It does not seem like only five months since the European Convention on Human Rights was incorporated, with much fanfare, into our domestic law. To a commercial or other civil litigator, human rights have already become a familiar feature of the legal landscape because of the number and variety of human rights points that have already been cropping up in the cases.
Perhaps the most significant case so far has been the interim injunction application in Douglas v Hello!, in which the Court of Appeal considered the question of whether there now exists a cause of action for invasion of privacy in UK law. It also considered the broader question (already the subject of academic controversy) of whether the Human Rights Act requires the courts to create new causes of action, as between private parties in terms of the convention rights. The indications are that the act itself does not have a horizontal effect in that way, although Article 8 of the convention (right to respect for privacy) imposes a positive obligation on the court to give protection against invasions of privacy by parties which are not public authorities.
On that basis, the president of the Family Division decided to make orders to protect the new identities of the murderers of James Bulger.
The most spectacular challenge to legislation must be the Alconbury case. The Divisional Court decided that the Secretary of State's statutory powers to intervene in the determination of planning applications and appeals were incompatible with Article 6 (right to a fair trial), and the incompatibility was not saved by the court's powers of review. The case is before the House of Lords. But a great variety of other legislative provisions have been the subject of challenge, including the Limitation Act, the Consumer Credit Act, the State Immunity Act and the sanctions against Iraq.
Our experience has been mostly of points arising under Article 6. They have arisen in relation to the procedures of regulatory bodies including the Law Society, the Accountants Joint Disciplinary Scheme and the General Medical Council. The issues are often about whether the proceedings concern the determination of rights, whether they are civil or criminal in nature and whether defence costs should be funded.
We have also found points arising in relation to the procedures of the courts, in dealing with such matters as contempt of court, vexatious litigants, director's disqualification and the interpretation of the Civil Procedure Rules (CPR). Members of chambers have even presented human rights arguments as to the impartiality and independence of the Restrictive Practices Court and the Chief Justice of Brunei, and on whether Article 6 adds anything to the doctrine of forum non conveniens.
But Article 8 is also an area for dispute – for example, in relation to the entitlement of local residents to be heard at the trial of an issue of whether the lease of Biggin Hill Airport permits scheduled flights, and to the use by Mohamed Al Fayed of notes discarded by Neil Hamilton's counsel.
Chairman of the Bar Council Roy Amlot QC has recently been quoted as saying that the Human Rights Act 1998 is not a goldmine for the bar. Nevertheless, civil advocates should probably be as aware of jurisprudence on Article 6 as they are of the CPR. They will need to keep up with the judges who, particularly in the Court of Appeal, have shown themselves to be fully up to the mark. That court has been known to take human rights points of its own initiative. It has also warned against the taking of human rights points which are hopeless, or without adequate citation of European Court of Justice authorities.
Thomas Keith is a barrister at Fountain Court