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The Sunday Times
August 6, 2000

On October 2, the European Convention of Human Rights becomes part of English law. Rosie Waterhouse, Peter Millar and Dipesh Gadher examine the legal revolution ahead

How Euro law will change your life

The flood of legal action set to engulf Britain | More about the Convention

Within the ivy-clad 18th-century walls of Harps-den House, a £750,000 pile near salubrious Henley-on-Thames, the news from Europe on June 20 went down a treat. Gordon Foxley, 75, a bankrupt and convicted fraudster, looked out over his palatial gardens and swimming pool and could scarce suppress a smile that he had just been awarded £6,000 in costs and expenses from the British government.

There was a delicious irony in the fact that it was the government, his former employer, that he had defrauded as a senior civil servant in the Ministry of Defence, making himself rich by accepting £1.5m in bribes from foreign arms manufacturers.

He had suffered, of course: a four-year jail sentence, of which he served half, and the loss of most of his seven homes and five luxury cars. But not a great deal more, perhaps, than nearly 1,000 workers at the Royal Ordnance factory in Blackburn, Lancashire, who lost their livelihoods because Foxley diverted a crucial contract to his foreign paymasters.

Foxley continues his luxurious lifestyle because, like many other bankrupts, he had previously put his main residence in his wife's name. As if the government's failure to recoup the money the courts ruled it was owed was not injury enough, there was now an added insult from the European Court of Human Rights in Strasbourg.

In its attempts to recover the cash it was owed, the government slipped up on a technicality: Foxley's correspondence was intercepted and read be-yond the three-month licence allowed by a county court.

The convicted felon had appealed to Strasbourg, claiming his privacy of correspondence had been illegally infringed. He won. It may have been little more than a moral victory - the £6,000 was reclaimed by Strasbourg against the legal aid granted for his action - but from a commonsense point of view it appeared to be morality that had been stood on its head.

According to the would-be guardians of British justice, worse is yet to come. On October 2, when, under the 1998 Human Rights Act, the European Convention of Human Rights (ECHR) is definitively enshrined in English law - it has already been adopted in Scotland - chaos, they predict, will ensue.

According to Lord McCluskey, a senior Scottish judge, who already has experience of the legislation, we are facing "a field day for crackpots, a pain in the neck for judges and a gold mine for lawyers", the prime minister's wife Cherie Booth not least among them. The lord chancellor's office has earmarked an extra £39m for the legal aid budget in anticipation.

The Scottish legal system has already been thrown into disarray by the sacking of 126 temporary sheriffs - the equivalent of magistrates - because they were appointed by the lord advocate in his role as the public prosecutor - and under the ECHR their impartiality was questionable.

One drunk driver who was found smelling of alcohol near her car in a Dumfermline car park and initially admitted she had driven there was let off on the basis of the convention. A Scottish judge ruled that because police who questioned her asked her how she had arrived in the car park - leading her to admit she had driven there - her right to silence had been contravened.

In England, a Birmingham judge has made a similar ruling in the case of two men charged with dangerous driving, because the standard police letter requiring them to declare who was driving their vehicle could force them to incriminate themselves.

The Human Rights Act will not be part of domestic English law for another few weeks yet, but those with the resources and determination to pursue their cases to Strasbourg have already provided a foretaste of what is to come when, as one lawyer puts it, "the floodgates open" at home.

Last week's Strasbourg ruling in favour of a man who argued that Britain's law banning male homosexual group sex was discriminatory will force an alteration to the Sexual Offences Act.

It was also the ECHR's provisions that controversially prevented the deportation to India last week of two known Sikh militants, who were ineligible for refugee status and whose presence in Britain police consider a threat to national security. Because they face the risk of torture at home, they remain here, with social security benefits.

Even the judge who issued the ruling, Mr Justice Potts, said he thought law-abiding citizens might feel "disquiet" about it, but the convention gave him no other choice.

It is not hard to see this as evidence of a world turned on its head and ruled by Humpty Dumpty, where "words mean what I want them to mean, nothing more and nothing less". Arch conservatives and anti-Europeans see it as clear proof of Brussels-backed folly and the submission of British common law, evolved over centuries, to foreign diktat.

"A European court of second-rate judges is destroying the rights of the majority in this country," Robert Howe QC fulminated in the Daily Mail [See Correction] (Update - the link to the correction no longer exists online. 08/02/08 ) .

It is not, inevitably, quite that easy. The court at Strasbourg was dreamt up, not by a "filthy foreigner" but by one Winston Churchill, and the convention was initially drafted by Sir David Maxwell Fyfe, the chief British war crimes prosecutor at Nuremberg.

The convention signed in 1950 drew heavily on the 1948 United Nations Universal Declaration of Human Rights and was signed by all members of the Council of Europe, a much wider, looser body than the European Union, nowadays numbering 41 nations, including many nations that were once part of the Soviet Union. The convention is monitored by a court of 41 judges, not necessarily one from each country, appointed by parliamentarians for six-year terms.

Howe insists British involvement in setting up the convention never envisaged Britain being in the dock. It was expected to "simply police the outer limits of what is acceptable", but has now become excessively intrusive.

However, the British public and the British press - including this newspaper - have on many occasions been thankful for the ECHR. Notably in 1979, when British courts tried to gag The Sunday Times's publication of reports damning thalidomide manufacturers for the effects of their drug on unborn children, it was the European court that overturned the ban.

In 1991 The Sunday Times, The Observer and The Guardian were all vindicated in their determination to publish excerpts from the Spycatcher memoirs of the former MI6 man Peter Wright. The ECHR memorably ruled that the press played the "vital role of public watchdog".

According to Guy Black, the director of the Press Complaints Commission, although many fear that the ECHR's provisions on privacy - used by Foxley - mean giving criminals and the corrupt the protection of the law, its record on upholding freedom of speech speaks louder. "It could have done great damage to a free press if the convention had been enshrined without amendment to its provisions on privacy," he said.

Fierce lobbying on behalf of the British press has meant that the act, which comes into force in October, was amended to avoid the risk of "a privacy law by the back door".

Black said: "By and large the European court has come down on the side of freedom of expression and the House of Commons effectively incorporated Strasbourg jurisprudence in the act. "We believe the government is committed to the maintenance of a free press and did everything it could. We are happy with the words as written on paper."

However, asked whether or not its incorporation into British law is therefore a good thing, he said: "You'll have to ask in five years' time. This is crystal ball gazing."

None the less, at least one other former spy is banking on the ECHR to protect him from his former masters. David Shayler is coming back to Britain soon to face certain prosecution under the Official Secrets Act.

Until now anyone breaching that act has been automatically assumed to be guilty by the law, but John Wadham, Shayler's lawyer and director of the civil rights group Liberty, will argue that his revelation about a plot to assassinate the Libyan leader Muammar Gadaffi was a legitimate use of his freedom of expression in the public interest.

Wadham hails the ECHR's incorporation as the greatest achievement since the 1688 Bill of Rights, considered the bedrock on which the body of legal precedent that makes up the unwritten modern British constitution is based.

He says the ECHR "was drafted largely by British civil servants and lawyers and when they were doing it, they were trying to put into the convention what they thought we already had. The problem is that the convention has gone off in one direction and our law has gone off in another".

Wadham finds no problem even with the Foxley case: "It doesn't matter how wicked or bad somebody is, nobody should interfere with correspondence. One of the principles of the convention is that, however wicked or bad you are, your human rights remain."

Yet it is precisely the right to private correspondence that is already proving a thorn in the side of a Labour government that says it is committed to human rights and civil liberties, but also to stopping the spread of organised crime.

The Department of Trade and Industry issued draft guidelines to employers last week that they should not snoop on employees' e-mails or other private communications. Companies that routinely record calls "for training purposes" have been told to allow staff to make personal calls on telephones that are guaranteed to be free from monitoring.

Warning companies that they will be breaking the law if they monitor their employees' electronic communication without their consent appears to sit extremely ill with the government's determination to force all internet service providers to allow police access to e-mail. Many internet gurus believe that particular legislation, if enacted, would not only breach the human rights convention but also kill off British e-commerce, another of the prime minister's favourite fetishes.

The convention's defenders are undismayed by Downing Street's dilemmas. They say it was never intended to make life easier for governments, that it is supposed to protect the citizen against knee-jerk legislation or government decisions calculated to curry voter favour at election time. What matters is not "British justice" but "justice", they say, citing the political corruption of the court system in Nazi Germany and the Soviet Union.

At present, any citizen with a grievance against a public body who has failed to find redress in his own country's courts can take the case to Strasbourg. From October, although that will still be possible in the last resort, it will not be necessary. British courts will be expected to monitor the convention's observance.

Difficult decisions are part of the package. Regardless of individual attitudes to group homosexual acts, it seems nonsensical that they should be legal for women and illegal for men. We might wish the Sikh militants were somebody else's problem but could we really condone sending them back to torture?

According to Sir Nicholas Lyell, the former attorney-general, such cases "present a real challenge to government . . . I think the answer is not to return them to a country where, whether they are guilty or innocent, they are likely to be killed or tortured. I think we have to find ways of bringing them to trial for that kind of behaviour here, if we have the evidence".

But there will be confusion. Even Lyell admits: "We must recognise there will be a field day for lawyers. There's no doubt about it."

Steve Wedd, the secretary of the Criminal Law Solicitors' Association, is convinced that the courts are heading for chaos and that some unscrupulous lawyers will seize the opportunity to get rich quick. "The Human Rights Act applies right across the board. It touches upon every single case, whether it is road traffic, rape, murder or parking fines. There will be thousands of magistrates' court and crown court cases and hundreds of High Court cases," he says.

"You could have the spectre of rapists and murderers going out of the door and cash going from the government to the victims of crime [who might sue] because the criminals weren't prosecuted successfully. Every lawyer will have to have a mind to the act in every single thing they do and some may choose to exploit some of the loopholes which will be found in English law to the benefit of their clients.

"If a lawyer wants to take a flaky point on behalf of a flaky client and if the client then succeeds, there will undoubtedly be a nice drink in it for the lawyer."

Lord Woolf, the lord chief justice, is more confident, but still has qualms. "There is no doubt that for a time cases will be brought before the courts now which would not have been brought . . . but for the European convention . . . I think we are all engaged in a learning curve," he says.

The quick learners could profit most. Last week one barrister tried pulling the human rights card on Westminster council by alleging that the routine threat to double his parking fine if not paid promptly jeopardised his right to a fair trial. The council backed down, though it insists it did so only because he had already paid the fine on one of two tickets issued.

A more serious legal attempt to capitalise on the opportunities offered by the new law can be seen in the new barristers' chambers, archly named Matrix, which groups 32 top legal names, from Cherie Booth QC to Clare Montgomery QC, who represented General Augusto Pinochet in his extradition battle: a further example of Liberty's defence of human rights even for the allegedly wicked.

Another Matrix member, Michael Beloff, a leading silk and president of Trinity College, Oxford, reputed to earn £1m, said: "I think Matrix will become the Silicon Valley of human rights litigation in the public law sphere."

There is a general assumption that its members will earn on average between £100,000 and £300,000 a year.

In the words of the Press Complaints Commission director: "I'm not sure there's any such thing as cheap law."

The important thing is that it should be good law. The members of Matrix may make a killing by defending our human rights. What matters, however, is that they should keep a grip on reality.

Cleaning up in court: the flood of legal action set to engulf Britain

Right to a fair trial

The largest number of claims brought under the Human Rights Act will involve criminal cases where defendants believe they have been denied a fair trial (article 6).

The Football Supporters Association is considering suing the Belgian authorities on behalf of hundreds of England fans who were arrested and deported from Euro 2000 without a court hearing.

Seizing the fortunes of crime barons on suspicion that they have been amassed through organised crime, such as drug smuggling and human trafficking, could also be challenged. A successful challenge will scupper proposed police efforts to target 39 underworld figures who have amassed fortunes totalling £220m. Past precedents of rulings using article 6 include:
Robert Thompson and Jon Venables, the child killers of toddler James Bulger, were awarded £43,000 in costs and damages by the European Court in Strasbourg after it ruled that it was wrong for them to have been tried in an adult court, as they could not have understood the proceedings, and for a politician - in this case Michael Howard, then home secretary - to decide on their final sentence.
The 'M25 gang', the trio of black men jailed for a spree of robbery and murder, was freed last month after it emerged that police had paid an informant £10,000 to give evidence at their trial and public interest immunity certificates had been used to deny the defence team this information. After a ruling at Strasbourg in February that this had impeded their right to a fair trial, the Court of Appeal freed them Ð although the judge did not declare them innocent.

Privacy
The right to privacy will give individuals greater protection from intrusion.
Earl Spencer tried to take a complaint to Strasbourg about 1995 press photographs of his wife in an alcohol recovery clinic. His case failed on a technicality but the Human Rights Act could help future litigants in the UK. Three Dutch drug smugglers convicted in Scotland in 1997 after they were observed transferring their cannabis cargo at sea to Scottish criminals have appealed against their conviction, arguing that the Spanish police breached their right to privacy by boarding their vessel and planting a tracking beacon.
Telephone calls: companies and organisations which routinely record calls must ensure that their employees are able to make personal calls that are not also recorded.

Media
Article 10, protecting freedom of expression, will guarantee more rights for the media, particularly in the protection of sources.
Injunctions: it will be much harder for public authorities to obtain press injunctions prior to publication.
Official Secrets Act: in cases involving the act, such as former MI5 man David Shayler, the rights of the defendant will be stronger.
Libel cases: defendants in cases they contend have a strong public interest will be able to use article 10 to defend publication.

Asylum
Lawyers predict many more asylum-seekers will cite the convention when the Human Rights Act comes into force.
Two Sikh militants were granted the right to stay in Britain last week despite the fact the judge said they were 'proved to be a threat to national security'. Mr Justice Potts ruled if they were deported to India there was a substantial risk that their rights would be violated under article 3 of the European Convention on Human Rights (ECHR), which guarantees the absolute right to freedom from torture and inhuman and degrading treatment.
A member of the group of 29 Afghans who arrived in the UK on a hijacked plane and want to stay won his appeal last week against the home secretary's decision that he should not be given refugee status. Judge Dunn said the man faced a 'well-founded fear of persecution' if he was returned to Afghanistan. A lawyer for the other Afghans said that under Article 3, it was almost '100% certain' that no members of the group would be sent home.

Education
Uniform: pupils will be able to challenge school uniform on the grounds of freedom of expression and right to respect for private life.
Punishment: pupils could sue if they claimed punishments such as gating or detention were not 'proportionate' and infringed their rights to liberty.
Expulsion: parents could challenge a decision to expel a child on the grounds of the right to education.
Smoking: pupils could argue that they have a right to the peaceful enjoyment of their possessions and therefore cannot have their cigarettes confiscated. If the school rules banned smoking, they could argue enforcing such a rule was a private contract and outside the Human Rights Act.

Family life
The rights of parents, relatives and children to a family life, laid out in article 8, will have far-reaching implications.
The rights of each parent in divorce and care proceedings - when local authorities are seeking to take a child into care - are greatly strengthened. The European court has ruled 'the mutual enjoyment by parent and child of each others company constitutes a fundamental element of family life'.
Where abuse or neglect is suspected: challenges from parents who claim they have been wrongly accused may increase. Courts will have to be seen to give parents a fair hearing before authorising the removal of a child. The courts will also be more likely to take into account the wishes of the child.
Pregnant women and women separated from their children in prison may be able to challenge their treatment under article 8.
Immigration applicants refused permission to stay if they already have family members here may be able to claim the right to a family life, and the enforced break-up of families as a result of immigration decisions could be challenged.
Fertility treatment: article 12, the right to marry and found a family, could lead to a rush of claims for fertility treatment by widows or post-menopausal women who want to start a family by using fertility techniques. If the ECHR had been in force earlier it would have helped Diane Blood, the Englishwoman who had to travel to Belgium to be impregnated with the sperm of her dead husband - she was prohibited from doing so in the UK because he had not given consent for his sperm to be used.

Religion
The Human Rights Act will allow minority religions to raise several controversial issues in the courts.
Polygamy: Muslim leaders are seeking to have polygamous marriages legalised in Britain under articles 8 and 9 of the convention, which respectively guarantee the right to family life and freedom of religion. They intend to bring a test case which would allow a man to have up to four wives, in accordance with the Muslim faith, with spouses and children gaining equal rights to his estate when he dies.
Work: the Muslim community wants more lenient dress codes at work, particularly for Muslim women who are obliged to wear certain garments, greater provision for the recital of prayers during working hours and time off for staff on religious holidays, such as the end of Ramadan.
Recognition: some religious groups such as the controversial Church of Scientology are considering invoking religious and anti-discrimination articles in the convention to gain official recognition in Britain and the right to conduct legitimate weddings.

Gay Rights
Several rulings in Strasbourg have paved the way for a flurry of legal challenges from gay people.
A gay civil servant from Yorkshire who was found guilty of gross indecency after taking part in consensual group sex with four other men at his home had his conviction overturned and was awarded £21,000 damages last week by the European Court. Judges ruled that his right to privacy, covered by article 8 of the convention, had been breached; sex with multiple heterosexual partners is not illegal under English law. Stonewall, the gay rights group, said the verdict 'drives a coach and horses' through gross indecency laws.
Four former armed forces personnel sacked because they were gay were awarded a total of £325,000 in compensation last month at Strasbourg, again, because the state had contravened their right to privacy.
Future cases are likely to involve challenges to discriminatory partnership rights for gay couples. At the moment, gay people are denied the transferral of pension and tenancy rights following the death of a partner. In one current case, a man is arguing that as the surviving partner in a gay relationship he should escape inheritance tax just as a husband or wife does when a spouse dies.

More about the Convention

European Parliament
www.europarl.eu.int/sg/tree/en/default.htm - (Update - this site no longer exists 08/02/08 )

Human rights resources

Human rights resources on the Internet
shr.aaas.org/dhr.htm

Human Rights Internet
www.hri.ca - (Update - this site no longer exists 08/02/08 )

University of Minnesota Human Rights library
www1.umn.edu/humanrts/

Human rights interactive network
www.webcom.com/hrin

Human rights discussion groups
www.igc.org/igc/issues/hr/igc.html - (Update - this site no longer exists 08/02/08 )

Human Rights Web
www.hrweb.org

Human rights organisations

Human Rights Watch
www.hrw.org

Amnesty International
www.amnesty.org

United Nations Human Rights page
www.un.org/rights

Internet based human rights organisation
www.derechos.org

Lawyers Committee for Human Rights
www.lchr.org/lchr/home.htm

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