The Act requires all Courts and Tribunals to take account of European case law on human rights, built up over 50 years. This will inevitably lengthen proceedings. Lawyers working in this field will have to become familiar with this law. Members, managers and officers must appreciate that the law is the ultimate arbiter of justification for interference in people~s lives, not politics, morals, professional standards or ethics, or risk management.
Secondly, the Act requires everyone to read and give effect to primary and secondary legislation in such a way as is compatible with human rights, where that is at all ~possible~. This means that in a case of ambiguous legislation, where previously there was a choice of interpretation, Members managers and officers will now have to act in accordance with that interpretation of the law which is human rights-compliant, rather than inconsistent. This may enable a wider reading of some powers and duties, so as to enable provision which is not currently thought lawful, but will also mean the scope of other ambiguous wording, is cut down.
Members, managers and officers are still going to have to act incompatibly with human rights if an Act or something made under it clearly requires a breach and cannot be read in any other way, but there are very few pieces of legislation in local government, which are incapable of more benign construction, given awareness of the duty and the will to abide by the Act. The reverse burden of proof in the Mental Health Act, which applied at Tribunal hearings, is the one example so far in this field, and that is to be dealt with by means of the fast track amending procedure, even in advance of a new Mental Health Act.
Thirdly, the Act makes it unlawful for ~public authorities~ (as defined by the Act) to act inconsistently with human rights, unless one of the statutory excuses applies (ie where a statute or something made under statute positively demands the action or decision in question, even if the provision confers a permissive or discretionary measure).
~Unlawful~ in this sense means both ultra vires (outside the authority~s legal powers) and sounding in damages, just as if a breach of human rights was a civil law wrong such as negligence, trespass or nuisance.
There are 3 centrally important sections to the Act:
Section 2:
Imposes a duty on courts and tribunals to take account of all European Convention Court~s decisions on human rights, in UK human rights cases – not necessarily to follow them
So European law is a floor, not a ceiling – and human rights may be cranked higher in the UK, or allowed to sink lower than in Europe.
Cases will inevitably be longer, while lawyers take the Court through the cases, and this will be necessary because the judges had one day~s training each before the Act came into force
Section 3:
Imposes a duty to ~PRETEND~ that (ie read and give effect to) all one~s statutory functions are worded in a Human Rights compliant way – where that is at all POSSIBLE, given their wording;
This means that lawyers will have to tell members and officers to read extra words into (or real words out of) existing statutes to render them compatible….
~We can~t do x, y, or z, because we haven~t got the power~ is no longer a safe answer to a request for a service …the body in question may well have the power, without realising it, because of this new s-t-r-e-t-c-h-i-n-g duty…
Memorable health and social care examples of what the s3 duty might require :
narrowing the interpretation given to ~insanitariness~ in s47 National Assistance Act 1948, (removal from home and detention in a place of safety) so it accords with exceptions to the right to liberty in art 5(1)(e) – related to the prevention of the spreading of infectious diseases
stretching ~practicability~ to take in notions of ~desirability~, regarding the Approved Social Worker~s s11(4) duty to contact someone~s Nearest Relative under the Mental Health Act 1983
Section 6 asserts that:
it is unlawful
for public authorities (as defined in s6(3)(a) and (b))
to act incompatibly with Convention rights
unless
one of the statutory excuses in s6(2)(a) or (b) applies;
(ie a section of a statute, standing alone, or when read in association with a regulation made under it, is so clearly worded as to compel the action or decision complained of, incompatibly with Convention rights)
Section 6 is why people are entitled to damages if incompatible conduct is found to have occurred, or to a declaration of incompatibility as between UK law and Convention rights, if such has occurred, but not unlawfully, because there was legislation compelling it….