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Paper 10 - 29 September 2000
ASSOCIATION OF HAMPSHIRE AND ISLE OF WIGHT AUTHORITIES 29 September 2000
HUMAN RIGHTS ACT 1998
Joint Report by the Heads of Legal Services, Hampshire County Council and East Hampshire District Council together with the Policy Manager
That the report be noted.
1. The main provisions of the Human Rights Act 1998 come into effect on 2 October 2000. The Act introduces into UK law the European Convention on Human Rights, which was drawn up following the Second World War. Up to now these seemingly basic rights have not been enforceable in the UK courts, but have required litigants to proceed to the European Court of Human Rights.
2. The Act has many implications for public services. Some of the implications for local authorities are set out in this report. It will be important for different professions and authorities to keep in touch, to monitor the impact of the Act and to share experience.
1. Section 1 of the Act identifies the particular rights and freedoms in the European Convention of Human Rights ("the Convention") that are being introduced by the Act into domestic law in the United Kingdom. These rights and freedoms are themselves not new – the Convention was adopted in 1950 and since 1966, individual UK citizens have been able to refer to the European Court of Human Rights ("ECHR") in Strasbourg any case where it is alleged that a Convention right has been violated.
2. The incorporation of the Convention rights into domestic law brings about the following significant developments:
* UK citizens will now be able to enforce their rights under the Convention in domestic UK courts and tribunals. It will not be necessary for the matter to be referred to Strasbourg. This is likely to lead to a greater number of cases being heard where human rights arguments are pursued.
* Where a court or tribunal is determining a question which has arisen in connection with a Convention right, it must take into account any relevant Strasbourg decisions or opinions.
The following is a summary of the key provisions in the Act.
ACTIONS OF PUBLIC AUTHORITIES
3. It is unlawful for a public authority to act in a way which is incompatible with a Convention right (Section 6(1)). "Public authority" includes courts, tribunals, and any person certain of whose functions are of a public nature. Though the term is not defined, guidance issued by the Home Office makes it clear that the term includes central government, local government, health authorities and trusts and the police.
4. Where a person wishes to challenge the action of a public authority under Section 6 (1), they may do so in either of the following ways:-
* commencing proceedings against the authority, or
* By relying on the Convention right concerned in any legal proceedings
but only if the person is (or would be) a "victim" of the unlawful act (Section 7(1)). "Victim" is defined in Article 34 of the Convention as "any person, non governmental organisation or group of individuals claiming to be the victim of a violation". The normal rule is that proceedings must be brought within one year of the date of the act complained of.
5. Although it is not specifically referred to in the Act, another way in which challenges may be made is via an authority’s own complaints procedures. Where this is the case, the Section 6(1) duty will require the authority to consider any human rights issues raised in the complaint.
THE CONVENTION RIGHTS
6. The particular rights and freedoms being introduced into domestic law are known as "the Convention rights". A summary of these is set out as an annex to this report. Some of the Convention rights are absolute and cannot be restricted in any way eg: the right not to be subjected to torture or to inhuman or degrading treatment or punishment (Article 3). Some of the rights are subject to specified limitations eg: the right to liberty and security of person (Article 5) is not violated where a person is lawfully detained for the purpose of being brought before a court on reasonable suspicion of having committed an offence. Some of the rights are qualified, meaning that they can be restricted as long as certain requirements are met. The most important of these are Articles 8 – 11 (see Annex). Many of the areas where human rights issues may arise for local authorities are in relation to those qualified rights. This subject therefore requires particular consideration.
QUALIFIED CONVENTION RIGHTS
7. A qualified Convention right may be restricted by a public authority where it can show that
* it has acted in accordance with the law, and
* the aim of the restriction in question is one of those identified in the particular Convention right as being a legitimate restriction, and
* the restriction in question is necessary in a democratic society.
8. Showing that the restriction is necessary in a democratic society involves showing that the interference corresponds to a pressing social need, and that the interference with the rights protected is proportionate to the legitimate aim pursued, ie that it is no greater than is necessary to address that pressing social need. In general, the ECHR has adopted a generous, purposive approach to interpretation of the Convention rights in order to achieve the aim of safeguarding fundamental human rights. Any attempted restriction must therefore be in proportion to the objective pursued. This has become known as "the proportionality principle".
9. A certain amount of latitude has been given to each state in connection with their observance of qualified Convention rights. The ECHR has acknowledged that each state authority is in principle in a better position to assess the reality of the relevant pressing social need in their country, and therefore give an opinion on the "necessity" of the restriction in question. This has become known as "the margin of appreciation". By way of extension of this principle, it is likely that local authorities will argue that they too should be allowed a margin of appreciation in respect of decisions weighing up the competing needs of their local communities for available resources.
THE IMPACT ON LEGISLATION
10. "So far as it is possible to do so, primary legislation and subordinate legislation must be read and given effect in a way which is compatible with the Convention rights" (Section 3(1)). In effect this requires a purposive approach to the interpretation of domestic legislation, so as to give effect to the Convention rights.
11. A court may make a declaration that a provision in domestic legislation is incompatible with a Convention right (Section 4). The Government may take remedial action under Section 10 to remove any incompatibility which has been identified.
12. In respect of future draft legislation, the Minister responsible is required to make a declaration at Bill stage that the proposed legislation is compatible with Convention rights. This is referred to as a "statement of compatibility".
THE IMPACT ON THE WEDNESBURY DOCTRINE
13. Under current administrative law, many cases where a decision of a public authority is challenged are determined by the courts on the basis of what is known as "the Wednesbury doctrine", (after a 1948 case involving the Wednesbury Corporation). This means that the court considers whether the public authority could reasonably have made the decision in question on the basis of the material before it at the time. Where the authority is considered to have acted reasonably, the decision in question would not be considered unlawful.
14. The role of the court changes under the Act. Where a decision of a public authority is challenged, the question for the court is whether the authority has acted in a way which is incompatible with a Convention right. Where the Convention right is an unqualified right, the question of "Wednesbury reasonableness" is irrelevant. Where the Convention right is a qualified right, the court must determine whether the interference is justified, having particular regard to the proportionality principle (see para 8 above).
15. "In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers appropriate" (Section 8(1)).
16. Damages may be awarded by a court or tribunal which has the power to award damages or compensation in civil proceedings (Section 8(2)).
IMPACT ON THE WORK OF LOCAL AUTHORITIES
17. The duty not to act in a way which is incompatible with a Convention right is important and far-reaching. It applies to all local authority activities at all levels of decision making. Where action is being contemplated in any respect, there needs to be awareness of whether that action may interfere with any of the Convention rights. If so, consideration then needs to be given to whether the Convention right in question is one which is qualified in any way and whether the criteria for interference with the right are met. Further, there needs to be awareness of whether a failure to take action would affect Convention rights.
18. However, it is important to bear in mind that a local authority’s existing practice and procedures are founded on principles of reasonableness, fairness and compliance with the law and natural justice. Although the Government has encouraged local authorities to review procedures to ensure compliance with the Act, it has pointed out that the Act does not imply any radical change in the law and should not require radical changes to procedures.
19. As already indicated, analysis suggests that many of the areas where human rights issues may arise relate to those Convention rights which are qualified. By way of illustration, the following are examples where the right to respect for private and family life (Article 8) may be a relevant consideration:
* The provision by Social Services of placements in residential care where the service user would prefer care in the home to be provided.
* Arrangements for promoting contact with family members where a child is being looked after.
In such cases there should not be any fundamental reason why the criteria for interference with the right (see paras 7, 8 and 9 above) cannot be met in appropriate cases.
20. Other issues which have been identified relate to aspects of domestic legislation and whether or not these comply with the Convention rights. Some examples are:
* issues may arise in connection with arrangements required by Education legislation for the hearing of appeals against admissions and exclusions and whether these meet the requirements of Article 6, the right to a fair trial.
* whether the placement of a young person in secure accommodation for up to 72 hours without the authority of a court is compatible with Article 5, the right to liberty and security.
21. A public authority will not be acting unlawfully if, as a result of provisions in primary legislation, it could not have acted differently in the circumstances. Local authorities must therefore continue to fulfil their duties under domestic legislation. However as case law under the Act develops, it may well be that action needs to be taken by the Government in some respects to remove any incompatibility between the Act and domestic legislation.
22. The Act will have particular implications for District Councils in the areas of Licensing, Employment, Environmental Health and Housing. However, its impact is likely to be felt most keenly in connection with Planning and Development Control.
23. The Act could well drive central government to introduce a right for third parties to appeal against development control decisions. At local level, the potential effect of Article 6 (Right to Fair Trial) and the First Protocol (Protection of Property) raises the spectre of complaints that Councils have not given third parties the right to argue the case that a development will diminish the value of their properties. It may well be necessary for planners to re-visit some of their fundamental assumptions, such as no-one having a right to view. It is, incidentally, the same First Protocol which has been held in Strasbourg to give rise to a right to develop land! In the final analysis, however, it will be up to decison-makers to undertake the same sort of balancing exercise that they do at present - weighing individual interests against the public interest according to a series of material considerations.
PREPARATION FOR IMPLEMENTATION
24. It is anticipated that there will be a number of legal challenges to public authorities on the basis that particular acts or decisions fall foul of the Act. There will be a need for case law to establish some guidelines as to how the Act impacts upon domestic legislation affecting, and the existing practices of, public authorities. Where there is a lack of clear precedent to show that a particular act or decision does not violate a Convention right, it is likely that the courts will permit a legal challenge to be heard.
25. Of course, the fact that challenges may be brought does not mean that they will succeed and there is every prospect that many speculative arguments will be dismissed by the courts. However, it would be inadvisable to be complacent.
IMPLICATIONS FOR MANAGEMENT
26. Actions for local authorities can be conveniently grouped under three headings:
* Audit of current position
* Developing a culture which supports compliance with the Act
* Recording human rights reasoning.
27. Each department will have to audit those practices, procedures and policies which might affect rights under the Act. If procedures are not compatible with the Act, change will be needed.
28. In practice, this involves officers considering how the relevant parts of the Act apply to all aspects of their work, and being able to show that they have done so. The Home Office’s "Human Rights Task Force" has produced a checklist to assist the process of audit. This task has been summarised as: the need to ensure that where a Convention right comes into play in a local authority activity, the authority’s discretion is exercised in a way which is ‘Convention compatible’.
29. One of the common themes running through all advice and guidance to local authorities is the need to build ‘Convention thinking’ into the culture of the organisation. It is echoed in the LGA’s advice to Members:
Local authority members have a key role in ensuring that aspirations behind the Human Rights Act are woven into the corporate governance and culture of the local authority. Incorporation of the Convention rights will cement high standards of administration within the local authority, with policies and decisions made by consciously balancing individual rights and freedoms with obligations and duties. And, because the rights encompass a broad set of values, which will evolve over time, the development of good practice in human rights will be particularly important.
30. ‘Convention thinking’ will need to be built into all aspects of local authorities’ activities - including consultations, reviews, policy development and decisions at all levels. This last item will represent an important change in local authority practice. Local authorities will need to demonstrate that Members and staff have had proper regard to human rights issues in making decisions. When Convention rights are involved, the legality of local authority decisions will not simply be judged by the traditional test ("reasonableness") - rather local authorities will, for example, have to justify their actions as being proportionate to the aims of the legislation under which they are taken.
31. These cultural changes are going to require training and awareness-raising for both Members and officers, which in most authorities is already underway.
32. This is not an obvious stand alone heading. It is intended to emphasise that local authority decisions are likely in the future to be subject to even more detailed and intense scrutiny - as will be the issue of procedural fairness. It will be vital for proper records to be made to enable local authorities to justify their decisions in the context of the Convention rights.
Head of Legal Practice, Hampshire County Council
Head of Legal and Democratic Services, East Hampshire District Council
Date: 18 September 2000
Contact: Nick Goulder - 023 8068 8431 E-mail firstname.lastname@example.org
The Convention rights
The following is a summary of the Convention rights. In considering how these apply to particular cases, it is advisable to check the full text of the right in question. If in doubt, legal advice should be obtained
1. Right to Life (Article 2)
Everyone’s right to life is protected by law. There are only very limited circumstances where a person can be deprived of life.
2. Prohibition of Torture (Article 3)
The right not to be subject to torture or inhuman or degrading treatment.
3. Prohibition of Slavery and Forced Labour (Article 4)
The right not to be treated as a slave or made to carry out certain kinds of labour.
4. Right to Liberty and Security (Article 5)
The right not to be deprived of one’s liberty except in certain defined cases eg: lawful detention for purpose of bringing before a court, or after conviction by a court.
5. Right to a Fair Trial (Article 6)
The right to a fair and public hearing within a reasonable period of time of any criminal charge, or in determining civil rights and obligations. Hearings must be by an independent and impartial tribunal established by law. In limited circumstances the press and public may be excluded from the hearing eg: cases involving children.
6. No Punishment without Law (Article 7)
The right in normal circumstances not to be found guilty of an offence arising out of actions which did not amount to an offence at the time they were committed. A penalty cannot be imposed that is greater than that which applied when the offence was committed.
7. Articles 8 – 11
The rights in Articles 8 – 11 may only be restricted where it is necessary to achieve an important objective. The precise objectives in each Article vary, but may include things like protecting public safety, economic well-being, prevention of crime, or the rights and freedoms of others. The extent of the restriction must be no more than is necessary to achieve the objective, and it must, in all other respects, be in accordance with the law.
8. Right to respect for Private and Family Life (Article 8)
The right to respect for private and family life, home and correspondence.
9. Freedom of Thought, Conscience and Religion (Article 9)
The right to freedom of thought and conscience, and to hold faith in any particular religion.
10. Freedom of Expression (Article 10)
The right to hold opinions and to express them.
11. Freedom of Assembly and Association
The right to assemble with other people in a peaceful way, to associate with others and to form and join a trade union.
12. Right to Marry (Article 12)
Men and women have the right to marry and found a family, according to national laws concerning the exercise of this right.
13. Prohibition of Discrimination (Article 14)
In the application of the Convention rights, the right not to be treated differently from people in similar situations, without proper justification.
14. Protection of Property (Article 1 of Protocol 1)
The right to peaceful enjoyment of one’s possessions. However, this right can be restricted so far as it is necessary to do so in the general interests of the public, and as long as the restriction is, in all other respects, in accordance with the law.
15. Right to Education (Article 2 of Protocol 1)
The right not to be denied access to the educational system.
16. Right to Free Elections (Article 3 of Protocol 1)
Elections for members of legislative bodies must be free and fair.
17. Abolition of the Death Penalty (Articles 1 and 2 of Protocol 6)
The death penalty is abolished though it may be provided for in times of war.
|Author:||Nick Goulder, Policy Manager|
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