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You are here: Homepage » Articles » 0505

The Times
May 18 1999

 

 

David Pannick QC

Justice denied on the Human Rights Act

The Human Rights Act 1998 is the jewel in the crown of this Government's programme of constitutional reform. But the legislation's virtues are at risk of being undermined by ministers and civil servants tempted to echo Saint Augustine: "Give me chastity and continency - but not yet." There is a serious risk that implementation of the Act will be delayed until 2001.

The Act will introduce important changes to United Kingdom law and practice. It will require that, so far as possible, legislation must be read and given effect in a manner compatible with rights guaranteed under the European Convention on Human Rights. Public authorities, including courts and tribunals, will have to act consistently with those rights.

The new legislation will therefore "energise the whole of the United Kingdom's legal system", with "effects felt across the breadth of both civil and criminal justice", as Lord Woolf, Master of the Rolls, has written in the preface to Human Rights Law and Practice, an analysis of the Act and Convention rights, edited by Lord Lester of Herne Hill, QC, and me, and published this week by Butterworths.

The Act has a central role in the Government's legislative programme. In his preface to the October 1997 White Paper, Rights Brought Home, Tony Blair stated that the Bill which led to the 1998 Act was "a major step forward in the achievement of our programme of constitutional reform". Jack Straw told the House of Commons that the legislation was "a key component of our drive to modernise our society and refresh our democracy".

The Act received Royal Assent on November 9, 1998. Predictions of the date for implementation have become progressively pessimistic. The earliest date now being considered by ministers is summer 2000, and there are rumours that the Home Office and other departments are keen to delay until mid-2001. This is very unfortunate: the case for early implementation is overwhelming.

Two reasons are being advanced to justify delays in bringing the Act into effect: the need for judicial training; and the wish of Whitehall to consider and address the impact that the legislation will have. Judicial training will cover only the basics of the Convention. A period of one year from Royal Assent is ample time for judges to be sent materials, to buy and to read a guide to the jurisprudence, and (if necessary) to attend a seminar on the subject. This is a new jurisdiction; but judges, magistrates and lawyers are not being asked to learn a difficult foreign language or to conduct brain surgery. Any competent lawyer will have no difficulty in understanding the principles, and finding the case law relevant to a particular problem.

Civil servants are reported to be very anxious about the potential impact of the Act. According to a recent report, Whitehall has conducted an audit of all activities vulnerable to challenge once the Act is brought into force. Some of the listed areas of concern - the honours system and the ban on transsexual marriages - will plainly survive any litigation. Where there are vulnerable areas of law, it is already open to victims to bring claims before the European Court of Human Rights so delay in implementing the Act will not provide an immunity.

If ministers are concerned that existing laws and practices breach Convention rights, then speedy reform is required. Allowing a lengthy period before the 1998 Act comes into force is a guarantee of inaction. Anyone with experience of Whitehall will know that the likelihood of government departments taking expeditious and effective action to remedy any problem is in inverse proportion to the length of time that will elapse before that problem needs to be addressed. In any event, concerns about the consequences of bringing the 1998 Act into force are plainly outweighed by the positive case for implementing the Act by the end of this year. As the Government has explained, reform is necessary and long overdue. With every month of delay, victims of breaches of fundamental rights lack a domestic remedy, our judiciary is unable to resolve human rights cases adequately, and the dirty laundry continues to be washed in the European Court of Human Rights.

A shadow Human Rights Act is creating a climate of indecision and uncertainty for all public authorities. In addition, the new Scottish Parliament and Welsh Assembly are obliged to act in accordance with the Convention as interpreted by the judiciary. So different standards will apply in different parts of the UK until the 1998 Act is implemented. The Human Rights Act is one of the greatest legislative achievements of this Government. But justice delayed is justice denied. Ministers should set an urgent timetable for action.



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