Last April, the then Law Society President Robert Sayer wrote to all members of the profession, warning them to be extremely vigilant over coming months in all areas of legal practice which could be affected by the Human Rights Act 1998 (HRA).In his letter, which accompanied an official Society warning card alerting solicitors to the potential effects of the HRA, he also cautioned: 'The profession must act responsibly to avoid bringing hopeless cases that will simply bring human rights into disrepute.' This concern was echoed just last week by Lord Lester of Herne Hill QC, widely credited as the architect of the HRA.When Mr Sayer wrote his letter, there was widespread fear in the legal community of England and Wales that solicitors would not be sufficiently prepared for the HRA's implementation on 2 October.
Now, with that day rushing upon them, leading commentators believe that the profession is ready for it.
And old hands at human rights law are taking up Mr Sayer's warning that solicitors should not go too far in seeking to enforce HRA rights.The HRA is not simply important new legislation.
It represents, for lawyers in England and Wales, a potential new approach to the practice of law.
Used to applying the detail of black letter law to cases, solicitors will now have to bring a more pro-active, interpretative approach to the assessment of whether cases can be brought under the HR A.
The Law Society's head of law reform, Vicky Chapman, explains: 'It's a different way of looking at the law, and the approach which lawyers will need to take with the HRA is radically different from that which they are taking at the moment.
When the HRA comes into force there will be a clear culture shift across the profession, as the new legislation will reach into every aspect of solicitors' work.'Those manning the human rights and public law line run by civil liberties group Liberty and funded by the Legal Services Commission (LSC) -- which offers specialist advice to lawyers and legal advisers who have civil legal aid contracts -- report a relatively sudden change in the nature of the enquiries which they are receiving.Liberty legal officer Mona Arshi says: 'The line's been busy since it opened in January.
But in July and August the number of calls surged.
It was then that we noticed solicitors were becoming far more confident in applying specific articles to a case.
At the beginning of the year, the queries were very general, most related to which article to apply in a certain situation.
Now our callers already know which article they are enquiring about.
Their queries are sophisticated, relating, for example, to the way in which the HRA will apply retrospectively.'Ms Arshi has noticed solicitors taking a keen interest in the HRA, scanning the national press for rights-related stories and flooding her with calls immediately after the publication of a news article on, for example, speed cameras.
Many firms have also thrown themselves enthusiastically into the new human rights culture, with regional firms like Sheffield-based Irwin Mitchell leading the way by opening dedicated human rights departments aimed at coordinating claims under the HRA across all practice areas.
Leeds firm Walker Morris has established a human rights advisory service.
DLA has put together a 'combat unit' to help employers with the HRA.Eversheds has not set up a human rights department but has created a human rights steering group to act as a first point of contact on human rights issues.
The steering group is currently running a two-stage training programme for all lawyers, comprising a general foundation course in human rights and a specialist workshop targeted at solicitors' practice areas.Steering group member and national litigation support lawyer Shirley Denyer explains: 'We have taken the view that the HRA is not just something that will affect a few lawyers in a few specialist areas.
It will have a broad effect, and every lawyer in our firm needs to be aware of it, whatever their specialism, so that they can take its principles into account.'Many of the callers to the Liberty phone line are individuals from smaller practices and advice centres.
However, City giants are taking the issue of human rights no less seriously.
Clifford Chance has waited until this month to roll out a firm-wide programme of training, because of concerns that issues would be missed if training were implemented too early.However, Clifford Chance partner Michael Smyth, a member of the Law Society's Human Rights Act task force, says: 'In some departments -- particularly financial services, litigation and property -- we have already developed a very high level of HRA expertise, particularly around article 6 (right to a fair trial), because clients have demanded it.
Financial clients have had to be aware of HRA issues because of the work they've been doing recently on the Financial Services and Markets Act and other pieces of upcoming legislation.
Media and communi cations lawyers have also had to become familiar with Convention considerations.
And we've been asked by many of our public sector clients to audit them for human rights purposes.'Most solicitors, from the City to the high street, feel they have now been bombarded with external and internal information on the HRA, and on the books and training courses available to bring them up to speed.
The feeling is that solicitors must be aware of the HRA's potential ramifications -- they are probably negligent if they are not.
A certain weariness has set in, and for some it has turned to apprehension.Human rights veteran Geoffrey Bindman of top civil liberties firm Bindman & Partners, who has been bringing human rights cases for years under the European Convention, says: 'If we look at the experience in Scotland, where human rights law has been in place for some time, there's no reason to think that a huge flood of cases is going to rush into the courts on 2 October.
Of course, in the early stages there will be some test cases, but it will settle down, people will come to see the HRA as part of ordinary law, and it will become second nature for solicitors to look at human rights angles.'Mr Bindman cautions that it is in some ways potentially damaging to the profession to create the impression that there is going to be a huge flood of cases on 2 October -- a fear that newspapers such as the Daily Mail have been ratcheting up in recent months.
He maintains that talk about the expansion of human rights law creating a bonanza for lawyers puts the emphasis in the wrong place, and it is certainly untrue as far as legal aid cases are concerned.
'I don't believe in the validity of human rights departments within law firms,' he argues.
'The point of the HRA is that it applies across the board, it's not a specialist area that should be looked at in isolation.
I hope that lawyers will not be excessively keen to argue human rights issues on every possible occasion -- this would be very damaging to the profession.
Solicitors have to be aware of the HRA, but the tendency to argue human rights points too hard must be resisted.
I believe that judges will be very keen to stop bad human rights points being argued wherever they can.'There have been concerns that solicitors will be unable to bring valid human rights cases because legal aid funding will not be made available.
The chair of the Solicitors Human Rights Group, Richard Meeran of Leigh Day & Co, explains: 'Decisions made on whether to grant legal aid in specific cases may contravene article 6 of the HRA.
I can foresee a situation in which a lawyer would be unable to take a case on a conditional fee basis because it is of insufficient monetary value, and the potential claimant would be unable to get legal aid because the case is not deemed by the LSC to be of sufficient importance to the public interest.
In such a case, if the claim had merits, the claimant would be denied access to justice and the case might therefore be subject to some scrutiny under the HRA.'However, Legal Aid Practitioners Group chair David Emerson questions the validity of concerns that legal aid will not be made available for valid claims.
Like Mr Bindman, he believes there is a certain amount of undesirable hype surrounding the HRA.He says it is going to be very easy for solicitors to jump on the bandwagon on 2 October and think they are going to be challenging in the High Court on every single case.
But a lot of preparation has been done by the government to prevent this from happening, and solicitors will need to act ve ry responsibly in terms of the types of challenges that they make.He adds: 'On 2 October there will be a huge number of cases issued, because various firms and organisations have been busy setting up and drafting the paperwork for cases on well researched points of law.
But I believe that the responsible practitioner will not bring these cases lightly.'THE MAIN RIGHTSThe main rights conferred by the European Convention on Human Rights and implemented by the Human Rights Act are:-- Right to life-- Prohibition of torture-- Prohibition of slavery and forced labour-- Right to liberty and security-- Right to a fair trial-- No punishment without lawful authority-- Right to respect for private and family life-- Freedom of thought, conscience and religion-- Freedom of expression-- Freedom of assembly and association-- Right to marry-- Prohibition against discrimination-- Protection of property-- Right to education-- Right to free elections.
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