they get it all wrong? Fenella Quinn investigates
A year ago the tabloids were full of it – no more school uniforms, teenage sex in the playground, no more breathalyser tests. These and other such nonsensical predictions abounded in the run-up to the Human Rights Act (HRA) being enacted in the UK. But according to the barristers who are concerned with applying the law, things have turned out very differently.
“The predictions of what a catastrophe it would be last September just haven't come true,” says Keir Starmer of Doughty Street Chambers. “The courts haven't been bulked out by unnecessary cases.”
One of the main reasons for this, according to Matrix Chambers' chief executive Nick Martin, is all the advisory work that goes on. “People don't see the huge amount of work that goes on behind the scenes, and there are plenty of examples of members having to say that cases don't have legs,” he says. Martin adds that around half of Matrix's work has been in an advisory capacity, largely from organisations finding out if they are complying with the law. “A lot of members give advice on reviewing their procedures,” he says.
Robin Allen QC of Cloisters agrees. “It's turned out much better than it could have done, there's not been a huge number of idiotic cases. Judges have been able at an early stage to spot what is a rubbish point and if a case isn't good, it gets stopped in its tracks. The act has not been a disaster as some commentators predicted. It's quite interesting that there hasn't been a huge flood of work,” he says.
The role of judges has obviously been a key factor in keeping the number of cases at an acceptable level. Starmer says: “I think in the first year the judges have done pretty well. It's been hard. Inevitably, having grown up in a common law system, it takes some adjustment. Of course, there are judges who are truly committed to human rights jurisprudence, and they have dragged the others along.”
Starmer says that the biggest impact for Doughty Street has been in the areas of crime and public law, with two thirds of lead cases arising in the criminal field. He acted in the Lambert case, which went to the House of Lords to examine the burden of proof in criminal cases and whether the HRA was retrospective.
Starmer welcomes the new mode of judgments brought in by the act. “Before, it was not done according to an open and transparent method. But the HRA puts decision making on a transparent footing. People know what judges should take into account, all judges have to give reasons, including magistrates, and this inevitably makes the system much more efficient because everyone knows the rules of the game.”
“With the new security environment enforcing state security and civil liberties, there will be conflicts”
Nick Martin, Matrix Chambers
The two-year lead-up to enactment and all the training that went with it are widely considered to be the main reason why the act has, in Starmer's words, “bedded down better than anyone expected it to”. Lawyers, judges and organisations have all had
the chance to become accustomed to thinking in a new way, which is crucial in what barristers describe as the 'new legal culture'.
Dinah Rose of Blackstone Chambers says: “The judges are having to make far more dynamic interpretations and they're definitely being influenced by the articles of the Human Rights Convention.” She adds that the extensive training has “made many judges more switched on about human rights than the advocates standing in front of them, but that doesn't mean they're not hostile to it”.
Rose reports a lot of activity in disciplinary and regulatory proceedings, for example in the medical field, where, she says, “the Privy Council has given itself a more interesting role”. Since the HRA, the Privy Council has been able to consider the role of disciplinary bodies such as the General Medical Council to greater effect.
In the Preiss case, the Privy Council allowed an appeal from a struck-off dentist on the grounds that the procedures of his regulatory body did not comply with the act.
Rose says: “It's very early days still, but there's already a significant change in the legal culture and we're some of the way towards naturalising the principles of human rights. In 10 years we'll look back on these days as the dark ages. It's not possible to say there's human rights law any more, there's a human rights dimension to all cases.”
A crucial area in which the new act is testing judges' mettle is where conflicts between competing rights arise, as is often the case. This often arises in media-related cases, where one side pleads the right to privacy while the other pleads the right to freedom of expression. The case of Pretty is another conflict of interests. Richard Gordon QC of Brick Court Chambers says: “This case would have been cloaked in the anonymity of the common law before. But now we have a right and it can't be interfered with without good justification.”
Judges presiding over the Pretty case, in which a woman with motor neurone disease wishes to be able to have assistance in taking her own life, must decide between the competing forces of the right to life and the right not to be subjected to degrading and inhuman treatment.
“Where two rights are competing, we get into a situation of judges having to decide which right trumps the other,” says Gordon. “That is a new way of doing things; judges are having to get more into the facts of the case, and that, in turn, will refashion the shape of the judiciary. What we have now in the judiciary is gifted amateurs, but judges are going to have to look far more carefully at the way decisions are made.”
Much has been made of the fact that the act does not bring anything new to the table except a more direct way for claimants to fight for their rights. But there is now a general consensus that previously hopeless cases can receive an airing. “For example, P&Q [whether under Article 8 of the HRA mothers have the right to have their babies with them in prison] would have been an unarguable case prior to the act,” says Gordon.
A study has been completed by the Human Rights Act research unit at King's College London into the 149 cases in which the European Convention on Human Rights was substantively considered between 2 October 2000 and 24 May 2001. It found that “in the first year of the HRA the convention has been substantively considered in nearly as many cases as it was merely cited in during the six years preceding our 1997 study”.
Gordon says: “It's probably affected civil liberties cases more than any other. And within that, criminal cases have been affected more than any other. We're now in a new legal culture and we have to think along those lines. Undoubtedly, it's taking more time to argue these issues.”
Looking to the future, Martin foresees security and the rights of the individual versus the national interest as providing new testing ground, particularly in light of the recent terrorist attacks in the US. But security issues aside, he does not expect cases to tail off. “I think it will be an ongoing thing, he says. “Obviously things will take time to come through the system. People will always be testing out principles. And now with the new security environment enforcing state security and civil liberties, there are going to be conflicts.”
Rose wonders if some issues even more intrinsic to the fabric of our society will be put to the test. “The act has still got a lot of legs, there are a lot of undecided things – the position of the Lord Chancellor is still undecided,” she says. As a government appointee, employer of the judiciary and the highest judge himself, there has always been a constitutional question mark over the impartiality of the Lord Chancellor's office. “It's possible this will come to a head at some stage,” Rose predicts.