ALBA Summer Conference 2018: A Review (Part 3)

24 September 2018 by

albaConor Monighan reviews the Administrative Law Bar Association (ALBA) Summer Conference 2018

Brexit update – Chair: Mr Justice Lewis; Speakers: Professor Alison Young (Sir David Williams Professor of Public Law, University of Cambridge) and Richard Gordon QC

Professor Alison Young

Is it inevitable that domestic law will alter drastically after Brexit? According to Professor Young, it is entirely possible that little change will occur.

First, the CJEU will continue to have an influence on domestic law. This is because section 6(2) of the EU (Withdrawal) Act 2018 states courts/ tribunals ‘may have regard’ to CJEU decisions (including those made after exit day) if they think it appropriate.

Second, the fundamental rights enshrined in the Charter of Fundamental Rights will probably not disappear. Although Section 5(4) of the Act states that the Charter will no longer be part of domestic law, paragraph 106 of the Explanatory Notes says “those underlying rights and principles will also be converted into UK law”. Arguably, this means lawyers will still be able to use case law in which these general principles were referred to. However, a limitation to reliance on fundamental principles is set out by s.3(1) of the Schedule to the Act. This states no court/ tribunal may disapply law because it is incompatible with any of the general principles of EU law.

Third, the Marleasing effect means that member states are required to interpret national legislation in line with EU law ‘so far as possible’. This means general principles of EU law could still have a significant impact in the interpretation of domestic law.

Fourth, there is the ‘New Zealand solution’. In Taylor [2015] NZHC 1706, the New Zealand High Court made a declaration of inconsistency with the New Zealand Bill of Rights Act 1990. Professor Young posited whether the same approach could be adopted by UK courts in relation to the general principles expressed in the Charter.

In conclusion, repealing the Charter of Fundamental Rights does not inevitably mean it will no longer continue to have influence.

Richard Gordon QC

Unlike Mark Antony, Mr Gordon came to praise the European Union (Withdrawal) Act 2018 and not to bury it.

Mr Gordon noted that the Act creates a new kind of law, called ‘retained EU law’. The Act omits to provide guidance on the legal status of this new law, which will presumably have to be decided by the courts, but this is a minor lacuna in an otherwise brilliant piece of legislation.

Like any well drafted piece of legislation, there are a few major omissions:

  • The transition period, during which EU law will still take effect, is not accounted for in the Act.
  • The arrangements for a ‘no deal’ situation are unclear. s.13 suggests that a resolution will be tabled in both Houses at the end of negotiations. Whether this makes any practical difference depends almost entirely upon whether the Speaker is able to allow a vote on the resolution. If he feels he cannot, Parliament will not debate the resolution and so it will presumably have no meaningful vote. The resolution triggered in the House of Lords is particularly weak, because it only requires them to ‘take note’ of the framework for the future relationship tabled by Ministers [s.13].

Mr Gordon suggested that, given the undoubted benefits of Brexit, these flaws are minor. As he put it,

what does it matter if planes can’t fly, if cars can’t drive; we have taken back control.

“The future of human rights 20 years on from the Human Rights Act 1998” – Chair: Mr Justice Kerr; Speakers: Nathalie Lieven QC, Corey Stoughton (Advocacy Director, Liberty), Professor David Feldman QC (Hon.) (Rouse Ball Professor of English Law, University of Cambridge), Joshua Rozenberg QC (Hon.) (Legal commentator and journalist)

Nathalie Lieven QC

Ms. Lieven’s talk examined the situations in which courts are prepared to defer to Parliament when interpreting the HRA 1998. She focused particularly on the Northern Ireland Human Rights Commission case (NIHRC). There, the Northern Ireland Human Rights Commission challenged Northern Ireland abortion law and sought a declaration of incompatibility.

In NIHRC Lady Hale suggested courts should be loath to defer to Parliament when interpreting the HRA. Her Ladyship argued that the courts “may be thought better qualified” than democratic bodies to consider the HRA [38]. This is for a number of reasons, including the ability of the courts to take a dispassionate view of the matter (something which cannot be achieved by Parliament). By contrast, Lord Mance was of the opinion that there are “inherent limitations” in using “court proceedings as a means of determining issues of social and ethical policy” [344].

The majority dismissed the appeal. It did so despite being aware that public opinion favoured change, that international law bodies supported a change in the law, and that Northern Irish Assembly wasn’t going to legislate on the issue (not least because it is not sitting). Ms. Lieven’s argued that the court’s reluctance to decide on moral issues and to defer to Parliament produces strange anomalies. For example, courts will protect the rights of terrorists (going against the views of most of the population), but will not intervene to assist a 13 year old girl who has been raped.

One further complication is how courts are able to decide which social issues are contentious. In the NIHRC case, polling was important to the Supreme Court but not to the Court of Appeal or High Court. One attendee suggested that a predominantly male panel of judges feel particularly uncomfortable dealing with women’s rights, in a way they don’t with LGBT rights. This may undermine the judiciary’s legitimacy.

Professor David Feldman QC

Professor Feldman started by recalling the period immediately prior to the enactment of the HRA. Back then, courts were focused on creating continuity. He argued that the feeling among judges that the HRA did not ‘create’ proper rights has had negative consequences for the protection of fundamental rights. In particular, it has created a weak system of remedies arising from breaches of the HRA.

Section 6(1) of the HRA states that it “is unlawful for a public authority to act in a way which is incompatible with a Convention right”. Professor Feldman labelled this as a ‘non-remedy masquerading as a remedy’, suggesting that despite the appearance of a remedy one does not really exist. Not only are there no adequate remedies, but a system of damages has not been properly developed.

Professor Feldman argued that the HRA ought to be treated as part of the general law. It is a basic principle of constitutional law that unlawful delegated legislation will be ignored to the extent that it is unlawful. However, for reasons which remain unclear this rule does not currently apply to the HRA.

Joshua Rozenberg QC

Mr Rozenberg’s talk focused on a document recently published by the Ministry of Justice (MoJ): ‘A proposal for a Remedial Order to amend the Human Rights Act 1998’. It is currently out for consultation.

The significance of the change proposed is illustrated by the unusual story of Mr William Hammerton. Mr Hammerton was wrongly found to be in contempt of court. Angry, he decided to throw three eggs at the judge who had originally jailed him. Therefore, he was found to be in contempt of court again. Later that year Mr Hammerton launched another action. This time, he attempted to sue the MoJ in order to obtain damages for false imprisonment. His case went all the way up to the ECtHR, which found there was no effective remedy for a breach of Article 6 which arises from a disproportionately long sentence for contempt.

Under the proposals, the MoJ seeks to amend the HRA to correct this flaw. The change will mean that defendants who have wrongfully been deprived of legal representation in contempt proceedings, and spend an excessive amount of time in prison as a result, will be able to receive compensation by launching an action directly against the MoJ. This will avoid the need to go to Strasbourg.

Corey Stoughton

Ms. Stoughton focused on the political structures which might influence the HRA in the future. As Corey noted, the Conservative Party has dropped the idea that the HRA might be scrapped. However, some senior Conservatives still support the idea (including Dominic Raab, the Brexit Secretary). In addition, one ought not to underestimate the numbers of voters who thought leaving the EU meant also leaving the ECHR.

A particular problem is posed by the loss of the Charter of Fundamental Rights after Brexit (cf: s.5(2) EU (Withdrawal) Act). The rights enshrined in the Charter go beyond the protection offered by the HRA, such as offering added protection for LGBT+ rights. The powerful remedy of disapplying primary legislation which conflicts with the Charter will also be lost after Brexit. A key dilemma for organisations such as Liberty, then, is how the law might be reformed to restore those rights which have been lost, but without jeopardizing the HRA.

A number of papers from the conference are available here.

This post merely reflects the author’s personal interpretation of what was said at the conference. The opinions expressed do not necessarily reflect the views of ALBA, conference attendees, or the UKHRB.

Welcome to the UKHRB

This blog is run by 1 Crown Office Row barristers' chambers. Subscribe for free updates here. The blog's editorial team is:
Commissioning Editor: Jonathan Metzer
Editorial Team: Rosalind English
Angus McCullough QC David Hart QC
Martin Downs
Jim Duffy

Free email updates

Enter your email address to subscribe to this blog for free and receive weekly notifications of new posts by email.




7/7 Bombings 9/11 A1P1 Aarhus Abortion Abu Qatada Abuse Access to justice adoption AI air pollution air travel ALBA Allergy Al Qaeda Amnesty International animal rights Animals anonymity Article 1 Protocol 1 Article 2 article 3 Article 4 article 5 Article 6 Article 8 Article 9 article 10 Article 11 article 13 Article 14 article 263 TFEU Artificial Intelligence Asbestos Assange assisted suicide asylum asylum seekers Australia autism badgers benefits Bill of Rights biotechnology birds directive blogging Bloody Sunday brexit Bribery British Waterways Board Catholic Church Catholicism Chagos Islanders Charter of Fundamental Rights child protection Children children's rights China christianity circumcision citizenship civil liberties campaigners civil partnerships climate change clinical negligence closed material procedure Coercion Cologne Commission on a Bill of Rights common buzzard common law communications competition confidentiality confiscation order conscientious objection consent conservation constitution contact order contempt of court Control orders Copyright coronavirus costs costs budgets Court of Protection crime criminal law Criminal Legal Aid criminal records Cybersecurity Damages data protection death penalty declaration of incompatibility defamation deficit DEFRA Democracy village Dennis Gill dentist's registration fees deportation deprivation of liberty derogations Detention devolution Dignitas dignity Dignity in Dying diplomacy director of public prosecutions disability Disability-related harassment disabled claimants disciplinary hearing disclosure Discrimination Discrimination law disease divorce DNA doctors does it matter? domestic violence Dominic Grieve don't ask don't ask don't tell don't tell Doogan and Wood double conviction DPP guidelines drones duty of care ECHR economic and social rights economic loss ECtHR Education election Employment Environment environmental information Equality Act Equality Act 2010 ethics Ethiopia EU EU Charter of Fundamental Rights EU costs EU law European Convention on Human Rights European Court of Human Rights European Court of Justice european disability forum European Sanctions Blog Eurozone euthanasia evidence Exclusion extra-jurisdictional reach of ECHR extra-territoriality extradition extradition act extradition procedures extradition review extraordinary rendition Facebook Facebook contempt facial recognition fair procedures Fair Trial faith courts fake news Family family courts family law family legal aid Family life fatal accidents act Fertility fertility treatment FGM fisheries fishing rights foreign criminals foreign office foreign policy France freedom of assembly Freedom of Association Freedom of Expression freedom of information Freedom of Information Act 2000 freedom of movement freedom of speech free speech game birds gangbo gang injunctions Garry Mann gary dobson Gary McFarlane gay discrimination Gay marriage gay rights gay soldiers Gaza Gaza conflict Gender General Dental Council General Election General Medical Council genetic discrimination genetic engineering genetic information genetics genetic testing Google government Grenfell grooming Gun Control gwyneth paltrow gypsies habitats habitats protection Halsbury's Law Exchange hammerton v uk happy new year harassment Hardeep Singh Haringey Council Harkins and Edwards Health healthcare health insurance Heathrow heist heightened scrutiny Henry VII Henry VIII herd immunity hereditary disorder High Court of Justiciary Hirst v UK HIV HJ Iran HM (Iraq) v The Secretary of state for the home department [2010] EWCA Civ 1322 Holder holkham beach holocaust homelessness Home Office Home Office v Tariq homeopathy hooding Hounslow v Powell House of Commons Housing housing benefits Howard League for Penal Reform how judges decide cases hra damages claim Hrant Dink HRLA HS2 hs2 challenge hts Human Fertilisation and Embryology Act Human Fertilisation and Embryology Authority human genome human rights Human Rights Act Human Rights Act 1998 human rights advocacy Human rights and the UK constitution human rights commission human rights conventions human rights damages Human Rights Day human rights decisions Human Rights Information Project human rights news Human Rights Watch human right to education human trafficking hunting Huntington's Disease HXA hyper injunctions Igor Sutyagin illegality defence immigration Immigration/Extradition Immigration Act 2014 immigration appeals immigration detention immigration judge immigration rules immunity increase of sanction India Indonesia Infrastructure Planning Committee inherent jurisdiction inherited disease Inhuman and degrading treatment injunction Inquest Inquests insult insurance insurmountable obstacles intelligence services act intercept evidence interception interests of the child interim remedies international international conflict international criminal court international humanitarian law international human rights international human rights law international law international treaty obligations internet internet service providers internment internship inuit investigation investigative duty in vitro fertilisation Iran iranian bank sanctions Iranian nuclear program Iraq Iraqi asylum seeker Iraq War Ireland irrationality islam Israel Italy iTunes IVF ivory ban jackson reforms Janowiec and Others v Russia ( Japan Jason Smith Jeet Singh Jefferies Jeremy Corbyn jeremy hunt job Jogee John Hemming John Terry joint enterprise joint tenancy Jon Guant Joseph v Spiller journalism judaism judges Judges and Juries judging Judicial activism judicial brevity judicial deference judicial review Judicial Review reform judiciary Julian Assange jurisdiction jury trial JUSTICE Justice and Security Act Justice and Security Bill Justice and Security Green Paper Justice Human Rights Awards JUSTICE Human Rights Awards 2010 justification just satisfaction Katyn Massacre Kay v Lambeth Kay v UK Ken Clarke Ken Pease Kerry McCarthy Kettling Kings College Klimas koran burning Labour Lady Hale lansley NHS reforms LASPO Law Commission Law Pod UK Law Society Law Society of Scotland leave to enter leave to remain legal aid legal aid cuts Legal Aid desert Legal Aid Reforms legal blogs Legal Certainty legal naughty step Legal Ombudsman legal representation legitimate expectation let as a dwelling Leveson Inquiry Levi Bellfield lewisham hospital closure lgbtq liability Libel libel reform Liberal Democrat Conference Liberty libraries closure library closures Libya licence conditions licence to shoot life insurance life sentence life support limestone pavements limitation lisbon treaty Lithuania Litigation litvinenko live exports local authorities locked in syndrome london borough of merton London Legal Walk London Probation Trust Lord Bingham Lord Bingham of Cornhill Lord Blair Lord Goldsmith lord irvine Lord Judge speech Lord Kerr Lord Lester Lord Neuberger Lord Phillips Lord Rodger Lord Sumption Lord Taylor LSC tender luftur rahman machine learning MAGA Magna Carta mail on sunday Majority Verdict Malcolm Kennedy malice Margaret Thatcher Margin of Appreciation margin of discretion Maria Gallastegui marriage material support maternity pay Matthew Woods Mattu v The University Hospitals of Coventry and Warwickshire NHS Trust [2011] EWHC 2068 (QB) Maya the Cat Mba v London Borough Of Merton McKenzie friend Media and Censorship Medical medical liability medical negligence medical qualifications medical records medicine mental capacity Mental Capacity Act Mental Capacity Act 2005 Mental Health mental health act mental health advocacy mental health awareness Mental Health Courts Mental illness merits review MGN v UK michael gove Midwives migrant crisis Milly Dowler Ministerial Code Ministry of Justice Ministry of Justice cuts misfeasance in public office modern slavery morality morocco mortuaries motherhood Motor Neurone disease Moulton Mousa MP expenses Mr Gul Mr Justice Eady MS (Palestinian Territories) (FC) (Appellant) v Secretary of State for the Home Department murder murder reform Musician's Union Muslim NADA v. SWITZERLAND - 10593/08 - HEJUD [2012] ECHR 1691 naked rambler Naomi Campbell nationality National Pro Bono Week national security Natural England nature conservation naturism Nazi negligence Neuberger neuroscience Newcastle university news News of the World new Supreme Court President NHS NHS Risk Register Nick Clegg Nicklinson Niqaab Noise Regulations 2005 Northern Ireland nuclear challenges nuisance nursing nursing home Obituary Occupy London offensive jokes Offensive Speech offensive t shirt oil spill olympics open justice oppress OPQ v BJM orchestra Osama Bin Laden Oxford University paramountcy principle parental rights parenthood parking spaces parliamentary expenses parliamentary expenses scandal Parliamentary sovereignty Parliament square parole board passive smoking pastor Terry Jones patents Pathway Students Patrick Quinn murder Pensions persecution personal data Personal Injury personality rights perversity Peter and Hazelmary Bull PF and EF v UK Phil Woolas phone hacking phone taps physical and mental disabilities physician assisted death Pinnock Piracy Plagiarism planning planning human rights planning system plebgate POCA podcast points Poland Police police investigations police liability police misconduct police powers police surveillance Policy Exchange report political judges Politics Politics/Public Order poor reporting Pope Pope's visit Pope Benedict portal possession proceedings power of attorney PoW letters to ministers pre-nup pre-nuptial Pre-trial detention predator control pregnancy press press briefing press freedom Prince Charles prince of wales princess caroline of monaco principle of subsidiarity prior restraint prison Prisoners prisoners rights prisoners voting prisoner vote prisoner votes prisoner voting prison numbers Prisons prison vote privacy privacy injunction privacy law through the front door Private life private nuisance private use proceeds of crime Professional Discipline Property proportionality prosecution Protection of Freedoms Act Protection of Freedoms Bill Protest protest camp protest rights Protocol 15 psychiatric hospitals Public/Private public access publication public authorities Public Bodies Bill public inquiries public interest public interest environmental litigation public interest immunity Public Order Public Sector Equality Duty putting the past behind quango quantum quarantine Queen's Speech queer in the 21st century R (on the application of) v Secretary of State for the Home Department & Ors [2011] EWCA Civ 895 R (on the application of) v The General Medical Council [2013] EWHC 2839 (Admin) R (on the application of EH) v Secretary of State for the Home Department [2012] EWHC 2569 (Admin) R (on the application of G) v The Governors of X School Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 race relations Rachel Corrie Radmacher Raed Salah Mahajna Raed Saleh Ramsgate raptors rehabilitation Reith Lectures Religion resuscitation RightsInfo right to die right to family life right to life Right to Privacy right to swim riots Roma Romania Round Up Royals Russia saudi arabia Scotland secrecy secret justice Secret trials security services sexual offence Sikhism Smoking social media social workers South Africa south african constitution Spain special advocates spending cuts Standing starvation statelessness stem cells stop and search Strasbourg super injunctions Supreme Court Supreme Court of Canada surrogacy surveillance swine flu Syria Tax Taxi technology Terrorism terrorism act tort Torture travel treason treaty accession trial by jury TTIP Turkey Twitter UK Ukraine unfair consultation universal jurisdiction unlawful detention USA US Supreme Court vaccination vicarious liability Wales War Crimes Wars Welfare Western Sahara Whistleblowing Wikileaks wildlife wind farms WomenInLaw Worboys wrongful birth YearInReview Zimbabwe


This blog is maintained for information purposes only. It is not intended to be a source of legal advice and must not be relied upon as such. Blog posts reflect the views and opinions of their individual authors, not of chambers as a whole.

Our privacy policy can be found on our ‘subscribe’ page or by clicking here.

%d bloggers like this: