OPERATIONAL GUIDANCE

HUMAN RIGHTS ACT 1998

OVERVIEW

OG 71 A1-20 February 2002

Purpose: This guidance gives a brief introduction to the European Convention on Human Rights, the Human Rights Act 1998 and its relationship with the Data Protection Act 1998 and Freedom of Information Act 2000. It contains the "golden rules" which, if followed, can help us achieve compliance with this legislation without having a detailed knowledge of each Act. However, it is not a substitute for reading the detailed guidance.

Divisional responsibility

For action:

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For information:

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Contents

1. The importance of the Human Rights Act
2. The combined effect of data protection, freedom of information and human rights (the "Golden Rules")
3. A new culture of civil rights
4. What is the European Convention on Human Rights?
5. What is the Human Rights Act?
6. Who does the Human Rights Act apply to?
7. Who can bring human rights challenges?
8. Can human rights challenges be made retrospectively?

Meaning of expressions - list of Glossary terms used in this Guidance
Index to further related information

1. The importance of the Human Rights Act

The Human Rights Act will affect us all in one way or another. As agents of the Charity Commission we must respect the rights and freedoms of people and organisations that we deal with as set out in the European Convention on Human Rights and, individually, we are each entitled to enjoy those same rights and freedoms either as employees or as citizens.

The Human Rights Act has been heralded as one of the most significant pieces of constitutional legislation enacted in the United Kingdom. It is a key part of the Government’s programme to encourage a modern civic society where the rights and responsibilities of citizens are clearly recognised and properly balanced.

It is important that we all understand what are our rights and responsibilities and those of the people and organisations that we deal with in the conduct of our work.

2. The combined effect of data protection, freedom of information and human rights (the "Golden Rules")

The Human Rights Act has quite a broad focus and is complemented by the Data Protection Act 1998 and the Freedom of Information Act 2000. The Data Protection Act reflects the human right to privacy for example. The Freedom of Information Act will encourage greater openness by public authorities, which in turn helps to ensure the human right to fairness in decision making. Together these Acts will help to establish a new culture of civil rights in the UK.

It can be difficult and confusing to try and consider all aspects of the Data Protection and Human Rights Acts together with the existing principles of Open Government and the effects of the Freedom of Information Act 2000 when it comes into force at the same time and during the conduct of our work. However, there are some basic guiding principles which emerge from all of this legislation. It is possible to help achieve compliance without having a detailed knowledge of each Act by following these "golden rules".

The "golden rules" are that in everything you do:

1.

Treat everyone as you would wish to be treated: fairly, politely and without discrimination.

2.

Be open in all your work, while respecting justifiable confidentiality. Only ask for personal information if you really need it and do not disclose it to others without good reason.

3.

Make sure all decisions (especially those that deny someone something) can be seen to be fair and reasonable:

Ensure everyone involved has had an opportunity to state their case;

Explain clearly why the decision has been taken; and

Explain how the decision can be reviewed.

4.

Never express opinions about people – orally or on paper, on computer or elsewhere - that cannot be substantiated by the facts.

3. A new culture of civil rights

The introduction of the Human Rights Act, together with the Data Protection Act 1998 and the Freedom of Information Act 2000, will bring about a new civil rights culture in the UK.

This does not mean that everyone has a right to everything in every circumstance. Nor does it mean that the individual is always right. A civil rights culture is based upon a balance of rights and responsibilities. By incorporating Convention rights into UK law, the Human Rights Act gives UK citizens a clear statement of their rights and responsibilities. It identifies rights that individuals should be able to enjoy. It also imposes responsibilities on individuals, involving important considerations about balancing their rights with the rights of others and about determining when the State can have good reason to interfere with those rights.

The basic principles that underpin a civil rights culture are:

• fairness and impartiality;

• openness;

• accountability;

• respect for the individual;

• balancing rights and responsibilities.

4. What is the European Convention on Human Rights?

The European Convention on Human Rights is a treaty of the Council of Europe, which was adopted in 1950 and ratified by the UK in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the United Nations Declaration on Human Rights, adopted in December 1948.

An immediate aim of the Convention was to protect Europe against totalitarianism and a repeat of the atrocities of the Second World War. But the Convention is not just about torture and killing. Its general purpose has been described as being to protect human rights and freedoms and to maintain and promote the ideals and values of a democratic society. It therefore has a strong, continuing relevance. The Convention rights are given a broad interpretation rather than a strict legalistic one, so as to ensure that they are practical and effective within a changing society. This is how the European Court of Human Rights in Strasbourg has interpreted them.

The Convention rights are set out in a series of clauses known as "articles". These are set out in full OG 71 A2.

It is important to know that:

• some rights are absolute, ie they should not be interfered with by the State (eg Article 3, the prohibition on slavery and enforced labour);

• some rights are limited, ie the Convention provides explicit and finite circumstances in which the general right can be interfered with (eg Article 5, the right to liberty); and

• some rights are qualified, ie interference with them is permissible only if what is done has a basis in law, is necessary in a democratic society and is related to the permissible aim set out in the relevant Article, such as the prevention of crime or protection of public order or health (eg Article 8, the right to respect for private and family life).

Details of which Articles are absolute, limited or qualified are also set out in OG 71 A2.

This means that, in the context of some rights, there are circumstances in which it will be reasonable for a public authority to interfere with an individual’s rights, where it is justified. For example, we all have a general right to liberty but that right may be denied us if we commit a criminal offence for which we may be lawfully arrested, tried and imprisoned. What is important is ensuring that the State only interferes with someone’s human rights when it is justified and in a way that is lawful and proportionate to the intended aim.

5. What is the Human Rights Act?

Guidance on the provisions contained in the Human Rights Act can be found in OG 71 B1. Guidance on how to assess whether a piece of legislation, policy, procedure or action is compatible with the Convention rights, and what to do if there is an incompatibility, can be found in OG 71 A3.

6. Who does the Human Rights Act apply to?

This means that, as a public authority, the Charity Commission has an obligation to act compatibly with the Convention rights. As people become more aware of the implications of the Human Rights Act it is inevitable that questions will be raised about whether we are fulfilling our obligations under the Human Rights Act. It is therefore important that we all understand what effect the Convention rights have on our work and how we need to behave to ensure that we give proper consideration to those rights.

As with all public authorities, we are reviewing all the Commission’s policies and procedures to ensure that they comply with the Convention rights, in so far as it is possible for them to comply. The outcome of that review process is, and will continue to be, reflected in this and other guidance, such as the Employment Handbook. This will be an ongoing review as the interpretation of Convention rights is an evolutionary process. It will therefore need to reflect the way the UK courts give effect to the provisions of the Human Rights Act. General guidance on the way in which the Human Rights Act affects our work can be found in OG 71 B2.

But the Human Rights Act does not only apply to obvious public authorities such as those listed above. Although the term "public authority" is not defined in the Human Rights Act it will include some private organisations, large or small, central or local, that carry out functions that the Government would otherwise have to undertake. These are sometimes referred to as ‘hybrid bodies’ and include some charities and other voluntary organisations. However, it does not mean that all charities will be regarded as public authorities for the purposes of the Human Rights Act. Only those that carry out public functions for or instead of central or local authorities will fall within that definition. This might include an organisation that carries out certain statutory powers for example. In addition to its own charitable purposes, Parliament will have conferred certain powers on that charity . In respect of that aspect of its work, therefore, the charity would need to act compatibly with the Convention rights. Further guidance on the way in which the Human Rights Act might affect charities can be found in OG 71 B3.

7. Who can bring human rights challenges?

Further guidance on what to do if a human rights challenge is made can be found in OG 71 A3.

8. Can human rights challenges be made retrospectively?

The following words and phrases are defined in the Glossary of Terms:

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Human Rights Act
The Convention
Convention rights

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