The Rocks or the Open Sea: Where is the Human Rights Act Heading?1

Publication Date01 March 2005
AuthorSir Stephen Sedley
Date01 March 2005
ISSN: 0263-323X, pp. 3±17
The Rocks or the Open Sea:
Where is the Human Rights Act Heading?
Sir Stephen Sedley*
This essay attempts a broad appraisal of how the Human Rights Act
1998 has been interpreted and applied by the courts of England and
Wales since it came into force in October 2000. These are early days,
but its provisional conclusion is that the Act, despite some judicial
hesitancy, is proving viable and, at least in some respects, beneficial.
By October 2000, when the Human Rights Act 1998 came into force, so
many predictions had been made about the effect it was going to have on
British society and on the United Kingdom's law that it seemed inevitable
that one of them would be right. But life is always more interesting and
complicated than predictions and probabilities allow. If it weren't, judges
and lawyers would be out of a job and parliamentary drafters would rule the
world. So neither those idealists who hoped to see a new era of respect for
individual rights and freedoms, nor those who, like the Scottish judge Lord
McCluskey, foresaw `a field day for crackpots, a pain in the neck for judges
and legislators, and a goldmine for lawyers'
have turned out to be right. Nor
was central government, which ± perhaps panicked by much-publicized
comments like Lord McCluskey's ± had started to plan for a Canadian-style
torrent of constitutional litigation.
Nor was I right ± not entirely right anyway ± in the foreboding I had
expressed more than once during the previous decade that these were rights
which if enacted into law would be hijacked by the rich and powerful.
Through the door pushed open by Michael Douglas and Catherine Zeta-
Jones, seeking to protect the commercial value of their wedding reception,
ßSir Stephen Sedley 2005. Published by Blackwell Publishing Ltd,
9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Lord Justice of Appeal, England and Wales, The Royal Courts of Justice,
Strand, London WC2A 2LL
First appeared in Legal Action magazine, December 2003.
1 This paper was initially delivered as the 2003 Legal Action Group Lecture. It is
updated to October 2004. Abhijit Pandiya and Geoff Davies have provided invaluable
research assistance.
2InScotland on Sunday, 6 February 2000.
3Douglas v. Hello! Ltd (No 1) [2001] Q.B. 967

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