Litigation annual review 2002: The Human Rights Act

A slow fuse not a big bang

It is now 18 months since the Human Rights Act came into force. Contrary to expectations, the courts have not been overwhelmed with cases nor have there been the excesses of which the tabloid newspapers warned. There have nevertheless been some significant cases in the first 18 months and it is possible to see some trends emerging.

To recap, the Human Rights Act incorporated the European Convention on Human Rights into English law. However, the extent of the incorporation is limited. One important limitation is that the Act does not expressly create "stand alone" rights in disputes between private individuals or companies.

A key provision of the Act relates to Public Authorities. It provides that Public Authorities should not breach Convention Rights. "Public Authorities" are defined by reference to their function. Some organisations are "hybrid" in that they are partly public and partly private . The example of Railtrack was cited in Hansard debates. Railtrack's Health and Safety function is a public function, whereas property development is private. A private act does not come within the requirement that Convention Rights should not be breached. In two recent decisions the courts have considered whether a housing association is public or private. In the first case the housing association was found to be a public authority, since it had been set up by the local authority. In the second case, another housing association, funded privately as a charity, was private, although it had a function similar to the association set up by the local authority. These cases suggest the court's are taking a restrictive approach to the "public authority" definition.

But how important is the public/ private definition going to be in practice? Its significance is not as great as was thought prior to the Act coming into force. The reason is the so called "horizontal effect". The courts, as public authorities, are under an obligation to apply Convention Rights. Thus Convention Rights are being introduced in disputes between private bodies and individuals.

The decision which best illustrates this is a pawnbroker case. Wilson v First Country Trust concerned a dispute between a borrower and lender under a consumer credit agreement. There was no public element in the case. The courts held that the Consumer Credit Act did not comply with the requirements of Article 6 and Article 1, Protocol 1, since, under the Act, a technical breach of a requirement for information in the Credit Agreement precluded the lender's right to enforce the Agreement. The case is also notable since it was one of the first declarations of incompatibility under the Act. Under this procedure the courts, while they cannot strike down legislation, can indicate to Parliament that the legislation needs to be amended to comply with the Convention.

The horizontal effect has also been evident in cases under Article 8, the right to privacy. In the case of Douglas & Others v Hello! Limited the courts granted an injunction to protect the privacy rights of the Douglas's. More recently there has been the case of a footballer "A" who obtained a temporary injunction to prevent the publication in an article in the Sunday People about his relationships with two former lovers. At first instance the court decided that the right to privacy outweighed the right to freedom of expression and pre-vented publication. The Court of Appeal has recently reversed that decision principally on the grounds that the degree of confidentiality which the footballer was entitled to was very modest and therefore in this case the right to freedom of expression outweighed the right to privacy. The decision nevertheless indicates the courts' willingness to consider Convention Rights in private disputes.

Another important development brought about by the Act is the courts' approach to judicial review. For many years the courts have applied the so called "irrationality test" under Wednesbury to a decision of any public body. Under the test, the question was whether the decision of, say, the Secretary of State for the Home Department was so unreasonable that no reasonable Minister would have reached that decision. This meant that the extent of the courts' review of the decision was very limited.

In a series of recent cases, it is clear that, as a result of the influence of the Human Rights Act, the Wednesbury approach is no longer correct. The new approach is a test of proportionality. In practice this means that the courts will pay much closer attention to the facts of an individual case, to assess whether the decision maker has struck the right balance. This will lead to a review which looks more closely at the merits of the decision itself, something that was not possible under the Wednesbury principle.

The issue of independence and impartiality of tribunals is one that has been at the forefront of a number of decisions in the last 12 months. In the Alconbury case, the planning appeal system came under the scrutiny of the courts. The Divisional Court decided that the planning laws were potentially not compliant with Article 6 of the Convention because the power of the Secretary of State to call in decisions of a Planning Inspector meant that there was a lack of independence in the appeal system. The House of Lords overruled the Divisional Court and found that there was "sufficient" independence in the Inspector to enable him to act in a "quasi-judicial manner".

In a number of cases Convention Rights have been used to "bolster" existing rights at common law. An example of this is in relation to the law of bias. In Director General of Fair Trading v The Proprietary Association of Great Britain the Court of Appeal found that where a lay assessor, sitting as a member of the Restrictive Practices Court, had approached the expert witness of one of the parties for a job, this resulted in apparent bias of the Tribunal. As a result of Article 6, the court applied a more objective test to the question of bias than that which existed at common law.

Conclusion

What are the trends for the future? These are still early days, but a number are beginning to emerge. First, the courts are prepared to uphold Convention Rights in purely private disputes and this will be extended, particularly in relation to privacy rights. Secondly, the popularity of judicial review continues to grow. The proportionality approach to judicial review will only increase this trend. The Lord Chancellor has decided to introduce a pre-action protocol for judicial review, which will come into force on 4 March 2002. This should help to ease the judicial burden of managing the increase in cases now being referred to the Administrative Court.

The first 18 months of the Act have not been the disaster which many had predicted. The Act has had an important effect in diverse areas of the law and will continue to do so over the next few years.

The other articles contained in the Litigation Review 2002 may be found on by clicking on ‘your latest information’ on our website www.law-now.com. Alternatively, to access a PDF of the complete review please click here.

For further information on this article please contact the author Tony Marks by telephone on +44(0)20 7367 2508 or by e-mail at [email protected].

For further information on this review in general, please contact Tim Hardy on +44 (0) 20 7367 2533 or by e-mail at [email protected].