By S Nash and M Furse
Publisher: Jordan Publishing
Price: £40
This book is useful to novices and to those who are familiar with the Strasbourg jurisprudence, but are looking for something to jog their memory.
In terms of references, it is one of the other benefits of this book that it provides the reader not only with a summary of the case itself, but also with its reference, usually in the European Human Rights Reports (EHRR), where the whole case (both Commission and Court) is reported verbatim.
If there is any criticism of this book, it is that the choice of cases referred to is sometimes surprising and several cases, which I would have considered essential, are missing or referred to in unexpected places.
But the structure of the book provides a good introduction to the Convention and its case law under various subject headings. It contains (in Part I) a short chapter introducing the European Court of Human Rights (ECHR) followed by a short, article-by-article summary of the Convention case law. This is followed by the main body of the book, comprising summaries of important cases dealing with specific issues. The first of these chapters deals with ‘general principles of the Convention and guarantees’, including some of the cases on the ‘margin of appreciation’.
For a book designed to be used in the context of the Human Rights Act 1998 (HRA), it is slightly disappointing that no reference appears to have been made to the now-accepted view that the concept of ‘margin of appreciation’ has no role to play in the application of the HRA by the domestic courts. Lord Hope of Craighead described it in his judgment in R v DPP ex parte Kebilene as an “integral part of the supervisory jurisdiction, which is exercised over state conduct by the international court… This technique is not available to the national courts when they are considering Convention issues arising within their own countries.”
The third chapter of Part I is dedicated to the Legal Process in general, which under the heading Legal Aid, makes no reference to essential cases on civil legal aid such as Airey v Ireland 2 EHRR 305 or Aerts v Belgium (2000) 29 EHRR 50. There is also no reference to the right to a public hearing and public judgment, despite the fact that the Court held in Scarth v United Kingdom (1999) 27 EHRR CD 37 that the old County Court Rules, which required small claims arbitrations to be held in private, constituted a violation of Article 6(1).
No reference is made to the Commission decision in McGonnell v United Kingdom (1998) 25 EHRR CD 84 concerning the independence of the Bailiff of Guernsey who is the president of the Royal Court, presides over the island’s legislature and the head of the island’s administration (the Court found a violation of Article 6(1) on 8 February, 2000).
The remaining parts of the book deal with the Convention case law on a subject basis (e.g. criminal law; employment law and discrimination; immigration, deportation and asylum; families, children and gender; and rights of expression). Again, some of the structure and allocation of topics can be surprising – the law relating to family reunion in immigration matters is found not in Immigration, Deportation and Asylum but under Families, Children and Gender.
The final part deals not only with property and commercial law but includes a chapter on the inter-relationship between the ECHR and European Community law, providing summaries of both European Court of Justice and CFI decisions as well as those of the Strasbourg organs. This provides a very useful introduction to an old but under-represented topic. After all, it is through European Community law that today’s practitioners can rely on the ECHR in the English courts without having to wait for the entry into force of the HRA.
Despite the above, however, the book succeeds in its aim: to provide ‘a concise entry point into these cases, or… a useful research tool for those with a specific problem, or… an introduction for those seeking to familiarise themselves with Convention law’. But, as the editors themselves acknowledge, it only provides the starting point – reference will have to be made to more detailed accounts of the substantive rights and freedoms provided by the Convention.
Tim Eicke is a barrister at Essex Court Chambers specialising in European Community and European Human Rights law. He is joint editor of the EHRR and junior counsel in Bayram v United Kingdom.
