Chapter-19 Role of Court in International convention-part-2

In Wheaton's Elements of International Law the following statement on "Federal Unions" is made at p. 57:

"... the federal government created by the act of union is sovereign and supreme, within the sphere of the powers granted to it by that act; and the government acts not only upon the States which are members of the confederation, but directly on the citizens. The sovereignty, both internal and external, of each several State is impaired by the powers thus granted to the federal government, and the limitations thus imposed on the several State governments. The compositive State, which results from this league, is alone a sovereign power."

Hall's International Law, 6th ed., pp. 24-25, states:

"The distinguishing marks of a federal state upon its inter-national side consist in the existence of a central government to which the conduct of all external relations is confided, and in the absence of any right on the part of the states forming the corporate whole to separate themselves from it. Under the Constitution of the United States, for example, the central authority regulates commerce, accredits diplomatic representatives, makes treaties, provides for the national defence, declares war and concludes peace; the individual states, on the other hand, are expressly forbidden to enter into any agreement with foreign powers without the assent of Congress, to maintain military or naval forces, or to engage in war."

In Post Office v. Estuary Radio Ltd[1]. Diplock L.J. said (1968) 2 QB 740, at p 753 :

"It still lies within the prerogative power of the Crown to extend its sovereignty and jurisdiction to areas of land or sea over which it has not previously claimed or exercised sovereignty or jurisdiction. For such extension the authority of Parliament is not required”

“The current of authority as to the ownership of the seabed continued to run on in its former channel undeflected by the decision in Reg. v. Keyn[2] . In three cases from Scotland questions arose respectively as to whether the Crown had the right to prevent the deposit of dredgings in Loch Long, or to make a grant of minerals under the bed of the sea beyond the foreshores of the Firth of Forth, or to the property in mussel scalps on the foreshore and bed of the river Clyde.[3] . In each case it was held that the Crown was the owner of the soil under the adjacent waters below the low-water mark, and it was said that the ownership extended to the three-mile limit, although in Lord Advocate v. Wemyss Lord Watson spoke of "the solum underlying the waters of the ocean, whether within the narrow seas, or from the coast outward to the three-mile limit" being vested in the Crown.[4] .These cases were concerned with the law of Scotland, but they do not depend on principles peculiar to Scottish law, and in Parker v. Lord Advocate [supra]the Earl of HALSBURY L.C. said that he thought that there was no relevant difference between the law of England and the law of Scotland[5] . It appears that the cases related only to internal waters, although the judgments do not rest on that circumstance. Lord Fitzhardinge v. Purcell [6]also concerned internal waters, this time in England, but in the course of his judgment Parker J. said :

‘Clearly the bed of the sea, at any rate for some distance below low-water mark, and the beds of tidal navigable rivers, are prima facie vested in the Crown ... The whole doctrine of 'incrementa maris' seems to depend on the beneficial ownership of the Crown in the bed of the sea, which in the older authorities is sometimes referred to as the King's royalwaste.[7]’

Article 10 European Convention for the Protection of Human Rights and Fundamental Freedoms reads as follows:

"1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

"2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the
reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary."

The Convention which is contained in an international treaty to which the United Kingdom is a party has not yet been incorporated into English domestic law. The appellants accept that it is a constitutional principle that if Parliament has legislated and the words of the statute are clear, the statute must be applied
even if its application is in breach of international law. In Salomon v. Commissioners of Customs & Excise[8] DIPLOCK L.J. at 143 stated: "If the terms of the legislation are clear and unambiguous they must be given effect to, whether or not they carry out Her Majesty's treaty obligations.[9]"

Much reliance was placed upon the observations of LORD DIPLOCK in Garland v. British Rail [10] when he said (at 771):"... it is a principle of construction of United Kingdom statutes . . . that the words of a statute passed after the Treaty has been signed and dealing with the subject matter of the international obligation of the United Kingdom, are to be construed, if they are reasonably capable of bearing such a meaning, as intended to carry out the obligation, and not to be inconsistent with it."

It is well settled that the Convention may be deployed for the purpose of the resolution of an ambiguity in English primary or subordinate legislation. The case of Reg. v. Chief Immigration Officer, Heathrow Airport and another, Ex parte Salamat Bibi [11] concerned a lady who arrived at London
Airport from Pakistan with two small children saying that she was married to a man who was there and who met her. She was refused leave to enter and an application was made for an order of certiorari and also for mandamus on the ground that she ought to have been treated as the wife of the man who met her  at the airport. During the course of argument a question arose about the impact of the Convention and in particular Article 8 concerning the right to private and family life and the absence of interference by a public authority with that right.

“.. it is already well settled that, in construing any provision in domestic legislation which is ambiguous in the sense that it is capable of a meaning which either conforms to or conflicts with the Convention, the courts will presume that Parliament intended to legislate in conformity with the Convention, not in conflict with it.” Hence, it is submitted, when a statute confers upon an administrative authority a discretion capable of being exercised in a way which infringes any basic human right protected by the Convention, it may similarly be presumed that the legislative intention was that the discretion should be exercised within the limitations which the Convention imposes[12].” Observing further it was observed that:” When confronted with a simple choice between two possible interpretations of some specific statutory provision, the presumption whereby the courts prefer that which avoids conflict between our domestic legislation and our international treaty obligations is a mere canon of construction which involves no importation of international law into the domestic field. But where Parliament has conferred on the executive an administrative discretion without indicating the precise limits within which it must be exercised, to presume that it must be exercised within Convention limits would be to go far beyond the resolution of an ambiguity. It would be to impute to Parliament an intention not only that the executive should exercise the discretion in conformity with the Convention, but also that the domestic courts should enforce that conformity by the importation into domestic administrative law of the text of the Convention and the jurisprudence of the European Court of Human Rights in the interpretation and application of it. If such a presumption is to apply to the statutory discretion exercised by the Secretary of State under section 29(3) of the Act of 1981 in the instant case, it must also apply to any other statutory discretion exercised by the executive which is capable of involving an infringement of Convention rights. When Parliament has been content for so long to leave those who complain that their Convention rights have been infringed to seek their remedy in Strasbourg, it would be surprising suddenly to find that the judiciary had, without Parliament's aid, the means to incorporate the Convention into such an important area of domestic law and I cannot escape the conclusion that this would be a judicial usurpation of the legislative function.[13]”

In his judgment at p. 984 Lord Denning M.R. said:- "The position as I understand it is that if there is any
ambiguity in our statutes, or uncertainty in our law, then these courts can look to the Convention as an aid to clear up the ambiguity and uncertainty . . . but I would dispute altogether that the Convention is part of our law. Treaties and declarations do not become part of our law until they are made law by Parliament."

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[1] Post Office v. Estuary Radio Ltd. (1968) 2 QB 740, at p 753[per DIPLOCK L.J. ]

[2] Reg. v. Keyn (1876) 2 Ex D 63

[3] Lord Advocate v. Trustees of the Clyde Navigation (1891) 19 SC 174 esp at p 177 ; Lord Advocate v. Wemyss (1900) AC 48 ; Parker v. Lord Advocate (1904) AC 364

[4] (1900) AC, at p 66

[5] (1904) AC, at p 368

[6] Lord Fitzhardinge v. Purcell (1908) 2 Ch 139

[7] Although by this time it was no longer open to doubt that the Crown has a right of property in the bed of the sea below low-water mark, the question whether the right extended to the three-mile limit was left open by the Judicial Committee in two cases concerning fishing rights: Attorney-General (British Columbia) v. Attorney-General (Canada) (1914) AC 153, at pp 174-175 and Attorney-General (Canada) v. Attorney-General (Quebec) (1921) 1 AC 413, at p 431 .

[8] Salomon v. Commissioners of Customs & Excise [1967] 2 Q.B. 116 Dipiock L.J. at 143 stated

[9] Rv Secretary of state[supra]

[10] Garland v. British Rail [1983] 2 AC 751

[11] Reg. v. Chief Immigration Officer, Heathrow Airport and another, Ex parte Salamat Bibi [1976] 1 W.L.R. 979

[12] R v Secretary of State for the Home Department, ex p. Brind [1991] UKHL 4 (07 February 1991)
URL: http://www.bailii.org/uk/cases/UKHL/1991/4.html
Cite as: [1991] 1 All ER 720, [1991] 2 WLR 588, [1991] 1 AC 696, [1991] UKHL 4 [per LORD BRIDGE OF HARWICH]

[13] “But I do not accept that this conclusion means that the courts are powerless to prevent the exercise by the executive of administrative discretions, even when conferred, as in the instant case, in terms which are on their face unlimited, in a way which infringes fundamental human rights. Most of the rights spelled out in terms in the Convention, including the right to freedom of expression, are less than absolute and must in some cases yield to the claims of competing public interests. Thus, Article 10(2) of the Convention spells out and categorises the competing public interests by reference to which the right to freedom of expression may have to be curtailed. In exercising the power of judicial review we have neither the advantages nor the disadvantages of any comparable code to which we may refer or by which we are bound. But again, this surely does not mean that in deciding whether the Secretary of State, in the exercise of his discretion, could reasonably impose the restriction he has imposed on the broadcasting organisations, we are not perfectly entitled to start from the premise that any restriction of the right to freedom of
expression requires to be justified and that nothing less than an important competing public interest will be sufficient to justify it.The primary judgment as to whether the particular competing public interest justifies the particular restriction imposed falls to be made by the Secretary of State to whom Parliament has entrusted the discretion. But we are entitled to exercise a secondary judgment by asking whether a reasonable Secretary of State, on the material before him, could reasonably make that primary judgment.” [ R v Secretary of State for the Home Department, ex p. Brind [supra][per LORD BRIDGE OF HARWICH]