This time the sky is falling

The run-up to the coming into force of the Human Rights Act 1998 has been a lengthy one, from the perspective of the Scots lawyer. Articles have been written, seminars attended and given; glossy, pithy sheets of A4 paper sent to lighten the darkness of clients. Much private thought has gone into issues such as whether the Act has horizontal direct effect, what happened to Article 13 and how the clash between privacy and freedom of expression will be handled.

And yet, strangely, one does not detect either the concern or the knowledge on the part of the general public that would suggest these issues are getting across. The average non-legal Scot appears to be under the impression that the Act has something to do with the European Union keeping straight bananas out of the military, or that the Human Rights Convention is already “in” in Scotland and nothing more has to happen, or otherwise that nothing of moment happened on 2nd October.

If we are crying in the wilderness - why?

There may be, on the part of the public, a sense of déjà vu. After all, we bombarded our client bases with equal enthusiasm, over the last three years, about the Data Protection Act 1998 - an Act so obscure that only agoraphobic lepers on Tristan de Cunha have any hope of complying with it. Not to mention the Disability Discrimination Act - broadly regarded as worthy but dull by the able-bodied. Or the usual raft of new employment provisions anent working time, paternity leave, and so on.

In short, our clients - although too busy and well-brought-up to send us a collective glossy A4 sheet saying “Tell someone who cares” - are suffering from advanced legislation fatigue. The days of the subtle mail-shot, with its text of “Let us help” and its sub-text of “The sky is falling” are perhaps over.

In these days of guaranteed freedom of expression for all, with the possible exception of Lord McCluskey, let us ask the first question: how much does it really matter?

The UK, as is well-known, was the first signatory to the European Convention on Human Rights, but it originally ignored it, for practical purposes, by denying its citizens a right to petition the court, and subsequently frequently violated it. Table A sets out a non-exhaustive list of the cases which the UK has lost in Europe. There are vexatious party litigants who can demonstrate a better record of forensic victory than this.

And now we are told that Convention questions - those delicate issues of striking a balance between individual goods and public evils, or the other way round - are being left to the same jurists to interpret, whom UK litigants fled to Strasbourg to avoid.

To add to the perplexity, we have been occasionally assured by diverse British judges that “there is no reason to believe that [domestic] law, as applied in the courts, leads to any different conclusion [from the Convention ]” in important areas.1 More recently, Lord Prosser observed that “quite apart from the 1981 [Contempt of Court] Act, and quite apart from the European Convention on Human Rights, there was in my opinion never any excuse for the courts … diminishing freedom of speech. … It does not seem to me that the new attempt at definition contained in the 1981 Act reflected any real change in principle, nor that the aims of Parliament in passing that Act differed … from the aims of our courts as the guardians of legal rights on both sides of the boundary.”2 Similarly, the right to a fair trial has been equated to the ability to use a plea of oppression in the Scottish courts, and so on.

If the law is the same, broadly speaking, and the decision-makers are (as to their legal training) also broadly the same, why should we expect a substantial difference in the law?

There are a number of reasons why it may not be that simple. First, Strasbourg decisions have already made a palpable difference to the Westminster legislature, in areas as diverse as contempt of court,3 school and judicial punishment,4 the treatment of mentally-ill offenders5 and telephone tapping6.

Secondly, there is the practical question of sheer volume. The High Court of Justiciary, sitting as an Appeal Court - and every other legal body in Scotland with a quasi-appellate function, including the judge hearing a judicial review application - is used to hearing losing arguments forced into the rubric of the existing law. Where the will exists on the part of the litigant, a question of law, or a ground of appeal, can often be found even in the least legally meritorious cases. In other words, there are litigants who carry on regardless.

If, instead of a defined, confined set of filters leading upwards with an ever-greater straitness up the appeal ladder, one has recourse to loosely-defined rights of considerable generality, the whole process may be considerably protracted. The obvious example of this is the creation of the Judicial Committee of the Privy Council to hear devolution issues on, inter alia, alleged violations by the Scottish Executive of the Convention. The floodgates are open to a vast number of determined claimants, in some cases putting a real right of redress into the hands of someone whose rights have not been respected, in other cases providing additional layers and angles of appeal for the occasional mono-maniac who haunts the courts. All this adds up to more work, and unless we are very careful and very well-resourced, more delay. This may be regarded as a dreadful social mistake, or an inevitable consequence of taking rights seriously; but in either case, it means that 2nd October matters.

We must also, it is submitted, get out of the way of thinking that this situation is going to “shake down” as most new legislation does over a number of years. The complicating effect of Strasbourg precedent - and the susceptibility of Convention rights to being bound by precedent - remains to be seen. The Human Rights Act 1998 requires the Scottish courts in certain circumstances to “take into account” the body of jurisprudence built up in Strasbourg;7 but it does not require the courts to follow it.

The Convention is famously described as “a living plant”. Nor is it likely that, given the width of each Convention right and its correlative exceptions, cases on all fours with precedent are going to present themselves very often, even if one was simply willing to follow a Strasbourg or domestic lead. It should also be borne in mind that the Strasbourg jurisprudence allows a “margin of appreciation” for the culture and practices of the diverse Member States - a concept difficult to interpret in the domestic context. The Human Rights Act deals not in specifically-defined terms and narrowly-expressed policy objectives, but wide and fundamental issues of ethics, social duties and consequences. Concepts of such width, and potential self-contradiction, can only be dealt with by a balancing process. There will be considerable pressure on a judge to make that balancing process explicit; to make, in effect, a science of an art. This may not always make a difference to what judges do, but it will influence how they interpret and justify what they do.

Finally, we can be confident that the coming into force of the Act will matter, because we have had, through the Scotland Act, a foretaste of just what a difference it can make even in a confined area, such as the actings of the Scottish Executive. The focus on the role of the Lord Advocate, triggering the Article 6 fair trial right, created something of a baptism of fire for legal practitioners in particular; but the scope for other public bodies to be brought to book in relation to violation of other articles, is exponentially expanded.

In other words - this time, the sky really is falling.