Christopher Fowkes on the advancing Human Rights Act

Christopher Fowkes is a solicitor at Travers Smith Braithwaite.

The Human Rights Act 1998 received royal assent last year, but implementation has been delayed to give the Government time to prepare. The act will be brought into force fully on 2 October 2000.

The act will incorporate most parts of the European Convention on Human Rights into domestic law. From October 2000, UK citizens will no longer have to use the cumbersome Strasbourg machinery to enforce their convention rights.

This will not only affect criminal litigation and "classic" human rights cases, but civil and commercial litigation too. Statutes, case law, court procedures and the exercise of judicial discretion will be open to challenge by private persons, both legal and natural, in private actions in the domestic courts.

Three cases this year stand out because they show how much the convention is already relied on.

In Dawson v Wearmouth, the House of Lords rejected the appellant's convention point, because the convention was not being breached.

In the Court of Appeal case of R v North & East Devon Health Authority ex parte Coughlan, breach of the convention by the authority was one of the reasons for Coughlan's success.

The convention was central to R v DPP Ex parte Kebilene et al in the Queen's Bench Divisional Court.

The Lord Chief Justice said: "The convention, despite its recent advance towards incorporation, had not crossed the Rubicon separating prospective from binding law."

However, he held that it was right to consider the convention to avoid decisions being overturned in the future either on appeal in the domestic courts once the act became binding or otherwise on an appeal to Strasbourg.

It is the willingness of the courts in these cases to entertain arguments under the act prior to October 2000 that is of interest to a commercial litigator rather than the actual issues decided (change of child's surname, right to permanent abode in a nursing home, DPP's consent to terrorism prosecutions).

The breadth of the convention means that a vast range of arguments can be constructed under it. It would appear that convention points should be on litigators' checklists now, not just next October.