In December 2021, a department of the UK Government called the Ministry of Justice released a consultation on proposals to reform the Human Rights Act. This consultation is called ‘Human Rights Act Reform: A Modern Bill of Rights’. As part of this consultation, they are asking people to respond and share their views. The consultation is open until 8th March 2022.

The consultation has 29 questions. You can read our Question by Question guide here. At BIHR, we think it is vital that as many people as possible tell the Government what they think about our Human Rights Act. The Act is all about our rights as people, to hold the Government and public officials to account, so any changes will affect us all. You can read our Unofficial Guide to the Consultation here

Question 23 of the Government’s consultation is about proportionality. This short guide aims to explain what proportionality is, how it works now in the Human Rights Act and why it is important.

What is proportionality?

Proportionality plays a key role in our protection under the Human Rights Act. Find out more about the Human Rights Act here.

The Human Rights Act contains 16 rights. You can read more about these rights here. Some of these rights are absolute. This means that the Government and public officials cannot limit or restrict the right in any way. Absolute rights include the Right to Life (Article 2), the Right to be Free from Inhuman and Degrading Treatment (Article 3) and the Right to a Fair Trial (Article 6). There can be no lawful reason to interfere with absolute rights.

  

Other rights in the Human Rights Act are non-absolute. Non-absolute rights include the Right to Liberty (Article 5),  the Right to Private and Family Life, Home and Correspondence (Article 8), the Right to Freedom of Expression (Article 10) and the Right to Freedom of Assembly and Association (Article 11). Non-absolute rights can be limited, however to do so the Government and public bodies need to ensure that they are meeting three requirements. Any limit on our non-absolute rights must be:

LAWFUL

 

There must be a law in place which allows the restriction on our non-absolute right. This could be mental health legislation which restricts our liberty or coronavirus legislation which restricts our contact with others.

LEGITIMATE

 

There must be a legitimate reason for the restriction. These reasons are set out within the text of the rights themselves. These usually include reasons such as national security, prevention of crime, public health, public safety or to protect an individual or the wider community.

PROPORTIONATE

 

The restriction must be proportionate. This means that the least restrictive option available must be picked to meet the legitimate aim.  This helps prevent heavy-handed or over the top restrictions.

Proportionality in human rights law means identifying the various options available and choosing the one which is least restrictive of a person’s human rights to achieve the legitimate aim. This means the public body should understand all the available alternatives to the restriction they are proposing and make a clear, reasoned decision about which option they have chosen and why. This should include consideration of the person’s individual situation (and the impact for other people’s rights, when relevant ). In particular, it will be important to ensure that a restriction is not discriminatory; a restriction which may appear to be the least restrictive must also be non-discriminatory.

Proportionality is a vital part of the way the HRA works to protect people, both inside and outside the courtrooms. It means that when looking at whether a restriction to someone’s non-absolute right is allowed, it must be the least restrictive option possible. It involves balancing the rights of the individual against the rights of the wider community. This is an important balance, enabling public bodies to make restrictions that may be needed to keep people safe, but ensuring they do not go too far. The restriction must be no more than is necessary to keep the person or others safe and the more severe it is, the more that is required to justify the interference. 

What changes have the Government suggested making to proportionality?

In Question 23 of the consultation, the Government wants to set out rules on how courts make decisions about proportionality when they are deciding legal cases about whether the Government or public bodies have restricted a non-absolute right in the correct way.

The Government have suggested two options to do this. The first option involves giving legislation by Parliament “greater weight” when deciding what is ‘necessary in a democratic society’. This suggests that if Parliament has made a law on something, it would be more likely to fulfil the requirement that it is necessary, therefore skewing the balance of proportionality in favour of the state. The second option involves telling the courts that they must strongly think about the views of Parliament when a legal case is taken to the courts.

Without the careful consideration that proportionality currently allows, which looks at the facts of each situation rather than trying to apply an unfair blanket approach, there is a real risk that people’s human rights will be restricted far more than necessary.

The Government’s proposals are seeking to restrict the ability of courts to make this important balancing exercise, by setting rules to direct how courts make that decision. This will place a limit on what should be an independent court system to make decisions based on the facts of each case.

How does proportionality work in everyday life?

Proportionality is very important when looking at decisions made by public authorities in our everyday life. Under Section 6 of the Human Rights Act, public authorities have a legal duty to act compatibly with our human rights in all they do. This means that they must respect, protect and fulfil people’s human rights in their work, including in the delivery of services, designing policies and making decisions. Proportionality plays a key role in this

At BIHR, we have seen lots of examples of individuals ensuring that public bodies are making proportionate decisions. This has been especially true during the Covid-19 pandemic, when visiting care homes, inpatient units and supported living services stopped for public health reasons. This had a huge impact on Article 8, the right to private and family life for people living in these places and their family and friends. Because of the Human Rights Act, any time there is a decision to restrict visiting, it must be lawful, legitimate and proportionate. You can read more about Covid and visiting policies here

Because of proportionality, blanket bans are very rarely allowed (although they can happen in practice, that does not mean they are allowed under human rights law). This is because proportionality requires individual circumstances to be considered; the same policy may not have the same impact on different people and it will often not be the least restrictive option.

Proportionality played a key role during the Covid-19 pandemic for one individual in supported living accommodation. Every time they went out, they were forced to isolate for 14 days. This meant that they could not have regular contact with their family and friends which impacted their wellbeing. This was therefore a restriction of their Article 8 rights, as well as their right to liberty under Article 5. This was not the least restrictive option. With help, the individual challenged this on the grounds that it was not a proportionate measure. The next day, they were allowed to go out without isolating.

You can hear more about their story from Joe Powell, Chief Executive of All Wales People First, here:

Another situation which demonstrates the impact of proportionality is Tim and Sylvia’s Story. Tim and Sylvia are a couple who both have learning disabilities. After having a baby, social services placed them in a residential unit for a few weeks to see how they were coping. In the unit, there were CCTV cameras in all of their rooms, including in their bedroom despite the baby sleeping in another room. This impacted their right to privacy under Article 8. Tim and Sylvia talked to social services and said that having cameras on all the time, including in their bedroom, was not the least restrictive option. After this, social services agreed to turn the cameras off in their bedrooms at night.

You can hear more about Tim and Sylvia's story here:

In these situations, proportionality means that public bodies have to consider the individual when making decisions. If the decision is not the least restrictive option, then the limitation on the individual’s rights is not allowed.

How does proportionality work in the courts?

Proportionality is also used in the courts when making decisions about whether an interference with human rights is allowed.

KEY CASE: Re P & Others. In this case, it was decided that a rule in Northern Ireland that meant unmarried couples could not adopt was against their Article 8 rights as it was not the least restrictive option. The rule allowed married couples and single people to adopt but not unmarried couples. They argued that this was a violation of both Article 8, the right to private and family life and Article 14, freedom from discrimination.

The Court said that eligibility to adopt does not automatically mean that a person can adopt as they still have to go through an extensive review process to be approved as an adoptive parent. By having a different rule for those who were married and those who were unmarried, it suggests that any unmarried couple would be worse prospective adopters than any married couples. The Court made it clear that the interests of the community in preventing unmarried couples from adopting should not be more important than the welfare of children who need adopting.

“To exclude couples who are in an enduring family relationship from this process at the outset simply on the ground that they are not married to each other would be to allow considerations favouring marriage to prevail over the best interests of the child.” Lord Hope of Craighead

This rule was a blanket ban on unmarried couples being able to adopt children in Northern Ireland. By weighing up the different factors, the court decided that this blanket ban was not proportionate and so therefore could not be justified. This meant that the rule to stop unmarried couples from adopting was against their human rights as it was not the least restrictive option.

“There is no longer an objective and reasonable justification for the 'blanket ban' on joint adoption by unmarried couples” Baroness Hale

The full judgement for this case can be found here.

Proportionality is also used by the European Court of Human Rights.

Key Case: S. and Marper v United Kingdom The European Court of Human Rights looked at whether authorities in the UK were allowed to store fingerprints and DNA samples on a database even after criminal proceedings had been discontinued or ended with an acquittal. Both S and Marper had been part of a criminal investigation but had not been convicted of a crime. They asked for their fingerprints and DNA to be destroyed but the police refused. They argued that this interfered with their right to private life under Article 8 and their right to be free from discrimination under Article 14.

The storing of fingerprints and DNA samples was allowed by law, under the Police and Criminal Evidence Act 1984. It was also for a legitimate reason as the purpose of keeping the fingerprints and DNA samples was for the prevention of crime and the protection of the right of others to be free from crime. The European Court of Human Rights therefore had to look at whether the policy was proportionate to the legitimate reason to decide if it was allowed. This means that they had to look at whether the policy was the least restrictive option.

The Court did this by looking at whether the policy struck a fair balance between the public’s interest to prevent crime and the private interests of Article 8. The Court highlighted the “blanket and indiscriminate nature” (para 119) of the policy. The policy applied to anyone, no matter how serious the offence that the individual was suspected of or the age of the suspected offender. There was no limit on the time that the fingerprints and DNA samples could be kept for; the samples could be kept forever. There were only limited circumstances when an individual could get their samples removed from the system and there was no way to independently review the decision not to remove someone’s sample from the system.

The Court said that this policy led to the perception that people whose data could be found on this database were not innocent, despite them not being convicted of a crime. Their data was stored in the same way as the data of someone who had been convicted of a crime, whilst those who did not have any involvement with the police would not have their data stored on the database. Therefore, there would need to be a significant reason to justify the difference in treatment of these individuals compared to people who have not been involved with the police.

The Court found that this blanket and indiscriminate policy did not strike a fair balance between the public interest of crime prevention and private interests of individual’s Article 8 rights as it was not the least restrictive option. They found a violation of Article 8 and said that the policy

“constitutes a disproportionate interference with the applicants' right to respect for private life and cannot be regarded as necessary in a democratic society”.

The full judgement of this case can be found here.

Conclusion and how to take action

These examples have demonstrated that making decisions about limiting rights involves a careful balancing exercise and looking at the individual circumstances to determine whether the decision is the least restrictive option. By making changes to the principle of proportionality, as the Government suggest doing in their consultation on the Human Rights Act, this will change the balance between individual rights and public interests. This balance is what protects people like Tim and Sylvia. This balance means that the police are no longer allowed to keep DNA samples and fingerprints from people who haven’t been convicted of a crime forever. It means that unmarried couples in Northern Ireland are now allowed to adopt. It will also limit the court’s role to ensure and support public authorities to make decisions which properly balance individual human rights alongside other priorities.

The Government’s consultation closes on Tuesday 8th March at 23.59. At BIHR we’ve created a number of resources to help you have your say, including an Unofficial Guide, a Question by Question Guide and a response template.

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