UK Law Articles
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The Times
October 27 1998
Issues of morality and social behaviour will increasingly be decided in the courts. Frances Gibb reports on the people who will make those decisions
Rights Act will allow judges to shape our lives
JUDGES are to take on unprecedented new powers that will enable them to determine the moral and social framework of people's lives.
When the Human Rights Act becomes law, judges will become high priests, deciding what rights are created. They will interpret legislation and common law in line with the European Convention on Human Rights, which will become domestic law through the new Act.
Crucially, judges must balance conflicting rights, such as privacy and freedom of expression. It means that the judiciary will have far more power to decide issues of morality and social policy, such as whether a refusal by a health authority of fertility treatment breaches an individual's rights, or whether an education authority is obliged to provide a school for a particular religious or racial group.
John Wadham, the director of the human rights group Liberty, said: "Judges will have to take off their jackets and roll up their sleeves and second-guess whether the intentions of the Home Secretary were right in a particular decision."
Lord Irvine of Lairg, the Lord Chancellor, has admitted as much. He said that the Act, which comes on to the statute book in about two weeks, amounts to a shift away from judges looking at the letter of the law to its "substance".
He said last December that, when judges decided cases challenging the decisions of public bodies, they had applied a set of rules. Now, he said, they would have to look at whether a decision by a public body was right, rather than what rules have been broken.
The Human Rights Act will give judges a new yardstick for deciding cases that challenge decisions by public bodies. Ben Emmerson, a human rights and criminal barrister and an expert on the Act, said that judges would no longer be able to bury themselves in precedents. They would have to ask themselves whether the decision being disputed was right.
Mr Emmerson said: "They will have to engage in sensitive decisions involving political and social policy. They will have to get stuck into the merits of the decision."
Every judge, from the lowest tribunal to the House of Lords, will have to alter the way they do their jobs. The Judicial Studies Board, which trains judges, has begun a £5 million training programme for every magistrate, judge and tribunal chairman.
Some judges may be apprehensive, but most are in favour of the Act and have always advocated applying human rights law in Britain rather than forcing people to go to the European Court of Human Rights in Strasbourg.
Lord Saville of Newdigate, who as one of the law lords will confront the most controversial and difficult cases, said that judges were up to the task. "It will be extremely interesting, coupled with the challenges arising over devolution."
For many judges in the lower courts, human rights are uncharted territory, but they will have guidance from rulings by the Strasbourg court over the past 30 years. Amendments to the Human Rights Bill have ensured that they give proper weight to these rulings in sensitive areas, such as privacy. But ultimately, judges must decide for themselves whether a particular decision or policy is necessary in a democratic society, and whether it is proportionate - the new key word - to aims such as the prevention of crime or protection of morals.
The life sentence system is one area bound to be challenged, along with the "life means life" tariff imposed on murderers such as Myra Hindley. The Government could find itself forced by the courts to consider the release of any prisoner no longer deemed a risk to the public.
But it is in the area of privacy - where there is no current right in English law - where the Act will have some of its greatest impact. (Freedom of information - another right not guaranteed in our law - is to be legislated for separately, because the convention does not cover it.) People will be able to make challenges to decisions of the Press Complaints Commission, which will be treated as a public body under the Act. They are also likely to be able to bring privacy actions directly to the courts against newspapers or individuals.
Francesca Klug, a senior researcher at King's College London and an adviser to the Goverment on the Act, said: "I think that people will first use existing common-law rights, such as breach of confidence and harassment, and as courts make their rulings this will develop a full-blown right of privacy."
Lord Bingham of Cornhill, the Lord Chief Justice, dismissed as "unfounded" fears that the Act will lead to a new "far-reaching form of media censorship, developed and administered by the courts". He said in January: "It should be noted that the media will for the first time in British history enjoy a guaranteed right of free expression (not an absolute right, but a guaranteed right)."
He also indicated how courts would draw the line, making a distinction between people in public positions and those in ordinary life, and between public and private situations.
The new Act marked a significant shift in power from Parliament to the judiciary, but maintained the supremacy of the former, Mr Emmerson said. "For the individual, it could see an end to decisions where lawyers say, 'I know it's not fair, but it's the law.' "
Instead, the Act should cut through legal niceties to what is just.
The men who will usher in a new era in British law
