Editors: Stephen Grosz, Jack Beatson QC, Peter Duffy QC
Publisher: Sweet & Maxwell
Price: £75
As the date that the Human Rights Act (HRA) comes fully into force (2 October, 2000) approaches, the legal atmosphere becomes ever more frenetic. All around the country, judges are being trained by the Judicial Studies Board, practitioners of every legal denomination are being bombarded with training courses and the literature is never ending. All lawyers should be aware of the basic structure of the convention and the varying significance of the articles. This book clearly sets out the rights in a commentary that succinctly includes the relevant case law.
However, the next question lawyers will have to face is the impact of the convention on judicial decision-making, especially in the context of judicial review and the exercise of discretion. The doctrine of ‘margin of appreciation’ is often quoted as being the means whereby the European Court allows local courts a wide latitude on questions of local cultural, moral and social policies on the basis of their expertise and closeness to the subject matters. But this margin of appreciation is an international doctrine that should not be used by our courts as a way of keeping a hands-off approach to decision making.
At the heart of the debate is whether the old Wednesbury principle of review will apply or whether a convention-based approach calls for a complete rethink. In other words, the test will cease to be whether the decision was so perverse that no reasonable person could have taken it. The decision will have to be justified as being lawful in convention terms, that it is intended to pursue a legitimate aim, is non-discriminatory and is necessary in a democratic society. This is all about proportionality and its role in decision making. The book helpfully examines how and where the HRA will impact and, in particular, in the most likely field of litigation: judicial review.
The burning question is whether, in the absence of Article 13 (the right to an effective remedy) being included in the HRA (because the drafters intended that the Act itself would provide the full range of remedies), the current basis of judicial review can stand. From now on the reviewing court is arguably entitled to not only review the way that the decision was made but also the quality of its substance. The book carefully steers the reader through the concepts of proportionality and the way the margin of appreciation will impact on domestic decision-making. These chapters are excellent and give the book a special quality.
The European jurisprudence is reached through the common law and, while some of the language seems alien, lawyers will soon realise that the right result can still be reached through the application of the convention principles. This book makes that process all the more intelligible.
Nicholas Paul is a barrister at Doughty Street Chambers
