Compliance with human rights law is important but challenging for public authorities. Human rights are protected in UK law under the Human Rights Act 1998 which encompasses the provisions of the European Convention on Human Rights.
Recent evidence suggests that some local authorities may be experiencing difficulties in achieving the balance between their obligations and the rights of individuals.
The recent report from the Open Society Justice Initiative identified the potential risk of breaches to individuals’ human rights by public bodies in health and education, particularly associated with the government’s Prevent Strategy for counter-extremism.
Issues highlighted by the report included:
• The incentive to over-refer created by the fact that public authorities have a statutory duty to have due regard to the need to prevent people from being drawn into terrorism. This is reinforced by adverse consequences for non-compliance and a lack of consequences for making erroneous referrals. Such action could arguably be considered to be contrary to the freedom of thought, conscience and religion (Article 9) and form the basis of a discrimination claim.
• The targeting of non-violent extremism and the possible violation of the right to freedom of expression under Article 10. The recent backlash against the concept of “safe spaces” in universities has resulted from the perceived restriction of this right and the impact upon the relationship between teachers and students.
• The requirement to report individuals at risk creates a risk of breach of confidentiality and the right to privacy under Article 8 particularly with regard to health bodies
• There are concerns about the potential conflicts between the Prevent strategy and the safeguarding of children.
• That being wrongly targeted has made some people question their place in British society and others said that if they had been different their experience of Prevent might have drawn them towards rather than away from terrorism.
The report focused on the health and education sectors but the need to comply with human rights law will affect all services delivered by public authorities.
Further evidence of the significant impact that human rights law can have on public authorities was seen in the recent case of R (on the application of GS) v Camden London Borough Council. In that case a local authority’s decision not to use the general power of competence in section 1 of the Localism Act 2011 to provide accommodation for the claimant was found to be unlawful. Following a needs assessment, the local authority had concluded that the claimant was not entitled to care and support under the Care Act 2014 but her circumstances were such that the court found the local authority was obliged to act to the extent necessary to avoid a breach of her human rights.
Whilst this judgment depended on the particular facts, it has shown the potential for local authorities to be expected to consider the human rights implications of their actions in the exercise of their powers, or risk having their decisions overturned as a result and the planning and delivery of their services affected.
These may be extreme examples of the consequences of breaching the European Convention on Human Rights. Nevertheless, they provide a salutary reminder of the impact of human rights on the activities of public authorities.
Authorities should ensure they always consider and take account of human rights implications when taking decisions.
Clare Hardy is a public services professional support lawyer at Geldards LLP