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This is the second edition of the Study Guide. It aims to take account of developments in the two years since the Human Rights Act came into force. Although the authors have made every effort to ensure that the Guide is as accurate and up-to-date as possible, it cannot be taken to be an authoritative statement of the law.
The early drafts of the first edition were written by a group of barristers under the general editorship of the late Peter Duffy QC, whose work in advancing the cause of human rights was tireless and to whose memory the first edition was dedicated. The first edition was finally prepared under the joint editorship of Robin Allen QC and the Human Rights Unit (then based at the Home Office).
The Unit, now part of the Lord Chancellor's Department, Robin Allen QC and Henrietta Hill have prepared this second edition.
![The Rt. Hon. The Lord Irvine of Laird [photo]](images/photo-irvine-02.jpg)
The Rt. Hon. The Lord Irvine of Lairg, Lord Chancellor
![David Bean QC [photo]](images/photo-bean.jpg)
David Bean QC
Chairman of the Bar Council of England and Wales
It is a great pleasure to introduce this second edition of the popular Study Guide to the Human Rights Act.
One of the main aims of the Act is to help build a culture of rights and responsibilities based on a shared understanding of what is fundamentally right and wrong. This is not just about the relationship between the citizen and public authorities. It has direct relevance to the way individuals perceive and treat each other.
The Human Rights Act has already received publicity through various cases, reported in the media, but there is a continuing public demand to know more about the Act and how it works, what it is for and what it means for people. We hope that this Guide will help meet that need.
1. What is the Human Rights Act for?
Being clearer about your rights
1.1 There are some rights and freedoms that are so important and so fundamental that many countries have written them down in a special form, and have made safeguarding and promoting them a fundamental aim for Government.
1.2 The UK does not have a written Constitution as part of its national law. People here had long enjoyed a strong tradition of individual liberties but it had not always been easy to say precisely what was involved - or what to do when unwritten liberties conflicted with other laws.
1.3 The 1950 European Convention on Human Rights (ECHR)1 is a binding international agreement that the UK helped draft and has sought to comply with for half a century. The Convention enshrines fundamental civil and political rights, but for many years it was not a full part of our own law. Using the Convention usually meant taking a case to the European Court of Human Rights in Strasbourg. This was often time-consuming and expensive.
1.4 Since coming into force on 2 October 2000, the Human Rights Act has made rights from the ECHR (the Convention rights) enforceable in our own courts. This is much quicker and simpler than the old arrangement. And the Act gives people a clear legal statement of their basic rights and fundamental freedoms. The key principle of the Act is that wherever possible there should be compatibility with the Convention rights.
Rights with Responsibilities
1.5 So the Human Rights Act is about giving further effect to rights in the ECHR. And it is about respecting your rights. But it is important to understand that the Act, like the ECHR, aims to ensure that not just your, but everyone's, rights are properly respected.
1.6 This means that one individual's rights will often have to be balanced against another's. For example, your right to express your views publicly may need to be balanced against another person's right to a private life. Or the rights of a person accused of a crime to question witnesses may need to be balanced against the rights of victims and vulnerable witnesses.
1.7 The wider interests of the community as a whole may also need to be taken into account. This idea is reflected in the way that many of the Convention rights are written. You can see this by glancing at the text of Articles 8-11 of the ECHR (see Annex E to this Guide).
1.8 The first part of these Articles sets out the right and is followed by a second part describing how the right may need to be limited. For example, everyone's interest in combating crime and promoting public health is mentioned several times as a reason why public authorities might need to limit an individual's right. That kind of thinking is behind the statement that rights and responsibilities go together. The whole system of respecting rights works best when people recognise that and act responsibly towards others and the wider community.
Democracy
1.9 The Human Rights Act ensures that these important ideas, and the supporting judgments of the European Court of Human Rights, are fully available to our courts. It also ensures that Parliament has to reflect carefully, in considering proposed legislation, on the difficult question of where the balance lies between the individual's rights and the needs of the wider community.
1.10 The Human Rights Act requires our courts to respect laws passed by Parliament. However, it allows a higher court to declare that a law cannot be given a meaning compatible with the Convention rights (see Part 2). Parliament can then decide whether and how to amend the law. In this way, the Act balances the rights and responsibilities of the law-making and judicial parts of our Constitution, leaving the final word to the democratic process.
Prevention, not just cure
1.11 The Human Rights Act is a major shift in the way our political and legal system works. Before the Act, our law did not spell out in so many words that public authorities and courts had to respect ECHR rights; and the courts would only look at the ECHR in exceptional cases, for example if UK legislation was unclear.
1.12 The Human Rights Act means all public bodies must ensure that everything they do is compatible with Convention rights unless an Act of Parliament makes that impossible. Prior to the Act coming into force, all government departments reviewed their existing legislation and procedures to see if they complied with human rights standards, and worked out ways in which they could foster human rights positively. People are entitled to expect that public bodies respect their Convention rights.
Public confidence
1.13 One of the main aims of the Human Rights Act was that, over time, a shared understanding of what is fundamentally right and wrong would lead to people having more confidence in key state bodies and that this would encourage more openness and participation in our democracy. Shared, basic values in the Human Rights Act will help to promote a greater unity in our multi-cultural society. The Act has been very widely publicised and we hope that most people in the country now know something about it. So we hope that public confidence in state bodies is growing because of this awareness that human rights should be the benchmark of all that they do.
1.14 The Human Rights Act means that:
2. How does the Human Rights Act work?
2.1 A short explanation of each of the 22 sections of the Human Rights Act can be found at Annex D at the back of this Guide. Briefly, the Act works in three main ways.
2.2 First, it requires all legislation to be interpreted and given effect as far as possible compatibly with the Convention rights. Where it is not possible to do so, a court may quash or disapply subordinate legislation (such as Regulations or Orders) or, if it is a higher court,2 make a declaration of incompatibility in relation to primary legislation. This triggers a new power that allows a Minister to make a remedial order to amend the legislation to bring it into line with the Convention rights.3
2.3 Second, it makes it unlawful for a public authority to act incompatibly with the Convention rights and allows for a case to be brought in a UK court or tribunal against the authority if it does so. However, a public authority will not have acted unlawfully under the Act if, as the result of a provision of primary legislation (such as another Act of Parliament), it could not have acted differently.
2.4 Since the Human Rights Act came into force, people have been able to argue that a decision violated their rights by being, for example, a disproportionate interference with the right to respect for private or family life. So the language of human rights is becoming a common way of judging whether a public authority has acted unlawfully.
2.5 The Courts must look, with “anxious scrutiny”, to see if the interference was really necessary to achieve one or more of the stated aims recognised by the Convention. If the answer is no, the Courts will find that the public body has acted unlawfully. The Courts will not, however, simply replace the decision-maker's view with their own, and so their role is still one of “review” rather than a full re-determination of the original decision. It is just that the nature of the review is now more intensive.4
2.6 Third, UK courts and tribunals must take account of Convention rights in all cases that come before them. This means, for example, that they must develop the common law compatibly with the Convention rights. They must take account of Strasbourg case-law. For example, the Human Rights Act has been relied on to determine cases involving the competing interests of privacy and freedom of expression. Several well-known people have used Article 8 of the Convention (the right to respect for private life) to seek injunctions against newspapers to prevent them publishing personal stories about them.5
![Human Rights Act 1998 - Key Provisions [Table]](images/key-provisions-table-01.gif)
2.7 Different judges have taken different views on how far they can “re-interpret” existing law using their powers under s.3 of the Human Rights Act. However, there is now a line of cases that seems to demonstrate a consensus amongst the judges of the limits of section 3.6
2.8 The key provisions of the Human Rights Act, and the way they relate to each other, are shown in Table 1 above.
What if you think Convention rights have been breached?
2.9 It is always better to see if a problem can be solved without going to court. So people who think their Convention rights have been breached will probably first want to point this out if they can to the person or body concerned. They should ask for an explanation and, if possible, for things to be put right. They might also be able to take the matter up with a complaints body appointed for the purpose. But if the matter does need to be considered by a court or tribunal, as the table explains, victims of unlawful action can raise the point in a case in which they are already involved, or bring a separate case under the Human Rights Act.
2.10 The Human Rights Act requires a court or tribunal considering the complaint to take account of Strasbourg case-law. And courts and tribunals must give laws a meaning, wherever possible, which is consistent with the rights protected by the Convention. Three points need to be checked:
Who is the victim?
2.11 Only victims of breaches of Convention rights can bring proceedings under the Human Rights Act. If the act or decision being complained about has affected you, or is likely to do so, there should be no problem about this. However, if it has had, or will have, no impact on you personally, or only a very indirect impact, you may not be able to bring proceedings under the Human Rights Act. In such cases it may be necessary to get more detailed legal advice.
Is a public authority responsible?
2.12 The courts must consider the Convention rights in all cases7 even if they do not involve a public authority. But you can only take a separate case under the Human Rights Act itself if you believe that your rights are being breached by a public authority, rather than a private individual. Broadly, public authorities are bodies carrying out a governmental or public function. Examples are departments of central government, local authorities, the police, immigration officers prison officers and hospitals.
2.13 Proceedings in respect of a judge's actions or decisions, alleging a breach of Convention rights, may not be brought as a free-standing action. Although judges count as a public authority, a challenge may only be brought where there is a right of appeal, or on application for judicial review, or in any other forum allowed by the relevant rules.
2.14 Private companies that are doing government work, such as organisations that run private prisons, will also be public authorities within the Act in respect of that work. If a public authority of this kind has breached Convention rights, a claim can be brought against it.
2.15 There are some types of bodies that have mixed functions. For example, some housing associations, and the privatised utilities such as water, gas and electricity companies have functions that will probably count as public under the Human Rights Act. If a body of this type has breached Convention rights, a claim under the Act is possible only if the act or decision complained about is in the public sphere. If it is a wholly private matter (for example where such a person, body or company is acting as an employer or in a commercial capacity), a claim under the Human Rights Act will not be possible. But if the body is exercising functions in the public interest, for example regulatory or safety functions, people will be able to bring legal proceedings.
2.16 In one case, for example, a parochial church council was found to be a public authority.8 So, in another case, was a housing association that had a particularly close relationship with, and which was performing very similar functions to, a local authority.9 But in a third case a charity providing residential care was held not to be a public authority.10 This is a developing area and if you are concerned that the body which you think has breached your Convention rights might be a public authority, you should take specialist legal advice.
2.17 Sometimes, even if a public authority has not itself breached Convention rights directly, the authority may be responsible for failing to protect individuals from others who have. This responsibility to protect against the acts of other people which breach Convention rights is sometimes called a positive obligation. Some other examples of this are provided in part 3 of this Guide alongside the rights.
What about time limits?
2.18 Cases in which a person complains that a public authority has acted in a way that is incompatible with Convention rights must be brought within one year beginning with the date on which the act complained of took place. That period can be extended by the court if it considers it equitable to do so. That means that there would need to be good grounds for an extension of time. The court will consider all the facts that are relevant.
2.19 However, the Human Rights Act also says that if there is a stricter time limit for the kind of proceedings used, that time limit will apply. So, for instance, if the complaint is by an application for judicial review it must be brought promptly and will normally have to be brought within three months at the latest. It is sensible to take detailed advice on time limits promptly. If any government body is bringing proceedings (such as a prosecution) the victim can rely on any breach of his or her human rights whenever it took place, if it is relevant to his or her defence.
2.20 However, if someone was convicted of a crime before the Human Rights Act came into force on 2 October 2000, they cannot use its provisions on appeal to overturn the conviction. If a case involving an alleged breach of Convention rights, by a public authority, straddles the 2 October 2000 commencement date, it would be advisable to take advice on the application of the Human Rights Act.
Which court hears cases under the Human Rights Act?
2.21 A person bringing a separate case under the Human Rights Act will have to decide which court or tribunal to start the proceedings in. This is likely to depend on the subject matter of the complaint and the desired remedy. For example, if it is a complaint concerning welfare benefits it should probably start at an appeal tribunal. However, if the claim is based on a contract or is a civil wrong (for example a claim for personal injury, wrongful arrest, false imprisonment) any action should start in the High Court or a County Court, or the Sheriff Court or Court of Session.11 Where the case relates to the decision of a public body, the appropriate action will usually be judicial review in the High Court.
What might raising a Human Rights Act point achieve?
2.22 When a court considers a human rights issue in a case involving an act or omission by a public authority, it looks very carefully at the relevant law to see if the public authority had any choice in the matter. The court looks to see if it is possible to interpret the legislation in a way that is compatible with the Convention rights. If the legislation can be interpreted compatibly, and the court finds that the public authority has wrongfully interfered with the rights, the court is able to provide a remedy using its existing powers.
2.23 By way of example, an Employment Tribunal12 in an unfair dismissal case will continue to have the power to say that a complaint is well founded, to order compensation or even to order reinstatement or re-engagement. The Human Rights Act does not, however, give a court powers it does not already have. Thus, an Employment Tribunal does not have the power to make an order preventing the authority from breaching your human rights under the Act. For such an order you will need to go to a County Court or the High Court.13 By using its existing powers it will be able to put right the complaint. These powers vary, depending on the court or tribunal in which the claim is brought.
2.24 The Human Rights Act extends the power to award damages for a breach of the Convention rights under the Act to any court that has the power to order payment of compensation in a civil case. When considering whether to award damages (and if so how much) the Human Rights Act expressly requires the court to apply the same criteria as are applied by the European Court of Human Rights. Thus, courts may award financial damages both for actual loss, for example loss of earnings, fines paid, loss in the value of property, or loss of employment prospects, as well as moral damages, for example for anxiety or distress. However, any damages must have been caused directly by the breach.
2.25 Where the breach of Convention rights arises out of the application of subordinate legislation (such as Regulations or Orders) and this breach is not inevitable because of primary legislation, the court may quash or disapply the subordinate legislation. The same applies in relation to legislation passed by the Scottish Parliament or the Welsh or Northern Ireland Assemblies, which is regarded as secondary legislation for the purposes of the Human Rights Act.
2.26 Where the breach arises out of the application of an Act of Parliament, it may be impossible for the court to read that Act in a way that is compatible with the Convention rights. If so, the Human Rights Act makes it possible for certain courts to make a declaration of incompatibility that the offending provisions of the Act are incompatible with Convention rights. This power has been exercised on only a few occasions since the Act came into force.
2.27 Only the Court of Session or High Court of Justiciary, the High Court, the Court of Appeal, the House of Lords, the Judicial Committee of the Privy Council and the Courts Martial Appeal Court can make a declaration of incompatibility. Such a declaration will not affect the validity of the Act of Parliament and a public authority will not be acting unlawfully in applying the legislation. But it confirms that the Convention rights have been breached and provides the Government with the power to use a special procedure to amend the conflicting Act of Parliament quickly. It may also encourage the public authority to take steps to remedy the breach of the Convention rights as well as providing strong support for any application to the European Court of Human Rights.
2.28 Under the Human Rights Act, the Minister in charge of any proposal to make a new Act of Parliament has to state whether or not in his or her view the Bill setting out the proposal is compatible with the Convention rights. This ensures that the Government thinks about the impact of the Human Rights Act from the outset before the Bill is debated in Parliament and it assists Parliament in its task of scrutiny.
2.29 In the explanatory notes accompanying the Bill, the Government will also draw attention to the main Convention issues arising on the Bill. In the course of going through Parliament most Bills are considered by the Joint Parliamentary Committee on Human Rights, which may make proposals on how a Bill can be made more consistent with the Convention or with other human rights instruments.
2.30 This Guide is about your rights under the European Convention on Human Rights, and how they can be enforced through the Human Rights Act 1998 - but it is important not to forget that our laws already contain many ways of protecting human rights. In some cases, these are supported by European Community law, or other Treaties that the Government has signed. The Human Rights Act does not take away more detailed protection of human rights in other legislation.
Summary
3. What are my Convention rights?
3.1 Most of the rights in the ECHR have been included in the Human Rights Act. Each right is set out under a separately numbered paragraph of the ECHR, known as an Article (see Annex C). This part of the Guide explains what each of the rights is, taking them in the order that they appear in the ECHR and the Human Rights Act. At the end of each Article, there are suggestions as to how the right may be relevant to individuals.
3.2 There are some important general points and principles to understand about the Convention rights before looking at the individual Articles. These points and principles must, under the Human Rights Act, be taken into account by all UK courts and tribunals. All public authorities also need to bear these points in mind.
Living instrument
3.3 The ECHR is, in the words of the European Court of Human Rights, a “living instrument” which must be interpreted in the light of present-day conditions. Societies and values change and the Court takes account of these changes when interpreting the ECHR. In doing so, it looks to see whether there are common European standards. So the fact that a case has failed under the ECHR in the past does not necessarily mean that it will do so in the future, or that it will fail under the Human Rights Act.
Broad and purposive interpretation
3.4 The European Court of Human Rights seeks to give a practical and effective interpretation to the rights. But limitations and qualifications to the rights, for example to Articles 8-11, are interpreted narrowly. The general idea is to give individuals the full enjoyment of the Convention rights in so far as possible.
Autonomous meaning
3.5 The use of an expression in the law of an individual state (such as whether a matter is considered to be criminal or civil) may not be the same as the definition of that expression in the ECHR. Terms and expressions in the ECHR have the same meaning for all the countries bound by it. That meaning is declared independently by the Strasbourg authorities and is called an “autonomous meaning”.
Margin of appreciation
3.6 In relation to some Convention rights, particularly those requiring a balance to be struck between competing considerations, the European Court of Human Rights allows a margin of appreciation to the domestic authorities. This recognises that domestic authorities are better placed to make decisions about the merits of a case, at least in the first instance.
3.7 Prior to the coming into force of the Human Rights Act there was a certain amount of debate as to how far the “margin of appreciation” would be relevant to the Act. Some commentators argued 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 suggested that the UK courts might develop an analogous doctrine similar to the margin of appreciation.
3.8 What has happened since the Act came into force is that in some cases the courts have concluded that there are insufficient reasons to support the decision, policy or law (as indeed the European Court of Human Rights could itself ultimately do). However, in others the courts have been willing to accept the opinion of expert decision-makers, such as a government department, health authority or Parliament. The court has been particularly careful when the decision involved the balancing of competing rights and interests (such as the state's need to enforce immigration policy and an individual's wish to stay with his or her family in the UK).
“Absolute”, “limited” and “qualified” rights
3.9 Not all the Convention rights are formulated in the same way. The different types of Convention rights are sometimes explained as:
Part 3 of this Guide uses these terms and explains them further.
Proportionality
3.10 The points at A, B and C above are very important tests to see if interference by any public authority in an individual's rights is allowed under the ECHR. Of critical importance, however, is the proportionality condition in test C. What this means is that, even if a particular policy or action that interferes with a Convention right pursues a legitimate aim (such as the prevention of crime) this will not justify the interference if the means used to achieve the aim are excessive in the circumstances.
3.11 Any interference with a Convention right should be carefully designed to meet the objective in question and must not be arbitrary or unfair. Public authorities must not “use a sledgehammer to crack a nut”. Even taking all these considerations into account, interference in a particular case may still not be justified because the impact on the individual or group is just too severe. For example, the European Court of Human Rights took this view when it ruled that an outright ban on homosexuals serving in the armed forces was not compatible with the ECHR rights.14 Under the Human Rights Act, the courts have accepted that they need to consider proportionality. They do this by looking with “anxious scrutiny” at decisions that impinge on human rights, to see if they should be upheld.
3.12 You have the absolute right to have your life protected by law. There are very limited circumstances when it is acceptable for the state to take away someone's life. You also have the right to an effective investigation if one of your family members dies in circumstances where the state might be responsible (for example if they were in prison at the time or were killed by the police or the army). Everyone living in the UK has these rights, including those such as suspected terrorists or violent criminals who put the lives of other people at risk. Article 2 gives perhaps the most fundamental of all the rights under the ECHR.
What does my right include?
3.13 Article 2 requires states to make adequate provision in their laws so as to protect human life. This means that, generally, the taking of life must be illegal under a state's law. The fact that murder and manslaughter are crimes under domestic law satisfies this part of the Article 2 obligation on the UK.
3.14 Article 2 also provides that no-one can be deprived of their life intentionally by the state unless they have committed a crime for which the death penalty is provided. The UK has also ratified Protocol 6, which abolishes the death penalty and the existing legal situation is that courts in the UK cannot order death as a sentence for a crime.
3.15 There are very limited exceptions to this right, under Article 2(2). In peacetime, a public authority - such as the army, the police, or a prison - may not cause someone's death intentionally or unintentionally unless one of several limited special circumstances applies. These circumstances are where the death results from force used:
3.16 In any such situation it must be shown that the use of force and the level of force used were absolutely necessary. It must also be shown that the use and level of force used were strictly proportionate bearing in mind what the force was trying to achieve. For example, the level of force that is acceptable in one situation may be unacceptable in another. UK law currently has provisions relating to the level of acceptable force that are expected to comply with the standards set by Article 2.
3.17 The Government must also take positive steps to protect life in all kinds of situations. The following are examples of areas where questions about how far this obligation should extend might be raised:
What if someone is killed by a state agent?
3.18 If someone is killed by a state agent, such as a member of the police or the army, the death should be properly inquired into. This investigation must be prompt and effective; there should be a certain amount of public scrutiny of it; and the family of the deceased should be suitably involved. The investigation should examine whether or not the force used that led to the person's death was justified, having regard to all the circumstances of the case. These circumstances will include: the reasons for the use of force, including the planning and supervision of any action, and the degree of force used in the particular situation. It will be up to the public authority to justify the action.
The duty to investigate other deaths
3.19 The state is also under a duty properly to investigate deaths that are not directly caused by public authorities or where the state might have in some way contributed to the death or provided the opportunity for it. This would include a situation where someone committed suicide in prison or police custody, or was murdered by another detainee. Several recent cases under the Human Rights Act and in Strasbourg have sought to clarify what level of investigation Article 2 requires in these situations:18
3.20 This duty may also extend to a situation where Article 2 is engaged (because someone's life is at risk) even if they do not die.
Article 3: Freedom from torture or inhuman or degrading treatment
3.21 You have the absolute right not to be tortured or subjected to treatment or punishment that is inhuman or degrading. The treatment prohibited by Article 3 is of the worst kind and Article 3 is one of your most fundamental rights. Even in times of war or other public emergency, you have the right not to be treated in these ways.
3.22 How your treatment will be classified depends on many different factors, such as:
What is torture?
3.23 Torture is the most serious kind of ill-treatment. It consists of deliberate inhuman treatment, causing very serious and cruel suffering. The suffering can be either mental or physical or both. In one non-UK case, for example, the European Court of Human Rights held that where suspects in a police station had been beaten all over their bodies in order to extract confessions and information about their political activities, this was torture.
What is inhuman treatment or punishment?
3.24 Inhuman treatment or punishment is less severe than torture. Circumstances in which inhuman treatment can arise include:
What is degrading treatment or punishment?
3.25 Degrading treatment or punishment is also less severe than torture. It may be degrading if it is ill-treatment which is also grossly humiliating. Whether or not treatment is “degrading” depends on whether a reasonable person of the same age, sex and health as you would have felt degraded. There are indications that severe discrimination based on race might constitute degrading treatment and this might extend to other forms of acute discrimination.
Do these definitions change over time?
3.26 Yes. In considering whether or not someone has been the subject of torture or ill-treatment, the European Court of Human Rights is very aware that social conditions change over time. This means that practices that were acceptable in the past may not be in the future, for example certain forms of corporal punishment.
Does it matter who has actually performed the torture or ill-treatment?
3.27 Yes. A public authority can be responsible for the acts of people who work for them even if they do not know or approve of what those people are doing. For example, in one case the Turkish authorities were held responsible for rapes committed by their soldiers in Cyprus as they had not taken satisfactory steps to prevent the attacks and did not discipline the soldiers sufficiently afterwards. The state is under a positive obligation to prevent breaches of Article 3 by one private individual against another, particularly against children and other vulnerable persons, a principle that was recently reiterated in the Z v UK19 case in Strasbourg. Covering up or failing to investigate a death or disappearance or an allegation of ill-treatment may itself violate Article 3 rights of the immediate victim's family.
3.28 The Convention right to protection from torture and inhuman or degrading treatment under Article 3 may raise issues relating to:
There are several cases where Article 3 has been used under the Human Rights Act.20
Article 4: Freedom from slavery or forced labour
3.29 You have the absolute right not to be treated like a slave or forced to perform certain kinds of labour.
3.30 This is another fundamental right in the sense that even in times of war or other public emergency, you have the right not to be treated in these ways.
What is slavery?
3.31 Article 4 protects you from being held in “slavery” or “servitude”. These are very old-fashioned concepts, dating back to Roman times. Being a slave means that someone actually owns you just like a piece of property. Being in servitude is similar, in that you may have to live on the other person's property, and may be unable to leave, but is different in that the other person does not officially own you. The UK outlawed all forms of slavery in 1833.
What is forced labour?
3.32 Article 4 also protects you from having to perform “forced or compulsory labour”. “Labour” is given a broad meaning, and can cover all kinds of work or service, not just physical work. It is “forced or compulsory” if you are made to do it by the threat of a punishment which you have not voluntarily accepted. The idea could apply to situations where immigrant staff have their passports removed to prevent them leaving work (though, of course, it is not the state which acts in this way).
What is not forced labour?
3.33 The following activities are specifically excluded from being forced or compulsory labour:
Cases under Article 4
3.34 There have not been very many cases before the European Court of Human Rights under Article 4. In nearly all of the cases, people have been unsuccessful.
3.35 For example, the Court has held that trainee lawyers could be made to undertake a certain amount of voluntary work as part of their training. This was not a breach of their rights under Article 4 because it was considered proportionate to require them to perform this unpaid work to avoid being struck off the lawyers' roll.
3.36 It has also been held by the Court to be acceptable for a Government to require an unemployed person to accept a job offer or risk losing their unemployment benefit.
3.37 You have the right not to be deprived of your liberty - “arrested” or “detained” - even for a short period. However, this right is a limited right and it does not apply where this detention is lawful and it is for one of six specified reasons (see paragraph 3.40).
What is an arrest?
3.38 An “arrest” might occur in any situation in which an officer indicates that you are not free to leave. However, not every command to stop is an arrest. It is irrelevant whether this indication is through words or conduct, including force. For example, if you are stopped by the police on the street so that they can question you, search you or conduct tests on you, this could be an arrest, even if you are only detained for a short period of time.
What is detention?
3.39 “Detention” can include both closed and open prisons and mental hospitals. Even if you volunteered to go to the police in order to be arrested or detained you are entitled to the protection of Article 5. It may even be a “detention” to be required to comply with orders requiring you to reside at a particular place under conditions, such as reporting regularly to the police, following a curfew, avoiding contact with certain people or being accompanied by a police officer when you leave the house. A lot depends on the degree and intensity of the restriction on your liberty, which in turn requires consideration of matters such as the means, length, effect and manner of the detention.
Acceptable reasons for arrest and detention
3.40 Article 5 protects you from being deprived of your liberty unless it is in accordance with a procedure set down by law and is for one of the following six reasons:
3.41 If arrest or detention is not for one of these reasons, it will not be lawful and you may want to go to court to prevent or end it. Detention may also be unlawful if it is carried out in an arbitrary or discriminatory way.21
Other rights under Article 5
3.42 These include:
3.43 The Convention allows signatory States to suspend some of the obligations in times of national emergency; these special measures are called derogations. The UK has, in the past, made use of derogations in relation to the length of time for which alleged terrorists may be detained without charge before being brought before a court. Following the terrorist attacks on 11 September 2001 Parliament passed an Act22 which involved the UK making use of its right to derogate, for a limited purpose, from Article 5 of the Convention. The arrangements apply to foreign nationals who the Secretary of State suspects are international terrorists and whom he intends to deport or remove on grounds of national security. Where there are legal or other reasons preventing deportation or removal, the Act allows the suspected terrorists to be detained; and the UK's derogation takes effect to the extent that this detention is not permitted by Article 5. The derogation is still in force, though its lawfulness is under challenge in the domestic courts.
3.44 Under the Human Rights Act, the right to personal freedom under Article 5 may be relevant to areas such as:
3.45 Complaints about the conditions of detention, rather than the fact of detention itself, will generally fall to be considered under Article 3 or Article 8.
Article 6: Right to a fair trial
3.46 You have the right to a fair trial. This is a key feature of a democratic society, and includes:
What kinds of hearings are covered by Article 6?
3.47 Many kinds of hearing or dispute settlement, both criminal and civil, are covered by the general right to a fair trial. The terms criminal and civil have very specific meanings under Article 6. It is important to know which type of case is in question because the rights under Article 6 are more extensive for cases classified as criminal.
3.48 A criminal case can include a case that is not classified in that way in UK law. What matters is whether the nature of the offence and the seriousness of the possible punishment make it virtually the same as a criminal case - for example military discipline cases, or an application to commit to prison for contempt of court. There have been several cases under the Human Rights Act questioning whether a particular penalty is so severe that the full range of Article 6 protections should be available, notwithstanding that the penalty is classified as “civil” in UK law.23
3.49 Again, whether or not something is a “civil” case for the purposes of the Human Rights Act can be a tricky area. Essentially this term describes cases involving disputes about private rights or the use of administrative powers which affect private rights, for example: contracts, planning decisions, property disputes, family law or employment law. It does not include purely public rights - such as rights that may be in dispute under immigration legislation.
3.50 To fall within Article 6, the civil dispute does not necessarily have to be in a court. If the procedure involves the decisive settlement of a genuine, serious dispute, for example concerning a right or obligation (not merely the exercise of discretion), Article 6 may apply. In some kinds of cases involving a public authority you might not have the specific protections of Article 6, even if you already have rights to a fair procedure under domestic law.
3.51 This is because a “civil” right has a technical meaning in the ECHR. Such cases might include: voting or election rights, tax disputes, treatment under the NHS, immigration or extradition. Whether or not Article 6 applies has generated lots of different cases.24 Therefore whether a particular sort of hearing is to be classified as criminal or civil for the purposes of Article 6 is a difficult area, and one on which you might need to take specialist advice.
What about appeals?
3.52 Article 6 does not guarantee a right of appeal but the general guarantees of Article 6 apply to the first level of proceedings, as well as to any appeal which is available. However, some of the more specific rights, such as the right to an oral hearing or to a public hearing, may not apply in full to an appeal.
3.53 If your case is heard by a non-judicial body, such as an administrative authority rather than a court, the proceedings may not always meet the full standard in Article 6. However, this need not matter if there is an appeal from the decision of that authority to a court that does meet the Article 6 standard for fair trials and can deal with all aspects of the case. There need not be a full re-hearing of the facts of the case, for example where the earlier hearing took place in public.
The right of access to a court
3.54 As well as ensuring that court proceedings are conducted fairly, Article 6 gives you the right to bring a civil case. The legal system must be set up in such a way that people are not excluded from the court process.25 The right of access to court is not, however, unlimited and the European Court has accepted that the following people can be restricted from bringing cases:
The right to reasons
3.55 The Human Rights Act has been used to develop existing law which required decision-makers and the courts to give reasons for their decisions in some cases, so that individuals know the basis for the decision sufficiently clearly to decide whether they can challenge it further.
What about legal aid?
3.56 Article 6 does not give you an absolute right to legal aid in all civil cases where you cannot afford to bring proceedings. However, legal aid may be required by Article 6 if the case or proceedings are so complex that you cannot be expected to present the case yourself, or in circumstances where legal representation is compulsory.
What does the right to a fair hearing mean?
3.57 This includes, but is not limited to, the following: the right to present your case and evidence to the court under conditions which do not place you at a substantial disadvantage when compared with the other party. This means, for example, that you must be able to cross-examine witnesses on terms that are equal with the other side's. Witnesses and victims also have rights under the ECHR. Where they are young or vulnerable the court must do what it can to protect them and acknowledge these rights. This may mean that you have to have a lawyer to cross-examine a witness who alleges that he or she is a victim of an offence committed by you.
What does the right to a public hearing mean?
3.58 In principle, this right means that both the public at large and the press have access to any court hearing. Nevertheless, this right can be subject to certain restrictions in the interests of morals, public order or national security or where the interests of those under 18 or the privacy of the parties require an exclusion of the public and the press. However, any exclusion of the public must only go as far as is necessary to protect those interests. Even where the public has been excluded from the hearing, the court must pronounce its judgment in public, whether it is read out or given in written form.
What does the right to an independent and impartial tribunal mean?
3.59 The tribunal that hears your case must be independent of you and of the other party to your case. The way in which members of the court or tribunal are appointed or the way they conduct a particular case can affect their independence.
3.60 Similarly, members of the court must be impartial, and not show prejudice or bias or give you any grounds for legitimately doubting whether they are being impartial. Sometimes a judge will have had some earlier involvement with the case prior to the trial, for example in making bail decisions for you. Or he or she may have links with either party, or very strong views. Generally speaking, however, prior involvement does not mean the judge is not impartial unless it involved him or her in assessing whether or not you were guilty. The test is always whether there is an appearance of a lack of independence or impartiality, whether or not such difficulties are in fact present. For example, in two cases under the Act it was held that licensing justices should not sit on the appeal in the same case as they had decided previously.
3.61 Several cases under the Human Rights Act have involved a challenge to the procedure whereby ministers or local authorities, rather than courts, made important decisions about the use of land or people's enjoyment of property. It has been argued that in these circumstances the decision-maker is too closely connected to the subject matter to be impartial; or that the process is not sufficiently open to satisfy the other requirements of Article 6. The key case on this aspect of Article 6 is Alconbury,26 where it was held that planning decisions could be made by ministers and not courts without Article 6 being breached. In that case, the House of Lords took into account the subsequent involvement of the courts in reviewing the decision.
3.62 However, other cases such as Adan27 and Begum28 have raised issues about how decision-makers who are not courts need to act quasi-judicially (for example, by holding public hearings) where evidence is in dispute between the parties. They have also suggested that some other sorts of decisions cannot properly be allocated to decision-makers other than the courts. Whether or not the decision-maker in a particular case is a fair and impartial tribunal for the purposes of Article 6 is therefore a developing and complex area, about which you might need specialist advice.
What does the right to a trial within a reasonable time mean?
3.63 You are entitled to have your case heard without excessive procedural delays. Whether a delay is excessive will very much depend on the circumstances of your case, including:
Inadequacy of resources (e.g. social workers or judges) is not an excuse for excessive delay.29
Additional rights in a criminal trial
3.64 These include:
3.65 Under the Human Rights Act the right to a fair trial under Article 6 raises issues relating to:
Article 7: No punishment without law
3.66 You normally have the right not to be found guilty of a criminal offence arising out of an action that, at the time that you did it, was not criminal. You are also protected against any increase in the possible sentence for an offence that has taken place as a result of the law changing since the date of your action.
Article 8: Private life and family
3.67 You have the right to respect for your private and family life, your home and your correspondence. Article 8 is an example of a qualified right in the ECHR. This means that there is a framework in place against which any interference with your rights by the state must be judged to see if it is acceptable.
What does private life cover?
3.68 The concept of “private life” is broad. In general, your right to a private life means that you have the right to live your own life with such personal privacy as is reasonable in a democratic society, taking into account the rights and freedoms of others. Any interference with your body or the way you live your life needs to be justified. Your Article 8 rights include matters of self-determination that may include, for example:
3.69 Your right to private life can also include the right to have information about you, such as official records, photographs, letters, diaries and medical information, kept private and confidential. Unless there is a very good reason, public bodies should not collect or use information like this.35
3.70 Article 8 places limits on the extent to which a public authority can do things which invade your privacy about your body without your permission. This can include activities such as taking blood samples and performing body searches.36
3.71 In some circumstances, the state must take positive steps to prevent intrusions into your privacy by other people. For example, the state may be required to take action to protect individuals from serious pollution where it is seriously affecting their lives.
What does family life cover?
3.72 Your right to respect for family life includes the right to have family relationships recognised by the law. It also includes the right for a family to live together and enjoy each other's company. Unmarried mothers are always covered by “family”; foster families may be.
What does respect for my home cover?
3.73 You have the right to enjoy living in your home without public authorities intruding or preventing you from entering it or living in it. You also have the right to enjoy your home peacefully. This may mean, for example, that the state has to take action so that you can peacefully enjoy your home, for example, to reduce aircraft noise or to prevent serious environmental pollution. Your “home” may include your place of business. You don't have to own your home to enjoy these rights.
What about correspondence?
3.74 Again, the definition of “correspondence” is broad, and can include communication by letter, telephone, fax or e-mail.
Can a public authority interfere with my Article 8 rights?
3.75 Yes. But it would have to be shown that: the interference had a clear legal basis; the aim of the interference was either national security, public safety, protection of the economy, prevention of crime, the protection of health or morals or the protection of the rights and freedoms of others; it was necessary (and not just reasonable) to interfere with your rights for one of the permitted reasons; the interference was proportionate, going only as far as was required to meet the aim.
3.76 Before taking decisions affecting people's rights under Article 8, a public authority will have to weigh all the competing interests carefully so as to justify any interference. Rights under Article 8 may need to be balanced against other rights, for example the right to free expression in Article 10.37
3.77 The right to respect for private and family life, your home and your correspondence under Article 8 also raises issues in areas such as:
3.78 Article 9 protects your rights in relation to a broad range of views, beliefs, thoughts and positions of conscience as well as to your faith in a particular religion.
Holding particular beliefs
3.79 You have the absolute right to hold the thoughts, positions of conscience or religion you choose. The state can never interfere with your holding of these views, whatever the circumstances of your case.
Manifesting particular beliefs
3.80 You also have the right under Article 9 to manifest your thoughts, positions of conscience or religion. This can include the right to practise or demonstrate your religion or beliefs in public and in private.
Acceptable restrictions on Article 9 rights
3.81 However, the right to manifest religious belief is “qualified” and interferences with it by the state can be justified in certain circumstances. The state would need to show that the interference had a clear legal basis, the aim of which was public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others. Furthermore, it was necessary (and not just reasonable) to interfere with your rights and the interference went only as far as was required to meet the aim.
3.82 The Human Rights Act also provides that when a court is considering a question relating to the exercise by a religious organisation (itself or its members collectively) of its rights under Article 9 the court must have particular regard to the importance of that right.
3.83 Under the Human Rights Act the right to freedom of belief under Article 9 may be relevant to areas such as:38
3.84 Article 10 gives you a very important right to hold opinions and express your views singly or in dialogue. As with Articles 8 and 9, interferences with Article 10 rights must be justified according to the special framework set out in the ECHR.
What is expression?
3.85 “Expression” can cover holding views or opinions, speaking out aloud, publishing articles or books or leaflets, television or radio broadcasting, producing works of art, communication through the Internet, some forms of commercial information and many other activities. It can also cover the right to receive information from others, so you possess expression rights as a speaker and as a member of an audience. You can express yourself in ways that other people will not like, or may even find offensive or shocking. However, offensive language insulting to particular racial or ethnic groups would be an example of where a lawful restriction on expression might be imposed.
Political expression
3.86 The European Court of Human Rights has always stressed that the right to express political views and opinions is especially important. Even when political views are being expressed, there can be a responsibility to respect the rights of others.
The media
3.87 Freedom of expression is also very important for journalists, television and radio reporters and other parts of the media. It must be free to criticise the state or other political parties and must be able to report news and current affairs fearlessly. The media performs an essential “watchdog” function in a free democracy. On the other hand, these rights must be balanced against others, for example those in Article 8 covering respect for private and family life.
Acceptable restrictions on Article 10 rights
3.88 Article 10 makes clear that the exercise of the freedom of expression carries with it both duties and responsibilities. Interferences with Article 10 rights can take the form of “formalities, conditions, restrictions or penalties”; the interference must have a clear legal basis. Furthermore, the aim of the interference can only be: national security, territorial integrity or public safety, the prevention of disorder or crime, the protection of health or morals, the protection of the rights and reputations of others, the prevention of the disclosure of information received in confidence or for maintaining the authority and impartiality of the judiciary. It must be necessary (and not just reasonable) to interfere with your rights and the interference goes only as far as was required to meet the aim.
3.89 For example, it is clear that freedom of expression can cover publications that many would regard as pornographic or otherwise offensive. However, where these forms of expression are concerned, restrictions can more easily be justified in order to protect the rights of others and the interests of society.39 This means that there can be lawful restrictions on access to certain films, videos and publications so as to protect children.
3.90 Similarly, there can be lawful restraints on the right to speak out. Articles 17 and 18 (see paragraphs 3.131 and 3.132 below) set general limitations on the exercise of Convention rights. They could be particularly relevant here.
3.91 Restrictions that prevent broadcasts or publications occurring (known as “prior restraints”) are rarely allowed.40 The Human Rights Act contains special provisions limiting when and how prior restraints can be imposed and stressing the importance of Article 10. In particular, the Human Rights Act requires the courts to take into account any relevant privacy code. In practice this will mean codes like that issued by the Press Complaints Commission and the Broadcasting Standards Commission.41
3.92 The right to free expression under Article 10 may be relevant to areas such as: political demonstration, industrial action and “whistle-blowing” employees. It has also been very important for the media. The press's rights under Article 10 have come into conflict with celebrities' rights to privacy under Article 8 in several high profile cases (see endnote 5). In addition, the interaction between Article 10 and the criminal law has been tested in several cases.42
Article 11: Free assembly and association
3.93 You have the right to assemble with other people in a peaceful way. You also have the right to associate with other people, which can include the right to form a trade union. Restrictions upon these rights must be justified by reference to special reasons and legal tests.
What is freedom of assembly?
3.94 Your right of peaceful assembly includes your individual right to protest in a peaceful way, particularly against the state. You can exercise this right freely provided that, while exercising your rights, you do not commit any wrongful act and you act peacefully and without violence or threat of violence.
3.95 You also have the right not to take part in an assembly against your will.
What is freedom of association?
3.96 Your right to freedom of association includes: the right to form a political party (or other non-political association such as a trade union or other voluntary group); the right not to join and not to be a member of such an association or other voluntary group. This means that an individual cannot be compelled to join an association or trade union, for example. Any such compulsion may infringe Article 11.
Protecting your rights under Article 11
3.97 The state is under a duty to take certain positive steps in order to ensure that you can properly enjoy and exercise your freedoms under Article 11. For example, the state would act in breach of your Article 11 rights if they permitted “closed shop” agreements under which you could be dismissed for refusing to join a trade union at your work place. And the state should protect you from violence if you are engaging in a peaceful demonstration. Recently the European Court of Human Rights has held that a pay system that penalised trade union members was a breach of this right.
Acceptable restrictions on Article 11 rights
3.98 It can be acceptable for the state to restrict your rights under Article 11 in certain situations, which must be narrowly interpreted. To show that a restriction was lawful, the state would have to show that: the interference had a clear legal basis; the aim of the interference was national security or public safety, the prevention of disorder or crime, the protection of health or morals, or for the protection of the rights and freedoms of others; it was necessary (and not just reasonable) to interfere with your rights; the interference went only as far as was required to meet the aim.
3.99 Greater restrictions may be acceptable if you are a member of the armed forces, the police or a civil servant.
3.100 Men and women have the right to marry and found a family.
Restrictions on your right
3.101 The state can regulate these matters by law as long as it does not effectively take away the right. The right to start a family means that restrictions on adoption, set down by domestic law, are permissible only if they serve an important purpose. Although there is no obligation on the state to provide any specific system of adoption, any system must not obstruct the right.
Artificial reproduction
3.102 Your rights under Article 12 may also be important in the context of artificial reproduction. If you are prohibited from seeking fertility treatment or from making use of artificial reproduction techniques, Article 12 may apply. But there is no right to require the state to provide such techniques.43
Transsexuals
3.103 In the case of Goodwin,44 the European Court of Human Rights has interpreted Article 12 as providing post-operative transsexuals with the right to marry and to found a family.
Article 14: Freedom from discrimination
3.104 Discrimination means treating people in similar situations differently, or those in different situations in the same way, without proper justification. Article 14 of the ECHR gives you the right to protection from discrimination in relation to all the other rights guaranteed under the Convention. It means that you are entitled to equal access to those rights. You cannot be denied equal access to them on grounds of your “status”.
How does Article 14 work?
3.105 Article 14 only works to protect you from different treatment in exercising your other Convention rights. It does not give you a general right to protection from different treatment in all areas of your life. The structure of Article 14 means that you need to be able to identify another Convention right in order to make use of the non-discrimination protection. However, you do not need to identify an actual breach of the right to claim that you have been discriminated against with respect to your enjoyment of it. You simply need to show that the subject matter of the Convention right is activated.
On what grounds is discrimination prohibited?
3.106 Article 14 gives the following as examples of the grounds of discrimination that the ECHR does not allow:
3.107 Importantly, though, Article 14 protects you from discrimination on “any grounds” and the grounds of “any other status” too. This means that the categories are not closed. The “other status” ground could therefore be used to protect you from discrimination on the grounds of, for example
Is a distinction in treatment ever acceptable?
3.108 Yes, in some circumstances. A public body can only treat people differently in the way their Convention rights are exercised if it can show that it is pursuing a legitimate aim and that the discriminatory treatment is proportionate to the aim. Only good reasons will suffice, especially where the difference in treatment is on grounds of sex or race.
3.109 There will be many ways in which Article 14, taken together with another Convention right, can reduce or eliminate discrimination.45
For example:
3.110 There is a new Protocol to the Convention, which will have the effect of making Article 14 a free-standing right to protection from discrimination when it is signed by sufficient states. At present, however, the Government has no plans to sign this Protocol or incorporate it into the Human Rights Act.
Protocol 1, Article 1: Property
3.111 You have the right to the peaceful enjoyment of your possessions. This means that public bodies cannot usually interfere with things you own or the way that you use them.
How wide is this right?
3.112 All sorts of things can count as property. Land is property. So is a lease on a house or flat. So is your business, or the money you use to pay your tax, or your right to a pension. Property you can see and touch such as books, or a car, is obviously included. So are invisible possessions such as shares, goodwill, patents and compensation due under judgment debts or a claim for damages. Even entitlement to a social security benefit can be property if you have contributed for it through national insurance. Companies, individuals, legal owners, beneficiaries, trustees and corporations can benefit from this right.
Can the state take away my property?
3.113 A public authority cannot take away what you own unless a law says that it can, and it is necessary for it to do so in the public interest. There is a public interest in the Government raising finance, and in punishing crimes, so your rights under Protocol 1, Article 1 are not violated by your having to pay your taxes or fines. It tries to strike a fair balance between the general interest and the rights of individual property owners.
Can the state interfere with how I use my property?
3.114 You have the right under this Article to peaceful enjoyment of property without interference. You have the right to use, develop, sell, destroy or deal with your property in any way you please. The right to protection of property means that public bodies cannot interfere with the way that you use your property unless there is a law that lets them do it and unless interference is justified.46
3.115 For example, if the state builds a road over your land, it must have laws in place to let it do this. It must also have a procedure to check that it is fair to take away your house in the public interest, and it must make sure that you can get proper compensation for it. An interference with your peaceful enjoyment of property may be necessary in the public interest - for example, a compulsory purchase of your property may be necessary or a certain amount of noise from road traffic may intrude upon your home.
Property and discrimination
3.116 Sometimes it is necessary to ensure you have the same rights to property as other people in the same situation. For example, if you are a man caring for your disabled wife, you should get the same exemption from paying tax as a woman caring for her disabled husband.
Protocol 1, Article 2: Education
Children
3.117 You have a right not to be denied access to the educational system, and a right to an effective education. Education embraces the whole process where adults seek to transmit their beliefs, culture and other values to children. Teaching means the transmission of knowledge and intellectual development. This right is not necessarily confined to the education of children at school.
Parents
3.118 Parents have a right to make sure that their religious or philosophical beliefs are respected when public bodies provide education or teaching to their children. This important concept is reflected in the current UK laws on education which permit a wide range of educational establishments, whether funded by the state or otherwise.
3.119 The fact that a parent's wishes are a minority view does not necessarily mean that the majority's view prevails. A balance must be achieved which ensures a fair and proper treatment of minority views. Any abuse of a dominant position is to be avoided.
3.120 But parents cannot stop schools teaching about things like sex education if they are reasonable things for the school to teach, so long as it is not trying to indoctrinate the children. However, parents can remove their children from sex education classes.
Limits on the right to education
3.121 The general right to education is not an absolute right to learn whatever you want, wherever you want. The Government has made a special reservation to the ECHR in this area so that education provided by the state is limited to the extent that this is necessary to provide an efficient education and within public spending limits. You might not have a right to the most expensive form of education if there are cheaper alternatives available, but the Government or local education authority must balance the right not to be deprived of an education against the spending limits it imposes. Our Government has stressed that the cost of providing education is a relevant factor in making these decisions.
Punishment in schools
3.122 Schools may legitimately impose penalties (provided they do not amount to ill-treatment within Article 3) on pupils as a form of discipline. A school that imposes a penalty on a pupil will have to show that such a penalty was necessary and a proportionate punishment.
3.123 A purely educational sanction (such as an exclusion) will be acceptable provided it does not breach the parents' right to ensure the education conforms to their own religious and philosophical convictions.
3.124 The right to education under Protocol 1, Article 2 may be relevant to areas such as: special educational needs provision; access to, or expulsion or exclusion of children from, schools (when taken with Article 14); the provision of, or exclusion from, education which is discriminatory as between sexes, races or other categories.
Protocol 1, Article 3: Free elections
3.125 If you have the right to vote for members of the legislative body, the elections in which you take part must be free and fair.
How must elections be conducted?
3.126 Elections must be held at reasonable intervals, and they must be by secret ballot. They must be held in conditions that ensure that people can freely express who they want to be the legislature. If this provision is not followed, you can complain about it.
Can the state limit my rights to elections?
3.127 The state can put some limits on the way in which elections are held. For example, it can stop convicted prisoners from voting. (This was confirmed in the Pearson case.) Also, it can decide what kind of electoral system to have, such as “first past the post” or proportional representation.
3.128 The right to fair elections under Protocol 1, Article 3 applies only to those eligible to vote under the domestic laws. In addition, Article 16 of the ECHR provides that nothing in Articles 10, 11 or 14 is to be taken as preventing a state from imposing restrictions on the political activity of non-citizens.
3.129 Protocol 6 abolishes the death penalty. It means that people should not be sentenced to death or executed, even in times of national emergency. There can be limited exceptions when the death penalty can be applied in times of war or when there is an “imminent” threat of war, but only in accordance with clearly specified laws.
3.130 When the Human Rights Act was being passed, Parliament voted to accept this provision. It means that even members of the armed services cannot be subject to the death sentence in peacetime.
3.131 Article 17 is a very general, but important provision for preserving rights. It provides that the ECHR is not to be read as implying, for any state, group or person, any right to engage in any activity or perform any act aimed at destroying any of the rights set out in the Convention, or limiting them to a greater extent than is provided for in the ECHR.
3.132 Article 18 dictates that the restrictions to rights permitted under the ECHR are not to be used for any purpose other than those that have been specifically set out in the ECHR.
1 See the Glossary at Annex C for an explanation of this and other words and expressions relating to the Human Rights Act or European Convention on Human Rights which may be unfamiliar to some readers. Such words are shown in bold type for their first main use in the Guide.
2 See paragraph 2.27.
3 An example of this was the case of R(H) v. Mental Health Tribunal North and East London Region [2002] QB 1 (CA) when the parts of the Mental Health Act which effectively placed the burden of proof on the patient to show that he or she was safe for release were declared to be incompatible with Article 5 of the Convention (the right to personal freedom). Parliament ultimately changed the law in this regard. This was the first use of the remedial order procedure.
4 R (Mahmood) v. Secretary of State for the Home Department [2001] 1 WLR 840.
5 Venables and Thompson v. News Group Newspaper [2001] Fam 430; Douglas v. Hello! Ltd [2001] QB 967; Theakston v. MGN [2002] EWHC 137 (QB).
6 re S(FC) and W [2002] 2 AC 291; R v. Lambert [2001] 3 WLR 206.
7 The consequences of this rule are sometimes referred to as the horizontal effect - see Glossary at Annex C.
8 Parochial Church Council of Aston etc. v. Wallbank [2002] Ch51.
9 Poplar Housing and Regeneration v. Donoghue [2002] QB 48.
10 Heather v. Leonard Cheshire Foundation [2002] 2 All ER 936.
11 In Scotland.
12 In Northern Ireland, an Industrial Tribunal.
13 In Scotland, the Sheriff Court or Court of Session.
14 Lustig-Prean v. UK (No.1) [2000] 29 EHRR 548; Smith and Grady v. UK [2000] 29 EHRR 493.
15 In NHS Trust A v. M and NHS Trust B v. H [2001] Fam 348 a hospital sought permission to discontinue artificial hydration and nutrition to a person who, in 1997, had been diagnosed as being in a “permanent vegetative state”. The Court noted that Article 2 imposed a positive obligation to give life-sustaining treatment where that is in the best interests of the patient - but not where it would be futile. Discontinuing treatment would not be an intentional deprivation of life under Article 2; and provided that withdrawing treatment was in line with a respected body of medical opinion, that the patient would be unaware of the treatment and not suffering, there would be no torture under Article 3.
17 R (Pretty) v. UK (2002) 35 EHRR 1.
18 R v. Home Office, ex parte Margaret Wright and Moira Bennett [2002] HRLR 1 - where the Court reiterated the requirements that the investigation must be prompt, efficient and independent, and ordered the Prison Service to conduct a fresh inquiry into the death of an inmate in prison.
Edwards v. UK [1993] 15 EHRR 417 - where the Strasbourg Court held that a private internal inquiry into how a prisoner was placed in a cell with a mentally ill inmate who later murdered him had not been adequate, as it had not been able to compel witnesses to attend, was not in public and the family were only able to attend on the days when they gave their evidence.
R v. Secretary of State for the Home Department, ex parte Jean Middleton [2002] 3 WLR 505 - where the Court held that a general finding of neglect as the cause of death at an inquest would sometimes be necessary to ensure there had been a full Article 2 investigation. (Neglect had only previously been available as an inquest verdict in a very narrow range of cases.)
19 Z v. United Kingdom (2001) 34 EHRR 97.
20 Lichniak v. Secretary of State for the Home Department [2002] QB 296 - where the Court did not accept that the mandatory life sentence for murder was so disproportionate a penalty in some cases that it constituted inhuman and degrading punishment in contravention of Article 3.
NHS Trust A v. M and NHS Trust B v. H (see endnote 15).
21 Mr Lichniak (see endnote 20, under Article 3) also argued that the mandatory life sentence for murder was in violation of Article 5 because it was arbitrary, but the Court rejected this argument.
In R (Saadi, Maged, Osman and Mohammed) v. Secretary of State for the Home Department [2002] 1 WLR 356, detainees at Oakington Detention Centre argued that detaining asylum seekers in order to make a quick decision on their asylum claim infringed their right to liberty under Article 5. Although they won in the High Court, the Court of Appeal overturned the decision.
In R v. Secretary for the Home Department and Anor, ex parte IH [2002] EWCA Civ 646, one of the concerns which used to arise under the Mental Health Act 1983 was that when a Tribunal ordered the release of a patient subject to conditions and the conditions were not fulfilled, the patient remained in detention even though a Tribunal had ruled that they do not need to be so detained. The Courts had previously ruled that once a Tribunal had made a decision to discharge subject to conditions, that was the end of its jurisdiction. The High Court ruled that Article 5 required the Mental Health Review Tribunal to monitor compliance with its order for a conditional discharge and if necessary amend the conditions so as to allow release.
In A (a mental patient) and others v. Scottish Ministers and Advocate-General for Scotland [2002] HRLR 6, legislation that prevented the discharge of untreatable psychiatric patients if detention was necessary to prevent harm to the public was held not to breach Article 5.
In R v. Mental Health Review Tribunal and Secretary of State for Health, ex parte KB and others [2002] EWHC 639 (Admin), various patients whose Mental Health Review Tribunals to review their detention had been delayed complained about this. The Court concluded that the cause of the delays was lack of resources; that the convention obliged the government to provide resources, and that this was a problem for central government to sort out.
22 The Anti-Terrorism, Crime and Security Act 2001.
23 Han and Yau, Martins and Martins, Morris v. Customs and Excise Commissioners [2001] 1 WLR 2253 - where it was held that certain VAT penalties were criminal in nature, such that the protections of Article 6 applied.
International Transport Roth Gmbh and Others v. Secretary of State for the Home Department [2002] 3 WLR 344 - which held the same in relation to the penalties for lorry drivers carrying clandestine entrants to the UK.
McCann v. UK [1996] 21 EHRR 97 - which found that anti-social behaviour orders were not criminal.
HM Advocate, HM Advocate-General for Scotland v. Robert McIntosh (later followed in Benjafield) [2001] 3 WLR 107 - where it was held that confiscation orders against drug traffickers were civil rather than criminal.
Carl Gough, Gary Smith v. Chief Constable of Derbyshire: Miller v. Leeds Magistrates' Court: Lilley v. Director of Public Prosecutions [2002] All ER 985 - where the Court found that international football banning orders were not criminal in nature (though the standard of proof to be applied should equate to the criminal standard of proof beyond reasonable doubt).
24 Prison disciplinary hearings, for example, have been held to be neither criminal nor civil (Al-Hasan [2002] 1 WLR 545 and the Scottish case of Douglas Cargill Matthewson v. Scottish Ministers The Times, 24 October 2001), so that Article 6 does not apply to them; and the recall of a prisoner on licence does not engage Article 5 or 6 (West). In contrast, it has been held that the powers of the Kennel Club to ban a member from dog shows after she was convicted of cruelty did attract the protections of Article 6 (Phyllis Colgan v. Kennel Club (26/10/01)); and a post-tariff life prisoner is entitled to some Article 6 protections before the Parole Board (Williams).
25 This aspect of Article 6 came into play in RE S and Others: RE W and Others sub nom RE W and B (Children): W (Child) (Care Plan) [2002] 1 FLR 815, a family law case where the Court of Appeal held that the making of full rather than interim care orders may invoke a violation of Article 6 where there was no ongoing supervision by the Court. Although the House of Lords overturned this decision, it urged Parliament to reconsider the question of court control of local authorities.
26 R (Alconbury Developments Ltd) v. Secretary of State for the Environment, Transport and the Regions [2001] 2 WLR 1389.
27 Adnan v. Newnham LBC [2002] 1 All ER 931.
28 Begum v. Tower Hamlets LBC [2002] EWCA Civ 239.
29 In RE D (A Child) [2002] 2 All ER 668, for example, it was held to be unacceptable for a trial of factual issues in a family case to be adjourned twice when the father had not seen his daughter for more than two years.
In HM Advocate v. DP and SM (16/02/01), the Scottish High Court of Justiciary held that the right to a trial within a reasonable time had been violated where there had been a 23-month delay between juveniles being charged with rape and the date fixed for their trial, when there were many unaccountable periods of inactivity by the prosecution.
In HM Advocate v. JK [2002] HRLR 21 the Privy Council felt that a 28-month delay in bringing a juvenile defendant to trial, for a number of serious sexual offences in relation to three of his cousins, was unduly long. However, whether or not there has been an unreasonable delay will depend very much on the nature of the offence, and the effect the delay has had on the defendant.
In Procurator Fiscal v. Watson and Burrows [2002] HRLR 21, for example, a delay of 20 months between the charge and trial of two police officers was not deemed to be unacceptable.
30 Jones.
31 In Brown v. Stott [2001] 2 WLR 817 it was held that the obligation on the owner of a car to admit who had been driving when an offence was committed was a violation of this protection from self-incrimination but the Privy Council overturned this decision on appeal. It found that the provision in question (Section 172 of the Road Traffic Act 1988) addressed the problem of drunk driving in a reasonable and proportionate way. Similarly, it was held in the Kearns case [2002] Crim LR 653 that the strict liability offence by a bankrupt of failing to account for the loss of a substantial part of property when required to do so by the Official Receiver did not contravene Article 6.
32 In McNally v. Chief Constable of the Greater Manchester Police [2002] EWCA Civ 14, for example, it was held - partly in reliance on the Convention - that a person bringing a claim against the police for damages was entitled to know whether one of the key witnesses was an informant. However, the Loosely case [2001] 1 WLR 2060 held that the current domestic law on entrapment was compatible with the Convention.
33 Although it was held in Pine v. Law Society [2002] 1 WLR 2189 that Article 6 did not require legal representation before the Solicitors' Disciplinary Panel.
34 In Khan v. UK (2001) 31 EHRR 45 and Archbold on Criminal Evidence Pleading and Practice 2002 at para 15-433.
35 In Norman Baker MP v. Secretary of State for the Home Department [2001] UKHRR 1275, for example, it was held that MI5 (the Security Service) could not operate an absolute policy of neither confirming nor denying whether they hold a file on an individual, but must decide by looking at each case what they can say about the information they hold to the person who is the subject of the information. Part of the reason for this was the individual's “right to know” under Article 8 about data that relates to them.
Similarly, in Gunn-Russo v. Nugent Care Society and Secretary of State for Health [2002] 1 FLR 1 - it was held that the secretary of state had no power to compel a voluntary adoption agency to disclose adoption records to an adopted person, but the disclosure of adoption records by such an agency required a balancing exercise to be conducted between disclosure and confidentiality.
36 However, in Marper and others [2002] EWHC 478 (Admin), the Court did not accept the argument that retaining samples and fingerprints after an acquittal (which the law need to prohibit) constituted a violation of Article 8.
37 R (Daly) v. Secretary of State for the Home Department [2001] 2 AC 532 - the Court held that a blanket policy of searching a prisoner's cell (including opening letters from lawyers) was a violation of the right to privacy, as it interfered with his Article 8 to a much greater extent than was necessary and was therefore unlawful.
R (Isiko) v. Secretary of State for the Home Department [2001] 1 FLR 930 - where a deportation decision was upheld even though this would mean separating the claimant from his child by his British-born wife (although there have been other cases where the decision to deport someone has been found to be unlawful because it would mean breaking up a family).
Douglas v. Hello (see endnote 5) - w