Department for Constitutional Affairs -

2. The Act received Royal Assent on 9 November 1998. It will be brought fully into force on 2 October 2000. From that date, rights and freedoms guaranteed under the European Convention on Human Rights ("the Convention") will be incorporated into domestic law. This means that the rights given under the Convention may be relied upon directly in our courts.

3. This will have a significant impact on your work, whether you are involved in developing legislation, making decisions on behalf of a Minister or carrying out government policy, concerned with prosecutions or the enforcement of law or simply involved in the administration of a contract or working in personnel.

4. Wherever you are in a Department, you will need to have an awareness of the Act and the Convention.

5. The aim of this guidance is to give an overview of the Act and the Convention to enable you to be aware of where there might be a human rights issue and to seek further advice. This guidance is not, and cannot be, a substitute for seeking legal advice. Nor can it be a comprehensive guide to the Act or the Convention and the case-law developed under it. But it is intended to give sufficient guidance to enable warning bells to ring so that you can take legal advice at the right time.

6. This guidance seeks to show the various different ways that human rights issues may arise in the United Kingdom and how they are linked or are distinct from each other. They may arise in the context of legislation and developing policy; decision-making and administration; and litigation. Parliament in setting up the Scottish Parliament, the National Assembly for Wales and the Northern Ireland Assembly also legislated for the respect for Convention rights by these bodies. The guidance also explains the links between European Community law and the Convention. The Act does not affect rights under other international treaties.

7. This guidance is designed for civil servants working in government Departments. The Act imposes obligations on a wide range of other public authorities. Core guidance on the Act relevant to all public authorities has also been produced. This can be used as a basis to develop additional guidance specific to their needs. This and other guidance material on the Human Rights Act is available from the Human Rights Unit home page .

Background

8. The Government’s immediate aim in introducing the Human Rights Act was 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 the UK's governmental and legal systems at all levels.

9. Prior to the coming into force of the Act, if an individual wanted to challenge the UK Government for non-compliance with the Convention, he or she generally had to go to the European Court of Human Rights in Strasbourg ("the Strasbourg Court") and even then only after showing that there was no remedy in the UK courts. This meant it could take many years for a case to be decided. It also led to much expense.

10. Parliament decided that this was not acceptable and that the importance of maintaining basic human rights in this country meant that rights under the Convention should be enforceable in the UK courts and tribunals.

11. The Act achieves this by

making it unlawful for a public authority to act incompatibly with the Convention rights and allowing for a case to be brought in a UK court or tribunal against the authority where 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.

requiring that all legislation 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, give a declaration of incompatibility for primary legislation thereby triggering a new power allowing a Minister to make a remedial order to amend the legislation to bring it into line with the Convention rights

requiring UK courts and tribunals to take account of the case-law of the Court and the Commission in Strasbourg and also the Committee of Ministers. They will also be bound to develop the common law compatibly with the Convention rights.

The Convention

12. The European Convention on Human Rights was adopted in 1950 and was ratified by the United Kingdom in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the UN Declaration on Human Rights, adopted in December 1948. The Convention is a treaty of the Council of Europe, which was established after the end of the Second World War with the aim of protecting Europe against totalitarianism and a repeat of the wartime atrocities. The Convention is also intended to protect human rights in countries which are democratic by seeking to secure a fair balance between the general interest of society and the protection of the individual’s fundamental rights.

13. The preamble to the Convention says:

"[The signatories] reaffirming their profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other hand by a common understanding and observance of the human rights upon which they depend;

Being resolved, as the governments of European countries which are like-minded and have a common heritage of political traditions, ideals, freedom and the rule of law, to take the first steps for the collective enforcement of certain of the rights stated in the Universal Declaration…"

What are the Convention rights?

14. The Convention guarantees the following rights and freedoms:

right to life (Article 2)

freedom from torture and inhuman or degrading treatment or punishment (Article 3)

freedom from slavery and forced or compulsory labour (Article 4)

right to liberty and security of person (subject to a derogation applicable to Northern Ireland) (Article 5)

right to a fair and public trial within a reasonable time (Article 6)

freedom from retrospective criminal law and no punishment without law (Article 7)

right to respect for private and family life, home and correspondence (Article 8)

freedom of thought, conscience and religion (Article 9)

freedom of expression (Article 10)

freedom of assembly and association (Article 11)

right to marry and found a family (Article 12)

prohibition of discrimination in the enjoyment of the Convention rights (Article 14)

right to peaceful enjoyment of possessions and protection of property (Article 1 of Protocol 1)

right to education (subject to a UK reservation)
(Article 2 of Protocol 1)

right to free elections (Article 3 of Protocol 1)

right not to be subjected to the death penalty (Articles 1 and 2 of Protocol 6)

15. These rights are the Convention rights which are referred to in the Act. The complete wording of the rights is given in Annex C to this guidance.

16. The rights set out in the articles of the Convention have been explained and developed in the case-law of the Strasbourg bodies (the Court, the Commission and the Committee of Ministers).

17. The rights can be relied on by any person, non-governmental organisation or group of individuals and in some cases also by companies and other bodies, but not by governmental organisations, such as local authorities, as the Convention is about protecting fundamental rights and freedoms against the power of the State.

18. The Convention contains other provisions, largely referring to the machinery for enforcing rights, which are not incorporated.

Hierarchy of Rights

19. There is a hierarchy of Convention rights: some are absolute, some can be limited and some are qualified. Absolute rights cannot be derogated from. They include to protection from torture, inhuman and degrading treatment and punishment, the prohibition on slavery and enforced labour, and protection from retrospective criminal penalties. Other rights, such as the right to liberty and right to a fair trial, can be limited under explicit and finite circumstances defined in the Convention itself. Qualified rights include the right to respect for private and family life, the right to freedom of expression, religion and association, the right to the peaceful enjoyment of property and to some extent the right to education. Interference with these rights is permissible subject to various qualifications. These include the qualification that any restriction must have its basis in law, be necessary in a democratic society and be related to the permissible aim set out in the relevant Article (eg the prevention of crime or the protection of public order or health).

Interpreting the Convention

20. To understand the Convention it is important to remember that

it is to be given a broad and generous interpretation rather than a strict, legalistic interpretation. Its purpose is the protection of human rights and fundamental freedoms and to maintain and promote the ideals and values of a democratic society.
the Strasbourg Court looks at the substance and reality of what is involved and seeks to give a practical and effective interpretation to the rights.
it is a living document - it 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.
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 State and is reluctant to substitute its own views of the merits of the case for that of the domestic authorities. This applies particularly to the justifications given for an interference with a right. It will also look to see if there is a reasonable relationship between a legitimate aim to be pursued and the methods chosen to pursue it. More is said in paragraphs 85 - 86 about how the UK courts are likely to approach the margin of appreciation doctrine.
terms and expressions have an autonomous meaning - just because UK law defines an expression in a certain way does not mean that the same expression in the Convention is to be given the same meaning. The term or expression has the same meaning for all the countries bound by the Convention.

21. These principles of interpretation, adopted by the Strasbourg Court, will be followed by the UK courts and tribunals.

Legislation and Developing Policy

How the Act will affect you

22. If you are involved with developing policy or preparing legislation or are responsible for existing legislation, the Act will affect you in that –

all legislation may be subject to a new interpretation.

subordinate legislation may be quashed or disapplied if it is incompatible with the Convention rights.

declarations of incompatibility may be made by the higher courts where primary legislation is incompatible with the Convention rights.

a new power is given in the Act for Ministers to make orders to amend legislation so as to bring it into line with the Convention rights following court judgments in the UK or a finding of the Strasbourg Court. These orders are known as remedial orders.

the Minister in charge of introducing a Bill will have to make a statement of compatibility to Parliament saying that the provisions of the Bill are compatible with the Convention rights or, if he cannot do so, to make a statement saying that he is unable to do so, but that he wishes Parliament to proceed with the Bill anyway.

All legislation may be subject to a new interpretation

23. The Act requires that all legislation, so far as it is possible to do so, be read and given effect in a way which is compatible with the Convention rights.

24. This is a very strong provision and every effort must be made to interpret the 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 is the interpretation to be adopted. A court or tribunal must strive to find a compatible meaning. The fact that a court may have interpreted an Act or a statutory instrument 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.

Incompatible subordinate legislation may be quashed or disapplied or subject to a declaration of incompatibility

25. Where it is not possible to interpret subordinate legislation compatibly with the Convention rights, the court may quash or disapply the legislation or a provision of the legislation. But where the legislation or provision has to say what it does because of a provision of primary legislation, then the court cannot quash or disapply the subordinate legislation. In such a case, a higher court can make a declaration of incompatibility. This type of subordinate legislation may be thought of as "inevitably incompatible".

Declarations of incompatibility

26. Where a "higher court" (the High Court, the Court of Appeal, the House of Lords, the Judicial Committee of the Privy Council, the Courts-Martial Appeal Court, the High Court of Justiciary (sitting as a court of criminal appeal) and the Court of Session) is not able to interpret a provision of primary legislation compatibly with the Convention rights or if it finds that subordinate legislation is inevitably incompatible, it may make a declaration of incompatibility. The Act requires that the Crown be given notice of a case where a declaration might be given and the Crown is given a right to intervene in the case. This will, for example, enable the Crown to argue that the provision can be interpreted compatibly with the Convention rights or that the provision is compatible with the Convention rights. It also ensures that the Crown is in a position to respond quickly where a declaration of incompatibility is made.

27. The making of a declaration by a court triggers the possibility of using the fast-track procedure for a remedial order. A declaration of incompatibility does not affect the validity, continuing operation or enforcement of the legislation. Nor is it binding on the parties.

Fast-track procedure and remedial orders

28. Where the court has given a declaration of incompatibility, a new power and procedure is triggered. This allows a Minister to bring forward before Parliament an order to amend the legislation so as to remove the incompatibility with the Convention right.

29. This power is also available to implement judgments of the Strasbourg Court against the UK which are made after the coming into force of the Human Rights Act. It is also available in urgent cases where subordinate legislation has been quashed or declared invalid. However, the power cannot be used to fill gaps where no legislation exists on the matter or to implement judgments of the Strasbourg Court in cases not involving the UK.

30. In addition, there must be compelling reasons for proceeding to amend primary legislation by way of a remedial order. In the normal course of events, introducing new primary legislation will be the preferable way to proceed.

31. Remedial orders must be laid in draft and be accompanied by an explanation of the incompatibility, details of the court judgment and the reasons for proceeding by way of a remedial order. A period of 60 days from the laying of the draft order is provided for in which representations can be made. The order can be amended to take account of such representations. Each House needs to approve the order or (as the case may be) the replacement order. In an urgent case the remedial order may be made without it being approved in draft, but the required information must be given afterwards and there is a 60 day period in which representations can be made. Replacement orders can also be made in response to any representations made. The order or replacement order falls if it is not approved within 120 days from the making of the original order.

New legislation and statements of compatibility

32. Prior to the coming into force of section 19 of the Act, in preparing a Bill, Departments considered if the Bill it was introducing into Parliament was compatible with the Convention. However, now that section 19 of the Act has been brought into force, a Minister before Second Reading of a Bill is required either to make a statement of compatibility - a statement to the effect that in his view the provisions of the Bill are compatible with the Convention rights - or if he cannot make such a statement, then he must make a statement saying that he is unable to do so, but nevertheless he wishes Parliament to proceed with the Bill. It is likely in such a case that the Human Rights Committee will examine the Bill. There is further guidance on the Committee later in this guidance (paragraph 121).

33. The Minister in charge of the Bill will need advice on the nature of the statement to be made. This will require a careful examination of the policy and proposed provisions to determine if there are any Convention points. You will need to consult your legal advisers. You may also need to consult the Foreign and Commonwealth Office and other Departments either directly or through the Cabinet Office, to ensure that there is a consistent approach.

34. At the policy approval stage a general assessment for the Minister in charge should be prepared by the senior administrator in charge of the Bill in close consultation with legal advisers. The precise form of this assessment will vary according to circumstances. In some cases it may be sufficient for the material to be incorporated in more general appraisals of the various implications of the proposed legislation. The objective should be to ensure that Ministers are always alerted to substantive ECHR considerations before the policy is determined. Where there is other legislation which will be directly affected by the Bill, Ministers should be invited to consider if the Bill should be used to remedy any ECHR incompatibilities in that underlying legislation.

35. Once the Bill is drafted, a document analysing the ECHR points should be prepared, probably by departmental lawyers, consulting Law Officers and the Foreign and Commonwealth Office as appropriate. That document should be cleared with Ministers and circulated for Legislation Committee with the Bill. The same document, taking into account any points raised at Legislation Committee, can then be put to the Minister in charge of the Bill prior to Introduction as the basis for his section 19 statement. The document, amended as necessary to reflect any developments, can subsequently go to the Minister in the second House as the basis for his section 19 statement.

36. An important issue is the degree of certainty needed to justify a statement under section 19 that in a Minister's view a Bill is compatible with the Convention rights. A common approach is needed across government. The following guidance has been agreed:

A section 19(1)(a) statement may be made where, in the view of the Minister, the provisions of the Bill are compatible with the Convention rights. In other cases a section 19(1)(b) statement should be made: such a statement is not one that the provisions of the Bill are incompatible with the Convention rights but only one to the effect that the Minister is unable to make a statement of compatibility. A section 19(1)(a) statement is a positive statement of compatibility.

If a section 19(1)(a) statement is to be made, a Minister must be clear that, at a minimum, the balance of argument supports the view that the provisions are compatible. A Minister will form his view on the basis of appropriate legal advice. Departmental lawyers will advise, if necessary following consultation with the Law Officers, whether the provisions of the Bill are on balance compatible with the Convention rights. In doing so, they will consider whether it is more likely than not that the provisions of the Bill will stand up to challenge on Convention grounds before the domestic courts and the Strasbourg Court. A Minister should not be advised to make a statement of compatibility where legal advice is that on balance the provisions of the Bill would not survive such a challenge. The fact that there are valid arguments to be advanced against any anticipated challenge is not a sufficient basis on which to advise a Minister that he may make a statement of compatibility where it is thought that these arguments would not ultimately succeed before the courts.

37. Annex A to this guidance provides guidance on the form of words to be used in the statement under section 19 and on other procedural matters.

38. Section 19 of the Act applies where a Minister of the Crown is in charge of a Bill. This means either a Government Bill or a Consolidation Bill. Section 19 does not apply to Private Members’ Bills: there is no duty to make a statement about their compatibility with the Convention rights. Where the Bill is a Government handout, however, the Minister responsible for the policy should, as a matter of good practice, express the Government’s views on compatibility with the Convention rights during the Second Reading debate.

[New guidance is available, replacing paragraph 39, on the information to be disclosed in the Explanatory Notes to a Bill in relation to human rights issues]

39. As regards disclosure to Parliament of the reasoning behind section 19(1)(a) statements, Departments should bear in mind and remind their Ministers that the Government has undertaken that a Minister in charge of a Bill should be ready in debate to explain his or her thinking on the compatibility of particular provisions of the Bill. The Minister should be ready to give a general outline of the arguments which led him or her to the conclusion reflected in the statement made under section 19 in relation to the particular provision. Although it would not normally be appropriate to disclose to Parliament the legal advice to Ministers (or to involve Counsel in committee proceedings if it is a draft Bill) officials should ensure that the Minister is briefed in such a way as to enable him or her at least to identify the Convention points considered and the broad lines of the argument.

40. The requirements of section 19 do not apply to secondary legislation. However, as a matter of good practice, a Minister inviting Parliament to approve a draft statutory instrument or statutory instrument subject to affirmative resolution should volunteer his or her view regarding its compatibility with the Convention rights. Such a statement should always be made regarding secondary legislation which amends primary legislation. If such legislation is not subject to affirmative resolution, the Minister in charge should make the statement in writing and in whatever form seems appropriate - for example in a letter to the Joint Committee on Statutory Instruments.

Scrutiny of legislation

41. In thinking about legislation (both existing and proposed) and how it might or might not be compatible with the Convention, certain articles of the Convention are likely to be particularly relevant –

Does or will the legislation provide for the making of decisions concerning a person’s private rights or lay down procedures for the determination of cases?

42. 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

Criminal law matters will be dealt with in separate guidance.

43. Article 6 only applies where "civil rights and obligations" are being determined. Civil rights and obligations are rights and obligations which exist under private law, although they may arise in a public law context. The concept of civil rights and obligations is an autonomous one, where the definition in the Convention is not necessarily the same as that in UK law.

44. Civil rights may be in issue even in cases where a public authority is involved. 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 or a decision in relation to disciplinary proceedings.

45. An individual (or company or other private body such as a charity or trade union) who is having his or her (or its) civil rights or obligations determined is entitled to

the right of access to a court or tribunal. This does not prevent the creation of a system whereby a decision is first taken by an administrative authority, providing the decision can be reviewed by a court or tribunal. In some cases the review may be limited to points of law, but in most cases, the review may need to be in the form of an appeal on both facts and law. What is required depends upon the nature of the case. If the conditions of Article 6 are met by the original decision, it is not necessary to provide for an appeal. The right of access to a court or tribunal is not absolute, but restrictions on it must not impair the very essence of the right and they must be for a legitimate purpose and proportionate. For example, it is acceptable to have rules affecting the manner in which patients who are mentally impaired or children have access to the courts. The system must not be set up in such a way so as in practice to prevent access - for example, by creating inadequate time-limits, or not providing for the giving of notice of decisions - and it will in some cases require the right to legal aid or legal representation.

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 and one party should not be placed at a disadvantage as compared with the other. There is a general right to a reasoned judgment. There is also a right to be physically present at the hearing unless an individual waives this right. Rules of evidence may also affect the possibility of a fair trial, as may the refusal to disclose evidence.

the right to a public hearing. However, it is possible to have a system that allows an oral hearing to be dispensed with in certain cases. It is also possible to exclude the public where it can be justified on one of the grounds set out in the Article, such as the protection of morals or national security or public order or the interests of juveniles. A public hearing may be dispensed with if there is an appeal to a court sitting in public. Decisions must be given in public or otherwise be made available to the public.

the right to a hearing within a reasonable time. A breach may arise where a State 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. In calculating whether or not there has been a hearing within a reasonable time, the Strasbourg Court not only takes account of the period up to the substantive hearing but the total time required to resolve the matter including time taken up in appeals.

the right to an independent and impartial tribunal. One element in securing this right is through the procedures and rules on the appointment and terms of office of judges and members of tribunals. Members must be free from outside pressures, and should be independent of the executive and of the parties. The court or tribunal must not be biased. The tribunal must be established by law.

Does or will the legislation affect a person’s possessions or his ability to carry on a trade or profession?

46. Often in legislating, property rights will be affected. Article 1 of Protocol 1 aims to ensure that a person’s (including a company’s) possessions are not unfairly interfered with.

47. Possessions are things of economic value. They include goods, shares, rights under contracts (including leases), land, rights to run a business, goodwill and damages or other sums awarded by a court or tribunals. The term has a very wide meaning, but it covers only existing possessions and existing legal rights, it does not cover the expectation of a benefit. 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. It covers property not just owned by individuals but also owned by a company or other private body, such as a charity or trade union.

48. The Article 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.

49. Interference with property rights must be justified in the public or general interest. In deciding what the general or public interest is a State 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.

50. Even so, any measure or law that interferes with property rights must strike a fair balance between the demands of the community or society and the requirements of the need to protect the individual’s fundamental rights. In considering this balance, one of the things that the court will look to see is if, and in what circumstances, compensation is payable. The deprivation of property without compensation will only be acceptable in the most 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.

51. 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 the law must be sufficiently certain and accessible. There must also be procedural safeguards against arbitrary State decisions. Often the procedural requirements of Article 6 are relevant.

Are you going to create any criminal offences or set any penalties?

52. Care is also required when considering the creation of criminal offences. Article 7 requires that criminal offences should not be created retrospectively. A person should not be found guilty of a criminal offence if at the time of the act (or the omission) the law did not make it a criminal offence. Nor should a penalty be increased so as to apply retrospectively.

53. The Article also requires that a law (including the common law) imposing a criminal offence or penalty be sufficiently clearly drafted or defined so that a person can reasonably be able to foresee that an act he undertakes would be an offence. A person must not be prosecuted on the basis of a wholly ambiguous or uncertain provision. However, the Strasbourg Court does accept that offences cannot always be drafted with total precision and that they sometimes need to have an element of generality and that they may be subject to judicial interpretation.

54. Article 5, which guarantees the right to liberty and security of person and Article 6, which guarantees a right to a fair trial in the determination of a criminal charge, will also be relevant. If you are laying down rules in respect of the arrest, prosecution or trial of a person, you should ensure that the procedural requirements of Articles 5 and 6 are met. In some cases it may be difficult to decide whether a matter is to be regarded as criminal for the purposes of the Convention and you will need to take specific advice. However, one crucial factor is whether there is a risk of imprisonment.

Are you considering applying the law retrospectively?

55. Retrospective provisions concerning the civil law are not prohibited as such under the Convention. However, if you intend to legislate so as to deprive an individual of the fruits of a court judgment, Article 1 of Protocol 1 will be relevant (see paragraphs 46 - 51 above). As regards the criminal law, see the previous paragraphs. Do not, though, forget to consult the Law Officers where you wish to make a provision apply retrospectively.

Does or will the legislation affect a person’s physical or mental well-being?

56. Article 3 prohibits torture and inhuman or degrading treatment or punishment. This provision aims to protect an individual from physical and mental ill-treatment. The ill-treatment must be of certain degree of severity. What that minimum is depends on all 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. It is relevant in a wide number of situations - conditions of detention, failure to provide (or compulsory provision of) medical treatment, deportation or extradition (where the state can incur liability if it proposes to remove a person to a country where he is likely to suffer ill-treatment), racial discrimination, corporal punishment etc. Article 3 has also been considered relevant in the protection of vulnerable individuals in the course of legal proceedings.

57. The State has positive obligations which means that it is obliged to secure the rights guaranteed by Article 3 and to prevent breaches of the Article by one private individual against another, particularly against children and other vulnerable persons. This may require the introduction of legislation. Nor can a State delegate its obligations to other bodies or individuals.

58. 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.

59. Article 3 creates rights which are absolute and in respect of which it is not possible to derogate. It is not possible to legislate so as to reduce or qualify the right. However, in considering whether an act amounts to inhuman or degrading treatment, a range of factors may be relevant. For example, decisions regarding the provision of medical treatment in relation to a mentally handicapped adult may involve questions about what is acceptable in today’s society.

Does or will the legislation affect a person’s private or family life?

60. Article 8 says that everyone has the right to respect for his private and family life, his home and his correspondence.

61. 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 etc.

62. A public authority may not interfere with these rights except:

in accordance with the law;
and where it is necessary in a democratic society in the interests of national security, public safety, 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.

63. 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. In deciding whether action is necessary in a democratic society the Strasbourg Court considers whether or not there is a common European standard or approach. It will also consider 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 and the assessment of proportionality will require the assistance of your legal advisers. Our courts are also going to consider the justification for legislation and policy that interfere with a Convention right. More is said about how they might approach this task at paragraphs 85 - 86.

64. As with Article 3, the State has 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.

Does or will the legislation affect the right of a person to freedom of expression?

65. 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:

prescribed by law; and

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.

66. Section 12 of the 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.

It prevents the grant of such relief ex parte unless the court is satisfied that the applicant has taken all practicable steps to notify the respondent, or there are compelling reasons why the respondent should not be notified.

It prevents the grant of relief so as to restrain publication before trial unless the court is satisfied that the applicant is likely to succeed at a full hearing.

It requires the court to have particular regard to the importance of the Article 10 right, and, where the proceedings relate to journalistic, literary or artistic material, to the extent to which the material has or is about to become available to the public, the extent to which it is or would be in the public interest for the material to be published, and any relevant privacy code.

67. 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 or will the legislation affect the right of a religious organisation to freedom of thought, conscience or religion?

68. Article 9 provides that everyone has the right to freedom of thought, conscience and religion. This includes the freedom to change one's religion or belief, and the freedom either alone or with others to manifest that religion or belief in worship, teaching, practice and observance.

69. The freedom to manifest one's 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.

70. Section 13 of the Act requires a court 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 collectively).

71. 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. They have not given the individual's right to freedom of religion precedence over the requirements of the doctrine of the church of which the individual is a member.

72. The Convention institutions have also accorded Article 9 rights a high degree of protection from attack. 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. But they have not given Article 9 (or any other Article) automatic priority over all other Convention rights - indeed, it would not be open to them to do so.

Does or will the legislation discriminate against people in an area involving other Convention rights?

73. Article 14 provides for people to enjoy the protection of 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 widely 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 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 is therefore harder to justify discrimination in these areas than in others.

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.

What you should do now

Examine existing legislation for compatibility with the Convention rights.

Develop future policy and legislation, whether primary or secondary, taking account of the Convention rights and the Act.

Be aware of the findings of the Strasbourg Court and our own courts and tribunals and developments in your fields across Europe, as well as within our society. Does current policy still adequately meet the requirements of a fair balance between the individual and society and are existing restrictions still justifiable and relevant?

Seek advice if in doubt from your own legal advisers. You should also consider the need to consult other Departments either directly or through the Cabinet Office.

Decision-making and Administrative Practice

How the Act will affect you

79. If you are involved in taking decisions on behalf of Ministers or implementing policy or simply involved in the administration of a contract or working in personnel, the Act will affect you in that it will be unlawful for a public authority to act (or fail to act) in a way which is incompatible with a Convention right. 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.

80. Separate guidance will be provided for those involved in law enforcement and the prosecution of offences.

Who is a public authority?

81. The Act covers three types of public authorities

obvious public authorities such as a Minister, a Government Department or agency, local government bodies, the Armed Forces and the police. In respect of such bodies, everything they do is caught by the Act. Parliament, though, is not a public authority.
courts and tribunals.
any person certain of whose functions are of a public nature. In relation to such a person, though the Act says they are only a public body if the act in respect of which the challenge is being made is of a public (non-private) nature. So, for example, Group 4 is a public authority in relation to its acts when transporting prisoners, but not when offering security services to a supermarket or entering into a contract for the purchase of land. This category may include bodies who are not subject to judicial review for a breach of public administrative law.

82. In some cases it will be difficult to know if a body is a public authority and if so, into which category it falls. You will need to take legal advice.

How will this change affect what you do?

83. You will need to consider whether existing procedures meet the requirements of the Convention. Where you are taking decisions which will determine a person’s civil rights and obligations you will need to ensure that the procedural requirements of Article 6 are met. If existing procedures are not adequate, you will need to consider a change in procedure or whether a change in legislation is necessary. There may also be other relevant Articles of the Convention which affect your practices and policy.

Judicial Review

84. The way you exercise your discretion may change. At the moment a decision may be judicially reviewed. The court considers whether the decision was Wednesbury reasonable i.e "whether a reasonable Minister properly directing himself could have reached the impugned decision". The Strasbourg Court imposes a different and in some cases a tougher test. It is expected that the UK courts will, after the coming into force of the Act, look more closely at the merits of a decision when ruling on a decision’s compatibility with the Convention. The courts may take a much more rigorous approach to fact finding, evidence and discovery on applications for judicial review. Decision makers will be required to justify interferences and the courts will have to examine the justification more closely.

85. In paragraph 20 above reference was made to the margin of appreciation and the Strasbourg Court’s reluctance in relation to certain rights to replace its own views on the merits of a case for those of the national authorities. It would not be appropriate for our courts to apply that as it has been applied in Strasbourg, but they may develop a similar concept and be more ready to examine the merits of a decision, policy or law and the reasons for its adoption. In some cases the court will conclude that there are insufficient reasons to support the decision, policy or law, whilst in others it may be willing to defer to the opinion of the executive or Parliament and its understanding of the facts and the policy.

Factors which might influence the court are –

the nature of the Convention right and the activity involved. Certain rights are absolute and a State cannot legislate so as to reduce or qualify the right (the right to life, freedom from torture and freedom from slavery and the principle of no punishment without law). Whilst other rights specifically refer to the possibility of limitations on the right being imposed (right to respect for private life, freedom of thought and freedom of expression). Also, some rights are of particular importance since they relate to the fundamentals of a democratic society (freedom of expression, right to a fair hearing) and the courts will require in such cases very convincing reasons and evidence to be put forward to support a decision, policy or law that restricts such a right.

the nature of the restriction on the right. The courts are more likely to defer to the State in cases where the decision, law or policy requires a consideration of social, economic or political matters or relates to national security. This is based on the assumption that Parliament and the executive are in a better position to judge the requirements of society and to balance competing needs. However, the court may be more willing to substitute its own views in areas in which it has particular expertise, such as in the administration of justice.

86. Ministers (and other public authorities) will therefore be required to justify decisions, policy or law to a greater extent. You may be required to set out in detail the facts and reasons supporting a decision, policy or law. It will be important to show the court that you have considered the Convention rights and how you have dealt with any issues arising out of such a consideration.

87. The Act may also allow cases to be brought before the courts where they could not be brought before. For example, decisions regarding the priority given to one initiative over another may not be susceptible to judicial review at the moment, but may become so under the Act - for example, whether to fund hospital treatment. In relation to medical treatment, the courts have already shown a willingness to depart from such a strict rule.

88. A revised edition of the guide "Judge Over Your Shoulder" (about judicial review) taking account of the Convention and the Act, will give a more in depth guide to the exercise of discretion before and after the coming into force of the Act.

Administrative Practice

89. Even in cases where prior to the coming into force of the Act there is no possibility of judicial review proceedings because they involve private rights, once the Act is in force separate legal proceedings may be brought on the grounds that an act is incompatible with a Convention right. Examples might be an interference with the right to respect for private life of an employee, a refusal to disclose details of a contract, or placing restrictions on an employee’s participation in political activities. In considering such matters, it will also be necessary to remember that a body (other than "obvious" public authorities) is not a public authority in relation to its private acts.

90. Just as for decisions, you will need to consider whether current administrative practices meet the requirements of the Convention and whether legal underpinning is required in order to meet the "in accordance with the law" obligation which certain Articles of the Convention lay down. To be "prescribed by law" or "in accordance with the law" means that there must be a legal regime covering the activity in question which is accessible and which provides adequate safeguards against abuse. Much of what is said above about how the courts will approach the review of decisions will be relevant to a review of administrative practice.

What you should do now

Review your current practices and procedures with a view to identifying any aspects which are not compatible with any of the Convention rights.

Identify public authorities for which you are responsible or with which your Department has closest links and draw their attention to the Act and the Convention. They too will need to think about how their practices and procedures comply with the Convention rights. You will also need to consider how to keep them informed of developments in the field. They may also be a useful source of information and advice to you.

Be aware of the findings of the Strasbourg Court and our courts and developments in your fields across Europe, as well as within our society. Does current policy still adequately meet the requirements of a fair balance between the individual and society and are existing restrictions still justifiable and relevant?

When taking a decision consider whether there are any Convention rights which might apply and whether the decision can be adequately justified in the light of Convention rights.
Seek advice if in doubt from your own legal advisers. You should also consider the need to consult other Departments either directly or through the Cabinet Office.

Litigation

The position before the Act

91. Prior to the coming into force of the Act, an individual can only rely on the Convention in proceedings before the domestic courts where

a provision is ambiguous. In such a case the courts presume that Parliament had intended to legislate in conformity with the UK’s international obligations which include the Convention and therefore the courts apply the Convention.
the common law is uncertain, incomplete or unclear.
the provision is intended to implement a Convention obligation or right.
the court has a discretion to exercise.
European Community law is involved (see paragraphs 116-120 below).

The Act involves the following changes

92. The Act will have a significant effect on litigation and court and tribunal proceedings. After its coming into force –

it will be possible for a victim to bring proceedings in the appropriate court or tribunal against a public authority claiming that the public authority had acted incompatibly (or failed to act compatibly) with the Convention. 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.
it will be possible for a victim to rely on the Convention rights in any legal proceedings involving a public authority. A person will be able to use arguments based on the Convention to support his case, whether in civil or criminal proceedings and whether or not he commenced the proceedings.

the court or tribunal will itself be a public authority and be bound to act compatibly with the Convention rights. It will have to take account of the decisions, judgments, declarations and advisory opinions of the Strasbourg Court, certain opinions and decisions of the Commission and certain decisions of the Committee of Ministers.

it will be possible for any party to a case to ask the court or tribunal to interpret legislation in accordance with the Convention rights, even where the other party is not a public authority.

a court or tribunal will be obliged as far as possible to interpret and give effect to legislation in accordance with the Convention rights.

93. It is important to be aware that -

the Act does not prevent any case being brought which a person could have brought before the Act came into force.

the Act does not create an explicit right for a private individual or person to bring proceedings against another private individual or person for acting or failing to act compatibly with the Convention rights, nor to rely on the Convention rights in any proceedings. It only provides for cases to be brought against a public authority. However, as the court or tribunal is itself a public authority subject to the Human Rights Act, a private individual or person in such a case may still ask the court or tribunal to interpret and give effect to legislation or the common law in a way which is compatible with the Convention rights, and indeed the court or tribunal should do so in any event.

even before the coming into force of the Act, the courts are becoming more inclined to hear arguments based on the Convention and are themselves more likely to consider what implications the Convention might have on the case before it.

Proceedings involving a public authority under the Human Rights Act

94. There are two types of cases -

"free-standing" cases against a public authority in an appropriate court or tribunal for an unlawful act or omission under the Human Rights Act.

other cases involving a public authority where a person wishes to rely on a Convention right. For example, where a person is being prosecuted for a criminal offence, he will be able to rely on a Convention right as a defence, or in a judicial review case he will be able to add in other arguments based on the Convention rights. The time-limits and remedies are those provided for in relation to proceedings in question, but see paragraphs 102 - 104 below on time-limits regarding acts which took place prior to the coming into force of the Act. The only additional remedy is the power for higher courts to make a declaration of incompatibility.

Who can bring a case or rely on the Convention rights? Who is a victim?

95. A person can only bring proceedings against a public authority for acting incompatibly with a Convention right or rely on a Convention right in other proceedings involving a public authority if he is a victim.

96. A victim is a person whose case could be heard by the Strasbourg Court. This includes companies as well as individuals and it may also include relatives of the victim where a complaint is made about the death of the victim.

97. A victim may also be a person who runs the risk of being directly affected by a measure. For example, this allowed a woman of child-bearing age in Ireland to challenge in the Strasbourg Court the Irish law on access to information regarding abortion services. In other cases, a person is not a victim until a decision is taken, for example to deport an individual. But where there is a risk which is imminent and irremediable, proposed acts may be challenged.

98. 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 representation to a victim.

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

100. This means that not all persons who could bring judicial review proceedings will be able to commence proceedings under the Act.

How will a free-standing case be brought?

101. A free-standing case under the Act alleging that a public authority has acted unlawfully can be brought in the following ways -

using the existing judicial review procedures. It will be possible to seek damages in such proceedings if they are otherwise claimable;

in the county court or in the High Court where a claim for damages is made (the venue and track depending on the claim’s value, complexity and novelty although all claims up to £15,000 must be commenced in the county court);

in the county court or in the High Court following a finding of unlawfulness in some other court which did not have the power to award damages or compensation. For example, in respect of a claim for damages in a criminal case arising out of a ruling by a Magistrates Court or the Crown Court that the prosecution had acted unlawfully;

where a claim for compensation is made in respect of an act of a court or tribunal for the unlawful detention of a person. It is anticipated that rules will provide for such cases to be brought in the High Court. Until the Act, it was not possible to obtain damages in respect of a judicial act. In respect of other acts of a court or tribunal, judicial immunity is preserved and a person must either appeal to a higher court or commence judicial review proceedings to challenge the decision.

Time-limits

102. A free-standing case under the Act alleging that a public authority has acted unlawfully must be brought within one year of the act being committed by the public authority or of its failure to act. The court or tribunal may allow proceedings after the one year period has elapsed where it considers that it is equitable to do so having regard to all the circumstances. However, the one year time-limit may be over-ridden altogether if the rules of the procedure in question impose a stricter time-limit. For example, if a claim is made under the rules of judicial review, the judicial review time-limit of three months (subject to extension at the discretion of the court), as opposed to the Act’s one year time-limit, will apply.

103. No proceedings can be brought by an applicant under this Act in respect of acts or omissions which took place before the coming into force of the Act, but this does not prevent a person relying on a Convention right in proceedings where the act in question took place before the coming into force of the act and where the proceedings are brought by, or at the instigation of, a public authority.

104. It should be noted therefore that when the Act comes into force, where a person is a defendant in a criminal case or is subject to proceedings by a public authority he or she will be able to rely on their Convention rights.

Remedies in free-standing cases

105. A court or tribunal which finds that a public authority has acted (or proposes to act) unlawfully under the Act may grant such remedy within its powers as it considers just and appropriate. A tribunal that has no powers under the legislation setting it up to award damages or grant an injunction does not acquire an ability to do so by virtue of the Act.

106. A court that has power to award damages may only do so under the Act where it is necessary to afford just satisfaction to the victim. In determining the level of damages to be awarded, a court or tribunal is also instructed to take into account the principles applied by the Strasbourg Court. The level of damages awarded by the Strasbourg Court are generally modest and in some cases the Court considers that a judgment in favour of a victim is a sufficient remedy.

107. Higher courts also have the power to make a declaration of incompatibility (see paragraph 26).

Strasbourg

108. If a victim does not find a remedy in the UK then he may still make an application to the Strasbourg Court. Given that the Human Rights Act provides a system of remedies for a breach of the Convention rights, the admissibility

provisions of the Convention may require people to seek those remedies in the domestic courts before going to Strasbourg.

The Devolved Administrations

109. The Scotland Act 1998, the Government of Wales Act 1998 and the Northern Ireland Act 1998 all contain provisions to ensure respect for the Convention rights and other international obligations.

110. Under these Acts, it will be outside the competence of (or ultra vires for) the Scottish Parliament and the Scottish Executive; the National Assembly for Wales; and the Northern Ireland Assembly, Northern Ireland Ministers and Northern Ireland Departments to legislate or to do any other act so far as it would be incompatible with the Convention rights.

111. These bodies are also public authorities for the purposes of the Human Rights Act. Legislation made by the devolved administrations can be disapplied or quashed by the courts under the Human Rights Act as it falls within the definition of subordinate legislation in the Human Rights Act. This includes,

an Act of the Scottish Parliament
an Act of the Northern Ireland Assembly
Welsh Assembly legislation
subordinate legislation made by a member of the Scottish Executive or by a Northern Ireland Minister or Northern Ireland Department

112. A court or tribunal will have to interpret such legislation so far as possible compatibly with the Convention rights.

113. It may be possible for a person to commence proceedings against a devolved administration under both the devolution legislation (on the ground that it has acted ultra vires the devolution legislation) and under the Human Rights Act (on the ground that as a public authority it has acted unlawfully). Or, an individual might decide to bring proceedings under only the Human Rights Act or under only the devolution legislation. The devolution legislation has been drafted so that an individual can only bring proceedings under that legislation if he or she is a victim and secondly, to ensure that damages are only awarded on the same basis as under the Human Rights Act.

114. Acting incompatibly (including a failure to act compatibly) with the Convention rights may also be a "devolution issue" under the devolution legislation. Devolution issues are questions that may be put to the Judicial Committee of the Privy Council for a ruling. Cases may reach the Judicial Committee either on appeal or by referral from a lower court or the House of Lords. In addition, cases may be brought directly in the Judicial Committee by a Law Officer (including the Lord Advocate), the First Minister and the deputy First Minister acting jointly under the Northern Ireland Act 1998 or the National Assembly for Wales.

115. Under the Northern Ireland Act 1998, special provision is made for a Northern Ireland Human Rights Commission.

Relationship with European Community Law

116. The Treaty of Maastricht establishing the European Union says that the European Union shall respect human rights and in particular as guaranteed by the Convention.

117. Respect for human rights is one of the most important general principles of Community law. The European Court of Justice in Luxembourg (not to be confused with the European Court of Human Rights in Strasbourg) draws inspiration from the Convention and in its own judgments refers to the decisions of the Strasbourg Court.

118. Community legislation (regulations, directives and decisions) must be compatible with a respect for human rights. Member States of the European Union are required to comply with Community law and, in the case of directives and decisions, to implement them into national law. Regulations have effect in national law without the need for a Member State to take measures to implement them (other than, in some cases, enforcement measures).

119. Cases may arise in the UK concerning domestic law which implements Community law obligations or involving an EU regulation, in which it is argued that the Convention has not been respected. In such cases, it is only the European Court of Justice that can give a ruling on the validity of Community law and therefore the domestic court may refer the case to the European Court of Justice for a ruling.

120. Since both Community law and the Act aim to secure the rights guaranteed under the Convention, no conflict should arise.

Human Rights Committee

121. The Leader of the House of Commons announced in December 1998 that a Joint Parliamentary Committee on Human Rights would be set up before the Human Rights Act came fully into force. The terms of reference have yet to be formally decided but it is envisaged that its functions will include the conduct of inquiries into general human rights issues in the UK, the scrutiny of remedial orders made under section 10 of the Act, the examination of draft legislation whose compatibility with the Convention rights is in doubt, and the case for establishing a Human Rights Commission. It is not intended that the Joint Committee will have a role in commenting on the handling of human rights overseas.

Summary

122. The Human Rights Act 1998 gives further effect to rights and freedoms guaranteed under the European Convention on Human Rights into UK
law (see paragraphs 8 - 11).

individuals, companies and other private bodies will be able to rely on the Convention rights (see paragraph 17) in the UK courts or tribunals (see paragraphs 91 - 107).
the Act requires that, so far as it is possible to do so, all legislation must be interpreted and given effect in a way which is compatible with the Convention rights (see paragraphs 22 - 27).
it will be unlawful for a public authority to act incompatibly (or to fail to act compatibly) with the Convention (see paragraphs 79 - 82).

123. Further

the legislation establishing the new devolved administrations makes it outside the power of these administrations to legislate or otherwise act incompatibly with the Convention rights (see paragraphs 109 - 115).
the European Union also seeks to ensure respect for human rights (see paragraphs 116 - 120).
there is established a new Human Rights Committee (see paragraph 121).

124. Your role as an administrator

involved with legislation is to seek to ensure that legislation is compatible with the Convention rights and that statements of compatibility under the Act are made (where possible) in respect of Bills introduced into Parliament (see paragraphs 32 - 78).
involved in decision-making or administrative practice is to seek to ensure that decisions and acts (including omissions) are compatible with the Convention rights (see paragraphs 83 - 90)
involved in litigation is to seek to understand how the Convention and the Act affect proceedings in the UK courts (see paragraphs 91 - 107).
wherever you are, is to seek to ensure that human rights are respected.

Annexes

The Human Rights Act 1998 Guidance for Departments Second edition

The Human Rights Act 1998 Guidance for Departments
Second edition