Human rights - your judgement or mine?

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The Independent Online
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.