Right of passage

Fears that the Human Rights Act would litter the legal landscape with a barrage of cases were unfounded.

Yet while the Act has flexed its muscles in privacy and immigration law, Scott Neilson hears calls for the setting up of a government commission

Two years have already passed since the Human Rights Act exploded into this country's courts and on to our front pages.

Since then, the controversial law has rarely been out of the headlines.

But what, if anything, has the legislation actually achieved?

The Human Rights Act 1998 (HRA), which implemented the European Convention on Human Rights, came into force in England and Wales on 2 October 2000.

For the first time, through 18 articles and several protocols, individuals had fundamental guarantees to a range of human rights that included the right to life, privacy, family, a comfortable home and freedom of expression.

Upon its introduction, the HRA was immediately engulfed in media controversy.

Apocalyptic tabloids forecast a legal system brought to its knees and a compensation culture spiralling out of control.

Yet dire warnings of courts clogged up with chancers have so far proved unfounded, says Simon Creighton, a partner at human rights firm Bhatt Murphy.

'If anything, the first 12 months saw the courts consistently draw a line against a lot of claims.

It was a real battle for the lawyers,' says Mr Creighton.

During the first year of the Act's life, nearly 200 cases raising human rights issues were decided in the higher courts.

Yet most of these would probably have gone to court even without the Act.

In only 26 cases, around one in eight, was a public body or government department found in breach of human rights.

In the same first year, less than a dozen cases of major importance were determined at the highest level.

Meanwhile, the last two years have seen few declarations by the courts of domestic laws being incompatible with the HRA.

Among the many points of law that have survived forensic assault from the Act since October 2000 are confiscation of drug traffickers' assets, detention for breach of bail conditions, life sentences where the offender was a significant risk to the public, the obligations of confidentiality imposed on members of the security services, police entrapment, and decisions by the secretary of state in certain planning appeals.

So, is the HRA nothing more than an overhyped damp squib? Beneath the surface, it has already had a broad, albeit indirect influence.

The Act has granted judges wide powers to amend the law without any input from Parliament.

Judges are now able to reinterpret domestic law to harmonise it with the European convention - even if the result is the opposite of what parliament intended.

Then there is the more empowered approach that judges are now able to take towards judicial review, the route by which the decisions of public bodies and government departments are challenged in the High Court, explains Stephen Grosz, partner in the public law and litigation department at London-based human rights specialists Bindman & Partners.

'There is now a greater effort to make sure that statutory powers are exercised in accordance with convention rights.

In certain circumstances, the Act has strengthened the extent to which judges are prepared to interfere with the exercise of administrative discretion.

Now they're worried not just whether something is unreasonable, but also if it complies with the convention rights and in particular the principle of proportionality,' says Mr Grosz.

In more specific terms, the Act has had its biggest impact on privacy law.

Judges have striven to strike a balance between the Act's guarantee of privacy and its guarantee of freedom of speech.

So far, though, the law appears to be fighting the corner of celebrities, placing the private interests of individuals above the interests of the public at large.

'In terms of the Act's impact on our privacy laws, so far its benefited people like Naomi Campbell and Catherine Zeta Jones,' says Louise Christian, name partner in the civil litigation department at London human rights firm Christian Fisher.

'And as far as its impact on criminal justice goes, the Act itself doesn't actually guarantee access to justice.

Curtailment of legal aid over the last few years means it is now difficult for people to even bring these cases to the courts.

Strasbourg has refused to rule that lack of access is in itself a breach of our human rights.

So the Act is a bit like an engine without a spark plug,' says Ms Christian.

Perhaps not surprisingly, the HRA has also had a huge impact on criminal law - specifically in the arena of prisoners' rights.

In May of this year, a decision in favour of the murderer Dennis Stafford opened the way for Moors murderer Myra Hindley to argue that successive home secretaries were acting beyond their powers by ordering that she spend the rest of her life behind bars.

In July, the prison service began to free 900 of some of the most troublesome inmates in England and Wales after a ruling that governors' punishment hearings were illegal.

However, the area in which the Act has arguably affected the most people is immigration law - specifically with regard to asylum-seekers.

Since its introduction, the Act has stigmatised as unlawful the holding of aspirant asylum seekers in detention centres.

And it declined to deport those individuals accepted to be a threat to the UK but exposed to risk of death in their country.

Yet human rights lawyers are adamant that the act is not being used to is full potential.

'I don't think the Act is working to open up important issues like it should have done,' says Daniel Machover, partner and specialist in prisoners' rights at London firm Hickman & Rose.

'The courts need to become bolder in their decision making.

Rulings are at present far too conservative.

For example, we lost the right to get prisoners the vote in Strasbourg.

In Canada, this particular issue was treated as an in-depth analysis and the process took a week.

But in this country the legal argument was disposed of in half a day.

There's a real distance between the forensic assertion in other countries and the culture and approach that we have here.

It is partly the fault of lawyers, who aren't pushing the arguments hard enough.'

Ms Christian adds that the HRA is simply a 'small first step'.

She says: 'In some ways, the Act is just window dressing.

The government now needs to set up a human rights commission.

The Act got the debate going.

But now we need more of a commitment from the government.

It is not enough just to enact a bit of legislation and then sit back and say "we now have human rights."'

Nevertheless, the Act has notched some notable victories in its first two years.

It is also worth remembering that the days when litigants had to go to Strasbourg to assert human rights claims are now over.

If rights are to be protected, say domestic judges, they should be protected here.

Yet the next few years are likely to throw up a harder test of this resolve.

The government's moves to allow a wide range of public bodies closely to monitor individuals' electronic communications, along with its White Paper on reforms to trial by jury, seem likely to become the next battlegrounds in the test of strength between ministers and judges.

However, both initiatives may take a back seat to the home secretary's tough new measures to counter terrorism.

The first chapter of the HRA may be written.

But we are a long way from reading the last word.

Scott Neilson is a freelance journalist