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The Human Rights Act 1998




26(2) UNSWLJ 418

Doc. No. 2003.008


Introductory note by Francis Bennion


I was asked to write the following article by the Editor of the University of New South Wales Law Journal Thematic Issue for 2003. He explained that the Thematic Issue is devoted to a single topic of legal (and, indeed, general) interest, and that previous Thematic Issues have focused on, for example, The Centenary of the Australian Constitution, Evidence and Procedure and Freedom of Property. He said that the topic for the 2003 Thematic Issue was The Common Law, adding: ‘The issue will consider the function of the common law today, with articles structured around tensions existing at the three “levels” of the common law:


1. The common law as opposed to equity;

2. The common law as opposed to statute;

3. The common law as opposed to the civil law and other legal systems.’


The Editor went on:


‘ Given your eminence and expertise in the area, I was hoping you would contribute a piece on human rights protected by courts and human rights protected by statute. After the advent of the European Union, Australia has been described (admittedly only, to my knowledge, by Australian judges) as one of the few remaining “pure common law” jurisdictions. I had in mind an article by you on whether (and how) the European Union and the Human Rights Act 1998 (UK) have brought about a qualitative change in the way human rights are protected in UK law.’


That envisaged an article favouring human rights law, but the result below did not quite turn out that way. Philip Davies MP, who does not favour human rights law, wrote to me in 2006:


‘ I am delighted to read that you are a lawyer who is not focused on “human rights”. If only you were in Parliament! Your article should be compulsory reading for anyone at law school!’





Page 418



What is the best sort of law for a common law country? It is often thought nowadays to be one that protects what are known as ‘human rights’. This much-used concept may however threaten law itself. It may therefore endanger the rule of law, a principle which protects the supremacy of regular as opposed to arbitrary power. It may also threaten the vital concept of law and order. In the present article I examine these questions with particular reference to the common law, since that is the subject of this Thematic Issue.


         I           THE NATURE OF HUMAN RIGHTS


Human rights are now, in the language of legal educators, ‘a pervasive’. 1 The concept has been called ‘the great idea of our time’. 2 On the other hand a commentator has referred pejoratively to the fatal moment when ‘the human rights juggernaut came roaring down the road’. 3 I for one prefer to be governed by the law rather than by a populist juggernaut. If it crashes into the law and damages it, that must be a matter of grave concern.

Human rights as now known are a worthy product of muddled thinking. They postulate that every human being living on the face of the planet is in possession of a comprehensive bundle of supportive personal rights applying directly to themselves. Whether this is true or not partly depends on what is meant by a right here. It must either be a legal right or a moral right, for there is no other kind. The human rights concept, as usually proclaimed, does not make clear which of these two meanings is intended or indeed whether either is intended, the thinking of its promoters perhaps not having got that far. Possibly they do not really view them as rights at all. Edward Rothstein said that here the language of rights is just the .................Next page



*       Law Faculty member, University of Oxford; Research Associate, University of Oxford Centre for Socio-Legal Studies; sometime Lecturer and Tutor in Jurisprudence at St Edmund Hall, University of Oxford; former UK Parliamentary Counsel.

1       Roger Smith, director of Justice: see Counsel, July 2003, 11.

2       See P R Ghandhi, Blackstone’s Human Rights Documents (1st ed, 1995) vii.

3       John Humphrys, ‘No Human Right Can Compete with the Right to Cheap Flights’, Sunday Times (UK), 13 July 2003, 17.