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
