Nearly Legal

Why does my heart sink every time a prospective client call is transferred to me with the words “it’s about human rights”? Do I, like Blair and Reid and Cameron, despise the Human Rights Act 1998? Do I feel it has handed an excessive power to the courts to interfere in the perfectly reasonable decisions and actions of the executive and the state?

Not at all. Nearly Legal is terribly keen on the Act and wishes it to be defended against its maligners and misrepresenters. Well done to Lord Goldsmith for pointing out the nonsense that is talked about and wrongly ascribed to the HRA. But the misrepresentation is part of the problem. As a result, in the popular imagination and in particular the imagination of the failed litigant, the HRA is a legal weapon of great and mysterious power, to which recourse can be had whatever injustice has befallen them.

With a little ingenuity, their situation can be wrestled under one or more of the commodious Articles of the Convention. So then it is just a matter of finding a solicitor to take on the matter, because for some reason their current solicitor refuses to undertake the case, or because they are (more often) a litigant in person.

Except, of course, the case is nearly always wrong, unfounded or a non-starter.

Each time I take one of these calls I know pretty much exactly what will follow. First will come the outpouring of the lengthy story of the wrong that has been done them, usually without either taking breath or including the less persuasive salient details. Then follows either a cry that nobody will help them right this wrong, which is clearly against their human rights; or, from the litigant in person, a lengthy explanation of their understanding of human rights under the convention and their interpretation of the bits of case law that they have seized upon (and why they were wrongly decided, if necessary).

Almost always, once one asks a couple of questions, usually directed at the more obvious omissions in the monologue, the fundamental error becomes clear. Any attempt to suggest the problem is not well received - usually by silence, a further torrent of explication of the wrongness of precedent, or an appeal to one’s sympathy for the injustice of the situation.

In place of the tabloid (and broadsheet) nonsense talked about the astonishing and far-reaching powers of the HRA and the ECtHR, it is time for a public information campaign about what Convention Rights actually mean, their limits and what they are for.

I would like to see it made clear, for instance, that:

• The HRA and Convention only apply to public bodies or those exercising public functions. (So no, you can’t bring a human rights prosecution against the video shop even though its staff did behave in a homophobic manner towards you.)
• There is, in general, a difference between not winning your case and a breach of Art 6. In particular, dear litigant in person, there is a difference between having your application for permission to appeal to the Court of Appeal refused and a breach of Art 6.

Of course, some litigants in person manage to combine different forms of wrongness, such as the woman who called a few weeks ago, seeking to prevent a private body enforcing a legitimate court order on the basis that it would breach her rights by interfering with her application to the ECtHR (by financially ruining her). The actual application was that a refusal to allow an appeal was a breach of Art 6, where the aim was transparently solely to reverse the original decision of the court. Quite magnificent.

The nature of a complaint to the ECtHR seeking to reverse the decision of a national court is a tricky one to grasp for the litigants in person. Simply running out of national alternatives, e.g. by having an application for permission to appeal refused, does not mean the application is going to stand a chance in hell unless the decision reveals an arguable breach of the Convention rights.

So, assuming the decision was within the Court’s discretion and the law - and recourse was available to higher national Courts - there is no chance of a successful application in relation to a case where both parties are private unless it is a challenge to the law per se. (No, not just because you think the court’s decision was wrong and unjust). That isn’t going to get the initial decision reversed, even if the complaint is upheld.

And then, understandably, people find it difficult to grasp that a public body doing something they don’t want it to, which may have a bad, even devastating effect on them, is not automatically in breach of the HRA.

The callers about care cases are the hardest in this regard. They might have a genuine case - I am not competent to assess them, and it is not an area in which we we act - but they have usually fallen out with their current solicitors. Their situations are awful and I pity anyone who has or had to explain to them that their case falls within the proportionate and justifiable interference with Convention rights (assuming it does).

This is the big explanation that is required, that the Convention and HRA exist to ensure that state actions, where they interfere with Convention rights, are proportionate and serve a justifiable public purpose.

Until then, everyone who feels slighted, unfairly treated or has a burning sense of injustice, will reach for the HRA and then get mightily pissed off when told it ain’t gonna happen. [Edit. Aha, right on cue comes this news item].

That said, I have had one call from a litigant in person who outlined a possible complaint to the ECtHR that was difficult, complex but arguable. Not very likely to succeed, admittedly, but potentially a case. Sadly, we couldn’t manage it at the time. I hope someone took it on.

[Edit 2. I've just seen this very interesting post on Head of Legal. I'd missed the debate commented, so I didn't realise I was approaching topicality. I might come back to the debate in another post].