We are living through times of unprecedented constitutional and legal change. Devolution, the Human Rights Act (HRA), a proposed new UK Supreme Court and an EU Constitution are only part of the new architecture. All of this opens up new challenges and opportunities for the legal profession.
As a consequence of devolution, these changes are being played out in different ways in the contrasting jurisdictions of England and Wales, Scotland and Northern Ireland. One identifiable common trend, however, is the increasing significance of human rights. Although the pattern varies in each jurisdiction, human rights is weaving its way into the fabric of the legal systems.
An example of this is the increased scope of judicial review, which has moved on from the ‘Wednesbury doctrine’ to incorporate the test of ‘proportionality’. This process is indeed likely to be reinforced by proposed changes at an overloaded European Court of Human Rights (ECHR) in Strasbourg, which is expected to amend its modus operandi by placing greater obligation on state parties to provide individuals with domestic remedies for ECHR breaches.
An aspect of the increased significance of human rights is a noticeable shift in the Government’s perspective on the role of human rights in society. While the Government remains wary of challenges in the ‘sensitive’ areas of asylum, terrorism, criminal justice and the like, it has come to see at the other ‘softer’ end of the spectrum the value of a human rights approach to the quality of the delivery of public services and to the cohesiveness of an increasingly diverse society.
On 30 October, the Government announced that it was its intention to establish a Commission for Equality and Human Rights. A white paper is to be issued next spring and a representative taskforce will be immediately established to advise the Government on specific issues. It is anticipated that legislation will be introduced to bring the body into operation by late 2006.
The white paper will address the commission’s Scottish and Welsh arrangements so as to reflect a devolutionary context.
There are a number of factors that have contributed to this development.
As a result of EU directives, there are additional pending UK discriminatory protections – age, religion and belief, sexual orientation – along with the existing protection on gender, race and disability and their respective bodies of the Equal Opportunities Commission, the Commission for Racial Equality and the Disability Commission. The proposed commission will be a single and unifying body, and this pragmatism serves employers, employees and the general public.
Historically, gender and race discrimination protection have been focused in the employment field. In recent times they have broadened out along with the introduction of disability protection.
Again, historically, the equality and human rights agenda and practitioners have been quite distinct, with differing legal regimes and remedies, language etc.
However, following the commencement of the HRA, there has been something of a convergence in terms of shared legal remedies and a language and, hence, of the practitioners.
Also of significance is the shift in the Government’s perspective on human rights, as referred to above. As the recent Queen’s Speech demonstrates, the Government remains sensitive to hu-man rights chall-enges in the areas of asylum and terrorism. It has, however, come to appreciate the value of a human rights approach in terms of the quality or the delivery of public services and the cohesion of an ever increasing diverse society.
So, we have arrived at the proposed commission, which can be anticipated as being stronger in the areas of promotion rather than protection. The issues for discussion and further movement may lie in its investigative and case-taking capacities.
Indeed, this is not at all dissimilar to the agenda north of the border and the current discussions about a proposed Scottish Human Rights Commission.
One inevitable consequence of the establishment of such human rights commissions will be an increased public awareness of human rights. At present, the perception, influenced by press and media coverage, is that human rights are only issues in such areas as asylum, terrorism, criminal justice etc. With the public educational role of the commissions, this limited perception will be broadened and human rights will be increasingly seen to be relevant in such areas as environmental and property protection, health, education, housing, social services, childcare, planning and licensing and public administration generally. Along with the impact next year of the Freedom of Information Act, the public-private contractual relationship in public-private partnership arrangements will also come under closer scrutiny in terms of division of responsibilities in meeting human rights standards. All of this will increase client expectations and the demands upon lawyers.
Other indicators of the increasing significance of human rights can be demonstrated by the action of the Scottish Executive in recently commissioning two innovative projects.
The Scottish Executive has just awarded a tender to McGrigor Donald to provide a three-year human rights training programme for its policymakers. Another project has been awarded to the Centre for the Study of Human Rights Law at the Glasgow Graduate School of Law for the compilation of a human rights domestic case law database and recommendations as to the feasibility of a permanent database being made available. Such a database would, in part, serve as a resource for public bodies to be aware of the developing trends of case law, with particular regard to the delivery of public services in such areas as health, education, environment, social services, planning and licensing and public administration.
This research project also has the purpose of investigating the takeup of the HRA and may identify factors within the legal system, including court procedures and accessibility, which may have had an inhibiting effect. The use made of, and any conclusions drawn from, such a project will of course be matters for the Scottish Executive, but it is not difficult to conceive that it could well feed into broader considerations of the ongoing scrutiny and considered reform of the role of the legal profession and the provision of legal services.
Such initiatives in Scotland may serve as a catalyst for a similar development in Northern Ireland, where the legal profession is in need of such a resource and where the work of a Northern Ireland Human Rights Commission would benefit from increased government recognition of the value of human rights in the delivery of public services and reconciliation within such communities.
More broadly, human rights are now beginning to be ‘mainstreamed’ within the UN system and their value recognised in the recently released report ‘UN Norms on Business and Human Rights’, which is an application of the Universal Declaration of Human Rights for business responsibilities in the context of 21st century globalisation.
It cannot go unsaid, however, that there is a need for a reality check in all of this. Human rights abuses take place on an unconscionable scale throughout the world. Human rights defenders, including lawyers, experience persecution. Lending support through professional bodies is also part of the responsibility of lawyers in these islands.
Professor Alan Miller is the director of McGrigor Donald Rights