The government has been concerned to stress that life, as public authorities know it, will not come to an end on 2 October, the implementation date for the Human Rights Act 1998.For example, recent guidance issued to social serv ices authorities seeks to calm any panic by asserting: 'As the UK has been signed up to the [European Convention on Human Rights] since 1951, the expectation is that best practice already respects the Convention.'This expectation may prove to be ill-founded.

The Crown Office has anticipated -- at least the possibility of -- a huge increase in the number of judicial review applications.

The blitz to clear the lists has been going on since June, with the number of courts being doubled, and lawyers warned that their cases could be called at very short notice.Where do these new opportunities for challenge arise? We have already seen, over a period of some years, the development of a jurisprudence that offers some recognition to 'fundamental' rights.

What more does the Act have to offer?IllegalityA decision-maker must understand correctly the law which regulates his or her conduct and must give effect to it.

Failure to do so will render the decision illegal.

The most obvious impact of the Act on this ground of judicial review is to be found in the new obligation imposed by s.6.

This requires that all public authorities act compatibly with Convention rights.The only exception to this requirement is where the authority could not have acted differently because of the legislation governing that activity.

Failure to comply with s.6 can be conceptualised as a form of illegality (or alternatively as a new type of ground of judicial review).Where a public authority has a discretion as to how to act, it will no longer be necessary to show that it exercised the discretion wrongly, or that it reached a perverse conclusion, but simply that it breached a Convention right.

The significance of this approach will be most evident in cases asserting a breach of an absolute right, such as article 3 (prohibition of torture), where there is no justification defence.But what if the authority argues that it was required to act in a particular way by the governing legislation? After 2 October, a court must undertake statutory construction in accordance with s.3 of the Act, which requires legislation to be read and given effect so far as possible in a way which is compatible with Convention rights.

This applies both to current and new legislation, and the doctrine of precedent is subordinated to it.

The interpretative obligation is a strong one, and the courts will undoubtedly go to some lengths to avoid making a declaration of incompatibility.However, a rights-based approach to statutory interpretation is not completely alien to our courts.

In R v Lord Chancellor ex p Witham [1998] QB 575, the court was asked to consider whether a statutory power of the Lord Chancellor in s.130(1) Supreme Court Act 1981 was wide enough to allow him to make orders which required the payment of court fees, but without provision for exemption or remission for those who could not afford to pay.On its face, the legislation allowed the Lord Chancellor to make any orders he wished in respect of court fees, but a construction of s.130 that had regard to the fundamental right of access to the courts, as recognised in our domestic law, gave a different answer.

The court held that interference with this fundamental right is only permitted where Parliament has specifically given such permission in the relevant primary legislation.

There was no such specific permission to be found in s.130.

The orders were held to be ultra vires.Procedural improprietyFailure to follow relevant statutory procedures or the common law rules of natural justice will give rise to a ground of review.

The precise requirements of natural justice have always been dependent on the factual circumstances of each case.

The 'right to a fair hearing' will not always require an oral hearing.

Individuals have a right to know the case against them and to have the opportunity to put their case.Article 6 -- the right to a fair trial -- will have implications for the scope of an authority's duty to act fairly.

Caution needs to be exercised when assessing the likely impact.

It only applies in a non-criminal context where there is a 'determination' of a 'civil right or obligation'.

It is arguable that the domestic concept of fairness has conferred greater rights, in some circumstances, than those currently available by reason of Strasbourg jurisprudence.

For example, Strasbourg case-law suggests that immigration and nationality disputes do not involve 'civil rights' and therefore article 6 has no application in that context.Procedural safeguards can also become relevant when a public authority seeks to justify what would otherwise be a breach of a qualified Convention right.

The European Court of Human Rights (ECtHR) has, in some cases, found that inadequate procedural safeguards are sufficient to found a breach even where the interference would otherwise be justifiable.In Gaskin v UK (1990) 12 EHRR 36, the local social services authority had refused to give access to personal records where the contributor had not given consent to release.

The court accepted that confidentiality of public records was important for receiving objective and reliable information, and for the protection of third persons.

A system which made access dependent on the consent of the contributor could in principle be compatible with article 8 (the right to respect for private and family life), taking into account the state's margin of appreciation.

In short, the restriction on access pursued a legitimate aim.However, it would only comply with the principle of proportionality if there were an independent authority to decide whether access should be granted if a contributor failed to answer or withheld consent.

There was no such system in place and the court found a breach of article 8.This suggests that if qualified Convention rights are in play, our domestic courts -- having regard to Strasbourg jurisprudence as s.2 of the Act requires -- may impose novel procedural obligations.IrrationalityThe high threshold of the Wednesbury test is well-known.

The traditional view has been that it is a brave applicant who relies solely on a Wednesbury challenge, for they must establish that the authority's decision was 'so outrageous in its defiance of logic or of accepted moral standards that no sensible person who had applied his mind to the question to be decided could have arrived at it'.Where the challenge raises human rights issues, the courts, in recent years, have been prepared to apply a modified Wednesbury test.

In doing so, they have subjected the decision to greater scrutiny than before.

The right approach is set out in R v Ministry of Defence ex p Smith [1996] QB 517 (the 'gays in the military' case): 'The court may not interfere with the exercise of an administrative discretion on substantial grounds, save where the court is satisfied that the decision is unreasonable in the sense that it is beyond the range of reasonable responses open to a reasonable decision-maker.

But in judging whether the decision-maker has exceeded this margin of appreciation, the human rights context is important.

The more substantial the interference with human rights, the more the court will require by way of justification before it is satisfied that the decision is reasonable in the sense outlined above.'Not only are such decisions subjected to more intensive review, but, as importantly, the onus is on the public authority to satisfy the court that the interference with the right is justified.The 'human rights' approach to irrationality was recently applied in R v A Local Authority in the Midlands ex p LM 2000 COD 41.

This involved an irrationality challenge, which may well have failed on the more traditional approach:The applicant entered a contract to provide school bus services with the local authority.

Information was received which suggested he was unsuitable to transport children because of allegations of inappropriate conduct.

The contract was terminated, and the applicant then entered into a contract with another local authority and sought assurances that the information would not be disclosed.

This was not forthcoming.The applicant argued that disclosure would breach article 8 and be irrational.

The court was prepared to look at the detailed facts of the case.

For example, the allegations, which had been made more than ten years ago, had never been proven to a criminal or civil standard of proof, and there had been no further allegations since.The court found no 'pressing social need' (a Strasbourg concept) for disclosure.

Applying Smith, the court found for the applicant.Formulated in this way, the Wednesbury test starts to look much more like the proportionality test applied by the ECHR when determining whether breaches of qualified rights are justified.

Proportionality requires a balancing exercise which weighs the nature and extent of the interference with the individual's rights, against the public interest in the policy objective pursued by the state.

Unsurprisingly, it has been suggested that, in some cases, the two tests would lead to the same result in practice.ConclusionThe courts have already started on the road to a rights-based approach to judicial review.

The Act will, of course, speed and shape the process, sometimes in completely unanticipated ways.

Cases that would have been assessed, say for public funding purposes, as having low prospects of success will become arguable in their human rights context.

There is also likely to be a 'spill-over' effect.

It is inconceivable that cases which raise no Convention rights issues at all will be left with a stagnating 'old-style' judicial review.ADVICE LINEThe Public Law Project and Liberty run the Human Rights and Public Law telephone advice service on human rights and public law issues, free to general civil contract holders.

It is open on Mondays and Wednesdays from 2-5pm and Tuesdays and Thursdays from 10am-1pm, tel:0808 808 4546.