It is hard to deny that the Human Rights Act 1998 has marked a sea-change in legal scholarship, whatever may have been its impact upon the protection of human rights within, or upon the constitutional principles of, the United Kingdom. Indeed, a large proportion of legal scholarship has been devoted to assessing these issues. Leigh and Masterman undertake an ambitious task to assess the impact of the Act in its first ten years. Their focus is the extent to which the Act has strengthened the protection of human rights, which they regard as the most important measure as to the Act's success.

Their evaluation provides an account of: the history of the enactment of the Act; an assessment of the political and legal mechanisms provided for protecting human rights, including those found in private law as well as through public law provisions; an evaluation of both public and private remedies available for the protection of human rights and a specific focus on the extent to which the Act has required modifications to the criminal trial and its impact upon counter-terrorism measures following 9/11 and 7/7. They provide a measured assessment of the Act, noting that its hybrid nature may well have restricted the ability of the Act to bring rights home. This is particularly true as regards the application of article 6 of the Convention in criminal trials, as well as the more gradual and incremental alterations made to the common law, as opposed to the creation of a tort of privacy. The judiciary would appear to prefer a more measured and incremental approach, respecting, for the most part, the established constitutional roles of the legislature, the executive and the judiciary. Leigh and Masterman also note the difficulty of providing an assessment of the Act in the face of terrorist threats, recognising that the Act has become part of public discourse, whilst recognising that there are little signs of the creation of a human rights culture beyond this sphere.

The breadth of the project is the book's main strength. It provides an excellent one-stop-shop for those wishing to obtain a detailed overview and evaluation of the Act, of its impact upon English law, and of academic commentary. However, the breadth of coverage means that critical reflection is, of necessity, more piecemeal and scattered throughout the book, in response to specific issues. This may leave the reader with the mistaken impression that the book is aimed at the non-specialist. This would be an error. The criticisms are insightful and thought-provoking, particularly those relating to horizontality and section 2(1) of Human Rights Act – an important issue that does not receive as much academic commentary as it deserves. Space precludes a detailed examination of all of the critical reflections found in the book, and the focus will be upon two main themes.

Leigh and Masterman focus predominantly on the purpose of the Human Rights Act to “bring rights home”, providing a means by which Convention rights can be pleaded and relied upon before English courts. The relationship between the Act and the European Convention of Human Rights justifies the predominant focus of the book. Leigh and Masterman argue that the context of the Act provides limits both to the powers of the court and of Parliament. Courts are not free to interpret Convention rights in any manner that they please. They are constrained by the interpretations of the European Court of Human Rights. This constraint is reinforced by section 2(1) of the Act. Parliament is not free to respond to declarations of incompatibility in a manner that contravenes possible future decisions of the European Court of Human Rights. Consequently, debates which focus predominantly on the relative powers of the court and Parliament – particularly those relying upon extensive powers to the court so as to achieve a constitutional protection of rights in all but name, or upon the reservation of stronger powers to Parliament to preserve a predominantly political protection of rights – fail to assess reality.

However, it is not necessarily the case that Strasbourg's influence is as constraining as Leigh and Masterman argue, for two reasons. First, there is an interplay between the long-standing case law defining the content of a Convention right and the specific application of the right to the facts before the court. Leigh and Masterman recognise this distinction, criticising recent decisions for failing to provide a stronger domestic interpretation of Convention rights in specific circumstances when to do so would not contradict the general line of authority from Strasbourg, particularly where Strasbourg decisions use the margin of appreciation when defining a Convention right. The constraint placed on domestic courts may prevent them from giving interpretations that directly contradict Convention rights, but the ability to distinguish a line of case law from Strasbourg from the particular facts before the court gives significant leeway to the domestic courts when interpreting Convention rights. It provides only a minimal restriction for those who advocate a strong, creative role for the judiciary. The relationship between the general and the particular also influences the extent to which Parliament can legislate contrary to Convention rights. Parliament may be required to enact general legislative provisions in response to specific decisions of the court. This is particularly the case with regard to declarations of incompatibility. Although the Strasbourg court may judge legislation to have contravened Convention rights, its decision will rest upon the facts to which the legislation is applied. Although Parliament may be constrained to enact legislation that remedies this particular breach, there may still be a large amount of discretion at the hands of the legislature as to the manner in which it enacts general legislation to remedy the breach. This discretion may not achieve as full a protection of Convention rights as advocates of such rights would desire.

Second, rights are most fully brought home, and Parliament is constrained to the greatest effect, when declarations of incompatibility lead to an inevitable conclusion before the Strasbourg court that the legislation declared incompatible is indeed contrary to Convention rights. However, it is not a foregone conclusion that the Strasbourg court will agree with the decision of the English courts. Again, this may be because of the interplay between the decision of the national court regarding legislative provisions and the decision of the Strasbourg court which focuses on the breach of Convention rights in specific circumstances. Also, it may depend upon the justification provided by the national court for making a declaration of incompatibility. Declarations of incompatibility may be granted by the court where, although the court agrees that Convention rights have been breached in a particular instance, it is either reasonable to disagree with this specific conclusion, or as to how Convention-compatibility should be achieved. This will often occur in the same circumstances that would give rise to the application of the margin of appreciation doctrine by the European Court of Human Rights. There is no guarantee, therefore, that the Strasbourg court will side with the domestic court in all situations, removing the extent to which declarations of incompatibility, when taken in their European human rights context, act as a specific constraint upon the legislative power of Parliament.

The second recurring theme running through Leigh and Masterman's account focuses on the impact of the imposition of a duty to uphold Convention rights upon private individuals, examining: the interpretation of legislation following section 3(1); the definition of public authorities under section 6(3)(b) and the horizontal application of Convention rights through the operation of the common law, with regard to both substantive and procedural provisions. Leigh and Masterman are concerned that too expansive an interpretation of the different forms of horizontality may lead to situations in which the human rights of the private body in question are inadequately protected. Not only may this reduce the protection of human rights, but it may also have further practical ramifications, dissuading voluntary bodies from undertaking valuable work for the protection of the vulnerable, through fear of the imposition of onerous human rights duties.

However, it is not a foregone conclusion that an expansive horizontal application of rights will result in a reduction in the protection of the human rights of individuals who find themselves faced with a legal obligation to uphold the rights of others. Whether this occurs depends upon the way in which competing Convention rights are balanced. Sufficient protection of both sets of Convention rights can be achieved through sensitive balancing operations, which recognise the rights and responsibilities of both private individuals. A concern to ensure Convention rights for all are brought home need not entail a narrow interpretation of horizontality, provided that the means through which horizontality is achieved recognises the need to balance Convention rights.

Leigh and Masterman succeed in their objective of providing an excellent account of the extent to which Convention rights have been brought home in the first decade of the Human Rights Act. Their book serves as a good basis from which to reflect on the more theoretical academic literature discussing the type of human rights protection required for the United Kingdom, particularly given recent proposals for reform of the Act. Perhaps the main conclusion to draw is not one regarding the extent to which legal or political mechanisms can be said to provide a better protection of human rights, but rather the clear point that all forms of human rights protections are vulnerable in societies which fear the threat of terrorist activities. It is in these circumstances that the judiciary are both required to provide a stronger protection of rights and may also face the strongest pressures not to do so. Recent decisions would suggest that the judiciary are prepared to protect rights in the face of political criticism. It is a different issue to determine whether this alone could or should justify providing greater powers to the judiciary to protect Convention rights.