piBlawg

the personal injury and clinical negligence blog

A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Lord Woolf Warns of Human Rights Conflict

Whatever your views about the Human Rights Act 1998 ("HRA"), most lawyers would admit that it has led to many interesting developments in the law, although not as many as were feared as we approached the turn of the century and the Act coming into force.  The approach of the courts in this jurisdiction has, for the most part, been reasonably restrictive although it is clear that in the arena of public and administrative law in particular, the HRA has had a pivotal role in shaping the law.

For many personal injury lawyers the HRA impacts little on day to day practice, save for ticking the box on various court documents to confirm that there is no human rights issue in a claim.  Equally, whether one acts primarily for claimants or defendants, the HRA has an influence that cannot be ignored.  For example, the case of R (on the application of Middleton) v HM Coroner for Western Somerset [2004] AC 182 has changed not only the conduct of inquests where Article 2 of the European Convention on Human Rights ("ECHR") is engaged.  As coroners have become more used to conducting wide ranging inquiries and giving narrative verdicts the scope of even traditional inquests has expanded.  Further, if one acts for or against public bodies, an almost inevitable occurrence at some time during the career of most personal injury lawyers, the scope of the duty of care and the obligations owed by agents of the state to individuals in certain areas have also been influenced by the courts' recognition of Convention rights. 

It has been well publicised that the government is considering the future of the HRA both as a result of longstanding policy objectives and also following dissatisfaction in some quarters about the influence of the Convention on difficult issues such as prisoner voting rights and whether those on the sex offenders register should have a right to appeal to have their name removed after a certain period of time.  David Cameron has announced an intention to set up a Commission to consider whether a UK Bill of Rights should be introduced.

On Monday Lord Woolf, Lord Chief Justice from 2002 to 2005, was interviewed on Radio 4's Today programme.  Although Lord Woolf made it clear that he did not take issue with the setting up of a Commission to consider the issue of human rights, he warned:

"We have got a stark option: either we accept the European Convention, or we don't accept it and decide to leave the Council of Europe. It's very difficult to do what [Justice Secretary] Mr Clarke indicated he would like to do when he's chairman of the relevant body, because there are 47 signatories in Europe which are signatories to the European Convention as well as ourselves. To try and amend that is a virtually impossible task...  If you have a further convention - a British convention [the Bill of Rights] - there's going to be a complication in the position, because you're going to have two conventions to which the courts are going to have a regard."

Whatever one might think about prisoner voting rights and the sex offenders register, it is easy to anticipate that emotive issues such as these will lead to strong and often polarised views.  Further, whether one is for or against the influence of the ECHR within the UK, one can see that difficult issues such as these do not make a good platform on which to base a discussion about the influence of the HRA on UK law over the last decade.  The incremental and often restrictive approach of the courts in allowing HRA arguments to expand the law much beyond our pre-existing common law receives little attention in the media.  In addition the cases where the HRA is relied on to expand the rights of "the good" rather than "the bad" also usually do not make good press. 

An objective and carefully considered discussion about the influence of the HRA, good and bad, across all areas of law over the last decade should be welcomed by all.  Ten years is a reasonable period to enable proper reflection on quite what impact the HRA has had.  However, one cannot help but wonder whether politicians should be reminded not to base that discussion and consideration primarily on hard and topical issues such as prisoner voting rights and the sex offenders register.  After all, at law school most students are taught the old adage: hard cases make bad law.  It seems equally likely that over reliance on hard issues can give rise to bad politics too. 

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