Identifying Human Rights The protections offered by the ECHR and the Human Rights Act 1998 Brayne & Carr: Law for Social Workers: 10e Chapter 3

Outline Origins How does the Human Rights Act work? Policing the Human Rights Act –The work of the Joint Parliamentary Committee on Human Rights What are the convention rights? Resources

Origins European Convention on Human Rights –A regional human rights instrument designed to give force within Europe to principles in the United Nations Declaration of Human Rights of 1948 UK was a signatory but enforcement was via Strasbourg

Origins- 2 The Human Rights Act 1998 –Rights enforceable in UK courts –Implemented 2 October 2000 –Provides a check on Parliamentary activities and policy developments

A judicial view of the Act Lord Steyn 2005 EHRL A constitutional democracy must protect fundamental rights. It is morally right that the state, and all who act on its behalf in a broad functional sense, should respect the fundamental rights of individuals. Without such a moral compass the state is bound to treat individuals arbitrarily and unjustly. Moreover, the best way of encouraging multi-culturalism and tolerance in Europe is by creating societies in which human rights are protected. By the Human Rights Act Parliament transformed our country into a rights based democracy. By the 1998 Act Parliament made the judiciary the guardians of the ethical values of our bill of rights.

Purpose of Convention Rights Provides a checklist of rights against which to measure our law Some rights so important that they are unconditional Others require a balance between the individual and community –Interferences must be proportionate to the aim of the interference ECHR also respects local judgement –Described as the margin of appreciation ECHR a living instrument designed to reflect contemporary life –Rights are fluid and decisions change

How does the Human Rights Act work? - 1 All legislation is to be interpreted and given effect as far as possible compatibly with Convention rights Where this is not possible the court may quash or disapply subordinate legislation or make a declaration of incompatibility where it is primary legislation

How does the Human Rights Act work? - 2 It is unlawful for a public authority to act incompatibly with Convention rights A case may be brought in UK court or tribunal against the authority if it does so A public authority will not have acted unlawfully under the Act if, as the result of a primary legislation it could not have acted differently

How does the Human Rights Act work? - 3 The Courts review the decision and do not make a fresh decision Review is arguably more intensive than judicial review Courts must also take into account human rights law in all cases that come before them –Common law developments must be human rights compliant

Key concepts Victims Public authorities –Bodies carrying out a governmental or public function Positive obligations –Sometimes authorities are responsible for failing to protect individuals from others who breach convention rights

Remedies - 1 Courts and tribunals can grant any remedy which is –Within their powers and –Just and appropriate Damages –Courts are to apply same criteria as are applied by European Court of Human rights

Remedies - 2 Quashing unlawful decision Release a defendant on a criminal charge Order public authority not to take proposed action

Policing the Human Rights Act Joint Committee on Human Rights –Scrutinises proposed legislation to ensure Human Rights compliance –Scrutinises all government actions in relation to human rights compliance –Takes expert evidence and holds inquiries into particular problems –See for example inquiry into the impact of limiting human rights to public or hybrid public bodies

Inquiry into the meaning of public authority - 1 The effectiveness of the Government’s guidance on the meaning of public authority Developments in case-law and their implications Practical implications of the restrictive meaning given to “public authority”

Inquiry into the meaning of public authority - 2 Whether private providers would leave the market if they were “public authorities” for the purposes of the Human Rights Act 1998 Any other evidence relevant to the implications of the meaning of public authority on the protection of human rights, especially those of vulnerable people

Key Human Rights - 1 Article 2 – the right to life –Absolute right –Includes the protection of life –Requires investigations into situations where people lose their life whilst in the care of the state –Does not include the right to die – the Pretty case

Key Human Rights - 2 Article 3 – freedom from torture or inhuman or degrading treatment –Includes child abuse –State is under a positive obligation to prevent breaches of Article 3 by one private individual against another Z v UK –Standard of what is degrading changes over time Article 5 - right not to be deprived of your liberty –Unless deprivation is lawful –Secure accommodation provisions under Children Act 1989 have been found to be lawful

Key Human Rights - 3 Article 6 – right to a fair trial –Includes right to a fair hearing, the right to a public hearing, the right to an independent and impartial tribunal and the right to a hearing within a reasonable period of time Article 8 – right to respect for private and family life –Qualified right –Interference must be necessary and proportionate to achieve aim

Key Human Rights - 4 Article 14 – freedom from discrimination –Right piggy backs upon other rights –Definition of discrimination much more extensive than in domestic law

Resources Values for a Godless Age Francesca Klug Penguin Bringing rights home White Paper DCA study guide to the Human Rights Act – European Human Rights Law Keir Starmer LAG SCIE guide to dignity and human rights – practiceguide09/law/index.asp