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These pages do not apply outside the United Kingdom
(though people in other countries covered by the European Convention on Human Rights may also find this page interesting). |
This page gives further detail on European the Convention on Human Rights. and the Human Rights Act 1998 (HRA). Their effect and relevance are summarised on the main European Convention page.
The Human Rights Act 1998 (HRA) came into force in England on 2nd October, 2000. It makes the European Convention on Human Rights enforceable in the UK courts. It is no longer be necessary to go to the European Court of Human Rights in Strasbourg to enforce the Convention rights, though appeal to Strasbourg remains possible.
Action against a public authority:
Where a "public authority" breaches the Convention, an action for breach of the Convention can be brought against it in the UK courts. "Public authorities" are widely defined - see the discussion on who is a "public authority".
Action against others:
The Convention and the HRA can also be brought into play against someone other than a public authority provided there is an existing right of action to "hang" the Convention argument onto. The courts are obliged to respect the Convention rights even in deciding disputes between private individuals, companies etc. So for example the Convention could be cited in a DDA claim against an employer, even in the private sector, or a service provider.
Linked with this, the HRA expressly says that legislation must be interpreted in accordance with the Convention wherever possible.
Compliance by UK statutes:
UK statutes themselves should comply with the Convention, and the HRA now obliges a Government sponsor of new legislation to make a declaration as to its compatibility with the Convention.
However, the HRA does not allow a court to treat primary legislation as void for breach of the Convention. The higher courts can declare a statute to be incompatible with the Convention, but the statute will continue in force unless and until the Government decides to change it.
Article 14 of the Convention says that the enjoyment of the rights and freedoms set forth in the Convention must be secured without discrimination "on any ground such as" sex, race etc "or other status".
Inclusion and meaning of disability
Disability is not mentioned in Article 14. However, it seems likely that disability is included as "any ground", or an "other status". The case of Botta v Italy in the ECHR went on the basis that disability can fall within Article 14 though the point was not specifically raised. Also the explanatory notes for a new Protocol No. 12 (not adopted by the UK) explicitly mention "physical or mental disability". A UK Employment Appeal Tribunal accepted that disability is covered in A v London Borough of Hounslow.
There is no definition of "disability" for Convention purposes. It is simply an example of "any ground" or some "other status". It has been suggested that for the time being at least the UK courts may be tempted to use the DDA meaning of "disability" for Article 14 purposes. On the other hand, there may be scope to argue that a person who clinically has a stammer and suffers discrimination because of that is protected even if its effects on normal day-to-day activities are not "substantial" within the DDA test. One might argue that the discrimination contravenes the Convention, which the UK courts should enforce. (More on this argument). Anyway, the approach of the courts remains to be seen. "Disability" may have a different meaning in different contexts, eg social security.
Applies only within ambit of another Convention right
Article 14 does not give an all-encompassing right against discrimination. Article 14 must be used in combination with a substantive right in one of the other Articles. The other right need not have been breached, but the facts complained of must fall within the "ambit" of the other right - in other words within the scope of the other right.
So for example there is no general right of non-discrimination in the area of employment - see A v London Borough of Hounslow. However, since there is a Convention right covering education (Protocol 1, Article 2 - see below), discrimination against pupils in the field of education is likely to be covered by Article 14. I list below the rights which I see may be of particular relevance to people who stammer. The HMSO website includes the full text of all rights, including the first protocol.
A new Protocol No. 12 may extend the Convention's coverage of discrimination in future, but I understand that the UK government has no plans at present to sign and ratify this Protocol.
Discrimination
"Discrimination" has its own meaning in Article 14 of the Convention, and thus in the Human Rights Act. Discrimination here means broadly that the person is treated differently, because of eg the disability, from people in a similar or analogous situation, and the difference in treatment "has no objective and reasonable justification, that is, if it does not pursue a legitimate aim or if there is not a reasonable relationship of proportionality between the means employed and the aim sought to be realised".
A State has a "margin of appreciation" in assessing whether and to what extent differences in otherwise similiar situations justify different treatment in law.
The more contentious issue is likely to be whether the difference in treatment is proportionate to the aim, rather than whether the aim itself is rational.
The relatively recent case of Thlimmenos v Greece (2001) 31 EHRR 15 held that Article 14 is also violated when States without objective and reasonable justification fail to treat differently persons whose situations are significantly different. The complainant was refused an appointment because of a felony, namely insubordination by refusing to wear a military uniform. He had refused because he was a Jehovah's witness. He argued that a distinction should have been made between offences committed exclusively because of a religious belief and other offences. This aspect of Article 14, as well as Article 8 below, may help in an argument for reasonable adjustments.
Caselaw on how far Article 14 includes indirect discrimination is undeveloped. However, there may be a trend towards recognising its inclusion.
I deal with Article 8 next because it has particular potential, independently of Article 14, to give rights to disabled people. Article 8 says that, subject to exceptions, "everyone has the right to respect for his private and family life, his home and his correspondence." This is wide-ranging, including for example the right to express one's identity and to form and keep social relationships.
Under Article 8 the State can even be under an obligation to take positive steps in connection with disability (rather than just avoid interference) where there is a direct and immediate link between the meaure sought and the applicant's private and/or family life, provided a fair balance is maintained between the competing interests of the individual and the community as a whole. However in various cases under Article 8 disabled people have failed to meet these requirements on the particular facts.
In an extreme case, mistreatment of a person who stammers could amount to inhuman or degrading treatment or even torture. One needs to look at the case law to see examples of what has and hasn't been held to fall within Article 3.
This could be helpful in cases of extreme mistreatment which currently fall between the gaps of the DDA. Even if the offender was not a public authority, it might be possible to bring the HRA into play on, say, a claim for breach of contract, arguing there was a contractual term against such gross mistreatment.
Article 6 provides, amongst other things, that 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. The Article also provides that everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law, and sets out minimum rights of anyone charged with a criminal offence.
The DDA services provisions will sometimes not apply to the police, or possibly courts, at least until new rules come into force in December 2006. If there is a doubt, for example, as to whether a criminal court is providing a service or facility to the accused so as to fall within the DDA, Article 6 with Article 14 may help in arguing that the DDA does apply, or Article 6 give an independent right of action. Perhaps the Convention could also confer on an accused rights against the police, where again the DDA may not apply.
Whether or not Article 14 requires reasonable adjustments, the right under Article 6 that a hearing be fair may itself perhaps require that arrangements made are appropriate for a person who stammers.
Subject to exceptions: "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...."
Freedom of expression is something many people who stammer feel passionate about, albeit with a different emphasis from this Article. I can't think of a specific likely example where a person who stammers might want to rely on this Article, but the nature of the right is such that is may be useful in a particular case. It could be particularly helpful in conjunction with Article 14, where a person is treated worse because of the stammer in a situation falling within the "ambit" of Article 10.
Subject to exceptions: "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."
"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."
Wedding vows can be an issue for people who stammer, though I have never heard of a discrimination type problem in the area.
There may be an argument that this restricts the obligation of employers or businesses to spend money on reasonable adjustments required by the DDA.
"No person shall be denied the right to education. In the exercise of any functions that 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." (The UK has accepted the second sentence "only in so far as it is compatible with the provision of efficient instruction and training, and the avoidance of unreasonable public expenditure.")
This provision may be important in the education field, especially combined with Article 14. See separate the page on The Human Rights Act in education for more on this.
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© Allan Tyrer 2000-2003
Last updated 26th October, 2003
More detail
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Article 8 cases
