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The Times
October 26 1998
Human Rights Bill goes on Statute Book next month and a deluge of cases is likely, reports Frances Gibb
Courts prepare for Act that will change lives
The Human Rights Bill has slipped through Parliament with the minimum of controversy or attention. Yet the measure is likely to have a far greater impact on people's lives than devolution or reform of the House of Lords, affecting their relationships, education, medical treatment and the environment.
Human rights and pressure groups are already busily stacking up cases to bring to the courts when the new Act comes into force and many of these test actions will establish new rights for individuals.
The criminal courts are also bracing themselves for a deluge of challenges on every aspect of the criminal justice system, from disclosure of evidence to the laws which allowed adverse comment on a defendant's right to silence.
The Human Rights Act will not take effect before January 2000, to allow time to prepare Whitehall, local government and the courts for the changes. But it will have an immediate impact, chiefly in the explosion of litigation at all levels.
What the Act does is to create a rights-based law. In place of our common law based on prohibitions, statements about what people cannot do - negative rights - comes a package of positive rights.
Lord Bingham of Cornhill, the Lord Chief Justice, summed it up in a speech in January: "While there is no recognised right to freedom of expression, everyone is free to write or say what they like, provided it is not libellous or slanderous, or in breach of confidence." But the protections given by the common law were piecemeal, he argued. There were gaps, such as the lack of a right of privacy.
The new Act enshrines the European Convention on Human Rights - a 50-year-old code of basic rights drawn up in the aftermath of the Second World War and covering such rights as that to a family life, to privacy and to a fair trial.
At present, although the courts can take note of the rights identified by the convention, they cannot be directly enforced. So people often have to take cases to the European Court of Human Rights in Strasbourg for a remedy. That road to Strasbourg will remain, but most claims over alleged breaches of rights will now be settled here.
Under the new Act, the courts will have to interpret any existing law as being consistent with the convention, as far as they can. If a piece of legislation is not compatible, courts will not have power to strike it down. But they can declare it incompatible and the Government is then morally obliged to put it right.
As the White Paper before the Bill put it, this would "have a profound impact on the way legislation is interpreted and applied". Ben Emmerson, barrister and editor of European Human Rights Law Review, said: "There is a major shift of power from Parliament to judges. They will, in effect, be able to rewrite sections of Acts, by reading into them words that are not there, and by massaging away any potential conflicts (with the convention)."
Sometimes this will not be possible. Judges would not, he added, be able to read black as white. When that happens, there is a fast-track parliamentary procedure enabling the Government swiftly to put right the defective legislation.
There is also a safeguard aimed at ensuring that new legislation is convention-proof: ministers will have a duty to certify that a Bill is compatible with the convention.
Francesa Klug, research fellow at the Human Rights Incorporation Project at King's College London, said: "The Bill makes the convention all-pervasive. It can be relied on in any court or tribunal. Every public authority will have to comply with it. Every piece of legislation must comply with it. The common law must be made to comply with it. It subtly and powerfully weaves the convention into the fabric of our law."
The guarantees
- Right to life
- Freedom from torture or inhuman and degrading punishment
- Freedom from slavery, servitude, enforced or compulsory labour
- Right to liberty and security of the person
- Right to a fair trial
- Right to respect for private and family life
- Freedom of thought, conscience and religion
- Freedom of expression
- Freedom of assembly and association
- Right to marry and found a family
- Prohibition of discrimination in the enjoyment of convention rights
- Right to education in conformity with parents' religious and philosophical convictions
