The Human Rights Act has been the subject of much commentary and concern. The Act makes the substantive rights under the European Convention on Human Rights directly enforceable so that for the first time since 1689 we will have a codified ‘bill of rights’. It is difficult to predict the actual impact it will have on every area of our lives – at work, at home and in all our dealings with others. Partner Emma Shipp gives you a flavour of the three main areas where the Act is likely to affect you most tangibly: access to justice, privacy and property.

Is everyone affected?
No. Convention rights are not directly enforceable against everyone but only against public bodies such as the Inland Revenue, local authorities, police force, government departments etc.

It can also be directly enforced against quasi public bodies in respect of their public functions. For example: it would be enforceable against Railtrack (or its successor) in respect of its safety regulation role but not its property development which is a private function - and against doctors in relation to their NHS functions but not their private patients. One of the tests is whether or not the function is carried out pursuant to statute. It now seems likely that administrators and liquidators will be public bodies for the purpose of fulfilling their statutory functions.

Courts have a distinct obligation to decide all cases before them compatibly with Convention Rights as far as they are able to. If they cannot possibly give an interpretation which is compatible with the Convention then they must make a Declaration of Incompatibility the assumption being that Parliament will then legislate to remove the incompatibility. They must also take case law from the European Court of Human Rights into account in reaching any decision. All judicial discretions must be exercised compatibly with the Convention.

How are those rights likely to affect us?
We can all probably reel off the more exciting rights such as Right to Life, Right to Liberty and Security, Right to Freedom from Torture but fortunately these are unlikely to be applicable to personal and/or business dealings in this country. The Rights that may however be of more immediate application are:

Article 6 Right to a Fair Trial – everyone is entitled to a fair and public hearing within a reasonable time by an independent tribunal and certain further regulations apply if a person is facing a criminal charge such as fraudulent trading, certain breaches of director’s duties etc. A later Article of the Convention also establishes the right to an appeal. The word ‘trial’ is given a wide meaning and would extend to any proceeding which determines a right to practice a profession. There must be access to courts, reasonable notice of any proceedings, a real opportunity for a defence to be presented and a reasoned decision given. The requirement of fairness also include the privilege against self-incrimination and we can all probably recall the Saunders case where Mr Saunders was successful in his complaint that material was used at his trial which had been obtained by the DTI under powers compelling him to answer questions. Those powers have now been watered down but liquidators have similar powers which remain and, if exercised to the full, would be likely to constitute a breach of this Article. Tight time limits could also be the subject of a challenge and legal aid may also have to be extended to certain civil matters such as cases before Employment Tribunals.

Article 8 Right to Respect for Private and Family Life. This includes interference with a home or correspondence but there are exceptions where the right to interfere is conferred by statute and not unnecessarily intrusive. A demonstration of the application of Article 8 occurred in the case involving Jonathan Aitken and his trustee in bankruptcy, Colin Haig of Baker Tilley. Mr Haig wished to sell the nine boxes of personal correspondence revealing insights into political intrigue which were believed to be worth in excess of £100,000. Although on a strict interpretation it was conceded that these boxes fell within the definition of property which vests in a trustee under section 436 of the Insolvency Act, Mr Justice Rattee did not allow the sale to proceed saying that it was a gross invasion of liberty. He felt that it was not Parliament’s intention to include papers of a personal nature and he pointed out that this would be in breach of Article 8.

Protocol 1, Article 1 Right to Protection of Property. This provides for the peaceful enjoyment of possessions without deprivation or control although there are wide ranging exemptions for the state so that compulsory purchase is not outlawed. The courts must balance the right to property against the general interest of the public. The right of long term tenants to require that the freehold of property was passed to them was challenged unsuccessfully by the owners of those properties under this right. Challenges to unfair tax assessments have also been made under this right (sadly unsuccessful in every case) but it is expected that the so-called windfall tax levied on privatised utilities and the three year limitation on reclaiming overpaid VAT are likely to be challenged under this right once the Act is in force. It is equally possible that pensions fall within the definition of ‘property’ provided they are not non-contributory occupational pension schemes. The courts are obliged to interpret these rights widely so as to give effect to the spirit of the Convention as well as the strict wording.

When will it make a difference?
It has started already. Although the Act is not due to become law until 2nd October of this year (and technically the Convention Rights will not apply to any case brought now), the courts are already showing a tendency to take account of these rights when deciding cases; lawyers are already using Human Rights arguments in many cases. Also, anything done now which is challenged on the grounds of being contrary to the Human Rights Act is likely to come before the courts after October and will need to be in conformity with Convention Rights.

It is also worth bearing in mind that the time within which an argument may be raised that a Public or Quasi-Public Authority has breached the Convention is 1 year …but this may itself be a breach of the Convention! The general rule is that litigation can be taken 3, 6 or even 12 years after the matter arises and it seems illogical that an applicant’s ability to complain of breach of human rights should be limited to a lesser period.

Emma Shipp Partner, Company / Commercial Department 020 7544 5550 emmas@sghlaw.com