Law: Our Learned Friend - Human rights in the balance

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The Independent Culture
HUMAN RIGHTS come in many shapes and sizes. Resolving the apparent conflict between General Pinochet's claim to sovereign immunity and the rights of his alleged victims to justice is not difficult from a human rights perspective. The case against Pinochet, as set out in the Spanish request for his extradition, is that after the military coup in 1973 the Dina or secret police, who were answerable to Pinochet, engaged in torture and hostage-taking.

Confronted with allegations of such inhumanity, few would dissent from the ill-fated House of Lords decision that such acts cannot be regarded as a function of a head of state such as to attract immunity from criminal proceedings.

But finding the right balance between human rights and democracy is more difficult.

As the House of Lords was hearing the Pinochet case, the Human Rights Act 1998 slipped on to the statute book. It gives effect in our law to the rights and freedoms guaranteed under the European Convention on Human Rights.

Under the Act, it will be unlawful for any public authorities - including central and local government, the police and even courts - to violate convention rights. The issue of human rights will affect all contact between the individual and the state.

The ingenious feature of the Act is the way it attempts to balance the democratic right of the majority to exercise political power with the democratic need of individuals and minorities to have their human rights secured.

The Act aims to give the courts as much leeway as possible to protect rights, short of power to ignore Acts of Parliament. All legislation is to be interpreted as far as possible in a way that is compatible with convention rights. If that is not possible, the higher courts will adjudicate; then it will be for Parliament to decide whether there should be legislation.

The declaration of incompatibility is therefore a crafty device intended to sidestep the controversial issue of parliamentary sovereignty. Whether it succeeds will depend mostly on the attitude of the judges to their new role.

The Government hopes that the effect of the new Act will be to create a human rights culture in the UK. To achieve this, the start date for the Act has been delayed until 2000 so that the Judicial Studies Board can finish training judges, magistrates and tribunal members in human rights law. A close scrutiny of some of the decisions in our courts over the past 25 years suggests that the pounds 6m cost will be well worth it.

But a human rights culture cannot be imposed from the top. The Act is unlikely to succeed without a public awareness campaign. The Pinochet case and those following - including the rehearing later this month - will keep the issue of human rights in the public eye for only a limited period.

A good example of an effective awareness campaign comes from South Africa, where the human rights provisions of the new constitution were drafted only after full consultation with the public. When it became law millions of copies were printed (many in cartoon form, for those with reading difficulties). No such promotion is envisaged for the UK's Human Rights Act.

The claim by the Home Secretary, Jack Straw, that the Act will create a "new and better relationship between the Government and the people" is unlikely to be realised if implementation is left to the judges and lawyers.

Keir Starmer is a barrister at Doughty Street chambers specialising in human rights

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