Book reviews

Harris, O’Boyle and Warbrick

PUBLISHER: OXFORD UNIVERSITY PRESS

ISBN: 9780406905940

PRICE: £34.95

Fenwick, Phillipson and Masterman (eds)

PUBLISHER: CAMBRIDGE UNIVERSITY PRESS

ISBN: 9780521876339

PRICE: £53

These are two excellent books, serving different purposes but sharing the theme of the rights guaranteed by the European Convention on Human Rights (and linked by the participation of Professor Colin Warbrick in both).

Harris, O’Boyle and Warbrick is the second edition of a comprehensive textbook on ECHR law, first published in 1995. The authors explain, in their preface, that the “spectacular” increase in the workload of the Strasbourg court has made for the delivery of an “overwhelming number of judgments” (dozens every month). From the authors’ point of view, that has made it necessary to expand the team of contributors for this second edition. The list makes impressive reading.

By contrast, Fenwick, Phillipson and Masterman is the fruit of a collaborative academic project (also with an impressive cast), centred on the University of Durham Human Rights Centre, which set out to examine emerging themes in judicial reasoning under the Human Rights Act 1998. Its underlying justification was the proposition that, to have legitimacy, the exercise of the very wide power which Bills of Rights and their analogues confer on judges must be adequately reasoned and transparent to those beyond the legal community, and academic commentary on the judgments is an important element in the process. The value of the book for the practitioner lies in the opportunity to deepen one’s thinking about, and understanding of, Convention law. It deserves and demands to be read slowly, savoured and considered carefully and critically.

The chapter headings in Fenwick et al illustrate the breadth of application of the 1998 Act and hence the range of practitioners affected. They include public law, in the sense of judicial review and criminal procedure. There is private law, with significant attention being given to family law (especially by Ms Harris-Short). Private law, and especially reparation, is the context for consideration by several authors of the developing right to privacy, contrasted by some with media law and freedom of expression. Professor Fenwick provides a most useful (and rare) consideration of the way in which courts approach the problem of “clashing” rights, in the context of child law.

These are only some examples. Section 2 of the 1998 Act requires courts and tribunals determining questions in connection with Convention rights to take into account the jurisprudence of the ECtHR, but the size of that body of jurisprudence is such that the adviser on any question of law which may engage the Convention rights has a pressing need for a textbook which digests and systematises that material. For this reviewer, the first edition of Harris et al outshone every other textbook on European human rights law. The publication of a second edition therefore came as welcome news; and, once seen, the book does not disappoint.

The authors’ approach reflects Warbrick’s observation in Fenwick et al that there are differing conceptions of what the Human Rights Act was about. Warbrick explains that he approaches the matter as an international lawyer, so that, for him, “bringing rights home” means providing a better means for resolving disputes about the meaning and application of ECHR within the UK legal system. That perspective is clearly evident in Harris et al. Although the case law of the national courts is by no means ignored, the clear emphasis and greatest strength of this book is on the case law of the Strasbourg tribunal. If s 2 of the 1998 Act is to be addressed properly, that international dimension is essential. Harris et al is arguably the best possible starting point for understanding what the Strasbourg court has said about any issue. It opens with contextual material, including a most useful consideration of the principles by which the Convention is to be interpreted, and then offers in-depth description and analysis of each of the Convention rights in turn. This reviewer has not so far found any inadequacy in its treatment of any aspect of the vast body of Convention law.

Fenwick et al is not a practitioner textbook in the sense of presenting this kind of structured and comprehensive account. Rather, it is a collection of closely argued academic papers exploring the issue of developing judicial reasoning. There is a wealth of learning in English Convention rights jurisprudence, which it is all too easy for the Scottish practitioner to overlook. The book’s place is on the shelf of anyone who wants to think deeply about the way in which courts (especially, but not exclusively, in England – Masterman in particular takes notice of Scots cases) are using and applying the Convention rights; but it should only reach that shelf after it has been read thoroughly. Part I examines at large the interpretation of the 1998 Act and Part II considers the Act and substantive law. The contributors do not always agree with each other, and one would look in vain for a “party line”; but all of them are stimulating and useful. There is particular interest in Lord Justice Keene’s treatment of “Principles of deference under the Human Rights Act”, especially as it addresses the prison law case R (Bloggs 61) v Secretary of State for the Home Department [2003] 1 WLR 2724, on which the judge sat. His account contrasts interestingly with the academic analysis of the case provided by Professor Leigh (who goes on to suggest that, in English judicial review, proportionality has supplanted Wednesbury unreasonableness as the litmus test).

Much of the commentary wrestles with the problem of horizontal effect, which Professor Phillipson suggests that courts have “semi-deliberately” avoided resolving. Campbell v MGN Ltd makes an appearance in Phillipson’s chapter, as it does in several others, with the author regretting that the courts did not take account of the academic literature on the right to respect for private life. One wonders, however, how realistic that complaint actually is. Feldman offers a highly theoretical account of statutory interpretation in light of the 1998 Act, particularly illuminating on s 3, and centred round the teleological concept of the desired outcome rather than the more familiar approach which claims to seek to discover the intention of the legislator. Dr Kavanagh’s coverage of similar territory in light of Ghaidan v Mendoza [2004] 2 AC 557 takes an approach which is probably more familiar and accessible, but no less perceptive for that, and which addresses issues of concern especially to the property lawyer.

These are two books about which it is easy to be enthusiastic. Harris et al is more accessible and more immediately useful to the practitioner, but Fenwick et al will be of great value to anyone who thinks that the title “human rights lawyer” is more than a synonym for “one who is paranoid about the state”. Both books are recommended without reservation or hesitation.

Dr Alastair N Brown