By Michael Smyth
Publisher: Jordans
Price: £60
In the mid 1980s it was said that judicial review was the ‘blue chip’ area for forensic investment. Today, that torch has been passed on to human rights: hence the proliferation of commentaries on the new Act.
Michael Smyth’s work scores so heavily over its competitors because it fills a niche market – the relationship between human rights and commercial activity. Michael Smyth is a partner at Clifford Chance and has been a leading specialist in commercial judicial review for many years. He has represented clients in important commercial public law cases including the intervening third party in the successful Camelot challenge. There are few better qualified to give an exposition of the practical commercial implications of the new legislation.
He fulfils that task extremely well. His approach is thematic rather than a simple trawl through the Articles of the European Convention. Thus, an important and illuminating chapter is devoted to key Convention concepts, which embraces controversial topics, such as proportionality and discrimination. For commercial clients one of the most neglected areas is the relationship between Community law and the European Convention and this is given clear and accessible treatment.
There is also a lengthy and well written Chapter on Article 6 that is the Convention provision most likely to have an impact on business. Other chapters that were particularly interesting from the author’s chosen standpoint were those on privacy and the media. The analysis on the media-friendly section 12 of the HRA is the best that I have seen and Smyth goes on to consider whether, despite the Court of Appeal’s ruling in R v Broadcasting Standards Commission, ex parte BBC, corporations enjoy a general right to privacy.
The test of any practitioner’s work is its value to practitioners. No amount of veneer can compensate for that instinctive ‘feel’ for the problems that the competent but unversed in-house or practising lawyer will come across. I devised a test for rating this book. Having recently had to read through the hundred or so domestic and Strasbourg cases on the civil/criminal divide to ascertain whether disciplinary proceedings are subject to the privilege against self-incrimination, I was interested in the likely response of the Court to the issue rather than in a tedious examination of conflicting authority. Sure enough, Michael Smyth did not shrink from predicting that even in a case involving withdrawal of a licence to trade or practise it was likely that the European Court would “as matters currently stand” judge them not to be criminal. He also stated his sympathy with the contrary argument. On the state of the case law he is right and it is that intuition the practising lawyer needs when advising commercial clients.
This book is a gem. Most commentaries on supposed niche areas have been less successful than the extended, general, scholarly works. This one is an exception. It fizzes with ideas and practical observations. Buy it.
Richard Gordon QC is a barrister at Brick Court Chambers.
