New Human Rights Law Changes Face of British Justice

By Patrick Goodenough | July 7, 2008 | 8:08 PM EDT

London ( - Groundbreaking new human rights legislation that took effect in Britain Monday is expected to be used in a right-to-life case involving two brain-damaged patients. The state wants to keep the two alive, against the wishes of their families.

Described as the British equivalent of the American bill of rights, the Human Rights Act incorporates the European Convention of Human Rights into British law.

Citizens will be able to take the government or public bodies - including police, prisons and schools - to court if they feel their rights are being infringed.

In the past Britons wishing to do so have had to pursue their claims through the European Court of Human Rights in Strasbourg, a process that could take years.

Judges in Britain will not have the power to strike down laws, unlike their U.S. counterparts. But a court's ruling that particular legislation is incompatible with the European convention opens the way for parliament to amend the law in question.

While many people welcome the new law, some have expressed concerns about a possible rush on the already overworked courts by claimants wanting to challenge long-established laws, regulations or legal principles.

But the senior government law officer or Lord Chancellor, Lord Irvine, told a press briefing judges would not tolerate lawyers bringing frivolous cases in attempts to exploit the new law.

He said the law's arrival should be celebrated, and he criticized as "killjoys" those British media that have highlighted some of the risks involved.

On Thursday the official solicitor is expected to oppose an appeal by doctors and family members of two patients - one in a permanent vegetative state, the other close to it - who want their tube-feeding stopped to enable them to die.

Since a landmark House of Lords decision in 1993, British courts have agreed to allow 20 patients in a permanent vegetative state to die.

But now the official solicitor, Laurence Oates, is considering challenging this case on the grounds stopping the patients' sustenance would infringe their "right to life," enshrined in article two of the rights convention.

Up to now common law has held that doctors must act in their patients' best interests. Courts have in some cases ruled that it was in the best interests of a patient with no hope of recovery to be allowed to die. But the European convention benchmark now places a positive obligation on the state to protect life.

(The European court in Strasbourg has up to now not had to decide whether the "everyone" whose right to life should be protected includes an unborn child.)

But lawyers for the two families could themselves cite the new human rights law, and argue that article three, which outlaws inhuman and degrading treatment, is being breached by keeping the two alive. Another clause, article eight, upholds the right to "moral and physical integrity," offering another possible counter-argument.

While the patient in a permanent vegetative state has been in that condition for years following a problem relating to an anesthetic, the other one, a woman, has only been in her near-PVS for 10 months - and responds to some stimuli. Up to now courts have only considered allowing a near-PVS patient to die after they have been in that condition for at least one full year.

The case could set a precedent for future cases involving PVS patients.

Test cases await

Other test cases likely to come before the courts in the months ahead include that of David Shayler, a former MI5 operative charged with breaking the Official Secrets Act by publishing secret information about the domestic intelligence service.

Shayler has given notice that he intends to mount a human rights defense, invoking article 10 of the convention - the right to free speech.

Some homosexual advocacy campaigners are planning to fight for a number of legal reforms, for instance affecting inheritance and property rights of same-sex couples.

But Home Secretary (interior minister) Jack Straw made it clear at the weekend that homosexual marriages would not be recognized.

"I'm a very strong supporter of gay rights and treating people the same regardless of their sexual preference, but marriage has a different purpose," he told British television Sunday.

Marriage, Straw said, had to do with "a union for the procreation of children, which by definition can only happen between a heterosexual couple. So I see no circumstances in which we would ever bring forward proposals for so-called gay marriages."

Article 12 says men and women of marriageable age have the right to marry and to found a family. The European court has interpreted this as applying only to "people of the opposite biological sex."

The Human Rights Act has already been in place in Scotland for more than a year, since the establishment of a devolved government there in mid-1999.

Scottish courts subsequently faced around 600 cases linked to the new law, although only 20 were successful.

Broadly, the articles uphold: the right to life, freedom from torture, inhuman and degrading treatment, freedom from forced labor, the right to liberty, right to a fair trial, no retrospective penalties, right to privacy, freedom of conscience, freedom of expression, freedom of assembly, right to marry and have a family, and freedom from discrimination.

They are divided into three categories: fundamental rights, such as the right to life; procedural rights, like the right to a fair trial; and qualified rights, such as the right to freedom of expression, which could be weighed up against another, arguably conflicting right, like the right to privacy.

Patrick Goodenough
Patrick Goodenough
Spencer Journalism Fellow