Practice trends: human rights

For every 'human rights' case that makes the headlines, there are dozens that go unnoticed, bearing witness to the ever-increasing influence of human rights law across all practice areas.

Human rights law started very much as a specialist practice after the ratification of the European Convention for the Protection of Human Rights in 1950. Britain was a supporter and signatory of the Convention, but it was not until the 1998 Human Rights Act that practitioners took proper notice of human rights law in everyday practice.

Until then, although the Convention was binding on the UK, and UK legislation had to comply with it, the rights and freedoms it set out to protect were only loosely given effect in British courts. A few avant-garde firms and chambers realised the usefulness of the Convention and started carving themselves an early chunk of the market. At the time, the courts did not look favourably on human rights arguments and most of the well known cases had to go all the way to the Court of Human Rights in Strasbourg.

New trends

Things have changed. Human rights points are now routinely argued in court, from the right to fair trial to the protection of privacy, and from the freedom of speech to the prohibition of inhumane treatment. So much so, that few practitioners, with the possible exception of a handful of specialist Strasbourg advocates, regard human rights law as a discreet practice area. 'Anyone thinking of human rights as a separate area of law is living in the wrong decade,' says Rosalind English, of 1 Crown Office Row.

'There are lawyers who have experience of litigating in Strasbourg and transcend areas of practice,' comments Tim Eicke, a barrister at Essex Court Chambers and veteran of the Strasbourg court. 'Before the Human Rights Act, human rights was an area of international law; practitioners were advised to be aware of it, but they didn't feel they had to be on top of it. These days, the Convention is built into the way we understand the law generally and it's part of every lawyer's toolbox.'

The result is that human rights principles inform all areas of the law. 'The most talked about at the moment is anti-terror legislation and detention but there are many areas involving human rights, such as benefits, family law, or immigration.'

Eicke cites the recent case, Hobbs, Richard, Walsh and Geen v UK [2006] ECHR 976 (14 November 2006), as an example of this trend. There, three widowers won their case against the government that the refusal to grant them widow's bereavement allowance amounted to sex discrimination in breach of Art 14 of the Convention. 'Sex discrimination in relation to retirement pensions is allowed to a certain extent in EC law, but discrimination in relation to other benefits is now under permanent scrutiny by human rights law,' says Eicke.

Family law is another fertile ground for human rights law arguments, in particular the right to privacy and family life under Art 8 ECHR. This may not be as high profile as other areas, because family cases are traditionally decided behind closed doors, but according to Eicke, human rights issues run through many family disputes, even where they are not worded in human rights terms. 'For instance, Re G (children) (FC) [2006] UKHL 43, which raised parental responsibility issues in the case of a lesbian couple, was not run as an Art 8/Art 14 case, but, fundamentally, it is about human rights, and the question is how these have to be balanced.'

Protecting the vulnerable

What all the major areas involving human rights have in common is that they offer protection to the most vulnerable in society.

English points out: 'The big international agreements against torture or on children's rights have not delivered. As a lawyer, you used to rely on these international conventions where you had exhausted other arguments. But the Human Rights Convention has not proved to be a major catalyst for change even in this area. In the recent challenge brought by UK victims of alleged Saudi torture, the court said that norms of international law, such as state immunity, could not give way to Convention rights.'

English also believes that certain provisions, like Art 8, have provided a legal basis for new interests, such as transsexualism and access to medical reproductive techniques, to be litigated. Not that the Convention necessarily had any foresight in this regard, but its general drafting allowed greater freedom in constructing its scope.

Protecting the vulnerable is also at the heart of the recent terror cases, which raises a bigger question of reconciling competing arguments (individual rights v public security) and has yet to be settled.

Business issues

The application of human rights legislation in a business context is less publicised, but equally is growing. One of the early cases involved Ernest Saunders, the former chief executive of Guinness Plc, who successfully argued in Strasbourg that English law forcing him to provide information that would be used against him in criminal proceedings was contrary to the privilege against self-incrimination and breached his right to a fair trial.

Air Canada relied on human rights arguments in forfeiture proceedings when one of its planes was grounded after drugs were found on board (Air Canada v UK [1995] 20 EHRR 150). Last year, another air carrier, Bosphorus Airlines, claimed the company's rights under Art 1 of the First Protocol were breached when the Irish authorities impounded one of its aircraft, leading to the company being wound up (Bosphorus Airways v Ireland, application no. 45036/98). And the same provision was relied on by fishermen who were prevented from fishing for the Patagonian toothfish in Falkland Island waters (Re v Secretary of State for Foreign and Commonwealth Affairs ex parte Quark Fishing Ltd [2005] UKHL 57).

Work in progress

But this is only the beginning of a deeper sea change in the way human rights influence the law, according to Wendy Outhwaite, a barrister at 1 Crown Office Row. 'The area of inquests, for instance, is changing radically. Where there are suspicions of major system failure, as with deaths in custody, the courts are now thinking more carefully about whether, under Art 2, an inquest is sufficient, or whether there should be a public inquiry.' The practical effect, Outhwaite continues, is that 'a lot more deputy coroners are appointed, there is a greater emphasis on avoiding deaths, and politicians are more careful when deciding on where public funding goes. It's politicians, not inquest juries, who should decide where public resources should go '“ and this is an adjustment that is taking place'.

But the courts are also backing away from involvement in policy decisions in this area, notes English. 'There is an accompanying change in judicial attitude, with judges now clearly saying that they will not use the HRA as a platform for changes in policy, this is something for the government and Parliament.'

Lesser known cases, such as Uner v Netherlands [2006] ECHR 873 (18 October 2006) could mark a significant turning point in the way ECHR principles are applied, according to Eicke. Uner involved the application of Art 8 in an immigration context. The plaintiff suggested that long-term residents born in the country deserved greater protection than recent immigrants. 'The court rejected the argument, but in relation to long-term residents, it almost said that it was not necessary to look at the existence of family life to engage Art 8; there could be interference with private life even where there is no family life,' said Eicke. 'This would raise questions of proportionality of a measure and could have a noticeable impact in relation to settled migrants. It would also chime with the new free movement Directives, which provide enhanced protection against deportation for long-term residents and potentially provides higher residence rights.'

Further changes

For all the column inches the big terror cases are occupying, at this stage they merely set the debate. The courts will ultimately have to make a final decision on terrorism and the related issue of the detention of terror suspects (an application to the House of Lords is pending) is likely to remain 'very fluid, depending on the state of alert and the level of security, but there should something coming out which can be used by lawyers', Outhwaite says.

The territorial reach of the convention will be another of the big issues in the coming years, according to Eicke. The Convention is territorial, inasmuch as it primarily applies in the territory of the signatories, but there have been a few occasions where its reach has extended beyond Europe. 'There have been cases where the convention bites on actions taken by the contracting parties outside their territory, but with the consent of third state. Ocalan v Turkey (application no. 46221/99), for instance, where the leader of the PKK was handed over to Turkish authorities while staying at the Greek embassy in Kenya.' The issue currently occupying the court is the responsibility of contracting parties for the actions, eg, of KFor (Kosovo forces).

For English, the potential of Art 8 has not yet been totally unlocked. 'The frozen embryos case, access to IVF and other forms of reproductive treatment are par excellence interests pertaining to the private sphere, so is anything relating medical treatment at the end of life (a reference to the decision in the Diane Pretty case). It is understandable that individuals want light to be cast fully on the procedure followed by the authorities in reaching their decision whether to allow a request or provide public funding.' She also says that the Strasbourg court has accepted that medical negligence could fall within the remit of Art 8, making its potential almost open-ended.

But the one which is 'everywhere and likely to burst', according to Outhwaite, it religious freedom. 'With the European Court finding that the wearing of the jilbab was part of the right to manifest one's religious belief, more radical decisions should now be expected in a national context.' And, beyond individual rights, the issue also raises questions of public funding. 'It's not just about wearing the jilbab,' says English, 'there are also issues of allocation of public resources, transport to school, etc. What used to be presented as a judicial review challenge is now a positive claim to a religious right.' The effect is that religious freedom has been brought into positive law and that the debate has become a matter of public concern. 'Until recently, religion was in the private sphere, now the debate is held in the public place,' says English. 'As a result of these claims, we are now seeing calls for institutional changes. The only limitation is that claims based on rights like Art 9 (religious freedom) are usually not successful on their own and must be supported either by a discrimination claim that sounds in local law, or a more open-ended Convention right such as Art 8.'

Turning tide

The practical consequences of these developments is that the courts, once promoting greater protection of human rights, are now less willing to uphold claims based solely on general human rights. The courts' message is that the HRA is not a cash cow, that claimants must have a solid case or go elsewhere.

'No one is being told the other side of the story, which is that there are actually fewer awards for breaches of human rights,' says English. It will take time to turn the battleship around, but she is convinced that we will be turning a corner before too long. But English remains puzzled by claimants' tendency to talk in terms of entitlement of all and sundry, ignoring the requirement to formulate their claim on a recognised legal basis.

While the scope of human rights continues to expand, judges are now clearly saying that they will not allow claimants to use the courts as a forum to bypass the government. Individuals claiming that the system has infringed their rights should use the ballot box, not a claim form. Whether they will, and whether this would make a difference, is another matter.