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Published online by Cambridge University Press: 27 October 2017
The process of European legal integration has long been understood to engage the workings of domestic legal orders, EC law and, to a lesser extent, the law of the ECHR. In general terms, the relationship between these bodies of law has been characterised as involving the direct and indirect interchange of principle and practice across jurisdictions. An example of direct interchange is found in the EC law requirement that national courts give effect to rules emanating from the EC legal order in all cases raising EC law issues. The indirect form occurs in disputes which do not raise EC law issues but which see national courts voluntarily borrow from their experience within the EC legal order by way of developing the domestic legal system. Likewise, national courts and the European Court of Justice have relied upon the law of the ECHR, a “foreign” body of rules, in developing their respective legal orders.
1 See Cappelletti, M. (ed.), New Perspectives for a Common Law of Europe (EUI, Florence, 1978)Google Scholar; Markesinis, B.S., (ed.) The Gradual Convergence (Oxford, Clarendon Press, 1994)Google Scholar; Beatson, J. and Tridimas, T. (eds.), New Directions in European Public Law (Oxford, Hart Publishing, 1998)Google Scholar; and Anthony, G., UK Public Law and European Law: The Dynamics of Legal Integration (Oxford, Hart Publishing, 2000)Google Scholar.
2 See Temple-Lang, J., “The Duties of National Courts under Community Constitutional Law” 22 (1997) ELRev, 3 Google Scholar.
3 See Fernandez Esteban, M.L., “National Judges and Community Law: The Paradox of the Two Paradigms of Law” 4 (1997) MJ, 143 Google Scholar. It should be noted that there has also been a process of indirect interchange whereby the ECJ has borrowed principle and practice from national legal orders. See Koopmans, T., “The Birth of European Law at the Cross-roads of Legal Traditions” 39 (1991) AJCL, 493 CrossRefGoogle Scholar.
4 On the role of the ECHR relative to the development of the ECJ’s jurisprudence, see, e.g., Case 222/84 Johnston v. Chief Constable of the RUC [1986] ECR 1651. And see also Opinion 2/94 on Accession by the Community to the ECHR [1996] ECR I–1759 and Articles 6 & 7 (ex F1 & 2) TEU. On the role of the ECHR in the development of domestic legal orders see Schwarze, J., “The Convergence of the Administrative Laws of the EU Member States” 4 (1998) EPL, 191, 200–203Google Scholar. On the related question of how national legal traditions have influenced the ECHR see Leonardi, D.A., “The Strasbourg System of Human Rights Protection: ‘Europeanisation’ of the Law through the Confluence of the Western Legal Traditions” 8 (1996) ERPL, 1139 Google Scholar.
5 See, e.g., Harlow, C., “Francovich and the Problem of the Disobedient State” 2 (1996) ELJ, 199 CrossRefGoogle Scholar and Teubner, G., “Legal Irritants: Good Faith in British Law or How Unifying Law Ends Up in New Divergences” 61 (1998) MLR, 11 CrossRefGoogle Scholar.
6 See, e.g., Legrand P., “The Impossibility of Legal Transplants” (1997) MJ, 111.
7 This is certainly the understanding which seems to inform the work of Jurgen Schwarze, at least insofar as relates to the relationship between EC law and the various domestic orders of the Member States: “Community law has now started to exercise an influence upon national legal systems and, as a medium and catalyst, it is beginning to contribute to a convergence and approximation of administrative laws in Europe.” See European Administrative Law (London, Sweet and Maxwell, 1992), 1465.
8 On how far the different national systems of the EU Member States might be said lend themselves to European legal integration see the contributions in Schwarze, J. (ed.) Administrative Law under European Influence (Baden-Baden, Nomos, 1996)Google Scholar.
9 Specifically, Articles 2–12 & 14 ECHR, Articles 1–3 of the First Protocol to the ECHR, and Articles 1 & 2 of the Sixth Protocol, as read with Articles 16–18 ECHR. It should be noted, however, that it has been doubted whether the HRA goes so far as formally to incorporate these provisions in domestic law. See, e.g., Coppel, J., The Human Rights Act 1998: Enforcing the European Convention in the Domestic Courts (Chichester, Wiley, 1998) at 4 Google Scholar. On the HRA see further Wadham, J. and Mountfield, H., Blackstone’s Guide to the Human Rights Act 1998 (London, Blackstone, 1999)Google Scholar.
10 On the ECHR’s role prior to incorporation, see, e.g., R v. Chief Immigration Officer, Heathrow Airport, ex parte Salamat Bibi [1976] 3 All ER 843 (as an aid to statutory interpretation in the event that a domestic statute is ambiguous); Attorney-General v. Guardian Newspapers [1987] 1 WLR 1248 (to guide exercises of judicial discretion); Derbyshire County Council v. Times Newspapers Ltd [1992] QB 770 (to help to establish the scope of the com mon law); and R v. Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400 (as an equivalent of the common law and as part of EC law).
11 See Ward, I., “Dualism and the Limits of European Integration” 17 (1995) Liverpool LR, 29 CrossRefGoogle Scholar. See further R v. Secretary of State for the Home Department, ex parte Brind [1991] 2 WLR 588; R v. Ministry of Agriculture, Fisheries and Food, ex parte First City Trading [1997] 1 CMLR 250; and R v. Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397.
12 But see exceptionally Woolwich Equitable Building Society v. Inland Revenue Commissioners (No 2) [1992] 3 WLR 366; M v. Home Office [1993] 3 WLR 433; and R v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble Fisheries [1995] 2 All ER 714.
13 See, e.g., Raymond v. Honey [1983] 1 AC 1; R v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514; M v. Home Office [1993] 3 WLR 433; R v. Home Secretary, ex parte Leech [1994] QB 198; R v. Ministry of Defence, ex parte Smith [1995] 4 All ER 427; R v. Cambridge Health Authority, ex parte Child B [1995] 25 BMLR 5; and R v. Lord Chancellor, ex parte Witham [1997] 2 All ER 778.
14 See note 4 above. But see also Coppel, J. and O’Neill, A., “The European Court of Justice: Taking Rights Seriously?” 29 (1992) 29 CMLRev, 669 Google Scholar.
15 See, e.g., R v. Secretary of State for the Home Department, ex parte McQuillan [1995] 4 All ER 400.
16 For a critical analysis of EC law see Harlow, C., “European Administrative Law and the Global Challenge” in Craig, P. and de Búrca, G. (eds), The Evolution of EU Law (Oxford, OUP, 1999), 261 Google Scholar. On the ECHR see Oliver D., “A Negative Aspect to Legitimate Expectations” [1998] PL, 558.
17 See, e.g., Dehousse, R., “Comparing National and EC Law: The Problem of the Level of Analysis” 42 (1994) AJCL, 761 CrossRefGoogle Scholar.
18 See further Ajani, G., “By Chance and Prestige: Legal Transplants in Russia and Eastern Europe” 43 (1995) AJCL 93 CrossRefGoogle Scholar.
19 Bell J., “Mechanisms for Cross-fertilisation of Administrative Law in Europe” in Beatson, and Tridimas, above n 1 at 147.
20 For explicit endorsement of the viability of legal transplantation as a general process see, e.g., Watson, A., Legal Transplants: An Approach to Comparative Law 2nd ed. (Georgia, Univ. of Georgia Press, 1993)Google Scholar. For implicit endorsement of transplantation in the context of European legal integration see, e.g., Schwarze above n 4.
21 Legrand, above n 6 at 114. See further Legrand, P., “European Legal Systems are not Converging” 45 (1996) ICLQ, 52 CrossRefGoogle Scholar.
22 Above n 19. For an earlier contribution which pursues roughly similar themes see Kahn Freund, O., “On Uses and Misuses of Comparative Law” 37 (1974) MLR, 1 CrossRefGoogle Scholar.
23 Bell, Ibid.
24 It should be noted that the central thrust of Bell’s contribution concerns the process of interaction and integration between national legal orders. However, he does acknowledge that there can be a process of legal cross-fertilisation whereby domestic courts borrow from EC law: “Such national developments illustrate the way in which cross-fertilisation takes place … The national legal order tries to find the most appropriate way to accommodate the new insight into its own conceptual structure and legal culture. As a result, the national solutions are not identical in form, even if they may be broadly similar in result”. Bell, Ibid at 161.
25 See, e.g., “Once More Unto the Breach: The Community, The State and Damages Liability” (1997) LQR, 67. See also Anthony, G., “Community Law and the Development of United Kingdom Administrative Law: Delimiting the ‘Spill-over’ Effect” 4 (1998) EPL, 253 Google Scholar. But see Allison A., “Transplantation and Cross-fertilisation” in Beatson and Tridimas above n 1 at 169.
26 Ibid. Although this article considers the manner in which the United Kingdom courts govern the process of European legal integration, it should be noted that the process of integration and harmonisation also engages the activities of national legislatures and administrations. See, e.g., Evans, A., “Voluntary Harmonisation in Integration between the European Community and Eastern Europe” 22 (1997) ELRev, 201 Google Scholar and Harmsen, R., “The Europeanization of National Administrations: A Comparative Study of France and the Netherlands” 12 (1999) Governance, 81 CrossRefGoogle Scholar.
27 In particular, Wednesbury unreasonableness. See Associated Provincial Picture Houses v. Wednesbury Corporation [1948] 1 KB 223.
28 See, e.g., R v. Secretary of State for Foreign Affairs and Commonwealth Affairs, ex parte Rees-Mogg [1994] 1 All ER 457; R v. Inspectorate of Pollution, ex parte Greenpeace Ltd (No 2) [1994] 4 All ER 328; R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386; and R v. Secretary of State for the Home Department, ex parte Fire Brigade’s Union [1995] 2 WLR 275.
29 See, e.g., with regard to the review of exercises of the royal prerogative, Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374; R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte Everett [1989] 1 All ER 655; R v. Secretary of State for the Home Department, ex parte Bentley [1993] 4 All ER 443; and R v. Secretary of State for the Home Department, ex parte Fire Brigades Union [1995] 2 WLR 646. See further the extension of the courts’ supervisory jurisdiction to non-statutory bodies, e.g., R v. Panel on Take-overs and Mergers, ex parte Datafin plc [1987] QB 815.
30 See above n 13.
31 Compare, for example, Lord Irvine of Lairg’s contribution in “Judges and DecisionMakers: The Theory and Practice of Wednesbury Review” [1996] PL, 59 with the opinions of other leading members of the UK judiciary, e.g., Lord Woolf, “Droit Public—English Style” [1995] PL, 57; Sir John Laws, “Law and Democracy” [1995] PL, 72; and Sir Stephen Sedley, “Human Rights: A Twenty-First Century Agenda” [1995] PL, 386.
32 On proportionality in EC law see de Búrca, G., “Proportionality in EC Law” 13 (1993) YEL, 105 Google Scholar. On the obligation befalling national courts with regard to giving effect to the proportionality in cases which raise issues of EC law see Case C-237/82, Jongeneel Kaas v. Netherlands [1984] ECR 483, 520–522, AG Mancini.
33 See further de Búrca, G., “Proportionality and Wednesbury Unreasonableness: The Influence of European Legal Concepts on United Kingdom Law” 3 (1997) EPL, 561 Google Scholar.
34 Per Lord Diplock in Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374, 410. For an endorsement of Wednesbury, see Lairg above n 31. But see Jowell J. and Lester A., “Beyond Wednesbury : Substantive Principles of Administrative Law” [1987] PL, 368.
35 The proportionality principle has been defined by the Council of Europe Committee of Ministers as requiring public bodies to “maintain a proper balance between any adverse effects which its decision may have on the rights, liberties or interests of persons and the purpose it pursues”. See R(80)2, II 4. It should be noted, however, that the jurisprudence of the ECJ would suggest that there is sufficient flexibility within the proportionality principle to allow courts to decide how closely they should involve themselves in reviewing decisions taken in certain policy areas. See further de Búrca above n 32 and Tridimas, T., “Proportionality in European Community Law: Searching for the Appropriate Standard of Scrutiny” in Ellis, E. (ed.), The Principle of Proportionality in the Laws of Europe (Oxford, Hart Publishing, 1999), 65 Google Scholar.
36 It should be noted, however, that United Kingdom courts have, on occasion, had difficulties applying the proportionality principle in EC law cases. See, e.g., Stoke-on-Trent CC and Norwich CC v. B & Q plc [1991] Ch 48, 69 (Hoffman J.) and compare and contrast the approaches of the Divisional Court and the Court of Appeal in R v. Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd ([1995] 4 All ER 364 (DC) and [1997] 2 All ER 65 (CA)).
37 [1991] 2 WLR 588. It should be noted that the version of proportionality raised in the Brind case would likely have been that which is more readily associated with the workings of the ECHR. Nevertheless, the fact that argument was presented to the court on the basis of the GCHQ case (wherein Lord Diplock referred to the proportionality principle which operates in the broader EC context) suggests that the pressure for the development of a domestic proportionality principle arose, at least in part, because of the domestic courts’ experience with the EC legal order (Lord Diplock’s reference to proportionality in GCHQ can be found at Council of Civil Service Unions v. Minister for the Civil Service [1985] 1 AC 374, 510–511).
38 Introduced pursuant to section 29(3) of the Broadcasting Act 1981. See also clause 13 of the licence and agreement governing the broadcasting activities of the BBC.
39 The applicants further argued that the Home Secretary’s decision was contrary to certain provisions of the ECHR (principally Articles 10 & 13). On Brind see further Thompson B., “Broadcasting and Terrorism in the House of Lords” [1991] PL, 346 and Halliwell, M., “Judicial Review and Broadcasting Freedom: The Route to Europe” 42 (1991) NILQ, 246 Google Scholar.
40 Per Lord Lowry, [1991] 2 WLR 588, 610. For comparable understandings of the courts’ role in review proceedings see, e.g., R v. Secretary of State for the Environment, ex parte NALGO [1993] Admin LR 785; R v. Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397; and R v. Radio Authority, ex parte Bull [1997] 2 All ER 561.
41 Ward above n 11 at 36.
42 See, e.g., R v. Ministry of Agriculture, Fisheries and Food, ex parte First City Trading Limited [1997] 1 CMLR 250 (Laws J). The principle at issue in this case was the equality prin ciple.
43 See, e.g., Lord Lowry’s judgment at [1991] 2 WLR 588, 606–610.
44 See [1991] 2 WLR 588, 593–594.
45 See [1991] 2 WLR 588, 606.
46 [1991] 2 WLR 588, 592–593.
47 See R v. Secretary of State for the Home Department, ex parte Bugdaycay [1987] AC 514, 531.
48 R v. Coventry Airport, ex p. Phoenix Aviation [1995] 3 All ER 37, 62 (Simon Brown LJ).
49 R v. Ministry of Defence, ex p. Smith [1995] 4 All ER 427, 445 (Simon Brown LJ). But see also the judgment of the European Court of Human Rights in Smith and Grady v. United Kingdom (2000) 29 EHRR 493.
50 R v. Cambridge Health Authority, ex parte B [1995] 25 BMLR 5.
51 Ibid. On B see James R. and Longley D., “Judicial review and tragic choices: Ex Parte B” PL [1995], 367.
52 The “right to life” identified by Laws J. was that based in the common law. On Laws J.’s wider approach to fundamental rights in the common law see, e.g., “Is the High Court the Guardian of Fundamental Rights?” [1993] PL, 59.
53 It should be noted, however, that Laws J. has written (extra-curially) that he considers the distinction between Wednesbury and proportionality to be one which fails to appreciate the qualities which inhere within Wednesbury. In short, Laws J. has argued that Wednesbury is fully equipped to perform the function ordinarily associated with proportionality. See SirLaws, John, “Wednesbury” in Forsyth, C. and Hare, I. (eds), The Golden Metwand and the Crooked Cord (Oxford, Clarendon Press, 1998), 185 Google Scholar. For a criticism of the language of Wednesbury see Jowell and Lester above n 34.
54 [1995] 2 All ER 129.
55 Ibid at 138.
56 At the time of writing it is expected that the Human Rights Act 1998 will not become effective until October 2000. But see s. 107 of the Government of Wales Act 1998; ss. 6 & 24 of the Northern Ireland Act 1998; and ss. 29 & 57 of the Scotland Act 1998.
57 A similar understanding might be said to inhere in each of the devolution Acts (see note 56 above). See further Reed, R., “Devolution and the Judiciary” in the University of Cambridge Centre for Public Law, Constitutional Reform in the United Kingdom: Practice and Principles (Oxford, Hart Publishing, 1998), 21 Google Scholar.
58 S. 3. See further, Lester A., “The Art of the Possible—Interpreting Statutes under the Human Rights Act” (1998) EHRLR, 665.
59 S. 4. It should be noted that a declaration that primary legislation is contrary to the ECHR does not affect the continuing validity of the legislation in question (ss. 4(2) and 4(6)), although it is envisaged that a declaration of incompatibility will lead to appropriate amendment (s. 10). Secondary legislation which is contrary to the terms of the ECHR, meanwhile, is void (subject to s. 4(4)). See further Bamforth N., “Parliamentary Sovereignty and the Human Rights Act 1998” [1998] PL, 572.
60 S. 6. On the question of what is a public authority for purposes of the Act see Sherlock, A., “The Applicability of the United Kingdom’s Human Rights Bill: Identifying Public Functions” 4 (1998) EPL, 593 Google Scholar and Bamforth, N., “The Application of the Human Rights Act 1998 to Public Authorities and Private Bodies” 58 (1999) CLJ, 159 Google Scholar.
61 See, “The Impact on Judicial Reasoning” in Markesinis, B. (ed.), The Impact of the Human Rights Bill on English Law (Oxford, Clarendon Press, 1998), 21, 22Google Scholar. It should be noted, however, that there exists some doubt that all provisions of the Human Rights Act 1998 will allow the judiciary to build upon previous developments in the domestic order. See, in particular, the s. 7 standing requirement as relates to the cases cited at note 28 above. See further Marriott J. and Nicol D., “The Human Rights Act, Representative Standing and the Victim Culture” [1998] EHRLR, 730.
62 S. 2 reads: “A court or tribunal determining a question which has arisen under this Act in connection with a Convention right must take into account any—(a) judgment, decision, declaration or advisory opinion of the European Court of Human Rights … whenever made or given, so far as, in the opinion of the court or tribunal, it is relevant to the proceedings in which that question has arisen”.
63 See further Eissen, M.A., “The Principle of Proportionality in the Case-Law of the European Court of Human Rights” in Macdonald, R.St.J. et al (eds.), The European System for the Protection of Human Rights (The Hague, Martinus Nijhoff, 1993), 125 Google Scholar and McBride J. “Proportionality and the European Convention on Human Rights” in Ellis above n 35.
64 See above n 45 and corresponding text.
65 An understanding which seemingly is shared by the Government. See, Rights Brought Home: The Human Rights Bill, Cmnd 3782, para. 2.5: “… Our courts will be required to balance the protection of individuals’ fundamental rights against the demands of the general interest of the community”.
66 See, e.g., Abdadou v. Home Secretary [1998] SC 504, 518–9 (Lord Eassie).
67 Coppel above n 9 at 160.
68 Ibid at 161–164.
69 Cases cited by Coppel include, Young, James and Webster v. United Kingdom, A/44 [1982] 4 EHRR 38; Dudgeon v. United Kingdom, A/45, [1982] 4 EHRR 149; F v. Switzerland, A/128, [1988] 10 EHRR 411; and Nasri v. France, A/324, [1996] 21 EHRR 458.
70 Cases cited by Coppel include, Goodwin v. United Kingdom, Appl. No. 17488/90, [1996] 22 EHRR 123 and Vogt v. Germany, A/323, [1996] 21 EHRR 205.
71 In this regard Coppel cites, Open Door Counselling and Dublin Well Woman v. Ireland, A/246, [1993] 15 EHRR 244.
72 In this regard Coppel cites, F v. Switzerland, A/128, [1988] 10 EHRR 411.
73 Cases cited by Coppel include, Kokkinakis v. Greece, A/260–A, [1994] 17 EHRR 397; and Socialist Party v. Turkey, A/919, decision of 25 May 1998.
74 See, e.g., R v. Secretary of State for Health, ex p. US Tobacco International Inc., [1992] 1 All ER 212, 221 (Taylor LJ). See also Sir John Laws, above n 53 and Lord Hoffman, “The Influence of the European Principle of Proportionality upon United Kingdom Law” in Ellis above n 35 at 107.
75 Although it is interesting to note that that Lord Slynn has suggested that the differences between proportionality and Wednesbury may, on occasion, be over-stated. See R v. Chief Constable of Sussex, ex parte International Trader’s Ferry Ltd [1998] 3 WLR 1260, 1277.
76 See, “Proportionality and the Human Rights Act” in Ellis above n 35 at 117.
77 Ibid at 128.
78 Ibid.
79 See, “Unreasonableness and Proportionality in United Kingdom Law” in Ellis above n 35 at 85 and 106.
80 See, e.g., R v. Civil Service Appeal Board, ex p. Cunningham [1991] 4 All ER 310; R v. Home Secretary, ex parte Doody [1994] 1 AC 531; R v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651; R v. City of London Corporation, ex parte Matson [1997] 1 WLR 765; and R v. Secretary of State for the Home Department, ex parte Fayed [1997] 1 All ER 228. See also the Freedom of Information Bill.
81 The extent to which domestic law’s emphasis on fairness lends itself to variable standards with regard to the giving of reasons is evident in Sedley J.’s judgment in R v. Higher Education Funding Council, ex parte Institute of Dental Surgery [1994] 1 All ER 651.
82 On the domestic approach, see, e.g., R v. Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397. But see also R v. North and East Devon Health Authority, ex p. Coughlan, [1999] LGR 703.
83 Above n 17. It should be noted that, although Dehousse’s work focuses on differences between EC law and national law, many of the points made are of equal relevance as regards the law of the ECHR and national law.
84 Ss. 2–3.
85 See, most famously, R v. Secretary of State for Transport, ex parte Factortame (No 2) [1991] 1 All ER 70 and Equal Opportunities Commission and Another v. Secretary of State for Employment [1994] 1 All ER 910. But see also the point of linkage between Factortame (No 2) and the domestic decision in M v. Home Office [1993] 3 WLR 433. And see further the consideration given to EC law in Woolwich Building Society v. Inland Revenue Commissioners (No 2) [1992] 3 WLR 366, 395–396 (Lord Goff).
86 “We believe that (section) 2 gets it right in requiring domestic courts to take into account judgments of the European Court but not making them binding … The (Act will) of course permit United Kingdom courts to depart from existing Strasbourg decisions and upon occasion it might well be appropriate to do so and it is possible they might give a successful lead to Strasbourg.” See 583 HL 514, 515.
87 See, e.g. Oliver above n 16.
88 On the ECHR articles incorporated by the HRA see note 9 above. These articles cover: the right to life; the prohibition of torture; the prohibition of slavery/forced labour; the right to liberty and security; the right to a fair trial; right to respect for private and family life; freedom of thought conscience and religion; freedom of expression; freedom of assembly and association; the right to marry; the prohibition of discrimination; protection of property; right to education; right to free elections; and abolition of the death penalty (which may be retained in times of war).
89 On the courts’ traditional reluctance to involve themselves in the review of decisions taken in areas of economic choice and preference see, e.g., R v. Secretary of State for the Environment, ex parte Nottinghamshire CC [1986] 1 AC 240. But see also R v. Secretary of State for Foreign and Commonwealth Affairs, ex parte World Development Movement Ltd [1995] 1 WLR 386.
90 On property as a fundamental right in ECHR jurisprudence see Protocol 1, Article 1 ECHR.
91 See, e.g., National & Provincial Building Society v. United Kingdom [1997] 25 EHRR 127.
92 See above n 4.
93 On the principle of equality in EC administrative law see Schwarze above n 7 at chapter 4.
94 On the limited reach of the ECHR’s non-discrimination clause see Livingstone, S., “Article 14 and the Prevention of Discrimination in the European Convention on Human Rights” (1997) EHRLR, 25 Google Scholar.
95 On the current position of the principle of equality (non-discrimination) in domestic law see Jowell, J., “Is Equality a Constitutional Principle?” 47 (1994) CLP, 1 Google Scholar.
96 On the flexibility which inheres in the EC law principle of proportionality, see above n 35.
97 [1995] 4 All ER 400.
98 Similar challenges to the legality of exclusion orders had previously been argued before the domestic courts. See, e.g., R v. Secretary of State for the Home Department, ex parte Adams [1995] All ER (EC) 177. See further Douglas-Scott S. and Kimbell J.A., “The Adams Exclusion Order Case: New Enforceable Civil Rights in the Post-Maastricht European Union” [1994] PL, 516.
99 [1995] 4 All ER 400, 422. Sedley J.’s understanding of the standards articulated in international law marching with those of the common law was one which evidently borrowed heavily from the single “exception” to the United Kingdom’s dualist constitutional tradition, namely the idea that principles of international law are part of the common law unless statute states oth erwise. See, e.g., the dictum of Lord Atkin in Chung Chi Cheung v. The King [1939] AC 160, 168.
100 Using Human Rights Law in English Courts (Oxford, Hart Publishing, 1997), 290.
101 The Home Secretary stated in his affidavit evidence that the interests of national security were at stake. Sedley J., on the authority of various other cases, thereupon considered himself unable to consider the matters raised any further.
102 Hunt above n 100 at 294.
103 See, e.g., R v. Ministry of Agriculture, Fisheries and Food, ex parte Hamble Fisheries [1995] 2 All ER 714.
104 See the Court of Appeal’s consideration of Sedley J.’s Hamble Fisheries ruling in R v. Secretary of State for the Home Department, ex parte Hargreaves [1997] 1 All ER 397.
105 See, e.g., Allison above n 25.
106 Above n 13.
107 See generally Hunt above n 100.
108 Hunt, ibid at 83. It should be noted that Hunt is not suggesting that judges should seek to usurp the legislature’s function. Rather, Hunt is suggesting that the courts should develop the law on the basis of the common law subject to the final understanding that Parliament may override the development of the law through express legislative enactment. A comparable understanding of the courts’ role relative to Parliament can be found in, e.g., P. Craig, “Competing Models of Judicial Review” (1999) PL, 428.
109 See “Parliamentary Sovereignty: Law, Politics and Revolution” (1997) 113 LQR, 443.
110 See Brazier, R., “New Labour, New Constitution” 49 (1998) NILQ, 1 Google Scholar and Brazier, R., “The Constitution of the United Kingdom” 58 (1999) CLJ, 96 Google Scholar.
111 On the issues which may be raised by devolution see, e.g., Bogdanor V., “Devolution: The Constitutional Aspects” in the University of Cambridge Centre for Public Law above n 57 at 9.
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