Human rights explained

The European Convention on Human Rights (ECHR), which was agreed by member states of the Council of Europe, has been in force since 1953 and contains a number of rights, primarily civil and political, set out in a series of Articles. The rights (’Convention rights’) apply to everyone within the jurisdiction of the states who are parties to it. The European Court of Human Rights in Strasbourg decides cases brought by individuals whose Convention rights may have been breached, once they have taken all possible steps to have their claim resolved at national level.

The Charter of Fundamental Rights was agreed under the auspices of the European Union. It covers civil, political, economic, social and cultural rights and became binding across the EU in 2009 when the Treaty of Lisbon came into force. It binds all EU Member States, including the UK, but only when implementing EU law.

The Human Rights Act 1998 (HRA) gives direct effect in UK law to most of the Convention rights. It does this by requiring public authorities to act in accordance with these rights (unless they are required to do otherwise by primary legislation).

Convention rights included in the HRA are:

• The right to life (Article 2)
• The right not to be subjected to torture, inhuman or degrading treatment or punishment (Article 3)
• The right to be free from slavery and forced labour (Article 4)
• The right to liberty (Article 5)
• The right to a fair and public trial or hearing (Article 6)
• The right not to be subject to arbitrary or retrospective criminal penalties (Article 7)
• The right to respect for private and family life, home and correspondence (Article 8)
• The right to freedom of thought, conscience and religion (Article 9)
• The right to freedom of expression and to receive and impart information (Article 10)
• The right to assembly and to associate with others, including in organisations like trade unions (Article 11)
• The right to marry and start a family (Article 12)
• The right not to be discriminated against (Article 14)
• The right to peaceful enjoyment of possessions and property (Protocol 1, Article 1)
• The right to education, including respect for the religious and philosophical convictions of parents (Protocol 1, Article 2)
• The requirement to hold free and fair elections (Protocol 1, Article 3)
• Abolition of the death penalty (Protocol 6, Article 1)

Some national laws are relevant to protecting aspects of human rights, like the Equality Act 2010. Others are drafted in such a way as to protect human rights. For example, the Mental Health Act 1983 guards against arbitrary deprivation of the right to liberty (a Convention right) and the Police and Criminal Evidence Act 1984 guards against unfairness in criminal proceedings, the right to a fair trial being another Convention right.

The Convention rights in the HRA are incorporated in the devolution statutes relating to Scotland, Wales and Northern Ireland. These statutes also make provision for the enforcement of Convention rights through their own legal frameworks.

The UK has ratified a number of international human rights treaties, many covering economic, social and cultural rights as well as civil and political rights. Unlike the ECHR, these treaties have not been made part of our domestic law but they can have an impact in other ways, for example as a useful tool for interpreting domestic legislation in the courts. They can also be used as a set of guiding principles for public policy-making.

The following international treaties are of most relevance to this guide:

• UN Convention on the Elimination of All Forms of Racial Discrimination

Relevant to all RIOs.

• UN Convention on the Elimination of All Forms of Discrimination Against Women

Relevant to all RIOs.

• UN Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment

Relevant to RIOs regulating and inspecting places of detention. It could also have relevance in other situations, including health and social care settings.

• UN Convention on the Rights of the Child

Relevant to RIOs concerned with education, health, social care and other local authority services aimed at children and young people.

• UN Convention on the Rights of Persons with Disabilities

Relevant to RIOs concerned with education, health, social care and other local authority services.

• UN Convention Relating to the Status of Refugees

Relevant to RIOs dealing with all aspects of immigration and border control and also those who deal with public services provided to refugees and asylum seekers.

• International Covenant on Civil and Political Rights

Relevant to most RIOs because it protects a range of civil and political rights for individuals, such as the right to life, freedom of speech, freedom of religion and others.

• International Covenant on Economic, Social and Cultural Rights

Relevant to most RIOs because it commits states to work towards granting a range of economic, social and cultural rights for individuals including labour rights, the right to health, the right to education, the right to an adequate standard of living and others.

Case law has confirmed that, as well as ensuring human rights are not breached, public authorities have obligations to take positive measures to protect human rights. These are called positive obligations. Positive obligations are particularly relevant to the right to life, the right not to be subjected to torture or to inhuman or degrading treatment or punishment, and the right to respect to private and family life, home and correspondence. The right to private life in this context is quite broad and includes protection of physical and mental integrity.

In practice what these positive obligations mean for public authorities could include:

• A duty to provide a reasonable level of resources. For example an individual might need some practical support for their rights to be protected.
• A duty to provide information to those whose rights might be at risk, so that they are in a position to take action to protect their own rights.
• Taking effective measures to deter conduct that would breach human rights.
• A duty to respond to breaches of human rights – such as investigating the circumstances of the alleged breach.

There are a number of inter-related concepts underpinning human rights which are embedded in international law, and have been endorsed by the decisions of the European Court of Human Rights. These concepts have informed our own courts and others about how human rights law should be interpreted and applied. They bring balance and proportion into play and are at the core of how human rights protection works in practice. RIOs will find them useful as a guide for decision-making and developing policies and practice.

Restriction of rights

Some rights can, under certain circumstances, be limited (such as the right to liberty) or restricted (such as the right to free expression). This is because it is sometimes necessary to restrict one person’s rights to ensure that the rights of another person, or the interests of wider society, are protected.

However, no human rights can be limited or restricted without good cause and certain conditions must be met if restrictions on human rights are to be justified. There must be a clear legal basis for the restriction so that it can be foreseen by those who might be affected and there must also be a legitimate aim for establishing a restriction (each right sets out the aims which are legitimate for purpose of the restriction of that right). Typically, the legitimate aims will be to protect one of the following interests: the rights of others, national security, public safety, public health and the prevention of crime and disorder. A restriction must not discriminate against a particular group or class of people. Additionally any restriction, if it is to be justified, must be necessary and proportionate.

The concept of proportionality lies at the centre of the human rights framework. It means that a right can only be restricted so far as is necessary to achieve the objective being sought. In simple terms, it means ‘Don’t use a sledgehammer to crack a nut’. When deciding if something is proportionate, it will be relevant to consider if reasons were given for the restriction, if there were a less restrictive alternative that could have been used and if any element of the right remains, or could have remained, even after the restriction is in place.

Any restriction must be necessary. That is a more stringent test than whether it is reasonable, useful or desirable. For a restriction to be necessary, there must be good reasons. It is not acceptable to restrict rights simply because you do not like what someone is doing.

Progressive realisation

It is recognised in the text of international human rights treaties that the fulfilment of economic, social and cultural rights (such as the right to health and to an adequate standard of living) can only be achieved over time through what is known as ‘progressive realisation’. This means that states are expected to make continuous progress towards the full realisation of these rights. Regressive steps – depriving people of rights they used to enjoy – will contradict the principle of progressive realisation and will be viewed as a violation of such rights unless the regressive steps can be justified.

Participation and empowerment

The process of realising human rights is as important as, and intrinsic to, their realisation. A number of human rights treaties, such as the UN Convention on the Rights of the Child and the Convention on the Rights of Persons with Disabilities, contain provisions on participation, designed to give relevant individuals an effective voice in order to secure their rights. Effective participation may require information, capacity-building, training or education.

Equality and non-discrimination

Equality is one of the overarching principles of the human rights framework. It finds expression in the earliest of post-war agreements which set out the founding basis of the human rights framework. These include the United Nations Charter and the Universal Declaration on Human Rights. Equality is also at the core of those international treaties dealing with race discrimination, discrimination against women and the rights of disabled people. These international agreements have influenced domestic anti-discrimination legislation which was consolidated by the Equality Act 2010.

However, protection against discrimination is only one aspect of the human rights concept of equality. One of the most important aspects of the ECHR is that most of the substantive protections start with the word ‘everyone’ – everyone has the right to life, the right to liberty and security of person, the right to freedom of thought, conscience and religion and so on. Further, the ECHR requires states not only to refrain from breaching rights but to ‘secure to everyone within their jurisdiction the rights and freedoms’ contained in the ECHR. This means that differences must be taken into account and catered for, proactively, if everyone’s rights are to be secured.

In domestic law, under the public sector equality duty (PSED), public authorities, including RIOs, must have ‘due regard’ to the need to advance equality of opportunity. Considerations under the PSED may include the effect of public authorities’ decisions on human rights. For example, the UN Convention on the Rights of Persons with Disabilities should inform the application of the PSED with respect to disabled people.