Friday 22 November: Human Rights Act

What are human rights?

Human rights are the basic rights and freedoms that belong to every person in the world, from birth until death. 

They apply regardless of where you are from, what you believe or how you choose to live your life.

They can never be taken away, although they can sometimes be restricted – for example if a person breaks the law, or in the interests of national security.

These basic rights are based on shared values like dignity, fairness, equality, respect and independence. 

These values are defined and protected by law.

In Britain our human rights are protected by the Human Rights Act 1998.

The Human Rights Act (HRA) is a vital safety net for us all, protecting the fundamental freedoms of everyone in society. It is particularly important for people in vulnerable situations, including people with mental health or mental capacity problems, who are often denied their basic human rights. The cruelty of cases such as Winterbourne View has highlighted the indifference and abuse that people with capacity issues can be subjected to within health and social care settings. They are sobering reminders of how, when we are placed in situations where others have power over us there is potential for that power to be abused or misused which engage our most basic human rights.

There are lots of situations in everyday life where knowing about human rights can help improve people's lives. This can empower them to make decisions, ensure inclusion and participation in the community, and provide vital legal protections.

The HRA places legal duties on public authorities - including healthcare services, local authorities and social services - to respect, protect and fulfil people’s human rights in their day-to-day practice. This includes in the way they make decisions and exercise their powers and functions under different laws, such as the Mental Capacity Act and Mental Health Act. In some cases the HRA may also require positive action to protect rights. This can include protecting a person when they are known to be at risk of having certain rights abused and having the right procedures and systems in place to protect our rights.

The British Institute of Human Rights have produced Mental Health Advocacy Guides for more information. These have been co-produced with advocacy groups this guide shows how the rights and duties in the Human Rights Act can help strengthen support for people with mental health problems. It uses handy tables, flowcharts, case studies, and worked through examples

Article 2 protects your right to life

Article 2 of the Human Rights Act protects your right to life.

This means that nobody, including the Government, can try to end your life. It also means the Government should take appropriate measures to safeguard life by making laws to protect you and, in some circumstances, by taking steps to protect you if your life is at risk.

Public authorities should also consider your right to life when making decisions that might put you in danger or that affect your life expectancy.

If a member of your family dies in circumstances that involve the state, you may have the right to an investigation. The state is also required to investigate suspicious deaths and deaths in custody.

Article 5 protects your right to liberty and security

It focuses on protecting individuals’ freedom from unreasonable detention, as opposed to protecting personal safety.

You have a right to your personal freedom. This means you must not be imprisoned or detained without good reason. 

If you are arrested, the Human Rights Act provides that you have the right to:

  • be told in a language you understand why you have been arrested and what charges you face
  • be taken to court promptly
  • bail (temporary release while the court process continues), subject to certain conditions
  • have a trial within a reasonable time
  • go to court to challenge your detention if you think it is unlawful, and compensation if you have been unlawfully detained.

Article 8 protects your right to respect for your private and family life

Article 8 protects your right to respect for your private life, your family life, your home and your correspondence (letters, telephone calls and emails, for example).

Using this right - example

A physical disabilities team at a local authority decided to use support workers to help service users enjoy social activities, including visits to pubs and clubs. But when a service user asked to be accompanied to a gay pub, the scheme manager refused on the grounds that the support workers were not prepared to attend a gay venue. Considering human rights, an advocate working on behalf of the service user challenged this decision based on the right to respect for private life.

(Example provided by the British Institute of Human Rights.)

Article 8: Right to privacy

1. Everyone has the right to respect for his or her private and family life, their home and their 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 well-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.

Example case - Goodwin & I v United Kingdom [2002]

This case heard in the European Court of Human Rights explored issues for transsexual people in relation to their rights to private life and to marry. The judgment was a landmark decision for the treatment of transsexual people, a group which had not been recognised in UK law as:

  • their acquired gender
  • able to hold a birth certificate showing their acquired gender, and
  • able to marry someone of the opposite gender.

The Court ruled that this treatment violated both the right to private life and the right to marry. The UK Government later introduced the Gender Recognition Act 2004, creating a mechanism to enable all these things.

See the publication ‘Human rights, human lives: a guide to the Human Rights Act for public authorities’ for more examples and legal case studies that show how human rights work in practice.