Human rights:where's the beef?
17 November 1998
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13 December 2006
The Human Rights Act promises UK residents a truly democratic society for the first time. But, asks Matheu Swallow, is the UK ready for such a revolution? There are concerns that Britain's judiciary is ill-equipped to cope with its new responsibilities.
"Football's coming home" was the unofficial anthem for the England World Cup squad of 1998. Unfortunately, as we all know, the cup never did make it back to Blighty, the competition ending bitterly in premature defeat.
The incorporation of the European Convention on Human Rights into British law has given cause for many to herald the coming home of human rights - but can the Human Rights Act, given royal assent last Monday, live up to the hype?
Rabinder Singh, a barrister at 4-5 Gray's Inn Square, believes it can. "For the first time the UK will have a proper Bill of Rights which, will join us to the family of modern democratic societies," he says.
In practical terms, Singh's colleague at the set, Marie Demetriou, says "having human rights brought home will allow our judges to apply the convention in a domestic context best suited to British society".
But there are concerns that Britain's judiciary is ill-equipped to cope with its new responsibilities. After all, it does not have the best record in defending human rights.
This is illustrated by the number of cases where the European Court in Strasbourg has found a violation because of a ruling by a British Court.
Singh is confident that the judges will rise to the challenge. "But the question is one of confidence in who the judges are and how they got there and whether they can be truly representative of society," he says.
Traditionally judges have "not been regarded as representative of the wider society that they serve", according to Singh. "Their previous record will mean the enactment of the Human Rights Act will make the question of judicial appointments an even more urgent one."
The role of our judges will change and they need to be prepared. But the Government has only set aside the paltry sum of #5m for training, which many feel to be insufficient. In addition there is to be no permanent watchdog, or Human Rights Commission, to keep an eye on what is inevitably going to be a difficult and complicated bedding-down period.
Nigel Pleming QC, a barrister at 39 Essex Street, is not sure how judges' training will marry up with that of barristers, who get no funding for training at all. However, in what is perhaps a sly dig at the judiciary, he says there is the curious possibility that there will be "better trained judges than advocates".
One glaring defect in the Human Rights Act has received almost universal condemnation from human rights groups and lawyers alike - the fact that only "victims" will have locus standi to bring actions. This precludes pressure groups like Liberty and the Joint Council for the Welfare of Immigrants from bringing test cases in their own names. This is counter to domestic developments in public law, where the rules for locus have, over time, become liberalised.
John Wadham, director of the human rights pressure group Liberty, made representations to the Lord Chancellor's Department (LCD) within days of the Human Rights Bill being published. He argued that to allow pressure groups to bring "some carefully conducted test cases would clarify the law and save lots of other expensive litigation".
He cannot understand the Government's policy. "There is no logic to it, but I am not going to paraphrase the LCD's reasoning because that would give it more credibility than it deserves," he says.
This argument, that there is likely to be a lot of unnecessary litigation clogging up the courts, is given further credence by Tim Ward, a barrister at 39 Essex Street.
"There will be a slew of cases making very very bad points on the convention," he says.
He refers to European Convention case law as a "baggy shapeless animal, which has very little in it by way of bone structure or clear principles, meaning any litigant with any imagination will be able to come up with a convention point to bolster a traditional judicial review challenge".
Pleming calls it a potential "research nightmare". He wonders where it will all end. "It is a question of jurisprudence. Where does the bounds of acceptable material to be introduced in evidence stop?"
Singh does not think this is a problem - in fact he believes quite the opposite. His says the UK is in an advantageous position because it can take on board the experiences of other international jurisdictions, which have already implemented a human rights act.
Utilising the case law of countries such as New Zealand, Canada and the US will effectively save the UK courts time in rationalising the principles of the act and integrating them into our existing laws.
Pleming is not convinced, he argues that deciding "the sources of acceptable material in a human rights case, will pose an extremely difficult and onerous problem for years".
Richard Gordon QC, leading public law barrister at 39 Essex Street, argues that there are two fundamental weaknesses in the act. Firstly, Article 13 of the convention has been omitted (it would have demanded the availability of an "effective remedy"). And secondly, he says, judges have no power to strike down primary legislation which falls foul of the Human Rights Act.
These failures, says Gordon, make European human rights law "the poor neighbour of European Community law".
Even where the court does find in favour of an applicant, Ward argues that, following European case law, awards are likely to be "both rare and small".
But Demetriou counters that where "actual economic loss" can be shown, awards will be a lot more generous.
Those pouring scorn on the usefulness of the act argue that although many articles sound good they will be of little practical use. One such article, identified by 39 Essex Street's Ward, is Article Three, which provides for "freedom from torture, inhuman and degrading treatment". The barrier litigants must overcome before they can invoke this article has been set very high. For Ward, this means treatment will have to be "truly terrible" before an action can be successful.
This is contrary to Liberty's belief that the article will help mental patients or prisoners in bad conditions. It also raises questions over the use of police weapons and may limit the use of "reasonable force".
There are more problems, or questions at least, such as whether the availability of resources (to public bodies) will have any bearing on liability under the act. This is a problem that is bound up with one of the major principles - that of proportionality.
The sum effect, says Gordon, is that "judges can protect economic rights very effectively, but this act will not enable judges to protect human rights anywhere near as effectively".
While Gordon's argument carries weight and some substantive criticisms of the act, the counter-argument - that problems are generally practical and can be resolved with time - has a great deal of impetus.
On the whole, lawyers are excited by the potential of the Human Rights Act. It is certainly advancing the cause of human rights in this country and will inevitably create a boom for litigation departments. As well as the negative restrictions on public bodies, the act imposes some constructive positive obligations.
Singh for example, cites the decision taken by the Strasbourg court, which obliged police to protect demonstrators from violent counter-demonstrators.
He also points out a possible obligation on local authorities, where a council estate tenant is being subjected to racial abuse. If the landlord or local authority fail to take adequate steps to evict offenders they could be liable under Article 14 - freedom from discrimination.
There are numerous examples of the act's positive potential, which has led John Wadham, Liberty's director, to call the incorporation of the convention, a "historic moment for human rights". But if human rights are to truly come home to Britain, lawyers will be hoping he is right.
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