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7 The Human Rights Act

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1. Introduction

2. Where did the Human Rights Act start?

3. How does the Human Rights Act work?

4. What can I do if I think my rights have been breached?

5. Which cases doesn't the Act cover?

6. The Articles of the Act in detail

Here we explain what each article says. We also give examples of how they have been used in the past or how they might be used under the Human Rights Act. Bear in mind, though, that these are just examples, and the Convention rights can be used in many other ways.

Article 2: Right to life
This says that the Government and public authorities must protect the right to life. It may mean that the police have to protect someone whose life is under immediate threat. It might also be used to argue that a patient should be able to get treatment that would save their life. Article 2 says there are three situations when the Government or a public authority can justify taking someone's life. These are where:

  • they are protecting someone else from illegal violence;
  • they are trying to arrest someone or prevent someone from escaping from custody; or
  • they are trying to stop a riot.

If someone dies in such a situation, the Government or public authority (usually the police) will have to show that no more force was used than absolutely necessary. Unless they can show that they used only as much force as absolutely necessary, they will have broken Article 2.

Article 2 also says there should be a proper investigation when the police or army kill someone or when someone dies in custody. This is the most commonly used part of Article 2.

Article 3: Prohibition of torture
This says that no one should be tortured, and also forbids punishing or treating people in a way that is degrading or inhuman. The European Court of Human Rights says inhuman or degrading treatment or punishment has to be very serious to be a breach of Article 3. At the least, it must be extremely humiliating.

This article has been used to argue that someone should not be deported to a country where they are likely to be tortured, or extradited (sent) to face criminal charges in a country where they will face the death penalty. It has been used in cases where social services have failed to protect children from severe abuse. Prisoners or people held in hospital might use it if they are treated very badly or if the conditions in the prison or hospital are particularly bad. It has also been used to argue that the Government should not withhold state support from asylum seekers because doing this would leave them destitute (penniless).

Article 4: Prohibition of slavery and forced labour
This forbids slavery; that is, when one person is owned by another person, or when someone is forced to work. However, the article makes it clear that this does not include work that someone has to do while they are in prison, or any work contracts that you agree to voluntarily.

Article 5: Right to liberty and security
This limits the circumstances in which someone can be detained and have their freedom taken away. It covers detention for:

  • 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.

Article 5 says the law must be clear about how and when people can be detained. It also says that people can be detained only:

  • if they have been convicted of an offence and sentenced to imprisonment;
  • if they have disobeyed a court order to make them do something that the law says they must do (such as paying a fine or paying maintenance);
  • if there is good reason to suspect they have committed a crime, or to stop them from committing a crime, or to stop them running away after committing a crime;
  • if they are mentally ill, alcoholic, a drug addict or a vagrant, or if it is necessary to detain them to stop an infectious disease spreading; or
  • to stop them coming into the country illegally; or
  • so that they can be deported or extradited (sent to a country where they have been accused of a crime).

People under 18 may also be detained to make sure they get educational supervision or can be taken to court.

However, English and Welsh law does not allow some types of people to be detained. For example, drug addicts can't be detained just because they are addicts.

Article 5 also gives people who have been arrested or detained the right to:

  • be told why they have been arrested in a language they understand;
  • be taken before a court quickly;
  • bail, unless there are good reasons for not granting it;
  • be tried within a reasonable time;
  • take court proceedings to challenge their detention if they think it is illegal; and
  • compensation if they have been illegally detained.

Article 5 also gives some people who are detained the right to have a court or tribunal look again at the reasons for their detention from time to time. This includes compulsory patients in a mental hospital and prisoners serving a life sentence once they have completed the tariff part of their sentence (the minimum period that they must spend in prison before the Parole Board can decide to release them on licence - that is, with conditions).

Article 6: Right to a fair trial
This article says everyone has the right to a fair trial and sets standards for the way hearings should be run. You may believe you have not had a fair trial if you lose your case, but there will be a breach of Article 6 only if these standards have not been met.

Article 6 applies to both civil proceedings (cases involving disputes between individuals or organisations) and criminal proceedings (when someone is prosecuted for an offence).

Certain standards apply in both criminal and civil cases. These are the right to:

  • a trial within a reasonable time; 
  • an independent judge;
  • a public hearing (although in some circumstances the public is not allowed to watch);
  • have the judge's decision made public; and
  • know the judge's reasons for the decision.

In civil cases, Article 6 also protects the right to take court proceedings to settle a dispute (though, depending on the type of case, this right may be limited). Article 6 may also give you the right to public funding (legal aid) for your case if you cannot present your case yourself and you cannot afford a lawyer.

In some situations where a person who is not completely independent makes a decision, they are not necessarily breaching Article 6 (for example, a housing officer reviewing a homelessness decision). This is because you would have the right to appeal against the decision to a court.

There are extra rights in criminal cases. These are the rights to:

  • be presumed innocent until you have been proved to be guilty;
  • be told at an early stage what you are being accused of;
  • remain silent - you cannot be forced to answer questions, but the court may decide that this is a sign of your guilt;
  • have enough time to prepare your defence;
  • have public funding (legal aid) for a lawyer if you cannot afford one and it is 'in the interests of justice' for you to have one;
  • be present at your trial;
  • put your side of the case at your trial;
  • question the main witnesses against you and call witnesses of your own; and
  • have an interpreter if you need one.

Article 7: No punishment without law
This says you cannot be tried and found guilty if what you did was not a criminal offence when you did it. It also says that you can't be punished in a way that was not the law when you committed the offence. Parliament can't backdate a law that increases the length of time you could be sent to prison or introduces a new punishment for an offence.

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

Article 8: Right to respect for private and family life
This says there should be respect for everyone's private and family life, home and correspondence.

There is no full definition of what 'private life' includes, though it is similar to privacy and covers the right to:

  • get on with your life without interference;
  • develop your personality and form friendships and relationships with other people;
  • enjoy your sexuality; and
  • control your body.

The private life part of Article 8 has been used to challenge the Government for holding information about people. For example, someone who was in care has used it to get information about his childhood.

'Family life' means your relationship with your close family. This includes a man and woman who aren't married but who live in a stable relationship. The Court in Strasbourg has not yet recognised a same-sex couple as a family, but the courts in this country may be moving towards this.

'Your home' means where you now 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.

'Your correspondence' means your phone calls and letters, as well as e-mails. Article 8 has been used by people to challenge the police or secret services bugging their phones.

Article 8 is a 'qualified right'. This means it can be breached in certain circumstances. But the Government or the public authority that has breached the right must show there was a clear legal basis for the breach. Its actions must pursue one of the six aims set out in Article 8. These aims include to prevent crime, and to protect the rights of others. It also has to show that breaching the right was 'necessary and proportionate' (that it was done for a very good reason and went no further than it needed to).

Article 9: Freedom of thought, conscience and religion
This 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. The freedom of conscience principle also applies to people who are vegan or pacifist.

Article 9 also protects the right to practise or express your religion or beliefs. This right is a 'qualified' right, so it can be breached in some circumstances. But the Government or public authority that has breached the right must show there is a clear legal basis for breaching the right. Its actions must pursue one of the four aims set out in Article 9 - for example, to protect the rights of others. It also has to show that breaching the right was 'necessary and proportionate' (that it was done for a very good reason and went no further than it needed to).

Article 10: Freedom of expression
This guarantees the right to pass information to other people and to receive information that other people want to give you. It also guarantees the right to hold and express opinions and ideas. It is similar to the right under Article 9, although the range of opinions and beliefs that are protected by Article 10 is much wider.

Journalists and people who publish newspapers and magazines can use Article 10 to argue there should not be any restrictions on what they write about. Artists and writers can use it to defend themselves against people who try to censor their work.

Article 10 is a 'qualified' right, so it can be breached in some circumstances. But the Government or the public authority that has breached the right must show that it was justified in (had a good reason for) doing this. It must show there was a clear legal reason for breaching the right. Its actions must pursue one of the eight aims set out in Article 10, which include:

  • the prevention of crime;
  • the protection of morals;
  • the protection of other people's rights or reputations; and
  • the protection of confidential information.

It also has to show that the interference was 'necessary and proportionate' (that it was done for a very good reason and went no further than it needed to).

Article 11: Freedom of association and assembly
This protects the right to protest peacefully by holding meetings and demonstrations. It also means that the police may have to act to protect people holding a meeting or demonstration from anyone trying to stop it.

Article 11 protects the right to form or join a political party or other group, and the right to belong to a trade union. But the right to join a trade union doesn't include 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 so it can be breached in some circumstances. But the Government or the public authority that has breached the right must show there was a clear legal basis for breaching the right.

Its actions must pursue one of the five aims set out in Article 11, which include preventing disorder or crime, and protecting other people's rights. It also has to show that breaching the right was 'necessary and proportionate' (that it was done for a good reason and went no further than it needed to).

At the moment, the police can restrict demonstrations or ban them. People may use Article 11 to challenge some of these restrictions if they believe they go too far and are not necessary. 

Article 12: Right to marry and found a family
This gives men and women the right to marry, as long as they are old enough. Traditionally this did not include same-sex couples or transgender people (people who've undergone a sex change). However, both the Strasbourg and English courts have recently found that transgender people do have the right to marry in their new gender (the sex they've changed to) and the law has now changed so that it is in line with these rulings.

The right to 'found a family' may apply only 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 of discrimination
This includes many types of discrimination, including discrimination on grounds of:

  • sex;
  • race;
  • religion; and
  • political opinion.

However, the article does not say these are the only ones, and the European Court of Human Rights has accepted that it covers discrimination against people who are:

  • illegitimate (born to unmarried parents);
  • unmarried;
  • prisoners; or
  • gay or lesbian.

The courts are also likely to accept that the article covers discrimination against someone because they are disabled. In all cases of discrimination, you will probably need to show that the reason you have been discriminated against is linked to a 'personal characteristic', such as your age, sex or nationality.

Article 14 does not give general rights against discrimination. You can use it only where you use another article of the Convention. For example, a gay man found that he could take over the tenancy on a flat after his partner had died, but on worse terms than if his partner had been a woman. He used Article 8 because his home was at stake. He then used Article 14 because he was discriminated against because of his sexual orientation.

Even if 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, the Government or public authority might still be able to argue that the discrimination is justified. But they must show that there is a good reason for treating you differently and that their actions are proportionate (go no further than they need to).

7. The protocols in detail

8. Further Help

9. About this leaflet

This leaflet is published by the Legal Services Commission (LSC). It was written in association with Liberty. 

Leaflet version: July 2019

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Last updated on 6 October 2019

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