It has not taken long. For the first time an English Court is on the brink of pronouncing a piece of UK legislation incompatible with the European Convention of Human Rights (ECHR)
Who: Mrs Wilson and First County Trust
When: November 2000
Where: Court of Appeal, London
It has not taken long. For the first time an English Court is on the brink of pronouncing a piece of UK legislation incompatible with the European Convention of Human Rights (ECHR). This is something the English Courts have only had the power to do since the incorporation into English law of the ECHR in October 2000.
The case arises out of a refusal on the part of a Mrs Wilson to repay the £5,000 she borrowed from pawn brokers First County Trust on the strength of her BMW convertible. Her car was safely returned to her at the end of the period of the loan, but her reason for not paying back the £5,000 was that the pawn brokers' agreement incorrectly included the £250 paperwork fee as part of the loan when it should have been part of the charge for the credit. Under the 1974 Consumer Credit Act (CCA) this rendered the whole agreement unenforceable.
The Court of Appeal couldn't fault the logic or law of Mrs Wilson's case but considered that this deprived FCT of their property (their £5,000) and this breached Article 1 of the ECHR, which sanctifies the right to property. The Court could not, (as in for example Canada) simply strike out the offending legislation. They have invited the Attorney General, however, to make representations to them as to why they should not make an incompatibility declaration in relation to the relevant provisions of the CCA, a development which would place enormous moral if not legal pressure on the government of the day to fast-track amending legislation.
Why this matters:
This will doubtless be the first of many such cases, and it may not be the last time the CCA comes under attack in this way. The much criticised but still in force Consumer Credit Advertisements Regulations 1989 were introduced under the CCA and impose a very strict regime covering all advertising that mentions the possibility of buying something on credit. It must surely only be a matter of time before a hapless advertiser caught between the simple, intermediate and full categories of credit ad argues successfully that criminalising all credit advertising outside these categories, regardless of whether it is misleading, is disproportionate to the achievement of the consumer protection objective of the CCA and therefore breaches the freedom of speech article 10 of the ECHR.