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Legal briefing: The Human Rights Act 1998
This important piece of legislation came into force on 2 October 2000. It "incorporates" into UK law the European Convention on Human Rights. This means that if you believe your Convention rights have been violated you can for the first time ask a court in England or Wales to deal with it.
This briefing deals with the following:
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1. The European Convention on Human Rights and Fundamental Freedoms
The Convention was prepared soon after the Second World War in an attempt to share common ideals among the nations of Europe. 41 countries in Europe have so far signed the Convention, pledging to uphold the rights within it. Britain signed it in 1951. However, unlike in many other countries, it was not incorporated into UK law until October 2000. This meant that UK citizens could only claim their Convention rights by taking the Government to the European Court of Human Rights in Strasbourg, which usually takes four years or more. The Human Rights Act now allows UK residents to assert their rights in the domestic courts, but preserves the appeal to Strasbourg if these are not upheld.
The Convention consists of 18 articles and six protocols containing additional rights added since the Convention was prepared. However, not all of these are brought into UK law by the Human Rights Act. One significant omission is article 13, which guarantees "an effective remedy before a national authority". The result is that, even if your rights have been violated, you may not get a proper remedy from a UK court. This will arise particularly where UK law conflicts with the Convention (see below). In this situation you will still have to apply to Strasbourg, as before.
2. How the Human Rights Act works
Section 1 of the Human Rights Act defines "the Convention rights" as those arising under the articles and some of the protocols to the European Convention on Human Rights. (As indicated above, not all the articles and protocols are included.)
Section 2 states that a court considering a question connected with a Convention right must take into account any relevant judgments, decisions, declarations or opinions of the European Court of Human Rights, together with other official decisions and opinions concerning the Convention.
Section 3(1) states: "So far as it is possible to do so, primary legislation (i.e. Acts of Parliament) and subordinate legislation (i.e. regulations and rules) must be read and given effect in a way which is compatible with the Convention rights."
3. When can the Human Rights Act be used?
The Human Rights Act applies to public authorities, including bodies which carry out public functions. It does not generally apply to disputes with a private individual or company, unless it is carrying out a public function (for example, a private security firm would be exercising a public function in relation to the management of a contracted out prison). However, in 2007 the House of Lords decided that a private care home was not a public body even when it was accommodating individuals through the local authority (a public body) and the placement was funded with public money.
Section 6(1) says: "It is unlawful for a public authority to act in a way which is incompatible with a Convention right." Public bodies must therefore be proactive in promoting user rights. If a private company is disregarding your Convention rights, you may be able to use the Human Rights Act if you can show that the Government, or another public body, has a legal duty to intervene.
4. How to assert your Convention rights
UK residents can assert their own Convention rights in three ways:
(1) If you believe a public authority (see above) has violated your Convention right you can challenge them by means of the "judicial review" process. Under Section 7 of the Human Rights Act a person who claims that a public body has acted (or proposes to act) in a way that would be unlawful may bring proceedings. However, you must show you are (or would be) a "victim" of the unlawful act.
You must normally issue legal proceedings as soon as possible from the date of the alleged violation, and, in any event, within three months of the alleged violation. (You need permission of the court to bring judicial review proceedings outside this limit, but it is very difficult to persuade the court to extend the time limit.)
(2) If you are already in legal proceedings involving a body carrying out a public function, you can use your Convention rights as part of your case (for example, if you are defending eviction proceedings and you believe one of your rights has been violated). A human rights challenge must be made within no more than 12 months of the alleged violation - but note the timescale for some legal proceedings is much shorter (for example judicial review, see above).
(3) If UK primary legislation is itself in breach of the European Convention, the judges in the more senior courts can make a "declaration of incompatibility". This will go direct to the Government, who must consider whether to amend the law on a "fast track" to bring it into line with the Convention. If they decide not to do so you can take the Government to the European Court in Strasbourg. However, if secondary legislation is in breach of the Convention, the judges can overturn it themselves.
5. How the court will judge cases brought under the Human Rights Act
The European Convention has particular rules of interpretation that are unlike those normally applied in UK law. For example, a court is not bound to follow a previous ruling on the same point. Indeed, because society is constantly changing, the older a judgment is the more likely it is to be out of date.
Another key principle, particularly with "qualified rights" (see below), is that of proportionality. Traditionally under UK law, if a public body has powers it can use them whenever it believes it is reasonable to do so. Under the Human Rights Act, an individual has rights which a public authority can only interfere with where it is "necessary in a democratic society". Even then it should use the smallest degree of interference that can be justified. The Human Rights Act thus requires courts to strike a balance between the individual's rights and the interests of society as a whole.
6. Which articles of the Convention are most relevant to service users?
Many concerns that are brought to Mind's attention will not, realistically, be open to challenge under the Human Rights Act. For example, the principle of medication without consent is lawful under the Convention. But the Human Rights Act does give a way of challenging unfair treatment, disregard of proper procedures, etc., which was not previously available. The most significant articles for mental health service users are as follows. Please note that most of these are qualified rights - in other words they contain exclusions and are subject to interpretation.
Article 2: Right to life
"Everyone's right to life shall be protected by law." There are some exemptions, for example if death occurs while defending yourself against unlawful violence, or arresting someone, or putting down a riot. Note: the state must positively promote the right to life so cannot ignore life-threatening situations, such as someone in prison threatening to commit suicide. It may also apply where a hospital's negligent treatment causes death.
Article 3: Protection against torture
"No one shall be subjected to torture or to inhuman or degrading treatment or punishment." There are no exceptions to this article. However, there is room for argument about what is meant by "inhuman" or "degrading" treatment. The Court in Strasbourg has ruled that prescribed medication does not breach article 3, even if it causes unpleasant side effects. But mistreatment of residents in care homes, for example by tying them to their chair, would certainly qualify as "degrading" treatment.
Article 5: Deprivation of liberty
"Everyone has the right to liberty and security of person." The article details the circumstances under which liberty can be taken away, including "the lawful detention of persons of unsound mind". An important case (Winterwerp) laid down rules for when "unsound mind" applies:
The disorder must be reliably established by "objective medical expertise" (not based on an unqualified judgment).
(2) Its nature or degree must be sufficiently extreme to justify the detention (as in our Mental Health Act).
(3) The detention should only last as long as the medical disorder (and its required severity) persists (so the RMO should not wait for a tribunal to authorise discharge).
(4) There must be a system of periodic reviews by a tribunal that has power to discharge.
(5) The person does not have to be receiving treatment while detained. However, a later case (Aerts) said that the detention must relate to its stated purpose, so if "treatment" (in the broadest sense) is not available it might be hard to justify hospital detention.
Article 5 also states: "Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful." So tribunal decisions can be challenged in two new ways:
(1) If the hearing is not "speedy". You cannot expect an instant tribunal - but in one case the court in Strasbourg ruled that waiting eight weeks was too long.
If the tribunal cannot get you released once you do not meet the criteria for detention.
This is particularly important for some patients detained under Section 37/41 who are offered a conditional discharge provided services in the community are arranged, but have to stay in hospital in the meantime, often for many months.
Article 6: A fair hearing
"In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law." Most of this article deals with fair hearings in criminal cases.
"Civil rights and obligations" has a restricted meaning - it certainly includes, for example, MHRTs, applications to the Court of Protection and family and childcare cases. It may also apply to bodies hearing complaints. In each case the "tribunal" - including a court or panel - which ultimately deals with the matter must be impartial and the applicant must have the same access to evidence as the defendant, etc.
Article 8: Private and family life
"Everyone has the right to respect for his private and family life, his home and his correspondence." A public body may only interfere with this to the extent that is lawful and "necessary in a democratic society" for specified reasons, including: national security, public safety, the prevention of disorder or "the protection of health and morals".
This article is the most open to interpretation; a court will have to balance society's interests against those of the individual. A failure to provide community support, which results directly in the person being sectioned, could well breach article 8. Other possible challenges might arise from restrictions on hospital visits, particularly by family members, disclosure of information to third parties without consent, etc.
Article 9: Freedom of thought, conscience and religion
This right has similar limitations to article 8 - what is "necessary in a democratic society" for specified reasons. Possible areas for challenge include provision of facilities for worship or culturally appropriate food, and the insistence on using mixed wards for those to whom they are not acceptable for religious reasons.
Article 10: Freedom of expression
This includes "the freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers." Again, it is subject to "such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society."
Article 14: Non-discrimination
"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion." Note that this article specifically refers to rights under the Convention and does not simply prohibit discrimination. It cannot therefore be used on its own, but must be based on a claim that another article has been violated. If you have been denied your Convention rights, in a manner that you think is discriminatory, you can add a challenge under article 14 to a claim under some other article. (The Council of Europe recently drafted a protocol dealing with discrimination generally, but this is outside the scope of the Human Rights Act).
If you believe you have the grounds for a Human Rights Act challenge, you should take careful legal advice both on your Convention rights and on the appropriate procedure. The best starting point is to consult a solicitor or advice agency with expertise in the area of law concerned (for example, mental health law). You must do this promptly because of the tight time limits. You should also be clear about which article you think has been infringed and by whom.
7. Further information
This legal briefing relates only to the law of England and Wales in force at the time of writing. It is a brief outline of the law and is not a substitute for detailed advice.
For further information about the work of Mind's legal unit, please refer to our information sheet, Introduction to the Legal Unit. This is also available in hard copy (T: 020 8519 2122).
For more detailed advice on any of the issues discussed in this briefing you should take advice from a solicitor specialising in this area of the law. Details of where to seek specialist advice can be obtained from the Law Society (www.lawsociety.org.uk, telephone 0870 606 2555) or from Community Legal Advice (www.communitylegaladvice.org.uk, telephone 0845 345 4345). Alternatively, you could contact your local Law Centre or Citizens Advice Bureau, who may be able to help.
Michael Konstam
Mind Legal Unit
15-19 Broadway
Stratford
London
E15 4BQ
April 2008
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