Human rights - your judgement or mine?

Share
Related Topics
THE HUMAN RIGHTS Act, which incorporates the European Convention of Human Rights into UK law, received the Royal Assent last week, but will not be fully in force until the year 2000. Its indirect impact on the law will be immediate, however. Every public authority in the land must abide by its provisions now, or risk fatally undermining cases that they might want to pursue in the future. "Public authorities" for these purposes include the police, the immigration and prison services, and also the Inland Revenue, the various utility regulators, and all local authorities and environmental agencies.

The Human Rights Act is no ordinary statute. Conceived as a piece of ethical engineering by a new-broom Labour government addicted to the soundbite, its terms are so complex and obscure that the only thing certain to result is an outpouring of litigation. Every statute past and present will be revisited to ensure that its terms "so far as it is possible to do" comply with the Act. The whole of the common law will need also to be reassessed. The new Assemblies in Scotland, Wales and Northern Ireland will be vulnerable to it from their inception.

Many of the "rights" the measure protects are contradictory and riven with qualifications. To understand what these rights truly mean, it is necessary to turn to the thousands of cases that make up the jurisprudence of the European Court of Human Rights and the old Commission of the same name, both based at Strasbourg - case-law with which it is fair to say the majority of British lawyers are not at the moment intimate. They will have to learn fast. If they don't advise with these cases in mind, solicitors and barristers risk being sued in negligence by irate clients who have as a result missed winning opportunities.

It is because of the vagueness of the Act and the huge European jurisprudence it partly incorporates that the reach of the legislation will be so immense. Of course there will be many cases in which the police will be restricted, immigration officials will be made more sensitive and prison governors will be forced to take family and other welfare issues into account in their treatment of prisoners. Many decisions of the European Court may have a strong positive influence on our law, and the requirement that all government action should henceforth have a legal basis is unequivocally good news.

But the Act goes far further. Our political parties may be disturbed to find themselves classed as "public authorities" and forced to comply with the terms of the Act. Taxation law will be vulnerable, to the extent that it is frequently retrospective and discriminatory in its reach in ways that may be at odds with one or other of the Act's rights. The current rules on the arrest of ships may also be exposed. So may much of the draconian legislation passed in recent years to fight serious crime and to regulate wrongdoing in the City. There will be many future Ernest Saunders able to make "human rights" points from the moment of arrest. Planning, environmental, utility and City regulators will inevitably stimulate a litigious reaction from the large commercial interests frequently adversely affected by their rulings. Why should this not be so? If the Government chooses to extend "human rights" protection to large companies and other artificial persons, it has no right to complain if this new defensive shield is then used against it. Large corporations will often have the economic incentive to deploy human rights points which would be beyond the means of most of us.

Our political culture will also be profoundly affected by the Act. Issues relating to the public good, such as the right balance between privacy and freedom of expression in cases like those involving Nick Brown and Ron Davies, will be in future presented as "human rights" problems on which only expert lawyers will be able confidently to pronounce. The law schools will rise in importance as political science departments decline. Previously a backwater, the post of legal correspondent will be fought over by ambitious journalists, aware that political cases will need their interpreters for the general audience.

The Human Rights Act has also decreed that even Parliament must succumb to this judicialisation of politics. In future, ministers will be required to say whether the legislation they want is compatible with its terms. The only honest answer ("we won't know until it is litigated") is unlikely to be given, so where a measure is particularly controversial we can expect rival legal opinions to fly back and forth across the chamber, with barristers being thrust forward like intellectual gladiators to put their factions' points of view.

If judges don't like particular pieces of legislation they will be able to declare them incompatible with human rights. These statements will have no legal effect, but a special parliamentary procedure will be available to government so that they can obey the judges' instructions without the bother of new legislation. There will be immense political pressure on ministers to comply with such rulings. New Labour in particular will not want to fight the next election as the party that openly defies the human rights culture that it has so proudly promoted.

The big winners in the Human Rights Act are the legal profession in general and the judges in particular. But the latter group will find there is a sting in the tail. Never before will their personal lives and political opinions have been subjected to such scrutiny. We will learn all about their backgrounds, their politics and their extra-curricular concerns. It is clear that the system of appointing judges to the bench will have to be changed. These changes will be an inevitable consequence of the great political power that the Act will require them to wield. What happens if a serious attempt is made to have the Abortion Act declared incompatible with the right to life, or to have the discretion to terminate pregnancies in that legislation sharply limited on the same basis? We will surely have a right to know if the judge hearing the case is a practising Catholic with a record of opposition to abortion.

If Labour were to attempt to remove taxation benefits from private schools, this could certainly be challenged under various parts of the Act, including the rights to privacy and education. Should a judge with children in the private sector (or even the state sector) be permitted to hear such a case? The old answer - that he or she is merely applying the law - simply no longer applies. These examples can be multiplied a thousand-fold. After the Human Rights Act comes into force, British law and British politics will never be the same again.

The writer is a barrister and professor of human rights law at King's College London. Anne McElvoy returns next week.

React Now

Latest stories from i100
Have you tried new the Independent Digital Edition apps?
SPONSORED FEATURES
iJobs Job Widget
iJobs General

Recruitment Genius: Head Chef

£22000 - £25000 per annum: Recruitment Genius: This Garden Centre complex base...

Recruitment Genius: Buyer

£36000 - £38000 per annum: Recruitment Genius: A Buyer is required to join thi...

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + OTE £45K: SThree: SThree Group have been well esta...

SThree: Trainee Recruitment Consultant

£20000 - £25000 per annum + OTE £45000: SThree: SThree Group have been well es...

Day In a Page

Read Next
Between the covers: Jennifer Ehle as Elizabeth Bennet, opposite Colin Firth's Mr Darcy, in the acclaimed 1995 BBC adaptation of 'Pride and Prejudice'  

To talk about 'liking' a character may be a literary faux pas, but I don't care

Memphis Barker
Hinkley Point A to the right of development land where the reactors of Hinkley C nuclear power station are due to be built  

Should the UK really be putting its money into nuclear power in 2015?

Chris Green Chris Green
Turkey-Kurdish conflict: Obama's deal with Ankara is a betrayal of Syrian Kurds and may not even weaken Isis

US betrayal of old ally brings limited reward

Since the accord, the Turks have only waged war on Kurds while no US bomber has used Incirlik airbase, says Patrick Cockburn
VIPs gather for opening of second Suez Canal - but doubts linger over security

'A gift from Egypt to the rest of the world'

VIPs gather for opening of second Suez Canal - but is it really needed?
Jeremy Corbyn dresses abysmally. That's a great thing because it's genuine

Jeremy Corbyn dresses abysmally. That's a great thing because it's genuine

Fashion editor, Alexander Fury, applauds a man who clearly has more important things on his mind
The male menopause and intimations of mortality

Aches, pains and an inkling of mortality

So the male menopause is real, they say, but what would the Victorians, 'old' at 30, think of that, asks DJ Taylor
Man Booker Prize 2015: Anna Smaill - How can I possibly be on the list with these writers I have idolised?

'How can I possibly be on the list with these writers I have idolised?'

Man Booker Prize nominee Anna Smaill on the rise of Kiwi lit
Bettany Hughes interview: The historian on how Socrates would have solved Greece's problems

Bettany Hughes interview

The historian on how Socrates would have solved Greece's problems
Art of the state: Pyongyang propaganda posters to be exhibited in China

Art of the state

Pyongyang propaganda posters to be exhibited in China
Mildreds and Vanilla Black have given vegetarian food a makeover in new cookbooks

Vegetarian food gets a makeover

Long-time vegetarian Holly Williams tries to recreate some of the inventive recipes in Mildreds and Vanilla Black's new cookbooks
The haunting of Shirley Jackson: Was the gothic author's life really as bleak as her fiction?

The haunting of Shirley Jackson

Was the gothic author's life really as bleak as her fiction?
Bill Granger recipes: Heading off on holiday? Try out our chef's seaside-inspired dishes...

Bill Granger's seaside-inspired recipes

These dishes are so easy to make, our chef is almost embarrassed to call them recipes
Ashes 2015: Tourists are limp, leaderless and distinctly UnAustralian

Tourists are limp, leaderless and distinctly UnAustralian

A woefully out-of-form Michael Clarke embodies his team's fragile Ashes campaign, says Michael Calvin
Blairites be warned, this could be the moment Labour turns into Syriza

Andrew Grice: Inside Westminster

Blairites be warned, this could be the moment Labour turns into Syriza
HMS Victory: The mystery of Britain's worst naval disaster is finally solved - 271 years later

The mystery of Britain's worst naval disaster is finally solved - 271 years later

Exclusive: David Keys reveals the research that finally explains why HMS Victory went down with the loss of 1,100 lives
Survivors of the Nagasaki atomic bomb attack: Japan must not abandon its post-war pacifism

'I saw people so injured you couldn't tell if they were dead or alive'

Nagasaki survivors on why Japan must not abandon its post-war pacifism
Jon Stewart: The voice of Democrats who felt Obama had failed to deliver on his 'Yes We Can' slogan, and the voter he tried hardest to keep onside

The voter Obama tried hardest to keep onside

Outgoing The Daily Show host, Jon Stewart, became the voice of Democrats who felt the President had failed to deliver on his ‘Yes We Can’ slogan. Tim Walker charts the ups and downs of their 10-year relationship on screen