Human Rights Act: Getting to grips with the HRA
With the implementation of the Human Rights Act looming next month, Elspeth Mills Rendall looks at what the impact on the work of the Bar will be and which sets are likely to benefit most from it
There is little doubt that the Human Rights Act (HRA) will have an impact on the Bar, but views differ as to what the precise nature and extent of the impact will be. As Andrew Nicol QC, of Doughty Street Chambers, points out: “The problem is that it is so pervasive and different to other legislation. It is intended to speak in general terms on the breadth of law and is therefore going to have impact across wide areas.” Grahame Aldous, a barrister at 9 Gough Square, says: “Once the initial flare-up of HRA points has subsided, the effect will be recognisable to lawyers who are familiar with common law and the principles of equity, although some of the terminology will have altered. “The long-term effect might be to stimulate change, in areas such as privacy, which the courts were working towards in any event. There will be more talk of ‘proportionality’, but that was coming anyway and was forseen by Lord Diplock in the GCHQ case in 1985.” Can we learn anything from the Canadian or Scottish experience, since both have already introduced similar legislation into their domestic law? Canada’s experience suggests there are likely to be two distinct phases of work: “The first wave will focus on social policy litigation such as judicial review of which 90% will concern bad points without legal merit,” says Sean Wilken of 39 Essex Street. “This is likely to last two to three years. The second wave will involve commercial litigation. I have been talking with City solicitors about this, particularly in relation to PFI work where they may be considered to be a ‘public body’ for purposes of Section 6.” Scotland also saw a large number of challenges with only 10% succeeding. It is likely we will see a flurry of cases in England in the early months. But Lord Woolf, in Daniels v Walker, warned counsel against bringing spurious human rights claims that may bring the HRA into disrepute. This view is in tune with the objectives and spirit of the civil procedure rules (CPR) and designed to check those who would otherwise jump on the litigation bandwagon. The HRA heralds an increase in work for the Bar. The Queen’s Bench division was clearing its cases in July so that it could deal with human rights cases, and all judges have had at least one day of European Court of Human Rights (ECHR) training. There are three areas this work will come from:
This premium content is reserved for
Legal Week Subscribers.
Subscribe today and get 10% off.
A PREMIUM SUBSCRIPTION PROVIDES:
- Trusted insight, news and analysis from the UK and across the globe
- Connections to senior business lawyers within the leading law firms and legal departments
- Unique access to ALM's unrivalled, market-leading reporting in the US and Asia and cutting-edge research, including Legal Week's UK Top 50 and Global 100 rankings
- The Legal Week Daily News Alert, Editor's Highlights, and Breaking News digital newsletters and more, plus a choice of over 70 ALM newsletters
- Optimized access on all of your devices: desktop, tablet and mobile
- Complete access to the site's full archive of more than 56,000 articles
Already have an account? Sign In Now
For enterprise-wide or corporate enquiries, please contact Paul Reeves on Preeves@alm.com or call on +44 (0) 203 875 0651