OG71 Human Rights Act 1998

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Policy Statement/Overview

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OG71 Human Rights Act 1998

OG71 A1 Overview - 20 February 2002

1. The importance of the Human Rights Act

The Human Rights Act will affect us all in one way or another. As agents of the Charity Commission we must respect the rights and freedoms of people and organisations that we deal with as set out in the European Convention on Human Rights and, individually, we are each entitled to enjoy those same rights and freedoms either as employees or as citizens.

The Human Rights Act has been heralded as one of the most significant pieces of constitutional legislation enacted in the United Kingdom. It is a key part of the Government's programme to encourage a modern civic society where the rights and responsibilities of citizens are clearly recognised and properly balanced.

It is important that we all understand what are our rights and responsibilities and those of the people and organisations that we deal with in the conduct of our work.

 

2. The combined effect of data protection, freedom of information and human rights (the ‘Golden Rules’ )

The Human Rights Act has quite a broad focus and is complemented by the Data Protection Act 1998 and the Freedom of Information Act 2000. The Data Protection Act reflects the human right to privacy for example. The Freedom of Information Act will encourage greater openness by public authorities, which in turn helps to ensure the human right to fairness in decision making. Together these Acts will help to establish a new culture of civil rights in the UK.

It can be difficult and confusing to try and consider all aspects of the Data Protection and Human Rights Acts together with the existing principles of Open Government and the effects of the Freedom of Information Act 2000 when it comes into force at the same time and during the conduct of our work. However, there are some basic guiding principles which emerge from all of this legislation. It is possible to help achieve compliance without having a detailed knowledge of each Act by following these ‘golden rules’ .

The ‘golden rules’  are that in everything you do:

1. Treat everyone as you would wish to be treated: fairly, politely and without discrimination.

2. Be open in all your work, while respecting justifiable confidentiality. Only ask for personal information if you really need it and do not disclose it to others without good reason.

3. Make sure all decisions (especially those that deny someone something) can be seen to be fair and reasonable:

  • Ensure everyone involved has had an opportunity to state their case;
  • Explain clearly why the decision has been taken; and
  • Explain how the decision can be reviewed.

4. Never express opinions about people - orally or on paper, on computer or elsewhere - that cannot be substantiated by the facts.

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3. A new culture of civil rights  

The introduction of the Human Rights Act, together with the Data Protection Act 1998 and the Freedom of Information Act 2000, will bring about a new civil rights culture in the UK.  

This does not mean that everyone has a right to everything in every circumstance. Nor does it mean that the individual is always right. A civil rights culture is based upon a balance of rights and responsibilities. By incorporating Convention rights into UK law, the Human Rights Act gives UK citizens a clear statement of their rights and responsibilities. It identifies rights that individuals should be able to enjoy. It also imposes responsibilities on individuals, involving important considerations about balancing their rights with the rights of others and about determining when the State can have good reason to interfere with those rights.  

The basic principles that underpin a civil rights culture are:

  • fairness and impartiality;
  • openness;
  • accountability;
  • respect for the individual;
  • balancing rights and responsibilities.

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4. What is the European Convention on Human Rights?

The European Convention on Human Rights is a treaty of the Council of Europe, which was adopted in 1950 and ratified by the UK in 1951. It was designed to give binding effect to the guarantee of various rights and freedoms in the United Nations Declaration on Human Rights, adopted in December 1948.  

An immediate aim of the Convention was to protect Europe against totalitarianism and a repeat of the atrocities of the Second World War. But the Convention is not just about torture and killing. Its general purpose has been described as being to protect human rights and freedoms and to maintain and promote the ideals and values of a democratic society. It therefore has a strong, continuing relevance. The Convention rights are given a broad interpretation rather than a strict legalistic one, so as to ensure that they are practical and effective within a changing society. This is how the European Court of Human Rights in Strasbourg has interpreted them.  

The Convention rights are set out in a series of clauses known as ‘articles’ . These are set out in full OG71 A2

It is important to know that:  

  • some rights are absolute, ie they should not be interfered with by the State (eg Article 3, the prohibition on slavery and enforced labour);
  • some rights are limited, ie the Convention provides explicit and finite circumstances in which the general right can be interfered with (eg Article 5, the right to liberty); and
  • some rights are qualified, ie interference with them is permissible only if what is done has a basis in law, is necessary in a democratic society and is related to the permissible aim set out in the relevant Article, such as the prevention of crime or protection of public order or health (eg Article 8, the right to respect for private and family life).  

Details of which Articles are absolute, limited or qualified are also set out in OG71 A2.  

This means that, in the context of some rights, there are circumstances in which it will be reasonable for a public authority to interfere with an individual's rights, where it is justified. For example, we all have a general right to liberty but that right may be denied us if we commit a criminal offence for which we may be lawfully arrested, tried and imprisoned. What is important is ensuring that the State only interferes with someone's human rights when it is justified and in a way that is lawful and proportionate to the intended aim.

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5. What is the Human Rights Act? 

The Human Rights Act introduces into UK law the rights and freedoms set out in the European Convention on Human Rights. Whilst there is nothing new about human rights, what is new is that from 2 October 2000 (the commencement date of the Human Rights Act), citizens who believe their human rights have been unreasonably interfered with can bring human rights cases in UK courts. (Previously, where our domestic law did not sufficiently protect a person's human rights, cases had to be taken to the European Court of Human Rights in Strasbourg.)  

This is further underpinned by a provision in the Human Rights Act that makes it unlawful for a public authority to act in a way that is incompatible with the rights set out in the Convention. It also provides that all new and existing legislation must, as far as it is possible to do so, be given effect in a way that is compatible with the Convention rights. However, if a public authority takes action which is based upon a piece of primary legislation, or subordinate legislation, that cannot be read compatibly with the Convention rights, then it must still apply that legislation even though it is incompatible.  

Guidance on the provisions contained in the Human Rights Act can be found in OG71 B1. Guidance on how to assess whether a piece of legislation, policy, procedure or action is compatible with the Convention rights, and what to do if there is an incompatibility, can be found in OG71 A3

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6. Who does the Human Rights Act apply to?

The Human Rights Act applies to all public authorities, such as central and local government bodies, the police, hospitals and prisons.  

This means that, as a public authority, the Charity Commission has an obligation to act compatibly with the Convention rights. As people become more aware of the implications of the Human Rights Act it is inevitable that questions will be raised about whether we are fulfilling our obligations under the Human Rights Act. It is therefore important that we all understand what effect the Convention rights have on our work and how we need to behave to ensure that we give proper consideration to those rights.  

As with all public authorities, we are reviewing all the Commission's policies and procedures to ensure that they comply with the Convention rights, in so far as it is possible for them to comply. The outcome of that review process is, and will continue to be, reflected in this and other guidance, such as the Employment Handbook. This will be an ongoing review as the interpretation of Convention rights is an evolutionary process. It will therefore need to reflect the way the UK courts give effect to the provisions of the Human Rights Act. General and more detailed guidance on the way in which the Human Rights Act affects our work can be found in OG71 B2 and C4 respectively.  

But the Human Rights Act does not only apply to obvious public authorities such as those listed above. Although the term ‘ public authority’ is not defined in the Human Rights Act it will include some private organisations, large or small, central or local, that carry out functions that the Government would otherwise have to undertake. These are sometimes referred to as 'hybrid bodies' and include some charities and other voluntary organisations. However, it does not mean that all charities will be regarded as public authorities for the purposes of the Human Rights Act. Only those that carry out public functions for or instead of central or local authorities will fall within that definition. This might include an organisation that carries out certain statutory powers for example. In addition to its own charitable purposes, Parliament will have conferred certain powers on that charity . In respect of that aspect of its work, therefore, the charity would need to act compatibly with the Convention rights. Further guidance on the way in which the Human Rights Act might affect charities can be found in OG71 B3.

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7. Who can bring human rights challenges?

Only ‘ victims’  of human rights violations can bring proceedings under the Human Rights Act. This means that only a person or group of individuals or non-governmental organisation that is directly affected by an act or decision (or lack of action) by a public authority can bring a human rights challenge. An indirect victim (ie a spouse or close relative or personal representative of the victim) can bring a human rights challenge if the victim is dead or otherwise unable to bring proceedings themselves. If the action or lack of action has no impact on someone personally, or has only a very indirect impact on them, they cannot bring proceedings under the Human Rights Act.  

Further guidance on what to do if a human rights challenge is made can be found in OG71 A3.

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8. Can human rights challenges be made retrospectively?  

In general, human rights cases must start within a period of one year beginning with the date on which the act complained of took place. However, if a public authority is bringing a case against an individual (for example, in a criminal trial) or if the court considers it reasonable in all the circumstances, people can rely on breaches of their human rights which took place more than one year previously.

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OG 71 A2 - THE EUROPEAN CONVENTION ON HUMAN RIGHTS 18 September 2000

 

Article 2: RIGHT TO LIFE (Absolute)

1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.  

 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;  

(b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

 

Article 3: PROHIBITION OF TORTURE (Absolute) 

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

 

Article 4: PROHIBITION OF SLAVERY AND FORCED LABOUR (Absolute)  

1. No one shall be held in slavery or servitude.  

2. No one shall be required to perform forced or compulsory labour.  

3. For the purpose of this Article the term ‘ forced or compulsory labour’ shall not include:

(a) any work required to be done in the ordinary course of detention imposed according to the provisions of Article 5 of this Convention or during conditional release from such detention;

(b) any service of a military character or, in case of conscientious objectors in countries where they are recognised, service exacted instead of compulsory military service;

(c) any service exacted in case of an emergency or calamity threatening the life or well-being of the community;

(d) any work or service which forms part of normal civic obligations.

Article 5: RIGHT TO LIBERTY AND SECURITY (Limited)

1. Everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court; 

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority on reasonable suspicion of having committed an offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so; 

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority; 

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants; 

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorised entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

2. Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and of any charge against him.

 

3. Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this Article shall be brought promptly before a judge or other officer authorised by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

 

4. Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

 

5. Everyone who has been the victim of arrest or detention in contravention of the provisions of this Article shall have an enforceable right to compensation.

 

Note: Article 5 is subject to a UK derogation relating to the situation in Northern Ireland.

 

Article 6: RIGHT TO A FAIR TRIAL (Limited)

1. In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

 

2. Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

 

3. Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and facilities for the preparation of his defence; 

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him 

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Article 7: NO PUNISHMENT WITHOUT LAW (Absolute)  

1. No one shall be held guilty of any criminal offence on account of any act or omission which did not constitute a criminal offence under national or international law at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the criminal offence was committed. 

 

2. This Article shall not prejudice the trial and punishment of any person for any act or omission which, at the time when it was committed, was criminal according to the general principles of law recognised by civilised nations.

 

Article 8: RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE (Qualified)

1. Everyone has the right to respect for his private and family life, his home and his correspondence.

 

2. 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.

 

Article 9: FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION (Qualified) 

1. Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

 

 2. Freedom to manifest one’s religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or for the protection of the rights and freedoms of others.

 

Article 10: FREEDOM OF EXPRESSION (Qualified)

 

1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

 

2. The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

 

Article 11: FREEDOM OF ASSEMBLY AND ASSOCIATION (Qualified) 

1. Everyone has the right to freedom of peaceful assembly and to freedom of association with others, including the right to form and to join trade unions for the protection of his interests.

 

2. No restrictions shall be placed on the exercise of 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. This Article shall not prevent the imposition of lawful restrictions on the exercise of these rights by members of the armed forces, of the police or of the administration of the State.

 

Article 12: RIGHT TO MARRY (Absolute) 

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

 

Article 14: PROHIBITION OF DISCRIMINATION (Qualified) 

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.

 

Article 16: RESTRICTIONS ON POLITICAL ACTIVITY OF ALIENS (Limited) 

Nothing in Articles 10, 11 and 14 shall be regarded as preventing the High Contracting Parties from imposing restrictions on the political activity of aliens.

 

Article 17: PROHIBITION OF ABUSE OF RIGHTS (Limited)  

Nothing in this Convention may be interpreted as implying for any State, group or person any right to engage in any activity or perform any act aimed at the destruction of any of the rights and freedoms set forth herein or at their limitation to a greater extent than is provided for in the Convention.

 

Article 18: LIMITATION ON USE OF RESTRICTIONS ON RIGHTS (Limited)  

The restrictions permitted under this Convention to the said rights and freedoms shall not be applied for any purpose other than those for which they have been prescribed.

 

The First Protocol

 

Article 1: PROTECTION OF PROPERTY (Qualified) 

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. 

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

 

 Article 2: RIGHT TO EDUCATION (Qualified) 

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions. 

Note: Article 2 of Protocol 1 is subject to a UK reservation.

 

Article 3: RIGHT TO FREE ELECTIONS (Absolute) 

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

 

The Sixth Protocol

 

Article 1: ABOLITION OF THE DEATH PENALTY (Absolute)  

The death penalty shall be abolished. No one shall be condemned to such penalty or executed.

 

Article 2: DEATH PENALTY IN TIME OF WAR (Limited)  

A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions. The State shall communicate to the Secretary General of the Council of Europe the relevant provisions of that law.

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OG 71 A3 INTERFERENCE WITH HUMAN RIGHTS 18 September 2000

 

1. How to ensure compatibility with human rights  

The Human Rights Act makes it unlawful for a public authority to act, or fail to act, in a way which is incompatible with the Convention rights.  

We therefore need to make sure that everything we do is compatible with those rights. It is important to remember that you need to determine first of all if you are interfering with a Convention right and then whether the extent and method of that interference is justified.  

It will not always be easy to tell if this is the case.

Certainly if anyone raises a human rights point you should seek legal advice on the matter if it is not adequately covered by this guidance. 

However, there a few questions you can ask yourself in trying to identify if you may be interfering with a Convention right.  

These are:  

Does what you are doing touch on one or more of the Convention rights?

You will need to familiarise yourself with the Convention rights to know when they might come into play. These are set out in full in OG71 A2.

Is there a victim?

For a human rights issue to be raised there must be a victim ie someone who could argue that they have suffered, or might suffer, as a direct result of an action you have taken or failed to take. Interference with a Convention right can only be claimed by the victim (or a spouse, close relative or personal representative if the victim has died or is otherwise unable to bring proceedings themselves). This means that someone who is not directly affected by an action or lack of action by a public authority (ie an observer or interested bystander) cannot bring a human rights challenge. In some cases a victim can be an organisation or an individual or group of individuals, such as in respect of Article 1 of the First Protocol: Protection of property.

A victim may also be a person who runs the risk of being directly affected by a measure. For example, this allowed a woman of childbearing age in Ireland to challenge in the Strasbourg Court the Irish law on access to information regarding abortion services. In other cases, a person is not a victim until a decision is taken, for example to deport an individual. But where there is a risk which is imminent and irremediable, proposed acts may be challenged.

Governmental organisations, such as local authorities, cannot be victims. This means that not all persons who could bring judicial review proceedings will be able to commence proceedings under the Human Rights Act.

Are there circumstances when the right can legitimately be limited or interfered with?

You will need to consult the full text of the Convention rights set out in OG71 A2 to determine this.

Does the interference meet the general criteria established by the Strasbourg authorities? In other words:

Is the action prescribed by law?

This does not just mean that the action must be lawful. How clear, accessible and foreseeable would it be to people affected by it? Is it expressed in a way that people would understand?

Does it pursue a legitimate aim?

This varies from Article to Article, the wording of which indicates where there might be a legitimate reason for interference. No restriction is ever justified, however, if it impairs ‘the very essence of a right’. For example, the Strasbourg Court has held that a temporary ban on re-marriage following divorce was disproportionate on the grounds that it impaired the very essence of the right to marry under Article 12.

Is it necessary in a democratic society?

There are three aspects to this:

  • Does it pursue a pressing social need?
  • Is the policy, procedure or action proportionate to the aims you are pursuing? Are you using a sledgehammer to crack a nut?
  • Do you have relevant and sufficient reasons for the interference?

 

2. Margin of Appreciation

In relation to some Convention rights (especially those requiring a balance to be struck between competing considerations) the Strasbourg court allows a ‘margin of appreciation’ to the domestic authorities, meaning that in certain circumstances it is reluctant to substitute its own views on the merits of a case for those of the national authorities. This ‘margin of appreciation’ is generally regarded as an international doctrine which has allowed international judicial review systems to give due weight to local political and cultural traditions, but it is not intended for use by national courts in determining Convention matters.

Whilst it would not, therefore, be appropriate for UK courts to apply a ‘margin of appreciation’ as it has been applied in Strasbourg, they may develop a similar concept when examining the merits of a decision, policy or law in the context of assessing compatibility with Convention rights. In some cases the court may itself conclude whether there are sufficient or insufficient reasons to support the decision, policy or law in question; in others it may be willing to defer to the opinion of expert decision-makers such as a government department, health authority or Parliament.

It is not yet clear how this might work in practice but factors which are likely to influence the court are:

  • The nature of the Convention right and the activity involved. (Eg whether it concerns an absolute right that the State cannot reduce or qualify. Also some rights are considered fundamental in a democratic society, such as freedom of expression and the right to a fair hearing, and the courts will require very convincing reasons and evidence to support a decision, policy or law that restricts such a right).
  • The nature of the restriction on the Convention right. (Strasbourg is more likely to defer to the State in cases where the decision, law or policy requires consideration of social, economic or political matters or relates to national security on the basis that national governments are in a better position to judge the requirements of their society and to balance competing needs).
  • Cases where the courts may not feel well placed to intervene. (For example the court may feel better placed to assess whether a violation of the right to a fair trial has occurred than a challenge under Article 2: right to life regarding the distribution of scarce resource in the health service).

It will be difficult to predict to what extent this approach might have an effect on the court’s consideration of human rights challenges but it is worth noting that it may be a factor in determining the outcome of some of these cases.

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3. What to do if someone makes a human rights challenge  

Someone may raise a human rights issue with us:

  • as a general comment in the context of an initial approach they make to us or in the course of normal correspondence;
  • in response to a specific course of action we have taken or refused to take;
  • in the context of an ongoing complaint or request for the review of a decision; or
  • by instigating legal proceedings against the Commission.

The following guidance explains what you should do in any of these eventualities. Where a human rights issue is raised which identifies a need to change an existing policy or procedure this should be dealt with in accordance with the guidance at 4 below.

 

General comments about human rights

It may be that in the course of normal correspondence someone raises the issue of human rights with us. Where this relates to actions undertaken by the Commission and is of a general nature (rather than in the context of any specific action we have or have not taken) you should consult the guidance contained in OG71 B2 and C4 ( a link will be inserted to this OG when it is published) to see if the issue has already been considered. Where it is adequately covered by the guidance you should respond in accordance with it.

 

lawyer_referIf it is not covered by the guidance you should seek advice from a legal officer, or consult Policy Division’s Human Rights Co-ordinator.

 

Some correspondents may write to us about claims that a charity’s policies or procedures interfere with human rights. The first thing to remember here is that the Human Rights Act does not apply to all charities. It only applies to those charities that undertake public functions ie functions that a charity undertakes for or instead of a central or local authority. Even where it does apply to a charity it only relates to its public functions and not to any functions that are of a private nature (ie its charitable purposes that are not undertaken under a statutory authority). Guidance on how the Human Rights Act affects charities can be found in OG71 B3.

If someone raises a human rights issue with us regarding a charity’s activities you should explain the extent to which the Human Rights Act applies to charities in accordance with the guidance in OG71 B3. If the activity about which a complaint has been made appears to concern a public function, as described in the guidance, please ask the correspondent to address their complaint to the charity or to the central or local authority that has responsibility for that function. We are only able to involve ourselves in the matter if the issue also raises a cause for concern regarding the administration or charitable purposes of the charity. For example, there may be governance, good practice or public confidence issues that we might wish to take up with the charity. Also we may become involved if the charity becomes involved in legal proceedings.

 

Human rights issues raised as a result of action we have taken or refused to take

If a human rights challenge is made as a result of a decision we have made either to take, or refuse to take, a particular course of action you should first consult the guidance in OG71 B2 and C4 ( a link will be inserted to this OG when it is published) and consider carefully whether the challenge is valid. Where it is clear that the correspondent has good cause for complaint which is of a relatively minor nature that can be easily rectified, you should take steps to do so in accordance with the guidance set out in OG71 B1 

Where the complaint is of a more substantial nature it is likely that this will be the trigger to instigate our formal complaints procedure or a request for a review of the decision. 

 

Human rights issues raised in the context of a complaint or request for the review of a decision 

It is likely that human rights issues may be raised in the course of considering a complaint about case handling or a request for the review of a decision. The initial complaint or request for a review may deal specifically with a human rights point or it may have arisen for other reasons but human rights points may also be raised. 

If a correspondent raises a human rights issue with us in the context of a complaint or request for a review of a decision then this should be dealt with by the person handling that complaint or request for a review of a decision. This will usually be one of the Customer Service Managers in the first instance.  

If they are not a legal officer they should seek legal advice on the matter at the earliest opportunity.

 

Legal proceedings  

If a correspondent advises us that they have, or are about to, instigate legal proceedings against the Charity Commission (or merely indicate that proceedings will or may be taken) in order to make a human rights challenge the matter should be referred immediately to a legal officer.

 

4. What to do if you identify a human rights issue

1. Check to see if the issue has already been considered – see OG71 B2 and C4 (a link will be inserted to this OG when it is published).

2. If it is a new issue, alert your line manager, explaining why you think an incompatibility arises.

3. Take legal advice as soon as possible.

4. Contact the Human Rights Act Co-ordinator in Policy Division to agree a course of action for addressing any incompatibility. This could involve changing a procedure or finding a way to interpret a law compatibly with the Convention rights.

5. Alert any colleagues who deal with similar issues and who could also be affected.

6. The Human Rights Act Co-ordinator will liaise with the Publications and Guidance Unit to make sure that the issue is reflected in any Operational Guidance and that it is recorded in Departmental monitoring of our compliance with the Human Rights Act.

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OG71 B1 PROVISIONS OF THE HUMAN RIGHTS ACT 1998- 18 September 2000

1. The purpose of the Human Rights Act  

The Human Rights Act 1998 is entitled:

‘An Act to give further effect to rights and freedoms guaranteed under the European Convention on Human Rights: to make provision with respect to holders of certain judicial offices who become judges of the European Court of Human Rights; and for connected purposes’.

The purpose of the Human Rights Act is to incorporate into UK law the rights and freedoms set out in the European Convention on Human Rights by ensuring that Parliament, the courts and tribunals and other public authorities give full effect to them. It means that UK courts, through their interpretation and application of the Convention, will now play a part in its ongoing evolution. (Provisions were also included in the Scotland Act, the Northern Ireland Act and the Government of Wales Act to ensure that the devolved institutions have to act in a way that is compatible with the Convention rights.)

The words ‘to give further effect to’ emphasises that the Convention is an international treaty which has already, to some extent, been given effect to by both Parliament and the judiciary. 

The Human Rights Act:

makes it unlawful for a public authority to act incompatibly with the Convention rights and allows for a case to be brought in a UK court or tribunal against the authority if it does not do so. However, a public authority will not have acted unlawfully under the Human Rights Act if, as a result of a provision of primary legislation, it could not have acted differently;

  • requires all legislation to be interpreted and given effect as far as possible compatibly with the Convention rights. Where it is not possible to do so, a court may:
    • quash or disapply subordinate legislation; or
    • if it is a higher court, make a declaration of incompatibility for primary legislation. This triggers a new power that allows a Minister to make a remedial order to amend the legislation to bring it into line with the Convention rights;
  • requires UK courts and tribunals to take account of Strasbourg case law (ie the case law of the European Court of Human Rights and the European Commission of Human Rights in Strasbourg, and the Committee of Ministers of the Council of Europe). They will also be bound to develop the common law compatibly with the Convention rights.

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2. The main provisions of the Human Rights Act

The following gives a brief outline of the provisions of the Human Rights Act.

 

Section 1: Convention rights and power to amend the Human Rights Act

Section 1 specifies which of the Convention rights are covered by the Human Rights Act. It also provides the Secretary of State with the power to amend the Human Rights Act to reflect any changes in the UK’s obligations as a result of a ‘protocol’ (section 1 (4)).  

‘Protocols’ are additions or amendments to the Convention which may be signed and ratified by parties to the Convention.

 

Section 2: Interpretation of Convention rights 

Section 2 provides that, when determining a question which has arisen in connection with a Convention right, UK courts must take into account Convention law, which consists of judgements and declarations of the European Court of Human Rights, opinions of the European Commission of Human Rights and decisions of the Committee of Ministers of the Council of Europe. 

A fundamental principle of interpretation is that of proportionality; a fair balance must be struck between the legitimate interests of the community and the need to protect the rights of the individual.

Insofar as the question under consideration by the courts turns on issues relating to the interpretation of the common law, the current status of the Convention remains that generally there is no legal obligation on the courts to have regard to its terms when addressing issues in the common law, except where the issues relate to the interpretation of legislation when, in the cases of ambiguity, the Convention may be taken into account. However, the provisions of section 2 of the Human Rights Act, will require courts and tribunals in considering issues of common law in connection with the Convention rights now to have regard to ECHR and decisions and opinions of the European Court of Human Rights in interpreting the common law. As the court, being a public authority under section 6 of the Human Rights Act, cannot act in a way which is incompatible with a Convention right, it would seem that the common law must be construed and developed in a manner not incompatible with Convention rights. Accordingly, no matter how high the level of a previous judicial approval and no matter how old the authority, an interpretation compatible with Convention rights must prevail.  

This raises two further questions about the general doctrine of precedent applied in common law. These are:  

(i) What is the status of decisions of UK courts made before the commencement of the Human Rights Act which are otherwise binding but which (if applied) would lead to results that are incompatible with the Convention rights? and  

(ii) How does the doctrine of precedent apply to decisions of UK courts made under the Human Rights Act which are superseded by decisions and opinions of the European Court of Human Rights?  

The answer to question (i) seems to be that the Human Rights Act has generally removed the binding effect of decisions made prior to the commencement of the Human Rights Act in favour of the principle of compatibility. In other words, the UK courts would not be bound by an earlier precedent, made before the Human Rights Act came into force, if that precedent is incompatible with Convention rights.  

In the case of question (ii), the UK courts are bound under section 2(1) of the Human Rights Act to take decisions and opinions from the European Court of Human Rights into account when determining any question which arises under the Human Rights Act in connection with a Convention right. If the view of the UK court is that failure to apply the decision of the European Court of Human Rights would result in the court acting in a manner incompatible with Convention rights, then it seems to follow that the court should give precedence to the European Court of Human Rights ruling even if that means not following what would otherwise have been a binding domestic precedent. 

The implications for this on the substantive law of charity, which is largely comprised within a common law framework, would be that the courts when interpreting and applying previous decisions would not be bound by earlier precedents where to do so would be incompatible with a Convention right and would be bound to interpret all precedents in a ECHR compatible way. Given that the Commission’s role, when exercising its functions is largely predictive of and follows decisions of the courts, the Commission would, by virtue of that and by virtue of the fact that it is itself a public authority under section 6 of the Human Rights Act (and therefore it would be unlawful for it to act in a way which was not compatible with a Convention right) be bound to act in the same way.

 

Section 3: Legislation 

Section 3 provides that all legislation must, as far as it is possible to do so, be read and given effect in a way that is compatible with the Convention rights (section 3(1)). This applies to all legislation whenever enacted.  

This requirement goes far beyond the previous rule that the Convention was only to be taken into account when resolving any ambiguity in domestic legislation. The practical effect is that judges will not necessarily be bound by previous interpretations of legislation that did not take account of Convention rights.  

While section 3 applies specifically to legislation, the commencement of the Human Rights Act, as discussed above, will also have an effect on common law generally and in particular where the common law relates to the interpretation of legislation.  

The practical effect of this is that common law, both generally and in relation to interpretation of legislation, must be given effect in a way compatible with Convention rights.

 

Sections 4 and 5: Declarations of incompatibility  

Section 4 allows the higher courts, including for example the House of Lords, the Judicial Committee of the Privy Council, the High Court and the Court of Appeal, to make a ‘declaration of incompatibility’ where they find that primary legislation is incompatible with a Convention right. Such a declaration can only be made in the course of proceedings in which the court determines whether a provision is compatible. There is no right to institute proceedings solely for the purpose of obtaining such a declaration. Where a declaration is made the continuing validity and enforcement of that legislation is not affected.  

Section 5 states that when a court is considering making a declaration of incompatibility, the Crown is entitled to notice and to be joined as a party to the proceedings. This will enable a Minister to provide the court with information which may be relevant to the issue in question.

 

Section 6: Public authorities to act compatibly with the Convention rights  

Section 6 provides a wide definition of a ‘public authority’ for the purposes of the Human Rights Act. The definition includes the courts, tribunals and any persons whose functions are functions of a public nature (section 6 (3)).  

A person or organisation is not a public authority if the nature of its acts is private. In the case of bodies, such as the privatised utilities or some charities, which perform some public and some private functions, then the provisions of the Human Rights Act will apply to their public functions only. Guidance on what is a public authority for the purposes of the Human Rights Act can be found in OG71 B3.  

Section 6 also states that it is unlawful for public authorities to act in a manner which is incompatible with the rights and freedoms guaranteed by the Convention. This does not apply if the public authority could not have acted differently because of primary legislation or inevitably incompatible secondary legislation. An ‘act’ in this sense includes a failure to act but it does not include a failure to introduce legislation, make primary legislation or remedial orders.  

This is one of the cornerstones of the Human Rights Act. It does not expose public authorities to criminal prosecution but it does make them liable to the remedies available in the courts. 

It is accepted that the Charity Commission is a public authority within the meaning of this section. Accordingly, both in its consideration of the substantive law of charity and in the way it discharges its functions generally, the Commission must act in a way which is compatible with Convention rights.

 

Section 7: Proceedings under the Human Rights Act  

Section 7 provides that a person who is a ‘victim’ of an act of a public authority made unlawful by the Human Rights Act may rely on Convention rights in legal proceedings in the appropriate court or tribunal or can institute separate proceedings. Separate proceedings must be brought within one year (or less) of the date on which the act complained of took place (or after a longer period if the court or tribunal judges consider that to be fair under the circumstances). 

Shorter time periods may also apply dependant upon the nature of the proceedings in which the human rights issue is being raised. For example, if proceedings are to be brought by judicial review, then there is a shorter time limit of three months that would apply. However, if a person were out of time for bringing judicial review proceedings then they may be able to consider taking separate proceedings for a breach of human rights (not using the judicial review process) within the twelve-month period.  

‘Person’ is not defined in the Human Rights Act but the term includes individuals and groups of individuals, whether corporate or unincorporated, but only if they are an actual or potential victim of the unlawful act. It includes a spouse or close relative or personal representative of the victim, who may bring a human rights case if the victim is dead or otherwise unable to bring proceedings themselves. It does not apply to a governmental organisation. A pressure group, such as Greenpeace, has also been found not to be a victim.  

The implication of this for judicial review cases is that, ordinarily, a judicial review case can be brought by anyone with a ‘sufficient’ interest but where a judicial review case is brought alleging a breach of a Convention right the applicant must show that he or she is, or would be, a victim.

 

Section 8: Relief or remedy from the courts 

Section 8 provides that, in relation to any act of a public authority which the court finds is or would be unlawful it may grant such relief or remedy within its powers as it considers just and appropriate.  

Damages are restricted to civil proceedings as criminal courts do not have the power to award damages or compensation in respect of Convention violations. However there are other remedies open to criminal courts to grant such as staying proceedings, quashing indictments and excluding evidence.

Before damages are awarded the court must be satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made (section 8 (sub sections 3 - 4)). As often happens with decisions of the Court of Human Rights a simple finding that an unlawful act has occurred may be considered a sufficient remedy in all the circumstances. The level of damages awarded by UK courts must be commensurate with the level of damages awarded by the Court of Human Rights. Such awards usually range between £5000-£15,000.

 

Section 9: Challenging acts of courts and tribunals  

Section 9 specifies the way in which judicial acts can be reviewed and preserves the rule that judges, magistrates, court clerks, tribunal members and officers of the court are immune from legal proceedings in respect of acts done in the performance of their functions.  

However, the immunity provided by section 9 does not apply to the Charity Commission, even when taking ‘quasi-judicial’ decisions, because the Charity Commission is not constituted as a court.

 

Section 10: Amending legislation 

Section 10 provides for Parliament to remedy legislation which is incompatible with Convention rights following a declaration of incompatibility by UK courts or a finding of the European Court of Human Rights. This does not affect the validity or enforcement of the incompatible legislation, but it may trigger a fast-track procedure in Parliament for the incompatibility to be rectified where there are ‘compelling reasons’ to do so (section 10 (2)).

 

Section 11: Other rights and proceedings 

Section 11 makes it clear that the Human Rights Act does not restrict any existing rights that an individual might have under UK law or his or her right to bring proceedings under existing law.

 

Section 12: Freedom of expression  

Section 12 contains safeguards concerning court or tribunal orders (particularly injunctions) which might breach the right to freedom of expression.

 

Section 13: Freedom of thought, conscience and religion 

Section 13 obliges the courts to have particular regard to the importance of the right to freedom of thought, conscience and religion.  

Although section 13 does not apply specifically to the ‘quasi-judicial’ decisions taken by the Charity Commission it is nevertheless important that our decisions pay the same close regard to the principles in section 13 as the courts would do if they were making those decisions.

 

Sections 14-17: Derogations and reservations  

The Convention rights that are given effect to by the Human Rights Act are subject to any designated derogation. A ‘derogation’ is a reservation that the UK has attached to certain Convention rights. For example, Article 5: right to liberty and security is subject to a UK derogation relating to the situation in Northern Ireland. Sections 14-17 concern the effect of these derogations on the Human Rights Act.

 

Section 18: Court of Human Rights  

Section 18 makes provision for the appointment of UK judges to the Court of Human Rights.

 

Section 19: Statements of compatibility for new legislation 

Section 19 makes provision for ‘statements of compatibility’ in respect of all new legislation proceeding through Parliament.  

When legislation is introduced into either House before a second reading, the Minister responsible must make a written statement either confirming that the provisions of the Bill are compatible with Convention rights or that he or she is unable to make such a statement but wishes Parliament to proceed with the Bill anyway.

 

Section 20: Rules and orders made under the Human Rights Act  

Section 20 contains technical provisions for the way in which rules and orders are to be made under the Human Rights Act.

 

Section 21: Interpretation  

Section 21 contains a number of important definitions and other provisions concerning interpretation, including the meaning of primary and subordinate legislation.

 

Section 22: Other miscellaneous matters  

This section deals with a number of miscellaneous matters, for example that the Act may be cited as the Human Rights Act 1998, that it binds the Crown and that it extends to Northern Ireland. It also ensures that victims can rely on their Convention rights in proceedings brought by a public authority, even if the act in question took place before section 7 (see above) came into force.

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OG 71 B2 THE CHARITY COMMISSION AND HUMAN RIGHTS - 14 March 2012

1. How does the Human Rights Act affect the Charity Commission? 

As a public authority our first duty is to carry out our statutory responsibilities in relation to charities. In addition, we now have a statutory obligation to act in a way that is compatible with the European Convention on Human Rights. This means that we need to make sure that everything we do is compatible with those rights in so far as it is possible for us to do so.  

But, as the Human Rights Act itself recognises, public authorities must act in accordance with legislation notwithstanding that it may be incompatible with the Convention rights. The Human Rights Act provides remedies for dealing with incompatible legislation where it is not possible for it to be read compatibly with the Convention rights but this does not allow public authorities to act in direct contravention of that legislation whilst it remains in force. It will be for Parliament to take steps to amend any incompatible legislation where it is appropriate to do so.  

The Charity Commission is required to act within the requirements of the Charities Act 2011, which sets out the powers and duties and responsibilities that Parliament has assigned to us.  

In acting compatibly with the Convention rights, what matters most is that an individual’s human rights are protected. In many cases this will be done through the courts. The involvement of the courts as the ultimate review body for Commission decisions is an integral part of how the Commission discharges its functions. In the case of compliance with Article 6, right to a fair trial, for example, this is an important part of our overall decision-making processes. It is neither necessary, not sensible, to consider the compatibility of each of the subcomponents of those processes, one must consider the process as a whole. (In the same way, the procedure for charging a person with a criminal offence will not fully comply with all the requirements of Article 6; it is only when one takes into account the subsequent procedures for the trial and any appeal processes that it is possible for all the requirements of Article 6 to be met).  

Nevertheless, we must ensure that the Charity Commission’s procedures are as fair and transparent as possible. Our internal procedures for dealing with requests for a review of one of our decisions (as set out in OG736), is one way in which we can help ensure that individuals have an opportunity to ask us to consider their concerns at an early stage, without the formality and cost of court proceedings.

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2. Which Articles are of most relevance to us?

The European Convention on Human Rights sets out a wide range of fundamental rights and freedoms necessary in a democratic society. All of them are of importance but there are some that have particular relevance for the work that we do. These are:

 

Article 6: Right to a fair trial 

Article 6 specifies that, in the determination of any civil right or obligation, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. 

This means that when we make decisions that may affect civil rights (such as the right to be a trustee) we must be seen to be fair and impartial. An essential aspect of this is having a clear route of appeal against decisions. To comply with Article 6 it is not necessary for each stage of the decision-making process to comply with every aspect of the Article, provided that the process taken as a whole (including the involvement of the courts for example) is compliant.  

Most of our decisions can be reviewed by the courts which enables them to comply with the requirements of Article 6. Nevertheless, we still need to take whatever steps are possible to comply with the spirit of this Article at other stages of the decision making process without simply relying upon those review processes for compliance. When taking decisions this essentially means making sure that everyone affected by it has had the opportunity to state their case, explaining clearly why a decision has been taken and explaining how the decision can be reviewed (as set out in the ‘golden rules’ in OG71 A1). 

Article 6 has many implications for us in respect of the way in which we take decisions. This is therefore considered in more depth in OG71 C1 which includes the model rules to be followed when taking or reviewing any decision.

 

Article 8: Right to respect for private and family life  

Article 8 specifies that everyone has the right to respect for their private and family life, their home and correspondence.  

The principles underpinning this Article are reflected in the provisions of the Data Protection Act 1998. The implications of Article 8 are wide reaching but it is also one of the Articles where there are circumstances in which a person’s general right can be legitimately interfered with.  

This Article has many implications for our work. For example, it has relevance for our policies on the use by staff of internal and external communications systems and monitoring that use, access to personnel records, family friendly policies, publishing the names of removed or suspended trustees, sharing personal information with other agencies. This is therefore considered in more depth in OG71 C2.

 

Article 9: Freedom of thought, conscience and religion  

Article 9 provides that everyone has the right to freedom of thought, conscience and religion. This right includes freedom for a person to change their religion or belief and freedom, either alone or in community with others and in public or private, to manifest their religion or belief, in worship, teaching, practice and observance. Again there are limited circumstances in which this general right can be legitimately interfered with.  

Although the Charity Commission does not take any action that might prevent someone from practising a religion or belief Article 9 does have implications for us, for example in the context of registering new charities. The effect of this Article was considered in the context of the Commission’s consideration of the application for charitable status from the Church of Scientology (UK), details of which can be found on our website.  

In all cases where we may need to treat different belief systems differently it is important to seek advice from a legal officer.  

Article 9 has implications also for the Commission as an employer. For example, there could be situations where someone’s religious beliefs require or prevent them from doing something, such as wearing particular clothes or working on a Holy Day or allowing someone to pray at a certain time if their religion demands it.

 

Article 10: Freedom of expression  

The right to freedom of expression includes the freedom to hold opinions and to receive and impart information and ideas without interference by a public authority.  

‘Expression’ can cover holding views or opinions, speaking out loud, publishing articles, books or leaflets, television or radio broadcasting, producing works of art, communication through the Internet, some forms of commercial information and many other activities. It can also cover the right to receive information from others, so people can possess expression rights as a speaker and as a member of an audience. 

In some cases it can also allow freedom of expression in ways which other people may not like, or may even find offensive or shocking. However, outlawing offensive language that is insulting to particular racial or ethnic groups or restricting access to certain films, videos and publications so as to protect children would be examples of where a lawful restriction on expression might be imposed. Similarly, a person’s rights to speak out may have to be restricted to allow someone else to have a fair trial, or to let them express their religious freedom, or to enable them to keep certain information about themselves private. Consequently, this is one of the Articles where a general right can be interfered with in legitimate circumstances.  

That said, the European Court of Human Rights has acknowledged that freedom of expression constitutes an essential foundation of a democratic society and is particularly important where the press is concerned. This would include allowing the media freedom to criticise the government or other political parties and it must be able to report news and current affairs fearlessly.  

But the Convention does recognise that there are circumstances in which it is right for that freedom to be restricted. Charities have an important role to play in informed political debates in areas that concern the work that they do. Although an organisation established for political purposes could never be a charity, the trustees of a charity may do some things of a political nature as a means of achieving the purposes of the charity. But the dividing line between proper debate in the public arena and improper political activity is a difficult one to judge. Our guidance on political activities by charities, drawn from the principles established by the Courts, suggests that any political activity undertaken by trustees must be in furtherance of, and ancillary to, the charity's stated objects and within its powers.  

There are also implications for the Commission as an employer, for example in relation to dress codes at work and ‘whistleblowing’ employees. Article 10 will therefore have to be taken into consideration in relation to any relevant policies prepared for the Employment Handbook.

 

Article 14: Prohibition of discrimination  

Article 14 provides that the enjoyment of the rights and freedoms set out in the Convention shall be secured without discrimination.

The Human Rights Act is not an anti-discrimination Act per se. Discrimination means treating people in similar situations differently. Article 14 provides that there shall be no discrimination in the enjoyment of the rights and freedoms set out in the Convention on any ground, including:  

  • sex;
  • race;
  • colour;
  • language;
  • religion;
  • political or other opinion;
  • national or social origin;
  • association with a national minority;
  • property;
  • birth;

other status (this is not defined but would include protection from discrimination on the grounds of sexual orientation, illegitimacy, disability, marital status and age for example). 

Article 14 only works to protect someone from differential treatment in the exercise of another Convention right. It does not provide protection from differential treatment in all areas of life. A person could not, therefore, simply claim that they have been discriminated against in a particular context and so claim a violation of their rights under Article 14. They would have to demonstrate that in the context of another Convention right they have been, or would be, treated differently from someone else in similar circumstances.  

For example, it might not be a breach of the right to respect for property (see below) for the government to impose a particular kind of tax. But if the government taxes some people but not others in the same situation then it might be a breach of Article 14 in relation to the right to respect for property. Someone might therefore challenge this by relying on their rights under Article 1 of the First Protocol (property) taken with Article 14 (discrimination).  

A similar challenge might be made of the Charity Commission if two organisations applied for registration with identical purposes and methods of operation etc both meeting the minimum requirements for registration where one is registered and the other is not.

 

Article 1 of the First Protocol: Protection of property  

Article 1 of the First Protocol provides that every natural or legal person is entitled to the peaceful enjoyment of his or her possessions. As with some of the other Articles this general right can be interfered with in certain circumstances, such as in order to secure the payment of taxes or other contributions or penalties.  

Property in this context has a wide meaning. Essentially it means anything of economic value. This might include, for example, status as a registered charity (which brings fiscal benefits and accessibility to grant aid), a charity’s name (which may have a certain standing in the community and so attracts a certain amount of goodwill), or money, land or other assets held by a charity or individual. This has implications for us in the context of our work which may involve interference with a person’s or organisation’s property. This is therefore considered in more depth in OG71 C3.

 

3. What are the implications of the Human Rights Act for different functions?  

The effect of the Human Rights Act on specific areas of our work is dealt with in more detail on OG71 C4 (a link will be inserted to this OG when it is published). The effect of Article 8, with regard to the right to privacy, in particular the use of personal information, is essentially the same as the effect of the Data Protection Act 1998.  

The following guidance sets out, in general terms, the ways in which human rights might have a bearing on the work of those Functions that are most likely to be affected.

 

Policy

The Human Rights Act has considerable implications for the work of Policy. Not so much in the way in which the Function carries out its work but in the consideration of human rights issues in the context of the work it undertakes. Policy is responsible for ensuring that the implications of the Human Rights Act are considered in all aspects of the Commission’s work. This has included monitoring the development of the Human Rights Act and leading the initial review of charity legislation and all the Commission’s policies and procedures to ensure compliance with the Human Rights Act.

The Function has a continuing role to play in monitoring the further development of the interpretation of this legislation by the Courts to ensure that the effects of this are considered in the context of our policies and procedures. This is particularly important where a new interpretation of the legislation may alter our view as to whether a certain area of our work is compliant. 

The effects of the Human Rights Act (and the Data Protection Act 1998 and proposed Freedom of Information Act) are routinely considered in the development of new or revised policy and guidance.

 

Legal Services 

Similarly, the Human Rights Act does not specifically have implications for the work of Legal Services per se but our legal professionals will need to consider the implications of the Human Rights Act in the context of policy and casework they undertake and in providing advice to operational staff, particularly in the context of any requests for a review of a decision.

Legal advice should always be sought when a correspondent raises a human rights issue with us.

 

Human Resources  

The nature of the work undertaken by HR is such that much of it involves personal information and the personal circumstances of individuals. The guidance contained in the Employment Handbook therefore needs to take particular account of human rights and data protection issues. The Human Rights Act has particular implications for:  

  • access to personnel records (Article 8);
  • policies on the use of internal communications and computer systems by staff and monitoring that use (Article 8);
  • policies on disciplinary procedures, poor performance, grievance and internal disputes procedures and managing ill health absences (Article 6);
  • policies on allowing time off in special circumstances (eg parental leave, special leave) and flexible working (Article 8);
  • the giving and receiving of confidential references (Article 8).

 

Registration  

Detailed guidance on the effect of the Human Rights Act on specific areas of the work of Registration can be found in OG71 C4 (a link will be inserted to this OG when it is published). Broadly, it will have implications for:

  • registering new charities, including ensuring that similar charities are dealt with consistently and that decisions to refuse registration are set out clearly, as are the routes of appeal. (Article 6, Article 1 of the First Protocol and Article 14);
  • the consideration of charitable status issues, especially in the context of new and developing areas such as novel status cases and the Review of the Register. (Article 9, Article 1 of the First Protocol and Article 14);
  • the refusal to register a new charity and the removal of charities from the register (Article 6, Article 1 of the First Protocol and possibly Article 14);
  • the exercise (or non-exercise) of our powers under s.42 Charities Act 2011 to require a charity to change its name. (Article 1 of the First Protocol).

 

Operations

Detailed guidance on the effect of the Human Rights Act on specific areas of the work of Operations can be found in OG71 C4 (a link will be inserted to this OG when it is published). Broadly, it may have implications for:  

  • appeals against a decision not to grant a waiver of the disqualification of a charity trustee (Article 6);
  • any decisions that involve the transference or disposal of charity property (Article 1 of the First Protocol);
  • decisions concerning requests for our consent to changes to a charity’s memorandum and articles of association (Article 6);
  • refusals made under s.106 Charities Act 2011 to make an order authorising charity trustees to grant an ex-gratia payment or waive their entitlement to receive property (Article 6);
  • decisions involving the determination of questions under our own schemes (Article 6 and Article 1 of the First Protocol);
  • our handling of disputes cases (Article 6).

 

Investigations and Enforcement 

Detailed guidance on the effect of the Human Rights Act on specific areas of the work of Investigations and Enforcement can be found in OG71 C4 (a link will be inserted to this OG when it is published). Broadly, it will have implications for:

  • the conduct of inquiries (Article 6 and Article 8);
  • the exercise of our powers under s.46 and s.52 Charities Act 2011 to require any person to provide information (Article 6 and Article 8);
  • the suspension or removal of charity trustees and employees (Article 6 and Article 8);
  • decisions to prevent the disposal of, or access to, property (Article 6 and Article 1 of the First Protocol);
  • the use of any remedial sanctions which can only be appealed with our certificate. 

(It is important that case officers pay particular regard to the principles of Article 6 in considering giving a certificate for such an appeal and should always seek legal advice before making such a decision.)

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OG 71 B3 CHARITIES AND HUMAN RIGHTS - 18 September 2000

 

1. Background

The Human Rights Act makes it unlawful for public authorities, including private bodies that carry out public functions, to act in a manner that is incompatible with the rights and freedoms that are guaranteed by the European Convention on Human Rights.  

This will include some charities and voluntary organisations. This guidance looks at how the Human Rights Act affects them.

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2. What is meant by 'public authority'?  

The Human Rights Act deliberately does not explain the meaning of 'public authority' or 'public function' in detail. It will be for the courts to interpret the Human Rights Act and to decide what are 'public authorities' and what are not. Parliament is specifically excluded from the definition, apart from the House of Lords when sitting as a court.  

Although the term 'public authority' is not defined by the Human Rights Act it covers three broad categories:

Obvious public authorities such as a Minister, a Government Department or Agency (including the Charity Commission), local authorities, health authorities and trusts, the armed forces and the police, prison and immigration authorities and public prosecutors. (Everything these bodies do is covered by the Human Rights Act.)

Courts and tribunals.

Any person or organisation which carries out some functions of a public nature. Sometimes only part of an organisation would be considered a public authority under the Human Rights Act. Railtrack, for example, is considered a public authority in relation to its work as a safety regulator for the railways, but not when acting as a commercial property developer. (This category includes some charities.)

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3. Private bodies with public functions 

The Human Rights Act applies to private bodies that have some public functions. Examples of such bodies include:  

  • privatised utilities that exercise public functions;
  • regulatory bodies;
  • professional bodies in their regulatory capacities;
  • charities and voluntary organisations which carry out public functions for central or local authorities. (For example running residential homes);
  • private or independent schools;
  • private companies managing contracted out prisons;
  • bodies which are legally public corporations.

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4. Key Characteristics of a public authority

In some cases it may be difficult to know if a body is a public authority for the purposes of the Human Rights Act. Organisations may need to take legal advice to clarify this, but the characteristics of a public authority would include:  

  • whether the body performs or operates in the public domain as an integral part of a statutory system which performs public law duties;
  • whether the duty performed is of public significance;
  • whether the rights or obligations of individuals may be affected in performance of the duty;
  • whether an individual may be deprived of some legitimate expectation in performance of the duty;
  • whether the body is non-statutory but is established under the authority of a national or local government body;
  • whether the body's work is supported by statutory powers and penalties;
  • whether the body's work involves regulating the activities of the public or section of the public;
  • whether the body performs functions that national or local government bodies or a health authority would otherwise perform;
  • whether the body is under a duty to act judicially in exercising what amounts to public powers.

Charities should carefully consider their functions and the legal powers and duties of their organisation - these are important in determining whether a person or body is a public authority for the purposes of the Human Rights Act.

Please note the Charity Commission cannot decide whether or not a body is a public authority.

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5. Charities with public functions

Charities do not fall within the definition of a public authority for the purposes of the Human Rights Act by virtue of their being charities. Some charities that appear to be aimed at the individual may in fact be carrying out a public function if they are doing work that would normally be the responsibility of central government or a local or health authority. Many charities and voluntary organisations carry out public functions, either on behalf of, or in partnership with, other authorities. In many cases local authorities have stopped carrying out certain public functions themselves and have entered into contracts with private organisations to carry them out for them. Many of these organisations are charities.  

The work a charity does for or on behalf of another authority will be considered a public function for the purposes of the Human Rights Act. Such work must be carried out in a way that is compatible with human rights. As it appears likely that local government work will continue to be entrusted to charities in this way, more and more voluntary and charitable activity will fall within the scope of the Human Rights Act.  

Examples of charities with public functions might include:  

  • residential homes;
  • hospices;
  • healthcare and advice centres;
  • child care agencies;
  • housing associations;
  • family planning, abortion advice centres.  

Although it is the functions, ie the legal powers and duties of the organisations, which are important in determining whether a person or body is a public authority for the purposes of the Human Rights Act, it is their relationship with the individual which will come under scrutiny when the Human Rights Act is applied because it gives human rights.

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6. Public functions and private acts  

If everything that a charity does can be regarded as public functions, then it will all have to be done in a way that is compatible with human rights. More commonly though, charities falling within the definition of a public authority will have some public and some private functions. Private acts are not covered by the Human Rights Act.

For example, where a charity is raising funds or recruiting staff it is probably acting privately. The point is whether the act is one which is carrying out a public function. In the case of a registered care home the delivery of the care plan is likely to be a public function; the recruitment of the staff is not. In the case of an independent school, decisions about who should supply it with stationary or equipment will be private acts; decisions about the way in which it will provide educational services in the school will be public functions.

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7. Implications for charities that fall within the scope of the Human Rights Act  

The Human Rights Act makes it unlawful for any organisation (including charities that are public authorities for the purposes of the Human Rights Act) to carry out public functions in a way that is incompatible with the rights and freedoms guaranteed by the European Convention on Human Rights.

It does not create any new offences. To act unlawfully under the Human Rights Act does not mean that a charity (or its trustees) will have committed a criminal offence. Charities do not risk prosecution if they have acted unlawfully under the Human Rights Act unless they have at the same time breached the existing criminal law.  

However, if a charity does breach the Human Rights Act it would be liable to the remedies available in the courts. Someone may bring a freestanding case against the charity under the Human Rights Act and could apply to the courts for damages against it.  

If a charity has acted unlawfully under the Human Rights Act there is the possibility that a claim could be made during the course of other litigation against it. For example, if a charity were facing some sort of negligence action it is likely that someone would say that there was also a breach of the Human Rights Act.  

Damages are restricted to civil proceedings as criminal courts do not have the power to award damages or compensation in respect of Convention violations. However there are other remedies open to criminal courts to grant such as staying proceedings, quashing indictments and excluding evidence.  

Before damages are awarded the court must be satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made (section 8 (sub sections 3 - 4)). As often happens with decisions of the Court of Human Rights a simple finding that an unlawful act has occurred may be considered a sufficient remedy in all the circumstances. The level of damages awarded by UK courts must be commensurate with the level of damages awarded by the Court of Human Rights. Such awards usually range between £5000-£15,000.  

The Human Rights Act would not apply if the charity could not have acted differently because of existing primary legislation.

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8. Convention rights most likely to affect charities  

The Human Rights Act is about human dignity above all else. This approach must be central to a charity's considerations about human rights. Some Convention rights are likely to have more impact on charities and voluntary organisations than others do. Examples of those that are likely to affect such organisations are:

 

Article 3 - Right not to be subjected to torture or inhuman treatment

This includes the right not to be subjected to degrading treatment and so could apply to organisations providing care, such as hospitals, residential homes etc.

 

Article 6 - Right to a fair trial 

This right might affect procedures for case reviews, complaints hearings, tribunals and appeals conducted by charities. It ensures that everyone has a right to a fair hearing.

 

Article 8 - Right to respect for private and family life  

This has relevance for organisations providing care homes or domiciliary care and to any organisation with a public function that holds personal information.

 

Article 9 - Freedom of thought, conscience and religion

This might affect, for example a charity running a care home where one of the patients is a Muslim and wishes to wear the chadoor. The home may find this inconvenient and contrary to its policies but it could not force compliance with the policy because under Article 9 the patient has a right to manifest her religion. (On the other hand in a privately run prison a rule about what clothing could be worn would be seen as being in accordance with the law. A sensible rule on prisoners clothing could be justified as having a legitimate aim and being necessary in a democratic society.)

 

Article 2 of the First Protocol - Right to education

 

This may be relevant for issues involving special educational needs provision, access to, or expulsion or exclusion of children from, schools, and (when taken together with Article 14: Prohibition of discrimination) the provision of education which is discriminatory between sexes, races or other categories (although this is likely to mainly be an issue where adequate educational provision is not available elsewhere locally for children excluded from schools that do discriminate, such as single sex schools).

 

9. Interference with a person's human rights  

There are three rules that have to be applied if there is to be an interference with a person's rights. These are that any interference:

  • can only be "prescribed by" or "in accordance" with the law (in other words there must be clear legal rules which apply and which justify the interference);
  • must have a legitimate aim;
  • must be "necessary in a democratic society" (this implies that any interference must be as small and as reasonable as possible).

Some rights are not absolute and they can come into conflict with other rights in the Act or be subject to limitations at law. For example, a patient at a hospital following a road accident may wish to keep details of their condition private under Article 8. Newspapers may have a legitimate interest in the road accident and may wish to publish details of the injuries claiming a right to freedom of expression under Article 10. In such a case the hospital has no duty to tell the newspaper what the injuries are and should keep the details private, but if the newspaper did somehow discover what the injuries were it would be for the Courts to decide how the competing rights were to be balanced.

This can be a quite a complicated area of the Human Rights Act. If a charity's trustees think some of its procedures are in conflict with human rights they may wish to consider seeking legal advice.

 

10. Human rights challenges against charities

Some correspondents may write to us about claims that a charity's policies or procedures interfere with human rights. The first thing to remember here is that the Human Rights Act does not apply to all charities. It only applies to those charities that undertake public functions ie functions that a charity undertakes for or instead of a central or local authority. Even where it does apply to a charity it only relates to its public functions and not to any functions that are of a private nature (ie its charitable purposes that are not undertaken under a statutory authority).

If someone raises a human rights issue with us regarding a charity's activities you should explain the extent to which the Human Rights Act applies to charities in accordance with the guidance in this OG. If the activity about which a complaint has been made appears to concern a public function, as described above, please ask the correspondent to address their complaint to the charity or to the central or local authority that has responsibility for that function. We are only able to involve ourselves in the matter if the issue also raises a cause for concern regarding the administration or charitable purposes of the charity. For example, there may be governance, good practice or public confidence issues that we might wish to take up with the charity. Also we may become involved if the charity becomes involved in legal proceedings.

 

11. Human rights benefits for charities

The implementation of the Human Rights Act will bring new responsibilities for some charities, but it will also bring opportunities too. Charities themselves will enjoy the Convention rights and may be able to take advantage of them to challenge the activities of others where the rights of their organisation are being infringed. Charities can also use it as an opportunity to build the principles of human rights into their policies and procedures to help develop and implement good practice and improve attitudes and behaviour towards people that they help and work with.

 

12. Where charities can go for further information

There are a number of websites and helplines that charities may find useful. These include:

Equality and Human Rights Commission

The Council of Europe, Human Rights Directorate

The European Court of Human Rights

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OG 71 B4 FREQUENTLY ASKED QUESTIONS - 14 March 2012

 

1. Does human rights mean that the complainant is always right? 

No. In some cases people claim that their human rights have been interfered with but their claim proves to be ill founded. Sometimes, an interference with their rights may have occurred but that interference is justified and proportionate and within the accepted tolerances allowed by the Convention. If someone claims that a certain action or lack of action by the Charity Commission has interfered with their human rights we must of course take the matter seriously. If someone’s rights have been interfered with and if that interference is excessive or unjustified then we must do what we can to rectify the matter. But there are times when interference with someone’s rights is justified. Where that happens we must explain clearly why that is the case and what recourse they have to ask for a review of a decision or action we have taken where that is appropriate. It is also possible that someone may claim that his or her rights have been interfered with but it may prove not to be the case.  

It is advisable to seek legal advice when anyone claims that a human rights violation has occurred as a direct result of an action or lack of action we have taken.

 

2. Can anyone claim a human rights violation? 

All of us have rights under the Human Rights Act but only the person who is the "victim" can claim that their human rights have been violated. A "victim" is a person (or their spouse, close relative or personal representative), group of individuals or non-governmental organisation who could argue that they have suffered, or might suffer, as a direct result of an act or decision (or lack of action) by a public authority. If the action or lack of action has no impact on someone personally, or has only a very indirect impact on them, they cannot bring proceedings under the Human Rights Act. Also, for someone to claim a human rights violation they have to show that it interferes with a civil right. 

For example, a person cannot claim interference with their property rights if they do not have a right to the property in the first place, as would be the case with an ex-gratia payment.

 

3. Can a Government Department or local authority be a victim?

No.

 

4. Can a charity be a victim?

A charity can be a victim where a human right applies to an organisation as well as an individual. For example, Article 9 (freedom of thought, conscience and religion), Article 10 (freedom of expression) and Article 1 of the First Protocol (protection of property) are rights enjoyed by organisations as well as individuals.

 

5. What do I do if someone says I have infringed one of their human rights?

You should establish clearly with the complainant the reasons why they think that you have interfered with their human rights and then follow the guidance set out in OG71 A3.

It is advisable to seek legal advice when anyone claims that a human rights violation has occurred as a direct result of an action or lack of action we have taken.

 

6. What if our action or decision does infringe someone’s human rights?

The decision should be reviewed in accordance with the guidance set out in OG736 and, if appropriate, such steps as are necessary to rectify the matter should then be taken.

 

7. If our action or decision does infringe someone’s human rights, will they be entitled to compensation?

Not necessarily. Claims for compensation are considered in accordance with the guidance contained in Policy Instruction G 10, supported by the up to date Treasury guidance.

 

8. If someone says that an action I propose to take will interfere with their human rights does that mean I will not be able to take that action?

Only if the action will indeed interfere with that person’s human rights and if that interference is excessive or not justified.  

It is always advisable to seek legal advice in these circumstances before taking any action.

 

9. How can I tell if I am infringing someone’s human rights? 

You should acquaint yourself with the Convention rights (set out in OG71 A2) and the guidance set out in this OG series to see where they might have a bearing. You should then consult the guidance in OG71 A3 to determine whether any likely interference is justified. If in doubt you should seek guidance from a legal officer.

 

10. If in the course of my work I do infringe someone’s human rights will I be personally liable?

The Human Rights Act applies to the Charity Commission as a public authority. If in the course of your work you carry out an action which is deemed to have interfered with someone’s human rights then, in so far as the matter could not be settled using our internal review of decisions procedures, any legal action would be taken against the Charity Commission and not the individual officer.

 

11. What should I do if someone complains that a charity has violated someone’s human rights?  

If someone raises a human rights issue with us regarding a charity’s activities you should explain the extent to which the Human Rights Act applies to charities in accordance with the guidance in OG71 B3. If the activity about which a complaint has been made appears to concern a public function, as described in that OG, please ask the correspondent to address their complaint to the charity or to the central or local authority that has responsibility for that function. We are only able to involve ourselves in the matter if the issue also raises a cause for concern regarding the administration or charitable purposes of the charity. For example, there may be governance, good practice or public confidence issues that we might wish to take up with the charity. Also, we may become involved if the charity becomes involved in legal proceedings.

 

12. What human rights do I have?  

All citizens are entitled to enjoy the rights and freedoms set out in the European Convention on Human Rights. This means that we also enjoy those same rights as employees and as UK citizens. Policies and procedures that affect us as employees (such as those that may affect our right to respect for private and family life) are therefore being developed in a way that is compatible with human rights.  

However, this does not mean that our customers are expected to act compatibly with human rights. The provisions of the Human Rights Act apply only to public authorities not to those that correspond with them.

 

13. Can people claim human rights violations for actions that occurred before 2 October 2000?  

People can claim human rights violations under the Human Rights Act within a period of one year beginning with the date on which the act complained of took place, which will include some acts which took place prior to 2 October 2000. Also, if a public authority is bringing a case against an individual (for example, in a criminal trial), or where the court considers it reasonable in all the circumstances, people can rely on breaches of their human rights which took place more than one year previously.

 

14. Can anyone claim legal aid to bring a human rights case to court?

Article 6 includes the right of access to a court or tribunal, which might include access to the financial means to bring a case to court. But Article 6 does not give an absolute right to legal aid in all civil cases where the person concerned cannot afford to bring proceedings. Legal aid in civil cases is only required by Article 6 where either the person cannot present the case themselves due to the complexity of the court proceedings and the law or where legal representation is compulsory.

 

15. The right to a fair trial (Article 6) says that people are entitled to a public hearing. What do I say if someone demands a public hearing?

The Charity Commission is not set up in the same way as a court or tribunal. It is not therefore possible for us to meet this requirement (except by taking into account any possibility of ultimate review or re-hearing of our decisions by the courts which will make the whole process compliant with Article 6).  

However, there are many opportunities for us to allow people to make personal representations to us and to allow parties to be represented and for matters to be conducted by correspondence (and where necessary meetings) involving representation. If there is a request for an oral hearing then this can usually be provided by a suitable meeting but it is not necessary for the procedure for such meetings to seek to parallel that which occurs in a court or tribunal.

 

16. If we require trustees to provide us with information or to undertake certain activities can they claim that this infringes their rights under Article 4, prohibition of forced labour?  

No. Article 4(3) states that the term "forced or compulsory labour" shall not include "any work or service which forms part of normal civic obligations".

 

17. If someone says they are being discriminated against does this mean their rights under Article 14 are being infringed? 

Not necessarily. Article 14, prohibition of discrimination does not provide protection from differential treatment in all areas of life. A person could not, therefore, simply claim that they have been discriminated against in a particular context and so claim a violation of their rights under Article 14. They would have to demonstrate that in the context of another Convention right they have been, or would be, treated differently from someone else in similar circumstances.

 

18. Does the Human Rights Act apply to a charity’s administrative provisions, such as their procedures for electing and nominating new trustees?  

Probably not. The Human Rights Act only applies to public authorities and to any public functions undertaken by private organisations. A charity’s administrative arrangements (such as the appointment of trustees) would probably be regarded as private acts rather than public functions, and so are unlikely to have to comply with human rights. However, the appointment of a trustee by a local authority would probably fall within the Human Rights Act on the basis that everything that the local authority does must comply.

 

19. Does my right to privacy under Article 8 mean that no one is allowed to read my email or intercept any other of my communications at work without my permission?  

Not exactly. There are already safeguards within the Data Protection Act 1998 and Telecommunications regulations which reflect the provisions of Article 8, to ensure that the interception of such communications is undertaken fairly and reasonably. The Regulation of Investigatory Powers Act 2000 provides a regime to govern the use of intrusive investigative techniques, including interception. This legislation reflects changes which have taken place in the communications industry over the last 25 years, and will ensure that the statutory basis for the use of such techniques is fully compliant with the requirements of the European Convention on Human Rights.  

Section 4(2) of the Regulation of Investigatory Powers Act 2000 provides for the Secretary of State to make regulations authorising businesses to make interceptions for certain evidentiary purposes without the consent of correspondents. [They also allow certain charities to monitor (but not record) calls made to their helplines.] The Regulations cover all types of communication over a public network including, for example, fax and email.  

In the meantime, guidance on the Commission’s policy on the use of e-mail and other forms of communication by members of staff and the monitoring of that use is contained in the Employment Handbook.

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OG71 C1 ARTICLE 6 - RIGHT TO A FAIR TRIAL - 14 March 2012

 

1. Key features of Article 6

The full text of Article 6 is set out in OG71 A2. It ensures that, in the determination of any civil right or obligation a person is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law.  

This is a key feature of a democratic society and includes:

 

Access to a court or tribunal

This allows people to challenge decisions taken by a public authority whose procedures fail to satisfy Article 6. However, the whole process needs to be considered. If the original decision is taken by a public authority whose procedures do not satisfy Article 6, the requirement may nevertheless be met if that decision can be reviewed (in the form of an appeal on both facts and law) by a court or tribunal that does satisfy Article 6. If the conditions of Article 6 are met by the original decision, it is not necessary to provide for an appeal. But if they are not met by the original decision then an appeal process that does meet those conditions may be necessary to ensure that the whole process (taking into account the appeals processes) is compliant.  

The right to a court or tribunal is not absolute, but restrictions on it must not impair the essence of the right. For example, the system should not be set up in such a way as to prevent access to a court or tribunal, by creating inadequate time limits or not providing for the giving of notice of decisions. However, the European Court of Human Rights has accepted that some people can be restricted from bringing cases, ie prisoners, litigants who keep bringing cases without merit, bankrupts, minors, people who are not within a time-limit or limitation period for bringing a case and other people where there is a legitimate interest in restricting their rights of access to a court, provided that the limitation is not more restrictive than necessary.  

Access to a court might include access to the financial means to bring a case to court. Article 6 does not give an absolute right to legal aid in all civil cases where the person concerned cannot afford to bring proceedings. Legal aid in civil cases is only required by Article 6 where either the person cannot present the case themselves due to the complexity of the court proceedings and the law or where legal representation is compulsory.

 

A fair hearing  

The requirement of ‘fairness’ is fundamental. There must be an equal and reasonable opportunity for all parties to present a case. There should be equality of arms i.e. one party should not be placed at a procedural disadvantage over the other.

 

A public hearing

The right to a public hearing protects against the administration of justice in secret and without public scrutiny. That said, it is possible in certain cases to dispense with an oral hearing (where the subject matter is of a particularly technical nature for example). It is also possible to exclude the public from the hearing (though not the judgement) where this can be justified. Judgement shall be pronounced publicly but the press and public may be excluded from all or part of the trial in the interests of:

  • public morals;
  • public order or national security in a democratic society;
  • juveniles;
  • protection of the private life of the parties; and
  • where, in the opinion of the court publicity would prejudice the interests of justice.

 

A hearing within a reasonable time 

A breach may arise if a public authority fails to organise its system so as to avoid delays, for example, by providing inadequate staff and resources to hear cases in a reasonable time.

 

An independent and impartial tribunal  

Judges or tribunal members must be free from outside pressures, and should be independent of the executive and of the parties. Impartiality is another important element of ‘fairness’. The decision-makers therefore need to show that they are free of any prejudice or bias. 

These are wide ranging and highly developed rights which cover all criminal and civil cases as well as cases heard by tribunals and some internal hearings or regulatory procedures. 

Anyone who has his civil rights determined or is facing a criminal charge is entitled to these rights.  

Anyone charged with a criminal offence has certain other rights, including the right to be presumed innocent until proven guilty and the right to be given adequate time and facilities to prepare their defence.

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2. Judicial Review  

Following the implementation of the Human Rights Act the way public authorities exercise their discretion may change. At the moment a decision may be judicially reviewed. In that process, the court considers whether the decision was reasonable ie a decision must not be so unreasonable that no reasonable decision-maker could have come to it. The Strasbourg Court imposes a different and in some cases a tougher test. It is expected that the UK courts will also look more closely at the merits of a decision when ruling on a decision’s compatibility with the Convention. The courts may take a much more rigorous approach to fact-finding, evidence and discovery on applications for judicial review. Decision-makers will be required to justify interferences and the courts will have to examine the justification more closely.  

Ministers (and other public authorities) will therefore be required to justify decisions, policy or law to a greater extent. Public authorities may be required to set out in detail the facts and reasons supporting a decision, policy or law. It will be important to show the court that they have considered the Convention rights and how they have dealt with any issues arising out of such a consideration.  

The Human Rights Act may also allow cases to be brought before the courts where they could not be brought before. For example, decisions regarding the priority given to one initiative over another may not be susceptible to judicial review at the moment, but may become so under the Human Rights Act - for example, whether to fund hospital treatment. In relation to medical treatment, the courts have already shown a willingness to depart from such a strict rule.

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3. How Article 6 affects the Charity Commission

Article 6 does not just apply to Court proceedings. As a public authority we must act compatibly with the principles of Article 6.  

The Human Rights Act allows people to challenge decisions taken by a public authority whose procedures fail to satisfy Article 6.  

This has implications for our work when we:  

  • make decisions that may affect civil rights (such as the right to be a trustee);
  • gather evidence on case files;
  • pass on evidence;
  • express unsubstantiated opinions.  

Our procedures must satisfy the criteria set out in Article 6 in so far as it is possible for them to do so. To comply with Article 6 it is not necessary for each stage of the decision-making process to meet every requirement of that Article provided the process as a whole (including the involvement of the courts for example) complies. Many of our decisions can be reviewed by the courts which enables most of our decision-making processes to comply. But it would not be acceptable to simply rely upon reviews of our decisions by the courts to make our decision-making processes compliant and then allow those processes to fall a long way short of the requirements of Article 6. Whilst it is neither possible nor necessary for each stage of our decision-making processes to comply with the letter of Article 6, we should act in accordance with the spirit of that Article at all stages in so far as it is possible to do so.

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4. Complying with Article 6  

Article 6 has implications for us in a number of different contexts (but especially when making decisions that deny someone something or which are likely to be unpopular).  

The structure of the Commission is such that we are not set up as, nor were we intended to be, an independent and impartial tribunal. The Charities Act 2011 sets out the powers of the Commission. Members of staff who are Authorised Officers can exercise those powers on behalf of the Commission. This means that, when taking decisions, members of staff are acting on behalf of the Commission under specific powers delegated to them. Consequently, it could not be said that any review by the Commission of actions taken by Authorised Officers is 'independent'. However, the Commission can override decisions taken in their name by substituting their own personal decision. The framework for this internal review process is contained in the procedures for handling complaints and requests for a review of a decision as set out in OG736. The principles of Article 6 are reflected in that guidance.  

The Charities Act 2011 also provides opportunities for most decisions of the Commission (which includes decisions taken on their behalf by Authorised Officers) to be challenged in the courts. An appeal to the court often does not involve the Charity Commission as a party but, in effect, gives the court an opportunity to hear and assess the evidence presented by the complainant in litigation with the Attorney General, thereby enabling the court where appropriate to substitute its judgement for the Commission’s. The "fairness" of this process is enhanced by the fact that the court will not be hearing argument directly on the Commission’s behalf seeking to justify our decision. Where the courts make their own assessment based on the facts and the law then the courts, through their own procedures, will be compliant with Article 6. This will be sufficient for the whole process to comply with Article 6.

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5. Model Rules for Decision Making

Recognising that it will not be possible, in view of the legal restraints imposed by statute on the structure and powers of the Commission, nor is it necessary for us to meet every requirement of Article 6 at each stage of a decision-making process, it is nevertheless essential that we ensure that the principles of fairness and impartiality, natural justice and timeliness permeate all that we do. The following guidance therefore sets out some model rules which should be routinely followed when making decisions.  

The model rules for decision making are as follows:  

  • All decisions and decision making processes should be open, fair, timely and impartial.
  • Decisions should be communicated in a way that will not overawe or confuse the recipient.
  • We should, wherever possible, clearly tell those dealing with us what are our procedures.
  • Where it is appropriate to do so, we should advise those that will be affected by a proposed decision of the substance of it, including:
    • what are the grounds for the decision;
    • what other matters we have taken into account in reaching the proposed decision;
    • inviting them if they wish (within a period of not less than 21 days) to give reasons in writing (or orally if that is more suitable) as to why the decision should not be made and explain to them what procedure will then be followed if they do;
  • When taking or reviewing any decision (particularly one that adversely affects the rights, liberties or interests of an individual) we should wherever possible:
    • Give all parties a reasonable opportunity to present their case, ensuring that one party is not allowed a substantial advantage compared with another. This includes allowing all parties to be represented and for matters to be conducted by correspondence (and where necessary meetings) involving representation. If anyone requests an oral hearing this can be provided by a suitable meeting. (It is not necessary for the procedure for such meetings to seek to parallel that which occurs in a court or tribunal.)
    • Ensure that the decision is, and can be seen to be, free from personal prejudice or bias. This includes making sure that casefiles or other records demonstrate a clear trail of the decision making process and never expressing biased or unsubstantiated opinions.
    • Provide a written copy of our decision and the reasons for it.
    • Tell the person(s) affected, in writing, what action they can take if they wish to challenge our decision, and what information and material they need to provide to support such a challenge, as well as the time limits involved. We should also explain that our internal review procedures are administrative reviews and that if the individual remains dissatisfied after the review process has been completed through its various stages they will have a right of appeal to the courts.

 

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OG 71 C2 ARTICLE 8 - RIGHT TO RESPECT FOR PRIVATE AND FAMILY LIFE - 18 September 2000

1. The principles of Article 8  

The full text of Article 8 is set out in OG71 A2. This Convention right ensures that everyone has the right to respect for his private and family life, his home and correspondence.

The concept of ‘private life’ is very broad. In general a person’s right to a private life means having the right to live one’s own life with such personal privacy that is reasonable in a democratic society, while taking into account the rights and freedoms of others. It includes the freedom to choose:

  • how you look;
  • how you dress;
  • who you socialise with;
  • your sexual identity.  

The right to privacy also includes the right to have information about individuals, such as official records, photographs, letters, diaries and medical information, kept private and confidential. Unless there is a very good reason, public bodies should not collect or use such information. Consequently, the principles of Article 8 are reflected in the legislation concerning data protection and the interception of communications. 

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2. A qualified right

The Convention qualifies this right. It says:  

‘There shall be no interference by a public authority with the exercise of this right except such 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.’  

Although the exceptions appear quite wide they can only be applied in accordance with the law and are subject to strict interpretation. In other words, no other criteria than those mentioned in the exception clause itself may be at the basis of any restrictions. The restrictions are designed to balance the rights of the individual against the protection of the rights and freedoms of others. 

The Court of Human Rights has established that the State has a dual responsibility in terms of the right to respect for family life. Article 8 is not just about ensuring that public authorities do not arbitrarily interfere with a person’s private life. It also imposes positive obligations on authorities to take steps to provide the rights and privileges guaranteed by Article 8 and to protect people against the activities of other private individuals which prevent the effective enjoyment of these rights. The Court of Human Rights has taken the view that the right for private life is ‘the right to privacy, the right to live as far as one wishes, protected from publicity…. It comprises also, to a certain degree, the right to establish and develop relationships with other human beings especially in the emotional field, for the development and fulfillment of one’s own personality.’ However, the Court has limited the scope of this right by taking the view that ‘the claim to respect for private life is automatically reduced to the extent that the individual himself brings his private life into contact with public life or into close contact with other protected interests.’ 

This perhaps illustrates how the Convention rights, and this Article in particular, are about balancing rights and responsibilities. Before taking decisions affecting people’s rights under Article 8, a public authority will have to weigh up all the competing interests and so justify any interference.

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3. What does Article 8 cover?  

Article 8 covers a vast range of issues and subjects, including:  

  • interception of correspondence, (telephone, letter, email);
  • search warrants (at home or at work);
  • access to information about a person’s own identity;
  • a person’s right to have and to express an identity;
  • the freedom to express one’s sexuality;
  • being free from severe environmental pollution;
  • consenting to medical treatment;
  • having parental access and custody of children;
  • the collection of and use of information concerning an individual;
  • the right to have and form social relationships; and
  • the protection of a person’s reputation.

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4. How does Article 8 affect the Charity Commission?  

Clearly some of the issues identified above will affect our work at the Commission. Some protect the way staff are treated in the work place; others protect our customers. For example, Article 8 has implications for:  

  • policies on the use by staff of internal communications systems (including e-mail, telephone, the Internet) and monitoring that use;
  • access to personnel records;
  • family friendly policies;
  • publishing the names of removed or suspended trustees;
  • requesting and using personal information and sharing that information with other authorities etc.  

All of our policies and procedures must satisfy Article 8. This means ensuring that we do not invade a person’s privacy or interfere with their right to respect for private and family life without good reason. The effects of Article 8, in respect of the right to privacy, are essentially the same as the effects of the Data Protection Act 1998.

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OG 71 C3 ARTICLE 1 OF THE FIRST PROTOCOL - PROTECTION OF PROPERTY - 18 September 2000

1. The principles of Article 1 of the First Protocol  

The full text of Article 1 of the First Protocol is set out in OG71 A2. This Convention right provides that every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.  

Article 1 of Protocol 1 is made up of three rules concerning:  

  • the principle of the peaceful enjoyment of possessions;
  • the deprivation of possessions;
  • the right of the State to control the use of property in the general interest or to secure the payment of taxes or other contributions or penalties.

The UK courts will be able to decide whether interference with property rights is justified in the public interest. The Strasbourg Court acknowledges that, in the context of this Convention right, each State is in a better position to assess the economic needs of its own society and should therefore be allowed some discretion in determining when interference with this right is in the public interest.  

Even so, any measure or law that interferes with property rights (for example, a compulsory purchase order) must strike a fair balance between the demands of the community or society and the need to protect the individual’s fundamental rights. In considering this balance, one of the things the court will look for is compensation. So that, for example in the case of compulsory purchase, interference can be justified if the loss of rights to property are compensated by the payment of the economic cost of that property.  

An interference with property must also satisfy the requirements of legal certainty. In other words, there must be a law which permits the interference and that law must be sufficiently certain and accessible. There must also be procedural safeguards against arbitrary State decisions. The procedural requirements of Article 6 – right to a fair trial, may be relevant here. (See OG71 C1).

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2. Definition of property or possessions  

'Property' or 'possessions' in this context has a wide meaning and covers anything of economic value.  

It includes physical and non-physical property such as:

  • land and buildings;
  • money;
  • goods;
  • shares and investments;
  • patents;
  • rights under contracts (including leases);
  • rights to run a business or economic interest connected to the running of a business;
  • rights to exercise a profession;
  • goodwill;
  • a benefit resulting from a restrictive covenant;
  • an entitlement to an annual rent;
  • damages or other sums awarded by a court or tribunal.  

Although property has a wide meaning it covers only existing possessions and existing legal rights. For example, it covers the right to receive benefits under a pension scheme but not the right to inherit property at some point in the future. It would not cover the refusal to grant a licence but it might cover revocation or refusal to renew a licence. Article 1 of the First Protocol covers property not just owned by individuals but also owned by a company or other private body, such as a charity or trade union.  

In order to claim an interference with property rights, the claimant must be able to establish the nature of his property right and his entitlement to enjoy it under national law.

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3. Interference with Property Rights  

Everyone has the right to use, develop, sell, destroy or deal with his or her property in any way they please. The right to protection of property means that public authorities cannot interfere with the way that property is used unless there is a law that lets them do it and unless it is justified. This means that no one can be deprived of his or her property except where the action is permitted by law and justifiable in the public or general interest.  

It is also necessary to ensure that a person has the same rights to property as other people in the same situation. For example, a man caring for his disabled wife should get the same exemption from paying tax as a woman caring for her disabled husband. In this situation, a person’s rights under Article 1 of the First Protocol together with rights under Article 14 – prohibition of discrimination, are important.

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4. How does Article 1 of the First Protocol affect the Commission? 

We need to consider the effect of Article 1 of the First Protocol when taking any decisions relating to an individual’s or organisation’s property. This might have implications, for example, when we are:  

  • applying cy-près principles to transfer property from one charity to another;
  • freezing a bank account;
  • refusing to register an organisation as a charity or removing a charity from the register (where a registered number provides recognition of the charitable status of an organisation which in turn allows that organisation access to the fiscal advantages of being a charity);
  • changing a charity name (where the name is the property).

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OG71 G1 SERIES GLOSSARY OF TERMS - 18 September 2000

The Convention This means the European Convention on Human Rights.  

Convention rights This means the rights and freedoms set out in the European Convention on Human Rights.  

Declaration of incompatibility This means a declaration that can be made by a higher court where they find that primary legislation is incompatible with a Convention right.  

Derogation A ‘derogation’ is a reservation that the UK has attached to certain Convention rights.  

Higher Court For the purposes of the Human Rights Act, a ‘higher court’ means the House of Lords, the Judicial Committee of the Privy Council, the Courts-Martial Appeal Court, (in Scotland) the High Court of Justiciary sitting otherwise than as a trial court or the Court of Session, and (in England and Wales or Northern Ireland) the High Court and the Court of Appeal.  

Human Rights Act This means the Human Rights Act 1998.  

Margin of appreciation This means the degree of discretion allowed to the courts of a particular nation when interpreting Convention rights having regard to local needs and conditions. 

Protocol ‘Protocols’ are additions or amendments to the Convention which may be signed and ratified by parties to the Convention.  

The Strasbourg Court This means the European Court of Human Rights in Strasbourg.  

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