Preparing for the Human Rights Act

The main provisions of the Human Rights Act take effect throughout the United Kingdom on October 2nd, 2000.  Public authorities, as providers of a broad range of public services, can expect to be in the front line of required implementation of the Act.

How public authorities should prepare for the Human Rights Act is clearly both an urgent and a complex question.  Within the limitations of this brief presentation and overview I shall address five of the key issues - firstly, what is the Human Rights Act?; secondly, how is the Human Rights Act to give further effect to the European Convention on Human Rights (ECHR)?; thirdly, what is the ECHR?; fourthly, what shall the Human Rights Act mean for public authorities, and, fifthly, how then should public authorities prepare for the Human Rights Act?

What is the Human Rights Act?

Strictly speaking the Act does not “incorporate” the ECHR, but, in fact “gives further effect” to it.  To understand the significance of this it is important to recognise what has been the status of the ECHR in our domestic law as determined by the key cases of Kaur in 1981 and T. Petitioner in 1997.  Essentially, it is only since 1997 that the ECHR has been able to be clearly argued before our courts and, then, only as an aid to construction in matters of ambiguity between domestic law and the ECHR.  This, in part, is the reason for the present widespread lack of understanding and preparation for the Human Rights Act.

How is the Human Rights Act to give further effect to the ECHR?

The significance of the Act may be most easily understood by referring to Section 3, the “interpretative” section, and Section 6, the “liability” section. Section 3 of the Act states, in part, as follows... “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”.  The effect of this section, taken with Section 2, is that practically speaking all domestic law, both statute and common law, now must be understood within the context of the ECHR.  This applies both retrospectively and prospectively.  There is then no longer a comfort blanket or security zone for practitioners in attempting to understand what the law is as it is no longer a matter of simply seeking the relevant precedent, authority or appropriate statutes.  All matters must be looked at afresh as a result of the Act.  Additionally, practitioners should familiarise themselves not only with the past almost 50 years of Strasbourg jurisprudence but also the whole body of international human rights jurisprudence which shall be both competent and relevant to argue before the courts as an aid to interpretation of the rights contained within the ECHR.  In this regard it is also vital to note the interface between the Scotland Act and the Human Rights Act - that is, the distinction to be drawn between legislation emanating from Holyrood and from Westminster. In effect, consequent to Sections 29 and 102 of the Scotland Act, any court or tribunal may disapply Holyrood legislation which it finds to be incompatible with the ECHR.  In the same way, generally speaking, Section 57 of the Scotland Act requires members of the Scottish Executive to act in a manner compatible with the ECHR and this is why we are now already seeing some interesting judgments in respect of challenges to the Lord Advocate as head of the systems of criminal prosecution in Scotland.

In so far as Westminster legislation is concerned, Section 4 of the Human Rights Act empowers the superior courts (in Scotland, the Court of Session and the High Court of Justiciary sitting otherwise than as a trial court) to issue a “declaration of incompatibility” in instances where a provision of primary legislation is found to be incompatible and unable to be reconciled with the ECHR.  Section 10 of the Act then provides for a fast-track remedial procedure whereby, at the discretion of the appropriate Minister of the Crown, the legislation may then be amended to remove the incompatibility.  This procedure is designed to protect the constitutional doctrine of the absolute sovereignty of the Westminster Parliament.

Section 6 of the Human Rights Act, the “liability” section, states, in part, as follows... “it is unlawful for a public authority to act in a way which is incompatible with a Convention right”.

The Act deliberately does not provide a definition or list of “public authorities” but the term includes (a) a court or tribunal and (b) any person certain of whose functions are functions of a public nature.  It shall certainly then clearly include a wide range of the functions of a local authority and also embrace many partnership or multi-agency arrangements which a local authority may have with other bodies providing a public service.  A range of “quangos”, privatised utilities, etc. are likely to be deemed “public authorities” in so far as their public functions are concerned.  “An act” of a public authority can also include a failure to act.

In terms of assessing liability of a public authority attention should be drawn to subsection (2) of Section 6 of the Human Rights Act which provides a defence for a public authority if it can demonstrate that it could not have acted differently (in breaching the ECHR) as the result of obligations under primary legislation of Westminster.  In most instances, however it is anticipated that this defence shall not be applicable.

Attention should also be drawn to Section 7 of the Human Rights Act which provides that only a “victim” (as defined by the ECHR) may seek a remedy in terms of a claim against a public authority under the Human Rights Act.  Furthermore, such a claim, subject to the discretion of a court or tribunal, must be brought within one year from the date on which the act complained of took place.  Any damages awarded against a public authority shall also have regard to the normal comparable amount of damages awarded by the European Court of Human Rights in Strasbourg, usually under £15,000.

What is the ECHR?

It contains a number of defined civil and political rights such as the right to a fair and public hearing (Article 6), right to respect for private and family life, home and correspondence (Article 8), right to liberty and security of person (Article 5) right to property and right to education (Articles 1 and 2 of Protocol 1).  Where an ECHR right is at issue a claim of discrimination (Article 14) may also be relevant.  Some rights such as the right not to be subject to torture, inhuman and degrading treatment (Article 3) are absolute, others are qualified and balanced with a public interest such as public safety, health and morals, prevention of crime and disorder, protection of rights and freedoms of others etc. or in other specified circumstances. All of this is stated within the text of the ECHR.

The development of the interpretation and application of these rights is what really matters and this is to be found within the Strasbourg jurisprudence.  ECHR is case driven and each case and decision must be understood in its own context.  So, it is often described as a “living instrument” in that its interpretation and application is to keep pace with changing values in society.  It does not lend itself to a narrow or legalistic interpretation and decisions of the Strasbourg court are persuasive and not binding.  An open and creative approach to its interpretation is therefore called for keeping in mind its purpose as the protection of individual maintenance and promotion of the ideals and values of a democratic society.  It seeks to achieve a fair balance between the protection of certain individual rights and the demand of the general interest of the community.

It has its own autonomous concepts and definitions and certain of these shall now enter our everyday language.

One example is that of “proportionality”.  This concept applies where there is an accepted breach of the ECHR and the state claims a justification or legitimate aim in acting the way it did.  Proportionality requires that the interference with the individual’s right must be in accordance with law and go no further than is necessary to meet a “pressing social need”.  The more important the right (such as Article 6 “right to a fair and public hearing”), the more demanding must be the claimed justification for the breach.  So, after October 2000, the test of compatibility with the ECHR, and therefore lawfulness, shall very often be the application of the test of proportionality.  This shall apply in judicial review and so significantly broaden the scope of judicial review.

Another important concept is that of “margin of appreciation”.  Essentially this is a discretion allowed by the ECHR to an individual state enabling such state to determine what is the right balance to be struck within its jurisdiction.  It applies more to some rights than others.  It is often an argument advanced at Strasbourg by a state in its own defence.  However, it should not be appropriate for our own courts to seek to apply this concept in cases which come before them.

To attempt to illustrate the relevance of all of this I have attached appendices A and B.  Appendix A is a possible check list from the public authority perspective and Appendix B is a possible checklist from the perspective of a lawyer advising a client against a public authority.  In short, then, the Human Rights Act in giving further effect to the ECHR essentially introduces a definitive, legal and constitutional framework in which a balance shall have to be struck between the rights of the individual and the public interest.  If there is one word which may best sum up the anticipated impact of the ECHR it is “accountability”.  This accountability shall be between the state and the individual, among the different organs of the state or “public authorities” as well as between the individual and society as a whole.  Although recourse to the European Court of Human Rights in Strasbourg is still available, within six months of exhaustion of domestic remedies, what it all means is that we are now beginning at last, if somewhat belatedly, to move forward from an unwritten constitution whereby the state has enjoyed a very wide discretion with judicial review having had only a limited effect on checking such discretion.

What shall the Human Rights Act mean for public authorities?

As we know it shall be unlawful for a public authority to act in a way which is incompatible with the ECHR.  All policies, practices and procedures must therefore be revisited.  Decisions and the decision-making process across the whole range of local authority functions must be revisited from an ECHR perspective - including social work, education, environment and planning, employment, licensing and registration, etc. etc.

For example, in the field of social work child protection shall be impacted by Article 8’s right to respect for family life, Article 2’s duty to protect life and Article 3’s protection against inhuman and degrading treatment.  Residential accommodation issues shall be impacted by a variety of Articles, including those above as well as other Articles such as Article 11’s freedom of association and Article 5’s right to liberty etc.  Policies on adoptions need to take into account Article 12’s right to found a family and Article 14’s prohibition against discrimination which of course may potentially have a bearing where any other Article right is at issue.

Education actually has an Article to itself - Article 2 of Protocol 1 - including parental rights as well as children’s right to education.  Exclusion policies, admission policies and special needs resource allocation may all be impacted by Article 14’s prohibition against discrimination.

Environmental and planning fields may provide one of the most dynamic areas of development of law in terms of the potential impact of Article 8’s privacy rights and Article 1 of Protocol l’s property rights.  Environmental impact on home, privacy and family life of a planning decision or third party objections to planning permission due to interference with peaceful enjoyment of possessions can be anticipated in light of recent Strasbourg case law.  Failure to act may also incur liability as local authorities have environmental obligations concerning contaminated land, air pollution, noise, etc.  Consideration shall need to be given to failure to act against severe environmental damage as well as the impact of local authority economic development powers.

In the area of employment attention must be paid to Article 8’s privacy rights and employee surveillance concerning phones, emails, etc. as well as random drug tests, DNA tests etc.; whistleblowing and Article 10’s freedom of expression which shall also relate to questions such as dress code, dismissal for conduct outside work context, etc.

In the area of licensing and registration from street trading to residential homes, attention must now be given to the provisions of Article 1 Protocol 1.  A licence is a possession protected by such Article.  A licensing decision is also a determination of “civil rights” to which is applicable the requirements of Article 6’s right to a “fair and public hearing”.  Indeed Article 6 shall have an impact throughout many of the decision-making processes of local authority activities.  A denial of Article 6 can have the effect of bringing local authorities, at cost and with adverse publicity, before a judicial review.  Such judicial review, as required by Article 6, can be expected to go beyond the Wednesbury doctrine of irrationality, impropriety and illegality and test the lawfulness of the local authority’s position by examining the facts governing certain administrative decisions in order to determine proportionality and hence lawfulness.

These are only some examples of the anticipated impact in certain of the traditional functions of local authorities.  However, local authorities are now being led into new areas of significance such as community safety where, for example, anti-social behaviour orders, provisions for sex offenders in the community as well as the proliferation of CCTV trigger Article 8 privacy rights.  There is a case pending before the European court of Human Rights which may hold that there is a lack of legality regarding the operation of CCTV within the UK.

Additionally Article 8 can impact upon disclosure of personal information contained in files and other records of clients, employees or claimants.

What all of these examples demonstrate is the need for a radical change of thinking.  The law is changing as it applies to the relationship between a local authority and a member of the public.  So, decisions and how decisions are made and the criteria used must be subject to new scrutiny.  This also applies to areas where perhaps in the past no decision was even contemplated as being necessary or simply not contemplated at all.  This required change of thinking shall not be a short term adjustment but needs to be permanent.  This is so because the ECHR is, as has been previously stated, a dynamic and living instrument.  Accordingly, a narrow and minimalist “Strasbourg proofing” mentality shall fail and that which shall succeed shall be an open, pro-active and positive approach.

How to prepare for the Human Rights Act?

Generally, life experience teaches us all that a change of thinking comes from a change of practice.  Realistically, therefore, there shall be a period of a few years for this process of changing thinking to develop.

Obviously, however, although it can be difficult a start has to be made now in order to be as prepared as possible for October 2nd, 2000.

There are at least three objectives.  A start has to be made, firstly, to raise awareness and understanding of the Human Rights Act and the logic of the ECHR; secondly, to identify weaknesses and change problematic policies, procedures and practices now as they could result in post-October court challenges; thirdly, to create a system for ongoing monitoring of the development of the ECHR case law both at Strasbourg and in our own domestic courts and tribunals so that good practice can be constantly updated.

To achieve these three objectives I would suggest five dos and don’ts from my experience at the Scottish non-governmental member of the Home Office Human Rights Task Force - a body charged with overseeing the preparation for the implementation of the Human Rights Act.

Do not:

1. ghettoise - i.e. don’t reserve human rights exclusively to a specialised unit.
2. legalise - i.e. don’t reserve human rights exclusively to your legal department.
   
3. delegalise - i.e. don’t neglect potential legal challenges on the basis that it’s just a cultural change of thinking which is required and that you are all nice people already.
   
4. compartmentalise - i.e. recognise that in a work of multi-agency partnerships, a public authority is only as strong as the weakest link in the chain.
   
5. internalise - i.e. recognise the “in-house” or “institutional” norms and values and the potential for complacency or narrow-minded approach that all of this may be viewed as not much more than an unwelcome interference with the job you have become used to and are good at already.

The five dos:

1. externalise - i.e. complement internal preparations with external expertise to advise and test your systems by seminars, training, human rights auditing, “walk-through” cases, etc.  This is a specialised area of law and a jack-of-all-trades approach noting advantage of “a view from outside” could let you down.
   
2. familiarise - i.e. mainstream a coherent understanding of the logic of the Human Rights Act and the ECHR in a relevant and user-friendly way.
   
3. actualise - i.e. recognise examples of potential implications of the ECHR in your everyday experience.
   
4. modernise - i.e. update all your systems to ensure as far as possible good practice compatible with the ECHR.
   
5. systematise - i.e. set up systems for constantly keeping up to date with how the ECHR and case law at home and abroad is developing.

In conclusion, there is going to be a steep learning curve over the next few years for all of us.  Whether you love it, loathe it or are indifferent, get real about getting on top of it if only as being the best way for you to reduce stress at work.

CONVENTION CHECKLIST

Do you touch on any of the Convention rights in your work?

YES / NO
Is there a victim?

• NO - Check again – remember the Convention rights have a broad application
• YES - Can the Convention right concerned be interfered with legitimately?
• NO - You may be in breach – seek legal advice before continuing
• YES - Have you any choice in the matter?
• NO - You may be in breach – seek legal advice before continuing
• YES - Is your action (or inaction) prescribed by law?
• NO - You may be in breach – seek legal advice before continuing
• YES - Are you pursuing a legitimate claim?
• NO - You may be in breach – seek legal advice before continuing
• YES - Is what you are doing, or not doing, necessary in democratic society? (pursues a pressing social need, is proportional and there are relevant and sufficient reasons for it)
• NO - You may be in breach – seek legal advice before continuing
• YES - You may be compatible – but seek legal advice if there is any doubt   

PRACTITIONER’S CHECKLIST

• (a) Is there an ECHR point?
  
• (b) What is the ECHR jurisprudence?
  
• (c) What has been the domestic interpretation of ECHR jurisprudence and what margin of appreciation may be relevant?
  
• (d) Which exemptions to ECHR articles, if any, may be relevant?
  
• (e) If certain exemptions are relevant, what are the tests of legality and proportionality?
  
• (f) Consider appropriate potential remedy, if any?

Professor Alan Miller

Professor Alan Miller is a leading authority on human rights. An experienced practising lawyer, he is a Visiting Professor of Law, specialising in Human Rights, at the University of Strathclyde where he is also a member of the Centre for Parliamentary and Legislative Studies.  He is author of the text book “A Modern Human Rights Agenda”, to be published by T & T Clark in 2000.  Professor Miller is a partner in the Human Rights Law Consultancy and President of the Glasgow Bar Association.