Philippe Kuhn | London School of Economics and Political Science (original) (raw)

Papers by Philippe Kuhn

This article will explore the recent trend at UK Supreme Court level of resolving human rights is... more This article will explore the recent trend at UK Supreme Court level of resolving human rights issues via resort to ‘common law constitutional rights’ in tandem with the interpretative presumption known as the ‘principle of legality’. This revival is particularly relevant, given the current political uncertainty and potential repeal of the HRA.

The extent of common law human rights protection, the relationship between such rights and the principle of legality, and the likely motivations behind this sudden development will be analysed. It will be argued that the majority of likely objections to the common law approach can be met and that this approach can boast of unique advantages such as greater clarity and permanence than the HRA approach. Ultimately, however, the strength of the principle of legality is decisive and this laudable exercise of judicial activism is partially undermined by the difficulty of challenging objectionable Acts of Parliament through the common law.

The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly exp... more The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly expanded the ambit of statutory interpretation as a method of protecting human rights in this jurisdiction. The framers of the Act, fully cognisant of the difficulty of reconciling the seemingly competing aims of domestic legal protection of human rights and continued parliamentary sovereignty, introduced a delicate mechanism in sections 3 and 4 to achieve both objectives.

It will be argued that the House of Lords’ seminal decision in Ghaidan v Godin-Mendoza has served to rather clearly demarcate the outer boundary of what is ‘possible’ under s.3(1), after clear differences in judicial opinion had emerged. Bearing that in mind, notable human rights cases concerning sentencing and terrorism law will be used to demonstrate that there are situations in which a section 4 declaration of incompatibility is the only appropriate option.

Overall, s.3(1) has significantly enhanced judicial protection of human rights without the courts having usurped the role of Parliament. Whether this balance can be maintained as the senior judiciary change depends on the extent to which the precedents that have been set will be followed, which is likely as the HRA jurisprudence matures further.

Discretion continues to hold a prominent place in the British administrative state, but general r... more Discretion continues to hold a prominent place in the British administrative state, but general rules and principles in the form of ‘soft law’ increasingly serve to constrain that discretion. This seems to reflect the growing consensus that an element of discretion is often necessary and even desirable for reasons including the need for flexibility and the relative institutional competence of administrators.

The recent decisions of the House of Lords in Purdy and the UK Supreme Court in Lumba represent an increasingly pronounced trend of making the exercise of discretionary powers subject to soft law. Doubts about the Purdy/Lumba trend as a matter of authority have been laid to rest by the UK Supreme Court’s subsequent ruling in Kambadzi. The Law Lords in Purdy held that the prosecutorial Code had to be supplemented by further guidelines specific to the offence of assisted suicide to guide the execise of prosecutorial discretion, whilst, in Lumba, their Lordships required adherence to a published policy in respect of deportation of foreign national prisoners.

Viewing discretion as a linear concept as KC Davis did, the desirability of soft law further confining the ambit of discretion is open to challenge, provided one is persuaded of the benefits of discretion. It is argued that a degree of discretionary power is indeed vital in most administrative contexts, but that insofar as soft law acts as a bridge between law and policy, without becoming as rigid as prescriptive legislative provisions, the Purdy/Lumba trend is positive. Consequently, it may be said that the UK courts have struck a reasonable compromise between the competing demands of rule-based government and flexible decision-making that accords with basic notions of doing justice in specific cases.

This article will explore the recent trend at UK Supreme Court level of resolving human rights is... more This article will explore the recent trend at UK Supreme Court level of resolving human rights issues via resort to ‘common law constitutional rights’ in tandem with the interpretative presumption known as the ‘principle of legality’. This revival is particularly relevant, given the current political uncertainty and potential repeal of the HRA.

The extent of common law human rights protection, the relationship between such rights and the principle of legality, and the likely motivations behind this sudden development will be analysed. It will be argued that the majority of likely objections to the common law approach can be met and that this approach can boast of unique advantages such as greater clarity and permanence than the HRA approach. Ultimately, however, the strength of the principle of legality is decisive and this laudable exercise of judicial activism is partially undermined by the difficulty of challenging objectionable Acts of Parliament through the common law.

The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly exp... more The interpretative obligation of the UK courts pursuant to s.3(1) of the HRA 1998 has greatly expanded the ambit of statutory interpretation as a method of protecting human rights in this jurisdiction. The framers of the Act, fully cognisant of the difficulty of reconciling the seemingly competing aims of domestic legal protection of human rights and continued parliamentary sovereignty, introduced a delicate mechanism in sections 3 and 4 to achieve both objectives.

It will be argued that the House of Lords’ seminal decision in Ghaidan v Godin-Mendoza has served to rather clearly demarcate the outer boundary of what is ‘possible’ under s.3(1), after clear differences in judicial opinion had emerged. Bearing that in mind, notable human rights cases concerning sentencing and terrorism law will be used to demonstrate that there are situations in which a section 4 declaration of incompatibility is the only appropriate option.

Overall, s.3(1) has significantly enhanced judicial protection of human rights without the courts having usurped the role of Parliament. Whether this balance can be maintained as the senior judiciary change depends on the extent to which the precedents that have been set will be followed, which is likely as the HRA jurisprudence matures further.

Discretion continues to hold a prominent place in the British administrative state, but general r... more Discretion continues to hold a prominent place in the British administrative state, but general rules and principles in the form of ‘soft law’ increasingly serve to constrain that discretion. This seems to reflect the growing consensus that an element of discretion is often necessary and even desirable for reasons including the need for flexibility and the relative institutional competence of administrators.

The recent decisions of the House of Lords in Purdy and the UK Supreme Court in Lumba represent an increasingly pronounced trend of making the exercise of discretionary powers subject to soft law. Doubts about the Purdy/Lumba trend as a matter of authority have been laid to rest by the UK Supreme Court’s subsequent ruling in Kambadzi. The Law Lords in Purdy held that the prosecutorial Code had to be supplemented by further guidelines specific to the offence of assisted suicide to guide the execise of prosecutorial discretion, whilst, in Lumba, their Lordships required adherence to a published policy in respect of deportation of foreign national prisoners.

Viewing discretion as a linear concept as KC Davis did, the desirability of soft law further confining the ambit of discretion is open to challenge, provided one is persuaded of the benefits of discretion. It is argued that a degree of discretionary power is indeed vital in most administrative contexts, but that insofar as soft law acts as a bridge between law and policy, without becoming as rigid as prescriptive legislative provisions, the Purdy/Lumba trend is positive. Consequently, it may be said that the UK courts have struck a reasonable compromise between the competing demands of rule-based government and flexible decision-making that accords with basic notions of doing justice in specific cases.