Law begets law

A good ‘human rights’ story needs three elements: an unsympathetic litigant; a novel use of the Human Rights Act 1998; and a decision that appears to be an affront to common sense.

Take the recent case brought by a convicted burglar, Gary Ellis, against the Chief Constable of Essex. Essex Police had proposed to introduce an offender-naming scheme – displaying posters with photographs of local criminals – with the aim of reducing crime. Sergeant Quinnell of Essex Police decided to use Mr Ellis’ picture on one of these posters.

But Mr Ellis objected, and brought proceedings to prevent the use of his photograph. Ellis’ lawyers claimed that his human rights, in particular his right to respect for his family and private life, would be interfered with.

Such cases are now commonplace. The leading legal weekly Law Society’s Gazette is full of articles and case reports involving human rights. The government justified the introduction of the Human Rights Act 1998 as a way of safeguarding fundamental and basic liberties. In reality, however, the effect of the Act is mainly felt in the day-to-day public administration of areas such as policing, education, health and immigration. Human Rights Act cases often involve policy issues of public interest, where well-informed citizens can and do hold different views.

In the end, Essex Police indicated that it would reconsider the scheme, so the High Court did not have to make a final decision about Mr Ellis. At a practical level Mr Ellis got the result he wanted; his picture wasn’t used.

Naming and shaming policies are controversial. Even the police are divided as to their merits. But with the prison population in the UK at record levels, and a high level of public concern about crime, the methods taken to counter crime are matters of public concern and should be subject to broader debate. Instead, the Human Rights Act means that the final word on issues like the Essex offender-naming scheme now rests with unelected judges.

The truth is that the Human Rights Act involved a shift of power from the government to the judiciary. Indeed, such a shift in power had begun even before the Act was introduced.

Under the Human Rights Act, litigation is slowly becoming the driving force in the making of social policy. Instead of encouraging a human rights culture, as perhaps the government intended, the result is to reinforce our already expanding culture of litigation.

It is not just the economic costs of litigation that are a problem. What is more worrying is the damaging effect that litigation has on social relationships. The growth in litigation encourages resentment, as individuals and special interest groups make claims on the state, which others see as being claims made on them. This results in a spirit of institutionalised hostility.

And the idea of developing social policy via litigation is dangerous. Instead of coming out of a coherent long-term strategy, policy decisions are taken at random, on a case-by-case basis. The courts have no choice but to make decisions in the cases of litigants who manage to appear before them.

Sometimes, these litigants may be those who are less deserving. Burglars infringe the human rights of their victims with impunity, but under the new human rights system, policing policy could be partly determined through claims made by burglars. As a consequence, law and policy develop in a piecemeal and haphazard fashion.

The English (and Welsh) adversarial legal system was not designed to be a process of factual enquiry, even less to be a policy-making forum. The duty of the advocate is to present his client’s case in the best way possible. The information that can be put before a court is often limited by the rules of evidence. As human rights are usually seen as a struggle between a particular individual and the state, the wider public interest is not represented in such cases.

Transparency and consultation are also missing from a system of litigation-driven policymaking. Ordinary citizens only become aware of these fundamental decisions through press reports after the event. The whole legitimacy of decision-making is undermined, since the public has no voice in the process, and no way to challenge decisions that directly affect them.

The consequences of more litigation are just as unhealthy for public servants. If everyday administrative initiatives like that devised by Sergeant Quinnell are subjected to the review of, say, Chief Justice of England and Wales Lord Woolf, the result is that they cease to be taken at all. ‘Litigation avoidance’ becomes the norm. And administrative acts that are taken will require mountains of paperwork to justify them.

Lawyers have an insatiable hunger for expert evidence, consultation procedures and risk assessments. These swallow scarce resources, but introducing an administrative change without them would be dangerous. Public servants know that if they take a policy action and it is successfully challenged (or even unsuccessfully challenged), tens of thousands of pounds could be wasted in legal costs. The threat of litigation means that initiative and creativity in public policy is stifled. Inaction becomes positively virtuous – and problems tend to be avoided rather than tackled.

There is little point in hoping that this drive to litigation can be reversed by the legal profession itself. Lawyers have a duty to take every available point they can, and to do the best for their individual client. In the same way, there is no point in blaming judges for carrying out the new role that the Human Rights Act has given them.

In a mature democracy, issues of public policy should be decided democratically and not through an expensive system of adversarial litigation. While the Human Rights Act 1998 remains in force, the message sent out is that litigation, with all the waste and hostility that court warfare engenders, is the way in which we should resolve complex social policy issues.

The Act may have been passed with the best of intentions, but instead of encouraging justice it is doing the reverse.

Raymond Perry is a solicitor (email raymond.perry@dsl.pipex.com)