The Human Rights Act 1998 ("the Act") will directly incorporate the most important parts of the European Convention on Human Rights ("the Convention") into UK domestic law when it comes into force on 2nd October 2000. Its incorporation will affect the interpretation and use of all legislation in the UK, and will therefore affect the property, environment, planning and construction sectors. However, the extent to which these areas will be affected is a matter of debate and will not be known for some time after the Act comes into force.
The purpose of this note is to highlight the fact that the Act comes into force in four months and briefly describe how the Act will work.
The Act
Section 1 and schedule 1 define the Convention rights which have been incorporated. The main rights which are most likely to affect the property, environment, planning and construction sectors are Articles 6 (right to a fair trial), Article 8 (right to respect for private and family life), Article 14 (prohibition of discrimination) and Article 1 of the First Protocol (protection of property). The Act will mean that:
- Convention rights will be directly enforceable in the UK courts.
- Any court or tribunal must take into account the "Strasbourg jurisprudence" when deciding a question under the Convention.
- The Act requires all legislation to be read and given effect in a way which is compatible with the Convention - this includes legislation that pre-dates the Act.
- If legislation cannot be read in a Convention compliant manner then the Courts can make a declaration of "incompatibility" in relation to it and there is a fast track procedure for Parliament to change the legislation in question
- It will be unlawful for a "public authority" to act in a way which is incompatible with a Convention right. The definition of "public authority" includes a court or tribunal and "any person certain of whose functions are functions of a public nature".
- Persons will have a direct right of action against a "public authority" which breaches the Convention and, to some extent, an indirect right of action against every one else (in that the courts are deemed to be "public authorities" and must read UK law in a way which is compatible to the Convention).
Examples of areas on which Act may have an impact include:
Property
The ability to distrain for arrears of rent; peaceable re-entry; chancel repair obligations; rights to enter onto land and carry out works (whether part of a freehold deed of easement or a right contained in a lease), or under the Party Walls Act 1996.
Environmental
Potential challenges to investigatory procedures used by regulatory authorities; the provision of information relating to environment risks by the state; possible expansion of the scope of nuisance in light pollution cases.
Planning
The ability of third parties to require an appeal system similar to that available to applicants; it may be possible to delay compulsory purchase schemes over questions of compensation or a fair hearing.
Construction
Potential challenges to the enforcement of adjudicators' decisions on the basis that Article 6 rights have been infringed.
Conclusion
The Act is clearly important and will affect all areas of law once it is in force. In particular, "public authorities" may be acting as public bodies in certain circumstances but as private bodies in others. In addition, all private disputes between persons will to some extent be affected as all courts/tribunals must act in a Convention compliant manner. A number of challenges can be expected from individuals who feel "aggrieved" or perhaps have a "political" point to make but only time will tell to what extent the Act will assist such challenges.
In a recent lecture Lord Hoffman indicated that he felt it unlikely that such areas as distress and peaceable re-entry would be affected by Convention challenges, albeit such challenges are likely. For further information contact Richard Hanson at rth@cms-cmck.com or on +44 (0)20 7367 3000.
