There is little doubt that the Human Rights Act (HRA) will have an impact on the Bar, but views differ as to what the precise nature and extent of the impact will be. As Andrew Nicol QC, of Doughty Street Chambers, points out: "The problem is that it is so pervasive and different to other legislation. It is intended to speak in general terms on the breadth of law and is therefore going to have impact across wide areas."
Grahame Aldous, a barrister at 9 Gough Square, says: "Once the initial flare-up of HRA points has subsided, the effect will be recognisable to lawyers who are familiar with common law and the principles of equity, although some of the terminology will have altered.
"The long-term effect might be to stimulate change, in areas such as privacy, which the courts were working towards in any event. There will be more talk of 'proportionality', but that was coming anyway and was forseen by Lord Diplock in the GCHQ case in 1985."
Can we learn anything from the Canadian or Scottish experience, since both have already introduced similar legislation into their domestic law? Canada's experience suggests there are likely to be two distinct phases of work: "The first wave will focus on social policy litigation such as judicial review of which 90% will concern bad points without legal merit," says Sean Wilken of 39 Essex Street. "This is likely to last two to three years. The second wave will involve commercial litigation. I have been talking with City solicitors about this, particularly in relation to PFI work where they may be considered to be a 'public body' for purposes of Section 6."
Scotland also saw a large number of challenges with only 10% succeeding. It is likely we will see a flurry of cases in England in the early months. But Lord Woolf, in Daniels v Walker, warned counsel against bringing spurious human rights claims that may bring the HRA into disrepute. This view is in tune with the objectives and spirit of the civil procedure rules (CPR) and designed to check those who would otherwise jump on the litigation bandwagon.
The HRA heralds an increase in work for the Bar. The Queen's Bench division was clearing its cases in July so that it could deal with human rights cases, and all judges have had at least one day of European Court of Human Rights (ECHR) training. There are three areas this work will come from:

1. existing litigation may have human rights aspects that were not previously considered;

2. interpretation must be compatible with ECHR (S3 HRA). Where a traditional cause of action brought before 2 October would have failed, this may no longer be the case; and

3. there will be a new cause of action purely based on the issue of human rights.

Joanna Poulton, practice director of 9 Gough Square, says: "Our clients are waking up to the possibilities that cases previously thought unwinnable may now be viable."
In advance of 'D-Day', the Bar is already benefiting from the large amount of advisory work. Many chambers including Doughty Street, 39 Essex Street, 9 Gough Square, Littleton and Blackstone Chambers have been actively involved in training those likely to be most affected by it: public bodies such as the police; the Crown Prosecution Service; General Tax Commissioners; Immigration Adjudicators; and the Lord Chancellor's Department (LCD).
People will bring test cases to see how the courts interpret the new concepts. "There are going to be a few cases that have human rights issues (such as the David Shayler case) where I suspect solicitors will see acute human rights issues and will select the barrister who has expertise in this area," says Andrew Stafford QC of Littleton Chambers.
Initially, the major beneficiaries will be sets with a well-known track record in human rights and public law such as Doughty Street, Blackstone, 4-5 Gray's Inn, 39 Essex Street, 9 Gough Square and the recently formed Matrix Chambers. "Commercial employers have sought to clarify their position as we are seen as experts in this field," says Christine Kings, practice manager at Doughty Street.
Other sets likely to benefit are 11 Kings Bench Walk with its reputation as employment specialists, and Brick Court, which has heavily recruited over the last few months to be better placed to deal with test cases. Those doing treasury work will have a steady stream of work, and it is likely that the Treasury solicitors will be very busy in October. Sets to benefit include Monckton Chambers and 11 Kings Bench Walk.
"In the short term, those practising in judicial review will expect to be busy, but everyone needs to know the Act – those who do not will fall by the wayside," Aldous says.
In the longer term, test cases are likely to die down as major points are clarified, and work will permeate the Bar so chambers that have mainly marketed themselves on their human rights expertise, such as Matrix, may have to take a different slant. Stafford draws an analogy with professional negligence: "Half-a-dozen chambers do professional negligence work but these experts do not have a monopoly. The reason is that – particularly in commercial, tax or matrimonial cases where there is an issue of professional negligence – the solicitor wants someone with expertise in the underlying subject matter. Therefore human rights work will not be limited to just a few 'human rights' sets."
The following highlight some of the areas in which the bar is likely to gain. Libel will be a growth area with the tension between Article 10 (right to freedom of expression) and Article 8 (the right to respect for private and family life). The courts may use Article 8 to introduce the tort of privacy into English law. The media will find it increasingly 'interesting' to balance the right to freedom of expression with the right to privacy. Employers will also have to consider the right of privacy; for example in an employee's use of e-mails since Article 8 includes correspondence.
Article 6 is likely to have the largest impact on the Bar. "Procedural matters, such as protection for a fair hearing before a tribunal, can throw up wide areas," says Andrew Nicol QC. "The Act will have a large impact on how lower tribunals and all public authorities conduct themselves. The impact is on what they do and how they apply it. It is in the detail."
Great efforts have been made to ensure that every disciplinary tribunal is compliant with the ECHR. This article could provide work in areas such as licensing, planning, employment and disciplinary hearings.
Although there is no free-standing right against discrimination, it bites into all aspects of the Convention. Article 9 (right to freedom of thought, conscience and religion) and Article 14 (prohibition of discrimination in the enjoyment of Convention Rights on the basis of sex, race, language, religion etc). These articles will make religious and sexual discrimination an issue. Freedom of association will not give rise to that much work but there is a strong link with employment law.
"Obvious candidates to win work are immigration specialists and the introduction of the new Act will coincide with the Immigration Act, which comes into effect at the same time," says Nicol.
Property is another area that will benefit (Article 1 of the First Protocol). The right to property is broad and likely to include issues as diverse as someone being evicted from their council house, to issues raised bys the return of property or compensation where land has been confiscated (such as the former King of Greece's application for the return of property or compensation for its confiscation by the Junta in 1967 – members of Blackstone Chambers acted for both sides).
A year ago the millennium bug was much hyped, as was the CPR in the legal arena. Only time will tell whether the HRA will be, in the long term, 'much ado about nothing'.

Elspeth Mills Rendall is a barrister and an independent training, marketing and management consultant. She was chambers director at Enterprise Chambers.