Richard Gordon QC and Tim Ward believe that an era of fundamental change in human rights law is already upon us, while Stephen Hocking and Simon Tucker are not convinced that the Human Rights Act will be quite so all-embracing.
Although the Human Rights Act 1998 does not come into force until October 2000, it is already clear that the advent of the convention is going to have a profound effect on the everyday practise of UK lawyers.
Last month, the European Court of Human Rights in Strasbourg decided in the case of Smith & ors v United Kingdom that the Ministry of Defence policy banning gays from the armed forces breached the right to privacy under Article 8 of the European Convention on Human Rights.
In Smith the European Court also mounted an attack on the irrationality of the doctrine of Wednesbury. This has been the central doctrine of English administrative law for 50 years. Under it, an English court may only quash actions of a public authority such as central or local government which are so outrageous in their defiance of morality or logic that no reasonable person could have reached such a decision. But that threshold is notoriously high.
In Smith some of the English judges were sympathetic, but they considered that whatever its merits, the MOD policy could not be described as irrational.
Article 13 of the convention grants the right to an effective remedy before national courts if the convention rights are breached. The Strasbourg court held that if the Wednesbury test could not protect the applicants' rights to privacy they did not have an effective remedy.
In practice, of course, almost all government action engages human rights in one form or another. It is therefore difficult to see much of a future for the Wednesbury test.
If that were not enough, Strasbourg is shortly expected to knock the Lord Chancellor off one of his perches. He is, of course, simultaneously the Government's chief law minister and a member of the Cabinet, the speaker of the House of Lords, and also a judge in the House of Lords.
The European Court has recently heard the case of McGonnell v United Kingdom. The applicant, who lives in Guernsey, was refused planning permission to build a house. He appealed to the Guernsey Court. The case came before the Bailiff of Guernsey, who is both head of Guernsey's administration and its senior judge.
It is expected that Strasbourg will hold that this arrangement violates the convention. It seems to us inescapable that the same can be said of the Lord Chancellor's practise of acting both as a judge and as a member of the Cabinet.
Meanwhile, Strasbourg is also rewriting the law of negligence. It is currently considering an appeal from a decision from the House of Lords in X v Bedfordshire County Council. In that case, the Lords held there could be no claim in damages against local authorities in respect of certain social services and education functions. Strasbourg has already recently ruled out police immunity as offending against the Article 6 guarantee of right of access to a court. Local authority immunity is likely to go the same way.
At the moment, it seems that no target is too big for the Strasbourg court, which recently took on the European Community.
Denise Matthews was a British citizen resident in Gibraltar. She complained she had no right to vote in elections to the European Parliament under EC law. The convention guarantees the right to elect the legislature. The Strasbourg court held that convention rights must take precedence over European Community law. It was no answer for the UK government to say that its hands were tied by a decision taken in Brussels.
The European Court of Human Rights is, then, already a force to be reckoned with. When, a year from now, the convention becomes part of English law and English judges apply its rights and its underlying philosophy to UK law, that which is already a tide will surely become a flood.
Richard Gordon QC at Brick Court Chambers and Tim Ward at Monckton Chambers are practising barristers and authors of the forthcoming Judicial Review and the Human Rights Act.
As Gordon and Ward argue, the Human Rights Act looks set to usher in an era of legal revolution. Just like the early days of EU membership, it is much easier to see that there is change ahead than to see what that change will be. Those who think that predictability is one of the virtues of a just legal system seem to be in the minority.
Much of this uncertainty is inevitable, but the act contains one quite needless area of confusion: to whom does it apply? On its face the act applies only to the actions of public authorities, including the courts. It adds that any person, some of whose functions are of a public nature, is to be considered a public authority when exercising such functions. Private individuals are, apparently, free to do as they wish. After that, the act might add, you are on your own.
Naturally it took no time for the argument to surface that if the courts are a public authority, and therefore have to act in accordance with the convention, this means that when they are resolving a dispute between two private individuals they must apply the convention. It seems private individuals are subject to the act after all. Or are they? And what does it mean to act compatibly with the convention when adjudicating between private individuals? These are issues which will be resolved at private expense in the courts.
There is also the problem of identifying what is a public authority. In some cases this is obvious, a government department or local education authority, for example, could hardly be thought of as private sector. But exactly what might it mean to have “functions of a public nature”? The Strasbourg institutions refer to bodies whose acts engage the responsibility of the state, which of course is perfectly clear, if you can agree what those responsibilities might be. The courts are also likely to draw on domestic case law to determine which bodies may be subject to judicial review.
This is a highly confused area and the test of what is a public authority is not purely functional. For example, the Insurance Ombudsman is not subject to judicial review, despite exercising what looks like public functions, because it is set up by contract. The courts have decided that the proper remedy against the Ombudsman is a contractual one – little comfort for policyholders, who have no direct contract with the Ombudsman.
The White Paper gives as an example of public authorities “companies responsible for areas of activity previously within the public sector”. So BT is on the list, but what about a telecoms company which was never in public ownership? If telecoms companies are included, can it be long before internet service providers are too? Or is it consistent with the current structure of the utilities sector – not to mention the need to pay lip service to fair competition – to regard only the regulators as public authorities, and to punish them for failing to regulate the industry sector compatibly with human rights?
Problem areas can be multiplied. Does a charity exercise public functions? What about a trade union, a university, a political party without whose support a candidate has no real chance of election? Only time, and legal fees, will tell.
Lord Irvine commented that the principle is deliberately broad (he might have added vague) in order to provide as much protection as possible to individuals against the misuse of power by the state, a worthy aim likely to be cold comfort to hapless litigants who will find themselves paying to work the principle out.
The Human Rights Act represents a historic shift of power away from the elected legislature into the hands of the courts. This may be a cause for celebration since Parliament has proved itself not always capable, and arguably not always willing, to properly protect human rights. But whether it is really necessary, or desirable, for Parliament to have delegated to the courts the job of defining the scale of this shift is much more doubtful. After all, legal certainty should be a human right too.
Stephen Hocking and Simon Tucker are lawyers in the public group at Beachcroft Wansbroughs.