Opinion

Human rights law is the vaguest, most uncertain and most unpredictable branch of our law. Everything is up for grabs, including the scope and meaning of the rights themselves. Hard-edged definitions are few and far between, and principles tend to be open to a variety of interpretations. It is a potential goldmine for the bold – but a minefield for the unwary.

Human rights claims can only be brought against public authorities – can’t they? Well, that depends. The European Convention on Human Rights (ECHR) is meant to have a purely ‘vertical’ effect, but a ‘horizontal’ effect has been creeping in. The case brought by Michael Douglas and Catherine Zeta-Jones against Hello! magazine would appear to be an example. By no stretch of the imagination could Hello! be considered a public authority, but the case was not actually decided on human rights; Douglas and Zeta-Jones won the case on the basis of an old common law cause of action, breach of confidence. So, is there a right of privacy or not? The answer appears to be: not really.

Also, how does one define a public authority? Well, that also depends. Is the Press Complaints Commission (PCC) a public authority? This has not yet been finally decided. Does it matter? Actually, yes. If the victim of a press attack complains to the PCC and gets nowhere, can this victim then take the PCC to court under human rights law? Only if the PCC is a public authority – so we’re back to square one.

Does human rights law have a higher status than other laws? Yes, says a Law Lord; no, says the Human Rights Act (HRA) itself. In a lecture given in October 2000, Lord Steyn asserted that the HRA had “higher legal order status” and was “entrenched”. That the HRA now forms part of the UK constitution is not in doubt, but with all due respect to the noble and learned lord, this does not give it any special status. It is a fundamental principle of the UK constitution that no act of Parliament enjoys any higher status than any other, and none are ‘entrenched’ (ie specially protected against amendment or repeal). Above all, the HRA was carefully drafted so as to prevent it being accorded higher law status. In the event of a clash between the HRA and any other law, all that the courts can do is flag up the discrepancy by issuing a ‘declaration of incompatibility’. If the HRA did indeed have higher law status, this would entitle the courts to set aside any challenged law which the judges considered was in conflict with the HRA. In drafting the HRA, the Government was determined not to give the judges that kind of power.

The courts are required by Section 3 of the HRA as far as possible to interpret any other legislation “in a way which is compatible with the Convention rights”. This section has itself been broadly interpreted, to the point of giving judges the right to decide “of their own motion” whether a case is a human rights matter or not. In Wilson v First County Trust (2003), the Court of Appeal turned a little commercial dispute into a major human rights production, although neither party had invoked human rights law. Fortunately, this decision was reversed back to the original county court decision by the House of Lords. The Lords also came to the rescue in Aston Cantlow Parochial Church Council v Wallbank (2003), a property-related contractual dispute involving the obligations of the lay rector of a parish. In both of these cases the right decision was reached in the end. But why should it have been necessary to have an expensive trip to the House of Lords to reassert the eminently sensible first instance decision?