The Human Rights Act: A View from Below
| Author | Philip A. Thomas,Ruth Costigan |
| Date | 01 March 2005 |
| Published date | 01 March 2005 |
| DOI | http://doi.org/10.1111/j.1467-6478.2005.314_1.x |
JOURNAL OF LAW AND SOCIETY
VOLUME 32, NUMBER 1, MARCH 2005
ISSN: 0263-323X, pp. 51±67
The Human Rights Act: A View from Below
Ruth Costigan* and Philip A.Thomas**
The paper is based on survey work undertaken in the Cynon valley,
south Wales, an area of high social deprivation. We interviewed local
solicitors to establish their understanding and usage of the Human
Rights Act (HRA). Outside of south Wales there is evidence of growing
awareness and involvement of specialist practitioners in human rights
actions. This we call a top-down process. Our work starts at the other
end: a bottom-up account of high-street, small-practice solicitors.
The United Kingdom has moved from liberties to rights.
1
The Human Rights
Act was described as having `the potential for being one of the most
fundamental constitutional enactments since the Bill of Rights over 300
years ago'.
2
Other lawyers were even more exuberant. For example, Helena
Kennedy declared: `something is happening: a different Zeitgeist, a shift in
the legal tectonic plates'.
3
Professor Wade stated that the Act is a `quantum
leap into a new legal culture'.
4
On the other hand, Professor Allott observed,
`The Minima Carta, known as the Human Rights Act, is the misbegotten
product of an alliance between shallow liberal rationalism and executive
branch cynicism.'
5
51
ßCardiff University Law School 2005, Blackwell Publishing Ltd, 9600 Garsington Road,
Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
* Law Department, Swansea University, Singleton Park, Swansea SA2 8PP,
Wales
** Cardiff Law School, Cardiff University, Museum Avenue, Cardiff CF10
3XJ, Wales
1 T. Campbell, The Left and Rights: A Conceptual Analysis of the Idea of Socialist
Rights (1983); T. Campbell, `Human Rights: A Culture of Controversy' (1999) 26 J.
of Law and Society 6. See, also, L. Clements, `The Human Rights Act ± A New
Equity or a New Opiate: Reinventing Justice or Repackaging State Control?' (1999)
26 J. of Law and Society 72.
2 L. Clements and J. Young, `Human Rights: Changing the Culture' (1999) 26 J. of
Law and Society 1.
3 F. Klug, Values for a Godless Age: the story of the United Kingdom's new Bill of
Rights (2000) 11.
4 W. Wade, `Human Rights and the Judiciary' (1998) E.H.R.R. 532.
5Times, 2 January 1999.
The early years after the Act's commencement saw mixed messages in
terms of appreciation, training, and acceptance by politicians,
6
the judiciary,
7
and law teachers.
8
Today, the Act continues to bed in but its usage also
continues to grow as specialist solicitors and barristers, in niche practices
and chambers, explore the jurisprudential possibilities of the legislation.
9
There is a developing internalization of legal norms within the judiciary, the
bar, and senior practitioners, though the litigation process is slow.
10
But a
feature of this development is that it appears to be a top-down process. The
effectiveness of the trickle-down exercise of normative change is widely
reviewed.
11
The mechanistic, hierarchical program me of international
human rights treaties being adopted into domestic law, thereby producing
change at the highest levels which in turn affect and alter court and legal
practice, has a certain ordered appeal based on precedent, despite the
limitations, uncertainties and reinterpretations during the exercise of this
process. The `gap' between the law in the books and the law in practice, as
powerfully exposed by McBarnet, demonstrates how cautious we must be
about these two elements and also, indeed, how we must see the reality of the
law which in itself presents major opportunities for improper exploitation.
12
The legal profession in the United Kingdom continues to constitute the
principal gatekeeper to the courts. However, the solicitors and barristers in
England and Wales do not constitute a homogenous work-practice group.
Matrix chambers, London, does very different work from that undertaken in
Do-It-All chambers in Cardiff. Clifford Chance, London, has a client base of
national and international companies which expects protection and safety
concerning the movement of its money, credit, goods, and intellectual
property around the world. On the other hand, Grabit and Run, Abertuff,
operates with clients on social security benefits who are anxiously waiting
for increasingly hard-to-obtain legal aid certificates in order to stay out of
52
Bercow MP stated in the House of Commons: `We are creating a collision course
between the courts and the House of Commons', 306 H.C. Debs., col. 842 (16
February 1998). The position of the Conservative Party in the House of Commons
regarding the need for the Act was one of great scepticism and very limited support.
7 C. Guarniere and P. Pederzoli, The Power of Judges (2002) 185.
Teacher 360.
9 There is a plethora of literature on the Human Rights Act. Web sites and data bases
allow greater access to the literature, legislation, and case law concerning human
rights.
10 J. Raine and C. Walker, `Implementing the Human Rights Act into the Courts in
England and Wales: Culture Shift or Damp Squib?' in Human Rights Brought Home,
eds. S. Halliday and P. Schmidt (2004) 111.
11 For example, see S. Silbey, `Cultural Analysis of Law' (1992) 17 Law and Social
Enquiry 39; D. Englel and F. Munger, Rights of Inclusion: Law and Identity in the
Life Stories of Americans with Disabilities (2003).
12 D.J. McBarnet, Conviction: Law, the State and the Construction of Justice (1981).
ßCardiff University Law School 2005
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