LEGAL RESPONSIBILITIES UNDER THE
HRA
12. Under the HRA, it is unlawful for any public
authority to "act in a way which is incompatible with a Convention
right".[386] This
means that public authorities have to take Convention rights into
account in relation to all of their functions, including the provision
of public services to individual users.
Positive obligations
13. Although not discernible on the face of the HRA,
public authorities also have positive obligations under the Convention.
These duties may require public authorities to do more than
merely avoid breaching people's human rights. Article 1
of the ECHR requires States to 'secure [the ECHR rights] to everyone
within the jurisdiction'. Although the government did not
incorporate Article 1 into the HRA, this Article remains an obligation
under the Convention and has been reinforced by decisions of the
European Court of Human Rights and, since the HRA came into force,
decisions of the UK courts. This means that public authorities
have an additional responsibility, in certain circumstances, to
take reasonable measures to protect people's rights.
14. These positive obligations may have implications
for law and policy. For example, the European Court of Human Rights
required the UK to have laws in place that sufficiently protected
children from excessive corporal punishment in breach of Article
3.[387] Similarly,
the European Court held that Article 8 was breached where a 16
year old woman with a mental disorder, and her father acting on
her behalf, were both prevented from lodging a criminal
complaint in respect of a carer who sexually assaulted her.
The court stated "this is a case where fundamental values
and essential aspects of private life are at stake. Effective
deterrence is indispensable in this area and it can be achieved
only by criminal law provisions."[388]
15. There may also be a duty in practice to "take
effective operational steps to guard against […] ill-treatment."[389]
For example, the state has a legal duty under Article 2 (right
to life) which may require the police or other authorities to
take reasonable steps to protect an individual whose life is at
risk from the criminal acts of others[390]
and to protect the public from environmental hazards which threaten
life.[391] To take
a more recent example, the probation service had a duty under
Article 2 to take reasonable steps to protect the public from
the risk created by the release of the prisoner, Anthony Rice,
a convicted rapist serving a life sentence. As was noted in the
recent review conducted by (what was then) the Department for
Constitutional Affairs "there seems to be insufficient recognition
that the prison, parole and probation services are themselves
subject to a positive obligation under the Human Rights Act to
take proper steps to protect the public from dangerous criminals
such as Rice."[392]
16. The requirement for public authorities to take
action to protect people's human rights can also arise in less
high profile cases, which nevertheless have a significant effect
on the quality of people's lives. In Bernard v London Borough
of Enfield[393]
the court held that the local authority was in breach of Article
8 ECHR having failed to provide suitable accommodation to a severely
disabled woman and her family within a reasonable period of time.
17. The state and its agencies may have positive
obligations to take action in relation to the acts of private
individuals to protect the human rights of one individual from
infringement by another. As the European Court of Human
Rights stated in X and Y v Netherlands:
[Article 8] does not merely compel the State
to abstain from . . . interference: in addition to this primarily
negative undertaking, there may be positive obligations inherent
in an effective respect for private and family life . . . These
obligations may involve the adoption of measures designed to secure
respect for private life even in the sphere of relations of individuals
between themselves.[394]
18. For example, where private care providers do
not have duties under the HRA, local social services departments
may have to take action to ensure that the human rights of private
care home residents are protected. This point was made clear by
Forbes J. in the case of Johnson v Havering:
A transfer of the [care] homes to the private
sector does not absolve the Council of its duty under Section
6(1) to act compatibly with Convention rights, including the Convention
rights of the claimants. Thus, if a transfer does take
place, the Council will continue to be obliged to take appropriate
steps (for example) to safeguard the lives of the claimants, to
protect them from inhuman and degrading treatment and to safeguard
their private and family life, home and correspondence. The
real and effective protection of the claimants' rights will continue
to be ensured by the Council and, if necessary, by the Courts.[395]
19. The fact that the positive obligations doctrine
is not specified clearly in the UK statute and instead derives
from Convention obligations and caselaw has not assisted either
understanding or application of it by public authorities in the
UK.
Dignity in law
20. We provide outlines of Articles 8, 3, 2 and 14
below but, because each of these Convention rights is dependent
upon protecting people's dignity, this section briefly considers
the extent to which this fundamental human rights principle has
been given the force of law.
Dignity in international human rights instruments
and statutes
21. The concept of dignity is prominent in the Universal
Declaration of Human Rights 1948:
Whereas recognition of the inherent dignity
and of the equal and inalienable rights of all members of the
human family is the foundation of freedom, justice and peace in
the world,
Article 1: All human beings are born free and
equal in dignity and rights.[396]
22. Two years later, however, when the ECHR was drafted,
dignity was not expressly referred to. This may have been due
to a natural reluctance on the part of the British lawyers contributing
to the drafting, schooled as they would have been in the more
precise tradition of British law-making, to legislate about basic
values. As we consider below, any such reluctance amongst legislative
draftsmen has diminished since the HRA was passed.
23. The international Covenants that brought the
principles of the Universal Declaration into legal effect do,
however, refer to dignity as a human right to be upheld. The preambles
to both the International Covenant of Civil and Political Rights
(ICCPR) and the International Covenant on Economic Social and
Cultural Rights (ICESCR) 1966 state:
[…] in accordance with the principles proclaimed
in the Charter of the United Nations, recognition of the inherent
dignity and of the equal and inalienable rights of all members
of the human family is the foundation of freedom, justice and
peace in the world, Recognising that these rights derive
from the inherent dignity of the human person.
24. The more recent Charter of Fundamental Rights
of the European Union 2005 devotes the whole of its first chapter
to dignity.[397]
That chapter, containing the first five Articles of the Charter,
declares that human dignity is inviolable, and asserts the rights
to life, to integrity of the person, the prohibition of torture
and inhuman or degrading treatment or punishment and the prohibition
of slavery and forced labour.
25. Dignity as a human rights concept is being increasingly
used by parliamentary draftsmen in the UK. Recent research
revealed that 57 statutes in the last five years have referred
to dignity as compared to 16 in the previous five (with most of
the references concerning the dignity of ordinary humans as opposed
to references to the dignities of a particular office).[398]
For example, regulations on adult placement schemes state:
The registered person shall make suitable arrangements
to ensure that the scheme is conducted, and that care or support
(including any accommodation) is provided […] in a manner
which respects the privacy, dignity and wishes of service
users, and the confidentiality of information relating to them.[399]
26. More recently, the statute establishing the Commission
for Equality and Human Rights (CEHR) imposes on it a general duty
to exercise its functions "with a view to encouraging and
supporting the development of a society in which […] there
is respect for the dignity and worth of each individual."[400]
Dignity as interpreted by the courts
27. Although it has been said that "there is
hardly any legal principle more difficult to fathom in law than
that of human dignity",[401]
the concept is frequently referred to in the jurisprudence of
the Convention in the context of Articles 8 and 3 ECHR, not as
a legal standard but as a fundamental value.[402]
The European Court of Justice has also held that it must ensure
that the fundamental right to human dignity and integrity is observed.[403]
Courts in the UK have considered the importance of dignity
as a principle and value both before and after the incorporation
of the ECHR into domestic law, although they have declined to
define the concept precisely. For example, as Baroness
Hale recognised in Ghaidan v Godin-Mendoza "the essence
of the Convention […] is respect for human dignity and human
freedom", along with equal treatment.[404]
28. Recent research has looked at the extent to which
British courts are referring to dignity. This research
showed that 48 cases which referred to dignity occurred in the
last five years, while in the previous five there were only 19
references. It concluded that there has been an "exponential
growth in dignity discourse in the courts of England and Wales"
and that "judges, advocates and legislators feel increasingly
confident in referring to dignity."[405]
29. In Airedale NHS Trust v Bland[406]
a case which explored the moral issues of withdrawing life support
(decided before the HRA), Hoffmann L.J. (as he then was) said
the principle of dignity reflects:
[ …] our belief that quite irrespective
of what the person concerned may think about it, it is wrong for
someone to be humiliated or treated without respect for his value
as a person. The fact that the dignity of an individual is an
intrinsic value is shown by the fact that we feel embarrassed
and think it wrong when someone behaves in a way which we think
demeaning to himself, which does not show sufficient respect for
himself as a person.[407]
30. Since then, in a recent case, Lord Hoffmann sketched
out a definition of dignity when he observed that the jurisprudence
shows that dignity is a core value being "the right to the
esteem and respect of other people [...]".[408]
31. The importance of dignity both as a human rights
concept and as a fundamental value was emphasised in a case concerning
the way in which two severely disabled sisters were cared for
by local authority carers in their home. Munby J. said:
True it is that the phrase [human dignity] is
not used in the Convention but it is surely immanent in Article
8, indeed in almost every one of the Convention's provisions.
The recognition and protection of human dignity is one of the
core values - in truth, the core value - of our society
[…][409]
32. The essential characteristics of dignity are
beginning to be explored by judges and academics. Professor Feldman,
a former legal adviser to our predecessors has observed that dignity
operates at three levels, the dignity attaching to the human species,
the dignity of groups within the human species and the dignity
of human individuals.[410]
He notes that dignity of individuals:
requires the right to make one's own decisions,
and to contribute to decisions made by others which affect one's
life […] But we may be required to respect the dignity of
people who lack freedom of choice, such as those in a permanent
vegetative state. Such cases present difficult questions about
the relationship between dignity and autonomy, and between different
kinds of dignity.[411]
33. There is no question that the concept of dignity
and the developing jurisprudence on it is significant to our inquiry
on the human rights of older people in hospitals and care homes.
Respect for the person and family life
34. Article 8 ECHR provides:
- Everyone has the right to respect
for his private and family life, his home and his correspondence.
- There shall be no interference by a public authority
with the exercise of 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 ell-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.
35. The right to respect for private life has been
interpreted by the European Court of Human Rights as including
a right to physical and psychological integrity.[412]
36. Since the HRA came into force, there have been
several decisions based on Article 8 involving the protection
of vulnerable people, particularly those who are elderly or have
disabilities. A local authority has been found liable under Article
8 for failing to carry out meaningful consultation with elderly
residents of its care homes following a decision to close them.
The Court held that the decision-making process should have taken
into account Article 8 and there should have been a careful balancing
process to make sure that the council's interference in the residents'
rights was 'proportionate.'[413]
37. In the East Sussex case, referred to above,
which considered the local authority's handling and lifting policy
with regard to the care of two sisters with profound disabilities
in their home, the court found that Article 8 required protection
of the sisters' dignity and this needed the human touch of some
manual handling by their carers.
Freedom from inhuman or degrading treatment
38. Article 3 ECHR prohibits torture and inhuman
or degrading treatment or punishment. It provides:
No one shall be subjected to torture or to inhuman
or degrading treatment or punishment.
39. Article 3 is mirrored by Article 7 ICCPR. The
prohibition against torture and inhuman or degrading treatment
or punishment is absolute and cannot be opted out of in any circumstances.
Treatment must attain a "minimum level of severity"
to fall within Article 3 ECHR. The assessment of the minimum is
relative and depends on all the circumstances of the case such
as the nature and context of the treatment that is in issue.
[414]
40. The European Court of Human Rights has defined
inhuman and degrading treatment as:
[…] "ill-treatment" that attains
a minimum level of severity and involves actual bodily injury
or intense physical or mental suffering […] Where treatment
humiliates or debases an individual, showing a lack of respect
for, or diminishing, his or her human dignity, or arouses feelings
of fear, anguish or inferiority capable of breaking an individual's
moral and physical resistance, it may be characterised as degrading
and also fall within the prohibition of Article 3 […] The
suffering which flows from naturally occurring illness, physical
or mental, may be covered by Article 3, where it is, or risks
being, exacerbated by treatment, whether flowing from conditions
of detention, expulsion or other measures, for which the authorities
can be held responsible.[415]
41. The UK High Court has held that Article 3 brings
out "[…] the enhanced degree of protection which may
be called for when human dignity at stake is that of someone who
is […] so disabled as to be critically dependent on the help
of others for even the simplest and most basic tasks of day to
day living."[416]
Right to life
42. The first sentence of Article 2 ECHR provides:
Everyone's right to life shall be protected by
law.
43. This right is replicated in Article 6 ICCPR.
The corollary of the right to life is the duty to protect
life. The state has a positive duty to take steps to safeguard
the lives of those within the jurisdiction.[417]
An issue may arise under Articles 2 and 14 ECHR where the
state puts an individual's life at risk through the denial of
healthcare which is available to the general population.[418]
The impact of the HRA on the dilemma for the NHS of providing
life-saving treatment in a context of limited resources is considered
below.
Equality and non-discrimination
44. The ECHR protects against unjustified discrimination
in the way that other Convention rights are enjoyed. Article
14 ECHR provides:
The enjoyment of the rights and freedoms set forth
in this Convention shall be secured without discrimination on
any ground such as sex, race, colour, language, religion, political
or other opinion, national or social origin, association with
a national minority, property, birth or other status.
45. Although there is no clear authority, we proceed
on the basis that Article 14 includes age within "other status".
In the enjoyment of any Convention right, the state is prohibited
from discriminating without objective and reasonable justification.[419]
This is an overarching principle which applies to all ECHR rights.
It encompasses both direct[420]
and indirect discrimination.[421]
Article 2(2) ICESCR contains a similar provision.
46. Unlike the ECHR, Article 26 of the ICCPR provides
a freestanding equality guarantee:
All persons are equal before the law and are
entitled without any discrimination to the equal protection of
the law. In this respect, the law shall prohibit any discrimination
and guarantee to all persons equal and effective protection against
discrimination on any ground such as race, colour, sex, language,
religion, political or other opinion, national or social origin,
property, birth or other status.
47. Protocol 12 to the ECHR extends the Convention
to provide a freestanding prohibition on discrimination. The
Protocol is designed to advance the ECHR's protection of equality
beyond the relatively limited guarantee in Article 14. The
UK Government has not ratified the Protocol. In previous
Reports, we have recommended that the Government should ratify
Protocol 12 and include it within the rights protected in the
Human Rights Act, in order to provide protection in domestic law
equivalent to the equality rights which bind the UK internationally,
such as under the ICCPR and the ICESCR.[422]
Protection / absence of protection on the grounds
of age
48. The CEHR has statutory duties to work towards
"the elimination of prejudice against" particular groups
and "enabling members of groups to participate in society."
"Age" is listed as one of these groups, along with disability,
gender (including gender reassignment), race, religion or belief
and sexual orientation. These categories have come to be known
as the "protected groups" or the "equality strands."
The groups do, however, enjoy different underlying legal protection
from each other.
49. Although older people are now protected against
discrimination in employment on grounds of age,[423]
they do not, as yet, enjoy comparable legal protection in the
following areas:
— Protection
from discrimination in the provision of goods, facilities and
services, which would include health and social care, by contrast
with race, gender, sexual orientation or disability.
— A positive duty on public bodies to
promote equality of opportunity, by contrast with race, disability
and gender.
50. The recently published consultation from the
Discrimination Law Review[424]
addresses these issues in detail and invites responses on possible
law reform.
51. In the international arena, ICESCR General Comment
No. 6 on the Economic, Social and Cultural Rights of Older Persons
includes age.
52. The new UN Convention on the Rights of Persons
with Disabilities (2006) and its Optional Protocol opened for
signature on 30 March 2007, and was signed by the UK on the same
day. They will provide protection for people with disabilities,
including older people. The Convention refers to the right
to life (Article 10), freedom from exploitation, violence and
abuse (making reference to "age-specific assistance"
and "age-specific needs") (Article 16), respect for
privacy (Article 22) and the right to health (Article 25) (with
specific reference to older persons).
53. The UN Guiding Principles on Older Persons (1991)
(UNPOP)[425] encourage
Governments to incorporate certain principles into their national
programmes "whenever possible". Of particular
relevance to this inquiry are the following principles:
- Older persons should have access
to adequate health care through the provision of income, family
and community support and self-help (Principle 1);
- Older persons should have access to health care
to help them to maintain or regain the optimum level of physical,
mental and emotional well-being and to prevent or delay the onset
of illness (Principle 11);
- Older persons should be able to utilize appropriate
levels of institutional care providing protection, rehabilitation
and social and mental stimulation in a humane and secure environment
(Principle 13);
- Older persons should be able to enjoy human rights
and fundamental freedoms when residing in any shelter, care or
treatment facility, including full respect for their dignity,
beliefs, needs and privacy and for the right to make decisions
about their care and the quality of their lives (Principle 14);
- Older persons should be able to live in dignity
and security and be free of exploitation and physical and mental
abuse (Principle 17); and
- Older persons should be treated fairly regardless
of age, gender, racial or ethnic background, disability or other
status, and be valued independently of their economic contribution
(Principle 18).
54. Although the impact of these Principles on the
UK Government, in particular on the Department of Health, has
been negligible, the Welsh Assembly has embedded the Principles
into its strategy for older people[426]
and the new Commissioner for Older People in Wales is required
to have regard to them when considering the interests of older
people.[427]
Healthcare
55. Even though the ECHR does not guarantee a right
to healthcare, the cases referred to above demonstrate the application
of Convention rights (especially the right to respect for private
life under Article 8) where people are receiving health and social
care services. The emerging jurisprudence also reflects how Convention
rights operate as a "living instrument"[428]
which changes with the times. Munby J. in the East Sussex case
observed that "the concept of human dignity may be the same
as ever, but the practical standards which require to be met are
not. Changes in social standards demand better provision for the
disabled if their human dignity is not to be impaired."[429]
56. This comment should be viewed in the light of
the recent findings of the National Audit Office on the increase
in the number of people with dementia to which we refer in Chapter
2.[430]
57. Article 12 of the ICESCR recognises the right
of everyone to the "highest attainable standard of physical
and mental health". This takes into account both
the individual's biological and socio-economic preconditions and
a state's available resources (General Comment No. 14, which further
defines the right in Article 12). States are required to
"progressively realise" this right by the adoption of
all appropriate means, including legislation, without discrimination
on any ground, including "other status" (Article 2).
This could include age (see General Comment No. 6 on the Economic,
Social and Cultural Rights of Older Persons). In particular,
Article 12 requires the creation of conditions which assure medical
service and attention to all who are sick. There is no
express reference to the rights of older persons in the Covenant,
but its provisions apply equally to all members of society.
58. The right to health is also protected in Article
5(e)(iv) of the Convention on the Elimination of all Forms of
Racial Discrimination (CERD) (1966) and Articles 11(1)(f) and
12 of the Convention on the Elimination of Discrimination Against
Women (CEDAW) (1979). The EU Charter (Article 35) provides
a right of access to preventive health care and the right to benefit
from medical treatment "under the conditions established
by national laws and practices".
59. The question of the allocation of a State's finite
resources is one which falls within the discretion given by courts
to public authorities. The European Court of Human Rights
has shown greater deference to the domestic legislature of member
states in areas of economic and social policy[431]
than it would in other areas, such as criminal procedure. Whilst
it is inappropriate for the courts to engage in redistribution
of resources, principles of non-discrimination and reasonableness
of decision-making are relevant even in the area of economic and
social policy. For example, in Nitecki v Poland,
the European Court of Human Rights considered whether the State's
refusal to fund a particular drug was discriminatory. Whilst
it ultimately found that it was not, it stated:
The Court recalls that Article 14 only prohibits
differences in treatment which have no objective or reasonable
justification. However, the Court finds such justification to
exist in the present health care system which makes difficult
choices as to the extent of public subsidy to ensure a fair distribution
of scarce financial resources. There is no evidence of arbitrariness
in the decisions which have been taken [...][432]
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