Civil Liberties Law: The Human Rights Act Era
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1 Civil Liberties Law: The Human Rights Act Era Noel Whitty Law Department, Keek University Therese Murphy School of Law, University of Nottingham Stephen Livingstone School of Law, Queen's University, Belfast Butterworths A Member of the LexisNexis Group
2 vu Contents Preface v Table of statutes xi Table of statutory instruments xv Table of European instruments xvii Table of international instruments xix List of cases xxi CHAPTER ONE CLVIL LIBERTIES LAW: THE HUMAN RIGHTS ACT ERA 1 Introduction 1 I. Why civil liberties law: the Human Rights Act era? 5 Towards a civil liberties law for the Human Rights Act era: continuity and change 6 Towards a civil liberties law for the Human Rights Act era: deflating human rights claims 15 Civil liberties law: the Human Rights Act era 17 II. The Human Rights Act: a basic outline 18 The European Convention on Human Rights 18 The Human Rights Act 21 III. Reviewing the Human Rights Act: more doctrinal analysis 23 The impact on judicial review 27 The right to a remedy 29 The definition of 'victim' and standing to litigate 31 Defining a public authority and public function 33 Private autonomy and power: the Human Rights Act's horizontal effect 35 IV. 'Someone must be trusted. Let it be the judges': whither democracy? 39 The judicial record and judges' views on civil liberties, the common law and modern constitutionalism 41 Awaiting the Human Rights Act: two old orthodoxies and a new orthodoxy on judges and judging 46 V. Reconstructing constitutionalism: towards a nonfoundationalist approach to law and adjudication 52 Conclusion 55
3 viii Contents CHAPTER TWO PUBLIC ORDER LAW AND PRACTICE 57 Introduction 57 I. Overview 59 Public order law and practice and the UK 'rights' tradition 59 'Law and order' and public order 63 New directions in public order 66 II. Outline of public order law 68 III. Protest and order 71 Protest, disorder and riot 73 Peace, order and public order 76 IV. Balance 80 Public meetings and marches 81 Public order legislation: The advent of zero tolerance 85 Towards balance 87 V. The decision-makers 94 The courts 94 The public order police 95 Conclusion 101 CHAPTER THREE TERRORISM: RHETORIC AND REALITY 103 Introduction 103 I. Anti-terrorist law, civil liberties and civil libertarians 105 The costs of anti-terrorist law and practice 105 Anti-terrorism and the civil libertarian dilemma 108 II. The reality of terrorism 112 The discourse of terrorism 112 The definitions of terrorism 117 The extent of the terrorist threat in the UK 121 Justifying the Terrorism Act III. Responding to terrorism: the lessons of Northern Ireland 128 Choices in anti-terrorist strategy 128 Implementing anti-terrorist policy: anti-terrorist legislation Implementing anti-terrorist policy: the role of the military 138 Implementing anti-terrorist policy: the role of the police 143 IV. Terrorism and civil liberties: sites of struggle 150 Parliament 151 The media 153 The courts 155 International forums 159 Conclusion 161 CHAPTER FOUR FAIR TRIAL VALUES: POLICING, PROSECUTION AND TRIAL PRACTICES 163 Introduction 163 Fair trial and the Human Rights Act 165 I. Fair trial in the civil liberties textbook tradition 167
4 Contents ix Catalysts for rethinking fair trial values 169 II. The pre-trial stage: access to legal advice in police custody 180 Empirical findings on custodial legal advice 181 Explaining the empirical findings: due process v crime control? 183 Towards an account of the right to legal advice in context 188 III. The trial stage: rape and the criminal process 192 Disclosure of evidence to the defence in rape cases 196 Cross-examination on previous sexual history in the trial 206 Rape prosecutions, rights discourse and the Human Rights Act 211 Conclusion 213 CHAPTER FIVE PRISONERS' RIGHTS 215 Introduction 215 I. The changing dynamics of imprisonment 219 Government officials and policy 220 Prison staff 227 Prisoners 232 II. Legal strategies for protecting prisoners' rights 237 The'rule of law'strategy 239 The 'prison as public body' strategy 240 The 'human rights of prisoners' strategy 242 III. Sites of legal conflict 244 (1) Establishing the accountability of prison authorities 247 (2) Maintaining prisoner contacts with the outside world 253 (3) Challenging discipline and control policies 261 (4) Improving prison conditions 265 (5) Reforming prisoner release procedures 268 Conclusion 277 CHAPTER SIX DEMOCRATISING PRIVACY 279 Introduction 279 I. An overview of privacy law 280 Parliament, the press and privacy 280 The judiciary and the 'right to privacy': a special relationship? 283 II. The European Convention on Human Rights and privacy 292 III. Property and privacy 298 IV. The value of privacy: searching for a common feature 302 The public-private divide 304 Privacy explained? 305 V. 'The way we live now': the information society and privacy 310 Technology, commerce and governance in information society 310 Media culture and practices in information society 315 VI. Trumping privacy 317 Privacy, power and democratic publicity 318 Privacy in public 320 Privacy violations and the common good 324 Conclusion 326
5 x Contents CHAPTER SEVEN BEYOND THE SECRET STATE 329 Introduction 329 I. Beyond the Secret State 331 II. Secrecy: the British way 339 III. A supporting role: the Official Secrets Acts of 1889 and The 1889 and 1911 Acts: second time lucky? 346 Offical secrets and national security: creating the link 348 IV. The Official Secrets Act 1989: 'legislation to last a generation'? 360 V. Glasnost 361 Inside the belly of government: sleaze and secrets 362 Freedom of information: from principle to practice 363 Changing media practices 365 'The name is Shayler, David Shayler' 366 VI. 'Mission Impossible'?: new directions for civil liberties law in the HRA era 368 Constitutional vacuum? 369 War and privatisation 372 Conclusion 375 CHAPTER EIGHT THE STUFF OF LEGEND: FREEDOM OF EXPRESSION AND EQUALITY 377 Introduction 377 I. Freedom of expression in the civil liberties tradition 380 II. Equality and non-discrimination in the civil liberties tradition 387 Anti-discrimination law: a late starter 389 Law, law and more law 397 Article 14, ECHR 403 III. Expression and equality in the age of recognition 405 The late-modern way: injury, identity and law reform 405 Progress denied 421 Conclusion: towards critical pragmatism and imagination 428 Introducing critical pragmatism and imagination 429 Select bibliography 435 Appendix 449 Index 471
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