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SCOTTISH EXECUTIVE FREEDOM OF INFORMATION (SCOTLAND) ACT 2002:OPEN LEARNING WORKBOOK
MODULE 18
HUMAN RIGHTS
18.1 CONTENT AND LEARNING OBJECTIVES
This module explains the scope of the relationship with the Human Rights Act 1998. Once you have worked your way through this module you should understand:
- How the Human Rights Act 1998 applies in the UK
- The two Convention Rights that have most bearing on access to information, that is the right to privacy and the right to freedom of expression
- The balance between these two Convention Rights
18.2 This module is included as the Human Rights Act 1998 has a fundamental impact on everything that public authorities do, including on the provision of information. It is important to understand the human rights background when considering FOISA.
SUGGESTED TIME ALLOCATION: 50 minutes
18.3 LEARNING MATERIALS
18.3.1 Human Rights Act 1998 ("HRA")
The HRA applies throughout the UK. Because of the Scotland Act 1998, members of the Scottish Executive were restricted from acting in a manner incompatible with Convention Rights from 6 May 1999. For the rest of the UK the HRA came into force on 2nd October 2000. All public authorities in the United Kingdom are subject to it.
18.3.2 What are the rights protected by the HRA?
The rights are set out in a schedule to the HRA and are called the Convention Rights. There are over a dozen Convention Rights. Each right is set out in a separate Article. The Articles are taken from the European Convention on which the HRA is based. The Convention Rights can look a bit old fashioned to modern eyes because attitudes towards society and authority have changed since the 1950s and some of the things that we would expect to see are not included. For example there is no separate right to be protected from discrimination on grounds of sex, race or colour. However there have been some additions since the 1950s and, more importantly, the way the rights are applied has been kept up-to-date by the approach of the European Court which rules on cases concerning these rights. The Court will interpret the rights in the light of present day attitudes bearing in mind the underlying purpose of the Convention which is to ensure individual rights in a democracy.
18.3.3 What kind of rights do we have as members of the public?
There are different kinds of rights and the way that they apply varies depending on the right involved.
(a) Is there a right to privacy?
There is no general right that can be enforced against anybody who interferes with an individual's privacy. Article 8 protects private and family life, home and correspondence from interference by the State. The Article goes on to say that the State can interfere with that privacy but only where the interfering behaviour passes three tests. The three tests are set out below.
- is the interference intended to protect another important public interest, listed in Article 8 as "…the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others"?
- is the public authority that is interfering entitled to do so legally? - In other words, there must be a law or proper set of rules governing its behaviour.
- is the interference reasonable and proportionate? In other words, the degree and nature of the interference can be justified in the particular case in the light of the public interest being protected.
For example the police cannot arbitrarily enter and search private premises, or open people's letters without proper justification and authority.
(b) Is there a right of access to information?
There is no general right of access to information under the HRA.
Article 10 protects freedom of expression. This includes the right to hold opinions and receive and impart ideas. As with the right to privacy the State can interfere with this right but the interfering behaviour must pass the three tests set out below.
- is the interference intended to protect another important public interest, listed in Article 10 (2) as "…. the interests of national security or public safety, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights or freedoms of others…"?
- is the public authority that is doing the interfering entitled to do so legally? - In other words, there must be a law or proper set of rules governing its behaviour; and
- is the interference reasonable and proportionate? In other words, the degree and nature of the interference can be justified in the particular case in the light of the public interest being protected.
So the right of freedom of information is not one of the Convention Rights.
18.3.4 The Human Rights Act and the devolution settlement
The powers of the Scottish Parliament are limited to dealing with devolved matters. An Act of the Scottish Parliament cannot be passed which is incompatible with the Convention rights. Members of the Scottish Executive cannot do any act or make any subordinate legislation if it would be incompatible with any of the Convention rights.
18.3.5 Convention Rights, Privacy and Freedom of Information
We have seen earlier in this module that the right to private and family life and the right to freedom of expression are Convention Rights. The Scottish Parliament and Scottish public authorities have to comply with these and make sure that people's rights are not interfered with. We have also seen that the right to freedom of expression does not include a right to access to information.
Does this mean that there is a stronger legal protection for the right to privacy than for the right to have access to information?
As the law stands at present the privacy of personal information is protected by the Data Protection Act 1998 (the "DPA"). The DPA was passed because of a requirement by the European Union that all Member States in the Union have laws that meet a set of European standards set out in a Directive. The UK cannot reduce the privacy protection provided by the DPA. In effect this may mean that if there is a conflict between rights of privacy and rights of access the right of privacy will be the stronger.
18.4 THE STRATEGIC VIEW
Authorities should already have a procedure for considering the impact of the Human Rights Act on their processes.
It would also be helpful for staff to have a general understanding of human rights issues and how this might affect their relationship with the public. |
18.5 SUMMARY
Public authorities have various powers over the lives of citizens and over businesses. In a democracy ordinary citizens and businesses are entitled to a number of rights and freedoms, like the right to free elections. The Human Rights Act 1998 sets limits on how public authorities can behave when they are exercising those powers; another way of putting this is that it gives people a guarantee that their fundamental rights will be respected by the State.
18.6 KEYWORDS
Article | The Convention Rights are set out in articles, for example, Article 8 deals with the right to respect for private and family life. In UK legislation we more usually refer to sections. (European Convention of Human Rights). |
Convention Rights | This term is defined in the Human Rights Act 1998. The Convention Rights mean the rights and fundamental freedoms set out at particular articles of the Convention on Human Rights and Fundamental Freedoms. These Rights cover the right to life, a prohibition on torture, a prohibition on slavery and forced labour, a right to liberty and security of person, a right to a fair trial, the right not to be punished without law, the right to respect for private and family life, the right to freedom of thought, conscience and religion, the right to freedom of expression, the right to freedom of assembly and association, the right to marry, the right to education, the right to free elections and rights to protection of property. (European Convention of Human Rights). |
Directive | A Directive is a law passed by the European Union binding upon countries which are part of the European Union. It does not have direct effect in countries in the Union but each country has to pass a national law which meets the standards in the Directive. |
European Court of Human Rights | This court administers the European Convention on Human Rights. It sits in Strasbourg. It operates within the framework of the Council of Europe. It is different from the European Court of Justice which is the court of the European Union and is based in Luxembourg. |
Public Authorities | These are organisations which carry out public functions. A public function is something which is carried out by or on behalf of the State, for example the provision of publicly funded health care. |
State | This is not defined in the Human Rights Act or the Freedom of Information (Scotland) Act. It is a general term used for the organisations that exercise public powers. It does not only cover central government; any public authority is part of the State. The action of any public authority is an action of the State. |
18.7 REFERENCES
Section 1 Human Rights Act 1998 The Convention Rights
18.8 RESOURCES
Human Rights Act 1998:
www.hmso.gov.uk
18.9 SELF ASSESSMENT CHECKLIST
1. The Scottish Parliament cannot pass legislation which is incompatible with the Convention because compliance with the obligations of the European Convention is a reserved matter. TRUE or FALSE ?
2. Article 8 of the European Convention, the right to privacy, is an absolute right. TRUE or FALSE ?
3. If your local football club refuses your application for a season ticket because you are female and not of Scottish descent, you can bring a court action under the Human Rights Act 1998 against the club for discrimination on grounds of sex and race. TRUE or FALSE ?
4. The right of freedom of information is not one of the Convention Rights. TRUE or FALSE ?
Click here for answers
18.10 WHAT THEY SAID
"The full effect of the Human Rights Act on our legal system, and on society as a whole, has yet to be felt. It is, however, clear that the role of information in our society makes it increasingly important to develop respect among data controllers for the private lives of individuals and to ensure good information handling practice". (Office of the Information Commissioner, Data Protection Act 1998, Legal Guidance.)
18.11 CASE STUDY
Traditional sports such as boxing and wrestling have increased in popularity over the last few years along with newer forms of martial arts such as sumo wrestling, judo and karate which have many followers.
In a small town in mid-Scotland, all the local martial arts team have open championships and lists of participants and rankings are routinely published in the local newspaper and put up in clubs and leisure centres. There is a very popular youth culture in these activities and many competitions.
The competitions have always given rise to some policing concerns which have in the past been centred around links to gambling. However, more recently research by the local university has pinpointed a statistically very strong link between participation in martial arts as a competitive sport and participation in a type of criminal behaviour which is also very popular with local youths - joyriding.
Joyriding raises a number of serious issues for the police. Not only is it a criminal activity in itself and a cause of danger and nuisance to others but it is also a cause of significant injury to children who are involved in the activity.
It has been suggested that it would be sensible to build a record of those youngsters who take part in martial sports and to use it as a basis for an intelligence database when incidents of joyriding come up. After some discussion it is agreed that this will take place. The material is gathered quietly from published sources, for example, local newspapers, lists put up in sports clubs, material gathered at local competitions and is held by the police on a computer. Increasingly whenever a juvenile is pulled in for any occurrence, not merely joyriding or even necessarily criminal behaviour, a check is made of this record.
One of the parents discovers this and is incensed that the police are keeping a record of his son's interest in martial arts, the competitions he has entered and his location. On behalf of the child he launches an action under the Human Rights Act to require the police to remove this record.
Task
Consider the issues here and build up a list of a few bullet points in argument either for or against the retention of these records under the Human Rights Act 1998.
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