The implications of the Human Rights Act 1998

Liam O'Hanlon considers the implications of the Human Rights Act 1998

The Human Rights Act 1998 will come into force probably in mid 2000. One reason for the delay is the need to spend some £5 million in training judges and magistrates in how to implement it. Another reason is the wish for public authorities to review and alter their procedures and to train public servants to understand the new rights which can be enforced against them.

The purpose of the Act is to introduce the European Convention on Human Rights into UK law, but in a rather watered-down form. Its main effect is to create a new type of cause of action, enforceable in the UK courts, against public authorities.

The UK became a party to the Convention in 1951. In 1966 individuals were permitted for the first time to bring cases in the European Court against the UK. It is only with the 1998 Act that such rights are incorporated into UK law and to be administered by the UK courts.

The rights

Schedule 1 to the Act contains the Convention. Much of the Convention has, at first sight, little to do with commercial entities and transactions. However, it has been relied on widely in a commercial as well as an individual context. The human right dealt with by each numbered Article is:
2: right to life

3: freedom from torture and inhuman or degrading treatment or punishment

4: freedom from slavery and forced labour

5: right to liberty and security of person

6: right to fair trial

7: freedom from punishment without trial

8: right to privacy and family life

9: freedom of thought, conscience and religion

10:freedom of expression

11:freedom of assembly and association

12:right to marry

14:freedom from discrimination.

Section 1 (2) of the Act gives effect to those Articles, which are clarified by Articles 16 to 18. Article 13, which might be regarded as crucial, is not included: it would have given the right to "effective remedies" in the UK courts. Section 1(2) also gives effect to parts of the First and Sixth protocols - which are also included in Schedule 1. The subject matter of those protocols is as follows:

First/1right to peaceful enjoyment of possessions

/2right to education

/3right to free elections

Sixth/1abolition of the death penalty.

The "human" rights to a fair trial, to privacy, to enjoyment of property can all be relevant to commercial entities. If nothing else, commercial companies will have to be aware of their employees' human rights.

Section 2 of the Act prescribes that decisions of the European Court of Human Rights or of the Commission or of the Committee of Ministers must, in relevant cases, be taken into account when determining any question of Convention rights. In other words UK Courts will be bound by European case law.

Compatibility

In addition, by section 3 of the Act, all UK legislation will have to be read and given effect to, but only "so far as it is possible to do so", in such a way as to make it compatible with the Convention rights. However, section 3 expressly accepts that UK legislation may intentionally or otherwise be so drafted as to conflict with the Convention. That fact will not affect the validity, operation or enforcement of primary legislation.

Section 19 of the Act, which is already in force, requires the government to state that any legislation being introduced as a government Bill is compatible with the Convention rights. Underlying the Act is an expectation that the government will amend incompatible primary legislation voluntarily, rather than compulsorily.

Section 4 of the Act allows but does not oblige certain UK courts to declare that existing legislation is incompatible with the Convention. Such declarations of incompatibility may be made only by the higher courts, in particular the High Court, Court of Appeal, House of Lords or Privy Council. Primary legislation remains valid despite such a declaration and the declaration does not bind the parties to the particular proceedings which give rise to it. The government will, by section 5, have a statutory right to notice of any case where judges are considering such a finding, to allow it to intervene. Section 10 empowers ministers to amend legislation which is the subject of a section 4 declaration of incompatibility.

The duty of Public Authorities

Section 6 creates a new statutory duty which applies only to public authorities. It will be

"unlawful for a public authority to act in a way which is incompatible with a Convention right"

unless the action is dictated by legislation. Where legislation allows a public authority a choice of actions one or more of which are compatible with the Convention, the choice will have to be a course of action which is compatible. By section 6(6), an act will include a failure to act.

There is a wide definition, in section 6(3), of "public authority". This includes (so that the list is not exclusive):

• a court or tribunal
• any person having functions of a public nature.

It may be noted, for example, that persons exercising decision-making functions within the scope of the Arbitration Act 1996 are expressly referred to in the 1996 Act as a "tribunal" so that, on the face of it, an arbitrator will have a statutory duty to act in a way that is compatible with the Convention unless legislation, including the 1996 Act, prevents this.

While the Human Rights Act 1998 will allow the legislature to legislate in contravention of the Convention, public authorities have no right to contract out of their statutory duties under the Act, nor, therefore, to rely on individuals or companies to do so.

Claims for breach

Section 7 prescribes how the victim of a breach of section 6 may proceed. The choice is:-

• to start proceedings "in the appropriate court or tribunal" (there will be subordinate legislation to lay down rules for identifying the appropriate court or tribunal); or
• to rely in existing legal proceedings on the Convention right.

Two methods of recourse specifically mentioned in section 7 are judicial review and appeal to a higher court or tribunal. Section 7 also expressly contemplates that proceedings may be brought to prevent a proposed act or failure to act in breach of the Convention.

Only "victims" have rights, this being consistent with Article 34 of the Convention which restricts the right to bring proceedings in the European Court of Human Rights.

Section 8 gives courts faced with a breach of section 6 discretion to make such orders as are just and appropriate. However, damages are to be viewed as a last resort, to be awarded only if "necessary to afford just satisfaction". In determining whether to award damages (or how much) the court must take account of the principles applied by the European Court of Human Rights in considering compensation under Article 4 of the Convention.

Judicial immunity and fair trials

Section 9 limits a victim's right to redress against a court or tribunal. It expressly anticipates that a victim may appeal against the offending decision or, in certain cases only, seek judicial review. Any other type of redress will have to be positively legislated for by statutory rules. A judicial act done in good faith cannot expose the judge or tribunal to a liability for damages except as compensation for unlawful arrest or detention contrary to Article 5.

So, section 8 will not create a right to damages for wrongful judicial acts or defaults in civil commercial actions. These restrictions apply only to judicial acts so that authorities responsible for administrative or disciplinary measures may well be exposed to damages.

Article 6 of the Convention deals with the right to a fair trial. This extends to "civil rights" as well as to criminal charges. The core right is:

"to a fair and public hearing within a reasonable time by an independent tribunal established by law".

In the commercial, construction context the essential dividing line will be between civil rights and ordinary contractual, tortious or statutory rights. However, there is a body of European case law which confirms that commercial entities and not just individuals can be victims of breaches of such civil or human rights.

For instance, it has been held that delays in dealing with planning appeals were a breach of the Article 6 right to a fair trial. Under the First Protocol to the Convention:

"Every legal person is entitled to the peaceful enjoyment of his possessions."

It is more than likely that construction disputes concerning the ownership or occupation of a site or of materials on site will, once the Act is in force, be portrayed as carrying with them then right to a speedy public trial.

Similarly, companies have been held to have "the right to respect for....private life" under Article 8 and Article 8 was once used to challenge an Anton Piller order, which, by their nature, are an invasion of privacy. It has been suggested that oppressive abuse of the right to search confidential commercial documents might amount to a breach of Article 8 and also of Article 6, the right to a fair trial.

Woolf

The right in Article 6 to a fair trial is subject to a number of exclusions and no one should get carried away with the idea that the government must overhaul the whole system of civil justice in order that all disputes can be resolved speedily. However, the fact that "civil rights" disputes require such treatment may call into question whether the Woolf reforms, which to some extent prefer state control over the use of court time to the previous assumption that the courts were to allow their users freedom to use the courts at their own convenience will be up to date, in terms of conforming with the Human Rights Act, when they are introduced in 1999.

Case management of litigation concerning civil rights by rationing access to the legal services provided by the state, may well be held to contravene Article 6. No doubt some part of the £5 million to be spent on training will be targeted at avoiding contravention.

The message is that this will be a major piece of legislation which may bring about a change in culture and extend into areas which one would not immediately associate with human rights.