wholly consistent with the general view that treaties are not part of our law unless and until incorporated by statute, e.g .Cheney v Conn [1968] 1 All E R 779, concerning the Geneva Convention and the Act of Parliament implementing it, in which an assessment of income tax was challenged on the grounds that some of the monies raised were for nuclear armaments, contrary to the convention and the Act. It was held that the unambiguous provisions of a statute must be followed even if they are contrary to international law. Ungoed-Thomas J at p 782 emphasised the impossibility of a statute being "unlawful": "What the statute itself enacts cannot be unlawful, because what the statute says and provides is itself the law, and the highest form of law that is known to this country".



Clearly, therefore, an international treaty provides no legally valid criteria for assessing the validity of an Act of Parliament. And the same is said to be true of general international law. Perhaps a word of explanation will help. International law is usually divided into two parts - particular international law and general international law. The former is created primarily by treaties and binds only the parties thereto; the latter is primarily customary and is regarded as binding on all states whether or not they have consented to it. This is obnvious enough as regards rules about the coming into existence of a new state at international law which state, since it was a legal non-entity prior to its existence could not be said to consent to the rules defining the existence of states. Again, the rule that promises, or treaties, are to be kept - pacta sunt servanda - must logically precedent treaties themselves and derive its existence from general international law. The question therefore arises whether the legislative supremacy of parliament is limited by general as opposed to particular international law. Two theories of the relation of state law to international law are widely canvassed in the theoretical literature.

(1) Monism - the doctrine of one law - that international law and state law form one hierarchical unity, rules of international law, perhaps taking precedence over national laws in the event of conflict. [NB Primacy of national cf primacy of international law]

(2) Dualism - the doctrine of two (or more) laws - that national and international law are wholly independent and separate systems and that conflicts between them arte simply a fact of life which do not redound upon the validity of national law.



In the main English judges have adopted a dualist approach and hold that even general international law does not limit the sovereignty of parliament. On such a view the content of general international law is relevant only as a basis for interpretation on the presumption that parliament would not intend to legislate contrary to the norms of general international law and only very clear, express words to that effect will be regarded by the courts as overthrowing the presumption.

Mortensen v Peters (1906) 8 F (J) 93 is widely cited in this context. The herring Fisheries (Scotland) Act 1889 authorised a fisheries board to make bye-laws prohibiting certain types of trawling within the Moray Firth, an area which included some seas outwith British territorial waters. A Danish captain was subsequently convicted in a Scottish Court. The High Court of Justiciary held that its function was restricted to interpreting the Act and the bye-laws made under it and that Parliament clearly had intended to legislate for the conduct of all persons within the Moray Firth, irrespective of the position at general international law.



So, in conclusion as to the first formulation, there is generally little authority for the proposition that courts can question the validity of an Act of Parliament, and much authority that they cannot. Such little authority as there is can be subsumed under one of the following three issues:



(1) Human rights, European Convention, International Law (and now a resurgence of a notion of a" common law bill of rights" and a judicial idea of "co-sovereignty eg Cooke, Kirby, Brown-Wilkinson, Laws, Sedley, eg R v R [1991] Derbyshire v Times [1993] AC 534

(2) Was Parliament Born Unfree ? Does the Act of Union 1707 bear the character of "fundamental law" analogous to a constitution which imposes legal limitations upon a legislature ?

(3) Ancient authorities, prior to 1871, reflecting the theocratic universe of the mediaeval synthesis wherein "God's Laws" were pre-eminent over "man's law" to the extent that legislation contrary to natural law was invalid. This doctrine is captured in the Latin maxim, Lex injusta non est lex, "An unjust law is not a law". Thus Blackstone could write in his Commentaries that the law of nature being coeval with mankind and dictated by God Himself, is superior in obligation to any other. It is universally binding and no human laws are of any validity if contrary to it. But in historical terms the supremacy of parliament over the divinely empowered monarch becomes increasingly clear from the time of the revolution of 1688, so much so that John Austin could write in his Province of Jurisprudence Determined (1832) as follows: "Now to say that human laws which conflict with the Divine Law are not binding, that is to say, are not laws, is to talk stark nonsense. The most pernicious laws, and therefore those which are most opposed to the will of God , have been and are continually enforced as laws by judicial tribunals. Suppose an act innocuous, or positively beneficial be prohibited by the sovereign under penalty of death: if I commit this act, I shall be tried and condemned, and if I object to the sentence, that it is contrary to the aw of God, who has commanded that human legislators shall not prohibit acts which have no evil consequences [Utility the Index to God's Will !] , the Courts of Justice will demonstrate the inconclusiveness of my reasoning by hanging me up in pursuance of the law of which I have impugned the validity. An exception, demurrer or pleas, founded on the law of God was never heard in a Court of Justice from the creation of the world down to the present moment". [I have here a ref to Wade CLJ 179 -197, 187 what year?] But Austin is wrong in what he hers asserts so vehemently. Courts and individuals do take account of the wider laws of humanity, and of justice as they perceive it at least sometimes in interpreting and applying legislation, eg [Old Donald (photocopied, 1997)}



Still, it is only in extreme circumstances that the courts are ever likely to consider the validity of an Act of Parliament and then they are most unlikely to hold other than that the legislation is valid. SO if the courts themselves do not introduce such a rule, namely that the courts could hold acts of parliament invalid, could such a rule be introduced by parliament itself? Those who deny this deploy two arguments (which anticipate a discussion of formula 4):

1. The rule that the courts cannot review Parliament is a fundamental rule of the common law which parliament cannot alter. After all, as they point out, Parliament could not, merely by passing an act, declare itself to be sovereign: sovereignty must be attributed to parliament by some higher rule which defines parliament and is therefore logically and authoritatively prior to parliament. But the impact of this argument is that there is at least one rule, deriving from the common law, which parliament cannot alter. That is a strange way to insist upon parliamentary sovereignty. And, of course, if there is one such common law rule immune from Parliamentary change why should there not be others ? (Formula 4)

2. That parliament could not introduce such a rule because that would be to attempt to bind its successors (Formula 5).



Secondary Legislation

One further point of a general nature might be considered together with the first formulation, namely the pre-eminence of parliamentary legislation in comparison with what is called subordinate or delegated legislation . The point is that courts may assess the validity of such subordinate legislation whereas, as we have concluded, they cannot so treat parliamentary legislation. Examples are conveniently listed in Wade and Phillips, Bradley ed.: these include:

a resolution of the house of commons - Stockdale v Hansard (1839) 9 A & E 1

a proclamation issued by the Crown under prerogative powers; Case of Proclamation (1606) 2 St Tr 371

a minister's subordinate legislation under an act of parliament (even though it has been approved by resolution of each house) - Hoffman La Roche v Sec of State for Trade and Industry [1975] AC 295

bye-laws made by a public corporation or local authority; Kruse v Johhson [1898] 2 QB 91.



By way of illustration I refer the asylum seekers cases in general and to R v Secretary of State for Social Security Ex parte Joint Council for the Welfare of Immigrants [1996] 4 All ER 385 in particular. Regulations which removed income benefit entitlement from asylum seekers who sought asylum otherwise than on arrival in the United Kingdom and those whose claims for asylum had been decided adversely by the Home secretary and were awaiting appeal were unlawful because they contravened the Asylum and Immigration Appeals Act 1993 by drastically interfering with the rights of asylum seekers under that Act. Simon Brown LJ said that in recent years the number of persons seeking asylum in the UK had risen both in absolute terms and in relation to the rest of Western Europe. The time taken to resolve their claims was too long and the cost to the taxpayer was enormous. To speed up the process of decision-making and to reduce the expenditure on benefits, the Secretary of State for Social

Security, pursuant to powers conferred on him by the Social Security (Contributions and Benefits) Act 1992, made the 1996 Regulations which came into force on February 5, 1996.



What in essence the regulations did was to remove all entitlement to income-related benefit from two particular categories of asylum-seeker: those who submitted their claims for asylum otherwise than immediately on arrival in the UK and those whose claims had been rejected by the Home Secretary but who then appealed to the independent appellate authorities. The secretary of state's intention was to discourage economic migrants from making and pursuing asylum claims. That would in turn speed up the system to the advantage of genuine refugees and was expected to save the taxpayer some 200 million a year.



No one could dispute the desirability of those aims. There was, however, a problem. A significant number of genuine asylum seekers now found themselves faced with a bleak choice: whether to remain in the UK destitute and homeless until their claims were finally determined or whether instead to abandon their claims and return to face the very persecution they had fled. The applicants' case was in essence that the regulations were in the result

ultra vires. The enabling power, widely drawn though it was, could not, they submitted, have been intended to permit that degree of interference with statutory rights under the 1993 Act and/or fundamental human rights. The argument failed before the Divisional Court.



The present challenge, his Lordship acknowledged, involved carrying the principle in R v Secretary of State for the Home Department, Ex parte Leach ([1994] QB 198) a step further and, that, moreover, in a field where Parliament had been closely involved in the making of the impugned regulations. His Lordship had nevertheless concluded that it was a step the court should take. Parliamentary sovereignty was not in question: the regulations were only subordinate legislation. "... the regulations contemplated for some a life so destitute that

no civilised nation could tolerate it. So basic were the human rights at issue that it could not be necessary to resort to the Convention for the Protection of Human Rights and Fundamental Freedoms (1953) (Cmd 8969) to take note of their violation. ... "The regulations now in force were so uncompromisingly draconian in effect that they must be ultra vires. Parliament could not have intended a significant number of genuine asylum seekers to be impaled on the horns of so intolerable a dilemma: the need either to abandon their claims to

refugee status or alternatively to maintain them as best they could but in a state of utter destitution. Primary legislation alone could, in his Lordship's judgment, achieve that sorry state of affairs."



But after the coming into effect of the Human Rights Act, 1998 it is open to question whether even primary legislation could achieve that effect. First draft legislation must either be certificated as complying or bear a warning that it does not. Secondly court are required under section 3 to interpret legislation if at all possible so as to comply. If all that fails courts may declare an act inconsistent with the convention and then the government has a duty to amend it by a fast track procedure. Even without all that trappings of the Human Rights Act, the government found when it did try to implement primary legislation along the lines of the Regulations, Parliament would not buy the entire package and some compromise was required in the Asylum and Immigration Act 1996.