Human Rights Act 1988

complete human rights convention

Article 2: Right to Life

This article provides that the Government and public authorities must protect the right to life. This may require, for example, that the police have to protect someone whose life is under immediate threat. It could also be used to argue that a patient should be able to get treatment that would save their life.

Generally, there will be a breach of Article 2 if someone is killed by a state official (usually the police, but also the army or prison officers). The only circumstances where there will not be a breach are set out in the second part of the article. However, where a death occurs in each of these three circumstances the police (or other state official responsible for the death) will have to show that they did not use any more force than was absolutely necessary. So, if someone is killed when the police are trying to arrest them, there will be breach of Article 2 if it is shown that the police used more than the minimum amount of force necessary to detain the person.

The ECHR has made it clear that Article 2 also requires that there should be a proper investigation when the police or army kill someone or when someone dies in custody. There have been several cases in the British courts where the courts have had to consider what type of investigation is necessary to meet this requirement.

The death penalty
Article 2 has been supplemented by the Sixth Protocol. The Sixth Protocol abolishes the death penalty, although it allows for exceptions in wartime. The United Kingdom has signed up to this Protocol and the Human Rights Act completely abolished the death penalty.

Article 3: Prohibition on Torture

The ECHR has made it clear that inhuman or degrading treatment or punishment has to be very serious to be in breach of Article 3.

People have successfully used this article to argue that they should not be deported to a country where they are likely to be tortured or where there will be inadequate protection against persecution (Chahal v UK, Dashamir Koci v Secretary of State for the Home Department). It could also be used to argue that someone should not be deported to a country where they are likely to be given an unfair prison sentence. The courts have also held that the seclusion of compulsorily detained mental patients might breach Article 3 (R (Munjaz) v Mersey Care NHS Trust). A refusal to give any financial support to asylum seekers, leaving them destitute, may also breach the article (R (Q and others) v Secretary of State for the Home Department). Prisoners or people held in hospital may want to rely on the article if the conditions they are held in are particularly bad.

Article 4: Prohibition on slavery and forced labour

This article bans slavery and limits the circumstances in which someone can be forced to work. It is unlikely to have much, if any, effect on British law.

Article 5: Right to liberty and security

Article 5 limits the circumstances in which someone can be detained. This covers detention for both long periods (for example, if you are in prison or are forced to stay as a patient in a mental hospital) and short periods (for example, if you are arrested). There may even be a detention when the police stop someone on the street and search them.

For any detention to comply with Article 5 it must come within one of six sets of circumstances set out in paragraphs 5(1)(a) to 5(1)(f). The detention must also have a clear legal basis and it must be proportionate, that is, there must be an adequate reason for the detention and the detention should not be for an unreasonably long time. Where someone is detained it is up to the Government to justify the detention rather than for the person detained to show why they should be released.

Cases where the courts have found a breach of Article 5 include:

• Where the law completely removed the entitlement to bail for someone charged with a serious offence who had previously been convicted of a serious offence (Caballero v United Kingdom). The law has since been changed.
• Where a compulsorily detained mental patient was effectively required to show why he should be released, rather than the hospital having to show why he should continue to be detained (R v Mental Health Review Tribunal, North and East London Region ex parte H). Again, the law has now been changed.
• Where an elderly, chronically ill woman was held overnight for 14 hours for refusing to give her name and address to a police officer (Vasileva v Denmark).
• Article 5(4) requires that someone who is detained should have the right to have their detention reviewed by a court or independent tribunal. This does not apply to prisoners who have been given a fixed term sentence, but it does apply to life prisoners once their tariff period (the minimum amount of time that they have to spend in prison) has expired. It also applies to compulsorily detained mental patients.

Article 5 is not concerned with the conditions in which someone is detained. There cannot be a breach of Article 5 where someone who is already in detention is placed in a greater degree of detention, for example where a compulsorily detained mental patient is placed in seclusion. Such a situation may, however, raise issues under Articles 3 or 8.

Article 6: Right to a fair trial

Article 6 guarantees the right to a fair trial in civil and criminal proceedings. It sets standards for the way that proceedings are run. Although you may feel that you have not had a fair trial if you lose your case, there will only be a breach of Article 6 if these standards have not been met.

Criminal proceedings are when someone is prosecuted for an offence. Under Article 6 criminal proceedings have a wider meaning than they usually have in English law. Under Article 6 cases against people for contempt of court or for not paying their council tax count as criminal proceedings.

Any court proceedings which are not criminal cases are civil proceedings. Article 6 covers most but not all civil proceedings. Proceedings between private people or organisations to settle a dispute between them are covered by Article 6. Proceedings between a private person or organisation and the Government or a public authority may be covered by Article 6.

Certain standards apply in both criminal and civil proceedings. These rights include:

• The right to a trial within a reasonable time.
• The right to an independent and impartial judge or tribunal.
• The right to a public hearing (although there are circumstances when the public can be excluded)
• The right to a public judgment (although this may be restricted in certain types of cases, e.g. family cases.)
• In civil proceedings Article 6 also protects the right to take court proceedings to settle a dispute, although this right may be restricted in some circumstances. It may also give the right to legal aid where the dispute is very complicated and you are at a disadvantage because you cannot afford a lawyer.

There are further rights in criminal proceedings. These include:

• The right to be presumed innocent until you have been proved to be guilty.
• The right to be informed at a very early stage what the accusation against you is.
• The right not to be forced to answer questions, although the court may be able to draw conclusions from your failure to answer questions.
• The right to adequate time to prepare your defence.
• The right to have legal aid for a lawyer if you cannot afford one and it is in the interests of justice for you to have one.
• The right to be present at your trial.
• The right to put your side of the case at your trial.
• The right to question the main witnesses against you and to call witnesses of your own The right to an interpreter if you need one.

Article 7: No punishment without law

This article makes it clear that no one can be found guilty of a criminal offence if what they did was not a criminal offence at the time that they did it. It prevents Parliament passing laws which make criminal offences of things done in the past. Article 7 also provides that you cannot be punished in a way that was not the law when you committed the offence. Parliament cannot backdate a law that increases the length of time you could be sent to prison for or introduces a new punishment for an offence.

It also requires that the law must be clear so that people know whether or not what they are doing is against the law.

Article 8: Right to respect for private and family life

Article 8 guarantees respect for four things: a person’s private life, family life, home and correspondence.

Private life
Lots of issues have been held to come within the scope of a person’s private life and the ECHR has stressed that it is not possible to limit or define what comes within its scope. Things which do clearly come within the scope of a person’s private life are:

• Bodily integrity – Article 8 will come into play if someone is forced to have medical treatment or if he or she is forcibly restrained.
• Personal autonomy – this means the right to make decisions about how you lead your life. People have tried to argue that the right to smoke cannabis is an issue of personal autonomy and should therefore be protected by Article 8 but the courts have not been prepared to accept this.
• Sexuality – there have been a number of cases in which the ECHR has made it clear that laws which prohibit gay men having sex breach Article 8.
• Personal identity – the ECHR decided in 2002 that British law’s failure to fully recognise the new gender of transgendered people breached Article 8.
• Personal information – the holding, use or disclosure of personal information about someone is covered by Article 8. The article may also give someone the right to access personal information held about them.

Family life
This means your relationship with your close family. This includes a man and woman who are not married but who live in a stable relationship. The ECHR has not yet recognised same-sex couples as families, but this may well change and, even if it does not, it may be that the courts in this country will do so.

Home
Your home is where you currently live. The right to respect for your home does not mean that you have the right to be given a home if you do not have one, or to be given a better one than you already have.

Environmental issues (noise or other pollution) may come within the scope of Article 8, because they affect both a person’s private life and home.

Correspondence
This includes your phone calls and letters, as well as e-mails. People have successfully used Article 8 to challenge the police or secret services bugging their phones.

Article 8 is a qualified right. This means that an interference with the right can be justified. Where the interference is justified, there will be no breach of the article. The circumstances where an interference with the right can be justified are set out in the second part of the article (Article 8(2)).

For an interference to be justified it must:

• Be ‘in accordance with the law’ - this means that there has to be clear legal basis for the interference and that the law should be readily accessible.
• Pursue a legitimate aim - there are six legitimate aims set out in Article 8(2), e.g. ‘the prevention of disorder or crime’. A public authority which intends to interfere with a person’s rights under Article 8 must be able to show that what they are doing pursues one of these six legitimate aims. This is rarely a problem, as the legitimate aims are so wide.
• Be ‘necessary in a democratic society’ - This is usually the crucial issue. There must be a good reason for the interference with the right and the interference must be proportionate. This means that it should be no more than is necessary.

Article 8 and the other qualified articles are largely concerned with preventing the Government, the police or other state bodies interfering with people’s rights. They are negative obligations in that they impose a duty not to do something. However, there may be circumstances where the Government is under a positive obligation, a duty to do something in order to protect or promote people’s rights. It will always be much harder to argue that the Government is under a positive obligation than under a negative one.

Article 9: Freedom of Thought, Conscience and Religion

Article 9 guarantees that you can think what you want and can hold any religious belief. You cannot be forced to follow a particular religion and cannot be stopped from changing your religion. You should not be indoctrinated by the state.

It also protects the right to practise your religion or beliefs. For the practise of your beliefs to be protected they must be part of a sufficiently coherent philosophical scheme. So beliefs such as veganism and pacifism are protected.

The right to practise your religion or belief is a qualified right. This means that an interference with the right can be justified. The circumstances in which an interference can be justified are similar to those which justify an interference with rights under Article 8. (See above: the section headed ‘A qualified right’ under Article 8).

Article 10: Right to freedom of expression

Article 10 of the European Convention on Human Rights protects the right to freedom of expression. Before the Human Rights Act 1998 came into force, the right to freedom of expression was a negative one: you were free to express yourself, unless the law otherwise prevented you from doing so. With the incorporation of the European Convention on Human Rights into English and Welsh domestic law, the right to freedom of expression is now expressly guaranteed.

However, the right to freedom of expression in Article 10 is not absolute. Interferences with the right to freedom of expression may be permitted if they are prescribed by law, pursue a legitimate aim and are necessary in a democratic society, that is, satisfy a pressing social need. The legitimate purposes for which freedom of expression can be limited are:

• National security, territorial integrity or public safety.
• The prevention of disorder or crime.
• The protection of health or morals.
• The protection of the reputation or rights of others.
• The prevention of the disclosure of information received in confidence.
• For maintaining the authority and impartiality of the judiciary.

Article 11: Freedom of assembly and association

There are two aspects to Article 11. It protects the right to protest peacefully by holding meetings and demonstrations. This may include a positive obligation to ensure that demonstrators are protected from counter-demonstrators trying to prevent their demonstration. Article 11 also protects the right to form or join a political party or other group or association, and the right to belong to a trade union. However, the right to join a trade union does not extend to police officers, soldiers and some other groups who work for the Government. Article 11 also guarantees the right not to have to join a union.

Article 11 is a qualified right. This means that an interference with the right can be justified. The circumstances in which an interference can be justified are similar to those which justify an interference with rights under Article 8.

Article 12: Right to marry and found a family

At the moment the right to marry does not extend to same-sex couples. In 2002 the ECHR decided that not allowing transgender people to marry breached their rights under Article 12.

The right to start a family may only apply to people who are married. If it does, people who are not married will have to rely on the right to respect for family life under Article 8 to argue for their right to have children.

Article 14: Prohibition on discrimination

Article 14 covers discrimination on all the grounds set out in the article (sex, race, colour etc.) However, the list is open-ended. This is clear from the fact that the article refers to ‘other status’. Some other grounds for discrimination are now clearly accepted as coming within the scope of Article 14, for example discrimination on the basis of someone’s sexual orientation. What is not clear is how far further grounds for discrimination have to be linked to a personal characteristic or whether it is just necessary for someone to show that they have been treated differently from someone who is in a relevantly similar situation.

Article 14 is not free-standing. For there to be a breach of Article 14 the area in which a person is discriminated against has to come within the scope of one of the other Convention articles. This means that the way in which you are discriminated against has to be connected with one of the other articles. There does not, however, have to be a breach of the other article. So, a gay man who complained about the fact that he was only entitled to succeed to his deceased partner’s flat on less favourable terms than a surviving heterosexual partner would have done was able to rely on Article 14 because he was discriminated against on the basis of his sexual orientation and, as the discrimination concerned his home, it was within the scope of Article 8 (Mendoza v Ghaidan).

Even where you can show that you have been discriminated against and that the area in which you have been discriminated against comes within the scope of another article it is still possible for the Government or public authority to argue that the discrimination is justified. They must show that there is a good reason for treating you differently and that doing so is proportionate. Where they can show this there will be no breach of Article 14.

Article 1 of the First Protocol: Protection of property

Article 1 of the First Protocol protects people’s rights to their property. Property has a very wide meaning. It can include shares, a pension and contributory welfare benefits (social security benefits that are dependant on the claimant having made national insurance contributions).

The article provides that the Government or a public authority cannot deprive a person of their property unless the law allows this and it is necessary in the public interest to do so. The Government must strike a fair balance between the interests of the property owner and the general interest of society as a whole. If your property is taken away you should be entitled to compensation.

Article 1 of the First Protocol also provides that the Government or a public authority cannot put restrictions on what someone does with their property or interfere with a person’s property unless there is a law that allows them to do this and there is a good reason for doing so.

The article does not affect the right of the Government or a public authority to enforce taxes or fines.

Article 2 of the First Protocol: Right to education

Article 2 of the First Protocol guarantees a right of access to education. It does not require countries to provide education or to provide education of a particular type, but where there are educational facilities, people should not be denied access to them. This does not prevent schools having selection polices, thought their polices may have to be justified. It is unclear whether the article applies to education at a tertiary level.

The second sentence of the article does not give parents the absolute right to have their children educated in accordance with their religious or philosophical beliefs. It merely requires schools to respect parents’ beliefs.

Article 3 of the First Protocol: Right to free elections

Article 3 of the First Protocol says that there must be elections at reasonable intervals and that elections must be by secret ballot. It gives people the right to vote or to stand in elections, although reasonable restrictions may be put on this right. The ECHR has recently held that the law which prevents all prisoners in the UK from voting in elections breaches this article. The article does not say what method of election should be used.

 

This Page Was Last Updated

Monday 5 March, 2007 11:24

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