English Law and The European Convention On Human Rights PDF

British Institute of International and Comparative Law
English Law and the European Convention on Human Rights

Author(s): P. J. Duffy
Source: The International and Comparative Law Quarterly, Vol. 29, No. 4 (Oct., 1980), pp.
585-618
Published by: Cambridge University Press on behalf of the British Institute of
International and Comparative Law
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ENGLISH LAW AND THE EUROPEAN CONVENTION ON
HUMAN RIGHTS
By
P. J. DUFFY*
ALTHOUGH the European Convention on Human Rights and its Fir

Protocol have been signed and ratified by the United Kingdom, as yet
they have not been incorporated by legislation into English law.' T
basic rule of English law regarding treaties is that, whilst the Crown ha
power to enter into treaty obligations internationally, these can on
take effect in English law if Parliament legislates appropriately.
The constitutional reason for this rule is that otherwise there would be
the anathema of the Crown creating law without parliamentary approval
and that this would undermine the sovereignty of Parliament.3 Prima
facie, since it has not been incorporated by legislation, the Convention
cannot therefore be enforced directly in our internal law. This point is
well illustrated by two decisions of Sir Robert Megarry V.-C. In Uppal
v. Home Office,4 the applicants, illegal immigrants, applied for declara-
tions that they should not be deported from the United Kingdom until
the Commission had determined whether deportation would violate
their right to respect for family life under Article 8 of the Convention.5
The applicants argued, inter alia, that their deportation would hinder
the effective exercise of the right of individual petition. In his judgment,
Sir Robert Megarry doubted the validity of this argument; but in any
event he held that "obligations in international law which are not
enforceable as part of English law cannot ... be the subject of declara-
tory judgments or orders." 6 Later, when considering the legality of
telephone tapping in Malone v. Metropolitan Police Commissioner, the
Vice-Chancellor re-affirmed his decision in Uppal after full argument on
this point.7 It is well established that breach of the Convention does not
* Lecturer in Law, Queen Mary College, University of London. Professor J. E. S.

Fawcett, Dr. P. O'Higgins, Mr. A. Boyle and Mr. A. Drzemczewski kindly read and
commented on a draft of this article. Mr. Drzemczewski also provided references to
relevant cases. They bear, of course, no responsibility for any errors which remain.
1 The UK has ratified the Convention and all its protocols except No. 4.
2 See, e.g. The Parlement Belge (1879) 4 P.D. 129 and generally Halsbury (4th ed.)
Vol. 18, para. 1405.
3 See, e.g. W. Holdsworth, History of English Law, Vol. 14, pp. 66 et seq.
4 The Times, Oct. 21, 1978; (1978) 21 E.C.H.R. Yearbook 979; the case is otherwise
unreported.
5 This provision has been found relevant in a number of cases before the European
Commission, see e g. Professor F. G. Jacobs: The European Convention on Human Rights
(1975), pp. 129-132.
6 This passage was quoted by Megarry V.-C. in Malone v. Metropolitan Police Com-
missioner [1979] Ch. 344 at p. 353F, [1979] 2 All E.R. 620 at pp. 627b-628.
7 [1979] Ch. 344 at p. 354D; [1979] 2 All E.R. 620 at p. 628e.
585
586 International and Comparative Law Quarterly [VOL. 29
give rise to remedies or rights justiciable as such in English law. Never-

theless there are some factors which mitigate the full rigours of this
rule and give a certain role to the Convention in English law. Each of
these factors will now be examined and analysed in turn.
I. STATUTORY INTERPRETATION
As an aid to statutory interpretation, the courts have de

presumption that Parliament does not legislate contrary to t
Kingdom's international commitments.8 In a number of deci
presumption has been used to interpret ambiguous legis
accordance with the European Convention.
In 1974, the House of Lords unanimously rejected the argum
sections 24 and 26 of the Immigration Act 1971 had created
criminal offences. Delivering the sole judgment of the House
said that it was " important to bear in mind " Article 7 of th
tion. In the light of this Article and of Article 11 (2) of the
Declaration of Human Rights, Lord Reid stated, " It is har
that any Government department would promote or that
would pass retroactive criminal legislation." 9 Subsequently, i
Lord Denning M.R. suggested, obiter, that " if an Act of Par
not conform to the Convention, I might be inclined to hold it
However, in the next case where the question was argued, Lo
repudiated his earlier suggestion which had patently cros
between statutory interpretation and judicial review of le
Bhajan Singh, he described his earlier statement as " very
and as " going too far "; instead he restated the orthodox rul
an Act of Parliament contained any provisions contrary to t
tion, the Act of Parliament must prevail." 12 In the case in q
Court of Appeal rejected the argument of the applicant
immigrant, that he was entitled by virtue of Article 12 of the
to be released from prison so that he could marry. The right
was unanimously held to be subject to " the circumstances in
parties are placed "; since the applicant was lawfully detai
(1)), he did not have the right to leave prison to get married
8 See e.g. Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B

3 All E.R. 871; and see Professor Brownlie's Principles of Public Internation
1979), pp. 50-51 and references given there.
9 R. v. Miah [1974] 2 All E.R. 377 at p. 379f; [1974] 1 W.L.R. 692 at p. 69
Dr. Crawford (1974-75) 47 B.Y.I.L., 356.
10 Birdie v. Secretary of State for Home Affairs (1975) 119 S.J. 322; The Ti
1975; the case is otherwise unreported.
11 This passage was quoted by Lord Denning, M.R. in R. v. Secretary
Home Affairs ex p. Bahjan Singh [1976] Q.B. 198 at 207G, [1975] 2 All E
1083d.
12 Ibid., noted by Dr. Crawford (1974-75) 47 B.Y.I.L. 358.
1a [1976] Q.B. 198 at p. 208B; [1975] 2 All E.R. 1081 at p. 1083h. The point, however,
has been declared admissible by the Commission: E.C.H.R. Application No. 7114/76,
OCT. 1980] English Law and European Human Rights 587
In Ex parte Phansopkar,14 reference was made to the right to respect

for private and family life in Article 8 of the Convention. The Court of
Appeal had to determine whether the right of a patrial to enter the
United Kingdom without let or hindrance 15 had been infringed by the
practice of forcing those claiming this right to wait 14 months before the
British High Commission in Bombay considered their applications for
certificates of patriality which were vital for entry to the UK. In these
circumstances, patrials who had come to England without certificates
were granted mandamus requiring the Home Secretary to examine their
applications for certificates in England. In his judgment, Scarman L.J.
declared that " it is the duty of the courts, so long as they do not defy or
disregard clear unequivocal provisions, to construe statutes in a manner
which promotes, not endangers [the basic rights to justice undeferred
and to respect for family and private life]. Problems of ambiguity or
omission, if they arise under the language of an Act, should be
resolved so as to give effect to, or at the very least so as not to derogate
from, the rights recognised by Magna Carta and the European Con-
vention." 16 In a subsequent case," Scarman L.J. used similar reasoning
in relation to a different international convention.
However, in Ex parte Bibi 18 Roskill L.J. described Scarman L.J. as
having gone too far in the passage of his Phansopkar judgment quoted
above; Roskill L.J. felt that Scarman L.J.'s approach might need
reconsideration hereafter.19 On the other hand, Lord Denning M.R.,
whilst modifying certain earlier statements, said that " if there is any
ambiguity in our statutes or uncertainty in our law, then these courts
can look to the Convention as an aid to clear up the ambiguity or
uncertainty, seeking always to bring them into harmony with it." 20
On this point, Geoffrey Lane L.J. seemed also to accept the persuasive
value of the Convention in resolving statutory ambiguities.
Subsequently on a number of occasions reference has been made to
the Convention by UK courts engaged in statutory interpretation.21
Hamer v. UK. Vol. 10 Decisions and Reports, p. 174; (1978) 21 E.C.H.R. Yearbook
303. In its May 1980 session, the European Commission decided not to refer the Hamer
case to the Court of Human Rights; the case will therefore fall to be decided by the Com-
mittee of Ministers.
14 R. v. Secretary of State for Home Department, ex p. Phansopkar [1976] Q.B. 606;
[1975] 3 All E.R. 497; noted by Dr. Crawford (1974-75) 47 B.Y.I.L. 360.
15 Immigration Act 1971, s. 1 (1).
16 [1976] Q.B. 606 at p. 626F; [1975] 3 All E.R. 497 at p. 511d.
17 Pan-Am v. Department of Trade (1976) 1 Lloyd's Rep. 257 at pp. 261-262; noted by
Dr. Crawford (1976-77) 48 B.Y.I.L. 345.
18 R. v. Chief Immigration Officer, ex p. S. Bibi [1976] 3 All E.R. 843; [1976] 1 W.L.R.
979; noted by Dr. Crawford (1976-77) 48 B.Y.I.L. 348.
19 [1976] 3 All E.R. 843 at p. 839b; [1976] 1 W.L.R. 979 at p. 986F.
20 [1976] 3 All E.R. 843 at p. 847f; [1976] 1 W.L.R. 979 at p. 989G.
21 R. v. Deery (Northern Ireland Court of Criminal Appeal) (1977) 20 E.C.H.R.
Yearbook 837; noted in (1977) Crim.L.R. 550; R. v. McCormick [1977] N.I. 105; (1978)
21 E.C.H.R. Yearbook 789; Ahmad v. I.L.E.A. [1978] Q.B. 36; [1978] 1 All E.R. 574;
Ostereicher v. Secretary of State for the Environment [1978] 1 All E.R. 591; R. v. Secretary
For the most part, however, the discussion of the Convention neither
affected the disputed point of interpretation nor added materially to that
in the decisions which have already been examined. By these criteria,
only three cases warrant individual consideration. In Ahmadv. I.L.E.A.22
a majority of the Court of Appeal held that the I.L.E.A. had not
broken section 30 of the 1944 Education Act by requiring the appellant,
a Muslim, to become a part-time teacher, if he wanted time off work
each Friday for prayer.23 As regards the Convention, the significance of
the case mainly lies in the dissent of Scarman L.J., aspects of which are
examined later. The other cases of interest were both decided during
1977 in Northern Ireland. In R. v. Deery,24 the Northern Ireland Court
of Criminal Appeal referred to Article 7 of the Convention in deciding
that a Firearms Regulation did not operate retroactively so as to
increase the penalties available for offences committed before it was
made. In giving the Court's judgment, Lowry L.C.J. mentioned the
English cases where the Convention had been used in statutory inter-
pretation and he stated the following six principles:
1. There is a presumption that a law is not retrospective;
2. This presumption does not apply to procedure (including criminal procedure)
but it does apply strongly to a law creating an offence or increasing the
penalty for an existing offence;
3. Regulations purporting to have a retrospective effect are ultra vires unless
such effect is authorised by statute;
4. Treaty obligations are not part of the law unless incorporated by statute into
that law and there is no rule of law invalidating an Act which conflicts with
treaty obligations or compelling a construction which will avoid that result;
but
5. Treaty obligations are a strong guide to the meaning of ambiguous provi-
sions, since the Government is presumed to intend to comply with such
obligations;
6. Both the presumption against retrospection and the presumption of adherence
to treaty obligations may be rebutted by clear language or by necessary
implication.25
The third case, R. v. McCormick,26 is unique amongst UK cases

where the Convention has been used in statutory interpretation:
of State for Home Affairs, ex p. Hosenball [1977] 3 All E.R. 452; [1977] 1 W.L.R. 779;
R. v. Hull Prison Board of Visitors, ex p. St. Germain [1978] Q.B. 678; [1978] 2 All E.R.
198; ibid. in the Court of Appeal [1979] Q.B. 425; [1979] 1 All E.R. 701; R. v. G.L.C. exp
Burgess [1978] 1 C.R. 991; Allgemeine Gold-und-Silberscheidanstalt v. Customs and
Excise Commissioners [1980] 2 W.L.R. 564; U.K.A.P.E. v. Acas [1979] 1 W.L.R. 570;
[1979] 2 All E.R. 478; ibid. in the House of Lords [1980] 2 W.L.R. 254, per Lord Scarman
at p. 266G and H. Williams v. Home Office (May 1980) Kaur v. Lord Advocate (June 1980).
22 [1978] Q.B. 36; [1978] 1 All E.R. 574; noted by Dr. Crawford (1978) 49 B.Y.I.L. 270.
23 In so far as relevant, s. 30 provides: " Subject as hereinafter provided ... no teacher
in any [country school or any voluntary] school Shall... receive any less emolument or be
deprived of, or disqualified for, any promotion or other advantage.., .by reason of its
religious opinions or of his attending or omitting to attend religious workship ..."
24 (1977) 20 E.C.H.R. Yearbook 827; Mr. Drzemczewski kindly provided me with a
transcript of this judgment.
25 (1977) 20 E.C.H.R. Yearbook 827 at p. 829.
26 [1977] N.I. 105; [1978] 21 E.C.H.R. Yearbook 789.
OcT. 1980] English Law and European Human Rights 589
the judge found that the statutory provision in question had incorporated
the Convention's test into domestic law. The issue before McGonigal
L.J. at the Belfast City Commission concerned the admissibility of
statements made by the accused. Section 6 of the Northern Ireland
(Emergency Provisions) Act 1973 had provided that, for certain listed
offences, relevant statements made by the accused were to be admissible
unless " primafacie evidence is adduced that the accused was subjected
to torture or to inhuman or degrading treatment," in which case the
section required the evidence to be excluded " unless the prosecution
satisfies [the court] that the statement was not so obtained." McGonigal
L.J. considered that " the terms torture or inhuman or degrading
conduct in section 6 ... are taken from Article 3 [of the Convention]
and Parliament in using these words was accepting as guidelines the
standards laid down in the European Convention on Human Rights
and incorporating these in the domestic legislation." 27 Later the judge
stated that " if the use of the terms in section 6 (2) are derived, as I
consider them to be, from Article 3, the meaning assigned to the terms
by the European Commission on Human Rights is, at the very least, of
very persuasive effect, if not definitive in determining the meaning to be
given to these same terms as used in section 6." 28 The judgment in
McCormick contains a careful examination of the Commission's
jurisprudence on Article 3 and thus provides an interesting illustratio
of how the Convention's case law can be used by domestic courts
clarify the meaning of the Convention.
The cases reviewed suggest some conclusions and some difficul
as to when the European Convention on Human Rights can be u
by British courts in statutory interpretation. If the meaning o
legislative provision is clear and unambiguous, this interpretation mu
be adopted even if it is contrary to the Convention; in such cases
presumption of compliance may be used.29 By contrast, where
meaning of legislation is unclear or ambiguous, the presumption may
invoked and the provision interpreted in accordance with the Co
vention.30 Furthermore, the authorities clearly establish that t
presumption may be used although the legislation in question sou
neither expressly nor impliedly to incorporate the Convention i
English law.31 The importance of the presumption largely depends on
how readily judges will find legislative provisions to be ambiguou
27 [1977] N.I. 105 at p. 107A; (1978) 21 E.C.H.R. Yearbook 789 at p. 792.

28 [1977] N.I. 105 at p. 107F; (1978) 21 E.C.H.R. Yearbook 789 at p. 792.
29 This point has been clearly established by the cases discussed earlier in the text,
e.g. Lord Denning M.R. in R. v. Secretary of State for Home Affairs, ex p. Bhajan S
[1976] Q.B. 198; [1975] 2 All E.R. 1081.
so e.g. R. v. Miah [1974] 2 All E.R. 377; [1974] 1 W.L.R. 692, and the other c
discussed in the text supra.
s1 In R. v. Miah, for instance, it was applied to the Immigration Act 1971.
(a) Various Notions of Ambiguity
First, it is clear that the courts have rejected, or at the very least not yet
accepted, the view that " the inherent flexibility of the English...
language may make it necessary for the interpreter to have recourse to a
variety of aids. There is no need to impose a preliminary test of am-
biguity." This opinion was expressed by Lord Wilberforce in Buchanan
v. Babco when he was considering the interpretation of a statute which
had been enacted to incorporate an international convention directly
into U.K. law.32 Although there are strong arguments for Lord Wilber-
force's approach to the interpretation of such statutes,33 other Law
Lords in Buchanan's case considered that interpretative presumption
can only be used if the statutory provision, taken alone, is ambiguous.34
Whatever rule may emerge for statutes designed expressly to incorporate
international conventions, at present all the cases point to a " prelimi-
nary test of ambiguity " before UK courts can use the European
Convention on Human Rights, an unincorporated treaty, as a guide to
interpretation. In other words, it is not possible to establish ambiguity
in a statutory provision by reference to discrepancies with the
Convention or its case law.
Secondly in determining whether a statutory provision is ambiguous,
different results may well be achieved, in a particular instance, by
applying the literal test, the golden or mischief rule or some variant of
one or more of these.35 In addition to the general arguments about the
merits of these different approaches, there are considerations of special
relevance to the scope of the presumption against Parliament legislating
contrary to its obligations under the Convention. To a certain extent the
importance given to the presumption depends upon the weight given to
the need to ensure that legislation is construed in accordance with inter-
national commitments as against that of ensuring that an unincorpora-
ted treaty is not applied in derogation of parliamentary sovereignty.
One can argue that the two principles do not conflict in that Parliament
intends legislation to be interpreted in the light of its international
obligations, especially those involving human rights. Moreover, the
Convention does not lay down for Contracting States any given manner
for ensuring within their internal law the effective implementation of its
32 [1978] A.C. 141 at p. 152F; [1977] 3 All E.R. 1048 at p. 1052h; this judgment has
been noted by Dr. Crawford in (1978) 49 B.Y.I.L. 274.
3 See Professor Brownlie op. cit. supra, n. 8, at p. 51.
34 See Viscount Dilhorne: [1978] A.C. 141 at p. 158F; [1977] 3 All E.R. 1048 at p.
1057h; Lord Edmund-Davies: [1978] A.C. 141 at p. 167C; [1977] 3 All E.R. 1048 at p.
1065c; Lord Fraser agreed with Lord Edmund-Davies.
35 According to Professor Cross, " We now have just one rule of interpretation, a
modern version of the literal rule which requires the general context to be taken into con-
sideration before any decision is reached concerning the ordinary meaning of the words ":
Statutory Interpretation (1976), p. 16, and see passim especially Chaps. 1-3; for a general
summary of Professor Cross's view, see p. 43.
provisions." If the courts were to refuse to consider the Convention

because it has not been incorporated by legislation, there would be a
corresponding reduction in the choice of methods open to the UK.
Furthermore, against the contention that this reduction would be
unimportant since Parliament could always incorporate the Convention
into English law, it must be remembered that a significant body of
opinion considers the arguments against incorporation to be strong.37
There are thus grounds for adopting a generous approach towards the
use of the European Convention in statutory interpretation. On the
other hand, there is a danger that, in using the Convention too freely,
the courts might introduce it into English law by the back door, usurping
in the process the function of Parliament. Differing evaluations of these
factors may explain the varying degrees of interest shown by individual
judges 38 towards using the Convention in statutory interpretation. In
the absence of some parliamentary guidance 39 these differences will
probably continue, sometimes, perhaps disguised by findings as to
whether or not the legislative provision in issue is ambiguous.
(b) Applicability of the Presumption to Prior Legislation

Another problem with the presumption is whether it should be used to
interpret ambiguous legislation enacted prior to the ratification, or at
least, the signature of the Convention by the United Kingdom. It might
be argued that, since Parliament cannot have intended its legislation to
conform with international obligations which did not exist at the time
of enactment, there is no justification for applying the presumption to
such legislation. In its Report, the House of Lords Select Committee on
a Bill of Rights doubted whether the Convention should be used to
interpret legislation enacted before it existed.40 On the other hand, there
are both authorities and arguments of principle for allowing recourse to
the Convention in this situation.
In two cases, the courts have considered the Convention whilst
36 It has been argued that " shall secure " in Art. 1 imposes the obligation to incorpo-
rate the Convention directly into municipal law: J. Velu in Human Rights in National and
InternationalLaw (ed. A. H. Robertson, 1968), pp. 44-46. However, predominant academic
opinion favours the view expressed in the text (ibid., pp. 11-46) which has now been en-
dorsed by the Court of Human Rights: Ireland v. U.K., para. 239. See further the conclud-
ing section of this article.
S7 The House of Lords Select Committee was divided on the question of incorporation
of the Convention into English law: for the main arguments against, see para. 33 of the
Report (H. L. Paper 176 of Sessions 1976-77 and 1977-78). The Committee was unani-
mous " in concluding that if there is to be a Bill of Rights it should be a Bill based on the
Convention " (ibid., para. 53). However, in his book, Dr. J. Jaconelli lists 10 arguments to
show that " the text of the European Convention is ill suited to serving as a Bill of Rights
for the United Kingdom ": Enacting a Bill of Rights (1980), pp. 277-281.
38 Contrast the views of Lord Scarman in the cases discussed above with those of
Roskill L.J. in Exp. Bibi.
3a See recommendations in report of Law Commission No. 21 (1969): The Interpre
tion of Statutes, paras. 74-76.
40 Report or the Select Committee on a Bill of Rights, para. 27, p. 28.
interpreting earlier legislation. In neither of these cases, it is true, did

reference to the Convention affect the outcome and in neither, appar-
ently, was it argued that the Convention should not be used in relation
to previously enacted legislation. Moreover, the value of Ahmad v.
I.L.E.A., the earlier decision, may be reduced by the doubts subse-
quently expressed in the House of Lords Select Committee Report.4'
By contrast, the more recent case, Williams v. The Home Office,42 was
not only argued over a year after publication of the Select Committee's
Report, but it may be thought significant that counsel for the Home
Office in this case accepted that the Convention could be used in
interpreting the Bill of Rights Act 1688.43 Whilst imprisoned, Williams
had been segregated in a " control unit"; in the case it was argued,
inter alia, that he had been subjected to " cruel punishment " contrary
to the Bill of Rights 44 and that the phrase " cruel punishment " should
be interpreted in accordance with Article 3 of the Convention.4 In the
event, Tudor Evans J. rejected Williams' action. For present purposes,
however, it is interesting that the judge considered the Convention
argument on its substance instead of simply rejecting it because the Bill
of Rights Act long antedates the Convention. Hence, so far as they go,
Ahmad and Williams suggest that the Convention may be used in
interpreting earlier legislation but in neither was the problem actually
raised.
Somewhat analogous issues have recently been ventilated in the area
of landlord and tenant. In Dyson v. Fox, a majority of the Court of
Appeal interpreted the term " family" in a 1920 statute in the light of
subsequent developments.46 James L.J. was most explicit; he distin-
guished an earlier precedent 47 on the grounds that it only bound the
court as to the meaning of the term "family " at the time it had been
decided: " the word family must be given its proper meaning at the time
relevant to the decision." 48 This view was not shared by a differently
constituted Court of Appeal when interpreting the same word in the
Rent Act 1977. Although Dyson was followed on similar facts in Helby
v. Rafferty,49 all three Lords Justices expressed serious reservations:
Roskill L.J., for example, said: " I confess I know of no authority, and
none has been cited to support the view that where you get almost
41 Ibid.
42 M. S. Williams v. The Home Office (May 9, 1980). As yet, the judgment has not been
reported. The author is grateful to the N.C.C.L. which allowed him access to their revised
official transcript of the judgment.
43 pp. 117-127A official transcript.
44 The Bill of Rights Act provides that " excessive bail ought not to be required nor
excessive fines imposed nor cruel and unusual punishments inflicted."
4 At p. 122B et seq., official transcript.
46 [1976] Q.B. 503; [1975] 3 All E.R. 1030.
4 Gammans v. Ekins [1950] 2 K.B. 328.
48 [1976] Q.B. 503 at p. 512D; [1975] 3 All E.R. 1030 at p. 1036b.
49 [1979] 1 W.L.R. 13; [1978] 3 All E.R. 1016.
identical language repeatedly used in a succession of statutes, starting in

1920 and ending in 1977-which is the date of the present Rent Act-
it is possible to give the same word a different interpretation in 1977
from that which it gave in (say) 1920 or 1950." 50 In Carega Properties v.
Sharrat, the House of Lords had to interpret the word " family " in the
1968 Rent Act.51 However, given the " most unusual " facts of the case,
it was not considered necessary to deal with "the difficult question
posed by Dyson Holdings." 52 Although the point has thus been
expressly left open by the House of Lords,52a there is at least one
earlier clear authority which supports the view in Dyson against that in
Helby. A.G. v. Edison Telephone Co. is the reserved judgment of a strong
Court of Exchequer (Pollock B. and Stephen J.) which held that the
telephone was a telegraph within the meaning of the 1863 and 1869 Acts
although it had not been invented or contemplated when the legislation
was passed.53 Whilst A.G. v. Edison Telephone Co. can be distinguished
from the problem in Dyson v. Fox, it at least shows that legislation may
be interpreted in a manner which Parliament could not have exactly
foreseen and that legislation may be interpreted as having been " in-
tended " to include changing developments.
On first principles, it seems clear that Parliament has power to enact
legislation whose meaning can change in the light of subsequent develop-
ments. To deny this would be incompatible with the orthodox theory of
parliamentary sovereignty. If this reasoning is correct, then the mere
fact that legislation was enacted before the Convention is not neces-
sarily an obstacle to using the Convention in its interpretation. Indeed
there may be a practical argument for allowing use of the Convention.
It would be quite unrealistic for Parliament to attempt to discover and
amend all legislative ambiguities which might be contrary to a newly-
acquired international obligation of such a general nature as the
Convention; hence practical considerations may be argued to dictate
that ambiguities should be construed in accordance with the Convention
in the case of prior legislation. Finally, it may be possible to rationalise
this use of the Convention in terms of " Parliament's intention," if one
regards the parliamentary intention on which the presumption is based
as being that the courts will interpret legislation in accordance with the
developing international obligations of the United Kingdom. However,
notwithstanding the authorities and these arguments, it remains
uncertain whether the presumption of compliance with the Convention
will be applied to previously enacted legislation.
60 [1979] 1 W.L.R. 13 at p. 23G; [1978] 3 All E.R. 1016 at p. 1024e.
61 [1979] 1 W.L.R. 928; [1979] 2 All E.R. 1084.
62 [1979] 1 W.L.R. 928 at p. 930; [1979] 2 All E.R. 1084 at pp. 1085-1086a.
5 2a The question may well be considered by the House of Lords in Watson v. Lucas, in
which leave to appeal has been granted by the Court of Appeal: The Times, July 8, 1980,
p. 10.
63 (1880-81) 6 Q.B.D. 244.
(c) The Nature of the Presumption

The value of the Convention in construing legislative ambiguities varies
significantly according to whether the presumption used is that legisla-
tion should be construed to promote the Convention or merely so as not
to conflict with it. On the second more orthodox version, the usefulness
of the Convention in interpretation is seriously reduced by the nature of
the rights guaranteed in it. The Convention creates rights of different
strengths. Some rights, such as those guaranteed in Article 3, are subject
to few, if any, limitations,54 but most of the rights contained in the
Convention may be restricted by limitations which fulfil certain require-
ments. Most commonly, restrictions must satisfy three distinct require-
ments 55: they must be " prescribed by law," 56 they must pursue one of
the aims specified in the relevant Article, and the restrictions used for
achieving the aim must be " necessary in a democratic society." 57
The Court of Human Rights has stressed that the Convention " does not
give the Contracting States an unlimited power of appreciation "58
when imposing restrictions on rights and freedoms guaranteed in the
Convention. In recent judgments the Court has asserted "a more
extensive European supervision " where " the domestic law and
practice of the Contracting States reveal a fairly substantial measure of
common ground." 59 Nevertheless it remains clear that the Court
recognises that in all such cases the national authorities enjoy an " area
of discretion " although sometimes now " a more extensive European
supervision corresponds to a less discretionary power of appreciation." s0
If the presumption to be applied by UK courts is only that legislation
should not be given an interpretation which would lead to the Stras-
bourg organs finding a breach of the Convention, then the value of the
Convention's Articles in construing legislative ambiguities will vary in
S4 Even with Art. 3 a balancing process sometimes exists when deciding if the required
standard has been breached. In Tyrer (judgment of Apr. 25, 1978) the Court of Human
Rights stated that " for a punishment to be degrading and in breach of Art. 3 the humilia-
tion or debasement involved must attain a particular level.... The assessment is, in the
nature of things, relative; it depends on all the circumstances of the case ..." (para. 30):
Series A No. 26, 2 E.H.R.R. 1. See also Ireland v. United Kingdom (judgment of Jan. 18,
1978) especially at para. 162, Series A No. 25, 2 E.H.R.R. 25.
-5 See Arts. 8, 9, 10 and 11 of the Convention.
56 The main analysis of this requirement to date is in the Sunday Times judgment
(Apr. 26, 1979) paras. 46-53; Series A No. 30, 2 E.H.R.R. 245. For a discussion see P. J.
Duffy: " The Sunday Times Case " (1980) 5 Human Rights Review 17 at pp. 19-27.
57 This requirement has been in issue in several important cases, the most recent court
judgment being the Sunday Times case. In addition to the principal books on the Conven-
tion, see: Professor C. Morrison, " Margin of Appreciation in Human Rights Law "
(1973) 6 Human Rights Journal 263; Professor R. Higgins, " Derogations under Human
Rights Treaties " (1976-77) 48 B.Y.I.L. 281 at pp. 307-315; C. Feingold, " The Little Red
Schoolbook " (1978) 3 Human Rights Review 21; P. T. Muchlinski, " The Freedom of
Speech and the European Human Rights Convention " (Oct. 1979) Topical Law 1; P. J.
Duffy op. cit. supra, n. 56, especially at pp. 37-44.
58 Handyside judgment of Dec. 7, 1976, para. 49, Series A No. 24.
59 Sunday Times judgment, para. 59; see discussion in (1980) 5 Human Rights Review 19
at pp. 37-41.
60o Sunday Times judgment, para. 59.
proportion to the " discretionary power of appreciation " enjoyed by

the UK. Since legislation itself constitutes an exercise of this power of
appreciation, it can be argued that the Convention only becomes rele-
vant if an interpretation can be excluded as falling outside the discretion
and involving breach of the Convention. As between competing
interpretations within the area of discretion, the Convention, on this
view, provides no guide precisely because it leaves the discretion.
By contrast, if the presumption used is that the legislation may be
interpreted so as to promote its objectives, the Convention will not
necessarily be irrelevant simply because it fails to exclude one or more
competing interpretations as violating its substantive provisions. Given
the " profound belief in Fundamental Freedoms " proclaimed in the
preamble to the Convention, and also that the Convention is there
described as just " the first steps for the collective enforcement of certain
Rights," it is arguable that the presumption should not be limited to
interpreting legislation so as not to conflict with the Convention but
rather that it should be to advance those fundamental freedoms by
liberal interpretation in accordance, as Scarman L.J. once put it, " with
the spirit of the age." 61 Use of this approach would thus point to that
interpretation of a statute which least restricts the rights and freedoms
enshrined in the Convention.
Moreover it can be argued that such an approach fully respects the
concept of an area of discretion for Contracting States under the
Convention. The reason for this concept was perhaps best explained by
the minority judges in the Sunday Times case. In their joint opinion, the
dissenters stated:
[The] margin of appreciation involves a certain discretion and attaches primarily

to the evaluation of the danger that a particular exercise of the freedom safe-
guarded by Article 10 (1) could entail for the interests listed in Article 10 (2) and
to the choice of measures intended to avoid that danger. For the purposes of
such an evaluation-to be made with due care and in a reasonable manner, and
which of necessity will be based on facts and circumstances prevailing in the
country concerned and on the future development of those facts and circum-
stances-the national authorities are in principle better qualified than an
international court.62
This passage clearly shows that the concept is used because, as the
dissenters later repeated, " the national judge is certainly better placed
than the Court [of Human Rights] to determine whether, in a given
instance, a publication concerning sub judice litigation involves a
'prejudgment' and the risk of 'trial by newspaper.' "63 As is well
known, the dissenters' approach was rejected by the Court in favour of
6 1 Amhad v. I.L.E.A. [1978] Q.B. 36 at p. 50F; ]1978] 1 All E.R. 574 at p. 585d.
62 Para. 7 of the Joint Dissenting Opinion of Judges Wiarda, Cremona, Thor Vilhjalm-
sson, Ryssdal, Ganshof van der Meersch, Sir Gerald Fitzmaurice, Bindschedler-Robert,
Liesch and Matscher.
63 Para. 11.
a " more extensive European supervision." Whatever one's opinion of

the Sunday Times judgment,64 it is clear that, even on the dissenters'
view, the notion of an " area of discretion " merely represents a doctrine
of judicial restraint used by members of an international tribunal who
consider themselves less well placed than the national authorities or
courts to assess the need for a particular restriction to a Convention
right or freedom. Thus defined, the doctrine is irrelevant for a national
court involved in interpreting its country's legislation. Rather it would
seem that such courts should interpret any legislative ambiguities by
presuming that a restriction to a Convention right would only have been
adopted if it corresponds to a "pressing social need." 65 In practice
such an approach would produce a general presumption against
restriction of Convention rights.
However, notwithstanding these strong arguments, the existing case
law overwhelmingly favours the more restrictive use of the Convention
whereby its function in interpretation is limited to preventing the U.K.
from being held by the Commission or Court to be in breach of the
Convention. So far only Lord Scarman has advocated the alternative
presumption of advancing the Convention rights. Indeed, apart from
statements used by judges when referring to the Convention, it is
notable that only the " absolute " rights 66 in Articles 3 and 7 have
been found relevant by courts in determining issues of statutory
interpretation.67
(d) Assessment
In general, use of the Convention as an aid to interpretation has

been relatively rare. Considering how many reported cases raise points
of statutory interpretation, the case law referring to the Convention is
perhaps most conspicuous by its rarity. This is accentuated by the wide
range of situations which can affect the rights guaranteed by the
Convention. Moreover, the discussion has shown a number of ways in
which recourse to the Convention is either lessened or raises difficulties.
To some extent, common law and other presumptions compensate for
the weakness of the Convention as an aid to interpretation. How
adequately they do so is briefly examined below, after the sections
dealing with other ways in which the Convention may sometimes be
used by English courts.
64 For a critical note see Dr. F. A. Mann, " Contempt of Court in the House of Lords
and the European Court of Human Rights " (1979) 95 L.Q.R. 348.
65 Handysidejudgment, loc. cit. supra, n. 58, para. 48.
66 Absolute in the sense that they cannot be the subject of limitation or derogation;
but see n. 54 supra.
67 Art. 3 in R. v. McCormack and, less strongly, in Williams v. Home Office, although
in neither case was a failure to meet the required standard found; Art. 7 in Waddington v.
Miah and in R. v. Deery.
2. THE ULTRA VIRES RULE
It is fundamental law that administrative powers must not be exercised

ultra vires, beyond their limits.68 The critical question in relation to the
European Convention is to what extent does it constitute such a limit ?
There is some case law on this point in the context of the
immigration rules and deportation. In the Bhajan Singh case, Lord
Denning M.R., delivering the sole reasoned judgment of the Court of
Appeal, suggested a broad answer. After stating the presumption that
statutes should be interpreted in conformity with the Convention, he
added that "the immigration officers and the Secretary of State in
exercising their duties ought to bear in mind the principles stated in the
Convention. They ought consciously or unconsciously to have regard to
the principles in it-because, after all, the principles stated in the
Convention are only a statement of the principles of fair dealing; and
it is their duty to act fairly." 69 However, in Bibi,70 part of the ratio of
the case was that immigration officers were not obliged to consider the
European Convention. On this point it had been argued that by virtue
of Article 8 immigration officers were obliged to respect the immigrant
appellant's right of private and family life even when this would
involve their departing from the immigration rules. In his judgment,
Lord Denning M.R. amended his Bhajan Singh remarks: of the im-
migration officers he now said that " they cannot be expected to know
or to apply the Convention. They must go simply by the immigration
rules laid down by the Secretary of State and not by the Convention." 71
In a later case, ex parte Hosenball,72 the Court of Appeal rejected the
appeal of an American journalist who argued that the Home Secretary's
deportation order against him, on ground of public good in the interests
of national security, had been ultra vires, since it had been in violation
of the European Convention and of the rules of natural justice.
Although perhaps demonstrating a cautious approach, the Bibi and
Hosenball judgments certainly do not mean that the Convention will
never be relevant in judicial control of administrative action. Ample
grounds for distinguishing both these cases are provided by the Court of
Appeal's discussion of the nature of the immigration rules in the
Hosenball case. Lord Denning called them " rules of practice," 73 while
Geoffrey Lane L.J. stated, "They are in a class of their own." 74
Moreover the limited significance of these cases is clear on ground of
6 8 See, e.g. generally, Professor J. M. Evans (ed.) de Smith's Judicial Review of Adminis-
trative Action (4th ed.); Professor H. W. R. Wade, Administrative Law (4th ed.).
69 [1976] Q.B. 198 atp. 207F; [1975] 2 All E.R. 1081 atp. 1083d.
70 R. v. Chieflmmigration Officer, exp. Bibi [1976] 1 W.L.R. 979; [1976] 3 All E.R. 843.
71 [1976] 1 W.L.R. 979 at p. 985A; [1976] 3 All E.R. 843 at p. 847h.
72 R. v. Secretary of State for Home Affairs, ex p. Hosenball [1977] 1 W.L.R. 766;
[1977] 3 All E.R. 452.
7" [1977] 1 W.L.R. 766 at p. 780H; [1977] 3 All E.R. 452 at p. 459a.
74 [1977] 1 W.L.R. 766 at p. 785D; [1977] 3 All E.R. 452 at p. 463a.
legal principle. The interpretation of legislation conferring administra-

tive powers 75 involves the same issues and problems as were discussed
above in the general context of statutory interpretation. More specifi-
cally, it is always important to consider carefully the context involved
when assessing what limits Parliament intended to impose upon an
administrative power. In Secretary of State of Education v. Thameside,
Lord Wilberforce stressed this fundamental point; he said there is " no
universal rule as to the principles on which the exercise of a discretion
may be reviewed; each statute or type of statute must be individually
looked at." 76 Applying this basic point to the Bibi and Hosenball cases,
it does not follow that the European Convention is necessarily irrelevant
in all arguments about ultra vires simply because it was found to be
irrelevant in those cases. Considering the highly sensitive and political
nature of immigration legislation and the limited effect of Article 8 on
immigration," the Court of Appeal decision in Bibi seems sound.
Likewise, as regards deportation on grounds of national security, it
seems clear that Parliament did not intend the Home Secretary's
powers to be subject to the rules of natural justice or even the provisions
of the European Convention on Human Rights.78 It would, however,
be quite contrary to the basic principle of applying the statutory limits
to statutory powers to assume that the Convention is always irrelevant
when determining questions of ultra vires; it must be considered if a
statute impliedly so requires.
However, again one must stress that only rarely have English courts
alluded to the Convention when interpreting statutes. In even fewer
cases have the references to the Convention affected the outcome. At
56 " Administrative power " refers generally to any power or discretion conferred by
statute including powers to make delegated legislation. No attempt has yet been made to
invoke the Convention in the review of a prerogative power; indeed it is controversial
whether the exercise, as opposed to the existence, of such powers is subject to any judicial
review: see Wade, op. cit. supra, n. 68. p. 335.
76 [1977] A.C. 1014 at p. 1047G; [1976] 3 All E.R. 679 at p. 682C.
7 Art. 8 is only relevant in exceptional immigration cases: see, e.g. Professor F. G.
Jacobs, The European Convention on Human Rights (1975), pp. 128-132.
78 The wording of the relevant section is explicit: " A person shall not be entitled to
appeal against a decision to make a deportation order against him if the ground of the
decision was that his deportation is conducive to the public good as being in the interests of
national security or of the relations between the United Kingdom and any other country
or for other reasons of a political character" (Immigration Act 1971, s. 15 (3)). In
explaining this provision during its passage in the House of Commons, Mr. Maudling,
the Home Secretary, said, " The whole basis of my philosophy is that these are decisions
of a political and executive character which should be subject to Parliament and not subject
to courts, arbitrators and so on " (Vol. 819 H.C. Deb. (June 15, 1971), col. 375 at col. 377).
This legislative background was known to the Court of Appeal in Hosenball and expressly
mentioned by Lord Denning M.R. in his judgment, despite the conventional rule against
referring to Hansard (e.g. Black-Clauson v. Papierwerke [1977] A.C. 591 ; [1975] 1 All E.R.
810). As regards the European Convention, Lord Denning M.R. noted that Agee's
application had been found inadmissible ([1977] 1 W.L.R. 766 at p. 779A; [1977] 3 All
E.R. 452 at p. 457e): the Agee admissibility decision was No. 7729/76, reported in 7
Decisions and Reports 164. Later Hosenball's application to the Commission was also held
inadmissible: Application No. 7902/77 reported in 9 Decisions and Reports 224.
present therefore the authorities offer little encouragement for an ultra

vires argument based on the Convention. Nevertheless this article has
tried to suggest that legal justification might sometimes be found for a
greater use of the Convention by UK courts involved in statutory
interpretation and/or in judicial review of administrative action.
3. THE CONVENTION AS PART OF THE COMMON LAW
There are three main ways in which the European Convention may form
part of the Common law: as customary international law; as an element
of public policy; and its use in cases where no clear precedent exists.
Each of these methods will be analysed in turn.
(a) The Convention as Customary International Law

In several articles, Mr. A. Drzemczewski has argued that, notwithstand-
ing the absence of incorporating legislation, the European Convention
may, as customary international law, already be part of the common
law.79 The argument may be summarised as follows: Customary
international law forms part of the common law of England; no legisla-
tion is required to give it such effect. Although treaties do not normally
constitute customary international law, it is accepted that they do so when
they are evidence of a general practice accepted as law.80 In the light of
its subject matter the relevant State practice, the European Convention,
it is argued, satisfies the test of customary international law and it
therefore is part of the common law and is enforceable as such even in
the absence of any incorporating legislation. The effects of acceptance
of this argument could be so far reaching that it is both justified and
necessary to examine its validity in some detail.
(i) International law and the common law

There is some controversy about the extent to which customary
international law forms part of the common law.81 Two points are clear.
First, unambiguous statutory provisions must always be applied, even
if in conflict with customary international law.82 Secondly, subject to
problems of proof,83 customary international law may and should be
applied if, in the absence of precedent, the common law is unclear.84
" Most forcefully in " The applicability of Customary International Human Rights in
the English Legal System " [1975] Human Rights Journal 71. Since then, there have been
some modifications in Mr. Drzemezewski's argument: see, notably, [1976] Human Rights
Journal 123; [1979] Human Rights Journal, 95; (Oct. 1979) Topical Law 38.
80 Art. 38 (1) (6) of the Statute of the International Court of Justice.
81 See generally, e.g. Professor I. Brownlie, Principles of Public International Law
(3rd ed.), pp. 45 et seq.
82 e.g. Mortensen v. Peters (1906) 8 F (J.C.) 93 (Court of Justiciary).
83 The standard of proof required in some cases has been particularly strict, see
especially, R. v. Keyn (The Franconia) (1876) 2 Ex D. 63; see also comments by Brownlie,
op. cit. supra n. 81, and in the literature referred to there.
84 Chung Chi Cheung v. The King [1939] A.C. 100; [1938] 4 All E.R. 784.
However, it is uncertain and controversial whether customary inter-

national law may be applied when there is precedent to the contrary.
There had been considerable academic discussion of the effect of the
cases on this point 85 until the Privy Council decision in Chung Chi
Cheung v. The King where Lord Atkin, delivering the opinion of the
Board, declared: " The courts acknowledge the existence of a body of
rules which nations accept amongst themselves. On any judicial issue,
they seek to ascertain what the relevant rule is, and having found it,
they will treat it as incorporated into the domestic law, so far as it is not
inconsistent with rules enacted by statutes or finally declared by their
tribunals." 86 Although sometimes criticised,87 this statement was
generally accepted as settling the issue until the case of Trendtex v.
Central Bank of Nigeria."8 In this case, the issue was whether the
Central Bank could claim sovereign immunity. Applying orthodox
principles to the facts, the Court of Appeal unanimously held that the
bank was not a department of State and therefore was not entitled to
sovereign immunity. This conclusion was also reached, Stephenson L.J.
dissenting, by applying, instead of precedents to the contrary, new rules
of international law that sovereign immunity only covers the executive
and not the commercial acts of government. Lord Denning M.R.
declared generally:
Seeing that the rules of international law have been changed-and do change-
and that the courts have given effect to the changes without any Act of Parlia-
ment, it follows to my mind inexorably that the rules of international law, as
existing from time to time, do form part of our English law. It follows too that a
decision of this court-as to what was the ruling of international law 50 or 60
years ago-is not binding on this court today. International law knows no rule
of stare decisis. If this court today is satisfied that the rule of international law
on a subject has changed from what it was 50 or 60 years ago, it can give effect
to that change-and apply the change in our English law-without waiting for
the House of Lords to do it.89
Clearly if Trendtex replaces Chung Chi Cheung as accepted law, and

if the European Convention constitutes customary international law, it
might be argued that the Convention should prevail as such against
common law precedents to the contrary. Such an argument would give
the Convention considerable importance in English law. However, there
are a number of grounds on which the correctness of this argument can
be seriously doubted. First, it is not yet clear whether the majority
judgment in Trendtex will replace Chung Chi Cheung as accepted law.90
85 Contrast, especially, H. Lauterpacht: " Is International Law a part of the Law of

England? " (1930) 25 Trans.Grot.Soc. 51-88 and I. Jennings, Law and the Constitution
(5th ed.), p. 173. especially n. 5.
8E [1939] A.C. 160 at p. 168; [1939] 4 All E.R. 784 at p. 790B (author's emphasis).
87 Professor J. E. S. Fawcett, The British Commonwealth in International Law (1963),
p. 39, and Dr. F. Morgenstern (1950) 27 B.Y.I.L. 42 at pp. 80-82.
88 [1977] Q.B. 529; [1977]1 AllE.R. 881.
89 [1977] Q.B. 529 at p. 554 G-H; [1977] 1 All E.R. 881 at pp. 889h-890b.
90 Leave to appeal to the House of Lords was granted but was not pursued owing to
Secondly, even if it does, at least two interpretations are possible of the

majority ratio in Trendtex, one "narrow" and the other "wide."
On the " narrow " view, the Trendtex exception to stare decisis is
confined to precedents whose rationes rest on now obsolete customary
international law. Thus construed, Trendtex only applies to areas whose
rules, like those of State immunity, were adopted on the basis of
international law for the time being. Another, admittedly rationalising,
way in which this " narrow view " might be seen would be to interpret
the rationes of such precedents as being that the points in question are
governed by international law. Although perhaps historically inaccurate,
adoption of this approach would have the advantage of allowing changes
in the contents of international law to be recognised without creating
inroads into the rules of precedent. By contrast, on the " wide view,"
the Trendtex exception means that changes in customary international
law are incorporated into the common law and override any inconsistent
precedent whether the ratio of the earlier decision rested on the
application of now obsolete customary international law or not.
Almost certainly, if Trendtex becomes accepted law, its ratio will
receive a narrow interpretation. The wide interpretation conflicts with
Miliangos v. George Frank in which the House of Lords unanimously
rejected use by the Court of Appeal of the maxim cessante ratione
cessat ipsa lex.9 Only the narrower interpretation of Trendtex, outlined
above, seems reasonably capable of being distinguished from the
Miliangos judgment.92 Moreover acceptance of the wider view would
produce much uncertainty in the common law, a factor which alone, on
policy grounds, makes its adoption highly improbable. Hence, even
assuming the European Convention to be customary international law,
this does not mean that it can be used to overturn contrary precedents;
use of this argument would thus seem to be limited to areas where the
common law has not yet been settled by precedent.
the enactment of the State Immunity Act 1978. Stephenson L.J.'s dissenting judgment is
very forceful on the point in issue; [1977] Q.B. 529 at pp. 571D-772B: [1977] 1 All E.R.
881 at pp. 904d-905a. Academic comments on the majority judgment in Trendtex have
generally been favourable: e.g. Dr. J. Crawford (1976-77) 48 B.Y.I.L. 353-362, especially
at pp. 359-361. At the time of writing (July 1980) an appeal is before the House of Lords
from the Court of Appeal decision in Hispano Americana Mercantil S.A. v. Central Bank
of Nigeria: [19791 2 Lloyd's Rep. 277, in which Trendtex was followed.
9x [1976] A.C. 443 at pp. 471F-477A; [1975] 3 All E.R. 801 at pp. 816d-823a, per Lord
Simon of Glaisdale; the other Law Lords agreed with Lord Simon's speech on this point.
9 2 Even the narrow interpretation of Trendtex is debatable; Lord Simon's reasoning in
Miliangos was general in character: see especially on point 3 [1976] A.C. 443 at p. 476C.
However, it has already been suggested that a modified " narrow view " could be satis-
factorily reconciled with the rules of precedent. Again, in a later House of Lords' judgment
Lord Diplock has warned that " to construe a judgment as if its function were to lay down
a code of law is a common error into which the English reliance on precedent makes it
easy to fall ": D. v. N.S.P.C.C. [1978] A.C. 171 at p. 200 F-G; [1977] 1 All E.R. 589 at
p. 596j. On the whole it is suggested that the narrow view of Trendtex, perhaps in a modified
form, is compatible with the requirements of precedent and desirable in that it helps the
courts to give effect to contemporary international law when relevant in English cases.
(ii) The European Convention and customary international law

The previous paragraphs show that recognition of the European
Convention as customary international law would have few substantive
consequences in English law, but, in any event, it is unclear to what
extent the Convention constitutes customary international law.
For a treaty to represent customary international law, there must, in
the words of the statute of the International Court of Justice, be
sufficient " evidence of a general practice accepted as law." 93 In other
words, even if the treaty was initially instrumental in creating the legal
obligation, the obligation must now exist independently of the treaty.
The International Court of Justice has shown itself wary in cases where
such arguments have been attempted.94 Notwithstanding this, it might
be argued that the historic context of the Convention, the fact that it was
designed to protect human rights in the wake of the Second World War,
shows that signatory States regarded it as declaring fundamental
obligations binding as new customary international law, and not just
as a treaty. On the other hand, a number of factors, it can be argued,
suggest that the Convention has not given rise to customary inter-
national law. Its adoption represented a new departure in international
law; its provisions and mechanisms were carefully restricted, allowing
in many cases for reservations-a factor the International Court has
used to argue against the conclusion that a treaty has created customary
international law.95 State practice has been hesitant over the right of
individual petition. The status of the Convention as customary law
seems therefore doubtful.
However, in conjunction with other international documents and
practice, the case becomes stronger for regarding at least parts of the
Convention as customary international obligations. One might invoke
as evidence of a general practice accepted as law the Universal Declara-
tion on Human Rights, the UN Covenants, other UN declarations and
resolutions and the various regional instruments. However, this argu-
ment should not be pushed too far. Most of these instruments have
defects as evidence of customary law.96 Moreover, despite the inter-
national (and national) instruments, instances of human rights viola-
tions are all too frequent thus weakening the argument based on State
practice stricto sensu. As yet, the International Court of Justice has only
twice discussed the merits of human rights violations. In the Namibia
9 3 Art. 38 (1) (b) of the Statute of the International Court of Justice.
9" See, e.g. the North Sea Continental Shelf cases [1969] I.C.J. Rep. 3; (1970) 41 I.L.R.
29.
9" Ibid. especially paras. 63-64 of the judgment.
96 See Professor Brownlie, op. cit. supra n. 8, at p. 570. However, for a forceful
exposition of the view that the Universal Declaration of Human Rights constitutes
customary international law, see Professor J. P. Humphrey, " The Universal Declaration
of Human Rights: its History, Impact and Judicial Character " in Human Rights Thirty
Years after the Universal Declaration (ed. B. G. Ramchagan Nijhoff, 1979), p. 20 at
pp. 28-37.
opinion, the Court said, as regards the obligations of a former Manda-

tory State, that " to establish ... and to enforce distinctions, exclusions,
restrictions and limitations exclusively based on grounds of race, colour,
descent or national or ethnic origin which constitute a denial of funda-
mental human rights is a flagrant violation of the purpose and principles
of the Charter of the UN." 97 Recently in the American Hostages case,
the Court declared that " wrongfully to deprive human beings of their
freedom and to subject them to physical constraint in conditions of
hardship is in itself manifestly incompatible with the principles of the
Charter of the UN as well as with the fundamental principles enunciated
in the Universal Declaration of Human Rights." 98 However, this was
the only reference to human rights obligations in the judgment which
was expressly based on the violations of the law relating to diplomatic
and consular immunities.99 In other judgments, the International Court
has considered human rights issues when determining questions of
locus standi.
First, in the South West Africa (Second Phase) judgment, the Inter-
national Court repudiated the suggestion " that humanitarian considera-
tions are sufficient in themselves to generate legal rights and obliga-
tions." 100 However, this judgment's authority is seriously weakened by
the bare majority by which it was reached,101 and by the Court's
pronouncements in the second case, the Barcelona Traction judgment.
Early in that judgment, the International Court drew a distinction
between obligations which are the subject of diplomatic protection and
those which " by their very nature . . are the concern of all States. In
view of the importance of the rights involved, all States can be held to
have a legal interest in their protection, they are obligations erga
omnes." 102 In a passage of importance, the Court continued:
Such obligations derive for example, in contemporary international law, from
the outlawing of acts of aggression, and of genocide as also from the principles
and rules concerning the basic rights of the human person, including protection
from slavery and racial discrimination. Some of the corresponding rights of
protection have entered into the body of general international law (Reservations
to the Convention on the Prevention and Punishment of the Crime of Genocide,
Advisory Opinion, I.C.J. Reports (1951), p. 23); others are conferred by inter-
national instruments of a universal or quasi universal character.103
a' Para. 131, Namibia Opinion [1971] I.C.J. Rep. 3; (1976) 49 I.L.R. 3.
98 Para. 91, United States Diplomatic and Consular staff in Tehran (merits) [1980]
I.C.J.Rep. 3.
9 9 The passage just quoted continues: " But what has above all to be emphasized is the
extent and seriousness of the conflict between the conduct of the Iranian State and its
obligations under the whole corpus of international rules, the fundamental character of
which the Court must again strongly affirm " (ibid.).
100 Para. 49 of the judgment [1966] I.C.J.Rep. 6 at p. 34; (1968) 37 I.L.R. 243 at p. 267.
10 1 The case was decided by the President's casting vote.
10o Para. 33 of thejudgment, [1970] I.C.J.Rep. 4 at p. 32; (1973) 46 I.L.R. 178 at p. 206.
See also the draft Art. 19 on State Responsibility and the International Law Commission's
commentary thereon: (1976) 2 Yearbook LL.C. 95, et seq.
103 Para. 34 of the judgment.
The above passage clearly suggests that the rights mentioned constitute
obligations of customary international law; it thus supports the view
that rights in the European Convention also now constitute customary
international rights and obligations. However, a later passage in the
Barcelona Traction judgment indicates the need for caution:
With regard ... to human rights, to which reference has already been made in
paragraph 34 of this judgment,1'" it should be noted that these also include
protection against denial of justice. However, on the universal level, the instru-
ments which embody human rights do not confer on States the capacity to
protect the victims of infringements of such rights irrespective of their nationality.
It is therefore still on the regional level that a solution to this problem has to be
sought: thus within the Council of Europe of which Spain is not a member,x10
the problem of admissibility encountered by the claim in the present case has
been resolved by the European Convention on Human Rights, which entitles
each State which is a party to the Convention to lodge a complaint against any
other Contracting State for violation of the Convention irrespective of the
nationality of the victim.10x
On one view, the passage just quoted from Barcelona Traction

merely deals with locus standi. In it the Court recognised denial of
justice as a human rights violation; its rejection of Belgium's argument
may be explained by a fear of the consequences that could result from
more than one State having capacity to bring international claims
because of wrongs done to a company.10' These fears would clearly
have been realised if Belgium had been granted locus standi because
denial of justice involves human rights. An alternative view of the
Court's pronouncement is that it shows some caution in dealing with
human rights arguments. Indeed even in the famous paragraph 34,
the Court's examples were limited to very fundamental and well estab-
lished rights. Moreover, even if the more extensive interpretation of
Barcelona Traction is adopted, the case shows by necessary implication
that some parts of the Convention have not as yet passed into customary
international law. The Convention's rights are secured to everyone
within a State Party's jurisdiction.108 It thus covers not only nationals of
others States but also of the respondent State and stateless persons. Yet,
except where obligations erga omnes are involved, the customary
international law argument does not apply to either of the last-men-
tioned classes of persons.
In sum, it seems clear that customary international law indeed
contains obligations analogous to some in the European Convention,
104 That is, the one just quoted in the text of this article.
10o Spain has now become a member of the Council of Europe.
107 This fear seems to have been the central theme of the judgment, see e.g.: " The
Court considers that the adoption of the theory of diplomatic protection of shareholders
as such, by opening the door to competing diplomatic claims could create an atmosphere
of confusion and insecurity in international economic relations ": para. 96 of the judgment.
10o See Art. 1 of the Convention.
for instance, the prohibition of torture.109 It is equally clear, however,

that by no means all of the Convention constitutes customary inter-
national law and as such, subject to the difficulties mentioned earlier,
should be applied as part of the common law of England. A limited
scope for this argument is also suggested by the careful approach which
English courts have traditionally adopted towards proof of customary
international law.l0o As Shaw L.J., one of the majority in Trendtex itself,
put it: " Changes in rules of international law do not come about
abruptly and changes will not be recognised in an English court without
convincing proof." 111
A final, possible difficulty should be mentioned. Even in so far as the
European Convention represents customary international law, it might
be argued that it should not be enforced as part of our common law
because of the rule, designed to protect the constitutional status of
Parliament, requiring legislation for the incorporation of treaty
obligations. A court might consider that to enforce a treaty by virtue of
customary international law and the common law would undermine this
fundamental rule. However, it is suggested, a better approach would be
to reject this apparent obstacle on the ground that, as part of customary
international law, the right in question is legally distinct from the
unincorporated Convention.
(iii) Assessment
All the difficulties examined suggest that the courts are unlikely to
accept the argument that the European Convention, as customary
international law, is part of the common law. Even if they did, unless
the widest interpretation of Trendtex is adopted, few practical results
would be derived from the argument.
(b) Public Policy

Public policy forms part of the common law and may render void
and/or unenforceable transactions which contravene its requirements.x12
Furthermore, the contents of public policy may vary over the years.113
The question thus arises: does public policy now require compliance
with the standards of the European Convention on Human Rights ?
109 There is a wealth of authority to support the contention that torture is prohibited
by international law: see, e.g. U.N. Resolution 3452 (xxx). Declaration on the Protection
of All Persons from being subjected to Torture and Other Cruel, Inhuman or Degrading
Treatment or Punishment, and M. C. Bassiouni and D. Derby: " An Appraisal of Torture
in International Law and Practice" (1977) 48, Nos. 3 and 4, Revue International de
Droit Pdnal 17, especially section V.
110 See n. 83 supra.
111 [1977] Q.B. 529 at p. 579E; [1977] 1 All E.R. 881 at p. 91lb.
112 See, e.g. per Cozen-Hardy M.R. In the Estate of Hall [1914] 1 P.I. For a comparative
study of the English and French rules of public policy see Lord Lloyd, Public Policy (1950).
118 Nordenfelt v. Maxim Nordenfelt Guns and Ammunition Co. [1894] A.C. 535i (1891-
94) All E.R. Rep. p. 1.
In Blathwayt v. Lord Crawley,"4 the House of Lords had occasion to

consider this point. The appellant contended that a forfeitive clause in a
will was void as contrary to public policy, since it became operative if
any beneficiary adopted the Roman Catholic religion, and therefore, it
was argued, involved religious discrimination. Lord Wilberforce
explained why this argument failed. He stated:
It was said that the law of England was now set against discrimination on a
number of grounds including religious grounds and appeal was made to the Race
Relations Act 1968, which does not refer to freedom of religion, arid to the
European Convention of Human Rights of 1950, which refers to freedom of
religion and to enjoyment of that freedom and other freedoms without discri-
mination on grounds of religion. My Lords, I do not doubt that conceptions of
public policy should move with the times and that widely accepted treaties and
statutes may point the direction in which such conceptions, as applied by the
courts, ought to move. It may well be that conditions such as these are, or at
least are becoming, inconsistent with standards now widely accepted. But
acceptance of this does not persuade me that we are justified particularly in
relation to a will which came into effect as long ago as 1936 and which has twice
been the subject of judicial consideration, in introducing for the first time a rule
of law which would go far beyond the mere avoidance of discrimination on
religious grounds. To do so would bring about a substantial reduction of another
freedom, firmly rooted in our law, namely that of testamentary disposition.
Discrimination is not the same thing as choice, it operates over a larger and less
personal area, and neither by express provision nor by implication has private
selection yet become a matter of public policy.115
Notwithstanding that Blathwayt is the only reported case in point, a

few tentative comments may be offered on the Convention's role as a
source of English public policy. First, Blathwayt suggests that the
Convention may be relevant in indicating the requirements of public
policy. Lord Wilberforce said that widely accepted treaties might
indicate how public policy should develop. In rejecting this argument in
Blathwayt's case, he stressed its special circumstances: the will was old
and it had twice previously been litigated. On the other hand, he also
stressed heavily the need to preserve freedom of choice. Given his
definition of " choice " as covering private selection as opposed to a
larger and less personal selection, Lord Wilberforce's stress on this
concept suggests a limited role for the public policy argument. Another
significant point may be that the Convention as such was irrelevant on
the facts of Blathwayt. The Convention only binds States.116 In principle
therefore actions of private individuals do not raise issues under the
Convention. To a certain extent, it is true, States may be obliged to
ensure that private individuals do not interfere with the rights of others
guaranteed in the Convention,"'7 but it is clear that the European
114 [1976] A.C. 397; [1975] 3 All E.R. 625.
115 [1976] A.C. 397 at p. 426A-C; [1975] 3 All E.R. 625 at p. 636 C-E.
116 See Art. 1 of the Convention.
117 See the cases mentioned at n. 120 infra. In the academic literature there has been
considerable discussion of the so-called " Drittwirkung " question: for a recent survey see
A. Drzemczewski: "The European Human Rights Convention and Relations between
Private Parties " (1979) 26 Netherlands International Law Review 163.
Commission of Human Rights would have rejected as inadmissible an

application brought on the Blathwayt case. Blathwayt thus illustrates
judicial reference to the Convention in circumstances beyond its strict
application. Whilst the point was not mentioned in Blathwayt, in
Nagle v. Feilden two members of the Court of Appeal relied on the Sex
Disqualification (Removal) Act 1919 to indicate public policy, although
the statute's applicability was recognised as uncertain.118 Moreover, the
Convention leaves national authorities free to use its standards outside
their strict sphere of application. It may therefore be legitimate to use
the Convention as a source of public policy outside that sphere.
On a different point, perhaps the Convention should be given more
weight as a source of public policy in those circumstances where there
are positive obligations incumbent on States Parties to the Convention
and when therefore the UK may be under some duty to ensure that
private individuals do not interfere with the rights of others under the
Convention.119 Although to date there has been little jurisprudence of
either the European Commission or Court on positive obligations, such
obligations have been discussed in two recent Court judgments.120 In the
future, the public policy argument may become more important than
it is at present.
Public policy can also justify the refusal by an English court to apply
a foreign law which would otherwise be relevant in a case with a foreign
element.121 For example, in Oppenheimer v. Cattermole, a majority of
the House of Lords considered that no effect should be given to certain
Nazi legislation which constituted " so great an offence against human
rights." 122 Although the Convention has not yet been mentioned as a
source of public policy in a conflicts case, in principle this should be
possible. However, it would be futile to discuss the possibility further,
given the absence of relevant case law and the rightly limited use of
public policy in conflicts cases.123
(c) When No Clear Precedent Exists

To the extent that it constitutes customary international law, it can be
argued on the authority of Chung Chi Cheung v. The King that the
Convention should be used to resolve ambiguous precedents or fill
x18 Lord Denning M.R. and Danckwerts L.J. [1966] 2 Q.B. 633 at pp. 647D and at
651E; [1966] 1 All E.R. 689 at pp. 695B and at 697H.
119 See Art. 60 of the Convention.
120 See Marckx judgment, para. 31, Series A No. 31, 2 E.H.R.R. 330; Airey judgment,
para. 33, Series A No. 32, 2 E.H.R.R. 305. See also the Commission's Report in Young,
James and Webster (the " Closed Shop " case) which has been referred to the Court:
Report of Dec. 14, 1979, at para. 168.
121 See, generally, Dicey and Morris, The Conflict of Laws (9th ed.), Chap. 7; Cheshire
and North, Private International Law (10th ed.), Chap. 6.
122 The phrase quoted is Lord Salmon's: [1976] A.C. 249 at p. 2839; [1975] 1 All E.R.
538 at p. 572e.
12 See generally discussions in the main works on Conflict of Laws (n. 121 supra).
lacunae in the common law.124 However, it has been shown that there
are difficulties in arguing that the Convention represents customary
international law; probably only parts of it do. In any event, it is surely
significant that in no reported case has the Convention been treated as
customary international law and used as such to decide an unclear point
of the common law.
On the other hand, in a few cases, judges have referred to the possibi-
lity of using the Convention to help resolve uncertainties in the common
law. In Ex parte Bibi, Lord Denning M.R. stated, obiter on this point,
that " if there is any ambiguity in our statutes or uncertainty in our law,
then these courts can look to the convention as an aid to clear up the
ambiguity and uncertainty, seeking always to bring them into harmony
with it." 125 Earlier, in Cassell v. Broome, Lord Kilbrandon considered
the Convention when discussing the common law relating to punitive
damages: " Since all commercial publication is undertaken for profit,
one must be watchful against holding the profit motive to be sufficient to
justify punitive damages: to do so would be seriously to hamper what
must be regarded, at least since the European Convention was ratified,
as a constitutional right to free speech." 126 In February 1979, within a
week of each other, two judgments were delivered which expressly
considered the Convention when deciding points of the common law.
In the first, Whitehouse v. Lemon, the House of Lords had to decide
" whether in 1976 the mental element or mens rea in the common law
offence of blasphemy is satisfied by proof only of an intention to publish
material which in the opinion of the jury is likely to shock and arouse
resentment among believing Christians or whether the prosecution
must go further and prove that the accused in publishing the material
in fact intended to produce upon believers, or (what comes to the same
thing in criminal law) although aware of the likelihood that such effect
might be produced, did not care whether it was or not, so long as the
publication achieved some other purpose that constituted his motive
for publishing it." 127 By a bare majority of three to two, the House of
Lords decided that only the first, more limited, mens rea had to be
proved. For present purposes, the significance of the case is that Lord
Scarman, one of the majority, expressly relied on the Convention when
deciding the point in issue. Lord Scarman began by declaring that " in
an increasingly plural society such as that of modern Britain it is
necessary not only to respect the differing religious beliefs, feelings and
practices of all but also to protect them from scurrility, vilification and
ridicule and contempt." 128 After an historical review of the relevant
124 Seetextsupra.
125 [1976] 3 All E.R. 843 at p. 847f; [1976] 1 W.L.R. 979 at p. 989G.
126 [1972] A.C. 1027 at p. 1133A; [1972] 1 All E.R. 801 at p. 876C.
127 [1979] A.C. 617 at p. 632E; [1979] 1 All E.R. 898 at p. 900j.
128 [1979] A.C. 617 at p. 658C; [1979] 1 All E.R. 898 at p. 921g.
precedents, Lord Scarman recognised that there was uncertainty in the

case law 129 and that " the issue is, therefore, one of legal policy in the
society of today." 130 In deciding that legal policy was better fulfilled by
the lesser requirement of mens rea, Lord Scarman stated:
All this makes legal sense in a plural society which recognises the human rights
and fundamental freedoms of the European Convention for the Protection of
Human Rights and Fundamental Freedoms (1950) (Cmd. 8969). Article 9
provides that every one has the right to freedom of religion, and the right to
manifest his religion in worship, teaching, practice and observance. By necessary
implication the Article imposes a duty on all of us to refrain from insulting or
outraging the religious feelings of others. Article 10 provides that every one shall
have the right to freedom of expression. The exercise of this freedom " carried
with it duties and responsibilities " and may be subject to such restrictions as are
presented by law and are necessary " for the prevention of disorder or crime, for
the protection of health or morals, for the protection of the reputation or rights
of others.. ." It would be intolerable if by allowing an author or publisher to
plead the excellence of his motives and the right of free speech, he could evade
the penalties of the law even though his words were blasphemous in the sense of
constituting an outrage upon the religious feelings of his fellow citizens. This is
no way forward for a successful plural society.131
Possibly more significant that this speech of Lord Scarman was the
judgment of Sir Robert Megary V.-C. in the important case of Malone v.
Metropolitan Police Commissioner.132 Malone, an antique dealer, had
been tried for handling stolen property. During his trial, counsel for the
Crown admitted that Malone's telephone had been tapped by the police
with the authorisation of the Home Secretary in order to obtain evidence
for the prosecution. The issue before Megarry V.-C. was whether the
police practice had been legal. Prominent amongst the arguments for
Malone were some founded on the interpretation given to Article 8 of
the Convention by the Court of Human Rights in the Klass case.133
The Klass case concerned the compatibility of secret surveillance of
communications with the right under Article 8 to respect for private life
and correspondence. After careful examination of the various safeguards
in the German legislation, the Court of Human Rights found that
legislation permitting secret surveillance was necessary in a democratic
society to safeguard national security and/or to prevent disorder and
crime. In reaching this conclusion, the Court stressed that the Conven-
tion requires that " whatever system of surveillance is adopted, there
exists adequate and effective guarantees against abuse." 134
The English practice of telephone tapping contains no such safe-
guards and thus, on the Klass interpretation of Article 8, violates the
129 [1979] A.C. 617 at pp. 660A-664F; [1979] 1 All E.R. 898 at pp. 92c-926g.
180 [1979] A.C. 617 at p. 664G; [1979] 1 All E.R. 898 at p. 927a.
131 [1979] A.C. 617 at p. 665C-E; [1979] 1 All E.R. 898 at p. 927d-f.
18s [1979] Ch. 344; [1979] 2 All E.R. 620.
1xs Judgment of the European Court of Human Rights of Sept. 6, 1978, Series A No.
24, 2 E.H.R.R. 241 ; for a general study of the Klass judgment see P. J. Duffy: " The Case
of Klass and Others " (1979) 4 Human Rights Review 20.
Convention.135 However, before Malone v. Metropolitan Police Commis-

sioner, the legality of the English practice of interception of communica-
tions had not been the subject of an authoritative judicial decision;
amongst other arguments, it was argued for Malone that the Conven-
tion, as interpreted in the Klass case, should be used by the court when
deciding whether the challenged practice was legal. Sir Robert Megarry
V.-C. rejected Malone's arguments; a few passages from the judgment
are especially significant.
First, as to whether English law was unclear on the point in issue, the
judge stated:
I readily accept that if the question before me were one of construing a statute
enacted with the purpose of giving effect to obligations imposed by the Conven-
tion, the court would readily seek to construe the legislation in a way that would
effectuate the Convention rather than frustrate it. However, no relevant legisla-
tion of that sort is in existence. It seems to me that where Parliament has
abstained from legislating on a point that is plainly suitable for legislation, it is
indeed difficult for the court to lay down new rules of common law or equity
that will carry out the Crown's treaty obligations, or discover for the first time
such rules have always existed.13s
Moreover, Sir Robert stressed that: " The more complex and indefinite
the subject matter, the greater the difficulty in the court doing what it is
really appropriate, and only appropriate, for the legislature to do." 137
He continued:
Give full rein to the Convention, and it is clear that when the object of the
surveillance is the detection of crime, the question is not whether there ought
to be a general prohibition of all surveillance, but in what circumstances, and
subject to what conditions and restrictions, it ought to be permitted. It is those
circumstances, conditions and restrictions which are at the centre of this case;
and yet it is they which are the least suitable for determination by judicial
decision. It appears to me that to decide this case by reference to the Convention
would carry me far beyond any possible function of the Convention as influencing
English law that has ever been suggested; and it would be most undesirable.
Any regulation of so complex a matter as telephone tapping is essentially a
matter for Parliament, not the courts; and neither the Convention nor the Klass
case can, I think play any proper part in deciding the issue before me.
Although Sir Robert Megarry V.-C. thus rejected arguments based on

the Convention, it is significant that his decision to do so was based on
the factors just mentioned and not on the inapplicability of the Conven-
tion when resolving uncertainties in the common law. Indeed, earlier in
his judgment, Sir Robert had tentatively accepted that the Convention
may be relevant in such circumstances:
It is not for me, sitting at first instance, to resolve the variant shades of meaning
135 [1979] Ch. 344, especially at p. 380; [1979] 2 All E.R. 620, especially at pp. 648-649.
For studies on this point, see C. P. Walker, " Police Surveillance by Technical Devices "
[1980] Public Law 184; P. J. Duffy: " Tinkerbell: The European Human Rights Dimen-
sion" [1980] Topical Law 60; P. J. Duffy and P. T. Muchlinski "The Interception of
Communications" [1980] N.L.J. 999.
136 [1979] Ch. 344 at p. 379B-C; [1979] 2 All E.R. 620 at pp. 647j-648a.
137 [1979] Ch. 344 at p. 380D; [1979] 2 All E.R. 620 at p. 648j.
in the dicta,138 and I do not attempt to do so. For the present, all that I say is
that I take note of the Convention as construed in the Klass case, and I shall
give it due consideration in discussing English law on the point.... The Con-
vention is plainly not of itself law in this country, however much it may fall to
be considered as indicating what the law of this country should be, or should be
construed as being.la3
Finally mention must be made of Science Research Councilv. Nassed.40

In this case the appellants had complained of illegal discrimination
before industrial tribunals; they sought discovery of documents
assessing other employees. Before the House of Lords, one of the
appellants' counsel relied on Article 6 (1) of the Convention. Lord
Wilberforce concisely explained the argument and the reasons for its
rejection by the House of Lords. He said:
The point here is a very short one. Article 6 (1) of the Convention guarantees the
right to a fair hearing: the appellant [Vyas] relies on this as requiring total
13a Megarry V.C. had mentioned the different views expressed in Pan-Am v. Department
of Trade and R. v. Chief Immigration Officer ex p. Bibi. The cases are discussed earlier in
this article.
139 [1979] Ch. 344 at p. 366C-D; [1979] 2 All E.R. 620 at p. 638b.
140 [1979] 3 W.L.R. 762; [1979] 3 All E.R. 673. Subsequently (but too late for inclusion
in the text), the Convention was discussed in Att.-Gen. v. B.B.C. [1980] 3 W.L.R. 109, a
case concerning the law on contempt of court. All five Law Lords mentioned the importance
of freedom of expression; Lords Fraser and Scarman also mentioned the Convention.
Although both Lords Fraser and Scarman acknowledge that the Convention is not part of
our law [1980] 3 W.L.R. 109 at p. 128H and at p. 130D) they, nonetheless, considered
that it has a certain role to play. According to Lord Fraser: "This House, and other
courts in the United Kingdom, should have regard to the provisions of the [Convention]
and to the decisions of the Court of Human Rights in cases, of which this is one, where our
domestic law is not firmly settled"' (ibid at p. 128H). Having said that the Convention and
the Sunday Times case are not part of our Law, Lord Scarman continued:
Yet there is a presumption, albeit rebuttable, that our municipal law will be consistent
with our international obligations... Moreover, under the Practice Statement of
July 1966 ([1966] 1 W.L.R. 1234), this House has taken to itself the power to refuse to
follow a previous decision of its own, if convinced that it is necessary in the interest of
justice to depart from it. Though, on its facts, the present case does not provide the
House with the opportunity to reconsider its Sunday Times decision [1974] A.C. 273
(and we have heard no argument on the point), I do not doubt that, in considering
how far we should extend the application of contempt of court, we must bear in mind
the impact of whatever decision we may be minded to make upon the international
obligations assumed by the United Kingdom under the Convention. If the issue should
ultimately be, as I think in this case it is, a question of legal policy, we must have
regard to the country's international obligation to observe the Convention as inter-
preted by the Court of Human Rights ([1980] 3 W.L.R. 108 at p. 130E-G).
Having reviewed the issues and case law, Lord Scarman questioned whether an extension
of contempt of court to cover the case before him " is necessary in our democratic society.
Is there a pressing social need for the extension? For that, according to the European
Court of Human Rights, 2 E.H.R.R. 245 at p. 275, is what the phrase means. It has not
been demonstrated to me that there is " ([1980] 3 W.L.R. 108 at p. 137H). Three comments
may be made on Att.-Gen. v. B.B.C. First it seems that reference may be made not only to
the Convention but also to the case law of its organs when the common law is not firmly
settled: see the speeches of Lords Fraser and Scarman in Att.-Gen. v. B.B.C. and, earlier,
the speech of Lord Scarman in U.K.A.P.E. v. A.C.A.S. [1980] 2 W.L.R. 254 at p. 266H;
[1980] 1 All E.R. 612 at p. 622h. Secondly, the speech of Lord Scarman in Att.-Gen. v.
B.B.C. suggests that in exercising their discretion to depart from precedents, the House of
Lords may have regard to the Convention. If this comes to be accepted, it would represent
a significant extra role for the Convention in English law. Finally, it is significant that even
those Law Lords who did not expressly refer to the Convention examined the case in the
light of freedom of expression. It may be that such an approach reflects in part at least the
indirect influence of the Convention on English courts.
612 International and Comparative Law Quarterly [VoL. 29
disclosure of all information relevant to the case, confidential or not. But this is a
fallacy, because the whole aim and object of those carefully worked out provisions
of English law which regulate the right to discovery and inspection of documents
is precisely to achieve a fair hearing. That is the standard of our law and it is
unnecessary to have recourse to the Convention to establish it.141
In the event, the House of Lords rejected the appeals. Nevertheless,

Lord Wilberforce's comments are significant in that they show how
the requirements of the Convention may be subsumed in English
common law principles. This consideration may partly explain the
paucity of cases where reference has been made to the Convention in
deciding points of common law.
(d) The Convention and the Common Law: an Assessment

Given how few judgments have referred to the Convention when dealing
with issues of the common law, the following comments are tentative
and must be treated with caution.
The most significant feature of the existing case law may well lie in the
small number of judgments which have referred to the Convention.
The widespread absence of such references, notwithstanding the possible
relevance of the Convention for many factual situations, shows that the
Convention is rarely used by courts faced with difficult common law
issues. Indeed, on grounds of legal principle, it can be doubted whether,
in the absence of customary international law or public policy argu-
ments, the European Convention should be considered relevant for
setting the common law when precedents are unclear or lacking.
Notwithstanding these important considerations, however, the pre-
vious paragraphs show that some very eminent judges have recently
found it useful to refer to the Convention. Moreover, to this handful of
judgments, there must be added others where judges have substantially
followed the Convention's scheme without expressly alluding to it.142
Again, as Lord Wilberforce's Nass9 comments suggest, the lack of case
law mentioning the Convention may to some extent be explained by the
existence of equivalent common law principles. Finally, as regards legal
principle, it can be argued that when the courts decide the common law
in the absence of precedent, they are performing a creative task that
has been left with them under our Constitution. Since the courts and
not Parliament are charged with this function, it might be argued that
they should consider the Convention so as to bring the UK law into
line with its international obligations.
If the Convention can be used when precedents are lacking or unclear,
very similar issues are raised to those discussed earlier in the section
dealing with statutory interpretation. For instance, how readily will
judges find precedents to be lacking or unclear? On such issues the
141 [1979] 3 W.L.R. 762 at p. 722D; [1979] 3 All E.R. 673 at p. 682d.
14 2 e.g. the judgment of Lord Diplock in Whitehouse v. Lemon, see n. 147 infra.
judgments so far contain at least three points of general interest. First,

in Malone Megarry V.-C. stated that " where Parliament has abstained
from legislating on a point that is plainly suitable for legislation it is
indeed difficult for the court to lay down new rules of common
law .... ." 143 If valid, such reasoning would represent a very serious
fetter on the use of the Convention to fill any gaps in the Common Law.
However, given the well-known difficulty of securing parliamentary
time for law reform, care should perhaps be taken with Sir Robert
Megarry's approach which, in some circumstances at least, will lack a
sound factual base. Secondly, the Malone judgment stressed that " the
more complex and indefinite the subject matter, the greater the difficulty
in the court doing what is really appropriate, and only appropriate, for
the legislature to do." 144 Undoubtedly there are situations where use
of the Convention in determining the Common Law gives rise to
problems ofjusticiability. As Megarry V.-C. correctly noted, the issues in
Malone illustrate this point well. Thirdly, the Lemon case illustrates that
frequently it is open to serious argument which legal solution best
fulfils the general and often conflicting rights contained in the Conven-
tion. As outlined above, Lord Scarman considered that the lesser mens
rea requirement was rendered appropriate by the needs of a plural
society; he explicitly mentioned Articles 9 and 10 of the Convention.145
No doubt Lord Scarman provides an arguable interpretation of Article
10; however, an equally arguable interpretation is given in the dissenting
opinion of Lord Diplock in the same case.146 Lord Diplock's judgment
nowhere explicitly mentions Article 10; yet passages in it strongly recall
its terms, for example:
The very fact that there have been no prosecutions for blasphemous libel for
more than 50 years is sufficient to dispose of any suggestion that in modern
times a judicial decision to include this common law offence in this exceptional
class of offences of strict liability could be justified upon grounds of public
morals or public order.147
The differences of opinion between Lords Scarman and Diplock well

illustrate the difficulty in using the Convention to resolve problems in
the Common Law when the issues often involve balancing conflicting
rights and interests. In such cases, Lord Scarman correctly observes that
the issue involved is one of legal policy and on this, as Lemon shows,
judges may differ, whilst the Convention may well offer little, if any,
guidance.148
148 [1979] Ch. 344 at p. 379B; [1979] 2 AllE.R. 620 at p. 648a.
144 See n. 137 supra.
145 [1976] A.C. 617 at pp. 658 et seq.; [1979] 1 All E.R. 898 at pp. 921 et seq.
146 [1976] A.C. 617 at pp. 632 et seq.; [1975] 1 All E.R. 898 at pp. 900 et seq.
147 [1976] A.C. 617 at p. 638B; [1975] 1 All E.R. 898 at p. 905d.
148 The only possible guidance may be a presumption against restrictions on Conven-
tion rights, see the arguments cited in ? 1 (c) of the text supra. However, such a presumption
is perhaps hard to apply when, as in Lord Scarman's view in Lemon, the issue is balancing
two rights guaranteed by the Convention.
4. EUROPEAN COMMUNITIES LAW
Through its accession to the EEC treaty, the UK is bound by Commu-

nity law. The European Community Act 1972 established a variety of
devices for giving effect to EEC obligations; normally the Act provides
adequate means for invoking Community law before English courts.149
In a well-known series of cases,150 the European Court of Justice has
held that "fundamental rights form an integral part of the general
principles of law the observation of which it ensures... international
treaties for the protection of human rights on which the member States
have collaborated or of which they are signatories can supply guidelines
which should be followed within the framework of Community law." 151
The Court of Justice pays close attention to the European Convention
and its Protocols when faced with issues of fundamental rights in
Community law. For example, in the recent case of Hauer, the Court
carefully examined Article 1 of the First Protocol when ruling on the
validity of an agricultural Regulation.152
Two factors at least limit the scope of fundamental rights in Com-
munity law and thus the potential importance of the Convention as
EEC law before English courts. First, fundamental rights can only be
invoked if the matter in question comes within Community law. In the
third Defrenne case, the Court of Justice rejected Miss Defrenne's
arguments based on alleged violations of fundamental rights because it
held that the issues in question were at the relevant time subject to
national law alone and that therefore Community law was wholly
inapplicable.153 Secondly, in applying fundamental rights covered by the
Convention, the Court has held that "within the Community legal
order it ...seems legitimate that these rights should if necessary be
subject to certain limitations justified by the overall objectives pursued
by the Community on the condition that the substance of these rights
149 See, generally, L. Collins, European Law in the United Kingdom (2nd ed., 1980).
150 Inter alia: Case 29/69, Stauder v. Ulm [1969] E.C.R. 419, [1970] C.M.L.R. 112;
Case 11/70, Internationale Handelgesellschaft v. Einfuhr-Vorratsstelle Getreide [1970]
E.C.R. 1125, [1972] C.M.L.R. 255; Case 4/73, Nold v. Commission [1974] E.C.R. 491,
[1974] 2 C.M.L.R. 338; Case 44/47, Hauer v. Land Rheinland-Pfalz (Dec. 13, 1979).
There is extensive literature on the relationship between EEC law and fundamental rights,
especially under the Convention. A recent bibliography is given by Dr. O. Jacot-Guillarmod
in " Droit Communautaire et Droit International Public" (Universit6 de Neuchatel,
Imprimerie, Typoffset, La Chaux-de-Fonds, 1979), at pp. 140-141. Since then, the most
important development has been the publication of the Commission's memorandum
which favours the formal adhesion of the Communities to the Convention (May 1979).
Comments have been published on their Memorandum: see, especially: K. Economides
and J. H. H. Weiler (1979) M.L.R. 683 and The European Convention on Human Rights:
Two New Directions (1980, British Institute of Human Rights).
151 Para. 13 of the Noldjudgment [1974] E.C.R. 491 at p. 507; [1974] 2 C.M.L.R. 338
at p. 354.
152s Paras 17-19 of the judgment: Case 44/79, Hauer v. Land Rheinland-Pfalz (Dec. 13,
1979).
1s8 Case 149/77, Defrenne v. SABENA [1978] E.C.R. 1365; [1978] 2 C.M.L.R. 312;
see especially paras. 30-32 of the judgment.
is left untouched." 164 Having said this, any act done under Com-
munity authority must comply with fundamental rights: as Capotorti
A.G. has said:
First, the respect for fundamental rights is a limitation on all Community acts:
any measure whereby the powers of the Community institutions are exercised
is subject to that limitation and in that sense the entire structure of the Com-
munity is under an obligation to observe that limitation. Secondly, where
directly applicable Community measures exist (by the effect of the Treaties or
secondary legislation) they must be incorporated in a manner which accords
with the principle that human rights must be respected.155
Given the many areas which are affected by Community law and its
doctrine of supremacy over national law, EEC law provides an impor-
tant method whereby the Convention's terms may be invoked before
English courts.
COMMENTS AND ASSESSMENT
Within its sphere of operation, EEC law gives a significant role t

Convention. EEC law apart, it is important to stress that, at p
although they contain potential for development and extensi
arguments based on statutory interpretation, ultra vires and the
mon law represent only modest qualifications to the basic rule th
Convention is not part of English law. This state of affairs prom
general questions. First, from the view point of English law,
exceptions which have developed soundly based? Secondly, fr
view point of the Convention, are the UK's international obli
satisfied by the present weak status of the Convention in E
domestic law ?
The first question was raised in a recent Scottish case, Kaur v. the
Lord Advocate, apparently the first Scottish case in which the Convention
had been pleaded. It concerned deportation.'66 Lord Ross passed
judgment on arguments based purely on Scots law,1'5 but he also
considered whether he ought to follow the English cases which have
used the Convention as a guide to interpretation. He declined to do so.
Quoting Professor Hood Phillips with approval,158 Lord Ross stated
that " a Convention is irrelevant in legal proceedings unless and until its
provisions have been incorporated or given effect to in legislation. To
suggest otherwise is to confer upon a Convention concluded by the
Executive an effect which only an Act of the legislature can achieve." 159
154 Para. 14 of the Noldjudgment [1974] E.C.R. 491 at p. 508; [1974] 2 C.M.L.R. 338
at pp. 354-355.
155 Case 149/77, De/renne v. SABENA [1978] E.C.R. 1365 at p. 1385; [1978] 2
C.M.L.R. 312 at p. 321.
156 Surgit Kaur v. The Lord Advocate (June 6, 1980). The author is grateful to Mrs.
Hitchman of the Solicitor's Office, Scottish Office, for supplying a copy of this transcript.
16" In particular, Lord Ross rejected the argument based on ajus quaesitum tertio.
158 Professor O. Hood Phillips, Constitutional and Administrative Law (6th ed.),
especially at p. 446.
1 69 At p. 20 of the transcript.
Undeniably, the reasoning of Lord Ross has force. However, the

counter arguments are strong. Limited use of the Convention in
statutory interpretation and in other ways has been blessed by several
cases, including some judgments in the House of Lords. Within Parlia-
ment there seems to have been no criticism of the courts' use of the
Convention and no general attempt to prevent it. To a very considerable
extent, our system of public law is based on the courts' use of implied
principles with which they interpret legislation. Of course, such implied
principles can be excluded by legislative action, but, in the absence of
any such attempt and given the desirability of ensuring that English law
complies with the fundamental rights in the Convention, it seems over
formalistic to insist that the European Convention is irrelevant in legal
proceedings, because it has not been incorporated by legislation.
However this may be, there is now ample authority in England, unlike
apparently Scotland, to support limited reference to the Convention by
the courts.
The second general issue raised above is whether the UK's obliga-
tions under the Convention are satisfied by the limited status of the
Convention in English law. The failure to incorporate the Convention
as such into English law does not, per se, involve breach of the Con-
vention: the Convention does not " lay down for the Contracting
States any given manner for ensuring within their internal law the
effective implementation of any of the provisions of the Convention."'so
On the other hand, Article 1 of the Convention provides: " The High
Contracting Parties shall secure to everyone within their jurisdiction the
rights and freedoms defined in [the Convention and its Protocols]."
Of this obligation, the Court of Human Rights has declared:
By substituting the words " shall secure " for the words " undertake to secure "
in the text of Article 1 the drafters of the Convention... intended to make it
clear that the rights and freedoms set out [in the Convention and its Protocols]
would be directly secured to anyone within the jurisdiction of the Contracting
States. That intention finds a particularly faithful reflection in those instances
where the Convention has been incorporated into domestic law.161
Later articles of the Convention explain how its rights and freedoms
must be directly secured in the domestic legal systems. Article 14
requires that the rights " be secured without discrimination," 162 whilst
Article 13 requires that " everyone whose rights and freedoms as set
forth in this Convention are violated shall have an effective remedy
before a national authority. .. ." The meaning of Article 13 has been
clarified by the Court of Human Rights in its Klass judgment: " Article
13 must be interpreted as guaranteeing an effective remedy before a
160 Para. 50 of the Swedish Engine Drivers' Union case judgment of the Court of
Human Rights (Feb. 6, 1976) Series A, No. 19.
161 Para. 239, Ireland v. United Kingdom, judgment of Jan. 18, 1978, Series A, No. 25,
2 E.H.R.R. 25 (author's emphasis).
162 See generally para. 9 of the Belgian Linguistics (Merits) judgment of July 23, 1968,
Series A, at p. 33.
national authority to everyone who claims that his rights and freedoms
under the Convention have been violated." 163 To sum up, although
incorporation is not required, the Convention does obligate States
Parties to secure its rights directly in their internal law and to provide
an effective remedy for everyone who claims that his rights and freedoms
under the Convention have been violated. Does English law comply
with these obligations ?
To a large extent the answer is a clear " yes." The common law and
English legislation provide many admirable provisions designed to
protect the rights and freedoms of the individual.164 Quite apart from
the Convention, judges have long employed presumptions in favour of
individual rights. Nevertheless, as several recent writers on the con-
stitution have noted, there are some respects in which the traditional
formula of the common law and piecemeal legislation have failed.6e5
In Malone's case, for example, there was no right to privacy which the
plaintiff could invoke, although such a right is stated in Article 8 of the
Convention and, by Article 13, he should have been able to invoke
such a right before a UK authority. To some extent the problem in
Malone was dealt with by the judge inviting official investigation into
the apparent conflict between English law and the Convention.166 This
has happened in other reported cases.'67 Nevertheless in the end, the
general question remains as to whether the UK's obligations under
the Convention are best fulfilled by the present methods or whether the
situation would be improved by introducing some general Bill of Rights.
Whilst clearly not attempting to be comprehensive,e68 a few comments
may be offered on this question.
163 Para. 64 of the Klass judgment; the word " claims " was underlined by the Court.
164 For a general survey see Human Rights in the United Kingdom, Central Office of
Information Reference Pamphlet 162 (H.M.S.O., 1978).
16 5 See, e.g. Lord Scarman's famous Hamlyn lectures: English law-The New Dimension
(1974).
166 Megarry V.C. said: " This case seems to me to make it plain that telephone tapping
is a subject which cries out for legislation " [1979] Ch. 344 at p. 380G; [1979] 2 All E.R.
620 at p. 649C. Following the Malone judgment, the Home Office investigated the subject
of interception of communications. In April 1980 a short White Paper was published:
The Interception of Communications in Great Britain (Cmnd. 7873). In an accompanying
statement, however, the Home Secretary rejected the call for legislation: H. C. Deb., Vol.
982, No. 150, cols. 205-208. For a comment on the White Paper, see Duffy and Muchlinski,
op. cit. supra n. 135.
167 In Gleaves v. Deakins, Lord Diplock, whilst dismissing the appeal, said that the law
of criminal libel " has retained anomalies which involve serious departures from accepted
principles on which the modern criminal law is based and are difficult to reconcile with ...
[the Convention] ": [1979] 2 W.L.R. 665 at p. 667D; [1979] 2 All E.R. 497 at p. 498f. In
Whitehouse v. Lemon, less clearly on the basis of the Convention, Lord Scarman said of
blasphemy: " There is a case for legislation extending it to protect the religious beliefs and
feelings of non-Christians ": [1979] A.C. 617 at p. 658B; [1979] 1 All E.R. 898 at p. 921g.
Both criminal libel and blasphemy have been referred to the Law Commission for investi-
gation. However, the former Secretary to the Commission, Mr. J. Fieldsend, informed me
that the judicial comments in Gleaves v. Deakins and Whitehouse v. Lemon were not the
cause of the references.
168 See, generally, the Report and Evidence of the House of Lords Select Committee
on a Bill of Rights, and J. Jaconnelli, Enacting a Bill of Rights-The Legal Problems (1980).
Both the Common Law and piecemeal legislation have inadequacies

as devices for giving effect to the UK's Convention obligations,
particularly those under Article 13. The Common Law has gaps where
it fails to meet the Convention's standard,169 and meanwhile parlia-
mentary time and procedures severely limit the practical possibilities
of filling such gaps piecemeal. The latter point is well illustrated by the
fact that, despite the Sunday Times judgment and the promise of
legislative reform,170 in nearly 15 months the Government has been
unable to find time for reform of the law on contempt. Some change
seems necessary. One possible reform is a Bill of Rights which could
give power to the courts to deal with human rights questions when they
arise. However, such a power may be criticised as both undemocratic
and inappropriate for dealing with complex issues. In fact, a judicial
Bill of Rights and piecemeal legislation are not necessarily alternatives.
They can complement each other: the courts could provide a solution
until piecemeal legislation is enacted. The difficulty, however, still
remains that legislation requires parliamentary time, a very scarce
commodity. In turn, this raises very general and serious questions
about our legislative processes and the need for their reform. Leaving
such wider issues aside, it is suggested that the specific problem of
compliance with the Convention could be considerably helped by
empowering some suitable body to draft delegated legislation, when
necessary, so as to bring UK law and remedies into line with its human
rights obligations under international treaties, in particular the European
Convention. There are several devices by which democratic control
could be maintained over such a procedure, for instance, by the body's
composition, by its consultation requirements and/or by requiring that
its draft orders should require positive votes from either or both Houses
of Parliament before taking effect. It is suggested that such a scheme
(preferably combined with a justiciable Bill of Rights) would offer an
effective and democratic method of ensuring compliance with the UK's
obligations under the Convention. For the present, one hopes that
serious discussion of a Bill of Rights will continue and that, in the
meantime, English courts will continue, and perhaps extend, their
references to the Convention when its rights are in issue in cases before
them.
16 9 See, e.g. the list in the Memorandum of the British Institute of Human Rights to the
House of Lords Select Committee on a Bill of Rights: H.L. Paper 81 (Sessions 1976-77
and 1977-78), at p. 121.
170 The Court of Human Rights gave judgment on April 26, 1979; in the Queen's
speech a Bill was promised to amend the law on contempt: H.L. Deb, Vol. 400, No. 3 of
May 15, 1979, col. 5 at col. 9.

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British Institute of International and Comparative Law

English Law and the European Convention on Human Rights

Cambridge University Press, British Institute of International and Comparative Law

ALTHOUGH the European Convention on Human Rights and its Fir

* Lecturer in Law, Queen Mary College, University of London. Professor J. E. S.

give rise to remedies or rights justiciable as such in English law. Never-

As an aid to statutory interpretation, the courts have de

8 See e.g. Salomon v. Commissioners of Customs and Excise [1967] 2 Q.B

In Ex parte Phansopkar,14 reference was made to the right to respect

The third case, R. v. McCormick,26 is unique amongst UK cases

27 [1977] N.I. 105 at p. 107A; (1978) 21 E.C.H.R. Yearbook 789 at p. 792.

(a) Various Notions of Ambiguity

provisions." If the courts were to refuse to consider the Convention

(b) Applicability of the Presumption to Prior Legislation

interpreting earlier legislation. In neither of these cases, it is true, did

identical language repeatedly used in a succession of statutes, starting in

(c) The Nature of the Presumption

proportion to the " discretionary power of appreciation " enjoyed by

[The] margin of appreciation involves a certain discretion and attaches primarily

a " more extensive European supervision." Whatever one's opinion of

In general, use of the Convention as an aid to interpretation has

2. THE ULTRA VIRES RULE

It is fundamental law that administrative powers must not be exercised

legal principle. The interpretation of legislation conferring administra-

present therefore the authorities offer little encouragement for an ultra

3. THE CONVENTION AS PART OF THE COMMON LAW

(a) The Convention as Customary International Law

(i) International law and the common law

However, it is uncertain and controversial whether customary inter-

Clearly if Trendtex replaces Chung Chi Cheung as accepted law, and

85 Contrast, especially, H. Lauterpacht: " Is International Law a part of the Law of

Secondly, even if it does, at least two interpretations are possible of the

(ii) The European Convention and customary international law

opinion, the Court said, as regards the obligations of a former Manda-

On one view, the passage just quoted from Barcelona Traction

for instance, the prohibition of torture.109 It is equally clear, however,

(b) Public Policy

In Blathwayt v. Lord Crawley,"4 the House of Lords had occasion to

Notwithstanding that Blathwayt is the only reported case in point, a

Commission of Human Rights would have rejected as inadmissible an

(c) When No Clear Precedent Exists

precedents, Lord Scarman recognised that there was uncertainty in the

Convention.135 However, before Malone v. Metropolitan Police Commis-

Although Sir Robert Megarry V.-C. thus rejected arguments based on

Finally mention must be made of Science Research Councilv. Nassed.40

In the event, the House of Lords rejected the appeals. Nevertheless,

(d) The Convention and the Common Law: an Assessment

judgments so far contain at least three points of general interest. First,

The differences of opinion between Lords Scarman and Diplock well

4. EUROPEAN COMMUNITIES LAW

Through its accession to the EEC treaty, the UK is bound by Commu-

Within its sphere of operation, EEC law gives a significant role t

Undeniably, the reasoning of Lord Ross has force. However, the

Both the Common Law and piecemeal legislation have inadequacies

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