Law: A very British remedy

Setting up a Human Rights Act in the UK has been harder than its chief lobbyist could foresee.
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The Independent Culture
The campaign to bring to the UK a bill of human rights has been closely associated with one man. Lord Lester of Herne Hill has spent the past 30 years persuading, cajoling and lobbying for a set of principles that would give ethical purpose to the administration and government of the country.

On 2 October next year he will see his efforts bear fruit when the Government implements the Human Rights Act 1998 - two years after it was passed by Parliament. The road to implementation has been a long and winding one. But Anthony Lester's name appears at almost all important turns of the campaign.

As a lone campaigning constitutional lawyer in the Sixties, Lord Lester worked on some of the first cases from the UK to go before the European Court of Human Rights (ECHR). "In the Sixties," he recalls, "almost nobody agreed with me."

Then, as a special adviser to the poltician Roy Jenkins, during the Seventies, he battled against hardened Civil Service resistance to raise the profile of a possible bill on human rights. And in the Eighties he helped found the influential group, Charter 88, which gave the campaign a popular focus.

But it was perhaps his persuading the present Labour administration of the need to implement domestic legislation that has formed his most crucial role. Who else could have persuaded the Lord Chancellor, Lord Irvine of Lairg, that he should change his mind on the issue and support a government bill?

"Until John Smith was elected leader of the party, Labour was strongly opposed," Lord Lester says. "My input was that I sought to persuade Derry Irvine and I am glad to say that I succeeded. It had become pretty obvious that we could not go on being the only democracy without a public bill of rights. He was a fine public lawyer, who recognised this."

The judges have also taken some convincing. "Judges," says Lord Lester, who is a QC at Blackstone Chambers and a Liberal Democrat peer, "became increasingly concerned that their decisions were being challenged before the ECHR, many of which I was involved in. When the courts were finding their work wanting they began to think it was time to bring an effective British remedy." While the judiciary have come round to the importance of the act, the Civil Service has been less willing to bend in the wind. Lord Lester says one of his hardest battles has been fighting an entrenched Civil Service. "They had been passionately opposed to an enforceable bill of rights and even tried to prevent a green paper being published. They are still very displeased, in the same way they are displeased with the Freedom of Information Bill."

On Friday, a gathering of the great and the good in the civil rights movement joined figures from industry and descended on the Royal Society of Arts in London to assess the impact of the act.

Nicholas Bratza, one of the four presidents of the ECHR, gave the keynote speech. He was followed by Lord Lester, whose words were recognised as being an eloquent and powerful speech born out of 30 years of campaigning on the issue.

"When the Human Rights Act is brought fully into force," said Lord Lester, "every court and tribunal will be bound not only to declare the common law and interpret statutes, but review administrative decisions consistently with human rights."

Lord Lester describes the Human Rights Act as a "legal poem" imaginatively crafted to give it a British, rather than European, flavour. He says the declaration of incompatibility, whereby courts can declare UK law to be in breach of ECHR law, without overruling Parliament, is particularly "ingenious".

It now seems probable that jurisprudence of other common law jurisdictions will be at least as persuasive as that practised in Strasbourg. Under a part of the act, remedial orders can be made by means of a fast-track procedure. The Government has already drawn up a short list of primary and secondary legislation that may be subject to the declaration clause.

Lord Lester says: "It is up to them now to go through the list and decide whether to take the risk [of falling foul of the incompatibility clause] or introduce amending legislation between now and 2 October 2000." If the Government fails to take proper action, complainants can still go to the ECHR. The difference now is that they will be armed with a declaration of incompatibility.

In the courts, the act will cause its own problems. When Jack Straw, the Home Secretary, fired the starting pistol last month the race began to see whether the magistrates courts would be ready for the October deadline. Article 6 of the ECHR means that all hearings must be subject to the test of "fairness". Any trivial deviation from the course of a fair hearing could trigger appeals to the Divisional Court. If criminal lawyers are looking for an excuse to appeal, Article 6 could provide it.

But Lord Lester warns: "If lawyers take crazy points and argue them all over the place, that will bring the law into disrepute early on and it will force the courts to rule on absurd submissions. It is up to the legal profession not to abuse the Human Rights Act."

It would be wrong to assume that everything in the new act pleases Lord Lester. He accuses the Government of "ratting on a promise" to establish an equal rights commissioner to give legal assistance and bring test cases. "We would also have preferred the courts to have the power to strike inconsistent domestic law," he says. "The judges took the view that they did not need such a power, and that it would be politically too controversial. So we have a skilful compromise between the shibboleths of parliamentary sovereignty and the need for effective judicial remedies."

Lord Lester adds: "The Human Rights Act will give the Government a compass for making decisions about our lives. But I still regard it as completely bizarre that the mother of all parliaments should be the last to have it."