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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 makes the European Convention on Human Rights enforceable in the UK courts. It is no longer necessary to go to the European Court of Human Rights (EHCR) in Strasbourg, 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. This is under sections 6 and 7 Human Rights Act. 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. For example, the Convention could be cited in a DDA claim against even a private sector employer or 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".
Disability as a ground under Article 14
Disability is not mentioned in Article 14. However, it is very 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 paragraph 20 of the Explanatory Report (external link) for Protocol No. 12 of the Convention (not adopted by the UK) explicitly mentions "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. However, there may well be scope to argue - at least where the discrimination is in an area (e.g. education) covered by the Convention - that having a clinical stammer is some 'other status' within Article 14 whether or not its effects are "substantial" (More on this argument).
Applies only within the 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 OPSI website includes the full text of all rights, including the first protocol.
Protocol No. 12 (external link) extends the Convention's coverage of discrimination for those countries which have signed up to the Protocol. However, it seems that the UK government has no plans to do so at present.
Discrimination
"Discrimination" has its own meaning in Article 14 of the Convention, and thus in the Human Rights Act. It means broadly that (a) the person is treated differently, because of e.g. the disability, from people in a similar or analogous situation, and (b) 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.
"Discrimination" in the Convention can also include indirect discrimination or (which may amount to much the same thing) failure to make adjustments to a general policy. In Thlimmenos v Greece (2001) the EHCR held that a State violates Article 14 if it fails to treat differently persons whose situations are significantly different, without objective and reasonable justification. In that case, the complainant was refused an appointment as a chartered accountant because of a felony. He had refused to wear a military uniform (and we therefore guilty of insubordination), but this was because he was a Jehovah's witness. He argued successfully that a distinction should have been made between offences committed exclusively because of a religious belief and other offences.
Another important case on indirect discrimination is D.H. v Czech Republic (2007), which concerned Roma children been shunted into 'special' schools for those with learning difficulties. The EHCR confirmed that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a racial or ethnic group. Intent was not required. The court also talked about shifting the burden of proof: where the applicant established a rebuttable presumption that the effect of a measure or practice was discriminatory, the burden shifted to the State to show the difference in treatment is not discriminatory.
There is a useful Powerpoint presentation on Article 14 at www.coehelp.org (dated about 2006 so does not include the final D.H. decision.).
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 measure 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.
Also Article 12 gives a right to marry and found a family, according to national laws.
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.
This area should now largely be covered by the DDA, in some cases by the general services provisions, and in others by the rules on public functions (e.g. arrest by the police).
Whether or not Article 14 requires reasonable adjustments, the right under Article 6 that a hearing be fair may itself require that arrangements made are appropriate for a person who stammers.
"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. However, it is now largely covered by the DDA in any event. See this separate page on Human Rights Act in education.
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© Allan Tyrer 2000-2008
Last updated 23rd November, 2008
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