The Human Rights Act and violence against women

Sanchita Hosali, BIHR’s Senior Policy and Legal Affairs Advisor, writes about how the Human Rights Act can be used by those working to address violence against women. This article appears in the Summer 2011 edition of Women’s Aid’s Safe - the Domestic Abuse Quarterly.

You can download a copy of the article as it appears in Safe here. Safe is available to buy from Women's Aid here.

 

Use it before we lose it: How can the violence against women sector use the Human Rights Act in these challenging times?

 


Sanchita Hosali (1)

 

The Human Rights Act (HRA) has been much maligned by powerful sections of the media and political classes who variously present the Act as a “criminal's charter”, “political correctness gone mad” or giving judges powers to usurp our elected representatives. In reality, the HRA sets out important protections for all of us, including women experiencing violence. Despite our Prime Minister's long-standing commitment to scrapping it, for the moment the HRA remains law; now is the time to use it before we lose it! This article aims to explain how the HRA works and the value it could have for the violence against women sector.

The HRA is about women’s rights


The Human Rights Act 1998 (HRA) brings most of the rights in the European Convention on Human Rights 1950 (ECHR) into UK law (the rights are set out in Articles) (2). Many of the rights protected by the HRA will be relevant to violence against women; of particular importance are Articles 3 and 8. Article 3 sets out the right to be free from inhuman or degrading treatment. This right prohibits particularly serious physical, sexual, emotional and psychological harm (3). Article 8 sets out the right to respect for private and family life, which covers a broad range of interests, including physical and psychological integrity, personal development, and social relationships with other people (4). Other rights which may also be relevant include the rights to life (Article 2), to a fair trial, including access to justice and fair processes (Article 6), to peaceful enjoyment of possessions, including property (Article 1, Protocol 1) and the prohibition on discrimination in enjoying the rights protected by the HRA (Article 14).

The legal duties in the HRA (5)


Human rights are based on the idea that all individuals have human rights and the state is responsible for making sure these rights are respected, protected and fulfilled. Human rights laws place obligations of refraining, doing and procedure on states. For example, under the right to be free from inhuman and degrading treatment states have a duty not to subject people to such harm (refraining), to take action to protect individuals from such harm in certain circumstances (doing) and to have in place effective systems to investigate and hold perpetrators of such harm to account (procedural). The HRA works by placing all public authorities in the UK under a duty to respect the rights it contains in everything they do (the “section 6 duty”). Public authorities include local and central government departments, the police, the Crown Prosecution Service, NHS Trusts, social services and housing departments. Additionally, all UK law must be interpreted, so far as it is possible to do so, in a way that is compatible with HRA rights. In this way the HRA represents the basic minimum standards for all laws to meet.

Importantly, the HRA also places specific positive obligations on public bodies to take steps to prevent harm which falls within Article 3 and 8. At a broad level this means there should be effective institutions and systems, particularly criminal and civil justice. In individual cases, public authorities will have specific obligations to take reasonable steps to protect individuals from harm at the hands of another, including private individuals such as a former partner or family member (6). This duty is owed where the public authority is aware or ought to have been aware that someone is at risk of harm which breaches Article 3 or 8.

Article 3 is an absolute right, which means it can never be restricted or interfered with, no matter what the reason. Thus a public authority is likely to breach a woman’s Article 3 rights if it is aware or it is reasonable to assume it was aware that she is experiencing harm at the hands of an abuser but the authority fails to take reasonable, adequate, effective steps to protect her. Article 8 is a qualified right, which means any actions or omissions which interfere with a person's physical or psychological integrity, may be permissible if the act or omission is lawful and necessary. Deciding this will include balancing the Article 8 right of a particular individual against the rights of others in within the community. Some might argue this balancing act would justify inaction in the case of violence against women, for example to respect the rights of the perpetrator (e.g. to enjoy the family home rather than removing him) or those of wider community (e.g. in terms of resource allocation). However, the balancing act must be guided by the principle of proportionality. This means examining the rights of all parties, considering the harm that is involved, the extent to which each party’s rights will be interfered with, the positive obligations to prevent harm, and finding a solution which is appropriate in the circumstances. In situations of violence against women it is likely that the proportionate response would require reasonable action to protect victims and survivors from harm.

Translating the law into action


Under the HRA, individuals who believe their human rights have been breached (or are at risk) can take their case to court (7). However, the HRA is not simply about litigation. The combined power of the section 6 duty on public authorities and the positive obligations under Article 3 and 8 has real potential to facilitate change for individuals as well as to influence local and national law and policy on a range of issues.

For individuals and their support-workers, the HRA can be a useful advocacy tool, helping to shift the balance of power, increasing confidence to challenge decisions and negotiate solutions which respect people’s rights. For many people it is incredibly empowering to know that they have rights which public authorities must uphold and that they are not simply seeking charity or good will. At BIHR we have seen both public officials and advocacy groups use the HRA to help secure access to services for survivors of violence, without having to go to court. For example, when a woman and her children were denied housing, a social worker argued that the local authority had overriding positive obligations to protect the family's rights to be free from inhuman and degrading treatment, and successfully secured safe accommodation. In another example a women’s group used the HRA to help a woman challenge a decision to remove her children because she was in temporary accommodation after escaping an abusive father. The local authority subsequently found the family stable accommodation (8). These examples and others show how using the HRA in advocacy can secure much-valued outcomes.

At a local level, the HRA could be used to challenge decisions to cut services vital to securing human rights (9). Groups in other sectors, such as the Down's Syndrome Association, are already using the HRA to challenge the cuts. They argue that public authorities have duties to consider the impact of decisions on people's rights, such as their right to a private and family life, including autonomy, personal development and safety.

Beyond individual advocacy, the HRA can provide a yardstick against which to measure policy and law. For example, at a local level Warwick University and Coventry Women’s Voices have analysed the public spending cuts and their potential human rights and equality impacts for women in Coventry, including those experiencing violence (10). This provides an interesting approach for policy and campaigning work to combine the power of equality and human rights law in a practical ways. Amid concerns that the public sector equality duty is being watered-down, there could be much to gain from combining equality law arguments with the HRA.

At a national level, many in the sector already refer to violence against women as a human rights issue, particularly in relation to international laws such as CEDAW and this had led to significant gains (11). Yet there is much untapped potential in combining the international standards with the HRA, which places domestically enforceable obligations on public authorities. For example, to what extent does our national strategy and action plan on violence against women refer to the HRA and the duties on public authorities? Can the HRA be used to influence policy within criminal justice, healthcare, welfare reform, and access to justice to ensure that the rights of women experiencing violence are respected, protected and fulfilled? For example, do current proposals to cut or restrict legal aid impact on the rights of women experiencing violence to get access to justice (under Article 6) and/or potentially leave them vulnerable to harm which violates their Article 8 and/or 3 rights (12)?

What next?


The HRA is not “cure all” for every challenge faced by those working on violence against women. Indeed no single law can solve all issues and, like many laws, the potential of the HRA as a tool for change is realised through action. There are many economic and political challenges in the current climate, so now is the time to use the laws and levers we have to make real changes for women experiencing violence. To find out more information about the HRA and putting it into practice visit www.bihr.org.uk where you can access our online toolkit “Human Rights in Action” and learn more about our training and capacity-building events and projects.

 

 

(1) Sanchita is the Senior Policy and Legal Affairs Advisor at the British Institute of Human Rights. She is also the Chair of the Management Committee of Rights of Women, national women’s organisations. This article does not necessarily reflect the views of BIHR or ROW, and any errors are the author’s. Thanks are due to JW and JG for their research assistance.

(2) The HRA protects the following rights: to life, not to be tortured or treated in an inhuman or degrading way, to be free from slavery or forced labour, to liberty, to a fair trial, to no punishment without law, to respect for private and family life, home and correspondence, to freedom of thought, conscience and religion, to freedom of expression, to freedom of assembly and association, to marry and found a family, non-discrimination in relation to the rights in the ECHR, to peaceful enjoyment of possessions, to education, and to free elections.

(3) Inhuman treatment is conduct which causes severe mental or physical suffering (Ireland v. UK (1978)). Degrading treatment is conduct that grossly humiliates and is ‘designed to arouse in the victim feelings of fear, anguish, and inferiority capable of humiliating them and possibly breaking their physical or moral resistance’ (Tyrer v UK (1978)). Deciding severity involves considering the nature and context of the treatment, the mental and physical effects, the sex, age and state of health of the victim (Costello-Roberts v UK (1993)).

(4) Pretty v UK (2002)

(5) See BIHR's ‘Factsheet: How the Human Rights Act Works

(6) A v UK (1998) and X & Y v the Netherlands (1986). Failures by social services to protect children from abuse and negligence (Z and others v UK) or to respond adequately to evidence of serious abuse (E v UK (2002) have been held to breach positive obligations under Article 3.

(7) If the court finds a law has breached the HRA it can issue a declaration of incompatibility. This does not overturn the law, but it does send a strong message to Parliament to look at whether to change the law.

(8) See BIHR’s ‘The Human Rights Act: Changing Lives’ (2008, edition 2), case studies 11 and 24 at http://tinyurl.com/3n32j9u For information about how a range of organisations are using the HRA visit www.ourhumanrightsstories.org.uk

(9) See BIHR’s briefing ‘The HRA in an age of austerity

(10) Available here

(11) For example we now have a national violence against women action plan, rather than separate strategies and plans for various forms of violence, to which international human rights commitments are central. The sector has also used the international mechanisms, such as the CEDAW committee, to expose the inadequacies of service provision, securing international recommendations, which have proved to be a vital lobbying tool.

(12) For example see Rights of Women’s template and full response to the consultation ‘Proposals for the Reform of Legal Aid in England and Wales

Published: August 19, 2011

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