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THE RIGHT WAY TO A CLEAR CONSCIENCE

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What relevance has the Human Rights Act to councils, which already act in people's best interests? Even the best be...
What relevance has the Human Rights Act to councils, which already act in people's best interests? Even the best behaved might be surprised, says Nicholas Dobson (head of local government law, Pinsent Curtis) and it would be wise to review procedures.

(Published in LGC 17/9/99)

You'd better stop any torture, deprivation of liberty, unfair hearings, disrespect for private and family life, and restricting education rights (to name but a few). For the Human Rights Act 1998 will be brought fully into effect on 2 October, 2000. And you don't have to be a tinpot dictator to fall foul. Some decent authorities may be bang to rights just for exercising what (it may turn out) they wrongly thought were their legal rights.

The 1998 was enacted (amongst other things) 'to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights'. The Convention (which was opened for signature on 4 November 1950 and came into force on 3 September, 1953) had its roots in the Universal Declaration of Human Rights (UDHR) proclaimed by the General Assembly of the United Nations on 10th December 1948. Europe as it emerged from the second world war was (as the Council of Europe has put it) in 'a sorry state'. The preamble to the UDHR sets the scene and includes the following:

'Whereas disregard and contempt for human rights have resulted in barbarous acts which have outraged the conscience of mankind, and the advent of a world in which human beings shall enjoy freedom of speech and belief and freedom from fear and want has been proclaimed as the highest aspiration of the common people'; and

'Whereas it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law'.

The Convention refers to the UHDR in its preamble and reaffirms 'profound belief in those fundamental freedoms which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the human rights upon which they depend'. Although the U.K. was one of the original signatories to the Convention, this had never been incorporated into domestic law. The 1998 Act does not directly incorporate the Convention into U.K. law but (amongst other things) provides that so far as possible primary and subordinate legislation must be interpreted compatibly with specified convention rights and also that public authorities must act compatibly with such rights. References to sections in this article are to those in the Human Rights Act 1998.

The Act by Section 2 imports (amongst others) the approach adopted by the European Court of Human Rights, the European Commission of Human Rights and the Committee of Ministers of the Council of Europe (see section 2). This brings in principles such as proportionality and the margin of appreciation. Proportionality in essence means that the action taken must be reasonable in relation to the end sought to be accomplished (which should be a legitimate aim in a democratic society) and also that it should go no further than is necessary to achieve the legitimate objective. The margin of appreciation refers to the variable and limited scope for discretion afforded to the particular member state given its greater knowledge of the issues, circumstances and context in question.

A flavour of the approach can be gained from the decision of the European Court of Human Rights in Vogt v. Germany (1995) which concerned (amongst other things) Article 10 (Freedom of Expression). There the Court reiterated some basic principles in this area which included:

* Regarding the qualifications to the basic right of Freedom of Expression in Article 10 which are prescribed by law and 'necessary in a democratic society' for various purposes, the adjective 'necessary' 'implies the existence of a 'pressing social need'. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with a European supervision, embracing both the law and the decisions applying it'.

* Supervision is not limited to 'ascertaining whether the respondent State exercised its discretion reasonably, carefully and in good faith; what the Court has to do is to look at the interference complained of in the light of the case as a whole and determine whether it was 'proportionate to the legitimate aim pursued' and whether the reasons adduced by the national authorities to justify it are 'relevant and sufficient''.

To look now at some of the salient provisions of the 1998 Act:

* The Convention Rights in question are set out in Schedule 1 to the Act. The majority are qualified (rather than absolute). Most actions (or inactions) of authorities are likely to be covered by the Convention Rights which include:

* Article 3, Prohibition of Torture - 'No one shall be subjected to torture or to inhuman or degrading treatment or punishment'. While it is hoped that most authorities would not knowingly use torture, there is scope for a finding of 'inhuman or degrading treatment or punishment' in (amongst others) social services and education functions e.g. children's and elderly person's establishments and schools. The manner in which an authority conducts other functions, for instance serving and execution of statutory notices could also fall within this Article.

* Article 6, Right to a Fair Trial. This concerns the determination of 'civil rights and obligations or of any criminal charge' and gives everyone the right to a 'fair and public hearing with a reasonable time by an independent and impartial tribunal established by law'. 'Judgment' is to be pronounced publicly but press and public may be excluded from all or any part of the proceedings 'in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice'. Obviously authorities will have to make sure they comply with this to the extent they can in respect of external legal proceedings. However, it is possible that some of the relevant principles (e.g. fairness, independence and impartiality) may affect internal processes, for instance education and benefit appeals. This adds another layer of compliance onto accepted UK administrative law principles (as noted above) because of the importation by section 2 of the Act of the Strasbourg approach in determining questions concerning Convention rights.

* Article 8, Right to Respect for Private and Family Life - 'Everyone has the right to respect for his private and family life, his home and his correspondence'. Public authorities must not interfere with this right 'except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others'. (Amongst others) social service authority child care decisions and actions of housing authorities may be subject to scrutiny under this article.

* Article 2 of The First Protocol to the Convention, Right to Education. Authorities could, for instance, be vulnerable to a challenge on the ground that the education they provided was not adequate.

* Section 3 contains the duty to interpret both primary and subordinate legislation 'in a way which is compatible with the Convention rights'. But this does not affect the 'validity, continuing operation or enforcement' of incompatible primary legislation and incompatible subordinate legislation where primary legislation prevents removal of the incompatibility.

* Section 4 enables the higher courts to declare that legislative provisions are incompatible with Convention Rights which (subject to conditions) enables a Minister of the Crown to make remedial amendments to the legislation where he or she considers there are 'compelling reasons' (section 10).

* Section 6 provides that it is unlawful for a public authority to act incompatibly with a Convention right unless it could not have acted differently in accordance with the relevant primary legislation or was giving effect to inevitably incompatible rights in or under primary legislation. A public authority includes courts or tribunals and 'any person certain of whose functions are functions of a public nature' but not Parliament or those exercising Parliamentary functions. Under section 6(6), an 'act' includes a failure to act. And local authorities need to be careful against whom they bring proceedings. For section 7 enables those claiming a breach of the Act by the authority to rely on Convention Rights in any proceedings. And by section 22(4) this applies to 'proceedings brought by or at the instigation of a public authority whenever the act in question took place; but otherwise that subsection does not apply to an act taking place before the coming into force of that section'. So present actions may come back to haunt long into the future.

* Section 7 also enables proceedings for breach of section 6 (including counterclaims) to be brought against the authority in 'the appropriate court or tribunal' which means 'such court or tribunal as may be determined in accordance with rules'. And only a 'victim of the unlawful act' can bring proceedings or rely in proceedings on Convention rights. Victim for these purposes (from Article 34 of the Convention) means (amongst other things) 'any person, non-governmental organisation or group of individuals claiming to be the victim'. So this does not generally include, for examples, trades unions on the victim's behalf. Legal action must be taken within one year of the act complained of or 'such longer period as the court or tribunal considers equitable having regard to all the circumstances' but subject to any existing stricter time limit.

* Section 8 enables the grant of just and appropriate relief within existing powers including damages or compensation in civil proceedings. There is to be no award of damages unless (amongst other things) in all the circumstances 'the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made'. Just satisfaction generally involves the reimbursement of costs and expenses, and when appropriate, compensation for pecuniary and/or non-pecuniary damage.

You may well feel your authority is a long way from 'barbarous acts' which would outrage the conscience of the local press. However, unless it has carried out a thorough Human Rights Act review of decision making processes it may well find itself at the sharp end when the Act falls.

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