Publication type: Report
Themes: Accommodation, Criminal Justice, Discrimination, Education, Health and Social Care
Following the horrors of the Second World War, The European Convention on Human Rights was launched on the 3th of September 1953. The Convention was signed up to by many European nations, including the United Kingdom and only a handful of member states are not yet parties to it. However, many countries, the UK being one of them, decided not to incorporate it into their own legal systems at the time. What this meant was that, in those countries that had not incorporated the Convention, individuals who believed their rights to have been violated, had to go through their own country’s court system (i.e., exhaust all domestic legal avenues) before they could take the matter to the European courts. In effect, this meant that any legal challenge brought on the grounds of a human rights abuse could take up to 5 years or more to be heard.
Despite being one of the first to sign up to the European Convention on Human Rights, the UK has been one of the last to incorporate it. Incorporation means turning the Convention and the rights enshrined in it, into an Act of law enforceable within the country itself. In October 2000, the British government finally incorporated the European Convention on Human Rights into UK law in the form of The Human Rights Act 1998.
The Human Rights Act v the European Convention
The Human Rights Act 98 is not an exact duplicate of the European Convention, but a somewhat trimmed down version. Most notably, Article 13, which allows for effective remedy when convention rights have been breached, has been cut out.
This means that when the English courts find that a Convention right has been breached, they cannot change legislation so as to avoid it happening again. They must instead issue a ‘declaration of incompatibility’. It will then be up to Parliament to do something about it and reform the law. This is clearly a very serious omission and it was done so as not to give ‘undue’ power to the courts. It leaves the power to change unjust laws very firmly in the hands of the politicians.
There are also restrictions on ‘standing’. This means that only persons directly affected by a violation of human rights can take actions. This means that ‘third party actions’ (i.e., representative organisations taking a case on behalf of an individual or group) will be restricted.
How the Human Rights Act works
To claim a breach of your human rights you must firstly show that you are a ‘victim’.
“A person who cannot show that he or she is personally affected by the law to a greater extent than any other person may not claim to be a victim.”
The relevant Articles, Protocols and Clauses of the Act with regards to Travellers are as follows:
- Article 6 – Everyone in entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.
- Article 8 – Everyone has the right to respect for private and family life, his home and correspondence.
- Article 11 – Everyone has the right to freedom of peaceful assembly and to freedom of associate with others.
- Article 14* – 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.
- Protocol 1 Part 1 – Every natural or legal person is entitled to the peaceful enjoyment of his possessions.
- Clause 6 – It is unlawful for a public authority to act in a way which in incompatible with a Convention right.
- Clause 7 – A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6 (1) may – (a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or – (b) rely on the Convention right or rights concerned in any legal proceedings.
- Clause 8 – In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
*It should be noted that Article 14 is not a ‘substantive’ right. In other words, it cannot be raised on its own, but must be in conjunction with another breach. So whenever you see Article 14 raised, you will always find it partnered with another rights such as Article 6 or 8, for example.
Perhaps one of the most important factors to understand with regard to both the European Convention and the Human Rights Act is the concept of ‘proportionality’. This is the central peg on which the Act and the Convention hinge and it refers to a number of fundamental restrictions or conditions regarding the rights enshrined in the Act.
What this means is that although you may establish that your rights under the Act have been violated, the court must then decide whether or not this violation was proportionate in the individual circumstances of the case. The Act states that no restrictions shall be placed upon these rights other than:
“such as are prescribed by law and are necessary in a democratic society in the interests of national security or public safety, 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.”
Gypsies and Travellers
The most relevant Articles of the European Convention on Human Rights for the purposes of unauthorised encampments are 6, 8, 14 and Article 1 of the First Protocol.
In the case of Chapman v UK the European Court of Human Rights ((2001) 33 EHRR 18.) held that a home set up without lawful authority could still be a ‘home’ within the terms of Article 8. This is further confirmed in the Guidance. When a public authority is considering whether an interference with the right to respect for home and family life is ‘necessary in a democratic society’, they will have to ask themselves whether:
i) there is a pressing social need for it; and
ii) it is proportionate to the aim pursued.
‘Proportionality’ brings into play other matters with regard to unauthorised encampments beyond the (sometimes formulaic) duty to carry out of welfare enquiries. Public authorities will need to ask themselves a number of questions before deciding whether to take eviction action. For instance: is the land that the Gypsies or Travellers are residing on ‘inappropriate’? If they are moved on, where will they go and are there any alternative temporary/transit sites available? What provision of sites has the relevant local authority made for Gypsies and Travellers in its area? Thus it can be seen that the HRA has had the effect of broadening the scope of those matters that a public body ought to take into account before taking the step of using eviction powers.
By Marc Willer, 2 Garden Court, Temple, London and Alex Pickles, Travellers Aid Trust, 2003