WHEN THE HUMAN RIGHTS ACT COMES INTO FORCE IN 2000 IT WILL AFFECT LAWYERS PRACTISING IN EVERY SECTOR, WRITES DAN BINDMANWhen the Human Rights Act 1998 comes into force in the first half of 2000, citizens will have improved access to rights which the UK signed up to almost half a century ago when it ratified the European Convention on Human Rights (ECHR).Many civil liberties in the convention have been incorporated into domestic law by the Act.

These include the rights to life, a fair trial, and to privacy and family life.

Citizens will be entitled to freedom from slavery, torture and arbitrary arrest, as well as enjoyment of freedom of religion, expression and association.

Notably, however, the Act does not incorporate article 13 of the ECHR: the right to an effective remedy.The ECHR was adopted by the Council of Europe in November 1950 and has since been signed by 40 countries.

The UK signed up in 1951, but did not then incorporate it into domestic law.

In 1966, individuals were permitted to bring to Strasbourg cases against the UK state, which was bound to apply the European Court of Human Rights' rulings.

Under the Human Rights Act 1998, Strasbourg remains the court of last resort.The present Lord Chancellor, Lord Irvine, championed incorporation of the ECHR as soon as he entered office.

But he ensured during the Act's passage that the courts would not have the power to override primary legislation.

Where a statute is clear, but incompatible with the ECHR, the courts may only issue a declaration of incompatibility, whereupon the government would be expected to amend the law.The Human Rights Act received Royal Assent on 9 November 1998.

The first section to come into force was section 19, which requires secretaries of state to attach to every government Bill a statement declaring its compatibility with ECHR rights.

The section was activated by an order of Home Secretary Jack Straw last month, on 24 November.

The earliest the main body of the Act will come into force is January 2000, although it will probably be some months later.Despite its limitations, the Act is expected to have far-reaching effects.

In particular, public bodies, ranging from government departments to local authorities, will have to comply with the ECHR.

An education campaign is already under way within government, and the Lord Chancellor's Department has set aside £4.5 million for the training of judges and magistrates.

Areas of legal practice which could be affected range from crime to tax law and matrimonial to employment law.Solicitors also have an obligation to inform themselves of how the Act's provisions will impact on their practice areas: 'The Act will be ignored by the practitioner at his or her own risk because there will be very little in the working environment that will not be affected in one way or another.

If solicitors do not have an understanding of the implications of the Act, then of course they could face claims of negligence,' says Rodger Pannone, past Law Society President and chairman of the Society's international human rights working party.Most cases brought under the Act are likely to be in the field of criminal law, such as actions against the police under art 2, the right to life; art 3, freedom from torture, inhuman and degrading treatment; and art 5, freedom from arbitrary detention.

But the Act has implications across the practice of civil law as well.

John Wadham, solicitor and director of the civil rights group Liberty, says: 'It could appear in any kind of case, even in commercial cases, particularly where the government is involved, because of rights to the peaceful possession of property.

This is quite apart from the right to a fair trial, which potentially includes any litigation, including mediation, it seems to me.

So it's not just criminal lawyers who will need to understand the Act.'Solicitors should not delay in familiarising themselves with the Act, says Mr Wadham.

For example, he points out its commencement provisions are such that, while arguments under the ECHR might not be available now, they will be once the Act is implemented.

Depending on the circumstances of the case, it might be possible to use ECHR-based arguments later, in the Court of Appeal or the House of Lords, after the Act is in force.Immigration and asylum work is another area where the Act is likely to have a major impact.

Civil liberties solicitor Mark Phillips, of Birmingham firm Tyndallwoods, says the Act will bring an end to a period of 'artificial litigation' on rights issues.

During this time solicitors have had to persuade courts to accept arguments on the basis of a convention to which the UK was a signatory, but which judges were 'extremely reluctant' to incorporate.In immigration cases, the right to family life will have a bearing on cases involving same-sex relationships - which immigration officers have recognised only to a limited degree - as well as issues to do with uniting more traditional families, says Mr Phillips.

Other cases likely to arise under the Act concern the right to a fair trial.

'There are a number of immigration decisions where there is no right of appeal, or very short time limits which make it difficult to present a case.

And there is no legal aid to cover the costs of representation at immigration appeal hearings.'Mr Phillips points out that - unlike in Northern Ireland - the government has declined to establish a Human Rights Commission to bring cases under the Act in Britai n, making it all the more important that solicitors understand where it could be applied: 'There won't be a commissioner to take a pro-active approach to picking out those areas in which British laws are not in concert with the convention.

So it will be up to lawyers to pick out those things for their own individual clients.'Not all human rights specialists are satisfied with the extent to which the Act incorporates human rights.

They warn that the ECHR is old-fashioned and in some respects does not go far enough.

Liberty has urged the government to allow individuals to appeal to the United Nations under its version of the convention, the International Covenant on Civil and Political Rights.Civil liberties specialist Louise Christian, of London firm Christian Fisher, agrees.

The ECHR should not be seen as the last word in human rights, she warns.

For instance, the convention would not have helped the family of Stephen Lawrence, the inquiry into whose murder established police had failed to investigate and prosecute properly, she suggests.Ms Christian is also concerned both over the extent to which the lower courts will take the ECHR into account and over the impact of the government's legal aid reforms.

She says that many human rights actions could be classified as personal injury cases, which will no longer qualify automatically for legal aid if the Access to Justice Bill - published last week - is enacted.

Low damages awards could discourage the use of conditional fee agreements in complex human rights cases, she argues.Nicholas Humphrey, chairman of the Solicitors Human Rights Group (SHRG) is also doubtful that judges, particularly in the higher courts, are likely to interpret convention rights sufficiently widely.'Judges have been extremely slow to adapt to European law.

They have been very tentative, very reserved about upsetting the sovereignty of Parliament in upholding human rights norms,' he says.

Mr Humphrey acknowledges that incorporating the ECHR is a 'major first step' and that training of judges could help, but predicts that it could taken 'ten to 15 years' before the judiciary embraces a new 'human rights culture'.Of greatest concern, from Mr Humphrey's point of view, has been the lack of interest so far among solicitors in developing an awareness of human rights.In the past three months there has been a 'very disappointing' attendance at human rights courses run by the SHRG, he reports.

Part of the reason for this, he suggests, is that recently solicitors have been 'too run down to take note' of the obligations and opportunities presented by the Act.MIKE YUILLE DESCRIBES HOW IN-HOUSE LAWYERS IN THE PUBLIC AND PRIVATE SECTORS ARE PREPARING FOR THE HUMAN RIGHTS ACTThe Human Rights Act 1998 is likely to hold some surprises for the private sector, and in-house lawyers are now gearing themselves up to prepare for it.The degree to which the Act, which incorporates the European Convention on Human Rights and received Royal Assent last month, will affect business is still uncertain.

Business groups like the Confederation of British Industry are now starting to consult their members in order to obtain a fuller understanding.

However, a large number of lawyers strongly believe that many areas of activity could be affected.It is important to recognise that the ECHR applies only to actions taken by a state - that is to say public authorities.

But its effects do not stop there.

Liberty, the civil liberties body, warns that 'private individuals and companies will have to take the ECHR into account because the c ourts will be obliged to interpret the law so as to conform to it wherever possible, and the courts will have to comply with the ECHR themselves'.Good preparation starts by assessing the possible risks faced.

Here, lessons can be drawn from the public sector, where the effects of the ECHR may be most keenly felt.

Philip Thomson, head of legal at Essex County Council, says the Act will have a 'major impact in certain areas, from employment through to functions like social services, where so many decisions are made that can have an impact on the rights governed by the Convention'.Councils expect legal challenges under the Act, particularly relating to the employer/employee relationship.

'There's a huge learning process to be undertaken.

As far as lawyers are concerned, we need to know about it now, and the Act is on our agenda,' says Mr Thomson.Lawyers in central government are also examining the significance of the imminent Act for staff.

A Home Office spokesman said: 'Government departments and other public authorities will have to comply with the ECHR rights in everything they do.

This will affect not only the preparation of legislation but also the operation of administrative procedures.

It will be important to put the time between now and the implementation of the Act to good use in reviewing legislation and procedures for compatibility with the ECHR.And it will be important to train staff in an awareness of the ECHR and its associated jurisprudence.

The same will apply to other public authorities to the extent that they are exercising public functions.'Lawyers at British Telecom, which prides itself on ensuring it keeps abreast of the law, are keeping a keen eye on the Act.

Alan Whitfield, head of BT's legal department, says the Act is 'potentially of great significance'.

Public service companies like BT and the privatised utilities may be particularly affected.

'With utilities, I can easily see their customers relying on the Act in certain circumstances where legislation setting up a privatised industry seems to be on the side of the company,' says Mr Whitfield.

'It's undoubtedly going to be used.'BT and the utilities may well run into legal strife under the Act when attempting to use their compulsory purchase powers to buy land in order to lay cables or pipelines, he adds.Some organisations will, by virtue of their business activity, face more complex issues under the Act.

Media businesses such as newspapers, broadcasters, and even advertising agencies - as well as those collecting data on individuals such as credit agencies - could face new types of privacy infringement claims under article 8 of the ECHR.The BBC has already looked in depth at how it may be affected.

Although a public body, it shares the same concerns as other media groups and, by virtue of its sensitive position as Britain's public sector broadcaster, has a duty to be especially diligent.Katherine Dumbleton, head of the BBC's regulatory legal department, says the Act will bring into the county courts the sort of litigation previously expected only in the High Court.

'Given that the remedies will be available in all courts, including the county courts, this will lead to resource implications for us.

We will have to be ready to react throughout the UK.' Ms Dumbleton expects some increase in the volume of court activity, too.

'I do think it will have a huge impact until the courts begin to make determinations.'So how do in-house departments prepare themselves - and their clients - for the new law? Paul Gilbert, head of legal at mortgage lender Cheltenham & Gloucester and chairman of the Law Society's commerce and industry group, says in-house lawyers' 'compliance role' means they must alert their clients to the hidden dangers.'This means mobilising the usual machinery, such as training seminars,' Mr Whitfield at BT says.

'You can't teach people the accumulated law on the European Convention.

But you can make sure that the principles enshrined in the Act are built in to the way that the company does its business.

It can be incorporated into corporate governance and the management culture.'However, Mr Whitfield's team, aided by its 12-strong group of European law specialists will be ensuring there is 'general education' for managers, partly through BT's two training colleges at Milton Keynes and Stone, in Staffordshire.

At the BBC, seminars and workshops will be introduced next year, before the Act finally comes in to force in early 2000, and the guidelines for producers will also be reviewed.Beyond individual companies, industry regulators are also mindful of the new law.

The Financial Services Authority watchdog, for example, is ensuring that its disciplinary powers under the forthcoming Financial Services and Markets Bill, due to come into force later in 2000, comply with rights in the ECHR as framed in the Act - particularly the right to a fair trial under article 6.Despite the hype over the Act, many well-run businesses may have little cause for undue worry.

Paul Gilbert says 'the biggest area to be affected is likely to be the employer/employee relationship.

But I think the effect on business generally is going to be fairly limited.

There is always a potential to over-react with any new legislation.' He adds that 'much of the tenor of the Act is directed at achieving things which decent companies are by and large trying to do anyway'.On the last point, Mr Whitfield agrees.

'I would suggest that a well-managed company which respects its stakeholders is not going to have too many problems with this.

It's a question of practising risk management through good governance.'A last lesson from the public sector comes from Bethan Evans, chair of the Law Society's local government group and head of legal at South Gloucestershire council.

'The Convention and Act should not really be seen as a burden at all.

Looking at them in a positive light, they can be a yardstick by which to measure our performance against an aspirational standard.'JOHN WADHAM EXAMINES SOURCES OF FUNDING, INCLUDING LEGAL AID AND CONDITIONAL FEES FOR CLAIMS UNDER THE ACTThe European Convention on Human Rights (ECHR), which will be incorporated into domestic law by the Human Rights Act early in 2000, will require the government to look at the provision of legal aid and legal services in a different way than it has in the past.

Some of this new thinking has already surfaced in the new white paper.

The key test for the provision of legal advice and representation in the future will be whether it is necessary to provide such a service to ensure access to the courts in civil cases, or to ensure the right to a fair trial (both of which are contained in article 6: the right to a fair trial).Any new system must ensure that article 6 rights are respected.

The Human Rights Act provides that any public authority which fails to comply with any ECHR right is acting unlawfully, unless compelled to act in that way by statute.

This means that both the organisations set to replace the Legal Aid Board - the Legal Services Commission and the Criminal Defence Service - must not deny an individual's access to cour t or the right to a fair trial and have positive duties to promote both of these provisions to them.

Furthermore, as the majority of the rules constraining the provision of legal aid will be contained in secondary legislation (or contracts) the court will have a duty to disapply those rules if it is necessary to comply with article 6.

The creation of a 'higher order law' in the Human Rights Act will allow those denied rights to challenge this denial, and it will be no defence that the regulations, the contract or the legal aid handbook do not allow it.The right to legal aid in criminal cases is specifically provided for in article 6(3)(c).

The test for grant is the same as in the Legal Aid Act: whether it is 'the interests of justice'.

After the Human Rights Act comes into force, there will be more challenges by defendants, not only to the admissibility of evidence obtained in violation of the Act, but also of the lawfulness of the conviction itself.

For instance, these issues may arise because evidence was obtained in violation of the right to privacy, or may apply to offences such as section 5 of the Public Order Act, which, because there is no risk of imprisonment, often does not attract legal aid.

Where such a case raises a ECHR right other than article 6 in a direct way legal aid will have to be granted to ensure that the defendant has access to ECHR case law and can argue, for instance, whether or not his conviction for exercising a right to protest would be 'necessary in a democratic society'.At a more fundamental level, the restriction of choice of lawyer by exclusive contracting may, if narrowly implemented, violate the right of the defendant to choose his or her own lawyer.Before turning to civil legal aid, it is important to note that the categorisation by current domestic law of cases into civil and criminal will not be the last word once the Act comes into force.

Some 'civil' matters such as committal proceedings in the magistrates' court for failure to pay council tax, maintenance and fines have be defined as criminal for the purposes of the ECHR.

As a result the right to legal aid has been clearer than it might be.In civil cases, the question as to whether legal aid is necessary in any case will depend on whether the individual can have a fair trial or not without the assistance.

Central to this will be the concept of 'inequality of arms' between the unrepresented individual and the other party.

jWhere the other party has considerable resources, where the law or facts are complex or where the disparity prevents a fair trial, legal aid will need to be granted.

Where other ECHR rights are central to the litigation, legal aid is more likely to have to be granted.

This priority is reflected in the white paper because Human Rights Act cases will be included both because they are 'of fundamental importance to the people affected', and because they involve 'a wider public interest'.Nevertheless, the new system will require more planning and the development of priorities.

There is a risk that many individual cases will fall through the net, and in some of these case the absence of legal aid will violate article 6.

The new system must have ways of ensuring that this does not happen.

There will need to be a system of obtaining legal aid to challenge the decision of the Legal Services Commission not to grant legal aid.

Conditional fees will of course provide an alternative way of providing services, but if no solicitor wished to take on a particular case the onus under the Human Rights Act will remain on the commission t o provide assistance.With the development of exclusive contracting and fixed budgets, the onus in relation to provision of legal aid will switch from the new legal aid bodies to the provider.

It may be that the refusal by the provider will create remedies under the Human Rights Act, and for these purposes the provider - the solicitor's firm - will be the 'public authority'.On a personal note, I am glad that the government has recognised in the white paper that an effective advice sector is a necessary part of any comprehensive legal service and that in particular, funding needs to be available to 'second tier' agencies that can advise the advisers. NEGLIGENCE CLAIMS AGAINST SOLICITORS BY DAN BINDMANThe potential for negligence claims being brought against solicitors who fail to advise clients on the legal implications of the Human Rights Act 1998 is an issue that has been raised frequently in discussion surrounding the Act.

The Law Society's professional ethics team acknowledges that the Act has an 'ethical dimension', but only in the sense that this is true in relation to other Acts of Parliament.

The Solicitors Indemnity Fund (SIF) has taken a similar approach.

But it says its should be able to identify specific areas of risk from the Act closer to its implementation date, in the same way that potential areas of risk arising from the tight timetable of the Woolf civil justice reforms - due begin in April 1999 - have been identified.

'We expect most claims to arise from ignorance of the law, but that would apply to any major piece of legislation,' says Andrew Nickels, the SIF's head of risk improvement. THE LAW SOCIETY'S DISCIPLINARY ROLE: IMPACT OF THE HUMAN RIGHTS ACT BY JESSICA SMERINThe committee has been considering whether the Human Rights Act will impact upon its current decision-making processes.

Paul Pharoah, the immediate past chairman of the committee, explained to the Gazette: 'The Act contains practical provisions which require certain conditions of treatment when dealing with civil rights.

There are potentially implications for the way in which the committee's hearings are conducted.In practice there are hardly ever oral hearings for the compliance and supervision matters, because of administrative issues.

The system is creaky enough as it is, so if we had oral hearings it would be difficult to cope.

But the law of this country recognises that it's possible to have a fair hearing without having an oral hearing - and that this may be necessary for reasons of expediency - and I understand the position of the European Court to be the same.There is another requirement in the Act that when civil matters are being adjudicated on, there should be a public hearing.

Proceedings of the Solicitors Disciplinary Tribunal (SDT) are held in public but the complaince and supervision committee is not open to the public and its decisions are only known to the complainant and the solicitor concerned.

But I think the position is that the law in Europe, like our own law, does not have an absolute requirement to hold public hearings.'The Office for the Supervision of Solicitors (OSS) has sought outside legal advice on the above and other points.

The compliance and supervision committee will be considering this advice in the next few weeks.The SDT put in train measures to comply with the Convention during the 1980s and will not be updating its procedures any further as a result of incorporation.THE HUMAN RIGHTS ACT 1998: RECENT DEVELOPMENTS BY GEOFFREY BINDMAN AND STEPHEN GROSZThe Human Rights Act received Royal Assent on 9 November after completing its report stage in the House of Commons in October.

Although a number of attempts were made to persuade the government to accept changes in the Bill, it has remained substantially in the state in which it was first introduced.The main provisions of the Act will not come into force until the Home Secretary, Jack Straw, makes the appropriate order.

No date has been announced but it is expected not to be earlier than April 2000, largely because of the need to educate the judiciary in its new responsibilities.For this purpose, the Treasury has provided a sum of £4.5 million for the years 1999 and 2000.

From this total, the Lord Chancellor, Lord Irvine has announced that £1.6 million will be the Judicial Studies Board's cost of training judges; £1 million will be the court service cost of providing cover for judges in training; £1.6 million will be the Magistrates' Courts committees' cost of training for magistrates; and £0.3 million will cover the cost of training chairmen of tribunals.The training arrangements for judges are to be directed and supervised by a committee of the Judicial Studies Board under the chairmanship of Lord Justice Sedley.

Lord Irvine said on 16 November that he had 'written to all full-time judges to signify the vital role the judiciary will play in bringing rights closer to every citizen'.The planning process which he outlined covers not only judicial training but the provision of access for all judges, magistrates, and tribunal members to the case law of the European Convention on Human Rights institutions, either through textbooks or information technology.However, no funding has been provided for educating other public authorities which will be bound to comply with the Human Rights Act and the ECHR, nor indeed for informing and educating the public in their new found rights.The second reason for the long delay is to enable government and public authorities to put their houses in order as far as possible before they have to face the prospect of legal challenge.

The Home Secretary is establishing a task force to assist the government in identifying and removing incompatibilities in primary and secondary legislation, practice and procedure.

The emphasis is strongly on the desirability of minimising litigation by pre-emptive action.

This makes good sense, both in financial terms and because litigation and the threat of litigation are plainly insufficient to effect the cultural change in the public service which the government is rightly seeking.But there is another side to the coin which has been woefully neglected.

The public must have effective means to assert its new rights.

The arguments for a Human Rights Commission are overwhelming, yet the latest announcements from the Lord Chancellor and Home Secretary make no reference to it.

Nor has anything more been said about funding for human rights cases either inside or outside the legal aid scheme.

All reference to a public interest fund, of which government spokesmen made such play during the passage of the Bill, has disappeared.

These are serious omissions which undermine the credibility of the brave new human rights culture which the government has proclaimed.Three provisions, sections 18, 20, and 21(5), came into force on the passing of the Act.

Section 18 enables a Lord Justice of Appeal, High Court, or circuit judge in England and Wales to accept office as judge of the European Court of Human Rights without relinquishing his seat on the domestic bench.

Equivalent provisions are made for Scottish and Northe rn Ireland judges.

The judge will retain his or her pension, but cannot expect his salary to continue while drawing a salary in Strasbourg.

Under this provision Nicolas Bratza, the first judge of British nationality in the new unified European Court of Human Rights, was appointed a High Court judge last month.Section 20 provides that powers given to ministers by the Act are exercisable by statutory instrument and for such statutory instruments to be laid before Parliament.Section 21(5) is much the most interesting of this trio.

In accordance with the sixth protocol to the ECHR, it removes the last remaining cases of capital punishment in peace time from the statute book.

It is entirely appropriate that this should be done in the first Human Rights Act, and should be enacted without delay.On 25 November, the Home Secretary also announced the bringing into force of section 19 of the Act, which requires ministers to certify, in respect of any government Bill, whether it complies with the ECHR rights to which the Act will give effect.

So far as all future legislation is concerned, immediate implementation of this provision will create a strong presumption of compliance even before the bringing into force of section 3, which will oblige courts 'so far as it is possible to do so', to read and give effect to legislation in a way which is compatible with ECHR rights.The commencement provisions of the Act are already creating a conundrum for the courts.

Section 7(1)(b) provides that a victim of an unlawful act by a public authority may rely on an ECHR right 'in any legal proceedings', and section 22(4) provides that this applies to proceedings brought by or at the instigation of a public authority 'whenever the act in question took place'.

An ECHR defence is not available before courts dealing with such proceedings now.

But the defence will be available in any appeal heard after commencement.For any court whose decisions are subject to appeal - particularly a criminal court - this poses an immediate dilemma which will become more acute as implementation approaches.