Eric Metcalfe
Eric Metcalfe is a barrister at Monckton Chambers specialising in public law, EU law and human rights. Called to the Bar in 1999, he spent almost nine years as the director of human rights policy at JUSTICE before joining Monckton in 2011. He is listed by the Legal 500 as a leading junior in the field of Civil Liberties and Human Rights. His most recent cases include R(Public Law Project) v Secretary of State for Justice [2014] EWHC 2365 (Admin) and Bingham Centre v Information Commissioner (EA/2014/0097), and he is currently instructed by Liberty in proceedings before the Investigatory Powers Tribunal against the UK intelligence services.
Publications
Contributor to the Rights and Freedoms volume of the 5th edition of Halsbury’s Laws (LexisNexis, 2013).
Editor in Chief of the Human Rights Law Reports - UK Cases (Sweet & Maxwell).
Co-author of the 5th edition of Blackstone’s Guide to the Freedom of Information Act (OUP, 2013).
Practice Areas
Panel
- Contributing Author
Education
- BA, LL.B. (University of Canterbury, NZ), LL.M. (Queens University, Canada), D.Phil (Oxon)
6 Contributions by Eric Metcalfe
PRACTICE NOTES
Applying Strasbourg Jurisprudence in UK Courts: HRA 1998 s 2, the Mirror Principle, Margin of Appreciation, Exceptions and Stare Decisis
Where a UK court or tribunal is confronted with an issue engaging a Convention right, it must take into account any judgment or decision of the European Court of Human Rights. In reality, the prevailing judicial approach has been to regard final decisions of the Strasbourg Court as effectively binding unless there is a sound reason to depart. This Practice Note accordingly summarises the core principles governing the standing of Strasbourg jurisprudence in the UK courts.
Background to HRA 1998, s 2
The UK was the first state to ratify the European Convention on Human Rights in March 1951. Until the Human Rights Act 1998, however, the Convention was not part of domestic law, so UK courts lacked authority to give effect to Convention rights (see: R v Secretary of State for the Home Department ex parte Brind). Even so, courts paid regard to Strasbourg rulings prior to the HRA 1998 (see: Derbyshire County Council v Times Newspapers). The purpose of the HRA 1998 was to enable UK courts to give effect to Convention rights in the first instance, rather than require individuals to...
Public Law
PRACTICE NOTES
Civil Contingencies Act 2004 (UK): Emergency definition, planning duties, ministerial regulations, limits and parliamentary scrutiny
The Civil Contingencies Act 2004
The Civil Contingencies Act 2004 (CCA 2004) constitutes the principal legal framework for managing large-scale emergencies across the UK.
Part 1 of the CCA 2004 places obligations on a spectrum of public bodies and designated private entities (e.g. energy suppliers and telecommunications operators) to carry out contingency planning and co‑operation for emergencies.
Part 2 of the CCA 2004 empowers a senior government minister to make emergency regulations, including provisions capable of altering primary legislation.
It should also be recognised that a variety of other exceptional statutory powers can be used in a crisis without any declaration under Part 2. For example, primary legislation such as the Coronavirus Act 2020 and section 14 of the Human Rights Act 1998 (HRA 1998) enables a Secretary of State to issue a designated derogation from rights under the European Convention on Human Rights (ECHR). Although Article 15 of the ECHR allows a derogation only ‘in time of war or other public emergency threatening the life of the nation’, a ‘public emergency’ for Article 15 purposes may exist even where the CCA 2004 has not been invoked...
Public Law
PRACTICE NOTES
Interpreting UK Legislation to Protect Human Rights: HRA 1998 s 3, Common Law, Principle of Legality, Presumption of Compatibility with International Law, and Post-Brexit Assimilated/Retained EU Law
There are three main principles of statutory interpretation relevant to the protection of human rights in the UK:
a statutory obligation in section 3 of the Human Rights Act 1998 (HRA 1998) to construe legislation, so far as possible, in a manner consistent with Convention rights
the presumption that Parliament does not, absent clear wording, curtail fundamental rights — the interpretative ‘principle of legality’
the presumption that Parliament does not intend to enact measures contrary to the United Kingdom's international duties, including under international human rights instruments — the presumption of compatibility
Before the UK left the EU, further presumptions guided the reading of statutes in line with UK obligations stemming from EU law. Although the UK is no longer an EU member, such presumptions may still matter for questions of assimilated law (or issues of retained EU law as it operated in the 2021–23 period). However, because the Charter of Fundamental Rights of the European Union was expressly excluded from retained EU law in the 2021–23 period, and neither it nor...
Public Law
PRACTICE NOTES
Litigating and defending human rights claims under the Human Rights Act 1998: Convention rights, public authorities, victim status, incompatibility, time limits and damages
Under the Human Rights Act 1998 (HRA 1998), all public authorities in the UK are required to act consistently with the European Convention on Human Rights (ECHR), namely the ‘Convention rights’. For further reading, see Practice Note: Convention rights. If this obligation is breached, the HRA 1998 allows any victim to bring proceedings against the public authority at fault (HRA 1998, s 7(1)(a)). Additionally, a victim may rely on their Convention rights in any legal proceedings (HRA 1998, s 7(1)(b)).
Background—the relationship between the ECHR and the HRA 1998
The ECHR (the ‘Convention’, as set out in HRA 1998, Sch 1 Pt 1) is an international treaty concluded by the member states of the Council of Europe. Under Article 1, each contracting state must secure the Convention rights for everyone within its jurisdiction. The Convention also established the European Court of Human Rights (ECtHR) in Strasbourg to determine complaints by individuals and states concerning breaches of Convention rights. However, Article 35 of the ECHR provides that individuals may only lodge a complaint with the ECtHR once they...
Public Law
PRACTICE NOTES
Practitioner overview of UK counter-terrorism law: definition, offences, powers, Prevent duties, HRA challenges, court procedure and sentencing
Terrorism law in the UK spans both common law and statute, encompassing a broad range of criminal offences and civil powers. The Terrorism Act 2000 (TA 2000) was crafted to serve as a comprehensive structure for counter-terrorism powers. Following the 9/11 attacks, however, the TA 2000 framework was revised and reinforced by additional legislation:
Anti-terrorism, Crime and Security Act 2001 (ACSA 2001)
Prevention of Terrorism Act 2005 (PTA 2005)—subsequently repealed by the Terrorism Prevention and Investigation Measures Act 2011, s 1 (see below)
Terrorism Act 2006 (TA 2006)
Counter-Terrorism Act 2008 (CTA 2008)
Terrorist Asset-Freezing etc Act 2010 (TAFA 2010)
Terrorism Prevention and Investigation Measures Act 2011 (TPIMA 2011)
Protection of Freedoms Act 2012 (PFA 2012)
Justice and Security Act 2013 (JSA 2013)
Counter-Terrorism and Security Act 2015 (CTSA 2015)
Counter-Terrorism and Border Security Act 2019 (CTBSA 2019)
Counter-Terrorism and Sentencing Act 2021 (CTSA 2021)
The statutory definition of terrorism
Section 1 of the TA 2000, as amended, defines ‘terrorism’ as:
the use or threat of action where the action:
involves serious violence against a person...
Public Law
PRACTICE NOTES
UK Judicial Deference and Strasbourg's Margin of Appreciation: Principles, Scope, Factors and Key Cases under the Human Rights Act 1998
Judicial deference
Judicial deference is often characterised as the principle that 'respect is a central concept in judicial review'. It is not confined to matters concerning human rights. Where human rights are engaged, however, it relates to the weight courts will accord to the considered views of Parliament and/or the Executive when determining whether a given decision or a particular item of legislation amounts to a proportionate interference with one or more rights under the European Convention on Human Rights. Although akin to deference in several ways, the margin of appreciation is a separate doctrine applied by the European Court of Human Rights (ECtHR). It encapsulates the notion that member states are, in principle, better placed to assess local needs and circumstances than an international court and should therefore be granted a measure of leeway as to the manner in which they implement human rights standards...
Public Law
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