House of Commons - Constitutional Affairs

Select Committee on Constitutional Affairs Minutes of Evidence

Appendix A

WHAT DIFFERENCE HAS THE HRA MADE?

Disability

Duty to take positive action to secure physical integrity and dignity

Where a local authority knew that a disabled tenant's housing was inappropriate but did not move her to suitably adapted accommodation, they failed in their duty to take positive steps to enable her and her family to lead as normal a family life as possible and secure her physical integrity and dignity. Damages were due for this failure.[5]

Policies on lifting must consider competing rights

Health and Safety Executive guidance on manual lifting was updated in 2002, highlighting the need to comply with the HRA and the DDA. It was aimed at a balance between health and safety policy and the needs and rights of disabled people.[6]

A lifting policy should balance the competing rights of the disabled person's right to dignity and participation in community life and the care workers' right to physical and psychological integrity and dignity. Following a challenge under the HRA, East Sussex local authority amended its Safety Code of Practice on Manual Handling to include consideration of the dignity and rights of those being lifted. This was circulated to other local authorities, NHS trusts and care providers to encourage them to review their policies.[7]

Age

Before closing a care home, the effect on the residents must be considered

Where a local authority residential care home was being closed, the authority had to investigate the effect of the closure on the residents' emotional, psychological and physical health and comply with its obligations under the HRA.[8]

Sexual orientation

HRA provides protection against discrimination on grounds of sexual orientation

The courts have used their powers under the HRA to eliminate the discriminatory effect of para 2, Schedule 1 of the Rent Act 1977 which meant that the survivor of a heterosexual couple could become a statutory tenant by succession but the survivor of a homosexual couple could not.

Race

Changes to cell-sharing policies

Following the murder of a prisoner by his racist cell-mate and a successful challenge under the HRA for a public enquiry, the Prison Service introduced changes to its policy and procedures relating to cell-sharing risks, allowing information-sharing to identify high risk factors.[9]

Gender

Gender re-assignment requires legal recognition

A successful challenge was made against the different treatment for post-operative transsexuals in obtaining marriage certificates and a declaration was made that the Matrimonial Causes Act 1973 was incompatible with the ECHR. The government altered the law and the Gender Recognition Act 2004 now entitles a transsexual person to be treated in their acquired gender for all purposes, including marriage.[10]

Prisons

Separation of mother and baby in prison requires flexibility

Following a challenge to the blanket Prison Services rule, requiring compulsory removal of all babies from imprisoned mothers at 18 months, the Prison Service amended the requirements for the operation of Mother and Baby Units. The removal of the child had to be a proportionate interference with her right to family life. It was necessary to consider the individual circumstances and whether it was in the child's best interest to be removed.[11]

Investigations into deaths

Duty to investigate death in custody

Where a death has occurred in custody the state is under a duty to publicly investigate before an independent judicial tribunal with an opportunity for relatives of the deceased to participate.[12]

POLICIES THE HRA HASN'T CHANGED

Corporal punishment

Right to religion did not allow corporal punishment in private schools

Although the ban on corporal punishment in schools did interfere with parents' and teachers' right to manifest their religion under the ECHR, this interference was necessary in a democratic society for the protection of the rights of others—the children.[13]

Religion

A school uniform did not breach the right to religion

A uniform policy that did not allow students to wear a jilbab did not breach of the right to religion, and that even if it did, the school's decision was objectively justified. The court stressed the need in some situations to restrict freedom to manifest religious belief, the value of religious harmony and tolerance between opposing or competing groups and of pluralism and broadmindedness and the need for balance and compromise.[14]

Investigation of crime

Retention of DNA and fingerprint evidence not a breach of ECHR

The retention and use by the police of DNA samples and fingerprint evidence after a suspect had been cleared of the offence does not breach Art 8. They are only kept for a limited purpose of the detection, investigation and prosecution of crime and the interference would be minimal. When balanced against the enormous advantages conferred by the expansion of the database in the fight against serious crime, the practice was not disproportionate in effect.[15]

Stop and search

Stop and search regime not a breach of ECHR

The stop and search powers under s44 of the Terrorism Act 2000 are not a breach of the ECHR. The powers were governed by clear and publicly accessible rules of law and even if they do interfere with rights under the ECHR, this interference is justified in the interests of national security.[16]

Criminal justice

Safety of community outweighs right against self-incrimination

The Road Safety Act 1988, which requires a suspect to reveal who was driving their car at the time of an offence, does not breach Art 6. Whilst the overall fairness of a criminal trial could not be compromised, the constituent rights contained in Art 6, were not themselves absolute. There is a need to strike a balance between interests of society and fairness to individual and the measure was not a disproportionate response to the high incidence of death and injury on the roads by reason of the misuse of cars.[17]

Self-incrimination

Privilege against self-incrimination modified

The courts have modified the application of domestic privilege against self-incrimination to exclude from its ambit material constituting free-standing evidence that was not created by a suspect under compulsion. This allowed highly objectionable images of children, found during a search, to be transferred to the police. The public's rights under Arts 2, 3 and 8 ECHR to be protected from criminal activity outweighed the privilege against self-incrimination.[18]

ASBOs

Hearsay evidence permissible in proceedings leading to an ASBO

The court said ASBO proceedings were of a civil nature and that hearsay evidence was admissible. In striking a fair balance between the demands of the general community and the protection of the defendant's rights requires the scales to come down in favour of the protection of the community and permitting the use of hearsay evidence in applications for anti-social behaviour orders.[19]

Asylum seekers

Removal of asylum seeker with HIV/AIDS not a breach of Art 3

Deporting an asylum seeker suffering from HIV/AIDS to a country where access to medical treatment and facilities was problematic, was not a breach of Art 3. Except in exceptional circumstances where their condition had reached a critical state and removal to such a country would cause acute suffering. Art 3 could not be interpreted as requiring states to admit and treat AIDS sufferers from all over the world for the rest of their lives.[20]

Travellers

Can use Art 8 as defence to possession order but unlikely to succeed

Where a public authority seeks to evict someone from premises he occupies as his home, he must be given a fair opportunity to argue that Art 8(2) conditions have not been met and be able to raise an Art 8 defence in the possession proceedings. But, the court should proceed on the assumption that domestic law is compatible with Art 8. A possession order will be made unless the occupier can show, in highly exceptional circumstances, that the law is not compatible with ECHR or the facts show the local authority acted unlawfully under s6 HRA in exercising their powers to seek possession. A defence based only on the occupier's personal circumstances would be likely to be struck out. 20

Price et al v Leeds City Council; Kay et al v Lambeth LBC [2006] UKHL 10.