What are human rights?
Human rights are legal obligations owed by states and public authorities to everyone. This means that governments and public authorities must act in a way that respects human rights. Governments must also pass laws to ensure that individuals respect each other’s human rights. Every human being has human rights regardless of their particular situation or characteristics.
The human rights of people in the UK are legally enforceable through the Human Rights Act 1998. The Human Rights Act 1998 (HRA) incorporates the rights found in the European Convention on Human Rights into UK law.
The European Convention on Human Rights
The European Convention on Human Rights (ECHR) was adopted in 1950. It contains a total of 18 Articles and six Protocols. The Articles and Protocols most relevant to mental health are discussed in detail below. The European Convention is legally binding on 47 European countries and on the European Union institutions.
The Human Rights Act 1998
Section 1 of the HRA makes the rights contained in the ECHR legally enforceable in the UK. The HRA came into force on 2 October 2000.
Under section 2 of the HRA the UK courts must take into account any relevant decisions of the European Court of Human Rights when considering human rights issues. However, European Court decisions are not legally binding on the UK.
Section 3 of the HRA requires laws to be interpreted as far as possible so as to be compatible with human rights. If a law cannot be interpreted to make it human rights compliant, the courts can make ‘declarations of incompatibility’ (section 4 of the HRA). These declarations are statements that a law is not compatible with human rights. Judges in the UK cannot overturn primary legislation if they find that it is not human rights compliant, although they can overturn secondary legislation.
If a declaration of incompatibility is made, the Government can then decide whether to amend the legislation in order to make it compatible with human rights. There is a special Parliamentary procedure for amending legislation declared incompatible under the HRA (section 10 and schedule 2).
How human rights work
Human rights principles have a long tradition in UK law, dating back to the Magna Carta of 1215 and the Bill of Rights of 1689. Rights such as the right to liberty, the right to a fair trial and the prohibition against torture and slavery, have long been recognised in UK law. The HRA codifies these rights and puts them into an accessible framework.
Human rights law has developed some concepts and rules that are different from traditional legal principles. These are discussed below.
Human rights claims can only be brought against public authorities or bodies exercising public functions. All public authorities or bodies exercising public functions must act compatibly with human rights in everything that they do.
People and bodies that exercise public functions include:
- The police
- NHS employees
- Local authorities and their employees
- Nursing and personal care accommodation providers (only those that are designated under section 145 of the Health and Social Care Act 2008 are deemed to be public authorities. A care home will fall under section 145 if it is providing accommodation together with nursing or personal case to a person paid for out of public funds. Those that do not meet this definition are not deemed to be exercising public functions and so are not governed by the HRA)
- Prison staff
- Courts and tribunals, including Mental Health Review Tribunals
- Government departments and their employees
- Statutory bodies and their employees (for example, the Office of Fair Trading or the Information Commissioner’s Office).
If a public body does not act compatibly with human rights, individuals who are adversely affected as a result can challenge the way that the public body is acting by raising a complaint or bringing a claim in the courts.
Individuals cannot bring human rights claims against other individuals or private companies (such as employers).
Absolute and qualified rights
Some human rights are absolute. This means that they cannot be interfered with under any circumstance or for any reason. Article 6 (the right to a fair trial) is an example of an absolute right.
Other rights are qualified. This means that they can be interfered with in certain circumstances and for specific reasons. For example, the right to liberty under Article 5 is a qualified right. A person can be detained by the state for a number of lawful reasons (for example, a prison sentence following conviction or for the treatment of a mental disorder under the MHA 1983), even though this interferes with their right to liberty.
Where a right is qualified the state can only interfere with it if the interference is in accordance with the law and proportionate. Detention on mental health grounds is a lawful interference with a person’s right to liberty, as long as it is done in accordance with the Mental Health Act 1983 and is proportionate.
Rights that are qualified can be interfered with in a proportionate way. An action is proportionate if it is appropriate and not excessive in the circumstances. For example, if a care home decided to install CCTV in the bedrooms of all residents this would interfere with the residents’ right to a private life under Article 8 ECHR (see under Human rights relevant to mental health). This blanket approach might be a disproportionate interference with the residents’ human rights. If the care home instead decided to only place CCTV in the rooms of residents who posed a risk to themselves and/or others, this is likely to be a proportionate interference with those residents’ human rights.
Some human rights simply require the state to refrain from doing something. For example, under Article 12 the state must not prevent an adult man and woman from marrying if they have the capacity to do so.
Other human rights require the state to take positive action to protect them. The right to life under Article 2 is an example of this: not only does the state have to refrain from unlawfully taking the life of any of its citizens, it also has to put systems in place to protect life (for example, by ensuring effective policing) and take action to protect life where a particular person is in real and immediate danger (for example where a person at risk of suicide is receiving treatment in a hospital, the state must put in place safeguards to prevent that person from taking their own life: see Article 2 under Human rights relevant to mental health).
Some human rights also have an investigative obligation attached to them. This means that where a right may have been violated the state is obliged to investigate how and why this happened. Under Article 2, for example, the state must hold an investigation (usually in the form of an inquest) into deaths that occur when someone is detained by the state (for example in hospital or in prison).
Are other international human rights treaties legally binding?
The ECHR is a ‘living instrument’. This means that it can develop over time to keep pace with social change. It also means that judges can look at other international human rights treaties that have been signed and ratified by the UK to assist them in the interpretation of human rights. For example, judges may consider the UN Convention on the Rights of Person’s with Disabilities when interpreting the meaning of disability discrimination under Article 14 (see under Human rights relevant to mental health). International treaties are not legally binding on the UK unless they have been incorporated into domestic law, this means that they cannot impose extra duties and obligations on the state than those that already exist in domestic law. The UN Convention on the Rights of Person’s with Disabilities has been signed and ratified by the UK.
Bringing a human rights claim
If a person thinks that a public body has violated their human rights they have 12 months from the date of the alleged violation to bring a legal challenge. This legal challenge can be in the form of a stand-alone human rights claim. Stand-alone human rights claims are heard in the Administrative Court, a division of the High Court of Justice.
If a person is already involved in legal proceedings against a public body (for example, a negligence claim) then they can add a human rights claim to those proceedings. Such a claim must be added within 12 months of the date of the alleged human rights violation.
Finally, a person can bring a human rights claim as part of a judicial review challenge. Judicial review is a way of challenging decisions made by public authorities on the basis that they are unlawful, irrational, unfair or disproportionate. A person challenging a public authority decision by way of judicial review can also claim that the decision violated their human rights. Judicial review claims must be brought as soon as possible, and no later than three months after the date of the decision under challenge. This is a strict deadline and it is difficult, although not impossible, to get an extension. Judicial review claims are heard in the Administrative Court, a division of the High Court of Justice.
Legal aid is available for judicial review and human rights claims if the eligibility criteria are met. The eligibility criteria are based on the financial position of the claimant and the merits of the case.
Remedies for human rights violations
The HRA requires that anyone who is adversely affected by a human rights violation at the hands of the state must be provided with a remedy that is necessary, just and appropriate (section 8 HRA). Remedies for human rights violations may include financial compensation or any of the traditional judicial review remedies. This means that the courts can declare that a public body has acted unlawfully and make an order directing what needs to be done.
The European Court of Human Rights
The ECHR is supervised by the European Court of Human Rights that sits in Strasbourg. The European Court was established in 1959. Individuals can bring human rights cases to the European Court when they have exhausted all of the legal remedies in their own country. In the UK, this means that cases can only go to the European Court when they have been heard by the Supreme Court or if permission to appeal is refused by a lower court and the case can go no further as a result. When someone has exhausted the legal remedies available in the UK, they can apply for permission to have their case heard by the European Court.
Decisions of the European Court are not legally binding on the UK but under the Human Rights Act 1998 the UK courts have to take into consideration relevant European Court decisions when considering a human rights issue.
Asserting human rights outside the courtroom
Public bodies must act compatibly with human rights at all times. This means that individuals can raise human rights concerns with a public authority at any time. For example, if an NHS Trust decides to move someone from a care home where they have lived for a number of years it may be an unlawful interference with that person’s right to a private life under Article 8 ECHR. The individual, her family or her representatives can raise their concerns about her Article 8 ECHR rights with the NHS Trust at any time.