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Preparing for the Courts
Three people explain their own Human Rights cases
 real 28k

Is the Act right for the UK?
Experts debate on the BBC's Broadcasting House
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Sunday, 1 October, 2000, 16:52 GMT 17:52 UK
Human Rights Act: A social revolution?
A protester and a riot police officer look each other in the eye
Rights and responsibilities: Balances built into legislation
The Human Rights Act has come into force throughout UK law - BBC News Online explains what it will mean for our lives.

Same-sex marriages, a final blow for school uniforms and complete chaos in the courts as offenders walk free: That's what the Human Rights Act means, according to some.

But while the Act will actually be a little more prosaic, its impact will amount to perhaps the most significant change to British law and society since the introduction of universal suffrage.

It was important to bring these rights home - it's not about new rights, it's about making them more accessible

Home Secretary Jack Straw

Fifty years after the UK helped write the European Convention on Human Rights, the government has reworked the state's relationship with the people by introducing its principles into British law.

The result is that everyone has the power to challenge public authority in the UK's own courts if they believe that a basic right has been breached.

The Human Rights Act, which does not include all of the European Convention, protects rights under three broad categories:

  • Fundamental rights - such as to life
  • Procedural rights - such as to a fair trial
  • Qualified rights - such as to freedom of expression

    A number of test cases are already being prepared and there are reports that the government has set aside up to 40m in legal aid to deal with them.

    Planned cases include a challenge against the Prison Service over a death in custody (alleged breach of the right to life), action against a noisy motor racing circuit for allegedly breaching the right to enjoy property; and the forthcoming trial of former MI5 officer David Shayler who is planning to use the Human Rights Act as a defence.

    Long trip to Strasbourg

    British citizens have been able to take human rights cases to the European Court in Strasbourg since 1966.

    It is a long and expensive process that has often been attacked for appearing to be "Europe" imposing its will on the UK.

    The 1950 Convention, developed after the horrors of World War II, sought to protect the rights of those who had suffered at the hands of the state.

    In the intervening years, society has changed and now many private organisations which carry out the work of public bodies, also fall under the scope of the law.

    Remedy in the courts

    Under the Act, judges have the power to rule against the workings of a "public authority" or go further and make a "declaration of incompatibility" if they conclude that primary legislation breaches one of the basic rights.

    Having done so, the judges leave the matter in the hands of the politicians who must decide what to do next.

    Should the government fail to amend the offending legislation, an individual can take the case to the European Court.

    Balance and proportionality

    Lord Woolf, the Lord Chief Justice of England and Wales, has already said that rulings should be "proportionate and reasonable" to the needs of society - balancing the individual's rights with the cultural, moral, legal and philosophical landscape of the UK.

    For instance, judges hearing a case against a newspaper's investigation of corruption may rule that under Article 10, the right to free expression, the publication's uncovering of an issue of public interest meets the needs of society.

    But if a celebrity footballer brought another case following a national newspaper expose, the same judges might rule that the complainant's right to privacy under Article 10 must take precedence.

    Case overload?

    Some cases have already been considered with one eye turned to the Act.

    Child writing a letter
    Dear lawyer, must I wear this dreadful uniform?
    In Birmingham this year, a court ruled that the police could be breaching Article Six - the right to a fair trial - by forcing someone to admit that they were driving a speeding car caught on a traffic camera.

    The Crown Prosecution Service is considering an appeal - but there have been similar stories emanating from Scotland.

    There, the Act came into force with devolution and, according to some observers, left the executive reeling.

    Among the headline-grabbing stories was one case that led to the end of the part-time sheriff system in the Scottish courts after it was ruled that the way they were appointed meant that they were not sufficiently independent.

    Mark Poustie, lecturer in human rights at Strathclyde University, said that politicians didn't see it coming.

    "There have been questions raised over the amount of work that was done to make sure that institutions were ready for the Human Rights Act," he said.

    "In many respects, there has been a degree of criminal lawyers trying it on. But out of the 600 or so cases brought so far, only 20 have been successful.

    Judges parading before the start of the legal year
    New role: But qualified powers
    "There are some short-term problems, such as with the sheriffs. But in the longer-term the effect of the Act will be a better quality of justice."

    Susan Garrett of Addleshaw Booth and Co, one of the largest legal firms based outside London, said lawyers were already thinking about the Act's implications.

    In a case her firm had dealt with, an educational establishment was refused an injunction against a violent student because the individual had not been notified of the hearing - not a particularly unusual legal procedure.

    "In the first couple of years, there will be a lot of use of the legislation because many lawyers will be frightened that if they don't raise human rights issues they could be found to have been negligent," said Ms Garrett.

    "But at the same time, Lord Woolf has made it clear he expects lawyers to be cautious because it's going to be difficult to know what's a valid human rights case."

    Criticisms

    There are many who also have reservations about how the Act will work.

    The former Conservative Home Secretary, Michael Howard - a QC himself - has warned that it will place the courts in confrontation with Parliament.

    In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law

    Article Six

    In the human rights campaigns community, there are some who say the Act did not go far enough.

    Diane Luping of Liberty, the human rights organisation that prepares many cases for Europe, said they warmly welcomed the Act - but with reservations.

    "One of the issues that concerns Liberty is the fact that we do not have any specific provision for the rights of children," she said.

    "Secondly, we would want to have provision to bring cases on anti-discrimination grounds alone, something that you cannot do.

    Liberty and other campaigners say the most serious omission was the government's failure to incorporate Article 13, the right to "an effective remedy" - the article that might have done most to place the courts and Parliament on a collision course.

    But the Act's supporters say that Article 13's omission, coupled with the "declaration of incompatibility" procedure, will foster national debate instead of reducing the most important human rights cases to a battle for supremacy between the judiciary and Parliament.

    For instance, campaigners such as Stonewall say they don't yet expect the courts to encourage government to allow legally-recognisable "civil partnerships" for gay men or lesbians under Article 12, the right to marry.

    But they do expect meaningful victories to reduce discrimination and reflect modern Britain, such as changes to some financial regulations which favour married couples.

    And each of these successes will engender debate and further change, they say.

    Speaking to BBC Radio 4's Analysis programme, Francesca Klug of London's King's College, an expert on the Act, said that its symbolic significance should not be underestimated.

    "My personal vision is that this Act becomes part of the national dialogue, much as race and gender quality legislation has infiltrated the national dialogue in an effective way," she said.

    "I hope that the Human Rights Act will do so in a much broader context."


    To mark the full introduction of the Human Rights Act into British law, BBC News Online is publishing a series on its impact from Monday 2 October. Come back each day to find out more.

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