1. Introduction

1. The Human Rights Act is one of the most significant pieces of constitutional legislation enacted in the United Kingdom.

2. It is a key part of the Government’s programme to encourage a modern civic society where the rights and responsibilities of our citizens are clearly recognised and properly balanced.

3. Its immediate effect will be to allow people to claim their rights under the European Convention on Human Rights in UK courts and tribunals, instead of having to go to the European Court in Strasbourg. The Act underpins this by requiring all public authorities in the UK to act compatibly with the Convention rights.

4. This places new responsibilities on all of us who work in public authorities, which includes central government, the courts, the police, local government and many bodies who carry out functions which the Government would otherwise have to undertake. We all have a vital role to play in building a new human rights culture for the UK.

5. This guide introduces you to the Human Rights Act and the European Convention on Human Rights. It cannot provide a comprehensive guide to all aspects of your work. The aim is simply to explain in basic terms how the Act will work, offer some examples and help you to think about how and why it will affect what you do.

 

2. What the Act does

6. The Government’s broad aim in introducing the Act is to help create a society in which people’s rights and responsibilities are properly balanced and where an awareness of the Convention rights permeates our government and legal systems at all levels.

7. The Human Rights Act incorporates provisions from the European Convention on Human Rights into UK law.

8. When the Human Rights Act comes into effect on 2 October 2000, the Convention rights will be enforceable in the UK courts. At present, people have to take a case to the European Court in Strasbourg, and even then only when domestic remedies have been exhausted. The process is costly and can take several years before the case is finally decided.
 

 

The Human Rights Act:

• makes it unlawful for a public authority to act incompatibly with the Convention rights and allows for a case to be brought in a UK court or tribunal against the authority if it does so. However, a public authority will not have acted unlawfully under the Act if as the result of a provision of primary legislation it could not have acted differently.

• requires all legislation to be interpreted and given effect as far as possible compatibly with the Convention rights. Where it is not possible to do so, a court may

• quash or disapply subordinate legislation or

• if it is a higher court, make a declaration of incompatibility for primary legislation. This triggers a new power that allows a Minister to make a remedial order to amend the legislation to bring it into line with the Convention rights.

• requires UK courts and tribunals to take account of Strasbourg case-law (i.e the case-law of the Court and the Commission in Strasbourg, and the Committee of Ministers). They will also be bound to develop the common law compatibly with the Convention rights.

9. The practical implications of this are discussed in section 5 of this guidance.

10. Because of the importance the Government attaches to respect for the Convention rights, and the need to ensure that their incorporation into UK law meshed properly with another important aspect of constitutional reform - devolution - provisions were included in the Scotland Act, the Northern Ireland Act and the Government of Wales Act to ensure that the devolved institutions would have to act in a way that was compatible with the Convention rights.

 

Article 6: The Right to a Fair and Public Trial within a Reasonable Time

This is a wide ranging and highly developed right which covers all criminal and many civil cases, as well as, for example, cases heard by tribunals and some internal hearings or regulatory procedures. Article 6 accords anyone charged with a criminal offence certain rights, including the right to be presumed innocent until proven guilty and to be given adequate time and facilities to prepare their defence. The emphasis on a public trial protects litigants against the administration of justice in secret with no public scrutiny. Article 6 is discussed in more detail in paragraphs 44-49.

 

Article 14: The Prohibition of Discrimination in the Enjoyment of Convention rights

Not all differences in treatment are discriminatory, but only those which have no objective and reasonable justification. Article 14 only applies to the rights set out in the Convention, and thus there must be another Convention right at issue to which a claim of discrimination can be attached. Article 14 is discussed in more detail in paragraphs 73-78 of this guidance.

 

Article 1 of Protocol 1: The Right to Peaceful Enjoyment of Possessions and Protection of Property

Many possessions are regarded as property, not just houses or cars, but also things like shares, licences and goodwill. The right to engage in a profession can also, in some cases, be a property right. No one can be deprived of their property except where the action is permitted by law and justifiable in the public or general interest. This Article is discussed in more detail in paragraphs 67-72.

 

Interpreting the Convention

16. The Strasbourg court has adopted a number of principles of interpretation of the Convention:

the Strasbourg court takes an overall view of the situation and seeks to give a practical and effective interpretation to the rights.

while rights are widely interpreted and applied to the particular facts before the court, any limitation to those rights, for example the limitations to Articles 8-11, are interpreted narrowly.

the Convention is, in the words of the Strasbourg court, a ‘living instrument’ which must be interpreted in the light of present-day conditions. Societies and values change and the Strasbourg court takes account of these changes in interpreting the Convention. In doing so, it looks to see whether there are common European standards.

• terms or expressions in the Convention have the same meaning for all the countries bound by it. That meaning is given independently by the Strasbourg authorities. The use of an expression in the law of an individual state (such as whether a matter is considered to be criminal or civil) is not conclusive and may not be the same as the definition of that expression in the Convention.

 

17. Under the Human Rights Act, these principles of interpretation must be taken into account by UK courts and tribunals.

 

Public Authorities

19. The Act requires public authorities to act compatibly with the Convention rights. ‘Public authorities’ are not defined exhaustively but the term covers three broad categories:

• obvious public authorities such as a Minister, a Government Department or agency, local authorities, health authorities and trusts, the Armed Forces and the police. Everything these bodies do is covered by the Act. Parliament, though, is not a public authority for the majority of its functions.

• courts and tribunals.

 

any person or organisation which carries out some functions of a public nature. Under the Act, however, they are only considered a public authority in relation to their public functions. So, for example, Railtrack is a public authority in relation to its work as a safety regulator for the railways, but not when acting as a commercial property developer

 

20. In some cases it will be difficult to know if a body is a public authority. You will need to take legal advice to clarify this. However, some key characteristics of a public authority include:

• whether the body performs or operates in the public domain as an integral part of a statutory system which performs public law duties

• whether the duty performed is of public significance

• whether the rights or obligations of individuals may be affected in the performance of the duty

• whether an individual may be deprived of some legitimate expectation in performance of the duty

• whether the body is non-statutory but is established under the authority of government or local government

• whether the body is supported by statutory powers and penalties

• whether the body performs functions that the government or local government would otherwise perform

• whether the body is under a duty to act judicially in exercising what amounts to public powers.

Proportionality

25. This is a crucial concept. Any interference with a Convention right must be proportionate to the intended objective. This means that even if a particular policy or action which interferes with a Convention right is aimed at pursuing a legitimate aim (for example the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances. Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. You must not use a sledgehammer to crack a nut. Even taking all these considerations into account, in a particular case an interference may still not be justified because the impact on the individual or group is too severe

 

Victim

26. Only a person considered a victim can bring proceedings against a public authority under the Act. A victim is someone who is directly affected by the act in question. Victims can include companies as well as individuals and may also be relatives of the victim where a complaint is made about his death. A victim may also be a person who is at risk of being directly affected by a measure.

27. An organisation or interest group or trade union cannot bring a case unless it is itself a victim. But there is nothing to stop it providing legal or other assistance to a victim.

28. Governmental organisations, such as local authorities, cannot be victims

 

5 What the Act Means in Practice

32. The Human Rights Act is about respecting and fostering the Convention rights in everything a public authority does. It provides a new basis for the protection of fundamental rights of every citizen.

33. The Act does this in two ways: it places everyone under a duty to interpret all legislation compatibly with the Convention rights, and requires you, as a public authority, to act in accordance with the Convention rights.

34. What does this mean in practice?

Compatibility of legislation

35. The Act requires that all legislation - Acts of Parliament, Regulations, Orders - so far as is possible, be read and given effect in a way which is compatible with the Convention rights.

36. This is a very strong provision and you must make every effort to interpret legislation in accordance with the Convention rights. Where there are two possible interpretations of a provision - one which is compatible with the Convention rights and one which is not - the one which is compatible must be adopted. The fact that a court may have interpreted a law in a certain way before does not mean that after the coming into force of the Human Rights Act, it will interpret the provision in that same way. Nor can that earlier interpretation be relied upon by a public authority.

37. If a piece of primary legislation cannot be interpreted compatibly with the Convention rights, it will remain in force. The courts will not be able to overrule it. That would be to undermine the sovereignty of Parliament. But a higher court (defined in section 4(5) of the Human Rights Act) can make a declaration of incompatibility, which will create considerable pressure to find some way of amending the legislation so that it is compatible with the Convention rights.

38. The courts may however quash subordinate legislation, such as a Statutory Instrument, that is not compatible with the Convention rights, unless the provision has to say what it does because of a provision of primary legislation. This also applies to legislation made by the devolved administrations.

 

Compatibility by public authorities

39. All public authorities have a positive obligation to ensure that respect for human rights is at the core of their day to day work. This means that you should act in a way that positively reinforces the principles of the Human Rights Act. The Human Rights Act underpins this by making it unlawful for a public authority to act (or fail to act) in a way which is incompatible with a Convention right. This covers all aspects of the public authority’s activities including:

Drafting rules and regulations

Internal staff and personnel issues

Administrative procedures

Decision making

Policy implementation

Interaction with members of the public

40. Respect for Convention rights should be at the very heart of everything you do. If your organisation’s existing procedures are not compatible, it will need to implement new policies and procedures which are consistent with the Convention rights. You should consider how the relevant parts of the Act apply to all aspects of your work, and be able to show that you have done so. You should be able to justify your decisions in the context of the Convention rights, and show that you have considered the Convention rights and dealt with any issues arising out of such a consideration.

41. You also need to think about how, and the extent to which, the laws underpinning your policies and procedures could help you do more to build a culture of rights and responsibilities. There may be issues here to discuss with the senior manager of your organisation and with a sponsoring government department.

42. In your day to day work you have a crucial human rights role to play, not only in ensuring that you always act in accordance with the Convention rights, but also in supporting a positive attitude to human rights issues throughout the community.This is a vital responsibility for all of us.

 

• the right to a fair hearing. There should be a reasonable opportunity to present a case and, in certain cases, to examine witnesses. There should be equality of arms i.e. one party should not be placed at a procedural disadvantage compared with the other. In criminal proceedings, there is a right to the assistance of an interpreter, if needed.

 

• the right to a hearing within a reasonable time. A breach may arise if the public authority fails to organise its system so as to avoid delays, for example, by providing inadequate staff and resources to hear cases within a reasonable time.

 

52. The Government has positive obligations under Article 3 which mean that it is obliged to secure the rights guaranteed by it and to prevent breaches of the Article by one private individual against another, particularly against children and other vulnerable persons. The Government cannot delegate its obligations in this area to other bodies or individuals.

53. There is a duty to investigate allegations of torture and to provide explanations for injuries - for example, where a prisoner or mental patient is found to have suffered physical injury.

 

58. As with Article 3, the State and public authorities may have positive obligations under Article 8 to take steps to provide the rights and privileges guaranteed by the Article and to protect people against the activities of other private individuals which prevent the effective enjoyment of these rights. The meaning of this will depend on the nature of your work and the extent to which Article 8 issues are involved. Legal advice is likely to be needed.

 

Does my work affect a person’s possessions or his ability to carry on a trade or profession?

67. Article 1 of Protocol 1 aims to ensure that a person’s (including a company’s) possessions are not unfairly interfered with.

68. Possessions are things of economic value. They include goods, shares, rights under contracts (including leases), land, rights to run a business (including licences or registration), goodwill and damages or other sums awarded by a court or tribunal. The term has a very wide meaning, but it covers only existing possessions and existing legal rights. It covers, for example, the right to receive benefits under a pension scheme, but not the right to inherit property at some point in the future. Refusal to grant a licence would not bring Article 1 of Protocol 1 into play, but revocation or refusal to renew a licence might. Article 1 of Protocol 1 covers property not just owned by individuals but also owned by a company or other private body, such as a charity or trade union.

 

69. Article 1 of Protocol 1 is made up of three rules concerning:

• the principle of the peaceful enjoyment of possessions.

• the deprivation of possessions.

• the right of the State to control the use of property in the general interest or to secure the payment of taxes or other contributions or penalties.

Does my work risk discriminating against people in an area involving other Convention rights?

73. Article 14 provides for people to enjoy the Convention rights without 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.

 

74. The phrase "or other status" has been interpreted in Strasbourg to include, among other things, sexual orientation, marital status, illegitimacy, status as a trade union, military status and conscientious objection.

75. The application of Article 14 involves more than simply deciding whether a person has been discriminated against in the enjoyment of a Convention right and if so whether he or she comes within one of the listed categories (including "other status"). The European Court of Human Rights would also consider whether there was an objective and reasonable justification for treating different categories of people in a different way, and whether any such differential treatment was proportionate to the aim pursued.

 

Annex D

Convention Check List

Am I interfering with a Convention right?

1. The Human Rights Act makes it unlawful for a public authority to act or fail to act in a way which is incompatible with the Convention rights.

2. Everyone working in a public authority needs to make sure that everything they do reflects a respect for human rights and is compatible with the Convention rights.

3. It will not always be easy to tell if this is the case. The need for early and appropriate legal advice cannot be over-emphasised. However, we all need to take responsibility for our own actions, and we must get into the habit of thinking for ourselves about the human rights implications of our work.

4. There is a logical series of questions you can ask yourself in trying to identify if you may be interfering with a Convention right. By following the steps outlined below, you should be able to carry out at least an initial assessment of the compatibility of your work.

 

• Could what you are doing touch on one of the Convention rights?

5. You need to know enough about the Convention rights to tell when they might come into play. For example, if your policy or procedure affects someone’s ability to carry on a trade, Article 1 of Protocol 1 could be relevant.

 

• Is there a victim?

6. Could someone argue that they have suffered, or might do, as a result of what you are doing? For example, if your tribunal or decision-making body is not independent and there is no right of appeal to an independent body, a person might be able to show a reasonable likelihood that their Article 6 right to a fair trial had been infringed.