I understand you have already had one lecture on the Human Rights Act. So you will know something about its main provisions. What I shall say this morning is by a way of a commentary. I want to focus on the fundamental and radical nature of the Act, its likely impact on litigation and the need for a change of legal culture. I'm going to end with a case study to show the kind of effect the Act might have.
The fundamental and radical nature of the Act
First I want to explain why the Human Rights Act is so significant. It is the most comprehensive statement of human rights in domestic law in modern times. It affects the interpretation of all legislation, past and future. And it alters the balance of power between the citizen and the state.
Let me expand on these points.
The Act provides statutory protection for human rights. Until quite recently, successive Governments saw no need for a measure of this kind. They relied on the traditional freedom of the individual to do anything that wasn't prohibited by law. It has taken us nearly 50 years, since we ratified the European Convention on Human Rights shortly after the Second World War, to make the rights in the Convention enforceable at home. We have now done this because we are increasingly aware that a common law system of rights is not enough to protect people against the misuse of power by the state. We have introduced a rights-based system. One in which people's rights are asserted as positive entitlements expressed in clear and principled terms.
One look at the rights we are protecting shows how fundamental they are. The right to life. The right to a fair trial. The right to respect for private and family life. The right to freedom of assembly. The right to get married and start a family. The right to free elections. The expression of these rights in our law will have profound consequences. It will change the way in which we view our government and the way in which we think about ourselves.
The Act is of great constitutional significance. When we were drawing it up, one of the first and most important issues we had to resolve was what would happen if an Act of Parliament breached someone's human rights. Would the courts give priority to human rights and set aside the legislation? Or would the decision of Parliament in enacting the legislation be respected?
The approach taken in the Act reflects our constitutional arrangements - the sovereignty of Parliament and the separation of powers. It is for Parliament to make the law and for the courts to interpret it. So the Act requires the courts to interpret legislation as far as possible in a way which upholds the rights in the Convention. If they can't do that, it will still be enforced. But there will be considerable pressure to amend the legislation to bring it into line. The Act provides a fast-track procedure for doing that.
Many countries have grappled with this issue of the status of human rights in relation to other law. As far as I know, the approach we have taken in the UK is unique.
But this is only half of what the Act does. The rest of it is if anything even more far-reaching. The Act makes it unlawful for a public authority to act in a way which is incompatible with the Convention rights. It makes it possible to challenge the decisions of public authorities in the courts on Convention grounds. And it provides for the courts to grant remedies against public authorities - including damages where appropriate - for breaching someone's Convention rights.
Government departments will be public authorities. So will the police, and local authorities, and anyone exercising public functions of any kind. All our decisions in future will have to respect the rights of the individual. I'm not saying that we ignored people's rights in the past. What has changed is that we are now under a statutory duty not to breach these rights. In this way the Act changes the balance of power between the citizen and the state.
In a sense, the Act is limited because it is concerned only with the actions of public authorities. It operates in the vertical plane - the relationship between the citizen and the state - rather than the horizontal - the relationship between one citizen and another. That reflects the original aim of the ECHR, to protect the citizen against the abuse of power by the state following the horror of the Second World War.
But in the long run, the Act is going to affect the way that individuals treat each other. I say that because every court and tribunal will be a public authority under the Act. They will be required to uphold the Convention rights in everything they do - including the arbitration of disputes between private individuals. The courts may eventually develop a system of remedies for such cases to match the remedies the Act provides for a breach of the Convention rights by a public authority.
Likely impact of the Act on litigation
I turn now to the likely impact of the Act on litigation - in particular on what it means for litigants and for counsel.
Litigants will be able to use the Act in a number of ways. The Convention rights will provide an additional line of argument in proceedings. They could be used as part of a defence in a criminal trial, or in civil proceedings against a public authority, or in judicial review. As well as that, the Act allows people to bring proceedings on Convention grounds alone. That might be useful in challenging an act of a public authority which isn't unlawful in itself, but which might breach someone's human rights. The UK has lost a number of cases at Strasbourg where the action complained of was not unlawful but still breached someone's human rights.
We in the Home Office have been thinking about what impact the Act is likely to have on criminal cases. Some people may plead not guilty rather than guilty because they can run a Convention argument in their defence - for example they may believe that something done by the police or prosecution will prevent them getting a fair trial. In some cases, Convention points will need to be debated and will make the trial longer. In other cases, the existence of a difficult Convention issue may lead to magistrates committing for trial rather than retaining jurisdiction themselves. The general result will be to add to the work of the courts. But we believe the system will be able to cope. No-one should expect the statute book or the criminal law of England to be entirely rewritten as a result of the Human Rights Act. The Convention is not a legal panacea. Bad Convention points will do no-one any credit and will simply clog up the courts.
The Act has consequences for prosecution and defence counsel also. Appointments to the panels of Crown Counsel will have to take account of the Act. I think it will mean that barristers who have not been trained in ECHR law and practice cannot expect to be briefed by the Crown Prosecution Service. Prosecution counsel, as advocates for a public authority, will need to bear in mind their own responsibilities under the Act to safeguard human rights. Advocates on both sides have a special responsibility to get to grips with the Convention case law. Defence counsel must protect their clients' rights with accurate and succinct arguments without wasting the court's valuable time on academic or dilatory tactics. Prosecution counsel might need to alert the defence to arguments in their favour. But it is not only defendants who have rights. A careful balance will need to be struck between Article 3 (the prohibition on inhuman or degrading treatment) and Article 6 (the right to a fair trial), so it might require advocates to adjust their treatment of witnesses and victims to ensure that their rights are protected.
Need for a change of legal culture
What does the Act mean for the culture in which the legal system operates? I have said something about this in looking at the implications for prosecution and defence counsel. There are a couple of further points I'd like to make.
First, the Convention rights will be available in every court in the land. The Act doesn't create a special constitutional court where people can take their human rights grievances. Nor does it provide for human rights points in the lower courts to be referred to one of the higher courts for resolution. We wanted to weave the Convention rights into the fabric of decision-making at every level of our court system. The corollary is that every judge and magistrate will have to know about the Convention rights and the Strasbourg case law. A comprehensive training programme is needed. The Judicial Studies Board will be responsible for delivering this in the period before the Act is brought into force.
Second, the Act will have a significant effect on the doctrine of precedent. Because the courts are public authorities, they will have to uphold the Convention rights in the cases that come before them - whatever precedent might suggest. If the lower courts believe that the Convention requires them to decide a particular issue in a certain way, they will have to act accordingly even if this contradicts a previous judgment of the higher courts. This sounds like a recipe for chaos. But I don't think it will be. A new body of domestic case law on the Convention rights is likely to develop in the months after the Act comes into operation. The higher courts will probably need to hand down a number of guideline judgments on difficult Convention points in the early days, which will help the lower courts in applying the Convention rights.
Case study
I'd like to finish with a case study showing what difference the Act might have made to one of the cases the UK lost at Strasbourg. This is the case of Tolstoy v UK.
In 1987 Count Nikolai Tolstoy wrote a pamphlet called "War Crimes and the Wardenship of Winchester College". The Warden of Winchester at that time was Lord Aldington. In the pamphlet, Tolstoy alleged that Lord Aldington was responsible for handing over some 70,000 Cossack and Yugoslav prisoners-of-war and refugees to the Soviet forces in 1945. Lord Aldington sued for libel in 1989. The jury found in his favour and awarded damages of £1.5 million. This was about £1 million more than the largest amount ever previously awarded by an English libel jury.
In the Court of Appeal, the main issue was liability rather than the size of the award. As to the award, however, Sir Stephen Brown commented in his judgment:
"The award was entirely within the jury's discretion and they received a very full direction about it. I have no doubt that it was meant to mark their view of the enormity of the gross libel which had been published and persisted in."
This reflected the state of the law at that time on the review of awards of damages made by a jury. The test the Court of Appeal should apply in exercising its powers to set aside a jury's verdict on damages was stated by Lord Kilbrandon in the 1972 case of Broome v Cassell. He said that it was not sufficient for the court to conclude that the award was excessive; it had to ask whether the award could have been made by sensible people, or whether it must have been arrived at capriciously, unconscionably or irrationally. And according to Order 59, Rule 11(4) of the Rules of the Supreme Court, as it then stood, the Court of Appeal had no power, in lieu of ordering a new trial, to reduce or increase the damages awarded by a jury, unless the party or parties concerned consented.
Tolstoy took his case to Strasbourg, alleging a breach of Article 6(1), claiming that he had not received a fair hearing by an impartial tribunal, and Article 10(1), claiming that the award of £1.5 million in damages violated his right to freedom of expression. The European Court of Human Rights, giving judgment in July 1995, rejected the Article 6 claim. In considering the Article 10 claim, the Court observed that the award of damages did interfere with Tolstoy's right to freedom of expression, and the question was whether the interference was justified on one of the grounds set out in Article 10(2). On that point the Court found that the award was "prescribed by law", in that the relevant legal rules concerning damages for libel were formulated with sufficient precision, and that it pursued the legitimate aim of protecting the "reputation or rights of others".
But the Court found that the award failed to satisfy the other test of being "necessary in a democratic society". Tolstoy had claimed that the amount awarded was disproportionate to the legitimate aim of protecting Lord Aldington's reputation or rights. The Court noted that the domestic law at the time gave the jury an almost complete discretion in fixing the amount of damages and that it could not be set aside on appeal simply on the grounds that it was excessive, but only if the award was so unreasonable that it could not have been made by sensible people. Having regard to the size of the award, in conjunction with the lack of adequate and effective safeguards at the relevant time against a disproportionately large award, the Court found a violation of Article 10. The Court awarded Tolstoy costs of £70,000 but did not award any compensation.
If the Human Rights Act had been in force at the relevant time, the Court of Appeal would have been a public authority and would have been required to act in a way which was compatible with the Convention rights. It would not have been bound by precedent, and would have been able to revisit the law as stated in Broome v Cassell. It could have modified the common law position so as to enable it to set aside an award of damages which was not "necessary in a democratic society" for the purposes of Article 10.
In so doing, the Court of Appeal would have anticipated a change in the domestic law which was made shortly after the conclusion of the Tolstoy libel case. Section 8 of the Courts and Legal Services Act 1990 provides that, instead of ordering a new trial on the ground that the damages awarded by a jury are excessive or inadequate, the Court of Appeal may substitute its own assessment of damages for that of the jury. It may do so irrespective of whether the parties agree or not. In exercising its new powers in the 1993 case of Rantzen v Mirror Group Newspapers Ltd, the Court of Appeal observed that the grant of an almost unlimited discretion to a jury failed to provide a satisfactory measurement for deciding what is "necessary in a domestic society" for the purposes of Article 10 of the Convention. It added that the common law, if properly understood, required the courts to subject large awards of damages to a more searching scrutiny than had been customary in the past, and accordingly what had been regarded as the barrier against intervention should be lowered. This may be an example of the higher courts inclining towards conformity with the Convention, to the extent that domestic law allowed, well in advance of the Human Rights Act.
Conclusion
I hope I've said enough this morning to show you just how important the Human Rights Act is and what kind of effect it will have on our legal system. The Act changes the legal landscape. It doesn't herald a revolution, because it preserves the supremacy of Parliament and the separation of powers between the different branches of government. But it does make everything look different. This is new law. The Convention rights are no longer in the background. They are centre stage. You will find Strasbourg case law dealt with directly in the pages of Archbold. We will all have to get to know an entirely new body of case law. Back to the midnight oil - and the textbooks - for all of us!
For those of you starting your careers in the law I would say this: you
will have the awesome responsibility of helping people recognise and secure
their basic human rights. Never forget that the law is not a plaything for
lawyers. It is an instrument of social utility. The Government introduced
the Human Rights Act as part of a programme to restore public confidence
in a modernised constitution and justice system. Play your part in that
process and you will improve the future of our country.