A year of rights

It was no less a figure than the Lord Chief Justice Lord Woolf who inadvertently made leading criminal law specialist Malcolm Fowler think that maybe lawyers were being too cautious with the Human Rights Act 1998, which is coming up to its first anniversary on 2 October.

Lord Woolf was speaking at the Criminal Law Solicitors Association Conference last November.

Mr Fowler, a partner at Birmingham firm Jonas Roy Bloom, says: 'He thanked us for our responsible attitude because we had not brought many cases.

It made us question whether we have been innovative enough.

Should we have been bringing more cases? It requires us to step back and consider the inherent idea of fairness.'The point he makes, that the incorporation of the Act has made solicitors think differently, is borne out by colleagues in fields less immediately associated with human rights.For example, there has been a Court of Appeal ruling that the Consumer Credit Act 1974 is unfair to lenders because a court does not have the power to enforce a lending agreement if the amount of a loan is stated incorrectly on the form.But challenges to prisoner rights, expected to be fertile ground, have not materialised.

Even the then chief inspector of prisons, Sir David Ramsbotham, had expected challenges by prisoners over conditions, and the Prison Service had stimulated demand by putting up posters in jails telling prisoners they can claim under the new law if they believe their rights are violated.

Mr Fowler, immediate past chairman of the Law Society criminal law committee, says: 'I was waiting for challenges, but we are still waiting.' Just before the general election, one prisoner unsuccessfully sought the right to vote.David Wheeler, who has had responsibility for monitoring the Act for the Solicitors Family Law Association, says switchboards and waiting rooms have not been jammed with people coming in with human rights cases.

'The real focus is how we deal with disputes, not creating new disputes.

We have to look at areas such as whether we are allowing the other party proper access to the courts, or should judgments be published.

It's making us more alive to the rights.'He says local authorities are now aware of human rights issues.

'If there is an emergency protection order where a child is removed from home, steps are always taken now to make sure parents are present when the application is made.

These orders used to happen in isolation.'Patrick Doris, an associate at City giant Freshfields Bruckhaus Deringer, is a litigator who has worked full-time giving human rights specialist advice since the Act came into force.

He agrees that lawyers are thinking differently.

'They are often changing the way things are pleaded, but rarely changing the way things are resolved.

I don't believe the Act has actually changed a huge number of judgments, but there is a shift in thinking among lawyers whether in private practice, in-house or governmental regulatory lawyers.'Elspeth Guild, an immigration partner at London firm Kingsley Napley, says that for the first time 'we saw lawyers adjusting the way they look at cases and present them to clients.

Solicitors are cautious animals, and rightly so, but now they have slightly more robust ideas that foreigners may actually have rights to reside in the UK for the purposes of family life, or may be entitled not to be sent back to persecution'.Convention protections can apply to individuals, companies and groups of individuals in both criminal and civil cases.

The definition of a public authority which must comply with the convention includes courts, tribunals and anyone whose functions are of a public nature.But incorporation of the convention was never likely to be revolutionary, according to David Wheeler, who is a partner with Lyons Davidson in Bristol.

The UK had already been signed up to the European Convention on Human Rights for half a century before incorporation.

Many of the most flagrant cases had already been fought in the human rights court in Strasbourg in the second half of the 20th century.

One of the last of these rulings, and one which would have been picked up in the domestic courts had the legislation been in place, was that a ban on gay and lesbian servicemen and women was in breach of the convention.But those who argued long and hard for incorporation are disappointed at the rulings of the judges so far in response to human rights arguments.

John Wadham, the solicitor director of the pressure group Liberty, says: 'Perhaps those who had lobbied for this measure were a little naive.

But we do not think the judiciary has followed the principle of the convention as well as it should.' He maintains that in some cases the Strasbourg court would be more favourable to applicants.

'One of the key criticisms of the Act was that it would place too much power in the hands of the judiciary.

The judiciary's cautious approach may be explained in part as an attempt to distance itself from accusations that it is usurping Parliament.'Mr Doris at Freshfields agrees that in the first year, 'in reality the world hasn't changed that much.

The courts aren't all that enthused by human rights arguments.

They're not normally particularly mainstream arguments.

They're normally thrown in for good measure, and the courts can be fairly robust against them'.

Mr Wheeler says: 'I think judges are being cautious, but they will consider a human rights point.' He says in one contested adoption case he fought, no one had made any human rights submission, but the judge still said at the end that he was mindful of the rights of the family losing their child, but the circumstances were so extreme that the adoption was justified.The issue which raised most hopes about the radicalism of judges, only to see them dashed, was in three linked cases arguing that the environment secretary's powers to decide planning applications were not compatible with the right to an impartial tribunal under article 6, because he was both policy maker and decision maker.The law lords ruled that though he was clearly not impartial, his position was compatible with the convention because his decisions were subject to judicial review.But while seeing the judgment as disappointing for human rights jurisprudence if good for certainty for clients, John Bowman, a senior planning associate at Freshfields, says: 'I don't think it closes off a whole range of other convention challenges on planning.

It's still quite early to see how it will go.

'One of these is delay in reaching a decision.

The other might be for a third party, such as a next-door neighbour, to argue that they were entitled to the right to appeal against a planning decision.

Under UK law they cannot appeal on fact, only on process,' Mr Bowman says.Ms Guild works in immigration, a field where Strasbourg has repeatedly in the past criticised British governments for neglecting immigrants' rights, and where the present government has just suffered an embarrassing reverse.Last month, the High Court ruled that detention of asylum seekers in reception centres was unlawful under the Human Rights Act.

The home secretary is appealing against the judgment.Ms Guild says that judges are undoubtedly more aware of their human rights obligation, and mention it in judgments.

'In the past the judges were saying "you can't blame us because we didn't have the power to consider human rights law".

That excuse can only last another couple of years [until post-incorporation cases are appealed to the European Court of Human Rights].

If judges are still getting it wrong now and start going down [being over-ruled] in Strasbourg, that's going to look very bad.'Judges in Britain have no power - as in some other countries - to strike down a statute which is incompatible with the convention, but only to issue a declaration of incompatibility.That has only happened twice so far.

The first substantial example was the planning case overturned in the Lords.

Government ministers are under no obligation to respond, but if they do, section 10 of the Human Rights Act allows a minister to introduce a 'fast-track' statutory instrument to amend or repeal the relevant provision.In the first year, this fast track has been used only once, after the second substantial declaration of incompatibility on behalf of a paranoid schizophrenic detained in Broadmoor for manslaughter.Under the Mental Health Act, a patient seeking discharge from hospital has to prove that he is not ill.

The Court of Appeal decided this reverse burden of proof was incompatible with article 5 of the convention.

This puts the onus on the authorities to establish that a person of unsound mind must be detained.The courts also seem to have accepted that the convention introduced what Mr Wadham calls 'the dawning of a substantive common law right to privacy'.

The Court of Appeal refused to grant an injunction preventing the publication of unauthorised photographs of the wedding of Michael Douglas and Catherine Zeta-Jones, but Lord Justice Sedley said that the actors had a 'powerfully arguable case to advance' at trial.The Lord Chancellor, Lord Irvine, professes to have been vindicated by the first year's operation of the act.

He says: 'As I predicted, the working out of the Act has proved the prophets of doom to be wrong.

By and large our laws and administration have stood up well indeed to scrutiny.'He argues that it is a mistake to see the Human Rights Act as just about court cases.

'It helps all of us, citizens and public authorities, to be much clearer about what really matters - about the basic values and standards we can all share,' he says.'And it gives us a way of balancing the interests of the one against the many.

Over time, that should help us sort things out without having to go to court in the first place.

Above all, the Human Rights Act is about respecting each other - about showing others the dignity, fairness and respect that we rightly expect to be shown to us.

The Act teaches us that rights and responsibilities are two sides of the same coin, the coin of common humanity.'It remains to be seen whether he will still be as sanguine if - as Mr Wadham at Liberty suspects they might - judges become less cautious.

Mr Wadham says: 'Optimists might hope that the courts have chosen not to frighten public authorities too much at this stage but over time they will begin to assert convention principles more robustly.'Stephen Ward is a freelance journalist