The Impact of the Human Rights Bill on English Law (review)

The Impact of the Human Rights Bill on English Law, edited by Basil S. Markesinis (Oxford, Oxford University Press, 1998), 191 pp.

"Law books lead the field in built-in obsolescence"

anonymous

The chief problem with Markesinis' The Impact of the Human Rights Bill on English Law, that it was premature, is an accusation that could never be laid at this review--I have sat on the book for almost twelve months. The reason for relying on the editor's indulgence, however, was that I could not see a reason for reading the book. It arrived in 1999 after the Human Rights Act 1998 had been passed with several significant amendments to the bill that had been introduced during a late stage of its passage through Parliament, in particular, amendments with respect to the press and the church. Furthermore, there was a plethora of books of varying quality that took priority, especially given the fact that the Act is not to be brought into force until October 2000. Indeed, in the last few weeks of 1999 a high quality analysis has been published. ¹

The other main reason for not rushing to read this book was the fact that most of the very eminent authors, drawn from the judiciary, practice, and academia, are not human rights lawyers, but rather subject specialists in English Law. The perspective is rarely that of international human rights law as it has been interpreted in Strasbourg and how present English law fails to meet those standards, rather the initial focus is English law. The Act could have more dramatic consequences if one starts from the premise that it provides rights for victims as established by the European Convention for the Protection of Human Rights and Fundamental Freedoms ² (ECHR) and these are freestanding rights, not simply to be grafted onto English statutes and the common law. This book is the product of a conference of English lawyers considering the Human Rights Bill, rather than human rights lawyers looking at English law from an ECHR perspective.

So what does the book offer? The authors are extremely learned in their fields and good scholarship should never be ignored. Although their focus is not, for the most part, international human rights law, their perspectives are of interest. The comparative analysis of how various legal systems have addressed issues pertaining to the rights to be found within the ECHR is thorough and coherent. Christopher McCrudden's chapter on freedom of speech may well last longer than most because he has provided a scholarly analysis of decisions in Strasbourg and in the United States, dissecting the policy reasons for the different approaches in the two systems. These policy reasons raise questions for any court at any time faced with a freedom of speech case. Bob Hepple's views on the impact on labor law are equally insightful, especially given the interrelationship that will develop with the law of the European Community. It is unfortunate that there are only five sides devoted to the intriguing question of the effect of the Human Rights Act on constitutional theory.

In sum, books on bills only seem to have a point where comparison is being made with the final act that turned out to be different in character, or if the bill is defeated, as happened to a series of bills in Congress in the 1980s relating to the political offense exemption in extradition law. This book is only of interest now to see how far the prognostications of the distinguished commentators are proved right after October 2000.

Geoff Gilbert
Professor of Law
University of Essex

Notes

1. Stephen Grosz et al., Human Rights: The 1998 Act and the European Convention (2000).

2. The European Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 Nov. 1950, 213 U.N.T.S. 221, Europ. T.S. No. 5(entered into force 3 Sept. 1953).

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