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184 Values and Civil and Political Liberties targets in R. v. Secretary of State for the Environment, ex p. Nottingham C.C. [1986] W.L.R. 1. As Lord Bridge said, persuasion needs to be offered "not to the judges who are not qualified to listen, but to the department, the minister, all members of Parliament and ultimately to the electorate" (at p. 23). An overall view of the attempts to transform local government operations in Britain in the last decade is given in Hugh Butcher, Ian G. Law, Robert Leech and Maurice Mallard, Local Government and Thatcherism, (Routledge, London, 1990). In 1990 the Treasury would have been even more upset by Lord Justice Woolf's decision in the Divisional Court in R. v. Social Security Fund Inspector, ex p. Sherwin and Others, The Independent, February 23, 1990. The court held that guidance given to Social Security Officers in the Social Fund Manual that a Social Fund Officer must not make a payment which will result in the local budget being exceeded, unless it had been increased, was unlawful in that the Secretary of State had imposed budget restraints in mandatory terms which were inconsistent with the intended flexible nature of the scheme to meet exceptional needs. 14 See R. v. Secretary of State for the Home Department, ex p. Herbage (No. 2) [1987] 1 All E.R 324; R. v. Deputy Governor of Parkhurst Prison, ex p. Hague and Others, [1990] 3 All E.R. 687 (C.A.); and Leech v. Deputy Governor of Parkhurst Prison [1988] A.C. 533. 15 English Law—The New Dimension, 1974 Hamlyn Lecture, op. cit. p. 75. 16 (Methuen, London, 1977). 17 Edmund Burke, Reflections on the Revolution in France (1790) C. C. O'Brien ed., (Penguin, 1986) pp.. 117-153 passim. 18 A. V. Dicey, Introduction to the Study of the Law of the Constitution (1865), (Macmillan, 10th ed., 1967), p. 199. 19 Commentaries on the Law of England, J. F. Archbold ed., (William Read, London, 1811), Book IV, Chap. 33, p. 443. 20 U.N. Convention on the Elimination of all Forms of Discrimination Against Women. Initial Report of the United Kingdom of Great Britain and Northern Ireland, Foreign and Commonwealth Office, (May 1987). 21 See especially paragraph 178 of their 1990 Report. There was similar tough questioning facing United Kingdom representatives at the United Nations Committee on Economic, Social and Cultural Rights. See Report on the third session (6-24 February 1989), United Nations, Economic and Social Council, Official Records, (1989), Supplement No. 4, pp. 52-59. 22 Third Periodic Report ... to the Human Rights Committee (1989), supra, p. 9. 23 I have seen "minded to refuse" notices based on undisputed facts declaring that the Secretary of State was minded to refuse the application for asylum. For example one Turkish Kurd had twice
Conclusion 185 been tortured and detained between 1982 and 1987 and had on many subsequent occasions been detained and questioned. Another had not been beaten since 1987, although the police were searching for him. In the view of the Immigration Service Headquarters Group A these Turkish Kurds did not have a well-founded fear of persecution, although the notices admitted that "Kurds in parts of Turkey cannot be said to enjoy cultural or political freedom" and stated that individual circumstances would be considered. 24 Third Periodic Report ...to the Human Rights Committee (1989), pp. 4r-5. 25 Ibid. pp. 83-84. 26 [1988] A.C. 958. Their Lordships set aside the Court of Appeal's judgment which had held the Home Office decision to be unfair. Lord Justice Bingham had stated that "asylum decisions are of such moment that only the highest standards of fairness will suffice." In all the circumstances of that case his Lordship considered that, in order for representations to be meaningful, the mind of an applicant should have been directed to considerations likely to defeat his case (his earlier answers to officers' questioning). Furthermore he should have been given a meaningful right to supplement his previous answers where questions had been asked through an interpreter, with account being taken of the strain to which an applicant may well be subject on first interview: Secretary of State for the Home Department v. Sittampalam Thirukumar [1989] Imm.R. 402 at 415. Lord Donaldson M.R. also took the view that the Home Office should in fairness have given the complainant every assistance by letting him see his previous answers and the reasons for the Home Office's decision in order that proper representations could be made because the initial decision was not irreversible (p. 409). These are not the judgments of an executive-minded judiciary. Although the Court of Appeal cautiously refrained from making any general statement about natural justice or procedural propriety, it treated fairness as a concept variable according to circumstances and then detected unfairness. 27 Ibid. p. 81. 28 A non-polemical account is given by David Bonner, Emergency Powers in Peacetime, (Sweet and Maxwell, 1985), p. 166. The position up to July 29, 1988 is surveyed in G. Hogan and C. Walker, Political Violence and the Law in Ireland, op. cit. This work has a good bibliography. There is a robustly critical account of British and Northern Ireland measures in K. D. Ewing and C. A. Gearty, Freedom under Thatcher: Civil Liberties in Modern Britain, (Clarendon, Oxford, 1990), pp. 208-254. 29 Reference under S.48A of the Criminal Appeal (Northern Ireland) Act 1968 (No. 1 of 1975) [1977] A.C. 105 at 138.
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THE AMLY LECTURES Forty-second seri
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THE HAMLYN LECTURES FORTY-SECOND SE
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THE UNITED KINGDOM AND HUMAN RIGHTS
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CONTENTS The Hamlyn Lectures vii Th
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viii The Hamlyn Lectures 1959 Judge
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x The Hamlyn Lectures 1985 Law and
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xii The Hamlyn Trust London, Leeds,
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xiv The Hamlyn Legacy Torquay. Will
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xvi The Hamlyn Legacy grandfather.
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xviii The Hamlyn Legacy realising a
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xx The Hamlyn Legacy and imaginativ
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2 The United Kingdom and Human Righ
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10 The United Kingdom and Human Rig
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2. Human Rights, Values, Choice and
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52 Human Rights, Values and Choice
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3. Constitutions, Values and Civil
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108 Values and Civil and Political
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234 Education—cont. National Curr
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236 Relativism—cont. descriptive,
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Protection of the Public— A New C
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