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4. Key Concepts
5. What the Act Means in Practice
6. Questions and Answers
Annex A: An outline of the Human Rights Act
Annex B: Human Rights Act key provisions (table)
Annex C: The Convention rights in full
Annex D: Checklist - How to tell if you are interfering
with a Convention right
This guidance was produced by the Human Rights Task Force. The Task Force is chaired by Mike O'Brien, MP, (Minister of State at the Home Office) in succession to Lord Williams of Mostyn, who served until July 1999. The members of the Task Force are Ross Cranston MP (Solicitor General), Mark de Pulford (Home Office), Amanda Finlay (Lord Chancellor's Department), Pam Giddy (Charter 88), Lord Harris of Haringey (Local Government Association), Ian Holding (Association of Chief Police Officers), Jane Kennedy MP (Lord Chancellor's Department), Francesca Klug (Human Rights Incorporation Project), Anne Owers (Justice), Garry Patten (Crown Prosecution Service), Judith Simpson (Cabinet Office), Carolyn Sinclair (Home Office), Sarah Spencer (Institute for Public Policy Research), Alison Sutherland (Local Government Association), Veena Vasista (The 1990 Trust) and John Wadham (Liberty). The Task Force is assisted in its work by the members of the Task Force Liaison Group, including Robin Allen QC (Bar Council), Kate Cassidy (National Assembly for Wales), Professor Brice Dickson (Northern Ireland Human Rights Commission), Professor Alan Miller (Scottish Human Rights Centre), Colin Miller (Office of the Scottish Excutive), Andrew Puddephatt and Roger Smith (Law Society).
The Secretariat is provided by Conrad Prince and Diana Symonds (both Home
Office).
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.
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:
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.
11. The European Convention on Human Rights is a treaty of the Council of Europe, which was adopted in 1950 and ratified by the United Kingdom in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the United Nations Declaration on Human Rights, adopted in December 1948.
12. An immediate aim of the Convention was to protect Europe against totalitarianism and a repeat of the atrocities of the Second World War.
However, its general purpose has been described as being to protect human rights and fundamental freedoms and to maintain and promote the ideals and values of a democratic society. It therefore has a strong, continuing relevance. The Convention rights are given a broad interpretation rather than a strict, legalistic one, so as to ensure that they are practical and effective within a changing society.
13. This section offers a brief outline of the Convention rights which will be incorporated into UK law. It is intended to help you start thinking about what the Convention rights are and how they might be relevant to your work. You will need legal advice to determine how the Convention rights may apply to your particular situation. The full text of the Convention rights, as set out in the relevant Articles of the ECHR, is given in Annex C to this guidance.
The Convention guarantees the following rights and freedoms:
Article 2: The Right to Life
Public authorities, such as the army, police, a prison or a hospital, must not cause the death of any person. Public authorities also have a positive obligation to protect life in some situations. The Convention defines a limited number of circumstances where it is not a contravention of this Article for a public authority to take someone's life, where the force used is no more than absolutely necessary, such as when defending a person from an attack, to effect a lawful arrest or when quelling a riot.
Article 3:The Right to Freedom from Torture and Inhuman or Degrading Treatment or Punishment
Torture is the most serious kind of ill-treatment. Inhuman or degrading treatment is less severe than torture and may include certain physical assaults, inhuman detention conditions or corporal punishment. The ill-treatment relates to both mental and physical suffering. Whether ill-treatment qualifies as torture or inhuman treatment will depend on factors including its duration, severity and the vulnerability of the victim. Article 3 is discussed in more detail in paragraphs 51-53.
Article 4:The Right to Freedom from Slavery, Servitude and Forced or Compulsory Labour
Slavery means that a person is owned by someone else, just as if they were a piece of property. Someone in servitude is not actually owned by another person, though they may have to live on that person's property and be unable to leave. Certain kinds of labour, such as work which could ordinarily be expected to be carried out as part of a prison sentence, are excluded from this Article.
Article 5: The Right to Liberty and Security of Person (subject to a UK derogation)
People have the right not to be arrested or detained, except where the detention is authorised by law. This Article does not just apply to police arrests, but covers all aspects of detention, including for medical or psychiatric reasons. The Article defines the six circumstances under which it is acceptable for someone to be detained, including after conviction by a criminal court or where there is reasonable suspicion that someone has committed a crime.
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 7: The Right to Freedom from Retrospective Criminal Law and no Punishment without Law
A person may not be convicted of an act which was not a criminal offence at the time it was committed. Nor can they face a penalty which was not in place when the act in question happened. ‘Criminal' and ‘penalty' may have a broader meaning than under domestic law. This Article also requires that a law imposing a criminal offence or penalty be clear enough so that a person can reasonably be able to foresee the legal consequences.
Article 8: The Right to Respect for Private and Family Life, Home and Correspondence
This Article is very broad and has wide-ranging implications. Public authorities may only interfere with someone's private life where they have legal authority to do so, the interference is necessary in a democratic society for one of the aims stated in the Article and is proportionate to that aim. This Article covers matters such as the disclosure of private information, monitoring of employees' phone calls and email, carrying out body searches and restrictions on entering a person's home. It also touches on issues such as the right for families to live together or the right not to suffer from environmental hazard. It is important to note that the rights and freedoms expressed in Articles 8 to 11 may be limited where this is necessary to achieve an important objective such as protecting public health or safety. The restrictions in each of these Articles vary; they are set out in full in Annex C. Article 8 is discussed in more detail in paragraphs 54-58.
Article 9: The Right to Freedom of Thought, Conscience and Religion
People have the right to hold whatever thoughts, positions of conscience or religious beliefs that they wish. Article 9 guarantees the right for everyone to manifest their religion or belief in worship, teaching, practice and observance. Article 9 points may be raised, for example, where a person's religious or other beliefs require or prevent them from carrying out a certain activity, such as wearing particular clothes or working on a Holy Day. Article 9 is discussed in more detail in paragraphs 62-66.
Article 10: The Right to Freedom of Expression
Freedom of expression covers such things as what we say in conversation or in speeches, publishing books, articles or leaflets, broadcasting, art, the Internet and many other areas. It applies to the media as well as individuals. The Strasbourg court has consistently emphasised the special importance of this right. Article 10 is discussed in more detail in paragraphs 59-61.
Article 11: The Right to Freedom of Assembly and Association
This includes the right of people to demonstrate peacefully, and to join - or choose not to join - trade unions.
Article 12: The Right to Marry and Found a Family
This Article may be relevant to rules and policy concerning adoption and fostering. The Strasbourg Court has decided that it does not require a State to grant transsexuals or homosexuals the right to marry.
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.
Article 2 of Protocol 2: The Right to Access to Education (subject to a UK reservation)
The right of access to education must be balanced against the resources available. This right may, for example, be relevant to the punishments used by schools, such as the expulsion of disruptive pupils. It may also be relevant to children with special needs.
Article 3 of Protocol 1: The Right to Free Elections
This Article applies to elections to the legislature, which must be free and fair and held at reasonable intervals. It may be relevant to issues of participation and access, such as ensuring that mechanisms for postal voting in general elections meet the needs of disabled or ill people.
Article 1 and 2 of Protocol 6
The Right not to be Subjected to the Death Penalty
This provision abolishes the death penalty.
14. The Convention is about protecting fundamental rights and freedoms against the power of the State. This means that the rights can be relied on by any victim who claims that his or her rights have been or will be interfered with. This can be an individual, non-governmental organisation or group of individuals and in some cases also companies and other bodies (see also paragraphs 26-28). But not governmental organisations, such as local authorities (though they can rely on the Convention as a defence to a claim against them). The rights set out in the Convention are explained and developed in the case-law of the Strasbourg bodies (the Court, the Commission and the Committee of Ministers).
15. The Convention contains other provisions, largely about the machinery for enforcing rights, which are not incorporated by the Human Rights Act.
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.
17. Under the Human Rights Act, these principles of interpretation must be taken into account by UK courts and tribunals.
18. There are a number of concepts relating to the Human Rights Act or the European Convention on Human Rights which you should be familiar with. This section outlines some of the most important of these and gives some indication of their significance.
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:
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:
21. The Convention rights are formulated in three broad ways: some are absolute, some are limited and some are qualified.
22. Absolute rights include the right to protection from torture, inhuman and degrading treatment and punishment (Article 3), the prohibition on slavery and enforced labour (Article 4), and protection from retrospective criminal penalties (Article 7).
23. Other rights, such as the right to liberty (Article 5), are limited under explicit and finite circumstances, defined in the Convention itself, which provide exceptions to the general right.
24. Qualified rights include the right to respect for private and family life (Article 8), the right to freedom of expression (Article 10), religion (Article 9) assembly and association (Article 11), the right to the peaceful enjoyment of property (Protocol 1, Article 1) and to some extent the right to education (Protocol 1, Article 2). Although these rights are qualified, interference with them is permissible only if what is done:
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.
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.
29. In relation to some Convention rights (particularly those requiring a balance to be struck between competing considerations) the Strasbourg court allows a ‘margin of appreciation' to the domestic authorities, meaning that it is reluctant to substitute its own views of the merits of the case for those of the national authorities. Some commentators argue that since the margin of appreciation is, strictly speaking, a concept belonging to international law it should not prevent the UK courts examining the merits of a decision, policy or law and the reason for its adoption. Others suggest that the UK courts may develop an analagous doctrine similar to the margin of appreciation. It is not possible, in advance of the Act coming into force, to say precisely how this will work in practice. In some cases the court may conclude that there are insufficient reasons to support the decision, policy or law. However, in others it may be willing to accept the opinion of expert decision makers, such as a government department, health authority or Parliament.
30. Factors which might influence the court are -
31. Although the UK courts are required by the Human Rights Act to take into account the Strasbourg jurisprudence on the Convention rights, the interpretation of those rights is likely to develop its own momentum quickly. Also, the Convention is a living instrument whose interpretation changes over time to reflect social attitudes. This means that the outcome of Strasbourg cases in which government departments have been involved in the past is not an infallible guide to what may happen under the Human Rights Act.
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?
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.
What Areas of My Work Should I Consider?
43. The Convention has a wide reach and will be relevant in many areas of work. Some examples are given below to illustrate how this works.
44. If so, Article 6 may be relevant. Article 6 guarantees a right to a fair trial in the determination of
• a person's civil rights and obligations, or
• any criminal charge
45. Civil rights and obligations are rights and obligations which exist under private law, although they may arise in a public law context where a public authority is involved with or has affected private rights.
46. The concept of civil rights and obligations is an autonomous one, and therefore the definition in the Convention is not necessarily the same as that in UK law. It has been held to include:
47. The concept does not include, for example, certain tax obligations, which according to the case law of the Strasbourg court are matters of public law.
48. Decisions of public authorities are also covered where they affect private rights - for example, a decision to grant a licence to carry on a business activity, or a refusal to register a doctor with his professional body.
49. Under the Convention, anyone who is having his civil rights or obligations determined (for example by planning enforcement procedures or housing benefit review boards) or is facing any criminal charge is entitled to:
Does my work affect a person's physical or mental well-being?
50. Article 2 means that public authorities must not cause the death of any person. Public authorities also have a positive obligation to protect life in some situations. The Convention defines a limited number of circumstances where it is not a contravention of this Article for a public authority to take someone's life.
51. Article 3 prohibits torture and inhuman or degrading treatment or punishment. This provision aims to protect an individual from physical and mental ill-treatment. Whether or not an act constitutes inhuman or degrading treatment depends on a range of factors. Much will depend on the circumstances of the case, such as the nature and context of the treatment, its duration, its physical and mental effects, and in some instances the sex, age and state of health of the victim. The Article is relevant in a wide number of situations including conditions of detention, deportation or extradition (where the state can incur liability if it proposes to remove a person to a country where he or she is likely to suffer ill-treatment), racial discrimination and corporal punishment. Article 3 has been considered relevant in very serious cases involving the protection of vulnerable individuals in the course of legal proceedings.
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.
Does my work affect a person's private or family life?
54. Article 8 says that everyone has the right to respect for his private and family life, his home and his correspondence.
55. Article 8 covers a vast range of issues and subjects, including interception of correspondence, telephone tapping and search warrants (at home or at work), access to information about a person's own identity, a person's right to have and to express an identity, the freedom to express one's sexuality, to be free from severe environmental pollution, to consent to medical treatment, to have parental access and custody of children, the collection and use of information concerning an individual, the right to have and form social relationships and the protection of a person's reputation.
56. A public authority may not interfere with these rights except:
57. The Strasbourg court has made it clear that it will not substitute its own views on the needs of the State, but it will wish to satisfy itself that the State's act or law falls within a margin of appreciation (see paragraph 29). In deciding whether action is necessary in a democratic society factors to which the UK courts will look include:
whether or not there is a common European standard or approach
whether the action taken was proportionate to the aim to be achieved
whether or not a justification would be sufficiently weighty to satisfy the Convention.
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 the right of a person to freedom of expression?
59. Article 10 says that everyone has the right to freedom of expression. As with Article 8, the right is qualified. It may be subject to such restrictions as are:
60. Section 12 of the Human Rights Act is concerned with the right to freedom of expression. It applies if a court (which includes a tribunal) is considering whether to grant any relief which might affect the exercise of the Article 10 right.
61. Decisions of the Convention institutions in Strasbourg have recognised the fundamental place of the Article 10 right to freedom of expression. The European Court of Human Rights has acknowledged that freedom of expression constitutes an essential foundation of a democratic society and is particularly important as far as the press is concerned.
Does my work affect the right of a person or religious organisation to freedom of thought, conscience or religion?
62. Article 9 provides that everyone has the right to freedom of thought, conscience and religion. This includes the freedom for people to manifest their religion or belief in worship, teaching, practice and observance.
63. A person's freedom to manifest their religion or beliefs (but not the other freedoms guaranteed by Article 9) may be subject to specified restrictions similar to those applying in relation to Articles 8 and 10.
64. Section 13 of the Act requires a court or tribunal to have particular regard to the importance of the Article 9 right, if its determination of any question arising under the Act might affect the exercise of that right by a religious organisation (either itself or its members as a group).
65. The Convention institutions have not defined what is meant by a religious organisation. But they have recognised that a church body or other congregation can enjoy the protection of Article 9 in its own capacity as a representative of its members.
66. The Convention institutions have also accorded Article 9 rights a high degree of protection. The European Court of Human Rights has recognised the need for religious beliefs to be given special regard in determining a case involving competing Convention rights.
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:
70. The UK courts will be able to decide whether interference with property rights is justified in the public or general interest. In deciding what the general or public interest is the Government enjoys a ‘margin of appreciation', in that the Strasbourg court acknowledges that a State is in a better position to assess the economic needs of society and should therefore be allowed some discretion in setting its objectives (see paragraph 29).
71. Even so, any measure or law that interferes with property rights, (for example, a compulsory purchase order) must strike a fair balance between the demands of the community or society and the need to protect the individual's fundamental rights. In considering this balance, one of the things that the court will look for is if compensation is payable. The deprivation of property without compensation will only be acceptable in exceptional circumstances, but the Strasbourg court has granted States considerable latitude as to what is an acceptable level of compensation. Compensation does not always have to be at the market value of the possession.
72. An interference with property must also satisfy the requirements of legal certainty, in other words, there must be a law which permits the interference and that law must be sufficiently certain and accessible. There must also be procedural safeguards against arbitrary State decisions. The procedural requirements of Article 6 may be relevant.
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.
76. In applying these additional considerations, the Court can give more or less weight to different types of discrimination. It has stated, for example, that discrimination on the grounds of sex, race or illegitimacy is particularly serious. It would therefore be particularly hard to justify discrimination in these areas.
77. It is not possible to pursue a case on Article 14 grounds alone: there must be another Convention right at issue to which a claim of discrimination can be attached. Where another Convention right does arise, however, it is possible to find a breach of Article 14 even if there is no breach of the other Convention right.
78. Where the European Court of Human Rights has found a breach of another Convention right, it has in practice tended not to consider whether there is a breach of Article 14 also. It remains to be seen whether the domestic courts will take the same approach to Article 14 in determining Convention issues under the Human Rights Act.
6 Human Rights Act: some questions and answers
79. Here are answers to some of the most frequently asked questions about the Human Rights Act.
What is the Act for?
80. The Government's immediate aim in introducing the Human Rights Act is to allow cases concerning the rights given under the Convention to be brought in the UK courts. The Government hopes that the Act will help to create a society in which the rights and responsibilities of individuals are properly balanced and in which an awareness of the Convention rights permeates our government and legal systems at all levels.
Can it be used now?
81. The Act will be implemented in full on 2 October 2000. There is a lot of work to do in preparing for implementation and it cannot happen straightaway. For example:
What provisions are in force?
82. The following came into force when the Act received Royal Assent, on 9 November 1998:
83. Section 19 came into force on 24 November 1998. It requires the Government Minister in charge of a Bill to make a statement about the Bill's compatibility with the Convention rights set out in the Act.
Will the Act come into force in all parts of the United Kingdom at the same time?
84. Yes. However, under the terms of the devolution legislation, devolved institutions (such as the Scottish Parliament and Executive) have no power to do anything that is incompatible with the Convention rights. The relevant provision in relation to the Scottish Parliament, the Scottish Executive and the National Assembly for Wales essentially came into force on 1 July 1998.
What other official guidance documents are available?
85. Various guidance documents are available:
Copies of these documents are available from your organisation's human rights contact point. If you do not have a contact point, the documents may be accessed at the Home Office Human Rights Unit website.
How can someone use the Act to enforce their human rights?
86. If someone thinks that a public authority has breached their Convention rights, they can:
(a) take the authority to court for breaching their rights
(b) rely on the Convention rights in the course of any other proceedings involving a public authority, eg judicial review, criminal trial, care proceedings, housing, possession proceedings.
87. If they take the direct route as in (a), they have to bring proceedings within a year or less of the act complained of (in accordance with section 7(5) of the Human Rights Act). But the court can allow them to bring proceedings after a longer period if it thinks this is fair in the circumstances. Note that shorter time limits may also apply. For example, if proceedings were brought by judicial review, then the shorter judicial review time limit would apply.
Does this apply to acts done before the Act comes into force?
88. Generally not. But people will be able to rely on the Convention rights in relation to decisions or acts made before the Act came into force where proceedings brought by a public authority are pending at the time of implementation.
What remedy can be obtained?
89. If the court finds that a public authority has breached someone's Convention rights, it can award whatever remedy is open to it and seems just and appropriate. This could include damages. When the court sets damages it will take into account the Strasbourg norm, which tends to be modest.
Who can bring a case under the Human Rights Act?
90. Proceedings under the Human Rights Act can be brought only by victims of a breach of the Convention rights by a public authority. This mirrors the test of standing for bringing proceedings against the UK at Strasbourg and is a narrower test than that for Judicial Review.
91. Interest groups will not be able to bring cases direct unless they meet the victim test. But they will be able to assist those who do bring cases.
What is a public authority?
92. No express definition exists in the Act but it is likely to include:
Will people still be able to take a case to Strasbourg?
93. Yes. But the European Court of Human Rights will want to know that someone has exhausted all domestic remedies first - which will include the legal routes opened up by the Human Rights Act.
ECHR Protocols and other international instruments
What ECHR Protocols has the UK signed up to?
94. The UK has ratified Protocol 1 and Protocol 6.
95. The UK has not yet ratified the other Protocols containing substantive rights (Protocol 4 and Protocol 7 on additional rights and freedoms concerning such rights as freedom of movement and the right not to be punished twice). Protocol 4 remains under review. The UK will ratify Protocol 7 when it has legislated to amend some provisions of family law that are incompatible with the rights in Protocol 7.
How do these rights get into the Human Rights Act?
96. The rights in Protocols 1 and 6 are already there. Those in other Protocols can be added in future by Order.
97. The Human Rights Act applies to all our legislation, policies and procedures. But it will not always be easy to understand its precise impact in a particular situation, and what should be done about it. Familiarising yourself with the basic elements of the Act is a start. But you need to be sure that you are reflecting the Act properly in all aspects of your work. You will need help to do this.
98. If you are unsure about how the Act applies in a particular situation, there are a number of places you could go for assistance:
99. Remember that assessing the precise impact of the Act in a particular case can be a complicated business and in many cases it will be essential to seek legal advice. The need for early and appropriate advice cannot be over-emphasised. However, we must all take responsibility for own actions, and we must get into the habit of thinking for ourselves about the human rights implications of our work.
100.There are a number of books relating to the ECHR which you may find of interest. We list some of them here:
Official Publications
Other Publications
Detailed guides to the Human Rights Act 1998
Detailed guides on the European Convention on Human Rights
You may also wish to take a look at these websites:
(Human Rights Unit pages) These contain guidance material on the Human Rights Act, answers to Parliamentary Questions, speeches, frequently asked questions and other material relating to the Human Rights Task Force, the Act and international human rights instruments.
(This contains details of the Strasbourg court's judgements)
Outline of the Human Rights Act
This annex gives a brief outline of the Human Rights Act itself.
Section 1: specifies which of the Convention rights are covered by the Human Rights Act.
Section 2: requires courts or tribunals determining questions which have arisen in connection with the Convention rights to take into account the decisions of Strasbourg (the European Court and Commission of Human Rights and the Committee of Ministers) so far as is relevant.
Section 3: requires legislation to be interpreted as far as possible in a way which is compatible with the Convention rights. This applies to all legislation, whenever enacted.
Section 4: allows the higher courts to make a ‘declaration of incompatibility' where they find that primary legislation is incompatible with a Convention right. The continuing validity and enforcement of the legislation is not affected by such a declaration.
Section 5: states that when a court is considering making a declaration of incompatibility, the Crown is entitled to notice and to be joined as party to the proceedings. This will enable a Minister to provide the court with information which may be relevant to the issue in question.
Section 6: defines a public authority and makes it unlawful for a public authority to act in a way which is incompatible with a Convention right unless it is required to do so by primary legislation or inevitably incompatible secondary legislation.
Section 7: victims may rely on the Convention rights in legal proceedings in UK courts and tribunals or institute separate proceedings. Separate proceedings must be brought within one year (or less) of the date on which the act complained of took place or after a longer period if the court or tribunal judges that to be fair under the circumstances. Shorter time periods may also apply. For example, if proceedings were brought by judicial review, then the shorter judicial review time limit would apply.
Section 8: the court may grant such relief as it considers just and appropriate, provided they are within its powers.
Section 9: concerns methods of challenging acts of courts and tribunals which are alleged to be incompatible with a Convention right.
Section 10: the relevant Minister may by order amend infringing legislation following a declaration of incompatibility or a finding of the European Court of Human Rights if he is satisfied that there is a compelling reason to do so.
Section 11: makes clear that the Act does not restrict any existing rights that an individual might have under UK law or his right to bring proceedings under existing law
Section 12: contains safeguards concerning court or tribunal orders (particularly injunctions) which might breach the right to freedom of expression.
Section 13: obliges the courts to have particular regard to the importance of the right to freedom of thought, conscience and religion.
Section 19: requires that when legislation is introduced into either House for a second reading, the Minister responsible must make a written statement that he considers the Bill is compatible with the Convention rights or that he is unable to make such a statement but wishes Parliament to proceed with the Bill anyway.
Section 21: interpretation section, in particular defining the meaning of primary and subordinate legislation
Section 22: ensures that victims can rely on their Convention rights in proceedings brought by a public authority, even if the act in question took place before section 7 comes into force.
The Convention Rights
These are the Convention rights set out in the Human Rights Act.
Article 2: Right to Life
1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or insurrection.
Article 3: Prohibition of Torture
No one shall be subjected to torture or to inhuman or degrading treatment or punishment.
Article 4: Prohibition of Slavery and Forced Labour
1. No one shall be held in slavery or servitude.
2. No one shall be required to perform forced or compulsory labour.
3. For the purpose of this Article the term "forced or compulsory labour" shall not include:
(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;
(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;
(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;
(d) any work or service which forms part of normal civic obligations.
Article 5: Right to Liberty and Security
(subject to a UK derogation relating to the situation in Northern Ireland)
1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:
(a) the lawful detention of a person after conviction by a competent court;
(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;
(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;
(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;
(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants;
(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.
2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.
3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.
4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.
5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.
Article 6: Right to a Fair Trial
1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interest of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.
2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.
3. Everyone charged with a criminal offence has the following minimum rights:
(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;
(b) to have adequate time and facilities for the preparation of his defence;
(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;
(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;
(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.
Article 7: No Punishment without Law
1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed.
2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.
Article 8: Right to Respect for Private and Family Life
1. Everyone has the right to respect for his private and family life, his home and his correspondence.
2. There shall be no interference by a public authority with the exercise of this right except such as is 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.
Article 9: Freedom of Thought, Conscience and Religion
1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.
2. Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.
Article 10: Freedom of Expression
1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.
2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.
Article 11: Freedom of Assembly and Association
1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.
2. No restrictions shall be placed on the exercise of these rights other than such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.
Article 12: Right to Marry
Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.
Article 14: Prohibition of Discrimination
The enjoyment of the rights and freedoms set forth in this Convention shall be secured 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.
Article 16: Restrictions on Political Activity of Aliens
Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.
Article 17: Prohibition of Abuse of Rights
Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.
Article 18: Limitation on use of Restrictions on Rights
The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.
The First Protocol
Article 1: Protection of Property
Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.
The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.
Article 2: Right to Education (subject to a UK reservation)
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.
Article 3: Right to Free Elections
The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.
The Sixth Protocol
Article 1: Abolition of the Death Penalty
The death penalty shall be abolished. No one shall be condemned to such penalty or executed.
Article 2: Death Penalty in Time of War
A State may make provision in its law for the death penalty in respect of acts committed in time of war or imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.
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, someone might be able to show a reasonable likelihood that their Article 6 right to a fair trial had been infringed.
• Are there circumstances when the right can legitimately be limited or interfered with?
7. Convention rights are formulated in three broad ways:
• Does the interference meet the general criteria established by the Strasbourg authorities?
8. You may need to show that:
9. By following these basic steps you should at least be able to tell if a particular policy or procedure has Convention implications, and if so, what they may be. Legal advice may be needed to ensure that what you are doing is compatible with the Convention rights.
10. If you believe that a law you are working under, or one of your policies or procedures, is incompatible with the Convention, there are a number of steps you should take:
11. Remember that if the law cannot be read compatibly, and is a piece of primary legislation, or subordinate legislation which is inevitably incompatible, you are still required to apply it.
12. By becoming familiar with the Convention rights and what they mean in practice you will be in a much better position to identify a potential Convention issue and take action quickly to ensure that it is resolved.
Flow chart summarising the Convention Checklist
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