The front cover of Public Law after the Human Rights Act is a picture of the new Supreme Court, and the book itself appears to be imbued with much of the spirit of the Court: a desire to make things more clear and transparent, not being afraid to tread a new path but unconvinced by arguments of the need for drastic measures. The author, Tom Hickman, is one of those rare beasts that one tends to find in the Supreme Court, a practitioner genuinely involved in some of the most important and controversial public law cases whilst also being a widely-published academic lawyer with a stellar reputation. That reputation is only going to be added to by the publication of this book, which sees Hickman's natural intellectual curiosity win out over the time pressures of practice by including a swathe of new material rather than being simply a “Collected Works”.
Before a more considered look at the content is taken, three general, rather tedious, complaints need to be made. First, there are few too many typographical errors, usually of names. This is hardly the end of the world, but it is slightly distracting. Secondly, the book has an unhappy aversion to neutral citations, which is unhelpful for people wishing to rely on the book's impressive research because they will have to look up the neutral reference themselves, and particularly awkward when a case has only been reported in a specialist set of reports. Thirdly, and most irritatingly, the table of cases appears to have adopted a bizarre dislike of cases in which the first party is named only as A. This means that anyone wishing to see which pages discuss the Belmarsh Detainees case will not find it listed anywhere under “A” and will have to persevere to the “S” section to find it. Alongside that case is Secretary of State for the Home Department v. AF (No 3) [2009] UKHL 28; [2009] 3 W.L.R. 74, which is listed under “A” as well (with the parties reversed), only with more page references in its first appearance. Hickman's book deserves to be widely read, so hopefully these glitches will be sorted out on a second print run.
Hickman describes himself and his approach as falling within the amber light category of public law scholarship (pp. 2–3). Unfortunately, the amber light is not mentioned again and so precisely what this category means is not fully developed, but attempts to find coherent, principled and rational middle ground solutions is something seen regularly throughout Public Law. For example, drawing on the work of Bickel and Dicey to create a strong form of dialogue between the courts and Parliament under the HRA as he does in Ch.3 is innovative and very well-read. The problem with dialogue theories is that neither the courts nor Parliament appear to talk in those terms. If the parties to the conversation are not apparently aware that the conversation is happening one wonders what sort of odd marriage guidance counselling the academics are performing when they spill so much ink debating what form the conversation is taking. But Hickman is, as one might expect, a very practically minded academic critic. Although chapter 2 on the common law and the HRA takes a little while to get going, the section analysing the case law on the extent to which the HRA creates domestic rights or channels international ones is powerful and (especially if the reader was a member of the House of Lords in R (Al-Jedda) v. Secretary of State for Defence [2007] UKHL 58; [2008] 1 A.C. 332) damning of the way in which the highest courts have approached the constitutional status of the HRA.
Chapter 4 relies on an interesting split between standards of legality and standards of review. However, the argument that Wednesbury is a standard of review and not a standard of legality (p. 102) cannot be sustained. Wednesbury is generally accepted to be a standard of review in substantive judicial review cases (such as legitimate expectations), but the inclusion of irrationality along with illegality and procedural impropriety as the heads of judicial review by Lord Diplock surely recognises that irrationality/unreasonableness is a standard of legality with which failure to comply leaves a public authority open to judicial review. In contrast, Hickman later states that proportionality is a standard of legality and not just a standard of review (p. 292). Again, this cannot be so obvious. At least under the HRA the standard of legality is set by s.6 and the usual (although by no means only, as Hickman forcefully argues in Ch. 4) standard of review is proportionality. Chapter 8 also, to this reviewer, goes too far when Hickman argues that the decisions in R (SB) v. Governors of Denbigh High School [2006] UKHL 15; [2007] 1 A.C. 100 and Belfast City Council v. Miss Behavin' [2007] UKHL 19; [2007] 1 W.L.R. 1420 have set the face of the law against any form of process review under the HRA. There is no reason to read the decisions in quite such a blanket manner. All the House of Lords decided was that whether or not there has been an infringement of a Convention right is a matter which must be determined by the courts and no-one else. That does not necessarily preclude process challenges in other cases, as have occurred, and Hickman certainly makes a compelling case for why Denbigh and Miss Behavin' should not be read as going any wider. The encouragement which their Lordships gave decision-makers in Miss Behavin' to reason decisions carefully and thoroughly in the hope that some weight would be accorded to them was in no small part for instrumental purposes. Hickman fails to recognise that a well-reasoned decision is more likely to be correct, even if the final adjudication on infringement is for the court.
Other chapters present forceful arguments which are wholly convincing. The re-imagining of the deference debate as really all being about weight in chapter 5 makes not only the terminology better, but also more readily enables the argument about what types of reasons for giving weight are good and bad. Weight is not a zero-sum game, but permits contextual flexibility. It also has the merit of providing a valuable, if rare, examination of just what is so important about R (Huang) v. Secretary of State for the Home Department [2007] UKHL 11; [2007] 2 A.C. 167. Chapter 7 largely retreads the ground covered in Hickman's excellent article in this Journal on the intertwining relationship of reasonableness in negligence and in public law ([2004] C.L.J. 166), which is as visionary now as it was then. It is also to be fervently hoped that the judiciary will read chapter 6 on the substance and structure of proportionality, alongside Mark Elliott's “Proportionality and Deference: The Importance of a Structured Approach” in C. Forsyth et al. (eds), Effective Judicial Review (2010, OUP), p. 264, and come to provide a much more clearly defined analytical structure for what the courts are doing under proportionality, or risk undermining what ought to be straightforward template.
Not every argument, or even chapter, made in Public Law can be addressed here, but every public lawyer will find something to chew over. For instance, the argument in chapter 9 is the most coherent (and, with apologies, proportionate) contribution that this reviewer has seen in a long time in favour of avoiding drastic measures and retaining reasonableness review in the common law alongside a limited role for proportionality. It is a measure of Hickman's achievement that anyone writing in almost every debated area of HRA-related public law will now have to engage with the arguments made in Public Law after the Human Rights Act. Some of those debates Hickman will win. Some he will (or should) lose. All of them will be enriched by this book and public lawyers will be thankful that it has been written.
