Equality and Human Rights Commission

This is the single most comprehensive practical guide to the Human Rights Act available. It is a guide to the law but is primarily designed for managers and policy specialists; lawyers who have not specialised in human rights will also find it useful, as will frontline staff and voluntary sector bodies with an interest in human rights. The first part of the book is a question and answer checklist, prompting readers to apply human rights principles to their own roles and responsibilities. The second section explains the Act in non-legal language - how it works and the rights and obligations it contains. The book contains a wealth of case illustrations and several 'worked through' practice examples.

The HRA is a valuable management tool and a framework for decision-making. It can support public sector staff to:

• ensure that the rights of the individual are balanced against those of others (including staff) and the interests of the community
• understand where resources may need to be targeted by identifying people whose perspectives might not previously have been considered
• demonstrate to people using services that the decision making process is objective, and
• assess and manage risk, protecting organisations against allegations that they have not considered people's rights.

The Human Rights Act as a management tool

This toolkit presents the Human Rights Act (HRA) as a management tool and a framework for decision-making. Its premise is that the Act is not burdensome, as it is sometimes perceived, but can support public sector staff to:

• ensure that the rights of the individual are balanced against those of others (including staff) and the interests of the community
• understand where resources may need to be targeted in the future by identifying people whose perspectives might not previously have been considered
• demonstrate to people using services that the decision making process is objective, and
• assess and manage risk, protecting your organisation against allegations that it has not considered people's rights.

Using the toolkit

The toolkit is designed to address practical problems facing public services managers and practitioners and to give them greater confidence in their decision-making. It is not intended to make them 'act like a lawyer'.

The toolkit contains a question-and-answer checklist, written in note form using non-specialist language - as if by a manager or after a team discussion. The checklist format is designed to be reproduced in real life settings since, in the case of a legal challenge under the HRA, it can demonstrate that human rights principles were considered when a policy or process was drafted or a decision taken.

There are also two 'mini-checklists' focusing on particularly important aspects of the HRA:

• the decision making process, focusing on the principles of procedural fairness, and
• discrimination, explaining when differential treatment of a group of people is or isn't justified

The checklists can be used to:

• understand the HRA as a set of values and principles
• draft new policies and procedures
• audit existing ones
• inform a service review or other inspection
• think through complex judgments in your everyday work
• make decisions that you can demonstrate are compliant with the HRA, and
• decide when you need to seek legal advice

They may also challenge you to think differently and to test your assumptions about your service or your own responsibilities.

The toolkit also provides two worked case examples. The first concerns a planning process and illustrates the application of HRA principles to day-to-day decision making and the design of a consultation process. The other sets out a scenario involving the re-housing of a sex offender and his family; it illustrates the balancing of rights and the use of human rights to manage risk.

The main checklist

The main checklist contains five steps - each of which is a prompt to consider human rights principles:

Step 1 - identify the decision, policy or process being developed: why is it needed and what is its purpose?

Step 2 - identify the specific human rights affected and who might claim those rights

Step 3 - identify whether a public authority has a "positive obligation" to protect human rights

Step 4 - consider whether the policy or procedure may restrict someone's rights and whether the restriction is justifiable

Step 5 - consider the organisational aspects of your policy or procedure: who has been consulted and how will people get the necessary training or information to ensure it works in practice?

What is a positive obligation?

Public authorities have a 'positive obligation' not just to refrain from harm, but also to take proactive steps to prevent harm, no matter who or what is causing it.

The obligation that public authorities have to protect and promote rights is one of the most important - and yet frequently overlooked - responsibilities under the HRA.

This toolkit is particularly useful in explaining how positive obligations come into play in everyday situations.

Positive obligations apply to all rights. However, they are particularly relevant to the right to life and the right not to be tortured or subjected to treatment or punishment that is inhuman or degrading; this is because these rights are 'absolute' and cannot be infringed under any circumstances.

Positive obligations are also seen as especially relevant to the right to private or family life, since this right affects people's intimate interests, physical integrity and autonomy.

The toolkit explains that positive obligations can involve:

• Providing adequate resources and support to individuals to help them protect their own rights
• Preventing breaches of human rights; for example, intervening to protect one individual from the actions of another
• Informing individuals when their rights may be at risk - so they can make decisions to protect their own rights, and
• Responding to breaches of human rights, including investigating what has happened.

The toolkit describes how human rights can be applied to risk management: a public authority should ask itself, what is the worst thing that could reasonably be predicted to happen, and will my actions mitigate that risk? However, it makes clear that there are limits to what can be predicted and there is no expectation that policies should be designed to respond to unforeseeable events.

Balancing rights

The toolkit supports managers to balance different people's rights and to know when one person's rights can be restricted to protect those of others.

It sets out the precise objectives for which restrictions are permitted; they include things like protecting public health or safety, preventing crime and protecting the rights of others.

Restrictions must:

• have a clear legal basis that staff and service users can know about and understand
• have a legitimate aim - that is, an aim set out in the text of the HRA itself
• be necessary 'in a democratic society' - usually to protect the rights of others
• be proportionate - going only as far as necessary to achieve the objective, and
• not discriminate against a particular group of people.

The toolkit highlights the principle of proportionality as lying at the heart of the human rights framework. To decide whether restrictions on a right are proportionate, managers must ask themselves:

• Are there reasons for the restriction?
• Is there a less restrictive alternative that could apply?
• Have I considered the rights of those affected?
• Is there anything left of the right once the restriction is in place?

The toolkit examines specific rights and gives case illustrations of restrictions - drawn from a wide range of sectors - explaining why they are or are not justified in the circumstances.

Related equality messages (if applicable)

The toolkit contains substantial information about discrimination, including a 'mini-checklist' explaining when differential treatment of a group of people is or isn't justified.

Date of review

April 2011

We hope that you found the resource helpful and easy to use. Please let us know about other guidance or references that you think we should include. Send us your feedback.