The Human Rights Act Becomes Law in the UK|
The following article appeared in the Times Newspaper on 3 October 2000...
by David Pannick, QC
In the House of Lords in 1997 Lord McCluskey unsuccessfully opposed the passage of the Human Rights Bill because it would provide "a field day for crackpots, a pain in the neck for judges and legislators and a goldmine for lawyers". The Human Rights Act 1998 came into force yesterday. Lord McCluskey's fears are unlikely to be realised.
The Act has three main provisions. "So far as it is possible to do so", courts will now be obliged to interpret legislation consistently with the European Convention on Human Rights. Where such a consistent interpretation is not possible, judges must apply the existing statute but can make a declaration of incompatibility, which will assist Parliament to decide whether to amend the law. Except where legislation compels otherwise, all public authorities must act compatibly with Convention rights.
Parliament has recognised that the United Kingdom can no longer remain immune from the basic constitutional principle adopted by almost all developed countries in the world, and which we exported to many countries of the Commonwealth on their independence, and which are contained in the European Convention on Human Rights as drafted primarily by British lawyers.
The principle is that all branches of government, including the judiciary, have a responsibility for ensuring that the law respects and protects human rights. Because judges must apply unambiguous legislation even though it offends against human rights, Parliament has the last word.
Some hopeless cases will be brought, indeed, some have already been threatened - such as one man's claim that "the Human Rights Act means the council must come and get my wheelie bin". But the Court of Appeal has made it very clear that it will take a tough line with litigants, and lawyers, who take unrealistic points. There will be some cases where established practices will be found to breach the rights to property, private life, and freedom of expression, and the other rights guaranteed under the Act. But judges and magistrates will not be waking up this morning cursing the fact that, from now on, they must secure a fair trial.
All the rights guaranteed under the Convention are a familiar part of the common law. And potential victims have long been entitled to bring a claim before the European Court of Human Rights in Strasbourg. With rare exceptions, English law and practice has withstood the scrutiny of the European Court. The Strasbourg court has failed to justify the concerns expressed in 1950 by Lord Chancellor Jowitt, who objected to the United Kingdom signing the Convention because it was "some half-baked scheme".
Opponents of the new Act have no coherent answer to the point that since individuals can make complaints to the European Court which gives decisions that bind the United Kingdom, it is plainly desirable to ensure that our own judges have the opportunity first to consider and apply Convention rights. If, as will usually be the case, our judges reject the complaint, this will strengthen the defence of the United Kingdom in Strasbourg if the complainant pursues the grievance. In those exceptional cases where a breach of the Convention is found, how much more satisfactory that the matter should be addressed without delay and without the need for our dirty laundry to be washed abroad. These practical points are the answer to latter-day Jeremy Benthams who complain that human rights are "rhetorical nonsense - nonsense upon stilts".
Human rights law can be politically controversial, as indicated by the extraordinary criticism in August of Cherie Booth, QC, by John Bercow, MP, Shadow Home Affairs spokesman, for writing a newspaper article explaining and supporting the 1998 Act. Bercow's concern, as expressed on the letters page (August 12), was that the wife of the Prime Minister had written "a political hack's statement of support" for legislation "from which she stands to gain financially". Bercow suggested: "The idea that any other lawyer, or even any other QC, would be able to have published in a national newspaper an article pressing the case for the Human Rights Act strains credulity". This piece is one of many such articles.
The truth is that the Act is welcomed by the overwhelming majority of lawyers of all political views, and none, not for financial reasons, but because it enhances the maturity of our legal system and offers our courts a greater potential to do justice, subject always to the overriding will of Parliament. Of course, the new Act will pose difficult challenges for all of us, judges, lawyers, politicians, civil servants and citizens. But so does anything worthwhile.
As Lord Woolf (now Lord Chief Justice) explained in a Privy Council judgment in 1993 on the application of the Hong Kong Bill of Rights, the problems "should be approached with realism and good sense, and kept in proportion". What could be more British than that?
The author is a practising barrister and a Fellow of All Souls College, Oxford.