An act to follow

European Human Rights Law is about to enter Irish law and practice. Until now, the European Convention on Human Rights (ECHR) has applied to, but not in, Ireland. However, an ECHR bill is making its way towards the statute book and is likely to come into effect next year. Essentially, it 'incorporates' the ECHR. Arising from the Belfast Agreement, it is intended to provide a similar level of protection of human rights as now exists in Northern Ireland following the introduction of the UK Human Rights Act (HRA).
Although there are significant differences, the bill is broadly similar to the HRA, which came into effect throughout the UK on 2 October 2000. Without underestimating the significant differences between the Irish bill and legal system and the UK HRA and legal system, the impact of the HRA in the UK over the past 18 months should be of real interest to the Irish legal profession.
Before 2 October 2000, commentators were divided over the potential impact of the HRA. Some had predicted an overloading of the courts, others predicted little impact. In fact, the experience has been neither – instead, the ECHR has weaved itself into the fabric of the legal system.
A statistical snapshot carried out by the Human Rights Act Research Project demonstrated that between 2 October 2000 and December 2001, there were in England and Wales alone 297 cases in which the ECHR had been substantially considered. In 207 of such cases, the outcome, reasoning or procedure was affected by the HRA.
Although not an 'overload', this does contrast markedly with the pre-HRA situation. For example, between 1975 and 1966, there were only 316 cases in which the ECHR was referred to, and in only 16 of such cases could the ECHR be said to have influenced the outcome. Indeed, in the first year of the HRA, research demonstrated that the ECHR had been considered substantially in nearly as many cases as it was merely referred to during the six years preceding the 1997 research study previously carried out.
In practice, the UK HRA has started to act as a 'magnet', providing the framework within which all manner of decisions must now be subject to a European human rights filter, balancing the individual right with the public interest and, as a 'spotlight', bringing to judicial and public attention questionable aspects of domestic law and policy.
Although the new post-HRA constitutional arrangements have not yet brought forth a clear judicial consensus, there is no doubt that principles of judicial interpretation are undergoing fundamental changes.
Similar to the Irish bill, the judiciary is now obliged to interpret all domestic legislation in a manner compatible, insofar as possible, with the ECHR. If this proves impossible, then the court may issue a declaration of incompatibility, but must apply the prevailing domestic law with a fast-track procedure whereby Parliament may amend the offending legislation. While there have now been five such declarations, a spectrum of judicial opinion has emerged as to how strained an interpretation should be placed on domestic legislation. At one end, the duty is seen narrowly as to 'interpret' and not 'legislate' as such. At the other end, the duty is regarded more broadly as not being limited to a 'reasonable' interpretation, but to interpret in such a way that makes it 'possible', even if linguistically strained and not necessarily the will of Parliament when the legislation in question had been passed.
In respect of judicial review of public administrative discretion, an initial narrow judicial approach of adhering to the 'Wednesbury principles' of irrationality, illegality and impropriety has given way to a broader approach, taking into account the 'proportionality' of the actual decision reviewed, ie generally speaking, greater attention now being paid to the content rather than merely the form.
Beyond any question now is the fact that the common law is being developed in accordance with the ECHR, for example in the area of press freedom and individual privacy.
All of these examples demonstrate the magnet effect of the HRA.
The spotlight effect of the HRA has been demonstrated by the diversity of the subject matter brought before the courts, including: voluntary euthanasia; environmental protection; child protection; discrimination on sexual orientation; prison conditions; provision of legal aid; privacy and press freedom; mental health provisions; homelessness; immigration and asylum; and public inquiries and investigations into deaths… The list goes on.
A number of areas are already identifiable where a change has developed in UK law and public policy. The HRA has provided an individual protection against severe environmental interference with the enjoyment of one's home – for example, a successful action against the negligence of a privatised utility in failing to protect the claimant's house from flooding caused by an inadequate sewerage system. A new right to privacy is being created at common law, particularly within the context of press freedom and individual privacy. A series of cases has led to the development of an ECHR framework, in which a balance is to be struck between the positive duty of the public authorities to protect a child from abuse and the rights of the parents, and indeed a child, to a family life that is not being disproportionately interfered with. Recent cases have also increased the obligation on the state to provide more effective investigations into deaths in which, for example, criminal and civil liability can be considered and which are conducted in public with increased participation of the family of the deceased.
Article 6 of the ECHR, the right to fair and public hearing in respect of both criminal proceedings and the determination of civil rights, has undoubtedly generated the greatest number of legal challenges. These include challenges with varying degrees of success and include the independence and impartiality of the court or tribunal, delay, lack of reasoned judgement, lack of legal aid, disclosure and the adversarial nature of proceedings.
It is anticipated that there will be a significant impact upon PFIs: contracting out to private operators of certain public functions in respect of the apportionment of liability of any human rights breaches committed by the private operator in the carrying out of such public functions – for example, residential homes, waste management, prisons etc.
In the longer term, perhaps the most profound impact will be the effect of Article 6 upon the decision-making procedures of public authorities which, as with the Irish bill, are required to comply with the ECHR. This would include the areas of planning, licensing, housing, social work, education, health, criminal justice etc. In essence, there will be a greater degree of participation, accountability and transparency required in any such processes. It is in this area that there has been identified the greatest need for an auditing of policies, procedures and practices for human rights, as well as training.
While inevitably there may be more questions than answers at this stage, one thing is clear – interesting times lie ahead.
Professor Alan Miller is director of McGrigor Donald's human rights law unit