Human Rights have been a feature of UK law since the Magna Carta. The Human Rights Act (HRA) 1998 enshrined in an enforceable law the majority of the European Convention on Human Rights.
The European Convention on Human Rights (Convention) was drafted after World War 2 by a group of like minded nations called the Council of Europe. They pledged to defend human rights, parliamentary democracy and the rule of law. They wanted to make sure that the atrocities and cruelties commited during the war would never be repeated.
The UK played a major role in drafting the Convention which was ratified in 1951 and came into force in September 1953. The Convention is made up of a series of Articles which define a right or freedom. The rights apply to everyone in the states that have signed the Convention. What is the Human Rights Act?
The HRA came into effect in October 2000. It means people can take a case about their human rights to a UK court. Before then they had to take cases to the European Court of Human Rights in Strasbourg.
Public authorities must act in accordance with the Convention rights. Public officials must understand human rights and take them into account when in their day to day work. This applies if they are delivering services directly or developing policies and procedures.
Some convention rights are absolute while others are limited or restricted. When decisions are made rights must be balanced. Any restrictions must be no greater than is need to achieve the objective.
Anyone who believes their rights have been breached by the state can take a case against the state. The Convention does not apply to disputes between individuals or against private organisations.
There are 16 basic rights in the HRA which were taken from the Convention. They don't only affect matters of life and death like freedom from torture and killing. Protoclos were added to the Convention at a later date. They also affect people's rights in everyday life. Article 1 is introductory and is not included in the HRA. Article 13 states that anyone whose rights are breached should have a remedy in a national court and is not included in the HRA as it is the remedy. Below is an overview of the articles with examples of court rulings and best practice.
Article 2 - Right to life
Article 3 - Prohibition of torture
Article 4 - Prohibition of slavery and forced labour
Article 5 - Right to liberty and security
Article 6 - Right to a fair trial
Article 7 - No punishment without law
Article 8 - Right to respect for private and family life
Article 9 - Freedom of thought, conscience and religion
Article 10 - Freedom of expression
Article 11 - Freedom of assembly and association
Article 12 - Right to marry
Article 14 - Prohibition of discrimination
Article 1 of Protocol 1 - Protection of property
Article 2 of Protocol 1 - Right to education
Article 3 of Protocol 1 - Right to free elections
Article 1 of Protocol 12 - Abolition of the death penalty
The right to life means that the state must protect life. This means the state must not taking the lives of their citizens. There are three exceptions:
When defending yourself or someone else from unlawful violence
When lawfully arresting someone or preventing them from escape when lawfully detained
When lawfully acting lawfully to stop a riot or insurrection
Court ruling - A woman suffering from an incurable disease wanted to control when and how whe died. She wanted her husband to help her to commit suicide withough being prosecuted. The Court ruled that there is not an entitlement to chose death rather than life.
Best practice - A social worker from the domestic violence team at a local authority uses human rights arguments to secure new accomodation for a woman and her family who are at risk of violence from her ex-partner.
Everyone has the absolute right not to be tortured or subjected to treatment or punishment that is inhuman or degrading.
Court ruling - A local authority failed to seperate four children from their mother even though it was clear that the chlidren had been subjected to abuse and neglect over a four year period. The Court found that the authority had a positive obligation to remove the children as soon as they were aware that the abuse could be inhuman or degrading treatment.
Best practice - A health trust has used the HRA to strengthen its policies against harassment and bullying.
Everyone has the absolute right not to be treated as a slave or to be required to perfrom forced or compulsory labour. There are four times of work that are not considered as forced or compulsory:
Work done during legitimate detention or on conditional release
Compulsory military service or civilian service as a conscientious objector
Community service in a public emergency
Work that is part of a normal civic obligation such as maintaining a building if you are a landlord
Court ruling - A 15 year old girl was brough to France from Togo by a woman who paid for her journey then confiscated her passport. It was agreed the girl would work for her until she had paid back her air fare. After a few months she was 'lent to a couple who forced her to work 15 hours a day, 7 days a week with no pay or holidays and without her immigration status being regularised. The Court ruled that the girls rights had been breached and that France had breached its positive obligations as French law had not given her specific and effective protection.
Everyone has the right not to be deprived of their liberty except if there is proper legla reason for arrest or detention in the following circumstances:
Following conviction in a criminal court
For failure to obey a court order or legal obligation
To make sure a person attends court
To make sure a minor receives educational supervision
If a person is shown to be of unsound mind, an alcoholic, drug addict or vagrant or may spread an infectious diseas if not detained
To prevent unauthorised entry into a country or in the process of deportation or extradition
Court ruling - Thousands of people took part in a political demonstration with no prior warning. Traffic and business was halted and the demonstrators were uncooperative. The police cordened off an area and held demonstrators and some others for over seven hours. The conditions became unacceptable and one demonstrator and one bystander brought action. The court ruled that the cordoning off action resulted in a deprivation of liberty but was justified as the police had taken the action to prevent crimes of violence.
Best practice - A hospital psychiatric department had a number of detainees who spoke little or no English. Members of a user-led befriending scheme were concerned that an interpreter was not available. They used human rigts argument to successfuly argue for a change in practice and interpreters were provided.
Everyone has the right to a fair and public hearing within a reasonable period of time. This applies to both criminal charges and cases concerning civil rights and obligations. Hearings must be before an independent court or tribunal extablished by law. The right does not always apply to disputes about immigration, extradition or tax.
Court ruling - A mother with mental health problems had her child taken into care to protect the child. Shortly after she married and her mental health improved. She applied to the cours to staying access then care and control both of which were refused. The court terminated her access and considered putting the child up for adoption. For over two years the mother and her husband tried to re-establish contact. The council delayed the process and failed to tell them the child had been put with an adoptive family. By the time of the adoption hearing the child had been with the adoptive parents for 19 months and had no contact with the mother for three years so an adoption order was made. The Court ruled that the delay by the council was in breach of the mothers human rights particularly given the improtance of the issue and the irreversibility of the adoption.
Best practice - A council has improved its procedures for appeals by appoointing an independent chair.
Everyone has the right not to be found guilty of an offence which was not criminal at the time the action was carried out. People are also protected against later increases in maximum sentences.
Court ruling - A man was convicted of various sexual offences and sentenced to 12 years in prison. He was released after serving two-thirds of his sentence, subject to licence conditions until three-quarters of the way through his sentence. If he had been convicted at the time the offences took place the law at that time would have allowed him to be released without conditions. he argued that the licence conditions were a heavier penalty than would have been applicable at the time the offence was commited and this was a breach of his rights. The court ruled that the Article would only have been breached if the sentence exceeded the maximum penalty that was in force when the offence was committed. This was not the case here as the maximum sentence for rape was life imprisonment.
Everyone has the right to respect for their private and family life, their home and their correspondence. This can be restricted in the following circumstances:
Economic well-being of the country
Prevention of crime or disorder
Protection of health and morals
Protection of rights and freedoms of others
Court ruling - A man suffering from depression attempted suicide by cutting his wrists in the streeet. CCTV cameras filmed him walking down the street with the knife. The footage was published as a film and photographs without his consent or any attempt to conceal his identity. The Court ruled that although the filming and recording of the incident did not interfere with his rights the disclosure of the footage by the local authority was a serious interference.
Best practice - A physical disabilities team at a local authority decided to provide support workers to facilitate social activities. Residents were taken to a number of social events including pubs and clubs. One service user who was gay asked for a support worker to accompany him to a gay pub but the manager refused. An advocate used human rights arguments and the decision was reversed.
Everyone is free to hold a broad range of views, beliefs and thughts and to follow a religious faith. The right to manifest those beliefs may be limited to meet the following aims:
Protection of public order, health or morals
protection of the rights and freedoms of others
Court ruling - A national heritage site traditionally used by druids during summer solstice was lawfully closed by authorities. A druid claimed that the authority had inter fered with her rights. The court ruled that the authorities had the power to close the site. They had done so because they were unable to guarantee the safety of those celebrating the summber solstice and had acted in the interests of public safety.
Best practice - A requirement to swear an oath on the Bible would be contrary to Article 9 as it could compel someone to manifest views associated with a particular religion. An alternative form of solemn affirmation binding on the consci nce of the individual should be provided.
Everyon has the right to hold opinions and express their veiws on their own or in a group. This applies even where the views are unpopular or disturbing but can be restricted:
In the interests of public safety, national security or territorial integrity
To prevent disorder or crime
To protect health or morals
To protect the reputations and rights of others
To prevent the disclosure of information received in confidence
To maintain the authority and impartiality of the judiciary
Court ruling - Newspapers published excerpts from a book which alleged MI5 had conducted unlawful activities. The Government obtained an injunction preventing further publication until proceedings relating to breach of confidence were conclued. The book was published in other countries then in the UK. The newspaper complained that the continuation of the injunction was breached Article 10. The Court ruled that although the injunction was lawful as it was in the interests of national security once the book had been published there was no reason for continuing the publication ban. The injunction should have been discharged once the information was no longer confidential.
Everyone has the right to assemble with other people in a peaceful way. They also have the right to associate with other people and form a trade union. These rights may be restricted for:
prevention of crime or disorder
protection of health or morals
protection of the rights and freedom of others
Court ruling - A group of young men used a shopping area as a meeting and 'hanging out' place. There were complaints from shoppers and shop owners about the nuisance and the police were sometimes involved. The council wrote to the men telling them they were banned from the shopping centre. They argued that they had the right to gater where they chose. The Court ruled that if they had been organising a demonstration or other peaceful assembly they could have relied on Article 11 but as they were simply hanging out in the shopping centre it did not apply.
Men and women have the right to marry and start a family. National law will govern how and at what age this can take place.
Court ruling - In Goodwin v UK the Court ruled that Atriclle 12 allowed post-operative transsexual people the right to marry in their acquired gender once they have obtained legal recognition of their new gender.
When applying other rights people have the right not to be treated differently because of their race, religion, sex, political views or other personal status unless their is an 'objective teason. Everyone must have equal access to the convention rights whatever their status.
Court ruling - A married couple in which the wife was the sole earner complained that income tax rules were discriminatory. Married couples in which the husband was the sole earner were taxed more heavily than when the wife was the sole earner and married couples were taxed more heavily than co-habiting coupoes. The court ruled that the tax measures gave extra advantages to a wife who was the earner was justified as it was to encourage married women to work. The comparison to co-habiting couples did not apply as the protection from discrimination only applies to those who are treated less favourably compared to others in a similar position. There was no breach of Article 14.
Best practice - A local council has revised its policy for adult social care services working with asylum seekers to make sure that asylum seekers with special needs are treated fairly and without discrimination.
Everyone has the right to the peaceful enjoyment of their possessions. Public authorities cannot interfere with a person's property or possessions or the way that they use them. A public authority will be able to breach this if a law says that it can interfere with, deprive or restrict the use of a person's property or possssions and it is in the public interest to do so.
Court ruling - A person's rights have not been violated by having to pay taxes or fines connected to the use of their possessions or property.
Everyone has the right not to be denied access to the existing educational system. Parents have a right to make sure that their philosophical or religious beliefs are respected when public authorites provide education.
Court ruling - Parents of children with special needs can argue that the needs of their child require special facilities that may have to be respected byt the educational authorities. This is not an absolute right and authorities have discretion as to how they allocate limited resources. The Court ruled that authorities can legitimately seek to integrate a child with special needs into a mainstream school even if this is not what the parents want.
Elections for members of the legislative body must be free and fair and take place by secret ballot. Some qualifications may be imposed on who is eligible to vote.
Court ruling - The UK's absolute bar on convicted prisoners voting in Parliamentary elections was found to be a breach of rights. The court noted that a prisoner by fact of his imprisonment did not lose the protection of other guarantees under the Convention and that the removal of the vote cut a prioner off even further from the democratic society in which he lived. The blanket ban on all conviced prisoners sentenced to imprionment was said to be arbitary in its effects and indiscriminate in its application. The judgement left open the question of whether a ban limited to imprisonable offences of a certain severity or imposed expressly by a trial judge based on the facts of the case would be acceptable.
This prohibits the use of the death penalty.