Equality and Human Rights Commission

This is a guide to the Human Rights Act (HRA) written in generic terms so as to be relevant to staff working at all levels in all public authorities. It explains the origins of the HRA, the rights it enshrines and the relevance of these rights to different public authorities. It provides case studies to show how human rights work in practice. It contains a 'jargon buster' and answers to frequently asked questions, as well as details on where to find further information and useful contacts.

• When it comes to decision making, the rights of one person often have to be balanced against the rights of others or against the needs of the community.
• If you have to restrict somebody's rights, you must make sure that you are not 'using a sledgehammer to crack a nut'. Any restriction must be no greater than is needed to achieve the objective. This is called proportionality.

The handbook explains what obligations public authorities have under the Human Rights Act (HRA), which incorporated into domestic law most of the rights contained in the European Convention on Human Rights.

The handbook was designed by the Ministry of Justice in part to address some common misconceptions about the HRA. It emphasises in particular that the rights of one person cannot be used to 'trump' the right of the general public to be kept safe, as erroneous media reporting has sometimes suggested.

For each right contained in the HRA, the handbook states, in non-legal terms:

• the meaning of the right
• an explanation of key words and meanings
• the sectors and roles that the right might be relevant to
• what a public authority must do
• the principles underlying some significant legal cases
• best practice examples of the right in action

If you are looking for an accessible guide to the HRA, this handbook is likely to meet your requirements. For those who want a more comprehensive guide to using the HRA, and the principles it contains, as a decision making tool, the Human Rights Act Toolkit by Jenny Watson and Mitchell Woolf (Legal Aid Group: 2008) - on which this handbook is partially based - might be more useful.

Three types of rights

The handbook explains that there are three types of rights in the HRA:

• absolute rights, such as the right not to be subjected to torture or inhuman or degrading treatment: there is no possible justification for interference with these rights and they cannot be balanced against any public interest.
• limited rights, such as the right to liberty: these are rights that are not balanced against the rights of others, but which are limited under explicit and finite circumstances.
• qualified rights, such as the right to freedom of expression: these are rights that can be interfered with in order to protect the rights of other people or the public interest.

The human rights flowchart

The handbook contains a human rights flowchart designed to help you in applying human rights in the workplace.

It is particularly relevant when you are restricting a qualified right - either by balancing one right against another, or by balancing the rights of an individual against those of the community.

The book states that the flowchart can also be used when you are making decisions or developing policies that are previously untested.

Balancing rights

Central to the flowchart is the concept of proportionality. As the handbook notes, this principle can most easily be understood by the saying: 'Don't use a sledgehammer to crack a nut'.

This means that, when taking decisions that may interfere with a qualified right, a public authority 'must interfere with the right as little as possible, only going as far as is necessary to achieve the desired aim'. The handbook advises that once human
rights are being interfered with in a restrictive manner, you should always obtain legal advice.

The handbook explains that interference with a right may not always simply consist of an action that is not compatible with Convention rights; it may also be a failure to take action where a right places a "positive obligation" on public authorities to take positive steps to prevent the breach of that right.

What are positive obligations?

Positive obligations are one of the most important - and yet commonly overlooked - responsibilities under the HRA. 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.

This handbook offers some brief examples of when positive obligations come into play, particularly in relation to the (absolute) right to life.

A more detailed explanation of what positive obligations entail for public authorities in specific circumstances can be found in the Human Rights Act Toolkit.

Example: A local authority failed to separate four children from their mother even though it was clear that the children were being subjected to an unacceptable level of abuse and neglect over a four year period. The Court found that the authority had a
positive obligation to remove the children as soon as they became aware of abuse that might amount to inhuman or degrading treatment.
Source: Human Rights, Human Lives - a handbook for public authorities, p.11

Related equality messages (if applicable)

The handbook does not directly address issues of equality.

Date of review

April 2011

• Ministry of Justice, Making Sense of Human Rights - a short introduction - http://www.justice.gov.uk/guidance/docs/human-rights-making-sense-human-rights.pdf
• EHRC, Ours to own: Understanding human rights

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.