INCORPORATION OF THE EUROPEAN CONVENTION ON HUMAN RIGHTS WILL PROFOUNDLY AFFECT LAWYERS, PREDICTS FIONA BAWDONJust about everyone in the legal profession is likely to be affected by the government honouring its manifesto commitment to incorporate the European Convention on Human Rights (ECHR) into domestic law.

The Human Rights Bill, which will incorporate the European Convention on Human Rights into domestic law, received its second reading in the House of Lords last week.Some observers are predicting that the existing lines between human rights lawyers and the rest will become increasingly blurred as all lawyers have to make it their business to know about this area of law.Lawyers at every level will be affected.

The College of Law is planning to include more teaching on the convention in next year's courses, and the Judicial Studies Board is organising training for all full- and part-time judges.

The country's 30,000 lay magistrates and all those chairing tribunals will also receive training.A look at what is covered by the convention shows why its influence is likely to be so pervasive.

Among areas covered are: right to life (article 2), protection from inhuman treatment (article 3), free dom from forced labour (article 4), right to liberty (article 5), right to fair trial (article 6), respect for privacy (article 8), freedom of thought and expression (articles 9 and 10), freedom of peaceful assembly (article 11), effective remedy before a national authority (article 13), freedom from discrimination (article 14), and right to education (article 2, protocol 1).Conor Gearty, professor of law at King's College and author of a book on the convention (European Civil Liberties and the European Convention on Human Rights: a comparative study published by Kluwer), was previously a vociferous opponent of incorporation, saying it invested too much power in the judiciary.

Now that incorporation is almost upon us, he says the onus is on lawyers to make it work.

The opportunities for doing justice will definitely be there,' he says.

There will be huge opportunities for lawyers to exploit its terms to the benefit of their clients -- something he says has yet to be fully recognised.

While the Labour government may be keeping debate about incorporation 'at a high level of abstraction,' the reality is that it will transform the legal landscape.

The change will be 'seismic,' Professor Gearty says, adding: 'It's massive.

For example, criminal lawyers haven't even begun to consider the impact of articles 5 and 6, which could affect the law relating to detention and remand, and a whole range of police powers.Lawyers will have to make sure they know whether there was, for example, a decision in Denmark in 1968 which might have a bearing on their client's case, Prof Gearty explains.

Most lawyers are, however, blissfully unaware of the bombshell about to land -- a trainee conference organised by the Law Society on the subject was scrapped due to lack of interest when only a dozen lawyers booked.

Jennifer McDermott, a partner in media law and judicial review at City firm Lovell White Durrant, agrees that lawyers will need to do 'a lot of cramming.' A member of Justice's expert panel on incorporation, Ms McDermott is a strong supporter of Labour's plan to 'bring rights home.' Although she does not talk of its impact in quite the profound terms used by Prof Gearty, she does acknowledge it will have huge significance, and not just for aggrieved individuals.

'Companies have human rights, too,' she says.

Rights which they, and their lawyers, will want to see enforced.

For example, Ms McDermott says newspapers and advertisers will be interested in the right to free speech (and privacy in the case of the former); any company being threatened by the windfall tax might look closely at article 1, protocol 1, which gives the right to peaceful enjoyment of possessions.

Regulatory bodies, such as the Law Society or the General Medical Council, may find themselves being challenged under article 6, which covers due process.

Other lawyers predict Anton Piller orders will rapidly come under scrutiny.

But Ms McDermott says there are shortcomings in the current Bill, most notably the failure to give judges power to strike out any new legislation which goes against the provisions of the convention -- a power which judges have in some other countries.

All judges here will be able to do is point out any inconsistencies and hope the government of the day amends legislation accordingly.Alastair Logan, of the Logan Partnership and the solicitor who acted for the Guildford Four, has what he says is a simple solution which would stop inconsistencies arising in the first place.

'I hope the government will set up a body, separate from parliamentary d raftsmen, to review legislation before introduction,' he says.

He suggests the body could operate with just a team of three, so long as, between them, they had the skills typically embodied by an ombudsman, a law commissioner and a draftsman.Of course, rights in theory are one thing, enforcing them in practice is another.

Stephen Grosz, a partner at Bindman & Partners who is also on Liberty's expert ECHR panel, fears that government moves to restrict legal aid may weaken its impact.

Judicial review is one of the areas where legal aid will remain, but if proposals to raise the merits test threshold to cases with a 75% change of success go ahead, this will cause problems.

'How often is Joe Soap in the high street, who hasn't done one of these cases before, going to be confident that it has a 75% chance?' he says.Jennifer McDermott agrees.

It will be difficult for lawyers to gauge prospects for success accurately in such unchartered territory, she says.

Mr Grosz also rejects the idea that conditional fees will be an adequate substitute in many human rights cases.

He has already taken a handful of such cases on a no-win, no-fee basis under the existing provisions but says human rights cases do not lend themselves well to this method of funding.

Not least, he says, because they often don't involve any monetary compensation, and where compensation is awarded, it tends to be quite low.JONATHAN AMES TALKS TO SOLICITORS WHO ARE ALREADY HEAVILY INVOLVED IN HUMAN RIGHTS AND CIVIL LIBERTIES WORK IN THE UNITED KINGDOMHuman rights and civil liberties lawyers have been going quietly about their business with bemused smiles during the last few weeks.

Suddenly, the Human Rights Bill has made this field sexy for politicians and national newspaper editors.The Bill is certainly a new development, but lawyers have been plugging away at civil liberties issues in the UK for years.

Indeed a small cadre of practitioners has evolved, with only two or three true specialists in any one field.Because of the occasionally high-profile nature of one-off civil liberties cases, many of the lawyers have become some of the most identifiable in the profession.

Big players in the field include London-based lawyers Gareth Peirce and Fiona Murphy at BM Birnberg & Co, Geoffrey Bindman, Stephen Grosz and Michael Schwarz of Bindman & Partners, Louise Christian of Christian Fisher & Co, Larry Grant and Sarah Ricca of Simons Muirhead & Burton, Jane Coker of Jane Coker & Partners and Mark Stephens of Stephens Innocent.In the regions, perhaps the biggest name is Alastair Logan of the Guildford-based The Logan Partnership, who acted for the Guildford Four and the Maguire Seven.

Other renowned provincial players are Steven Jonas of George Jonas & Co in Birmingham, Elkan Abrahamson of Edwards Frais Abrahamson in Liverpool and Ruth Bundey of Harrison Bundey in Leeds.In addition to the individual practitioners, there are also several organisations which cover the subject in varying degrees.

The most prominent are Liberty (formerly the National Council for Civil Liberties), Justice and the Howard League for Penal Reform, which deals exclusively with matters concerning prisoners and probation.

There is also an umbrella body of practitioners called the Solicitors Human Rights Group.The striking aspect of civil liberties in the UK is that the term means something different to almost all those who are acclaimed specialists.

As Mr Stephens explains: 'This is a multifarious feast of a subject.

For some lawyers it means immigration issues, for others it means criminal issues such as the right to a fair trial and the right to silence.

As for someone like me it means issues such as freedom of speech and due process.'Debate also exists over whether there is a difference in the domestic context between civil liberties and human rights.

Ms Christian is adamant that no distinction should be made.

'Human rights is an issue which is often talked about as though it is only applicable to things that happen abroad,' she says.

'But people in the UK are becoming more aware of human rights because of the Bill.'But Mr Stephens maintains: 'Civil liberties are the froth that sits on top of human rights.' In his analysis, human rights form the basic core of the subject.

'Human rights attach to us as sentient human beings,' he says.

'They are the rights we have regardless of where we live in the world.'Liberty director John Wadham has a more precise definition.

He maintains that traditionally in the UK civil liberties have been interpreted as an attempt to keep the area over which the State has no influence as large as possible.

In a way, civil liberties are 'negative' rights because they are unstated freedoms which are allowed because there is no legislation prohibiting them.'The way civil liberties disappear is a little bit at a time as they are eroded by Parliament,' says Mr Wadham, explaining that governments legislate to remove rights where the law has been silent in the past.Human rights, on the other hand, according to Mr Wadham, have a much more positive and active element to them.

Which is why his organisation has adopted a new official catchline: 'Liberty -- protecting civil liberties, promoting human rights.'As an example of how ordinary citizens need active human rights protection, Mr Wadham points to the situation regarding telephone tapping.

There is no common law right protecting citizens from unfair and unwarranted bugging because telephones did not exist when the law on eavesdropping developed.

'That is why we have to have specific protective legislation against it,' he says.Mr Wadham sees two broad areas where human rights should be promoted.

The first concerns discrimination and equality issues.

Liberty maintains that anti-discrimination provisions covering homosexuals are wholly insufficient and that the protection already existing for ethnic minorities, the disabled and women is still inadequate.

Indeed, while generally supportive of the European Convention on Human Rights and its incorporation into UK law, Mr Wadham says its provisions regarding the right to freedom from discrimination 'are not much to write home about.'The second area on which Liberty is focusing its attention is the criminal justice system.

Mr Wadham says the main concern is that governments find themselves being pushed into hastily drafting ill-conceived legislation to calm public panic usually driven by the media.

An example is the current furore over sex offenders.

Mr Wadham points out that while sex offenders have committed horrendous crimes, once they have served their sentences, their civil liberties are just as valid as the rest of society's.

Nonetheless, says Mr Wadham, there is a danger of the government making policy and passing legislation which would infringe on certain individuals' civil liberties on the back of a media panic.Hastily drafted legislation can also have the unintentional impact of restricting civil liberties.

Mr Wadham points to the Protection from Harassment Act 1997, which was intended to protect people from the unwanted attentions of so-called stalkers.

Ironically, the only two injunctions obtained so far under provisions in the Act have been by fur farmers and animal testing laboratories to restrain the activities of animal rights activists.As Mr Stephens has pointed out, other lawyers see different human rights priorities.

Geoffrey Bindman focuses on the current debate over privacy.

He suggests that developing the case law under article 8 of the ECHR is the best way of resolving the matter.

Although Mr Bindman acknowledges there will always be a delicate balance to strike between individual rights and the right of the press to report matters in the public interest.

Ms Christian cites three main areas: actions against the police, including deaths in custody; refugee issues generally; and health and safety at work, which, she readily acknowledges, is not an area often associated with civil liberties.Ms Christian also sounds a warning over the government's plans for a radical overhaul of the legal aid system.

Article 6 of the European Convention on Human Rights, she says, guarantees a right of access to the courts.

Ms Christian says: 'There is great concern amongst lawyers about all the clients who won't be able to have access to the courts because of the cuts in legal aid.

For example, death in custody cases often don't involve large money claims because the victims are often young men who don't have any dependents.

It is unlikely that lawyers will want to take on those cases on a conditional fee basis.'Indeed, Ms Christian predicts that the government could be in breach of article 6 with its legal aid proposals and, ironically, those proposals could be involved in the first challenge under the new legislation.ROBERT VERKAIK EXAMINES THE WAY IN WHICH BRITISH LAWYERS ARE WORKING TO IMPROVE HUMAN RIGHTS INTERNATIONALLY.Many young solicitors joining the profession hope to use their skills in the protection of human rights.However, given the financial debts with which many now leave law school, and the harsh reality of a competitive job market, it is hardly surprising that some end up working for City law firms advising multi-national companies with less than perfect human rights records.This year marks the tenth anniversary of the establishment of a collective body of London law firms, which gives many City lawyers a second chance to live up to their ideals.

Called the Caribbean Death Row Panel, it has proved to be one of the most successful means of offering 11th-hour advice and representation to men facing the death penalty in Jamaica, Trinidad and Tobago and the Bahamas.Cases are either allocated to the 70-member law firms by the panel, via the Jamaica Council for Human Rights, or come directly from the prisoner.Since 1987, Clifford Chance, one of the founding members firms, has acted for more than 24 men on death row in either Trinidad, the Bahamas or Jamaica and has a further 12 cases which are on-going.

Partner Michael Smyth co-ordinates the law firm's contribution to this work.

Mr Smyth explains: 'The reason an initiative was established ten years ago was because these men in some instances were being hanged without any or inadequate legal representation.'Mr Smyth says a point was reached at the end of the '80s when significantly more than 100 Jamaicans were languishing on death row without a UK legal representative.

Now at any one time that number is in single figures.Mr Smyth adds: 'Surprising as it may seem in most instances, this case work is not time critical, but there have been dreadful incidents in the past where lawyers have received f axes saying: 'Due to die tomorrow.

Please help.'Last year, Thomas Reckley, a death row prisoner represented by Clifford Chance, lost his legal battle to live and was hanged in the Bahamas.

Mr Smyth comments: 'The fact that the judicial committee of the Privy Council had made some very important pronouncements about the operation of the prerogative of mercy was obviously of no comfort in circumstances where Mr Reckley's petition was lost and he was subsequently executed.'All lawyers doing this kind of work must be prepared for the possibility that their clients have to die a sometimes brutal death.The majority of the hearings are in front of the Privy Council following unsuccessful appeals to the local appellate courts in the Caribbean.

If the Privy Council appeal fails, it is still possible to petition the United Nations Human Rights Committee in Geneva.

Most of the London lawyers on the panel are civil litigators, although there are a number who practise in other areas such as commercial property or intellectual property.These lawyers rarely meet the condemned man.

Mr Smyth says: 'You may handle the case of a prisoner for some years where the stakes are as high as they can be and you may never once speak to him, communicating only by correspondence.

This is of course very unsatisfactory but part of the territory.'Because under medieval law Privy Council agents must be located a certain number of miles from Charing Cross, the panel is solely comprised of London law firms or London offices of regional firms.

Clifford Chance and Holborn-based solicitors, Simmonds Church Smiles, is an example of the disparate make up of the panel.

Simmonds associate solicitor Chris Barber attended the inaugural meeting of the panel ten years ago.

'I had known there was a problem in relation to Jamaica but I don't think I appreciated the extent of it,' he says.Because of the limited resources that the smaller firms can bring to bear to the Caribbean question, Mr Barber welcomes the lead taken by the City firms in running the panel.

He explains: 'It's only the City law firms on the panel which could provide the secretariat services.

Firms like ourselves would not have the financial where-with-all to do it.' Mr Barber's firm has since acted on three Caribbean death row cases.

In one of them, concerning a Jamaican, the firm had to advise that there were no grounds of appeal because the defendant, accused of murdering his wife by setting fire to the house, was seen running away from the building with a petrol can.

In the second case, the defendant was acquitted and in the third, the defendant had his death sentence reduced to a life term of imprisonment.The panel is not the only example of how UK lawyers are getting involved in international human rights.

Amicus is a group of British lawyers which was recently set up to assist US attorneys defending people charged or convicted of capital offences.

To that end, Amicus Capital Legal Assistance hopes to send junior lawyers from the UK to do internships in offices in the US.

This week, the group is holding the first of a series of lectures on relevant international and US law.A number of firms are also representing relatives of German Jews who have claims against Swiss banks for gold that was placed for safe keeping during the Nazi tyranny.

Other UK lawyers are working for the international tribunal investigating war crimes carried out in the former Yugoslavia.Andy McEntee, chairman of the Amnesty International lawyers network, has detected a growth in the number of solicitors a pplying for Amnesty staff positions or membership of the network which supports human rights around the world.

This work ranges from writing letters to drafting affidavits and representing torture victims in foreign courts.

Last week, Mr McEntee gave a talk to 30 law students, all aspiring human rights lawyers, attending the College of Law in Guildford.

He advised them: 'There is no particular set route to go down.

It will depend on the individual, their expertise and experience.

But one message is pack in your job as solicitor and go work in human rights for real if you want to do it properly.'Mr McEntee says it is preferable for individual lawyers rather than their firms to form relationships with clients because there is a much stronger bond and greater continuity between the client and the lawyer.In many international human rights cases, it is the advocate who steals the headlines.

Nearly all the advocacy at the Privy Council, and in many of the other forums for the determination of international human rights, is undertaken by barristers, instructed by solicitors.Peter Duffy, QC, a former international chairman of Amnesty International and a member of the panel of experts for the Council of Europe, is well known for his work in the field of international human rights.

He maintains strongly that the dual English legal system provides a sound basis for representation in international human rights cases.

'The solicitor has got the infrastructure to keep much better records than we can at the Bar.

It's a very efficient and effective partnership.' Moreover, the dual system may be one of the reasons why a growing number of foreign nationals prefer legal representation by UK lawyers.

It's reported that the quality of work from UK and Irish lawyers is of a different calibre to what you find in other countries, certainly where you have a totally fused profession,' says Mr Duffy.All lawyers working on cases involving international human rights must respect the rule of law in national states.Says Mr Smyth: 'The panel has traditionally eschewed any political perspective.

We all know that the reality is that in violent countries like Jamaica there is a massive popular support for the death penalty.

We are very anxious not to be seen to be on either side of that debate.'NOTES