Human Rights for Community Groups by The British Institute of Human Rights

Human Rights for Community Groups Raising a human rights issue: tips and tools

Contents Introduction 3 The Human Rights Act

A step-by-step guide

Step 1: Identifying the issue

Step 2: Raise the issue informally

Step 3: Raise the issue formally: write a letter

Step 4: Step up the intervention

Step 5: Taking further action

Sample Letters

Case descriptions

Initial complaints

Follow up letter

Appendix 1: A summary of the Articles protected by the Human Rights Act

Appendix 2: Contacts for help with human rights issues

The information in this booklet is not legal advice. If you have serious concerns that your human rights are being abused or are at risk of being abused you may need to seek legal advice. If you have concerns about your safety or that of a child you should contact social services or the police. Information about where you can go for further advice is provided at the end of this guide. Human rights belong to you and you can stand up for them. You can benefit from the protection of the law without resorting to the courts. Often just raising concerns about your human rights can be enough to make sure you are treated fairly and with dignity and respect.

Introduction Human rights are often misunderstood. Many people think they are unnecessary or irrelevant. Others believe they are too complicated, needing a thorough knowledge of the law. But human rights embody simple principles and basic values - and they are relevant to all of us. Human rights are about fair treatment, protecting dignity, and giving everyone the chance to play a full part in society. Human rights can help you to challenge bad treatment and take part in decisions that affect you. This guide provides you with basic and practical information which will enable you to begin using human rights.

The Human Rights Act The main human rights law we refer to in this guide is the Human Rights Act 1998 (HRA). This law made most of the rights in the European Convention on Human Rights enforceable in the UK. Although it is not the only source of human rights - and does not contain all our human rights - it is the only human rights law that we can use easily in our domestic courts. The rights protected by the HRA are set out at the back of this guide, with some further details on particular articles. You can find further information on how the Human Rights Act works and details about what issues the rights cover by looking at BIHR’s other publications including: • Our online toolkit • The e-guide for communities • Changing Lives, which provides real examples of how people have used the Human Rights Act. • Other resources, available at http://www.bihr.org.uk/resources/useful-resources

What you need to know: The points in the following section provide basic background information. You should look at the further sources of information for details on particular issues.

1. The HRA: a practical tool The Human Rights Act provides a useful and practical tool which can be used by non-lawyers and nonspecialists. You can hold public authorities to account without necessarily having to go to court, if they appear to act in ways that abuse your rights. Many individuals have done so, and the rest of this guide provides tools and tips on how you can do so too.

2. Public Authorities Much of the power of the Human Rights Act comes from the duty it imposes on all public authorities to respect and protect your rights. The term ‘public authority’ is not fully defined in the Human Rights Act, but it includes the following, at least: • all central and local Government agencies • courts and tribunals • the National Health Service (NHS) • social services departments • regulators (e.g. the Care Quality Commission) • ombudsmen (e.g. the Local Authority Ombudsman) When the HRA was being made law it was intended to apply to a wide range of organisations which recognises that lots of public services are now performed by private organisations and charities. This means that some private or charitable bodies like housing associations or care homes may also be considered to be a public authority where they carry out a ‘public function’. They will then have obligations under the HRA. So, for example, most private residential units providing services under an agreement with the local authority are obliged to comply with the HRA for non-privately funded residents. The Government recently said they believe all publicly funded health and care services, including contracted and commissioned services, should consider themselves bound by the Human Rights Act.

3. Positive duties Public authorities have a duty not to violate your rights directly, but in some cases they are also under an obligation to step in to protect your rights when you are threatened or put in danger by other individuals or organisations. This is known as a ‘positive duty’. It means, for example, that the police have a duty to investigate and take action when they are aware that someone’s life may be in danger. It means that schools have a duty to act in instances of bullying and hospitals have a duty to prevent intense suffering or pain, whenever they are able to do so.

4. ‘Balancing’ rights Not all instances when your rights are being restricted are necessarily breaches of the Human Rights Act. Some of the rights, for example your right to respect for private and family life, may need to be balanced against other people’s rights, or the rights of the community. However, the balancing act needs to be carefully carried out; public authorities must be able to show that they have taken your rights into account, and that the restriction is necessary and ‘proportionate’ – as minimal as possible to achieve a legitimate aim. In other words, they shouldn’t use a sledgehammer to crack a nut!

5. The HRA and other legislation Some rights are also protected by other laws, such as the Equality Act or the Mental Capacity Act. However, the Human Rights Act operates as a ‘higher law’, and all other laws are supposed to be compatible with it. If a public authority claims to have acted correctly because they have based a decision on the Mental Capacity Act (or some other law), it is still worth questioning the decision if it seems not to comply with the Human Rights Act. In cases where there appears to be a conflict with other legislation, in the final analysis, it is the Human Rights Act which matters.

A step-by-step guide The flowchart on the next page summarises the key steps you might take in trying to address your human rights issue. The exact approach you follow will depend on the urgency of your case. If the issue is extremely urgent you should seek legal advice or possibly assistance from other agencies, like the police. If your matter needs addressing quickly, you may want to move straight from an informal approach – for example, discussion with the individuals involved – with a request to meet with the manager of the organisation, coupled with a threat to contact the Ombudsman, CQC, your MP, or perhaps the media. Any contact you send should stress the importance of an immediate response and a resolution to the problem. If the issue is less urgent, or less clear-cut, the following steps may be a more appropriate response.

Step 1: Identifying the issue It is important to spend some time clarifying the problem. You will need to be as specific as you can about why you think your human rights are at risk. Think about discussing the situation with family, friends or colleagues before you take any action – this will help you to clarify the key points. Remember that you can only use the HRA if a public body is – or should be – involved in some way. Write down your reflections on the following points, or make sure you are very clear about the key issues you want to raise.

You should identify: 1. What it is that you want to challenge: • Is it the way you have been treated, or is it a general decision that has affected you? • How has it affected you? You will need to indicate that the decision has had a serious impact on some aspect of your life. • Who made the decision, how was it taken, and were you consulted? Only decisions by particular bodies (‘Public Authorities’) can be challenged using the Human Rights Act. See point 3 below. • Think about what led to this happening: was it something someone did, or was it a failure by a public authority to do something they ought to have done? 2. Which human rights you think are relevant: • Remember to be as specific as you can and identify exactly which human rights are affected. • Remember that more than one human right may be relevant. • A number of references to human rights law are detailed in the section at the end of this document in Appendix 1: “Your Human Rights”.

A flowchart for action Which human rights? What has happened?

Which public authority?

Step 1: Identify the Issue

Step 2: Raise the issue informally with the individual concerned

They accept your complaint

Work with the organisation to resolve the issue.

You receive an unsatisfactory response

Step 3: Raise the issue formally: Write a letter You receive an unsatisfactory response – or no response

They accept your complaint

Step 4: Step up the intervention They accept your complaint

You receive an unsatisfactory response

Internal complaint procedure within the organisation

Work with the organisation to resolve the issue.

Step 5: Take further action – such as…

Other avenues of support e.g. NGOs

Contact a Regulator

Contact a lawyer and start legal proceedings

3. What is the relevant public authority? • Remember that only ‘Public Authorities’ can be challenged using the Human Rights Act. Public authorities include local authorities, social services, NHS Trusts, schools and education authorities, the police etc. A private company carrying out a public function may also be considered to be a public authority. • If the issue is between individuals, a public authority may still have an obligation to get involved in order to protect someone from serious harm – for example, where there are threats of violence or harassment. • If you are being threatened with legal action, such as eviction, it is important to get legal advice.

Step 2: Raise the issue informally It is often worth raising the problem directly with the public authority that you believe has breached your rights. Arrange a meeting with the people that you have been dealing with; or with their managers. Use the checklist below to make sure you are prepared before any meeting.

Checklist for meetings: • Make sure that you are clear which rights are being affected. There is a short guide at the end of this document to help you. • Practise putting your case forward: write it down, or tell it to someone else to clarify your thoughts. • If you think you need help, ask for it! You can always take a friend with you to support you, or get in touch with a support or advocacy organisation with experience in dealing with your area of concern. • Try to keep calm! Be assertive but not aggressive. • Make a note of what is said so you can refer back to it later if you need to. Most public authorities will respond swiftly to help resolve the issues if they can. Monitor what they are doing and if progress is slow, or they don’t live up to the promises they make – don’t give up! Ask to speak to someone more senior and try again. Tell them you intend to make a formal complaint if the issue is not dealt with. If you make no progress, move onto the next step and make a formal complaint.

Step 3: Raise the issue formally: write a letter If you have been unable to resolve the matter informally, you may want to consider writing a letter of complaint. This has many advantages, particularly since the organisation will have to write you a letter in response.

Tips for writing a letter: • Set out the facts. You need to give enough detail to explain the situation but not so much that you confuse the people that you are writing to. Try to keep it to no more than 1 page. • Be specific about which right they are failing to protect or respect. Tell them why you think so • Explain what you think they should have done, and what you think they should do now • Be clear, polite, and indicate that you expect an answer. • Have someone else read it over to make sure that it makes sense to someone who is not familiar with your case. • Use the sample letters on pages 12-15 to help you draft your letter. If you are not happy writing the letter for yourself, ask for help from an advocacy organisation or a lawyer. See the final section of this guide for more information and some contact details.

No response? Depending on the severity and urgency of your issue, if you receive no response within a reasonable period of time you should follow your letter up with a phone call to check that it has been received. a) If the letter has not been received: • Re-send it and make a firm request for a response within a given period of time. • Consider sending by registered post or delivering by hand. • Tell them you would like an acknowledgement of receipt as soon as the letter arrives b) If the letter has been received but the individual concerned is vague about when you can expect a response, or does not appear to take the issue seriously: • Resend a copy of your letter to the management of the public authority (for example the chief executive or head of a service within a council). • Be specific about your previous letter and include the date it was posted and who it was addressed to. • Tell the manager / chief executive / head of service that you received no response to your first letter. • You could also send a further letter to the person who received the first letter to tell them about the action you have taken. This might encourage them to act more quickly.

How to set out your letter: Your name and address go here The name and address of the person you are writing to goes here Put the date here Dear Mr/Mrs/Ms ABC (or Madam/Sir if you don’t know the name of who you are writing to) • E xplain the background – what has happened? If you are writing on someone else’s behalf explain who you are and your relationship to the person concerned. • E xplain that you are writing because you think that the public authority may have breached your human rights (or those of the person on whose behalf you are writing) or that they may be at risk of being breached. • E xplain which rights you think have been violated, being specific if you can. • Tell them what you would like to see done to resolve the problem and set out what you think are reasonable time frames for next steps - e.g. for a further meeting, a response to your letter, or an instant resolution to the problem. •R emember to include your telephone number or email if you would like to be contacted that way (otherwise they will use your address at the top of the letter). Yours Sincerely Sign your name.

A response! Once you have a response from the public authority you can decide what to do next. If the response is helpful and they now wish to engage with you to help resolve the situation then ask to meet with them and discuss the matter further. • Remember to take good notes of the meetings, including anything they say they will do. • Ask for a timescale and make a note of this. • If they fail to make the corrections you have asked for, or if they do not do so in the agreed timescale, ask to meet with them again. Tell them you will escalate your complaint if it is not addressed quickly. • If the reply is unsatisfactory and they refuse to take your complaint seriously or continue to ignore your rights, then you should proceed to the next step and make a firmer request for an explanation or resolution.

Step 4: Step up the intervention Stepping up the intervention may take a number of forms: • Strengthening the human rights arguments in a follow-up letter (see checklist on next page). • Asking for an immediate meeting to discuss the response. • Warning them that you will be forced to take more serious action if the issue is not resolved. • Writing directly to the next level management as in 3 b) above. The approach you take will probably depend on the urgency of the case and on whether you are anxious not to alienate the school / care home / hospital or other body where the concern has arisen. If you believe that a relatively non-confrontational approach may lead to a resolution and the public authority appears to be making efforts to respond to your concerns, it may be worth requesting a (further) meeting to talk to the individuals directly.

Requesting an explanation of their decision: Any follow-up letter or meeting should also ask the authority to explain how they came to the decision which has led to your concern. By asking them this you will often force them to reconsider the issue in light of the law. This can often lead them towards a more satisfactory response. It is also useful to have their full reasoning before taking further action, as it makes it easier to seek assistance from support groups or advisors to challenge the decision.

Strengthening the human rights arguments Provide more detail: Outline in more detail why you think human rights are an issue. This will probably involve describing in more detail the extent of suffering on the part of the individual and referring to the content of relevant articles. Addressing proportionality: The authority may admit that there has been some restriction of human rights, but believes that their approach was a proportionate response given the other demands they have to satisfy. Ask them how they came to this decision and describe in more detail why you think it was not proportionate – for example, by suggesting another approach or by describing the extent of suffering of the individual concerned. Violation of absolute rights: If you believe the violation is serious enough to constitute inhuman and degrading treatment, or a threat to life, a response of ‘proportionality’ will not be satisfactory. Tell the authority why you believe an absolute right has been violated. Remind them that such rights do not allow for any exceptions and the authority should act immediately to prevent further harm and to remedy the situation.

Step 5:Taking further action: There are a number of ways that you can follow up a failure at Step 4, either on your own or by getting help from someone else.

Internal complaints procedures: Most public authorities will have some kind of internal complaints procedure. Normally you can find out about this on their website. If you can’t find any information about the complaints procedure ask for it either in writing, or in a meeting. Some complaints procedures will require you to write another letter, others will have a specific form that you need to fill in. Have a friend or advisor read it before you send it to ensure that it is clear and that there are no mistakes. Contact the regulator: Most areas of public service will have some kind of regulator or governing body. The powers of these regulators vary but many will be able to help you in dealing with a situation. A list of regulators can be found at the Access to Law website (http://www.accesstolaw.com).

Other avenues: There are a number of other bodies which may help with human rights issues. Ombudsmen can help with certain areas of public services, voluntary sector organisations can often provide advice and may even agree to take on your case, and often writing to your MP or Counsellor can have significant results.

Contact a lawyer: Many cases may be resolved without needing to go to court, but sometimes a court case will be the only way to get your case addressed. The more serious the issue, the more likely it is that you may need to go to court. If you think this may be the only solution, you should seek legal advice as soon as possible. Going to court and/or seeking legal advice and representation from a solicitor usually costs money. You can contact the Legal Services Commission (http://legalservices.gov.uk/) for more information about legal aid and getting help with legal advice and or representation. There are often others available to support and represent you with more basic legal proceedings (such as Trade Unions, University Law Clinics, and Pro Bono Law Centres). You can also speak to your local Law Centre or Citizen’s Advice Bureau about where to get help with legal issues. Always remember … • Seek professional advice whenever you can. There are several organisations that may be able to give you free advice. See the useful contacts section for details. • Taking a case to court is usually a last resort. It is often much easier, quicker, and cheaper to resolve issues before they end up in court. • Human rights may not always be the solution. There may be other more specific laws that would be more appropriate to use. An adviser can help you decide.

Sample Letters: Two case studies are provided on the next page, followed by a number of sample letters which might be used to address the human rights concerns arising from the cases. The letters are designed to help you see how to structure an initial complaint and how to respond to an initial response. You should adapt the letters for your particular case. 11

Case descriptions Sinead’s Case The Scenario A secondary school teacher organises a work experience for students in year 10. As well as complementing PSHE lessons, the excursions are designed to introduce the young people to organisations and businesses in the local area and to encourage confidence building and the development of skills outside the classroom. Sinead, a student in the class, is a paraplegic. She is paralysed from the waist down and is a wheelchair user. She is transported to and from school in a specially adapted vehicle. Sinead is keen to get work experience, and asks the teacher if a suitable placement can be found. The teacher, Mr X, explains that it will be too difficult to find a placement that is suitable due to Sinead needing a building or an office that is accessible for wheelchairs. As a result Sinead is unable to participate in work experience and instead spends the time alone in the school library. She feels dejected and isolated.

Parveen’s Case The Scenario Parveen is an older woman who recently experienced a stroke and as a result had to move into residential care. She now has problems expressing herself. She is too frail to clean and bathe herself and is helped in these tasks by carers. Prior to her stroke, Parveen had been cared for at home for several years and was always bathed and manually handled by female carers, at her request. When she moved into the residential care home, it was made clear that she does not like to be manually handled by male carers. One day, her son Ahmed arrives for a visit. He is told that she is being bathed. As he is walking to her room he sees her being assisted in the hallway by a male carer. Ahmed can tell she is distressed. He asks the carer if he has been bathing his mother and the carer says yes. Ahmed asks why this has happened, when the care home knows that his mother does not like to be touched by men. The carer says that Parveen is too old to realise what is happening and therefore ‘it is not a problem’. Margaret, who lives in the room next to Parveen, tells Ahmed that the manager no longer has enough female staff to meet the requests of those who want to be bathed and manually handled by female carers.

Initial complaints Sinead’s case Tree Lane Hedgeborough HD1 1AB Hedgeborough Local Education Authority 16-08-2012 Dear Mr Appleby,

Explains the background. Also sets out who is writing the letter and their relationship to the subject of the complaint.

I am writing to you on behalf of my daughter Sinead, who is a Pupil in year 10 at Hedgeborough Secondary School. Sinead is a paraplegic and a wheelchair user. As part of their PSHE lessons the whole of year 10 apart from Sinead have undertaken a period of work experience. Sinead was not able to take part in the programme as the teacher in charge, Mr X, felt that it was “too difficult to find a placement suitable”. I have been unable to make progress with Mr X or the headmistress, and I believe that a number of Sinead’s rights under the Human Rights Act have not been respected. As a public authority, both the school and the Local Education Authority have duties under the Human Rights Act. I believe that Sinead’s right to private life, her right to education and her right to be free from discrimination have not been respected by the school. Sinead has been happy at school until this moment, but has become very isolated and unhappy as a result of this decision. Her social life and sense of self-value have been severely impacted and she is clearly not receiving the same quality of education as other pupils in her class. I would ask the LEA to state clearly that disability should not be a bar to undertaking work experience and that you demand from Hedgeborough Secondary School that they make adequate arrangements to enable Sinead to take part in the Work Experience program. I would also like to be sure that other pupils do not experience discrimination of this kind and would like assurance that the LEA will take measures to ensure that the school is aware of its obligations under human rights legislation. I would like to see evidence of new policies and practices being implemented by the school by the end of this term which will allow pupils to receive education of the same quality, irrespective of any disabilities they may have. I intend to make a formal complaint if this issue is not resolved to my full satisfaction.

Explains that you are writing because you think that the public authority may have breached someone’s rights - or may be at risk of doing so.

Explains which specific rights have been violated.

Outlines the impact on the individual, making it clear the extent of her suffering

Suggests a resolution and sets out a reasonable timeframe for next steps

Informs about possible further action

Yours Sincerely Mrs Smith (Sinead’s Mum) 13

Sunshine House Cherry Tree Lane HR1 1UV Dear Mr Swanson, I am writing to you on behalf of my mother, Parveen Adamjee, who is a resident at Sunshine House. My mother has been cared for at home for some years, but recently had a stroke, and had to be admitted to Sunshine House for residential care. We made it very clear that she would not be comfortable being touched by male carers, and I am including my letter of last June where I outlined this requirement. Despite this, it has been drawn to my attention that my mother is being bathed by male carers, due to a ‘lack of female staff ’. When I questioned this, I was told by the carer I spoke to, that my mother is ‘too old to notice’. My mother is extremely upset and feels embarrassed and humiliated on a daily basis by being washed and touched by male carers. To have disregarded her wishes and subjected her to such treatment on a regular basis shows a lack of respect for her privacy and dignity. Furthermore, to do this on the basis that she is ‘too old to realise what is happening’ is to disregard her feelings because of an assumption that your staff should never have made. The distress she has endured is no less than a younger person would feel. I believe this treatment of my mother constitutes a violation of Article 8 under the Human Rights Act, and is also discriminatory. Sunshine House has duties under the Human Rights Act not to treat residents in this way. I would be grateful if you could give this matter your urgent attention and will make alternative arrangements for my mother’s bathing which will not involve the use of male carers. Because of the way it is affecting her, I would like to be certain that changes will be put in place with immediate effect. Please could you call or email me (details below) to let me know how the matter is being addressed. I shall be visiting my mother on the 15th November and would appreciate a meeting with you to discuss the other issues I have raised concerning staff attitudes. Yours Sincerely Ahmed Adamjee

Explains the background. Also sets out who is writing the letter and their relationship to the subject of the complaint.

Outlines the impact on the individual, making it clear the extent of her suffering

Explains which specific rights have been violated.

Explains that the public authority has duties under the HRA

Suggests a resolution and sets out a reasonable timeframe for next steps

Parveen’s case: first letter Parveen’s case: the care home’s response: Sunshine House Cherry Tree Lane Timmerton HR1 1UV 3rd November 2009 Dear Mr Adamjee, Thank you for your letter regarding your mother’s care at Sunshine House. Sunshine House is a privately run care home. You may not be aware that the Human Rights Act is only applicable to public bodies. It does not therefore apply to Sunshine House. We make every effort to ensure that residents at Sunshine House are as comfortable as possible, and while we understand that female residents may prefer to be bathed by female carers, unfortunately we do not currently have the resources to recruit more female staff. It is not therefore always possible for us to ensure that female residents are only bathed by female staff. We do also note that Parveen has not herself complained about this. Yours sincerely, Mr Swanson

Follow up letter Parveen’s case: second letter Sunshine House Cherry Tree Lane HR1 1UV Dear Mr Swanson, Thank you for your response to my letter regarding my mother’s care at Sunshine House.You deny that you have obligations under the Human Rights Act (HRA). However, for the purposes of the HRA, public authorities include organisations ‘whose functions are of a public nature’. My mother’s care is arranged by and funded by the local authority and is certainly a function ‘of a public nature’. Sunshine House therefore does have duties under the Human Rights Act.

Addresses the direct points made in response to the original letter

Article 8 of the HRA states that a person has the right to respect for their private Strengthens the human rights life.To disregard my mother’s wishes and force her to go through the daily ordeal case by drawing attention to of being washed by male members of staff shows a lack of respect for her privacy, what is required by Article 8 physical integrity and her dignity, given how she feels about being touched by men. Whilst it is the case that Article 8 is a qualified right, any interference with this right must be necessary and proportionate. I do not believe you have taken my mother’s rights into account and shown that your actions are proportionate. For example, have you considered other options available that are less restrictive of her rights, such as bathing female residents at different times of day when female Expands on the suffering of the individual whose rights staff are available? As I outlined in my previous letter, my mother has found the whole experience extremely distressing. She has conveyed to me her embarrassment and humiliation – to the extent that I gather for the past week, she has refused to be bathed at all.This should indicate to you how much she has suffered under the measures you have put in place. I gather from other residents that there has also been a severe deterioration in her physical and emotional well-being. I shall be visiting my mother on Tuesday of next week. I expect you to have taken action by that time to ensure that my mother is only bathed by female carers. I would also like confirmation that you will be taking measures to inform your staff about their duties under the Human Rights Act and the Equality Act, and a guarantee to address assumptions staff may have about the ability of those they are supposed to care for to experience normal human emotions. I shall be drawing this complaint to the attention of the local authority and expect a response from you – by email or phone – on receipt of this letter. Yours sincerely, Ahmed Adamjee

are being violated

Sets out a resolution and a timeframe for next steps

Outlines further action to be taken

Appendix 1: A summary of key Articles protected by the Human Rights Act This guide aims only to give you an overview of the scope of the Human Rights Act and the areas that it might cover. We have included brief outlines of the rights contained in the Act which are most likely to be relevant to your case - but you should seek further information and detail from other sources in order to give your complaint the best chance of succeeding.

ARTICLE 2: RIGHT TO LIFE The right to life is an absolute right. It imposes two types of obligations on the state: • A duty not to take away anyone’s life (apart from in certain limited circumstances) . • A positive duty to take reasonable steps to protect life The positive duty to protect life obliges the state to intervene when someone’s life is at risk from another person (and where the authorities know, or should know, about this risk.)

Examples of Article 2 violations: • Refusing to give life-saving treatment to someone because of their age • Deaths through neglect or negligence • Failing to investigate suspicious deaths • Deciding not to resuscitate someone (unless they have requested this)

ARTICLE 3: RIGHT TO BE FREE FROM TORTURE, INHUMAN AND DEGRADING TREATMENT • An absolute right • Must be very severe treatment • The state has a positive obligation to protect Inhuman treatment • Less severe than torture, but still causes severe mental or physical suffering • It does not need to be deliberate Degrading treatment • Treatment that grossly humiliates • Designed to produce in the victim feelings of fear, anguish and inferiority

Examples of Article 3 violations: • Neglect/ carelessness e.g. bed sores, not being fed properly • Poor conditions in hospitals or care homes • Washing or dressing without regard to dignity • Excessive force used to restrain • Authorities failing to protect individuals from abuse • Malnutrition and dehydration

ARTICLE 5: RIGHT TO LIBERTY A limited right, meaning a person’s right to liberty can be breached in certain, very specific circumstances including imprisonment of criminals, or the detention of those with a mental disorder. Detention of those with a mental disorder: • A specific mental disorder must be involved, and the disorder must be extreme • Detention includes secure facilities and extreme restriction on freedom of movement (eg sedation) • Detention must be lawful, and should end when the disorder ends • There must be periodic reviews by a Tribunal with power to discharge

ARTICLE 6: RIGHT TO A FAIR TRIAL Article 6 focuses on how decisions are made – it helps to open up decision-making processes to scrutiny and ensures that they are fair. It applies to • Criminal proceedings • Civil rights and obligations Under Article 6, a person(s) whose rights are affected is entitled to • An independent and impartial tribunal • Be present at some stage during the decision making process • Be able to present their case before the decision is made • Know and be able to challenge the case against them • See all relevant documents • Have the decision made within a reasonable time period • Be given reasons for the decision made

Examples of decisions which require a ‘fair trial’: • Decisions to suspend employees from duties • Confiscation of property/ property disputes • Planning proceedings • Licensing decisions • Compensation issues

ARTICLE 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE, HOME AND CORRESPONDENCE A qualified right which can be restricted, and has to be balanced against the rights of others and needs of society • Protects four interests: family life, private life, home and correspondence • The state has a positive obligation to protect this right Family life • Includes the right to develop normal family relationships • Includes the right to ongoing contact if family is split up

Private life • Includes a right to ‘physical and psychological’ integrity • The right to participation in the life of the community • The right to form and maintain relationships with other people Home • Not a general right to housing, but a right to the home you already have • Care homes or hospital wards may be a person’s home

Examples of Article 8 violations: • Lack of dignity in respect of personal care needs • Lack of privacy on wards • Refusal to allow family visits or contact whilst in hospital/ residential care • Inappropriate use of restraint or medication • Negative and patronising attitudes • Insufficient attention paid to confidentiality

ARTICLE 9: THOUGHT CONSCIENCE AND RELIGION This right has two components: the freedom to think or believe what you want, and the freedom to manifest those beliefs. The first part (believing what you want) is an absolute right. The second part (the right to ‘manifest one’s religion or beliefs’) is a qualified right which can be restricted, and has to be balanced against the rights of others and needs of society. The state has positive obligations to secure the enjoyment of these rights. Thought, conscience and religion: • Includes the freedom to choose your own religion or belief and to change your religion or belief. • Includes freedom ‘from’ religion – you cannot be forced to follow a particular religion or to take part in religious observation. The manifestation of religion or belief This covers the actions you choose to take as a result of your religious belief (or lack of it) • Includes through worship, teaching, practice and observance, such as wearing religious clothing. • Includes the right to talk about your religion and encourage others to convert This right can be restricted but interferences have to be justified.

ARTICLE 10: FREEDOM OF EXPRESSION A qualified right which can be restricted, and has to be balanced against the rights of others and needs of society • Includes the freedom to hold opinions and the right to receive and impart information and ideas to others. • Expression is not limited to text and speech but includes pictures, images, words, actions etc. • Recognising that speech can be a powerful commodity, Article 10 sets out that this right “carries with it duties and responsibilities” and may be restricted in certain circumstances.

ARTICLE 11: FREEDOM OF ASSEMBLY AND ASSOCIATION A qualified right which can be restricted, and has to be balanced against the rights of others and needs of society • This protects the right to peaceful assembly, which includes the freedom to hold meetings (in public or private), protests, sit-ins etc. • It protects the freedom to associate with others, including the right to form or join a trade union, political party or other group. It also protects the right not to have to associate with others (including the right not to join a union).

ARTICLE 12: MARRIAGE & FOUNDING A FAMILY This right is qualified by “the national laws governing the exercise of this right”. • It applies to men and women of marriageable age and at the moment does not extend to same-sex couples. • Post-operative transsexual people have the right to marry in their new gender. • It may apply in cases where intimate relations are prohibited - eg in residential homes

ARTICLE 14: RIGHT TO NON-DISCRIMINATION • This must be linked to one of the other Convention rights. It is not a stand-alone prohibition on discrimination. • Where another right in the Convention is engaged (potentially violated), this article prohibits discrimination in relation to that article – on any grounds. • The list of grounds in Article 14 are open-ended and may include disability, gender, race, political views, carer status, marital status, being HIV positive etc. Discrimination under the Human Rights Act can mean two things: • Treating people in the same situation differently because of their status; or • Treating people in a different situation – people who have different needs – in the same way, regardless of those needs. Not all differential treatment will be considered to be discrimination, only that which cannot be objectively and reasonably justified by the State. The definition can therefore allow for positive discrimination in some circumstances.

Examples of Article 14 violations: • Racial bullying or harassment • Not allowing people of particular religions to observe religious practices • A carer being harassed at work because colleagues feel she takes too much time off on account of her caring responsibilities • This right must be linked to one of the other Convention rights

Protocol 1: Article 2 – Education • This enshrines a limited right to education including tertiary education. It prevents the state from denying a person an education rather than creating a right for say all children to be educated to secondary level. It gives individuals a right to access educational facilities that already exist. • Where there is a state provision of education and training (as there is in the UK) access to it should be open. However the state may place limits on the number of places/funding available for individual courses.

• Students may be excluded from education provided that it is for serious cases. When a person is excluded efforts should be made to provide alternative support to that person. • It includes a duty on the State to respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions, which requires schools to respect parents’ beliefs. • When the UK ratified the First Protocol, it entered a ‘reservation’ to this right that it would apply ‘only in so far as it is compatible with the provision of efficient instruction and training and the avoidance of unreasonable public expenditure’

Appendix 2 Contacts for help with human rights issues Equality and Human Rights Commission www.equalityhumanrights.com The Equality and Human Rights Commission provides free information and guidance on discrimination and human rights issues via their helpline and website. Tel: 0845 604 6610, Textphone: 0845 604 6620 Fax: 0845 604 6630 (Correct at the time of printing) All lines are open Monday to Friday, from 9am to 5pm. Calls are charged at local costs if made from a BT landline.

Liberty www.yourrights.org.uk Liberty’s Public Advice Service is aimed at members of the public and voluntary organisations who want advice on human rights issues that affect them. Liberty can only advise in England and Wales. You are encouraged to visit Liberty’s Your Rights website first to see if the information you need is available online. If the information you require is not on their website, you can submit a written query online or by post, using a request form, available here: www.yourrights.org.uk/get-advice/public-adviceintro.html Alternatively you can call their advice line on 0845 123 2307 during the following hours: Monday & Thursday: 6.30–8.30 pm Wednesday: 12.30–2.30 pm

Seeking legal advice The organisations below either provide free initial legal advice or can help you find a lawyer.

Advice UK www.adviceuk.org.uk A membership organisation of independent advice centres. They do not give out advice themselves but their website has a directory of advice centres. Telephone: 020 7469 5700 Email: mail@adviceuk.org.uk

Citizens Advice www.citizensadvice.org.uk Provides free, independent and confidential legal advice, and can help you find a solicitor. Telephone: 020 7833 2181 (no advice is available on this line, but they will be able to give you details of your local Citizens Advice Bureau that can give you advice) Advice website: www.adviceguide.org.uk

Community Legal Advice An online directory providing details of solicitors, advice agencies and information providers across England and Wales. They also have a helpline giving free initial legal help and advice for people in England and Wales on benefits, tax credits, debt, education, housing and employment problems. Helpline: 0845 345 4345

The rights contained in the Human Rights Act are: Article 2: Right to life Article 3: Right not to be tortured or treated in an inhuman or degrading way Article 4: Right to be free from slavery or forced labour Article 5: Right to liberty Article 6: Right to a fair trial Article 7: Right not to be punished for something which wasnâ&#x20AC;&#x2122;t against the law Article 8: Right to respect for private and family life, home and correspondence Article 9: Right to freedom of thought, conscience and religion Article 10: Right to freedom of expression Article 11: Right to freedom of assembly and association Article 12: Right to marry and found a family Article 14: Right not be discriminated against in relation to any of the rights contained in the European Convention Article 1, Protocol 1: Right to peaceful enjoyment of possessions Article 2, Protocol 1: Right to education Article 3, Protocol 1: Right to free elections Article 1, Protocol 13: Abolition of the death penalty 22

The British Institute of Human Rights School of Law Queen Mary University London Mile End Road London E1 4NS Tel: 0207 882 5850 Email: info@bihr.org.uk Web: www.bihr.org.uk Registered charity number 1101575 This guide was produced as part of BIHRâ&#x20AC;&#x2122;s Human Rights in the Community Project. We would like to thank the Equality and Human Rights Commission for their grant which supported this programme. Copyright ÂŠ2012 British Institute of Human Rights