October Revolution

After months of apprehension and speculation the Human Rights Act is almost upon us.

Jessica Smerin reports on why the legal profession is confident it is ready to tackle the issues head on

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 HRA.

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 communications 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 very 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.'

Jessica Smerin is a freelance journalist

The main rights conferred by the European Convention on Human Rights and implemented by the Human Rights Act are:

l Right to lifel Prohibition of torturel Prohibition of slavery and forced labourl Right to liberty and securityl Right to a fair triall No punishment without lawful authorityl Right to respect for private and family lifel Freedom of thought, conscience and religionl Freedom of expressionl Freedom of assembly and associationl Right to marryl Prohibition against discriminationl Protection of propertyl Right to educationl Right to free elections

For the first time the country's two leading organisations in the field have joined to organise the Human Rights Awards 2000.

Liberty and Justice have merged their awards and, in association with the Gazette, will be presenting them on 11 December 2000, to coincide with the United Nations international human rights day on 10 December.

The Liberty/Gazette awards have been running since 1997.

They began auspiciously, with Lord Lester of Herne Hill QC and the homosexual rights campaigning group Stonewall picking up the plaudits.

Lord Lester had campaigned vigorously over three decades for a British Bill of Rights based on the European Convention.

The Human Rights Bill was finally published in 1997 and along the way he had been instrumental in the drafting of the Sex Discrimination Act 1975 and the Race Relations Act 1976.

Two specific points led to the second award in 1997 going to Stonewall.

First was its campaigning which led to a free vote in the House of Commons on the age of consent.

And the second was a change in the immigration rules to allow homosexuals to join their partners in the UK under certain circumstances.

Again, Stonewall had been campaigning tirelessly for a loosening in the regulations.

One year on and the awards went to Francoise Hampson and Kevin Boyle - both solicitor-professors of law at the University of Essex - who were recognised for their work for Kurdish victims of abuse.

The family of Stephen Lawrence, the murdered south London teenager, was also given an award for their efforts which finally led to the McPherson report.

Also in 1998, special awards were given to the AIRE Centre and Helen Bamber, the director of the Medical Foundation for the Care of Victims of Torture.

In 1999, the Human Rights Lawyer of the Year Award again went to two lawyers - barrister Ben Emmerson and solicitor Richard Wise.

Mr Emmerson was cited both for litigation conducted in Strasbourg and for his leading role in the training of judges and magistrates in the run up to implementation of the Human Rights Act.

The judges gave the award also to Mr Wise for his work in bringing judicial review applications on behalf of people who have been imprisoned for non-payment of fines, poll tax and community charge.

Particularly remarkable was Mr Wise's success rate.

Over the past seven years there have been approximately 1,000 such cases and he has been successful in 99% of them.

Last year's Human Rights Award went to the Refugee Women's Legal Group.

The group consists of lawyers, refugee women and organisations concerned about the impact of legislative change on refugee women in the UK.

Also last year, the judges presented a special award for lifetime achievement to the London-based lawyer, Geoffrey Bindman.

The senior partner of Bindman & Partners founded his firm in 1974 and had been specialising in human rights and civil liberties issues ever since.Last year's Justice human rights awards went to the late Peter Duffy QC, Saul Lehrfreund and Parvais Jabbar of London law firm Simons Muirhead & Burton, and to the Environmental Law Foundation (ELF).

Mr Duffy, who died from cancer in March 1999, was awarded for the body of his human rights work, including many landmark cases.

Mr Lehrfreund and Mr Jabbar were chosen for their work in helping Caribbean prisoners on death row.

And the ELF was cited for its work in providing advice and assistance to help communities to protect their rights to a healthy environment.

This year there will be three categories at the joint awards: the Human Rights Lawyer of the Year (open to solicitors, barristers, legal executives, trainee solicitors, pupil barristers, legal academics and judges); the Human Rights Award 2000 (open to either legal or non-legal organisations and non-legal individuals) and the Young Human Rights Lawyer of the Year, which will be made in memory of Mr Duffy (open to solicitors, barristers, legal executives, trainee solicitors, pupil barristers, legal academics and judges aged 35 or younger).

This year's judging panel will be: Michael Napier, President of the Law Society; Jonathan Hirst QC, Chairman of the Bar Council; John Wadham, Director of Liberty; Anne Owers, Director of Justice; Baroness Prashar, Chairwoman of the Parole Board, and; Sir Nicolas Bratza of the European Court of Human Rights.

l For information on the nomination process, contact Zoe Gillard at Liberty on tel: 020 7378 3667; e-mail: zoeg@liberty-human-rights.org.uk; and fax: 020 7407 5354.

Additional information is also available on the Liberty Web site at www.liberty-human-rights.org.uk