The Human Rights Act (HRA)
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1 The Human Rights Act (HRA)
2 The Human Rights Act (HRA) This factsheet is part of our Your rights range. It is written for people who want to know more about the Human Rights Act 1998 and how it might help people with hearing loss. We also give information about the United Nations Convention on the Rights of Persons with Disabilities ('UN Disability Convention'). Read on to find out: What is the HRA? What is the purpose of the HRA? Which organisations does the HRA apply to? What does the HRA cover? How are cases brought under the HRA? How does the HRA differ from the Equality Act 2010? What is the UN Disability Convention on the Rights of Persons with Disabilities? Where can I get further information? If you would like this factsheet on audio tape, in Braille or in large print, please contact our helpline see front page for contact details. Disclaimer This information is not legal advice and you should not rely on it as such. You should consider taking independent legal advice from a solicitor or other qualified legal adviser. Action on Hearing Loss does not accept any liability for any action or failure to act, which you or anyone else may or may not take on the basis of the information contained in this factsheet. What is the HRA? The HRA confirms the basic human rights in the European Convention of Human Rights ( the European Convention ). This was agreed by European countries after the atrocities of the Second World War. It sets out fundamental rights to enable people to lead their lives with dignity, in freedom, and in a safe environment where people respect each other without fear of discrimination. These rights include the right to life, the right to be free from inhuman or degrading treatment, the right to a fair trial, the right to privacy and to family life, the right to education, and other rights. The HRA allows people to claim the rights given by the European Convention in the UK courts. Before the HRA came into force, if people believed their human rights under the European Convention had been breached, they had to go to the European Court of Human Rights in Strasbourg, France. This could take a long time and be quite complicated. Human Rights Act (HRA), Action on Hearing Loss Information, May
3 The HRA means that the European Convention now applies directly to all laws, including laws that came into force before The HRA also affects the way public authorities work, and the courts have to take the European Convention into consideration when deciding cases. What is the purpose of the HRA? The HRA aims to protect people's human rights. It does this by saying that: Public authorities must respect European Convention rights in all that they do. Victims can raise complaints in any existing procedure or may start proceedings under the HRA. UK courts must interpret the law in line with people's rights under the European Convention. New legislation must follow the principles of the European Convention. If a court decides that a particular piece of legislation is incompatible, it can make a 'declaration of incompatibility'. This tells parliament that the legislation does not fit with the European Convention. Which organisations does the HRA apply to? The HRA applies to public authorities. Public authorities include government departments, local authorities, courts, schools, hospitals, GP surgeries, prisons, public libraries and many more. The HRA also covers any organisation that has public functions, which means that the organisation has responsibilities to the public. Examples of organisations with public functions include the BBC and regulatory bodies such as Ofcom, the telecommunications watchdog. A regulatory body is an organisation that oversees a particular sector to make sure that companies in the sector are providing consumers with value for money and good service. The HRA also covers some activities that private organisations carry out for a public authority. For example, these activities could include providing security services to government. This now includes private and voluntary sector organisations providing residential care services that are funded by local authorities. The HRA does not cover the activities of private companies that do not carry out any public functions. Some organisations have a mixture of public and private functions, depending on their activities. For example, doctors in general practice would be public authorities in relation to their NHS functions, but not in relation to their private clients. It is important to be clear about what activity we are looking at when considering whether the HRA applies. What does the HRA cover? The HRA covers different types of human rights. Some rights are absolute. This means that they cannot be restricted. For example, the freedom from torture is an absolute right. It means that torture is never allowed. Human Rights Act (HRA), Action on Hearing Loss Information, May
4 Other rights are limited rights. These can be restricted in some situations. The right to liberty is a limited right. That means that the state can send people to prison or schools can place a detention on a pupil if necessary. Some human rights are qualified rights. This means that the right of the individual has to be balanced against the rights of others or in the interests of the wider community. For example, freedom of speech should never be used to make hateful comments about disabled people if that harms their safety and security. In this section we look at those rights that are relevant to people with hearing loss. Article 14: prohibition of discrimination Article 14 says that all the articles and the protocols under the European Convention have to be enjoyed without discrimination. This should include discrimination on the grounds of disability, including loss of hearing. It can also cover other grounds, for example, homelessness. Article 14 is not a freestanding right. It has to be combined with one of the other articles or protocols. For example, a person who is deaf could use Article 14 combined with Article 12 if they were refused fertility treatment because of their hearing loss. Example prohibition of discrimination If a person with hearing loss is not provided with communication support for their trial for example, a British Sign Language (BSL)/ English interpreter this could be a breach of Article 6 and could also be discrimination under Article 14. Article 14 is important because it can be used to support a claim that another European Convention right has been breached. Article 2: right to life Under Article 2, a public authority must do what it can to protect a person's life if the public authority is responsible for that person. Article 2 often works alongside Article 3 (freedom from inhuman or degrading treatment), particularly in relation to a person's right to access healthcare. Example right to life Article 2 can apply to the way that social services and healthcare services are provided to people with hearing loss. For example, if a local authority decided to close a residential care home, which then put the life of an elderly resident at risk, then this might be a breach of Article 2. Article 3: prohibition on torture Article 3 says that 'no one should be subjected to torture or to inhuman or degrading treatment'. Inhuman and degrading treatment can be defined quite narrowly. Not all poor or abusive treatment will be covered; ill treatment will usually have to be very severe to be covered by Article 3. Human Rights Act (HRA), Action on Hearing Loss Information, May
5 Example prohibition on inhuman or degrading treatment People with hearing loss may be attacked or insulted because of their hearing loss. If they are bullied by someone who works for a public authority, or if this bullying is done where the public authority could be expected to protect them from bullying, then this may be unlawful under the HRA. For example, if a social services department does not stop a resident of a care home being seriously abused, then Article 3 may apply. It may also cover a person with hearing loss who is in prison where they are not provided with any communication support and become isolated because of this. This might also be a breach of Article 14 (non-discrimination), and could involve issues under the Equality Act. Further examples prohibition on inhuman or degrading treatment Having medical treatment taken away or refused may breach Articles 2 or 3. Funding restrictions or a total refusal to provide treatment or community care services may also breach Articles 2 and 3. This could be a breach of community care law and could also be a breach of the Equality Act. For more information, see our range of factsheets on the Equality Act. If a sign language user with hearing loss is handcuffed from behind by the police or prison authorities, then this means that the person cannot communicate. This may be a breach of Article 3 if the arrest was unlawful or it was not reasonable in the circumstances to use handcuffs. This may also be a breach of Article 5 (right to liberty and security). Article 5: right to liberty and security Article 5 says that everyone has the right to liberty or freedom. This means that a person should not be kept by police or arrested without a good reason. It also means that no public authority can restrict a person's liberty without a good reason. Example right to liberty and security This could be relevant if a person is being kept in a residential care home against their wishes, or if they are placed in a care home rather than being allowed to live in the community. The HRA may affect people who have mental health issues and are kept in secure conditions for their own safety. The way that the police operate can be covered by Article 5, and may also involve Article 3. Article 5 says that anyone who is arrested has to be told as soon as possible, in a language they understand, why they have been arrested. This is an important issue for people who communicate using BSL. In 2003, the UK government recognised BSL as a language in its own right. Article 6: right to a fair trial Article 6 is the right to a fair trial, and applies to criminal and civil (non-criminal) trials. Article 6 says that for both criminal and civil cases, everyone has the right to a fair hearing. A hearing is when the court or tribunal makes a decision about the case. This is supposed to take place within a reasonable Human Rights Act (HRA), Action on Hearing Loss Information, May
6 time. This means that the case should be dealt with without unnecessary delay. The hearing must be in public, unless there is a good reason to restrict it; for example, if intimate details of people's private lives are being discussed, or to protect the interests of any children involved in the case. The court or tribunal must still give a reasoned judgment and do this in public. Article 6 also says that any tribunal must be independent and impartial, and has to be properly created by law, for example, the County Court or the Social Security Appeal Tribunal. This means that if you need to go to court, or someone takes you to court, the case should be dealt with by a court or tribunal that has the authority to deal with your case. Article 6 says that each person or party in a case should have the same rights as the other side: this is called 'equality of arms'. For example, if someone is charged with a criminal offence, they have the right to legal advice, which must be free if they cannot afford to pay. People also have the right to ask questions of any witness and to have enough time to prepare for the case. Example right to a fair trial One of the most important rights in Article 6 is the right to have a free interpreter if you cannot understand the language used in court. In this situation, 'interpreter' can also mean other forms of communication support, such as a lipspeaker, speech-to-text reporter or electronic notetaker, as well as a BSL/ English interpreter. Although this is in the part of Article 6 that only deals with criminal trials, it can apply to civil trials as well. Article 6 could be used alongside the Equality Act, as this requires courts and tribunals to make reasonable adjustments so that disabled people can properly bring and defend cases. For example, people with hearing loss who need communication support, such as a BSL/ English interpreter or lipspeaker, must have this provided free to them. When a person is accused of a crime, they have the right to be told quickly and in a language that they understand. So, for example, a person with hearing loss might need to be told in BSL what they are accused of. Article 6 may also give a person with hearing loss the right to a BSL/ English interpreter or other communication support when getting legal advice from a solicitor in a police station, or if they are appearing in court. Article 6 could have an impact on courts that hold 'paper hearings' as it says that everyone has the right to an oral (spoken) hearing. A 'paper hearing' is when the court decides what action to take in a case without having any discussions, although the people or parties involved may have written to the court to give their views. An oral hearing is when the people involved in the case go to the court and there is a discussion in court with the opportunity for them to ask questions and give information. Human Rights Act (HRA), Action on Hearing Loss Information, May
7 Article 6 could also mean that the government may have to give legal help in social security (benefits) and community care hearings. And it could cover situations where it has taken a long time for the case to be heard. Article 8: right to respect for private and family life Article 8 gives a person a right to respect for their privacy, private life, family life and home. Example privacy Privacy includes the right for a person to access information relating to their private life. This could include access to social services records, medical records and information about health hazards and risks in a particular area. Public authorities will sometimes be able to justify why they do not provide access to these records. It also means that public authorities cannot give other people information about you unless this is necessary. They must normally ask your permission first. Family life The right to respect for family life could be used where a person in a residential care home is prevented from having contact with their family. Example family life If a social worker decides to take children into care rather than enabling a parent with hearing loss to attend a parenting course (because they think that the parents can't look after the child owing to their hearing loss), then the HRA could be used to challenge that decision. The court would then look at the safety of the child, the importance of family life, the ability to provide a parenting course and other factors. Home The right to a home could be relevant if people with hearing loss are being harassed by their neighbours. It could also be used if a local authority decides to close down a care home. The right to a home could apply if a person is not housed in a suitable place, or if the local authority refuses to make or allow changes to the person's home. Article 8 could be used to challenge the actions, including a failure to act, by central or local government for example, to provide community care services or health care. Local authorities have duties towards disabled people, and Article 8 may be relevant to these duties. There is an overlap with the Equality Act, as it too covers services provided by public authorities. Article 10: freedom of expression Article 10 says that everyone has the right to freedom of expression. This means that a person has the freedom to have their own opinions. Freedom of expression also includes a person's right to receive information and to give information to other people. Human Rights Act (HRA), Action on Hearing Loss Information, May
8 Example freedom of expression The Equality Act requires public authorities to make sure that any information provided by them is accessible to people with hearing loss. This could include information held by libraries and museums; for example, exhibitions should be accessible. People with hearing loss must also be able to make their views known to a public authority; for example, at public meetings or MPs' surgeries. Article 10 could be used to reinforce complaints brought under the Equality Act. Article 11: freedom of assembly and association Article 11 gives people the right to hold meetings, marches and demonstrations in public places. However, the group of people must be peaceful and the public authority can say that you have to get permission to hold your gathering. The public authority can also impose restrictions on the meeting, march or demonstration; for example, if there is likely to be a serious disturbance, or to protect the rights and freedoms of other people. Example freedom of assembly and association Article 11 may protect people with hearing loss from unfair treatment from the police while taking part in marches and demonstrations. Article 12: the right to marry and to have a family Article 12 gives men and women the right to marry and to have a family. Example freedom to have a family Article 12 might be useful for people with hearing loss who are not treated fairly by their health authority for example, if a person with hearing loss or a couple with hearing loss are refused fertility treatment because of their hearing loss. Article 12 might apply if a woman is told to end her pregnancy because her baby has, or may have, hearing loss. It would also be relevant if a person is told that they should be sterilised because of their hearing loss. And Article 12 may protect a person with hearing loss who is not believed to be suitable as an adoptive parent because of their hearing loss. Article 8 can be relevant to issues under Article 12. Protocol 1: Article 1: protection of property Article 1 aims to ensure that a person's belongings are not unfairly interfered with. Article 1 guarantees a person's right to be able to enjoy their possessions, but there are two exceptions: The government can take those possessions away in some circumstances. In some situations, the government can control how someone uses their possessions. Human Rights Act (HRA), Action on Hearing Loss Information, May
9 A person's belongings could include benefits and equipment provided for a person because of their hearing loss. Example protection of property Article 1 may be useful if the government reduces or ends a benefit that people with hearing loss used to receive. For example, a young person living with their parents is provided with equipment by their local social services department. When that young person moves out of the parental home, they may have to give the equipment back. If social services do not give the person the same kind of equipment they used to have, then they may be able to use Article 1 to get the necessary equipment from social services. In some circumstances, the rights under Article 8 may be relevant to issues affecting property under Article 1 of Protocol 1. Protocol 1: Article 2: right to education Article 2 gives people a right to educational facilities and to benefit from that education. It is unlikely that Article 2 could be used by parents to insist that their child is taught in a particular language, for example, in English or in BSL, or to choose a particular school, such as a mainstream or a special school. Failure to provide special facilities for special needs children may not be a failure to provide education. Cases at the European Court of Human Rights have shown that national governments have a lot of power in this area. Example how to use the right to education Article 2 combined with Article 14 may be used to protect a child with hearing loss who is bullied at school or who is not allowed to take part in school activities, such as trips or sports events, because of their hearing loss. The Equality Act includes rights in relation to education. It may be possible to use Article 2 and Article 14 when bringing a case under the Equality Act. Protocol 1: Article 3: right to free elections Article 3 provides the right to take part in elections, including the right to vote and stand in elections. Example right to free elections It may be useful for people with hearing loss who have difficulty accessing information about elections, perhaps because the information is not available in BSL. In some circumstances, issues covered by Article 3 may also be affected by the rights under Articles 10 and 14; for example, the accessibility of information. Human Rights Act (HRA), Action on Hearing Loss Information, May
10 How are cases brought under the HRA? The HRA may make a difference to you in a number of areas. If you think that you might have a case under the HRA, you should get legal advice. There are two ways to bring a case involving the HRA: 1. You can bring a case specifically under the HRA. That is done through a 'judicial review'. 2. You can raise an HRA issue in any case, even if it has not specifically been brought under the HRA. To bring a case under the HRA, you must be a 'victim' of an unlawful act. A victim can be an individual, organisation or company. An 'indirect victim' can bring a claim if they are a close relative of the victim, if they have suffered some injury as well and the 'victim' is unable to continue the claim. You have to bring a case within one year of the unlawful act by the public authority. The court can extend this if it thinks that is fair. However, in some cases the time limit will be less than a year. For example, if the case is a 'judicial review', the time limit is three months. A judicial review is where the Administrative Court examines a decision made by a public body, such as a government department. The Administrative Court will look at a number of issues, including whether the public body acted irrationally or unreasonably. It can be quite difficult to prove a case at judicial review. Where a case is successful, a court can make any remedy that it thinks is right. This could include awarding money, ordering the public authority to do something or to stop doing something, or just saying that the actions of the public authority are not right. The higher courts for example, the Court of Appeal, High Court or the Court of Session (Scotland) can make a 'declaration of incompatibility'. This is where the court says that an Act of Parliament goes against one or more of the European Convention rights. The government can then alter the law so that it fits in with the European Convention. You can raise an issue under the HRA in any case, even if it has not been specifically brought under the HRA. In all cases, all courts and tribunals have to consider the relevance of the HRA and the European Convention rights. Courts and tribunals are public authorities, meaning the HRA applies to them as well. How does the HRA differ from the Equality Act? The Equality Act is a practical tool to fulfil human rights. For instance, the duty to make reasonable adjustments helps public authorities to deliver equality, and this is reinforced by the Public Sector Equality Duty. Human Rights Act (HRA), Action on Hearing Loss Information, May
11 Example human rights and reasonable adjustment duty A doctor discusses different treatment options with a patient with hearing loss. She needs to communicate effectively so that the person with hearing loss can make an informed decision. This is important because if the doctor does not enable a patient to make an informed decision, this may be degrading treatment. There would be no respect for a person s dignity or their ability to make decisions (autonomy), which puts the patient in an unequal position. Under the Equality Act, the doctor makes a reasonable adjustment, which is the use of appropriate communication support. Further example human rights and reasonable adjustment duty Without the HRA, it might be deemed a reasonable adjustment to use a child as an interpreter (for example, a son or daughter) if it overcomes the communication barrier. However, this scenario raises issues of privacy and family life under the HRA and is therefore unlikely to be allowed as a reasonable adjustment. There are also situations where the HRA may be a more useful tool. For example, the HRA also applies to situations where there is no less favourable treatment because a service is specifically aimed at people with hearing loss, such as social services for people with hearing loss. What is the UN Disability Convention on the Rights of Persons with Disabilities? The UK government ratified the UN Convention on the Rights of Persons with Disabilities on 8 June It commits the UK government to respecting and promoting human rights for disabled people, including people with hearing loss. For example, it requires our government to promote accessible information and communication. The UN Disability Convention does not give individuals new rights. However, disabled people and their organisations can get involved in the monitoring and implementation of the UN Disability Convention and use it to influence local services or national policy. It can also be used to support cases under the HRA and the Equality Act. The UK government has signed the Optional Protocol. This means two things: Individuals or groups of individuals can bring petitions to the UN Committee that has been established to monitor implementation of the UN Disability Convention if they believe that their rights under the convention have been breached. The UN Committee can undertake inquiries if they believe that there may be grave or systematic violations of UN Disability Convention rights. For more details, see the Equality and Human Rights Commission and Office for Disability Issues contact details on the next page. Human Rights Act (HRA), Action on Hearing Loss Information, May
12 Where can I get more information? It will not always be easy to understand the exact effect of the HRA or what to do about it in a particular situation. In many cases, you will need to get legal advice. The Equality and Human Rights Commission (EHRC) Provide free information to people about human rights and may be able to take legal action. They have also published a guide to the UN Disability Convention, which is available on their website. England: Freepost RRLL-GHUX-CTRX, Arndale House, Arndale Centre, Manchester M4 3EQ Telephone Textphone Fax Scotland: Freepost RRLL-GYLB-UJTA, The Optima Building, 58 Robertson Street, Glasgow G2 8DU Telephone Textphone Fax Wales: Freepost RRLR-UEYB-UYZL, 3rd Floor, 3 Callaghan Square, Cardiff CF10 5BT Telephone Textphone Fax British Institute of Human Rights (BIHR) Support people to use human rights principles and standards to improve their own lives and as a tool for organisations to develop more effective public policy and practice. The BIHR does not provide advice to individuals or take up individuals legal cases. Development House, Leonard St, London EC2A 4LT Telephone info@bihr.org.uk The Human Rights Act: Our Stories website (coordinated by BIHR) Ministry of Justice The Ministry of Justice is responsible for developing human rights policy. Their website has information for the general public and for public authorities about what the HRA should do and how public authorities should behave under the HRA. Office for Disability Issues Works across government to ensure equality becomes a reality for disabled people. Their website has information about the UN Disability Convention. Human Rights Act (HRA), Action on Hearing Loss Information, May
13 Advice and representation Citizens Advice Your local Citizens Advice will give free advice. See your phonebook for your nearest bureau or do an online search at: (England and Wales) (Scotland) (Northern Ireland) The Disability Law Service (DLS) Provides free legal advice to disabled people and representation where appropriate. Ground Floor, Cavell Street, London E1 2BP Telephone Textphone Fax Law centres Law centres provide free advice and representation. The Law Centres Federation (LCF) can give you the details of your local law centre. Law Centres Federation, Kentish Town Road, London NW5 2TJ Telephone Fax Liberty Can give you free legal advice. 21 Tabard Street, London SE1 4LA Telephone or Public advice service Advice line: or Further information from Action on Hearing Loss Our helpline offers a wide range of information on many aspects of hearing loss. You can contact us for further copies of this factsheet and our full range of factsheets and leaflets see the cover page for contact details. Action on Hearing Loss Information, May 2011 The Royal National Institute for Deaf People. Registered Office: Featherstone Street, London EC1Y 8SL. A company limited by guarantee registered in England and Wales No , Registered Charity Numbers (England and Wales) and SC (Scotland). Human Rights Act (HRA), Action on Hearing Loss Information, May
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