31 July 2000
With the Human Rights Act just a couple of months away, the Government seems torn between celebrating a great constitutional milestone and maintaining that nothing much is going to change. Ministers may be forgiven for playing down the seismic shifts that lie ahead: if government departments are torn apart by human rights claims in the coming months, Jack Straw and Derry Irvine may find they have few friends left around the Cabinet table.
The Home Secretary takes some comfort from the experience of Scotland, where human rights claims may already be brought against the Executive. Mr Straw says that only a modest number of claims have been allowed north of the border (although the other day a Scottish judge told me the situation there was "chaos"). Ministers were also relieved to hear Lord Woolf's promise on taking office as Lord Chief Justice that unmeritorious cases would be given short shrift.
But the Government may be alarmed by what it may see as a subversive new book. It has a bright red cover, which should serve as a warning, although the title, An Introduction to Human Rights and the Common Law, and the editors (Rosalind English and Philip Havers QC of 1 Crown Office Row) are eminently respectable. Didn't think the Human Rights Act would have much impact on common law work? Think again.
Take, as an example, environmental rights. Search the European Convention on Human Rights and you won't find any mention of environmental rights, if only because there were more important things to worry about when the convention was drawn up in the aftermath of the Second World War. And rights are for humans, not fields. But look in this little red book and you'll find a whole chapter on environmental rights. David Hart, the specialist author, says that once you adjust your thinking "to regard all matters environmental as potentially affecting man, it does not take long to discover plenty of material which will enable future human rights claimants to litigate environmental issues".
The most fertile ground is Article 8, which protects the right to respect for private and family life, home and correspondence. That provision was used successfully against Spain in a 1994 case. It was brought by a woman who had a waste treatment plant built on municipal land 12 metres from her home. The plant released "gas fumes, pestilential smells and contamination", causing health problems to those living nearby. The pollution became so bad that the applicant, Gregoria López Ostra, had to leave home. The court did not accept her claim that fumes from the factory had damaged her family's health. But the judges said that severe environmental pollution might still affect individuals' well being and prevent them from enjoying their homes in such a way as to affect adversely their private and family life.
As Havers points out, common lawyers will now need to decide whether a private law dispute which involves a public authority involves any question of human rights; if it does, they may be able to use the convention either to support a free-standing cause of action for breach of a convention right or to reinforce an existing domestic cause of action. In common law, as elsewhere, the legal landscape is about to change for ever.
Joshua Rozenberg is the BBC's legal affairs correspondent. He can be contacted at email@example.com