De la “multiterritorialidad” hacia las Relaciones territoriales

New Zealand enacted a Bill of Rights Act in 1990 and it forms an integral part of the law of New Zealand as stated by Cooke P, in R v Goodwin116

The Bill of Rights Act is intended to be woven into the fabric of New Zealand law. To think of it as something standing apart from the general body of law would be to fail to appreciate its significance.117

The Bill of Rights Act was based on the International Covenant on Civil and Political Rights

it did not create any new rights, but confirmed the existing common law rights. The Bill of Rights Act did not include a right to privacy. In fact there is no general right to privacy in New Zealand law.118 Case law has developed a general tort of invasion of privacy and McGarth J and Thomas J, in dissenting judgments in Brooker v Police119 expressed support for the strengthening privacy rights, pointing to international recognition of the right to privacy and social attitudes in New Zealand.120 The New Zealand Law Commission in its review of privacy121 has recommended a range of changes be made to the law of privacy. 4.7.2 The United Kingdom’s ‘Constitution’ and Human Rights legislation

112 _{Re Application under the Major Crime (Investigative Powers) Act 2004 [2009] VSC 381[36].} 113 Ibid 381[164]. 114 _{Ibid 381[147].} 115 _{Ibid 381[146].} 116 _{[1993] 2 NZLR 153.} 117 Ibid 156.

118 _{Brooker v Police [2007] 2 NZLR 91, 164. Followed by Bradley v Wignut Films [1993] 1 NZLR 716.} 731-33.

119 _{[2007] 2 NZLR 91.} 120

Ibid 136-148 (McGarth J); and 213-229 ( Thomas J). 121 _{New Zealand Law Commission, ‘Review of Privacy’ (2011).}

The United Kingdom is one of the few countries in the world that does not have a written or codified constitution. Therefore it developed an extensive number of areas through doctrine and principle over a long period of time. Its concept of the separation of powers between the three levels of governance: parliament, the executive and the courts was a political rather than legal principle. The classic theory of Parliamentary supremacy based on Dicey’s122 theory works on an understanding of sovereignty in terms of hierarchical order or power, with the judicial branch being the weakest of the three; with the courts recognising that they can be overridden by Parliament. Parliament enjoys a comprehensive and exclusive power of law making, with the power to make, change and unmake any law. It also enjoys a comprehensive and exclusive immunity of law making against any other person or body: its laws are not to be changed or unmade by any other person or body. The only thing it cannot change are the terms of its legislative actions.

That the rule of law and the separation of powers complement the sovereignty of Parliament is not surprising. It is a fact accepted by the leading British constitutional theorists today. Under the influence of Diceyan orthodoxy, however, is not often acknowledged that the latter two doctrines, organise and ultimately limit the scope of the first. We cannot say that legislative supremacy is prior to the rule or law or the separation of powers. They operate jointly, or not at all.123

The first Bill of Rights was enacted in England in 1689, as noted in chapter two of the thesis, and it established Parliament’s sovereignty over the Monarchy.

The United Kingdom enacted a Human Rights Act in 1998, to give further effect to the rights contained in the European Convention on Human Rights.124 The Human Rights Act via section 3 requires all courts and tribunals in the United Kingdom to interpret legislation so far as possible in a way compatible with the rights laid down in the Convention. Nonetheless, there is currently an investigation by the Commission on a Bill of Rights to create a new Bill of Rights. The Commission concluded in April 2012 that there ‘is no consensus within the Commission on the fundamental issue of whether or not a UK Bill of Rights was needed and if so, what problems it would address.’125

122 _{See Albert Venn Dicey, Introduction to the Study of the Law of the Constitution (Macmillan, 8}th _ed, 1915) 3-4.

123 _{Pavlos Eleftheriadis, ‘Parliamentary Sovereignty and the Constitution’ (July 2009) 22(2) Canadian} Journal of Law and Jurisprudence 1, 11 (citations omitted).

124 _{Full title is: Convention for the Protection of Human Rights and Fundamental Freedoms opened for} signature 4 November 1950, 213 UTS 221 (entered into force 3 September 1953). As a founding member of the Council of Europe the United Kingdom acceded to the Convention in 1951, however it was not unit 1960 that British citizens were able to bring claims in the European Court of Human Rights.

125

April 2012 (Sir Leigh Lewis, Chair of the Committee). The Commission issued a second consultation paper in July 2012, and has held meetings with the judiciaries across the United Kingdom.

The European Convention on Human Rights126 reaffirmed the Governments of European countries belief in the fundamental freedoms which are the foundation of justice and peace. Article 1 reads: ‘The High contracting Parties shall secure to everyone within their jurisdiction the rights and freedoms defined in section 1 of this Convention.’127 The European Court of Human Rights128 has the role of ensuring observance of the Convention. The task is to ensure that States respect the rights and guarantees set out in the European Convention. Most of the European nations that have signed the European Convention, including the United Kingdom, have incorporated the European Convention’s principles into their own domestic laws.

The EuropeanConvention has become an unexpected tool of taxpayer protection; tax policy- makers need to ensure that their tax measures are in line with the basic requirements imposed by the European Convention. In Chambaz v Switzerland129 the Court concluded that the Swiss court by forcing a plaintiff in the course of a tax evasion investigation to provide potentially incriminating documents, was in violation of Article 6 (Right to a Fair Trial) of the European Convention. The Swiss authorities were found to have violated the plaintiff’s right to silence; the case is illustrative of the Courts’ continued endeavours to strengthen the taxpayers’ right in litigation, in an attempt to level the playing field between the individual and the government, in tax cases.130

The decision in the United Kingdom Court of Appeal in R (on the application of Morgan Grenfell' & Co. Ltd) v Special Commissioner131 concluded that section 20(1) of the Tax Management Act 1970 authorises an Inspector to issue a notice requiring disclosure by a taxpayer of privileged material. The Court also addressed the role of the European Convention specifically Article 8(2)132 and concluded that the economic wellbeing of the

126

4 November, 1950 Rome and its five Protocols: 20 March 1952 Paris; 6 May 1963 Strasbourg; 6 May 1963 Strasbourg; 16 September 1963 Strasbourg and 20January 1966 Strasbourg.

127 _{Section 1 of the Convention has 66 Articles that highlight the various rights, and five Protocols creating} additional rights.

128 _{The Court was set up in 1959 in the French city of Strasbourg, to hear cases brought by individuals,} organisations and states against the countries which are bound by the convention. The Court will only hear a case when all domestic legal avenues have been exhausted. Plaintiffs must show that they have been a direct victim of an alleged violation and they cannot bring cases against individuals or private bodies.

129

(2012) (Application number 11663/04) ECHR 142.

130 _{See Ernst & Young, ‘Major Developments: Three New Tax Judgments from the European Court of} Human Rights’ (2012) 49 EU Direct Tax News 1.

131

[2001] STC 497. 132

ARTICLE 8 Right to respect for private and family life

1. Everyone has the right to respect for his private and family life, his home and his correspondence. 2. There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security,

country was a ground on which the right to respect for private life and correspondence might be abrogated. On appeal in the House of Lord’s133 Lord Hoffman cited the European Court of Human Rights case of Foxley v UK,134 confirming that client legal privilege is a fundamental human right, which can be derogated from only in exceptional circumstances, and expressed doubt that ‘exceptional circumstances’ would include the public interest in the collection of financial information by the Revenue.

Sedley LJ in Douglas v Hello! Ltd135 in the United Kingdom Court of Appeal recognised that there is a right of personal privacy as an extension of the equitable right to have breaches of confidence restrained.

The courts have done what they can, using such legal tools as were to hand, to stop the more outrageous invasions of individual’s privacy; but they have felt unable to articulate their measures as a discrete principle of law. Nevertheless, we have reached a point at which it can be said with confidence that the law recognises and will appropriately protect a right of personal privacy … [Thus] equity and the common law are today in a position to respond to an increasingly invasive social environment by affirming that everybody has a right to some private space. 136

Sedley LJ went on to affirm that if the recognition of a right of privacy was not justified on common law principles alone, the Human Rights Act 1998, Article 8 right to respect for private and family life, home and correspondence gave ‘the final impetus’ to recognition of the claim.137