On 4 June, Lady Hale delivered a lively and penetrating speech to the Salford Human Rights Conference regarding the development of human rights law in the UK since the Human Rights Act 1998 came into effect.  The speech has recently become available on the Supreme Court website.

In the speech, Lady Hale identified what she and the judicial assistants and the Supreme Court consider the high and low points in the development of the law and identified four emerging themes of particular importance.

The first of these was the role of the courts in determining the application of human rights, that is the extent to which the courts should show deference to other public authorities.  Lady Hale noted in the early days of the Act the development of judicial scrutiny from “heightened scrutiny Wednesburyin Mahmood to proportionality in Daly, but referred to Lord Steyn’s observation that this fell short of a merits review.

She also noted that where the original decision-maker was itself a judicial body, such as an immigration tribunal, it must be for the courts to decide whether the decisions in question are compatible with Convention rights.

The second theme was the extent to which the domestic courts should get ahead of Strasbourg noting Bingham in Ullah stated that “the duty of national courts is to keep pace with Strasbourg . . . no more, but certainly no less” whereas Lord Bown in Al-Skeini preferred “no less, but certainly no more”.  She noted a number of problems with domestic law remaining in lockstep with that of Strasbourg including that this was not the Parliamentary intention.

But she also identified three examples of where the UK courts had in fact leapt ahead (all high points according to her Judicial Assistants):  Limbuela in respect of the destitution of asylum seekers being contrary to Article 3; Re G in respect of the margin of appreciation to be afforded in respect of discrimination between married and unmarried couples (the arrogation by the courts of the margin of appreciation to themselves rather than to Parliament in this case is a particularly interesting issue); and EM (Lebanon) regarding expulsion of individuals (a mother and daughter) to a country where they would a breach of the Article 8 rights.

She thought that the pattern in these cases was that where the domestic court thought that the claimant would win in Strasbourg, although the issue had not been aired there, they would (perhaps not surprisingly) leap ahead.  If not, they would probably not do so unless the case fell within the margin of appreciation for the member state, in which case they would feel free to act.

The third theme was question of interpreting legislation compatibly with the Convention, noting the contortions of language the courts had been prepared to tolerate for example in Ghaidan where the House of Lords thought “husband and wife” did not have to be of opposite sexes and in MB and AF, interpreting the law concerning control orders obviously precisely the opposite of that intended by Parliament.

However, she lamented the decision of the House of Lords in Re S concerning care plans.  This reversed a decision of the Court of Appeal of which she was part, which required introducing rather than interpreting wording into the statute, to make it Convention compatible.  The House of Lords had held that this was impermissible.

She summarised ironically that where the courts find legislation is compatible with the Convention, they “cannot fill the gaping hole” left by a statute but could “find a different meaning” even when the original wording was “clear and precise”.

The fourth theme concerned the extent of functions of a public nature under the Act noting the decision of the House of Lords in YL concerning private care homes and considered this approach (although remedied by statute in the particular instance) to be a problem with “more and more public functions being outsourced to the private and voluntary sectors” and asks what the specific criteria are for determining what are “functions of a public nature” (she wonders, one assumes disapprovingly, whether the key criterion is coercion).

This is an important area.  In this regard, it would be interesting to know Lady Hale’s views as to why is some areas, such as privacy and the media, the courts have been quite prepared to apply the Convention horizontally (so whether the defendant is a public authority ceases to matter) whereas in the social field, horizontal effect has hardly been raised as a possibility.

In her conclusion, Lady Hale regrets that the Act “has given rise to so many difficult constitutional issues”, although that was perhaps inevitable.  It is pretty clear that she would like the courts to take a bolder line, being prepared where necessary to intervene more and get ahead of the Strasbourg line and simply introduce words into statutes to provide compatibility with the Convention.  These would certainly be steps in a radical direction.