Public Law after the Human Rights Act

Citation

Hickman, T. (2010). Public Law after the Human Rights Act. Hart Publishing.

Chapter Summary

This is a monograph of eleven chapters, about 350 pages with an index, published by Hart Publishing and reviewed in the Cambridge Law Journal in 2010. The publisher says that ten years after the Human Rights Act 1998 took effect there were still no clear answers to basic questions: what the Act is, how human rights principles relate to common law doctrines in public law, whether traditional principles need replacing, and how the Act has changed the constitutional relationship between courts, government and Parliament. Unlike books that treat the Act on its own, it looks at the Act's effect on public law as a whole and suggests that the Act builds on the common law constitution. It won the Inner Temple Young Author Book Prize in 2011.

Chapter 1: Introduction

Sets out the questions the book addresses and its overall approach to the relationship between the Human Rights Act and the wider structure of public law.

Chapter 2: The Common Law and the Human Rights Act

Takes up the relationship between human rights principles and the common law, developing the thesis that the Act builds on the common law constitution rather than displacing it.

Chapter 3: Constitutional Theory and Constitutional Dialogue

Addresses the constitutional status of the Act and how it alters the relationship between courts, government and Parliament, including the idea of dialogue between the branches.

Chapter 4: Standards and Rights in Public Law

Considers how the standards public law applies to government action relate to rights.

Chapter 5: Weight and Deference

Examines the weight courts give to the views of decision-makers when reviewing them for compatibility with rights, and the doctrine of deference.

Chapter 6: Proportionality

Studies proportionality as a test of justification for interference with rights in the courts of the United Kingdom, and its relation to older review standards.

Chapter 7: Reasonableness

Looks at reasonableness, including Wednesbury unreasonableness, and whether it retains a role in the human rights era.

Chapter 8: The Forbidden Process Element in Human Rights Review

Deals with review of the decision-making process in human rights cases, as distinct from review of the substance of the decision.

Chapter 9: The Substance and Structure of Public Law after the Human Rights Act

Draws the earlier strands together into an account of the structure of public law in the human rights era.

Chapter 10: The Right of Access to Court

Analyses the right of access to a court.

Chapter 11: Derogation and Emergency

Concludes with derogation from rights in an emergency.

Key Concepts

Chapters 1–3: Introduction; The Common Law and the Human Rights Act; Constitutional Theory and Constitutional Dialogue

• Common law constitution: the thesis that the Human Rights Act builds on constitutional principles already found in the common law.
• Constitutional dialogue: the relationship between courts, government and Parliament under the Act.

Chapters 4–8: Standards and Rights; Weight and Deference; Proportionality; Reasonableness; The Forbidden Process Element

• Deference and weight: how far courts defer to or give weight to decision-makers' judgments.
• Proportionality: the structured test for justifying interference with a right.
• Wednesbury unreasonableness: the traditional standard of review that the Act put under pressure.
• Process review: scrutiny of how a decision was made as distinct from what was decided.

Chapters 9–11: Substance and Structure; Access to Court; Derogation and Emergency

• Right of access to a court: the right to have a dispute decided by a court, analysed in Chapter 10.
• Derogation: the exceptional suspension of Convention obligations in an emergency.

Critical Analysis

Strengths

• A defined thesis. The book sets out to answer a small number of structural questions about the Act and public law, and the chapters follow from that aim, from the common law foundation through the standards of review to the treatment of emergency.
• Attention to doctrine as well as theory. The chapters on weight and deference, proportionality, reasonableness and process address the working tools of judicial review, and the index shows extensive engagement with House of Lords and Strasbourg decisions.
• Recognition. The publisher notes the Inner Temple Young Author Book Prize, and the book was reviewed in the Cambridge Law Journal (2010, pp. 682–684).

Limitations

• Not an introduction. It is a research monograph that assumes knowledge of the Human Rights Act, judicial review and the leading cases. A student who has not studied them will not follow its arguments.
• Dated by later developments. It was published in 2010, so it does not cover later case law and the reform and repeal debates over the Act.
• A particular view. The common law constitution thesis is an argument that readers may contest, so it should be read alongside rival accounts.

Where It Fits in the Course

In this course, Constitutional and Administrative Law by Bradley and others is an undergraduate introduction to sources, institutions, rights and judicial review, and Public Law: Text, Cases, and Materials by Le Sueur and others is a comprehensive casebook. Law and Administration by Harlow and others is an administrative law text taking a contextual approach. Loughlin's The British Constitution: A Very Short Introduction and Bingham's The Rule of Law are short accessible works, and Loughlin's The Idea of Public Law is a graduate-level exploration of foundations.

Hickman is a specialised follow-up. It belongs after a core public law course, when the student already knows judicial review and the Act, and is useful for essays on proportionality, deference and the constitutional effect of the Act.

How to Use This Book

The book is for advanced undergraduates, postgraduates and practitioners. Read Chapters 1–3 first for the thesis, then choose chapters by topic: Chapters 5–7 for the standard of review, Chapter 10 for access to court, and Chapter 11 for emergencies. Chapter 9 is a good place to see the argument pulled together.

Read it with the cases it discusses, and with the Human Rights Act and the relevant Convention articles beside you. Use the index to follow a case or doctrine across chapters, and check later decisions for any point you plan to rely on.