Local authorities and the Human Rights Act

John Riddell, Weightmans, Leicester

The future of the Human Rights Act 1998 (the Act) is uncertain. The government pledged to repeal it in their manifesto, but reports in The Times in August suggested that these plans would be scrapped because of the legislative burden created by Brexit. The Secretary of State for Justice, Liz Truss, has recently stated that the plans for repeal and a British Bill of Rights will go ahead.

It is difficult to know what life without the Act will look like, but we have a few clues. A radical step would be to end the jurisdiction of the European Court of Human Rights and the European Convention on Human Rights. This would be a difficult and contentious step given the fact that all members of the Council of Europe, including Turkey and Russia, recognise the convention and therefore the Court.

A more likely move would be to make the convention directly enforceable in the English courts, but to limit its effect. Chris Grayling published plans when he was Minister for Justice, in which he proposed that a triviality test would filter out some cases, and that the catch all of Article 8 – the right to respect for private and family life – would be subject to revision. The influence of Strasbourg decisions on our courts would be limited.

It seems a safe bet that it will be some time before anything happens and that the convention will remain part of domestic law and enforceable in our courts. It will continue to engage local authorities. It seems a good time, 16 years after the commencement of the Act in October 2000, to review its main provisions.

The Act lies at the heart of public life for two reasons: Section 6 makes it unlawful for a public body to act in a way which is incompatible with a convention right. If there is a breach, then proceedings can be brought against the public authority under Section 7. Public body, of course, includes local authorities.

The practical impact for local authorities is two-fold. Firstly, policies and practices need to reflect the rights embodied in the convention and the Act. Secondly, a failure to do so can lead to legal proceedings. The range of convention rights means that most local authority services are caught.

The articles that are of most relevance are:

  • Article 2, the right to life;
  • Article 3, the prohibition on torture or inhuman and degrading treatment or punishment;
  • Article 5, the right to liberty and security of person;
  • Article 6, the right to a fair trial;
  • Article 8, the right to resect for private and family life;
  • Article 9, freedom of thought,
  • conscience and religion;
  • Article 10, the right to freedom of expression;
  • Article 1 of the first Protocol, protection of property; and
  • Article 2 of the first Protocol, the right to education.

These articles have attached to local authority functions affecting, among other things, children, housing, the planning process and environmental matters.

Article 3 of the first Protocol, the right to free elections, stands by itself.

A few simple principles assist in the observance of the articles. The rights to freedom from torture and a fair trial are, for obvious reasons, absolute. Other rights are qualified, which means that it is possible for local authorities to interfere with them if it is lawful to do so. Local authorities and communities clearly could not function without these rights. For instance, rights to property and a private life are interfered
with by compulsory purchase orders, but the interference may be justified.

Articles 8, 9 and 10 all state that the interference must be in accordance with the law and necessary in a democratic society. The interference must also be proportionate, which means that it must be necessary in pursuit of the legitimate end. Interference with the right might be justified, but it still has to be done in a proportionate way.

This process provides for a three-stage test. If there are lawful grounds for the
interference with the right, then the question of necessity must be assessed. This is a matter of weighing the competing rights of the public and the individual, which is a fairly common process in English law. If that is satisfied, then one looks at the means you are employing and whether they are proportionate. It will always be useful and necessary to document this process and the justification.

We will continue to review progress on the proposed repeal of the Act and report to you with any updates. If, as seems likely, the convention is retained then we will need to continue to use the tools of legality, necessity and proportionality in reaching our decisions.