Human Rights... What's All The Fuss About?

The introduction of the Human Rights Act 1988 from 2 October is beginning to receive a lot of publicity. How much of it is merited?

There will be many claims under the Act. The question is how many will succeed? The answer is probably not that many but what is important is not the number but the issues. The Home Secretary, in a speech to the Civil Service College on 9 December 1999, said "the Human Rights Act will make a significant change to both our legal and administrative cultures" and although he is urging people not to panic, there is reason to worry about the effects of the Act.

Where did all this start? After World War II, the Council of Europe set up a working party and in 1950 the European Convention on Human Rights was signed. Its original aim was to protect the individual from abuse by the state. It set out the rights of the individual and set up a court - the European Court in Strasbourg, to which individuals could go to enforce their rights. The European Convention on Human Rights differs from the United Nations Declaration on Human Rights, which has no enforcement mechanism.

However, after 2 October 2000, there will be fewer trips to Strasbourg, because for the first time people in England will be able to apply to their local court to uphold their human rights. Scotland has been dealing with Human Rights since July when they opened their Parliament. Some interesting lessons have been learnt. A lot of cases have been on the length of proceedings (Article 6), which bodes ill for the English criminal justice system.

Some of the rights in the Act are absolute and some are qualified. This idea of absolute prohibitions enforced from a written set of rules is quite alien to English law and will take some getting used to. Which brings us on to how people who work for public authorities are going to adapt? More specifically, how will the Prison Service adapt?

The Prison Service is a public authority. Contractors delivering services for it are hybrid public authorities, and, in respect of the public functions they perform, they too must function in accordance with the Act. This obligation is summarised in section 6 of the Human Rights Act:

For those who carry out some public functions, subsection (5) of section 6 may be of some assistance:

We need to consider the nature of the act or decision that is being made. Is it a private act (not having Human Rights implications) or a public act (having those obligations automatically)?

The word 'unlawful' is absolutely key. It was a deliberate choice by those who drafted the Act and there are no clauses either in the Convention or the Act which say 'if practicable' or 'where resources allow' or any other form of words which might allow public authorities to avoid or delay their obligations.

The only hope is in section 6 itself, which indicates that, if a public authority only did something because an Act of Parliament compelled it to do so, then that act is not incompatible. Obviously there is plenty of scope for legal argument on whether or not a public authority was compelled to act by statute in a particular manner. Strictly, statute law must be applied until changed by Parliament. The application of delegated legislation falls into a similar category although it may in fact be quashed by the Courts. The dilemma is of course that compliance with a statute may give rise to a challenge under the Human Rights Act and yet there may be no reasonable or legitimate alternative.

How the Courts will become involved? According to The Times, there is a boost to the Legal Aid Fund of £40m for human rights cases, although there are of course criteria for applicants to fulfil to qualify, not the least being that the case must be 'significant'. The Lord Chief Justice issued a Practice Direction in March clearing the Crown Office lists (where Judicial Review applicants are filed) in preparation for the Human Rights Act in October. And remember too that the Courts and Tribunals are themselves public authorities, so they too have to uphold human rights.

So, there will be challenges, but how many of them will be well founded? This will depend on how public authorities have prepared for the implementation of the Act. Sound corporate governance, embracing a considered approach to risk management, should be at the heart of every public authority's preparations.

Prisons not only include the prisoners who reside there, but the other members of the prison community - the chaplain, the parole board, visitors, psychologists, psychiatrists, prison doctors, the prison officers, the governors, the Inspector and last but certainly not least, the Home Office. Some will be public authorities individually and some will be a part of a service which is a public authority. If individuals haven't spoken to their insurers, they should do so as a matter of urgency.

Prisons by definition deal with prisoners, but they have families, and other organisations are involved in their welfare, for example those in the voluntary sector such as NACRO? There is no guidance from Europe on whether such organisations will be caught – although there is a strong case to be made that they should be covered by the Act. In each case the likely tests will be whether they provide a public service and if so, whether under some kind of obligation.

The latest court case from Gavin Mellor opens up the debate about prisoners' rights, and those of their families. Will we see conjugal visits? Will we see more home visits? Will visiting be expanded in terms of time and space? Articles 8 & 12 make interesting reading in this regard.

We also need to consider the other end of the spectrum – Victim Support. Lord Woolf has already stated that he will consider the views of Jamie Bulger's mother when considering the sentences of Messrs Venables and Thompson. Will other victims campaign for the right to be heard when the perpetrator of the crime against them is being considered for parole, licence, tagging, home leave, and release? The Act will open up the prospect of challenges on all these issues.

Clearly some of the issues are going to be ones of policy, where inevitably the Courts will be involved and there will be tension between the Government and the Courts. But some of the issues will be much more mundane and will deal with matters well within the remit of local staff.

Current practices and procedures in the Prison Service will need to be reviewed, changed or abandoned as necessary. The Prison Service should look positively on human rights as a key part of its public policy, employment and service image. There will need to be training at all levels and positive and reactive advice for managers and front line staff who are often likely to be the first to come face to face with human rights issues.

How will the Act affect the way in which the Prison Service operates? There will be an impact upon day-to-day discharge of duties under the law and many procedures may be found wanting, for example arbitrary searches may well not be acceptable after October.

Internal procedures (e.g. disciplinary regulations) will need to be reviewed and amended. Many cases in Strasbourg have involved the court-martial process, and no doubt there will be similar challenges to police and prison service employment procedures.

Those who work in the prison service urgently need to address the level of cultural change, education and awareness that will be required to ensure the Act’s smooth implementation. Anything less will pose a real risk of expensive and time-consuming reaction to challenges as they occur – whether justified or not. The political embarrassment of challenge and the impact upon employee relations should not be underestimated.