In 1998 Britain passed the Human Rights Act to formalize its accordance with the European Convention on Human Rights. Although not introducing new principles for rule, as Britain had ratified the European Convention and thus was indirectly governed by it, the implementation of the Human Rights Act effects the relationship between institutions in the British regime as well as between the regime and its citizens. In the book, UNDERSTANDING HUMAN RIGHTS PRINCIPLES, Jeffrey Jowell and Jonathan Cooper assemble six essays that focus on these implications.

Governing the selection of articles is the reflection that although scholars and citizens alike discussed the substantive effect of the Human Rights Act in great depth prior to its implementation, some "key concepts, techniques and values" by which it would be implemented were not (Chapter 1). To fill this void, certain essays in the book focus on procedural topics such as how the interference of rights may be "prescribed by law" (Chapter 2), the proportionality test, (Chapter 3), and the extension of the Act to private litigation (Chapter 6). However, other essays focus on more substantive questions such as how civil rights are defined (Chapter 4), the positive obligations the Human Rights Act imposes on the state (Chapter 5) and the role of human rights in democratic societies (Chapter 7). Although each of
the discussions is useful to understanding the role of the Act, the book itself lacks a general sense of coherence.

Perhaps reflecting this, the chapters of the book might be rearranged more logically. The book concludes where it seems it should begin with Singh's essay, "The Place of Human Rights in a Democratic Society." Although resting on unexplored utilitarian principles, Singh clearly articulates the relationship between liberalism and democracy. He demonstrates that a bill of rights is important in a democratic society, as a means of curtailing the will of a majority. Singh's essay could thus set the stage for the remaining chapters to explain how such a bill might be practically implemented. Moreover, Singh discusses the characterization of rights as either absolute or conditional. This discussion would logically precede the second and third essays in the book that discuss the means the state may use to legally
infringe on these rights. Unfortunately, Singh's essay does not demonstrate that liberal democracy itself is good, but only that in a democracy, one has to be careful to protect the rights of the minority. The underlying assumption that liberal democratic principles are so evident as to not require defense underlies each chapter in the book. An earlier demonstration of this point would make the ultimate conclusions stronger.

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In the second chapter, "The Concept of a Lawful Interference with Fundamental Rights," Mountfield notes in addition to the proportionality test, the legal infringement of rights must be in accordance with law. Laws that infringe on rights must be readily available to those they may affect and sufficiently clear as to how they will be applied in particular circumstances. In short, the state cannot arbitrarily violate rights, but must make its intentions to do so known in law. As Mountfield notes this
will have a profound effect on the role of the executive that traditionally assumed it was capable doing anything as long as it was not expressly forbidden in law. The new standard is that all of its actions must be in accordance with positive laws. Mountfield argues that this change is a positive for, "Legal accountability is the center of the European concept of democracy" (p. 25). However, without some earlier statement as to why democracy itself is laudable, Mountfield's point rings somewhat hollow.

Once such laws are in place, the role of the court changes to judging whether these laws are proportional to the ends that they seek to procure. In the third chapter, "Identifying the principles of proportionality, Fordham and de la Mare focus on the proportionality test or the procedural means the court uses to determine if a violation of a right is a legitimate scope of the government's powers. Fordham and de le Mare discuss the earlier and more "passive" test for judicial review, as elucidated in WEDNESBURY (1948) in comparison to the proportionality doctrine developed by the Strasbourg Court and the horizontal effect that this has had on judicial review in England. The authors assert that the earlier test is a useful means by which the courts can assess governmental decisions that do not address the Human Rights Act; however, the development of the new and more thorough proportionality test is a positive method of guiding judicial decisions. Fordham and de la Mare provide a thorough analysis of the development of judicial review. Their final assessment of the comparative worth of the new test is based on the way in which the it balances the role of the courts in judging the legitimacy of legislation and the state's singular authority to create laws.

The fourth chapter, "Determining Civil Rights and Obligations," focuses on the interpretation of civil rights as included in section 6.1. In this chapter, the book seems to move from a procedural discussion to a discussion of the substance of the Act. Herburg, Le Sueur and Mulcahy note that the ambiguity in Convention case law in defining civil rights will probably lead the English courts to define these broadly so as to not be in contravention with the Convention. Although the authors do a good job of evaluating the Strasbourg example and the probable effects of its decisions on English law, the tie between this chapter and the rest of the book seems tenuous.

In the fifth and the sixth chapters, the focus shifts somewhat to discussions on the responsibility the state, including the court, has to protect individuals from the violation of their rights by other individuals. In "Positive Obligations Under the Convention," Starmer notes in some instances the state is responsible not merely for ensuring that it does not violate the rights of its citizens, but also for ensuring that individuals have the necessary means to enjoy these rights. Starmer notes that unlike
the United States which places the onus for positive obligation on the legislative assembly rather than the courts, in Europe, there is wider acknowledgement that you

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may not want to let these cases rest with the decision of a majority (pp. 144-45). Although noting that the courts have proceeded carefully on these questions, Stramer's discussion would benefit from a more thorough examination of this question in light of democratic principles.

Hunt, in "The 'Horizontal Effect' of the Human Rights Act," examines the role of the court in determining the degree to which convention rights are applicable to actions of private parties. Hunt argues that because the courts are expressly stated as a public authority bound by the convention, all judicial decisions, private or public, must be in accordance with the Bill of Rights. The court is thus is given a degree of latitude to interpret common law in such a way that it becomes compatible with the Bill. However, as Hunt notes, where these is clearly no such precedent for the such an interpretation, it must direct the legislative assembly to make the required change. Although Hunt claims that this is the most "straightforward approach" to the court's new role, it still seems clouded with obscurity. The court according to Hunt may only act incrementally, but also creatively to evoke changes in common law. As such it is not clear where the line would be drawn between legislating and reviewing.

Although essays in the book nicely examine the case law of the Convention and how it will effect the implementation of the Human Rights Act, lacking a clear thesis, the book does not seem to hold together. Given the broad themes it does discuss, UNDERSTANDING HUMAN RIGHTS PRINCIPLES could be strengthened with a substantial discussion that demonstrates the validity of the Act itself. Such a discussion could then inform the grounds by which the Act should be implemented.

CASE REFERENCE:

WEDNESBURY [1948] 1 KB 223.

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Copyright 2001 by the author, Sara MacDonald.