Day 313 - 13 Dec 96 - Page 56


     
     1        European Convention on Human Rights and Fundamental
     2        Freedoms is not part of our domestic law.  It is a treaty.
     3        The result is that it can only be looked at by an English
     4        court in cases where English law is ambiguous or unclear.
     5
     6        That most clearly emerges from the speech of Lord Ackner,
     7        although it was one of the ratios for the decision in the
     8        case, at page 760 starting at letter G and approving, in
     9        effect, the decision of the Court of Appeal in 1976, Queen
    10        v. The Chief Immigration Officer.  Then I think another
    11        one, Fernandes v. Secretary of State for the Home
    12        Department in 1981 and another in 1988.  My Lord, the
    13        relevant part of the speech ends at letter E on page 761.
    14        I will not spend time now reading it out.
    15
    16   MR. JUSTICE BELL:  Is there anything there which is different to
    17        what Lord Justice Balcombe and Lord Justice Gibson said in
    18        Derbyshire in the Court of Appeal?
    19
    20   MR. RAMPTON:  No, that is the House of Lords and the Court of
    21        Appeal in the Derbyshire case, as I understand it,
    22        faithfully followed the guidance of the House of Lords in
    23        the Brind case.  The fact was, and this is indisputable,
    24        even recognised in Duncan and Neill, that the law so far as
    25        local authorities, and (if one extended the thought) of
    26        government departments, were concerned was unclear.  The
    27        only solid piece of law, apart from Manchester Corporation
    28        v. Williams, which is an old case, was the decision at
    29        first instance of Mr. Justice Brown in the Bognor Regis
    30        case.  It had been hotly criticised in the Academic Press,
    31        mainly by Dr. Weir of Cambridge, I think, and it was up, if
    32        I may colloquialise, it was up for grabs.
    33
    34        It is not surprising that both the Court of Appeal and in
    35        the result, though by a different route, the House of Lords
    36        said, in fact, it was a matter of English law -- which is
    37        the approach adopted in the House of Lords -- never mind
    38        article 10 because, in the end, the House of Lords ignored
    39        article 10, governmental bodies cannot sue for libel
    40        because it is anti-democratic, and that, of course, is the
    41        foundation of Mr. Justice French's decision in the NUM case
    42        because at that date in its history the coal board was
    43        really no more than a -- what shall I say -- a clothed
    44        sleeve on the arm of government. It was really just a part
    45        of the Minister.  That was the ratio of the decision in
    46        that case too.
    47
    48        So far as a trading corporation is concerned, there is no
    49        uncertainty, no lack of clarity, no ambiguity in English
    50        law and has not been for practically as long as the law of
    51        defamation has existed.  One only has to go back as far as
    52        South Hetton and then see how that decision by the Court of
    53        Appeal in 1895, or whenever it was, was endorsed and
    54        approved by the House of Lords in the Derbyshire case.
    55
    56        I accept some blame for having taken your Lordship all the
    57        way through South Hetton.  It might not have been entirely
    58        a waste of time, bearing in mind what Lord Keith said in
    59        the Derbyshire case as to the circumstances in which
    60        trading corporations, be they big or small, are entitled to

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