What’s this eBook about?
The Human Rights Act is a crucial safety net for us all and is the main way everyone’s rights are respected and protected in the United Kingdom. At BIHR we think everybody should know about the Human Rights Act! This eBook will take you on a whistle stop tour of where our human rights came from, why we have them, how they work and how they’ve made a difference in everyday life.
© 2016 The British Institute of Human Rights. You are free to share this material provided you reference The British Institute of Human Rights as the source (and please inform us on info@bihr.org.uk) and such usage is for non-commercial purposes and the content of the material is not changed.
Navigating this eBook
3-4
4-5
6-7
Want to know what “human rights” are all about?
Interested in finding out what the European Court of Human Rights has to do with our Human Rights?
How about information on where the Human Rights Act came from and why it was made?
8-9
10-11
12-13
Do you know the three key ways our Human Rights Act works and what this means for the way our democracy is run and everyday life?
What about the human rights in the Human Rights Act – what are they and how do they work?
Shining a spotlight on our Human Rights Act in everyday life, how is it helping people?
14-15
Check out how cases in the European Court of Human Rights have had a positive impact here at home.
The British Institute of Human Rights
Founded over 45 years ago, we are an independent charity working to bring human rights to life here at home. We empower people to: know what human rights are use them in practice to achieve positive change in everyday life without resorting to the courts, and make sure those in power respect and progress our human rights laws and systems.
4
At the heart of everything we do is a commitment to making sure the international promise of the Universal Declaration of Human Rights, developed after the horrors of World War II, is made real here at home. Our innovative work seeks to achieve a society where human rights are respected as the cornerstone of our democracy, enabling each of us to live well in communities that value the equal dignity of each person.
What we mean by “human rights”
Human rights belong to all of us. They are a universal set of minimum standards – they are not gifted to us, or earned, and whilst they can sometimes be limited or restricted, they can never be taken away. Although human rights are based on a number of shared values such as fairness, respect, equality and dignity, they go far beyond this. Human rights set down a rule book for governments on how we should be treated - laying down minimum standards backed up by law.
After World War II, the international community came together and said “never again”. It was recognised that whilst democracy was a partial check on power, it wasn’t enough. Modern human rights first became legally defined in the Universal Declaration of Human Rights (UDHR) in 1948. The UDHR is considered to be the foundation for international human rights law.
Getting with the Act: Our Human Rights Act
Not a cure-all
It is important to remember that our human rights are not a magic wand that will fix every problem we may face. In fact, one of the benefits of having our rights set out in the Human Rights Act is that they have specific meanings that are guided by the internationally agreed universal standards, not individual moral codes (which can differ greatly!).
5
Human Rights are “premised on the inherent dignity of all human beings whatever their frailty or flaws… it may be that those rights sometimes have to be limited or restricted… but the starting point should be the same as that for everyone else” Lady Hale, Deputy President of the UK Supreme Court
The European Convention of Human Rights & Court
Drawing inspiration from the United Nations and the Universal Declaration of Human Rights, after World War II nations came together to say never again. Forming an organisation called the Council of Europe (which is distinct from the European Union!) our governments committed to ensuring a “foundation of peace, democracy, rule of law and respect for human rights” across the continent.
“ It is a dynamic expression of democratic faith based upon moral conceptions and inspired by a sense of mission. In the centre of our movement stands the idea of a Charter of Human Rights, guarded by freedom and sustained by law.” Winston Churchill, British Prime Minister 1940 – 1945
Winston Churchill is recognised by the Council of Europe as one the “founding fathers” of the Convention.
Getting with the Act: Our Human Rights Act
And did you know …
The British lawyer David Maxwell Fyffe, who had been a prosecutor at the Nuremberg War Crime Trials after World War II was instrumental in writing the first draft of the Convention. (He later went on to be the Home Secretary in the UK.) So it’s hardly surprising that the UK was one of the first countries to sign up to the Convention, signing up in 1951.
7
Our Human Rights Act
Our Human Rights Act is the most important law protecting our human rights here at home. It takes 16 of the fundamental human rights in the European Convention on Human Rights and pulls them down into our law. Importantly, the Human Rights Act is the law that sets out the ways we can access our human rights here at home. If we have the European Convention on Human Rights why do we need the Human Rights Act?
In 1997 this question was answered by the government paper introducing the idea of the passing our Human Rights Act:
8
“ Our aim is a straightforward one. It is to make more directly accessible the rights which the British people already enjoy under the Convention. In other words, to bring those rights home.� Everyone in the UK has had the protection of the European Convention of Human Rights since 1950 and the ability to ask the European Court of Human Rights to look at their case since 1966. But for people to have to go to a court in Strasbourg (France) as the only way of protecting their human rights was not the most accessible or practical approach. Human rights needed to be brought home. Cue the Human Rights Act and our very own piece of British law pulling down our human rights into our national law.
Human rights are the cornerstone of healthy democracy
Human rights laws recognise that majority rule alone is not enough of a check on government power and so it sets the rulebook for how governments treat all people, no matter what.
A key aim of our Human Rights Act was to help embed a culture of respect for human rights here at home. Parliament’s Joint Committee on Human Rights (the human rights watchdog for Parliament) have explained:
“ We now wish [the Human Rights Act] well and hope that it will be implemented effectively, to the benefit of the citizenry as a whole.”
“ A culture of respect for human rights would exist when there was a widelyshared sense of entitlement to these rights…and where this influenced all our institutional policies and practices’”
“ We have started the business of introducing a formal statement of human rights into our law. That will not be completed until the European Convention on Human Rights is embedded in our jurisprudence.” Jack Straw, Home Secretary in 1998
Sir Nicholas Lyell, Shadow Attorney General to the Conservative Party in 1998
In 1998, our Parliament passed our Human Rights Act with cross party support, and it became law on 2 October 2000.
Getting with the Act: Our Human Rights Act
9
Power in our democracy: why courts can’t make big changes to the law
In our democracy the power of the State is separated into three different parts, rather than resting all in one place: Designing our laws: the Government (aka the Executive)
assing P our laws: the Parliament (aka the MPs and peers in the Houses of Commons and Lords)
I nterpreting our laws: the Courts (aka the judiciary or judges)
How our Human Rights Act works
The Human Rights Act pulls down 16 of the human rights the UK helped write in the aftermath of World War II in the European Convention of Human Rights into our law here at home. But what does this mean in practice? … Well there are three key things to remember: 1
ll UK laws should be A compatible with the human rights in the HRA
Whether a law is old or new – it must be compatible with the rights in the Human Rights Act. What this means: New law When Government proposes a new law it must attach a statement to Parliament that the draft law respects our human rights.
Getting with the Act: Our Human Rights Act
This statement is important because it means when writing a new law governments should consider the human rights implications of their plans. These statements are also important for our democracy. It helps Parliament scrutinise proposed laws for human rights compatibility. Old law Where a Human Rights Act challenge to an old law is being made the courts cannot fundamentally change the law. But they do have two options if they decide that law is not compatible with the rights in the Human Rights Act:
For example, a provision in housing law meant someone in a same-sex relationship couldn’t inherit their partner’s tenancy after they passed away, because only spouses could do this. The courts interpreted spouse to include spouse-like relationships and protect same-sex couples. OR • If the change needed is bigger than this then our higher courts can issue a Declaration of Incompatibility. To find out why our courts can’t make big changes to law, check out page 10.
•T he part which is not compatible with human rights can be interpreted to make it compatible.
11
Declaration of Incompatibility If a law doesn’t respect our human rights the higher courts can issue a Declaration of Incompatibility. This might be about a part of a piece of law or the whole law. It is then up to Government and Parliament to decide how to bring the law in line with the rights in the Human Rights Act. Sometimes called “democratic dialogue, this means our Human Rights Act respects the principle of parliamentary sovereignty (i.e. parliament having the final say on making laws).
12
And did you know …
After 15 years of the Human Rights Act there have been 29 Declarations of Incompatibility. The democratic dialogue process has worked well – Government and Parliament have changed laws in almost every case. Other places, including in Australia have used this model to design their own human rights laws.
2
ublic authorities must P respect our human rights in all they do
Our Human Rights Act is not just about your relationship with Government - public authorities have duties too! Public authorities can include the police, schools, local councils, hospitals and hospital trusts, care homes and prisons. Put simply, this means that those with duties must respect, protect and fulfil people’s human rights in their day-to-day work. This is important because it anchors down the idea of a “culture of respect for human rights” and can be a practical tool for everyday but important changes without having to go to court.
Our Human Rights Act: Changing Lives Jenny was voluntarily at a mental health hospital to receive treatment. Jenny was told she should not leave the ward as staff didn’t think she was well enough, even though she hadn’t been formally detained. BIHR provided human rights support to Jenny’s advocacy service. This meant her advocate was able to explain to staff that Jenny has a right to liberty (Article 5, HRA), and as she wasn’t detained under the Mental Health Act, this right meant Jenny was free to leave at any time. After discussions with the ward manager Jenny agreed to staff accompanying her when she went out, so they could be sure they were meeting their duty to protect Jenny from harm (Article 3, HRA). This then changed to unaccompanied leave, and now Jenny has time away from the ward environment to enjoy the simple things like a coffee in the local café, whilst still getting the treatment she needs.
Source: BIHR. Featured in BIHR’s Mental Health Advocacy and Human Rights: Your Guide (2013)
Getting with the Act: Our Human Rights Act
13
3
ny person can ask UK A courts and tribunals to look at their situation
This means you can go to your local court here in the UK and ask them to look at whether your human rights are at risk or have been violated by the actions or failure to act of a public authority. This doesn’t mean your application will automatically become a case. The courts will first decide it is admissible, including whether human rights really are an issue that needs to be looked at or not. It’s also important to say that starting legal proceedings in the UK doesn’t mean your case will never be heard at the European Court of Human Rights – it may well escalate to this. However, our Human Rights Act means you don’t have to start there, you start your case locally here at home.
14
Our Human Rights Act means those with public power have legal duties to
RESPECT PROTECT FULFIL Everyone’s human rights
The
The story of a legal case: DNA databases
e story DNA
When S was 11 he was charged with of a legal case: attempted robbery and later acquitted. However, the police decided to keep his databases fingerprints and DNA samples, which S argued was a disproportionate restriction on his right to respect for private life as protected under Article 8 in the Human Rights Act. This is an example of a case which started in the UK courts, progressed right up to the UK’s highest court and was then heard in the European Court of Human Rights.
Getting with the Act: Our Human Rights Act
15
Our Human Rights in the Courts: Timeline
16
Alleged act/omission of a Public Official affecting your rights
Informal conversation raising your issue
Local UK court or tribunal
Retained fingerprints and DNA samples even after acquittal.
Asked the police to destroy the data – the police refused.
Rejected the application. Said there had not been an interference with human rights but even if there had been it was necessary in a democratic society (here, the prevention of crime).
Appeal Court
UK Supreme Court
European Court of Human RIghts
This court agreed with the earlier court. Said fingerprints and DNA profiles reveal only limited personal information and this risk did not outweigh the benefits of prosecuting and preventing crime.
This court also dismissed the man’s appeal. The majority of the court thought the value of retaining the samples was considerable. They did not agree this amounted to an interference with the right to respect for private life but even if it did, the interference was modest and could be justified.
This court disagreed with the earlier decisions of the UK Courts. The samples contained substantial amounts of unique personal data which meant keeping them interfered with the private life of the individuals. Decided that the blanket rule on keeping DNA in such cases did not consider the nature of the offence or the age of the suspected offender. This meant it was not proportionate. In particular, the Court noted the stigma which attached to individuals despite them not having been convicted of a crime.
Getting with the Act: Our Human Rights Act
17
Our human rights Right to life (Article 2)
Right to a fair trial (Article 6)
Right not to be tortured or treated in an inhuman or degrading way
Right to be free from slavery or forced labour
Right to liberty
(Article 3)
(Article 4)
Right not to be punished for something which wasn’t against the law when you did it
Right to respect for private and family life, home and correspondence
Right to freedom of thought, conscience and religion
(Article 8)
(Article 9)
(Article 5)
(Article 7)
Right to freedom of expression
Right to freedom of assembly and association
Right to marry and found a family
(Article 10)
(Article 11)
(Article 12)
Right not be discriminated against in relation to any of the human rights listed here (Article 14)
Right to peaceful enjoyment of possessions
Right to education
Right to free elections
Abolition of the death penalty
(Article 1, Protocol 1)
(Article 2, Protocol 1)
(Article 3, Protocol 1)
(Article 1, Protocol 13)
18
Principled and practical: how our rights work
Human rights are not gifts from governments, they are part of what it means to be human. This means human rights can never be taken away, but there may well be circumstances where it is appropriate to limit their application. Almost all human rights in the HRA can be restricted. There are a few absolute rights, which can never be restricted by a public official decision or law, no matter the reason. However, this can’t be done in any old fashion.
Getting with the Act: Our Human Rights Act
These human rights can only be restricted if it is: • Lawful (does a law allow public officials to make the restriction?) AND • Legitimate aim (is it for a good reason set out in the right?) AND • Necessary in a democratic society aka is it PROPORTIONATE?
What do we mean by proportionality? – “Don’t use a sledgehammer to crack a nut!” In other words, a decision to restrict somebody’s rights will only be appropriate if it is the least restrictive course of action and all other options have been explored first. This protects people from heavy-handed decisions and helps officials make balanced and defensible decisions.
19
Our human rights in practice Here are some real examples of how our Human Rights Act has been working to protect us all: The right to life: protecting older and disabled people from arbitrary use of “do not resuscitate” orders, without speaking to them. This could potentially mean not receiving life-saving treatment. The right to be free from torture, inhuman and degrading treatment: making sure people in custody are not left in cruel conditions, and recognising this right touches on broader everyday issues. This right has been instrumental in helping families hold our health services to account for poor quality care which leaves people in deplorable situations, sometimes leading to avoidable deaths. And it’s the Human Rights Act that helped get the investigation into what happened.
20
The right to be free from slavery and forced labour: this helped get justice when police failed to investigate credible allegations of women who had been trafficked and were abused and forced to work as unpaid servants in people’s homes. The right to liberty: this isn’t only about when we are detained in prison, but also covers situations like when a young man with autism and learning disabilities was kept away from his dad in a unit for over a year, without a proper process or listening to the family’s wishes. The right to a fair trial: this isn’t only about criminal trials, it has also made sure that disciplinary hearings against
employees are fair, making sure they know the case against them, they can answer allegations which may bar them from working, and that decisions are timely. The right not to be punished for something which was not unlawful when done: this means people who have been convicted of historic criminal offences will be sentenced according to the penalty at the time, not what it is now. The right to respect for private and family life, home and correspondence: which covers more (and less!) than you might think. Private life includes “physical and mental wellbeing” and being included in decisions that affect you. It has meant
children being able to keep in contact with parents who are in hospital, addressing bullying and helping people access transport services. The home part isn’t a right to housing, but it does mean there should be respect for the home you have, whether that is a house, a care home, bricks and mortar or a caravan. The right to religion or belief: this recognises that people can believe what they want, but when they manifest this it has to respect other people’s rights. This has made sure people can manifest their religious freedom at work place when there is no justifiable reason to restrict it. Being vegetarian is also protected! The right to freedom of expression: this includes people being able to express themselves and protecting our media, so they can publish stories without revealing their sources when it is in the public interest.
Getting with the Act: Our Human Rights Act
The right to assembly, including peaceful protest and joining trade unions: this meant people could challenge the police when their coach was stopped on the way to a protest, not because police thought a breach of the peace was imminent, but because they thought it might happen at the demo. The right to marry and found a family: this has included challenging a poorly worded law which was supposed to prevent sham marriages but actually meant all people from particular groups were not allowed to marry regardless of whether they were marriages of convenience or not. Right to peaceful enjoyment of possessions: this has enabled a child to argue that withdrawing his Disability Living Allowance because he was in hospital for an extended period of time was a discriminatory interference with his right to enjoy the benefits.
Right to education: this has made sure that children with special needs have access to the right facilities within schools, which is something local authorities must respect. It also protects children from arbitrary exclusions and ensures proper processes are followed. Right to free elections: disabled people have used this to say they should be able to access polling stations on election days. Abolition of the death penalty: In line with the introduction of the Human Rights Act in 1998, the UK passed legislation which abolished the death penalty in all circumstances.
These stories and many others are available at www.bihr.org.uk in our “What you need to know” section
21
Our Human Rights Act in ACT-ion
The duty placed on public authorities under the Human Rights Act means that our interactions with officials, and the policy and services they deliver must respect, protect and fulfil our human rights.
22
Accountability
Through this duty our Human Rights Act means people can seek accountability for when things go wrong, making sure measures are taken to stop it happening again, and improving our public services. For example... Holding the authorities to account for failing victims of crime Two women, who we’ll call Diane and Natalie (not their real names) were able to rely on the Human Rights Act and the protection against inhuman and degrading treatment to seek justice for a catalogue of police failings after they were raped by John Worboys, dubbed the “black cab rapist”.
This right includes a duty to investigate serious harm, and in this case the court found systemic failures throughout the investigation, and but for these Natalie would not have been raped at all. It was also found that both Diane and Natalie had not been supported or believed. The police agreed they should have done more to investigate. As well as securing the accountability that Natalie and Diane were seeking, after this court ruling, the Metropolitan Police agreed to train their front desk officers in recognising signs of sexual assault.
Transforming public services The Human Rights Act duty isn’t simply about going to courts, it is also about bringing human rights into our everyday lives. It means people are empowered to talk to public officials about why their actions may be risking their human rights, and those officials can use the law to get things right from the start or make the changes that are needed. Lots of public officials have also looked at how best to realise the rights in the Human Rights Act within their practice. Here’s an example... Supporting young people when their parents need hospital treatment BIHR has a long-standing relationship supporting Mersey Care NHS Trust to put human rights at the heart of its mental health and learning disability services. The Trust recognised that it was difficult for children to visit their relatives in secure mental health settings.
Getting with the Act: Our Human Rights Act
Children were finding the ward environment unwelcoming, chaotic and frightening, and this was affecting their rights to family life as well as the mental well-being protected by private life. The Trust, supported by a local youth organisation, worked directly with the young people to address this issue and ensure human rights were being respected. This resulted in children being involved in designing specialised visiting areas for families with children. Children told them that it was important that the rooms were away from the ward environment, comfortable and ‘home like’, and contained toys and things to play with.
the quality of the family rooms provided by the Trust, before awarding the ‘Jelly Baby’ kite mark to ensure they were meeting the standards set out by young people. As Cait, a young person involved in the project says: “ You need to have privacy, and going on those wards is pretty scary, you need time together, and just getting a little space away can make all the difference when so much is happening. You know your mum is ill but she is still your mum and just being with her really helped me and her too”.
Young people were involved in the design and décor of these rooms and invited to ‘inspect’
23
Small everyday actions, big changes
Using the Human Rights Act in everyday life doesn’t mean having to take a legal case. Because it is about a legal duty which public officials need to comply with, sometimes simply having a conversation about your human rights can resolve the issue. Stopping discriminatory and harmful practices BIHR was working with a range of London groups tackling poverty to use a human rights approach in their work, including Housing Justice, who work with homeless people. We became aware that a council was implementing a policy on “rough sleepers” which involved waking up homeless people to conduct welfare checks, with the presence of police officers and others. The areas where people were sleeping were then hot-washed, causing
24
distress and disturbance to the individuals and also forcing them to find somewhere else to sleep. As one person said, “At approximately 4am, I had a visit from two police officers informing me that I could expect to be woken every day this week because I was sleeping rough in the City”. Housing Justice used human rights arguments as a powerful influencing tool to talk to other groups about this situation, and to challenge its use. They were able to discuss how the practices being used were risking and violating the human rights of homeless people, including not to be treated in an inhuman and degrading way (Article 3), to respect for mental and physical well-being (Article 8) and non-discrimination (Article 14). Calling a meeting and using the legal standards in negotiation and discussion helped stop this unethical policy, a result which snowballed into
other councils reconsidering their approach to tackling homelessness. Ultimately our Human Rights Act means:
MPOWERMENT: giving E power back because we’re human, not for “charity” or being “nice” TRANSFORMATION: allowing us to challenge and change practice and policy, whether we work for – or are interacting with – public authorities ACCOUNTABILITY: when mistakes are made, either because officials overstep the mark, or people get left behind
How the European Court of Human Rights has helped deliver everyday changes Decisions of the European Court of Human Rights have led to significant developments in law, policy and practice which affect our everyday lives here at home. These cases have set benchmarks for how governments and public officials must treat people and make decisions that impact our rights. For example...
Getting with the Act: Our Human Rights Act
Addressing failures to protect neglected children
Z and her four siblings had suffered severe neglect and abuse at home. Reports had been made of the children stealing food at night, scavenging for scraps in bins, being locked out of the house during the day, and it was common knowledge their bedrooms were filthy and their mattresses were soiled and sodden. These reports were made to social services by a health visitor, neighbours, teachers, police, and social workers themselves. Despite this, it took over five years for Z and her siblings to be placed on the Child Protection Register, and this was only after their mother threatened to batter the children if they were not placed in care. A psychiatrist described their experiences as “horrific” and the worst case of neglect
and emotional abuse she had ever seen. A case was brought against the local authority arguing that they had failed to protect the children’s welfare. Because this case was before the Human Rights Act, the UK courts could only look at the matter from a negligence viewpoint, which is a particularly difficult legal test to meet (despite what is often thought). It was not until the case reached the European Court of Human Rights that human rights arguments could be heard. The European Court agreed there could be no dispute that the children had been exposed to inhuman and degrading treatment as protected by Article 3 of the ECHR (and now our Human Rights Act) and that the local authority had a positive duty to protect those at risk, which they had failed to meet. 25
So what changed in everyday life?
This case established that the right to be free from inhuman and degrading treatment includes neglect. The case failed in every court in the UK because it was impossible to sue the local authorities for negligence due to immunity under the Children Act 1989. So this judgement of the European Court of Human Rights was a powerful, significant milestone for children, ensuring public officials take action to safeguard their welfare in everyday life. Case: Z and Others v UK (2001)
26
Ensuring disabled people are not forgotten
H had lived with severe autism and was unable to communicate verbally. It was agreed that he lacked capacity to consent to his treatment. He had spent a number of years as an in-patient at Bournewood Hospital, but was later placed under the care of two carers within their home. On one occasion he was readmitted to Bournewood Hospital and kept there against his and his carers’ wishes. He was unable to leave and denied access to his carers. However, he wasn’t detained under the Mental Health Act, which would have meant he had access to safeguards. Instead the decision was made by professionals in his “best interests”, and so there were no safeguards in place, such as independent review
of the situation or access to an advocate. H’s carers took legal proceedings against the hospital, arguing that he had been unlawfully detained and therefore deprived of his right to liberty. Before the case reached the European Court of Human Rights, it went through the different appeal processes within the UK courts with several different outcomes. The High Court rejected H’s argument, finding that if the detention was in his “best interests” it was lawful. The Court of Appeal disagreed, finding that only detention under the MHA would have been lawful. The House of Lords (now the Supreme Court) reverted back to the decision of the High Court.
The European Court of Human Rights decided there had been an unlawful deprivation of liberty because there was a “lack of any formalised admission procedure”. This meant there was no UK law setting out the process for detaining someone in H’s position, and he did not have access to any of the legal safeguards required by the right to liberty in Article 5, such as review of the decision to detain.
So what changed in everyday life?
This case shone a bright spotlight on the gap in protection here at home for people who lacked capacity but were not legally detained under the Mental Health Act. From this the Deprivation of Liberty Safeguards (DoLS) were born. Aimed at “plugging the Bournewood gap”, the DoLs are intended to provide a set of safeguards for the lawful detention of people assessed as lacking capacity to make decisions affecting them whilst they are being cared for by others. Case: HL v UK (2004) (often called The “Bournewood Gap”)
Getting with the Act: Our Human Rights Act
27
Get Informed. Get Active. Get Heard. Enjoyed reading Getting With the Act? You can: 1. Spread the word and encourage others to get informed about our Human Rights Act www.bihr.org.uk “What you need to know”
2. Speak up at work, with friends, in your community and get active on our Human Rights Act www.bihr.org.uk/together
The British Institute of Human Rights School of Law, Queen Mary University of 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 eBook has been produced as part of a grant kindly awarded by the Legal Education Foundation.
3. Support BIHR’s work by becoming a Friend or donating and join others to get heard on our Human Rights Act www.bihr.org.uk “Get involved”
Keep in touch with us: eNews: www.bihr.org.uk/forms/enews @BIHRhumanrights /BIHRHumanRights