Take a step in the rights direction
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13 February 2014
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6 January 2014
Laura Cox QC hails the advent of the Human Rights Act but warns lawyers must be prepared for a re-evaluation of their legal practises. Laura Cox QC is head of Cloisters chambers.
The full extent to which the Human Rights Act will affect all law firms, barristers and their clients is only now starting to hit home.
It marks a sea-change away from the negative concept of liberty, always so strong in traditional English constitutional thinking, and towards a positive rights-based culture which guarantees and protects human rights.
It will therefore affect the way lawyers prepare and present human rights cases to the courts.
In anticipation of the Act, and in recognition of the way it already influences much of our thinking, many solicitors and barristers are now starting to organise themselves in a way that will mean they can properly service clients whose cases involve human rights issues.
Irwin Mitchell's launch last week of the UK's first nationwide human rights unit is to be applauded.
The firm appears to be leading the way for many others to follow. In bringing together a multidisciplinary team in this way Irwin Mitchell is acknowledging the impact of the Act on many different areas of the law and is preparing itself to serve clients more effectively by organising into cohesive units with human rights expertise.
The head of Irwin Mitchell's unit, Sara Leslie, has observed that the Act will radically alter the traditional approach to the interpretation of other legislation.
She says: "Perhaps the greatest challenge will be to the legal profession because it will demand a high degree of imagination from a group accustomed to a black letter construction of domestic statutes.
"It will open up a whole field of case law which practitioners must understand, access and interpret."
She is right.
Lawyers who have hitherto seen human rights as an issue for others and not for them will have to adjust their mindset.
Employment law experts will be considering, for example, how Convention rights affect the balance between working hours and family life, or issues concerning employees' privacy at work in the context of workplace surveillance, or freedom of expression and of conscience or religion.
Personal injury, clinical negligence and public law experts will have to deal with issues of increasing importance and complexity involving, for example, challenges to the rationing of health, educational, rehabilitation and residential care facilities.
The question of availability or non-availability of legal aid in civil cases will raise issues under Article 6, for example, in complicated and expensive clinical negligence claims or discrimination claims in the employment tribunal.
Corporate lawyers will also be affected because corporations have human rights too.
The fear of fraud or other serious crime, and of anti-competition practices, has fuelled increasing levels of regulation of financial and other markets which penetrate ever more deeply into the affairs of both individuals and corporations.
Further, Article 10, guaranteeing freedom of expression, will be an important provision for businesses in marketing and advertising.
The Convention will also affect the activities of regulatory authorities which police the marketplace vested with investigative powers, and powers of search and seizure.
And it is inevitable that the majority of Convention rights, after the Act comes into force, will initially arise in criminal cases.
It will have a significant impact on the rights of defendants from the time of arrest to trial, as well as rights at trial, including legal representation.
For Irwin Mitchell, the seeds for the launch of this unit were sown 25 years ago when senior partner Mike Napier was the very first solicitor advocate to appear before the European Court of Human Rights in a case that gave new rights to mental patients.
At my own chambers, Cloisters, human rights already underpins many of our specialist fields.
Our approach, as a multidisciplined civil litigation chambers, has mirrored that of Irwin Mitchell, with greater cohesion and teamwork between the various group specialisms working together under the general human rights umbrella.
Other solicitors and barristers should now recognise the need for such cohesion and teamwork, the opportunities for the cross fertilisation of ideas and skills, and the benefits it will bring, not least to their trainee solicitors and pupils as the human rights practitioners of the future.
The responsibility which falls on the judiciary who will have to decide human rights cases will be matched by the duty on the legal profession to lay before them the right materials to enable them to do their job.
All solicitors and barristers should now be taking the steps necessary to enable them to fulfil that duty to the best of their ability.