Human rights obligations for public authorities

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Today we’re going to be talking about what Human Rights Law means for public authorities.  Human Rights Law in the UK is clear that public bodies should obey it but what is a public body in the context of Human Rights?  The question is more complicated that it appears.

Those taking part:

• Jenifer Johnston and I’m from the Scottish Human Rights Commission;

• Duncan Wilson, Head of Legal and Strategy at the Scottish Human Rights Commission.

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DW:    There is a range of different types of bodies, delivering different kinds of services and a first principle is that when public authorities, whether it’s local authorities or the National Government, the Scottish Government or the UK Government, when they contract out services, they remain responsible under the Human Rights Act, for ensuring that whatever body is delivering those services, complies with the Human Rights Act.  That’s the duty to protect Human Rights from actions by private parties.  That would extend beyond in all sorts of spheres, the social care sphere, delivery of care homes, care packages etcetera, but it would also extend to private schools.  It would extend to hospitals and health facilities that are administered by private bodies or is as quite common, by public private partnerships, basically to all bodies that are delivering public services.  And our role is to work both with the public bodies to ensure that in the procurement of services, that they take Human Rights into account, as well as with private bodies to ensure that they are enabled to deliver services in a way that’s consistent with their Human Rights duties.

JJ:       The duties that Human Rights Law places on public authorities or private companies acting in their place can be onerous, but no longer is it enough just to avoid depriving people of certain things.  Positive action is now essential, says Duncan.

DW:    Traditionally, Human Rights have been seen as demanding of state authorities and as we were just talking about, also now of private bodies, to refrain from doing things which breach Human Rights.  So not to torture, not to ill treat and not to deprive people of their life except for when it’s absolutely necessary.  But today and in the recent decades really, the Strasbourg Court, the European Court of Human Rights has increasingly looked at positive duties, duties to act to protect Human Rights and just to give you some examples of what that means in practice, the right to life, which I was talking about, has traditionally been seen as the duty not to deprive people of their life.  It’s an absolute right.  It cannot be breached in any circumstances, in armed conflict or in combating terrorism or other criminal activity, but it’s also now been interpreted by the European Court of Human Rights to extend to duties to intervene, to protect life where, as the court has said, the state knew or ought to have known of an immediate risk to life.  Some examples of where that’s been found, include prisoners in detention where they’ve been co-located in cells where the authorities or the prison authorities or others knew or ought to have know that that would risk their life.  Also the prevention of suicide of detainees and other prisoners but it extends well beyond that also.  In a case involving Turkey, the European Court of Human Rights looked at whether the state was responsible for dangerous conditions in which people were living.  They were living on a rubbish tip that was highly combustible and the Court looked at where the Government had failed to take adequate safety measures to ensure that people’s lives were not at risk due to the conditions in which they were living.  So they were looking at negligent omissions as well.

JJ:       The obligations are not just in evidence at the extreme end of the Human Rights spectrum with the right to life.  They extend into our environment or living commissions and even right into the family home, says Duncan.

DW:    Article Three of the European Convention, that’s the article that prohibits torture and other cruel inhuman and degrading treatment or punishment.  That now is understood to extend to the prevention of ill treatment in the private sphere, including in the home, where on a number of occasions the European Court of Human Rights has looked at where the state has failed to take reasonable steps to protect vulnerable people.  People who are at risk of ill treatment.  Now, in these cases are involved children who were repeatedly and violently abused in the home, but that rule would also extend to other vulnerable groups, older people would be an example.  Again the test is where the state knew or ought to have known that those people would be at risk of abuse.  Another example is the Article Eight right, that’s the right to privacy and protection of the home.  There is also now a series of cases where the Court has looked at the protection of the home to extend to protection from environmental pollution and also noise pollution.  In the environmental pollution cases, those involved polluting industries which were placed close to homes.  So that would have implications for planning applications and planning decisions and then noise pollution case involved the construction of an additional runway at an airport.  So clearly these are all cases which are quite topical in the United Kingdom today.

JJ:       So clearly there are serious obligations on public authorities or anyone acting in their place.  Some of these are developing areas of law.  So how can those with responsibilities make sure they do their duty?  The Scottish Human Rights Commission, says Duncan, aims to help.

DW:    One of the key aims of the Commission is to work with public authorities to enable them to deliver on their duties under the Human Rights Act.  So that involves both raising awareness of the extent of those duties as well as increasing capacity in how to adapt policies and procedures to ensure that they’re compliant, also beyond compliance towards best practice.  Practically, over the next year, we’re going to pilot the use of a series of tools, training, capacity building and awareness tools with a number of public authorities, but also with private bodies and then once we’ve tested them together with a small number of public private bodies, we’ll adapt them, evaluate how successful that’s been and move forward from there, so that we can learn from the first steps that we take towards raising the ability of authorities to deliver on the Human Rights Act.