There are only a few days to go until the Human Rights Act comes into force in British law. The Act sets down for the first time people's rights and obligations and ministers and public bodies will have to operate within a set of minimum standards that can be scrutinised and, importantly, enforced by judges.
For the first time the courts will be able to consider the intention of legislation, measuring parliamentary statutes against the European Convention on Human Rights, rather than just looking at its legal meaning.
There are some, including the shadow lord chancellor, Lord Kingsland QC, who do not consider October 2nd a date for celebration, believing the incorporation of the convention into UK law heralds the encroachment of the legal realm into the political.
Writing in the Times this week, Lord Kingsland declared his support for the convention, but opposed its designation into UK law in the form of the Act because of the "adverse domestic constitutional consequences" that would flow from it.
What exactly did he mean? Lord Kingsland and other critics, including the Conservative leader, William Hague, accept that the convention seeks to protect individuals against abuses of power by politicians or public bodies. They are concerned, however, that the new laws signal a "major shift of power" from parliament to unelected judges and magistrates, since it will be the courts that will be charged with measuring legislation against the convention.
In the face of the possible erosion of parliamentary power, Lord Kingsland observed: "If this is an accurate reflection of the new process of statutory interpretation, we are not so very far away from the world of Humpty-Dumpty. What price the democratic will of the people as expressed through a parliamentary statute?"
Another fear is that if the courts make a "declaration of incompatibility" between legislation and the convention, the fast-track system of referring offending legislation to parliament to amend it means judges could be seen to initiate legislation.
The "fundamental problem" posed by the convention, Lord Kingsland said, concerned "the authority of judges in a democratic society to take decisions that have hitherto been perceived to be the exclusive prerogative of elected politicians". Critics have posed the question of who takes precedence - the judges or parliament?
To answer that question the British government has drafted the legislation in such as way to ensure that the courts cannot abolish acts of parliament, and it will be left to MPs to decide whether to amend offending legislation. The Lord Chancellor, Lord Irvine, confirmed as much last week when he declared parliament was the "ultimate authority" and there would be "no obligation on government" to bring forward new legislation.
If the government refuses to amend incompatible legislation, however, an individual can take a case to the European Court of Human Rights.
Under this changing constitutional system, according to Lord Lester QC, who has campaigned for 30 years to make the convention part of UK law, the success of the Act depends on the legislative, the executive and the judicial branches of government securing compliance with human rights. He has rejected the Conservatives' "negative stance" on the Act, insisting judges will be "less likely than elected politicians to pursue populist measures".
In Scotland, the convention has been partly in force for more than a year because of devolution, and in preparation for the new legislation Northern Ireland already has a Human Rights Commission. Lord Irvine criticised the "prophets of doom" who predicted there would be chaos in the courts and many specious arguments by lawyers, but so far only 17 of 587 legal challenges under the Act have been referred to the Scottish Parliament.
One of the first challenges under the Act in England will come in November when Col Nigel Wylde, a former British army officer, stands trial for breaking the Official Secrets Act. He is charged with disclosing information in connection with the book, The Irish War, which described army surveillance systems in Northern Ireland. Col Wylde will use Article 10 of the convention, ensuring freedom of expression, in his defence. And if he ever stands trial, the former MI5 officer, David Shayler, will also use the Act to defend himself against charges under the Official Secrets Act.
The courts expect many claims in the first few months and £39 million has been set aside by the government to cover legal aid payments. Lawyers will no doubt be busy and there could be some fascinating rulings by judges and MPs. As one barrister said this week: "The legal landscape is about to change for ever."