Vol. 7 No. 6 (June 1997) pp. 266-268.

THE UNITED KINGDOM CONFRONTS THE EUROPEAN CONVENTION ON HUMAN RIGHTS by Donald W. Jackson. Gainesville: University Press of Florida, 1997. 214 pp. Cloth $49.95.

Reviewed by Charles R. Epp, Department of Public Administration, University of Kansas.
 

Some scholars argue that the U.S. Constitution and rights litigation impose harmful constraints on democracy; others believe that the Constitution and rights litigation promote a myth of rights that detracts from serious efforts at reform. Many of the disenchanted traditionally have looked to Britain as an example of how things can be done right, which means done without all that constitutional mumbo-jumbo. Yet in Britain, events that would be unlikely in the U.S. (and that would be viewed unsympathetically even by many skeptics of rights litigation) routinely occur. In recent years, the Tory government blocked publication of evidence showing that the British intelligence service had attempted to destabilize the Labour government in the mid-1970s; prison administrators routinely blocked or eavesdropped on inmates’ attempts to contact their lawyers; a newspaper was convicted of blasphemy for publishing a poem and illustration that lampooned Jesus, while the courts blocked charges of blasphemy against Rushdie’s SATANIC VERSES on the grounds that blasphemy law protects only the Christian religion; and a number of plausibly innocent people were charged, convicted, and sentenced to years in prison for alleged involvement in terrorist acts. All the while, the judges sat by and either did nothing or gave their imprimatur to violations of freedom of speech, due process, and equal protection.

As Donald Jackson argues in this excellent new book examining these and other issues, judges in the U.K. nonetheless increasingly have been forced to address violations of civil liberties and civil rights. The book has two main theses. The first is that the failure to respect some basic individual rights in Britain is due in significant part to the absence of a bill of rights; the second thesis is that the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) is providing a partial remedy. Jackson has framed the book around Kenneth Davis’s (1971) famous aphorism that "Where the law ends, discretion begins," and that discretion unguided by rules tends toward abuse. Jackson argues that higher-law human rights principles have the effect of limiting the extent of official discretion, and thereby, the extent to which officials may abuse individual rights.

Jackson supports his argument in eight well-organized chapters. In chapters 1 and 2, he introduces the topic and summarizes the main elements of the European Convention and its implementing institutions (which are the European Commission of Human Rights and the European Court of Human Rights). Chapters 3 through 6 summarize violations of individual rights in the U.K., and cases challenging those violations in the European Commission and Court of Human Rights, in four key policy areas: a) the issue of terrorism (particularly the Northern Ireland "Troubles"); b) prisoners’ rights; c) aliens and immigration; and d) freedom of expression. Chapter 7 surveys the reception by U.K. courts of European human rights rulings, and Chapter 8 (the conclusion) briefly compares the U.S. and U.K. human rights situations and argues that, although the ECHR has had positive effects, the U.K. would benefit further from an entrenched bill of rights.

The book has several important strengths. The ECHR, as Jackson persuasively shows, has had a significant influence on law and administrative practice in the United Kingdom. Administrators and judges often maintained significant limitations on individual rights until forced to relent by litigation and rulings under the ECHR. The substantive policy chapters (3 through 6) provide clear and thorough summaries of European Commission and Court decisions in cases brought against the U.K; due to the breadth and clarity of coverage in those chapters, the book is potentially useful not only for scholars but also for introducing a comparative component into civil liberties/civil rights courses (although the price for the hardbound is prohibitive for the latter purpose). Similarly, the introductory and concluding chapters nicely set forth a number of issues related to studying civil rights and liberties comparatively. Although Jackson does not exaggerate or celebrate the record of the U.S. under the Bill of Rights or the record of the U.K. under the ECHR, he nonetheless presents a clear argument in favor of the utility of constitutional protections for rights and liberties.

The book’s analysis and discussion, moreover, provoke a number of very interesting questions for further scholarship. First, although Jackson argues that rules constrain discretion and thereby limit abuses of human rights, he also provides evidence that qualifies that thesis in important ways. In chapter 4, on prisoners’ rights, he notes that prison administrators, prior to the intrusions of the ECHR, were subject to many substantive rules, which were to be interpreted and applied in light of additional instructions. In all, some 500 different rules governed prisoner communications; in the midst of that proliferation, the rights of prisoners to confidential communications with their lawyers were seriously trampled. Jackson takes the proliferation of rules to be evidence of "bureaucracy unabated and resistant to change" (p. 79). Yet if that is so, then the creation of rules is not, by itself, a solution to the problem of the abuse of administrative discretion. Something besides rules is necessary. What is it?

Second, and relatedly, Jackson documents in chapter 7 the general resistance by judges in the U.K. to rulings by the European Court of Human Rights. The U.K. judges in many cases interpreted ECHR rulings as narrowly as possible; in other cases they claimed to find principles in the common law that matched the requirements of the ECHR, thereby avoiding resting their decisions directly on the European Convention (which is not formally a part of U.K. statutory law). Although U.K. judges have hesitated to defy rulings of the European Court of Human Rights, some of the judges have been openly hostile to those rulings. The judges themselves, then, have exercised quite a wide range of discretion under the ECHR. Given that discretion, what forces have encouraged or compelled at least minimal fidelity to ECHR rulings?

Finally, I have one reservation about Jackson’s thesis regarding the ECHR’s impact. That thesis, it seems to me, would have been strengthened by a more thorough demonstration that plausible influences other than the ECHR are not the source of growing responsiveness to individual rights in the U.K. One way of getting at this is to examine whether rights-supportive changes in U.K. law are largely limited to policy areas affected by the ECHR. Some scholars have argued that U.K. administrative law is increasingly attentive to individual rights, and that the changes are not limited to policy areas affected by the ECHR (see, e.g., Schwartz 1987; Sterett 1997). Jackson, by contrast, argues that the changes in administrative law, unlike the changes encouraged by the ECHR, have been very limited in scope (pp. 165-71). Undoubtedly the administrative law developments, at least in comparison to constitutional law in the U.S., are relatively modest; but the changes compelled by the ECHR, too, have been modest. There have been significant, but limited, developments both in areas affected by the ECHR and in areas not touched by it. That pattern suggests at least the possibility that the law on civil liberties and civil rights in the U.K. is responding to social and political changes that are broader and more pervasive than the ECHR. On that point, though, there is much room for legitimate disagreement, and Jackson’s analysis is a very important contribution to continuing scholarship.

All in all, Jackson’s analysis is complex and nuanced, and his evidence is thorough and
clearly presented. THE UNITED KINGDOM CONFRONTS THE EUROPEAN CONVENTION is, in short, an important and provocative book that is must reading for any scholar interested in the application of transnational human rights law, comparative constitutionalism, and constitutional reform.

REFERENCES

Davis, Kenneth Culp. 1971. DISCRETIONARY JUSTICE: A PRELIMINARY INQUIRY. Urbana: University of Illinois Press.

Schwartz, Bernard. 1987. Lions Over the Throne: The Judicial Revolution in English Administrative Law. New York: New York University Press, 1987.

Sterett, Susan. 1997. Creating Constitutionalism? The Politics of Legal Expertise and Administrative Law in England and Wales. Ann Arbor: University of Michigan Press.


Copyright 1997