Written evidence from the Human Rights Alliance (HRA0035)

1.      As 40 civil society organisations working to protect human rights, and the equal dignity of people across the UK, we are submitting this joint evidence, which has been coordinated by the British Institute of Human Rights.

2.      We welcome the opportunity to submit evidence as part of this Joint Committee on Human Rights (JCHR) inquiry into the effectiveness of the Human Rights Act (‘HRA’) in the UK. 

3.      This response will focus on the following areas:

• how the HRA has impacted the ability of people to go to courts to have their rights enforced when they have been breached or are at risk of being breached.
• the effectiveness of the section 6 duty on public officials to respect the rights in the HRA, and the vital role this has had on the development of a human rights culture.
• how the HRA has impacted the relationship between Parliament and the judiciary.
• the current threats to the framework of the HRA.

JCHR Question: Has the HRA improved individual rights in the UK, rather than requiring litigants to go to the ECHR for justice? And, if so, has this improved citizens’ lives?

4.      A vital aspect of our domestic human rights system is that people can enforce their rights through domestic courts.  The HRA has enabled people in the UK to access local courts and tribunals to assert their rights (as set out in the European Convention on Human Rights (ECHR)), rather than undertake the lengthy and costly process of going directly to the European Court of Human Rights (ECtHR) for justice.  This has improved the lives of a wide range of people in a wide range of situations – including health and social care, education and housing – ensuring greater dignity and respect for people in their everyday lives.  This is contrary to the common assertions that human rights primarily benefit unpopular groups. For example:

• Women survivors of rape and sexual assault, by the taxi driver John Worboys, used the right to be free from inhuman and degrading treatment to hold police accountable for the failure to investigate the perpetrator’s earlier crimes, which could have prevented the attacks.[i]
• When a council carried out surveillance on a mother and her children to determine whether they lived within a school catchment area, a local tribunal found that this use of designated surveillance powers was unlawful and breached the right to respect for private life.[ii]
• In a judicial review, the court decided that the benefit cap, as it applied to lone parents with children under 2, was unlawful, referencing the rights to respect for private and family life and non-discrimination.[iii]
• When a child with learning disabilities was excluded from school for aggressive behaviour which is linked to their condition, a tribunal held that the school had discriminated against the child and their right to education had been unjustly interfered with, when previous equality legislation had not provided such protection.[iv] 

5.      In order to continue to protect people’s individual rights here at home, we need a justice system which supports people with getting access to courts at the outset.  As highlighted in the joint submission to the JCHR’s inquiry on ‘Enforcing Human Rights’, legal aid plays a vital role in providing people with access to justice.[v]  Some of the claimants in the landmark cases outlined above would not have been able to bring their case to court without access to legal aid.  We are concerned that cuts to legal aid through the Legal Aid, Sentencing, and Punishment of Offenders Act 2012 (LASPO) continue to prevent people from exercising the ability to go to courts when their rights have been – or are at risk of being – breached.  This is particularly affecting the most disadvantaged groups in society, who have been left without sources of advice and support or the means to bring cases to court as legal advice centres and legal aid providers have been forced to close. We note that the government is undertaking the post-implementation review of LASPO and strongly recommend that steps are taken to address the increasing justice gap for numerous people in the UK.

6.      Therefore:

• We recommend that government commentary and policy on the HRA acknowledges the role of the HRA in enabling people to secure positive change through court cases.
• We recommend that the review of LASPO urgently considers how cuts and changes to legal aid have negatively impacted the ability of the most disadvantaged to access justice and protect their rights, and the rights of others.

JCHR Question: Has the HRA been capable of adapting to changing times? (e.g. rise of internet etc.)

7.      When the ECHR was drafted in 1950, societal standards were very different to today.  Similarly, there are a range of technological and scientific advances which were not in place in the 1940s, but which are now clearly covered by human rights, such as DNA databases, the use of CCTV cameras and online surveillance. This is why the principle of the ‘living instrument’, as developed by the ECtHR, is important.  It has helped the ECtHR, and courts here in the UK, to ensure that the human rights standards in the ECHR and the HRA remain relevant for today’s society by adapting to progressive changes in societal standards as well as new and emerging threats.  It has effected positive changes in a number of areas which were not considered when the ECHR came into force:

• LGBTQI people, children born outside of marriage and many others were previously treated as less than equal.  Today, the right to respect for private and family life covers unmarried couples, same-sex couples, single-parents and their children.
• Violence against women was considered to be a private matter. Today, the responsibility of public authorities to protect women’s right to life and their freedom from abuse is clear, and trafficking (including for sexual exploitation) has been recognised as a falling within the prohibition on slavery.
• The position of people with mental health and/or capacity issues was barely considered. Today, it is clear that a range of human rights ensure people’s involvement in care and treatment decisions, and prohibit abuse and neglect.

8.      We believe that it is important that the HRA continues to adopt a rights-progressive approach, ensuring that our legal standards are responsive to societal and technological developments.  Any new or emerging issues need to be considered from a human rights perspective in order to make sure that the HRA’s aim of providing protection for all people in the UK is achieved.

9.      Therefore:

• We recommend that the living instrument principle is embedded into decision-making, both within courts exercising their duty to consider ECtHR interpretations, and more widely in policy and practice, to continue to build upon the HRA’s ability to respond and develop appropriately with changes in society.

JCHR Question: Has the s6 provision making it unlawful for public bodies to act in a way which is incompatible with a Convention Right had an effect?

10.  The main aim of the HRA was to bring rights home, making it easier for individuals to assert their rights (as set out in the ECHR) here in the UK.[vi]  While access to local courts and tribunals is a vital aspect of this, this aim of bringing rights home is most effectively seen through how human rights are integrated in interactions between people and the state at an everyday level.  This has been referred to as the development of a ‘human rights culture’, including by the JCHR itself.[vii] 

11.  The HRA section 6 duty on public officials to protect and uphold human rights has transformed how policies are developed and how public services are delivered, ensuring that people’s rights are respected. Importantly, this duty has also secured positive changes for people without recourse to the court.  There is evidence that where human rights approaches are embedded in public service delivery and policy, it positively impacts people’s lives, including:

• Enabling Gemma, who is in her 40s and has a learning disability, to live independently after she was placed in an older people’s home by the local authority.
• Getting Lorraine access to a room with toilet facilities after she was initially given a bucket to use when detained in hospital under the Mental Health Act.
• Securing safe accommodation for Yolande and her children when they fled domestic violence, after initially being refused housing.
• Giving Paul, a young person, the confidence to have his say when officials were making decisions about where he should live following abuse at home.
• Making sure Luke’s concerns about how staff in hospital were restraining him were investigated and addressed.
• Getting Gerry and Barbara the support they and their daughter needed so they could remain at home together rather than going into care.
• Supporting Sarah, a child with learning disabilities, to access the school transport system rather than leaving her to navigate the complex journey on her own.
• Stopping a woman being denied asylum from being evicted whilst she giving birth.
• Empowering patients detained in a mental health hospital to register and vote in a general election.[viii]

12.  There is also evidence that when the HRA is used to develop a human rights approach within organisations, re-engaging staff with their values and supporting them positively transforms the delivery of public services. For example:

• St Martin of Tours Housing Association provides accommodation based services in London for people living with mental illness, learning disabilities or who may have forensic histories. St Martin’s have been working with BIHR to develop and embed a human rights approach for over 3 years. Paul Holden, Operations Manager, noted that this “has improved our assessment and support planning procedures …we are now seeing a range of human rights issues being flagged up that may otherwise have gone by and been unattended to.” Specific examples include reviewing the use of CCTV cameras within the service to protect people’s privacy and dignity and the Association “confidently resisted requests from a group of neighbours for our staff to wear high visibility (fluorescent) jackets when supervising our residents in the neighbourhood”. Mr Holden further notes that “In broader terms we have also used a human rights approach to respond more swiftly – and in partnership with the police and safeguarding teams – when it is clear that residents are unsafe in their placement due to violence or harassment by another. We have consequently seen a marked reduction in the level of serious incidents [down 50%] within our projects (housing units).”[ix]

• Sue Ryder and BIHR have partnered to develop and deliver training on human rights in end of life care across the UK. Since March 2017 over 870 professionals working across health and care have been trained to better understand their legal duty to respect and protect the human rights of those in their care.  The evaluation of the first six months of training evidences the impact of the training.[x] There have been overwhelmingly positive improvements in both knowledge and confidence of professionals, which both Sue Ryder and participants believe will lead to improvement in patient outcomes. Professionals are sharing stories about how human rights training has helped them to broker more effective discussions between the person in care and their families where there has been a conflict of opinion. By using the human rights legal framework they have been able to take the emotional heat out of the discussion and enabled decisions to be truly person-focused.  Many professionals have also commented that the training has helped them re-connect with the human rights values that made them enter their chosen profession in the first place.  Sue Ryder notes that “In a time when the morale of professionals working in health and care is at an all-time low, a human rights approach has a way of reminding us all of what it means to be human, both as rights holders and as duty bearers.”

13.  However, despite these positive examples, the impact of implementing human rights at an everyday level beyond the courts is often overlooked. This “overlooking” can be seen in both discussions about human rights protection in the UK and in the way public services and policy are designed and implemented. Too often the lack of visibility of human rights in policy, guidance, and service development leads to people’s human rights either being unconsidered, ignored, risked or breached.  The JCHR has previously stated in its ‘Enforcing Human Rights’ report that one of the reasons for the inconsistent implementation of the section 6 duty is the lack of awareness and training of public officials.[xi]  There is still a widespread lack of awareness among public officials of the UK’s human rights laws and their duties under the HRA. Importantly, this means a lack of knowledge among officials in housing, health, care, education and other services about how they can use human rights approaches to benefit the people they are serving, and to improve the effectiveness and efficiency of their service. 

14.  At the national level, we believe that the Westminster government must do more to foster development of a human rights culture in the UK.  Successive governments have depicted the UK’s human rights system as ineffective and in major need of reform, with pledges being made to ‘scrap’ or change the HRA dominating the conversation for the past decade, with little reference to the positive practice taking place. 

15.  Comparatively, the rhetoric in the devolved nations is more positive, with the Scottish Government and Welsh Government pledging support for the HRA,[xii] and exploring ways of integrating human rights standards into a range of policy areas.  Compliance with the rights in the ECHR has been embedded into the devolution arrangements, making it unlawful for the parliaments/assemblies in Northern Ireland, Scotland and Wales to pass legislation that is not compatible with human rights. The HRA provides additional levers for the embedding of human rights in the devolved nations, supporting the development of human rights approaches in policy and practice, including in policing (Northern Ireland) and social welfare (Scotland); see also paragraphs 23 and 28.

16.  Too much emphasis has been placed on portraying the HRA as the legal instrument which helps particular (often deemed “unsympathetic”) people. This has often been done using inaccurate or partially true information, focusing on specific legal cases, without reference to the broad ways in which the HRA can improve the lives of everyone in the UK. We believe this distortion of the HRA hinders the development of a human rights culture in the UK.

17.  We believe that key to supporting services is engaging with public officials with legal human rights duties and educating them about the human rights framework and how they can integrate this into their everyday work.  This could take the form of initial and ongoing practical human rights training for staff in public bodies and/or incorporating human rights into professional and vocational qualifications for those entering public services.  This would focus particularly on the duty that exists under section 6 of the HRA, and how this duty can help them to deliver more effective services that result in better outcomes for people.  As noted in paragraph 12, there is evidence that where training has taken place, for example in the health and care sector, there have been overwhelmingly positive improvements in both knowledge and confidence of professionals, leading to people being treated with more dignity and respect.

18.  Alongside this, efforts must also be made to assist with internalising human rights into the policies of public services.  For example, public authorities frequently use language about ‘dignity’, ‘respect’ and ‘personal choice’. However, this is not always linked to specific language around the HRA which would enable staff to develop better understanding of human rights and how to use the law to deliver better services for people.

19.  The negative national rhetoric has also fostered a perception among the wider public that human rights are not for ‘ordinary people’.  There is a lack of awareness amongst the wider public of what the HRA is, and the positive impact it has had for all people in the UK.  Research has shown that the majority of the public is not confident that they know about human rights, the rights afforded to them in the HRA and the duty on public officials to respect their rights, which means that human rights breaches can take place without any sort of redress.  The research also shows that the more people are educated about human rights, the more likely they are to be positive about human rights and view them as important.[xiii]  Therefore, in addition to educating public officials, we reiterate calls for more public education about human rights law for people in the UK. This includes: where modern universal human rights came from, and how Convention rights were a British response to the horrors of the Second World War, how the HRA works, how the HRA can positively transform the way in which services are developed and delivered, and how the HRA protects people in their everyday lives.  Proactively addressing this issue will go some way towards repairing the damage done by years of negative press and political discussion of human rights and help to develop an effective human rights culture in the UK. 

20.  Therefore:

• We recommend that public officials are educated on the HRA to increase their knowledge of human rights laws and their corresponding duties, and also trained on how to practically apply a human rights approach to the services they provide. 
• We recommend that public services should be supported to develop human rights approaches which, in addition to training, also support them to internalise human rights in policies and practices.
• We recommend that the government take an active role in fostering and developing a human rights culture in the UK, with more being done particularly to promote the broad ways in which the HRA can improve the lives of everyone in the UK.
• We recommend that the government take steps to implement more education for the wider public on human rights, addressing the lack of awareness and understanding of the HRA.

JCHR Question: Has there been a shift of power from Parliament to the judiciary?  And, if so, has this had a meaningful impact?

21.  The introduction of the HRA increased the powers of UK courts to protect human rights and scrutinise policies accordingly, but the central role of the courts has been one of interpretation rather than law-making. Only Parliament can make, change or remove legislation from our law books. 

22.  Under section 3(1) of the HRA, courts only have the power to make human rights compatible interpretations of other laws as far as it is possible to do so. Additionally, under section 4 of the HRA, if a higher court does find legislation to be incompatible with human rights and/or it cannot interpret it in a way which is compatible with those rights, it can issue a declaration of incompatibility (DOI) to that effect. DOIs do not change or overturn the law; it is up to Parliament to decide to amend the law.

23.  The situation with DOIs is different in the devolved nations. When the Westminster Parliament set up the assemblies/parliaments in Northern Ireland, Scotland and Wales, it stated that these nations cannot pass law which is incompatible with human rights. Therefore when devolved legislation is passed which is not compatible with human rights, the courts can overturn this law. This has led to positive outcomes for people. For example:

Under the Children and Young People (Scotland) Act 2014, provisions stated that a named person was to be assigned to each child and young person in Scotland, and they would act as a clear point of contact if a child, young person or parent needed information or advice.  Provisions were also introduced for information sharing between the named person service provider and other relevant service providers or authorities. The Supreme Court decided that the information sharing provisions were not lawful because they were drafted in a manner that lacked safeguards for examining whether access to private information was proportionate to the parents’ and children and young people’s right to private and family life under Article 8 of the ECHR.  The Scottish Government is currently considering an alternative.

24.  We note that statistics show that there have been a very low number of DOIs issued since the introduction of the HRA.  Official figures from the Ministry of Justice showed that, as of July 2017, 37 DOIs had been made since the introduction of the HRA.  Where DOIs have been used, they have led to positive outcomes, as in the following examples:

• When a post-operative male to female transgender person could not validly marry her husband because the law still recognised her as male, the House of Lords held that the law was incompatible with the right to private and family life (Article 8) and the right to marry and found a family (Article 12) because it made no provision for the recognition of gender reassignment. [xiv]  

• When an 11-year-old received police warnings over the theft of two bicycles which later prevented him obtaining a job, the court issued a DOI that the Disclosure and Barring Service was incompatible with his right to private life.[xv]
• When a man was admitted to hospital and sought to be discharged, the court found that the law was incompatible with the right to liberty (Article 5), resulting in a change which means that people do not need to prove that they should not be detained - it is up to medical institutions to prove that someone be detained.[xvi]

25.  We believe that, as this system currently operates, there has not been a shift of power from Parliament to the judiciary, and the principle of separation of powers has not been undermined.

26.  Therefore:

• We recommend that courts continue to undertake the role designated to them under the HRA of carefully scrutinising legislation and holding public officials to account when rights have been breached or are at risk of being breached.

JCHR Question: Are there any improvements that could be made to primary legislation?

27.  We are concerned that, given the current climate of political hostility to human rights laws as described above (and in paragraph 30), suggestions of amending the HRA itself through primary legislation carry a very real risk of leading to a decrease in the protections and safeguards afforded by the Act.  We would welcome the introduction of additional rights and protections. However, given the direction of travel of human rights under the current government, we believe that any improvements should be made through parallel legislation, with the HRA left intact.  For instance, new primary legislation can focus on incorporating wider international standards and additional rights for particular groups or address particular issues.  There are examples of this approach in the devolved nations

28.  It is also important to have regard to the constitutional effects of any ‘repeal’ of the HRA on the devolved nations.  For instance, repealing the HRA would breach the Good Friday Agreement, even if replaced by a “British Bill of Rights”, as that Agreement pledged to “incorporate” the ECHR into domestic law.  The Irish government has previously made clear that it sees the UK’s proposals for a Bill of Rights “as a threat to the international agreement that underpins Northern Ireland’s fragile but enduring peace process”.  It also risks undermining the transformative effect that the HRA has had on issues of justice in Northern Ireland.  For instance, one of the key functions of the Northern Ireland Policing Board (as set out in s3(3)(b)(ii) of the Policing (Northern Ireland) Act 1998) is to monitor compliance with the Human Rights Act 1998.[xvii] The 2008 Code of Ethics of the Police Service of Northern Ireland also explicitly references compliance with the HRA 1998 and the ECHR.

29.  There is the possibility that secondary legislation could assist with the implementation of the HRA. For example, it could make clear the legal duty on public authorities to act compatibly with human rights and to take a preventative human rights based approach. However, given the current political climate towards the HRA, caution should be exercised about the extent to which the introduction of secondary legislation would genuinely seek to enhance human rights protection. Alternatively, and importantly, the HRA could be explicitly referred to in secondary legislation for other areas, ensuring that legislation in those areas is respecting and protecting people’s human rights as far as possible. 

30.  Therefore:

• We recommend that the HRA is left intact, with any additional rights being introduced through other legislation which links to the HRA in its capacity as a foundational law in the UK.
• We recommend that the HRA is explicitly referred to in secondary legislation for other areas to ensure that human rights are respected in all areas of public life.

We have identified a number of changes (including migration, security, family structure, privacy and technology) in society. What other future challenges will need to be addressed through the framework of the Human Rights Act?

31.  This inquiry has raised a number of challenges that the HRA has addressed.  As noted, the HRA must continue to be able to consider a broad range of emerging issues (and the living instrument principle, noted above, is so important in this regard).  In order to do this, we must first sustain the principles and values underpinning the HRA.  We are acutely aware of the current risks to human rights laws in the UK in general (beyond the HRA).  Most recently, we have seen the EU Charter of Fundamental Rights be excluded from the EU Withdrawal Act. This was widely opposed by civil society groups,[xviii] and it has resulted in depriving people in the UK of rights that are not explicitly or comprehensively available elsewhere in UK law, such as child-specific rights, or a free-standing right to dignity. The Conservative party’s 2017 manifesto also states that, while the HRA would not be repealed or replaced while the process of Brexit is ongoing, the party will consider our human rights legal framework when the process of leaving the EU concludes. That timeframe is getting closer, with the date for EU withdrawal set as 29 March 2019.

32.  As we acknowledge and celebrate the achievements of the HRA in its first 20 years, it is clear that now, more than ever, we must seek to both embed and develop the framework of the HRA.  There is a real risk that the current direction of travel around human rights laws will reverse efforts over the last 20 years to use the HRA to make the lives of all people in the UK fairer and better, both in and out of courtrooms.  We must resist regressive approaches to our human rights laws, endeavour to improve the knowledge and understanding of both officials and people about the HRA, and press the government to commit to retaining and progressively building upon the framework of the HRA so that it can continue its important role as an effective safeguard for the rights of all people here at home.

33.  Therefore:

• We recommend that the UK government commit to retaining the HRA in its full form.
• We recommend that the UK government reverse the current trend, and commit to strengthening universal human rights law in the UK (beyond the HRA) for the continued benefit of all people in the UK.

This evidence has been submitted by the following organisations:

• The British Institute of Human Rights
• AVA (Against Violence and Abuse)
• Amnesty International UK
• Asylum Link Merseyside
• Campaign for Freedom of Information
• Centre for Women’s Justice
• Children's Rights Alliance for England (CRAE)
• Damien Short & Corinne Lennox, Co-Directors of the Human Rights Consortium at the School of Advanced Study
• ECPAT UK (Every Child Protected Against Trafficking)
• Garden Court Chambers
• Humanists UK
• Inclusion London
• INQUEST
• The Judith Trust
• Just Fair
• LGBT Consortium
• Liberty
• Mencap
• Migrants Resource Centre
• Migrants Organise
• Mind
• NAT (National AIDS Trust)
• National Care Forum
• NDTi (National Development Team for Inclusion)
• Public Law Project
• Queen Mary (University of London) Human Rights Collegium
• René Cassin
• Rights of Women
• Ruth Tweedale, Senior Lecturer in Law at Roehampton University
• SCVO
• Scottish Care
• Sue Ryder
• Together Scotland
• Wish
• Women’s Aid Federation of England
• UNISON
• Unlock Democracy
• York: Human Rights City
• Yorkshire MESMAC
• Young Legal Aid Lawyers (YLAL)

21 September 2018

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