GRAY’S INN STUDENT LAW JOURNAL VOLUME IX EDITED BY PHOEBE WHITLOCK ASSOCIATION OF GRAY’S INN STUDENTS LONDON • 2017 1 CONTENTS Foreword 4 Articles Have the Courts interpreted section 3 of the Human Rights Act 5 1998 in a way which undermines the sovereignty of Parliament? Siân McGibbon (Winner of the Michael Beloff Essay Prize) Can human rights effectively ensure environmental protection? 14 Alexander Barbour How do the Article 4.4 (Therapeutic Use Exemptions) and Article 22 10.5 (No Significant Fault of Negligence) help mitigate the potential unfairness of strict liability in anti-doping cases? Chloe Ogley Taking up arms for an embattled decision: Pennington v Waine 32 15 years on Daniel de Lisle “Native Title as a form of permissive occupancy at will”: An analysis 39 of the legal formula in Mabo (No 2) (1992), the Native Title Act 1993 and its effect in Australia. Horaine Henry Exceptions to Exceptionalism: should the Supreme Court use 52 international and foreign laws as an interpretative aid to the US Constitution? Julija Stukalina Are mimes not pantomimes? A critical assessment of the protection 66 of television formats under UK Copyright Law Paulo Fernando Pinheiro Machado The Rebirth of the Common Law: Common Law Constitutional 74 Rights and Legality Philippe Kuhn Is there a need to abolish the floating charge? A critical discussion 94 on the distinction between floating and fixed charges. Ryan Martin 2 Sticks and stones will break my bones and online words will hurt 102 me Patrick Boyers Following Gow v Grant [2012] UKSC 29: to what extent does 117 English law protect cohabiting couples? Hollie-Mae Le Cras Judicial Determinations through Sport: The Application of EU case 126 law to sport and in relation to the development of the jurisprudence of the EU. Victoria Alicea Infringement of rights or enhanced national security: considering 137 the unimaginable Anastasiya Sattarova Case C-157/15 (G4S Secure Solutions): a critical discussion on the 145 Islamic veil as a human right Zara Kayani Exploring the relationship between copyright and freedom of 154 expression Kin-Hoe Loi Case Notes R (on the application of Tigere) v Secretary of State for Business, 162 Innovation and Skills [2015] UKSC 57 Markus Findlay Williams v Bridgeport Music Inc (USDC, C.D. California) March 166 10, 2016 Mark Baldwin Isle of Wight Council v Platt [2017] UKSC 28 170 Philip Jones 3 FOREWARD It has been a privilege to take on the role of Editor for volume nine of the Gray’s Inn Student Law Journal. I am particularly grateful to the many students who have contributed excellent articles to this year’s Journal. I have attempted to make selective choices to bring a wide variety of interests and opinions to the Journal. This year there is a wide variety of issues discussed from the rebirth of the common law to Native title in Australia. A special mention must be given to Siân McGibbon whose excellent essay on the Court’s interpretation of section 3 of the Human Rights Act 1998 opens the Journal as the winner of the annual Micheal Beloff Essay Prize. Further, I am most grateful to all those who contributed to the production of the Journal. The Education Department of Gray’s Inn and the rest of the AGIS Committee have all worked hard to support the Journal. Into the future, I hope that the Journal will continue to provide students with the prospect of engaging academically with the law, developing further an area of interest, and sharing their perspectives on topical legal issues. PHOEBE WHITLOCK LONDON 2017 4 HAVE THE COURTS INTERPRETED SECTION 3 OF THE HUMAN RIGHTS ACT 1998 IN A WAY WHICH UNDERMINES THE SOVEREIGNTY OF PARLIAMENT? Siân McGibbon Introduction In our unwritten constitution, the sovereignty of the elected legislature is the cornerstone of democracy; any perceived compromise of this principle has tended to evoke strong reactions. In more recent years, the legal protection of human rights, the most significant provision for which in UK law is arguably the Human Rights Act 1998, has been also accorded increasing weight and value. It is perhaps inevitable, then, that where these two principles come into conflict, as they do in the application of s3 of the Human Rights Act, there is a need for delicate balance to be struck. The ability of these two features of UK law to co-exist is dependent on both the scope of s3 as interpreted by the Courts, and the definition of the concept of sovereignty. This article will begin by analysing the application and interpretation of s3 by the Courts, before proceeding to explore the meaning of Parliamentary sovereignty within the modern constitution. A definition of sovereignty will be advanced which allows for Parliament to bind its successors to the limited extent necessary to enact legislation providing for a continuing intention from which it does not mean to depart without express provision. It will be submitted that such an understanding offers both a descriptively accurate account of the modern constitutional understanding of sovereignty, and a normatively desirable evolution of the principle. The final section of this work will argue that the interpretation of s3 of the Human Rights Act is compatible with such a conception of sovereignty and that examination of the reasoning in the jurisprudence concerning s3 supports this conclusion. The Interpretation of S3 of the Human Rights Act 1998 S3(1) of the Human Rights Act 1998 provides that ‘[s]o far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect to in a way which is compatible with Convention rights’1. This creates an interpretative obligation which applies to all legislation, whether passed before or after the coming into force of the 1998 Act. The strength of the obligation contained in s3 remains the subject of voluminous academic debate. Nonetheless, there are certain parameters of the power which appear to be almost universally accepted. At the least, it is clear that the obligation is stronger than the usual purposive 1 Human Rights Act 1998 (HRA) s3(1). The term ‘Convention rights’ refers to the Articles and Protocols of the European Convention on Human Rights and Fundamental Freedoms (ECHR), which are incorporated in Schedule 1 to the Act. 5 interpretative obligation imposed on courts. At the highest, it appears to be settled that the phrase ‘so far as it is possible to do so’ is to be accorded at least some significance; there will be cases in which it is not possible to apply s3 to render legislation Convention-compliant. If nothing else, the existence of the power to make a ‘Declaration of Incompatibility’, contained within s4 of the 1998 Act, to complement the power in s3, is a clear indication that Parliament did not anticipate that all legislation would be capable of being interpreted under s3 so as to comply with Convention rights. However, within these broad boundaries, the extent of the power is contentious. The wording of the section itself is open to more than one possible meaning; to use the words of Lord Nicholls in Ghaidan v Godin-Mendoza, ‘section 3 itself is not free from ambiguity…[and] is open to more than one interpretation. The difficulty lies in the word ‘possible’2. Despite initial discord amongst senior judges as to the proper scope of s33, more recent jurisprudence concerning s3 has clarified matters to some extent. In R v A (No 2), which concerned the ‘rape shield’ enacted in s41 of the Youth Justice and Criminal Evidence Act, illustrated the difficulties which the court faced in grappling with the extent of their new power. The challenged statutory provision severely restricts cross-examination of a rape victim on the subject of her sexual conduct. The House of Lords unanimously held that the section had to be read subject to s3 of the Human Rights Act, and consequently interpreted the section as applying only where the exclusion of the evidence would not endanger the fairness of the trial in breach of Article 6 of the Convention4. The tone of the leading speech in that case, delivered by Lord Steyn, suggests an activist approach. He makes clear that ambiguity in the language of the challenged legislation is not a prerequisite for the application of s3. By contrast, the judgement of Lord Hope is more cautious, accepting the strength of the rule of construction laid down in s3 as being ‘quite unlike any previous rule of statutory interpretation’, but emphasising that ‘the rule is only a rule of interpretation…s3 does not entitle the court to legislate’5. Lord Hope reiterated the conservative analysis of s3 which he had given in his judgement in R v Lambert6, and it was later adopted by the House of Lords in In Re S (Care Order: Implementation of Care Plan)7. In that case the Court declined to reinterpret the Children Act under s3 of the Human Rights Act, expressing concern that to do so would involve giving 2 Ghaidan v Godin-Mendoza [2004] UKHL 30 at [27]. 3 See for example: R v Lambert [2001] UKHL 37; R v Kansal [2001] UKHL. In both of these early cases, the three members of the House who heard the case were unable to arrive at a unanimous decision. 4 Article 6 ECHR, which enshrines the right to a fair trial. 5 R v A (No 2) [2002] 1 AC 45, per Lord Hope at [108]. 6 R v Lambert [2001] UKHL 37. It should be noted that Lord Hope later held that Lambert had been wrongly decided on its facts.