The Human Rights Act 1998 not only heralds a very important legal and constitutional development in the United Kingdom, but it is going to have a significant impact upon the work of all local authorities.

The introduction to the Human Rights Act 1998 states that it further incorporates the European Convention for the Protection of Human Rights and Fundamental Freedoms into English law.

Now, I said the Act 'further incorporates' human rights into English law. Certainly the concept of Human Rights isn't new. The birth of Human Rights in Britain is often seen as the signing of the Magna Carta by King John in Runnymeade, as I'm sure you will all know from your schooldays, on 15th June 1215. The charter guaranteed human rights against the excessive powers of the King. You'll see as we go on to discuss in a moment the human rights protected by the new Act, how the origins of many of those rights can be directly traced back to the signing of the Charter. For example, one of the guarantees in the Magna Carta provides that no man should be punished except without the judgement of his peers or by the law of the land.

Probably, the next significant development in Human Rights and in the British constitution was the passing of the Bill of Rights by an Act of Parliament in 1689. The Bill of Rights contained the conditions on which William and Mary were offered the English throne. The Bill placed significant limitations upon the use of the royal prerogative and also enshrined some of the rights we are familiar with today, such as the freedom of parliamentary elections and the freedom of speech in parliamentary debates. The Bill also established special equity courts of law and provided individuals the right to petition the sovereign.

Really the impetus, however, to secure human rights on the international scene, came with the ending of the second world war. In Europe, the Council of Europe was set up in 1949 with one of the aims being to protect human rights. The Council of Europe now has some 40 members after many of the Eastern bloc countries joined in the 1990's.

The European Convention for the Protection of Human Rights, was agreed between the member states of the Council of Europe and signed by the United Kingdom in 1951. However, despite the fact that the UK was one of the first signatories, and that British lawyers took a central role in drafting the treaty, unlike other states, the UK did not set about incorporating Convention rights into domestic law. Indeed it has only taken the government 47 years to finally achieve it!

Nevertheless, in 1966 UK citizens were given the right of individual petition to the European Court of Human Rights. Since then individuals can and indeed do take legal action to enforce their human rights against the state. Recent major cases, which I'm sure you've heard about on the news, include the question of homosexuals in the armed forces, the issue of child offenders tried in adult courts, and in the last few weeks, the legality of arrests for breaches of the peace in connection with hunt saboteurs. Many of these cases over the years have led the government to consider changes to the law.

And so to bring us right up-to-date, the government has finally incorporated the European Convention into domestic law by the passing of the Human Rights Act 1998.

So, having said all this and given that there already exists the possibility of taking action to enforce human rights, you may well wondering - what's all the fuss about?

Well, at the moment, in order to make a claim to enforce your human rights, you will have to go all the way to the European Court of Human Rights in Strasbourg. This not only takes a very long time, on average six years, but it is also extremely expensive. The average cost is in the region of 30,000 pounds. In addition, all English legal remedies have to be exhausted first and taking action becomes more difficult by the fact that the procedure used is very different to that in the English courts. Finally, there is no duty on public bodies to comply with human rights and court actions can only be taken against the state and not the organisation in question. In reality, therefore, challenging a breach of human rights will be an unrealistic option for most people.

Once the Act is in force, however, then Human Rights arguments will be able to be heard in any forum in the United Kingdom where legal rights are determined and as part of any legal proceedings - that includes the local County courts, magistrates courts and even some Council Committees. That will of course make enforcing your human rights straight away much quicker and cheaper. Human rights will be able to be argued at any time in legal proceedings, so there will be no need to wait, and as such arguments can be brought in the local courts, the procedure will be much the same.

The most significant difference, however, is that human rights haven't just come across the Channel and marched up to our front door - they've literally invited themselves inside. As we have seen, there was no enforceable duty on local authorities to comply with human rights. Once the act is in force, by virtue of section 6, public authorities will have a legal duty to comply with convention rights except where prevented from doing so by law. That means that local authorities will have to ensure they are complying with human rights in every action they take. Further, it means that unlike previously, individuals who believe their human rights have been violated, can take direct action against local authorities in the courts and can claim compensation from those authorities.

I'm sure you can appreciate, therefore, it will be much easier and there will be more incentives for people to bring human rights arguments against local authorities. The 1996 Consultation Paper produced while the present Government was in opposition, was entitled 'Bringing Rights Home' and that is certainly what the Act attempts to do.

Who will the Act effect ?

When does it come into force ?

What rights do we have ?

Are these rights unlimited ?

And, what are the remedies for non-compliance ?

Easy question first - who will the Act effect?, and easy answer - everybody!

All of us as individuals have rights under the convention which will become enforceable. Further, in limited cases legal personalities, such as companies and corporations, may also be able to enforce convention rights.

The Act will be enforceable against public authorities. This will include local authorities, but will also encompass government departments, the courts, the police, and potentially companies with a quasi-public role such as Railtrack.

As Officers of local authorities we will, as a result of the section 6 duty, have to consider the human rights implications of the work which we carry out.

Even Parliament does not get away with it, as when a new Bill is introduced into Parliament, under section 19 of the Act, the Minister responsible will have to certify that it complies with the convention rights.

When does the Act come into force?

The Act was originally due to come fully into force by April 2000.

However, the Act will now come fully into force on ... 2nd October 2000.

What is important to note is that the Courts are becomingly increasingly prepared to hear human rights arguments in advance of the Act coming into force. Further, decisions made now may become subject to challenge if proceedings by a public authority are impending at the time of implementation. For example, if a planning prosecution is brought now which is appealed by the defendant, it is likely that the appeal will be heard after the 2nd October and therefore human rights arguments may be heard as part of the appeal proceedings.

The reason behind the delay in bringing the act into force was to enable public authorities, including the government, to become fully compliant and to ensure that the courts and judiciary have had adequate training in human rights issues. The need to ensure compliance as from the commencement date has been much emphasised by the government - so you've been warned!

So, what rights do we have? These are the rights which are incorporated by the 1998 Act into UK law and are in fact set out in Schedule 1 of the Act. Not all Convention rights are incorporated, notably Article 13 has not been included. This provides the right to a remedy. As the 1998 Act provides remedies for infringements of Human Rights then it was thought this particular Article was not required.

There are a number of rights and for completeness I am going to include them all - starting with

Art. 2: which is the Right to Life

Art. 3: the Prohibition of Torture

Art. 4: the Prohibition of slavery and forced labour, and

Art. 5: Right to liberty and security

I think all of these are fairly self-explanatory.

Article 6 is the first of one of the rights which will have an effect upon the work of planning officers, and of course I shall talk more about how in the second half. However, I think it is beneficial to look at Article 6 in more detail at this stage.

Article 6 applies separately to civil proceedings and criminal proceedings. In relation to civil proceedings Article 6 provides the following: "In the determination of civil rights and obligations everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law."

You can see that there are at least four essential elements to this right in relation to any court, tribunal or committee where civil rights are in issue.

If we move on, in relation to criminal proceedings, Article 6 states that everyone charged with a criminal offence is innocent until proven guilty.

The Article then goes on to provide additional minimum rights to those charged with a criminal offence. The minimum rights are as follows: that the accused is informed promptly of accusations in a language he understands, that he is given adequate time and facilities to prepare his defence, that he is permitted to defend himself and to examine witnesses. You can see that these minimum rights are on the whole already provided for by our criminal justice system.

Art. 7: provides that there shall be no punishment without law, straight out of the Magna Carta, and

Art. 8: ensures the right to respect for a person's private and family life, home and correspondence. Clearly, this is another right that is likely to make a big impact upon the work of local authorities. I'm sure you can see that probably everything you do in the planning spear will infringe the right to a person's home life, so I shall be talking a lot more about this right, in particular, in due course. However, for the moment it is absolutely clear that the European Court have consistently considered that it is the essential role of Article 8 to protect the individual against the arbitrary actions of public authorities. Further, Article 8 places both a negative and positive duty upon local authorities. In other words, local authorities must refrain from infringing the right and as well as actively taking steps to ensure the protection of it.

The next three seem naturally to group together -

Art. 9 - Is the freedom of thought, conscience and religion,

Article 10: Freedom of expression.

And Article 11: the freedom of assembly and association

Article 12 is the right to marry, this only applies to couples of separate sexes.

Article 14 is very important as it is the right not to be discriminated against. Article 14 is not a stand-alone provision but effectively piggybacks the other rights, in that it provides that all the other convention rights should be enjoyed without discrimination. The categories of discrimination are very wide and certainly extend current UK discrimination law. The Act specifies that there must be no discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

The European Court has added to that list - sexual orientation, marital status, illegitimacy, status as a trade union, military status and conscientious objectors.

This article again puts a positive duty upon local authorities to ensure that the right is protected.

Moving on to the Protocols attached to the Convention - the First Protocol, Article 1, again is very important for planning purposes as it ensures that every natural or legal person is entitled to the peaceful enjoyment of his possessions. Note that this relates to natural and legal persons, and therefore will include individuals as well as legal personalities, such as companies, associations, partnerships, corporations etc.

'Possessions' also has a wide meaning to include contractual rights, leases, land, licences and even the goodwill of a business.

Article 2 of the first protocol is the right to education, article 3, the right to free elections and finally the sixth protocol abolishes the death penalty.

In relation, to the right to free elections, there was a recent case in the UK involving a homeless person who wished to use the address of his day centre to register on the electoral role. He was refused by the electoral officer, but, the court found in his favour, one of the main arguments being his right to vote. I mention this case merely to illustrate the point that we shouldn't take any of the rights for granted, even though we may feel that we must be fully compliant as such rights have been in existence for a number of years.

Additional rights can be ratified by the government, so it is likely some of the other Protocols may eventually be brought into force. One of the next ones which may be brought into force is I think the seventh Protocol which relates to the rights of aliens. I don't think that's the little green man variety. However, the government is reviewing current immigration legislation before deciding whether to ratify those particular articles.

Now, you are probably thinking that in the course of your work you are bound to infringe someone's rights. For example, in carrying out planning enforcement action one is almost bound to infringe article 8, the right to respect for the home and article 1 of the first protocol, the right to peaceful enjoyment of one's possessions.

But if these rights were unlimited then people might be able to build on their land with impunity and consequently potentially infringe the rights of their neighbours.

This brings us on to one of the key concepts of the Act which is a fairly new concept to English Law, and that is the concept of proportionality.

Some of the rights are absolute, and cannot be infringed by a public authority for any reason. Examples of these are the prohibition on torture and the prohibition on slavery- I'll leave you to decide if your employers infringe these ones.

The other rights are qualified - this means they may be infringed providing certain criteria are met - some of the rights have specific limitations listed under the article, for example, under Art 2, the right to life, there is a specific exemption to provide for the defence of using reasonable force in self-defence. Likewise there are particular limitations in relation to the freedom of religion, article nine, and article ten, the freedom of expression, placed to appease the Church of England and to control the press.

- other articles, such as article 8, place a more general limitation on the right

Before we look at this more closely it is worth noting that although a wide interpretation is often given to the rights, the European Court tend to place a narrow interpretation on the limitations to those rights.

As you will recall, Article 8 provided the right to respect for private and family life, home and correspondence. Subsection 2 of article 8 provides the following:-

" There shall be no interference by a public authority with the exercise of this right except such as in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others."

Therefore, before carrying out any actions or making any policy decisions which may interfere with an individual's human rights under article 8, such as deciding to take enforcement action, the following questions, have to be asked in order to determine whether the breach will be justified: -

1. Is the interference prescribed by law?

Clearly there are statutes which prescribe that enforcement action may be taken such as the Town and County Planning Act.

2. Is it necessary in a democratic society?

European case law has held that this encompasses three separate questions, first of all does it fulfil a pressing social need?

secondly, does it pursue a legitimate aim? and finally, is it proportionate to the aims being pursued?

Of course the test of whether it fulfils a pressing social need can be compared to the expediency test under s 172 of the Town and Country Planning Act. So that local planning authorities can only use their power to issue enforcement notices where it appears expedient to do so. As you can see, a lot of this isn't reinventing the wheel!

Of course, even if the action fulfils a legitimate aim and is fulfils a pressing social need, it must be proportionate in all the circumstances. Proportionality concerns the balancing of the rights of the individual against that of the community. If there is a lesser action which equally fulfils the community need then clear it will be a breach of human rights to take the more severe course. The concept of proportionality can be briefly explained... You can't use a sledgehammer to crack a nut!

If you think about it, the concept hear isn't that dissimilar to PPG 18 which states that enforcement action should always be commensurate with the breach of planning control to which it relates. Accordingly, PPG 18 provides that it is usually inappropriate to take formal enforcement action against a trivial or technical breach of control, which causes no harm to the amenity in the locality of the site. Further, it will generally be regarded as "unreasonable" to issue an enforcement notice, solely to remedy the absence of a valid planning permission, if it is concluded, on the enforcement appeal, that there is no significant planning objection to the breach of control alleged.

Finally, though, although one can provide such general guidance, because the concept of proportionality depends upon whether or not something is excessive in the circumstances, whether something amounts to a breach of human rights, will depend upon the specific circumstances of the individual case. Further, any interference with human rights will therefore have to be carefully planned to ensure that the action precisely meets the aim in question.

Finally, the third question after whether it is prescribed by law and whether it is in the interests of a democratic society, is does the justification fall within one of the aims set out in the Act. These are:

- national security

- public safety

- the economic well-being of the country

- the prevention of disorder or crime

- the protection of health or morals, and

- the protection of the rights freedoms of others.

As you can see these aims give local authorities quite a wide range of circumstances in which it will be legitimate to act.

Our final question for is to explore the remedies available under the act for non-compliance with Convention rights. The first of these is not directly relevant to public authorities, the others can be directly used against local authorities and in proceedings against local authorities. The four remedies are as follows:

Declarations of Incompatibility,

Proceedings against public authorities,

Judicial Review, and

the use of human rights as an argument in any other proceedings.

Declarations of Incompatibility.

As I said, the first remedy does not directly effect the work of local authorities, but it is important because it highlights the fact that all law must now be read with the Convention in mind. Section 3 provides that legislation must be read in a way which gives effect to Convention rights. Further section 2 provides that domestic courts must take account of European jurisprudence - the case law of the European Court.

It is important also to remember that the Convention is a 'living instrument' and therefore there is an in built flexibility to adapt to the changing social mores and values of society.

Naturally, this means that lawyers and planners will have to be aware of European case law and continually keep themselves up to date.

However, if the Courts simply can't interpret legislation in a compatible way, then, under section 4, they may declare the legislation incompatible. The legislation will still be valid and continue to apply until amended. In this way Parliamentary sovereignty is preserved. If such a declaration is made then there will clearly be pressure on the government of the day to introduce new legislation to remedy the inconsistency. There is a special fast track procedure under section 10 of the Act to facilitate this. Obviously, recent legislation is supposed to have been passed with the introduction of the Act in mind!

By section 7(1)(a), actions can be brought against public authorities for breach of the section 6 statutory duty, or breach of Convention rights. Actions can only be against public authorities and not between individuals. Individuals eligible to bring such proceedings are known as 'victims'. It is clear that a local authority cannot be a victim under the Act, although they may be able to use Human Rights arguments as a defence to a claim.

It is thought that pressure groups, such as Liberty, will not be able to be victims in their own right, although they might be able to show sufficient interest to bring judicial review proceedings. Of course, such groups will be able to provide financial and other support to help victims bring claims, and I suspect many are already gearing up to do just that.

Actions will be similar to existing actions in tort such as breach of statutory duty, or negligence. They will be brought in the appropriate court, more then likely the County or High Court.

Further, there is a one year limitation period, that is to say actions must be brought within one year of the breach, although the courts may grant an extension where equitable. However, where there is a shorter limitation period that will continue to apply. For example, the three month period for initiating judicial review proceedings will remain.

Under section 8, the courts will have the same remedies as they currently have. This obviously gives the courts wide powers to award what is just and appropriate in the circumstances. The remedies will include damages, injunctions and other types of declaratory relief. Damages will be awarded on a just satisfaction basis taking account of all the circumstances of the case. Again European principles must be considered and damages tend to be more modest, in the region of ten to fifteen thousand pounds, for non-pecuniary loss.

Just as an aside you may well be aware that there is as we speak consideration of the amount of damages awarded by the Court of Appeal in a number of specimen cases. Commentators expect damages to potentially be raised and certainly some are calling for figures to be doubled so we will have to wait and see the decision but it could potentially have a considerable knock on effect to increase damages in general.

Heil v Rankin (+ associated appeals).

Section 7(3), provides a new ground for judicial review to challenge decisions made by public authorities. The ground is illegality in that there was a failure to comply with the convention. The usual judicial review remedies can be obtained. It is likely to be easier to succeed on a judicial review argument on this ground, as it will avoid the test of Wednesbury reasonableness, which provides that the court will not interfere with a decision of a public authority unless it is so unreasonable that no reasonable authority would have come to the same decision. I'm sure you can see breach of a convention right may be a lot easier to prove.

Finally, under s 7(1)(b), human rights issues can be argued in any court or tribunal. So for example, in criminal proceedings as a defence or to exclude evidence, at the employment tribunal, or in appeals. In this way, the convention is being woven into the English legal system. Lawyers and planners will have to become much more flexible in the arguments which may be employed

I want to look specifically at how the Human Rights Act may affect planning decisions and enforcement action.

First of all I want to look more closely at Article 6. Okay, just to recap you will remember Article 6 ensures that in the determination of civil rights and obligations, everyone is entitled to a fair and public hearing, within a reasonable time by an independent and impartial tribunal established by law.

Naturally planning determinations essentially involve property rights. planning determination are therefore likely to be considered to be involve the determination of civil rights. Accordingly, the provisions of article 6 may potentially apply to determinations made by Planning Committees.

However, it is not necessary that Article 6 is complied with at every single stage of a local authority's decision making process. What will save such a decision is if there is a right of appeal to a judicial body which complies with the Art. 6 rights. In some cases express rights of appeal are granted. However, if such an appeal is not guaranteed, the decision may be saved if it can be judicially reviewed by the High Court.

The leading example of this is the case of Bryan v United Kingdom. This case involved a planning enquiry on an enforcement appeal. The European Court held that such an inquiry had constituted a fair and public hearing. However, it did not meet the criteria of an independent and impartial tribunal. This was because the Secretary of State could intervene to determine the appeal himself. However, the applicant's rights under Article 6 were not breached as the defect was remedied by the ability to judicially review the inspector's decision in the High Court.

Many commentators have therefore highlighted the planning process as an area of concern as far as Article 6 is concerned. One particular area of concern is the rights of third-party objectors to planning decisions.

Traditionally, third party objectors to planning committees have had few rights and there is certainly no right of appeal for objectors from the local authority stage. The private individual interests of objectors are only capable of being relevant in planning decisions in exceptional circumstances. This situation should be contrasted to the Convention where there is an emphasis on individual rights. Accordingly, a change inn attitudes may be required.

Some academics equally consider that similar arguments can be applied to the Borough Plan.

Following the Bryan case, therefore, objectors at planning committees may argue that their right to a fair trial has been breached. If the process is to be saved by the existence of judicial review proceedings in the High Court, it will be vital for local authorities to provide adequate reasons for adopting or rejecting proposals. In this way objectors will know if they have an effective challenge to the High Court.

I noticed a case in the Times a couple of weeks ago concerning a headmaster who had excluded an abusive parent from his school. The parent challenged the decision, and although there was no reference to human rights in the case report, the outcome seemed very relevant in this context. The court decided that the local education authority should have afforded the parent the right to make representations before a decision as to whether or not to prohibit her from the school premises was made. Accordingly, you can see how the courts are increasingly moving to a position which ensures people have a fair say before action which limits their civil rights is taken. Note this decision if you intend to exclude abusive member of the public from your premises.

Naturally, in criminal cases for enforcing planning breaches, defendants will be entitled to the minimum rights provided by this Article, they are informed promptly of accusations in a language they understand, they are tried within an adequate time, they may defend themselves, have facilities to prepare for their defence and the opportunity to examine witnesses.

As I'm sure you appreciate these are mainly already enshrined in our current criminal system. However, there are areas which the European Court have considered further.

One area already considered by the European Court is the disclosure of prosecution material. Full disclosure is seen as a crucial precondition of a fair trial. The prosecution must disclose all relevant material whether or not they intend to rely on it and whether or not it may be used by the defendant. This would include materials which may undermine the prosecution case.

The reasons behind this is that the whole ethos of European case law in this area is that there must be equality of arms between the parties and generally the prosecution has more resources available to it then the defence, although this may not always be the case for poor old local authority prosecutors.

Another area which is bound to increase is the use of abuse of process arguments based on breach of conventions rights. For example, where there has been a considerable time delay which has prejudiced the defendant's case, a defendant may have added scope for arguing that they have lost the opportunity to have a fair trial. Further, one of the minimum rights is that the defendant is entitled to a hearing within a reasonable time.

Finally, art. 6 is going to have implications for the collation of evidence in a fair manner and the use of evidence in court which may be unfair, for example, untested hearsay evidence or evidence from anonymous witnesses or witness behind screens , may be a breach of this requirement.

I have recently, had a real life example of the ways in which other authorities are approaching the Human Rights Act, and in particular the implementation of this Article. The Magistrates court in my area has decided that means enquiries of defendant must from now on be conducted by the prosecution and not by the Clerk to the Court, as the Justices' Clerk, as part of the tribunal of the Magistrates' court, must be impartial, and to conduct such enquiries might be seen to be acting in a partial way. It's always interesting to hear other agencies preparations for the Act.

I now want to move onto Article 8, the right to respect for home, private and family life. As I said in the first half, this is likely to have a significant effect on the work of local authorities. One reason for this is that the terms of 'home' and 'family life' have been given a very wide definition by the European Courts.

The main European case in this area is that of Lopez Ostra v Spain. The case involved an area of Spain which had a number of tanneries. A waste treatment plant was built for the tanneries, close to the applicant's house. The plant was built on local authority land and funded by a public subsidy. A number of complaints were made to the local authorities stating that the plant caused severe pollution to the nearby residents. However, the authority failed to take any action. A claim was taken to the European Court and the court held that the state had violated the Applicant's rights under article 8.

The following main points can be adduced from the case:

1. 'Home' can include severe environmental pollution, this is because on a wide interpretation of the Article, home and private life can be spoiled by external pollution, whether it is in the forms of fumes, noise, or visual impairment.

2. Further this is the case irrespective of whether the pollution either endangers health or threatens to endanger health. Pollution on its own is sufficient you don't have to prove you health may be damaged by it.

3. There is a positive duty placed on local authorities to take reasonable and appropriate action to secure article 8. The authority must be proactive and not just reactive.

4. This duty is in place even though the plant was not owned by the local authority. It was sufficient for the plant to be built on public land and to be publicly funded. The applicant did not have to show that the authority directly controlled the plant.

5. There must be a fair balance struck between individuals and the community. In other words the actions of the authority had to be proportional.

6. And finally, the economic well being of the community and the rights of individuals were relevant considerations. If we remember back to the legitimate aims the economic well-being of the community was one of those, but in this particular case the individual rights of nearby property owners overcame that factor.

Accordingly, it is clear that a local authority will be liable for inaction or for an insufficiently speedy and robust action against violators of article 8. This may require local authorities to respond speedily to enforce planning conditions especially where noise or pollution maybe a factor. Further, the fact a planning authority permits development may be sufficient to found liability.

In this case, the Applicants won damages for both pecuniary and non-pecuniary loss.

Finally, on the topic of speedy enforcement action. I have noticed that there have been a number of Ombudsman decisions recently criticising local authorities for failing to swiftly take enforcement action, and certainly those criticisms may increase after the Act comes into force.

A similar case, is Guerra v Italy. The forty applicants in the case lived 1 kilometre from a chemical factory. It was held that their rights under article 8 had been infringed as there was a risk of pollution and the local authority had not taken sufficient action to minimise the risk. In particular, the local authority was in breach because families had been denied essential information which would have enabled them to assess the risk to them and their families.

However, the story is not that simple, because the rights of victims have to be weighed against the fact that if enforcement action is taken it may infringe the violator's right to privacy or peaceful enjoyment of his possessions. I don't want to make it sound as if you are damned if you do or dammed if you don't, but clearly you can see how the issue of proportionality will be vital. Overzealous use of enforcement action will equally infringe human rights.

The decision to take enforcement action must ensure that it is authorised by law, and necessary in the interests of a democratic society, providing a proportionate response to the presented problems.

An example of this is the case of Buckley v UK. Gypsies purchased a plot of land and applied for planning permission for three caravans. The local planning authority refused because it would detract from the rural landscape, was contrary to the local development plan and might jeopardise road safety. The caravans were nevertheless stationed on the land and an enforcement notice and criminal proceedings were subsequently issued. The gypsies went to the Court of Human Rights alleging that the enforcement action violated articles 8 and 14. It was held that the right to respect for home could be relied upon where the home had been unlawfully occupied or established. The planning determination, enforcement notice and criminal proceedings therefore interfered with that right. However, the enforcement had been in pursuit of the legitimate aims of public safety, economic well-being, the protection of health, and the protection of rights of others as set out in article 8(2). Further, the interests of the community and the individual's right to a home had been weighed, and the decision to take enforcement had not been disproportionate. Accordingly, the interference was justified and there was no breach. One of the key questions which the authority had taken account in that decision was the availability of alternative sites.

One further consideration in this respect, is that the Council's own policies and activities which have an impact on environmental and planning factors must be human rights complaint. One authority's tourism department, we won't mention any names, has a habit of putting up posters advertising Council events. It could be argued that it can not be a proportionate response to have a policy of prosecutions for fly-posting when the Council's own activities are not compliant.

Obtrusive investigations may well infringe the right to respect for a private life. Examples, such as telephone tapping and covert surveillance have been found to breach article 8 by the European Court.

Finally, the right to respect for privacy also compliments the Data Protection legislation in terms of ensuring that private information is kept just that. Naturally, the wider interests, such as investigating criminal offences, may make it necessary for such rights to be infringed.

Similar considerations will apply under this article as under article 8. In the case of S v France, it was held that a grant of planning permission may affect the right of peaceful enjoyment of property of neighbours already in the vicinity.

Accordingly, any interference with the right to peaceful enjoyment of possessions by the use of planning control, must achieve a balance between the demands of the greater community and the protection of the fundamental rights of individuals.

The main case under this article is Sporring v Sweden which concerns town planning in Stockholm. The applicant's property was subject to lengthy permits and prohibitions on construction. It was held that there had been an interference with the applicant's rights of property as their ownership of the property had effectively been made redundant by the planning controls on it.

There had to a fair balance between the protection of property. The requirements of the general community interest had been upset by the prolonged extension of the permits and prohibitions. This protocol can therefore be used to challenge excessive planning conditions and enforcement action based on such conditions.

Other rights which may potentially effect planning considerations are as follows:

Articles 9, 10 and 11 concerning the right to religion, freedom of expression and freedom of assembly may need to be taken into account when making planning determinations or taking enforcement action. For example, local authorities wishing to oppose the building of a temple may have to show that they have had regard for the right to respect for religious beliefs and the restriction is prescribed by law and proportionate.

Freedom of religion and expression might provide a defence to some adverts.

Further, there are cases where interviews and the service of notices have been found to have breached the prohibition on inhuman and degrading treatment under article 3. However, the case law under this article, suggests that the treatment has to considerable for the right to be breached and therefore it is not going to be something we are likely to be concerned with.

Finally, I have already mentioned the use of article 14, the prohibition on discrimination in relation to gypsies in the Buckley case. In addition to the article 8 arguments, the gypsies maintained that planning legislation was discriminatory as it prohibited them from stationing their caravans on unoccupied land, and therefore from leading their traditional way of life. The court held that planning legislation was not discriminatory. It also important to ensure that policy decisions are not discriminatory, I'll touch on this in a moment.

And that leads me neatly on to decision making. As I have indicated, decision making by the authority will need to take express account of human rights implications. There needs to be consideration of whether a policy may interfere with a convention right. If so, the Council must then determine if such interference is justified by law and the response is proportionate in all the circumstances. It may be that a less intrusive policy will suffice. Consideration must also be had as to whether the policy either directly or indirectly discriminates against a proportion of the community. One example of indirect discrimination may be a policy of enforcement against HMO properties, which may indirectly discriminate against asylum seekers, because the nature of the properties means that they tend to house such people.

Finally, the authority must ensure that the decision and the human rights considerations have been adequately documented. This will be vital if the fact that a policy is a proportionate response to a community need will later be used to justify interference. It is recommended all committee reports include a section for human rights considerations to be set out.

Now, I'm afraid I am going to mention two dirty words -I've never seen anyone pay so much attention - don't get too excited because the words are best value. It is clear in determining best value, policy makers will have to have human rights in mind. In particular, the role of the planning enforcement officer, unlike his planning colleagues, is not a statutory function which the authority must carry out. However, as a mater of human rights, it is clear that an authority might infringe human rights where appropriate enforcement action is not taken. As a matter of best value it is therefore sensible for an authority to ensure that it maintains Convention compliance by placing sufficient resources into swift and defective enforcement in legitimate cases.

Of course these are only examples and the limits on the types of actions that could potentially be brought under this Act is only limited by the inventiveness of Claimants and their legal advisers!

So I've provided a summary of suggested activities to ensure your departments will be Human Right compliant:-

First of all we will need to consider the ways in which our policies and actions infringe human rights and were they are infringed ensure that the breach is justified in that it is prescribed by law, legitimate, proportionate and fulfils one of the specified aims.

Secondly, we need to ensure that those decisions are adequately documented, in particular human rights considerations should be fully considered within Committee reports.

Local authorities will have to move to a human rights culture, so that human rights are part of regular working environment. Naturally this will include the need for training programmes.

. I am going to leave you with a quote from our current Home Secretary during the debates in Parliament on the Act -

The Act will have profound implications for the conduct of all public authorities, for the interpretation of legislation and for the operation of the Court system at all levels. It will be much easier for people to rely on their Convention rights against public authorities, and I believe they will take that opportunity."

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