People in the UK who felt their human rights were being abused or ignored used to have to appeal to the European Court of Human Rights in Strasbourg. This was not a quick way to get a remedy, nor a cheap way. It took an average of five years and £30,000 to get to a hearing.
Now the Human Rights Act has been incorporated into English law, some people are predicting that there will be a rush of cases, with the courts overwhelmed with challenges to the law.
The home secretary, Jack Straw, has said he doubted there would be a deluge of cases, but nevertheless, more than £60m has been set aside for the courts to deal with the fallout from the act.
Already, the papers are carrying stories of possible test cases about the right to die, to choose the sex of a child and for officials at Muslim and Hindu weddings to be recognised as registrars.
But aside from the cases that would have crawled their way to Strasbourg prior to the act, will it really make much difference?
Laurence Gilford, a partner in the liability and general insurance litigation unit at solicitors Kennedys, doesn't think the act will have that much of an impact.
“In theory, English common law pretty much provides all the rights that are given by the act,” Gilford says. “Large points of principle will be going to the UK courts rather than the European one.”
Gilford doubts there will be the predicted avalanche of cases and says of the act: “It isn't a licence to litigate. I personally think it won't generate a lot of litigation.”
And Gilford doesn't think insurers will have too much trouble with the right to privacy precluding evidence of possible insurance frauds. “Most judges are pragmatic,” Gilford says. “If someone is malingering, are they going to disregard evidence?” He does however highlight one area where the act could have an effect. “Legal expenses insurers may feel the draught,” he says.
The grey area
Kieran Tierney, business development manager at lawclub Legal Protection, says it will take time to assess the full effect of the act. Tierney says: “This act is open to so much interpretation. There are a lot of grey areas in it. It could open the door to a lot of test cases.”
The real impact, Tierney says, could be how the act combines with other legislation, such as that on employment rights and age and disability discrimination.
“We have been seeing quite an increase in employment tribunals recently,” Tierney says. Indeed, the number of cases in the first half of this year increased by 30% compared with last year.
He believes that one possible result of the act will be that insurers may decide to write through smaller claims without investigating them. He points to times when insurers have had a lot of claims to process, such as when there was widespread flooding and claims under £500 were not examined.
Leo Gibbons, business development manager at Abbey Legal Protection, also thinks the legal expenses insurance market will be affected by the act. “It has some pertinent aspects with regard to legal expenses,” he says.
Gibbons stresses the need for employers to know the ramifications of the act and to apply risk management to minimise the possibility of any problems. “Many small businesses haven't got a clue,” he says.
In most cases, Gibbons says, the employer has warning of a problem and can seek risk management advice. “We are relatively relaxed about the act,” he says, “as we can control 80% of the cases that might arise at an early stage.”
But Gibbons sees tribunals as the area that brokers will be most concerned about.
Local authorities, as public bodies, are likely to face an increased number of legal challenges as a result of the act. And a poll in July by Zurich Municipal, which has a large share of the local authority insurance market, found “many local authorities are not up to speed with the Human Rights Act and the implications it will have for their organisation”.
Phil Bell, liability insurances manager at Royal & Sunalliance, does not believe the act alone is that important to local authorities: “The Human Rights Act is almost certainly going to have a modest effect in the scheme of things,” he says.
Bell says the act “will become part of the overall move towards more claims”. The real drivers towards more insurance claims against local authorities, he says, are the increasing use of no win no fee and the changes in the assessment of personal injury claims.
Bell sees these leading to higher premiums. “It is bound to hit insurance premiums very quickly,” he says. “I think very significant increases in premiums are likely.”
Will it succeed?
In the coverage of the Human Rights Act in England, much was made of the lack of success of cases brought under the act in Scotland where it was already in force.
Only 2% of cases brought under the act were said to have succeeded. This figure is misleading as the act was only introduced fully in Scotland this month. Previously, the act only applied to the working of the courts and the government and most cases concerned the slow speed of decisions.
One case to note has come out of Scotland, though. Last month a company called Lafarge Redland Aggregates took the Scottish environment minister to court on the grounds that its human rights had been breached.
The company claims the result of a public inquiry looking at its plans to dig up a mountain in South Harris has been unreasonably delayed, breaching Article 6 that covers the provision of fair hearings.
If this case sets a precedent it could mean more companies insisting on rights which were originally meant to protect the individual against big organisations.
