Yet another an attempt to send the final part
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As a finalexhibit consider the Supreme Court decision in Tomlinson. The case
arises out of whether a local authorityhave complied with their duty to house
someone who is ‘homeless’. The ‘homeless’person sought to show there was a
breach of their human rights but thisdepended on whether their rights as a
homeless person were “civil rights”within Article 6 of the European Convention
on Human Rights [‘ECHR’]. Theinteresting thing is that the very same issue had
arisen before the SupremeCourt about ten years previously but in that case they
left open whether or notsuch rights were “civil rights” within Article 6 and
decided the case by sayingthat, even if they were “civil rights”, there was no
breach because judicialreview provided an adequate remedy to comply with human
rights law under theECHR. In Tomlinson the SupremeCourt decided such rights are
not “civil rights” within Article 6 and so humanrights law does not apply at
all.
What then hadchanged between these two Supreme Court cases? Whatever it was, it
had nothingto do with “conceptual analysis”. The problem-situation, as
perceived by theSupreme Court, had changed.
A few thingsmay indicate the problem-situation and what had changed. The ECHR
isadjudicated on by the European Court of Human Rights at Strasbourg
[the‘Strasbourg Court’] and judgments of the Strasbourg Court are binding on
theEnglish Supreme Court. Though obliged to follow Strasbourg, the Supreme
Courthave made clear they do not see their function as taking a lead on human
rightsissues or using such issues to carve out add-ons to the legal framework
that gofurther than Strasbourg would go. Ten years before Tomlinson, the
Strasbourg Court had decided several caseswhere rights against government
bodies had been recognised as “civil rights”attracting human rights protection
and it was possible that Strasbourg woulddevelop the notion of “civil rights”
in ways that made clear that a homelessperson’s rights were “civil rights”.
But this did not happen. By the time of Tomlinson it looked like
thoseStrasbourg cases were exceptional cases or were cases where the right
inquestion had attained a sufficiently quantifiable form to be “civil rights”.
Inother words, the Supreme Court had proceeded cautiously ten years before
toavoid a potential conflict with on-going developments at Strasbourg but by
thetime of Tomlinson the SupremeCourt felt confident enough, given lack of
on-going developments at Strasbourg,to hold that a homeless person’s
application for housing was not a right in asufficiently quantifiable form
(because it depends on discretionary andconditional assessment) to constitute a
“civil right” attracting human rightsprotection. It would be philosopher’s
make-believe to suggest that this changewas a result of a change of “conceptual
analysis” or that somehow the“conceptual analysis” of “civil right” that could
be made ten years before Tomlinson was different to the“conceptual analysis”
that could be made by the time of Tomlinson.
This isreinforced by understanding that Tomlinson(like the issues of whether
duress be a defence to murder or disclosure ofprivileged documents be compelled
to assist the defence in a criminal trial) isvery much a case where the issue
is not “conceptual” but whether ‘the game isworth the candle’. Just as the
adequacy of safety-valves underpins the decisionin Howe, the decision in
Tomlinson is underpinned by theperceived adequacy of Judicial Review. In the
view of the Supreme Court, treatingapplications for government benefits as
falling within “human rights” wouldgreatly add to the legal expense of
administering those benefits withoutoffering much by way of improvement on
Judicial Review – hence ‘the game is notworth the candle’ and the decision is
to take such applications outside of“human rights” by finding they are not
“civil rights” within Article 6.
It isfantasy to suggest that the decision in Tomlinsoncan properly be accounted
for in terms of “conceptual analysis”. It is based onfinding the right legal
solution given the ‘problem-situation’.
D
