The Review takes each article of the Convention and assesses whether government has met its negative obligations not to breach a Convention right, and its positive obligations to create laws, institutional structures and processes which enable people to enjoy their Convention rights and freedoms.
Each chapter focuses on institutional settings or activities where the evidence suggests human rights are not strongly protected. We selected these issues following consultation with voluntary sector organisations, human rights experts and academics. We focused on issues which we considered were sufficiently grave because the law, or the way an institution or process worked, affected the rights of everyone, or had an impact on the rights of a particular group of people.
The review does not assess government performance against every Convention right, as in some cases the Commission believes that there are no current human rights concerns. The Commission did not find sufficient evidence to warrant concern about freedom from punishment without law (Article 7); right to marry (Article 12); or right to an effective remedy (Article 13).
Article 2 is one of the most fundamental provisions in the European Convention on Human Rights. With very limited exceptions, it cannot be derogated from. The state must never arbitrarily take someone’s life and must also safeguard
the lives of those in its care. In addition, the state must carry out an effective investigation when an individual dies following the state’s failure to protect the right to life, or the use of force by government officials.
The idea that the right to life is a natural right has a history going back to the early Middle Ages. In Britain, the right to life is protected by a well-functioning criminal justice system. There are a number of processes and organisations
which investigate deaths involving state agents, including the police, the inquest system, the Independent Police Complaints Commission, and the Prisons and Probation Ombudsman.
Article 3 is an absolute right prohibiting torture, and inhuman or degrading treatment or punishment. The state must not itself engage in torture, or in inhuman or degrading treatment. It is also obliged to prevent such treatment happening, and to carry out an investigation into allegations that it has. The state must comply with its obligations within its territory and, in exceptional
circumstances, in different countries where it exercises effective jurisdiction.
The prohibition on torture has been part of the British common law framework since the 18th century. Today the legal framework around torture is considerably more sophisticated. It is prohibited both by civil law and by several Acts of Parliament. The UK has also ratified several international conventions prohibiting torture and ill-treatment. This framework is supported by an institutional structure of regulators, including the Care Quality Commission (CQC), the Independent Police Complaints Commission (IPCC) and Her Majesty’s Chief Inspectorate of Prisons for England and Wales (HMI Prisons).
Article 4 prohibits slavery or servitude and forced or compulsory labour. This includes forced and bonded labour, child servitude and trafficking of human beings. Article 4 is an absolute right, which imposes an obligation on the state to refrain from subjecting individuals to slavery, servitude or forced labour and to penalise and prosecute any such acts. This means that the state must have a legislative and administrative framework capable of enforcing this right. It must also investigate allegations of slavery, trafficking or forced labour.
The UK has a new and relatively strong legal framework to prevent slavery and forced labour in all their forms. There are also several agencies to monitor, investigate and prosecute cases. The issues discussed in this chapter are largely about the effectiveness of these mechanisms.
Article 5 provides that everyone has the right to liberty and security. The right set out by Article 5(1) is limited, which means there are some circumstances set out in the Article and in domestic law, in which deprivation of liberty is lawful. Any such deprivation of liberty must be necessary and proportionate and should not continue for longer than necessary. It must also be in accordance with the relevant provisions of Article 5(2) to 5(5).
Protection from arbitrary detention has been part of Britain’s common law framework since the 13th century. Today, the circumstances in which arrest and/or detention are permitted are set out in a number of Acts of Parliament and associated Codes of Practice. The UK has also ratified a number of international treaties supporting the right to liberty and security. The legality of any deprivation of liberty may be reviewed and challenged through the domestic courts. Britain has also ratified a number of international treaties supporting the right to liberty and security.
Article 6 provides that everyone has the right to a fair trial in both civil and criminal cases. A party to legal proceedings has the right to be heard by an independent, impartial tribunal, in public, and within a reasonable amount of time. Article 6 is not subject to any exceptions, though the procedural requirements of a fair trial may differ according to the circumstances.
Article 6 specifies some additional aspects of the right to a fair trial that apply in criminal cases: the accused should be informed promptly about the charges against them in language they understand; they should have sufficient time and facilities to prepare a defence; they should be able to defend themselves in person or through a lawyer of their own choosing; and they should be given legal aid if they cannot afford representation and the interests of justice require it. They should also be able to call and question witnesses in the same way as the defence.
The state is obliged to establish courts which give all those accused a fair trial, and to ensure that nobody is punished without a fair trial.
Article 8 protects the private life of individuals against arbitrary interference by public authorities and private organisations such as the media. It covers four distinct areas: private life, family life, home and correspondence.
Article 8 is a qualified right, so in certain circumstances public authorities can interfere with the private and family life of an individual. These circumstances are set out in Article 8(2). Such interference must be proportionate, in accordance with law and necessary to protect national security, public safety or the economic wellbeing of the country; to prevent disorder or crime, protect health or morals, or to protect the rights and freedoms of others.
The concept of private life in UK law is based on the classic civil liberties notion that the state should not intrude into the private sphere without strict justification. In our modern system aspects of this right are protected by several regulators and pieces of legislation, including the Data Protection Act and the Regulation of Investigatory Powers Act.
Article 9(1) protects the right of individuals to hold religious and other beliefs, and to practise them alone or with other people. It also protects people’s right to freedom of conscience, and the right to follow one’s own ethical and moral principles in one’s actions. The right to hold, as distinct from to manifest, religious and other beliefs is an absolute right.
Holding a belief may be intrinsically bound up with manifesting it, for example, through worship, teaching others, the wearing of symbols or of special clothes, or the avoidance of certain foods. The right to manifest a belief is a qualified right and its limitation is permissible if it is prescribed by law and can be justified as being necessary in a democratic society in the interests of public safety, the protection of public order, health or morals or the protection of the rights and freedoms of others.
It was not until the Human Rights Act 1998 (HRA) that legislation recognised a general legal right to religious freedom. Anti-discrimination provisions followed in 2003 and 2006 and today Britain’s Equality Act 2010 prohibit discrimination because of religion or belief in connection with employment, vocational training, education, premises and the provision of services, and by public authorities and associations.
Domestic case law on freedom of religion and belief is developing as a result of the implementation of the Human Rights Act and of domestic provisions regulating discrimination relating to religion and belief. The Commission has identified three areas in which we believe that the law should be interpreted in a way that is more strongly protective of Article 9 rights and that appropriately balances Article 9 and other rights.
Article 10 is a qualified right protecting the right to receive opinions and information and the right to express them. Freedom of expression is a cornerstone of other democratic rights and freedoms. It enables the public to participate in decision-making through free access to information and ideas. It encourages good governance, as media scrutiny of government and opposition may help to expose corruption or conflicts of interest. The state must not censor artistic, political or commercial expression unnecessarily, and must protect the exercise of the right to freedom of expression by individuals and the media.
Prior to the implementation of the Human Rights Act 1998 there was no general statutory protection of freedom of expression. Since then Article 10 has been instrumental in allowing media and thus public insight into court processes which previously took place behind closed doors. Britain also has a legal framework which protects free speech in education, for example, and which restricts it in criminal law to prevent solicitation to murder. Government has also ratified the Universal Declaration of Human Rights (UDHR) and the International Covenant on Civil and Political Rights (ICCPR) and Article 19 of both treaties protects freedom of expression. The Press Complaints Commission administers self-regulation for the press and complaints about editorial content and journalist conduct.
Article 11 is one of the foundations of a democratic society. It provides that everyone has the right to freedom of peaceful assembly and freedom of association with others. The right to freedom of peaceful assembly means the right to protest in a peaceful way. It lies at the heart of a democratic society, as peaceful protest is an important way to promote change. The right to freedom of association protects the right to join or form associations, such as political parties, as well as the right to form and join a trade union as a way of protecting one’s interests. This right is vital to the functioning of democratic societies.
Britain has a strong tradition of civil protest, but only with the Human Rights Act 1998 (HRA) were the rights to freedom of peaceful assembly and freedom of association directly and fully guaranteed in domestic law for the first time.
Britain has an extensive legal framework regulating public processions and assemblies. Freedom of association is governed in domestic law through a range of statutory provisions, including legislation giving individuals the freedom to choose whether to join a trade union and protection from discrimination if they do so.